STATE WATER RESOURCES CONTROL BOARD PUBLIC HEARING 1998 BAY-DELTA WATER RIGHTS HEARING HELD AT 901 P STREET SACRAMENTO, CALIFORNIA TUESDAY, MARCH 17, 1999 9:00 A.M. Reported by: MARY GALLAGHER, CSR #10749 CAPITOL REPORTERS (916) 923-5447 1 APPEARANCES ---oOo--- 2 3 BOARD MEMBERS: 4 JAMES STUBCHAER, CO-HEARING OFFICER JOHN W. BROWN, CO-HEARING OFFICER 5 MARC DEL PIERO MARY JANE FORSTER 6 7 STAFF MEMBERS: 8 THOMAS HOWARD - Supervising Engineer VICTORIA A. WHITNEY - Senior Engineer 9 10 COUNSEL: 11 WILLIAM R. ATTWATER - Chief Counsel WALTER PETTIT - Executive Director 12 BARBARA LEIDIGH - Senior Staff Counsel 13 ---oOo--- 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 11750 1 REPRESENTATIVES 2 PRINCETON CODORA GLENN IRRIGATION DISTRICT, et al. 3 FROST, DRUP & ATLAS 4 134 West Sycamore STreet Willows, California 95988 5 BY: J. MARK ATLAS, ESQ. 6 JOINT WATER DISTRICTS: 7 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 8 Oroville, California 95965 BY: WILLIAM H. BABER, III, ESQ. 9 CALIFORNIA SPORTFISHING PROTECTION ALLIANCE: 10 ROBERT J. BAIOCCHI 11 P.O. Box 357 Quincy, California 95971 12 BELLA VISTA WATER DISTRICT: 13 BRUCE L. BELTON, ESQ. 14 2525 Park Marina Drive, Suite 102 Redding, California 96001 15 WESTLANDS WATER DISTRICT: 16 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 17 400 Capitol Mall, 27th Floor Sacramento, California 95814 18 BY: THOMAS W. BIRMINGHAM, ESQ. AMELIA MINABERRIGARAI, ESQ. 19 THE BAY INSTITUTE OF SAN FRANCISCO: 20 GRAY BOBKER 21 55 Shaver Street, Suite 330 San Rafael, California 94901 22 CITY OF ANTIOCH, et al.: 23 FREDERICK BOLD, JR., ESQ. 24 1201 California Street, Suite 1303 San Francisco, California 94109 25 CAPITOL REPORTERS (916) 923-5447 11751 1 REPRESENTATIVES 2 LEAGUE OF WOMEN VOTERS: 3 ROBERTA BORGONOVO 4 2480 Union Street San Francisco, California 94123 5 UNITED STATES DEPARTMENT OF THE INTERIOR: 6 OFFICE OF THE SOLICITOR 7 2800 Cottage Way, Roon E1712 Sacramento, California 95825 8 BY: ALF W. BRANDT, ESQ. 9 CALIFORNIA URBAN WATER AGENCIES: 10 BYRON M. BUCK 455 Capitol Mall, Suite 705 11 Sacramento, California 95814 12 RANCHO MURIETA COMMUNITY SERVICES DISTRICT: 13 MCDONOUGH, HOLLAND & ALLEN 555 Capitol Mall, 9th Floor 14 Sacramento, California 95814 BY: VIRGINIA A. CAHILL, ESQ. 15 CALIFORNIA DEPARTMENT OF FISH AND GAME: 16 OFFICE OF THE ATTORNEY GENERAL 17 1300 I Street, Suite 1101 Sacramento, California 95814 18 BY: MATTHEW CAMPBELL, ESQ. 19 NATURAL RESOURCES DEFENSE COUNCIL: 20 HAMILTON CANDEE, ESQ. 71 Stevenson Street 21 San Francisco, California 94105 22 ARVIN-EDISON WATER STORAGE DISTRICT, et al.: 23 DOOLEY HERR & WILLIAMS 3500 West Mineral King Avenue, Suite C 24 Visalia, California 93191 BY: DANIEL M. DOOLEY, ESQ. 25 CAPITOL REPORTERS (916) 923-5447 11752 1 REPRESENTATIVES 2 SACRAMENTO MUNICIPAL UTILITY DISTRICT: 3 LESLIE A. DUNSWORTH, ESQ. 4 6201 S Street Sacramento, California 95817 5 SOUTH SAN JOAQUIN IRRIGATION DISTRICT, et al.: 6 BRAY, GEIGER, RUDQUIST & NUSS 7 311 East Main Street, 4th Floor Stockton, California 95202 8 BY: STEVEN P. EMRICK, ESQ. 9 EAST BAY MUNICIPAL UTILITY DISTRICT: 10 EBMUD OFFICE OF GENERAL COUNSEL 375 Eleventh Street 11 Oakland, California 94623 BY: FRED ETHERIDGE, ESQ. 12 GOLDEN GATE AUDUBON SOCIETY: 13 ARTHUR FEINSTEIN 14 2530 San Pablo Avenue, Suite G Berkeley, California 94702 15 CONAWAY CONSERVANCY GROUP: 16 UREMOVIC & FELGER 17 P.O. Box 5654 Fresno, California 93755 18 BY: WARREN P. FELGER, ESQ. 19 THOMES CREEK WATER ASSOCIATION: 20 THOMES CREEK WATERSHED ASSOCIATION P.O. Box 2365 21 Flournoy, California 96029 BY: LOIS FLYNNE 22 COURT APPOINTED REPS OF WESTLANDS WD AREA 1, et al.: 23 LAW OFFICES OF SMILAND & KHACHIGIAN 24 601 West Fifth Street, Seventh Floor Los Angeles, California 90075 25 BY: CHRISTOPHER G. FOSTER, ESQ. CAPITOL REPORTERS (916) 923-5447 11753 1 REPRESENTATIVES 2 CITY AND COUNTY OF SAN FRANCISCO: 3 OFFICE OF THE CITY ATTORNEY 4 1390 Market Street, Sixth Floor San Francisco, California 94102 5 BY: DONN W. FURMAN, ESQ. 6 CAMP FAR WEST IRRIGATION DISTRICT, et al.: 7 DANIEL F. GALLERY, ESQ. 926 J Street, Suite 505 8 Sacramento, California 95814 9 BOSTON RANCH COMPANY, et al.: 10 J.B. BOSWELL COMPANY 101 West Walnut Street 11 Pasadena, California 91103 BY: EDWARD G. GIERMANN 12 SAN JOAQUIN RIVER GROUP AUTHORITY, et al.: 13 GRIFFIN, MASUDA & GODWIN 14 517 East Olive Street Turlock, California 95381 15 BY: ARTHUR F. GODWIN, ESQ. 16 NORTHERN CALIFORNIA WATER ASSOCIATION: 17 RICHARD GOLB 455 Capitol Mall, Suite 335 18 Sacramento, California 95814 19 PLACER COUNTY WATER AGENCY, et al.: 20 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Capitol Mall, 27th Floor 21 Sacramento, California 95814 BY: JANET GOLDSMITH, ESQ. 22 ENVIRONMENTAL DEFENSE FUND: 23 THOMAS J. GRAFF, ESQ. 24 5655 College Avenue, Suite 304 Oakland, California 94618 25 CAPITOL REPORTERS (916) 923-5447 11754 1 REPRESENTATIVES 2 CALAVERAS COUNTY WATER DISTRICT: 3 SIMON GRANVILLE 4 P.O. Box 846 San Andreas, California 95249 5 CHOWCHILLA WATER DISTRICT, et al.: 6 GREEN, GREEN & RIGBY 7 P.O. Box 1019 Madera, California 93639 8 BY: DENSLOW GREEN, ESQ. 9 CALIFORNIA FARM BUREAU FEDERATION: 10 DAVID J. GUY, ESQ. 2300 River Plaza Drive 11 Sacramento, California 95833 12 SANTA CLARA VALLEY WATER DISTRICT: 13 MORRISON & FORESTER 755 Page Mill Road 14 Palo Alto, California 94303 BY: KEVIN T. HAROFF, ESQ. 15 CITY OF SHASTA LAKE: 16 ALAN N. HARVEY 17 P.O. Box 777 Shasta Lake, California 96019 18 COUNTY OF STANISLAUS: 19 MICHAEL G. HEATON, ESQ. 20 926 J Street Sacramento, California 95814 21 GORRILL LAND COMPANY: 22 GORRILL LAND COMPANY 23 P.O. Box 427 Durham, California 95938 24 BY: DON HEFFREN 25 CAPITOL REPORTERS (916) 923-5447 11755 1 REPRESENTATIVES 2 SOUTH DELTA WATER AGENCY: 3 JOHN HERRICK, ESQ. 4 3031 West March Lane, Suite 332 East Stockton, California 95267 5 COUNTY OF GLENN: 6 NORMAN Y. HERRING 7 525 West Sycamore Street Willows, California 95988 8 REGIONAL COUNCIL OF RURAL COUNTIES: 9 MICHAEL B. JACKSON 10 1020 Twelfth Street, Suite 400 Sacramento, California 95814 11 DEER CREEK WATERSHED CONSERVANCY: 12 JULIE KELLY 13 P.O. Box 307 Vina, California 96092 14 DELTA TRIBUTARY AGENCIES COMMITTEE: 15 MODESTO IRRIGATION DISTRICT 16 P.O. Box 4060 Modesto, California 95352 17 BY: BILL KETSCHER 18 SAVE THE SAN FRANCISCO BAY ASSOCIATION: 19 SAVE THE BAY 1736 Franklin Street 20 Oakland, California 94612 BY: CYNTHIA L. KOEHLER, ESQ. 21 BATTLE CREEK WATERSHED LANDOWNERS: 22 BATTLE CREEK WATERSHED CONSERVANCY 23 P.O. Box 606 Manton, California 96059 24 25 CAPITOL REPORTERS (916) 923-5447 11756 1 REPRESENTATIVES 2 BUTTE SINK WATERFOWL ASSOCIATION, et al.: 3 MARTHA H. LENNIHAN, ESQ. 4 455 Capitol Mall, Suite 300 Sacramento, California 95814 5 CITY OF YUBA CITY: 6 WILLIAM P. LEWIS 7 1201 Civic Center Drive Yuba City, California 95993 8 BROWNS VALLEY IRRIGTAION DISTRICT, et al.: 9 BARTKIEWICZ, KRONICK & SHANAHAN 10 1011 22nd Street, Suite 100 Sacramento, California 95816 11 BY: ALAN B. LILLY, ESQ. 12 CONTRA COSTA WATER DISTRICT: 13 BOLD, POLISNER, MADDOW, NELSON & JUDSON 500 Ygnacio Valley Road, Suite 325 14 Walnut Creek, California 94596 BY: ROBERT B. MADDOW, ESQ. 15 GRASSLAND WATER DISTRICT: 16 DON MARCIOCHI 17 22759 South Mercey Springs Road Los Banos, California 93635 18 SAN LUIS CANAL COMPANY: 19 FLANAGAN, MASON, ROBBINS & GNASS 20 3351 North M Street, Suite 100 Merced, California 95344 21 BY: MIICHAEL L. MASON, ESQ. 22 STONY CREEK BUSINESS AND LAND OWNERS COALITION: 23 R.W. MCCOMAS 4150 County Road K 24 Orland, California 95963 25 CAPITOL REPORTERS (916) 923-5447 11757 1 REPRESENTATIVES 2 TRI-DAM POWER AUTHORITY: 3 TUOLUMNE UTILITIES DISTRICT 4 P.O. Box 3728 Sonora, California 95730 5 BY: TIM MCCULLOUGH 6 DELANO-EARLIMART IRRIGATION DISTRICT, et al.: 7 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 8 Oroville, California 95965 BY: JEFFREY A. MEITH, ESQ. 9 HUMANE FARMING ASSOCIATION: 10 BRADLEY S. MILLER. 11 1550 California Street, Suite 6 San Francisco, California 94109 12 CORDUA IRRIGATION DISTRICT, et al.: 13 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 14 P.O. Box 1679 Oroville, California 95965 15 BY: PAUL R. MINASIAN, ESQ. 16 EL DORADO COUNTY WATER AGENCY: 17 DE CUIR & SOMACH 400 Capitol Mall, Suite 1900 18 Sacramento, California 95814 BY: DONALD B. MOONEY, ESQ. 19 GLENN COUNTY FARM BUREAU: 20 STEVE MORA 21 501 Walker Street Orland, California 95963 22 MODESTO IRRIGATION DISTRICT: 23 JOEL MOSKOWITZ 24 P.O. Box 4060 Modesto, California 95352 25 CAPITOL REPORTERS (916) 923-5447 11758 1 REPRESENTATIVES 2 PACIFIC GAS & ELECTRIC: 3 RICHARD H. MOSS, ESQ. 4 P.O. Box 7442 San Francisco, California 94120 5 CENTRAL DELTA WATER AGENCY, et al.: 6 NOMELLINI, GRILLI & MCDANIEL 7 P.O. Box 1461 Stockton, California 95201 8 BY: DANTE JOHN NOMELLINI, ESQ. and 9 DANTE JOHN NOMELLINI, JR., ESQ. 10 TULARE LAKE BASIN WATER STORAGE UNIT: 11 MICHAEL NORDSTROM 1100 Whitney Avenue 12 Corcoran, California 93212 13 AKIN RANCH, et al.: 14 DOWNEY, BRAND, SEYMOUR & ROHWER 555 Capitol Mall, 10th Floor 15 Sacramento, California 95814 BY: KEVIN M. O'BRIEN, ESQ. 16 OAKDALE IRRIGATION DISTRICT: 17 O'LAUGHLIN & PARIS 18 870 Manzanita Court, Suite B Chico, California 95926 19 BY: TIM O'LAUGHLIN, ESQ. 20 SIERRA CLUB: 21 JENNA OLSEN 85 Second Street, 2nd Floor 22 San Francisco, California 94105 23 YOLO COUNTY BOARD OF SUPERVISORS: 24 LYNNEL POLLOCK 625 Court Street 25 Woodland, California 95695 CAPITOL REPORTERS (916) 923-5447 11759 1 REPRESENTATIVES 2 PATRICK PORGENS & ASSOCIATES: 3 PATRICK PORGENS 4 P.O. Box 60940 Sacramento, California 95860 5 BROADVIEW WATER DISTRICT, et al.: 6 DIANE RATHMANN 7 P.O. Box 156 Dos Palos, California 93620 8 FRIENDS OF THE RIVER: 9 BETSY REIFSNIDER 10 128 J Street, 2nd Floor Sacramento, California 95814 11 MERCED IRRIGATION DISTRICT: 12 FLANAGAN, MASON, ROBBINS & GNASS 13 P.O. Box 2067 Merced, California 95344 14 BY: KENNETH M. ROBBINS, ESQ. 15 CENTRAL SAN JOAQUIN WATER CONSERVATION DISTRICT: 16 REID W. ROBERTS, ESQ. 311 East Main Street, Suite 202 17 Stockton, California 95202 18 METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA: 19 JAMES F. ROBERTS P.O. Box 54153 20 Los Angeles, California 90054 21 SACRAMENTO AREA WATER FORUM: 22 CITY OF SACRAMENTO 980 9th Street, 10th Floor 23 Sacramento, California 95814 BY: JOSEPH ROBINSON, ESQ. 24 25 CAPITOL REPORTERS (916) 923-5447 11760 1 REPRESENTATIVES 2 TUOLUMNE RIVER PRESERVATION TRUST: 3 NATURAL HERITAGE INSTITUTE 4 114 Sansome Street, Suite 1200 San Francisco, California 94194 5 BY: RICHARD ROOS-COLLINS, ESQ. 6 CALIFORNIA DEPARTMENT OF WATER RESOURCES: 7 DAVID A. SANDINO, ESQ. P.O. Box 942836 8 Sacramento, California 94236 9 FRIANT WATER USERS AUTHORITY: 10 GARY W. SAWYERS, ESQ. 575 East Alluvial, Suite 101 11 Fresno, California 93720 12 KERN COUNTY WATER AGENCY: 13 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Captiol Mall, 27th Floor 14 Sacramento, California 95814 BY: CLIFFORD W. SCHULZ, ESQ. 15 SAN JOAQUIN RIVER EXCHANGE CONTRACTORS: 16 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 17 P.O. Box 1679 Oroville, California 95965 18 BY: MICHAEL V. SEXTON, ESQ. 19 SAN JOAQUIN COUNTY: 20 NEUMILLER & BEARDSLEE P.O. Box 20 21 Stockton, California 95203 BY: THOMAS J. SHEPHARD, SR., ESQ. 22 CITY OF STOCKTON: 23 DE CUIR & SOMACH 24 400 Capitol Mall, Suite 1900 Sacramento, California 95814 25 BY: PAUL S. SIMMONS, ESQ. CAPITOL REPORTERS (916) 923-5447 11761 1 REPRESENTATIVES 2 ORLAND UNIT WATER USERS' ASSOCIATION: 3 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 4 P.O. Box 1679 Oroville, California 95965 5 BY: M. ANTHONY SOARES, ESQ. 6 GLENN-COLUSA IRRIGATION DISTRICT: 7 DE CUIR & SOMACH 400 Capitol Mall, Suite 1900 8 Sacramento, California 95814 BY: STUART L. SOMACH, ESQ. 9 NORTH SAN JOAQUIN WATER CONSERVATION DISTRICT: 10 JAMES F. SORENSEN CONSULTING CIVIL ENGINEER, INC.: 11 209 South Locust Street Visalia, California 93279 12 BY: JAMES F. SORENSEN 13 PARADISE IRRIGATION DISTRICT: 14 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 15 Oroville, California 95965 BY: WILLIAM H. SPRUANCE, ESQ. 16 COUNTY OF COLUSA: 17 DONALD F. STANTON, ESQ. 18 1213 Market Street Colusa, California 95932 19 COUNTY OF TRINITY: 20 COUNTY OF TRINITY - NATURAL RESOURCES 21 P.O. Box 156 Hayfork, California 96041 22 BY: TOM STOKELY 23 CITY OF REDDING: 24 JEFFERY J. SWANSON, ESQ. 2515 Park Marina Drive, Suite 102 25 Redding, California 96001 CAPITOL REPORTERS (916) 923-5447 11762 1 REPRESENTATIVES 2 TULARE IRRIGATION DISTRICT: 3 TEHEMA COUNTY RESOURCE CONSERVATION DISTRICT 4 2 Sutter Street, Suite D Red Bluff, California 96080 5 BY: ERNEST E. WHITE 6 STATE WATER CONTRACTORS: 7 BEST BEST & KREIGER P.O. Box 1028 8 Riverside, California 92502 BY: CHARLES H. WILLARD 9 COUTNY OF TEHEMA, et al.: 10 COUNTY OF TEHEMA BOARD OF SUPERVISORS 11 P.O. Box 250 Red Bluff, California 96080 12 BY: CHARLES H. WILLARD 13 MOUNTAIN COUNTIES WATER RESOURCES ASSOCIATION: 14 CHRISTOPHER D. WILLIAMS P.O. Box 667 15 San Andreas, California 95249 16 JACKSON VALLEY IRRIGATION DISTRICT: 17 HENRY WILLY 6755 Lake Amador Drive 18 Ione, California 95640 19 SOLANO COUNTY WATER AGENCY, et al.: 20 HERUM, CRABTREE, DYER, ZOLEZZI & TERPSTRA 2291 West March Lane, S.B. 100 21 Stockton, California 95207 BY: JEANNE M. ZOLEZZI, ESQ. 22 23 ---oOo--- 24 25 CAPITOL REPORTERS (916) 923-5447 11763 1 I N D E X 2 ---oOo--- 3 4 PAGE 5 OPENING OF HEARING 11765 6 AFTERNOON SESSION 11860 7 END OF PROCEEDINGS 11981 8 DIRECT EXAMINATION OF WESTLANDS WATER DISTRICT AND 9 THE SAN LUIS AND DELTA-MENDOTA WATER AUTHORITY: 10 PANEL: 11769 11 STEPHEN OTTEMOELLER DAVID ORTH 12 THOMAS BOARDMAN 13 CROSS-EXAMINATION OF WESTLANDS WATER DISTRICT AND THE SAN LUIS AND DELTA-MENDOTA WATER AUTHORITY: 14 DANTE JOHN NOMELLINI 11795 15 DAN SUYEYASU 11827 MATTHEW CAMPBELL 11870 16 MICHAEL SEXTON 11873 JOHN HERRICK 11888 17 MARK ATLAS 11898 BY STAFF 11900 18 BY THE BOARD 11901 19 REDIRECT EXAMINATION OF WESTLANDS WATER DISTRICT AND THE SAN LUIS AND DELTA-MENDOTA WATER AUTHORITY: 20 THOMAS BIRMINGHAM 11909 21 RECROSS-EXAMINATION OF WESTLANDS WATER DISTRICT AND 22 THE SAN LUIS AND DELTA-MENDOTA WATER AUTHORITY: 23 BILL HASENCAMP 11950 DAN SUYEYASU 11951 24 MATTHEW CAMPBELL 11953 DANTE JOHN NOMELLINI 11959 25 ---oOo--- CAPITOL REPORTERS (916) 923-5447 11764 1 WEDNESDAY, MARCH 17, 1999, 9:00 A.M. 2 SACRAMENTO, CALIFORNIA 3 ---oOo--- 4 C.O. BROWN: Good morning. We will come to order. 5 Mr. Stubchaer gives his apology, he's tied up in a 6 legislative meeting this morning, maybe all day, something 7 about the Imperial Valley, but he may be back this 8 afternoon, but in any case he sends his regrets. 9 Mr. O'Laughlin, what can we do for you this 10 morning? 11 MR. O'LAUGHLIN: Well, you told me to stand up this 12 morning and ask the question when Mr. Stubchaer came back. 13 I think we can probably do this without the Hearing 14 Officer. 15 In previous phases toward the end of the phase 16 we've inquired if there is going to be rebuttal testimony, 17 because we have hearing dates coming up next week, and if 18 Phase VI does end we might jump right into Phase VII. 19 So I was wondering if we could maybe get a show 20 of hands and understand who has -- not tying them to -- 21 that they have to present rebuttal testimony, or that 22 they -- we haven't heard all the direct cases yet, that 23 they may present rebuttal testimony, but get kind of a 24 head count on rebuttal cases so we can havesome idea of 25 when Phase VII may start. CAPITOL REPORTERS (916) 923-5447 11765 1 C.O. BROWN: All right. That's a good idea. I 2 don't know how much time we'll spend today on the 3 examination of Westlands and San Luis, probably will take 4 most of the day. But if not, we may end up early today. 5 We do have Dr. Kjelson scheduled for the 23rd. 6 And my suspect is we can start rebuttal after his 7 testimony and his cross and redirect, if there is any. 8 With that tentative schedule, let's see a show of 9 hands of who will be putting on rebuttal testimony. All 10 right. If you would write those down, Mary Jane. Let's 11 see, we have Turner, Birmingham, Sandino. 12 MR. CAMPBELL: Excuse me, Mr. Brown, that would be 13 on behalf of the Government Agency as a panel. 14 C.O. BROWN: All right. 15 MR. CAMPBELL: Which would include the Department of 16 Fish and Game. 17 C.O. BROWN: All right. That gives you an idea, 18 Mr. O'Laughlin. 19 MEMBER FORSTER: I didn't get all the names, did 20 you? 21 C.O. BROWN: Yes. 22 MEMBER FORSTER: I'll be ready next time. 23 C.O. BROWN: Good morning. 24 MR. ROBBINS: Good morning. Ken Robbins for the 25 Merced Irrigation District and the San Joaquin River Group CAPITOL REPORTERS (916) 923-5447 11766 1 Authority, although I raise this specifically with 2 concerns for Merced. And it might be more appropriate -- 3 and if it is I'm sure you'll let me know to bring this up 4 with the Hearing Officer present. 5 My concerns have begun to develop with respect to 6 how we might be proceeding as it appears to me that we are 7 drawing close to a completion of Phase VI. Certainly, we 8 should expect to finish Phase VII by the end of April, 9 would be my guess, certainly, before that if possible. 10 That leaves the issue of the remaining dates that are 11 currently on the calendar. 12 The Board has indicated those dates are certainly 13 vacateable and I'm certainly aware of that. I think that 14 the River Group Authority and, in particular, individual 15 members have indicated to the Board in the past that we 16 are probably going to need significant time to prepare for 17 a Phase VIII, should it be required. 18 So this morning I would like to engage in a very 19 short colloquy, if I could, with respect to that issue. 20 And if that's more appropriate when the Hearing Officer is 21 here, I'd be happy to reframe. But my concern 22 specifically is that if, in fact, we are to expect at the 23 end of Phase VII a notice with respect to Phase VIII, the 24 time frame for filing of witnesses and testimony has been 25 up until this point three or four weeks for a phase. CAPITOL REPORTERS (916) 923-5447 11767 1 MR. NOMELLINI: 60 days. 2 MR. ROBBINS: 60 days, I don't think that's -- well, 3 it is whatever it is. I would suggest to you that, first, 4 several of us have obviously withheld evidence that may or 5 may not need to be presented during a Phase VIII hearing, 6 and with the permission of the Board, in order to give 7 some an opportunity to be heard on the agreements. 8 As a result of that, we have not only presented 9 that evidence, in many cases although the outlines exist, 10 we have not even developed some of that evidence. I mean 11 we know that it exists but it needs to be put into a 12 format that could be delivered to the Board. 13 And I want to just give you one example of how 14 difficult this is. I know people get their violins out 15 when lawyers tell you how difficult it is to produce a 16 case, I mean that's our job. That's our burden and not 17 yours. But to demonstrate to you kind of the depth of the 18 issue I thought it might be helpful. Several parties a 19 year ago raised the issue with the Board -- 20 C.O. BROWN: Mr. Robbins. 21 MR. ROBBINS: Yes, sir. 22 C.O. BROWN: You bring up a very interesting and 23 needed point, but what I'd like to do is postpone this 24 discussion until after we complete the direct and 25 cross-examination. I think we're going to have some time CAPITOL REPORTERS (916) 923-5447 11768 1 this afternoon. And, perhaps, maybe Mr. Stubchaer will be 2 back in this afternoon. 3 And I'd like to have him in on that conversation 4 if we could. If not, if Mr. Stubchaer is not able to make 5 it, then remind me at the conclusion of the testimony 6 today to address this subject, if you would, please. 7 MR. ROBBINS: Be happy to. Thank you. 8 C.O. BROWN: Thanks, Mr. Robbins. Good point. 9 Is there anything else before we get started? 10 Mr. Birmingham, you're up. 11 ---oOo--- 12 DIRECT EXAMINATION OF THE WESTLANDS WATER DISTRICT 13 AND SAN LUIS AND DELTA-MENDOTA WATER AUTHORITY 14 BY THOMAS BIRMINGHAM 15 MR. BIRMINGHAM: Good morning, Members of the Board. 16 Westlands Water District and the San Luis and 17 Delta-Mendota Water Authority are appearing in Phase VI to 18 urge the Water Board to approve the petition filed by the 19 Bureau of Reclamation to authorize its use of the Harvey 20 Banks pumping plant as an authorized point of diversion of 21 the Central Valley Project. 22 In support of their position, Westlands and the 23 Authority will call three witnesses: Thomas Boardman, 24 Steven Ottemoeller and David Orth. 25 Mr. Boardman is a witness from whom the Board in CAPITOL REPORTERS (916) 923-5447 11769 1 these proceedings has previously heard. Mr. Boardman is 2 an engineer employed by the Authority and he is 3 responsible for conducting modeling studies to assist the 4 Authority in its water supply planning. 5 Mr. Boardman will briefly testify about water use 6 by Authority member districts and how implementation of 7 the Endangered Species Act and the Central Valley Project 8 Improvement Act have affected these districts' water 9 supplies. In particular, Mr. Boardman will testify that 10 as a result of regulatory constraints imposed on 11 operations of the CVP conveyance facilities, long-term 12 reliable water supplies for CVP agricultural contractors 13 south of the Delta has decreased by 35 percent. 14 Mr. Boardman will testify that approval of the 15 joint point of diversion will ameliorate the water supply 16 impacts of the Endangered Species Act, the CVPIA and other 17 regulatory constraints. He will also testify that the 18 approval of the joint point of diversion will mitigate the 19 impact of reduced DMC conveyance capacity resulting from 20 land subsidence. 21 Steven Ottemoeller is a former employee of 22 Westlands Water District. Presently, Mr. Ottemoeller is 23 the general manager of Madera Irrigation District, but 24 he's been excused from his responsibilities as general 25 manager of Madera to appear today on behalf of Westlands. CAPITOL REPORTERS (916) 923-5447 11770 1 Mr. Ottemoeller will testify concerning the 2 history of Westlands Water District and historic use of 3 water by farmers in Westlands. Like Mr. Boardman, 4 Mr. Ottemoeller will testify that because of 5 implementation of the Endangered Species Act and CVPIA the 6 quantity and reliability of the district's water supply 7 have been reduced. Even in wet years like 1993, 8 Westlands' CVP supply has been reduced. And Westlands can 9 expect to receive a full contract supply only when flood 10 flows reach the Mendota Pool on the San Joaquin River. 11 Mr. Ottemoeller will present testimony concerning 12 the impacts within Westlands resulting from reduced CVP 13 water supplies. These impacts include: Overdrafting the 14 groundwater basin, land subsidence, damage to groundwater 15 wells and reduced holding capacity of the groundwater 16 basin itself. Finally, Mr. Ottemoeller will testify 17 concerning Westlands' efforts to supplement its water 18 supply to mitigate the impacts of reduced CVP allocations. 19 David Orth is the general manager of Westlands. 20 Mr. Orth is a CPA and will testify concerning the 21 economics of water use within the district. Mr. Orth will 22 present testimony concerning the value of crops grown in 23 Westlands with water supplied by the Central Valley 24 Project pursuant to contracts that entitle Westlands to 25 receive up to 1,150,000 acre-feet per year. CAPITOL REPORTERS (916) 923-5447 11771 1 In a year like 1994 the use of CVP water for 2 irrigation in Westlands produced nearly three billion 3 dollars in economic activity for the region. Mr. Orth 4 will also explain the economic consequences of taking CVP 5 water away from farmers in Westlands. And his testimony 6 will present a 1996 study, funded by the Ford Foundation, 7 which describes the economic consequences to a small 8 farming community when water supplies are reduced. 9 Based on this evidence and the evidence presented 10 by other parties, Westlands and the Authority will urge 11 the Water Board to approve the joint point of diversion 12 without limitations other than those required to comply 13 with the 1995 Water Quality Control Plan and to prevent 14 injury to other legal users of the subject water. 15 At this point, Westlands Water District and the 16 San Luis and Delta-Mendota Water Authority would like to 17 call Thomas Boardman, Steven Ottemoeller and David Orth. 18 C.O. BROWN: Have all these gentlemen taken the 19 oath, Mr. Birmingham? 20 MR. BIRMINGHAM: No, only Mr. Boardman has 21 previously taken the oath. 22 C.O. BROWN: If you gentlemen will stand. Do you 23 promise to tell the truth in these proceedings? 24 MR. ORTH: Yes. 25 MR. OTTEMOELLER: Yes. CAPITOL REPORTERS (916) 923-5447 11772 1 C.O. BROWN: Thank you. 2 MR. BIRMINGHAM: First I'd like to turn to 3 Mr. Boardman. 4 Mr. Boardman, do you have with you a copy of San 5 Luis and Delta-Mendota Water Authority Exhibit 7? 6 MR. BOARDMAN: Yes, I do. 7 MR. BIRMINGHAM: San Luis and Delta-Mendota Water 8 Authority Exhibit 7 is the testimony which you prepared 9 for these proceedings? 10 MR. BOARDMAN: Yes. 11 MR. BIRMINGHAM: Would you briefly summarize the 12 testimony which has been identified as San Luis and 13 Delta-Mendota Water Authority Exhibit 7. 14 MR. BOARDMAN: The reliable water supply for CVP ag 15 contract south of the Delta in my estimation has decreased 16 by 35 percent due to a combination of regulatory 17 constraints and physical changes affecting the CVP 18 conveyance facilities. If the State Water Resources 19 Control Board approves the unconditional use of joint 20 points of diversion the impact -- or part of this 35 21 percent could be restored, the water loss could be 22 restored. 23 Since the promulgation of the '93 winter-run 24 chinook salmon Biological Opinion, the CVP water supply 25 has been impacted three distinct ways. The first is the CAPITOL REPORTERS (916) 923-5447 11773 1 project's allocation and the way that takes place. Under 2 the Biological Opinion it requires that the Bureau 3 allocate water on the basis of a 90-percent probability of 4 exceedance runoff forecast. 5 Prior to the Biological Opinion, though, the 6 final allocation was typically announced in February. 7 That's the final, but now because of the fact that they 8 have to be so conservative in the way they allocate water, 9 the final allocation sometimes doesn't come until May or 10 even June. 11 And what that means in the way of operations is 12 if we're in March and the 90-percent exceedance forecast 13 shows that there is an insufficient supply to pump, say, 14 in March, that Tracy capacity will not be fully used 15 during March. The 50-percent exceedance forecast, though, 16 shows, however, that there was water enough to run Tracy 17 at full capacity during March. 18 Because we are -- as we work our way through the 19 year and we get to, say, April and hydrologic conditions 20 improve such that the 90-percent exceedance forecast shows 21 that there could have been more water pumped in March, 22 March is gone. We've lost that pumping capacity and we 23 don't have the ability using Tracy, solely Tracy between, 24 say, April and August to meet the peak irrigation demands. 25 There's no more capacity. CAPITOL REPORTERS (916) 923-5447 11774 1 So if the State Board were to approve joint point 2 of diversion, it is possible that Banks pumping plant 3 could be used to wheel the additional amount of water that 4 we in hindsight recognize could have been pumped in March. 5 The second factor, or -- yeah, I guess it would 6 be factor -- for how the Biological Opinion impacts CVP 7 supply is the temperature control requirement on the upper 8 Sacramento River for salmon. I must point out in my 9 testimony here I state that when storage is low in Shasta 10 Dam, Reclamation must delay normal summer releases from 11 Shasta until fall. 12 I since learned that, actually, when storages are 13 high then we'll see possibly some higher releases in fall. 14 When I talk about fall I'm talking primarily 15 September/October, but oftentimes when those storage 16 releases are being made to come down into flood control 17 compliance within Shasta, Tracy is running at full 18 capacity. So there's excess water being released to the 19 Delta that Tracy is not able to pump because of pumping 20 capacity. 21 If the State Board were to approve joint point of 22 diversion, State Banks possibly could be used to wheel 23 that additional amount of CVP water reaching the Delta 24 that Tracy cannot pump during those months. 25 The third factor in the Biological Opinion, CAPITOL REPORTERS (916) 923-5447 11775 1 actually, is the same as the 1994 Delta smelt Biological 2 Opinion, and that is the excessive take provision. 3 Whenever the projects incur excessive take the National 4 Marines Fishery Service or the Fish and Wildlife could 5 halt or reduce exports during these periods of excessive 6 take. 7 Because of that reduced amount of pumping, 8 possibly because of excessive take, and the fact that 9 Tracy would be pumping at capacity during the rest of the 10 year, the remainder of the peak irrigation season, Tracy 11 or the CVP facilities are unable to recapture or pump what 12 they lost during that excessive take period. If the State 13 Board approves joint point of diversion, Banks could be 14 used to wheel the lost CVP water during those periods of 15 excessive take. 16 The other factor affecting the CVP supply in 17 contributing to our 35-percent long-term supply reduction 18 is the Central Valley Project Improvement Act. And 19 primarily, the refuge water supply. Prior to CVPIA the 20 refuge supplies totalled about 150,000 feet. And 21 historically a majority of those refuge supplies came from 22 operational spills, tailwater and drain water that were a 23 by-product of deliveries to CVP contractors. 24 Now since CVPIA this additional 150,000 feet is 25 coming out of export, CVP exports, which is exacerbating CAPITOL REPORTERS (916) 923-5447 11776 1 the already existing CVP contract overobligation. The 2 total CVP contract obligation now exceeds annual Tracy 3 pumping capacity by about 400,000 feet. 4 With joint point of diversion, State Banks could 5 be used to move the additional amount of obligation we now 6 have to meet for the refuge supplies. 7 The other factor of the Central Valley Project 8 Improvement Act is the fact that the refuges now shall 9 receive a minimum of 75 percent when the Shasta rights 10 criteria is triggered. In other words, in the last 74 11 years, 64 of those years refuges would be getting a full 12 supply, 100 percent. But with the Shasta criteria 13 triggered there are -- there's about 10 years where they 14 don't quite -- well, they drop to 75 percent. Prior to 15 CVPIA, though, refuges received the same allocation 16 percentage as ag service. 17 C.O. BROWN: Is this the temperature criteria that 18 you're speaking about? 19 MR. BOARDMAN: No. This is the -- it's just a 20 mandate that says that a minimum supply for refuges now 21 will receive 75 percent. It's separate and apart from the 22 temperature control, which was part of the Biological 23 Opinion. 24 The CVPIA's refuge supply deficiency criteria has 25 caused the export shortage to primarily impact ag service CAPITOL REPORTERS (916) 923-5447 11777 1 contract supplies. In other words, when they were getting 2 cut, when refuges were getting cut to the extent of ag 3 service contractors, they were -- well, they were 4 incurring the same losses or the same impacts that we 5 were. But now an additional amount of ag service supply 6 has to go to meet the increased obligation of the minimum 7 75 percent for refuges. 8 Another aspect that has impacted or contributed 9 to the 35-percent reduction is the projects exports are 10 frequently limited in order to comply with water quality 11 outflow or export inflow requirements established in the 12 1995 Water Quality Control Plan. The State Water Project 13 has the ability to adjust its operation to make up 14 foregone exports. 15 However, because of the limited pumping capacity 16 at the Tracy pumping plan, the CVP has little to no 17 ability to do the same. Use of the State export 18 facilities under joint point of diversion would provide 19 the CVP with more, or some flexibility to make up foregone 20 exports in order to comply with the Water Quality Control 21 Plan. 22 The Delta-Mendota Canal has had a reduction in 23 its conveyance capacity over many years. As it sits now, 24 the Delta-Mendota Canal has a reduced conveyance capacity 25 of about 2 to 400 cfs less than the pumping capacity at CAPITOL REPORTERS (916) 923-5447 11778 1 Tracy, which is 4600 cfs as permitted by the Corps of 2 Engineers. 3 The conveyance limitation exists in all months 4 except for June, July and August. If joint point of 5 diversion were approved by the Board, State Banks could be 6 used to help make up the foregone exports resulting from 7 the DMC conveyance restrictions. 8 The water supply impacts of the above described 9 regulatory factors have been quantified in the model study 10 performed by the Department of the Interior. This study 11 was performed as part of Interior's effort to quantify the 12 impacts resulting from the CVPIA (b)(2) actions. More 13 specific, they used PROSIM, and the model runs are stated 14 in my declaration. 15 The results of the analysis, just to summarize, 16 indicate that projected reductions of CVP exports over the 17 72-year period analyzed by the modeling runs average 18 197,000 acre-feet without joint point of diversion. In 19 below normal, dry and critical years the average 20 reductions in CVP exports from the Delta would range from 21 188- to 369,000 acre-feet without joint point of 22 diversion. 23 Approval of the joint point of diversion would 24 provide the projects with some flexibility required to 25 accommodate water users' demands for reliable water supply CAPITOL REPORTERS (916) 923-5447 11779 1 while still complying with the provisions of CVPIA, ESA 2 and the applicable quality standards. And that concludes 3 my testimony. 4 MR. BIRMINGHAM: Mr. Ottemoeller, I am handing to 5 you a document that has been marked for identification as 6 Westlands' Exhibit 1. 7 Is Westlands' Exhibit 1 a statement of 8 qualifications which was prepared by you for submission to 9 the Board in connection with these proceedings? 10 MR. OTTEMOELLER: Yes, it is. 11 MR. BIRMINGHAM: Westlands' Exhibit 1 states that 12 you were employed by Westlands Water District; is that 13 correct? 14 MR. OTTEMOELLER: Currently that's not the case. 15 Since July 21st of this year, of 1998, I've been the 16 general manager of Madera Irrigation District. 17 MR. BIRMINGHAM: So Westlands' Exhibit 1 should be 18 modified to reflect that you are currently the general 19 manager at Madera? 20 MR. OTTEMOELLER: That's correct. 21 MR. BIRMINGHAM: Mr. Ottemoeller, do you have with 22 you a copy of Westlands Water District Exhibit 7? 23 MR. OTTEMOELLER: No. I have Exhibit 10. 24 MR. BIRMINGHAM: Excuse me. I'm sorry, Exhibit 10. 25 Is Westlands' Water District Exhibit 10 testimony which CAPITOL REPORTERS (916) 923-5447 11780 1 you prepared for presentation in connection with these 2 proceedings? 3 MR. OTTEMOELLER: Yes, it is. 4 MR. BIRMINGHAM: Could you briefly summarize 5 Westlands Water District Exhibit 10. 6 MR. OTTEMOELLER: Yes. If I could, I'm going to 7 need the overhead projector. Westlands Water District is 8 located on the west side of the San Joaquin Valley, 9 generally, in Fresno and King counties. Westlands has two 10 water service contracts with the United States Bureau of 11 Reclamation totaling 1,150,000 acre-feet of CVP water 12 annually. The water is exported from the Delta, is used 13 to irrigate approximately 600,000 acres within the 14 district. 15 Westlands is within the San Luis Unit of the CVP, 16 which is authorized by the San Luis Act of 1960. Prior to 17 that construction of that unit farmers in the Westlands 18 service area relied almost exclusively on groundwater for 19 irrigation. The groundwater basin was becoming severely 20 overdrafted, which was the primary purpose for 21 construction of the San Luis Unit. 22 As shown in this exhibit, we have two lines -- 23 MR. BIRMINGHAM: Excuse me, Mr. Ottemoeller. When 24 you say "as shown in this exhibit," you are referring to 25 Westlands Water District Exhibit 12? CAPITOL REPORTERS (916) 923-5447 11781 1 MR. OTTEMOELLER: That's correct. The two lines on 2 this graph show the amount of pumping that occurred in 3 Westlands and the elevation of the groundwater within 4 Westlands. This is an average elevation above sea level. 5 The elevation scale is to the left of the diagram and the 6 pumping scale is to the right, which we can't read right 7 now. 8 What this illustrates fairly dramatically is as 9 pumpage increased and was maintained at upwards of 900,000 10 acre-feet per year, during the 1950s and 1960s the 11 groundwater levels were dropping fairly precipitously. 12 C.O. BROWN: Excuse me, Mr. Ottemoeller. I'm not 13 here with you yet on your legend here. Is that pumping 14 water level off to your right? 15 MR. OTTEMOELLER: The amount of pumping in thousands 16 of acre-feet per year is, on this scale, there's 900, 800, 17 700. 18 C.O. BROWN: 700,000. And off to the left, is that 19 sea level elevation pumping? 20 MR. OTTEMOELLER: Sea level is zero, yes. 21 C.O. BROWN: So at the 900,000 you were pumping 200 22 feet sea level elevation? 23 MR. OTTEMOELLER: At the time that the pumping was 24 occurring at approximately 900,000 acre-feet per year, 25 varying from a little under 800,000 to above 900,000, the CAPITOL REPORTERS (916) 923-5447 11782 1 average groundwater surface elevation -- 2 C.O. BROWN: Okay. 3 MR. OTTEMOELLER: -- and this is primarily 4 piezometric levels of the sub-corcoran was dropping from 5 just above sea level to 150 feet below sea level. 6 C.O. BROWN: Okay. 7 MR. OTTEMOELLER: This is not a depth to water, it's 8 an average elevation of the water surface in the district. 9 C.O. BROWN: Okay. 10 MR. OTTEMOELLER: As water supplies became available 11 through the construction of the project in the late 1960s 12 pumpage reduced significantly to lows of less than 200,000 13 acre-feet, water levels of the groundwater recovered. 14 You'll note the 1976/'77 drought where pumping went up, 15 groundwater levels went down and recovered fairly quickly. 16 Again, you'll see the same type of response 17 during the late '80s and early '90s where pumpage 18 increased, groundwater levels decreased and had since 19 started to recover as water supplies have improved in the 20 last few years. 21 The report on feasibility of water supply for the 22 San Luis Unit, which was completed by the United States, 23 Bureau of Reclamation, in 1955 identified relieving this 24 overdraft situation as a principal purpose of the unit. 25 Even with an aggressive water use efficiency CAPITOL REPORTERS (916) 923-5447 11783 1 program, which Westlands is well known for, the annual 2 demand for all of the irrigatable acreage in Westlands 3 Water District is approximately 1.4 to 1.5 million 4 acre-feet per year. This assumes a full cropping of 5 568,000 irrigatable acres. 6 The save yield of the groundwater, or the 7 sustainable yield is approximately 150 to 200,000 8 acre-feet. So if you combine the sustainable yield with 9 the district's contract entitlement of 1,150,000 acre-feet 10 their supply still falls short of meeting needs by 100 to 11 200,000 acre-feet even in years when full-contract supply 12 is made available. 13 The deficiency has occurred despite Westlands 14 dramatic efforts to maximize irrigation efficiency. 15 Westlands is approximately 83-percent efficient on a 16 long-term basis. That's average application efficiency. 17 And for those who aren't familiar with irrigation 18 efficiency numbers, that's really about as good as it 19 gets. 20 Since 1990 the implementation of CVPIA, the 21 Endangered Species Act and the Water Quality Control Plan 22 have reduced the quantity and the reliability of the CVP 23 supply available to Westlands. Modeling currently shows 24 that Westlands can expect to receive an average of only 65 25 to 75 percent of its contractual entitlement on a CAPITOL REPORTERS (916) 923-5447 11784 1 long-term basis. Even in wet years, or above normal years 2 Westlands' water supply has been reduced because of the 3 operational constraints currently imposed on the project 4 under the Water Quality Control Plan, CVPIA and ESA 5 requirement. 6 Westlands can expect a full-contract supply as it 7 received in 1995, '96 and '98/'99 only in years when there 8 were significant flows on the San Joaquin River that reach 9 the Mendota Pool. Under that situation, the Exchange 10 Contractors can exercise their rights to divert that water 11 which leaves additional export water available for the 12 Bureau to its contractual obligations and other 13 obligations south of the Delta. 14 During the nine-year period, from 1990 through 15 1998 water years, Westlands' average supply has been 63 16 percent, or 728,333 acre-feet. The reduced allocations of 17 water impact the groundwater basin in one very significant 18 way. And that is as groundwater pumping increases, 19 subsidence also increases as a result of the overdraft. 20 Without getting into the detail of what causes 21 subsidence, it is clear that there is a correlation 22 between subsidence and groundwater pumping in the 23 district. The subsidence of the magnitude that's occurred 24 has impacts that can be fairly severe. 25 The jointly owned federal/state facilities have CAPITOL REPORTERS (916) 923-5447 11785 1 been damaged. The State has already had to raise the 2 canal lining in several parts of Westlands to accommodate 3 the subsidence. Groundwater wells have been destroyed as 4 a result of subsidence, which can occur either on a broad 5 scale or on a localized basis. Localized subsidence can 6 collapse well casings and increase significantly the cost 7 that landowners have to incur to ensure that they have a 8 backup water supply. 9 Final irreversible impact on the water resource 10 as a result of excessive pumping is that the water holding 11 capacity of this soil then gets reduced as subsidence 12 reduces the space between the materials in the soil and, 13 therefore, we can't store as much water once the 14 subsidence has occurred. 15 CVPIA has changed the way the CVP is operated. 16 Some of the ways that Mr. Boardman described, but also it 17 reallocated over a million acre-feet to primarily 18 environmental purposes from what formerly were 19 agricultural deliveries. Those reallocations include the 20 800,000 acre-feet of CVP yield for fish and wildlife 21 instream uses, the creation of minimum flow requirements 22 on the Trinity River and approximately 300,000 acre-feet 23 of additional supply to be delivered to refuges. 24 Mr. Boardman also described the impacts of ESA listings on 25 the manner in which the CVPIA is operated. CAPITOL REPORTERS (916) 923-5447 11786 1 As Westlands' supplies of CVP water have 2 diminished, they have taken significant efforts to make up 3 that supply from other sources. Water transfers have 4 become an increasingly significant part of that effort. 5 Since 1988 -- yeah, since '88 water users have been 6 allowed under district rules to transfer water directly 7 into the district for their own use. 8 Water users have been very creative and 9 successful in bringing water in under this program. 10 In addition, Westlands has had some levels of success 11 obtaining one-year contracts, or one-year transfers from 12 other districts, which augment the amount of water that is 13 available for allocation to all of its users. 14 Primary sources of transfers for individual water 15 users include transfers of their supplies from other 16 districts, purchases from individuals in other districts 17 and conveyance of groundwater that's been made available 18 either directly or by exchange. 19 Transfers to Westlands as a whole or as a unit 20 have included purchases from local districts within the 21 San Joaquin Valley on the west side as well as transfers 22 from the Friant Unit of the CVP. It's included water 23 banking arrangements, which include obligations to return 24 water in the future and it has included the purchase of 25 water rights on a temporary basis. CAPITOL REPORTERS (916) 923-5447 11787 1 The ability to consummate transfers relies in 2 some cases on exports from the Delta, which therefore 3 limits that as an alternative source for Westlands. The 4 fact that there have been no long-term transfers of water 5 from north of the Delta is a pretty good example that the 6 export constraints that limit the ability of the CVP to 7 deliver its water also limit the ability of water to be 8 transferred across the Delta. 9 Although the Bay-Delta Accord reduced the 10 uncertainty of annual operations and provided some relief 11 from the take provision, the net result, as we've noted 12 earlier, is still 25- to 35-percent reduction in 13 Westlands' annual water supply of CVP water. 14 The State Water Resources Control Board could 15 reduce the uncertainty by approving the petitioned changes 16 of the joint point of diversion under Alternative 5. This 17 proposed joint point of diversion would provide the 18 projects with some of the additional flexibility necessary 19 to meet their contracted water service obligations and 20 accommodate environmental uses and water user demands for 21 a more reliable water supply while still complying with 22 all provisions of the Water Quality Control Plan, CVPIA 23 and ESA. 24 MR. BIRMINGHAM: Mr. Ottemoeller, your written 25 testimony refers to Westlands -- CAPITOL REPORTERS (916) 923-5447 11788 1 C.O. BROWN: Excuse me, Mr. Birmingham. 2 MEMBER FORSTER: Could I ask for clarification, did 3 you mean Alternative 5 or Alternative 4? 4 MR. OTTEMOELLER: 5. 5 C.O. BROWN: Thank you, Mr. Birmingham. 6 MR. BIRMINGHAM: Mr. Ottemoeller, your written 7 testimony makes reference to Westlands' Exhibit 11. 8 MR. OTTEMOELLER: Yes. 9 MR. BIRMINGHAM: What is Westlands' Exhibit 11? 10 MR. OTTEMOELLER: Westlands' Exhibit 11 is a table 11 which shows the water supply deliveries since the 1988/'89 12 water year. And for clarification, the water year that's 13 shown on this table is the district's contract water year 14 which is a March through February water year. So the 15 1988/'89 year would be March of 1988 through February of 16 1989. 17 This is a summary of the allocation declared by 18 the Bureau of Reclamation, the water year type, the CVP 19 contract allocation in acre-feet and the other supplies 20 available to the district in acre-feet as well as total 21 delivered water. 22 MR. BIRMINGHAM: Thank you, Mr. Ottemoeller. 23 Mr. Orth, I'm handing to you what has been 24 identified as Westlands' Exhibit 94, "Statement of 25 Qualifications for David L. Orth." Is Westlands' Exhibit CAPITOL REPORTERS (916) 923-5447 11789 1 94 a statement of your professional qualifications? 2 MR. ORTH: Yes, it is. 3 MR. BIRMINGHAM: Do you have with you, Mr. Orth, a 4 copy of Westlands Water District Exhibit 7? 5 MR. ORTH: Yes, I do. 6 MR. BIRMINGHAM: Is Westlands Water District Exhibit 7 7 testimony for which you prepared for presentation to the 8 Water Board? 9 MR. ORTH: Yes, it is. 10 MR. BIRMINGHAM: Would you, please, briefly 11 summarize what is stated in Westlands Water District 12 Exhibit 7. 13 MR. ORTH: Westlands Water District serves water to 14 one of the most fertile, productive and diversified 15 farming regions in the nation. Our rich soil, the good 16 climate conditions, water availability and the farm 17 management techniques used in our district have helped us 18 represent one of the major farming areas in the San 19 Joaquin Valley and the nation. Our farmers produce over 20 50 different commercial fiber and food crops that are sold 21 on fresh markets, dry, canned and frozen food products 22 both domestically and on the export markets. 23 The use of Central Valley Project water within 24 Westlands for irrigation has produced a substantial 25 economic benefit for the region. In 1994, which is the CAPITOL REPORTERS (916) 923-5447 11790 1 last year that we developed specific crop values with 2 information from our water users and farmers, we provided 3 a gross farm product in excess of $770,000,000. That 4 770,000,000 generated jobs, taxes and strong economic 5 activity for the state. 6 Using a common economic assumption that has been 7 developed by the University of California, that assumption 8 being that for every dollar of on-farm gross product, you 9 generate another $3 to $3.50 of value to the economy. The 10 activities of Westlands Water District generate nearly 11 three billion dollars in economic activity each year. 12 Consistently our farmers produce higher yields 13 using less water than farmers do in other parts of the San 14 Joaquin Valley with the degree of applied efficiency that 15 Mr. Ottemoeller reported presently being at a level of 16 approximately 83 percent and, again, acknowledged not only 17 on a regulatory basis by the Department of Water Resources 18 but internationally as well. 19 Using plant varieties, sprinklers, drip 20 irrigation and micro-irrigation through furrow and 21 sprinklers management techniques and water recycling our 22 farmers that are cotton farmers apply approximately 19 23 percent less water and provide approximately 45 more 24 cotton per acre-foot than the San Joaquin average. Our 25 tomato farmers apply approximately 15 percent less water CAPITOL REPORTERS (916) 923-5447 11791 1 per acre and produce 28 percent more tomatoes than the 2 valley average. 3 The value of water from the Central Valley 4 Project to Westlands includes the production value of the 5 water, also includes a contribution to local and state 6 economies for farm products and services, provides tax 7 base, provides employment through the generation of jobs 8 by farming land irrigated with the water in it, provides 9 income generated for the district through water charges 10 based on the delivery and sale of water. 11 The average quantity of water needed to produce a 12 crop of land within Westlands is approximately 2.5 13 acre-feet per acre. Without a replacement supply for 14 every 1,000 acre-feet of CVP water that we lose, 15 approximately 400 acres of land must be removed from 16 production. Based on the average annual gross crop value 17 of $1500 per harvested acre of land within the district, 18 as supported by our Exhibits 8C through 8F, the loss of 19 400 -- the fallowing of 400 acres of land reduces gross 20 farm product by approximately $600,000 each year. 21 The employment value of the CVP water can be 22 presented as such: Approximately one full-time farm 23 worker is required for every 80 acres of land in 24 production. Therefore, again, for every 1,000 acre-feet 25 of CVP water lost to our region, approximately five people CAPITOL REPORTERS (916) 923-5447 11792 1 become and remain unemployed. 2 Because of the unreliability or the shortage in 3 our water supply, again as Mr. Ottemoeller reported, 4 Westlands must allocate water to our farmers even in the 5 wettest years. In the dry years the cuts or the 6 reductions in those allocations can be very severe. 7 In 1991, a year where our CVP entitlement was 8 approximately 25 percent, almost 125,000 acres, or 21 9 percent of the district's gross acreage, was idled 10 resulting in a loss of gross farming income estimated at 11 175 million dollars, not including unemployment numbers or 12 reductions in local taxes or regional economies. 13 C.O. BROWN: What year was that? 14 MR. ORTH: 1991. The water shortages not only have 15 an impact to the farmers in the San Joaquin Valley, but it 16 also has a significant impact to the rural communities who 17 rely on a strong agricultural economy. 18 For example, my testimony includes a study 19 prepared by the California Institute of Rural Studies 20 entitled, "93640 at Risk: Farmers, Workers and 21 Townspeople in an Era of Water Uncertainty." And this 22 represents a study of the economic impacts on the small 23 rural community of Mendota, which lies within the 24 Westlands Water District service area. 25 This report, which is included as Westlands' CAPITOL REPORTERS (916) 923-5447 11793 1 Exhibit 9, revealed farm impacting wage income reductions 2 of approximately 4.8 million dollars in the early '90s, 3 drop in employment for a community already saddled with 4 double-digit employment of 360 to 700 farm jobs and an 5 11-percent drop in retail sales as well as a reduction in 6 farm values of nearly 30 percent compared to farmland 7 values that were increasing in other areas of Fresno 8 County. 9 The State Water Resources Control Board can 10 ensure the future economic productivity in the Westlands' 11 service area by approving the petitioned changes of point 12 of diversion under the Central Valley Project and State 13 Water Project permits. 14 MR. BIRMINGHAM: That concludes the presentation of 15 our direct testimony. And these witnesses would be 16 available for cross-examination by other parties. 17 C.O. BROWN: Thank you, Mr. Birmingham. 18 May I see a show of hands of those who wish to 19 cross: Mr. Hasencamp, Mr. Nomellini, Mr. Suyeyasu, 20 Mr. Herrick. 21 MEMBER FORSTER: And Sexton. 22 C.O. BROWN: Mr. Sexton. All right, I have 23 Campbell, Hasencamp, Nomellini, Suyeyasu, Herrick and 24 Sexton. Is that it? 25 Mr. Birmingham. CAPITOL REPORTERS (916) 923-5447 11794 1 MR. BIRMINGHAM: May I step out of the room for just 2 one moment? 3 C.O. BROWN: Yes, you may. We'll go off the record 4 for a moment until Mr. Birmingham comes back. 5 (Off the record from 9:51 a.m. to 9:53 a.m.) 6 C.O. BROWN: Back on the record. In the luck of the 7 draw, the first one up is Mr. Hasencamp. 8 MR. HASENCAMP: Actually, I've conferred with my 9 notes and I have no questions. 10 C.O. BROWN: Okay, Mr. Hasencamp. 11 Next one is Mr. Nomellini. 12 MR. NOMELLINI: I have a few questions. Did you 13 want to go through the list first before I start, 14 Mr. Chairman? 15 C.O. BROWN: It's Nomellini, Mr. Suyeyasu, 16 Mr. Campbell, Mr. Sexton, Mr. Herrick. 17 Mr. Herrick, you're four in a row. 18 ---oOo--- 19 CROSS-EXAMINATION OF THE WESTLANDS WATER DISTRICT AND 20 THE SAN LUIS AND DELTA-MENDOTA WATER AUTHORITY 21 BY THE CENTRAL DELTA PARTIES 22 BY DANTE JOHN NOMELLINI 23 MR. NOMELLINI: Mr. Chairman, Member of the Board, 24 Dante John Nomellini for Central Delta Parties. 25 My first questions are for Mr. Boardman. CAPITOL REPORTERS (916) 923-5447 11795 1 MR. BIRMINGHAM: And the record should reflect that 2 I have instructed the witnesses not to respond to 3 Mr. Nomellini's questions by saying, "That is a stupid 4 question." 5 C.O. BROWN: I'm sure that's in the record. 6 MR. NOMELLINI: Thank you, Tom. I appreciate the 7 gracious gesture. 8 Mr. Boardman, I believe you testified that the 9 allocations of CVP water to -- I think you categorized the 10 entire group -- San Luis and Delta-Mendota Water Authority 11 was reduced by approximately 38 percent. 12 Is that fairly accurate as to what you testified 13 to? 14 MR. BOARDMAN: Actually, it was the CVP ag service 15 contractors that had incurred that 35 percent. 16 MR. NOMELLINI: And in that calculation, what was 17 the baseline for the determination of the 35-percent 18 decrease? 19 MR. BOARDMAN: Baseline was with the Water 20 Quality -- 1995 Water Quality Control Plan. 21 MR. NOMELLINI: So over and above the 1995 Water 22 Quality Control Plan you expect there to be a 35-percent 23 reduction in CVP agricultural service deliveries? 24 MR. BOARDMAN: That's correct. 25 MR. NOMELLINI: And you mentioned a number of CAPITOL REPORTERS (916) 923-5447 11796 1 different elements that you factored in to determine the 2 35 percent. And you mentioned the temperature 3 requirements at Shasta; is that correct? 4 MR. BOARDMAN: That's correct. 5 MR. NOMELLINI: Do you have an opinion as to what 6 part of the 35 percent is related to the temperature 7 requirements at Shasta? 8 MR. BOARDMAN: No, I do not. 9 MR. NOMELLINI: And you mentioned the take 10 limitations at the pumps? 11 MR. BOARDMAN: That's correct. 12 MR. NOMELLINI: Did you attribute any part of the 13 percentage to that particular factor? 14 MR. BOARDMAN: No. 15 MR. NOMELLINI: All right. And you mentioned the 16 CVPIA refuge water supply requirements, did you attribute 17 any particular percentage to the refuge water supply? 18 MR. BOARDMAN: No. 19 MR. NOMELLINI: I believe you quantified in some 20 respects the refuge water supply requirements of the CVPIA 21 as increasing demand by up to 150,000 acre-feet; is that 22 correct? 23 MR. BOARDMAN: Yes. 24 MR. NOMELLINI: All right. Given that increased 25 demand of the 150,000 acre-feet, would it not be possible CAPITOL REPORTERS (916) 923-5447 11797 1 to calculate a percentage attributed to that particular 2 increase in refuge water supply demand? 3 MR. BOARDMAN: It's possible. 4 MR. NOMELLINI: Do you know what that percentage 5 would be? 6 MR. BOARDMAN: No, I do not. 7 MR. NOMELLINI: All right. Now, do the Biological 8 Opinions have any impact on this reduction in supply -- 9 MR. BOARDMAN: Yes. 10 MR. NOMELLINI: -- that comprise the 35 percent? 11 MR. BOARDMAN: Yes, they do. 12 MR. NOMELLINI: And what Biological Opinions are 13 included in this 35-percent reduction in supply? 14 MR. BOARDMAN: The 1993 chinook salmon winter-run 15 opinion and the 1994 Delta smelt Biological Opinion. 16 MR. NOMELLINI: And where is the 1992 winter-run 17 Biological Opinion factored in? 18 MR. BOARDMAN: We're using the '93 opinion in this 19 analysis. 20 MR. NOMELLINI: Okay. But is there a temperature 21 requirement in the 1992? 22 MR. BOARDMAN: Yes, there is. 23 MR. NOMELLINI: All right. And you didn't factor 24 that into the 35 percent? 25 MR. BOARDMAN: '93 includes that '92. It makes more CAPITOL REPORTERS (916) 923-5447 11798 1 specific -- the temperature requirements more specific in 2 the '93 opinion. 3 MR. NOMELLINI: Is there any particular reason why 4 you did not use the Delta Accord as the baseline? 5 MR. BOARDMAN: We did use the 1995 Bay-Delta Accord 6 as the baseline. 7 MR. NOMELLINI: Okay. So this is your understanding 8 of what the Accord baseline is, then? When I say "this," 9 it would be the 1995 Water Quality Control Plan. 10 MR. BOARDMAN: Right. 11 MR. NOMELLINI: Now, you indicated that the total 12 CVP contract obligation now exceeds the annual Tracy 13 pumping capacity by about 400,000 acre-feet; is that 14 correct? 15 MR. BOARDMAN: Yes. 16 MR. NOMELLINI: All right. And 150,000 of that 17 would be the refuge water supply served by the export 18 pumps? 19 MR. BIRMINGHAM: Objection. Asked and answered. 20 C.O. BROWN: Answer it again. 21 MR. BOARDMAN: Yes. 22 MR. NOMELLINI: And I didn't ask the question in the 23 context of 400,000 so I don't think it was asked. 24 C.O. BROWN: I so recognized that, Mr. Nomellini. 25 MR. NOMELLINI: All right. Now, what constitutes CAPITOL REPORTERS (916) 923-5447 11799 1 the other part of the excess contractual obligation that's 2 included in the 400,000 acre-feet? 3 MR. BOARDMAN: It's reduced pumping during times of 4 the year that might relate to temperature control, which 5 was under the '93 winter-run Biological Opinion, 6 conveyance, capacity restrictions and the minimum 7 allocation set forth in the CVPIA. 8 MR. NOMELLINI: All right. So your testimony here 9 does not indicate, does it, that the Bureau of Reclamation 10 entered into contract obligations for export water beyond 11 the design capability of its export pumps? 12 MR. BOARDMAN: Could you repeat that question? 13 MR. NOMELLINI: All right. Does this -- let me ask 14 it differently. 15 Does this testimony indicate that the Bureau of 16 Reclamation entered into contractual obligations to 17 deliver water from the Delta in excess of the capacity of 18 its Tracy pumping plant facility? 19 MR. BOARDMAN: No. 20 MR. NOMELLINI: Okay. So the capacity, Tracy 21 pumping plant capacity that you refer to in this statement 22 that I read is constrained by various regulatory impacts? 23 MR. BOARDMAN: That's correct. 24 MR. NOMELLINI: All right. Now, in determining the 25 CVP contract obligation for which you have concluded it CAPITOL REPORTERS (916) 923-5447 11800 1 now exceeds by 400,000 acre-feet the pumping capacity, 2 have you included in that the deliveries to the Cross 3 Valley Canal contractors? 4 MR. BOARDMAN: No. 5 MR. NOMELLINI: So would that be in addition to the 6 400,000 acre-feet? 7 MR. BOARDMAN: Yes. 8 MR. NOMELLINI: Is there a reason why you did not 9 include the contractual commitments to the Cross Valley 10 Canal contractors? 11 MR. BOARDMAN: I believe the assumption at the time 12 was that the Cross Valley water is being currently wheeled 13 by the Banks pumping plant and that that would continue. 14 So we looked at excluding the Cross Valley Canal 15 contractors. 16 MR. NOMELLINI: Do you understand the joint point of 17 diversion, Alternative 8, to allow for more than 400,000 18 acre-feet to be wheeled through the State Project 19 facilities for the CVP? 20 MR. BOARDMAN: I believe it stated that it had the 21 potential to wheel more than 400,000. 22 MR. NOMELLINI: And, in fact, it could go up to as 23 high as 800,000; is that your understanding? 24 MR. BOARDMAN: That's what I recall. 25 MR. NOMELLINI: And based upon your analysis there CAPITOL REPORTERS (916) 923-5447 11801 1 would be no need for the additional 400,000 above the 2 400,000 that you're talking about here? 3 MR. BOARDMAN: Yeah, I would say that's correct. 4 With -- my interpretation of the 800,000 is not -- is more 5 of a -- it implies that the flexibility is there to meet 6 the 400,000 that we're currently seeking. 7 MR. NOMELLINI: Okay. With regard to the panel as a 8 whole, does anyone on the panel, the agencies represented 9 on the panel have any objection to the use of the capacity 10 of a joint point of diversion in excess of the 400,000 11 acre-feet being used to help restore the water quality and 12 flow of the San Joaquin River? 13 MR. ORTH: I don't understand the question. I need 14 the question restated. 15 MR. NOMELLINI: All right. Anybody else understand 16 that question, before I re-explain it? 17 MR. BOARDMAN: Try it again. 18 MR. NOMELLINI: All right. Assuming that 19 Alternative 8, under the joint point of diversion 20 proposal, has 400,000 acre-feet extra capacity in some 21 years. Do any of the agencies represented here have an 22 objection to the use of that extra pumping capacity for 23 the purpose of restoring the water quality and flow of the 24 San Joaquin River? 25 MR. ORTH: I think the answer is: No, we do not CAPITOL REPORTERS (916) 923-5447 11802 1 object. 2 MR. NOMELLINI: All right. Back to Mr. Boardman. 3 With regard to your statement on Page 5, second 4 paragraph stating that, 5 (Reading): 6 "Conveyance limitation exists in all months 7 except June, July and August." 8 Now, what conveyance limitation are you talking 9 about in that sentence? 10 MR. BOARDMAN: In the upper portion of the -- or the 11 portion of the upper DMC, which is just south of Tracy, 12 there's been subsidence. And that subsidence has 13 restricted the conveyance capacity to that particular 14 reach of the Delta-Mendota Canal to 400 cfs less than the 15 designed pumping capacity at Tracy. 16 MR. NOMELLINI: So that would be 4200 cubic feet per 17 second? 18 MR. BOARDMAN: At 400 cfs, right. 19 MR. NOMELLINI: All right. And then why does the 20 limitation go away in the months of June, July and August? 21 MR. BOARDMAN: There's sufficient amount of demand 22 in that reach to where the waters being diverted just 23 upstream of where that bottleneck occurs to where they can 24 convey, or pump 4600 at Tracy. 25 MR. NOMELLINI: So they're pumping out as fast as CAPITOL REPORTERS (916) 923-5447 11803 1 they're pumping in, in a sense, and, therefore, it doesn't 2 take up as much capacity as the conveyance facility? 3 MR. BOARDMAN: They're diverting upstream of that 4 bottleneck of about 400 cfs, yes. 5 MR. NOMELLINI: Okay. 6 MR. OTTEMOELLER: If I could add to that? 7 MR. NOMELLINI: Sure. 8 MR. OTTEMOELLER: There is also, besides the 9 subsidence, there was a design -- the design of the canal 10 was such that it was built like a normal canal where you 11 have the capacity of the canal being reduced as water 12 deliveries are expected at the upper reaches. 13 The canal capacity reduced from 4600 to about 14 4200 at the O'Neill pumping plant where the water goes 15 into San Luis. So there's some built-in design 16 limitations. If you have no demand on the upper end of 17 the system, you can't get the full capacity, the pumping 18 plant, to San Luis Reservoir to store water when the flows 19 are high. 20 MR. NOMELLINI: When the agencies represented by 21 this panel contracted with the federal government for 22 water, did they expect that the federal government would 23 build additional export pumping facilities from the Delta, 24 if you know? 25 MR. ORTH: I don't know. I don't believe so. CAPITOL REPORTERS (916) 923-5447 11804 1 MR. OTTEMOELLER: There would have been no basis at 2 the time, because the Bureau only contracted for what they 3 had the capacity to deliver. 4 MR. NOMELLINI: Okay. Switching over to 5 Mr. Ottemoeller, you had an exhibit, Westlands' 12, up on 6 the screen. 7 MR. OTTEMOELLER: Would you like me to put it back? 8 MR. NOMELLINI: Yeah, if you could. All right. In 9 your testimony you addressed land subsidence as being a 10 significant negative factor associated with reduction in 11 groundwater elevation. 12 Is that a correct characterization of your 13 statement? 14 MR. OTTEMOELLER: I think my statement was that it 15 was due to excessive groundwater pumping. 16 MR. NOMELLINI: Okay. Let's take you to the next 17 step. Does excess groundwater pumping cause subsidence 18 because it reduces the groundwater elevation? 19 MR. OTTEMOELLER: That's part of the -- part of the 20 equation, yes. 21 MR. NOMELLINI: All right. What other part is there 22 to the equation of subsidence related to groundwater 23 pumping? 24 MR. OTTEMOELLER: The forces within the soil 25 contracting or reducing the space available that was CAPITOL REPORTERS (916) 923-5447 11805 1 formerly filled with water. 2 MR. NOMELLINI: Well -- 3 MR. OTTEMOELLER: It's -- 4 MR. NOMELLINI: -- aren't they one and the same? 5 MR. OTTEMOELLER: It's directly related to the 6 reductions of the elevations, I'll go along with that. 7 MR. NOMELLINI: All right. Let's look at your 8 exhibit, then, Westlands' 12. Did you prepare this 9 exhibit? 10 MR. OTTEMOELLER: I participated in the preparation, 11 yes. 12 MR. NOMELLINI: Do you believe it's accurate in 13 terms of what it represents? 14 MR. BIRMINGHAM: I'm going to object to that 15 question on the ground it is argumentative. 16 C.O. BROWN: I think the accuracy as you understand 17 it is a fair question. 18 MR. BIRMINGHAM: If I may, Mr. Brown, this witness 19 has testified in his direct testimony as to the accuracy 20 of this exhibit. And when Mr. Nomellini says, "Do you 21 believe that this is true," that is argumentative. 22 Mr. Ottemoeller would not have referred to it in his 23 direct testimony if he didn't believe it was true. 24 C.O. BROWN: Mr. Nomellini. 25 MR. NOMELLINI: Well, I think the witness said he CAPITOL REPORTERS (916) 923-5447 11806 1 participated in the preparation, he didn't say he prepared 2 it entirely himself. And there may have been others -- 3 well, were there others participating in the preparation 4 of this exhibit? 5 C.O. BROWN: Well, wait a minute. Let's handle it 6 this way. 7 MR. NOMELLINI: Yeah. 8 C.O. BROWN: I believe he can answer the question as 9 to the relative accuracy of this document if you have an 10 answer to it, Mr. Ottemoeller. 11 MR. OTTEMOELLER: I believe it to be accurate. 12 C.O. BROWN: Okay. 13 MR. NOMELLINI: Okay. That's enough of that. When 14 did the subsidence in the ground about which you testified 15 occur in terms of the time frame shown on Westlands' 16 Exhibit 12? 17 MR. OTTEMOELLER: It occurred primarily during the 18 high levels of pumping. There are historic data to show 19 that during the 1950s and 1960s there was subsidence 20 occurring. There has been some subsidence since that 21 time. Primarily, I believe the Department of Water 22 Resources noted some additional subsidence that occurred 23 during the early 1990s when groundwater pumping increased 24 again. 25 MR. NOMELLINI: Would you expect subsidence to CAPITOL REPORTERS (916) 923-5447 11807 1 increase even if groundwater elevations do not drop to the 2 low points as reflected in the 1960s, 1970s? 3 MR. OTTEMOELLER: Increase compared to what? 4 MR. NOMELLINI: Well, do you expect increased 5 subsidence over and above that which has been triggered by 6 the groundwater elevation drops reflected in the period of 7 1960 to roughly 1970? 8 MR. OTTEMOELLER: It's still not clear to me whether 9 you're talking about a rate of subsidence or subsidence in 10 total. 11 MR. NOMELLINI: Okay. Let's try and break it down. 12 You would agree, would you not, that subsidence is 13 triggered by the drop in groundwater elevation? 14 MR. OTTEMOELLER: Yes. 15 MR. NOMELLINI: And it would take some time for the 16 soil particles to actually compact; is that correct? 17 MR. OTTEMOELLER: Yes. 18 MR. NOMELLINI: And do you agree that bringing 19 groundwater elevations back up will not undo the 20 subsidence that had previously occurred? 21 MR. OTTEMOELLER: That's correct. 22 MR. NOMELLINI: What additional subsidence do you 23 anticipate that would be triggered by the failure of the 24 Bureau to be able to utilize the joint points of 25 diversion? CAPITOL REPORTERS (916) 923-5447 11808 1 MR. OTTEMOELLER: I don't have a specific number in 2 terms of inches or feet of subsidence, but as the 3 reliability of surface water supply and the quantity of 4 surface water supply is reduced, you have an increased 5 reliance on the groundwater, which means under normal 6 cycling you're going to have more times when the 7 groundwater is lower. 8 On a long-term basis, if the pumping were to 9 exceed the sustainable yield you would have a long-term 10 reduction in the groundwater water elevations. And, 11 therefore, you would have continuing subsidence. If it 12 were simply a matter of normal cycling, you may have some 13 subsidence but it wouldn't be as much, because when you 14 recover you, at least temporarily, reduce the occurrence 15 of subsidence. 16 MR. NOMELLINI: Is there a benefit associated with 17 the Westlands farmers using greater amounts of 18 groundwater? 19 MR. OTTEMOELLER: Benefit to what? 20 MR. NOMELLINI: Any benefit that you see and then 21 I'll break it down for you. 22 MR. OTTEMOELLER: Can you restate the question? 23 MR. NOMELLINI: All right. Let's go back -- 24 MR. OTTEMOELLER: I'm confused what we're comparing, 25 greater than to what? CAPITOL REPORTERS (916) 923-5447 11809 1 MR. NOMELLINI: Okay. Is there a portion of the 2 Westlands Water District that is adversely impacted by 3 high groundwater levels? 4 MR. OTTEMOELLER: If you're referring to perched 5 water levels, yes, but that's not related to -- generally 6 it's not related to the deep groundwater levels that are 7 impacted by water supply pumping. 8 MR. NOMELLINI: Okay. Is it your testimony that 9 pumping from the deep water levels does not affect the 10 levels of water near the surface of the drainage-impacted 11 area within Westlands? 12 MR. OTTEMOELLER: I don't know what the relationship 13 is between the deep pumping and the shallow groundwater 14 levels in the drainage areas. 15 MR. NOMELLINI: All right. In your testimony in the 16 last page, it's Page 5, you say, 17 (Reading): 18 "The State Water Resources Control Board could 19 further reduce the uncertainty by approving the 20 petitioned changes of point of diversion under 21 the CVP and SWP permits without conditions." 22 You see that? 23 MR. OTTEMOELLER: Yes. 24 MR. NOMELLINI: Is there any particular reason why 25 you have requested that the Board not impose conditions? CAPITOL REPORTERS (916) 923-5447 11810 1 MR. OTTEMOELLER: That is probably somewhat broad. 2 Obviously, there are conditions such as complying with the 3 Water Quality Control Plan itself and the permits. 4 That statement is intended to reflect the desire 5 that there not be additional conditions beyond the 6 permits, or the Water Quality Control Plan, or the other 7 applicable laws which are referenced on the last line of 8 that testimony. 9 MR. NOMELLINI: So any conditions related to 10 applicable law would not fall within the category of what 11 you would expect the Board to leave out of their order? 12 MR. OTTEMOELLER: That's correct. 13 MR. NOMELLINI: Okay. 14 MR. OTTEMOELLER: That was referenced to the types 15 of conditions that say you can't pump if you do something 16 else, that's not currently part of the Water Quality 17 Control Plan or the other laws. 18 MR. NOMELLINI: Have you made any analysis of 19 whether or not there is unappropriated water available to 20 be pumped by the Bureau through the joint points of 21 diversion to the extent of the unconditional request? 22 MR. OTTEMOELLER: I've not made that analysis. 23 MR. NOMELLINI: Would you expect to be able to pump 24 water even if it was appropriated by some other party? 25 MR. OTTEMOELLER: That wouldn't be my expectation. CAPITOL REPORTERS (916) 923-5447 11811 1 MR. NOMELLINI: I think this question is probably 2 for the panel: The Westlands Water District contractual 3 entitlement is referred to in Mr. Ottemoeller's statement 4 as being 1,150,000 acre-feet. Is that about the right 5 number? 6 MR. OTTEMOELLER: Yes. 7 MR. ORTH: That is the right number, yes. 8 MR. NOMELLINI: And I gather from the testimony that 9 extensive water conservation efforts have been put into 10 place within the Westlands Water District. Is that also 11 correct? 12 MR. OTTEMOELLER: Yes. 13 MR. NOMELLINI: And is it also true that such 14 extensive water conservation efforts have not reduced 15 Westlands' demand for CVP water deliveries? 16 MR. OTTEMOELLER: That's basically correct, because 17 the total demand for water is much greater than the CVP 18 contract supply. 19 MR. NOMELLINI: All right. With regard to the water 20 demands within Westlands Water District, is there any 21 reduction in total demand occurring due to retirement of 22 drainage-impacted lands? 23 MR. ORTH: The -- state the question again, please. 24 MR. NOMELLINI: Yeah. Addressing the Westlands' 25 total water demand, which would include its demand for CVP CAPITOL REPORTERS (916) 923-5447 11812 1 water as well as its utilization of other sources, is 2 there a reduction in demand occurring within Westlands due 3 to retirement of drainage-impacted lands? 4 MR. ORTH: That has occurred over the last year as a 5 result of the Bureau of Reclamation's acquisition of 6 approximately 2,000 acres of land as a land retirement 7 pilot project combined with the district's acquisition of 8 approximately 200 acres of land and the reallocation of 9 those lands to the balance of the district. So it's been 10 very, very minimal at this point. 11 MR. NOMELLINI: So it would be the change in 12 consumptive use occurring on this 2200 acres by reason of 13 the acquisition that would reduce the demand; is that 14 correct? 15 MR. ORTH: If I understand the question, the lands 16 that are no longer allocated a surface water entitlement 17 of CVP water are being, in effect, managed for dry land 18 habitat or farmed without CVP water entitlement. And, 19 therefore -- in a much different way, typically more dry 20 land -- dry farming approach. Therefore, the gross demand 21 on those acres has been reduced. 22 MR. NOMELLINI: Okay. And that's water made 23 available to the balance of the people in the district; is 24 that correct? 25 MR. ORTH: That is correct. CAPITOL REPORTERS (916) 923-5447 11813 1 MR. NOMELLINI: So the demand, the total demand of 2 the district would go down by this admittedly small 3 amount, by this amount associated with this land 4 retirement; would it not? 5 MR. ORTH: Correct. 6 MR. NOMELLINI: All right. Now, do you expect the 7 reduction in demand associated with retirement of 8 drainage-impacted lands to increase in the future? 9 I guess I'm on you, Mr. Orth. 10 MR. ORTH: Yeah, that's fine. I think most 11 everybody is aware that the Bureau of Reclamation has 12 undertaken a land retirement program as authorized by the 13 Central Valley Project Improvement Act. They are in the 14 process of doing an additional environmental review of the 15 impacts of implementing that program. 16 If that program proceeds I am not capable of 17 projecting, at this point, how successful it will be. I 18 would expect that -- if it does proceed that there will be 19 some amount of additional land retirement that will, in 20 effect, reduce the overall demand. To the extent those 21 lands are retired out of Westlands, then our total need 22 would be reduced by whatever quantity of land is retired. 23 MR. NOMELLINI: You have a projection as to what the 24 range of the quantity of land being retired could be? 25 MR. ORTH: I think the Bureau of Reclamation's CAPITOL REPORTERS (916) 923-5447 11814 1 targets are approximately 40,000 acres. It would probably 2 be where -- I don't know exactly what their long-term 3 targets are is probably the more appropriate answer. 4 I think that they would like to retire somewhere in the 5 range of 40- to 70,000 acres over the long-term. 6 MR. NOMELLINI: All right. 7 C.O. BROWN: Mr. Nomellini? 8 MR. NOMELLINI: Yes, sir. 9 C.O. BROWN: Let's take our 12-minute break for this 10 morning. 11 MR. NOMELLINI: Sounds good. 12 (Recess taken from 10:29 a.m. to 10:42 a.m.) 13 C.O. BROWN: Okay. We're back on the record again. 14 Mr. Nomellini. 15 MR. NOMELLINI: During the break I was notified that 16 Mr. Boardman, perhaps, misspoke in answer to my question 17 as to the baseline for the calculation of the 35-percent 18 reduction. 19 C.O. BROWN: Okay. 20 MR. NOMELLINI: And, Mr. Boardman, is it correct 21 that the baseline was D-1485 rather than the 1995 Water 22 Quality Control Plan? 23 MR. BOARDMAN: Yes, that's correct. 24 MR. NOMELLINI: All right. Okay. Back to Mr. Orth, 25 that didn't get you off the hook. The Westlands Water CAPITOL REPORTERS (916) 923-5447 11815 1 District presented an exhibit in these Board hearings -- 2 and I don't remember the number -- but my recollection was 3 it was a settlement agreement involving drainage-impacted 4 lands in a particular bit of litigation. And there was a 5 map attached that had a crosshatched area that indicated 6 drainage-impacted areas. And the settlement agreement 7 provided for Westlands acquisition of some of those lands 8 in the drainage-impact area. 9 Are you familiar with that, I'll say at this 10 point in time, a draft of agreement of that type as a 11 settlement? 12 MR. ORTH: Yes, I am. 13 MR. NOMELLINI: What was the acreage of 14 drainage-impacted lands that was to be acquired in that 15 settlement agreement? 16 MR. ORTH: If the settlement agreement you're 17 speaking about was settlement -- 18 MR. BIRMINGHAM: Excuse me. May I? 19 C.O. BROWN: Mr. Birmingham. 20 MR. BIRMINGHAM: Westlands Water District 95 which 21 was the settlement agreement between the United States, 22 Department of Interior and Westlands Water District dated 23 July 23, 1997, which pertains to the Sumner Peck 24 litigation. 25 MR. ORTH: Thank you, Tom. CAPITOL REPORTERS (916) 923-5447 11816 1 C.O. BROWN: Thank you. 2 MR. ORTH: That settlement agreement provided for 3 district participation with the United States and the 4 acquisition of up to -- I believe, it was about 43,000 5 acres of land held by the plaintiffs. 6 MR. NOMELLINI: And what is the status of that 7 settlement agreement? 8 MR. ORTH: It was rejected by the district -- the 9 Federal District Court. 10 MR. NOMELLINI: Is there another settlement 11 agreement other than the one we just talked about that 12 involves retirement of drainage-impacted lands? 13 MR. ORTH: There's not another settlement agreement, 14 no. 15 MR. NOMELLINI: The 43,000 acres in the settlement 16 agreement which was rejected by the Federal District 17 Court, is that area the same area that is targeted for 18 retirement by the Bureau about which we -- you spoke 19 earlier which ranged from 40 to 70,000 acres? 20 MR. ORTH: There is approximately 10,000 acres of 21 the 43,000 covered in the failed settlement agreement that 22 falls outside of the area that the Bureau of Reclamation 23 is targeting for land retirement. 24 MR. NOMELLINI: Do you have an estimate as to the 25 total number of drainage-impacted areas in the Westlands CAPITOL REPORTERS (916) 923-5447 11817 1 Water District? 2 MR. BIRMINGHAM: Objection. Ambiguous. What does 3 Mr. Nomellini mean by "drainage impacted area"? 4 C.O. BROWN: Clear that up a little bit, 5 Mr. Nomellini. 6 MR. NOMELLINI: Mr. Orth, have you ever heard the 7 term "drainage-impacted lands"? 8 MR. ORTH: Yes, I have. 9 MR. NOMELLINI: And what do you consider to be 10 drainage impacted land? 11 MR. ORTH: I would say those lands that have depth 12 to shallow groundwater at such a shallow level that it 13 impacts the production for growing alternatives available 14 to the landowner. 15 MR. NOMELLINI: Okay. Let's use your definition. 16 How many acres within Westlands fit that definition? 17 MR. ORTH: I don't know the answer to that. It 18 would require that I be knowledgeable of at what depths 19 the farmers are impacted, and I don't know what that 20 number is. 21 MR. NOMELLINI: All right. If I gave you a depth, 22 would that help you? 23 MR. BIRMINGHAM: I'm going to object to this line of 24 questions. Mr. Orth is not an expert on drainage. 25 Mr. Johnston who is an expert on drainage was asked these CAPITOL REPORTERS (916) 923-5447 11818 1 very questions by Mr. Nomellini. And the evidence is in 2 the record. 3 If Mr. Nomellini wants to make an argument based 4 on the evidence, it's in the record. He is certainly free 5 to do that, but this witness is not qualified to answer 6 his questions. 7 C.O. BROWN: Thank you, Mr. Birmingham. 8 I'm going to allow the question, and if you don't 9 know the answer, just say you don't. 10 MR. ORTH: Would you restate the question? 11 MR. NOMELLINI: If I gave you a depth of groundwater 12 would that improve your ability to estimate the 13 drainage-impacted area within Westlands? 14 MR. ORTH: Actually, no. 15 MR. NOMELLINI: Okay. I kind of thought that was 16 going to be the answer. In terms of the demand within 17 Westlands, are there any farmers in the Westlands that are 18 selling their water to users outside of the Westlands 19 Water District? 20 MR. ORTH: No, there are not. 21 MR. NOMELLINI: Do you know of any offers being made 22 by landowners within Westlands to the San Diego Water 23 Authority? 24 MR. ORTH: Yes. 25 MR. NOMELLINI: And what amount of water is involved CAPITOL REPORTERS (916) 923-5447 11819 1 in the example that you know of? 2 MR. ORTH: I do not know what quantities that are 3 being discussed between the landowners and San Diego. 4 MR. NOMELLINI: All right. Do you know who the 5 landowner is? 6 MR. ATLAS: I'm going to object. Do we know the 7 relevance of this? 8 MR. NOMELLINI: Yeah, I'll explain it. 9 C.O. BROWN: Okay, Mr. Nomellini, what is it? 10 MR. NOMELLINI: I was trying to get at the demand 11 within Westlands District. We have extensive testimony 12 about the demand for water and the need to have the joint 13 point of diversion in order to have the Bureau provide the 14 water. And I am cross-examining with regard to the extent 15 of that demand. 16 And if they're selling water out of the district, 17 it seems to me that that's very relevant as to whether or 18 not the Board -- the request that the Board grant 19 unconditional authority for use of joint points of 20 diversion would be appropriate if, in fact, it is solely 21 for the purpose of somebody selling their water outside. 22 C.O. BROWN: Mr. Mark. 23 MR. ATLAS: Atlas. 24 C.O. BROWN: Atlas, I'm sorry. 25 MR. ATLAS: Not to put too fine a point on it, but CAPITOL REPORTERS (916) 923-5447 11820 1 the question was whether or not there were Westlands 2 landowners seeking to purchase water from San Diego Water 3 Authority. 4 MR. NOMELLINI: No. No, sell. 5 MR. ATLAS: I beg your pardon? 6 C.O. BROWN: Wait a minute. Our Court Reporter, she 7 is very, very good, but she can't record two of you at 8 once. 9 Mr. Atlas, you're on. 10 MR. ATLAS: I'm sorry, then. I heard the question: 11 Are there Westlands landowners offering to buy water from 12 the San Diego Water Authority? 13 C.O. BROWN: Mr. Nomellini. 14 MR. NOMELLINI: All right. Did I mislead you, 15 Mr. Orth? 16 C.O. BROWN: Wait a minute. There is an objection 17 on the floor. And I'm siding with Mr. Birmingham on this. 18 I don't see how this line of questioning is leading up to 19 the demand within Westlands Water District. The demands 20 within Westlands is what it is. And if some grower is 21 contemplating marketing the water outside the land, I 22 don't see where that changes the demands within the 23 district itself. 24 So I'm going to give you another shot at the 25 question, but I'm leaning towards Mr. Birmingham on this CAPITOL REPORTERS (916) 923-5447 11821 1 one, Mr. Nomellini. 2 MR. NOMELLINI: Okay. Birmingham didn't object, 3 Mr. Atlas did. And the objection was on the wrong basis, 4 that was the assumption that I was asking a question about 5 purchases by landowners in the district rather than sales. 6 I just have one question on there pending and that was: 7 Whether or not Mr. Orth knew the name of the landowner? 8 That was the question I had. 9 MR. ORTH: The extent of my awareness of this entire 10 transaction is based on a meeting I had with the San Diego 11 County Water Agency staff who only identified the 12 interested parties as some of the plaintiffs of the 13 previously mentioned settlement agreement between 14 Westlands and the United States. 15 MR. NOMELLINI: Thank you. 16 I'll go on to another subject, Mr. Chairman. 17 C.O. BROWN: Thank you, Mr. Nomellini. 18 MR. NOMELLINI: Okay. Mr. Orth, your testimony at 19 Page 2 near the bottom of the page states, 20 (Reading): 21 "Consistently Westlands farmers produce higher 22 yields using less water than farmers do in 23 other parts of the San Joaquin Valley." 24 Do you see that? 25 MR. ORTH: Yes, I do. CAPITOL REPORTERS (916) 923-5447 11822 1 MR. NOMELLINI: Now, in your reference to "San 2 Joaquin Valley," what geographical area are you talking 3 about? 4 MR. ORTH: Well, I think the San Joaquin Valley is a 5 generally defined region. The point of the testimony is 6 that in comparing our per acre yield data on various crops 7 against the applied water data from other water districts 8 in the San Joaquin Valley, our yields are greater than the 9 average and our applied water is less than the average. 10 MR. NOMELLINI: Okay. Have you made a comparison of 11 those yields and applied water to yields and applied water 12 in the Delta? 13 MR. ORTH: Not that I recall. 14 MR. NOMELLINI: Now, would you agree that the 15 consumptive use of water will generally increase as the 16 tonnage of the particular crop produced increases? 17 MR. ORTH: I'm not sure I can agree to that. 18 MR. NOMELLINI: Okay. Let's take alfalfa. Would 19 you agree that a six-ton crop of alfalfa will consume more 20 water than a five-ton crop of alfalfa? 21 MR. ORTH: I don't think I'm qualified to answer 22 that. 23 MR. NOMELLINI: Okay. The exhibits which you 24 submitted, I think were Westlands -- or calling your 25 attention to these exhibits: 8B, 8C, 8D, 8E and 8F, CAPITOL REPORTERS (916) 923-5447 11823 1 you did not prepare these exhibits, did you? 2 MR. ORTH: No, these were prepared by staff. 3 MR. NOMELLINI: All right. And did you make the 4 comparison to yields in other areas about which you 5 testified? 6 MR. ORTH: No, I did not. 7 MR. NOMELLINI: All right. And your understanding 8 that led to that testimony is based on somebody else's 9 work, I gather? 10 MR. ORTH: That is correct. 11 MR. NOMELLINI: And is there a particular citation 12 of that work that you could give us? 13 MR. ORTH: No. 14 MR. NOMELLINI: All right. Calling your attention 15 to Westlands' 8-B and looking up at the top with alfalfa, 16 hay and the column of 5.6 tons per acre, do you believe 17 the 5.6 tons per acre is a higher yield per acre than 18 alfalfa yields in other parts of the San Joaquin Valley? 19 MR. ORTH: No. That's not necessarily my testimony, 20 or the intent of my testimony. I'm not stating that that 21 is the highest yield in the valley of alfalfa-hay. I'm 22 stating that the data shows when you compare that yield 23 against the applied water and compare that against 24 averages, that we are consistently providing greater yield 25 with less inputs than the San Joaquin Valley average. CAPITOL REPORTERS (916) 923-5447 11824 1 MR. NOMELLINI: Do you think that that's a fair way 2 to compare water use for crop production? 3 MR. ORTH: For the purposes of demonstrating the 4 productivity and the efficiency of Westlands Water 5 District I believe it is a fair representation. 6 MR. NOMELLINI: All right. Would you agree that 7 water applied in excess of the consumptive use of a 8 particular crop is not necessarily wasted? 9 MR. ORTH: I would agree with that except in lands 10 that are impacted by shallow groundwater and an 11 impermeable shallow clay layer. 12 MR. NOMELLINI: Okay. And for the drainage-impacted 13 lands -- and I realize I'm using a little different term 14 that you did. 15 MR. ORTH: Uh-huh. 16 MR. NOMELLINI: For drainage-impacted lands is it 17 your testimony that applied water in excess of the 18 consumptive use of the crop is wasted? 19 MR. ORTH: I wouldn't say it's wasted. It's lost. 20 It is not available for reuse unless it is treated. 21 MR. NOMELLINI: All right. So it's the quality of 22 the water in the shallow -- that comprises the shallow 23 groundwater that would determine, in your mind, whether or 24 not it was wasted; is that correct? 25 MR. ORTH: Again, my answer is that except for the CAPITOL REPORTERS (916) 923-5447 11825 1 applied water in excess of the crop consumption as it 2 pertains to water that ultimately then percolates into a 3 shallow groundwater table that has water quality issues, 4 it is lost and, therefore, not available for re-use. 5 Distinguished from those other areas in the state 6 where water applied in excess of the consumptive use of 7 the crop percolates in and becomes available groundwater 8 recharge for reuse, that's the distinction. 9 MR. NOMELLINI: Okay. So is it your testimony that 10 with regard to the Westlands Water District that the 11 shallow groundwater in the drainage impacted portions is 12 not of suitable quality for consumptive use by the crop? 13 MR. ORTH: That's not my testimony. In certain 14 cases shallow groundwater use is taking place and is, you 15 know, being either blended or applied to salt-tolerant 16 crops. 17 MR. NOMELLINI: So even in Westlands Water District 18 you would admit, would you not, that applied water at 19 rates beyond that necessary for the consumptive use of the 20 crop is not always wasted? 21 MR. ORTH: It's not always lost to reuse. 22 MR. NOMELLINI: Okay. Fair enough. All right. 23 Thank you very much. That's all I have. 24 C.O. BROWN: Thank you, Mr. Nomellini. 25 Mr. Suyeyasu. CAPITOL REPORTERS (916) 923-5447 11826 1 MR. SUYEYASU: Good morning, Mr. Brown. 2 C.O. BROWN: Good morning. 3 ---oOo--- 4 CROSS-EXAMINATION OF WESTLANDS WATER DISTRICT AND 5 SAN LUIS AND DELTA-MENDOTA WATER AUTHORITY 6 BY THE ENVIRONMENTAL DEFENSE FUND 7 BY DAN SUYEYASU 8 MR. SUYEYASU: Dan Suyeyasu on behalf of the 9 Environmental Defense Fund. 10 Good morning, gentlemen. 11 THE PANEL: Good morning. 12 MR. SUYEYASU: I will try as best I can to direct 13 these questions to the one most qualified to answer them, 14 but if you feel like answering them, feel free. 15 Mr. Boardman, the implementation of the Central 16 Valley Improvement Act has had an impact on water 17 deliveries to your district; is that correct? 18 MR. BOARDMAN: That's correct. 19 MR. SUYEYASU: And implementation of the -- or the 20 passage of the 1995 Water Quality Control Plan has also 21 had an impact on water deliveries to your district; is 22 that correct? 23 MR. BOARDMAN: That is correct. 24 MR. SUYEYASU: And the same would hold true for the 25 adoption of the winter-run Biological Opinion; is that CAPITOL REPORTERS (916) 923-5447 11827 1 correct? 2 MR. BOARDMAN: That's correct. 3 MR. SUYEYASU: And the same would hold true for the 4 adoption of the Delta smelt Biological Opinion; is that 5 correct? 6 MR. BOARDMAN: Yes. 7 MR. SUYEYASU: Now, would you agree that it would be 8 in the interest of your district if the winter-run salmon 9 population was delisted under the Endangered Species Act? 10 MR. BOARDMAN: Yes. 11 MR. SUYEYASU: So you would agree that it would be 12 in your district's interest for the Board to take actions 13 to improve the quality of the habitat for the winter-run 14 salmon; is that correct? 15 MR. BOARDMAN: That was assured that there would be 16 improvement in the population leading to a delisting. 17 MR. SUYEYASU: What if the scientists working with 18 the Board just believed that it was likely that there was 19 to be an improvement for the winter-run, would you support 20 such action by the Board? 21 MR. BOARDMAN: "Likely" is a vague term. I couldn't 22 answer it one way or another. 23 MR. SUYEYASU: If it were more likely than not that 24 it would lead to improvement for winter-run salmon, would 25 you approve such an action by the Board? CAPITOL REPORTERS (916) 923-5447 11828 1 MR. SEXTON: I'm going to object, Mr. Brown. 2 Mr. Boardman is testifying today on behalf of the San Luis 3 Delta-Mendota Water Authority, which represents -- how 4 many districts, Tom? 5 MR. BOARDMAN: 32. 6 MR. SEXTON: 32 districts. He is not a policy-level 7 employee at those districts. And I don't think he can 8 speak on behalf of the ultimate determinations made by 9 those districts. 10 C.O. BROWN: That's always your answer if you wish 11 to apply it, but I'm going to allow the question. 12 MR. BOARDMAN: I'm not qualified to answer that 13 question. 14 MR. SUYEYASU: Does the Authority have a position on 15 whether or not the Board should take action to improve 16 habitat conditions for the Delta smelt? 17 MR. BOARDMAN: The Board has a position to not allow 18 another drop to come from its supplies. That's the 19 position that I'm most aware of. 20 MR. SUYEYASU: Would it -- but it would be the 21 Authority's interest if Delta smelt populations increased; 22 is that correct? 23 MR. BOARDMAN: That's true. 24 MR. SUYEYASU: Mr. Orth. 25 MR. ORTH: Yes. CAPITOL REPORTERS (916) 923-5447 11829 1 MR. SUYEYASU: For the Westlands Water District, you 2 have been impacted by the adoption of the winter-run 3 Biological Opinion; is that correct? 4 MR. ORTH: Yes, we have. 5 MR. SUYEYASU: And you've already been impacted by 6 the adoption of the Delta smelt Biological Opinion; is 7 that correct? 8 MR. ORTH: Yes, we have. 9 MR. SUYEYASU: And would you agree that if the Board 10 took action to improve the habitat for winter-run salmon 11 it would improve the water supply reliability for 12 Westlands Water District? 13 MR. ORTH: That's a quantum leap that -- no, I would 14 not necessarily agree with that. 15 MR. SUYEYASU: If the Board took actions that led 16 towards the delisting of winter-run salmon, would that 17 give any net benefit in water supply reliability to 18 Westlands Water District? 19 MR. BIRMINGHAM: I'm going to object to the question 20 on the grounds that it's ambiguous in terms of time. 21 C.O. BROWN: Restate your question, Mr. Suyeyasu. 22 MR. SUYEYASU: Okay. Stepping back a second, 23 Mr. Orth, if the winter-run salmon were delisted from the 24 endangered species list, that would benefit Westlands 25 Water District; is that correct? CAPITOL REPORTERS (916) 923-5447 11830 1 MR. ORTH: The potential exists that water supply 2 would be improved as a result of the delisting, but that 3 would be the only benefit that I would see. 4 MR. SUYEYASU: And if the Board took action that led 5 towards a delisting of winter-run salmon, would that 6 benefit Westlands Water District? 7 MR. ORTH: If the Board's action included an 8 increase in our water supply reliability, yes. 9 MR. SUYEYASU: If the Board took action that only 10 led to an improvement, an increase in the chance that the 11 winter-run salmon could be delisted, would that alone 12 improve the water supply reliability for Westlands Water 13 District? 14 MR. BIRMINGHAM: Again, I'm going to object on the 15 grounds that the question is ambiguous in terms of time. 16 C.O. BROWN: Again, I think that's been asked and 17 answered, too. 18 MR. SUYEYASU: Okay. 19 C.O. BROWN: So I sustain the objection. 20 MR. SUYEYASU: Let me try this one more time. If 21 the Board took action that solely acted to improve the 22 chance that the winter-run salmon would be delisted, does 23 that have the potential to improve the water supply 24 reliability of Westlands Water District following such 25 delisting of winter-run salmon? CAPITOL REPORTERS (916) 923-5447 11831 1 MR. ORTH: I believe it would have the potential. 2 MR. SUYEYASU: Mr. Orth, are you aware that the 3 spring-run salmon on the Sacramento is a candidate for 4 listing under the Endangered Species Act? 5 MR. ORTH: Yes. 6 MR. SUYEYASU: Does Westlands Water District have a 7 position on whether or not the spring-run should be listed 8 under the Endangered Species Act? 9 MR. BIRMINGHAM: Objection. Relevance. 10 C.O. BROWN: Mr. Suyeyasu. 11 MR. SUYEYASU: Continuing with the previous line of 12 questions, if they have a position that it should not be 13 listed under the Endangered Species Act I'd like to 14 inquire if they would support actions by the Board to try 15 to ensure that the spring-run does not become threatened 16 or endangered. 17 C.O. BROWN: I'm going to allow the question, if you 18 know the answer. 19 MR. ORTH: I need you to ask it again. 20 MR. SUYEYASU: Does Westlands Water District have a 21 position whether or not spring-run salmon should be listed 22 under the Endangered Species Act? 23 MR. ORTH: No, we have not taken a position. 24 MR. SUYEYASU: Is it your position -- is it your 25 opinion that if the spring-run salmon were listed under CAPITOL REPORTERS (916) 923-5447 11832 1 the Endangered Species Act it would have water supply 2 impacts upon Westlands Water District? 3 MR. ORTH: It is my opinion that the Bay-Delta 4 Accord requires that any subsequent listing of endangered 5 species, or such designation requires the committed United 6 States to provide such water without additional impact to 7 the CVP exporters. 8 MR. SUYEYASU: Assuming that the United States 9 government did not have the Authority to make such a 10 commitment in the Bay-Delta Accord -- do you understand 11 that assumption? 12 MR. ORTH: Yes. 13 MR. SUYEYASU: Do you believe that a listing of the 14 spring-run salmon under the endangered species list would 15 lead to a water supply impact on Westlands Water District? 16 MR. ORTH: I don't know. I really don't know. 17 MR. SUYEYASU: Mr. Boardman, do you have an opinion 18 as to that same question? 19 MR. BOARDMAN: No, I don't. 20 MR. SUYEYASU: Now, Westlands Water District is the 21 largest water district in the United States; is that 22 correct? 23 MR. ORTH: Yes, it is in terms of irrigated acreage. 24 MR. SUYEYASU: In terms of irrigated acreage. And 25 would it be fair to say that it's typical of water CAPITOL REPORTERS (916) 923-5447 11833 1 districts that are Central Valley Project contractors in 2 terms of the types of crops grown and production in their 3 unit? 4 MR. ATLAS: I'm going to object. I don't know that 5 this witness has any background to answer broadly for all 6 districts in the Central Valley district. 7 C.O. BROWN: Answer the question, if you can. 8 MR. ORTH: I don't know how we compare or stack up 9 to other CVP contractors. 10 MR. SUYEYASU: Now, if I could draw your attention 11 to Westlands' Exhibits 8-A through 8-I. These are 12 charts -- I guess tables outlining crop production within 13 Westlands Water District for the years 1989 through 1997. 14 Now, in 1989 was the Central -- Mr. Orth, these 15 are directed towards you. In 1989 was the Central Valley 16 Improvement Act in effect? 17 MR. ORTH: No, it was not. 18 MR. SUYEYASU: And was the current Water Quality 19 Control Plan in effect? 20 MR. ORTH: No, I don't believe it was. 21 MR. SUYEYASU: And to your knowledge were there any 22 Biological Opinions in effect in 1989 reducing deliveries 23 to Westlands Water District? 24 MR. ORTH: Not that I recall. 25 MR. SUYEYASU: Would it be fair to characterize the CAPITOL REPORTERS (916) 923-5447 11834 1 production report for 1989 as sort of a rough baseline of 2 production levels prior to adoption of environmental 3 protections in the Delta? 4 MR. ORTH: I would say that it would be fair to 5 characterize that in that manner. 6 MR. SUYEYASU: And if I am reading Westlands' 7 Exhibit 11 correct, is it correct that in 1989 total water 8 delivered to Westlands Water District was 1,157,566 9 acre-feet? 10 MR. ORTH: Yeah, for the water year ended February 11 28th of 1990, which, therefore, began March 1 of 1989, the 12 deliveries were as you stated. 13 MR. SUYEYASU: And would those deliveries generally 14 have been related to the crop production that is shown in 15 the 1989 Crop Production Report, Westlands' Exhibit 8-A? 16 MR. ORTH: Generally. 17 MR. SUYEYASU: When you say "generally," is it 18 possible that there could have been some crop production 19 in January and February of 1990 that would be listed on 20 the 1989 crop production report? 21 MR. ORTH: Yeah, the "generally" means that the 1989 22 crop production report is calendar year. The water year 23 on Exhibit 11 begins March 1 and goes through the 24 following February. So there's a little bit of a 25 mismatch. CAPITOL REPORTERS (916) 923-5447 11835 1 MR. SUYEYASU: Okay. Would you consider that 2 mismatch significant considering that it appears to be the 3 months of January and February that are overlapping? 4 MR. ORTH: I would not. I would think that it would 5 be self-correcting. 6 MR. SUYEYASU: And in 1989 the total gross income 7 for Westlands Water District was approximately 8 $707,000,000; is that correct? 9 MR. ORTH: Yes. 10 MR. SUYEYASU: And in 1989 you received 100 percent 11 of your contract supplies; is that correct? 12 MR. ORTH: Yes. 13 MR. SUYEYASU: Now, the most recent tables that we 14 have listing the economic value of your crop production is 15 the '94 crop production report; is that correct? 16 MR. ORTH: Yes, it is. 17 MR. SUYEYASU: And in the year 1994, what was the 18 declared allocation for Westlands Water District? 19 MR. ORTH: Would have been 35 percent of our CVP 20 entitlement. 21 MR. SUYEYASU: And what was the total delivered 22 water in 1994? 23 MR. ORTH: 726,000 acre-feet. 24 MR. SUYEYASU: And would you agree that the 25 deliveries in 1994, the total deliveries were CAPITOL REPORTERS (916) 923-5447 11836 1 approximately 400,000 acre-feet less than in 1989? 2 MR. ORTH: Total deliveries of surface supply were 3 400,000 acre-feet less, yes. 4 MR. SUYEYASU: So the -- this is a clarification 5 question. I think, I have a misunderstanding. The total 6 delivered in the final right-hand column is surface 7 supplies only? 8 MR. ORTH: That's correct. 9 MR. SUYEYASU: That does not include groundwater? 10 MR. ORTH: That does not include groundwater. 11 MR. SUYEYASU: And is it correct that in 1994 total 12 crop production of Westlands Water District was 13 $773,000,000 approximately? 14 MR. ORTH: That's correct. 15 MR. SUYEYASU: And is it true that that's 16 approximately $66,000,000 more than in 1989? 17 MR. ORTH: Yes. 18 MR. SUYEYASU: Were there any environmental 19 constraints in place in the Delta in 1994 during that 20 production year? 21 MR. ORTH: Yes, but I don't recall what specifically 22 they were. 23 MR. SUYEYASU: So in 1994 there were environmental 24 constraints in place, to your knowledge? 25 MR. ORTH: Yes. CAPITOL REPORTERS (916) 923-5447 11837 1 MR. SUYEYASU: And in that year you still produced 2 $66,000,000 more worth of crops than in 1989; is that 3 correct? 4 MR. ORTH: That is correct. 5 MR. SUYEYASU: And you produced $66,000,000 more in 6 Westlands Water District even though your contract 7 allocation had been reduced by 65 percent; is that 8 correct? 9 MR. BIRMINGHAM: Objection. Asked and answered. 10 C.O. BROWN: Sustained. 11 MR. SUYEYASU: Now, in 1994 the total fallowed 12 acreage in Westlands Water District was approximately 13 75,000 acres; is that correct? 14 MR. ORTH: Yes, it is. 15 MR. SUYEYASU: What was the total fallowed acreage 16 in 1995? 17 MR. ORTH: 43,528 as shown on Exhibit 8-G. 18 MR. SUYEYASU: And so the fallowing went down from 19 1994; is that correct? 20 MR. ORTH: Yes. 21 MR. SUYEYASU: And in 1996 what was the total 22 fallowed acreage? 23 MR. ORTH: 26,754, Westlands' Exhibit 8-H. 24 MR. SUYEYASU: And that fallowing went down from 25 1995; is that correct? CAPITOL REPORTERS (916) 923-5447 11838 1 MR. ORTH: Yes, it did. 2 MR. SUYEYASU: And what was the fallowing in the 3 last year of the reports, 1997? 4 MR. ORTH: 35,554, Exhibit 8-I. 5 MR. SUYEYASU: So that increased somewhat from the 6 year before; is that correct? 7 MR. ORTH: Yes. 8 MR. SUYEYASU: But that number is still about 40,000 9 acres less than in 1994; is that correct? 10 MR. ORTH: Yes. 11 MR. SUYEYASU: Do you know how the total gross 12 income of Westlands Water District in 1997 compared to 13 total gross income in 1994? 14 MR. ORTH: We have not prepared gross-valued numbers 15 since 1994. We're in the process of trying to update 16 those, but I do not know how '97 compares to '94. 17 MR. SUYEYASU: Considering that in 1997 you appeared 18 to have 40,000 less acres fallowed, do you believe that 19 crop production would be higher than 1994? 20 MR. ORTH: I believe it is higher, yes, or it would 21 be higher. 22 MR. SUYEYASU: And in 1997, to the best of your 23 knowledge, what type of environmental restrictions were in 24 place in the Delta? 25 MR. ORTH: There were significant restrictions in CAPITOL REPORTERS (916) 923-5447 11839 1 the Delta with respect to implementation of the CVPIA, the 2 Bay-Delta Accord, Biological Opinions. 3 MR. SUYEYASU: So would it be fair to say that today 4 the Westlands Water District is producing an average -- 5 excuse me, a total gross income that is greater than that 6 which was produced prior to adoption of the CVPIA? 7 MR. ORTH: Today if you polled the farmers they'd 8 tell you, no, because of the year we've had. But, 9 generally, I'd say the productivity of the district is, 10 you know, it's just -- it's been steadily improving over 11 time primarily because of the water supply conditions. 12 MR. SUYEYASU: It is your testimony, Mr. Orth, that 13 water supply conditions have deteriorated since the 14 adoption of environmental constraints that are present in 15 the Delta; is that correct? 16 MR. ORTH: It's my testimony that the reliability of 17 the CVPIA -- or CVP contract entitlement has reduced to a 18 level of 65 to 75 percent of entitlement since the passage 19 of that act. 20 MR. SUYEYASU: Okay. Now, in I believe it was your 21 testimony, Mr. Orth, you talk about -- you spoke about 22 losses in income in your district of $175,000,000 in 1991; 23 is that correct? 24 MR. ORTH: Yes, that was the testimony. 25 MR. SUYEYASU: And what environmental regulations CAPITOL REPORTERS (916) 923-5447 11840 1 were in place in the Delta in 1991, to your knowledge? 2 MR. ORTH: I'm not aware of any. 3 MR. SUYEYASU: Now, in 19- -- 4 MR. OTTEMOELLER: If I could respond to that, in 5 1991 there was -- D-1485 was in place and there were 6 actions taken by the United States to assist the 7 winter-run salmon, although, it had not developed a 8 Biological Opinion part of that time, it did take actions 9 in 1991 that impacted the water supply. 10 MR. SUYEYASU: Thank you, Mr. Ottemoeller -- is it? 11 MR. OTTEMOELLER: Yes. 12 MR. SUYEYASU: Mr. Ottemoeller, do you have any 13 sense as to the relative significance of those impacts in 14 1991 from the winter-run salmon actions? 15 MR. OTTEMOELLER: I don't have a number that I could 16 apply to it. It was a critically dry year, so it would be 17 hard to specifically identify what impacts were related to 18 those actions. But the actions were part of the Bureau's 19 water supply operations when they made their decisions on 20 allocating the water. 21 MR. SUYEYASU: Thank you. In the year 1991 your 22 declared allocation from the Central Valley Project was 25 23 percent; is that correct, Mr. Orth? 24 MR. ORTH: Yes, it is. 25 MR. SUYEYASU: And the year before that your CAPITOL REPORTERS (916) 923-5447 11841 1 declared allocation was 50 percent; is that correct? 2 MR. ORTH: Yes, it is. 3 MR. SUYEYASU: And 1991 was a critically dry year; 4 is that correct? 5 MR. ORTH: Yes. 6 MR. SUYEYASU: And 1990 was a critically dry year; 7 is that correct? 8 MR. ORTH: Yes, it was. 9 MR. SUYEYASU: Now, 1989 was a below normal year; is 10 that correct? 11 MR. ORTH: Yes. 12 MR. SUYEYASU: And what declared contract supply did 13 you receive that year? 14 MR. ORTH: 1989 we received 100-percent allocation. 15 MR. SUYEYASU: And in 1988, what water type was it 16 then? 17 MR. ORTH: It was critically dry. 18 MR. SUYEYASU: And what contract allocation did you 19 receive that year? 20 MR. ORTH: 100 percent. 21 MR. SUYEYASU: Were you working in the water field 22 in 1990? 23 MR. ORTH: I was the director of finance for 24 Westlands from 1986 through 1995. 25 MR. SUYEYASU: Do you have any knowledge as to the CAPITOL REPORTERS (916) 923-5447 11842 1 state of the reservoirs within the Central Valley Project 2 in 1990? 3 MR. ORTH: Not specifically, no. 4 MR. SUYEYASU: Do you have a general sense if they 5 were full, or empty, or moderate? 6 MR. ORTH: I don't recall. 7 MR. SUYEYASU: When the Central Valley Project made 8 100-percent deliveries to Westlands Water District in 1988 9 and 1989, did you make any requests to the Central Valley 10 Project that they reduce those levels of deliveries? 11 MR. ORTH: No, we didn't. 12 MR. SUYEYASU: Why not? 13 MR. ORTH: We have a contract for 1,150,000 14 acre-feet. And our assessment of the project was the 15 water was available to meet our needs. 16 MR. SUYEYASU: Even though 1988 was a critically dry 17 year? 18 MR. BIRMINGHAM: Objection. Argumentative. 19 C.O. BROWN: You already established the fact that 20 1988 was a critically dry year. 21 MR. SUYEYASU: I'm asking him if he considered this 22 in saying that the projects had enough water to deliver a 23 hundred percent during those years. I'm trying to tie it 24 into this. 25 C.O. BROWN: Mr. Birmingham. CAPITOL REPORTERS (916) 923-5447 11843 1 MR. BIRMINGHAM: The basis of my objection is that 2 Mr. Orth said that in response to a question: Did you ask 3 for reduced supplies? He said, no. And the next question 4 was: Why not? And he said, Mr. Orth said, "Because our 5 analysis showed that the water was available to meet our 6 demand." 7 Now, Mr. Suyeyasu asked the next question, "Even 8 though," and when he asked that question in that form it 9 is argument. It is an argumentative question. He can say 10 it with as nice a tone in his voice he would like, but the 11 way he formed the question it is argumentative. 12 C.O. BROWN: Mr. Suyeyasu. 13 MR. SUYEYASU: I think that Mr. Orth here is 14 recalling back to a number of years ago when -- I know I 15 was trying to stretch his memory somewhat -- but I'm 16 trying to investigate whether or not they may have through 17 their analysis of this water picture led to some of their 18 own problems relating to their water supply reductions in 19 1991 that they have asserted have caused them, Westlands 20 Water District, difficulty in that year. 21 MR. BIRMINGHAM: And Mr. Suyeyasu could ask that 22 question. 23 C.O. BROWN: Mr. Campbell. 24 MR. CAMPBELL: To try to shortcut this, perhaps, if 25 Mr. Suyeyasu says "given that" rather than "even though," CAPITOL REPORTERS (916) 923-5447 11844 1 maybe that would work. 2 MR. BIRMINGHAM: Or alternatively he could ask, "Did 3 you consider in your analysis," that would be a 4 nonargumentative question. 5 C.O. BROWN: Mr. Suyeyasu, I agree. Rephrase the 6 question. 7 MR. SUYEYASU: Mr. Orth, in your analysis in 1988 8 that you should be receiving 100 percent of your water 9 deliveries, did you consider that it was a critically dry 10 year that year? 11 MR. ORTH: I don't specifically recall what was 12 considered by the district. Again, I was the finance 13 director, I was not directly involved in the requests, or 14 the communication between our staff and policy makers and 15 the Bureau of Reclamation with respect to the allocation 16 that they were going to make. 17 MR. OTTEMOELLER: I can respond to that, I was chief 18 of operations for Westlands at the time. The CVP was 19 being operated as it was designed, which is that you use 20 storage when the water is there to allocate the amounts of 21 water that are available. 22 There was no foresight on the part of anybody 23 that 1988 would be followed by a drier year. So it was 24 strictly within the normal operating guidelines of the 25 United States to make that allocation. CAPITOL REPORTERS (916) 923-5447 11845 1 Mr. Orth is correct, we expected to get our 2 100-percent allocation because we had been getting it 3 every year. And, second, at that time we really did not 4 take much effort to analyze what and how the decisions 5 were being made by the United States, because we had been 6 getting full water supply. So there was no need for us to 7 evaluate whether or not the Bureau was doing it correctly. 8 MR. SUYEYASU: Okay. If I could ask you all this 9 question, just following on this a little bit, I believe 10 it may have been Mr. Boardman. 11 Earlier in your testimony you stated that the use 12 by the Central Valley Project of a 90-percent exceedance 13 level in allocating deliveries has reduced deliveries to 14 your authority; is that correct? 15 MR. BOARDMAN: Yes. 16 MR. SUYEYASU: Now, in all of your opinions, if the 17 Central Valley Project had used such a criteria in 1988, 18 do you believe that they would have reduced their 19 deliveries below the 100-percent level? 20 MR. BOARDMAN: Possibly. Some of that was 21 temperature control, which is not part of the 90-percent 22 exceedance criteria. But using that conservative 23 forecasting method, yes, it's possible that supplies would 24 have been reduced. 25 MR. SUYEYASU: And do you think the supplies would CAPITOL REPORTERS (916) 923-5447 11846 1 have been reduced in 1989 as well? 2 MR. BIRMINGHAM: I'm going to object to this line of 3 questioning on the grounds of relevance. 4 C.O. BROWN: Where are you headed, Mr. Suyeyasu? 5 MR. SUYEYASU: He stated that the 90-percent 6 exceedance method of determining allocation is detrimental 7 to their district. I'm suggesting that if maybe a 8 slightly more conservative method had been used going into 9 first and second years of critically dry and below normal 10 years, we would have had a little more water in the 11 reservoirs to both supply them during the drought, 12 reducing their impacts, and also reducing the significant 13 impacts to the estuary that occurred in the early '90s. 14 C.O. BROWN: Mr. Birmingham. 15 MR. BIRMINGHAM: I suspect we could all agree that 16 with 20/20 hindsight the Bureau might have done things 17 differently in the late '80s. But the circumstances that 18 we find ourselves in today are the circumstances that 19 confront the Board. We're here talking about whether or 20 not the Board should approve the joint point of diversion. 21 What the Bureau did in 1988 and how it allocated water in 22 1988 through 1989 really is unrelated to that issue. 23 C.O. BROWN: Mr. Suyeyasu. 24 MR. SUYEYASU: Mr. Birmingham has submitted 25 significant testimony on behalf of his clients as to what CAPITOL REPORTERS (916) 923-5447 11847 1 exactly happened in 1991 to their district, which I think 2 raises the whole issue of hindsight and what happened 3 then. If we're only looking forward, I don't see what the 4 relevance is of what happened in Westlands Water District 5 in 1991 or any of the past years. 6 C.O. BROWN: I'm going to allow the question, if you 7 know the answer. 8 MR. OTTEMOELLER: Could you repeat the question? 9 MR. SUYEYASU: All right. Yes. In the year 1989, 10 do you believe that the deliveries from the Central Valley 11 Project to your various water authorities and water 12 districts would have been less than they were in 1989 if 13 the 90-percent exceedance method was used? 14 MR. BIRMINGHAM: Objection. Asked and answered. 15 MR. SUYEYASU: I believe I asked for 1988 not 1989. 16 C.O. BROWN: I have 1989 it was -- 100 percent of 17 supply was delivered and there was 43,000 acres of land 18 that was fallowed. 19 MR. SUYEYASU: I will proceed. If the 90-percent 20 exceedance method had been used, in your professional 21 opinions, do you believe that there would have been more 22 water in the Central Valley Project reservoirs in the year 23 1990? 24 MR. BOARDMAN: I can't answer that for sure. I -- 25 because of the flexibility in the operations that might CAPITOL REPORTERS (916) 923-5447 11848 1 take place throughout the fall months, it's possible that 2 they could have been exporting some amount of water that 3 they would have otherwise exported in the spring. 4 I guess, the answer is I just -- I don't know 5 enough about the operations during that year to 6 hypothetically answer that question. 7 MR. SUYEYASU: Okay. Do you think that it's more 8 likely than not that reservoir storage would have been 9 larger in 1990 had they used the 90-percent exceedance 10 forecast? 11 MR. BOARDMAN: I can't deny that the possibility 12 exists. 13 MR. SUYEYASU: Mr. Orth, would you agree with that? 14 MR. ORTH: Based on my understanding of how the 15 90-percent probability of exceedance factor works, what we 16 would have seen in '89 and '88 is an initial announcement 17 in February that was somewhat less than the announcement 18 that was made -- actually, made because the 90-percent 19 exceedance factor was not in existence or not being 20 applied. Over time that tends to self-correct. 21 The Bureau looks at the available supplies each 22 month. The 90-percent exceedance factor requires that 23 they project snowpack and hydrologic conditions on, I 24 believe, a critically dry assumption for the balance of 25 the irrigation year -- or the precip year. CAPITOL REPORTERS (916) 923-5447 11849 1 Each month, as we've seen over the last couple 2 years, they look again at snowpack in March, April and 3 May. And as the precip period actually converts from 4 90-percent exceedance to what really happens, they tend to 5 allocate that water supply. 6 So I don't -- I don't personally think that it 7 would have changed reservoir storage levels at the end of 8 each 1988 and '89. 9 MR. SUYEYASU: Thank you. 10 Mr. Ottemoeller, do you agree with that answer? 11 MR. BIRMINGHAM: Objection. Ambiguous. Is he 12 referring to Mr. Orth's answer or Mr. Boardman's answer? 13 MR. SUYEYASU: Do you agree with Mr. Orth's answer? 14 MR. OTTEMOELLER: Generally, yes. Without knowing 15 what the monthly deliveries are, I couldn't say one way or 16 the other. But typically the Bureau does correct, as they 17 have demonstrated over the last few years, even when they 18 use the 90-percent exceedance forecast. By May or June 19 it's what it would have been anyway. 20 MR. SUYEYASU: Mr. Orth, I believe in your testimony 21 you reference a report by Mr. Don Villarejo; is that 22 correct? 23 MR. ORTH: Yes. 24 MR. SUYEYASU: And do you agree with the conclusions 25 of Don Villarejo in his "93640 at Risk"? CAPITOL REPORTERS (916) 923-5447 11850 1 MR. ORTH: Yes, I do. I believe -- yes. 2 MR. SUYEYASU: Do you agree with his conclusion 3 report that when farmers are faced with contract 4 shortfalls they have two options to either reduce acreage 5 or pump low-quality groundwater? 6 MR. ORTH: Yes, I would agree with that conclusion. 7 MR. SUYEYASU: Would you agree that farmers faced 8 with contract shortfalls also have the option to transfer 9 water? 10 MR. ORTH: Yes, I would. 11 MR. SUYEYASU: So that would be a third option; is 12 that correct? 13 MR. ORTH: Right. 14 MR. SUYEYASU: And, I believe, Mr. Ottemoeller, you 15 testified that Westlands Water District has engaged in 16 numerous water transfers before; is that correct? 17 MR. OTTEMOELLER: Yes. 18 MR. SUYEYASU: Can you give me a general price range 19 of the price you paid per acre-foot of water? 20 MR. OTTEMOELLER: A price range is anywhere from $30 21 an acre-foot to $175 an acre-foot. That's the full range. 22 MR. SUYEYASU: What would you say is about average? 23 MR. OTTEMOELLER: Typically it was -- let me break 24 it up into a couple year types. 25 MR. SUYEYASU: Okay. CAPITOL REPORTERS (916) 923-5447 11851 1 MR. OTTEMOELLER: If you look at '91/'92, critically 2 dry years, very limited supply in other areas. The water 3 bank, essentially, set the price. There were some 4 transfers that occur where the cost to deliver the water 5 into the district would be on the order of 90 to $100 an 6 acre-foot. There was, in 1991, some purchases of water 7 from the water bank that had a delivered cost to the 8 farmers of over $200 an acre-foot, but that was very 9 minimal quantity. 10 '92/'93 and '93/'94 the typical price paid for 11 water transfers was between 50 and $100. The water bank 12 water came into the district for just under $100 an 13 acre-foot. Since that time, the typical price for water 14 transfers, getting the water to the district, has been in 15 the 50 to $60 range. 16 MR. SUYEYASU: Mr. Orth, if I can just jump back to 17 your testimony for a second. You stated that the average 18 quantity of water needed to produce a crop on land within 19 the district is approximately 2.5 acre-feet per acre; is 20 that correct? 21 MR. ORTH: That's right. 22 MR. SUYEYASU: Would you agree that the cost to buy 23 that much water on the water market per acre of land would 24 be approximately 2.5 times the price of water as stated by 25 Mr. Ottemoeller? CAPITOL REPORTERS (916) 923-5447 11852 1 MR. ORTH: Yes. 2 MR. SUYEYASU: And that might be on the order of, 3 let's just say, at the high end $450 per acre. Would that 4 be correct? $175 per acre-foot times 2.5 acre-feet per 5 acre. 6 MR. ORTH: That would be correct. I need to add to 7 that, though, for those that paid those kind of prices 8 they could not afford to farm if all of their water cost 9 that much. Typically farmers who bought water at that 10 price were buying a marginal portion of their water to 11 ensure that they could actually get a crop rather than 12 lose it. You can't look at that number and say somebody 13 can grow a crop or sustain productivity at that level. 14 MR. SUYEYASU: Thank you. 15 Mr. Orth, in your testimony you stated that the 16 average annual gross crop value was $1500 per harvested 17 acre; is that correct? 18 MR. ORTH: That's correct. 19 MR. SUYEYASU: And that when Westlands Water 20 District had reduced supplies you would incur losses of 21 $1500 per harvested acre; is that correct? 22 MR. ORTH: That's correct. 23 MR. SUYEYASU: If Westlands Water District were to 24 spend $450 per acre to buy additional water, would you not 25 forego that $1500 lost? CAPITOL REPORTERS (916) 923-5447 11853 1 MR. ORTH: Nobody would buy the water at $450 an 2 acre, it's not affordable, as Mr. Ottemoeller just stated, 3 for growing most crops in our district. 4 MR. SUYEYASU: It's not affordable even though you 5 would avoid a loss of $1500 per acre? 6 MR. ORTH: You can't -- you can't apply $175 an 7 acre-foot water to a cotton crop and produce $1500 worth 8 of gross farm product, it doesn't work. I think I 9 understand your question, maybe I misunderstood it. It's 10 not economically viable to produce $1500 worth of gross 11 farm product with $175 water. 12 MR. SUYEYASU: So are you stating that the lost 13 revenue to the average farmer within your district is not 14 $1500 per acre? 15 MR. ORTH: No. I'm stating that the average per 16 acre gross farm product in Westlands Water District is 17 $1500 per acre. I'm also stating that in order to produce 18 that in an economically viable way, in other words, the 19 farmer has to have some rate of return, the price of the 20 water that he applies to produce that gross farm product 21 has to be affordable and economically viable. And you 22 cannot apply $175 of water to a cotton crop and maintain 23 that economic viability. 24 MR. SUYEYASU: Mr. Orth, if I could just go into a 25 hypothetical here. Let's assume that you have a farm, CAPITOL REPORTERS (916) 923-5447 11854 1 it's a cotton farm and it's one acre. 2 MR. ORTH: Okay. 3 MR. SUYEYASU: We're in a dry year and the CVP has, 4 for various reasons, decided not to deliver to you your 5 water required for your crop, which would be 2.5 6 acre-feet. 7 Are you following the assumption? 8 MR. ORTH: Yes. 9 MR. SUYEYASU: So if you do not farm that year and 10 it's a typical farm, you will lose $1500; is that correct? 11 MR. ORTH: You will not create $1500 of gross farm 12 product, that's correct. 13 MR. SUYEYASU: Is it also correct to say that you 14 would not produce $1500 in revenue? 15 MR. O'LAUGHLIN: I'm going to object at this time. 16 Mr. Brown, the hypothetical is incomplete, because while 17 it has some water costs in it, it leaves out all the other 18 assumptions that you need when you go to make an economic 19 unit, which is: 20 You've got your seed, you've got your fertilizer, 21 you've got your labor, you've got your capital costs, 22 you've got borrowing money for seed production. I mean 23 you've got a whole list of assumptions that go into making 24 the $1500. 25 So if he wants to throw all that in and then get CAPITOL REPORTERS (916) 923-5447 11855 1 to the question, I think it would be a perfectly good 2 hypothetical, but without it I think it's incomplete. 3 C.O. BROWN: Thank you, Mr. O'Laughlin. 4 Perhaps, it would be better if you spoke in terms 5 of payment capacity of a crop, or at least in gross, and 6 net and that may help clear up the discussion here. 7 Is that all right, Mr. Suyeyasu? 8 MR. SUYEYASU: That is. And part of what I'm trying 9 to get at, in two different ways, is I'm not clear of what 10 he's stating in his testimony when he's saying that $1500 11 is lost per acre. I don't know if that's the bottom line 12 or -- 13 C.O. BROWN: I think it's helped clear up both sides 14 here, this discussion here. So, perhaps, if you could ask 15 your question again, you might get an answer a little bit 16 different. 17 Ask the question, Mr. Suyeyasu. 18 MR. SUYEYASU: Okay. I'm going to give you a small 19 hypothetical. You have a farm that's one acre. 20 MR. ORTH: Uh-huh. 21 MR. SUYEYASU: I don't know much about cotton, but 22 let's assume you grow cotton on it. And that farm uses 23 2.5 acre-feet of water on your acre. 24 MR. ORTH: Uh-huh. 25 MR. SUYEYASU: If that water is not delivered to CAPITOL REPORTERS (916) 923-5447 11856 1 you, the 2.5 acre-feet, what will be your lost revenues? 2 What would be your lost revenues on the farm if it's a 3 typical water in Westlands'. 4 MR. O'LAUGHLIN: Gross or net? 5 MR. ORTH: The gross revenue loss would be based on 6 the $1500 per acre average number that we've used for all 7 crops in the district, would be $1500. That's gross crop 8 revenue production loss. 9 MR. SUYEYASU: And it is your testimony that on your 10 small farm it would not necessarily make sense to spend 11 $450 to buy that water, the 2.5 acre-feet; is that 12 correct? 13 MR. ORTH: That's correct. 14 MR. SUYEYASU: And why would it not necessarily make 15 sense if there's a $1,050 potential profit for you for 16 buying that water? 17 MR. ORTH: There's not a $1,050 profit because as 18 was stated earlier, the capital cost of the land or the 19 lease cost of your land, which typically runs up to $200 20 an acre or more, the cost of seed, the cost of labor, the 21 cost of all of the inputs into the one acre of cotton that 22 I just produced, when combined with $175 an acre-foot of 23 water is going to put me in a position where the gross 24 farm cost exceeds the $1500 gross farm income. And I -- 25 it's not economically viable for me to grow under those CAPITOL REPORTERS (916) 923-5447 11857 1 conditions. 2 MR. SUYEYASU: So is it your testimony that when 3 crops are taken out of production within Westlands Water 4 District, aside from the lost $1500 in revenue, the 5 farmers are actually saving money by not having to pay 6 their capital costs, not having to pay their seed costs, 7 not having to pay their labor costs? 8 MR. ORTH: No, that's not my testimony. My 9 testimony -- 10 MR. O'LAUGHLIN: Wait, I'm going to object. That 11 question was argumentative, giving it a nice description. 12 And I don't think the witness deserves to be treated in 13 that fashion. 14 C.O. BROWN: Mr. Suyeyasu, I'm pretty clear on what 15 you're asking here and the answers -- the questions and 16 answers. And I suspect most folks are, too, but if you 17 still have some questions on this subject, I'd like to -- 18 MR. SUYEYASU: I'll move on. 19 C.O. BROWN: Okay. I think you've made your point 20 here. 21 MR. SUYEYASU: Give me one second? 22 C.O. BROWN: Sure. If you'd like, we could take a 23 lunch break and that will give you some more time to 24 organize your thoughts for this afternoon. 25 MR. SUYEYASU: That would be appreciated. CAPITOL REPORTERS (916) 923-5447 11858 1 C.O. BROWN: All right. We'll take a lunch break 2 and be back here at 1:00. 3 (Luncheon recess.) 4 ---oOo--- 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 11859 1 WEDNESDAY, MARCH 17, 1999, 1:00 P.M. 2 SACRAMENTO, CALIFORNIA 3 ---oOo--- 4 C.O. BROWN: Come to order. 5 Mr. Suyeyasu, proceed. 6 MR. SUYEYASU: Thank you, Mr. Brown. 7 Mr. Orth, I'm going to continue some questions 8 regarding Mr. Villarejo's report that was included in your 9 testimony. If I could direct your attention to Page 20 of 10 Mr. Villarejo's report. 11 Do you agree with Mr. Villarejo's conclusions on 12 that page that during the drought from 1987 to 1992 many 13 farmers within Westlands restructured their farms in order 14 to receive federally subsidized water? 15 MR. BIRMINGHAM: Could Mr. Suyeyasu direct us to 16 where he's reading on that page? 17 MR. ORTH: Yeah. 18 MR. SUYEYASU: I'm sorry. It is in the first full 19 paragraph of Page 20, do you agree with the statement of 20 Mr. Villarejo that of the 40 farmers in the area -- excuse 21 me, withdraw that. 22 Do you agree with Mr. Villarejo that there are 23 farmers within Westlands Water District who have 24 restructured their businesses, breaking them up into 25 smaller units for purposes of complying with federal CAPITOL REPORTERS (916) 923-5447 11860 1 Reclamation Law and receiving taxpayer subsidized water? 2 MR. ATLAS: I'm going to object. Is there relevance 3 to this line of questioning? 4 C.O. BROWN: Thank you, Mr. Atlas. 5 Where are you headed, Mr. Suyeyasu? 6 MR. SUYEYASU: Where I'm headed is that Westlands 7 Water District has come to you today suggesting that the 8 joint point of diversion should be authorized in an 9 unconstraint form to, essentially, increase the water 10 supplies to their district. 11 I think if they're coming to you and explaining 12 to you that they have lost considerable supplies, that 13 they borne impacts, we should also look to whether or not 14 they may be taking actions that are increasing their 15 demands on the CVP that are apparently contrary to federal 16 law. And that if they're coming to you asking for help -- 17 MR. SEXTON: Sit down, Tom. I'm up second. 18 MR. SUYEYASU: -- that we need to look into the 19 equitable issues in terms of how they're managing their 20 district. 21 C.O. BROWN: Thank you, sir. 22 Mr. Sexton. 23 MR. SEXTON: Thank you, Mr. Brown. The reference 24 that Mr. Suyeyasu just referred the panel to is very 25 specific. It's limited to the area of the Mendota area. CAPITOL REPORTERS (916) 923-5447 11861 1 So it's an across the board reference to Westlands. It's 2 just talking about the Mendota area. 3 The second point, Mr. Suyeyasu has just made a 4 blanket statement about restructuring under the 5 Reclamation Law. Obviously, Reclamation Law changes. 6 That restructuring is authorized by the law. And I think 7 it's an inappropriate comment to suggest otherwise. 8 C.O. BROWN: Thank you, Mr. Sexton. 9 Mr. Birmingham. 10 MR. BIRMINGHAM: And the fact Mr. Suyeyasu is making 11 reference to people operating in violation of federal 12 Reclamation Law is contrary. The statement that he has 13 cited states that the restructuring has occurred for 14 purposes of complying with federal Reclamation Law. And 15 whether or not there is compliance with federal 16 Reclamation Law is completely irrelevant to the questions 17 that are before the Board. 18 C.O. BROWN: Thank you, Mr. Birmingham. 19 Mr. Suyeyasu, do you have a response? 20 MR. SUYEYASU: I just think that it's remarkable. 21 This is relevant that there are farmers within the 22 Westlands Water District would have, essentially, taken a 23 large farm, from what I read here, chopped it up into 24 smaller farms that are all managed by the same entity. It 25 even says in this report that they're called "paper CAPITOL REPORTERS (916) 923-5447 11862 1 farms," for the sole purpose of coming within Reclamation 2 size requirement. To me that seems like some type of 3 fraud upon the system, but I -- 4 MR. SEXTON: Objection. Mr. Brown, excuse me. 5 MR. SUYEYASU: -- think it needs delving into. 6 MR. SEXTON: Mr. Brown, Mr. Suyeyasu is now either 7 arguing or testifying or both. He's certainly not 8 responding to the Chairman's request for clarification. 9 C.O. BROWN: Mr. Birmingham. 10 MR. BIRMINGHAM: And I'll object to the apparent 11 line of questioning on the grounds that it lacks 12 foundation. I think in order for Mr. Suyeyasu to pursue 13 this line of questioning he needs to ask these witnesses 14 if changes in the size of the farm would affect demand. 15 If he would ask that and they were to respond in a 16 particular way, then the questions about restructuring 17 complying with RRA, or other provisions of federal 18 Reclamation Law might be relevant. But there's been no 19 foundation laid for this line of questioning. 20 C.O. BROWN: I sustain the objections. 21 Mr. Suyeyasu, I'm not sure where we're headed on 22 this, but I suggest you reconsider the questions and maybe 23 either establish a foundation or go on to another subject. 24 MR. SUYEYASU: Thank you, Mr. Brown. 25 Any panel members who are willing to answer this: CAPITOL REPORTERS (916) 923-5447 11863 1 If a member of your district were to restructure their 2 farm in order to comply with Reclamation Law, would you 3 then grant those parties a new contract for water? 4 MR. ORTH: We do not contract with individuals 5 within the district for water. Under the -- we don't. 6 MR. SUYEYASU: To your knowledge, if there were 7 restructuring of farms so that a party could receive 8 federal water, would they then receive a contract for 9 water from the federal government? 10 MR. ORTH: The federal government doesn't contract 11 with individuals for the delivery of water supply. The 12 federal government contracts with Westlands Water District 13 to provide water to our water users. 14 MR. SUYEYASU: So if there were a restructuring of a 15 farm within the Westlands Water District, does that have 16 the -- does that increase the possibility of the farm to 17 receive Reclamation water? 18 MR. ORTH: I want to avoid going into an elaborate 19 discussion of how compliance of Reclamation Law is 20 administered by Westlands Water District. But let me just 21 state that: If a individual restructures he has various 22 reporting requirements and responsibilities that are then 23 processed by Westlands to determine compliance with and 24 eligibility for a proportion of our CVP contract 25 entitlement. Once that eligibility is established in CAPITOL REPORTERS (916) 923-5447 11864 1 compliance with the law, we allocate water to that entity, 2 whoever they may be. 3 MR. SUYEYASU: Once that compliance is established, 4 you will -- Strike that. 5 Now, if you were to deliver water to these 6 farmers once they came into -- Strike that. 7 If you were to deliver CVP water to these farmers 8 once they came into compliance with Reclamation Law, would 9 that have the potential to reduce CVP deliveries to other 10 farmers within your district? 11 MR. ORTH: No, it would not. 12 MR. SUYEYASU: Why is it that having more CVP 13 eligible parties within the Westlands Water District would 14 not reduce the potential CVP deliveries to other eligible 15 parties? 16 MR. ORTH: I misunderstood your earlier question. I 17 believe the way you presented it was the entity was simply 18 restructuring. And I assumed that in a restructuring 19 you're basically taking eligible acreage that historically 20 received water supply and converting them to a new 21 structure; therefore, you have not added demand to the 22 system. 23 If your example is that a new entity is created 24 on lands that previously did not receive CVP water, then, 25 yes, the establishment of that, or the creation of that CAPITOL REPORTERS (916) 923-5447 11865 1 new entity and that new demand within the district would, 2 in effect, diminish the per acre allocation for all of the 3 other lands within the district. 4 MR. SUYEYASU: All right. To your knowledge, are 5 farms within the Westlands Water District ever 6 restructured in order to increase the available water 7 supply to the farm? 8 MR. ORTH: Not that I'm aware of, in fact, to the 9 contrary. The district is a finite unit that has a fixed 10 number of irrigatable acres that farmers tend to make 11 application for, in compliance with Reclamation Law, 12 receiving entitlement to. So it's not a case of having a 13 bottomless bucket that we can add to the district and 14 create a new demand. 15 MR. SUYEYASU: So do I understand your testimony 16 correctly that during a possible drought situation where 17 there are water shortages there would not be an advantage 18 to a farmer who is already in production on his land in 19 restructuring it into smaller farm units; is that correct? 20 MR. ORTH: I believe that's correct. Yeah. 21 MR. SUYEYASU: Thank you. Mr. Orth, if I might draw 22 your attention to Page 3 of your testimony. 23 MR. ORTH: Okay. 24 MR. SUYEYASU: It is your opinion, is it not, that 25 the impacts from major water supply reductions are CAPITOL REPORTERS (916) 923-5447 11866 1 significant and far-reaching? 2 MR. ORTH: Yes. 3 MR. SUYEYASU: Okay. Thank you. And it is your 4 opinion that in 1991 125,000 acre-feet were idled in 5 Westlands; is that correct? 6 MR. ORTH: I believe -- 7 MR. BIRMINGHAM: I believe, Mr. Suyeyasu, he said 8 "acre-feet" and I believe he meant to say "acres." 9 C.O. BROWN: Thank you, Mr. Birmingham, I believe he 10 did. 11 MR. SUYEYASU: Thank you. 12 MR. ORTH: Yes, it's my testimony that in 1991 13 almost 125,000 acres of Westlands gross area was idled. 14 MR. SUYEYASU: And it's your testimony that the 15 acreage that was fallowed -- strike that. 16 Is it your testimony that the fallowing of those 17 125,000 acres was caused by reductions in Central Valley 18 Project deliveries? 19 MR. ORTH: Yes. 20 MR. SUYEYASU: Now, in 1989 is it not true that 21 62,000 acres were also fallowed in Westlands Water 22 District; is that correct? 23 MR. ORTH: 1989 shows fallowing of 64,579 acres. 24 MR. SUYEYASU: Sorry, I misspoke there. And isn't 25 it true that that is approximately 11 percent of CAPITOL REPORTERS (916) 923-5447 11867 1 Westlands' total acreage? 2 MR. ORTH: Yes. 3 MR. SUYEYASU: And is it not true that in 1989 4 contract deliveries from the CVP were 100 percent; is that 5 correct? 6 MR. ORTH: That is correct. 7 MR. SUYEYASU: Now, how do you -- how do you know 8 that the water supply reductions in 1991 led to the 9 fallowing within the Westlands Water District? 10 MR. OTTEMOELLER: I can respond to that. Farmers 11 did not farm certain land, because they didn't have the 12 water. And they told us that was the reason they weren't 13 farming their land. There is typically a certain amount 14 of land in the district that's fallowed every year through 15 crop rotation. But the difference between a normal 16 variation in fallowing in years prior to the drought and 17 the amount of land that is fallowed in the drought can 18 only be attributed to that reduced water supply. 19 MR. SUYEYASU: Why can it only be attributed to that 20 reduced water supply? 21 MR. OTTEMOELLER: There were no other factors that 22 would cause somebody not to farm that don't normally take 23 place. If you look at every year prior to that, there was 24 variability in the amount of land that was fallowed for a 25 variety of reasons. When the only thing that changes is CAPITOL REPORTERS (916) 923-5447 11868 1 the water supply and the land is no longer farmed and 2 farmers are telling you, "I can't farm that land, because 3 I don't have the water," that's the conclusion that we 4 draw. 5 MR. SUYEYASU: Would it be fair to say that you're 6 drawing that conclusion because there is a correlation 7 between the reduced water supplies and the reduced farming 8 within the Westlands Water District? 9 MR. OTTEMOELLER: That and the fact that the farmers 10 told us they are taking land out of production because 11 they don't have the water. 12 MR. SUYEYASU: And how many farmers did you speak to 13 in terms of their total acreage, that told you they were 14 taking their farm out of production due to the reduced 15 water supplies? 16 MR. OTTEMOELLER: I can't cite a specific number, 17 but I talked to a lot of farmers during those years in 18 large groups and individually with respect to the amount 19 of water that they would have available. And it was 20 consistent that those who didn't have enough water would 21 not be able to farm all of their land. 22 MR. SUYEYASU: No further questions, Mr. Brown. 23 C.O. BROWN: Thank you Mr. Suyeyasu. 24 Mr. Campbell -- 25 MR. ROBBINS: Mr. Brown, I'm under the impression CAPITOL REPORTERS (916) 923-5447 11869 1 now that Mr. Stubchaer may not be returning today. I 2 think the comments that we started to take up earlier 3 would be best discussed with all the Board Members 4 present. I wonder if we might reserve some time on 5 Tuesday morning or thereabouts to take up that issue? 6 C.O. BROWN: Let's discuss it openly when we're done 7 here today and I'll keep that in mind. But I'd like to 8 hear from the participants here. And what I think I'll do 9 on that issue is to provide those interested with some 10 input the opportunity to counsel our staff here and myself 11 and we'll take it under consideration and see where we go 12 from there. 13 MR. ROBBINS: Thank you. 14 C.O. BROWN: Mr. Campbell. 15 ---oOo--- 16 CROSS-EXAMINATION OF THE WESTLANDS WATER DISTRICT AND 17 THE SAN LUIS AND DELTA-MENDOTA WATER AUTHORITY 18 BY THE DEPARTMENT OF FISH AND GAME 19 BY MATTHEW CAMPBELL 20 MR. CAMPBELL: Mr. Chairman. 21 This will be a question, I believe, for you, 22 Mr. Boardman: Does the San Luis and Delta-Mendota Canal 23 Authority participate in the CalFed Bay-Delta Program? 24 MR. BOARDMAN: Yes, they do. 25 MR. CAMPBELL: Does it anticipate that it will CAPITOL REPORTERS (916) 923-5447 11870 1 continue to do so? 2 MR. BOARDMAN: Yes, I believe so. 3 MR. CAMPBELL: Next question will be for -- same 4 question for Mr. Orth, but on behalf of the Westlands 5 Water District? 6 MR. ORTH: Yes, we do participate. 7 MR. CAMPBELL: Are you aware that the Department of 8 the Interior, which includes the U.S. Bureau of 9 Reclamation and the U.S. Fish and Wildlife Service, the 10 Department of Water Resources and the Department of Fish 11 and Game have made a -- have come to an agreement 12 regarding a proposal for use of joint points of diversion? 13 MR. ORTH: I'm generally aware. 14 MR. CAMPBELL: All right. Are you aware that 15 encompassed within that agreement would be the use of 16 joint points of diversion up to the maximum physical 17 capacity of the State Water Project and Federal Water 18 Project? 19 MR. ORTH: I am now. 20 MR. CAMPBELL: Are you also aware that before the 21 agencies would operate to that expanded level of joint 22 points of diversion, that they have agreed that an 23 operations plan for joint point of diversion should be in 24 place? 25 MR. ORTH: Yes. CAPITOL REPORTERS (916) 923-5447 11871 1 MR. CAMPBELL: Are you aware that the operations 2 plan for joint point of diversion as envisioned by U.S. 3 Bureau of Reclamation, U.S. Fish and Wildlife Service, the 4 Department of Water Resources and the Department of Fish 5 and Game would include measures for compliance with all 6 federal and state laws and regulations including state and 7 federal Endangered Species Act, criteria for the 8 protection of fish and other operating rules and measures 9 that would meet other objectives such as water quality and 10 water supply reliability? 11 MR. ORTH: Yes. 12 MR. CAMPBELL: Do you think that the 13 implementation -- the creation and implementation of such 14 a plan prior to the expanded use of joint points of 15 diversion would be reasonable? 16 MR. ORTH: The development of a plan, yes. The 17 implementation, no. 18 MR. CAMPBELL: The implementation, you don't think 19 the implementation of the plan would be reasonable? 20 MR. ORTH: The point being I don't think you can 21 implement the plan without the resource, unless I 22 misunderstood the question. 23 MR. CAMPBELL: I'm missing you, too. The way I'm 24 understanding you is that: Yes, such a plan -- it would 25 be reasonable for such a plan to be developed? CAPITOL REPORTERS (916) 923-5447 11872 1 MR. ORTH: Yes, it would. 2 MR. CAMPBELL: But it would be unreasonable for such 3 a plan to be implemented? 4 MR. ORTH: State the question, again, because I 5 think I misinterpreted it. It would be reasonable to 6 implement the plan. 7 MR. CAMPBELL: Okay. I have no further questions. 8 C.O. BROWN: Thank you, Mr. Campbell. 9 Mr. Sexton. 10 ---oOo--- 11 CROSS-EXAMINATION OF WESTLANDS WATER DISTRICT AND 12 SAN LUIS AND DELTA-MENDOTA WATER AUTHORITY 13 BY THE EXCHANGE CONTRACTORS 14 BY MICHAEL SEXTON 15 MR. SEXTON: Good afternoon, gentlemen. 16 THE PANEL: Good afternoon. 17 MR. SEXTON: Mr. Boardman, you were testifying 18 earlier about how the 1993 winter-run chinook salmon 19 Biological Opinion impacted CVP water supplies. Do you 20 recall that? 21 MR. BOARDMAN: Yes. 22 MR. SEXTON: And as I understand it one of the 23 impacts is due to the fact that the opinion requires that 24 allocations of water to CVP contractors be based on a 25 90-percent probability of exceedance? CAPITOL REPORTERS (916) 923-5447 11873 1 MR. BOARDMAN: That's correct. 2 MR. SEXTON: My understanding of a 90-percent 3 probability of exceedance for forecasting is that it is an 4 ultra, ultra conservative forecast; is that correct? 5 MR. BOARDMAN: Apparently so. 6 MR. SEXTON: And are you familiar with the document 7 that we generally refer to, the CVP Operations Criteria 8 and Plan, the CVP OCAP? 9 MR. BOARDMAN: To some degree. 10 MR. SEXTON: Prior to the 1993 Biological Opinion, 11 what is your understanding of the exceedance probability 12 criteria which form the basis for water allocations? 13 MR. BOARDMAN: As I understand that the Bureau would 14 look at a 50-percent exceedance forecast. In other words, 15 given that at certain points, say, in March they would 16 assume a hydrology to follow that would be wetter than 17 expected five years in ten and they would allocate on that 18 basis. 19 MR. SEXTON: Okay. Now, what, then, from a modeling 20 standpoint and forecasting standpoint is the result of 21 going from a 50-percent probability to a 90-percent 22 probability based solely upon a Biological Opinion 23 directive? In other words, not based on hydrology of the 24 watersheds, what's the impact of that on water supply 25 allocation? CAPITOL REPORTERS (916) 923-5447 11874 1 MR. BOARDMAN: If I understand your question, you're 2 asking if I -- what is the impact on water supply as a 3 result of the 90-percent exceedance forecast versus a 4 50-percent exceedance forecast? 5 MR. SEXTON: Yes, when it's not tied directly to 6 hydrology, hydrologic conditions. 7 MR. BOARDMAN: I'm not quite sure what you mean by 8 "when it's not tied to hydrologic conditions." 9 MR. SEXTON: Okay. Well, just leave that part and 10 why don't we just go ahead and answer: Just the impact 11 as, you understand it, of requiring forecast to be based 12 on a 90-percent probability rather than a 50 percent? 13 MR. BOARDMAN: To the 90 percent, as you put it, 14 would be extremely conservative. To put it another way, I 15 said five in ten years -- under 50-percent exceedance, 16 five in ten years would be wetter. You can say the same 17 as five in ten years would be drier. 18 With the 90-percent exceedance only one in ten 19 years will be drier than what they've assumed. So since 20 it is so conservative and it's assuming a very dry year 21 type, or year, the allocation would reflect those assumed 22 dry conditions, those 90-percent exceedances. 23 MR. SEXTON: Isn't it true to put it another way, 24 the use of the 90-percent exceedance forecast means that 25 the forecast, the ultra conservative forecast is going to CAPITOL REPORTERS (916) 923-5447 11875 1 be wrong 90 percent of the time? 2 In other words, it is so conservative that in 3 only 10 percent of the situations would that forecast 4 actually come to pass? 5 MR. BOARDMAN: Maybe to say it another way, 90 6 percent of the time the conditions would be wetter than 7 assumed. 8 MR. SEXTON: Okay, I'll accept that. That's a good 9 way of explaining it. Thank you. 10 Now, you recall in Mr. Orth's and 11 Mr. Ottemoeller's testimony when they were discussing the 12 use of the 90-percent exceedance -- and as I understand 13 it, Mr. Orth and Mr. Ottemoeller both testified that for 14 purposes of the Westlands Water District a 90-percent 15 forecast may result in a more conservative allocation to 16 them in the early months of the year, let's say, by 17 February, perhaps a 35-percent forecast. 18 And then later on as the hydrologic conditions 19 changed in the reservoirs or the watersheds then Westlands 20 water supply would be increased as the forecasting 21 conditions changed. Do you remember that? 22 MR. BIRMINGHAM: Excuse me. I'm going to ask 23 Mr. Sexton if he can clarify his hypothetical. He said, 24 "Earlier in the water year." February is actually very 25 late in the water year. I wonder if he could change his CAPITOL REPORTERS (916) 923-5447 11876 1 hypothetical to March, which is really the water year. 2 MR. SEXTON: That's a good point, Mr. Birmingham. I 3 was thinking more in terms of a water year for the 4 Exchange Contractors rather than for the CVP water service 5 contractors. And I got confused, so that is. Let's 6 change the hypothetical to March of the year. 7 Now, the reason, as I understand it, that the 8 forecast to, let's say, Westlands is, perhaps, 9 self-correcting, at least in part, is because Westlands is 10 allocated a block of water to be used anytime within the 11 water year; is that correct? 12 MR. BOARDMAN: Within the constraints of conveying 13 that water to the contractors. 14 MR. SEXTON: Absolutely. Now, the San Luis and 15 Delta-Mendota Water Authority you testified is made up of 16 37 agencies? 17 MR. BOARDMAN: 32. 18 MR. SEXTON: 32 agencies. And Westlands is one of 19 those? 20 MR. BOARDMAN: Yes. 21 MR. SEXTON: Most of those agencies are federal CVP 22 water service contractors, correct? 23 MR. BOARDMAN: Yes. 24 MR. SEXTON: There's a few of those agencies that 25 are not CVP water service contractors? CAPITOL REPORTERS (916) 923-5447 11877 1 MR. BOARDMAN: I believe so. 2 MR. SEXTON: Okay. The four exchange contractor 3 agencies, for example, are members of the San Luis and 4 Delta-Mendota Water Authority; isn't that right? 5 MR. BOARDMAN: That's correct. 6 MR. SEXTON: And also the Grasslands Water District? 7 MR. BOARDMAN: That's correct. 8 MR. SEXTON: You're familiar with the Exchange 9 Contractors; is that right? 10 MR. BOARDMAN: Yes, I am. 11 MR. SEXTON: To the extent that the Bureau of 12 Reclamation used a 90-percent forecast to make an 13 allocation of water to the Exchange Contractors, that 14 forecast wouldn't be self-correcting in the same way as it 15 would for the allocation to the Westlands Water District 16 due to the nature of the deliveries to the Exchange 17 Contractors; isn't that right, sir? 18 MR. BOARDMAN: The 90-percent forecast to the 19 Exchange Contractors I guess -- maybe I'm unclear what you 20 mean by "self-correcting" in that question. 21 MR. SEXTON: Well, let's say, for example, if 22 Westlands Water District is allocated, let's say, a 23 50-percent water supply in March, based on the 90-percent 24 probability of exceedance allocation forecast, then in 25 April or May that allocation can be increased to 60 CAPITOL REPORTERS (916) 923-5447 11878 1 percent or 70 percent; isn't that right? 2 MR. BOARDMAN: That's correct. 3 MR. SEXTON: And the result of the increased 4 allocation is of the Westlands' approximately 1.1 million 5 acre-foot allocation, the allocation goes from 50 percent 6 of 1.1 million to 60 or 70 percent of 1.1 million? 7 MR. BOARDMAN: That's correct. 8 MR. SEXTON: All right. Now, contrast with the 9 Exchange Contractors, who have allocated their water 10 supply, but their water allocation is tied to a monthly 11 allocation, are you familiar with that? 12 MR. BOARDMAN: No, I'm not. When you say "monthly," 13 I'm at a loss. 14 MR. SEXTON: Okay. Let me shift from you to 15 Mr. Ottemoeller, because I think Mr. Ottemoeller is 16 familiar with the way the exchange contract allocation is 17 made; perhaps, he can help out. 18 Are you familiar with the way that the Exchange 19 Contractors' allocations are scheduled under the terms of 20 their contract? 21 MR. OTTEMOELLER: Yes. 22 MR. SEXTON: All right. What is your understanding 23 of the impact if the Exchange Contractors were allocated a 24 critical-year allocation based solely on a 90-percent 25 probability of exceedance forecast, would that allocation CAPITOL REPORTERS (916) 923-5447 11879 1 be self-correcting in the same manner as Mr. Orth and you 2 have testified with respect to Westlands? 3 MR. OTTEMOELLER: Not necessarily, in fact, probably 4 not, because for each month that goes by once the critical 5 year declaration by the Bureau has been made there's a 6 certain quantity of water that the Exchange Contractors 7 could not recover. They have monthly maximums in their 8 water supply allocation from the United States. 9 And if, for example, the Bureau in February 10 allocated 75 percent critical-year allocation to the 11 Exchange Contractors, they would be limited to whatever 12 maximum monthly amount applied, let's say, for example, 13 during February and March. If the Bureau, either late in 14 March or early in April, upped that allocation based on a 15 revised forecast, it's possible that there would be a 16 quantity of water that the Exchange Contractors could have 17 otherwise taken that's no longer available to them. 18 MR. SEXTON: Okay. Now, Mr. Orth, what is your 19 understanding of when in the year do your growers start 20 preparing for their planting decisions for the following 21 water year? Let's say by approximately how many months 22 prior to the water year? 23 MR. ORTH: Typically, the decisions are made in 24 October/November prior to the following year. 25 MR. SEXTON: And your water year in Westlands CAPITOL REPORTERS (916) 923-5447 11880 1 commences in which month? 2 MR. ORTH: Our water year commences March 1st. 3 MR. SEXTON: March 1st. So approximately five to 4 six months prior to the water year the planting decisions 5 are made? 6 MR. ORTH: Yes. 7 MR. SEXTON: Now, with planting decisions come 8 financing decisions; is that correct? 9 MR. ORTH: That's correct. 10 MR. SEXTON: Okay. These growers also have to make 11 financial arrangements for crop, cropping patterns for the 12 following water year? 13 MR. ORTH: Yes. 14 MR. SEXTON: And many of them go to banks in order 15 to make those arrangements? 16 MR. ORTH: Yes, they do. 17 MR. SEXTON: And the banks ask the question: Which 18 district do you have a water service contract with; isn't 19 that right? 20 MR. ORTH: That's correct. 21 MR. SEXTON: And the bank will ask the question: 22 How much water are you going to be delivered next year? 23 MR. ORTH: Yes. Each of the applicants are now 24 required to fill out a water budget for the financial 25 institution to consider that shows sources and uses. CAPITOL REPORTERS (916) 923-5447 11881 1 MR. SEXTON: Okay. If the State Board were to 2 approve the joint point of diversion, as you have asked it 3 to do, wouldn't that make the water supply allocations to 4 Westlands and to the Exchange Contractors more reliable 5 year in and year out? 6 MR. ORTH: Absolutely. 7 MR. SEXTON: Mr. Orth, since approximately 1990 8 you've testified there have been substantial reductions in 9 water deliveries to the Westlands Water District? 10 MR. ORTH: Correct. 11 MR. SEXTON: And those reductions, you testified, 12 have been based not on hydrologic conditions but rather on 13 regulatory matter, regulatory conditions? 14 MR. ORTH: I don't think I specifically testified 15 that the reductions in our supply were solely a function 16 of regulatory conditions. We did experience some 17 hydrological -- well, we experienced a drought in the 18 early '90s that also contributed to the lack of total 19 water supply to our district. 20 MR. SEXTON: But since the drought was over with, 21 you have still -- Westlands has still been made subject to 22 deficiency allocations under its contract; isn't that 23 right? 24 MR. ORTH: That's right. Despite wet conditions for 25 each of the last four years, our supply has not been in CAPITOL REPORTERS (916) 923-5447 11882 1 100 percent. And our long-term projection is that it will 2 be at about 65 to 75 percent of our full entitlement. 3 MR. SEXTON: And the imposition of deficiency 4 allocations on your growers has created some uncertainty 5 in your mind and in that of your Board Members on how best 6 to manage the district; isn't that right? 7 MR. ORTH: That's correct. 8 MR. SEXTON: And some of the ways this uncertainty 9 has manifested itself since approximately 1992 or so have 10 been in litigation trying to determine what the deficiency 11 allocation language within your contract actually entitled 12 you to; isn't that right? 13 MR. ORTH: Yes. 14 MR. SEXTON: And, in fact, Westlands has been 15 involved in litigation both in the Federal District Court 16 and the Ninth Circuit Court of Appeal almost continually 17 on that issue since about 1992 to the present day; isn't 18 that right? 19 MR. ORTH: I think that's correct, yes. 20 MR. SEXTON: And would the -- if the State Board 21 were to approve the use of the joint point of diversion, 22 is it your view that, as the manager of the district, that 23 much of the uncertainty that is presently attended in 24 water supply allocations would be mitigated? 25 MR. ORTH: Yes, it is. CAPITOL REPORTERS (916) 923-5447 11883 1 MR. SEXTON: Mr. Ottemoeller, could I impose on you 2 to put up Westlands' Exhibit 12, again, please. Okay. 3 Fine. 4 Mr. Ottemoeller, if you look at the elevation 5 line just after 1940 it's up around 75 feet piezometric 6 groundwater surface; is that correct? 7 MR. OTTEMOELLER: Yes, that's correct. That is an 8 overall average of the district. 9 MR. SEXTON: Okay. Now, you testified that during 10 the years prior to the time the San Luis Unit came on-line 11 there was substantial pumping of groundwater as depicted 12 on Westlands' 12 by the peaks shown between, oh, 13 approximately 1945 up through 1973 or thereabouts, right? 14 MR. OTTEMOELLER: Yes. The peaks typically occurred 15 after 1950 and prior to 1970, but that reflects the high 16 levels of pumping, yes. 17 MR. SEXTON: Okay. And you testified that the safe 18 yield within the district was approximately, I think you 19 said, 150,000 acre-feet a year or thereabouts? 20 MR. OTTEMOELLER: 150 to 200,000. 21 MR. SEXTON: 150 to 200,000 acre-feet a year. And 22 you testified that as a result of the heavy pumping of 23 groundwater during those years, there was subsidence, in 24 fact, within the district? 25 MR. OTTEMOELLER: That's correct. CAPITOL REPORTERS (916) 923-5447 11884 1 MR. SEXTON: Okay. Now, if you look at the very end 2 of the elevation line up at the present time, it looks 3 like the elevation line is back up where it started, which 4 seems to indicate that the groundwater resources within 5 Westlands has fully recovered. And I suspect that's not 6 the case. So could you explain that? 7 MR. OTTEMOELLER: Well, the overall average has 8 recovered to what it was at the beginning of that graph, 9 generally, but there are portions of the district that 10 have to rely more heavily on groundwater than others. 11 So there are portions of the district where you 12 wouldn't see this same line if you looked at, for example, 13 generally the western third of the district which has a 14 less reliable supply, they tend to pump a little more 15 groundwater. So theirs would not look as good as this in 16 term of recovery. 17 MR. SEXTON: But you also mentioned that there are 18 areas within the district that have suffered from land 19 subsidence and loss of areas within the subsurface where 20 groundwater can be pumped from, correct? 21 MR. OTTEMOELLER: Yes. 22 MR. SEXTON: Okay. As to those areas, there's less 23 groundwater available than there was back prior to 1945 or 24 thereabouts? 25 MR. OTTEMOELLER: Less groundwater in the spaces CAPITOL REPORTERS (916) 923-5447 11885 1 that used to be larger? 2 MR. SEXTON: Yeah. 3 MR. OTTEMOELLER: Yes, that's true. And I think 4 that's reflected by the slope of the line. As you 5 increase pumping in, for example, the mid '70s and in the 6 '89 through '94 period, the slope of the drawdown is 7 considerably greater than the slope of the reduction in 8 groundwater elevations prior to 1970. 9 MR. SEXTON: Now, when you first started testifying 10 on your -- perhaps, it was cross-examination with 11 Mr. Nomellini, you made a reference when you were being 12 questioned about your comment on Page 1 of Westlands' 10, 13 which is your testimony. 14 The comment in your testimony says that the 15 groundwater basin from which water was extracted became 16 severely overdrafted. And you made a reference there to 17 the "sub-corcoran." What did you mean by that? 18 MR. OTTEMOELLER: There's a layer of relatively 19 impervious clay called the corcoran clay, which underlies 20 most of the district. It tends to pinch out on the 21 eastern edge of the district relatively close to the 22 surface. It's a little bit deeper towards the middle and 23 the western edges of the district. 24 Most of the groundwater that is pumped in the 25 district is pumped from below that corcoran clay layer. CAPITOL REPORTERS (916) 923-5447 11886 1 It's recharged, generally, from the east side of the 2 valley, not directly from the top. 3 The water levels that are reflected in this graph 4 are what's called the piezometric levels, which is the 5 pressure of that confined layer underneath the corcoran 6 clay. The corcoran clay is, actually, deeper than those 7 levels that are indicated there. 8 If you could put a pipe down into the 9 sub-corcoran layer -- or below the sub-corcoran level the 10 level of the water in the pipe is higher than the clay 11 layer, which reflects that that water is somewhat under 12 pressure. 13 MR. SEXTON: Okay. The point I wanted to get to was 14 on Page 3 of your testimony right at the bottom of the 15 page discussing subsidence where you say, 16 (Reading): 17 "A final irreversible impact on the water 18 resources on the west side of the San Joaquin 19 Valley is that the water-holding capacity of 20 the underground materials will be permanently 21 reduced as a result of compaction of the 22 materials." 23 Do you see that? 24 MR. OTTEMOELLER: Yes. 25 MR. SEXTON: Now, if Westlands and, let's say, other CAPITOL REPORTERS (916) 923-5447 11887 1 water service contractors have to rely more on groundwater 2 because they suffer deficiency allocations under their 3 contracts due to CVPIA, winter-run Biological Opinion and 4 other factors not related to hydrology, is it likely that 5 these districts will have to turn back more to the use of 6 groundwater and that as a result of that you'll end up 7 with increasing levels of subsidence within some of these 8 districts? 9 MR. OTTEMOELLER: Yes, that's clearly the point of 10 my testimony. 11 MR. SEXTON: And if this Board were to approve the 12 joint point of diversion could that result be mitigated 13 somewhat? 14 MR. OTTEMOELLER: I think so, yes. 15 MR. SEXTON: Thank you. No further questions. 16 C.O. BROWN: Thank you, Mr. Sexton. 17 Mr. Herrick. 18 ---oOo--- 19 CROSS-EXAMINATION OF WESTLANDS WATER DISTRICT 20 SAN LUIS AND DELTA-MENDOTA WATER AUTHORITY 21 BY SOUTH DELTA WATER AGENCY 22 BY JOHN HERRICK 23 MR. HERRICK: Thank you, Mr. Chairman, Board 24 Members. John Herrick for the South Delta Water Agency. 25 I just have a few questions. I'd like to ask CAPITOL REPORTERS (916) 923-5447 11888 1 each member of the panel the same question and I want to 2 lead into this hypo, so to speak: 3 Let's assume that state and federal exports from 4 the Delta at some times cause adverse effects in the 5 Delta. Would the panel members agree that actions should 6 be taken to mitigate those adverse effects before any 7 further increase exports is authorized? 8 MR. OTTEMOELLER: Can you state the assumption 9 again? I'm sorry. 10 MR. HERRICK: The assumption is that at some times 11 exports from the Delta by the state and federal pumps 12 cause adverse effects in the Delta. And I didn't say this 13 before, but I'll say, to South Delta diverters. 14 MR. ORTH: Could you state what it is, the question 15 is you want us to answer? 16 MR. HERRICK: Okay. If we start with that 17 assumption. 18 MR. ORTH: Right. 19 MR. HERRICK: Do you believe that further increase 20 in exports by those state and federal pumps should be 21 authorized before the problems that are caused are 22 mitigated? 23 MR. ORTH: I guess I would think that without having 24 our district -- without our district having specifically 25 addressed this issue that, generally, we would support CAPITOL REPORTERS (916) 923-5447 11889 1 addressing the impacts within the confines of regulatory 2 responsibilities. 3 MR. HERRICK: I'd like each member of the panel to 4 answer that, please. 5 Thank you, Mr. Orth. 6 MR. OTTEMOELLER: I guess in my mind it depends on 7 what's causing the impacts and whether or not the increase 8 in exports that would be, for example, resulting from a 9 joint point of diversion actually had anything to do with 10 the types of impacts that were being caused. 11 If you make that assumption that there are some 12 specific impacts that are caused by the particular 13 increase in exports that we're talking about, I would 14 agree with Mr. Orth that that needs to be dealt with in 15 the context of what the Water Quality Control Plan is and 16 what the requirements are to protect all the beneficial 17 uses of water. 18 MR. BOARDMAN: I'd have to echo Mr. Orth's and 19 Mr. Ottemoeller's response. 20 MR. HERRICK: Okay. Let me follow up on your 21 answer, Mr. Ottemoeller. Let's assume that the adverse 22 effects are not exacerbated by the increase in exports, do 23 you believe that the mitigation of the original adverse 24 effects should occur prior to the authorization for the 25 increased exports? CAPITOL REPORTERS (916) 923-5447 11890 1 MR. BIRMINGHAM: I'm going to object to the question 2 on the grounds that it's ambiguous. Maybe Mr. Herrick 3 could be more specific in terms of the kind of impacts 4 that he's talking about, what has caused them, how the 5 exports relate to the impact. 6 C.O. BROWN: Mr. Herrick, you wish to elaborate? 7 MR. HERRICK: I can do that, I don't think it adds 8 to the question, but if the Chairman wants me to, I will. 9 C.O. BROWN: I would suggest that if you understand 10 the question, you can answer it, if you do so. But if you 11 don't understand the question, say so and we can get 12 Mr. Herrick to repeat it. 13 MR. OTTEMOELLER: I would, at a minimum, like a 14 repeat of the question. 15 MR. HERRICK: Sure. I took your last answer to mean 16 that if the increased exports weren't causing any 17 additional effects, you would have a different answer than 18 if the increased exports were causing additional effects. 19 So I tried to go back to a new question which is: 20 If the increased exports do not exacerbate any of 21 those adverse effects caused by export pumping, would you 22 still advocate increased -- at those increased exports 23 before there was a mitigation installed for the adverse 24 impacts caused by the existing level of export pumping? 25 MR. OTTEMOELLER: Since you're asking my opinion, I CAPITOL REPORTERS (916) 923-5447 11891 1 would say if they're not related then I don't see a direct 2 reason why adverse impacts that are not related to the 3 increase need to be mitigated before that can take place. 4 I mean there have to be areas where those can be 5 dealt with, but if there's no direct relation it doesn't 6 make sense to me that you reduce a potential benefit 7 simply because you're not able to -- or you haven't 8 addressed another problem that may be unrelated to that. 9 MR. HERRICK: Well, would you think that existing 10 export levels should be maintained if those existing 11 export levels were causing those adverse impacts? 12 MR. OTTEMOELLER: Again, that goes to the context of 13 the Water Quality Control Plan and the balancing of 14 beneficial uses. 15 MR. HERRICK: The next question for the Board, 16 again, is: Would you support increased exports to the 17 state and federal pumps if the Central Valley Project does 18 not meet the Vernalis standard in each year? By "Vernalis 19 standard" I mean the salinity standard at Vernalis. 20 MR. ORTH: You're the most qualified to answer that 21 question. 22 MR. OTTEMOELLER: I guess it's not clear to me that 23 the salinity standard necessarily has anything to do with 24 the rate of exports. If there is a problem with meeting 25 the salinity standard, and I don't believe the Bureau has CAPITOL REPORTERS (916) 923-5447 11892 1 full control over that, and that problem is not related to 2 exports, then exports shouldn't necessarily be constrained 3 on that basis. 4 MR. HERRICK: Would your answer be any different if 5 the exports by the state and federal projects directly 6 contributed to drainage into the San Joaquin River that 7 affected the salinity of the river? 8 MR. OTTEMOELLER: Can you say that again? 9 MR. HERRICK: Would your answer be the same if the 10 exports by the state and federal projects directly 11 affected drainage into the San Joaquin River which 12 affected the salinity in the River? 13 MR. OTTEMOELLER: Well, now you're talking about 14 whether or not the cause is the exports, or the discharges 15 of drainage. Significant amount of the exports have no 16 impact one way or the other on the drainage. Those who 17 would benefit most, for example, Westlands from the 18 increased exports that can take place, under joint point 19 of diversion have absolutely no impact on discharges to 20 the river. 21 MR. HERRICK: But you would agree that there's a 22 significant portion of the CVP deliveries that do affect 23 discharges into the river, wouldn't you? 24 MR. BIRMINGHAM: Excuse me. 25 C.O. BROWN: Mr. Birmingham. CAPITOL REPORTERS (916) 923-5447 11893 1 MR. BIRMINGHAM: I'm going to object on the grounds 2 that this evidence is repetitive. We went through this 3 whole litany of evidence in Phase II, in Phase II-A, in 4 Phase IV, in Phase V. Mr. Herrick can make any argument 5 that he wants to based on the evidence that is in the 6 record, but I'm not sure what putting it in the record one 7 more time is going to add to his ability to make that 8 argument. 9 C.O. BROWN: Mr. Herrick. 10 MR. HERRICK: Well, assuming that's an objection, 11 the answer to the previous question was that there didn't 12 appear to be a connection. So if exploring that 13 connection is inappropriate, I won't. But the issue is 14 whether or not you advocate joint point of pumping which 15 increases exports. And there's all sorts of consequences 16 from that. I think it's perfectly appropriate to explore 17 them, but I will do what the Chairman wants me to. 18 C.O. BROWN: Mr. Sexton. 19 MR. SEXTON: I was going to, on behalf of the 20 Exchange Contractors, echo the objection made by 21 Mr. Birmingham and point out that during Phase V if South 22 Delta wanted to raise these issues they had plenty of 23 opportunity to do so. 24 C.O. BROWN: Okay. We have two new witnesses here. 25 I'm going to allow the question to proceed with the new CAPITOL REPORTERS (916) 923-5447 11894 1 witnesses that we have and see where it goes. 2 But, Mr. Herrick, if it looks like it is going to 3 be a continued repeat, I will call that to your attention 4 and we'll pick another course. 5 MR. HERRICK: Certainly, Mr. Chairman. 6 I believe the question was: You would agree, 7 wouldn't you, that there are significant areas that 8 receive CVP water which result in drainage to the San 9 Joaquin River? 10 MR. OTTEMOELLER: I'm not sure about "significant," 11 but, yes, there are export areas which receive CVP water 12 and do discharge to the San Joaquin River. 13 MR. HERRICK: Okay. Mr. Ottemoeller, I'm not sure, 14 I thought you said in your oral testimony that you were 15 supporting Alternative 5 of the -- the joint point 16 Alternative Number 5; is that correct? 17 MR. OTTEMOELLER: Yes. 18 MR. HERRICK: And does that mean you're not 19 supporting the proposal put on by the Bureau, Fish and 20 Game, Fish and Wildlife and DWR? 21 MR. OTTEMOELLER: I wasn't here for the 22 presentation, so I don't know exactly what they presented. 23 My understanding is it's Alternative 4. If that's the 24 case, then we disagree. We think 5 is more appropriate. 25 MR. HERRICK: Okay. Mr. Campbell explained a little CAPITOL REPORTERS (916) 923-5447 11895 1 bit part of their -- that group's proposal, which was, if 2 I may restate it, upon approval by the Board they would 3 operate to Alternative 4. And then upon the development 4 of a plan, exports could -- joint point could increase up 5 to Alternative 8. 6 Is that your understanding of that, of that 7 proposal? 8 MR. CAMPBELL: If I may, Mr. Chairman, I just add to 9 that "operating plan." 10 C.O. BROWN: Please stand, Mr. Campbell. I 11 didn't -- please stand. 12 MS. LEIDIGH: Stand up. 13 MR. CAMPBELL: Mr. Herrick was paraphrasing a 14 question I asked earlier. I'm just asking would it be 15 appropriate for a clarification of that paraphrasing? He 16 left out -- when you refer to the plan, it's clear in our 17 view to refer to it as an operating plan. 18 C.O. BROWN: Operating plan. 19 MR. HERRICK: Certainly. 20 MR. CAMPBELL: Thank you. 21 MR. HERRICK: Do you need me to restate that? 22 MR. OTTEMOELLER: Yes, please. 23 MR. HERRICK: I guess for the foundation, basically, 24 that group of governmental agencies' proposal is that the 25 Board should approve joint point of diversion operations CAPITOL REPORTERS (916) 923-5447 11896 1 under that joint point would initially would be 2 Alternative 4. And then upon the submittal of an 3 operational plan from the CalFed process, joint point use 4 could increase up through Alternative 8. 5 Is that your understanding of their proposal? 6 MR. OTTEMOELLER: I'm not familiar with their 7 proposal at all -- 8 MR. HERRICK: Okay. 9 MR. OTTEMOELLER: -- in terms of specifics. 10 MR. HERRICK: Let me ask you a hypothetical, then. 11 Let's say, suppose that export operations have the 12 potential for harming you, okay. And then let's just say 13 the changes in those export operations will be decided by 14 Department of Fish and Game, Fish and Wildlife Service, 15 Bureau of Reclamation and DWR -- and you don't get to vote 16 in that process but you get to contribute to that 17 process -- would you feel secure that those entities would 18 take care of your interests? 19 MR. CAMPBELL: Objection. Calls for speculation. 20 MR. HERRICK: I guess I am asking for speculation. 21 C.O. BROWN: Hold on. Barbara. 22 I'm going to sustain the objection. Mr. Herrick, 23 if you wish to proceed on that path, you'll have to lay 24 some more foundation. 25 MR. HERRICK: I'll just leave it at that. Thank you CAPITOL REPORTERS (916) 923-5447 11897 1 very much. 2 C.O. BROWN: Thank you, Mr. Herrick. 3 All right. Mr. Atlas. 4 ---oOo--- 5 CROSS-EXAMINATION OF WESTLANDS WATER DISTRICT 6 SAN LUIS AND DELTA-MENDOTA WATER AUTHORITY 7 BY CROSS VALLEY CANAL 8 BY MARK ATLAS 9 MR. ATLAS: Thank you, Mr. Brown. I have just a few 10 questions, mostly for Mr. Orth, mostly in connection with 11 the land fallowing program that you testified to. 12 Is that program, essentially, one in which the 13 United States identifies land that they think contributes 14 to some drainage problem and then they offer the landowner 15 money to buy the land and take it out of farm production? 16 MR. ORTH: Yes, generally. The program is the 17 Bureau of Reclamation's Land Retirement Program authorized 18 under CVPIA whereby the secretary was authorized to 19 acquire land on a voluntary sales basis for the purpose of 20 addressing drainage problems and -- or drainage issues. 21 And their primary focus has been on lands affected by 22 shallow groundwater. 23 MR. ATLAS: And how much land is it that you expect 24 that this Land Retirement Program might take out of 25 production? CAPITOL REPORTERS (916) 923-5447 11898 1 MR. ORTH: It will be a function of a number of 2 things. First of all, whether or not -- given it's a 3 voluntary program, whether or not it's economically viable 4 for a farmer to keep his land in production, or opt to 5 sell out to the United States. 6 There will be a number of other issues involved 7 there including protection of district interests with 8 respect to our entitlement to the contract supply and what 9 the effect is on the local economies who now rely on the 10 productivity of that land. I think as I testified 11 earlier, the Bureau targets are probably in the range of 12 40- to 70,000 acres. I cannot speculate at this point how 13 far or how successful they're going to be. 14 MR. ATLAS: Well, you testified that -- I mean, 15 essentially, your testimony is that for every acre of land 16 that's irrigated or produces irrigated crops in Westlands, 17 there's a certain amount of economic benefit to the 18 district, to the landowners, to the communities; is that 19 right? 20 MR. ORTH: Yes, I did. 21 MR. ATLAS: Does this Land Retirement Program, as it 22 takes land out of production is it your experience or 23 anticipation that this Land Retirement Program compensate 24 for the loss of that productivity? 25 MR. ORTH: Not directly. The acquisition prices to CAPITOL REPORTERS (916) 923-5447 11899 1 the seller are based on just appraised market values of 2 the land that's being offered for sale. The income 3 production and employment capacity of the parcel that's 4 being retired is not being directly compensated. 5 MR. ATLAS: Okay. Let me ask you in connection with 6 Mr. Suyeyasu's questions about restructuring under 7 Reclamation reform, is it your experience that changes in 8 the way a farmer operates his land or changes in ownership 9 of land, changes the demand of that land for water? 10 MR. ORTH: There is no change in demand, from my 11 experience, through the restructure. 12 MR. ATLAS: Okay. Thank you, I have no other 13 questions. 14 C.O. BROWN: Thank you, Mr. Atlas. 15 Mr. Birmingham, do you have some redirect? 16 MR. BIRMINGHAM: Does the staff have cross? 17 MS. LEIDIGH: Do you have any cross? 18 ---oOo--- 19 CROSS-EXAMINATION OF WESTLANDS WATER DISTRICT 20 SAN LUIS AND DELTA-MENDOTA WATER AUTHORITY 21 BY STAFF 22 MR. HOWARD: I just have a couple quick questions 23 for Mr. Boardman, clarification on testimony that he gave. 24 On Page 2 of your testimony you indicate that the 25 reliable water supply for CVP agricultural service CAPITOL REPORTERS (916) 923-5447 11900 1 contractors south of the Delta has decreased by 35 2 percent. 3 In making that determination did you use the 4 model studies that you cite on Page 5 of your testimony? 5 MR. BOARDMAN: No. I used the DWRSIM study for 6 that. 7 MR. HOWARD: Do you know which DWRSIM study you were 8 looking at? 9 MR. BOARDMAN: I can't recall offhand. 10 MR. HOWARD: Earlier under cross-examination from 11 Mr. Nomellini you indicated that the base case for that 12 analysis was the 1995 Water Quality Control Plan; is that 13 correct? 14 MR. BOARDMAN: No, I misspoke. It was D-1485. 15 MR. HOWARD: Okay. Thank you. That's all. 16 C.O. BROWN: That's it. 17 Ms. Forster. 18 ---oOo--- 19 CROSS-EXAMINATION OF WESTLANDS WATER DISTRICT 20 SAN LUIS AND DELTA-MENDOTA WATER AUTHORITY 21 BY THE BOARD 22 MEMBER FORSTER: Yes. I just have one clarifying 23 question. Under cross from one of the attorneys you said 24 that you had $66,000,000 more in crops but, yet, you had 25 less water. Could you explain that a little more in CAPITOL REPORTERS (916) 923-5447 11901 1 detail on why that happens? 2 MR. ORTH: I think the example that was used was a 3 comparison of the 1989 crop report with the -- I believe 4 it was the 1994 crop report. 1989, being a year in which 5 we received 100 percent -- Westlands received 100-percent 6 CVP allocation, 1994 a year in which we received a 7 35-percent CVP allocation. 8 And the gross production value of the lands 9 farmed between those two years reflect that despite a 10 reduction in the CVP surface entitlement we had a 67 -- 11 $67,000,000 increase in gross farm production value. 12 There are two factors that affect that. One are, 13 obviously, the changes in markets that affect farm 14 production, prices, commodity prices and the cropping 15 decisions that were made. I haven't done a line-by-line 16 comparison, but I would suspect that -- you know we saw 17 between the two years increases in some of the higher 18 value crops. It's a trend that Westlands has experienced 19 since the late '80s, conversions from cotton to processing 20 tomatoes and other permanent crops. 21 The other factor that was not addressed in the 22 questioning was the existence of groundwater. Our farmers 23 to the extent they are capable will use groundwater to 24 balance the equation. So despite the fact that in '94 we 25 only had a 35-percent surface entitlement -- or CVP CAPITOL REPORTERS (916) 923-5447 11902 1 contract entitlement, I believe the record would show we 2 probably pumped in the range of 600,000 acre-feet to make 3 up the shortage to provide the production value. 4 MEMBER FORSTER: And just as a follow-up on, and I 5 know that in other phases I heard a lot of discussion of 6 this, but it's on my mind again. 7 Is Westlands able to do conjunctive use? Do you 8 take water in wet years and store it in groundwater and do 9 groundwater banking, or does the hydrology and some of the 10 problems with the root zone and the salinity not enable 11 you to do that? 12 MR. ORTH: We have not been, to date, capable of 13 finding a place where we can do direct recharge, again, 14 because of the impermeable clay layer that Mr. Ottemoeller 15 testified to. We have currently a study underway to try 16 to determine whether or not there are isolated pockets 17 within the district that we could do direct recharge. 18 We have also negotiated -- or in the process of 19 negotiating an indirect banking exchange agreement with 20 some other agencies where we would give up part of our 21 surface entitlement in certain years in exchange for -- 22 and rely more on groundwater. So it's an indirect in-lieu 23 of type banking program. 24 The difficulty is with the lack of certainty and 25 reliability in our CVP entitlement, a lot of folks don't CAPITOL REPORTERS (916) 923-5447 11903 1 want to trade with us because they are concerned that in 2 those years where they have dry-year needs, the CVP 3 contract allocation may be zero. So they will, in effect, 4 bank a lot of water with us that we can't physically pay 5 them back without extensive use of groundwater. It's a 6 dilemma that we're trying to solve, but to date we haven't 7 been able to find any direct solutions. 8 MEMBER FORSTER: Thanks. 9 C.O. BROWN: Thank you, Ms. Forster. 10 My suspect is that you use all your surface 11 water. Wouldn't it be rather difficult to have a banking 12 program since you make utilization of all allocated water 13 supplies? 14 MR. ORTH: Yeah. The source water for banking is 15 going to have to be those extraordinarily wet years where 16 we can capture flood flows off the Kings and San Joaquin 17 Rivers, or other years where the market may provide for 18 some lower-priced supplies that we can acquire and, in 19 effect, bank. But presently the demand is so much greater 20 than what we can supply that you're absolutely right. 21 C.O. BROWN: I have a few more, Mr. Birmingham. 22 MR. BIRMINGHAM: Excuse me. I'm sorry, Mr. Brown. 23 MEMBER BROWN: The groundwater quality that you're 24 pumping, what's the salinity on it now? 25 MR. ORTH: Yeah, it's depending upon location of the CAPITOL REPORTERS (916) 923-5447 11904 1 district. I refer -- Steve mentions 500 to 1,000. I 2 think in some cases -- there are some pockets where it's 3 worse than that. It's, of course, close to 1500 TDS. 4 C.O. BROWN: Your average pumping water level, what 5 figure comes into mind? 6 MR. ORTH: East side of the district is 50, 60 feet, 7 west side of the district is over 1,000. It ranges, but 8 it can be anywhere from 500 and 1,000 feet or more. 9 C.O. BROWN: And that gets pretty expensive, a 10 thousand feet. 11 MR. ORTH: Yeah. 12 C.O. BROWN: I would suspect. What happens if it 13 was 200 cfs in the DMC, is it just silt in the bottom of 14 the canal, or what's the problem? You mentioned you were 15 off about 200 cfs of the 4600. 16 MR. BOARDMAN: 2 to 400 cfs that was as a result of 17 subsidence. There's no siltation, per se. It's just that 18 the canal is lower in that particular portion and causes 19 it to overflow when we're trying to move a certain amount 20 of water through there. 21 C.O. BROWN: So the invert of the canal has changed? 22 MR. BOARDMAN: That's true. 23 C.O. BROWN: Is there any undeveloped land left in 24 the Westlands Water District area, or has it all been 25 reclaimed? CAPITOL REPORTERS (916) 923-5447 11905 1 MR. ORTH: I think there's somewhere in the range of 2 8- to 10,000 acres is the number that comes to mind that 3 is land that has not been developed and irrigated with 4 surface supplies. 5 C.O. BROWN: Does this land have a district right 6 for water supply if it was developed? 7 MR. ORTH: Yes, it does. 8 C.O. BROWN: On the land that you take out of 9 production, and I suspect the district contract right with 10 it, leaves the land so the land is without water, what's 11 the value of the land would you estimate? 12 MR. ORTH: Bureau appraisals in the Land Retirement 13 Program have established dry land value without surface 14 entitlement anywhere in the range of 700 to $1,000 an 15 acre. 16 C.O. BROWN: The value of the land with water is 17 what? 18 MR. ORTH: Ranges anywhere from 1500 to 2500 or more 19 depending on location and the buyer. 20 C.O. BROWN: In the last 10, 15 years your cropping 21 pattern has changed considerably, hasn't it? 22 MR. ORTH: Yes, it has. 23 C.O. BROWN: Higher value of crops? 24 MR. ORTH: Significant conversion to processing 25 tomatoes, almonds and pistachios is kind of the three CAPITOL REPORTERS (916) 923-5447 11906 1 crops. 2 MEMBER BROWN: The almonds and pistachios on drip 3 irrigation? 4 MR. ORTH: Almost 100 percent. 5 C.O. BROWN: And the water requirement for those 6 crops' consumptive use is what? 7 MR. ORTH: The consumptive use on almonds, the 8 numbers I just looked at a couple of days ago were 9 somewhere in the range of 3, 3.8 acre-feet per acre. 10 They're a higher demand crop than the row crops that 11 people are converting from. Pistachios are a little bit 12 less, somewhere in the 3, 3 and a quarter. 13 C.O. BROWN: Mr. Nomellini asked you a question 14 about if Alternative 8 to the joint points of diversion 15 was selected it could yield maybe as much as 400,000 16 acre-feet in some years. 17 And would you support the, I guess, the 18 recirculation of that water in San Joaquin for improved 19 water quality that is available? And I think your answer 20 was "yes." And I wanted to confirm that. 21 MR. ORTH: Yeah, the answer was "yes." I think our 22 position on recirculation has been that we're not opposed 23 so long as it doesn't impact the ability of the projects 24 to meet their contractual obligations and that the costs 25 are not placed upon the CVP exporters. CAPITOL REPORTERS (916) 923-5447 11907 1 C.O. BROWN: That's all I have. 2 MEMBER FORSTER: I have one more question. 3 C.O. BROWN: Okay, Mary Jane. 4 MEMBER FORSTER: I have one more question to try to 5 understand your community better. This is a little 6 outside of what you talked about today, but do you have 7 the pressures of urbanization like a lot of the Central 8 Valley has, or are you in an area where that isn't as big 9 of an issue as some of the other areas? 10 MR. ORTH: We are not suffering presently from 11 urbanization pressures. The district falls on the west 12 side of the San Joaquin Valley. Western boundary of our 13 district is Interstate 5 and we run -- the northern 14 boundary is somewhere around the city of Mendota, southern 15 is the city of Cattleman City, I guess that is the 16 appropriate title of what those communities are. 17 There is very little urbanization going on around 18 us. It's one of the few things that we do not have to 19 struggle with. There are some little pockets. There is 20 an increasing business development in the 21 Interstate 5/Highway 198 corridor, but it's not 22 significant. 23 MEMBER FORSTER: Thanks. 24 C.O. BROWN: Surely. 25 Now, Mr. Birmingham, do you have some redirect? CAPITOL REPORTERS (916) 923-5447 11908 1 MR. BIRMINGHAM: I do. 2 ---oOo--- 3 REDIRECT EXAMINATION OF WESTLANDS WATER DISTRICT 4 SAN LUIS AND DELTA-MENDOTA WATER AUTHORITY 5 BY THOMAS BIRMINGHAM 6 MR. BIRMINGHAM: Like Board Member Forster, I'd like 7 to start with Mr. Suyeyasu's cross-examination. Mr. Orth, 8 you are a CPA; is that correct? 9 MR. ORTH: Yes, I am. 10 MR. BIRMINGHAM: So does that mean that you've had 11 some training in economics and accounting? 12 MR. ORTH: Yes, it does. 13 MR. BIRMINGHAM: Let me ask you a question: You're 14 familiar with the relationship that I have with my law 15 firm? 16 MR. ORTH: Yes. 17 MR. BIRMINGHAM: Now, if my law firm were to fire me 18 so I was no longer involved in the practice of law, would 19 I then be able to stop making payments on my car? 20 MR. ORTH: I don't believe so. 21 MR. BIRMINGHAM: Would I be able to stop making my 22 mortgage payments? 23 MR. ORTH: No, sir. 24 MR. BIRMINGHAM: Would I be able to stop making the 25 payments for my children's education? CAPITOL REPORTERS (916) 923-5447 11909 1 MR. ORTH: No. 2 MR. BIRMINGHAM: So going back to Mr. Suyeyasu's 3 question, if you take land out of production because of 4 inadequate water supply, does the farmer get to quit 5 making his capital payments? 6 MR. ORTH: Absolutely not. 7 MR. BIRMINGHAM: Does he have to continue making 8 payments on his land? 9 MR. ORTH: Yes, he does. 10 MR. BIRMINGHAM: So if we take that land out of 11 production, the farmer is not going to make money because 12 the land is taken out of production? 13 MR. ORTH: That's correct. 14 MR. BIRMINGHAM: Now, in response to Board Member 15 Forster's question about how comparing 1989 to 1994 you 16 could have an increase in the gross value of crops grown 17 within a district while the surface water supply went 18 down, you said that you thought that the records would 19 show that groundwater pumping during that period 20 increased. 21 Do you recall saying that to Ms. Forster? 22 MR. ORTH: Yes, I do. 23 MR. BIRMINGHAM: In fact, if you look at Westlands 24 Water District Exhibit 12, and any member of the panel can 25 answer this, does Westlands Water District Exhibit 12 CAPITOL REPORTERS (916) 923-5447 11910 1 reflect the level of groundwater pumping in 1994? 2 MR. OTTEMOELLER: I believe that would be right 3 there, '93 -- in 1993 we had a 50-percent water supply 4 compared to '92 pumping reduced to something over 200,000 5 acre-feet, in 1994 pumping increased above 300,000 6 acre-feet. 7 MR. BIRMINGHAM: So in response to the reduction in 8 water supplies of surface water supplies in 1994 there was 9 an increase in reliance on groundwater? 10 MR. OTTEMOELLER: Yes, there was. 11 MR. BIRMINGHAM: Mr. Ottemoeller, your direct 12 testimony talks about the historical reliance on 13 groundwater within Westlands Water District? 14 MR. OTTEMOELLER: Yes. 15 MR. BIRMINGHAM: What is the safe yield of the 16 groundwater basin underlying Westlands Water District? 17 MR. OTTEMOELLER: It's currently estimated to be 18 between 150-, 200,000 acre-feet per year. 19 MR. BIRMINGHAM: What does the term "safe yield" 20 mean? 21 MR. OTTEMOELLER: Well, I am not sure what "safe" 22 means. We tend to use "sustainable," which means if you 23 continue at a certain level you're not going to have a 24 long-term overdraft. 25 MR. BIRMINGHAM: Now, if as a result of reduced CAPITOL REPORTERS (916) 923-5447 11911 1 surface water supplies farmers within Westlands continue 2 to pump 300,000 to 600,000 acre-feet of water per year 3 from the groundwater basin, what will happen? 4 MR. OTTEMOELLER: You'll return to the downward 5 trend in the water surface level and probably see the 6 types of subsidence that we were talking about; in 7 addition, the cost of the water will go up. 8 Given the quality of the water not being as good 9 as the surface water, you'll have a tendency to salt up 10 the soils a little more so, or to avoid that you have to 11 apply additional water to allow for keeping the salinity 12 from building up in the root zone. So, in essence, you 13 need more water if you use more groundwater. 14 MR. BIRMINGHAM: When you say the costs of the water 15 will go up, you mean the cost of the groundwater will go 16 up? 17 MR. OTTEMOELLER: Yes. As the depth to groundwater 18 increases it takes more energy to lift an acre-foot of 19 groundwater to the surface. 20 MR. BIRMINGHAM: Isn't groundwater free? 21 MR. OTTEMOELLER: It's free at the turban, at the 22 bottom of the pump. From there on you have to pay to move 23 uphill just like you have to pay for every other use of 24 energy. 25 MR. BIRMINGHAM: And so as the depth of the CAPITOL REPORTERS (916) 923-5447 11912 1 groundwater goes down, the cost to lift the water from the 2 water table to the surface increases? 3 MR. OTTEMOELLER: That's correct. 4 MR. BIRMINGHAM: Now, Mr. Sexton started to ask you 5 some questions about the affect of subsidence on the 6 water-holding capacity of the groundwater basin. And I'd 7 like to follow up on that for a little bit if I can. 8 You indicated that you thought that the slope of 9 the decline in the water level depicted between 1942 and 10 1967 compared to the slope between 1985 to 1993 indicated 11 that there had been a reduction in the holding capacity of 12 the groundwater water table; is that correct? 13 MR. OTTEMOELLER: That's one conclusion you could 14 draw from that graph, yes. 15 MR. BIRMINGHAM: Could you explain that further, 16 please? 17 MR. OTTEMOELLER: Well, if there's less holding 18 capacity within the groundwater -- or within the soil, 19 then the same volume of water pumped reduces the 20 groundwater level to a greater degree. 21 In other words, if prior to subsidence one foot 22 of depth of groundwater holds, for example, one inch of 23 actual water, if you've gotten some compaction in those 24 soils and now -- to take an extreme case -- you have a 25 half an inch of water in that foot of soil, to get that CAPITOL REPORTERS (916) 923-5447 11913 1 same inch that you could have gotten out of one foot of 2 soil you now have to pump two feet of groundwater 3 elevation to get that one inch. 4 MR. BIRMINGHAM: So looking at Westlands Water 5 District Exhibit 12, say, in 1950 or thereabouts when the 6 groundwater level was at zero feet, if I understand your 7 testimony you're saying that in 1950 when it was at zero 8 feet there was more groundwater in storage than, say, in 9 1990 when the groundwater level was at 50 feet; is that 10 essentially what you're saying? 11 MR. OTTEMOELLER: Essentially, yes. I don't have 12 numbers of acre-feet to back that up, but that's the 13 conclusion that I draw by looking at that, yes. 14 MR. BIRMINGHAM: So because the groundwater level 15 recovers to a particular elevation, it doesn't mean that 16 the groundwater basin is holding as much water? 17 MR. OTTEMOELLER: That's my opinion, yes. 18 MR. BIRMINGHAM: Now, you say that's your opinion, 19 is that an opinion that is generally held by engineers and 20 geologists when they're analyzing the effects of 21 subsidence? 22 MR. OTTEMOELLER: Yes. It is a conclusion you draw 23 from reducing the amount of space there is to hold water, 24 water at the same elevation there's less of it. 25 MR. BIRMINGHAM: Mr. Ottemoeller, Mr. Nomellini CAPITOL REPORTERS (916) 923-5447 11914 1 asked you a question about your written testimony, 2 Westlands Water District Exhibit 10, where you 3 suggested -- and this is on Page 5 -- that, 4 (Reading): 5 "The State Water Resources Control Board could 6 further reduce the uncertainty by approving the 7 petitioned changes of point of diversion under 8 CVP and SWP permits without conditions." 9 Now, are you familiar with Water Rights Decision 10 95-6? 11 MR. OTTEMOELLER: Yes. 12 MR. BIRMINGHAM: Water Rights Decision 95-6 13 authorized a joint point of diversion; is that correct? 14 MR. OTTEMOELLER: That's correct. 15 MR. BIRMINGHAM: Under what conditions could the 16 joint point of diversion be used under Water Rights 17 Decision 95-6? 18 MR. OTTEMOELLER: To paraphrase, there would have to 19 be some action taken to benefit the fish that would result 20 in exports. And if that were the case and a plan were 21 submitted by the projects and approved by the State Board, 22 then joint point could be used to make up that lost 23 pumping, but it could not be used to result in any 24 export -- in any greater amount than would have occurred 25 absent the initial action for the protection of the fish. CAPITOL REPORTERS (916) 923-5447 11915 1 MR. BIRMINGHAM: So, in other words, if some action 2 were taken for the benefit of fish that caused a reduction 3 in exports, there could be the use of joint point to make 4 up the foregone water? 5 MR. OTTEMOELLER: Yes. 6 MR. BIRMINGHAM: And that required the development 7 of a plan as to when the joint point would be used to make 8 up that water? 9 MR. OTTEMOELLER: Yes. 10 MR. BIRMINGHAM: And, then, ultimately that plan had 11 to be approved by the Executive Director of the Water 12 Board? 13 MR. OTTEMOELLER: That's correct. 14 MR. BIRMINGHAM: Okay. Now, with respect to your 15 words in your testimony "without conditions," what were 16 you referring to? 17 MR. OTTEMOELLER: I was referring to those types of 18 things which are not included in any of the existing 19 regulatory requirements that would be imposed as a 20 condition of use of joint point. Primary example being 21 under 95-6 there could be no benefit to the CVP 22 contractors as a result of the joint point. It was to 23 benefit the fish. 24 MR. BIRMINGHAM: And so your testimony is that the 25 Board should approve joint point in a way that would make CAPITOL REPORTERS (916) 923-5447 11916 1 more reliable the surface water supply that Westlands has 2 contracted for with the Bureau of Reclamation? 3 MR. OTTEMOELLER: That's correct. 4 MR. BIRMINGHAM: Assuming that the State Water 5 Resources Control Board approves the joint point without 6 the conditions that are contained in Water Rights Decision 7 95-6 or similar conditions, would it be your expectation 8 that the joint point would be operated in a manner 9 consistent with the 1995 Water Quality Control Plan? 10 MR. OTTEMOELLER: Yes. 11 MR. BIRMINGHAM: Are you familiar with the kind of 12 consultations that have occurred between the Bureau of 13 Reclamation and the State Water Project on the one hand 14 and the Fish and Wildlife Service or National Marine 15 Fishery Service on the other with respect to protection of 16 endangered species? 17 MR. OTTEMOELLER: Are you talking about consultation 18 in the context of the Endangered Species Act? 19 MR. BIRMINGHAM: Yes. 20 MR. OTTEMOELLER: Yes. 21 MR. BIRMINGHAM: If the Board were to approve a 22 joint point of diversion without the kind of conditions 23 that you described that are imposed by Water Rights 24 Decision 95-6, is it your understanding that there would 25 be an obligation imposed on the Bureau of Reclamation to CAPITOL REPORTERS (916) 923-5447 11917 1 consult with Fish and Wildlife Service or NMFS to ensure 2 that the operation of the joint point of diversion would 3 not cause jeopardy to listed species? 4 MR. OTTEMOELLER: Yes. There would have to be a 5 consultation, or at least an evaluation as to whether 6 consultation was necessary. 7 MR. BIRMINGHAM: And if that evaluation showed that 8 consultation was necessary, the Bureau and DWR would 9 consult with the appropriate federal agency and the 10 federal agency would prescribe reasonable and prudent 11 alternatives? 12 MR. OTTEMOELLER: Yes, that's correct. 13 MR. BIRMINGHAM: And the purpose of reasonable and 14 prudent alternatives is to ensure that the operation of 15 the project would not cause jeopardy to the listed 16 species? 17 MR. OTTEMOELLER: That's the basis for -- yes. 18 MR. BIRMINGHAM: Now, Mr. Campbell asked each of you 19 a question, and I'd like to go back to it, about the 20 proposal that was being made by the federal agencies and 21 state agencies, Department of Water Resources and the 22 Department of Fish and Game. 23 Now, Mr. Orth, in response to a question asked of 24 you by Mr. Campbell you said that it would be reasonable 25 to develop an operations plan for the use of joint point. CAPITOL REPORTERS (916) 923-5447 11918 1 MR. ORTH: That's correct. 2 MR. BIRMINGHAM: Now, again, this is a question that 3 any of you can answer, but do you think that it's 4 necessary to protect water quality and to protect 5 fisheries that the operations plan has to be developed as 6 part of the CalFed process? 7 MR. OTTEMOELLER: I don't think that in order to 8 provide the protections that are available under the 9 Endangered Species Act and the Water Quality Control Plan, 10 while using a joint point of diversion, that you have to 11 necessarily have in place another operating plan that may 12 establish some other conditions that the agencies or 13 whoever gets to be involved in those discussions would 14 agree to. 15 MR. BIRMINGHAM: Now, during your examination by one 16 attorney, Mr. Ottemoeller, and I can't remember which one, 17 you on a couple occasions said, "Well, that's a function 18 of balancing the water quality against the beneficial uses 19 of water." 20 Do you recall making a statement to that effect? 21 MR. OTTEMOELLER: Yes. 22 MR. BIRMINGHAM: What did you mean by that? 23 MR. OTTEMOELLER: Well, it's the authority and 24 obligation of this Board to make decisions on water uses 25 in the Delta that balance beneficial uses of the water CAPITOL REPORTERS (916) 923-5447 11919 1 whether it be for consumptive uses or environmental uses 2 and taking into account all of the legal and water rights 3 implications of making those decisions. 4 My point was: It's not up to me to make that -- 5 draw that conclusion, it's up to the Board in the context 6 of their decisions to draw those kinds of conclusions 7 about how you balance the different potential uses of 8 water that went through the system. 9 MR. BIRMINGHAM: Now, is it your understanding that 10 when the State Water Resources Control Board adopted the 11 1995 Water Quality Control Plan it engaged in the kind of 12 balancing process that you're now describing? 13 MR. OTTEMOELLER: Yes. 14 MR. BIRMINGHAM: So if the joint point of diversion 15 were approved and it were operated in a manner consistent 16 with the 1995 Water Quality Control Plan, is it your view 17 that that would adequately protect water quality? 18 MR. OTTEMOELLER: Presuming the analysis that was 19 done under environmental compliance for both the Water 20 Quality Control Plan and this process were adequate, then, 21 yes, that's the only conclusion that you can draw. 22 C.O. BROWN: Mr. Birmingham, would this be a good 23 time to take a break or would you like to take a few 24 minutes to finish? 25 MR. BIRMINGHAM: This would be a good time to take a CAPITOL REPORTERS (916) 923-5447 11920 1 break, because I'll be at this more than a few minutes. 2 C.O. BROWN: All right. We'll take a 12-minute 3 break. 4 (Recess taken from 2:35 p.m. to 2:49 p.m.) 5 C.O. BROWN: Come back to order. 6 Mr. Birmingham. 7 MR. BIRMINGHAM: Thank you. 8 Mr. Orth, in response to a question that was 9 asked of you by Mr. Campbell you testified that it would 10 be reasonable to develop an operations plan prior to 11 implementing a joint point of diversion? 12 MR. ORTH: Yes, I did. 13 MR. BIRMINGHAM: Now, is it your view that in order 14 to adequately protect water quality, the operations plan 15 for joint point of diversion needs to be developed by the 16 CalFed policy group? 17 MR. ORTH: No, it is not. 18 MR. BIRMINGHAM: Is it your view that in order to 19 adequately protect the fishery resources in the Delta the 20 operations plan needs to be developed by the CalFed policy 21 group? 22 MR. ORTH: No, it is not. 23 MR. BIRMINGHAM: When you talked -- in response to 24 Mr. Campbell's question when you said it would be 25 reasonable to develop an operations plan prior to CAPITOL REPORTERS (916) 923-5447 11921 1 implementing a joint point of diversion, what were you 2 contemplating in terms of the development of the 3 operations plan? 4 MR. ORTH: Well, first of all, given where we've 5 been with respect to uncertainty of operations on a 6 year-by-year basis, I believe that it's vital that a plan 7 be developed. It is my view that such a plan could be 8 developed by the Bureau of Reclamation and the Department 9 of Water Resources consistent with whatever conditions are 10 in existence at that point in time to address water 11 quality and environmental issues. And such a plan would 12 be developed in consultation with the federal and state 13 fishery agencies. 14 MR. BIRMINGHAM: So when you say consistent with the 15 conditions that are in place at the time, you're talking 16 about, say, the 1995 Water Quality Control Plan? 17 MR. ORTH: Exactly, or whatever other conditions are 18 placed or established by the State Board as part of this 19 process. 20 MR. BIRMINGHAM: Now, in response to a number of 21 questions by Mr. Herrick you used the term "drainage 22 problem" or "drainage issue." 23 When you used the term "drainage problem" or 24 "drain issue," Mr. Orth, what were you referring to? 25 MR. ORTH: I'm referring to, quite frankly, two CAPITOL REPORTERS (916) 923-5447 11922 1 things: The accumulation of salts in the soil from the 2 lack of adequate supply to flush the salts from the soil. 3 And then, maybe more traditionally, the drainage issue as 4 defined as accumulation of shallow groundwater that starts 5 to encroach within the root zone of the crops. 6 MR. BIRMINGHAM: Now, Mr. Suyeyasu asked you a 7 number of questions, Mr. Orth, about land that is fallowed 8 within Westlands Water District. And I believe in 9 response to those questions you referred to Westlands 10 Water District Exhibits 8-A through 8-E? 11 MR. ORTH: I. 12 MR. BIRMINGHAM: Excuse me, 8-I. Thank you. Now, 13 in particular, he asked you about 1994 when 125,000 acres 14 of land within Westlands was fallowed? 15 MR. ORTH: Actually, that was 1991 when that land 16 was fallowed, yes. 17 MR. BIRMINGHAM: Thank you. And this relates to 18 some questions that were asked of you by Board Member 19 Brown, within Westlands a certain area of land, or a 20 certain number of acres is fallowed in each year; is that 21 correct? 22 MR. ORTH: That's correct, for crop rotation 23 purposes and -- well, primary crop rotation absent water 24 supply issues. 25 MR. BIRMINGHAM: Now, the lands that were fallowed, CAPITOL REPORTERS (916) 923-5447 11923 1 are they still eligible for an allocation of water from 2 Westlands? 3 MR. ORTH: In -- yes, in most instances. 4 MR. BIRMINGHAM: So if a farmer who owns 500 acres 5 decides to allocate, or to -- excuse me. Let me restate 6 the question. 7 If a farmer owns 500 acres and he decides to 8 fallow 100 acres, he can still make an application for an 9 allocation to all 500 acres? 10 MR. ORTH: Yes, he can. 11 MR. BIRMINGHAM: And with respect to the water 12 supply related to the 100 acres that he has fallowed, he 13 can take that water supply and use it on other lands on 14 which he's operating? 15 MR. ORTH: Yes, he can. 16 MR. BIRMINGHAM: Or he can transfer that water to 17 other water users within the district? 18 MR. ORTH: Right. 19 MR. BIRMINGHAM: This takes me to a question that 20 was asked of you by Mr. Nomellini about a proposal that 21 water users in the district sell water to San Diego County 22 Water Agency. 23 Does the district have a position on the legal 24 entitlement of farmers within Westlands to transfer water 25 outside of the district? CAPITOL REPORTERS (916) 923-5447 11924 1 MR. ORTH: Yes, we do. We have a position that the 2 Barcellos settlement does not permit individual water 3 users to transfer, or sell, market, whatever you want to 4 call it, their annual allocation of water supply to 5 parties outside of the district until all other parties in 6 the district have first been satisfied. 7 MR. BIRMINGHAM: Now, you referred to the Barcellos 8 settlement; the Barcellos settlement was memorialized by a 9 judgment that was entered in the United States District 10 Court? 11 MR. ORTH: That is correct. 12 MR. BIRMINGHAM: And that judgment binds all lands 13 within the district? 14 MR. ORTH: Yes, it does. 15 MR. BIRMINGHAM: And the judgment provides that if a 16 water user -- excuse me, if a landowner in area one fails 17 to make an application for an allocation and other 18 landowners in area one don't make an application for 19 allocation, then the water becomes available for area two? 20 MR. ORTH: That is right. 21 MR. BIRMINGHAM: And the combined water supply for 22 area one and area two is inadequate to meet the demand for 23 water within two areas of the district? 24 MR. ORTH: Yes, that is correct. 25 MR. BIRMINGHAM: So in any given year there will CAPITOL REPORTERS (916) 923-5447 11925 1 always be a demand within area one and area two that would 2 prevent a landowner from transferring water outside of the 3 district? 4 MR. ORTH: That is basically the district's 5 position, yes. 6 MR. BIRMINGHAM: Mr. Nomellini in a number of other 7 questions asked this panel about the retirement of land 8 within Westlands Water District and the effect of land 9 retirement on the gross demand for water within the 10 district. 11 Do you recall those questions? 12 MR. ORTH: Yes. 13 MR. BIRMINGHAM: Now, I'm going to ask you to assume 14 that 40,000 acres of land within the district are retired. 15 Would that have an affect on the demand -- let me restate 16 the question. 17 Would the retirement of 40,000 acres of land 18 within the district affect the district's total demand for 19 its CVP water entitlement? 20 MR. ORTH: It would not. 40,000 acres, based on 21 numbers provided in my testimony, require approximately 22 100,000 acre-feet of water when you apply the 2.5 23 acre-foot per acre requirement. 24 As Mr. Ottemoeller testified earlier, the total 25 demand to Westlands Water District is approximately 1.4 to CAPITOL REPORTERS (916) 923-5447 11926 1 1.5 million acre-feet per year. If we retire 40,000 acres 2 we just dropped that number by 100,000 acre-feet. So 3 we're now down to 1.3 to 1.4 million acre-feet of gross 4 district water demand. 5 As we've testified, our CVP entitlement is only 6 1,150,000 acre-feet in a 100-percent water year. So 7 there's still going to be a shortage between, on long-term 8 averages, our CVP entitlement and the sustainable yield of 9 groundwater. 10 MR. BIRMINGHAM: So even in those years when the 11 district has received a 100-percent supply in 12 allocation -- excuse me, a 100-percent allocation of its 13 CVP supply, there still is a demand in excess of the water 14 that will be made available by the Bureau of Reclamation? 15 MR. ORTH: That is correct. 16 MR. BIRMINGHAM: And, Mr. Orth, then, isn't it 17 correct that in every water year type there is a shortage 18 of water that could result in the fallowing of land? 19 MR. ORTH: Yes. Yes, that's correct. 20 MR. BIRMINGHAM: So even when the district receives 21 a 100-percent supply, a landowner, say, in area two could 22 be forced to fallow land because that individual landowner 23 would have an inadequate water supply? 24 MR. ORTH: That is correct, yes. 25 MR. BIRMINGHAM: Now, you and I have spoken briefly CAPITOL REPORTERS (916) 923-5447 11927 1 about area one and area two, what is the distinction 2 between area one and area two within Westlands Water 3 District? 4 MR. ORTH: Area one is defined -- or we refer to 5 area one to describe the original Westlands Water 6 District, which is about 340,000 acres makes up the 7 eastern two-thirds of the district. They are entitled to 8 the initial allocation of 900,000 acre-feet of water 9 supply that was secured by the 1963 water service 10 contract. 11 Area two represents the lands that were 12 originally included in the west west plains Water 13 District, and upon merger with Westlands in 1965 represent 14 now the western one third of the district. Their primary 15 source of water supply is whatever portion of the 900,000 16 acre-feet that area one does not timely apply and pay for, 17 plus 250,000 acre-feet of water supply that was, in 18 effect, ratified under the Barcellos judgment. 19 On a per acre-foot -- acre-feet per acre basis, 20 the entitlement to area one is 2.67 acre-feet per acre; 21 entitlement to area two is 1.3 acre-foot per acre. 22 MR. BIRMINGHAM: Now, what is the average 23 consumption of crops grown in area two? 24 MR. ORTH: It's 2.5 -- at least 2.5 acre-feet per 25 acre. CAPITOL REPORTERS (916) 923-5447 11928 1 MR. BIRMINGHAM: Now, in response to questions by 2 Board Member Brown you said that the depth of the 3 groundwater, or the pumping level varies from area to area 4 within the district. Is that correct? 5 MR. ORTH: Yes, I did. 6 MR. BIRMINGHAM: And I believe you said that on the 7 western boundary of the district the pumping level may be 8 as much as a thousand feet? 9 MR. ORTH: Yes, that's correct. 10 MR. BIRMINGHAM: And that is the area within area 11 two, or that is an area within area two where the water 12 allocation is 1.3 acre-feet per acre? 13 MR. ORTH: Yes. 14 MR. BIRMINGHAM: Is it correct that landowners or 15 water users in area two are consistently short of water? 16 MR. ORTH: That's correct, yes. 17 MR. BIRMINGHAM: Now, going back to the questions 18 about land retirement, assume 70,000 acres were retired 19 within Westlands, would that affect the district's total 20 demand for its CVP water supply? 21 MR. ORTH: I guess I need to do the math. 22 MR. BIRMINGHAM: Well, if 40,000 acre-feet would 23 result in a 100-percent reduction in demand, let's assume, 24 hypothetically, that 80,000 acres are retired, that would 25 be a 200,000 acre -- CAPITOL REPORTERS (916) 923-5447 11929 1 MR. ORTH: Right. 2 MR. BIRMINGHAM: -- reduction in demand? 3 MR. ORTH: Which would bring us down from the 4 million four to million five for all of the district's 5 lands now to a million two -- 1.2 to 1.3 million, which is 6 still in excess of our surface entitlement. 7 The sustainable yield of the groundwater 8 available to the district becomes a more significant 9 factor in balancing that out. But there's still a need, 10 if you're going to properly manage the groundwater basin, 11 for the full CVP entitlement. 12 MR. BIRMINGHAM: Does the Westlands Water District 13 have a groundwater management plan? 14 MR. ORTH: Yes, we do. 15 MR. BIRMINGHAM: Mr. Ottemoeller, you were asked 16 some questions by Mr. Nomellini about subsidence. And 17 from his questions I took him to be asking you about the 18 potential for further subsidence. 19 Do you have an opinion on whether the continued 20 shortages of surface water within Westlands and the 21 associated reliance on groundwater could lead to further 22 subsidence? 23 MR. OTTEMOELLER: Yes. I think I mentioned that as 24 long as the groundwater pumping would exceed the safe 25 yield, in general, or actually in some places -- what I CAPITOL REPORTERS (916) 923-5447 11930 1 failed to mention there are some places in the district 2 which are more reliant on groundwater than others, and 3 even if the average elevations kind of stayed the same, 4 they are more susceptible to subsidence which is likely to 5 continue unless there's a balancing of the groundwater 6 extractions that's closer to the sustainable yield. 7 MR. BIRMINGHAM: Did Westlands Water District within 8 the last few years cause to be prepared a Draft 9 Environmental Impact Report that analyzed the potential 10 effects of pumping groundwater in the vicinity of the 11 California Aqueduct and placing that water into the 12 aqueduct for conveyance to other areas within Westlands? 13 MR. OTTEMOELLER: Yes. There was a proposal by some 14 landowners who wanted to be able to move water, put water 15 in the canal and move it through the system. And the 16 district, on their own behalf, prepared a Draft 17 Environmental Impact Report. 18 MR. BIRMINGHAM: Did that Draft Environmental Impact 19 Report identify land subsidence as one of the potential 20 effects of a groundwater pumping program? 21 MR. OTTEMOELLER: Yes. 22 MR. BIRMINGHAM: Okay. And did that Draft 23 Environmental Impact Report identify damage to the 24 California Aqueduct as one of potential effects of land 25 subsidence resulting from a groundwater pumping program? CAPITOL REPORTERS (916) 923-5447 11931 1 MR. OTTEMOELLER: Yes, it did. 2 MR. BIRMINGHAM: Mr. Boardman, Mr. Suyeyasu asked 3 you some questions about the Authority's position 4 concerning actions taken to protect fish. 5 Do you recall those questions? 6 MR. BOARDMAN: Yes. 7 MR. BIRMINGHAM: Now, did the San Luis and 8 Delta-Mendota Water Authority participate in the 9 negotiations that led up to the Bay-Delta Accord? 10 MR. BOARDMAN: Yes, they did. 11 MR. BIRMINGHAM: And did the San Luis and 12 Delta-Mendota Water Authority sign the Bay-Delta Accord? 13 MR. BOARDMAN: Yes, they did. 14 MR. BIRMINGHAM: May I have one moment, Mr. Brown? 15 C.O. BROWN: You may. 16 We'll go off the record for a minute, Mary. 17 (Off the record from 3:09 p.m. to 3:10 p.m.) 18 C.O. BROWN: Okay, back on the record. 19 MR. BIRMINGHAM: Thank you, Mr. Brown. 20 I have a copy of Staff Exhibit 134, which is a 21 copy of the principles for Agreement on Bay-Delta 22 Standards between the State of California and the Federal 23 Government. 24 And I'm handing that document to you, 25 Mr. Boardman. Is it your understanding that one of the CAPITOL REPORTERS (916) 923-5447 11932 1 purposes of the Bay-Delta Accord was to prescribe 2 conditions that would benefit fisheries in the Delta? 3 MR. BOARDMAN: Yes. 4 MR. BIRMINGHAM: And did the conditions that were 5 agreed to in the Bay-Delta Accord have an effect on the 6 water supply of the members of the San Luis and 7 Delta-Mendota Water Authority? 8 MR. BOARDMAN: Yes, it did. 9 MR. BIRMINGHAM: And approximately what was the 10 impact in terms of water supply resulting from the 11 implementation of the Accord on the water supply of San 12 Luis and Delta-Mendota Water Authority members? 13 MR. BOARDMAN: The total impact to both projects, 14 state and federal, was about 1.1 million in critically dry 15 years. So if you assume that San Luis Delta-Mendota would 16 take half of that impact, then, roughly 550,000 feet. 17 MR. BIRMINGHAM: So when you said that the Authority 18 has developed a policy of "not one more drop," they 19 developed that policy in light of the fact that under the 20 Accord they've already given up approximately 5.5 million 21 acre-feet -- excuse me, 550,000 acre-feet in a critical 22 year? 23 MR. BOARDMAN: That is correct. 24 MR. BIRMINGHAM: Now, Mr. Orth, in response to a 25 question asked of you by Mr. Suyeyasu you also made CAPITOL REPORTERS (916) 923-5447 11933 1 reference to the Bay-Delta Accord. And in particular the 2 provisions of the Accord that relates to water being made 3 available for additional listings under the Endangered 4 Species Act. 5 MR. ORTH: Yes, I did. 6 MR. BIRMINGHAM: Mr. Suyeyasu asked you a question 7 about the potential water supply impacts on a listing of 8 the spring-run chinook salmon? 9 MR. ORTH: Yes, he did. 10 MR. BIRMINGHAM: And you said that you didn't think 11 that would have an impact on Westlands Water supply 12 because under the Accord, the Federal Government agreed 13 that if there were additional listings, the additional 14 listings would not result in further reductions in water 15 supplies to CVP contractors? 16 MR. ORTH: Yes, that was my response. 17 MR. BIRMINGHAM: Now, when you gave him that 18 response were you referring to page -- excuse me, to 19 paragraph 2-B in Staff Exhibit 134? 20 MR. ORTH: Yes, I was. 21 MR. BIRMINGHAM: And, in particular, you were 22 referring to the sentence that says, 23 (Reading): 24 "Additional water needs will be provided by the 25 federal government on a willing seller basis CAPITOL REPORTERS (916) 923-5447 11934 1 financed by federal funds not through 2 additional regulatory re-allocations of water 3 within the Bay-Delta." 4 MR. ORTH: Yes. 5 MR. BIRMINGHAM: Now, Mr. Suyeyasu followed up on 6 your response by asking you, "Well, what if the federal 7 government wasn't authorized to do that?" Do you recall 8 him asking you that? 9 MR. ORTH: Yes. Yes, I do. 10 MR. BIRMINGHAM: Now, you're familiar with the 11 parties that were involved in the negotiation of the 12 Bay-Delta Accord? 13 MR. ORTH: Yes, I am. 14 MR. BIRMINGHAM: John Krautkramer, do you recognize 15 that name? 16 MR. ORTH: Yes, I do. 17 MR. BIRMINGHAM: Is it correct that Mr. Krautkramer 18 was an attorney for the Environmental Defense Fund? 19 MR. ORTH: Yes. 20 MR. BIRMINGHAM: And the Environmental Defense Fund 21 was one of the parties to the Accord? 22 MR. ORTH: That's correct. 23 MR. BIRMINGHAM: So the Environmental Defense Fund, 24 when it signed the Accord, it was agreeing to the 25 provision in paragraph 2B that if there were additional CAPITOL REPORTERS (916) 923-5447 11935 1 listings the water would be made up through -- from 2 willing sellers and not through additional regulatory 3 re-allocations of water within the Bay-Delta? 4 MR. ORTH: Yes. 5 MR. BIRMINGHAM: Mr. Suyeyasu asked the panel a 6 number of questions about water supplies, and I'd like to 7 draw your attention to Westlands Water District Exhibit 8 11. 9 Mr. Suyeyasu asked you questions about the 10 environmental constraints that were in place in 1988 and 11 '89. Do you remember being asked that question? 12 MR. OTTEMOELLER: Yes. 13 MR. BIRMINGHAM: And I believe, Mr. Ottemoeller, you 14 responded by saying that in 1988/'89, 1989 and '90 the 15 operations of the CVP were constrained by D-1485? 16 MR. OTTEMOELLER: Yes. 17 MR. BIRMINGHAM: And isn't it the point, 18 Mr. Ottemoeller, that even in a critically dry year, or a 19 below normal dry year before enactment of CVPIA, before 20 implementation of ESA and before adoption of the Bay-Delta 21 Accord, even in critically dry years the Bureau of 22 Reclamation was able to allocate to the Westlands Water 23 District 100 percent of its supply? 24 MR. OTTEMOELLER: Yes, it occurred that way. That's 25 the design of the project. CAPITOL REPORTERS (916) 923-5447 11936 1 MR. BIRMINGHAM: Mr. Suyeyasu asked you questions 2 about if the Bureau had left -- had used a 90-percent 3 exceedance would that not have resulted in more carryover 4 storage in reservoirs north of the Delta. Do you recall 5 those questions, Mr. Ottemoeller? 6 MR. OTTEMOELLER: Yes. 7 MR. BIRMINGHAM: Now, what is your understanding of 8 the term "project yield"? 9 MR. OTTEMOELLER: It's the amount of water that the 10 Bureau could deliver on a consistent basis through the 11 1928 through 1934 period with no more than a 25-percent 12 reduction in allocation in any one year and no more than a 13 cumulative total of 100-percent reduction in allocations 14 during that period. 15 MR. BIRMINGHAM: Now, you used the words, the amount 16 of water that could be delivered in the '28 through '34 17 period? 18 MR. OTTEMOELLER: Yes. 19 MR. BIRMINGHAM: So that's the delivery capability 20 of the project in the worst dry -- let me restate the 21 question. 22 That is the delivery capability of the project 23 during the most severe drought period on record? 24 MR. OTTEMOELLER: Well, within the 20th Century 25 anyway. I don't know that there was enough records to CAPITOL REPORTERS (916) 923-5447 11937 1 tell if there was anything worse before that. 2 MR. BIRMINGHAM: Now, when you talk about keeping 3 more water in storage, does that have some effect -- well, 4 let me restate the question. 5 When you talk about keeping water in storage from 6 one year to another, does that affect the yield of the 7 project? 8 MR. OTTEMOELLER: Yes, it does. 9 MR. BIRMINGHAM: Could you explain why? 10 MR. OTTEMOELLER: If you leave water in storage that 11 could be used as a project was designed to be used, you 12 are, in effect, reducing the likelihood that you will be 13 able to take advantage of precipitation in the following 14 years. It's as if you had reduced the size of your 15 reservoir. The ultimate consequence of that is you reduce 16 your yield by reducing how much you make use of your 17 reservoir. 18 MR. BIRMINGHAM: And so when there is a condition 19 imposed like the condition in the 1993 Biological Opinion 20 for winter-run that requires an increased minimum 21 carryover storage in Shasta reservoir, that affects the 22 yield of the project? 23 MR. OTTEMOELLER: Yes. 24 MR. BIRMINGHAM: Now, in 1988 and '89 when you were 25 going to be given 100-percent supply by the Bureau of CAPITOL REPORTERS (916) 923-5447 11938 1 Reclamation, could you explain to us one more time why you 2 didn't ask the Bureau to reduce that allocation in light 3 of the fact that it was a critically dry year? 4 MR. OTTEMOELLER: Well, first of all, the Bureau 5 made the allocation, we didn't -- particularly in '88/'89 6 we didn't know it was going to be a critically dry year. 7 In addition, as I mentioned earlier, it was our 8 expectation that we should get a hundred percent of our 9 contract supply as long as the water was in storage and 10 could be operated through the system. 11 Frankly, in 1988/'89 and 1989/'90 we requested of 12 the Bureau additional interim water that had been 13 available to us on a routine basis prior to those years 14 because we felt that water could be made available. 15 MR. BIRMINGHAM: It could be made available and 16 subsequent precipitation in runoff would refill the 17 reservoirs so that water would be available in subsequent 18 years? 19 MR. OTTEMOELLER: Well, yes. You take a chance 20 always when you do maximize the use of your reservoirs, 21 but in the long run you optimize your yield if you use 22 more of your storage each year. 23 MR. BIRMINGHAM: Now, we've talked about the ability 24 of the Bureau to allocate a hundred percent of the 25 district's entitlement even in critically dry years and CAPITOL REPORTERS (916) 923-5447 11939 1 below normal years like 1988/'89 and 1989 and '90. And 2 then we look at a wet year like 1997/'98, and in that year 3 the district received a 90-percent allocation? 4 MR. OTTEMOELLER: That's correct. 5 MR. BIRMINGHAM: Why is that? 6 MR. OTTEMOELLER: The projects were constrained in 7 the amount of water that they could move south of the 8 Delta primarily as a result of temperature control, but 9 also as a result of some of the in-stream releases 10 probably more significantly for the Delta export 11 contractors was the Bureau's determination that they had 12 to give the refuges a hundred percent under CVPIA. 13 Without that, it would have been real close. 14 MR. BIRMINGHAM: Now, would you explain for the 15 Board how the use of the joint point of diversion might 16 ameliorate the water supply impacts on Westlands even in a 17 wet year? 18 MR. OTTEMOELLER: Well, it gives the Bureau the 19 flexibility to ensure that they fill the reservoir sooner 20 in the year, or potentially can meet their water quality 21 requirements and the requirements of Endangered Species 22 Act and CVPIA without reducing allocations. 23 Partly it has to do with the timing and the 24 certainty that the flexibility is there to take certain 25 actions. In the absence of the increased capacity the CAPITOL REPORTERS (916) 923-5447 11940 1 joint point provides, the Bureau becomes a little more 2 conservative and either delays or -- delays a higher 3 allocation or simply never makes it, because the capacity 4 is not there to move the water south of the Delta. 5 MR. BIRMINGHAM: I have no further questions. 6 C.O. BROWN: Thank you, Mr. Birmingham. 7 I'd like to see a show of hands on those who 8 would like to recross. Okay. Hasencamp, Nomellini, 9 Suyeyasu, Campbell. Is that it? Campbell, Suyeyasu, 10 Nomellini, Hasencamp. 11 Okay. I promised Mr. Robbins that I would 12 address his question. 13 Mr. Robbins, let's take a moment right now so 14 that I can keep my word and address your question before 15 we get into recross here. We'll try to get through it 16 all, but -- 17 MR. ROBBINS: Just before we get into this, I wonder 18 if it -- I think we can do a little bit of that. I can 19 express the concerns, but it might be more appropriate if 20 Mr. Stubchaer were here as well, only in the sense that I 21 think the concerns that we have concerning this process, I 22 think, are best phrased all at one time. 23 The sense that we have is that this hearing 24 process is winding down so that we should be able to 25 complete Phase VII, certainly, by the end of April and CAPITOL REPORTERS (916) 923-5447 11941 1 frankly perhaps sooner. 2 C.O. BROWN: Hold that thought for just a moment. 3 My plan is this: Who in here would like to address this 4 issue? Let's see a show of hands, one, two -- 5 MEMBER FORSTER: Three. 6 C.O. BROWN: The thought was this: To give each of 7 you a couple minutes each so that we don't take up too 8 much time and let you just express your concerns and staff 9 will note it and I will, too. And then we'll move on 10 without comment. Is that all right? Will that help? 11 And then we'll bring Mr. Stubchaer into the 12 picture, too, and let him provide his input. So why don't 13 you take a couple minutes and then the other two gentlemen 14 can take a couple minutes and just tell us your concerns 15 and we won't have any discussion on it. 16 MR. ROBBINS: Our concerns, I think, are four 17 issues. The first is that we have some hearing dates that 18 are on the calendar that extend beyond what we view as the 19 probable end of Phase VII. 20 Many of the agencies, particularly the agencies 21 that have supported the San Joaquin River Agreement, have 22 not produced evidence -- in fact, have not exactly gone to 23 the expense at this point of reducing that evidence to a 24 presentable level. As we get closer to what could be a 25 Phase VIII notice, the anxiety over whether we should CAPITOL REPORTERS (916) 923-5447 11942 1 begin spending those dollars to produce that evidence 2 increases. 3 Now, the problem with just beginning the process 4 of producing that evidence is extremely complex and could 5 jeopardize the very agreements themselves. Let me use an 6 example, very quickly. To date there's only been two 7 depositions taken that I'm aware of in this whole process. 8 But, frankly, in a Phase VIII proceeding depositions and 9 interrogatories would be very extensive. And we need the 10 time that it would take in order to complete that 11 evidence. 12 So what I'm looking for, particularly, is an 13 indication from the Board that we will indeed vacate dates 14 after the end of Phase VII, or use them for other 15 procedural issues such as determining a critical path. 16 And we've got a suggestion about what that path might look 17 like. 18 I think Mr. O'Laughlin has indicated, certainly 19 from the River Group's perspective what we would like to 20 see is a completion of Phase VII, a review of the EIR 21 comments, certification of the EIR and move to any phased 22 orders the Board might deem appropriate and then a notice 23 for Phase VIII. 24 In addition, relative to the Phase VIII itself is 25 the issue of time. Right now I think we have on the table CAPITOL REPORTERS (916) 923-5447 11943 1 a commitment from the Board to 60 days between the time of 2 the notice and the time that we begin testimony. But the 3 testimony will be due within three or four weeks of when 4 that notice is issued, that's simply not enough time and 5 we need to address that issue as well. 6 So the critical path, the timing for evidence in 7 Phase VIII and the assurances that we can vacate those 8 dates that are currently on the calendar, we wouldn't 9 commence Phase VII so that we don't have to start the 10 discovery process for that before we have the River 11 Agreement before the Board, at least, have some response 12 from the Board relative to its decision. Those are, 13 essentially, our concerns. 14 C.O. BROWN: Thank you, for your comments, 15 Mr. Robbins. Staff is taking real good notes on this and 16 will be able to address this at the appropriate time. 17 Mr. Sexton, I believe you had your hand up, too. 18 MR. SEXTON: Yes, sir. In addition to the comments 19 of Mr. Robbins, which I support on behalf of Exchange 20 Contractors, the other issue is a little ambiguity, I 21 guess, with respect to the Hearing Notice itself. 22 And I brought this up earlier on in the 23 proceeding. The Hearing Notice at item number six seems 24 to suggest that the Board is going to take testimony 25 regarding -- let me just read it, CAPITOL REPORTERS (916) 923-5447 11944 1 (Reading): 2 "What evidence supports the State Board's 3 exercising its jurisdiction in taking action 4 regarding the water rights listed in enclosure 5 two for the purpose of ensuring that water 6 originating within the watersheds of the 7 Bay-Delta estuary is diverted and used within 8 the constraints of California Constitution 9 Article 10, Section 2, the Reasonable Use 10 Doctrine, and the Public Trust Doctrine." 11 The answer I got to that comment as I recall was 12 that the Board was going to be looking at exercising its 13 jurisdiction under Public Trust. But the mere fact that 14 the notice suggests that the Article 10, Section 2, 15 Reasonable Use Doctrine is going to be looked at, makes it 16 incumbent upon me as an attorney for some districts to 17 prepare evidence supporting our beneficial use of water. 18 And as you know preparing that evidence is going 19 to be time-consuming, quite costly and will probably 20 require the presentation of a great number of witnesses. 21 So, again, we're a little concerned because we 22 have hearing dates scheduled, we're not sure how much 23 notice we're going to get if the Board decides to move 24 forward into a Phase VIII proceeding. And with the notice 25 framed the way it is, we're concern that we need some CAPITOL REPORTERS (916) 923-5447 11945 1 additional time to be able to prepare the evidence on the 2 Reasonable Use Doctrine for use of water within the 3 districts. 4 Thank you. 5 C.O. BROWN: That's a very good point, Mr. Sexton. 6 What I'm going to instruct the staff to do is to make your 7 recommendations for Mr. Stubchaer and then we can review 8 those recommendations with Mr. Stubchaer and myself and 9 Ms. Forster at the appropriate time and manner and we'll 10 try to get you an answer on that. Because it does make a 11 considerable difference in preparation, I understand what 12 you're saying. 13 Mr. Garner, did you have your hand up? 14 MR. GARNER: Just briefly. I want to echo 15 Mr. Robbins' concerns and Mr. Sexton's concerns on behalf 16 of the State Water Contractors. And I think we've laid 17 out a similar timeline to the San Joaquin River Group 18 Authority's timeline at the January workshop. That's all 19 I have to add at this time. Thanks. 20 C.O. BROWN: Thank you. Those questions help us and 21 we'll prepare an answer to address those issues. 22 Let's see, we have four people: Nomellini, 23 Suyeyasu, Campbell and Hasencamp. 24 How much time, Mr. Suyeyasu, do you need? 25 MR. SUYEYASU: It will go quick. CAPITOL REPORTERS (916) 923-5447 11946 1 C.O. BROWN: Okay. Mr. Hasencamp? 2 MR. CAMPBELL: Five minutes. 3 C.O. BROWN: Nomellini, Mr. Nomellini? 4 MR. NOMELLINI: 15 minutes, 20, or a half hour. 5 C.O. BROWN: All right. We'll do it 6 indiscriminately, then. 7 Mr. Hasencamp, you're up. 8 MR. TURNER: Mr. Brown, if I may interrupt for just 9 a second. 10 C.O. BROWN: Sure. 11 MR. TURNER: I have one procedural issue that I 12 would like some advice and assistance on. As you may 13 recall we had deferred the testimony of Department of Fish 14 and Wildlife Service Dr. Martin Kjelson in light of the 15 fact that there had been some new exhibits, or revised 16 exhibit, a new exhibit that had been introduced to update 17 the information that had been presented in the November 18 testimony exhibits. 19 As I should have expected, I was advised last 20 night that the two new exhibits were inappropriately 21 computed and prepared. And there were some mistakes that 22 were made in light of the use of inappropriate computer 23 programming, et cetera. In any event the revised -- the 24 supplemental, the correct exhibits have, in fact, been 25 prepared. CAPITOL REPORTERS (916) 923-5447 11947 1 And in lieu of deferring again Mr. Kjelson's 2 testimony, I was going to ask if we may go ahead and make 3 those correct exhibits available to all the parties by 4 fax. I can do this first thing tomorrow morning. And 5 that I think would still afford the parties sufficient 6 time to review them and analyze them prior to the hearing 7 on Tuesday. 8 I would just point out that they're not that 9 significantly different; however, there are some minor 10 variations that the parties should be aware of. It would 11 be those exhibits that Dr. Kjelson would be referring to 12 in his testimony in lieu of the earlier versions that were 13 erroneously prepared. 14 So I was wondering if that would be a procedure 15 that we could, in fact, adopt to try to keep things moving 16 on an appropriate schedule. 17 C.O. BROWN: Do you know if all parties are 18 available through the fax? 19 MR. TURNER: I understood that we do have -- 20 C.O. BROWN: They are. 21 MR. TURNER: We do either e-mail or fax addresses 22 where we would be able to get the information to them very 23 quickly. 24 MS. LEIDIGH: We do have e-mail and fax numbers for 25 I think virtually everybody; isn't that right? CAPITOL REPORTERS (916) 923-5447 11948 1 MS. WHITNEY: Yes. 2 C.O. BROWN: All right. Are there any objections 3 from anyone here? 4 MR. TURNER: I apologize about that. I recognize 5 today was the deadline by which we were to have everything 6 presented. I was very proud of myself getting it in a 7 couple days early and, obviously, it fell apart. So I 8 apologize to the other parties for that. 9 C.O. BROWN: I see no objections to that, 10 Mr. Turner. And it sounds like a reasonable request and 11 we'll go ahead and permit that. 12 MR. TURNER: Thank you. And we'll make 20 copies 13 available to your staff as well as the initial filings. 14 So you'll have the appropriate copies as well. And I 15 thank you very much. 16 C.O. BROWN: Thank you, Mr. Turner. 17 Okay. Mr. Hasencamp. 18 MS. LEIDIGH: Mr. Brown, just a footnote on that 19 last discussion with Mr. Turner. 20 C.O. BROWN: Yes. 21 MS. LEIDIGH: Nick Wilcox tells me that we could 22 also post the new exhibits on our Internet site to make 23 them available to everybody that way as well. 24 C.O. BROWN: All right. 25 MS. LEIDIGH: At least to those that have computers CAPITOL REPORTERS (916) 923-5447 11949 1 that have access to the Internet. 2 C.O. BROWN: We will be e-mailing and then we will 3 be faxing -- 4 MS. LEIDIGH: We have fax numbers for everybody and 5 we have e-mail for most people and we'll also post it on 6 the Internet. 7 C.O. BROWN: That should cover it. 8 MS. WHITNEY: Mr. Brown, can I clarify that? 9 The Bureau is going to fax everybody. We will provide 10 them with the numbers and we will post the addresses -- or 11 we will post the information on our web site. 12 C.O. BROWN: All right, Vicky. Thank you. It's 13 clear. 14 Mr. Hasencamp, third try, but you're up. 15 ---oOo--- 16 RECROSS-EXAMINATION OF WESTLANDS WATER DISTRICT 17 SAN LUIS AND DELTA-MENDOTA WATER AUTHORITY 18 BY CONTRA COSTA WATER DISTRICT 19 BY BILL HASENCAMP 20 MR. HASENCAMP: Good afternoon. Bill Hasencamp with 21 Contra Costa Water District. 22 Mr. Ottemoeller, Mr. Birmingham asked you about 23 protection of fisheries and water quality in regards to 24 joint point of diversion. Do you agree that senior water 25 right holders also should be protected? CAPITOL REPORTERS (916) 923-5447 11950 1 MR. OTTEMOELLER: Yes, senior water right holders 2 should be able to exercise their rights. 3 MR. HASENCAMP: So you would not object to 4 conditions placed on use of joint point to protect the 5 supplies of other water right holders, then? 6 MR. OTTEMOELLER: I think that would, certainly, be 7 consistent with being able to comply with all the laws in 8 place, yes. 9 MR. HASENCAMP: Okay. Thank you. No further 10 questions. 11 C.O. BROWN: Thank you, Mr. Hasencamp. 12 Mr. Suyeyasu. 13 ---oOo--- 14 RECROSS-EXAMINATION OF WESTLANDS WATER DISTRICT 15 SAN LUIS AND DELTA-MENDOTA WATER AUTHORITY 16 BY ENVIRONMENTAL DEFENSE FUND 17 BY DAN SUYEYASU 18 MR. SUYEYASU: Hello, Mr. Brown. 19 I'm not quite sure who said this but I heard one 20 of you testify during Mr. Birmingham's redirect 21 examination as to whether or not you had a groundwater 22 management plan in place in the Westlands Water District? 23 MR. ORTH: He asked me that question, I answered 24 yes. 25 MR. SUYEYASU: Does that groundwater management plan CAPITOL REPORTERS (916) 923-5447 11951 1 limit withdrawals to the sustainable yield of the 2 groundwater basin? 3 MR. ORTH: I don't believe it does, no. 4 MR. SUYEYASU: And you also testified that you're 5 familiar with the Bay-Delta Accord; is that correct? 6 MR. ORTH: Yes, I am. 7 MR. SUYEYASU: And you stated that the 8 environment -- you were familiar with the fact that the 9 Environmental Defense Fund did sign the 1994 Bay-Delta 10 Accord; is that correct? 11 MR. ORTH: That's correct. 12 MR. SUYEYASU: Are you aware of when the 1994 13 Bay-Delta Accord expired? 14 MR. ORTH: The 1994 Bay-Delta Accord was a 15 three-year agreement that expired December 31st, 1997, and 16 then has been subsequently extended. 17 MR. SUYEYASU: In the subsequent extensions, are you 18 aware of whether or not the Environmental Defense Fund has 19 signed that agreement? 20 MR. ORTH: I'm not aware of that, no. 21 MR. SUYEYASU: Do you think it would be fair to 22 characterize the 1994 Bay-Delta Accord as a deal? 23 MR. ORTH: No. 24 MR. SUYEYASU: No further questions. 25 C.O. BROWN: Thank you, Mr. Suyeyasu. CAPITOL REPORTERS (916) 923-5447 11952 1 Mr. Campbell. 2 ---oOo--- 3 RECROSS-EXAMINATION OF WESTLANDS WATER DISTRICT 4 SAN LUIS AND DELTA-MENDOTA WATER AUTHORITY 5 BY CALIFORNIA DEPARTMENT OF FISH AND GAME 6 BY MATTHEW CAMPBELL 7 MR. CAMPBELL: Mr. Ottemoeller, do you currently 8 work -- or are you currently employed by the Westlands 9 Water District? 10 MR. OTTEMOELLER: No. 11 MR. CAMPBELL: Are you currently authorized by the 12 Westlands Water District to represent its current legal 13 and policy positions? 14 MR. BIRMINGHAM: I'm going to object. This goes 15 outside the scope of the redirect. 16 C.O. BROWN: I concur, Mr. Campbell. 17 MR. CAMPBELL: May I speak to that? 18 C.O. BROWN: Yes, sir. 19 MR. CAMPBELL: I was careful on my cross-examination 20 to ask a question of Mr. Orth about what Westlands Water 21 District thought about an operations -- the 22 implementation -- the creation of an operations plan 23 before the implementation of expanded joint point of 24 diversion. I specifically asked Mr. Orth, because he is, 25 as I understand, the representative of Westlands Water CAPITOL REPORTERS (916) 923-5447 11953 1 District. 2 On Mr. Birmingham's redirect examination he 3 attempted to clarify that position through questions to 4 Mr. Ottemoeller. And it's -- I think because he did that 5 on his redirect examination, it would be appropriate for 6 me to find out whether Mr. Ottemoeller's answer on that 7 redirect examination represents the actual position of the 8 Westlands Water District. 9 MR. BIRMINGHAM: My questions of Mr. Ottemoeller 10 were asked of him in his capacity as an expert witness. 11 Whether he's employed by Westlands doesn't affect his 12 expert opinion, at least, I expect that it wouldn't affect 13 his expert opinion. 14 Ultimately, based upon all the evidence that is 15 presented, I or the other designated legal representative 16 of Westlands Water District in these hearings will state 17 the position of Westlands. 18 And so if I rely on Mr. Ottemoeller's expert 19 opinion, and I undoubtedly will, but if I do, then I as 20 the legal representative will be adopting those expert 21 opinions in support of Westlands' position. 22 MR. CAMPBELL: I would suggest based on what 23 Mr. Birmingham just said that if Westlands is willing to 24 stipulate right now that the answers that Mr. Ottemoeller 25 provided in redirect examination are not the official CAPITOL REPORTERS (916) 923-5447 11954 1 positions of the Westlands Water District and that those 2 positions will be made known to us when Mr. Birmingham 3 would like them to be known to us, presumably through his 4 closing brief, I would find that acceptable. 5 MR. BIRMINGHAM: I think rather than me stipulating 6 to anything, an easy solution to this problem is the 7 general manager of the district, who is a designated 8 representative of the Board of Directors, is sitting next 9 to Mr. Ottemoeller, rather than asking Mr. Ottemoeller if 10 he's authorized to do anything or not do anything on 11 behalf of the District, Mr. Campbell could ask Mr. Orth if 12 he concurs as the District's representative with the 13 statements made by Mr. Ottemoeller. 14 MR. CAMPBELL: What we have here is conflicting 15 testimony between two witnesses. And I just wanted to 16 make it clear for the record -- it was only going to be 17 one or two questions -- that Mr. Orth is currently 18 employed by the District and he represents Westlands Water 19 District. 20 Mr. Ottemoeller may be providing his expert 21 opinion, he may be supplying some facts, some background 22 facts necessary for the Board's determination, but he does 23 not represent, nor bind, nor is he authorized to set forth 24 the position of the Westlands Water District. It's a 25 very, very simple proposition. CAPITOL REPORTERS (916) 923-5447 11955 1 C.O. BROWN: I'm persuaded by both arguments. Hold 2 on just a minute. Let's see if Barbara has some -- 3 (Off the record from 3:42 p.m. to 3:43 p.m.) 4 C.O. BROWN: I'm going to allow the question. And 5 may I also suggest that you might check with the proper 6 representative of Westlands to see if the answer is 7 consistent. 8 MR. CAMPBELL: I will be asking him some questions. 9 Just to finish with Mr. Ottemoeller: 10 You are no longer authorized to present the legal 11 and/or policy positions of the Westlands Water District; 12 is that correct, under the current scope of your 13 employment? 14 MR. OTTEMOELLER: That's not what I normally do 15 during my employment, that's correct. 16 MR. CAMPBELL: Mr. Orth, do you recall that on 17 cross-examination I asked you a question about the 18 reasonableness of an operating plan that would -- and at 19 least, I believe I included all of these factors -- an 20 operating plan for joint point of diversions that would 21 comply with all federal and state laws and regulations 22 such as state and federal Endangered Species Act, include 23 criteria for protection of fisheries and other operating 24 rules and measures with regard to water quality and water 25 supply reliability? CAPITOL REPORTERS (916) 923-5447 11956 1 MR. ORTH: Yes, I recall them, yes. 2 MR. CAMPBELL: And at that time you said that it 3 would be reasonable to have such a plan in place before 4 the expanded use of joint points was to be implemented. 5 Do you recall that? 6 MR. ORTH: Yes, I believe I answered it that way. 7 MR. CAMPBELL: On redirect examination your 8 attorney, Mr. Birmingham, sought to elaborate upon your -- 9 have you elaborate upon your answer. And I believe he 10 asked you whether you thought the CalFed Bay-Delta Program 11 was the appropriate forum in which to develop that plan; 12 is that correct? 13 MR. ORTH: He asked that question and I answered, 14 no, that's correct. 15 MR. CAMPBELL: And he further -- you further stated 16 in your testimony on redirect examination that you thought 17 the plan should be developed by the U.S. Bureau of 18 Reclamation and the Department of Water Resources in 19 consultation with U.S. Fish and Wildlife Service and the 20 Department of Fish and Game; is that correct? 21 MR. ORTH: That is correct. 22 MR. CAMPBELL: Are you aware that those four 23 agencies are part of CalFed Bay-Delta Program? 24 MR. ORTH: Yes, I am aware of that. 25 MR. CAMPBELL: Are you aware that the difference CAPITOL REPORTERS (916) 923-5447 11957 1 between what you have suggested and what the agencies' 2 joint proposal has requested is that in the CalFed 3 Bay-Delta Program instead of just limiting those 4 determinations to those four agencies, it also includes 5 input from various stakeholders which would include, as 6 you stated it previously in your testimony -- excuse me, 7 participating stakeholders which includes the Westlands 8 Water District? 9 MR. ORTH: Yes, I'm familiar with the participants 10 in the CalFed process, yes. 11 MR. CAMPBELL: Are you being offered as an expert 12 today, an expert witness? 13 MR. ORTH: Counsel says "yes." 14 MR. NOMELLINI: Just for the record, Mr. Birmingham 15 nodded his head affirmatively. 16 MR. CAMPBELL: But it's your understanding that 17 you're being offered as an expert witness in this 18 proceeding? 19 MR. ORTH: Yes. 20 MR. CAMPBELL: Are you being offered as an expert 21 witness in terms of the operational ramifications of joint 22 point of diversion? 23 MR. ORTH: No, I was not. 24 MR. CAMPBELL: Are you being offered as an expert 25 witness with regard to the biological ramifications of the CAPITOL REPORTERS (916) 923-5447 11958 1 use of joint points of diversion? 2 MR. ORTH: No, I am not. 3 MR. CAMPBELL: What is the subject area of your 4 expertise? 5 MR. ORTH: I was offered as an expert witness on the 6 economic impacts of loss of water supply in Westlands 7 Water District. 8 MR. CAMPBELL: I have no further questions. 9 C.O. BROWN: Thank you, Mr. Campbell, 10 Mr. Nomellini. You're the anchor man, 11 Mr. Nomellini. 12 ---oOo--- 13 RECROSS-EXAMINATION OF WESTLANDS WATER DISTRICT 14 SAN LUIS AND DELTA-MENDOTA WATER AUTHORITY 15 BY THE CENTRAL DELTA PARTIES 16 BY DANTE JOHN NOMELLINI 17 MR. NOMELLINI: That's too bad, but that's the way 18 it goes sometimes. Dante John Nomellini for the Central 19 Delta Parties. 20 Mr. Ottemoeller, on redirect I believe you 21 answered a question with regard to the Delta Accord impact 22 on State and Federal Water Project water supplies and that 23 you answered that the Accord reduced the water supplies by 24 1.1 million acre-feet per annum? 25 MR. OTTEMOELLER: Actually, that was Mr. Boardman CAPITOL REPORTERS (916) 923-5447 11959 1 and that's not exactly what he said. 2 MR. NOMELLINI: Boardman, okay. Is that accurate? 3 MR. BOARDMAN: Not very accurate. During the 4 critically dry year. 5 MR. NOMELLINI: Okay. Of the 1.1 million acre-feet 6 you indicated that 550,000 was the share of the San Luis 7 Delta-Mendota Canal Authority Group? 8 MR. BOARDMAN: That was based on the assumption of a 9 50/50 split of that impact. 10 MR. NOMELLINI: All right. And of the 550,000, was 11 any part of that burden allocated to the Westlands Water 12 District? 13 MR. BOARDMAN: Yes. 14 MR. NOMELLINI: And what part of 550,000 would be 15 allocated to the Westlands Water District? 16 MR. BOARDMAN: I can't say off the top of my head. 17 It would be -- well, we've got -- of that -- during that 18 time of year, or type of year there would probably be a 19 25-percent deficiency incurred to the Exchange 20 Contractors. So some of the impact is in there for 21 Exchange Contractors. If you were to take those folks out 22 of there, possible, ballpark, 65 percent of that. 23 MR. NOMELLINI: So 350,000 roughly would have been 24 the Westlands' share? 25 MR. BOARDMAN: For figure speaking, yeah, let's just CAPITOL REPORTERS (916) 923-5447 11960 1 use that. 2 MR. NOMELLINI: Okay. Mr. Orth, if you want -- you 3 show some interest in this response, it's your district? 4 MR. ORTH: I think -- 5 MR. NOMELLINI: Is that roughly correct? 6 MR. ORTH: Yes. 7 MR. NOMELLINI; do you want to do the calculation? 8 MR. ORTH: No, that's okay. Go ahead. 9 MR. NOMELLINI: All right. And the San Luis 10 Delta-Mendota Canal Authority you indicate was a signatory 11 to the Delta Accord? 12 MR. BOARDMAN: Yes. 13 MR. NOMELLINI: And they signed that agreement 14 voluntarily? 15 MR. BOARDMAN: I believe so. 16 MR. NOMELLINI: And they, therefore, agreed to give 17 up their share of this particular amount of water; is that 18 correct? 19 MR. BOARDMAN: Yes. 20 MR. NOMELLINI: All right. And Westlands was -- 21 Mr. Orth, was San Luis Delta-Mendota Canal Authority 22 authorized to act on your behalf? 23 MR. ORTH: Yes, they were. 24 MR. NOMELLINI: And that was with regard to the 25 Delta Accord? CAPITOL REPORTERS (916) 923-5447 11961 1 MR. ORTH: Yes, they were. 2 MR. NOMELLINI: And this reduction in water supply 3 was voluntarily given up? 4 MR. ORTH: "Voluntary" is a tough word. We agreed 5 to the terms and conditions of the Bay-Delta Accord, yes. 6 MR. NOMELLINI: All right. And that meant you gave 7 up some water -- 8 MR. ORTH: Yes. 9 MR. NOMELLINI: -- isn't that correct? 10 MR. ORTH: Yes. 11 MR. NOMELLINI: And it was roughly 350,000 acre-feet 12 out of the 1.1 million, which was the yield for a 13 recurrence of a seven-year drought? 14 MR. BOARDMAN: Could you state that question, again? 15 MR. NOMELLINI: You indicated the 1.1 million was 16 not an annual deficiency, but was a deficiency I thought 17 you said over the reoccurrence of the dry cycle. 18 MR. BOARDMAN: Yes, it's during a critically dry 19 year. That year, theoretically, could have occurred 20 during the critically dry period that we talked about, '28 21 through '34. It could have been occurred in 1977, but it 22 was -- 23 MR. NOMELLINI: Okay. So it is an annual amount for 24 a critical year? 25 MR. BOARDMAN: Yes. CAPITOL REPORTERS (916) 923-5447 11962 1 MR. NOMELLINI: All right. Now, with regard to the 2 contractual entitlement of Westlands, would it not be 3 correct to reduce the 1,150,000 acre-feet by the amount 4 voluntarily given up in the Delta Accord? 5 MR. ORTH: No. My understanding is, again, the 6 numbers that you have thrown out are kind of maximum 7 impact, they're not average annual impacts. 8 MR. BOARDMAN: That's correct. 9 MR. ORTH: So you're comparing the long-term 10 contractual entitlement to a maximum annual impact. It 11 would be reasonable to state that the district's water 12 supply reliability has been affected by the Bay-Delta 13 Accord. And that the impacts of up to 350,000 acre-feet 14 are deducted from our annual entitlement. 15 MR. NOMELLINI: Okay. Let's put it this way: You 16 made a deal, the Delta Accord, right? You didn't like the 17 word "deal" -- 18 MR. ORTH: We entered into an agreement to try to 19 stabilize the operating conditions of the Delta. 20 MR. NOMELLINI: Okay. And in that agreement you 21 gave up some water; is that correct? 22 MR. ORTH: Yes. 23 MR. NOMELLINI: Of the 1,150,000 acre-feet of 24 contractual entitlement for Westlands, what amount, if 25 any, do you feel you agreed to give up in the Delta CAPITOL REPORTERS (916) 923-5447 11963 1 Accord? 2 MR. ORTH: We didn't agree to give up any water 3 supply. What we agreed to was to have our annual 4 contractual entitlement affected for an interim period of 5 time of up to 350,000 acre-feet in extremely dry 6 conditions while the -- and, again, in an attempt to 7 stabilize the water quality and operational conditions of 8 the Delta for a three-year period. 9 And during that three-year period other 10 provisions of the Accord provide that CalFed will develop 11 alternatives to addressing water quality, water supply and 12 ecosystem restoration in the Delta. 13 MR. NOMELLINI: Okay. And now the three years has 14 gone by? 15 MR. ORTH: Yes. 16 MR. NOMELLINI: And Westlands wants its full 17 entitlement; is that correct? 18 MR. ORTH: Westlands believes it still has a 19 contractual entitlement to 1.5 million acre-feet, that's 20 right. 21 MR. NOMELLINI: And as far as the Delta Accord term, 22 do you agree that with regard to Westlands its term has 23 expired? 24 MR. ORTH: No. We've been supportive of the 25 extensions that have taken place since the original CAPITOL REPORTERS (916) 923-5447 11964 1 expiration in 1997. 2 MR. NOMELLINI: Okay. Does that continue today? 3 MR. ORTH: Yes, it does. 4 MR. NOMELLINI: And how far into the future will it 5 continue? 6 MR. ORTH: I don't specifically recall when the last 7 extension -- what the terms of the last extension were. 8 It was either December -- I think it extends to the record 9 of decision for the CalFed process. I'm not certain of 10 that, but that's my understanding. 11 MR. NOMELLINI: Okay. So you would anticipate that 12 any gain that Westlands might get by way of a joint point 13 of diversion alternative would take effect after the Delta 14 Accord yielding of water terminates; is that a correct 15 statement? 16 MR. ORTH: No. 17 MR. NOMELLINI: Okay. So you want the water back 18 now? 19 MR. BIRMINGHAM: Objection. The question has been 20 asked and answered. Mr. Nomellini is trying to compare 21 apples and oranges. 22 MR. NOMELLINI: Storks and reproductive 23 capability -- 24 C.O. BROWN: Let's address the Chair, gentlemen. 25 MR. BIRMINGHAM: I'm going to take great pleasure, CAPITOL REPORTERS (916) 923-5447 11965 1 Mr. Brown, in knowing that I will go into my grave being 2 remembered for storks and the great human reproduction in 3 Western Europe. 4 I think Mr. Nomellini has asked this question. 5 It's been answered. He may not like the answer, but it's 6 been answered. 7 C.O. BROWN: Well, I'm pleased to see that the 8 relationship between you and Mr. Nomellini is continuing 9 to improve. 10 You may ask the question, Mr. Nomellini. 11 MR. NOMELLINI: All right. I didn't get a clear 12 response, I thought. 13 C.O. BROWN: You may ask again. 14 MR. NOMELLINI: And, perhaps, I asked the wrong 15 question. 16 But, Mr. Orth, could you explain how you 17 reconcile giving up roughly 350,000 in the Delta Accord 18 which is still in effect with your position of seeking 19 your full -- and I say Westlands' full entitlement today? 20 MR. ORTH: I believe the Bay-Delta Accord is very 21 specific in setting forth an exchange for our committing 22 water supply for an interim period of time, a process that 23 involved both the State Board process for water quality 24 and other provisions as well as the CalFed process to 25 solve long-term water supply/water quality and ecosystem CAPITOL REPORTERS (916) 923-5447 11966 1 restoration objectives for the Delta. 2 My reconciliation of the two is we made a down 3 payment -- or actually it wasn't a down payment, it was a 4 loan or advance of up to 350,000 acre-feet of our farmer's 5 water to try to stabilize the system while the State 6 attempted to solve -- to address these more complex 7 issues. 8 I would think from my personal view that once the 9 State Board establishes joint point criteria, that those 10 get incorporated into the solution and we move forward. 11 It wasn't -- the commitment that we made for water supply 12 recognized that these processes were going to take place 13 and as they were resolved we would see returns of the loan 14 or advance of water supply that we provided. 15 MR. NOMELLINI: Okay. One of you testified on 16 redirect with regard to reducing the amount of water in 17 storage as much as possible at the beginning of a dry -- a 18 series of dry years so that it would enhance the firm 19 yield. Maybe I didn't get that right, but who was it? 20 Was it you, Mr. Ottemoeller? 21 MR. BIRMINGHAM: I'm going to object to the question 22 on the grounds that it misstates the testimony. 23 MR. NOMELLINI: I'm just trying to figure out who it 24 was. 25 MR. BIRMINGHAM: It was Mr. Ottemoeller who CAPITOL REPORTERS (916) 923-5447 11967 1 addressed the subject of yield and how carryover storage 2 affects yield. But Mr. Nomellini has not in any way 3 accurately stated Mr. Ottemoeller's testimony. 4 C.O. BROWN: I think Mr. Suyeyasu asked the question 5 also, but -- 6 MR. NOMELLINI: Let me -- 7 C.O. BROWN: Try it again. 8 MR. NOMELLINI: -- try it from my notes. And if I'm 9 incorrect, feel free to set me straight. 10 I wrote down that it's better to empty the 11 reservoir as much as possible so in subsequent years it 12 could be refilled. And that was your response to 13 Mr. Birmingham's question with regard to operations with 14 regard to firm yield. 15 Now, am I correct that that was your response? 16 And I'm perfectly happy to take an explanation of your 17 position on that. 18 MR. BIRMINGHAM: If Mr. Nomellini knows what the 19 record says, he can get a copy of the transcript. The 20 Reporter would be happy to give him one, or sell it to 21 him, excuse me. And he can look at Mr. Ottemoeller's 22 answer. If he wants to ask Mr. Ottemoeller a question at 23 this point, that would be appropriate, but the record 24 speaks for itself. 25 C.O. BROWN: Okay. CAPITOL REPORTERS (916) 923-5447 11968 1 MR. NOMELLINI: First I asked the question if that 2 accurately represented his testimony and I think that's a 3 proper question. 4 C.O. BROWN: You can respond to that. 5 MR. NOMELLINI: I don't want to belabor this too 6 much, I mean we could wait for a transcript or read back, 7 but that would take a long time 8 C.O. BROWN: Answer the question. 9 MR. OTTEMOELLER: No, I don't think that quite 10 accurately represents -- I don't know that I said it was 11 better. I think I characterized the fact that you tend to 12 increase the yield by vacating more storage and taking -- 13 being able to take advantage of any future year rainfall 14 events as opposed to leaving water in storage just in 15 case. 16 MR. NOMELLINI: All right. Let's assume we were 17 going to start a reoccurrence of the seven-year dry cycle 18 and we have an opportunity to evacuate the water from 19 Shasta Dam. 20 C.O. BROWN: Mr. Nomellini, how much more time will 21 you need? 22 MR. NOMELLINI: I'm going to need maybe 15 minutes. 23 C.O. BROWN: All right, 15 minutes. We have the 24 exhibits, then we have staff. 25 MEMBER FORSTER: Is there any more people? CAPITOL REPORTERS (916) 923-5447 11969 1 C.O. BROWN: No. Mr. Nomellini is the last one. 2 Staff, do you have questions? 3 MS. LEIDIGH: No. Staff wouldn't have any 4 questions. 5 C.O. BROWN: I could go an extra 15 minutes and 6 conclude this? 7 MR. BIRMINGHAM: Yes, please. Otherwise it would 8 require that these three gentlemen travel back to 9 Sacramento next week for 15 minutes from Fresno. And I 10 think it would be better to finish. 11 C.O. BROWN: Okay. Mr. Nomellini, proceed. 12 MR. NOMELLINI: Do you remember my question? 13 MR. OTTEMOELLER: No, I don't. 14 MR. NOMELLINI: Let's assume that we're going to 15 start the seven-year dry cycle, recurrence of the 16 seven-year dry cycle, I think it was '28 through '34. And 17 we have the opportunity to evacuate all the water from 18 Shasta Reservoir. 19 Is it your opinion that evacuation of all that 20 water in that first year would increase the firm yield 21 over the seven-year dry cycle that I described? 22 MR. OTTEMOELLER: No. And I say that because we're 23 confusing an operating plan with a calculation of the 24 yield. When you calculate the yield you start your 25 seven-year dry period with a full reservoir. And you CAPITOL REPORTERS (916) 923-5447 11970 1 recalculate until you figure out how much water you can 2 contract for such that you allocate no less than 75 3 percent in all years and no more than 100 -- accumulative 4 total of a hundred-percent reduction during that period. 5 When you actually operate the reservoir, you make 6 judgments about how it should be operating. I was not 7 suggesting that you necessarily intentionally empty a 8 reservoir knowing that you're going into seven years of 9 drought, because you don't know that. 10 However, in 1991 it was our position and the 11 Bureau's position that all of the water that was in 12 storage, essentially to the point of draining those 13 reservoirs, was the appropriate way to operate the project 14 given the way it had been designed. 15 MR. NOMELLINI: Okay. So it depends on the 16 particular condition at the time whether or not a drawdown 17 from storage would increase yield or decrease yield over 18 the series of dry years that could reoccur? 19 MR. OTTEMOELLER: Well, again, you're not making 20 your year-to-year decisions with intent to increase or 21 decrease yield. Yield is a calculation. You make your 22 year-to-year decisions based on your best operating plan 23 that is consistent with your calculation of how much water 24 you could make available through contracts. 25 MR. NOMELLINI: All right. So, then, it's your CAPITOL REPORTERS (916) 923-5447 11971 1 testimony that the Central Valley Project is not intended 2 to produce a minimum amount of water for delivery at the 3 end of a reoccurrence of the 1928 through 1934 dry cycle? 4 MR. OTTEMOELLER: I think that's correct. I mean at 5 the end of your calculation of yield you should have empty 6 reservoirs basically. And that's the way you go through 7 the calculation. If you don't have empty reservoirs by a 8 little bit, you adjust to determine what your yield would 9 be. 10 MR. NOMELLINI: And you would agree that depleting a 11 reservoir in year one of that seven-year reoccurrence 12 would depend upon what the actual storage was in that 13 reservoir at that time? 14 MR. OTTEMOELLER: Yes. 15 MR. NOMELLINI: All right. In the year two, same 16 type of decision making, correct? 17 MR. OTTEMOELLER: Yes. 18 MR. NOMELLINI: All right. Let's go to Mr. Orth. 19 Do you know what the actual water deliveries to 20 area two amount to in terms of acre-feet per acre in a 21 year like last year? 22 MR. ORTH: Last year we had a hundred-percent 23 declared allocation on the CVP. I believe that the 24 deliveries to area two on an acre-foot per acre basis were 25 about 2.5 acre-feet per acre. CAPITOL REPORTERS (916) 923-5447 11972 1 MR. NOMELLINI: And you indicated -- is that 2 correct, 2.5? 3 MR. ORTH: Yes. 4 MR. NOMELLINI: You indicate in your testimony in 5 response to Mr. Birmingham's questions that area two was 6 entitled to 1.3 acre-feet per acre? 7 MR. ORTH: That's correct. 8 MR. NOMELLINI: How did it come about that they got 9 2.5? 10 MR. ORTH: There's a number of factors that affect 11 the area two water supply. I testified earlier to the 12 extent that area one does not apply for and use all of the 13 900,000 acre-feet that they're entitled to, it moves up to 14 area two. 15 We allow interdistrict transfers, which means if 16 a landowner has land in area one and he receives a portion 17 of the 900,000 acre-feet, he can transfer that to area two 18 for delivery on his area two lands. The District has 19 become quite proficient at accessing the annual spot 20 market for transfers from other districts. And, again, 21 because of the extraordinarily wet conditions last year 22 there was an abundance of transferable water supply and we 23 acquired in excess of 200,000 acre-feet to supplement our 24 CVP entitlement. 25 MR. NOMELLINI: And what was the average per acre CAPITOL REPORTERS (916) 923-5447 11973 1 delivery for area one last year? 2 MR. ORTH: I believe it was in the 2.5 to -- in the 3 2.4 to 2.5 acre-feet per acre range. 4 MR. NOMELLINI: All right. Is it ever less 5 expensive for a farmer in Westlands to use groundwater 6 rather than the CVP water supplied by the Westlands Water 7 District? 8 MR. ORTH: In certain conditions, predominantly on 9 the east side of the district because of the shallow depth 10 to usable groundwater, you can extract water supply, pump 11 groundwater cheaper than the cost of the CVP supply. 12 MR. NOMELLINI: Okay. 13 MR. ORTH: You encounter other issues when you do 14 that, because typically the groundwater quality is not as 15 good as the surface water, so you limit yourself to 16 cropping decisions, or you, in effect, have to deal with 17 that through additional expenses through your farm 18 operation. 19 MR. NOMELLINI: But on balance for some farmers in 20 some situations it is more economical for them to utilize 21 groundwater than the surface deliveries of CVP water from 22 the district? 23 MR. ORTH: That's correct. 24 MR. NOMELLINI: And that would be taking into 25 consideration all of these factors? CAPITOL REPORTERS (916) 923-5447 11974 1 MR. ORTH: Right. 2 MR. NOMELLINI: In terms of the sustainable yield of 3 the groundwater basin in Westlands, I believe it was 4 indicated that that was about 200,000 acre-feet per year; 5 is that correct? 6 MR. ORTH: 150 to 200,000 acre-feet is the number we 7 used. 8 MR. NOMELLINI: And does that take into 9 consideration the deterioration of water quality 10 associated with irrigation and the utilization of 11 groundwater in the district? 12 MR. ORTH: No. 13 MR. NOMELLINI: Do you -- is there a limitation on 14 how long extraction of 150 to 200,000 acre-feet per year 15 from the groundwater basin in Westlands could be sustained 16 in view of the water quality impacts, which I think have 17 come up in the testimony in various ways? 18 MR. ORTH: I don't believe -- I'm not familiar with 19 any data that puts any limits in time on our ability to 20 extract 150 to 200,000 acre-feet of sustainable 21 groundwater. 22 MR. NOMELLINI: Okay. Is the quality of the 23 groundwater beneath Westlands improving, deteriorating or 24 remaining the same? 25 MR. ORTH: I'm not capable of answering that. CAPITOL REPORTERS (916) 923-5447 11975 1 MR. NOMELLINI: Mr. Ottemoeller, do you remember 2 from your -- 3 MR. OTTEMOELLER: It varies in some places where the 4 overdraft is greater, it's probably deteriorating. But 5 for the most part to the extent they get the water from 6 the sub-corcoran it's staying about the same. 7 MR. NOMELLINI: With regard to the Groundwater 8 Management Plan adopted by Westlands Water District does 9 that management plan prohibit the extraction of 10 groundwater which results in subsidence? 11 MR. OTTEMOELLER: No, it does not. 12 C.O. BROWN: You're about 28 minutes into your 15 13 minutes, Mr. Nomellini. How much more time do you 14 anticipate? 15 MR. NOMELLINI: I need ten more minutes. 16 C.O. BROWN: Okay. 17 MR. NOMELLINI: Mr. Orth, would you agree that a 18 comparison of the gross value of farm production in 19 Westlands Water District is not a good measure of the 20 economic impact of the reduction of CVP water delivered to 21 the district? 22 MR. BIRMINGHAM: Objection. Goes beyond the scope 23 of the redirect. 24 C.O. BROWN: Ask the question again. 25 MR. NOMELLINI: Would you agree that a comparison of CAPITOL REPORTERS (916) 923-5447 11976 1 the gross value of farm production is not a good measure 2 of the economic impact of the reduction of CVP water 3 delivered to the district? 4 C.O. BROWN: Okay. Hold your answer. 5 MR. NOMELLINI: What's that? 6 C.O. BROWN: Hold your answer. I'm seeing if it's 7 in the redirect with my notes. 8 MR. NOMELLINI: Okay. I've got something to say on 9 that, too. 10 C.O. BROWN: Why don't you go ahead and say it. 11 MR. NOMELLINI: Well, Mr. Birmingham, if you 12 remember, started with an example that he would have to 13 pay his mortgage and car payments and all this and that if 14 he was no longer employed by his firm. And that was going 15 to the economic aspects of the loss of the CVP water to 16 Westlands. 17 C.O. BROWN: Mr. Birmingham. 18 MR. BIRMINGHAM: I'm shaking my head, no, because 19 that was going to the probative value of the questions 20 that Mr. Suyeyasu was asking about farmers making money if 21 water is taken away from them. It didn't relate to the 22 calculation of value and the propriety of using gross 23 values to determine economic losses resulting from reduced 24 water supply. 25 C.O. BROWN: Mr. Nomellini, I sustain the objection. CAPITOL REPORTERS (916) 923-5447 11977 1 I don't have it in my notes either. 2 MR. NOMELLINI: All right. Going to the economic 3 impact upon a farmer, or a lawyer, by reason of loss of 4 employment for gainful activity, would you agree, 5 Mr. Orth, that the measure of the gross value of farm 6 production in the Westlands Water District is not an 7 appropriate way to get at that question? 8 MR. ORTH: No, I won't agree with that. 9 MR. NOMELLINI: All right. Let's pursue that. 10 Let's take an individual farmer who's losing money each 11 year, because he's growing crops that don't produce enough 12 return to pay him back for all of his costs. If he was 13 not able to farm he would forego the loss; would he not? 14 MR. ORTH: He would forego the loss, who's going to 15 pick up his capital expenses? 16 MR. NOMELLINI: All right. You would agree he would 17 forego the loss associated with his operation; would you 18 not? 19 MR. ORTH: If he did not farm, that's correct. 20 MR. NOMELLINI: All right. And, then, the question 21 would be: Who would have to pick up his fixed debts for 22 land payments, equipment and those kind of things if he, 23 in fact, had those, right? 24 MR. ORTH: Right. 25 MR. NOMELLINI: If he didn't have those, he wouldn't CAPITOL REPORTERS (916) 923-5447 11978 1 have to worry about how he would pick those up, would he? 2 MR. ORTH: Yes. 3 MR. NOMELLINI: Okay. And he would have the 4 opportunity also of starting anew through a bankruptcy 5 proceeding; would he not? 6 MR. ORTH: I'm sure, yes. 7 MR. NOMELLINI: All right. So a good way to analyze 8 the impact of the loss of water on an individual farmer is 9 not to look at the gross value of farm production in the 10 Westlands Water District; do you agree to that? 11 MR. ORTH: On an individual farmer I would tend to 12 agree that the production value of that individual is not 13 an appropriate measurement of the impact on that 14 individual. 15 MR. NOMELLINI: Okay. Now, with regard to the same 16 individual, can you conceive of a situation where it would 17 be better for that individual, economically, to sell his 18 land for land retirement purposes than it would be to 19 continue agricultural production within Westlands Water 20 District? 21 MR. ORTH: Given the fact that that is occurring in 22 our district presently, I would say there is a level that 23 each individual reaches that they make that economic 24 decision. And it's not a flat level, or flat rate that we 25 can all look at. It's circumstantial, by each instance. CAPITOL REPORTERS (916) 923-5447 11979 1 MR. NOMELLINI: Okay. That's all I have. Thank you 2 very much. I'm sorry to hold you here beyond the time. 3 C.O. BROWN: That's quite all right, Mr. Nomellini. 4 Staff, do you have questions? 5 MS. LEIDIGH: No. 6 C.O. BROWN: Mary Jane, Ms. Forster? 7 MEMBER FORSTER: No. 8 C.O. BROWN: I have none. 9 Mr. Birmingham, do you have some exhibits? 10 MR. BIRMINGHAM: I do. Westlands Water District and 11 San Luis and Delta-Mendota Water Authority would move for 12 the admission of Westlands Water District Exhibits 7, 8-A 13 through 8-I, 9, 10, 11, 12, and 94 and San Luis and 14 Delta-Mendota Water Authority Exhibit 7. 15 C.O. BROWN: Is that it? 16 MR. BIRMINGHAM: Yes. 17 C.O. BROWN: Are there any objections to admitting 18 those exhibits into evidence? Seeing none, they are so 19 admitted. 20 Does that concur with you, staff? 21 MS. LEIDIGH: Yes. 22 C.O. BROWN: Okay. I guess we'll see you all on the 23 23rd. And thanks for staying an extra few minutes to 24 conclude this. 25 MR. BIRMINGHAM: We appreciate that, Mr. Brown. CAPITOL REPORTERS (916) 923-5447 11980 1 Thank you. 2 C.O. BROWN: Thank you. 3 (The proceedings concluded at 4:20 p.m.) 4 ---oOo--- 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 11981 1 REPORTER'S_CERTIFICATE __________ ___________ 2 3 STATE OF CALIFORNIA ) ) ss. 4 COUNTY OF SACRAMENTO ) 5 I, MARY R. GALLAGHER, certify that I was the 6 Official Court Reporter for the proceedings named herein, 7 and that as such reporter I reported in verbatim shorthand 8 writing those proceedings; that I thereafter caused my 9 shorthand writing to be reduced to typewriting, and the 10 pages numbered 11764 through 11981 herein constitute a 11 complete, true and correct record of the proceedings. 12 IN WITNESS WHEREOF, I have subscribed this 13 certificate at Sacramento, California, on this 26th day of 14 March, 1999. 15 16 ________________________________ MARY R. GALLAGHER, CSR #10749 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 11982