STATE WATER RESOURCES CONTROL BOARD
PUBLIC HEARING
EXCERPTED TRANSCRIPT
1998 BAY-DELTA WATER RIGHTS HEARING
HELD AT:
BONDERSON BUILDING
901 P STREET
SACRAMENTO, CALIFORNIA
WEDNESDAY, MARCH 16, 1999
9:00 A.M.
Reported by: ESTHER F. WIATRE
CSR NO. 1564
CAPITOL REPORTERS (916) 923-5447
1 APPEARANCES
BOARD MEMBERS:
2
JAMES STUBCHAER, COHEARING OFFICER
3 JOHN W. BROWN, COHEARING OFFICER
MARY JANE FORSTER
4 MARC DEL PIERO
5 STAFF MEMBERS:
6 WALTER PETTIT, EXECUTIVE DIRECTOR
VICTORIA WHITNEY, CHIEF BAY-DELTA UNIT
7 THOMAS HOWARD, SUPERVISING ENGINEER
8 COUNSEL:
9 WILLIAM R. ATTWATER, CHIEF COUNSEL
BARBARA LEIDIGH
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
CAPITOL REPORTERS (916) 923-5447
1 REPRESENTATIVES
2 PRINCETON CODORA GLENN IRRIGATION DISTRICT, et al.:
3 FROST, DRUP & ATLAS
134 West Sycamore Street
4 Willows, California 95988
BY: J. MARK ATLAS, ESQ.
5
JOINT WATER DISTRICTS:
6
MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON:
7 P.O. BOX 1679
Oroville, California 95965
8 BY: WILLIAM H. BABER III, ESQ.
9 CALIFORNIA SPORTFISHING PROTECTION ALLIANCE:
10 ROBERT J. BAIOCCHI
P.O. Box 357
11 Quincy, California
12 BELLA VISTA WATER DISTRICT:
13 BRUCE L. BELTON, ESQ.
2525 Park Marina Drive, Suite 102
14 Redding, California 96001
15 WESTLANDS WATER DISTRICT:
16 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD
400 Capitol Mall, 27th Floor
17 Sacramento, California 95814
BY: THOMAS W. BIRMINGHAM, ESQ.
18 and
AMELIA MINABERRIGARAI, ESQ.
19
THE BAY INSTITUTE OF SAN FRANCISCO:
20
GARY BOBKER
21 55 Shaver Street, Suite 330
San Rafael, California 94901
22
CITY OF ANTIOCH, et al.:
23
FREDERICK BOLD, JR., ESQ.
24 1201 California Street, Suite 1303
San Francisco, California 94109
25
CAPITOL REPORTERS (916) 923-5447
1 REPRESENTATIVES
2 LEAGUE OF WOMEN VOTERS:
3 ROBERTA BORGONOVO
2480 Union Street
4 San Francisco, California 94123
5 UNITED STATES DEPARTMENT OF THE INTERIOR:
6 OFFICE OF THE SOLICITOR
2800 Cottage Way, Room E1712
7 Sacramento, California 95825
BY: ALF W. BRANDT, ESQ.
8
CALIFORNIA URBAN WATER AGENCIES:
9
BYRON M. BUCK
10 455 Capitol Mall, Suite 705
Sacramento, California 95814
11
RANCHO MURIETA COMMUNITY SERVICES DISTRICT:
12
MCDONOUGH, HOLLAND & ALLEN
13 555 Capitol Mall, 9th Floor
Sacramento, California 95814
14 BY: VIRGINIA A. CAHILL, ESQ.
15 CALIFORNIA DEPARTMENT OF FISH AND GAME:
16 OFFICE OF ATTORNEY GENERAL
1300 I Street, Suite 1101
17 Sacramento, California 95814
BY: MATTHEW CAMPBELL, ESQ.
18
NATURAL RESOURCES DEFENSE COUNCIL:
19
HAMILTON CANDEE, ESQ.
20 71 Stevenson Street
San Francisco, California 94105
21
ARVIN-EDISON WATER STORAGE DISTRICT, et al.:
22
DOOLEY HERR & WILLIAMS
23 3500 West Mineral King Avenue, Suite C
Visalia, California 93291
24 BY: DANIEL M. DOOLEY, ESQ.
25
CAPITOL REPORTERS (916) 923-5447
1 REPRESENTATIVES
2 SACRAMENTO MUNICIPAL UTILITY DISTRICT:
3 LESLIE A. DUNSWORTH, ESQ.
6201 S Street
4 Sacramento, California 95817
5 SOUTH SAN JOAQUIN IRRIGATION DISTRICT, et al.:
6 BRAY, GEIGER, RUDQUIST & NUSS
311 East Main Street, 4th Floor
7 Stockton, California 95202
BY: STEVEN P. EMRICK, ESQ.
8
EAST BAY MUNICIPAL UTILITY DISTRICT:
9
EBMUD OFFICE OF GENERAL COUNSEL
10 375 Eleventh Street
Oakland, California 94623
11 BY: FRED S. ETHERIDGE, ESQ.
12 GOLDEN GATE AUDUBON SOCIETY:
13 ARTHUR FEINSTEIN
2530 San Pablo Avenue, Suite G
14 Berkeley, California 94702
15 CONAWAY CONSERVANCY GROUP:
16 UREMOVIC & FELGER
P.O. Box 5654
17 Fresno, California 93755
BY: WARREN P. FELGER, ESQ.
18
THOMES CREEK WATER ASSOCIATION:
19
THOMES CREEK WATERSHED ASSOCIATION
20 P.O. Box 2365
Flournoy, California 96029
21 BY: LOIS FLYNNE
22 COURT APPOINTED REPS OF WESTLANDS WD AREA 1, et al.:
23 LAW OFFICES OF SMILAND & KHACHIGIAN
601 West Fifth Street, Seventh Floor
24 Los Angeles, California 90075
BY: CHRISTOPHER G. FOSTER, ESQ.
25
CAPITOL REPORTERS (916) 923-5447
1 REPRESENTATIVES
2 CITY AND COUNTY OF SAN FRANCISCO:
3 OFFICE OF THE CITY ATTORNEY
1390 Market Street, Sixth Floor
4 San Francisco, California 94102
BY: DONN W. FURMAN, ESQ.
5
CAMP FAR WEST IRRIGATION DISTRICT, et al.:
6
DANIEL F. GALLERY, ESQ.
7 926 J Street, Suite 505
Sacramento, California 95814
8
BOSTON RANCH COMPANY, et al.:
9
J.B. BOSWELL COMPANY
10 101 West Walnut Street
Pasadena, California 91103
11 BY: EDWARD G. GIERMANN
12 SAN JOAQUIN RIVER GROUP AUTHORITY, et al.:
13 GRIFFTH, MASUDA & GODWIN
517 East Olive Street
14 Turlock, California 95381
BY: ARTHUR F. GODWIN, ESQ.
15
NORTHERN CALIFORNIA WATER ASSOCIATION:
16
RICHARD GOLB
17 455 Capitol Mall, Suite 335
Sacramento, California 95814
18
PLACER COUNTY WATER AGENCY, et al.:
19
KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD
20 400 Capitol Mall, 27th Floor
Sacramento, California 95814
21 BY: JANET GOLDSMITH, ESQ.
22 ENVIRONMENTAL DEFENSE FUND:
23 DANIEL SUYEYASU, ESQ.
and
24 THOMAS J. GRAFF, ESQ.
5655 College Avenue, Suite 304
25 Oakland, California 94618
CAPITOL REPORTERS (916) 923-5447
1 REPRESENTATIVES
2 CALAVERAS COUNTY WATER DISTRICT:
3 SIMON GRANVILLE
P.O. Box 846
4 San Andreas, California 95249
5 CHOWCHILLA WATER DISTRICT, et al.:
6 GREEN, GREEN & RIGBY
P.O. Box 1019
7 Madera, California 93639
BY: DENSLOW GREEN, ESQ.
8
CALIFORNIA FARM BUREAU FEDERATION:
9
DAVID J. GUY, ESQ.
10 2300 River Plaza Drive
Sacramento, California 95833
11
SANTA CLARA VALLEY WATER DISTRICT:
12
MORRISON & FORESTER
13 755 Page Mill Road
Palo Alto, California 94303
14 BY: KEVIN T. HAROFF, ESQ.
15 CITY OF SHASTA LAKE:
16 ALAN N. HARVEY
P.O. Box 777
17 Shasta Lake, California 96019
18 COUNTY OF STANISLAUS:
19 MICHAEL G. HEATON, ESQ.
926 J Street
20 Sacramento, California 95814
21 GORRILL LAND COMPANY:
22 GORRILL LAND COMPANY
P.O. Box 427
23 Durham, California 95938
BY: DON HEFFREN
24
25
CAPITOL REPORTERS (916) 923-5447
1 REPRESENTATIVES
2 SOUTH DELTA WATER AGENCY:
3 JOHN HERRICK, ESQ.
3031 West March Lane, Suite 332 East
4 Stockton, California 95267
5 COUNTY OF GLENN:
6 NORMAN Y. HERRING
525 West Sycamore Street
7 Willows, California 95988
8 REGIONAL COUNCIL OF RURAL COUNTIES:
9 MICHAEL B. JACKSON, ESQ.
1020 Twelfth Street, Suite 400
10 Sacramento, California 95814
11 DEER CREEK WATERSHED CONSERVANCY:
12 JULIE KELLY
P.O. Box 307
13 Vina, California 96092
14 DELTA TRIBUTARY AGENCIES COMMITTEE:
15 MODESTO IRRIGATION DISTRICT
P.O. Box 4060
16 Modesto, California 95352
BY: BILL KETSCHER
17
SAVE THE SAN FRANCISCO BAY ASSOCIATION:
18
SAVE THE BAY
19 1736 Franklin Street
Oakland, California 94612
20 BY: CYNTHIA L. KOEHLER, ESQ.
21 BATTLE CREEK WATERSHED LANDOWNERS:
22 BATTLE CREEK WATERSHED CONSERVANCY
P.O. Box 606
23 Manton, California 96059
24
25
CAPITOL REPORTERS (916) 923-5447
1 REPRESENTATIVES
2 BUTTE SINK WATERFOWL ASSOCIATION, et al.:
3 MARTHA H. LENNIHAN, ESQ.
455 Capitol Mall, Suite 300
4 Sacramento, California 95814
5 CITY OF YUBA CITY:
6 WILLIAM P. LEWIS
1201 Civic Center Drive
7 Yuba City 95993
8 BROWNS VALLEY IRRIGATION DISTRICT, et al.:
9 BARTKEWICZ, KRONICK & SHANAHAN
1011 22nd Street, Suite 100
10 Sacramento, California 95816
BY: ALAN B. LILLY, ESQ.
11
CONTRA COSTA WATER DISTRICT:
12
BOLD, POLISNER, MADDOW, NELSON & JUDSON
13 500 Ygnacio Valley Road, Suite 325
Walnut Creek, California 94596
14 BY: ROBERT B. MADDOW, ESQ.
15 GRASSLAND WATER DISTRICT:
16 DON MARCIOCHI
22759 South Mercey Springs Road
17 Los Banos, California 93635
18 SAN LUIS CANAL COMPANY:
19 FLANNIGAN, MASON, ROBBINS & GNASS
3351 North M Street, Suite 100
20 Merced, California 95344
BY: MICHAEL L. MASON, ESQ.
21
STONY CREEK BUSINESS AND LAND OWNERS COALITION:
22
R.W. MCCOMAS
23 4150 County Road K
Orland, California 95963
24
25
CAPITOL REPORTERS (916) 923-5447
1 REPRESENTATIVES
2 TRI-DAM POWER AUTHORITY:
3 TUOLUMNE UTILITIES DISTRICT
P.O. Box 3728
4 Sonora, California 95730
BY: TIM MCCULLOUGH
5
DELANO-EARLIMART IRRIGATION DISTRICT, et al.:
6
MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON
7 P.O. Box 1679
Oroville, California 95965
8 BY: JEFFREY A. MEITH, ESQ.
9 HUMANE FARMING ASSOCIATION:
10 BRADLEY S. MILLER
1550 California Street, Suite 6
11 San Francisco, California 94109
12 CORDUA IRRIGATION DISTRICT, et al.:
13 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON
P.O. Box 1679
14 Oroville, California 95965
BY: PAUL R. MINASIAN, ESQ.
15
EL DORADO COUNTY WATER AGENCY:
16
DE CUIR & SOMACH
17 400 Capitol Mall, Suite 1900
Sacramento, California 95814
18 BY: DONALD B. MOONEY, ESQ.
19 GLENN COUNTY FARM BUREAU:
20 STEVE MORA
501 Walker Street
21 Orland, California 95963
22 MODESTO IRRIGATION DISTRICT:
23 JOEL MOSKOWITZ
P.O. Box 4060
24 Modesto, California 95352
25
CAPITOL REPORTERS (916) 923-5447
1 REPRESENTATIVES
2 PACIFIC GAS & ELECTRIC:
3 RICHARD H. MOSS, ESQ.
P.O. Box 7442
4 San Francisco, California 94120
5 CENTRAL DELTA WATER AGENCY, et al.:
6 NOMELLINI, GRILLI & MCDANIEL
P.O. Box 1461
7 Stockton, California 95201
BY: DANTE JOHN NOMELLINI, ESQ.
8 and
DANTE JOHN NOMELLINI, JR., ESQ.
9
TULARE LAKE BASIN WATER STORAGE UNIT:
10
MICHAEL NORDSTROM
11 1100 Whitney Avenue
Corcoran, California 93212
12
AKIN RANCH, et al.:
13
DOWNEY, BRAND, SEYMOUR & ROHWER
14 555 Capitol Mall, 10th Floor
Sacramento, California 95814
15 BY: KEVIN M. O'BRIEN, ESQ.
16 OAKDALE IRRIGATION DISTRICT:
17 O'LAUGHLIN & PARIS
870 Manzanita Court, Suite B
18 Chico, California 95926
BY: TIM O'LAUGHLIN, ESQ.
19
SIERRA CLUB:
20
JENNA OLSEN
21 85 Second Street, 2nd Floor
San Francisco, California 94105
22
YOLO COUNTY BOARD OF SUPERVISORS:
23
LYNNEL POLLOCK
24 625 Court Street
Woodland, California 95695
25
CAPITOL REPORTERS (916) 923-5447
1 REPRESENTATIVES
2 PATRICK PORGANS AND ASSOCIATES:
3 PATRICK PORGANS
P.O. Box 60940
4 Sacramento, California 95860
5 BROADVIEW WATER DISTRICT, et al.:
6 DIANE RATHMANN
7 FRIENDS OF THE RIVER:
8 BETSY REIFSNIDER
128 J Street, 2nd Floor
9 Sacramento, California 95814
10 MERCED IRRIGATION DISTRICT:
11 FLANAGAN, MASON, ROBBINS & GNASS
P.O. Box 2067
12 Merced, California 95344
BY: KENNETH M. ROBBINS, ESQ.
13
CENTRAL SAN JOAQUIN WATER CONSERVATION DISTRICT:
14
REID W. ROBERTS, ESQ.
15 311 East Main Street, Suite 202
Stockton, California 95202
16
METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA:
17
JAMES F. ROBERTS
18 P.O. Box 54153
Los Angeles, California 90054
19
SACRAMENTO AREA WATER FORUM:
20
CITY OF SACRAMENTO
21 980 9th Street, 10th Floor
Sacramento, California 95814
22 BY: JOSEPH ROBINSON, ESQ.
23
24
25
CAPITOL REPORTERS (916) 923-5447
1 REPRESENTATIVES
2 TUOLUMNE RIVER PRESERVATION TRUST:
3 NATURAL HERITAGE INSTITUTE
114 Sansome Street, Suite 1200
4 San Francisco, California 94194
BY: RICHARD ROOS-COLLINS, ESQ.
5
CALIFORNIA DEPARTMENT OF WATER RESOURCES:
6
DAVID SANDINO, ESQ.
7 CATHY CROTHERS, ESQ.
P.O. Box 942836
8 Sacramento, California 94236
9 FRIANT WATER USERS AUTHORITY:
10 GARY W. SAWYERS, ESQ.
575 East Alluvial, Suite 101
11 Fresno, California 93720
12 KERN COUNTY WATER AGENCY:
13 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD
400 Capitol Mall, 27th Floor
14 Sacramento, California 95814
BY: CLIFFORD W. SCHULZ, ESQ.
15
SAN JOAQUIN RIVER EXCHANGE CONTRACTORS:
16
MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON:
17 P.O. Box 1679
Oroville, California 95965
18 BY: MICHAEL V. SEXTON, ESQ.
19 SAN JOAQUIN COUNTY:
20 NEUMILLER & BEARDSLEE
P.O. Box 20
21 Stockton, California 95203
BY: THOMAS J. SHEPHARD, SR., ESQ.
22
CITY OF STOCKTON:
23
DE CUIR & SOMACH
24 400 Capitol Mall, Suite 1900
Sacramento, California 95814
25 BY: PAUL S. SIMMONS, ESQ.
CAPITOL REPORTERS (916) 923-5447
1 REPRESENTATIVES
2 ORLAND UNIT WATER USERS' ASSOCIATION:
3 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON
P.O. Box 1679
4 Oroville, California 95965
BY: M. ANTHONY SOARES, ESQ.
5
GLENN-COLUSA IRRIGATION DISTRICT:
6
DE CUIR & SOMACH
7 400 Capitol Mall, Suite 1900
Sacramento, California 95814
8 BY: STUART L. SOMACH, ESQ.
9 NORTH SAN JOAQUIN WATER CONSERVATION DISTRICT:
10 JAMES F. SORENSEN CONSULTING CIVIL ENGINEER, INC.
209 South Locust Street
11 Visalia, California 93279
BY: JAMES F. SORENSEN
12
PARADISE IRRIGATION DISTRICT:
13
MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON
14 P.O. Box 1679
Oroville, California 95695
15 BY: WILLIAM H. SPRUANCE, ESQ.
16 COUNTY OF COLUSA:
17 DONALD F. STANTON, ESQ.
1213 Market Street
18 Colusa, California 95932
19 COUNTY OF TRINITY:
20 COUNTY OF TRINITY - NATURAL RESOURCES
P.O. Box 156
21 Hayfork, California 96041
BY: TOM STOKELY
22
CITY OF REDDING:
23
JEFFERY J. SWANSON, ESQ.
24 2515 Park Marina Drive, Suite 102
Redding, California 96001
25
CAPITOL REPORTERS (916) 923-5447
1 REPRESENTATIVES
2 TULARE IRRIGATION DISTRICT:
3 TEHAMA COUNTY RESOURCE CONSERVATION DISTRICT
2 Sutter Street, Suite D
4 Red Bluff, California 96080
BY: ERNEST E. WHITE
5
STATE WATER CONTRACTORS:
6
BEST BEST & KREIGER
7 P.O. Box 1028
Riverside, California 92502
8 BY: ERIC GARNER, ESQ.
9 COUNTY OF TEHAMA, et al.:
10 COUNTY OF TEHAMA BOARD OF SUPERVISORS:
P.O. Box 250
11 Red Bluff, California 96080
BY: CHARLES H. WILLARD
12
MOUNTAIN COUNTIES WATER RESOURCES ASSOCIATION:
13
CHRISTOPHER D. WILLIAMS
14 P.O. Box 667
San Andreas, California 95249
15
JACKSON VALLEY IRRIGATION DISTRICT:
16
HENRY WILLY
17 6755 Lake Amador Drive
Ione, California 95640
18
SOLANO COUNTY WATER AGENCY, et al.:
19
HERUM, CRABTREE, DYER, ZOLEZZI & TERPSTRA
20 2291 West March Lane, S.B.100
Stockton, California 95207
21 BY: JEANNE M. ZOLEZZI, ESQ.
22 ---oOo---
23
24
25
CAPITOL REPORTERS (916) 923-5447
1 INDEX
2 PAGE
3 RESUMPTION OF HEARING: 11566
4 AFTERNOON SESSION: 11651
5 DEPARTMENT OF THE INTERIOR:
JOHN RENNING
6 REDIRECT EXAMINATION:
BY MR. TURNER 11567
7 CONTINUED RECROSS-EXAMINATION:
BY MR. JACKSON 11571
8 RECROSS-EXAMINATION
BY MR. HERRICK 11575
9 BY MR. NOMELLINI 11587
BY MR. BIRMINGHAM 11589
10
ENVIRONMENTAL DEFENSE FUND:
11 OPENING STATEMENT:
BY MR. SUYEYASU 11598
12 SPRECK ROSEKRANS
DIRECT EXAMINATION:
13 BY MR. SUYEYASU 11601
CROSS-EXAMINATION:
14 BY MR. CAMPBELL 11605
BY MR. NOMELLINI 11607
15 BY MR. BIRMINGHAM 11612
BY MR. HERRICK 11660
16
CROSS VALLEY CANAL:
17 OPENING STATEMENT:
BY MR. CONANT 11681
18 DENNIS KELLER
DIRECT EXAMINATION:
19 BY MR. CONANT 11683
CROSS-EXAMINATION:
20 BY MR. NOMELLINI 11692
BY MR. HERRICK 11698
21 BY MR. BIRMINGHAM 11702
BY BOARD MEMBERS 11704
22
23
24
25
CAPITOL REPORTERS (916) 923-5447
1 INDEX (CONT.)
2 PAGE
3 TRINITY COUNTY:
OPENING STATEMENT:
4 BY MR. WHITRIDGE 11709
TESTIMONY:
5 TOM STOKELY 11715
CROSS-EXAMINATION:
6 BY MR. TURNER 11721
BY MR. NOMELLINI 11724
7 BY MR. CAMPBELL 11741
8
9
10 ---oOo---
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
CAPITOL REPORTERS (916) 923-5447
1 SACRAMENTO, CALIFORNIA
2 MARCH 16, 1999
3 ---oOo---
4 C.O. STUBCHAER: We will call the Bay-Delta hearing to
5 order.
6 I understand that we are in the recross-examination of
7 the redirect testimony, Department of the Interior. And
8 since I had to leave last time early, Mr. Brown started this
9 aspect of the proceeding, I will ask him to conclude this.
10 Mr. Brown.
11 C.O. BROWN: Thank you, Mr. Stubchaer.
12 As we concluded during our last meeting Mr. Jackson was
13 giving recross-examination to Mr. Renning.
14 Mr. Jackson, did you complete recross?
15 MR. JACKSON: Yes, I did.
16 C.O. STUBCHAER: Is there anyone else that wishes to
17 recross?
18 Mr. Herrick.
19 Anyone else?
20 Mr. Birmingham.
21 Okay. Another indiscriminate call, and then, Mr.
22 Herrick, you are up.
23 MR. TURNER: Excuse me, Mr. Chairman, Mr. Brown.
24 During the recross by Mr. Jackson last week of Mr. Renning
25 on this subject, there had been some concerns raised about
CAPITOL REPORTERS (916) 923-5447 11566
1 the clarity of what Mr. Renning was trying to explain with
2 respect to Alternative 9 and how the charts were, in fact,
3 prepared. And we prepared some additional clarification
4 testimony at your request, Mr. Brown, that we'd be more than
5 happy to go ahead and have Mr. Renning present at this time
6 to clarify for the other parties and possibly simplify
7 cross-examination or we can await and do that later,
8 whichever you'd prefer.
9 C.O. BROWN: Thank you, Mr. Turner.
10 Mr. Herrick, make it your choice. Would you like to
11 hear the explanation first or would you like to start your
12 recross first?
13 MR. HERRICK: I think the explanation might help. I
14 probably might have a couple questions.
15 C.O. BROWN: All right, Mr. Turner.
16 ---oOo---
17 REDIRECT EXAMINATION OF DEPARTMENT OF THE INTERIOR
18 BY MR. TURNER
19 MR. TURNER: Thank you. I am James Turner, attorney
20 for the Department of the Interior in the Phase VI of these
21 proceedings.
22 Mr. Renning, as I mentioned a moment ago during your
23 recross-examination last week in connection with your
24 supplemental testimony regarding Alternative 9, some
25 questions had been raised about exactly what you were trying
CAPITOL REPORTERS (916) 923-5447 11567
1 to clarify to the audience. So you had prepared a
2 supplemental statement, did you not, more clearly specifying
3 what you were trying to point out last week on that subject?
4 MR. RENNING: Yes, I did.
5 MR. TURNER: At the same time you had also prepared
6 some additional exhibits to supplement your further
7 testimony for clarification purposes?
8 MR. RENNING: Yes, I did.
9 MR. TURNER: If you would please present that testimony
10 explaining those exhibits at this point I think it might be
11 very helpful.
12 MR. RENNING: My testimony and the two new exhibits
13 have been distributed to everyone. They are Exhibits 10-XX
14 and 10-YY.
15 On March 10th in cross-examination I made the statement
16 that the portrayal of effects of the use of the joint point
17 of diversion for Alternative 9 in Exhibit 10-D looked funny,
18 and that perhaps the studies had not been done correctly.
19 My comments were in error. The studies were done
20 correctly.
21 However, Exhibit 10-D is misleading in the sense that
22 the utility of the joint point of diversion for Alternative
23 9 is understated. That is because in Exhibit 10-D all
24 alternatives are compared against Alternative 2. For
25 Alternatives 3 through 8 that is the proper comparison as
CAPITOL REPORTERS (916) 923-5447 11568
1 all of these alternatives are based on Alternative 2 and
2 have common operating assumptions.
3 However, Alternative 9 is not based on Alternative 2.
4 It is based on Run 622A which is flow Alternative 8 or the
5 San Joaquin Agreement alternative, also returned to as the
6 VAMP alternative. Therefore, to see the utility of the
7 joint point of diversion in the context of Alternative 9, it
8 needs to be compared against Run 622A.
9 This is Exhibit 10-XX. Exhibit 10-XX shows the annual
10 average deliveries of the CVP and SWP for joint point of
11 diversion Alternatives 1 through 9 and for Run 622A.
12 Exhibit 10-XX is based upon Exhibit 10-C. What I have done
13 is to add over on the right-hand side information regarding
14 Run 622A. For Alternative 2 and Run 622A annual average SWP
15 deliveries are 2763 and 276,000 acre-feet respectively. For
16 annual average CVP deliveries the figures are 2591 and 2545
17 thousand 000 acre-feet respectively.
18 The comparison of Alternative 9 with Alternative 2 and
19 Run 266A [verbatim] as shown on Exhibit 10-YY. Exhibit
20 10-YY is based on Exhibit 10-D. In Exhibit 10-YY
21 Alternatives 3 through 9 are compared to Alternative 2 and
22 Alternative 9 is compared with Run 622A; that again is over
23 on the right-hand side of Exhibit 10-YY.
24 The differences for Alternatives 3 through 8 are due to
25 varying levels of the use of the joint point of diversion.
CAPITOL REPORTERS (916) 923-5447 11569
1 The difference in annual CVP deliveries between Alternative
2 2 and Alternative 9, 45,000 acre-feet, is due to the joint
3 point of diversion use and VAMP. The differences in annual
4 average CVP deliveries between Alternative 9 and Run 622A,
5 91,000 acre-feet, is due to the joint point of diversion use
6 only. The difference in annual CVP deliveries between
7 Alternative 9 and Run 622A is similar to the difference in
8 annual CVP deliveries between Alternative 2 and Alternatives
9 4 and 5. This shows the utility of the joint point of
10 diversion will be the same in Alternative 9 as in the other
11 alternatives.
12 Also, in the material that was given to everyone today,
13 is revised Exhibit 10-Z. If you remember in my testimony
14 when I was describing it, I noted there was something wrong
15 with the portrayal or Alternative 8. And over the weekend I
16 went back and looked through the data files and found that
17 this exhibit -- there was an error in this exhibit, and this
18 exhibit has the corrected information for Alternative 8.
19 You will see that there are values portrayed in the flows,
20 the export flows, that are above 10,000 cfs.
21 That concludes my testimony.
22 MR. TURNER: Thank you, Mr. Renning.
23 That would complete the supplemental presentation that
24 I hope would assist the people in pursuing the
25 recross-examination. Mr. Renning would now be available for
CAPITOL REPORTERS (916) 923-5447 11570
1 any questions by any of the members, staff, Board or parties
2 would have.
3 C.O. BROWN: Thank you, Mr. Turner.
4 Mr. Jackson, you're the gentleman that had the
5 questions on this issue. Did this clarify the issue for
6 you? Or if you would like I'd afford you the courtesy to
7 ask questions on this particular subject.
8 MR. JACKSON: Thank you, if I could.
9 ---oOo---
10 CONTINUED RECROSS-EXAMINATION OF DEPARTMENT OF THE INTERIOR
11 BY REGIONAL COUNCIL OF RURAL COUNTIES
12 BY MR. JACKSON
13 MR. JACKSON: Could you put up the other chart? I
14 believe that is government Exhibit 10-YY.
15 Mr. Renning, you indicate on this particular Exhibit
16 10-YY you have two Alternative 9s. And what does the first
17 Alternative 9 show?
18 MR. RENNING: That shows the comparison of Alternative
19 9 with Alternative 2.
20 MR. JACKSON: Alternative 2 is the no joint point of
21 diversion?
22 MR. RENNING: Yes.
23 MR. JACKSON: So, Alternative 9 compared against no
24 joint point of diversion would give us the number 45,000
25 acre-feet in additional pumping?
CAPITOL REPORTERS (916) 923-5447 11571
1 MR. RENNING: Yes, on an annual average basis.
2 MR. JACKSON: When you add in the VAMP flows, you get a
3 larger number that is 91,000?
4 MR. RENNING: No, that is not right.
5 MR. JACKSON: Would you explain to me how the two
6 Alternative 9s differ?
7 MR. RENNING: The problem we have here is that it's a
8 question of choosing the proper base study with which to
9 make a comparison. If you want to see what the utility of
10 the joint point of diversion is in the context of
11 Alternative 9, you need to compare it to a base study that
12 is similar to Alternative 9. And that study is Run 622A or
13 the VAMP alternative; and the utility of the joint point of
14 diversion is on an annual average basis for the CVP 91,000
15 acre-feet.
16 MR. JACKSON: Would you describe the assumptions in
17 Run 622A?
18 MR. RENNING: The assumptions in 622A are meeting the
19 Water Quality Control Plan and the VAMP alternative with the
20 differences that are associated with the Vernalis standards
21 that are associated with VAMP.
22 MR. JACKSON: What are those differences in the
23 assumptions for Run 622A?
24 MR. RENNING: Somewhat different flow standards are met
25 during the pulse flow period and greater export limitations
CAPITOL REPORTERS (916) 923-5447 11572
1 are imposed on the project.
2 MR. JACKSON: Are there any differences between Run
3 622A and the base run for the other alternatives outside of
4 the VAMP flow period of 31 days in March and April, or April
5 and May?
6 MR. RENNING: I do not believe so.
7 MR. JACKSON: What about the VAMP causes the difference
8 -- first of all, in the two Alternative 9s, does Run 622A
9 indicate that there is additional water taken by the joint
10 point of diversion during the pulse flow period?
11 MR. RENNING: Run 622A does not contain the joint point
12 of diversion. There is no -- the joint point of diversion
13 is not used in Run 622A.
14 MR. JACKSON: If the only difference between the two
15 runs is the VAMP export limitations during the pulse flow --
16 MR. TURNER: Excuse me, could you clarify between what
17 two runs?
18 MR. JACKSON: Between the two Alternative 9s that are
19 on this exhibit.
20 If the only difference between these two Alternative 9s
21 is the pulse flow period and the limitations on exports
22 during that pulse flow period, then I don't understand why
23 the second Alternative 9 on the chart that is compared to
24 Run 622A would reflect greater use of the joint point. Can
25 you explain that to me?
CAPITOL REPORTERS (916) 923-5447 11573
1 MR. RENNING: That is the whole problem that I have
2 been trying to explain or that is the root of my statement
3 during -- my original statement during my testimony. That
4 is that when you look at Exhibit 10-D the utility of the
5 joint point of diversion is understated, and it does not
6 give a meaningful picture of what the utility of the joint
7 point of diversion would be in the context of Alternative
8 9. And to see the utility of the joint point of diversion
9 in the context of Alternative 9, you need to compare it to
10 the base study upon which Alternative 9 is based, and that
11 is Run 622A.
12 MR. JACKSON: Run 622A has a series of assumptions in
13 it that is different than the assumptions for the other
14 runs, correct?
15 MR. RENNING: The only difference between Run 622A and
16 Alternative 2 is that the VAMP is in place.
17 MR. JACKSON: Maybe I'm missing something. If the only
18 difference between the base runs is whether or not the VAMP
19 is in place, and if the results are quite different in the
20 amount of use of the joint point of diversion, then the
21 water must be coming from the VAMP period, mustn't it?
22 MR. RENNING: No, that is not right.
23 MR. JACKSON: What periods of year is the additional
24 water coming from the second Alternative 9 that you are
25 comparing to 622A?
CAPITOL REPORTERS (916) 923-5447 11574
1 MR. RENNING: Well, the second Alternative 9 is the
2 same as the first Alternative 9. It's just -- what I am
3 showing are the differences between Alternative 9 and
4 Alternative 2 and Run 622A.
5 MR. JACKSON: Then what assumption in Run 622A results
6 in more use of the joint point of diversion?
7 MR. RENNING: Run 622A does not assume the use of joint
8 point of diversion.
9 MR. JACKSON: I have no further questions. I can't
10 find it.
11 C.O. BROWN: For what it's worth, Mr. Jackson, I am
12 struggling with this, too. Maybe a lot of folks are. This
13 helps me.
14 Thank you for your patience and yours, Mr. Renning.
15 MR. NOMELLINI: Could I be added to the list at some
16 point, either ahead or after?
17 C.O. BROWN: Yes, Mr. Nomellini. I will figure that
18 out in just a minute. I will add you to the list.
19 Mr. Herrick, you are up.
20 ---oOo---
21 RECROSS-EXAMINATION OF DEPARTMENT OF THE INTERIOR
22 BY SOUTH DELTA WATER AGENCY
23 BY MR. HERRICK
24 MR. HERRICK: Thank you, Mr. Chairman, Board Members.
25 John Herrick for South Delta Water Agency.
CAPITOL REPORTERS (916) 923-5447 11575
1 I apologize, also, Mr. Renning, some of us just aren't
2 getting this. Maybe because we are not modelers, maybe.
3 Let me see if I can get towards it, anyway.
4 Alternative 4 is the analysis of CVP exports or
5 deliveries, SWP deliveries, based on the same allowable
6 exports as exists under WR 98-9, correct?
7 MR. RENNING: Yes. Alternatives 3 through 8, with the
8 exception of Alternative 6 which is the old LOI alternative,
9 which is not probably relevant anymore, all assume the Water
10 Quality Control Plan in place.
11 MR. HERRICK: But Alternative 4 is -- represents makeup
12 pumping for actions taken to benefit fisheries; is that
13 correct?
14 MR. RENNING: Yes. In Alternative 4 we attempted to
15 model a fishery action, fishery protection action, that
16 caused us to lose capacity at the CVP pumps and then make up
17 that loss capacity. We weren't able to do that on a
18 one-to-one basis, and we ended up replacing more that we
19 lost, so that Alternative 4 is somewhat misleading.
20 MR. HERRICK: That was my next question. Alternative 4
21 somewhat overstates what that makeup pumping would be; is
22 that correct?
23 MR. RENNING: Yes, that's right.
24 MR. HERRCIK: It overstates that when compared to
25 Alternative 2, which is without makeup pumping, with the
CAPITOL REPORTERS (916) 923-5447 11576
1 same assumptions; is that correct?
2 MR. HERRICK: Alternative 2 is what 4 is measured
3 against.
4 MR. HERRICK: Mr. Turner, could you put up 10-XX up
5 there, please?
6 Thank you very much.
7 Mr. Renning, Alternative 2 for CVP deliveries is how
8 much less than CVP deliveries under Alternative 4, roughly?
9 MR. RENNING: Alternative 4, and this information is
10 contained on the table in Chapter XIII of the Draft EIR, I
11 can't remember which table that is at the moment. I think
12 it is Table 2 or 3.
13 In Alternative 4 annual average CVP deliveries are
14 2,683,000 acre-feet, and in Alternative 2 CVP deliveries are
15 2,591,000 acre-feet.
16 MR. HERRICK: The difference then is 83 and 9 or 92,000
17 acre-feet; is that approximately correct?
18 MR. RENNING: Correct.
19 MR. BIRMINGHAM: I am going to object to this line of
20 questioning. It goes beyond the scope of the redirect.
21 C.O. BROWN: Mr. Herrick.
22 MR. HERRICK: I am trying to get to Alternative 9,
23 which, I believe, does part of the comparison but not all of
24 it. I think this will be helpful. I don't see how it is
25 getting far beyond the scope.
CAPITOL REPORTERS (916) 923-5447 11577
1 MR. BIRMINGHAM: All of these questions were asked by
2 various attorneys, including Mr. Herrick, during their
3 original cross of this witness. This witness' testimony on
4 redirect was limited to a discussion of a reanalysis of the
5 relative benefit of our Alternative 9. And I think this,
6 although Mr. Herrick may find this helpful, it is -- these
7 are questions that were asked and answered, and they are
8 questions that are beyond the scope of redirect.
9 C.O. STUBCHAER: Overruled.
10 Proceed, Mr. Herrick.
11 MR. HERRICK: Mr. Renning, in addition to Alternative
12 4, which examines what makeup pumping would result in, you
13 also did Alternative 8 which examines beyond makeup pumping
14 and maximizes the amount of use of the joint point
15 facilities; is that correct?
16 MR. RENNING: Alternative 8 assumes that the full
17 capacity of the Banks pumping plant will be available and
18 that there will be facilities in place in the southern Delta
19 that permit that high use and that capacity is, indeed,
20 used. And another difference in Alternative 8 is that a
21 higher demand has been imposed on the CVP to, in essence,
22 force a higher use of joint point of diversion.
23 MR. HERRICK: If this is the wrong word, but it
24 maximizes export; is that correct?
25 MR. RENNING: Yes. I think you can conclude that
CAPITOL REPORTERS (916) 923-5447 11578
1 Alternative 8 is the maximum use of the joint point of
2 diversion under the operating conditions that are -- that
3 we're discussing in this hearing.
4 MR. HERRICK: Run 622A is the baseline for comparing
5 Alternative 9; is that correct?
6 MR. RENNING: It is, yes. It is the proper baseline
7 for comparing the use of the joint point of diversion that
8 is in Alternative 9.
9 MR. HERRICK: 622A has no joint point pumping; is that
10 correct?
11 MR. RENNING: That's right.
12 MR. HERRICK: Alternative 9, and I think this is the
13 ultimate question -- does Alternative 9 have joint point
14 pumping just to make up loss fishery action? Or is it that
15 same maximization of makeup pumping?
16 MR. RENNING: No. Alternative 9 has the same
17 assumptions that Alternative 5 has, that it would be used to
18 maximize use of the joint point of diversion with the
19 existing limitations in the use of the Banks pumping, the
20 so-called Corps limitations, Corps of Engineers
21 limitations.
22 MR. HERRICK: Is there a reason why a sort of
23 Alternative 8 with 622A as the base case was not run?
24 MR. RENNING: No. There is no special reason why we
25 didn't do that. It wasn't done because -- I think the
CAPITOL REPORTERS (916) 923-5447 11579
1 reason that it wasn't done was that making such a comparison
2 is probably not really helpful to the understanding of the
3 use of the joint point of diversion because the purpose of
4 Alternative 8 was to show or create a bookend on the impacts
5 of using the joint point of diversion. And running
6 Alternative 8 with Run 622 assumptions or VAMP really
7 wouldn't change that figure in any significant amount.
8 MR. HERRICK: So, Alternative 9 -- let me start over.
9 The Board granting the previous panel's proposal,
10 which is change the permits up to Alternative 8 pending an
11 operations plan developed by the CalFed process --
12 MR. TURNER: Excuse me, under Alternative 8 or
13 Alternative 4?
14 MR. HERRICK: Alternative 8. Let me start over.
15 The panel, which you were part of, was asking the Board
16 to grant permit changes, allowing exports up through
17 Alternative 8, but only beyond Alternative 4 once the CalFed
18 group adopted some sort of adoptions plan; is that correct?
19 MR. RENNING: Yes.
20 MR. HERRCIK: Would that bookend of Alternative 8 be
21 different if the base case was the VAMP, Run 622A, rather
22 than the base case on the current Alternative 8, which is
23 Alternative 2?
24 MR. RENNING: I think that if you compared Alternative
25 8, if you -- let me rephrase that.
CAPITOL REPORTERS (916) 923-5447 11580
1 If you ran Alternative 8 with Run 622 assumptions or
2 the VAMP, the annual use of the joint point of diversion
3 would be somewhat less if you compared it against
4 Alternative 2. But if you compared it against Run 622A, its
5 use would be very much similar to what is portrayed here for
6 the difference between Alternative 8 and Alternative 2.
7
8 We are getting back to the same question again of when
9 you run a particular study you have to pick the proper base
10 to show the comparison that you are interested in looking
11 at.
12 MR. HERRICK: I understand that. But wouldn't it be
13 better for the Board to see that maximum potential use based
14 on 622A as the base case rather than -- no offense, I am not
15 trying to make light about this -- rather than your
16 statement that they are probably somewhere the same?
17 MR. RENNING: I think the whole purpose of Chapter XIII
18 and the environmental studies that were done to look at
19 joint point of diversion was to come up with a portrayal of
20 what the maximum use of the joint point -- one of the
21 reasons was to come up with a portrayal of what the maximum
22 use of the joint point of diversion would be, and that is in
23 Alternative 8.
24 And if you compare that with Alternative 2 and the
25 assumptions that are in Alternative 2, the difference is
CAPITOL REPORTERS (916) 923-5447 11581
1 that is shown on Exhibit 10-D or on the new exhibit, 10-YY.
2 If you were to assume that your base study were Run 622A,
3 and you ran Alternative 8 against that base study, the
4 differences would be probably the same, that the use of the
5 joint point of diversion would be on an annual average basis
6 247,000 acre-feet. But if you compared that new Alternative
7 8 against Alternative 2, it would show the use to be
8 probably in the range of 200,000 acre-feet. And, therefore,
9 the portrayal of the joint point of diversion would be
10 misleading just as the use of the joint point of diversion
11 in Exhibit 10-D is also somewhat misleading.
12 That's the only point that I am trying to clarify in the
13 testimony that I have given in the last two days. This is
14 not in any way a -- I don't know how you want to
15 characterize it, but it is simply to clarify the portrayal
16 of the effects of the alternatives.
17 MR. HERRICK: I think I understand that. But is what
18 you are saying we can't do -- I think that is we can't do
19 any comparison between Alternative 9 and Run 622A against
20 the other alternatives because they are two different
21 things, correct?
22 MR. RENNING: Well, no, you can. You can compare
23 Alternative 2 and Run 622A.
24 MR. HERRICK: I am sorry, I stand corrected.
25 MR. RENNING: The difference between those is, of
CAPITOL REPORTERS (916) 923-5447 11582
1 course, due to the VAMP.
2 MR. HERRICK: What level of additional pumping -- let
3 me back up.
4 For what purposes can additional pumping be done under
5 Alternative 9?
6 MR. RENNING: The purposes that were assumed in
7 Alternative 9 were the same that were in the other
8 alternatives, to meet our existing contracts and to use the
9 joint point of diversion to minimize the deficiencies that
10 are imposed upon CVP, agricultural and environmental water
11 deliveries.
12 MR. HERRICK: Those two assumptions aren't in all the
13 alternatives. It is my understanding that Alternative 4 has
14 only makeup pumping, and alternatives beyond that have
15 provisions for getting beyond makeup pumping towards meeting
16 contract needs; is that correct?
17 MR. BIRMINGHAM: Objection. I wonder if Mr. Herrick
18 could clarify his question, is that correct, by asking -- by
19 relating one of the three questions that he just asked.
20 C.O. BROWN: That is fair request, Mr. Herrick.
21 MR. RENNING: First let me say that Alternative 4 does
22 include the existing contracts. It is not solely for makeup
23 pumping for fish actions, fish protections actions. The
24 Cross Valley Contracts.
25 MR. HERRICK: Those are -- the Cross Valley Contracts
CAPITOL REPORTERS (916) 923-5447 11583
1 are provided for in those alternatives, also. I understand
2 that.
3 Let me go this way: What are the values for CVP
4 deliveries on Exhibit 10-XX for Alternative 9 and
5 Alternative 622A?
6 MR. RENNING: For Alternative 9, CVP deliveries are
7 2,636,000 acre-feet on an annual average basis. And for Run
8 622A CVP deliveries are 2,545,000 acre-feet. These numbers,
9 -- of course, Run 622A is not contained in that. But these
10 numbers are on Table XIII-1 in the Draft EIR.
11 MR. HERRICK: If the VAMP were adopted, you would then
12 expect that your ability to use the -- in VAMP were adopted
13 through this process and the joint point requests were
14 approved, you would then expect CVP exports to be -- to
15 average somewhere around that 2,636,000 acre-feet per year;
16 is that correct?
17 MR. RENNING: Yes, that is right.
18 MR. HERRICK: As opposed to if VAMP is not adopted and
19 the joint point were given or adopted, you would have what
20 Alternative 4 shows, 2,683,000 acre-feet; is that what that
21 shows?
22 MR. RENNING: Yes, that is right.
23 MR. HERRICK: So, is the Bureau then asking that the
24 Board approve a joint point proposal that allows it
25 immediately upon adoption to enable it to export 2,636,000
CAPITOL REPORTERS (916) 923-5447 11584
1 acre-feet a year, not 2,683,000 acre-feet?
2 MR. TURNER: I would object to that question. He is
3 asking the witness to indicate whether Reclamation is or is
4 not going to assume the VAMP is or is not adopted. That is
5 the variance right there as he just explained.
6 MR. HERRICK: The reason I think it is important is I
7 understood from the original testimony that if the Board
8 adopted the panel's proposal, the Bureau would then be
9 operating under Alternative 4 until a comprehensive plan
10 were adopted. Alternative 4 allows for average annual
11 exports of 2,683,000 acre-feet. But if we are under VAMP,
12 which is what the Bureau wants to be adopted, that is a
13 lesser amount. I am trying to find out what the Bureau
14 believes what its limit would be tending that comprehensive
15 plan.
16 C.O. BROWN: I overrule. Answer the question if you
17 can.
18 MR. RENNING: We are not asking for a numerical value
19 for how much we can export. We are asking for a set of
20 conditions. And our proposal at this point in the context
21 of the testimony, that we prepared for the joint point of
22 diversion, would be that the Board approve Alternative 4.
23 Now, Reclamation has also indicated that we believe that
24 the Board should adopt the San Joaquin River Agreement. And
25 so what the Board might ultimately do at the end of this
CAPITOL REPORTERS (916) 923-5447 11585
1 hearing would be to adopt both of those things; and with
2 those sets of conditions, the operations would look very
3 much like what are portrayed in Alternative 9.
4 MR. HERRICK: I am almost done here. I don't want to
5 beat this too much.
6 So the Bureau is asking for two different things if I
7 am correct, and please correct me. If the San Joaquin River
8 Agreement is adopted, the Bureau is telling the Board
9 adoption of the joint point will result in its operating
10 under Alternative 9?
11 MR. RENNING: Yes.
12 MR. HERRICK: Is that correct?
13 MR. RENNING: More or less correct.
14 MR. HERRICK: If the Board does not adopt the San
15 Joaquin River Agreement, the Bureau expects to be operating
16 under Alternative 4?
17 MR. RENNING: Yes.
18 MR. HERRICK: No further questions.
19 Thank you very much.
20 C.O. BROWN: Thank you, Mr. Herrick.
21 Mr. Nomellini.
22 ---oOo---
23 //
24 //
25 //
CAPITOL REPORTERS (916) 923-5447 11586
1 RECROSS-EXAMINATION OF DEPARTMENT OF THE INTERIOR
2 BY CENTRAL DELTA PARTIES
3 BY MR. NOMELLINI
4 MR. NOMELLINI: Mr. Chairman, Members of the Board,
5 Dante John Nomellini for Central Delta Parties.
6 In Alternative 4 is the biological opinion limitation,
7 which has been roughly described as exports limited to 50
8 percent of San Joaquin River flow, is that a condition of
9 Alternative 4?
10 MR. BIRMINGHAM: Objection.
11 MR. TURNER: I object.
12 C.O. STUBCHAER: Mr. Birmingham.
13 MR. BIRMINGHAM: Goes beyond the scope of the
14 redirect.
15 C.O. BROWN: Mr. Turner.
16 MR. TURNER: Same objection, Mr. Brown. We are back to
17 recross on the whole joint point of diversion panel
18 testimony. This recross is supposed to be limited to Mr.
19 Renning's supplemental explanation about the Alternative 9,
20 and this is well beyond the scope of the subject.
21 MR. NOMELLINI: Let me explain. I am attempting to lay
22 the foundation for the comparison of Alternative 4 to the
23 Alternative 9 in the hopes that I could discern for all of
24 us what condition sets up the difference between these two.
25 C.O. BROWN: Mr. Jackson.
CAPITOL REPORTERS (916) 923-5447 11587
1 MR. JACKSON: I was going to say the error in the
2 presentation and the two different comparisons require us to
3 go back into the other alternatives in order to be able to
4 discern this difference. Just the point Mr. Nomellini was
5 making.
6 C.O. BROWN: I agree, gentlemen. Answer the question
7 if you can.
8 MR. RENNING: Alternative 4 assumes that there is the
9 so-called two-to-one export limitation. The other
10 alternatives assume the one-to-one, which is the Water
11 Quality Control Plan.
12 MR. NOMELLINI: Looking at Alternative 9 on government
13 Exhibit 10-YY, if I can impose on Mr. Turner to switch
14 those, if we look at Alternative 9 that doesn't have the
15 asterisk, that is compared to Alternative 2; is that
16 correct, that is compared to Alternative 2?
17 MR. RENNING: The Alternative 9 with the asterisk is
18 compared against Run 622A.
19 MR. NOMELLINI: Then Alternative 9 without the asterisk
20 is compared against Alternative 2; is that correct?
21 MR. RENNING: Yes.
22 MR. NOMELLINI: Now, is the export pumping limitation
23 during the pulse flow for Alternative 9 without the asterisk
24 the same as the export pumping limitation for Alternative
25 4?
CAPITOL REPORTERS (916) 923-5447 11588
1 MR. RENNING: First of all, the Alternative 9 that is
2 used in the two comparisons is the same Alternative
3 9. There is no difference in the Alternative 9. The
4 difference that is portrayed on Exhibit 10-YY is due to the
5 base on which Alternative 9 is compared.
6 And to answer the second part of your question, I am
7 simply not that familiar enough with VAMP to give you an
8 answer as to exactly what the export limitations are. I
9 simply know that they are greater than under the Water
10 Quality Control Plan, and that is all I can tell you.
11 MR. NOMELLINI: Do you know why -- strike that.
12 Do you know what causes the difference in CVP
13 deliveries between Alternative 4 and Alternative 9 without
14 the asterisk?
15 MR. RENNING: The difference -- well, the differences
16 are fairly minimal. They only differ by perhaps 20- or
17 30,000 acre-feet.
18 MR. NOMELLINI: I thought your testimony indicated
19 45,000?
20 MR. RENNING: Between Alternative 4 and Alternative 9?
21 MR. NOMELLINI: Correct.
22 MR. RENNING: Well, again you have to go into looking
23 at what base you are looking at. The differences in CVP
24 deliveries are perhaps on that order. But the differences
25 in use of the joint point of diversion are probably fairly
CAPITOL REPORTERS (916) 923-5447 11589
1 minimal.
2 MR. NOMELLINI: Let's go back to that again. If you
3 know, do you know what causes the deliveries to be reduced
4 in Alternative 9 without the asterisk versus Alternative 4?
5 MR. RENNING: The differences are probably due to the
6 export limitations in VAMP.
7 MR. NOMELLINI: Those export limitations are during the
8 pulse flow period, correct?
9 MR. RENNING: Yes.
10 MR. NOMELLINI: Then, is it your testimony that
11 Alternative Number 4 is not limited during the pulse flow
12 period to the export of approximately one-half of the San
13 Joaquin River flow?
14 MR. RENNING: No, that is what the export limitations
15 are in Alternative 4. There are probably some other
16 differences in exactly how Alternative 4 and Alternative 9
17 are modeled, but I simply don't know what those are at this
18 point.
19 MR. NOMELLINI: Thank you.
20 C.O. STUBCHAER: Thank you, Mr. Nomellini.
21 Mr. Birmingham.
22 ---oOo---
23 //
24 //
25 //
CAPITOL REPORTERS (916) 923-5447 11590
1 RECROSS-EXAMINATION OF DEPARTMENT OF THE INTERIOR
2 BY WESTLANDS WATER DISTRICT AND
3 SAN LUIS AND DELTA-MENDOTA WATER AUTHORITY
4 BY MR. BIRMINGHAM
5 MR. BIRMINGHAM: Excuse me, Mr. Turner, do you have
6 Exhibit 10-D?
7 MR. RENNING: Yes, I have that.
8 MR. BIRMINGHAM: Mr. Renning, I am placing on the
9 overhead projector Department of the Interior Exhibit 10-D.
10 And if I understand your redirect testimony, it relates to
11 the statements you made about Alternative 9 as it appears on
12 Department of the Interior 10-D during your
13 cross-examination last week; is that correct?
14 MR. RENNING: Yes, that's right.
15 MR. BIRMINGHAM: During your cross-examination, you
16 said you questioned the validity of the model runs that
17 resulted in the bars for Alternative 9 on Department of the
18 Interior 10-D because the relative benefit of joint point of
19 diversion was significantly less under Alternative 9 than it
20 was for the other alternatives depicted on Department of the
21 Interior 10-D?
22 MR. RENNING: Yes, that is more or less correct. When
23 I looked at this exhibit during my testimony, it struck me
24 that the portrayal of Alternative 9 did not seem right and
25 that perhaps the studies had not been done correctly. But
CAPITOL REPORTERS (916) 923-5447 11591
1 the whole purpose of my testimony on Thursday and today was
2 to clarify that and that the studies were done right and
3 that my statements in my testimony were in error.
4 MR. BIRMINGHAM: May I borrow one of the grease pens
5 again, Mr. Stubchaer.
6 C.O. STUBCHAER: My water-based, nontoxic?
7 MR. BIRMINGHAM: Yes, your water-based, nontoxic pens,
8 yes.
9 MR. NOMELLINI: We haven't given it a good test yet
10 because Mr. Birmingham is reluctant to lick it.
11 MR. BIRMINGHAM: May I ask what is Westlands' exhibit
12 next in order?
13 MS. WHITNEY: 109.
14 MR. BIRMINGHAM: Mr. Renning, I have marked on a blank
15 piece of Mylar on the overhead projector Westlands Exhibit
16 109. On Westlands Exhibit 109, I am going to draw a
17 horizontal line, and I am going to ask you --
18 MR. NOMELLINI: I object to the representation that
19 that is a horizontal line.
20 C.O. STUBCHAER: Tilt the paper.
21 MR. BIRMINGHAM: I am going to ask you to assume that
22 the line that I am going to mark as Alternative 2 is the
23 level of exports for the Central Valley Project under
24 Alternative 2 as depicted on Department of the Interior
25 Exhibit 10-D.
CAPITOL REPORTERS (916) 923-5447 11592
1 Do you have that understanding in mind?
2 MR. RENNING: Actually, I think that line would
3 represent the level of CVP deliveries in 10-C.
4 MR. BIRMINGHAM: Thank you for that clarification.
5 Below the line that I have drawn as Alternative 2, I am
6 going to draw another line, somewhat parallel, I hope, to
7 Alternative 2, and I am going to mark that 622A. And I will
8 ask you to assume that that is the level of exports or
9 deliveries under model Run 622A.
10 Do you understand that assumption?
11 MR. RENNING: Yes.
12 MR. BIRMINGHAM: Now, in preparing your testimony on
13 the benefits of the joint point you conducted an analysis of
14 the export levels using different assumptions for a joint
15 point of diversion?
16 MR. RENNING: Yes, that's right.
17 MR. BIRMINGHAM: And there was a -- you had Alternative
18 3 which I have now marked on Westlands Water District
19 Exhibit 109, and there were some assumptions about
20 Alternative 3; is that correct?
21 MR. RENNING: Yes.
22 MR. BIRMINGHAM: Then Alternative 4, which I have now
23 marked on Westlands Water District 109 had assumptions
24 different than those of Alternative 3?
25 MR. RENNING: Yes.
CAPITOL REPORTERS (916) 923-5447 11593
1 MR. BIRMINGHAM: Alternative 5 had still further
2 assumptions than the assumptions contained in 3 and 4?
3 MR. RENNING: Yes, that's right.
4 MR. BIRMINGHAM: Alternative 5 results in a greater
5 level of deliveries to CVP contractors south of the Delta
6 than Alternatives 3 and 4?
7 MR. RENNING: To CVP contractors and to environmental
8 demands as well.
9 MR. BIRMINGHAM: Then Alternative 6, which I am now
10 marking on Westlands Water District Exhibit 109, had a
11 benefit when compared to Alternative 2, but the deliveries
12 were less than the deliveries that would be made under
13 Alternative 5?
14 MR. RENNING: Alternative 6 is kind of an odd one out
15 here. It is not based on Alternative 2, although the level
16 of deliveries is somewhat less than Alternative 5. It
17 should not be portrayed as being based upon Alternative 2.
18 MR. BIRMINGHAM: Let's cross it off of Westlands Water
19 Exhibit 109, which I have just done.
20 Alternative 7 was compared to Alternative 2; is that
21 correct?
22 MR. RENNING: Yes.
23 MR. BIRMINGHAM: Alternative 7 resulted in a level of
24 deliveries to -- Alternative 7 resulted in deliveries to CVP
25 contractors and environmental use of south of the Delta that
CAPITOL REPORTERS (916) 923-5447 11594
1 were greater than Alternative 5?
2 MR. RENNING: Yes, that's right. That is due to the
3 lifting of the export restrictions at the Banks pumping
4 plant.
5 MR. BIRMINGHAM: Alternative 8 contained yet more
6 assumptions; is that correct?
7 MR. RENNING: Yes, that's right.
8 MR. BIRMINGHAM: As depicted on Westlands Water
9 District Exhibit 109 by the line that I've drawn,
10 Alternative 8 resulted in still additional deliveries when
11 compared to Alternatives 2, 3, 4, 5, 7; is that correct?
12 MR. RENNING: Yes, that's right.
13 MR. BIRMINGHAM: Now, as depicted on Department of the
14 Interior Exhibit 10-D, you compared Alternative 9 with
15 Alternative 2; is that correct?
16 MR. RENNING: Yes, that's right.
17 MR. BIRMINGHAM: I now place a line and marked it
18 Alternative 9 on Westlands Water District 109 that connects
19 with the line marked Alternative 2.
20 When you were testifying on cross-examination, you
21 indicated that you thought that the analysis had been done
22 incorrectly because the relative benefit of Alternative 9
23 did not appear large enough; is that correct?
24 MR. RENNING: Yes, that's right.
25 MR. BIRMINGHAM: When you did subsequent studies and
CAPITOL REPORTERS (916) 923-5447 11595
1 you went back and thought about it further, you recalled
2 that rather than -- when measuring the relative benefit of
3 Alternative 9, it should be compared with a base run that
4 had the same operational criteria?
5 MR. RENNING: Yes, that is right.
6 MR. BIRMINGHAM: To measure the relative benefit of
7 Alternative 9 you would measure it against 622A?
8 MR. RENNING: Yes.
9 MR. BIRMINGHAM: I have now drawn from the line marked
10 Alternative 2 on Westlands Water District Exhibit 109 to the
11 line marked 622A an extension of Alternative 9.
12 MR. RENNING: That's right.
13 MR. BIRMINGHAM: The difference between the level of
14 deliveries or exports on Alternative 2 and Run 622A is a
15 reduction in exports resulting from the Vernalis Adaptive
16 Management Plan; is that correct?
17 MR. RENNING: Yes.
18 MR. BIRMINGHAM: I am marking on Westlands Water
19 District 109 reduction in exports due to VAMP.
20 Now, the reduction in exports occurs during the
21 approximate April 15 through May 15 period?
22 MR. RENNING: Yes, that is right.
23 MR. BIRMINGHAM: Under Alternative 9, makeup pumping
24 will not occur during the April 15 through May 15 period?
25 MR. RENNING: No, it does not occur at that time.
CAPITOL REPORTERS (916) 923-5447 11596
1 MR. BIRMINGHAM: Makeup pumping under Alternative 9
2 would occur at other times during the year when the Bureau
3 of Reclamation and the Department of Water Resources is able
4 to operate the joint point of diversion under criteria
5 established by the appropriate regulatory agency?
6 MR. RENNING: Yes, that is right.
7 MR. BIRMINGHAM: The point of your redirect examination
8 was that to measure the relative benefit of Alternative 9 it
9 was necessary to compare the alternative with Run 622A?
10 MR. RENNING: Yes, that's right.
11 MR. BIRMINGHAM: When you make that comparison you
12 discover that the relative benefit of Alternative 9 -- let
13 me restate the question.
14 When you conduct that analysis, you discover that the
15 relative benefit of joint point of diversion under
16 Alternative 9 is approximately the same as the relative
17 benefit of joint point of diversion under other
18 alternatives, particularly Alternative 4 or 5?
19 MR. RENNING: Yes, that is right.
20 MR. BIRMINGHAM: I have no further questions.
21 C.O. BROWN: Thank you, Mr. Birmingham.
22 Staff?
23 MR. HOWARD: No questions.
24 C.O. BROWN: Board Members?
25 Thank you, Mr. Renning, Mr. Turner.
CAPITOL REPORTERS (916) 923-5447 11597
1 MR. RENNING: Thank you.
2 MR. TURNER: If I may, Mr. Chairman, I presume we will
3 withhold offering all of those exhibits for admission until
4 we complete the testimony of Mr. Kjelson all next week?
5 C.O. BROWN: Yes.
6 C.O. STUBCHAER: Thank you, Mr. Brown.
7 I will now proceed with the direct testimony case in
8 chief of the Environmental Defense Fund.
9 Morning, Mr. Suyeyasu.
10 ---oOo---
11 DIRECT TESTIMONY OF ENVIRONMENTAL DEFENSE FUND
12 BY MR. SUYEYASU
13 MR. SUYEYASU: Morning, Mr. Stubchaer.
14 Mr. Rosekrans just stepped out of the room. I presume
15 to get a drink of water. He should be back by the time I
16 finish my opening remarks.
17 Mr. Stubchaer, Mr. Brown, Ms. Forster, Dan Suyeyasu on
18 behalf of the Environmental Defense Fund.
19 The history lesson that has hopefully been taught to us
20 all in this hearing and a long series of hearings,
21 decisions, court cases and negotiations leading up to these
22 hearings is that there is significant cost to the
23 unconstrained version of water from a natural ecosystem.
24 That cost is both damaged to the overall health of the
25 Bay-Delta estuary as well as the past and possible
CAPITOL REPORTERS (916) 923-5447 11598
1 extinction of a whole host of fish species that resided in
2 the Delta for millenniums.
3 Despite that clear lesson in the Delta's history, it is
4 a sometimes tragic truth that history tends to repeat
5 itself. With somewhat unbelieve boldness the exporters who
6 bear primary responsibility for the decimation of the Delta
7 through decades of unsustainable exports have returned to
8 the Board seeking permission to once again increase the rate
9 of pumping.
10 The Board most put an end to this lunacy and prohibit
11 all increases in exports from the Delta until such a time as
12 the Bay-Delta has been restored to health. As you well
13 know, species within the Delta are not being delisted under
14 the Endangered Species Act. The list only grows longer.
15 Every major run of salmon in the Central Valley is either
16 extinct, on the Endangered Species List or a candidate for
17 listing.
18 Mr. Rosekrans' testimony today will be primarily
19 addressing the correlation between increased Delta exports
20 and plummeting populations of a whole host of fish species.
21 His testimony is consistent with the numerous specific
22 studies correlating Delta exports with decline of fall-run
23 salmon, spring-run salmon and Delta smelt, to name a few.
24 The use of joint point requested by the project would
25 merely turn existing protections for certain species into
CAPITOL REPORTERS (916) 923-5447 11599
1 new burdens for other imperiled species.
2 That the projects are already complying or at least
3 trying to comply with the mandates of the Water Quality
4 Control Plan and various biological opinions provides little
5 assurance that the listed species will ever make it off of
6 the endangered species list, the biological equivalent of
7 the intensive care unit.
8 The Environmental Defense Fund readily admits that the
9 use of joint point of diversion holds the potential to bring
10 beneficial benefits to the entire Delta system. However, we
11 believe that whatever ability it holds to improve the
12 operation of the state and federal projects that ability
13 must be used for the direct benefit of many species that are
14 dependent upon on the maintenance of adequate flows in and
15 through the Delta.
16 EDF believes that authorizing the use of the joint
17 point of diversion but restricting its use to situations
18 where annual exports would not increase above the export
19 levels that would occur, absent the use of coordinated
20 operations, the Board would not only benefit the degraded
21 fisheries, but would also benefit the users of Central
22 Valley Project and the State Water Project. The benefits to
23 the water users would come once the species of the Delta
24 show measurable improvements are removed from the endangered
25 species list and restrictions on export pumping are thereby
CAPITOL REPORTERS (916) 923-5447 11600
1 lifted.
2 As some have said, that way we all get better
3 together. We know, however, that a restricted use of joint
4 point of diversion must consider the Central Valley Project
5 Improvement Act, the Endangered Species Act and any other
6 state and federal laws as a part of the baseline. Absent
7 joint point those laws would still be in full effect and
8 would limit exports on the part of the state and federal
9 projects. To authorize the use of joint point to,
10 quote-unquote, make up such losses is undoubtedly to
11 authorize an increase in exports.
12 We trust that the Board will authorize the use of joint
13 point of diversion in order to directly benefit the Delta
14 and thereby benefit those water users who are burdened
15 through the endangered and threatened status of its many
16 Delta species. Such a limited authorization will go a long
17 way in restoring the health of the Delta and in improving
18 water supply reliability.
19 Thank you very much.
20 C.O. STUBCHAER: Thank you.
21 MR. SUYEYASU: Mr. Rosekrans has already been sworn
22 under oath and his resume is in evidence.
23 C.O. STUBCHAER: Right. Morning, Mr. Rosekrans.
24 MR. ROSEKRANS: Morning, thank you.
25 My testimony will be brief. I would like to begin by
CAPITOL REPORTERS (916) 923-5447 11601
1 directing your attention to Figure 1 of EDF Exhibit 17 which
2 shows comparative populations of a number of species of fish
3 with Delta exports. There is a lot of information on this
4 graph. Let me take a minute to explain it.
5 First of all, to make the results clear and easier to
6 see, boat exports and fish population data is averaged in
7 groups of five years, beginning in 1967 when the Delta
8 species midwater trowels began and the population indices
9 were available. As we can see, 1967 is also about the time
10 that the State Water Project went on line. The export data
11 is measured on the vertical axis on the right in millions of
12 acre-feet going from less than 1,000,000 acre-feet in 1952
13 to '56 and then sharply increasing in '72 to '76 to almost
14 4,000,000 acre-feet, and then finally declining a bit at the
15 very far right-hand side, just a bit, between 1992 and
16 1996.
17 For the eight species of fish, in order to get all this
18 information on one graph, I took just whatever their
19 population levels, or in the case of midwater trowels where
20 the populations is not actually number of fish but a
21 population index, I took the 1967 to '71 values as 100
22 percent and compared subsequent populations from that.
23 As we can see from the graph, when we get to the final
24 bar, only fall-run salmon, which are supported by
25 hatcheries, are at a value of greater than 20 percent of
CAPITOL REPORTERS (916) 923-5447 11602
1 their value 30 years ago. We have seen a pattern over the
2 years where Delta exports have increased and fishery
3 populations have decreased.
4 There is, of course, a lot of debate about whether the
5 Delta exports are at fault. There are a lot of other
6 factors, and I am not trying to say it is Delta exports that
7 have directly caused these fishery declines. What I am
8 suggesting is that if we can find ways to help the fisheries
9 by changing the timing of Delta exports, by allowing greater
10 exports through the use of joint point of diversion and
11 curtailing exports at a greater time when we believe that
12 will help the fisheries that will help correct the imbalance
13 that we have seen over the last 30 years.
14 The data came from two sources. As I mentioned, the
15 midwater trowel data is directed by the IEP, the Interagency
16 Estuary Project. And I downloaded all the data that was
17 available on their web page to prepare this exhibit. And
18 the salmon and steelhead data is for passage -- not for
19 whole systems, for passage past Red Bluff Diversion Dam. It
20 was obtained from the Red Bluff office of the Department of
21 Fish and Game. Both sets of fishery data do have some holes
22 in them. There are some years in which, I think, the
23 midwater trowel wasn't funded or so forth. Also, the data
24 only went through 1992. So, in fact, the last bar for three
25 of the species only represent one year, not a five-year
CAPITOL REPORTERS (916) 923-5447 11603
1 average.
2 In light of this, EDF supports Alternative 4 with a
3 certain caveat, not the way it has been interpreted by
4 certainly Reclamation, for instance. We say that joint
5 point of diversion should be used to the extent that it does
6 not increase overall exports which is consistent with, I
7 believe, Board Order 98-9 and its predecessor 95-6. But we
8 view the baseline on which it should be applied differently.
9 We believe those actions authorized by the Central Valley
10 Project Improvement Act, AFRP actions, should be part of the
11 baseline, and, therefore, there should be no makeup
12 necessary for any impacts to Central Valley Project
13 contractors so far as it is deemed to be within the
14 dedicated 800,000 acre-feet.
15 As far as impacts to the State Water Project, if the
16 impact of the AFRP is shown to be positive and to impact
17 State Water Project contractors, we do support use of joint
18 point of diversion or other means to make up the State Water
19 Project. We do note, however, that some of the elements of
20 the AFRP fall spawning attraction flows actually provide
21 water that the models have estimated that State Water
22 Project may be able to pick up and gain a net benefit.
23 So, we support no net loss over the whole AFRP, the
24 State Water Project; and that if there is a net loss, we
25 would support the joint point of diversion, use of federal
CAPITOL REPORTERS (916) 923-5447 11604
1 pumps to pump water for the state to make them whole.
2 And that summarizes my testimony.
3 C.O. STUBCHAER: Thank you, Mr. Rosekrans.
4 Ms. Whitney.
5 I think someone is anticipating the next question. Who
6 wishes to cross-examine Mr. Rosekrans?
7 Mr. Campbell, Mr. Birmingham, Mr. Nomellini, Mr.
8 Herrick.
9 Mr. Herrick, you want to cut this, or do you allow Ms.
10 Forster to do so?
11 MR. HERRICK: I accept the inevitable, thank you.
12 C.O. STUBCHAER: Mr. Campbell is first. Followed by
13 Mr. Nomellini, followed by Mr. Birmingham and last, but not
14 least, Mr. Herrick.
15 MEMBER FORSTER: See, I should cut.
16 MR. CAMPBELL: I will switch with you, John, if you
17 want to.
18 C.O. STUBCHAER: Mr. Campbell, good morning.
19 ---oOo---
20 CROSS-EXAMINATION OF ENVIRONMENTAL DEFENSE FUND
21 BY DEPARTMENT OF FISH AND GAME
22 BY MR. CAMPBELL
23 MR. CAMPBELL: Good morning.
24 I have just one or two very brief questions for Mr.
25 Rosekrans.
CAPITOL REPORTERS (916) 923-5447 11605
1 Does the Environmental Defense Fund participate in the
2 CalFed Bay-Delta program?
3 MR. ROSEKRANS: Most definitely. I am here in
4 Sacramento several days a week, usually.
5 MR. CAMPBELL: And will continue to do so?
6 MR. ROSEKRANS: Yes. For the foreseeable future,
7 anyway.
8 MR. CAMPBELL: I note that you have been here before in
9 this hearing, also as a witness for Save the Bay; is that
10 correct?
11 MR. ROSEKRANS: That's correct.
12 MR. CAMPBELL: Does the Save the Bay participate in the
13 CalFed Bay-Delta program?
14 MR. ROSEKRANS: Yes, they do.
15 MR. CAMPBELL: Does Save the Bay anticipate that it
16 will continue to participate in the CalFed Bay-Delta
17 hearing?
18 MR. ROSEKRANS: I believe so.
19 MR. CAMPBELL: Thank you.
20 C.O. STUBCHAER: Thank you.
21 Mr. Nomellini.
22 ---oOo---
23 //
24 //
25 //
CAPITOL REPORTERS (916) 923-5447 11606
1 CROSS-EXAMINATION OF ENVIRONMENTAL DEFENSE FUND
2 BY CENTRAL DELTA PARTIES
3 BY MR. NOMELLINI
4 MR. NOMELLINI: Dante John Nomellini for Central Delta
5 Parties.
6 Mr. Rosekrans, you pointed out that the data for
7 fall-run chinook salmon and steelhead, as shown on your
8 Exhibit 17, were based on the passage at the Red Bluff
9 Diversion Dam; is that correct?
10 MR. ROSEKRANS: That's correct.
11 MR. NOMELLINI: So, those numbers would not reflect
12 what has happened to steelhead and fall-run chinook salmon
13 on the San Joaquin side of the estuary?
14 MR. ROSEKRANS: That's correct.
15 MR. NOMELLINI: Do you know what that data would look
16 like if reflected on this chart?
17 MR. ROSEKRANS: No.
18 MR. NOMELLINI: Now, with regard to late fall-run
19 chinook salmon, you did not indicate that that was based on
20 the Red Bluff Diversion Dam passage is that --
21 MR. ROSEKRANS: I intended to indicate it was for all
22 four runs of salmon. This was all data at Red Bluff
23 Diversion Dam.
24 MR. NOMELLINI: Then your testimony should be corrected
25 to that extent, that it overlooked the late fall-run chinook
CAPITOL REPORTERS (916) 923-5447 11607
1 salmon, or did you just say all fall?
2 MR. ROSEKRANS: I believe in my oral testimony I
3 believe I said salmon.
4 MR. NOMELLINI: With regard to EDF's position, you
5 testified that there should not be any makeup pumping
6 allowed beyond that which is necessary to make up for
7 reductions in pumping due to improvement of the fisheries
8 minus AFRP improvements to the fishery. Is that a summary
9 of what you said?
10 MR. ROSEKRANS: Can you try that again, please?
11 MR. NOMELLINI: EDF's recommendation with regard to
12 makeup pumping is that it be limited to making up for
13 reductions in pumping to improve the fisheries beyond those
14 efforts related to the AFRP. Is that correct?
15 MR. ROSEKRANS: Yes, that is generally correct. I can
16 expound a little bit, that the AFRP is not the set of
17 implementation measures. The AFRP is the set of objectives.
18 And Interior has a decision which implements the so-called
19 (b)(1) and (b)(2) provisions of the act. So those are
20 authorized under (b)(1) and (b)(2), and any AFRP actions
21 beyond those would require mitigation.
22 MR. NOMELLINI: Now, if we looked at Alternative 4 that
23 was part of the testimony of the Interior Department, were
24 you here when Mr. Renning was testifying as to various
25 alternatives for joint points of diversions?
CAPITOL REPORTERS (916) 923-5447 11608
1 MR. ROSEKRANS: No, I was only here today.
2 MR. NOMELLINI: You were here today and you saw the
3 chart that showed Alternatives 3 through 9?
4 MR. ROSEKRANS: That's right.
5 MR. NOMELLINI: Is it -- do you understand what
6 Alternative 4 was on that chart?
7 MR. ROSEKRANS: I believe so.
8 MR. NOMELLINI: If Alternative 4 reflected makeup
9 pumping related to AFRP actions, then EDF would be opposed
10 to that alternative to the extent that it allowed makeup
11 pumping for the AFRP actions; is that correct?
12 MR. ROSEKRANS: That's correct.
13 MR. NOMELLINI: Do you know whether or not Alternative
14 4 included makeup pumping for any AFRP action?
15 MR. ROSEKRANS: It's been a long -- I wasn't here to
16 hear Mr. Renning's testimony. It's been a long time since I
17 reviewed the EIR in detail. The description of Alternative
18 4 in the EIR leads one to think that it, joint point, would
19 be used as makeup for the VAMP program.
20 MR. NOMELLINI: Now, with regard to EDF's position in
21 general, and I can tell from the opening -- maybe I can ask
22 you the question.
23 Is it EDF's position that there should be no release of
24 the limitations as you suggested them for joint point of
25 diversion until it is demonstrated that the fish populations
CAPITOL REPORTERS (916) 923-5447 11609
1 have recovered?
2 MR. ROSEKRANS: Generally. I guess I'd qualify and say
3 that we have evidence that we're well on the road to
4 recovery and that other nonflow-related actions are being
5 effective, and so forth.
6 MR. NOMELLINI: Are you aware that the recommendation
7 by Department of the Interior, Department of Water Resources
8 and Department of Fish and Game is that the Board authorize
9 Alternative 8 which is basically joint point of diversions
10 to the capacity of the export pumping plant subject to
11 development of a plan, but through the CalFed process?
12 MR. ROSEKRANS: Yes, that is my understanding. And I
13 may be involved in that CalFed process. I think I am.
14 Well, I am involved in a CalFed process evaluating something
15 called an environmental water account. It is just --
16 whether this process is the one to sort of bear fruit and
17 lead us to nirvana at the end of CalFed is unclear at this
18 time. And we are hopeful that CalFed will bring a long and
19 lasting solution to many of our problems in the estuary and
20 for the water users, as well. But we are not as confident
21 that that will happen as we would like to be.
22 MR. NOMELLINI: Is it true that EDF is not willing to
23 recommend to this Board that they approve a joint point of
24 diversion alternative like Alternative 8 depending upon a
25 solution being developed by the CalFed process?
CAPITOL REPORTERS (916) 923-5447 11610
1 MR. ROSEKRANS: I would suggest that the Board not
2 assume too much about CalFed.
3 MR. NOMELLINI: Now, is it correct for me to
4 characterize that EDF lacks confidence in its ability to
5 assure that the CalFed process will produce a program that
6 is adequately protected of the fish species depicted on your
7 Exhibit 17?
8 MR. ROSEKRANS: We believe the CalFed process is more
9 likely to take an aggressive stance that is needed toward
10 fishery protection if the State Board takes a similar
11 position.
12 Does that answer your question?
13 MR. NOMELLINI: I think that is a fair answer.
14 Thank you.
15 C.O. STUBCHAER: Thank you, Mr. Nomellini.
16 Mr. Birmingham, how long do you estimate your
17 examination will require?
18 MR. BIRMINGHAM: Half an hour.
19 C.O. STUBCHAER: Let's take our morning break now.
20 (Break taken.)
21 C.O. STUBCHAER: Come back to order, please.
22 Mr. Birmingham.
23 ---oOo---
24 //
25 //
CAPITOL REPORTERS (916) 923-5447 11611
1 CROSS-EXAMINATION OF ENVIRONMENTAL DEFENSE FUND
2 BY WESTLANDS WATER DISTRICT AND
3 SAN LUIS AND DELTA-MENDOTA WATER AUTHORITY
4 BY MR. BIRMINGHAM
5 MR. BIRMINGHAM: Mr. Rosekrans, my name is Tom
6 Birmingham. You may recall, I am the attorney that
7 represents Westlands Water District and the San Luis and
8 Delta-Mendota Water Authority.
9 MR. ROSEKRANS: Yeah, I know who you are.
10 MR. BIRMINGHAM: I have a few questions for you.
11 MR. NOMELLINI: Can I ask that each, both the
12 questioner and responder, get closer to the mike.
13 C.O. STUBCHAER: Yes, that is a reasonable request. As
14 we said before, in all seriousness, if anyone cannot hear,
15 please raise your hand or otherwise get our attention. We
16 will try to take care of it.
17 MR. NOMELLINI: Thank you. I don't want to miss a
18 word, Tom.
19 MR. BIRMINGHAM: I am sure it will be riveting, Mr.
20 Nomellini.
21 Mr. Rosekrans, just for some background, by training
22 you are a mathematician?
23 MR. ROSEKRANS: I have a Bachelor's degree in math.
24 MR. BIRMINGHAM: Do you have any advanced degrees?
25 MR. ROSEKRANS: I don't.
CAPITOL REPORTERS (916) 923-5447 11612
1 MR. BIRMINGHAM: So, by training you are not a
2 biologist?
3 MR. ROSEKRANS: That's correct.
4 MR. BIRMINGHAM: Nor are you a statistician?
5 MR. ROSEKRANS: That is correct, to the extent I don't
6 have any advance degrees or degrees in statistics.
7 MR. BIRMINGHAM: Your testimony relates to the position
8 of the Environmental Defense Fund on the joint point of
9 diversion?
10 MR. ROSEKRANS: That's correct.
11 MR. BIRMINGHAM: And the Environmental Defense Fund's
12 position is that the State Water Resources Control Board
13 should approve joint point of diversion Alternative 4?
14 MR. ROSEKRANS: As I believe I described before, there
15 is a couple different ways of interpreting Alternative 4.
16 And I don't believe -- I believe that joint point should be
17 used to make up for additional action to protect fisheries
18 above and beyond those authorized by the Water Quality
19 Control Plan and Sections (b)(1) and (b)(2) of the Central
20 Valley Project Improvement Act.
21 MR. BIRMINGHAM: Now, you say "(b)(1) and (b)(2) of the
22 Central Valley Project Improvement Act." Are you referring
23 to Sections 3406 (b)(1) and Section 3406 (b)(2) of the
24 Central Valley Project Improvement Act?
25 MR. ROSEKRANS: That's correct.
CAPITOL REPORTERS (916) 923-5447 11613
1 MR. BIRMINGHAM: Section 34 (b)(2) relates to the
2 dedication of 800,000 acre-feet of project yield to fish and
3 wildlife enhancements and restoration?
4 MR. ROSEKRANS: That's correct.
5 MR. BIRMINGHAM: Section (b)(1) authorizes the
6 reoperation of the Central Valley Project for the benefit of
7 fish and wildlife?
8 MR. ROSEKRANS: Yes. In my view, if the joint point of
9 diversion is used to make up for AFRP actions, such as the
10 spring pulse flow or the VAMP with export restriction, then
11 that constitutes a (b)(1) action, not a (b)(2) action.
12 MR. BIRMINGHAM: And it is correct, isn't it, Mr.
13 Rosekrans, that the (b)(1) actions that are authorized, the
14 reoperation of the project under Section (b)(1), must occur
15 in a manner that does not result in reduced allocations to
16 contractors?
17 MR. ROSEKRANS: That's correct.
18 MR. BIRMINGHAM: If the joint point of diversion is
19 used to make up water that is lost as a result of the
20 implementation of (b)(1), EDF wouldn't object to that
21 because (b)(1) must be done in a manner that doesn't result
22 in reduced exports to contractors?
23 MR. ROSEKRANS: Mr. Birmingham, I think you said that
24 correctly, but I am just hesitant. That was a long
25 sentence, and I am not sure I got it right.
CAPITOL REPORTERS (916) 923-5447 11614
1 MR. BIRMINGHAM: Maybe we can ask the reporter to read
2 back the question.
3 (Record read as requested.)
4 MR. ROSEKRANS: I wouldn't characterize it that way.
5 If joint point of diversion is used as makeup for an AFRP
6 actions it constitutes (b)(1). I don't think joint point
7 can make up (b)(1). I don't think that is right, correct
8 terminology.
9 MR. BIRMINGHAM: Let's examine that. Let's assume,
10 hypothetically, that VAMP, the Vernalis Adaptive Management
11 Plan, is going to be implemented pursuant to (b)(1).
12 MR. ROSEKRANS: Okay.
13 MR. BIRMINGHAM: The Vernalis Adaptive Management Plan
14 is an AFRP action; isn't that correct?
15 MR. ROSEKRANS: That's correct.
16 MR. BIRMINGHAM: If the Vernalis Adaptive Management
17 Plan is implemented under (b)(1), it would result in reduced
18 exports during the period from approximately April 15
19 through May 15th?
20 MR. ROSEKRANS: That's correct.
21 MR. BIRMINGHAM: Now, I am going to ask you to assume
22 because the Vernalis Adaptive Management Plan has resulted
23 in reduced exports during the April 15th to May 15th period
24 that the Bureau of Reclamation proposes to use the joint
25 point of diversion to make up the reduced exports during the
CAPITOL REPORTERS (916) 923-5447 11615
1 fall months.
2 Do you understand that assumption?
3 MR. ROSEKRANS: Yes. I wasn't certain that it was only
4 during the fall months.
5 MR. BIRMINGHAM: For purposes of my questions, my
6 hypothetical question, I am going to ask you to assume water
7 is made up during the fall months.
8 Because the joint point of diversion is being used to
9 make up water that was forgone as a result of implementation
10 of VAMP under (b)(1), EDF would not object to that?
11 MR. ROSEKRANS: In the hypothetical situation in which
12 a fishery action as the VAMP is specifically implemented by
13 Section (b)(1), then we would not object. Again. That is a
14 hypothetical situation.
15 I'd also like to add, in general it's not possible to
16 distinguish fishery actions as either (b)(1) or (b)(2). And
17 the reason that we have to run the whole set of measures
18 through the water supply models is because the water supply
19 models take account of end of year storage and flexibility
20 in the system and whether it is going to rain next year or
21 next year it is going to be dry. And as a consequence of
22 doing comparative computer model simulations, you find out
23 what the impact on yield is. So the whole suite of AFRP
24 actions is sort of a mixture of (b)(1) and (b)(2). It is
25 not possible in general to distinguish them.
CAPITOL REPORTERS (916) 923-5447 11616
1 MR. BIRMINGHAM: In your earlier testimony, Mr.
2 Rosekrans, you said that it was EDF's position that the
3 baseline against which joint point of diversion should be
4 measured is a baseline that includes CVPIA, AFRP measures?
5 MR. ROSEKRANS: Did I say that in my oral or my
6 written testimony?
7 MR. BIRMINGHAM: Is that your position?
8 MR. ROSEKRANS: The baseline includes, in our view,
9 those measures implemented in the 19- -- those AFRP measures
10 implemented in the November 1997, Interior decision. Again,
11 there are AFRP measures that are not implemented because --
12 well, because there is not water to implement them.
13 MR. BIRMINGHAM: I am going to have to revise my
14 estimate, I am afraid, Mr. Stubchaer. This may take longer
15 than half an hour.
16 You made reference to a November 1997 decision. Are
17 you referring to the November 20, 1997 Final Administrative
18 Proposal on the management of Section 3406 (b)(2) water
19 which has been marked for identification as Department of
20 the Interior Exhibit 12-C?
21 MR. ROSEKRANS: I am referring to that decision. I
22 will take your word that that is the exhibit number.
23 MR. BIRMINGHAM: Let me show it to you, Mr. Rosekrans.
24 I am showing to you, Mr. Rosekrans, a document that has been
25 marked for identification as Department of the Interior
CAPITOL REPORTERS (916) 923-5447 11617
1 12-C. That is a final administrative proposal on the
2 management of Section 3406 (b)(2) water.
3 Do you recognize that document?
4 MR. ROSEKRANS: Yes.
5 MR. BIRMINGHAM: When you -- earlier in your testimony
6 when you referred to the 1997 measures, were you referring
7 to the measures that are identified in Department of the
8 Interior Exhibit 12-C?
9 MR. ROSEKRANS: I am.
10 MR. BIRMINGHAM: In the Department of the Interior
11 Exhibit 12-C there is an Appendix A; is that correct?
12 MR. ROSEKRANS: I believe there are three appendices.
13 MR. BIRMINGHAM: Including Appendix A?
14 MR. ROSEKRANS: Yes.
15 MR. BIRMINGHAM: Appendix A describes eight measures
16 which will be implemented for the benefit of the Delta
17 estuary?
18 MR. SUYEYASU: I'd like to object. I think that
19 document speaks for itself. We don't need to have Mr.
20 Rosekrans reviewing from his memory what is entailed in this
21 decision of Department of Interior.
22 C.O. STUBCHAER: I think that it helps parties
23 understand without having them read that, in front of them.
24 But I agree, he should not rely on his memory. You can show
25 it to him if you have it. Maybe avoid that problem.
CAPITOL REPORTERS (916) 923-5447 11618
1 MR. BIRMINGHAM: I would submit, Mr. Stubchaer, that
2 the degree to which Mr. Rosekrans can remember the actions
3 that are stated in the document really goes to the
4 credibility of the position that they are taking. I
5 certainly will do as you suggested.
6 May I have a moment?
7 C.O. STUBCHAER: Yes.
8 MR. BIRMINGHAM: Mr. Turner has been kind enough, Mr.
9 Rosekrans, to loan to me a copy of Department of the
10 Interior Exhibit 12-C, which I am handing to you. I would
11 like to ask you to turn to Page A2 of Department of the
12 Interior Exhibit 12-C.
13 Page A2 is the beginning of Appendix A; is that
14 correct, Mr. Rosekrans?
15 MR. ROSEKRANS: Yes, that is correct.
16 MR. BIRMINGHAM: I would ask you to take a few moments
17 and thumb through Appendix A to Department of the Interior
18 12-C, and when you are finished, let me know.
19 MR. ROSEKRANS: I'm done thumbing through, Mr.
20 Birmingham. Thank you for the refresher. I am happy to
21 testify to these actions to the extent I can remember them.
22 Or if you would like to have me refer to the document, I am
23 happy to refer to the document.
24 MR. BIRMINGHAM: I don't think, Mr. Rosekrans, it is
25 going to be necessary to refer to the document. If, in
CAPITOL REPORTERS (916) 923-5447 11619
1 response to my questions, you feel it is necessary to refer
2 to the documents, please let me know and I will certainly
3 afford you the opportunity to review it, if necessary.
4 Is it correct that Appendix A describes eight actions
5 which are intended to benefit the Delta estuary?
6 MR. ROSEKRANS: It's true. Certainly, the actions go
7 beyond the estuary to the extent that they benefit the
8 anadromous fish that pass through the estuary.
9 MR. BIRMINGHAM: The measures that are described in
10 Appendix A to Department of the Interior 12-C are measures
11 that are intended to benefit the Delta estuary or anadromous
12 fisheries that at some points are in the Delta estuary?
13 MR. ROSEKRANS: That's correct.
14 MR. BIRMINGHAM: If I understand your earlier
15 testimony, it is the position of the Environmental Defense
16 Fund that the eight measures that are described in Appendix
17 A are part of the baseline against which the joint point of
18 diversion should be measured?
19 MR. ROSEKRANS: Yes.
20 MR. BIRMINGHAM: Let me restate the question, Mr.
21 Rosekrans. You were hesitant to answer, and I want to make
22 sure you understand the question that I am asking.
23 Under 98-8, Water Rights Decision 98-8, and 95-6 the
24 joint point of diversion was authorized under certain
25 limited circumstances?
CAPITOL REPORTERS (916) 923-5447 11620
1 MR. ROSEKRANS: I believe it is 98-9. But, yes.
2 MR. BIRMINGHAM: One of the limitations that contained
3 for the use of joint point 98-9 and 95-6 is the use of joint
4 point to make up water that is lost as a result of actions
5 taken to benefit fish?
6 MR. ROSEKRANS: That's correct.
7 MR. BIRMINGHAM: And it is the position of
8 Environmental Defense Fund that if one of the actions that
9 we're discussing is an action described in Appendix A to
10 Department of the Interior Exhibit 12-C, that the Department
11 of the Interior would not be authorized under Water Rights
12 Decision 98-9 to use the joint point of diversion to make up
13 that water?
14 MR. ROSEKRANS: That's my reading of 98-9 and 95-6.
15 It's the Board's decision, ultimately.
16 MR. BIRMINGHAM: Now, you're aware, Mr. Rosekrans, that
17 there is a significant dispute concerning the application of
18 Section 3406 (b)(1) and (b)(2)?
19 MR. ROSEKRANS: I am aware of this, yes.
20 MR. BIRMINGHAM: There is presently litigation that
21 exists in United States District Court for the Eastern
22 District of California challenging the authority of the
23 Department of the Interior to adopt the administrative
24 proposal on the management of (b)(2) water, Department of
25 the Interior Exhibit 12-C?
CAPITOL REPORTERS (916) 923-5447 11621
1 MR. ROSEKRANS: I am aware of that litigation. I am
2 also aware of litigation that says that it doesn't go far
3 enough to implement the provisions of the CVPIA.
4 MR. BIRMINGHAM: Well, Environmental Defense Fund has
5 challenged the Final Administrative Proposal on the
6 management of (b)(2) water, Exhibit 12-C?
7 MR. ROSEKRANS: That's correct.
8 MR. BIRMINGHAM: The Department of -- excuse me,
9 Environmental Defense Fund has alleged that the Final
10 Administrative Proposal on management of Section 3406 (b)(2)
11 water, Department of Interior 12-C, is inconsistent with
12 Central Valley Project Improvement Act Section 3406 (b)(2)?
13 MR. ROSEKRANS: I am not aware where the word
14 "inconsistent" lies in that argument. We believe that
15 Section (b)(2) could be more aggressively implemented and
16 there is -- I can't remember the other numbers of the
17 provisions of the act. There is one that calls for use of
18 CVP storage to carry over dedicated water that was not
19 considered in the Garamendi decision. Might be 3408 (d).
20 MR. BIRMINGHAM: When you refer to the "Garamendi
21 decision," are you referring, again, to Department of the
22 Interior Exhibit 12-C?
23 MR. ROSEKRANS: That's correct.
24 MR. BIRMINGHAM: There are water contractors who
25 contend that the implementation of the eight measures
CAPITOL REPORTERS (916) 923-5447 11622
1 described in Appendix A, when combined with other measures
2 undertaken to implement Section 3406 (b)(2), will result in
3 the dedication of more than 800,000 acre-feet of project
4 yield; isn't that correct, Mr. Rosekrans?
5 MR. ROSEKRANS: I am aware of that contention.
6 MR. BIRMINGHAM: So whether or not the actions that are
7 described in Appendix A to Department of the Interior
8 Exhibit 12-C should be part of what you have called the
9 baseline, is a decision that ultimately is going to be made
10 by the Federal Court?
11 MR. ROSEKRANS: It seems that way. I guess we don't
12 know for sure whether this will be resolved in court or
13 through some other forum. I know there are those that would
14 like to resolve it outside court.
15 MR. BIRMINGHAM: There are other actions that have been
16 taken to implement Section 3406 (b)(2); isn't that right,
17 Mr. Rosekrans, actions in addition to actions described in
18 Appendix A to Department of the Interior 12-C?
19 MR. ROSEKRANS: We didn't discuss the other actions in
20 Appendix A, the management of four Central Valley Project
21 control streams. But as far as I know the eight Delta
22 actions and the four upstream actions constitute the
23 implementation of Sections (b)(1) and (b)(2). Maybe there
24 is something I am missing.
25 MR. BIRMINGHAM: You are familiar with the December
CAPITOL REPORTERS (916) 923-5447 11623
1 1994 document sometimes referred to as the Bay-Delta
2 Accord?
3 MR. ROSEKRANS: Oh, yeah. Thanks, sorry, forgot.
4 MR. BIRMINGHAM: And the 1994 Bay-Delta Accord
5 describes actions that will be taken to benefit the Delta
6 estuary?
7 MR. ROSEKRANS: That's correct.
8 MR. BIRMINGHAM: The 1994 Bay-Delta Accord provides
9 that those items, those actions that are taken over and
10 above D-1485 and the biological opinions in existence in
11 October 1992, under the Accord, will be counted towards
12 (b)(2)?
13 MR. ROSEKRANS: To the extent they affect project
14 deliveries for the Central Valley Project, yes.
15 C.O. STUBCHAER: Mr. Jackson.
16 MR. JACKSON: Mr. Stubchaer, I am going to object to
17 this line of questions. It assumes a document that is not
18 the law at this point. 95-6 is the agreement -- is the
19 Board's order, and is the basis for -- this Accord was an
20 agreement between some, not all, of the parties that has
21 been subsumed in 95-6.
22 C.O. STUBCHAER: Thank you for your comment or
23 objection, but I am going to allow the questioning to
24 proceed.
25 MR. BIRMINGHAM: May I have a moment, Mr. Stubchaer?
CAPITOL REPORTERS (916) 923-5447 11624
1 C.O. STUBCHAER: Yes.
2 MR. BIRMINGHAM: Mr. Rosekrans, we are looking for the
3 exhibit number for the Principles for Agreement on Bay-Delta
4 standards between the State of California and the federal
5 government. While we are looking it up, I would like to
6 proceed with the questions.
7 You've testified that you're familiar with the
8 Principles for Agreement on Bay-Delta standards between the
9 State of California and the federal government?
10 MR. ROSEKRANS: I am. In fact, EDF was signatory to
11 that.
12 MR. BIRMINGHAM: That was going to be my next
13 question. The Environmental Defense Fund was one of the
14 parties to this document that is sometimes referred to as
15 the Bay-Delta Accord?
16 MR. ROSEKRANS: That's correct.
17 MR. BIRMINGHAM: I am going to ask you to take a moment
18 and read a paragraph, Paragraph Number 3, under
19 Institutional Agreements in the Bay-Delta Accord which is
20 staff Exhibit 134. When you finished Reading Paragraph 3,
21 which I am going to hand to you momentarily, I would ask you
22 to let me know.
23 MR. ROSEKRANS: I am done.
24 MR. BIRMINGHAM: Paragraph 3 under Institutional
25 Agreements in staff Exhibit 134 states:
CAPITOL REPORTERS (916) 923-5447 11625
1 All CVP water provided pursuant to these
2 principles shall be credited towards the CVP
3 obligation under Section 3406 (b)(2) of the
4 Central Valley Project Improvement Act to
5 provide 800,000 acre-feet of project yield
6 for specified purposes. (Reading.)
7 Is that correct, Mr. Rosekrans?
8 MR. BIRMINGHAM: And what that means, Mr. Rosekrans, is
9 that water provided by the project under the Accord will be
10 credited towards the project's obligation under 3406 (b)(2)?
11 MR. ROSEKRANS: That's correct. We do need to keep in
12 mind when the Central Valley Project supplies water for
13 something such as the X2 standard that need not and is not
14 always a reduction in deliveries. And it is the reduction
15 in deliveries that is applied against the (b)(2). If the
16 Central Valley Project releases water for an X2 requirement,
17 aggressively delivers water to contractors for that year and
18 the following year is wet, there could be no cost to
19 contractors.
20 MR. BIRMINGHAM: Again, Mr. Rosekrans, what you just
21 stated is the position of the Environmental Defense Fund?
22 You have just said that it is reduction in the deliveries
23 against which (b)(2) is measured?
24 I can ask the Court Reporter to read it back, but do
25 you recall using those words, "It is a reduction in
CAPITOL REPORTERS (916) 923-5447 11626
1 deliveries against which (b)(2) is measured"?
2 MR. ROSEKRANS: Yes, that is correct.
3 MR. BIRMINGHAM: Now, that is the position of the
4 Environmental Defense Fund?
5 MR. ROSEKRANS: I am not prepared today to argue CVP
6 deliveries as distinguished from CVP yield, which is the
7 matter before the Federal Court, and that is where you are
8 going, Mr. Birmingham.
9 MR. BIRMINGHAM: Mr. Rosekrans, that is one of the
10 fundamental issues that is currently pending before the
11 District Court, is it not?
12 MR. ROSEKRANS: That is.
13 MR. BIRMINGHAM: If I hand you a copy of Section 3406
14 (b)(2), you would acknowledge that Section 3406 (b)(2) calls
15 for the dedication of project yield?
16 You are nodding your head up and down. Does that mean
17 yes?
18 MR. ROSEKRANS: It does say yield. It's the word
19 "yield" which has been interpreted by many people in many
20 different ways.
21 MR. BIRMINGHAM: Now, you've said that the project
22 deliveries are the measure of (b)(2), but that is a position
23 which has been rejected by the United States; isn't that
24 right, Mr. Rosekrans?
25 MR. ROSEKRANS: I am not going to offer an opinion on
CAPITOL REPORTERS (916) 923-5447 11627
1 the Solicitor's opinion at this time.
2 MR. BIRMINGHAM: Without referring to the Solicitor's
3 opinion, isn't it correct that the Administrative Proposal
4 in the management of (b)(2) water, which is marked for
5 identification as Department of the Interior Exhibit 12-C,
6 specifically states that the reduction in deliveries is not
7 the measure of (b)(2)?
8 MR. ROSEKRANS: Yeah. Can you tell me where it says
9 that?
10 MR. BIRMINGHAM: Sure, if you will give me one moment.
11 Maybe I can ask Ms. Miniberrigarai to look for this
12 while I conduct further examination, not to waste the
13 Board's time, but we will come back to this.
14 I would like to go, Mr. Rosekrans, to the chart or the
15 graph that is being displayed on the overhead projector,
16 which I believe is Figure 1 from EDF Exhibit 17; is that
17 correct?
18 MR. ROSEKRANS: That's correct.
19 MR. BIRMINGHAM: You make reference to this in your
20 testimony, EDF Exhibit 17; is that correct?
21 MR. ROSEKRANS: That's correct.
22 MR. BIRMINGHAM: Now, on the bottom of Page 1 of EDF
23 Exhibit 17, it says:
24 While it is difficult to show that the
25 increase in export directly has caused the
CAPITOL REPORTERS (916) 923-5447 11628
1 decline in the fishery populations, the
2 correlation is alarming and suggests to me
3 that any action that allows even greater
4 exports will have detrimental effects upon
5 salmon as well as other species within the
6 Delta. (Reading.)
7 Is that what your testimony says, Mr. Rosekrans?
8 MR. ROSEKRANS: That's correct.
9 MR. BIRMINGHAM: That statement is based upon a
10 conclusion that you have reached that there is a correlation
11 between export rates and the abundance of fish species in
12 the Delta?
13 MR. ROSEKRANS: Well, the correlation, I don't think,
14 can be denied. It is whether one caused the other that is
15 the subject of much debate.
16 MR. BIRMINGHAM: You are saying that there is a
17 correlation between export rates and fish abundance in the
18 Delta?
19 MR. ROSEKRANS: That's correct.
20 MR. BIRMINGHAM: Now, and I take it from your testimony
21 that it is your position that the correlation is that as
22 export rates go up, fish abundance goes down?
23 MR. ROSEKRANS: That's correct.
24 MR. BIRMINGHAM: As export rates go down fish abundance
25 would go up?
CAPITOL REPORTERS (916) 923-5447 11629
1 MR. ROSEKRANS: I didn't say that.
2 MR. BIRMINGHAM: But it is your position that as
3 exports go up fish abundance goes down?
4 MR. ROSEKRANS: That has been the historical pattern.
5 MR. BIRMINGHAM: That is what you plotted on Figure 1
6 to Exhibit 17.
7 MR. ROSEKRANS: That's correct.
8 MR. BIRMINGHAM: Let's examine that, Mr. Rosekrans.
9 Now, you have a number of species that are on Figure 1 to
10 EDF Exhibit 17; is that correct?
11 MR. ROSEKRANS: That's correct. There are eight.
12 MR. BIRMINGHAM: There are eight. Let's take fall-run
13 chinook salmon. Fall-run chinook salmon is depicted on
14 Figure 1 as a square, a black square; is that correct?
15 MR. ROSEKRANS: That's correct.
16 MR. BIRMINGHAM: Now, during the period 1972 to 1976
17 the black square appears somewhere between 50 and 60
18 percent; is that correct?
19 MR. ROSEKRANS: That's correct. That is 50 to 60
20 percent of the average from the preceding five-year period.
21 MR. BIRMINGHAM: The exports are somewhere between 60
22 and 70 -- actually, the exports are measured in thousands of
23 acre-feet or millions of acre-feet, excuse me, and exports
24 in 1972 to '76 are approximately 3.- or 4.0 million
25 acre-feet; is that correct?
CAPITOL REPORTERS (916) 923-5447 11630
1 MR. ROSEKRANS: That's correct.
2 MR. BIRMINGHAM: Now, the exports during the period
3 1977 through 1981 are also about 4.0 million acre-feet.
4 MR. ROSEKRANS: That's correct.
5 MR. BIRMINGHAM: The number of fall-run chinook salmon
6 declines between 1972 and 19- -- the '72-76 period and the
7 '77-81 period?
8 MR. ROSEKRANS: That's correct.
9 MR. BIRMINGHAM: From the '77 to '81 period to the '82
10 to '86 period exports increased; is that correct?
11 MR. ROSEKRANS: That's correct.
12 MR. BIRMINGHAM: Exports increased from approximately
13 4.0 million acre-feet in '77 to '81 to approximately 5 or
14 5.1 million acre-feet in '82 to '86?
15 MR. ROSEKRANS: That's correct.
16 MR. BIRMINGHAM: But the number of chinook salmon went
17 up?
18 MR. ROSEKRANS: That's correct.
19 MR. BIRMINGHAM: So for the period from '77-81 through
20 '82-86 with respect to the number of fall-run chinook
21 salmon, there was no correlation between abundance and
22 export levels?
23 MR. ROSEKRANS: That is correct, to the extent they did
24 not -- population did not decline as exports increased.
25 MR. BIRMINGHAM: In fact, populations went up as
CAPITOL REPORTERS (916) 923-5447 11631
1 exports went up?
2 MR. ROSEKRANS: In fact, populations went up.
3 MR. BIRMINGHAM: Let's look at the next period. In
4 comparing the period '82 to '86 to '77 to '81, exports again
5 went up between those two periods; isn't that right?
6 MR. ROSEKRANS: That's correct.
7 MR. BIRMINGHAM: And the population of fall-run chinook
8 salmon also increased during that period?
9 MR. ROSEKRANS: That's correct.
10 MR. BIRMINGHAM: So, for the period from '1982-86
11 through '87-91 there is no correlation between increased
12 exports and the abundance of fall-run chinook salmon?
13 MR. ROSEKRANS: That's correct. As we don't see --
14 overall in this figure we see a pattern of increased exports
15 and declining fisheries. We don't see that pattern at every
16 possible pair of data points.
17 MR. BIRMINGHAM: Between -- looking at the relationship
18 between exports and the abundance of fall-run chinook
19 salmon, if there is a correlation, the correlation is that
20 as exports go up, population goes up?
21 MR. ROSEKRANS: I am sorry, can you restate that,
22 please?
23 MR. BIRMINGHAM: Sure. With respect to fall-run
24 chinook salmon, if there is a correlation between export
25 levels and abundance, the correlation is as exports goes up
CAPITOL REPORTERS (916) 923-5447 11632
1 abundance goes up?
2 MR. ROSEKRANS: With respect to those three data
3 points, that's correct.
4 MR. BIRMINGHAM: Now let's compare the period from '87
5 to '91 with the period from '92 to '96, focusing again on
6 fall-run chinook salmon. Now the export levels went down
7 from the period '87-91 through '92-96; is that correct, Mr.
8 Rosekrans?
9 MR. ROSEKRANS: That's correct.
10 MR. BIRMINGHAM: And the population of fall-run chinook
11 salmon went down during the corresponding period?
12 MR. ROSEKRANS: Yes.
13 MR. BIRMINGHAM: So, as exports were decreased, fish
14 abundance also decreased?
15 MR. ROSEKRANS: That's correct.
16 MR. BIRMINGHAM: So what we can glean from Figure 1 of
17 Exhibit 17 with respect to fall-run, as exports go up fish
18 abundance goes up, and exports goes down fish abundance goes
19 down?
20 MR. ROSEKRANS: For those limited data points and
21 species, what you say is true.
22 MR. BIRMINGHAM: That is data points depicted on Figure
23 1 of Exhibit 17?
24 MR. ROSEKRANS: That's correct.
25 MR. BIRMINGHAM: Now, let's examine a couple of the
CAPITOL REPORTERS (916) 923-5447 11633
1 other species. The long fin smelt. Let's start again with
2 the period '72 through '76. Compare that with the figure
3 '77 through '81. Now, again with respect to long fin smelt,
4 '72-76 compared to '77-81, the level of exports was
5 relatively constant?
6 MR. ROSEKRANS: That's correct.
7 MR. BIRMINGHAM: But from comparing the '77-81 period
8 with the '82-86 period, the level of exports went up?
9 MR. ROSEKRANS: That's correct.
10 MR. BIRMINGHAM: Now what happens to the population of
11 long fin smelt during the period '77-81 through '82-86 when
12 the exports increased?
13 MR. ROSEKRANS: It also increased.
14 MR. BIRMINGHAM: So, again, for this period if there is
15 a correlation between the level of exports and the
16 population or abundance of long fin smelt, the correlation
17 is that as exports go up fish abundance goes up?
18 MR. ROSEKRANS: For those limited data points what you
19 say is true, Mr. Birmingham.
20 MR. BIRMINGHAM: Let's compare the period -- the
21 abundance between 1982-86 with the abundance in '92-96.
22 Again from '82 to '86 to '92 to '96 exports went down?
23 MR. ROSEKRANS: That's correct.
24 MR. BIRMINGHAM: And the abundance of long fin smelt
25 went down?
CAPITOL REPORTERS (916) 923-5447 11634
1 MR. ROSEKRANS: That's correct.
2 MR. BIRMINGHAM: Again, the correlation is that as
3 exports goes down fish abundance goes down if we are talking
4 about long fin smelt, as depicted on Figure 1 of EDF Exhibit
5 17?
6 MR. ROSEKRANS: That is correct, for those limited data
7 points.
8 MR. BIRMINGHAM: Let's see if there are any other.
9 Spring-run chinook salmon. That is a species that is listed
10 as a candidate species under the Endangered Species Act?
11 Let me restate the question.
12 Spring-run chinook salmon is a species that has been
13 listed as threatened under the state Endangered Species Act?
14 MR. ROSEKRANS: That's correct.
15 MR. BIRMINGHAM: It's being considered for listing
16 under the federal Endangered Species Act?
17 MR. ROSEKRANS: Yes.
18 MR. BIRMINGHAM: Let's look at the population of this
19 species, spring-run chinook salmon, for the period '77
20 through '81 and compare that with the population '82 through
21 '86.
22 Now, again, looking at exports '77 through '81 compared
23 with exports '82 through '86, exports went up?
24 MR. ROSEKRANS: Yes, that is correct.
25 MR. BIRMINGHAM: And with respect to the abundance of
CAPITOL REPORTERS (916) 923-5447 11635
1 spring-run chinook salmon. As exports increased so did the
2 abundance?
3 MR. ROSEKRANS: That's correct.
4 MR. BIRMINGHAM: So, again, if we're talking about a
5 correlation for this period with respect to the spring-run
6 chinook salmon, the correlation is as exports go up
7 population goes up?
8 MR. ROSEKRANS: That's correct for those limited data
9 points. I tried to incorporate in these graphs all the data
10 points that I could find, and fishery population only went
11 back so far. And the information, in general, is most
12 useful over the longest possible period of time.
13 MR. BIRMINGHAM: Let's look at the period involving
14 spring-run, the period '82 through '86 and compare that with
15 the period '92 through '96. Again, to set the stage, the
16 level of exports declined '82 through '86 compared to '92
17 through '96.
18 MR. ROSEKRANS: That's correct.
19 MR. BIRMINGHAM: And the population of fish declined
20 during that same period?
21 MR. ROSEKRANS: That's correct.
22 MR. BIRMINGHAM: So the correlation again is as exports
23 decline, fish abundance declines?
24 MR. ROSEKRANS: For those limited data points, that's
25 correct.
CAPITOL REPORTERS (916) 923-5447 11636
1 MR. BIRMINGHAM: Mr. Rosekrans, you would agree with me
2 that there are many factors that affect the abundance of
3 fish species that we have been talking about?
4 MR. ROSEKRANS: I would agree, yes.
5 MR. BIRMINGHAM: Water quality is one of the factors?
6 MR. ROSEKRANS: That's correct.
7 MR. BIRMINGHAM: Commercial harvest is one of the
8 factors.
9 MR. ROSEKRANS: That is correct.
10 MR. BIRMINGHAM: Recreational harvest is a factor?
11 MR. ROSEKRANS: Yeah. And let me back up. Some of
12 these species are not -- I guess, I am not aware of any
13 commercial harvest of the striped bass, long fin or Delta
14 smelt. I know striped bass is a very popular sport fish. I
15 am not aware of a commercial aspect.
16 MR. BIRMINGHAM: The introduction of exotic species
17 into the Delta estuary is another factor that may cause the
18 decline in fish species; is that correct?
19 MR. ROSEKRANS: That's correct.
20 MR. BIRMINGHAM: How many exotic species have been
21 introduced into the Delta estuary from the period 1967
22 through 1996?
23 MR. ROSEKRANS: I don't know.
24 MR. BIRMINGHAM: You don't know.
25 There have been many exotic species that have been
CAPITOL REPORTERS (916) 923-5447 11637
1 introduced into the Delta during the period 1997 through
2 1996. You would agree with that statement, wouldn't you,
3 Mr. Rosekrans? Excuse me, 1967 through 1996.
4 MR. ROSEKRANS: I am aware of several -- as far as the
5 mitten crabs, the Chinese razor claims. The striped bass
6 are not indigenous, but they have been around a long time.
7 I know there are others, I can't give you a list.
8 MR. BIRMINGHAM: If there are causes -- let me restate
9 the question.
10 With the data that are depicted on Exhibit 17, Figure
11 1, we now have established, haven't we, Mr. Rosekrans, that
12 there really isn't a correlation between the levels of
13 export and the abundance of fish at least for fall-run,
14 spring-run and long fin smelt?
15 MR. ROSEKRANS: No. I would say fall-run is really the
16 only exception. Looking over the three-year time horizon,
17 the other species have all significantly declined as exports
18 have increased. I understand that it is difficult, maybe
19 impossible, to show that the increase in exports led to the
20 decline in fisheries. That is not my testimony.
21 My testimony suggests that if the fishery agencies
22 suggest that additional actions might benefit the fisheries,
23 that the joint point of diversion might be used to mitigate
24 for those additional actions. So that the actions proposed
25 by the fishery agencies could be implemented.
CAPITOL REPORTERS (916) 923-5447 11638
1 MR. BIRMINGHAM: Let me make sure I understand EDF's
2 position. EDF's position is that it doesn't make any
3 difference in the relationship between exports and the
4 abundance of these fish, we shouldn't have exports?
5 MR. ROSEKRANS: I don't think I said that.
6 MR. BIRMINGHAM: You are saying that you don't know if
7 there is a relationship between the abundance of these fish
8 species and exports?
9 MR. ROSEKRANS: Again, there is a correlation. We
10 can't show and it would be foolhardy of me to suggest that I
11 could demonstrate that it's only on the exports or chiefly
12 the exports that led to these declines when the expert
13 biologists throughout the watershed haven't been able to do
14 so.
15 MR. BIRMINGHAM: Let me go back to my question because
16 my question didn't relate to correlation. It related to a
17 relationship.
18 C.O. STUBCHAER: Allow him to finish the question.
19 MR. BIRMINGHAM: Let me reask the question.
20 You don't know if there is a relationship between the
21 level of exports and the abundance of these fish species?
22 MR. CAMPBELL: Objection. Asked and answered.
23 C.O. STUBCHAER: I think it has been asked.
24 MR. BIRMINGHAM: Let me ask you this, Mr. Rosekrans:
25 What is a correlation?
CAPITOL REPORTERS (916) 923-5447 11639
1 MR. ROSEKRANS: A correlation is a relationship between
2 two sets of data that implies a general pattern of -- a
3 correlation is -- let me try again here. I don't have my
4 math book to look this up.
5 A correlation is a discernible relationship between, in
6 this case, ordered pairs of data.
7 MR. BIRMINGHAM: You have said -- I want to make sure I
8 understand this. This may be critical. A correlation is a
9 discernible relationship between ordered pairs of data?
10 MR. ROSEKRANS: That is what I said.
11 MR. BIRMINGHAM: May I have a moment, Mr. Stubchaer?
12 C.O. STUBCHAER: Yes, you may.
13 MR. BIRMINGHAM: May I again, Mr. Stubchaer, borrow
14 your nontoxic water-based pen?
15 C.O. STUBCHAER: Yes.
16 MR. NOMELLINI: Assumes a fact not in evidence.
17 C.O. STUBCHAER: Read German, Mr. Nomellini?
18 MEMBER FORSTER: They are in German.
19 MR. BIRMINGHAM: That is very appropriate.
20 I want to make sure I have this, Mr. Rosekrans. On
21 this piece of Mylar I am writing Westlands Water District
22 108.
23 MS. WHITNEY: 110.
24 MR. BIRMINGHAM: Exhibit 110.
25 This will be time. This will be the number of storks,
CAPITOL REPORTERS (916) 923-5447 11640
1 the population of storks.
2 MR. HERRICK: What was that?
3 MEMBER FORSTER: Storks bring babies.
4 MR. BIRMINGHAM: The population of storks.
5 May I ask that that be repeated?
6 MEMBER FORSTER: No.
7 MR. BIRMINGHAM: The population of storks in Western
8 Europe. We'll call this the period 1932 through 1940. On
9 this axis we will plot the birth rate.
10 MR. ROSEKRANS: The human birth rate?
11 MR. BIRMINGHAM: The human birth rate in Western
12 Europe.
13 Now, going back to your definition of a correlation,
14 Mr. Rosekrans, you said it is a discernible relationship
15 between ordered pairs of data?
16 MR. ROSEKRANS: I did say that.
17 MR. BIRMINGHAM: On this graph, which I am marking as
18 Westlands Water District 110, I am going to mark the
19 population of storks with an asterisk.
20 C.O. STUBCHAER: Mr. Jackson.
21 MR. JACKSON: Was this before or after the Germans
22 changed the stork hunting rules? They changed in 1936.
23 C.O. STUBCHAER: The birth rate in live births per
24 thousand or per million? I don't know. Go ahead.
25 MR. BIRMINGHAM: Generalized data, dimensionless.
CAPITOL REPORTERS (916) 923-5447 11641
1 C.O. STUBCHAER: All right.
2 MR. BIRMINGHAM: I will mark the birth rate of the
3 human population with circles.
4 Now, let's look at the first measure of the stork
5 population in 1932 and the population of the human birth
6 rate. That is a ordered pair of data; isn't that correct,
7 Mr. Rosekrans?
8 MR. CAMPBELL: Objection. Vague. Is this intended to
9 be a hypothetical situation?
10 C.O. STUBCHAER: I had the same question, Mr. Campbell.
11 I was just wondering.
12 MR. BIRMINGHAM: Yes, it is a hypothetical situation.
13 MR. CAMPBELL: I will object on the grounds it is an
14 incomplete hypothetical. We don't know any of the
15 underpinnings of this stork data.
16 C.O. STUBCHAER: It is a hypothetical, so you don't
17 need to know. Anyway, I am going to overrule the objection,
18 permit the questioning.
19 MR. BIRMINGHAM: Mr. Rosekrans, looking at these data
20 points for the population of storks and the human birth rate
21 in 1932, that is an ordered pair of data; is it not?
22 MR. ROSEKRANS: That is an ordered pair of data.
23 MR. BIRMINGHAM: Looking again -- we will call the next
24 point 1934. There are two points of data for 1934; one for
25 the population of storks and one for the birth rate of
CAPITOL REPORTERS (916) 923-5447 11642
1 humans for 1934. That is also an ordered pair of data;
2 isn't that correct, Mr. Rosekrans?
3 MR. ROSEKRANS: That is correct, that it is an ordered
4 pair of hypothetical data. If I can jump ahead, there are
5 three other ordered pairs up there.
6 MR. BIRMINGHAM: The ordered pairs of data that are
7 there show that as the population of storks in Western
8 Europe went up during the period of the '30s the human birth
9 rate also went up. The ordered pairs of data show that
10 relationship; isn't that right, Mr. Rosekrans?
11 MR. ROSEKRANS: That's right.
12 MR. BIRMINGHAM: From my hypothetical question, would
13 you, without being a biologist, ever assume that there is a
14 relationship between the population of storks and the human
15 birth rate?
16 Mr. Rosekrans, you can explain your answer, but would
17 you answer my question first, please?
18 MR. ROSEKRANS: I thought I was about to.
19 MR. BIRMINGHAM: The question, Mr. Rosekrans, can be
20 answered yes or no. I will be happy to reask it.
21 From these ordered pairs of data, which show that as
22 the population of storks in Western Europe increased during
23 the period of the '30s, the human birth rate increased.
24 Would you conclude that there is a relationship between the
25 population of storks and the human birth rate?
CAPITOL REPORTERS (916) 923-5447 11643
1 MR. ROSEKRANS: I think you and I have a different
2 definition of the word "relationship." I think of the word
3 "relationship" as more general than correlation. If there
4 is a correlation, there is a relationship. Does one cause
5 the other? I would assert no.
6 MR. BIRMINGHAM: Does one cause the other? You would
7 assert no; is that what you just said, Mr. Rosekrans?
8 MR. ROSEKRANS: Yeah. I am not a biologist, but I do
9 know enough about biology. I have watched the birth of all
10 of my three kids. I understand if you are about to have
11 one, maybe you don't really know, but they don't get brought
12 by the stork.
13 MR. BIRMINGHAM: I want to go back to your definition
14 of correlation, Mr. Rosekrans. Because you said that a
15 correlation is a discernible relationship between ordered
16 pairs of data. Those were your words.
17 Isn't there a discernible relationship between the
18 ordered pairs of data shown on Westlands Water District --
19 MR. NOMELLINI: Asked and answered with regard to each
20 of those points, Mr. Chairman.
21 MR. CAMPBELL: I would join in that objection.
22 C.O. STUBCHAER: I am going to allow this question to
23 be answered.
24 MR. ROSEKRANS: I am not trying to be difficult. I
25 claim there is a correlation. There is a relationship.
CAPITOL REPORTERS (916) 923-5447 11644
1 MR. BIRMINGHAM: What you are suggesting with respect
2 to the data on Westlands Water District Exhibit 110,
3 although there is a discernible relationship between the
4 ordered pairs of data, there is no cause and effect
5 relationship?
6 MR. ROSEKRANS: Yes.
7 MR. BIRMINGHAM: Because, notwithstanding Board Member
8 Forster's earlier comment, storks don't bring babies?
9 MEMBER FORSTER: I didn't say that.
10 MR. ROSEKRANS: We didn't hear that back here. That is
11 correct. The increase in stork population does not increase
12 the baby population or vice versa, to my knowledge.
13 MR. BIRMINGHAM: Let's go back to the discernible
14 relationship between the ordered pairs of data which are
15 depicted on Figure 1 of Exhibit 17. Isn't it correct, Mr.
16 Rosekrans, that you don't know if there is a cause and
17 relationship between the ordered pairs of data depicted on
18 Figure 1 of EDF Exhibit 17?
19 MR. ROSEKRANS: That is correct.
20 MR. BIRMINGHAM: Offer of proof. During the period
21 1932 through 1940, the population of storks in Western
22 Europe increased, and there was a direct correlation with
23 the population or the birth rate of humans.
24 C.O. STUBCHAER: Is that testimony?
25 MR. BIRMINGHAM: No. It is an offer of proof. I will
CAPITOL REPORTERS (916) 923-5447 11645
1 produce a witness later to establish that.
2 C.O. STUBCHAER: Sorry, I missed that. What about the
3 cause and effect relationship, Mr. Birmingham? Are you
4 going to prove that?
5 MR. BIRMINGHAM: That is a question of statistics, and
6 I would never venture into that realm.
7 Mr. Rosekrans, earlier we were talking about -- let me
8 ask the question:
9 You would agree, Mr. Rosekrans, that whether or not
10 there is a cause and effect relationship between ordered
11 pairs of data is a question of statistics?
12 MR. ROSEKRANS: No.
13 MR. BIRMINGHAM: Let me go back to my earlier
14 question. You said that it was EDF's position that the
15 measure of water under (b)(2) is the impact of the measures
16 on deliveries to contractors? That is EDF's position?
17 MR. ROSEKRANS: That's correct.
18 MR. BIRMINGHAM: I asked you if it weren't correct that
19 the United States had rejected that position?
20 MR. ROSEKRANS: I asked for a reference to where it
21 says in the decision, and you're going to tell me where that
22 is.
23 MR. BIRMINGHAM: Let me ask you to refer to Page 6 of
24 the Final Administrative Proposal on the management of
25 Section 3406 (b) water, which has been marked for
CAPITOL REPORTERS (916) 923-5447 11646
1 identification as Department of the Interior Exhibit
2 12-C. I would ask you to look at the first paragraph, the
3 first full sentence on Page 6 of 12-C. When you have had a
4 chance to read that, would you please let me know?
5 MR. ROSEKRANS: I have read the sentence. I am not
6 responsible for it; I did not write it.
7 MR. BIRMINGHAM: It is your understanding, isn't it,
8 Mr. Rosekrans, that the Final Administrative Proposal states
9 that the position of the United States with respect to the
10 management of (b)(2) water?
11 MR. ROSEKRANS: That's correct.
12 MR. BIRMINGHAM: On Page 6 of Department of the
13 Interior Exhibit 12-C, it states:
14 While impacts to water deliveries are neither
15 the stated goal nor the stated measure of the
16 800,000 acre-feet of (b)(2) water.
17 (Reading.)
18 Did I read that accurately?
19 MR. ROSEKRANS: Yes.
20 MR. BIRMINGHAM: You would agree with me, wouldn't you,
21 Mr. Rosekrans, that the United States does not agree with
22 EDF's position that the measure of water dedicated under
23 (b)(2) is its impact on the deliveries?
24 MR. ROSEKRANS: No, I can't agree with that. I think
25 that you're taking that partial sentence out of context with
CAPITOL REPORTERS (916) 923-5447 11647
1 respect to the entire document. The document is a result of
2 six months or more of negotiations among parties and
3 modeling results leading to this decision. The modeling was
4 interactively done, and at every meeting the impacts to
5 deliveries were looked at, and the fishery actions
6 accordingly adjusted. And at the very last moment, I think
7 the night before Garamendi signed the decision, he relaxed
8 certain of the portions of the 1962 level of development of
9 the X2 criteria in Delta action three because he was
10 concerned about the impact to water deliveries.
11 In light of all that, I can't take a look at this
12 partial sentence and conclude the United States does not
13 agree with EDF.
14 MR. BIRMINGHAM: Is the sentence which we have just
15 read from Department of the Interior Exhibit 12-C consistent
16 with the position taken by EDF?
17 MR. ROSEKRANS: That sentence, standing by itself, is
18 not consistent.
19 MR. BIRMINGHAM: In fact, the sentence standing by
20 itself is inconsistent with the position taken by EDF?
21 MR. ROSEKRANS: I think that sentence is inconsistent
22 with the position taken by the Department of the Interior.
23 I think you have to look at the whole document.
24 MR. BIRMINGHAM: Let me ask you, Mr. Rosekrans: This
25 sentence is in a statement prepared by the Department of the
CAPITOL REPORTERS (916) 923-5447 11648
1 Interior.
2 MR. ROSEKRANS: I understand that. I didn't write
3 it. I think it is inconsistent with the rest of the
4 document.
5 MR. BIRMINGHAM: May we break for lunch at this time,
6 Mr. Stubchaer?
7 C.O. STUBCHAER: How much more time do you have, Mr.
8 Birmingham?
9 MR. BIRMINGHAM: It is going to take me a few minutes
10 to go through the remainder of the document to ask further
11 questions about this, and I want to make sure that the
12 record on this point is clear. So, I probably will have
13 five more minutes.
14 C.O. STUBCHAER: We will take --
15 MR. BIRMINGHAM: Which Mr. Brown would conclude would
16 take 20.
17 C.O. STUBCHAER: No comment.
18 We will take a little longer lunch break.
19 MR. SUYEYASU: Mr. Stubchaer, if I might. I believe
20 Mr. Birmingham's original hour is up at this time?
21 C.O. STUBCHAER: Yes.
22 MR. SUYEYASU: Are we giving him permission to extend
23 this questioning because I am not totally clear on its
24 relevance to the question of joint point of diversion.
25 Especially I don't think it is appropriate that we give an
CAPITOL REPORTERS (916) 923-5447 11649
1 extension of time, considering how much time he has spent
2 talking about storks in Europe.
3 C.O. STUBCHAER: Mr. Suyeyasu, that is one reason why I
4 asked how much more time he will require.
5 And would you stipulate to ten more minutes, Mr.
6 Birmingham?
7 MR. BIRMINGHAM: Yes.
8 C.O. STUBCHAER: That will put the limit on it, and we
9 will allow that to proceed.
10 We will resume at 1:00 p.m.
11 (Luncheon break taken.)
12 ---oOo---
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CAPITOL REPORTERS (916) 923-5447 11650
1 AFTERNOON SESSION
2 ---oOo---
3 C.O. STUBCHAER: Good afternoon. We will reconvene the
4 hearing.
5 Mr. Birmingham, ten minutes, stipulated time certain
6 with the clock running. Go.
7 MR. BIRMINGHAM: Before we start, may I make one
8 observation.
9 C.O. STUBCHAER: Off the record.
10 (Discussion held off the record.)
11 C.O. STUBCHAER: When you are ready to proceed.
12 MR. BIRMINGHAM: I am ready to proceed.
13 Mr. Rosekrans, immediately before the lunch request I
14 asked you about a statement on the top of Page 6 on the
15 Administrative Proposal on the management of (b)(2) water
16 marked for identification as Department of the Interior
17 Exhibit 12-C. I believe you stated that it did not
18 represent the position of the Department of the Interior. I
19 am going to ask the Court Reporter to go back and read my
20 question to you and your answer so that you and I can have
21 the same understanding of what I asked and what you said.
22 (Record read as requested.)
23 (Reporter read "two" instead of "three.")
24 MR. BIRMINGHAM: Do you recall being asked that
25 question and providing that answer?
CAPITOL REPORTERS (916) 923-5447 11651
1 MR. ROSEKRANS: Yes. May I make a very minor
2 clarification of the answer?
3 MR. BIRMINGHAM: Well, perhaps on your time you can do
4 that. I've got ten minutes.
5 You said at the very last minute, the night before,
6 interior changed its position?
7 MR. ROSEKRANS: Yes. I believe it was the night before
8 or at least the night before we were asking him not to
9 change his position. Maybe he had done it a couple days
10 before that, but it was at the last minute and it was, as
11 far as I am aware, because of the comparatively high water
12 supply impacts, as a result of, and it was Delta Action
13 Number 3, not 2, that is the X2 case.
14 MR. BIRMINGHAM: The Final Administrative Proposal
15 which is in evidence identified as Department of the
16 Interior 12-C was preceded by a draft of the same document
17 dated October 31, 1997; is that correct?
18 MR. ROSEKRANS: That's correct.
19 MR. BIRMINGHAM: Mr. Rosekrans, I am handing you a copy
20 of that draft. I ask you to look at Page 5 of the draft
21 dated October 31, 1997, and in the middle of Page 5 there is
22 a paragraph that begins, "In addition."
23 Do you see that paragraph?
24 MR. ROSEKRANS: I do.
25 MR. BIRMINGHAM: Towards the middle of the paragraph
CAPITOL REPORTERS (916) 923-5447 11652
1 there is a sentence that states:
2 While impacts to water deliveries are neither
3 the stated goal nor the stated measure of the
4 800,000 acre-feet of (b)(2) water.
5 (Reading.)
6 Do you see where I have read that?
7 MR. ROSEKRANS: It looks like essentially the same
8 sentence.
9 MR. BIRMINGHAM: Your statement that Interior changed
10 its position the night before with respect to the measure of
11 (b)(2) water is incorrect, isn't it?
12 MR. ROSEKRANS: No. My statement was to show that
13 Interior was clearly looking at the projected impacts to
14 deliveries when they made their decision. What they did the
15 night before shows by their action what their opinion with
16 respect to measuring the impact on yield was more clearly, I
17 think, than the sentence.
18 MR. BIRMINGHAM: EDF's position is that the measure of
19 water dedicated under (b)(2) is its impact on deliveries?
20 MR. ROSEKRANS: That's correct.
21 MR. BIRMINGHAM: The Department of the Interior has
22 rejected that view?
23 MR. ROSEKRANS: Again --
24 MR. SUYEYASU: Objection. Calls for speculation. Mr.
25 Rosekrans cannot speak of the policies of the Department of
CAPITOL REPORTERS (916) 923-5447 11653
1 the Interior.
2 C.O. STUBCHAER: As usual, if you know the answer, you
3 may answer. If you don't, you may so state. I'll permit
4 the question to be answered.
5 MR. BIRMINGHAM: I will restate the question.
6 Mr. Rosekrans, on October 31, 1997, the Department of
7 the Interior stated that impacts to water deliveries are
8 neither the stated goal nor the stated measure of the
9 800,000 acre-feet of (b)(2) water; isn't that correct?
10 MR. ROSEKRANS: I am sorry, the sentence does say
11 that.
12 MR. BIRMINGHAM: And on November 20, 1997, the
13 Department of the Interior in a statement signed by Roger
14 Patterson and Michael Spear stated that impacts to water
15 deliveries are neither the stated goal nor the stated
16 purpose of the 800,000 acre-feet of (b)(2) water?
17 MR. ROSEKRANS: Yes. The statement -- the sentence
18 does read that way.
19 MR. BIRMINGHAM: The Administrative Proposal on the
20 management of (b)(2) water was the subject of an opinion
21 that was written by the Deputy Solicitor Leshy; is that
22 correct?
23 MR. ROSEKRANS: The Solicitor's opinion is a separate
24 document.
25 MR. BIRMINGHAM: Let me restate the question. The
CAPITOL REPORTERS (916) 923-5447 11654
1 Administrative Proposal on the management of (b)(2) water,
2 Department of the Interior 12-C, was the subject of an
3 opinion written by Deputy Solicitor Leshy; isn't that
4 correct?
5 MR. ROSEKRANS: That's correct.
6 MR. BIRMINGHAM: I am handing to you, Mr. Rosekrans, a
7 copy of the November 19, 1997, opinion of Deputy Solicitor
8 -- excuse me, Solicitor Leshy.
9 Do you recognize this document?
10 MR. ROSEKRANS: I do.
11 MR. BIRMINGHAM: I'd ask you to turn to Page 12 of the
12 Leshy opinion. Towards the bottom of Page 12 there is a
13 statement that says:
14 Second, measuring (b)(2) water solely by
15 reduction to contractors is always
16 inconsistent with the cautious approach to
17 fish and wildlife restoration activities that
18 Congress set out in (b)(1). (Reading.)
19 Isn't that correct, Mr. Rosekrans?
20 MR. ROSEKRANS: The sentence does read that, yes.
21 MR. BIRMINGHAM: On Page 13 of the Leshy opinion, the
22 first full paragraph states:
23 The limited legislative history also shows no
24 support for such an "impact to delivery"
25 approach. (Reading.)
CAPITOL REPORTERS (916) 923-5447 11655
1 MR. ROSEKRANS: That document reads that sentence
2 also.
3 MR. BIRMINGHAM: Page 14 of the Leshy opinion, towards
4 the top of the last full paragraph has a sentence that reads
5 as follows:
6 While impacts to contract deliveries is not
7 the way Interior will account for or
8 "measure" the use of (b)(2) water. Interior
9 has through computer modeling, to the extent
10 it is possible to do so, analyzed the impacts
11 to existing contractors of meeting the matrix
12 of measures. (Reading.)
13 MR. SUYEYASU: Objection. The document speaks for
14 itself. I see no need for Mr. Rosekrans to answer his
15 question as to what this document says.
16 C.O. STUBCHAER: Unless you can tie it to the issue at
17 hand, I will sustain the objection.
18 MR. BIRMINGHAM: EDF has stated its position that the
19 baseline, thank you, for implementing the joint point of
20 diversion is a baseline that includes AFRP actions. And the
21 reason that EDF has stated that it is taking that position,
22 through Mr. Rosekrans, is because EDF maintains that the
23 measure of (b)(2) water is its impacts on deliveries.
24 Mr. Rosekrans has stated that the United States has not
25 taken a position inconsistent with EDF's position. And I am
CAPITOL REPORTERS (916) 923-5447 11656
1 cross-examining him on that statement, that the United
2 States has not taken a position inconsistent with EDF's
3 position.
4 C.O. STUBCHAER: It seems to me the recent questions
5 have just been, "Does the document state this," basically.
6 If the document states that, it speaks for itself.
7 Could you not cite that document in your closing
8 argument?
9 MR. BIRMINGHAM: No, I cannot because they are not in
10 evidence. The (b)(2) plan is in evidence; the draft plan is
11 not in evidence nor is the Leshy opinion in evidence.
12 C.O. STUBCHAER: Any comments from staff?
13 MS. LEIDIGH: Just a moment. We'll check. For some
14 reason I thought the Leshy opinion was attached to the
15 decision, the document.
16 C.O. STUBCHAER: Mr. Jackson.
17 MR. JACKSON: The Leshy opinion is just an opinion. It
18 is the position of an applicant lawyer and is not
19 appropriate to be in evidence. It would be solely
20 appropriate if Solicitor Leshy or someone else on his behalf
21 wanted to make that argument in their closing brief, but
22 certainly is not evidence of any kind.
23 MR. BIRMINGHAM: That is a very, very interesting
24 position for the attorney from Trinity County to take after
25 we spent hours and hours and hours arguing about whether or
CAPITOL REPORTERS (916) 923-5447 11657
1 not his lay witnesses could testify as to what solicitor
2 opinions meant. And you may recall, Mr. Stubchaer, that the
3 results of our stipulation was that the solicitor's opinions
4 could be admitted into evidence although statements about
5 the meaning of the solicitor's opinions would not be
6 admitted into evidence.
7 MR. JACKSON: Excuse me, they differ in that that was
8 a stipulation allowing it into evidence. As the ruling
9 shows, the stipulation, whatever parts of it are in, does
10 not indicate which way the Board would have ruled in the
11 absence of the stipulation.
12 C.O. STUBCHAER: Let's go off the record for a moment
13 while we see if this opinion is in the record.
14 (Discussion held off the record.)
15 C.O. STUBCHAER: Back on the record.
16 MS. LEIDIGH: We don't find the Leshy opinion attached
17 to the final proposal that we have in the record, but we do
18 have the final proposal and all appendices.
19 C.O. STUBCHAER: Then I will permit the questioning to
20 continue.
21 MR. BIRMINGHAM: Do you recall the question, Mr.
22 Rosekrans?
23 MR. ROSEKRANS: The question, as I recall, is that
24 sentence in the record or in the Solicitor's opinion on Page
25 14. And the answer is, yes, that sentence is there.
CAPITOL REPORTERS (916) 923-5447 11658
1 MR. BIRMINGHAM: On November 19, 1997, the Solicitor
2 expressed an opinion about the appropriate measure of (b)(2)
3 water which is inconsistent with EDF's position?
4 MR. ROSEKRANS: That sentence would seem to be
5 inconsistent with EDF's opinion. Again, like the
6 administrative decision, the Solicitor's opinion is a
7 substantial document and offers different opinions that, I
8 think, if you read the whole thing you may not come to the
9 conclusion that you would come to from reading that
10 sentence.
11 MR. BIRMINGHAM: Mr. Rosekrans, you have read the
12 documents that you are referring to?
13 MR. ROSEKRANS: I have.
14 MR. BIRMINGHAM: Can you point out to me in these
15 documents where the Department of the Interior, either
16 through Fish and Wildlife Service, the Bureau of Reclamation
17 or the Solicitor's office has stated that the appropriate
18 measure of (b)(2) water is its impact on deliveries to
19 contractors?
20 MR. ROSEKRANS: I can't pinpoint such a place. Would
21 you like me to look through the documents and try to find
22 such a place?
23 MR. BIRMINGHAM: What I will do, Mr. Stubchaer, with
24 Mr. Jackson's stipulation, is I will produce the documents
25 and have them entered into the record because the documents
CAPITOL REPORTERS (916) 923-5447 11659
1 do speak for themselves.
2 Thank you very much.
3 C.O. STUBCHAER: Thank you, Mr. Birmingham.
4 Mr. Herrick.
5 ---oOo---
6 CROSS-EXAMINATION OF ENVIRONMENTAL DEFENSE FUND
7 BY SOUTH DELTA WATER AGENCY
8 BY MR. HERRICK
9 MR. HERRICK: Thank you, Mr. Chairman, Board Members.
10 John Herrick for the South Delta Water Agency.
11 Mr. Rosekrans, does EDF agree with the proposal made by
12 the Department of the Interior, Department of Fish and Game,
13 DWR that the Board should approve joint point diversions up
14 to the current levels and then higher than that once CalFed
15 has submitted an operations plan?
16 MR. ROSEKRANS: I didn't understand the question. I am
17 not sure what the current level of use of joint point of
18 diversion is.
19 MR. HERRICK: The proposal, as I understand it, is that
20 upon adoption of the joint point authorization the Bureau
21 and DWR would act to make up pumping as they do now under WR
22 98-9. Is that your understanding, too?
23 MR. ROSEKRANS: We are speaking of an alternative in
24 this hearing or a decision outside this hearing?
25 MR. HERRICK: It is my understanding, and I am trying
CAPITOL REPORTERS (916) 923-5447 11660
1 to jog your memory here, have you read the panel's testimony
2 that was before you, the panel for DOI and the DWR and
3 Department of Fish and Game?
4 MR. ROSEKRANS: No. I am only generally familiar with
5 it.
6 MR. HERRCIK: Would you agree that decisions on
7 increasing exports above current levels should be based upon
8 the submittal of an operations plan by the CalFed process on
9 how to do that?
10 MR. ROSEKRANS: Yes.
11 MR. HERRICK: Would you prefer to have that operations
12 plan done before the Board authorizes such additional
13 pumping?
14 MR. ROSEKRANS: I don't think that's necessary if the
15 Board's approval is properly and thoughtfully written.
16 MR. HERRICK: Could we put your Figure 1 back up,
17 please?
18 Mr. Rosekrans, what significant event took place
19 between 1967 and 1972 that might account for the decreased
20 fish population shown on your Figure 1?
21 MR. BIRMINGHAM: Objection. Assumes a fact not in
22 evidence.
23 C.O. STUBCHAER: No, I am going to allow the question
24 to be answered.
25 MR. ROSEKRANS: I believe it was 1967 when the State
CAPITOL REPORTERS (916) 923-5447 11661
1 Water Project went on line and San Luis Reservoir was
2 completed and Delta exports subsequently increased.
3 MR. BIRMINGHAM: Objection. Nonresponsive. The
4 question was what significant event occurred between 1967
5 and 1972. The event that Mr. Rosekrans identified occurred
6 in 1967, not between 1967 and 1982.
7 MR. HERRICK: I will just comment that sounds like
8 testimony rather than an objection.
9 MR. BIRMINGHAM: It is an objection. The question was
10 what it was and the question related to something that
11 occurred in 1967, not between the times your question
12 asked.
13 C.O. STUBCHAER: I am going to overrule the objection.
14 MR. HERRICK: Mr. Rosekrans, that is evidenced by the
15 bar, the difference between the bars on your Figure 1,
16 difference between the bars 1967-71 and the bars for
17 1977-76; is that correct?
18 MR. ROSEKRANS: That and the preceding bar for 1962 to
19 '66 before the State Water Project, as well.
20 MR. HERRICK: Now, let me go over the basis for your
21 conclusion about whether or not there is any correlation
22 between export pumping and fish populations.
23 Are you familiar with the testimony in the prior phases
24 of this hearing?
25 MR. ROSEKRANS: Some of it.
CAPITOL REPORTERS (916) 923-5447 11662
1 MR. HERRICK: Are you aware of data kept by either DFG
2 or Fish and Wildlife Service regarding fish takes at the
3 state and federal pumps?
4 MR. ROSEKRANS: Yes. I have several spreadsheets on my
5 computer that lists take at the various facilities for the
6 various species for, I think, dating back to '67. But I
7 have looked at it and I have seen it in presentations.
8 Sure, sure.
9 MR. HERRICK: Don't the Department of Fish and Game and
10 Fish and Wildlife Service keep records of the number of fish
11 taken at the pumps.
12 MR. ROSEKRANS: Yes. I didn't know who kept the
13 records. I am aware of them.
14 MR. HERRICK: Those records also include salvage, fish
15 salvaged at the pumps; isn't that correct?
16 MR. ROSEKRANS: That's correct.
17 MR. HERRICK: When they say "salvaged," could you
18 explain what that means?
19 MR. HERRICK: The fish are technically not dead when
20 they leave the export pump area. They are, I believe, put
21 in trucks full of water and taken elsewhere. And it is my
22 understanding that some of them survive and some of them
23 probably don't.
24 MR. HERRICK: Are you aware of any data or analyses
25 that attempt to put a number on the percentages of fish that
CAPITOL REPORTERS (916) 923-5447 11663
1 survive this salvage process?
2 MR. ROSEKRANS: Not well enough to remember.
3 MR. HERRICK: Are you aware of whether or not the
4 Department of Fish and Game or Fish and Wildlife Service has
5 tried to put that data into evidence in this proceeding?
6 MR. BIRMINGHAM: Objection. Relevance.
7 C.O. STUBCHAER: Mr. Herrick.
8 MR. HERRICK: Mr. Rosekrans' conclusion in his
9 testimony is that there appears to be some sort of
10 correlation between the export pumps and fish populations.
11 I am trying to explore whether or not he will take a more
12 firm position on that conclusion.
13 C.O. STUBCHAER: Questioning may proceed.
14 MR. HERRICK: Thank you.
15 MR. ROSEKRANS: I am not aware of that evidence.
16 MR. HERRICK: Are you aware of any studies that may
17 have occurred that attempt to find a causal relationship
18 between export pumping and fish populations in the Delta?
19 MR. ROSEKRANS: Yes. I am aware of -- I am aware of
20 some studies. I know that Marty Kjelson is going to present
21 some new data related to salmon smolt survival. I have seen
22 the IEP report that led to the Bay-Delta Accord and the
23 current X2 standard and some others as well.
24 MR. HERRICK: Are some of those studies ongoing?
25 MR. ROSEKRANS: Yes.
CAPITOL REPORTERS (916) 923-5447 11664
1 MR. HERRICK: Mr. Rosekrans, are you familiar generally
2 with the hydrology of the Delta?
3 MR. ROSEKRANS: I am fairly familiar with it. Yes,
4 fairly familiar. I don't know as much as I should about
5 your clients' concerns with water levels in the South
6 Delta.
7 MR. HERRICK: The next set of questions I am going to
8 ask I want you to assume no barriers, neither the Head of
9 Old River or the tidal barriers. Okay?
10 Would you agree that when the flow of the San Joaquin
11 River is less than the amount of water being exported at the
12 federal pumps, that in that event the entire flow of San
13 Joaquin River goes to the federal pumps?
14 MR. ROSEKRANS: Not the entire flow. I assume the
15 water does mix and disperse, but a significant proportion of
16 it.
17 MR. HERRICK: Are you aware that the federal pumps
18 sometime cause reverse flow in the main stem of the San
19 Joaquin River so it flows back upstream from Stockton rather
20 than downstream past Stockton?
21 MR. ROSEKRANS: Yes.
22 MR. HERRICK: Let's assume that you have exports of an
23 amount greater than the San Joaquin River and at the same
24 time that reverse flow along the main stem. Would you
25 expect that all of the fish that might be outmigrating on
CAPITOL REPORTERS (916) 923-5447 11665
1 the San Joaquin River would be pulled towards the federal
2 pumps?
3 MR. ROSEKRANS: Certainly a high percentage of them,
4 or they would be pulled that way. Some of them may manage
5 to make it out. But certainly makes it tough for those
6 fish.
7 MR. HERRICK: Would you then conclude that there would
8 be some sort of causal relationship between the population
9 of whatever species you might be talking about and the
10 operation of those pumps?
11 MR. ROSEKRANS: Yeah. I think that, although as
12 everybody knows I am not a biologist, but at some point it's
13 -- I think it is fair to draw that conclusion.
14 MR. HERRICK: Let's move to the state pumps. Would you
15 agree that the state pumps are a few miles downstream
16 generally on Old River downstream from the CVP pumps?
17 MR. ROSEKRANS: Yes.
18 MR. HERRICK: Do you have any opinion as to the
19 direction of flow on that stretch of Old River between the
20 federal pumps and the state pumps?
21 MR. ROSEKRANS: Between the federal pumps and the state
22 pumps?
23 MR. HERRICK: Does any water flow past -- let me start
24 over.
25 Does water flow down Old River past the federal pumps
CAPITOL REPORTERS (916) 923-5447 11666
1 to the state pumps?
2 MR. ROSEKRANS: I haven't been asked this question
3 before. But I guess, assuming the federal government is
4 pumping at 4,000 cfs and the San Joaquin River is running a
5 level less than that, then the San Joaquin River doesn't get
6 much past Tracy.
7 MR. HERRICK: If there is a fish population -- excuse
8 me, let me start over.
9 If there are members of fish population somewhere
10 around the state project export pumps, would you expect that
11 there is a likelihood of those fish going to the state pumps
12 or federal pumps?
13 MR. ROSEKRANS: Yes.
14 MR. HERRICK: So, we can actually draw a map, different
15 areas, depending on flow and exports, where the export pumps
16 would have a very significant affect on fish in those areas;
17 is that correct?
18 MR. ROSEKRANS: Sure, that is certainly true. There
19 are areas within the Delta where once you get there as a
20 fish you are in trouble.
21 MR. HERRICK: By the same token, if there are fish well
22 away from those pumps or the affect of those pumps, those
23 fish might not be affected by the pumps; is that correct?
24 MR. ROSEKRANS: That's correct.
25 MR. HERRICK: Are you aware of any fish -- let me back
CAPITOL REPORTERS (916) 923-5447 11667
1 up.
2 Would you agree that the state pumps have the Clifton
3 Court Forebay as a body of water from which to draw?
4 MR. ROSEKRANS: That's correct.
5 MR. HERRICK: Clifton Court Forebay is filled from Old
6 River; is that correct, of actually where Old River and
7 Middle River combine?
8 MR. ROSEKRANS: Yes.
9 MR. HERRICK: Are you aware of the ability of any fish
10 to exit Clifton Court Forebay once they have gone into
11 Clifton Court Forebay?
12 MR. ROSEKRANS: Not through normal means. Through the
13 salvage operation.
14 MR. HERRICK: Once a fish enters Clifton Court Forebay,
15 would you conclude it would be very likely for that fish to
16 outmigrate back out of Clifton Court; is that true?
17 MR. ROSEKRANS: That is true.
18 MR. HERRICK: One of the concerns with EDF as well as
19 the CalFed process is the issue of predation in Clifton
20 Court Forebay; is that correct?
21 MR. ROSEKRANS: Yes.
22 MR. HERRICK: Would you conclude that if the state
23 pumps draw water into Clifton Court Forebay and there is
24 high predation in there, the operation of those pumps may
25 have a direct causal affect on that population of fish?
CAPITOL REPORTERS (916) 923-5447 11668
1 MR. ROSEKRANS: That would be true to the extent that
2 we would otherwise expect those fish to survive the salvage
3 process.
4 MR. HERRICK: Of course, there are other things going
5 on that threaten fish species; is that correct?
6 MR. ROSEKRANS: Yes.
7 MR. HERRICK: The question here is the extent of the
8 affect of those pumps on the various fish population; is
9 that true?
10 MR. ROSEKRANS: That's correct.
11 MR. HERRICK: Would you agree, then, that -- would you
12 have any doubt that there is a direct causal relationship
13 between export pumps and fish populations, but that the
14 level of that direct relationship is yet to be determined?
15 MR. BIRMINGHAM: Objection. This is a question that
16 falls outside the scope of this witness' expertise.
17 C.O. STUBCHAER: Overruled.
18 MR. ROSEKRANS: Yes. It's the degree of affect on
19 fisheries that is really the subject, not whether there is
20 an effect or not.
21 MR. HERRICK: Now, Mr. Rosekrans, you also talked about
22 your unfamiliarity with the other specific effects of the
23 pumps in the South Delta just recently in answer to one of
24 my questions; is that true?
25 MR. ROSEKRANS: I thought you were leading somewhere
CAPITOL REPORTERS (916) 923-5447 11669
1 else. Yeah.
2 MR. HERRICK: Is it your understanding that the
3 operation of the export pumps cause reverse flows in Delta
4 channels?
5 MR. BIRMINGHAM: Objection. Asked and answered.
6 C.O. STUBCHAER: Sustained.
7 MR. HERRICK: May I comment? I don't mean to waste the
8 Board's time. I asked about the one stretch of the main
9 stem of the San Joaquin River and reverse flows.
10 C.O. STUBCHAER: And Old River.
11 MR. HERRICK: And Old River, too.
12 C.O. STUBCHAER: And Old River between the state and a
13 federal pumps.
14 MR. HERRICK: That section between the two pumps and
15 the main stem.
16 C.O. STUBCHAER: And upstream. Anyway --
17 MR. HERRICK: I will move on. I'm sorry.
18 Mr. Rosekrans, are you aware of whether or not the
19 state and federal export pumps have an affect on the water
20 quality in the South Delta?
21 MR. ROSEKRANS: Yes, they do.
22 MR. HERRICK: Is that an adverse effect or positive
23 effect?
24 MR. BIRMINGHAM: Objection. Lacks foundation.
25 C.O. STUBCHAER: Could you restate the question? Ask
CAPITOL REPORTERS (916) 923-5447 11670
1 about what a positive or negative effect.
2 MR. HERRICK: Mr. Rosekrans, I started out this line of
3 questioning by saying I wanted you to assume no barriers in
4 place. Is it your understanding that the effects of the
5 export pumps can cause stagnate or null zones in certain
6 South Delta channels?
7 MR. ROSEKRANS: Yes.
8 MR. HERRICK: Is it your understanding that as a result
9 of those null zones is a worsening of water quality?
10 MR. ROSEKRANS: Yes.
11 MR. HERRICK: Related to water quality is a dissolved
12 oxygen issue. Are you aware of a dissolved oxygen problem
13 on the main stem of the San Joaquin River near Stockton?
14 MR. BIRMINGHAM: Objection. Compound.
15 C.O. STUBCHAER: Do you understand the question?
16 MR. ROSEKRANS: I thought he asked me one question. He
17 said -- he asked me if I was aware of dissolved oxygen.
18 MR. BIRMINGHAM: He asked two questions, Mr.
19 Stubchaer. He asked the question -- may I ask the question
20 be reread?
21 MR. HERRICK: Just to speed things up, I will reask
22 it.
23 Mr. Rosekrans, are you aware that there is a dissolved
24 oxygen problem on the main stem of the San Joaquin River
25 near Stockton?
CAPITOL REPORTERS (916) 923-5447 11671
1 MR. ROSEKRANS: Yes. I believe the Board addressed it
2 in their EIR.
3 MR. HERRICK: Are you aware of whether the export pumps
4 have an affect on that dissolved oxygen problem?
5 MR. ROSEKRANS: Yes, I believe that is true.
6 MR. HERRICK: Another area deals with -- let me back
7 up.
8 Mr. Rosekrans, are you aware of export pumps can affect
9 water levels in the South Delta?
10 MR. ROSEKRANS: Yes.
11 MR. HERRCIK: Is that effect a lowering of the water
12 levels?
13 MR. ROSEKRANS: Yes.
14 MR. HERRICK: Would you want all of these issues that
15 deal with the affect of the export pumps to be addressed
16 before additional export pumping occurs under joint point?
17 MR. ROSEKRANS: Yes. My concern, generally, for the
18 fisheries, but I did not mean to exclude the effects on the
19 channels in the South Delta, including those to Mr.
20 Herrick's clients.
21 MR. HERRICK: This is risky to ask. Do you think that
22 the CalFed process should be allowed to resolve those
23 issues? Or do you think the Board should resolve them
24 through this hearing?
25 MR. BIRMINGHAM: Objection. Asked and answered.
CAPITOL REPORTERS (916) 923-5447 11672
1 C.O. STUBCHAER: Sustained.
2 MR. HERRICK: Mr. Rosekrans, let me explore your,
3 EDF's, position on what water may be exported under joint
4 point. Okay.
5 It is my understanding, correct me if I am wrong, from
6 your testimony you believe that a level of water -- the
7 level of water for exports allowed under 95-6 should be
8 allowed to continue; is that true or is there some
9 qualification?
10 MR. ROSEKRANS: The level of joint point of diversion?
11 MR. HERRICK: Yes.
12 MR. ROSEKRANS: Again, I would qualify that joint point
13 in our view should not be used to make up for any impacts to
14 Central Valley Project contractors as a result of
15 implementing the AFRP actions implemented in Interior's
16 November '97 decision.
17 MR. HERRICK: I believe you said, and correct me if I
18 am wrong, you are referring to (b)(1) and (b)(2) effects,
19 not effects separate from that with regard to AFRP?
20 MR. ROSEKRANS: That's correct.
21 MR. HERRICK: Let me explore that. Earlier in these
22 hearings, I will make this a hypothetical in case you don't
23 or weren't here to hear that. If, hypothetically, the
24 Bureau is extending the 31-day pulse flow for, let's say,
25 three months, do you believe that -- hypothetically, the
CAPITOL REPORTERS (916) 923-5447 11673
1 Bureau is extending the 31-day pulse flow period for that 31
2 days. The export restrictions are held in place during that
3 initial 31 days, but they ramp up after that.
4 In your opinion, should the Bureau be able to export
5 that additional fishery flow water that is released beyond
6 the 31 days?
7 MR. ROSEKRANS: This sounds like this could be at a
8 level without -- they could export using their own pumps or
9 using the state pumps?
10 MR. HERRICK: Either.
11 MR. ROSEKRANS: Since the water is purchased with
12 restoration funds or public funds, then if that water is
13 essentially picked up by the exporter, we believe -- well,
14 we believe that either the water should be designated as
15 outflow to serve environmental purposes or it should be, if
16 there is no designated purpose, it should be sold to the
17 exporter and that money put back into an environmental
18 fund.
19 MR. HERRICK: What would be your understanding of the
20 purpose of an extended pulse flow on the San Joaquin River?
21 What is that water for?
22 MR. BIRMINGHAM: Objection. Mr. Herrick started off
23 this line of questioning by making this hypothetical. Now
24 he is asking this witness the basis of the hypothetical or
25 the purpose of his hypothetical. The question calls for
CAPITOL REPORTERS (916) 923-5447 11674
1 speculation, or alternatively the question lacks
2 foundation.
3 C.O. STUBCHAER: I am going to sustain the objection.
4 MR. HERRICK: What is the purpose of a 30-day pulse
5 flow pursuant to the 1995 Water Quality Control Plan?
6 MR. ROSEKRANS: To move juvenile salmon down the San
7 Joaquin River and past the export pumps.
8 MR. HERRICK: Are you aware of the Bureau trying to
9 extend that pulse flow period beyond the 31 days?
10 MR. ROSEKRANS: Interior's -- one of Interior's Delta
11 action is a partial extension of the exports beyond that
12 time frame. I am aware of proposals or discussions in the
13 Fish and Wildlife Service which consider an extension of a
14 two- or three-month pulse flow period. I haven't heard that
15 coming from the Bureau.
16 MR. HERRICK: Based on your understanding of what
17 you've heard, what would be that purpose of that additional
18 water beyond the pulse flow period?
19 MR. ROSEKRANS: Well, young salmon do not all
20 outmigrate between April 15th and May 15th. They can come
21 earlier or they can come later. They can, and I heard some
22 discussion that for the preserving the whole range of flow
23 is important to maintain the genetic diversity in wild
24 salmon stocks.
25 MR. HERRICK: Would it be correct to conclude from that
CAPITOL REPORTERS (916) 923-5447 11675
1 answer that the purpose of the additional pulse flow is to
2 transport juvenile outmigrating salmon smolts?
3 MR. ROSEKRANS: Yes. The question was easier than I
4 thought.
5 MR. HERRICK: That purpose is to transport them past
6 the export pumps; is that correct?
7 MR. ROSEKRANS: That's correct.
8 MR. HERRICK: Does EDF have a position on whether or
9 not waters released to transport juvenile salmon smolt past
10 the export pumps should be considered abandoned at Vernalis?
11 MR. BIRMINGHAM: Objection. Asked and answered.
12 MR. HERRICK: I don't believe that one has been asked.
13 MR. TURNER: I will object as asking for legal
14 conclusion from a nonattorney.
15 C.O. STUBCHAER: I'm sorry, Mr. Turner, I couldn't hear
16 you.
17 MR. TURNER: I was objecting on the basis that he was
18 asking for a legal conclusion as to whether water is or is
19 not abandoned. I don't feel that is a matter of fact. That
20 is a question of law.
21 MR. HERRICK: Mr. Chairman, I asked him if EDF had a
22 position on whether or not it should be considered that
23 way. I think that is well within his testimony.
24 C.O. STUBCHAER: Mr. O'Laughlin.
25 MR. O'LAUGHLIN: Just briefly, the question is vague
CAPITOL REPORTERS (916) 923-5447 11676
1 and ambiguous as to the word "abandoned." Does he mean in
2 the practical physical sense or does he mean that in the
3 legal sense as one would define it when we talk about
4 abandoned water pursuant to other water right holders having
5 the ability to appropriate the water. So, I think there is
6 a distinction that has to be made, and the question is vague
7 and ambiguous. Or as Mr. Turner says, it calls for a legal
8 conclusion.
9 C.O. STUBCHAER: I think that definition of abandoned
10 water could be clarified, and then I will permit the
11 question to be answered.
12 MR. HERRICK: Let me clarify the term "abandoned
13 water."
14 For purposes of this question let's say abandoned water
15 means the purpose for which it was released has been
16 accomplished and, therefore, nobody is protecting it past
17 that point from other use by other users. Okay.
18 Let me go back and ask the same question. Does EDF
19 have a position on whether or not water released to help
20 outmigrating salmon smolts past the federal and state export
21 pumps should be considered abandoned at Vernalis and thus
22 subject to exports?
23 MR. ROSEKRANS: Yes, we do have a position.
24 MR. HERRICK: What would that position be?
25 MR. ROSEKRANS: If that water is purchased through the
CAPITOL REPORTERS (916) 923-5447 11677
1 use of restoration funds, then that water is serving a
2 public purpose and should either continue to serve a public
3 purpose in the Delta, or if no such purpose is found or
4 deemed to be significant and it is exported, then it should
5 be exported for a charge. It should be sold. It should not
6 be exported for free.
7 MR. HERRICK: No further questions.
8 Thank you very much, Mr. Chairman.
9 C.O. STUBCHAER: Thank you, Mr. Herrick.
10 Staff have any questions?
11 MR. HOWARD: No questions.
12 C.O. STUBCHAER: Board Members?
13 Any redirect, Mr. Suyeyasu?
14 MR. SUYEYASU: Can I consult?
15 C.O. STUBCHAER: Sure.
16 MR. SUYEYASU: We have no further questions.
17 C.O. STUBCHAER: Time to do the exhibits.
18 Ms. Leidigh.
19 MS. LEIDIGH: Just a moment.
20 Did you want to offer them? I think we are at a point
21 where we could deal with the exhibits.
22 C.O. STUBCHAER: Mr. Suyeyasu.
23 MR. SUYEYASU: Chairman Stubchaer, I would like to move
24 into evidence EDF Exhibit 17 and EDF Exhibit 18.
25 17 is the testimony of Spreck Rosekrans on the joint
CAPITOL REPORTERS (916) 923-5447 11678
1 point of diversion.
2 EDF 18 is a letter from Environmental Defense Fund,
3 Natural Heritage Institute, Natural Resource Defense
4 Council, Save the San Francisco Bay Association and the Bay
5 Institute to Mr. Walt Pettit.
6 C.O. STUBCHAER: Ms. Whitney, do the numbers agree with
7 your tabulation?
8 MS. WHITNEY: Yes, they do.
9 C.O. STUBCHAER: Any objections to receiving this
10 evidence?
11 Mr. O'Laughlin.
12 MR. O'LAUGHLIN: Eighteen.
13 C.O. STUBCHAER: Why?
14 MR. O'LAUGHLIN: It is hearsay. There is no testimony
15 by the witness in regards to that. The other people who
16 signed the letter have not come and testified about the
17 letter. I would move that it not be admitted.
18 C.O. STUBCHAER: Your objection is noted. The
19 opportunity was there to cross, I think.
20 Any other objections?
21 With the objection as noted, the two exhibits are
22 accepted into the record.
23 Thank you, Mr. Suyeyasu.
24 Thank you, Mr. Rosekrans.
25 MR. ROSEKRANS: Thank you.
CAPITOL REPORTERS (916) 923-5447 11679
1 C.O. STUBCHAER: Mr. Birmingham.
2 MR. BIRMINGHAM: At the risk of a great deal of
3 laughter, I would like to move for the admission of
4 Westlands Water District Exhibit 110.
5 C.O. STUBCHAER: Which is?
6 MR. BIRMINGHAM: The chart.
7 C.O. STUBCHAER: The chart that you drew with the pen?
8 MR. BIRMINGHAM: At this point it would be 110. 109
9 related to the examination of Mr. Renning which I will move
10 in later. I would like to mark for purposes of
11 identification and move to admit as Westlands Water District
12 112, the October 31, 1997, draft of the Administrative
13 Proposal for Management of (b)(2) water and as Westlands
14 water District 113 the November 19, 1997, opinion by
15 Solicitor John Leshy on the Section 3406 (b)(2) of CVPIA.
16 C.O. STUBCHAER: Any objections?
17 Mr. Jackson.
18 MR. JACKSON: I would like to object to the
19 introduction of that particular document on the grounds that
20 the opinion by Solicitor Leshy is a legal opinion of one of
21 the parties to the action, which is more appropriate for
22 closing argument and briefs. There has been no opportunity
23 to cross-examine Mr. Leshy.
24 C.O. STUBCHAER: There was reference to Mr. Leshy in
25 the direct testimony. Your objection is noted.
CAPITOL REPORTERS (916) 923-5447 11680
1 Any other objections?
2 MR. CAMPBELL: I would like to note an objection for
3 the record to the admission of Westlands Water District
4 Exhibit 110, that it is hearsay and cannot form the basis of
5 a final part of the Board.
6 C.O. STUBCHAER: So noted.
7 MR. BIRMINGHAM: And I can assure Mr. Campbell that we
8 are not going to ask the Board to make a finding that there
9 is a correlation between stork populations in Western Europe
10 in the 1930s and the birth rate at the same period.
11 MR. CAMPBELL: I am sure the Board appreciates that.
12 C.O. STUBCHAER: The objections are on the record and
13 the exhibits are accepted.
14 Next we will go to the case in chief of Tri-Valley
15 Kern-Tulare, Pixley Irrigation Districts, et al. Is Mr.
16 Conant going to handle this?
17 MR. CONANT: Yes.
18 C.O. STUBCHAER: Afternoon.
19 MR. CONANT: Afternoon.
20 ---oOo---
21 DIRECT EXAMINATION OF CROSS VALLEY CANAL CONTRACTORS
22 BY MR. CONANT
23 MR. CONANT: Thank you, Mr. Chairman and Board
24 Members. My name is Ernest Conant. I am with Young
25 Woolridge law firm. We represent Cross Valley contractors
CAPITOL REPORTERS (916) 923-5447 11681
1 in these proceedings along with Dan Dooley's firm, and Ken
2 Richardson from his office is here with us today.
3 C.O. STUBCHAER: Mr. Conant, before you get started,
4 Mr. Jackson.
5 MR. JACKSON: Mr. Stubchaer, I must have gotten the
6 direction -- I thought I was instructed by the Chairman to
7 have Trinity County here today?
8 C.O. STUBCHAER: We have Trinity County next.
9 MR. JACKSON: After this one?
10 C.O. STUBCHAER: Yes. We don't know if we will get to
11 you today, unfortunately. We recognize the problem. This
12 is the order that we agreed to last week.
13 MR. JACKSON: All right.
14 C.O. STUBCHAER: Just -- excuse me, while we are
15 interrupting you, Mr. Conant. We also have tomorrow kind of
16 a day certain, San Luis and Delta-Mendota Water Authority
17 and Westlands Water Authority.
18 Your question is do you go first?
19 MR. JACKSON: Before -- I mean, yeah.
20 C.O. STUBCHAER: No further comments. You may proceed,
21 Mr. Conant.
22 MR. CONANT: In any event, Mr. Chairman, Board Members,
23 today through the testimony of Dennis Keller, we wish to
24 generally support the positions taken by the panel yesterday
25 of the state and federal -- last week of the federal and
CAPITOL REPORTERS (916) 923-5447 11682
1 state agencies relative to joint point.
2 We also wish to provide more specific information for
3 this Board regarding the three-party contracts that exist
4 between the United States, the State of California and these
5 contractors which are dependent upon state facilities to
6 divert CVP water. And provide information relative to the
7 reliance of these Cross Valley Canal Contractors on these
8 contracts in terms of putting this water to beneficial use
9 for almost a quarter of a century now and also constructing
10 facilities based on these contracts.
11 Mr. Chairman, I don't believe Mr. Keller has been sworn
12 in.
13 That completes my opening statement.
14 C.O. STUBCHAER: Thank you.
15 (Oath administered by C.O. Stubchaer.)
16 MR. CONANT: Now, attached to Mr. Keller's testimony
17 is his resume of his qualifications, so I won't belabor that
18 point, but maybe at this point just ask Mr. Keller very
19 briefly to summarize his experience as a civil engineer and
20 his working with the Cross Valley Canal Contractors.
21 MR. KELLER: Let me state for the record that I am not
22 an expert in storks nor the thermal activity in houses in
23 Western Europe.
24 I am a registered civil engineer, a registered
25 agricultural engineer in the state of California. I have
CAPITOL REPORTERS (916) 923-5447 11683
1 been practicing in the southern San Joaquin Valley since
2 late 1970. I represent a number of public agencies, almost
3 exclusively public agencies, in the water resources field.
4 MR. CONANT: A little bit about your involvement with
5 the Cross Valley Canal Contractors.
6 MR. KELLER: Well, with these contractors I act as the
7 normal consulting engineer for Hills Valley Irrigation
8 District, the Tri-Valley Water District and Stone Corral
9 Irrigation District, which is a subcontractor to the County
10 of Tulare. I have prepared the water conservation plans for
11 all of the Cross Valley Canal Contractors with the exception
12 of Kern-Tulare Water District and Rag Gulch Water District.
13 I have reviewed and participated with their engineer in the
14 preparation, and I have worked with Kern-Tulare and Rag
15 Gulch with two of my Friant contractors on a joint
16 groundwater management plan between those four agencies, so
17 I am familiar with Kern-Tulare and Rag Gulch's operations.
18 MR. CONANT: Were you involved in the negotiation of
19 the interim renewal contracts, the three-way contracts?
20 MR. KELLER: The initial contracts, I was not. Both of
21 the interim renewal contracts for all of the Cross Valley
22 Canal Contractors I was the designated engineering
23 representative for those negotiations. So, I participated
24 for all of the Cross Valley contractors.
25 MR. CONANT: So with that, I will ask that Mr. Keller
CAPITOL REPORTERS (916) 923-5447 11684
1 summarize his written testimony.
2 C.O. STUBCHAER: Very well.
3 MR. KELLER: The Cross Valley Channel is a little bit
4 of an anomaly, one of the few major water resource in the
5 state that was financed, conceived and constructed by local
6 agencies without the assistance of the federal and state
7 government.
8 It is comprised of public agencies which are both water
9 districts as well as municipalities and two counties; those
10 being the counties of Fresno and the county of Tulare. It
11 was constructed in 1975, initially operated by the Kern
12 County Water Agency. It is now operated by a management
13 committee of the participants in lieu of the agency.
14 It is about 17 miles long and extends from the
15 California Aqueduct near Tupman to the foot of Friant-Kern
16 Canal, where the Arvin-Edison Storage District takes water
17 off the Friant Canal, and the last delivery on the federal
18 joint participation share of the Cross Valley Canal is also
19 a delivery to Arvin-Edison. It extends for a short way from
20 there to the east to serve the Coelho Water District, which
21 is a state contractor and not a part of these proceedings.
22 The canal was paid for entirely with local funds.
23 Some of those were revenue sharing funds with the counties
24 that were involved. The good majority of the funds were
25 bonded funds, so at that point in time the districts who
CAPITOL REPORTERS (916) 923-5447 11685
1 were invited to participate actually sold bonds on the
2 public market, relying on the federal contracts and the
3 three-party contract between the Department of Water
4 Resources and the U.S. Bureau of Reclamation as the security
5 for those bonds.
6 The initial contract called for water to be wheeled
7 through the Banks pumps or through the Tracy pumps and then
8 through the federal share of California Aqueduct and then
9 south of Kettleman City to be conveyed through the state
10 portion of the California Aqueduct to Tupman and then
11 delivered out of the aqueduct into the Cross Valley Canal.
12 After a period of time that was not really a workable
13 proposal for the Department of Water Resources because it
14 left idle that portion of the California Aqueduct from Banks
15 to the end of the joint share, so those contracts were
16 renegotiated; and since that point in time all of the water
17 has been conveyed from Banks to Tupman totally dedicated in
18 state space and compensation has been paid to the Department
19 on the basis of being totally in state space.
20 The interim renewal contracts were executed pending the
21 completion of the Programmatic Environmental Impact
22 Statement on CVPIA. The diversion of this water out of the
23 Delta, the existence of these contracts is laid out in the
24 no action alternative of the Programmatic Environmental
25 Impact Statement which, of course, does not have a record of
CAPITOL REPORTERS (916) 923-5447 11686
1 decision as of yet. We expect that later on this year. The
2 Cross Valley Canal diversions and the existence of those
3 contracts and the basis for the renewal of those contracts
4 is in the no action alternative in the NEPA document
5 currently being finalized at this time.
6 The deliveries of the water to the Cross Valley Canal
7 Contractors are varied. In the initial days starting in
8 1975, all of the water was on an exchange basis with the
9 Arvin-Edison Water Storage District. The water was
10 conveyed in the aqueduct down the Cross Valley Canal, and
11 then water was intercepted that was headed for Arvin-Edison
12 Water Storage District on the Friant-Kern Canal and
13 delivered to these federal contractors who participated in
14 the construction of the Cross Valley Canal. Based on a
15 disagreement, principally over the payment of environmental
16 charges, the Pixley Irrigation District and the Lower Tule
17 River Irrigation District have since withdrawn from that
18 exchange proposal. They are currently in an interim state
19 right now where they are marketing that water on the west
20 side of the San Joaquin Valley for cash and converting that
21 cash to water on the east side of the valley when water is
22 available on the east side of the valley. And there are
23 negotiations that have been initiated again on alternative
24 exchanges to again effect exchange for the water rather than
25 water for cash and cash for water.
CAPITOL REPORTERS (916) 923-5447 11687
1 The contracts total approximately 128,000 acre-feet.
2 It is not anticipated that in the future those contracts
3 will be requested to expand beyond that amount. That amount
4 is the initial amount that was conceived, and there has been
5 no request made to the Bureau of Reclamation to increase
6 that amount at this point in time.
7 I don't think I can understate the importance of this
8 supply to the contractors that exchange either for water or
9 for money. These districts are all high value crop
10 districts. To the best of my knowledge, there hasn't been
11 development in any of these districts predicated on the
12 availability of the supply. The districts were developed
13 prior to the participation in the Cross Valley Canal in
14 1975.
15 They participated for two principal reasons. The
16 nonconjunctive use districts, like Hills Valley Irrigation
17 District, Tri-Valley Water District, have participated
18 because they are high upslope districts. They have very
19 poor groundwater, not in terms of water quality but in terms
20 of quantity. In the wetter years they have adequate
21 quantity, but it passes through them because the slope, the
22 gradient of the groundwater is very steep and slides past
23 them very quickly. In the drier years, the groundwater is
24 just not there, so they purchase this capacity in the Cross
25 Valley Canal, entered into the contracts to be able to
CAPITOL REPORTERS (916) 923-5447 11688
1 sustain that position. They did so right in the throws of
2 the 1976-1977 drought when the delivery of what water they
3 could get in those years was fairly significant.
4 The other contractors are conjunctive use contractors.
5 They maximize the importation of water when it is available
6 in the winter years, sink it in the groundwater reservoir
7 and recover it for later use, particularly those districts
8 that are in this program have very low Class I quantities of
9 water available from the Friant-Kern Canal, and so depend on
10 this water to supplement their conjunctive use operations to
11 make it through those drier years.
12 The economy is obviously -- these areas are based on
13 these contracts. It was envisioned, I think maybe properly
14 so in the early days of negotiation, that these contracts
15 may be questionable in nature long-term. In other words,
16 they were there simply on the capability of the state
17 project to wheel water on a continuous basis in all years.
18 It was acknowledged that with the buildup of Southern
19 California there was a possibility in the higher demand
20 years they would have to bank water. In fact, some of these
21 districts have banked water for those dry year situations.
22 They call them artificial drought situations. In the actual
23 dry year situations, the capacity is there in the aqueduct,
24 and those are the years when these districts need that water
25 supply to the greatest extent.
CAPITOL REPORTERS (916) 923-5447 11689
1 The continuation of these programs is necessary for the
2 conjunctive use district to prevent long-term fallowing or
3 retirement of that land based on the capability of those
4 contractors to extract that bank water from the
5 underground.
6 This is fairly short testimony because it, hopefully,
7 is pretty much to the point.
8 The contractors have evaluated the alternatives that
9 were on the table originally, have commented in the
10 environmental phase, and objected to being left out of the
11 no action alternative because the deliveries have existed
12 since 1975. We've reviewed the situation under CEQA. The
13 environmental impacts, if there are any that are there, are
14 recognized as being in the no action alternative. They have
15 been a part of the export pumping now for a quarter of a
16 century. It is left out. We have, therefore, turned to the
17 support of Alternative 1 with the Cross Valley Canal
18 Contractors being interjected back into the process. Or in
19 the alternative, Alternative 4 which has been presented to
20 you over the last several days by the joint panel.
21 In the evaluation of Alternative 4 it obviously
22 includes this pumping which we think is covered adequately
23 in the environmental document based on the diversion of this
24 water continuously. With that, that is the close of the
25 verbal portion of the testimony.
CAPITOL REPORTERS (916) 923-5447 11690
1 C.O. STUBCHAER: Mr. Conant -- Ms. Whitney, do we need
2 to assign exhibit numbers to this testimony?
3 MR. CONANT: How do you propose to -- do you just want
4 to call this Cross Valley 1? Our other exhibits we
5 designated as -- some were submitted by Dan Dooley's office
6 and some by my office, so whatever you prefer.
7 MS. WHITNEY: We have a whole, big stack of exhibits
8 that were submitted as exhibits by Pixley Irrigation
9 District, et al., including Rag Gulch.
10 MR. CONANT: That is correct.
11 MS. WHITNEY: We do have exhibits right now being
12 defined as Cross Valley exhibits; we don't have any of
13 those. I suggest we call this Pixley, et al., Number 20 and
14 the statement of qualification will be Number 20-A.
15 MR. CONANT: Okay. Thank you.
16 C.O. STUBCHAER: Mr. Brown.
17 C.O. BROWN: Question, Mr. Keller. This is a matter of
18 interest. Where does Tipton fall into this? Are they part
19 of the Pixley? Where do they get their water?
20 MR. KELLER: The community of Tipton is in the Lower
21 Tule River Irrigation District and they extract their water
22 from the underground that is supplied by the conjunctive use
23 operations of Lower Tule.
24 C.O. BROWN: All groundwater?
25 MR. KELLER: All groundwater.
CAPITOL REPORTERS (916) 923-5447 11691
1 C.O. BROWN: Thank you.
2 C.O. STUBCHAER: Mr. Conant, does that conclude, then,
3 the direct testimony?
4 MR. CONANT: It does.
5 Thank you, Mr. Chairman.
6 C.O. STUBCHAER: Who wishes to cross-examine this
7 group?
8 Mr. Birmingham, Mr. Nomellini and Mr. Herrick.
9 Call Mr. Nomellini first.
10 ---oOo---
11 CROSS-EXAMINATION OF CROSS VALLEY CANAL CONTRACTORS
12 BY CENTRAL DELTA PARTIES
13 BY MR. NOMELLINI
14 MR. NOMELLINI: Mr. Chairman, Members of the Board,
15 Dante John Nomellini for Central Delta Parties.
16 In your testimony, Mr. Keller, you pointed out that
17 there was a or each contract has a three-party contract with
18 the United States and the Department of Water Resources. I
19 believe your testimony is that that contract is for delivery
20 of CVP water; is that correct?
21 MR. KELLER: That's correct.
22 MR. NOMELLINI: Is there any reason why the Cross
23 Valley Canal parties did not contract for State Water
24 Project water?
25 MR. KELLER: Some of the contractors that are a part of
CAPITOL REPORTERS (916) 923-5447 11692
1 this, number one, and this is my understanding of a legal
2 issue, but a water rights boundary issue also, were outside
3 of the designated place of use where State Water Project
4 could be delivered. Also, under the exchange, because these
5 entities physically were taking water which was diverted San
6 Joaquin water through the Friant-Kern Canal, and the place
7 of use for that water had to be consistent with the
8 Millerton and the Trinity permit boundaries.
9 MR. NOMELLINI: In a couple of places in your testimony
10 you indicate with the State Water Resources Control Board's
11 acknowledgement.
12 Do you recall those comments in your testimony?
13 MR. KELLER: I do.
14 MR. NOMELLINI: What form did that acknowledgement
15 take? In other words, what are you referring to right here
16 on Page 5, second paragraph? It says "with the state --
17 SWRCB's acknowledgement." What are you referring to there?
18 MR. KELLER: The actual diversions on the Cross Valley
19 Canal begin in 1975. I was not personally involved with the
20 Cross Valley diversions until the later 1970s, following the
21 death of an attorney who represented many of these districts
22 by the name of Robert Moock. After Mr. Moock's passing,
23 there were a number of, issues particularly as they related
24 to the county/federal contractors, which had not been
25 settled. The counties had taken the water as a place holder
CAPITOL REPORTERS (916) 923-5447 11693
1 position for either further M&I use or future agricultural
2 use for people who had not yet bellied up to the bar to take
3 the water.
4 So, the task was assigned to Mr. Moock's son, Peter
5 Moock, and myself to iron those issues out. At that point
6 in time, before we marketed something of the type of
7 monetary value that was associated with the physical Cross
8 Valley Canal, we asked what the basis of the water rights
9 were that backed up these contracts. We were informed at
10 that point in time that the Change Order Number 38 to the
11 Trinity permits was the device by which the Bureau felt that
12 they had the authority to divert the water at Banks in lieu
13 of Tracy. So it was on that basis that we proceeded to
14 complete the contracts for the allocation of the Cross
15 Valley supply.
16 In the middle 1980's, and I don't have the date off the
17 top of my head, but in the middle 1980s the Bureau was
18 informed that their interpretation of Change Order 38 was
19 incorrect, and that the authority was not present in Change
20 Order 38 to allow for the diversion of that water at
21 Banks. And at that time we requested of the Bureau of
22 Reclamation that they return to the Division of Water Rights
23 and apply with the Division of Water Rights for the
24 authority to divert at Banks, which the Bureau did. The
25 Bureau submitted those applications, and those applications
CAPITOL REPORTERS (916) 923-5447 11694
1 are still pending at this time.
2 There was a letter, actually a protest that was filed
3 by Mr. Pat Porgans in 1995, which objected to any further
4 diversions of Cross Valley Canal water, and I believe over
5 the signature of Mr. Anton his protest was set aside,
6 pending the outcome of these proceedings because it was
7 acknowledged that the applications had been made for those
8 diversions. And, in fact, they continue today.
9 MR. NOMELLINI: Was the notification to the Bureau that
10 their interpretation of Change Order Number 38 was not
11 correct in the form of some written document from the State
12 Water Resource Control Board?
13 MR. KELLER: To the best of my knowledge, I don't think
14 so.
15 MR. NOMELLINI: Do you know who at the State Board gave
16 such notification?
17 MR. KELLER: Not off the top of my head. I would
18 probably have it at my files in the office, but not off the
19 top of my head.
20 MR. NOMELLINI: Do you know what --
21 C.O. STUBCHAER: Mr. O'Laughlin.
22 MR. O'LAUGHLIN: Can the witness speak into the mike?
23 He goes in and out.
24 C.O. STUBCHAER: You were doing very well until you
25 turned to answer the questioners. If you move the mike over
CAPITOL REPORTERS (916) 923-5447 11695
1 to your left, it would help.
2 MR. O'LAUGHLIN: Thank you.
3 MR. NOMELLINI: Does the -- do the Cross Valley Canal
4 Contractors claim that they have the proper legal rights,
5 water rights, in place now to accomplish the water transfers
6 about which you testified?
7 MR. KELLER: I am not sure I am qualified to give a
8 legal opinion. I think that the Cross Valley Canal
9 Contractors feel that they have done all that they can do to
10 put in motion the necessary steps to be able to perfect the
11 legal right to do that. The actual process of walking
12 through the Division of Water Rights' requirements, being
13 that the Bureau is the holder of the water rights is the
14 responsibility of the Bureau. And it is not a position
15 where we supplant the Bureau in walking through that
16 process.
17 MR. NOMELLINI: Do you know whether or not the Cross
18 Valley Canal Contractors claim a first priority for use of
19 excess capacity of the state facilities for delivery of
20 federal water?
21 MR. KELLER: I don't think we've ever been put in a
22 position to make a claim, one way or another. To the best
23 of my knowledge, we have a contract. There are no other
24 contracts that are of that nature. If there was ever a
25 contract, I guess it would put it to test, whether or not
CAPITOL REPORTERS (916) 923-5447 11696
1 there was a first or second or equal.
2 MR. NOMELLINI: If there was capacity made available in
3 the State Water Project facilities that could be used for
4 makeup pumping to supply water to the Westlands Water
5 District and that meant there was insufficient capacity to
6 supply water to the Cross Valley Canal Contractors, do you
7 know whether or not the position of your clients is that
8 that, in fact, would be an appropriate allocation of that
9 available capacity?
10 MR. KELLER: I know what my feeling would be, but I
11 can't tell you what the feeling of my clients would be. The
12 question hasn't been posed to them.
13 MR. NOMELLINI: You indicated that these contracts, the
14 Cross Valley Canal Contractors' contracts initially came
15 into being in 1975?
16 MR. KELLER: That's correct.
17 MR. NOMELLINI: You testified that the quantity of
18 water involved in the contraction was 128,000 acre-feet?
19 MR. KELLER: 128,003 is the exact number.
20 MR. NOMELLINI: Have conservation measures by the Cross
21 Valley Canal Contractors since 1975 reduced their demand in
22 any way?
23 MR. KELLER: I would have to say no. Most of the
24 entities in the Cross Valley group are on solid set
25 irrigation systems. There have been changes in the nature
CAPITOL REPORTERS (916) 923-5447 11697
1 of those irrigation practices over the years, but I would
2 have to say that most of the changes in the irrigation
3 practices have probably been justified, based on additional
4 yield of the crops versus conversation water. I haven't
5 seen less water being used as a result of their conservation
6 measures, but increases in crop yield as a result of the
7 changes.
8 MR. NOMELLINI: That is all I have.
9 Thank you very much.
10 C.O. STUBCHAER: Thank you, Mr. Nomellini.
11 Mr. Herrick.
12 ---oOo---
13 CROSS-EXAMINATION OF CROSS VALLEY CANAL CONTRACTORS
14 BY SOUTH DELTA WATER AGENCY
15 BY MR. HERRICK
16 MR. HERRICK: Thank you, Mr. Chairman, Board Members.
17 John Herrick for South Delta Water Agency.
18 I just have a couple questions.
19 Could you describe again what water marketing is going
20 on with the water that is being delivered to you through the
21 state pumps?
22 MR. KELLER: There is only water marketing relative to
23 two contractors at the current time. The position that the
24 Lower Tule River Irrigation District and the Pixley
25 Irrigation District are in right now is that they have
CAPITOL REPORTERS (916) 923-5447 11698
1 terminated the Memorandum of Understanding with the
2 Arvin-Edison Water Storage District and in doing so that was
3 their exchange capability for the water supply, direct
4 physical capability. So they are diverting their allocation
5 of water out of the Delta and delivering it to identified
6 growers on a short-term contract basis which are within
7 Westlands Water District in the interim until they perfect
8 another exchange agreement. They sell that water for cash,
9 bank the cash and then in the years, for instance, like last
10 year when there is additional water to purchase off of
11 Friant system over and above the contract demands of the
12 Friant contractors, then they take that cash and purchase
13 water and deliver it to their growers. That is an interim
14 position.
15 MR. HERRICK: I apologize. I was out of the room when
16 you started; maybe you covered this. But prior to this
17 interim agreement, I will say, the water to those two
18 districts was being sold to Arvin-Edison; is that correct?
19 MR. KELLER: It is not sold to Arvin-Edison. There is
20 a swap arrangement. Arvin-Edison has a Class I and a Class
21 II contract. All of the contractors have a balancing
22 agreement with Arvin-Edison that involves receiving a
23 portion of their Class I and a portion of the Class II, and
24 that apportionment included Lower Tule and Pixley.
25 MR. HERRICK: But the water that they were previously
CAPITOL REPORTERS (916) 923-5447 11699
1 exchanging with Arvin-Edison is now being sold to Westlands;
2 is that correct?
3 MR. KELLER: Sold to specific growers within Westlands.
4 MR. HERRICK: Do the various contractors with the Cross
5 Valley Canal Contractors group, do they have groundwater
6 management plans that deal with transfers of water, put
7 limits on transfers of water?
8 MR. KELLER: All of the contractors that are here have
9 groundwater management plans either under AB 255 or AB 3030,
10 and they do put restrictions -- number one, they put
11 restrictions on what growers can do and they put
12 restrictions on what the districts themselves can do
13 relative to their surface supplies.
14 MR. HERRICK: Have the parties whom you represent done
15 any analysis on whether or not the amounts exported have any
16 incremental affect on water levels in the South Delta?
17 MR. KELLER: As individual contractors, no. Not that
18 I am aware of.
19 MR. HERRICK: Is it your position that that analysis
20 has been done in the Chapter XIII for the DEIR supporting
21 the alternatives in these hearings?
22 MR. KELLER: That is correct.
23 MR. HERRICK: Would that be the same for any potential
24 incremental affect for salinity in the South Delta?
25 MR. KELLER: To the best of my knowledge.
CAPITOL REPORTERS (916) 923-5447 11700
1 I am backing up to answer your first question. There
2 hasn't been anything done independent with respect to that
3 issue.
4 MR. HERRICK: Thank you.
5 Have the entities represented by the Cross Valley Canal
6 Contractors done any separate analysis with regard to the
7 effects of the flows on the San Joaquin River resulting from
8 the exports to them?
9 MR. KELLER: The only time that any additional effort
10 was done was during the dry year period when we looked at
11 the purchase of some Northern California water and wheeling
12 that water through the Delta and diverting that which was
13 not accomplished and those studies were not completed.
14 Those are the only actions.
15 MR. HERRICK: I have no further questions.
16 C.O. STUBCHAER: Thank you, Mr. Herrick.
17 Let's take our afternoon break now, 12-minute break.
18 (Break taken.)
19 C.O. STUBCHAER: We will call the hearing back to
20 order.
21 Mr. Birmingham.
22 MR. BIRMINGHAM: Six questions at the most.
23 C.O. STUBCHAER: How long? How compound?
24 MR. NOMELLINI: Give him your marker, anyway.
25 ---oOo---
CAPITOL REPORTERS (916) 923-5447 11701
1 CROSS-EXAMINATION OF CROSS VALLEY CANAL CONTRACTORS
2 BY WESTLANDS WATER DISTRICT AND
3 SAN LUIS AND DELTA-MENDOTA WATER AUTHORITY
4 BY MR. BIRMINGHAM
5 MR. BIRMINGHAM: Mr. Keller, my name is Tom Birmingham.
6 I am an attorney that represents Westlands Water District
7 and the San Luis and Delta-Mendota Water Authority in these
8 proceedings. I have a few questions for you.
9 Implementation of the Endangered Species Act and the
10 Central Valley Project Improvement Act have reduced the
11 quantity of water which the Central Valley Project can
12 export from the Delta to deliver to its contractors south of
13 the Delta.
14 MR. KELLER: Understood.
15 MR. BIRMINGHAM: Is that correct?
16 MR. KELLER: Correct.
17 MR. BIRMINGHAM: The joint point of diversion will
18 allow the Central Valley Project to recover some of the
19 water it has lost and has historically been supplied to the
20 contractors south of the Delta?
21 MR. KELLER: Some of the alternatives do.
22 MR. BIRMINGHAM: I am putting on the overhead projector
23 Department of the Interior 10-D. Drawing your attention,
24 Mr. Keller, to Alternative 4, under Alternative 4 deliveries
25 to contractors south of the Delta will be increased by
CAPITOL REPORTERS (916) 923-5447 11702
1 approximately 100,000 acre-feet; is that correct?
2 MR. KELLER: Say that again. As compared to what?
3 MR. BIRMINGHAM: As compared to Alternative 2,
4 implementation of Alternative 4 would result in increased
5 deliveries to contractors south of the Delta by
6 approximately 100,000 acre-feet?
7 MR. KELLER: Now that I see your basis, yes.
8 MR. BIRMINGHAM: Drawing your attention to Alternative
9 5, implementation of Alternative 5, when compared to
10 Alternative 2, will result in increased deliveries to
11 contractors of approximately 135,000 acre-feet?
12 MR. KELLER: Correct.
13 MR. BIRMINGHAM: Excuse me, I lost my questions.
14 You testified, Mr. Keller, that you did a comparison of
15 alternatives that are described in the Draft Environmental
16 Impact Report?
17 MR. KELLER: That's correct.
18 MR. BIRMINGHAM: Isn't it correct that Alternative 4
19 and Alternative 5 have no significant differences in terms
20 of their impact on the environment?
21 MR. KELLER: That is what was stated.
22 MR. BIRMINGHAM: From a water supply perspective, Mr.
23 Keller, Alternative 5 is a preferable alternative when
24 compared to Alternative 4?
25 MR. KELLER: It's preferable if the recovered water is
CAPITOL REPORTERS (916) 923-5447 11703
1 used to -- I guess it is preferable whether the water is
2 used to restore contract quantities that have resulted from
3 the impacts or used for environmental purposes. It's
4 preferable from both standpoints.
5 MR. BIRMINGHAM: And if the environmental effects of
6 Alternative 4 -- let me restate the question.
7 If the environmental effects of Alternative 5 are no
8 greater than Alternative 4, the parties who you are
9 representing here today would have no objection to the
10 adoption of Alternative 5?
11 MR. KELLER: No.
12 MR. BIRMINGHAM: They would have no objection?
13 MR. KELLER: They would not.
14 MR. BIRMINGHAM: Thank you very much.
15 C.O. STUBCHAER: Thank you, Mr. Birmingham.
16 Staff have any questions of Mr. Keller?
17 MR. HOWARD: No questions.
18 MS. LEIDIGH: No questions.
19 C.O. STUBCHAER: Board.
20 C.O. BROWN: I have a few clarifying questions.
21 C.O. STUBCHAER: Mr. Brown.
22 ---oOo---
23 CROSS-EXAMINATION OF CROSS VALLEY CANAL CONTRACTORS
24 BY BOARD MEMBERS
25 C.O. BROWN: Coelho Water District gets their water in
CAPITOL REPORTERS (916) 923-5447 11704
1 part from the Cross Valley Canal?
2 MR. KELLER: Actually, they get a small allocation off
3 the Kern River. They exchange water off the Kern River for
4 State Project water, but they are a State Project
5 contractor.
6 There are a number of State Project -- in fact, the
7 Cross Valley Canal was conceived originally to be only for
8 state project water. And there was some economic problems
9 when they put the whole thing together, and they requested
10 partners. They went out and solicited partners, and that is
11 how the federal participants came to be. They came into the
12 project Johnny-come-latelies, if you will, invited
13 Johnny-come-latelies. Late in the process they redesigned
14 the canal to accommodate delivery of the 128,003 to
15 Arvin-Edison. But they weren't in the original design.
16 C.O. BROWN: It is an exchange process that they work
17 with --
18 MR. KELLER: Well, Coelho takes their water two
19 different ways. They take some of it direct delivery. Some
20 of it they take --
21 C.O. BROWN: Off the channel?
22 MR. KELLER: Off the Cross Valley Canal. There is a
23 siphon that goes under the delivery from the foot of
24 Friant-Kern Canal to Arvin-Edison. That goes under the Ken
25 River and goes to Arvin-Edison's facilities. The Cross
CAPITOL REPORTERS (916) 923-5447 11705
1 Valley Canal extension for Coelho goes under that Arvin
2 delivery. They pump the water up to the east, and they
3 deliver part of it to Coelho, part to other Kern River
4 pre-14 water rights holders. They intercept those water
5 rights that the pre-14 holders have and divert it off the
6 Kern River higher as an economic issue, just to save pumping
7 cost.
8 C.O. BROWN: Does Rosedale get water from --
9 MR. KELLER: Rosedale can get water off Cross Valley.
10 C.O. BROWN: There was a question of conservation asked
11 by one of the attorneys. In the conservation program that
12 Rosedale has out there, had for several years of groundwater
13 recharge, which is quite significant, I believe.
14 MR. KELLER: It is. And it is all made possible by the
15 Cross Valley Canal.
16 C.O. BROWN: The other question on the conservation
17 measures is that -- does the Corcoran clay extend that far
18 over or is it --
19 MR. KELLER: The Corcoran clay impacts Pixley, Lower
20 Tule westerly of Highway 99, generally in that area. The E
21 clay layer is on the Highway 99 axis. So, the westerly
22 portion of both of those districts are impacted by the
23 Corcoran clay layer.
24 C.O. BROWN: On the westerly side of the district?
25 MR. KELLER: The westerly side of districts. There are
CAPITOL REPORTERS (916) 923-5447 11706
1 two Tulare County subcontractors, Atwell Island Water
2 District and Alpar Irrigation District that are at the
3 southeast corner, if you will, of the historic Tulare Lake
4 that are affected by the Corcoran clay. All their wells are
5 drilled below on the Corcoran clay layer and not perforated
6 until 700, 750 feet.
7 C.O. BROWN: If you have mostly solid set systems, you
8 probably have little runoff; is that correct?
9 MR. KELLER: Well, there is rainfall runoff, but in
10 terms of --
11 C.O. BROWN: From irrigation?
12 MR. KELLER: No. In fact, even control the leaching
13 fraction. The leaching fraction is very controlled.
14 C.O. BROWN: The last question on the conservation
15 measures: If there is no tailwater, the only other water to
16 be conserved past consumptive use is what leaches down past
17 the root zone. And then the question is, does that go into
18 a usable groundwater basin?
19 MR. KELLER: In all the cases -- Hills Valley and
20 Tri-Valley have a joint groundwater management plan with
21 Orange Cove Irrigation District. They are underground feeds
22 into Orange Cove. Sausalito and Pixley and Lower Tule are
23 in what is called the Deer Creek and Tule River Authority.
24 They have a joint groundwater management plan.
25 So, any leaching fraction accrues back to another
CAPITOL REPORTERS (916) 923-5447 11707
1 member of those various groups. Their groundwater
2 management plan addresses that.
3 C.O. BROWN: There is not much opportunity, then, for
4 any additional conservation, is there?
5 MR. KELLER: It's really -- it is a management of
6 shortages more than anything.
7 C.O. BROWN: That is all I have, Mr. Chairman.
8 C.O. STUBCHAER: Thank you, Mr. Brown.
9 Thank you, Mr. Keller.
10 Again, do you wish to offer your exhibits now? We may
11 need to clarify the status of some of the exhibits.
12 Ms. Whitney, or Ms. Leidigh.
13 Excuse me, do you have redirect?
14 MR. CONANT: No redirect.
15 MS. WHITNEY: I think we have settled that during the
16 break. Everything is okay.
17 C.O. STUBCHAER: Fine.
18 MR. CONANT: At this point I would move to offer
19 Pixley, et al., Exhibits 1 through 7 and 16 through 28 and
20 Rag Gulch, et al., 1, 2 and 3. And those are the exhibits
21 that are identified in Mr. Keller's testimony.
22 C.O. STUBCHAER: Any objections to receipt of these
23 exhibits?
24 Seeing none, they are accepted.
25 Thank you, Mr. Conant, Mr. Keller and Mr. Richardson.
CAPITOL REPORTERS (916) 923-5447 11708
1 Now move on to the case in chief of County of Trinity.
2 Mr. Jackson, are you representing the County of
3 Trinity?
4 MR. JACKSON: I am appearing specially for County of
5 Trinity for purposes of this. The opening statement,
6 however, will be given by Mr. Whitridge, and then the
7 testimony will be given by Mr. Stokely.
8 C.O. STUBCHAER: Afternoon, gentlemen.
9 ---oOo---
10 DIRECT TESTIMONY OF COUNTY OF TRINITY
11 C.O. STUBCHAER: I believe you took the oath last time?
12 MR. STOKELY: Yes.
13 MR. WHITRIDGE: Yes.
14 I am Arnold Whitridge, representing Trinity County
15 again, which is the county of origin of average 980,000
16 acre-feet per year of Central Valley Project water over the
17 past 34 years.
18 It seems reasonable to wonder how much more water might
19 be pumped from the Delta if the joint points of diversion
20 are approved in some form. And it seems unreasonably
21 difficult to find a straight answer to that question in the
22 materials that have been submitted by the petitioners.
23 I gather that they're quite a few operational details
24 yet to be developed for the joint points operations and
25 implementation, and I gather that there isn't actually
CAPITOL REPORTERS (916) 923-5447 11709
1 agreement on how to count or what to count when trying to
2 determine increases of CVP water pumping. As a general
3 policy matter, Trinity County opposes the approval of the
4 proposal which has so many components and specifics yet to
5 be developed.
6 In this case Trinity County's interest is in possible
7 impacts of joint points of diversion proposals on Trinity
8 River and Trinity Lake. And we assume that the ballpark
9 figure of something like 250,000 acre-feet of water might be
10 pumped or exported from the Delta if the joint points are
11 approved and could be if they weren't approved.
12 Your DEIR and the materials submitted by the
13 petitioners predict and disclose impacts of the joint point
14 operations on upstream reservoirs, except no impacts are
15 discussed or disclosed regarding Trinity Reservoir.
16 Trinity Reservoir is the second largest reservoir in
17 the Central Valley Project. The Central Valley Project is
18 an integrated system. Your hearing notice, enclosure 2-B,
19 takes note that the joint points of diversion proposal would
20 require amendment of Trinity River permits, and it seems
21 likely -- it seems reasonable to expect that operations of
22 joint point, particularly if it involves increased pumping,
23 would involve this significant upstream reservoir, and yet
24 your DEIR and the materials from the petitioners have no
25 information at all about possible impacts to Trinity
CAPITOL REPORTERS (916) 923-5447 11710
1 Reservoir.
2 This concerns us because the North Coast Regional
3 Quality Control Board has adopted temperature objectives for
4 the Trinity River which are recognized by the Regional Board
5 and by you and federal EPA's Clean Water Act standards.
6 Effects on reservoir levels would certainly affect reservoir
7 temperatures and the ability to meet the standards. And not
8 only is there no impacts given, but there is no discussion
9 given at all.
10 So, we believe you are not in a very good position to
11 consider, much less safeguard, public trust uses or
12 beneficial uses of water in the Trinity Basin that might
13 result from approval of the joint point of diversion
14 proposal.
15 Secondly, as you know from our earlier testimony,
16 Central Valley Project diversions from the Trinity River may
17 decrease significantly in the near future. To recapitulate
18 briefly, the 12-year flow study that has been conducted by
19 Fish and Wildlife Service and the Hupa Valley Tribe have
20 recommended in draft form, and are finishing a final with no
21 changes that I know about, that diversions from the Trinity
22 River be -- well, actually they are proposing in-stream
23 flows in the Trinity River be increased by an average of
24 255,000 acre-feet per year, which would tend to require the
25 reduction of Central Valley Project diversions by a similar
CAPITOL REPORTERS (916) 923-5447 11711
1 amount over time.
2 This proposal is featured as the proposed action in a
3 multi-year, multi-million dollar impact
4 statement/Environmental Impact Report being prepared by the
5 Fish and Wildlife Service, the Bureau of Reclamation, the
6 Hupa Valley Tribe and Trinity County. And this information
7 is not in dispute. It was not challenged when we presented
8 it to you before. It remains untouched in our redacted
9 Exhibits 1 and 15, and regarded as a commonly acknowledged
10 fact.
11 And so, the potential significant reduction on the
12 order of 255,000 acre-feet is what we call, now that we have
13 called your attention to it, a reasonably foreseeable
14 possibility. It seems inappropriate for petitioners or you,
15 in order to make a decision, to overlook or ignore that
16 reasonably foreseeable possibility. Restoration of the
17 Trinity River, as we discussed before, is required,
18 apparently required, by numerous repeated Congressional
19 directions as shown in our exhibits: Trinity River Act of
20 1955, the Public Law 98451 in 1984 and CVPIA, we excerpted
21 the relative parts in our exhibits.
22 Restoration, the proposal has been developed, is being
23 developed and paid for by two Interior agencies. It seems
24 to be required. Restoration, in general, and the flow
25 proposal, flow study recommendation appear to be required by
CAPITOL REPORTERS (916) 923-5447 11712
1 federal trust responsibilities to downstream Indian tribes.
2 And those responsibilities are discussed at length in the
3 Interior Solicitor's opinions, which are part of our
4 exhibits. And restoration seems to be required by any
5 reasonable interpretation of Water Code Sections 11460,
6 10505 and Fish and Game Code 5937.
7 Surely, a reasonably foreseeable arrangement which may
8 decrease Central Valley Project water supplies is something
9 that needs to be taken into account when you are trying to
10 evaluate a joint point of diversion proposal which might
11 increase Central Valley Project needs by 250,000 acre-feet.
12 So, from Trinity's point of view, the environmental
13 documentation that has been prepared and presented today on
14 the joint point is not adequate. We have brought a little
15 piece of good news because, as regards to the Trinity
16 deficiencies, at least, we have an idea, which is that if
17 you end up approving some form of a joint point of diversion
18 proposal, you should include mitigation measures up front.
19 And we think it would be improper to approve joint point of
20 diversion and expect to include any mitigation measures
21 later.
22 You could protect your ability to understand, consider
23 and eventually safeguard Trinity County public trust assets
24 and beneficial uses if you take four mitigation measures.
25 Firstly, we recommend, as we did before, that you amend the
CAPITOL REPORTERS (916) 923-5447 11713
1 Bureau of Reclamation diversion permits from the Trinity to
2 increase the required instream flow in the Trinity River
3 from the 120,500 acre-feet, acre-feet per year, which are
4 now required to the 340,000 acre-feet which, in fact, is now
5 the practice.
6 Secondly, we recommend or request that you incorporate
7 compliance with the North Coast Basin Plan temperature
8 objectives into the Bureau of Reclamation water permits.
9 Thirdly, we ask that you adopt minimum carryover
10 storage criteria for Trinity Lake to help ensure compliance
11 with the temperature objectives during the next major
12 drought. This seems especially important to me if the joint
13 points of diversions would, in fact, increase CVP usage or
14 Delta exports. Because, as we testified before, there are
15 minimum storage criteria in effect on Shasta Lake. The
16 existence of those simultaneously with the absence of any
17 criteria on Trinity Lake already forces, tends to force the
18 Bureau to draw down Trinity Lake more severely in times of
19 drought to the detriment of endangered fish, which, in fact,
20 we have, and other beneficial uses.
21 So, a minimum carryover storage criteria in Trinity
22 Lake would help keep us alive. Finally, we ask again that
23 you commit to hold a separate Trinity Lake water right
24 proceeding after the Interior Secretary makes a final
25 Trinity River flow decision. Because we suggest that prior
CAPITOL REPORTERS (916) 923-5447 11714
1 to that decision you have a very difficult time
2 understanding the affects of your decision even on the Delta
3 on the joint points, and you have a difficult time
4 understanding what water is available and what the impacts
5 would be on your actions here out there.
6 Thank you very much.
7 C.O. STUBCHAER: Thank you, Mr. Whitridge.
8 MR. BIRMINGHAM: Mr. Stubchaer, did I understand that
9 Mr. Whitridge's statement was a policy statement?
10 C.O. STUBCHAER: Opening statement.
11 MR. JACKSON: Opening statement.
12 Mr. Stokely.
13 MR. STOKELY: Thank you. Mr. Chairman, Members of the
14 Board. I am Tom Stokely, appearing on behalf of Trinity
15 County.
16 A revised statement of my qualifications is Exhibit
17 Trinity County 13-A. The purpose of my testimony is to help
18 demonstrate that there is not as much surplus CVP water as
19 previously thought, if there is any surplus at all. If
20 there is an approval of joint point of diversion for the
21 state and federal projects that would allow use of surplus,
22 so-called surplus, CVP water that may not exist or is less
23 than previously thought, that we believe, I believe that the
24 State Board should reexamine its modeling assumptions and
25 perform some additional runs to better demonstrate potential
CAPITOL REPORTERS (916) 923-5447 11715
1 impacts to beneficial uses of the Trinity River as well as
2 the Delta and the Central Valley.
3 I might add that the CVP overobligation is mentioned in
4 Westlands Exhibit 10, testimony of Thomas Boardman, although
5 it may be in reference in part to CVP pumping restrictions
6 rather than that supply problem.
7 The main focus of my testimony is to discuss my
8 experience with the PROSIM, the temperature model that
9 stands for project simulation. It is a planning model that
10 the Bureau of Reclamation is using right now for development
11 of the programmatic EIS for the Central Valley Improvement
12 Act as well as the Trinity River main stem restoration
13 environmental impact statement and report of which Trinity
14 County is the CEQA lead agency along with the Bureau of
15 Reclamation, Fish and Wildlife Service and Hupa Valley Tribe
16 as the NEPA co-lead.
17 I am the county's representative for the EIR project.
18 We have a project team consisting of all the leads, as well
19 as technical team leaders for various issue areas such as
20 fisheries, water operations, wildlife and wetlands. The
21 EIS/EIR has been in preparation since late 1994, so we are
22 going on a fifth year of environmental review. It's been a
23 while. In July of 1998 we had completed most of our PROSIM
24 analysis. And, again, the PROSIM model looks at the water
25 operations of the Central Valley Project. So it is the
CAPITOL REPORTERS (916) 923-5447 11716
1 basis for a number of other analyses, such as power supply,
2 fishery, temperature needs, economic analyses. And we had
3 completed the PROSIM analyses as of July 1998. We had
4 expected to release a draft, public draft, EIS/EIR in
5 September of last year, and then we were subsequently told
6 that there was an inconsistency in the PROSIM model that
7 resulted in less water being available than was previously
8 thought.
9 And this model, again, is used for the Trinity EIS/EIR
10 as well as the programmatic EIS on CVP, so it is -- in July
11 of 1998 when we were preparing our documents, we basically
12 made a management decision that we had to redo our impact
13 analysis because the model upon which we were basing
14 assumptions of Central Valley Project water supplies had an
15 error in it. The extent of the problem, as I was told,
16 looking at the 70-year period that is used for PROSIM
17 modeling, it averages about a hundred thousand acre-feet a
18 year.
19 Essentially, there would be less water available than
20 thought. And during the critically dry period of 1928
21 through '34 this deficiency would actually manifest itself
22 as about 500- to 800,000 acre-feet less water in storage,
23 primarily in Shasta during that period, which thereby
24 increased the frequency of violating the requirements of the
25 1993 biological opinion for the winter-run. That particular
CAPITOL REPORTERS (916) 923-5447 11717
1 document generally requires a carryover storage in Shasta at
2 the end of the water year at 1.9 million acre-feet to ensure
3 that there is an adequate cold water supply for the
4 winter-run. This problem resulted in less water being
5 available in Shasta.
6 So, at any rate, now the PROSIM problem has been
7 repaired. Our alternatives are largely reanalyzed using the
8 PROSIM model. But I think one thing I wanted to point out
9 to you was that the PROSIM model, the no action alternative
10 for the Trinity EIS/EIR and the programmatic EIS for the
11 CVPIA are the same alternative. We used the same no action
12 run. We also are going to be using the same cumulative
13 impact run which includes increased Trinity River flows,
14 (b)(2) water and other actions being considered under the
15 CVPIA.
16 The change in the amount of water that is available, it
17 is my understanding, has resulted in a policy change by
18 Reclamation in terms of water deficiencies to municipality
19 and industrial water contractors.
20 I might add that on Page 2 of my written testimony it
21 says that that change will exceed maximum storage provisions
22 contained in some water contracts. I subsequently
23 understand there was no minimum deficiencies put in M&I
24 contract, but it was more of a policy call. What it amounts
25 to is that prior to this glitch in PROSIM, the
CAPITOL REPORTERS (916) 923-5447 11718
1 municipal/industrial contractors, the CVP were only to be
2 cut 25 percent. As a result of this new problem with water
3 availability, the latest model runs for no action are now
4 assuming that during the critically dry period CVP municipal
5 and industrial contractors will have been cut 50 percent, up
6 to 50 percent.
7 I might also add that actually, interestingly enough,
8 the no action alternative for the DEIS as well as the
9 Trinity EIS does not include the (b)(2) water as part of no
10 action. And it also includes, I believe, level two refuge
11 water supply.
12 At any rate, we are redoing the model runs for the
13 Trinity EIS/EIR. I believe most of the model runs have been
14 completed with the exception of the cumulative impacts run
15 which I think will be interesting to see. Because with the
16 new deficiencies and looking at all the proposed actions
17 under CVPIA, I believe that there will probably be or there
18 is a potential that there may be additional deficiencies
19 imposed again. I don't know; that is just my best guess on
20 the fact that there is not as much water available.
21 You have before you a petition for the joint point of
22 diversion for the CVP and State Water Project. After
23 reviewing your EIR we did not see any information in there
24 that would disclose what kind of effects there would be in
25 the Trinity River Basin on fishery resources, reservoir
CAPITOL REPORTERS (916) 923-5447 11719
1 levels, that kind of thing, under any of the proposed
2 alternatives. We do have temperature objectives in the
3 Trinity River for the Trinity River that are in the Water
4 Quality Control Plan for North Coast Region. That is a 56
5 degree objective for spawning and 60 degree temperature
6 objective for holding spring chinook salmon. I believe that
7 if the Board were to do a reasonable analysis of the
8 potential impacts to the Trinity River Basin that an
9 analysis of how often the various alternatives comply with
10 those temperature objectives would be a good benchmark to
11 compare your alternatives to.
12 So, at any rate, we believe that you should look at
13 that, and it appears there is a problem with the PROSIM
14 model. That is pretty much the extent of my direct
15 testimony.
16 C.O. STUBCHAER: Thank you, Mr. Stokely.
17 Who wishes to cross-examine this panel?
18 Mr. Campbell, Mr. Turner, Bureau of Reclamation,
19 Birmingham, Nomellini, Herrick.
20 C.O. BROWN: Mr. Campbell, Turner, Herrick, Birmingham,
21 Nomellini.
22 C.O. STUBCHAER: Anyone else?
23 The order will be Mr. Turner, Mr. Nomellini, Mr.
24 Campbell, Mr. Birmingham, and Mr. Herrick.
25 MEMBER FORSTER: See, when I cut you do good.
CAPITOL REPORTERS (916) 923-5447 11720
1 C.O. BROWN: Two in a row.
2 C.O. STUBCHAER: Mr. Turner.
3 ---oOo---
4 CROSS-EXAMINATION OF COUNTY OF TRINITY
5 BY THE DEPARTMENT OF THE INTERIOR
6 BY MR. TURNER
7 MR. TURNER: Thank you, Mr. Stubchaer. I just have a
8 few questions I would like to present to you, Mr. Stokely.
9 First of all, in looking at your written testimony and
10 listening to your oral presentation, I get the impression
11 that your concern is the extent to which any kind of
12 increased exports through the joint point of diversion would
13 result in increased releases from the Trinity division of
14 the CVP?
15 MR. STOKELY: That's correct. Both the increased
16 diversions from the Trinity to the CVP and what affects that
17 may have on meeting temperature requirements in the Trinity
18 River Basin.
19 MR. TURNER: Am I right in assuming that you have
20 concluded that every single acre-foot of additional water
21 that the Bureau diverts will, in fact, come from the Trinity
22 River division of the CVP?
23 MR. STOKELY: We don't know that.
24 MR. TURNER: So -- Strike that.
25 You had mentioned the Bureau is, in fact, preparing
CAPITOL REPORTERS (916) 923-5447 11721
1 along with you folks some environmental documentation as
2 required by the Central Valley Project Improvement Act
3 studying the increased releases to the Trinity River,
4 correct?
5 MR. STOKELY: That is correct. That is required by
6 Section 3406 (b)(.3) of CVPIA.
7 MR. TURNER: Is that environmental documentation not
8 analyzing the impacts of various releases from Trinity Dam
9 and the alternative flows in the Trinity River?
10 MR. STOKELY: It is looking at the proposed Trinity
11 River flow valuation study as well as several alternatives
12 to that.
13 MR. TURNER: Even in light of that, I heard you
14 recommending to the Board that the Board should be doing an
15 independent analysis in the EIR in connection with the joint
16 point of diversion analyzing what amounts to the same
17 subject, isn't it?
18 MR. STOKELY: Well, it is a different proposed action.
19 The proposed project before the State Board on the joint
20 points of diversions and the proposed action before that is
21 being contemplated under CVPIA is the Trinity River flow
22 valuation recommendation, and it is my understanding that
23 under CEQA you are supposed to evaluate the potential
24 impacts of your proposed action, and I have not seen that in
25 the State Board's Draft EIR for the joint point of
CAPITOL REPORTERS (916) 923-5447 11722
1 diversion. It may very well be that if some of the similar
2 analysis may be used or similar models with a few different
3 assumptions. Again, I don't know because I haven't seen
4 anything by the State Board's document.
5 MR. TURNER: One last question. I am not quite sure I
6 understood how the PROSIM model or the errors that were
7 included in the PROSIM model have any relationship to the
8 subject matter of this proceeding, that is the
9 implementation or utilization of the joint point of
10 diversion. Can you try and clarify that for me a little bit?
11 MR. STOKELY: The concern is that there was an error
12 found in the PROSIM model that is used for CVP modeling. I
13 don't know whether or not that is what they call an
14 inconsistency in PROSIM would translate into the DWRSIM
15 model that was used for the State Board's EIR on the joint
16 point of diversion, but I think it ought to be looked
17 into. I don't know for sure, though, that it creates a
18 problem for the Board.
19 MR. TURNER: I would have no further questions.
20 C.O. STUBCHAER: Mr. Turner.
21 Mr. Nomellini.
22 ---oOo---
23 //
24 //
25 //
CAPITOL REPORTERS (916) 923-5447 11723
1 CROSS-EXAMINATION OF COUNTY OF TRINITY
2 BY CENTRAL DELTA PARTIES
3 BY MR. NOMELLINI
4 MR. NOMELLINI: Mr. Chairman, Members of the Board,
5 Dante John Nomellini for the Central Delta Parties.
6 Mr. Stokely, in your testimony you pointed out that the
7 Draft EIR prepared by the Board staff did not analyze
8 impacts associated with Trinity Reservoir; is that correct?
9 MR. STOKELY: That's correct.
10 MR. NOMELLINI: You have pointed this out to the Board
11 previously, did you not?
12 MR. STOKELY: Yes. I can't remember whether or not
13 that was stricken, but we did point it out.
14 MR. NOMELLINI: Have there been any communication with
15 you from staff members of the Board with regard to the need
16 to analyze the impacts on Trinity Reservoir?
17 MR. STOKELY: Yes. I actually had a conversation with
18 Nick Wilcox several weeks ago when we discussed it. And he
19 basically suggested to me -- this is actually in relation to
20 Phase V in meeting the Delta salinity and dissolved oxygen
21 standards. But what he said was that since the required
22 increased flows for the Delta would be apportioned amongst
23 the Delta watersheds and not the Trinity, there was no need
24 to analyze any effects that the Trinity flow decision might
25 have on the ultimate outcome of these proceedings. I may
CAPITOL REPORTERS (916) 923-5447 11724
1 not have answered your question there.
2 MR. NOMELLINI: So, your testimony is, then, that would
3 increase the amount of water that would be exported from the
4 Delta that, therefore, a greater draw on the Trinity River
5 would be physically possible by reason of that joint point
6 of diversion?
7 MR. STOKELY: That's correct. Because the Shasta and
8 Trinity divisions are pretty well integrated.
9 MR. NOMELLINI: Therefore, in order to understand the
10 impacts of joint point of diversion alternative, that the
11 impact associated with changes in the carryover storage of
12 Trinity would have to be analyzed?
13 MR. STOKELY: Yes. And not only carryover storage, but
14 also operations. There are factors that affect temperature
15 besides carryover that are operational.
16 MR. NOMELLINI: In your testimony you state that you
17 expect the environmental analysis that is now underway with
18 regard to the Trinity to be available in approximately
19 December 1999 at the earliest?
20 MR. STOKELY: That would be at the earliest. And I
21 should correct that. The reruns of the PROSIM model have
22 taken longer than anticipated. There is no official
23 schedule right now, but my guess of the release of the
24 public draft would be sometime this fall and hopefully a
25 record of decision approximately a year from now.
CAPITOL REPORTERS (916) 923-5447 11725
1 MR. NOMELLINI: If the State Board was to rely on the
2 environmental work underway with regard to the Trinity that
3 they could not rely on a final document for more than a year
4 from today; is that correct?
5 MR. STOKELY: That is correct. I might add that the
6 State Board is considered a responsible agency under CEQA
7 for our document because we expect at some point in the
8 future there may be amendments of Reclamation's permits from
9 our process.
10 MR. NOMELLINI: In terms of the concerns I tried to
11 make a partial list; I may not have gotten them all. In
12 terms of the concerns associated with the Trinity that
13 should be addressed, you pointed out that the minimum
14 release to the Trinity has been increased from approximately
15 120,000 acre-feet per annum to 340,000 acre-feet per annum
16 on the average; is that correct?
17 MR. STOKELY: That is the fishery flow release. The
18 state permitted minimum instream flow is 120,500. The CVPIA
19 minimum flow for the fishery is 340,000 acre-feet. There
20 are times when more water is released, but it is usually
21 under a safety of dams release.
22 MR. NOMELLINI: So that is a minimum flow, not an
23 average annual flow? It is a minimum annual flow?
24 MR. STOKELY: It is a minimum and a maximum for
25 fishery. It is a minimum for all purposes.
CAPITOL REPORTERS (916) 923-5447 11726
1 MR. NOMELLINI: But the average annual impact over a
2 period of years, as you have set forth in your exhibit,
3 Trinity 2-A, may reflect a even greater increase over the
4 course of those years associated with that minimum flow
5 requirement?
6 MR. STOKELY: Well, a little history. Going back,
7 it was 120,000 acre-feet when the permits were issued and
8 the project began. Starting in the late '70s there were
9 some experimental, mid '70s, there were some experimental
10 flows which were interrupted by the drought. Then in 1981
11 the Interior Secretary made an administrative decision to
12 increase the flows to a maximum 340,000 acre-feet with
13 cutbacks in dry and critically dry years, based on inflow to
14 Shasta. Subsequently, that secretarial decision was amended
15 in '91 to be 340,000 acre-feet with the exception of '91.
16 And then in '92 CVPIA was passed, which was a federal
17 mandate to have the fishery flow be 340,000 acre-feet until
18 such time as the Hupa Valley Tribe and the Interior
19 Secretary agree on the flow study recommendation or it is
20 changed by an act of Congress or an order of the Court. If
21 the tribe and the secretary do not agree, the flows will
22 remain at 340,000 acre-feet.
23 MR. NOMELLINI: Do you know if the modeling done by the
24 State Board in the Draft EIR incorporates the increase of
25 120,000 per annum minimum fish flow to the 340,000?
CAPITOL REPORTERS (916) 923-5447 11727
1 MR. STOKELY: I don't know that for sure, but I --
2 C.O. BROWN: Correction, Mr. Chair.
3 C.O. STUBCHAER: Mr. Brown.
4 C.O. BROWN: You said 120,000. I think it is 220,000.
5 MR. NOMELLINI: The previous minimum on Trinity was
6 120,000?
7 MR. STOKELY: 120,500 acre-feet. That is the permitted
8 minimum.
9 C.O. BROWN: Then the increase.
10 MR. NOMELLINI: The increase was to --
11 MR. STOKELY: 340,000. I think he is referring to an
12 increase of 219,500.
13 C.O. STUBCHAER: Subtraction.
14 MR. NOMELLINI: The increase itself was 220?
15 MR. STOKELY: As I recall, there was a discussion in
16 the document somewhere that the Trinity flows were 340,000
17 acre-feet. But I have not seen any of the modeling to see
18 what the assumptions were.
19 MR. NOMELLINI: In addition to the change in the
20 minimum flow requirements to the Trinity, there is a
21 determination that is going to be made as to what is
22 necessary in order to maintain temperature conditions in the
23 river. Is that what your testimony is?
24 MR. STOKELY: No. The temperature requirements for the
25 Trinity River that are contained in the Water Quality
CAPITOL REPORTERS (916) 923-5447 11728
1 Control Plan for the North Coast Region are generally being
2 met already, except in some years when operational
3 constraints do not result in the temperatures being met.
4 However, it is, as I testified before and it may be stricken
5 as well, the Department of Justice in the past has taken the
6 position that unless and until the water quality objectives
7 in the Basin Plan are requirements, either through waste
8 discharge or through water permit terms and conditions, that
9 Reclamation is not required to comply with those temperature
10 objectives.
11 MR. NOMELLINI: So, then, is it your point that once
12 Reclamation is required to comply with the those temperature
13 objectives that there will be a water supply impact
14 associated with that that this Board should consider in
15 connection with the joint points of diversion alternatives?
16 MR. STOKELY: No. What I am saying is that the Basin
17 Plan temperature objectives should be a significant criteria
18 to determine whether or not Trinity River fisheries are
19 being adequately protected.
20 In our EIS/EIR what we do is we look at each
21 alternative. We determine what percentage of the time we
22 meet the Basin Plan objectives, and that is sort of
23 benchwork as to whether or not there are significant adverse
24 impacts to the fishery.
25 So what I am saying is that the State Board should
CAPITOL REPORTERS (916) 923-5447 11729
1 examine whether or not these various alternatives for the
2 joint point of diversion, what their affect is on the
3 Trinity River temperature objectives as compared to existing
4 conditions.
5 MR. NOMELLINI: So that with a joint point of diversion
6 alternative that will allow more water to be exported from
7 the Delta at a given time, the opportunity exists to lower
8 the elevation of Trinity somewhat, and that has to be
9 considered in terms of its impact on temperature
10 requirements in the river?
11 MR. STOKELY: That's correct.
12 MR. NOMELLINI: You are saying that has not been
13 analyzed because Trinity, the impacts of carryover storage
14 in Trinity were not analyzed in the Draft EIR?
15 MR. STOKELY: Correct. Not only did we not see
16 anything about carryover storage in Trinity, but we also did
17 not see a comparison of how often the temperature objectives
18 are met or not met.
19 MR. NOMELLINI: Is that the -- is the temperature
20 question the same question as the minimum carryover storage
21 criteria for Trinity?
22 MR. STOKELY: The carryover storage criteria is a
23 mechanism to assure compliance with the temperature
24 objectives. What we have seen in the past, for instance, on
25 Shasta during the drought is that if the reservoir is drawn
CAPITOL REPORTERS (916) 923-5447 11730
1 down too far, there is inadequate cold water supply to meet
2 temperature objectives. So, if there is a minimum carryover
3 storage established, it provides a better opportunity to
4 meet the temperature objectives that exist. It still isn't
5 a guarantee because you may go into a multi-year drought and
6 they may draw it down. But if you have more water in
7 storage when you begin a multi-year drought, you are going
8 to have a better chance of meeting the Basin Plan
9 temperature objectives.
10 MR. NOMELLINI: So that is really a question of meeting
11 the temperature requirement over a recurrence of a series of
12 dry years?
13 MR. STOKELY: Correct.
14 MR. NOMELLINI: Now with regard to the studies on the
15 Trinity that are underway, what fish species are being
16 addressed in those studies?
17 MR. BIRMINGHAM: Objection. Relevance.
18 C.O. BROWN: Mr. Nomellini.
19 MR. NOMELLINI: The relevance is the scope of that
20 Trinity study. If there are fish species that are not being
21 analyzed or for which we do not yet have the criteria, then
22 the possibility of a greater burden on Trinity water would
23 exist. I would like to find out whether -- what the status
24 is with regard to the needs of the various fishes on the
25 Trinity to know whether or not we have all of the concerns
CAPITOL REPORTERS (916) 923-5447 11731
1 in terms of impact on the joint point of diversion
2 alternative consideration.
3 C.O. BROWN: Overruled. Answer the question if you
4 can.
5 MR. STOKELY: We have four primary runs of fish that
6 are being considered in the flow evaluation study. The
7 main species of concern is the fall chinook salmon since
8 that is the mainstay of the tribal fishery by Hupa Valley
9 Tribe and the Yurok Tribe. That is also the species most
10 closely monitored. We also have spring-run chinook salmon
11 in the Trinity. We also have -- neither of those two are
12 currently listed, although I believe the Lower Klamath fall
13 chinook may be listed. I am not sure.
14 We also have coho or silver salmon which was in 1998
15 listed by the National Marine Fishery Service as threatened
16 species. We also have the steelhead, which is proposed for
17 listing by the National Marine Fishery Service. Those are
18 the main species of concern. There are other species that
19 are of interest to the tribes for their subsistence and
20 ceremonial species such as Pacific lamprey, but that is the
21 focal point of the flow evaluation study.
22 MR. NOMELLINI: With regard to the fall-run chinook on
23 the Klamath, has there been a formal consultation? I
24 believe you said you thought it was listed.
25 MR. STOKELY: I am not sure about the fall-run chinook,
CAPITOL REPORTERS (916) 923-5447 11732
1 but coho salmon have been listed as threatened, and it is my
2 understanding that reclamation has prepared a draft
3 biological assessment to submit to National Marine Fishery
4 Service. I believe that is under review by the tribes right
5 now, and that will then be submitted to NMFS, and they will
6 take whatever steps are necessary under the Endangered
7 Species Act to consult.
8 MR. NOMELLINI: Staying with the coho, do you know
9 whether or not the draft biological assessment would require
10 additional flows in the Trinity over and above those minimum
11 flows that we talked about that went from 120 to 340?
12 MR. STOKELY: Well, actually we had something occur
13 this winter. The coho salmon normally spawn in November and
14 December, and we had some wet storms come in November, and
15 the Bureau of Reclamation increased releases from Lewiston
16 Dam and Trinity Dam for what we call safety of dam releases.
17 They are very similar to flood control, to make room in the
18 reservoir for additional inflows, because the outlet works
19 on the dam are generally undersized.
20 So the coho spawned when the river was running at 1000
21 cubic feet per second. Normally the flows at that time are
22 300 cubic feet per second. When we had a drier period in
23 December and early January, the Bureau of Reclamation ramped
24 down those flows to 500 cfs. The U.S. Fish and Wildlife
25 Service went out and surveyed to see if reds were dewatered
CAPITOL REPORTERS (916) 923-5447 11733
1 as a result of ramping down. In fact, they did discover
2 that reds were dewatered by going from a thousand to 500,
3 and the Fish and Wildlife Service sent a letter to the
4 Bureau of Reclamation recommending that the flows remain at
5 500 cfs for the remainder of the coho incubation period.
6 This winter, based on the memos that I have seen,
7 approximately an additional 47,000 acre-feet of water in
8 storage at Trinity is being released as we speak and that is
9 water that is -- well, I have never seen any memo on whether
10 that 47,000 acre-feet comes out of the 340,000 or is on top
11 of it. It is generally my understanding that it would be on
12 top of the 340,000 acre-feet.
13 So, that is an example of the coho may result in
14 additional watering going down the river.
15 I might also add that every other year the Hupa Valley
16 Tribe has a ceremony called the white skin boat dance and --
17 MR. BIRMINGHAM: I am going to object. The answer that
18 we have up to this point was nonresponsive. Mr. Nomellini
19 asked about what the biological opinion states. And Mr.
20 Stokely's answer was somewhat related to that subject. Now
21 we are talking about something that is completely unrelated
22 to the biological opinion.
23 C.O. BROWN: Mr. Nomellini.
24 MR. NOMELLINI: I thought it was responsive. The last
25 part here I don't understand because I didn't get a full
CAPITOL REPORTERS (916) 923-5447 11734
1 response. I asked about whether or not there will be a
2 consultation on the biological assessment with regard to the
3 coho. The testimony was that it was submitted. And I asked
4 whether that expectation was that there would be an
5 additional demand on the reservoir, and the testimony was
6 responsive to that. So to that point in time I think I was
7 okay. Then I didn't hear the rest of what he was saying
8 about the tribal ceremony, and I missed some of that, so I
9 am not going to be very helpful on that.
10 MR. BIRMINGHAM: Mr. Nomellini's question related to
11 what is required by the biological opinion. That is the
12 pending question. And, again, I will acknowledge Mr.
13 Stokely's response may have been responsive to that, if the
14 maintenance of flows of 500 cfs was pursuant to a biological
15 opinion, but we've never gotten that answer. Now we are
16 talking about an Indian ceremony.
17 MR. NOMELLINI: I didn't even ask the question about
18 the biological opinion.
19 C.O. BROWN: Wait a minute. I understand the
20 objection, and I agree with Mr. Birmingham on this issue.
21 Mr. Nomellini, ask the question again and try it all
22 over again.
23 MR. NOMELLINI: I think I got the coho okay. What I
24 was going to do was ask a similar question as to whether or
25 not there were going to be expected increased demands on the
CAPITOL REPORTERS (916) 923-5447 11735
1 reservoir associated with these other fish. And I have fall
2 chinook, spring-run chinook and steelhead, and I've got kind
3 of a scribble down here that I can barely read about this
4 Pacific lamprey and the ceremonial aspects of that, but I
5 was going to ask about that just so I can try to get an
6 understanding.
7 C.O. BROWN: Was the scribble caused from Mr.
8 Birmingham's objection behind you?
9 MR. NOMELLINI: Absolutely.
10 C.O. BROWN: Reask the question. Try again. See if we
11 can get a more responsive answer.
12 MR. NOMELLINI: With regard to the steelhead, which you
13 indicated was proposed for listing, is there or do you have
14 any opinion as to whether or not additional flow might be
15 required on the Trinity over and above the 340,000 minimum
16 flow that we talked about previously?
17 MR. STOKELY: I don't have an opinion of that.
18 MR. NOMELLINI: Do you know what the basis, what fish
19 species constituted the concern for increasing the flow from
20 120,000 to 340,000?
21 MR. STOKELY: That was steelhead, coho, spring chinook
22 and fall chinook.
23 MR. NOMELLINI: With regard to the fall chinook salmon,
24 is there anything, in your opinion, that would lead us to
25 conclude that additional water over and above the 340,000
CAPITOL REPORTERS (916) 923-5447 11736
1 acre-feet per annum that would be required for the fall
2 chinook salmon?
3 MR. STOKELY: Actually, there is something out there
4 looming that may result in increased flows down the Trinity
5 River. The Hupa Valley Tribe has been delegated some
6 authority as a state under the federal Clean Water Act to
7 adopt its own water quality control plan. They have -- the
8 tribal council has adopted a water quality control plan for
9 the Trinity River on the reservation at the lower end of the
10 Trinity River, and they have temperature objectives in their
11 water quality control plan which are much more protective of
12 the fishery resource than the State of California Basin Plan
13 temperature objectives. And if the Hupa's water quality
14 objectives were actually implemented, it could easily take
15 all of the water in Trinity division to meet those
16 objectives.
17 Not saying it is going to happen. There has been an
18 analysis of that.
19 MR. NOMELLINI: That was not considered in the Draft
20 EIR prepared by the Board, was it?
21 MR. STOKELY: No.
22 MR. NOMELLINI: Spring-run chinook salmon. In your
23 opinion, is there anything that would lead us to conclude
24 that an additional flow in the Trinity over and above the
25 340,000 could be, aside from temperature concerns, could be
CAPITOL REPORTERS (916) 923-5447 11737
1 required in connection with the spring-run chinook salmon?
2 MR. STOKELY: The Trinity River flow evaluation
3 recommendation would -- the intent of that is to restore
4 the populations of all these anadromous fish, including
5 spring chinook. And that recommendation would be an average
6 annual increase in Trinity River in-stream flows of 254,500
7 acre-feet a year. And that answer essentially applies to
8 all of those anadromous salmonids in the Trinity.
9 MR. NOMELLINI: Is that over and above the 340,000?
10 MR. STOKELY: That is correct. It varies by water year
11 type. That is average.
12 MR. NOMELLINI: So, this would be the average annual
13 additional burden associated with all of these together,
14 over and above the 340,000?
15 MR. STOKELY: That's correct.
16 MR. NOMELLINI: Now, you didn't know whether the 47,000
17 for coho was included in the previous 340,000. Is it
18 clearly included in the 254,000 addition, over and above the
19 340?
20 MR. STOKELY: I am not sure because it was related to
21 safety of dam releases and subsequent ramping down. So I
22 really don't know even if we had the flow study
23 recommendation implemented whether or not that kind of
24 increased demand for Trinity water would occur. It's
25 certainly possible because the proposed flow study
CAPITOL REPORTERS (916) 923-5447 11738
1 recommendation generally has winter flows of 300 cubic feet
2 per second. So, it is conceivable that that could occur
3 following any consultation with NMFS in future operational
4 conditions.
5 MR. NOMELLINI: If you bear with me a moment, Mr.
6 Chairman, I want to check my notes.
7 You mentioned that the concern for the place of use for
8 Trinity River water was rather specific in terms of
9 Congressional intent. Can you explain to me what indication
10 a Congressional intent was there as to where the Trinity
11 river water could be used?
12 MR. BIRMINGHAM: Objection on grounds of relevance.
13 C.O. BROWN: Mr. Jackson.
14 MR. JACKSON: My objection is a little different than
15 that. It is that we will be back for Phase VII, but I am
16 not sure whether we ought to be starting Phase VII right now
17 with a lot of people involved in Phase VII not present.
18 C.O. BROWN: Mr. Nomellini.
19 MR. NOMELLINI: I don't know how you can consider --
20 MR. JACKSON: I don't either. I don't like phases
21 either, but the point is that I do know there are people
22 with water rights at stake in Phase VII who are not present
23 in the room, and it just seems to me that they ought to be
24 hearing this.
25 MR. NOMELLINI: Let me -- hear me out. In order to
CAPITOL REPORTERS (916) 923-5447 11739
1 understand the impacts of the joint point of diversion
2 alternatives, I would argue that we need to know where that
3 water is likely to be applied. The place of use is related
4 to that. I would agree that we are going to have a
5 subsequent phase. But I don't know that this Board has
6 committed itself to holding off on any decision as to Phase
7 VI pending the outcome off Phase VII. So, therefore, I have
8 asked the question.
9 C.O. BROWN: Mr. Birmingham.
10 MR. BIRMINGHAM: Mr. Nomellini may have a view as to
11 the connection between place of use and joint point of
12 diversion. He hasn't asked any questions to lay a
13 foundation that this witness sees that connection. But even
14 if this witness were to see that connection, I still don't
15 understand how place of use is relevant to whether the Board
16 should approve joint point of diversion and if it does, what
17 conditions should be imposed.
18 MR. NOMELLINI: I thought I explained that perfectly.
19 C.O. BROWN: I am persuaded by Mr. Jackson's argument.
20 I'll sustain the objection.
21 MR. NOMELLINI: In spite of my perfect explanation, may
22 I ask?
23 C.O. BROWN: Yes, it was very well put forward.
24 MR. O'LAUGHLIN: And summarily denied.
25 MR. NOMELLINI: I think I have it covered.
CAPITOL REPORTERS (916) 923-5447 11740
1 Thank you very much.
2 C.O. BROWN: Mr. Nomellini.
3 Mr. Campbell.
4 ---oOo---
5 CROSS-EXAMINATION OF COUNTY OF TRINITY
6 BY THE DEPARTMENT OF FISH AND GAME
7 BY MR. CAMPBELL
8 MR. CAMPBELL: Mr. Brown.
9 Good afternoon, Mr. Stokely. Couple questions for
10 you.
11 Does Trinity County participate in the CalFed Bay-Delta
12 program as a stakeholder?
13 MR. STOKELY: I believe we are supposed to be
14 represented through Robert Meecher with the Regional Council
15 of Rural Counties. Essentially we have been excluded from
16 CalFed. We have written several letters to the Executive
17 Director. Never received any responses back without the
18 applicability of the Trinity River as a Delta tributary
19 watershed. The RFP for proposals have been -- basically
20 says that projects in the Trinity River may apply to the
21 Delta -- or we may qualify for funding if we can demonstrate
22 a relationship to the Delta, which we seem to have failed to
23 do so far from the eyes of the CalFed people. And,
24 generally, we don't feel a part of CalFed, although,
25 obviously, we have an opportunity to go to the meetings, and
CAPITOL REPORTERS (916) 923-5447 11741
1 we do receive the notices.
2 C.O. BROWN: Mr. Campbell, Board Member Forster has a
3 question.
4 MEMBER FORSTER: I will let him finish. I'm just
5 curious. That has been your line of questioning today and
6 why?
7 MR. NOMELLINI: I will raise an objection to relevance.
8 MR. CAMPBELL: Because it is part of the multi-agency
9 proposal regarding joint points of diversion, that through
10 the stakeholder process and the CalFed Bay-Delta Program
11 that the interested parties work together to develop an
12 operations plan for joint points of diversion through that
13 process.
14 So, I'm just identifying for purposes of the record
15 whether these parties that are interested enough in joint
16 points of diversion to come before the Board here in Phase
17 VI are at least involved in the CalFed Bay-Delta Program,
18 and to date the responses I have received have been, yes,
19 they all are at least in attendance.
20 C.O. BROWN: Okay.
21 MR. CAMPBELL: That is the reason I am attending.
22 C.O. BROWN: Thank you, Mr. Campbell.
23 Mr. O'Laughlin.
24 MR. O'LAUGHLIN: I would like to make a footnote on
25 that, since Mr. Campbell is going to be allowed to explain
CAPITOL REPORTERS (916) 923-5447 11742
1 his questioning. He should also point out that the CalFed
2 policy group excludes everybody but the CalFed policy
3 makers. And, therefore, if you want to really get in on the
4 decision making and you are not a CalFed policy participant,
5 you are excluded.
6 C.O. STUBCHAER: Thank you, Mr. O'Laughlin.
7 MR. JACKSON: I would like to second Mr. O'Laughlin's
8 statement. They are an equal opportunity ignoring people,
9 doesn't matter who they are.
10 MR. CAMPBELL: If this is a free and open comment, I
11 will add something to that. I'm sensing a healthy degree of
12 skepticism about the process, and that can be interpreted in
13 a number of ways. That can also be interpreted as being
14 maybe it is going to be successful.
15 MR. NOMELLINI: No way.
16 C.O. BROWN: Mr. Birmingham.
17 MR. BIRMINGHAM: I understood Board Member Forster's
18 question to be a question of why Mr. Campbell's questions or
19 why the question was relevant. I think that he explained to
20 Board Member Forster why his line of questioning is
21 relevant. Although I may agree with the comments of all
22 other counsel, I would agree that at this point making that
23 kind of argument isn't appropriate. I would like to strike
24 the comments of counsel after Mr. Campbell's explanation.
25 MR. CAMPBELL: I would join in that request.
CAPITOL REPORTERS (916) 923-5447 11743
1 MEMBER FORSTER: I don't know if I can comment, but
2 maybe it wasn't even appropriate for me to ask that
3 question. I just wanted to understand the connection. But
4 I don't know that I get to say anything. But maybe it isn't
5 appropriate to add all the other commentaries. I wanted one
6 simple explanation.
7 C.O. STUBCHAER: Mr. Jackson.
8 MR. JACKSON: Mr. Chairman, just so we don't make any
9 mistake, my comment is not appropriate for the record. I
10 stipulate to that.
11 C.O. STUBCHAER: Mr. Nomellini.
12 MR. NOMELLINI: I think if you were going to strike the
13 comments, you would have to strike the comments from Mr.
14 Campbell as well, which I don't think are appropriate. If
15 you want comments on the process, his was in the nature of
16 testimony rather than a particular argument. Just like
17 O'Laughlin's, just like mine, and like the rest.
18 C.O. STUBCHAER: Mr. Birmingham and that is it. And I
19 will rule.
20 MR. BIRMINGHAM: Mr. Brown, I think it is always
21 appropriate for a Board Member to ask a question of an
22 attorney as to why the questions are being asked are
23 relevant. I know Ms. Leidigh does not like to relate this
24 to proceedings in court, but in court a judge can always
25 ask counsel, "Why are those questions relevant? Explain to
CAPITOL REPORTERS (916) 923-5447 11744
1 me."
2 So I think that is appropriate. Mr. Campbell's
3 response to the question was just that. It was a response.
4 All the other comments are argument.
5 C.O. BROWN: Thank you, thank you all.
6 My ruling on this is that Ms. Forster could ask a
7 question anytime she wants to, and it all stays in.
8 Please proceed.
9 MR. CAMPBELL: Thank you.
10 Just to follow up on your answer to my previous
11 question, Mr. Stokely, the bottom line of your answer is
12 that you believe the Trinity County through Region Council
13 of Rural Counties does continue to have a representative
14 that attends the CalFed Bay-Delta Program meetings?
15 MR. STOKELY: Technically, it is not a direct
16 representative of Trinity County, but it is an organization
17 that Trinity County is member of.
18 MR. CAMPBELL: That organization receives notices of
19 those meetings?
20 MR. STOKELY: That is correct. I actually receive
21 notices of most of their meetings.
22 MR. CAMPBELL: Thank you very much.
23 C.O. BROWN: Thank you, Mr. Campbell.
24 Mr. Birmingham.
25 MR. BIRMINGHAM: No questions.
CAPITOL REPORTERS (916) 923-5447 11745
1 C.O. BROWN: Mr. Herrick.
2 MR. HERRICK: Mr. Nomellini asked all my questions. No
3 questions.
4 C.O. BROWN: Any redirect, Counsel?
5 MR. JACKSON: No. Thank you.
6 C.O. BROWN: No redirect.
7 MR. JACKSON: We would move --
8 C.O. BROWN: Exhibits?
9 MR. JACKSON: -- Trinity County exhibits, 2-A, 13-A and
10 31 into the record.
11 C.O. BROWN: Are there any objections?
12 MS. WHITNEY: Yes.
13 C.O. BROWN: Vicky, are you objecting?
14 MS. WHITNEY: I don't believe Exhibit 2A was introduced
15 during this phase. It was introduced on October 14th and it
16 was accepted by official notice on October 20th, 1998. It
17 is already in the record.
18 I'm sorry, I was looking at the wrong column.
19 C.O. BROWN: There being no objections, then so
20 ordered. They are admitted into evidence.
21 Tomorrow morning at 9:00 a.m. we start with the
22 Westlands and San Luis. Is that correct?
23 MR. BIRMINGHAM: Yes, Mr. Brown.
24 C.O. BROWN: Thank you all.
25 Mr. O'Laughlin.
CAPITOL REPORTERS (916) 923-5447 11746
1 MR. O'LAUGHLIN: Can I ask one question? Given that we
2 have San Luis and Delta-Mendota Water Authority/Westlands
3 Water District and we are coming to the close of the direct
4 cases in chief, I was wondering if there is any expectation
5 that there is going to be rebuttal testimony submitted in
6 moving forward past the March 24th hearing dates?
7 C.O. BROWN: Staff, what is your opinion?
8 MS. LEIDIGH: So far none of the parties have said
9 anything to staff about it. But at this point if the Board
10 wishes, the Board can ask people. The Hearing Officer can
11 ask people whether they have any tentative plans to present
12 rebuttal, and I think it would be appropriate for them to
13 answer yes or no, should not bind them since there is more
14 testimony yet to come that they might want to rebut.
15 C.O. BROWN: Mr. O'Laughlin, bring it up in the morning
16 with Chairman Stubchaer. We'll let him make that decision.
17 MR. O'LAUGHLIN: Thank you very much.
18 C.O. BROWN: Thank you all for participating. This
19 meeting is adjourned.
20 (Hearing adjourned at 4:00 p.m.)
21 -orrect record
15 of the proceedings.
16
17 IN WITNESS WHEREOF, I have subscribed this certificate
18 at Sacramento, California, on this 26th day of March 1999.
19
20
21
22
23 ______________________________
ESTHER F. WIATRE
24 CSR NO. 1564
25