STATE WATER RESOURCES CONTROL BOARD PUBLIC HEARING 1998 BAY-DELTA WATER RIGHTS HEARING HELD AT: BONDERSON BUILDING 901 P STREET SACRAMENTO, CALIFORNIA TUESDAY, MARCH 23, 1999 9:00 A.M. Reported by: ESTHER F. WIATRE CSR NO. 1564 CAPITOL REPORTERS (916) 923-5447 1 APPEARANCES BOARD MEMBERS: 2 JAMES STUBCHAER, COHEARING OFFICER 3 JOHN W. BROWN, COHEARING OFFICER MARY JANE FORSTER 4 MARC DEL PIERO 5 STAFF MEMBERS: 6 WALTER PETTIT, EXECUTIVE DIRECTOR VICTORIA WHITNEY, CHIEF BAY-DELTA UNIT 7 THOMAS HOWARD, SUPERVISING ENGINEER 8 COUNSEL: 9 WILLIAM R. ATTWATER, CHIEF COUNSEL BARBARA LEIDIGH 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 PRINCETON CODORA GLENN IRRIGATION DISTRICT, et al.: 3 FROST, DRUP & ATLAS 134 West Sycamore Street 4 Willows, California 95988 BY: J. MARK ATLAS, ESQ. 5 JOINT WATER DISTRICTS: 6 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON: 7 P.O. BOX 1679 Oroville, California 95965 8 BY: WILLIAM H. BABER III, ESQ. 9 CALIFORNIA SPORTFISHING PROTECTION ALLIANCE: 10 ROBERT J. BAIOCCHI P.O. Box 357 11 Quincy, California 12 BELLA VISTA WATER DISTRICT: 13 BRUCE L. BELTON, ESQ. 2525 Park Marina Drive, Suite 102 14 Redding, California 96001 15 WESTLANDS WATER DISTRICT: 16 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Capitol Mall, 27th Floor 17 Sacramento, California 95814 BY: THOMAS W. BIRMINGHAM, ESQ. 18 and AMELIA MINABERRIGARAI, ESQ. 19 THE BAY INSTITUTE OF SAN FRANCISCO: 20 GARY BOBKER 21 55 Shaver Street, Suite 330 San Rafael, California 94901 22 CITY OF ANTIOCH, et al.: 23 FREDERICK BOLD, JR., ESQ. 24 1201 California Street, Suite 1303 San Francisco, California 94109 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 LEAGUE OF WOMEN VOTERS: 3 ROBERTA BORGONOVO 2480 Union Street 4 San Francisco, California 94123 5 UNITED STATES DEPARTMENT OF THE INTERIOR: 6 OFFICE OF THE SOLICITOR 2800 Cottage Way, Room E1712 7 Sacramento, California 95825 BY: ALF W. BRANDT, ESQ. 8 CALIFORNIA URBAN WATER AGENCIES: 9 BYRON M. BUCK 10 455 Capitol Mall, Suite 705 Sacramento, California 95814 11 RANCHO MURIETA COMMUNITY SERVICES DISTRICT: 12 MCDONOUGH, HOLLAND & ALLEN 13 555 Capitol Mall, 9th Floor Sacramento, California 95814 14 BY: VIRGINIA A. CAHILL, ESQ. 15 CALIFORNIA DEPARTMENT OF FISH AND GAME: 16 OFFICE OF ATTORNEY GENERAL 1300 I Street, Suite 1101 17 Sacramento, California 95814 BY: MATTHEW CAMPBELL, ESQ. 18 NATURAL RESOURCES DEFENSE COUNCIL: 19 HAMILTON CANDEE, ESQ. 20 71 Stevenson Street San Francisco, California 94105 21 ARVIN-EDISON WATER STORAGE DISTRICT, et al.: 22 DOOLEY HERR & WILLIAMS 23 3500 West Mineral King Avenue, Suite C Visalia, California 93291 24 BY: DANIEL M. DOOLEY, ESQ. 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 SACRAMENTO MUNICIPAL UTILITY DISTRICT: 3 LESLIE A. DUNSWORTH, ESQ. 6201 S Street 4 Sacramento, California 95817 5 SOUTH SAN JOAQUIN IRRIGATION DISTRICT, et al.: 6 BRAY, GEIGER, RUDQUIST & NUSS 311 East Main Street, 4th Floor 7 Stockton, California 95202 BY: STEVEN P. EMRICK, ESQ. 8 EAST BAY MUNICIPAL UTILITY DISTRICT: 9 EBMUD OFFICE OF GENERAL COUNSEL 10 375 Eleventh Street Oakland, California 94623 11 BY: FRED S. ETHERIDGE, ESQ. 12 GOLDEN GATE AUDUBON SOCIETY: 13 ARTHUR FEINSTEIN 2530 San Pablo Avenue, Suite G 14 Berkeley, California 94702 15 CONAWAY CONSERVANCY GROUP: 16 UREMOVIC & FELGER P.O. Box 5654 17 Fresno, California 93755 BY: WARREN P. FELGER, ESQ. 18 THOMES CREEK WATER ASSOCIATION: 19 THOMES CREEK WATERSHED ASSOCIATION 20 P.O. Box 2365 Flournoy, California 96029 21 BY: LOIS FLYNNE 22 COURT APPOINTED REPS OF WESTLANDS WD AREA 1, et al.: 23 LAW OFFICES OF SMILAND & KHACHIGIAN 601 West Fifth Street, Seventh Floor 24 Los Angeles, California 90075 BY: CHRISTOPHER G. FOSTER, ESQ. 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 CITY AND COUNTY OF SAN FRANCISCO: 3 OFFICE OF THE CITY ATTORNEY 1390 Market Street, Sixth Floor 4 San Francisco, California 94102 BY: DONN W. FURMAN, ESQ. 5 CAMP FAR WEST IRRIGATION DISTRICT, et al.: 6 DANIEL F. GALLERY, ESQ. 7 926 J Street, Suite 505 Sacramento, California 95814 8 BOSTON RANCH COMPANY, et al.: 9 J.B. BOSWELL COMPANY 10 101 West Walnut Street Pasadena, California 91103 11 BY: EDWARD G. GIERMANN 12 SAN JOAQUIN RIVER GROUP AUTHORITY, et al.: 13 GRIFFTH, MASUDA & GODWIN 517 East Olive Street 14 Turlock, California 95381 BY: ARTHUR F. GODWIN, ESQ. 15 NORTHERN CALIFORNIA WATER ASSOCIATION: 16 RICHARD GOLB 17 455 Capitol Mall, Suite 335 Sacramento, California 95814 18 PLACER COUNTY WATER AGENCY, et al.: 19 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 20 400 Capitol Mall, 27th Floor Sacramento, California 95814 21 BY: JANET GOLDSMITH, ESQ. 22 ENVIRONMENTAL DEFENSE FUND: 23 DANIEL SUYEYASU, ESQ. and 24 THOMAS J. GRAFF, ESQ. 5655 College Avenue, Suite 304 25 Oakland, California 94618 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 CALAVERAS COUNTY WATER DISTRICT: 3 SIMON GRANVILLE P.O. Box 846 4 San Andreas, California 95249 5 CHOWCHILLA WATER DISTRICT, et al.: 6 GREEN, GREEN & RIGBY P.O. Box 1019 7 Madera, California 93639 BY: DENSLOW GREEN, ESQ. 8 CALIFORNIA FARM BUREAU FEDERATION: 9 DAVID J. GUY, ESQ. 10 2300 River Plaza Drive Sacramento, California 95833 11 SANTA CLARA VALLEY WATER DISTRICT: 12 MORRISON & FORESTER 13 755 Page Mill Road Palo Alto, California 94303 14 BY: KEVIN T. HAROFF, ESQ. 15 CITY OF SHASTA LAKE: 16 ALAN N. HARVEY P.O. Box 777 17 Shasta Lake, California 96019 18 COUNTY OF STANISLAUS: 19 MICHAEL G. HEATON, ESQ. 926 J Street 20 Sacramento, California 95814 21 GORRILL LAND COMPANY: 22 GORRILL LAND COMPANY P.O. Box 427 23 Durham, California 95938 BY: DON HEFFREN 24 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 SOUTH DELTA WATER AGENCY: 3 JOHN HERRICK, ESQ. 3031 West March Lane, Suite 332 East 4 Stockton, California 95267 5 COUNTY OF GLENN: 6 NORMAN Y. HERRING 525 West Sycamore Street 7 Willows, California 95988 8 REGIONAL COUNCIL OF RURAL COUNTIES: 9 MICHAEL B. JACKSON, ESQ. 1020 Twelfth Street, Suite 400 10 Sacramento, California 95814 11 DEER CREEK WATERSHED CONSERVANCY: 12 JULIE KELLY P.O. Box 307 13 Vina, California 96092 14 DELTA TRIBUTARY AGENCIES COMMITTEE: 15 MODESTO IRRIGATION DISTRICT P.O. Box 4060 16 Modesto, California 95352 BY: BILL KETSCHER 17 SAVE THE SAN FRANCISCO BAY ASSOCIATION: 18 SAVE THE BAY 19 1736 Franklin Street Oakland, California 94612 20 BY: CYNTHIA L. KOEHLER, ESQ. 21 BATTLE CREEK WATERSHED LANDOWNERS: 22 BATTLE CREEK WATERSHED CONSERVANCY P.O. Box 606 23 Manton, California 96059 24 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 BUTTE SINK WATERFOWL ASSOCIATION, et al.: 3 MARTHA H. LENNIHAN, ESQ. 455 Capitol Mall, Suite 300 4 Sacramento, California 95814 5 CITY OF YUBA CITY: 6 WILLIAM P. LEWIS 1201 Civic Center Drive 7 Yuba City 95993 8 BROWNS VALLEY IRRIGATION DISTRICT, et al.: 9 BARTKEWICZ, KRONICK & SHANAHAN 1011 22nd Street, Suite 100 10 Sacramento, California 95816 BY: ALAN B. LILLY, ESQ. 11 CONTRA COSTA WATER DISTRICT: 12 BOLD, POLISNER, MADDOW, NELSON & JUDSON 13 500 Ygnacio Valley Road, Suite 325 Walnut Creek, California 94596 14 BY: ROBERT B. MADDOW, ESQ. 15 GRASSLAND WATER DISTRICT: 16 DON MARCIOCHI 22759 South Mercey Springs Road 17 Los Banos, California 93635 18 SAN LUIS CANAL COMPANY: 19 FLANNIGAN, MASON, ROBBINS & GNASS 3351 North M Street, Suite 100 20 Merced, California 95344 BY: MICHAEL L. MASON, ESQ. 21 STONY CREEK BUSINESS AND LAND OWNERS COALITION: 22 R.W. MCCOMAS 23 4150 County Road K Orland, California 95963 24 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 TRI-DAM POWER AUTHORITY: 3 TUOLUMNE UTILITIES DISTRICT P.O. Box 3728 4 Sonora, California 95730 BY: TIM MCCULLOUGH 5 DELANO-EARLIMART IRRIGATION DISTRICT, et al.: 6 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 7 P.O. Box 1679 Oroville, California 95965 8 BY: JEFFREY A. MEITH, ESQ. 9 HUMANE FARMING ASSOCIATION: 10 BRADLEY S. MILLER 1550 California Street, Suite 6 11 San Francisco, California 94109 12 CORDUA IRRIGATION DISTRICT, et al.: 13 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 14 Oroville, California 95965 BY: PAUL R. MINASIAN, ESQ. 15 EL DORADO COUNTY WATER AGENCY: 16 DE CUIR & SOMACH 17 400 Capitol Mall, Suite 1900 Sacramento, California 95814 18 BY: DONALD B. MOONEY, ESQ. 19 GLENN COUNTY FARM BUREAU: 20 STEVE MORA 501 Walker Street 21 Orland, California 95963 22 MODESTO IRRIGATION DISTRICT: 23 JOEL MOSKOWITZ P.O. Box 4060 24 Modesto, California 95352 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 PACIFIC GAS & ELECTRIC: 3 RICHARD H. MOSS, ESQ. P.O. Box 7442 4 San Francisco, California 94120 5 CENTRAL DELTA WATER AGENCY, et al.: 6 NOMELLINI, GRILLI & MCDANIEL P.O. Box 1461 7 Stockton, California 95201 BY: DANTE JOHN NOMELLINI, ESQ. 8 and DANTE JOHN NOMELLINI, JR., ESQ. 9 TULARE LAKE BASIN WATER STORAGE UNIT: 10 MICHAEL NORDSTROM 11 1100 Whitney Avenue Corcoran, California 93212 12 AKIN RANCH, et al.: 13 DOWNEY, BRAND, SEYMOUR & ROHWER 14 555 Capitol Mall, 10th Floor Sacramento, California 95814 15 BY: KEVIN M. O'BRIEN, ESQ. 16 OAKDALE IRRIGATION DISTRICT: 17 O'LAUGHLIN & PARIS 870 Manzanita Court, Suite B 18 Chico, California 95926 BY: TIM O'LAUGHLIN, ESQ. 19 SIERRA CLUB: 20 JENNA OLSEN 21 85 Second Street, 2nd Floor San Francisco, California 94105 22 YOLO COUNTY BOARD OF SUPERVISORS: 23 LYNNEL POLLOCK 24 625 Court Street Woodland, California 95695 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 PATRICK PORGANS AND ASSOCIATES: 3 PATRICK PORGANS P.O. Box 60940 4 Sacramento, California 95860 5 BROADVIEW WATER DISTRICT, et al.: 6 DIANE RATHMANN 7 FRIENDS OF THE RIVER: 8 BETSY REIFSNIDER 128 J Street, 2nd Floor 9 Sacramento, California 95814 10 MERCED IRRIGATION DISTRICT: 11 FLANAGAN, MASON, ROBBINS & GNASS P.O. Box 2067 12 Merced, California 95344 BY: KENNETH M. ROBBINS, ESQ. 13 CENTRAL SAN JOAQUIN WATER CONSERVATION DISTRICT: 14 REID W. ROBERTS, ESQ. 15 311 East Main Street, Suite 202 Stockton, California 95202 16 METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA: 17 JAMES F. ROBERTS 18 P.O. Box 54153 Los Angeles, California 90054 19 SACRAMENTO AREA WATER FORUM: 20 CITY OF SACRAMENTO 21 980 9th Street, 10th Floor Sacramento, California 95814 22 BY: JOSEPH ROBINSON, ESQ. 23 24 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 TUOLUMNE RIVER PRESERVATION TRUST: 3 NATURAL HERITAGE INSTITUTE 114 Sansome Street, Suite 1200 4 San Francisco, California 94194 BY: RICHARD ROOS-COLLINS, ESQ. 5 CALIFORNIA DEPARTMENT OF WATER RESOURCES: 6 DAVID SANDINO, ESQ. 7 CATHY CROTHERS, ESQ. P.O. Box 942836 8 Sacramento, California 94236 9 FRIANT WATER USERS AUTHORITY: 10 GARY W. SAWYERS, ESQ. 575 East Alluvial, Suite 101 11 Fresno, California 93720 12 KERN COUNTY WATER AGENCY: 13 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Capitol Mall, 27th Floor 14 Sacramento, California 95814 BY: CLIFFORD W. SCHULZ, ESQ. 15 SAN JOAQUIN RIVER EXCHANGE CONTRACTORS: 16 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON: 17 P.O. Box 1679 Oroville, California 95965 18 BY: MICHAEL V. SEXTON, ESQ. 19 SAN JOAQUIN COUNTY: 20 NEUMILLER & BEARDSLEE P.O. Box 20 21 Stockton, California 95203 BY: THOMAS J. SHEPHARD, SR., ESQ. 22 CITY OF STOCKTON: 23 DE CUIR & SOMACH 24 400 Capitol Mall, Suite 1900 Sacramento, California 95814 25 BY: PAUL S. SIMMONS, ESQ. CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 ORLAND UNIT WATER USERS' ASSOCIATION: 3 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 4 Oroville, California 95965 BY: M. ANTHONY SOARES, ESQ. 5 GLENN-COLUSA IRRIGATION DISTRICT: 6 DE CUIR & SOMACH 7 400 Capitol Mall, Suite 1900 Sacramento, California 95814 8 BY: STUART L. SOMACH, ESQ. 9 NORTH SAN JOAQUIN WATER CONSERVATION DISTRICT: 10 JAMES F. SORENSEN CONSULTING CIVIL ENGINEER, INC. 209 South Locust Street 11 Visalia, California 93279 BY: JAMES F. SORENSEN 12 PARADISE IRRIGATION DISTRICT: 13 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 14 P.O. Box 1679 Oroville, California 95695 15 BY: WILLIAM H. SPRUANCE, ESQ. 16 COUNTY OF COLUSA: 17 DONALD F. STANTON, ESQ. 1213 Market Street 18 Colusa, California 95932 19 COUNTY OF TRINITY: 20 COUNTY OF TRINITY - NATURAL RESOURCES P.O. Box 156 21 Hayfork, California 96041 BY: TOM STOKELY 22 CITY OF REDDING: 23 JEFFERY J. SWANSON, ESQ. 24 2515 Park Marina Drive, Suite 102 Redding, California 96001 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 TULARE IRRIGATION DISTRICT: 3 TEHAMA COUNTY RESOURCE CONSERVATION DISTRICT 2 Sutter Street, Suite D 4 Red Bluff, California 96080 BY: ERNEST E. WHITE 5 STATE WATER CONTRACTORS: 6 BEST BEST & KREIGER 7 P.O. Box 1028 Riverside, California 92502 8 BY: ERIC GARNER, ESQ. 9 COUNTY OF TEHAMA, et al.: 10 COUNTY OF TEHAMA BOARD OF SUPERVISORS: P.O. Box 250 11 Red Bluff, California 96080 BY: CHARLES H. WILLARD 12 MOUNTAIN COUNTIES WATER RESOURCES ASSOCIATION: 13 CHRISTOPHER D. WILLIAMS 14 P.O. Box 667 San Andreas, California 95249 15 JACKSON VALLEY IRRIGATION DISTRICT: 16 HENRY WILLY 17 6755 Lake Amador Drive Ione, California 95640 18 SOLANO COUNTY WATER AGENCY, et al.: 19 HERUM, CRABTREE, DYER, ZOLEZZI & TERPSTRA 20 2291 West March Lane, S.B.100 Stockton, California 95207 21 BY: JEANNE M. ZOLEZZI, ESQ. 22 ---oOo--- 23 24 25 CAPITOL REPORTERS (916) 923-5447 1 INDEX PAGE 2 RESUMPTION OF HEARING: 11999 3 AFTERNOON SESSION: 12088 4 DEPARTMENT OF THE INTERIOR AND DEPARTMENT OF FISH AND GAME: 5 MARTIN KJELSON: CONTINUED DIRECT EXAMINATION: 6 BY MR. TURNER 12003 MARTIN KJELSON 7 JAMES WHITE CROSS-EXAMINATION: 8 BY MR. BIRMINGHAM 12008 BY MR. NOMELLINI 12068 9 BY MR. MADDOW 12108 BY MR. ETHERIDGE 12116 10 BY MR. GARNER 12122 BY MR. HERRICK 12130 11 BY BOARD MEMBERS 12155 REDIRECT EXAMINATION: 12 BY MR. TURNER 12159 13 14 ---oOo--- 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 1 SACRAMENTO, CALIFORNIA 2 MARCH 23, 1999 3 ---oOo--- 4 C.O. STUBCHAER: Call the Bay-Delta hearing to order. 5 Mr. Campbell, I see you up there. 6 MR. CAMPBELL: Yes, Mr. Chairman, I have a brief 7 housekeeping matter regarding Phase VII, if I may. 8 C.O. STUBCHAER: Yes. 9 MR. CAMPBELL: The Department of Fish and Game 10 submitted its exhibits back on July 20th for Phase VII. 11 Obviously, over eight months have passed and changes have 12 occurred during that time. The Department only submitted 13 three exhibits for Phase VII: written testimony of Dr. 14 Jeffrey Single, his statement of qualifications and the U.S. 15 Fish and Wildlife Service Draft Recovery Plan for Upland 16 Species of San Joaquin Valley, California. 17 I would like -- what I have done this morning is 18 provide Board staff with 20 copies of a list of some very 19 minor updates and corrections to Dr. Single's testimony; and 20 it is primarily to reflect some changes in law that have 21 occurred over the last eight months and then some other 22 corrections and to reflect that the draft recovery plan has 23 now become final. 24 So, we are also present presenting a revised Exhibit 25 31, the Final Recovery Plan for Upland Species at this time, CAPITOL REPORTERS (916) 923-5447 11999 1 as well. In terms of the parties, we are going to make the 2 letter with the minor changes to the testimony available to 3 all the parties here today. I have about a hundred copies. 4 They went into the mail last night, service by mail to the 5 copies. 6 With regard to revised DFG 31, U.S. Fish and Wildlife 7 Service Final Recovery Plan for Upland Species, that was 8 also made to the parties last night. Because it is quite 9 large, I did not seek to bring additional copies and make 10 them available here today. 11 C.O. STUBCHAER: So perhaps to give the parties time to 12 digest the revised materials, we ought to move Fish and Game 13 to the end of the direct. 14 MR. CAMPBELL: If that would please the Chair and 15 parties, we would have no problem with that. 16 C.O. STUBCHAER: If we do that, are there any 17 objections? 18 Mr. Birmingham. 19 MR. BIRMINGHAM: We have been carefully trying to 20 arrange the availability of witnesses based on certain 21 assumptions. This would dramatically change the 22 assumptions. So, if the Board will continue to grant the 23 kind of latitude it has in the presentation of witnesses in 24 Phase VII that it has in other phases, I don't think we 25 would have an objection. But we would request that the CAPITOL REPORTERS (916) 923-5447 12000 1 Board continue to provide us with that latitude. 2 MR. CAMPBELL: One note to that, I am not sure there is 3 much to digest in terms of these revisions. The revisions 4 to the testimony are minor, in my estimation are fairly 5 non-substantive. In terms of the recovery plan, we did 6 submit the draft back in July. And it's my understanding 7 from talking to others that the final does not -- is not 8 dramatically different from the draft. 9 C.O. STUBCHAER: Mr. Birmingham and everyone, would 10 you rather have Fish and Game go in its regular order, which 11 is number two in this phase and without having, perhaps, 12 much time to review the revised testimony? Anyone? 13 MR. BIRMINGHAM: That would be our preference. 14 C.O. STUBCHAER: Anyone else? 15 That would be fine, then. 16 MR. CAMPBELL: Copies for the parties are available on 17 this table to my right. 18 C.O. STUBCHAER: We'll stick with the order as 19 noticed. 20 MR. CAMPBELL: Thank you. 21 There was one other party THAT had another housekeeping 22 matter that they would like to address. 23 C.O. STUBCHAER: Mr. Herrick, good morning. 24 MR. HERRICK: Thank you, Mr. Chairman. John Herrick 25 for the South Delta Water Agency. CAPITOL REPORTERS (916) 923-5447 12001 1 In an effort to expedite our schedule, Mr. Hildebrand 2 is here for our rebuttal testimony. However, CalFed OPS 3 meets this afternoon. CalFed BDAC meets Thursday and 4 Friday; it is an away meeting, so he has to travel. So if 5 possible, Mr. Hildebrand is here for rebuttal testimony 6 this morning. If not, I hope we can work with the Board to 7 find a convenient time for him. 8 C.O. STUBCHAER: I think we should conclude the direct 9 before we go to rebuttal. I don't know how long the 10 cross-examination will take. We may or may not make it this 11 morning. 12 MR. HERRICK: I just wanted to give you a warning. 13 Thank you very much. 14 C.O. STUBCHAER: The next will be the revised testimony 15 of Mr. Kjelson, I believe. 16 Morning, Mr. Turner. 17 MR. TURNER: Good morning, Mr. Stubchaer, Mr. Brown. 18 We will be presenting the direct testimony of Dr. Kjelson. 19 And then, as I recall, we are then going to have Mr. White 20 from the Department of Fish and Game join Mr. Kjelson for 21 cross-examination. But it was my recollection that the 22 cross-examination was to be limited to the scope of Mr. 23 Kjelson's testimony; is that correct? 24 C.O. STUBCHAER: That is my recollection. 25 MR. TURNER: Since we do not have the whole panel here. CAPITOL REPORTERS (916) 923-5447 12002 1 C.O. STUBCHAER: That is correct. 2 ---oOo--- 3 CONTINUED DIRECT EXAMINATION OF DEPARTMENT OF THE INTERIOR 4 BY MR. TURNER 5 MR. TURNER: I would go ahead, then, and call Mr. 6 Kjelson. 7 Mr. Kjelson, could you please state your full name for 8 the record. 9 DR. KJELSON: Martin A. Kjelson. 10 MR. TURNER: By whom are you employed? 11 DR. KJELSON: By U.S. Fish and Wildlife Service. 12 MR. TURNER: What is your position with the Fish and 13 Wildlife Service? 14 DR. KJELSON: Project leader in our Stockton office. 15 MR. TURNER: Did you prepare Department of the Interior 16 Exhibit 12, which was written testimony for presentation in 17 this phase of the Bay-Delta proceedings? 18 DR. KJELSON: Yes, I did. 19 MR. TURNER: Is Exhibit 12 an accurate copy of that 20 particular written testimony? 21 DR. KJELSON: Yes. Including the revisions that you 22 referred to. 23 MR. TURNER: Now, in addition, did you prepare or have 24 prepared government Exhibit 12-A, the replacement version, 25 that was submitted to the Board and parties last week, March CAPITOL REPORTERS (916) 923-5447 12003 1 18? 2 DR. KJELSON: Yes. 3 MR. TURNER: Is that also true of Department of the 4 Interior's Exhibit 12-AA, again, the replacement version 5 that was submitted to the Board and parties last week? 6 DR. KJELSON: Yes. 7 MR. TURNER: Finally, in connection with Exhibit 12, 8 the written testimony, you are familiar, I presume, with the 9 statement that was included in the transmittal letter that I 10 had sent to the Board last week when we transmitted 11 replacement Exhibits 12-A and AA with respect to a 12 modification to one of the figures in the supplemental 13 testimony that we had previously provided; is that correct? 14 MR. KJELSON: Yes. 15 MR. TURNER: To make it clear for the record, then, 16 your written testimony at this point consists of Exhibit 12, 17 a supplement to Exhibit 12 that was presented to the Board 18 on or about March 15th, and the one modification to that 19 supplemental testimony that was sent to the Board on March 20 18th. And in light of that information I would like you now 21 to please summarize your written testimony, if you would do 22 so. 23 DR. KJELSON: Thank you. 24 Thank you, Mr. Chairman, Members of the Board. My 25 summary testimony will, one, focus on the possible risk of CAPITOL REPORTERS (916) 923-5447 12004 1 joint point of diversion to juvenile salmon in the Delta 2 during the fall and winter. And, two, I will emphasize our 3 commitment to work with CalFed to implement a joint point of 4 diversion plan in the most fish protective manner possible. 5 In relationship to the fish under joint point of 6 diversion, I focused on the November-January period; and 7 juveniles of all runs of salmon are present in the Delta, 8 particularly yearling spring-run. 9 Recent trends in our coded wire tagged salmon data 10 suggest that as Delta exports increase, as will occur under 11 joint point of diversion, salmon survival in the Central 12 Delta decreases. Data collected this past December 1998 has 13 further strengthened that trend, and we now have a 14 significant relationship at the P less than .10 between the 15 survival of coded wire tagged late fall smolts released in 16 the Central Delta and total exports during migration through 17 the Delta. The actual calculated P value is .06. 18 The data set and regression -- 19 MR. BIRMINGHAM: May I ask the reporter to mark that? 20 C.O. STUBCHAER: Yes. 21 MR. BIRMINGHAM: I also believe Dr. Kjelson is again 22 going beyond his written testimony. 23 DR. KJELSON: That's correct. I'll withdraw that last 24 sentence. 25 MR. BIRMINGHAM: He can leave it in, but I would CAPITOL REPORTERS (916) 923-5447 12005 1 request the Board instruct Dr. Kjelson merely to summarize 2 what is in his written testimony. 3 C.O. STUBCHAER: That is our standard instructions. 4 DR. KJELSON: I apologize. 5 The data set and regression is provided in revised 6 Department of the Interior Exhibit 12-A and Department 7 12-AA. While this finding suggests that more exports are 8 harm to those Sacramento River salmon that are diverted into 9 the Central Delta, we are not clear what the harm of export 10 may be to juvenile salmon remaining in the Sacramento River 11 portion of the Delta. 12 We believe young salmon remaining in the Sacramento 13 River represent most of the adult salmon production when the 14 Delta cross channel is closed. Given the low levels of 15 native salmon stocks in the Sacramento Basin that pass 16 through the Delta during the fall and winter, we believe 17 strong production is needed to prevent further decline and 18 restore these salmon stock. 19 To this end Interior's committed to working with CalFed 20 agencies to develop a joint point of diversion 21 implementation plan that achieve a net benefit to fishery 22 sources. Information of the type I just discussed and that 23 in Mr. White's testimony would be considered in developing a 24 joint point of diversion proposal described by Mr. Thabault 25 in his testimony a week or two ago. CAPITOL REPORTERS (916) 923-5447 12006 1 As covered by Mr. Renning's written testimony, U.S. 2 Fish and Wildlife is particularly supportive of a joint 3 point of diversion export pumping being spread throughout a 4 wide time period, rather than concentrated in the 5 November-January period when the Bay-Delta Plan allows up to 6 65 percent export over inflow ratio, which usually reflects 7 high export levels. And finally, the Service believes the 8 Board must use its triennial review process to the fullest 9 extent possible to assure that new data is applied to final 10 water quality and water rights decision and, specifically, 11 to assure that the 1995 Bay-Delta Plan narrative salmon 12 objective is achieved. 13 Thank you. This concludes my summary testimony. 14 C.O. STUBCHAER: Thank you, Mr. Kjelson. 15 Who wishes to cross-examine? 16 Mr. Godwin, Mr. Birmingham, Mr. Garner, Mr. Nomellini, 17 Mr. Herrick, Mr. Maddow, and I have a mental block. 18 MR. ETHERIDGE: Etheridge. 19 C.O. STUBCHAER: Mr. Etheridge. 20 Mr. Aladjem, did you want to cross-examine, or do you 21 have something else? 22 MR. ALADJEM: I just want to reserve our right to 23 cross-examine Dr. Kjelson in Phase VIII. We have a number 24 of questions that would relate to Phase VIII. I want to 25 make sure on the record that we have reserved that right to CAPITOL REPORTERS (916) 923-5447 12007 1 call him as an adverse witness if he is not called by the 2 Department of the Interior. 3 C.O. STUBCHAER: All right. So noted. 4 Mr. Birmingham. 5 MR. BIRMINGHAM: Mr. Chairman, I have to be at a 6 meeting this afternoon in Marysville. I wonder if I might 7 be -- 8 C.O. STUBCHAER: Want to go first? 9 Anyone object to Mr. Birmingham going first? 10 All right, Mr. Birmingham. You will go first. We 11 will determine an order of the rest here in a minute. You 12 will be first. 13 Why don't you begin and then we will announce the 14 others after you conclude your cross-examination. 15 ---oOo--- 16 CROSS-EXAMINATION OF DEPARTMENT OF THE INTERIOR AND 17 DEPARTMENT OF FISH AND GAME 18 BY WESTLANDS WATER DISTRICT AND 19 SAN LUIS AND DELTA-MENDOTA WATER AUTHORITY 20 BY MR. BIRMINGHAM 21 MR. BIRMINGHAM: Good morning, Dr. Kjelson. 22 DR. KJELSON: Morning. 23 MR. BIRMINGHAM: My name is Tom Birmingham. I am an 24 attorney that represents Westlands Water District and the 25 San Luis and Delta-Mendota Water Authority. CAPITOL REPORTERS (916) 923-5447 12008 1 And, Mr. White, I believe I introduced myself to you 2 the last time you were here. 3 Before I begin my cross-examination, at a point during 4 Dr. Kjelson's oral summary I asked the reporter to mark a 5 particular section of his testimony. I wonder if I could 6 ask the reporter to go back and read that. 7 C.O. STUBCHAER: Yes. 8 (Record read as requested.) 9 C.O. BROWN: Mr. Birmingham, while you are looking for 10 the papers I will announce the order of remaining 11 cross-examiners: Mr. Birmingham will be followed by Mr. 12 Nomellini, Mr. Maddow, Mr. Etheridge, Mr. Godwin, Mr. 13 Garner, Mr. Herrick. 14 MR. BIRMINGHAM: Dr. Kjelson, I take it that, based 15 upon recently collected coded wire tagged studies data, you 16 have determined that there is a statistically significant 17 relationship between export rates and salmon smolt survival? 18 DR. KJELSON: Yes. 19 MR. BIRMINGHAM: And the recently collected data on 20 which you based this analysis were data collected in 21 December 1998 as part of the experiment described as Delta 22 Action 8 in the Final Administrative Proposal on Management 23 of Section 3406 (b)(2) Water? 24 DR. KJELSON: Yes, that's correct. 25 MR. BIRMINGHAM: You submitted a copy of the Final CAPITOL REPORTERS (916) 923-5447 12009 1 Administrative Proposal on Management of Section 3406 (b)(2) 2 Water in connection with your testimony; is that correct? 3 DR. KJELSON: Yes, I did. 4 MR. BIRMINGHAM: That was marked for identification as 5 Department of the Interior Exhibit 12-C? 6 DR. KJELSON: That is correct. 7 MR. BIRMINGHAM: Prior to the collection of data in 8 December 1998, you were uncertain if there was a 9 relationship between exports from the Delta and some salmon 10 smolt; is that correct? 11 DR. KJELSON: That is correct. There was a trend that 12 moved in that direction. 13 MR. BIRMINGHAM: But you were uncertain if the trend 14 was statistically significant? 15 DR. KJELSON: That's true. 16 MR. BIRMINGHAM: Prior to the collection of data in 17 December 1998, you would agree with the statement in Mr. 18 White's testimony that, "We do not have a comprehensive 19 understanding of what factors have the greatest influence on 20 salmon smolt survival in the Delta"? 21 DR. KJELSON: Yes, I agree with that. 22 MR. BIRMINGHAM: In your recent studies you made paired 23 releases in the Sacramento River at Ryde and Georgiana 24 Slough? 25 DR. KJELSON: That is correct, although at times we CAPITOL REPORTERS (916) 923-5447 12010 1 moved the release point to Isleton on the Sacramento River 2 rather than Ryde. 3 MR. BIRMINGHAM: Dr. Kjelson, if I understand the way 4 in which you conducted the experiment, you released coded 5 wire tagged smolts on the Sacramento River at Ryde? 6 DR. KJELSON: To the left of Walnut Grove. 7 MR. BIRMINGHAM: Is that correct? 8 DR. KJELSON: Yes. Actually it is across the river 9 from Ryde at a boat landing. 10 MR. BIRMINGHAM: I have placed on the overhead 11 projector a copy of a map contained on Page 6 of the Delta 12 Atlas which is in evidence as staff Exhibit 63. 13 Now, Dr. Kjelson, the coded wire tagged smolts that you 14 placed in the Sacramento River opposite the town of Ryde 15 were treated as a control; is that correct? 16 DR. KJELSON: Essentially as a control. 17 MR. BIRMINGHAM: And the reason that you treated them 18 essentially as a control is because you assumed that with 19 respect to salmon smolts placed in the Sacramento River at 20 Ryde, the Delta export pumps operated by the State Water 21 Project and the Central Valley Project would not have an 22 impact on their survival? 23 DR. KJELSON: That is not correct. Actually, in my 24 written testimony I believe I said that the export effect, 25 if any, would be less than those found in Georgiana CAPITOL REPORTERS (916) 923-5447 12011 1 Slough. But there may be some, and we have some evidence 2 that suggests that. 3 MR. BIRMINGHAM: In your testimony you said -- this is 4 Department of the Interior Exhibit 12 on Page 2. You said 5 there was a major gap in the data for conditions of low 6 exports and low to median inflows. This gap needs to be 7 filled as soon as possible to improve our understanding of 8 the affect export on smolt survival? 9 DR. KJELSON: That is true. 10 MR. BIRMINGHAM: Those are the data that were collected 11 in December of 1998? 12 DR. KJELSON: Yes. I think we only had one other point 13 around 4,000 export. 14 MR. BIRMINGHAM: Do you have a copy of Department of 15 the Interior Exhibit 12-C with you? 16 DR. KJELSON: Yes. 17 MR. BIRMINGHAM: Would you please turn to Page A11, 18 which is Appendix A to Department of the Interior Exhibit 19 12-C? 20 DR. KJELSON: A12 is what you want? 21 MR. BIRMINGHAM: Page A11. 22 On Page A11 there is a description of the Delta Action 23 8; is that correct? 24 DR. KJELSON, actually the copy I have, it is A12. But 25 I understand what you are looking at. CAPITOL REPORTERS (916) 923-5447 12012 1 MR. BIRMINGHAM: That is something that has confused me 2 in comparing the pagination of 12-C and the pagination in 3 the copy of the Administrative Proposal which I have, Dr. 4 Kjelson. The pagination seems to be different. 5 Is there an explanation for that? 6 DR. KJELSON: I don't have one, to my knowledge. 7 MR. BIRMINGHAM: Looking at the description of Delta 8 Action 8, it contains a description of the experimental 9 design for Delta Action 8? 10 DR. KJELSON: That is correct. 11 MR. BIRMINGHAM: And the study which you have 12 conducted, or that you conducted in December 1998, is the 13 second preferred experimental design described in Delta 14 Action 8? 15 DR. KJELSON: I have to refresh my memory a minute. 16 MR. BIRMINGHAM: If you look at the first paragraph 17 after "Hypothesis" in the experimental design in Delta 18 Action 8, it describes two alternative experimental designs; 19 is that correct? 20 DR. KJELSON: That's correct. 21 MR. BIRMINGHAM: The experiment you conducted in 22 December 1998 is described as the second preferred 23 experimental design by the Administrative Proposal on the 24 Management of (b)(2) Water? 25 DR. KJELSON: That's correct. CAPITOL REPORTERS (916) 923-5447 12013 1 MR. BIRMINGHAM: I would ask you to look at the 2 description of the experimental design for Delta Action 8. 3 It states that: 4 In conducting the experiment "it is critical 5 to achieve a wide difference (a minimum 6 target difference of 7,000 cfs) between the 7 low and high export levels to increase the 8 chance of observing a potential affect of 9 exports on survival. (Reading.) 10 Isn't that correct, Dr. Kjelson? 11 DR. KJELSON: Yes, that is what it says. 12 MR. BIRMINGHAM: When you conducted the analysis in 13 December 1998, did you achieve a wide difference between the 14 low and high export levels? 15 DR. KJELSON: No, we did not. We conducted them at two 16 low export levels. 17 MR. BIRMINGHAM: In fact, the difference between the 18 high and the low export levels was only 278 cfs; isn't that 19 correct, Dr. Kjelson? 20 DR. KJELSON: I don't have that figure right on top of 21 my head. 22 MR. BIRMINGHAM: If you look at the data that are 23 contained in 12-A -- 24 DR. KJELSON: 278, yes, that is correct. 25 MR. BIRMINGHAM: So that we have a clear record, Dr. CAPITOL REPORTERS (916) 923-5447 12014 1 Kjelson, the difference between the high and low export 2 levels when you conducted the experiment in December 1998 3 was 278 cfs; is that correct? 4 DR. KJELSON: That's correct. 5 MR. BIRMINGHAM: Now when the experimental design said, 6 "It is critical to achieve a wide difference," that means 7 that from the perspective of the people who designed the 8 experiment, that having a wide difference is important to 9 the result of the experiment; isn't that right, Dr. 10 Kjelson? 11 DR. KJELSON: I think I need to qualify some things. 12 You're basically correct, based on what we are reading 13 here. I think the people that designed it, including myself 14 and a variety of other people, I believe that, in general, 15 oftentimes we would have difficulty in setting experimental 16 conditions up in either two highs and two lows to fill in 17 data gaps. 18 We found, as you referred to earlier, that we had a 19 great data gap in our understanding. We had no data base, 20 at this low export. So this year in conjunction and 21 coordination with CalFed OPS and discussing with other 22 biologists, we asked to fill the data gap as I referred to 23 in my testimony. 24 Given the water year we had, the projects were able to 25 provide us with two low exports. And we concluded that CAPITOL REPORTERS (916) 923-5447 12015 1 would be the best way to do it this year, to fill that data 2 gap. Although you are perfectly correct, relative to this 3 description, we did not have a high and low. 4 MR. BIRMINGHAM: I would like to talk about the method 5 that was used to prepare the experimental design. The 6 experimental design was the subject of significant 7 discussion among experts; is that right, Dr. Kjelson? 8 DR. KJELSON: Yes. 9 MR. BIRMINGHAM: It was an experimental design that 10 developed over the course of a relatively long period of 11 time? 12 DR. KJELSON: I believe most of that discussion took 13 place in what we called our (b)(2) fish team in the summer 14 of 1997. 15 MR. BIRMINGHAM: There were a series of meetings in the 16 summer of 1997 at which this experimental design was 17 discussed? 18 DR. KJELSON: That's correct. 19 MR. BIRMINGHAM: Based upon the discussions, there was 20 a description of the experimental design that was placed in 21 the Administrative Proposal on the Management of (b)(2) 22 Water, Department of the Interior Exhibit 12-C? 23 DR. KJELSON: That's correct. 24 MR. BIRMINGHAM: When the experts were writing the 25 description of the experimental design, they said that it CAPITOL REPORTERS (916) 923-5447 12016 1 was critical to achieve a wide difference between the low 2 and the high export levels? 3 DR. KJELSON: That's correct, but -- 4 MR. BIRMINGHAM: When you conducted your experiment -- 5 C.O. STUBCHAER: I am not sure he was finished with his 6 answer. He said "but." 7 DR. KJELSON: I think it was inferred and I think if 8 you brought any of these experts and testified, they would 9 acknowledge that, while we have experimental design, we try 10 to meet it, try to meet all types of conditions they set up 11 in a very difficult, challenging environment of the Delta 12 that we were working with all the other logistics and 13 coordination editors, balancing between water supplies and 14 fish protection. At times that wouldn't always work out. 15 In essence what we are trying to do, as shown in my -- 16 the figure I provided in Exhibit 12-AA, we had a data gap, 17 and we simply filled that in. 18 Now, in a perfect world we might have down a high and 19 low export in December and January of each year, and 20 everything would work out exactly as its experimental 21 design. As I think you understand, that isn't always 22 possible. But, we did what we felt was the best use to get 23 data to clarify our misunderstanding or uncertainty of what 24 was really going on. 25 MR. BIRMINGHAM: When you conducted the experiment in CAPITOL REPORTERS (916) 923-5447 12017 1 December of 1998, you deviated from a component of the 2 experimental design which was characterized as "critical"? 3 MR. CAMPBELL: Objection. Asked and answered. 4 C.O. STUBCHAER: I will allow it to be answered. 5 DR. KJELSON: Yes. In the terms that you described it 6 that's correct. 7 MR. BIRMINGHAM: Dr. Kjelson, the term that I am using 8 is not a term that I have used to describe it, is it? It is 9 a term that the scientists who developed the experiment 10 used? 11 DR. KJELSON: That's correct, with the qualifications 12 I just described. 13 MR. BIRMINGHAM: Now, to arrive at your conclusion 14 that there is a statistically significant relationship 15 between the rate of exports and salmon smolt survival, you 16 conducted a linear regression analysis? 17 DR. KJELSON: That's correct. My staff assisted in 18 it. 19 MR. BIRMINGHAM: Your staff assisted in the preparation 20 of linear regression analysis? 21 DR. KJELSON: That's correct. 22 MR. BIRMINGHAM: Dr. Kjelson, there are five basic 23 assumptions to linear regression analysis; isn't that 24 correct? 25 DR. KJELSON: I would like to refresh my memory -- CAPITOL REPORTERS (916) 923-5447 12018 1 MR. BIRMINGHAM: I will try to refresh your 2 recollection by asking you about your understanding of a 3 linear regression analysis. The first assumption of linear 4 regression analysis is the relationship between the 5 dependent Y variable and the independent X variable is 6 linear. In other words it is a straight line? 7 DR. KJELSON: That's correct. 8 MR. BIRMINGHAM: The second assumption of a linear 9 regression analysis is that there is no error in the measure 10 of the independent variable? 11 DR. KJELSON: I believe that is the strict assumption 12 they use in the statistical context. 13 MR. BIRMINGHAM: Here the independent variable is the 14 average rate of exports? 15 DR. KJELSON: That is correct. 16 MR. BIRMINGHAM: The rate of exports is carefully 17 monitored? 18 DR. KJELSON: Yes, it is. 19 MR. BIRMINGHAM: So here we can assume the second 20 assumption is met, that there was error in the measure of 21 the independent variable? 22 DR. KJELSON: That is basically what I would 23 conclude. 24 MR. BIRMINGHAM: The third assumption that underlies a 25 linear regression analysis is that for a given X, the CAPITOL REPORTERS (916) 923-5447 12019 1 independent variable, the Y, the dependent variable, are 2 normally distributed about the regression line. That is for 3 any value of X there exists in the population a normal 4 distribution of Y values? 5 DR. KJELSON: My recollection, that's true. 6 MR. BIRMINGHAM: The fourth assumption which underlies 7 a linear regression analysis, the variance of Y is the same 8 for all Xs? 9 DR. KJELSON: I can't remember that. But I presume 10 you're getting good information from a statistical book or 11 something. 12 MR. BIRMINGHAM: The basic assumption or an explanation 13 of the fourth assumption, Dr. Kjelson, is that the variance 14 of population distribution of Y values must all be 15 approximately equal to one another? 16 DR. KJELSON: I believe that is true and it probably 17 relates to the linearity issue. 18 MR. BIRMINGHAM: The fifth assumption underlying a 19 linear regression analysis is that the values of Y come at 20 random from the sampled population and are to be independent 21 of one another? 22 DR. KJELSON: Again, I am not sure about that, but I 23 can't question your statement. 24 MR. BIRMINGHAM: Let's look at the assumptions that we 25 have been able to identify, Dr. Kjelson. You've indicated CAPITOL REPORTERS (916) 923-5447 12020 1 that with respect to the second assumption that I describe, 2 that there is no error in the measurement of the independent 3 variable, that in this analysis that assumption is 4 satisfied? 5 DR. KJELSON: If you are asking if they can measure 6 among volume of export precisely and never have any error in 7 it, I guess I would have to correct my statement. There 8 certainly is error in all those types of measurement. It is 9 just a matter of degree, I guess. 10 MR. BIRMINGHAM: We can agree that, relatively 11 speaking, there is little error in the measurement of the 12 independent variable in this circumstance, average exports? 13 DR. KJELSON: That's true. 14 MR. BIRMINGHAM: Let's look at the first assumption, 15 the relationship between the independent Y variable and the 16 independent X variable being linear. 17 Dr. Kjelson, I have placed on the overhead projector an 18 exhibit which I have identified as Westlands Exhibit 113. 19 Would you please take a moment and compare Westlands Exhibit 20 113 with -- 21 C.O. STUBCHAER: That is on the Hearing Officer's 22 restrictions. 23 MR. BIRMINGHAM: May the record reflect that is not a 24 statement directed at me? 25 C.O. STUBCHAER: Sorry for the interruption, Mr. CAPITOL REPORTERS (916) 923-5447 12021 1 Birmingham. 2 MR. BIRMINGHAM: Dr. Kjelson, could you take a moment 3 and compare Westlands 113 with Department of the Interior 4 Exhibit 12-C, and when you finish that comparison, let me 5 know. 6 C.O. STUBCHAER: Mr. Campbell. 7 MR. CAMPBELL: May I ask that Counsel further identify 8 this exhibit and describe it for the record and maybe give 9 us some background as to its preparation? 10 C.O. STUBCHAER: Yes. You may ask whether it is a 11 hypothetical or not. 12 Mr. Campbell requested that this exhibit be further 13 identified. 14 MR. BIRMINGHAM: I think I will be able to lay an 15 appropriate foundation through my examination of Dr. 16 Kjelson. 17 DR. KJELSON: I have looked at it, comparing it with 18 our own exhibit, 12-AA, and it's roughly correct. I am a 19 little concerned of where some of those points lay because 20 maybe I don't know, for example, where the 2,000 export line 21 is. It seems that those points are shifted a little right. 22 But, in general, I think they're generally comparable. 23 MR. BIRMINGHAM: In general, the data that are 24 contained on Westlands Water District Exhibit 113 are 25 comparable to the data contained in Department of Interior CAPITOL REPORTERS (916) 923-5447 12022 1 Exhibit 12-AA Replacement? 2 DR. KJELSON: In general. I guess I'd ask you why you 3 didn't use the one we have. 4 MR. BIRMINGHAM: Now, so Exhibit 113 is a scatter plot 5 of the Georgiana Slough/Ryde survival ratio which is based 6 on data contained in Interior 12-A Replacement? 7 DR. KJELSON: That is correct. 8 MR. BIRMINGHAM: You would agree, wouldn't you, Dr. 9 Kjelson, that looking at Exhibit 113, Westlands Exhibit 113, 10 it is difficult to see a linear relationship between average 11 combined exports and the Georgiana Slough/Ryde survival 12 ratios? 13 DR. KJELSON: You've provided a scatter plot of the 14 data. I went further and did an analysis, or my staff did, 15 and fitted the points in a linear fashion and came up with a 16 line that we've provided. 17 MR. BIRMINGHAM: You have characterized that as a 18 statistically significant relationship? 19 DR. KJELSON: I don't know if I used those words, but 20 we did a test of the level of significance and found that it 21 was significant at a .10 level, or less than that. And as I 22 will now state, the actual P value is .06. 23 MR. BIRMINGHAM: Let's talk about that, Dr. Kjelson, 24 because I am confused. I'd like to ask you to take a look 25 at your testimony that was sent to us a couple weeks ago or CAPITOL REPORTERS (916) 923-5447 12023 1 last week. It is a supplement to the revised testimony of 2 Martin Kjelson. 3 Do you of a copy of that with you? 4 DR. KJELSON: Yes. 5 MR. BIRMINGHAM: The second paragraph of that testimony 6 says: 7 Recent data collected in December 1998, 8 combined with the earlier data identified in 9 DOI Exhibits 12-A, to which I previously made 10 reference, have resulted in statistically 11 significant P value less than .05 12 relationship between the survival of CWT late 13 fall-run salmon smolts released in the 14 Georgiana Slough relative to those released 15 in the Sacramento River at Ryde and the total 16 CVP/SWP exports. (Reading.) 17 Did I accurately read that, Dr. Kjelson? 18 DR. KJELSON: The .05, yes, you did. 19 MR. BIRMINGHAM: So, when you prepared your supplement 20 testimony, you were stating that a statistically significant 21 relationship is established if the P Value is less than .05? 22 DR. KJELSON: That's correct. Although the -- it 23 varies greatly and is somewhat subjective based on who is 24 setting the level significance. And you're correct, 25 oftentimes .05 is an accepted level, and in some CAPITOL REPORTERS (916) 923-5447 12024 1 experimentation maybe even as low as .01. On the other hand 2 in other types of experiments, particularly of the type we 3 have, one might choose a level .10. 4 MR. BIRMINGHAM: But when you prepared your 5 supplemental testimony, Dr. Kjelson, you selected a P value 6 of less than .05 as being the P value which establishes a 7 statistically significant relationship? 8 MR. TURNER: I object. I think that letter speaks for 9 itself. I don't -- I think if you are asking him if that, 10 in fact, is what that letter is supposed to say, that is 11 very different from telling him that is, in fact, what the 12 letter says. 13 MR. BIRMINGHAM: My form of cross-examination usually 14 involves leading questions, and that was a question. I am 15 asking Dr. Kjelson to provide me with an explanation of what 16 he wrote in his supplement testimony. I don't think that 17 that is an inappropriate question. 18 C.O. STUBCHAER: I will allow the question. 19 While we are interrupted, I have a question for 20 clarification. Maybe of you, Mr. Birmingham. Does the 21 scatter plot that is on the screen represent the data from 22 Exhibit 12-A? 23 MR. BIRMINGHAM: Yes. 24 C.O. STUBCHAER: In the Georgiana/Ryde ratio which is 25 the fourth column in Exhibit 5-A I see no value up near .75. CAPITOL REPORTERS (916) 923-5447 12025 1 MR. BIRMINGHAM: You are looking at the old 12-A. 2 C.O. STUBCHAER: This says "revised." 3 MR. BIRMINGHAM: I think you need to use the 4 replacement. There is another one. 5 C.O. STUBCHAER: There is another? 6 MR. BIRMINGHAM: Yes. 7 C.O. STUBCHAER: I am sorry. 8 Revised replacement. 9 MR. BIRMINGHAM: There is replacement of the revised, 10 and I think Dr. Kjelson will confirm that the data -- I 11 think he did confirm that the data contained on this scatter 12 plot are essentially the data contained in Exhibits 12-A 13 Replacement. 14 C.O. STUBCHAER: Staff tells me I am looking at the 15 proper table. 16 MR. BIRMINGHAM: Dr. Kjelson, let me ask you one more 17 time: Are the data that contained on the scatter plot, 18 Westlands Water District 113, the data contained in 12-A 19 Replacement? 20 DR. KJELSON: Yes, generally, with the qualifications I 21 made. I presume you took my data and you put them on a 22 scatter plot and did it correctly. 23 MR. BIRMINGHAM: For the Hearing Officer's benefit, can 24 we look at 12-A for a moment. Under the 12/29/98 25 Georgiana/Ryde ratio there is a value of 0.72. That is the CAPITOL REPORTERS (916) 923-5447 12026 1 ratio; is that correct? 2 DR. KJELSON: You are asking me a question? 3 MR. BIRMINGHAM: Yes, I am. 4 C.O. STUBCHAER: Is that 12/29/98? 5 MR. BIRMINGHAM: Yes. 6 C.O. STUBCHAER: All right. This is .37, so I don't 7 have the same data. 8 MR. BIRMINGHAM: You're looking -- I believe you're 9 looking at the Ryde survival index as opposed to the 10 Georgiana/Ryde ratio. 11 C.O. STUBCHAER: The fourth column, Georgiana/Ryde 12 ratio. 13 MR. BIRMINGHAM: May I approach? 14 C.O. STUBCHAER: Let's take the time to resolve this 15 because I think it is important. I am sorry to add to the 16 confusion. 17 MR. BIRMINGHAM: May I approach? 18 C.O. STUBCHAER: Yes, please. 19 MR. BIRMINGHAM: I believe there is a 12-A Revised and 20 a 12-A Replacement, which are different. You have -- 21 C.O. STUBCHAER: Off the record. 22 (Discussion held off the record.) 23 C.O. STUBCHAER: We will start back on the record. I 24 apologize for my confusion. 25 Please proceed. CAPITOL REPORTERS (916) 923-5447 12027 1 MR. BIRMINGHAM: Mr. Stubchaer, this is a very critical 2 point. If the Board does not have the most recent versions 3 of these exhibits, I think we need to take a break and get 4 the Board the most recent versions of these exhibits. This 5 is a very important issue. 6 Can we take a recess and ask that copies be produced to 7 the Board? 8 C.O. STUBCHAER: We will take a recess. This is not 9 the morning recess. 10 (Break taken.) 11 C.O. STUBCHAER: Back on the record. 12 There was a problem with the distribution of the 13 replacement. We now have the proper copies. 14 Please proceed. 15 MR. BIRMINGHAM: May I go back? I am now going to ask 16 some questions that I asked earlier, but I want to make sure 17 the record is clear on this point, Mr. Stubchaer. 18 C.O. STUBCHAER: Yes. 19 MR. BIRMINGHAM: Dr. Kjelson, you submitted testimony 20 and exhibits in July of 1998 in connection with Phase VI of 21 these proceedings; is that correct? 22 DR. KJELSON: That's correct. 23 MR. BIRMINGHAM: Based upon some discussions that you 24 have had with other Interior agencies and agencies of the 25 State of California, you submitted revised testimony, and CAPITOL REPORTERS (916) 923-5447 12028 1 that was done in November of 1998; is that correct? 2 DR. KJELSON: Yes. 3 MR. BIRMINGHAM: Based upon the data that you collected 4 in December of 1998 -- let me restate the question. 5 Based upon data collected by Fish and Wildlife Service 6 in December 1998, you did an analysis and that analysis 7 resulted in Department of Interior 12-A and 12-AA Revised? 8 DR. KJELSON: That's correct. 9 MR. BIRMINGHAM: And those exhibits, Department of 10 Interior 12-AA -- 12-A and 12-AA Revised were distributed 11 with your written testimony, written supplement, on March -- 12 C.O. STUBCHAER: 15th. 13 MR. BIRMINGHAM: -- 15th, 1999? 14 DR. KJELSON: That's correct. 15 MR. BIRMINGHAM: You or your staff did some further 16 analysis and that resulted in Exhibits 12-A and 12-AA 17 Replacement which were distributed by fax on March 18th, 18 1999? 19 DR. KJELSON: That's correct. 20 MR. BIRMINGHAM: On our examination, my questions of 21 you, about Westlands Water District Exhibit 113 for 22 identification, you were basing your answers on Department 23 of Interior Exhibit 12-A Replacement which was distributed 24 on March 18th, 1999? 25 DR. KJELSON: Yes. And as another clarifier, in the CAPITOL REPORTERS (916) 923-5447 12029 1 upper right-hand corner of 12-A it is dated, updated 2 3/17/99. 3 MR. BIRMINGHAM: To be very clear, when you say "12-A," 4 you are really referring to 12-A Replacement? 5 DR. KJELSON: Yes, that is correct. 6 MR. BIRMINGHAM: When you did the analysis on the 7 linear regression analysis, based upon the data contained in 8 Exhibit 12-A Replacement, you came up with a P value of 9 less than five? 10 Let me restate that question. That was a very poor 11 question. 12 When you did the linear regression analysis based upon 13 the data contained in 12-A Revised, you came up with a P 14 value of less than .05? 15 DR. KJELSON: That is correct. 16 MR. BIRMINGHAM: Based upon that analysis, you wrote 17 the supplement to revised testimony which is signed by you 18 and dated March 15, 1999? 19 DR. KJELSON: That's right. 20 MR. BIRMINGHAM: Because you came up with a P Value of 21 less than .05, you selected a P value of less than .05 as 22 the value to which you would ascribe significance? 23 DR. KJELSON: I don't believe I consciously chose a 24 level of significance. We calculated a P value as less than 25 .05, and that is how I stated it. CAPITOL REPORTERS (916) 923-5447 12030 1 MR. BIRMINGHAM: A P value of less than 0.5 is 2 frequently selected by biologists and statisticians as a P 3 value to which they will ascribe a level of significance? 4 DR. KJELSON: With the qualifications I stated earlier, 5 that is generally true. 6 MR. BIRMINGHAM: Based upon a reanalysis of the data, 7 and these are the data contained in 12-A Replacement, you 8 came up with a P value of .06? 9 DR. KJELSON: Yes. There was less than .1. 10 MR. BIRMINGHAM: Let me ask you this question, Dr. 11 Kjelson: If we continue to use the level of significance 12 contained in your supplements to revised testimony, P value 13 of less than .05 as the level of significance, you would 14 agree that there is no statistically significant 15 relationship between the level of exports and salmon smolt 16 survival in the San Joaquin Valley? 17 DR. KJELSON: That's correct. I would like -- for 18 clarification, in clarifying what you have just clarified 19 for the Board and listeners and the record, the history of 20 this was that in our submittal of the revised 12-A where we 21 had a P value of less than .05, was based on the new data 22 and all the data that we had. 23 Due to a variety of things, we resubmitted 12-A 24 Replacement and calculated a new P value. That was the 25 result of two things. CAPITOL REPORTERS (916) 923-5447 12031 1 One, we achieved, I believe, another tagged fish in our 2 trawl, which varied things very slightly from one of the 3 release groups in December. But more significantly, we 4 found that in utilizing our computer programs and changing 5 the computer program through Excel to Access or vice versa 6 -- I forget which way it went -- we made the assumption that 7 it would calculate the survivals properly. 8 The fact of the matter is it did not calculate them the 9 way we did all the other data. And it gets into the 10 calculation of the survival indices and, therefore, the 11 ratio. We had an error in the programming. We went back 12 and corrected the program, and that is why we came up with a 13 Replacement 12-A and a Replacement 12-AA, the figure. And 14 it was due to that process and those, that situation, that 15 our P value changed and became, in your terms, basically 16 less significant. 17 MR. BIRMINGHAM: Well, again, Dr. Kjelson, I don't want 18 to be testifying here. When I selected the term "less than 19 significant," that is the basis that you described in your 20 written supplements to revised testimony; isn't that 21 correct? 22 DR. KJELSON: That's correct. 23 MR. BIRMINGHAM: It is not a value which I have 24 selected; it is a value that you have selected? 25 DR. KJELSON: That's right. As I qualified earlier, we CAPITOL REPORTERS (916) 923-5447 12032 1 calculated the P. It was less than .05, and we did it. It 2 was not a conscious decision. While someone may argue that 3 we should have set it at .01 or .05 or .1 or .2, we could 4 have done all those things. We did not. And I am simply 5 wanting to clarify the process and why the changes went. It 6 wasn't that we consciously shifted around to keep making it 7 significant. 8 MR. BIRMINGHAM: When you did the recalculation after 9 March 15th, 1999, you came up with a P value of .06. You 10 did consciously decide to change the level at which you 11 would find significance from .05 to .1? 12 DR. KJELSON: It is a matter of when the choice was 13 made and how it was made. 14 MR. BIRMINGHAM: On March 15th, when you submitted your 15 supplements to revised testimony, you selected a P value of 16 less than 0.5? 17 DR. KJELSON: I describe it as significant at that 18 level. 19 MR. BIRMINGHAM: And when the -- when you did further 20 evaluation of your data and came out with a P value of .06, 21 you decided to change the level at which you would find 22 significance from a P value of less than .05 to a P value of 23 less than .01? 24 DR. KJELSON: I was simply trying to state the facts as 25 they were shown. CAPITOL REPORTERS (916) 923-5447 12033 1 MR. BIRMINGHAM: Now this morning, which is the reason 2 I had this marked, Dr. Kjelson, when you were describing the 3 further analysis, you said that you had calculated or 4 determined that there was a statistically significant 5 relationship because the P value that you had calculated was 6 less than .1? 7 DR. KJELSON: That's right. 8 MR. BIRMINGHAM: I would like to go back and talk 9 further about the assumptions that underlie the linear 10 regression. 11 Going back to Westlands Exhibit 113, I think you said 12 that looking at the scatter plot represented by Exhibit 13 Westlands 113, you would agree that the data do not appear 14 to be linear? 15 DR. KJELSON: I didn't state that. 16 MR. BIRMINGHAM: What is an outlier, Dr. Kjelson? 17 DR. KJELSON: I am not sure I can describe an outlier. 18 I gather, in general, it is something that is inconsistent 19 with some other pattern. 20 MR. BIRMINGHAM: I would like you to look at the data 21 point for 12/29/98. That is a Georgiana/Ryde ratio of 22 approximately .75; is that correct? 23 DR. KJELSON: Yes. Or point -- that's correct. 24 MR. BIRMINGHAM: You would agree, Dr. Kjelson, that 25 some statisticians might look at data that are contained on CAPITOL REPORTERS (916) 923-5447 12034 1 Westlands Water District 113 and conclude that the data 2 point of .75 for the 2,000 cfs exports for 12/29/98 is an 3 outlier? 4 MR. CAMPBELL: Objection. Calls for speculation. 5 C.O. STUBCHAER: No. Overruled. 6 DR. KJELSON: Someone may do that. 7 MR. BIRMINGHAM: Are there other linear regression 8 techniques that can be used to minimize the affect of 9 potential outliers? 10 DR. KJELSON: There may be, but I'm not familiar with 11 them. 12 MR. BIRMINGHAM: If a statistician has data that 13 suggests that there is a potential outlier in the data, the 14 statistician can use what is sometimes referred to be a 15 robust linear regression; is that correct, Dr. Kjelson? 16 DR. KJELSON: I am not familiar with that. 17 MR. BIRMINGHAM: You don't know if there is a -- Mr. 18 White, are you familiar with the robust linear regression 19 analysis? 20 MR. WHITE: No, I am not. 21 MR. BIRMINGHAM: Let's go back to our assumptions that 22 underlie linear regression analysis. I believe, Dr. 23 Kjelson, that you indicated that your understanding of the 24 third assumption underlying linear regression analysis is 25 that for a given X, the independent variable, the Y, the CAPITOL REPORTERS (916) 923-5447 12035 1 dependent variable, are normally distributed about the 2 regression line; and that is for any value X there exists in 3 the population a normal distribution of Y values? 4 DR. KJELSON: That is my general understanding, but, 5 again, I haven't looked into the details of that. 6 MR. BIRMINGHAM: Now, there are only eight sample 7 points that are contained on Department of the Interior 8 Exhibit 12-AA Replacement? 9 DR. KJELSON: That's correct. 10 MR. BIRMINGHAM: And from those eight sample points it 11 does not appear that the Georgiana Slough/Ryde survival 12 ratios are normally distributed about the regression line? 13 DR. KJELSON: I haven't done that. 14 MR. BIRMINGHAM: You have not done that analysis; is 15 that what you said? 16 DR. KJELSON: I am not quite sure what you are asking 17 on the distribution. Some of the statistics of, for 18 example, the R square may assume that. It is part of the 19 assumption that you are talking about. 20 MR. BIRMINGHAM: What I am trying to ascertain, Dr. 21 Kjelson, is whether or not the data, the data to 12-AA 22 Replacement, meet the third assumption that we have just 23 been talking about. If I understand, your testimony is you 24 haven't done an analysis to determine if these data meet 25 that assumption? CAPITOL REPORTERS (916) 923-5447 12036 1 DR. KJELSON: I am not sure we could determine it 2 exactly with the amount of data point. Normally you need a 3 lot of data. I think with some of my clarification and Mr. 4 White's there is certainly a limited amount of data to draw 5 a conclusion. 6 MR. BIRMINGHAM: At a minimum, you would agree that 7 based on the limited number of data that are depicted on 8 Department of Interior Exhibit 12-AA Replacement you can't 9 determine whether or not those data meet the third 10 assumption underlying a linear regression that we have 11 talked about? 12 DR. KJELSON: Well, I think that is true. But I would 13 like to qualify, in the whole area of assumptions and 14 experiments, in almost all experiments, particularly ones 15 of the type using data from the field, there may be times 16 when we move away from the exact meeting of all assumptions. 17 There is going to be some variability there. 18 MR. BIRMINGHAM: The fifth assumption that we talked 19 about -- excuse me, the fourth assumption that we talked 20 about is that the variance of Y is the same for all Xs and 21 that is that the variance of the population distribution of 22 Y values must be approximately equal to one another. 23 Do you have a blowup of Department of Interior Exhibit 24 12-AA Replacement? 25 DR. KJELSON: No, I do not. CAPITOL REPORTERS (916) 923-5447 12037 1 MR. BIRMINGHAM: Mr. Garner, counsel for the State 2 Contractors, has one. I am placing it up on the overhead 3 projector. Is the overhead that I put on the overhead 4 projector a copy of Department of Interior Exhibit 12-AA 5 Replacement? 6 DR. KJELSON: Yes, it certainly looks like one. 7 MR. BIRMINGHAM: Let's examine 12-AA Replacement, in 8 connection with the fourth assumption. 9 You would agree, would you not, Dr. Kjelson, that 10 looking at the variance of the Georgiana Slough/Ryde 11 survival ratios, which is the Y variable, for all 12 average-combined exports the X variables are not equal? 13 DR. KJELSON: Would you restate the question? What are 14 not equal? 15 MR. BIRMINGHAM: The variance of the Georgiana/Ryde 16 survival ratios for all combined exports, those are not 17 equal? 18 DR. KJELSON: That is correct. Looking down the 19 right-hand corner, there doesn't seem to be a lot of 20 variability around the line relative to, say, the low 21 exports. It is a little wider. 22 MR. BIRMINGHAM: So, in other words, what you are 23 saying is the variance of Y at low values of average 24 combined exports is much greater than the variance of Y at 25 higher values of average combined exports? CAPITOL REPORTERS (916) 923-5447 12038 1 DR. KJELSON: I think based on this data set that is 2 true. With more sampling, it may not be true. 3 MR. BIRMINGHAM: Based on the data that we have, we 4 cannot conduct a linear regression that satisfies the fourth 5 assumption underlying linear regression analysis? 6 DR. KJELSON: I don't think I'd agree with that 7 conclusion. 8 MR. BIRMINGHAM: Dr. Kjelson, as I understand the 9 purpose of your test, the purpose of your test was to 10 determine a relationship between salmon smolt survival in 11 the Central Delta, released in the Central Delta with export 12 rates? 13 DR. KJELSON: That's right. 14 MR. BIRMINGHAM: Now, what is depicted on government, 15 Department of Interior Exhibit 12-AA Replacement is an 16 analysis of the relationship between average combined 17 exports and the Georgiana Slough/Ryde survival index ration? 18 DR. KJELSON: That's correct. 19 MR. BIRMINGHAM: I believe earlier you testified that 20 the export pumps may not have an affect on the survival of 21 tagged wire coded smolts released into the Sacramento River 22 near Ryde? 23 DR. KJELSON: Yes. I had caution although -- excuse 24 me, one minute. 25 As I stated earlier, that's generally correct. There CAPITOL REPORTERS (916) 923-5447 12039 1 may be some impact of export on fish released at Ryde, but 2 certainly, based on our evidence, it would suggest far less, 3 if at all, compared to the Georgiana. 4 MR. WHITE: I guess, Marty, you would want to remember 5 that on occasion fish released at Ryde are recovered at the 6 export facility. 7 MR. BIRMINGHAM: But you both are uncertain about any 8 relationship between smolt survival for smolts released in 9 Sacramento near Ryde and the impact of the export pumps? 10 MR. WHITE: I think what we are assuming here is that 11 it is substantially less than the affect on Georgiana Slough 12 fish, and the precise nature of it is not known. 13 MR. BIRMINGHAM: I am going to ask both of you a 14 hypothetical question. Let's assume, hypothetically, that 15 the export pumps had never been built, therefore, are not 16 operating. Wouldn't there be a difference in the survival 17 ratio or the survival index between fish placed in the 18 Sacramento River near Ryde and fish placed in Georgiana 19 Slough? 20 MR. WHITE: I think that is correct. The migration 21 route is longer. And I think it is undoubtedly true that 22 absent exports survival on that route would be lower or for 23 that group released in Georgiana would be lower. The 24 relative contribution of export affect and other affect 25 unrelated to exports is the large question unanswered here. CAPITOL REPORTERS (916) 923-5447 12040 1 MR. BIRMINGHAM: In fact, Mr. White, I believe in your 2 testimony you said that all other things being equal, the 3 survival index for fish released in Georgiana Slough would 4 be 30 percent, 37 percent lower than the survival index for 5 fish released at Ryde? 6 MR. WHITE: The migration distance, the minimum 7 migration distance to the point where -- 8 MR. BIRMINGHAM: Excuse me, Mr. White, if I could ask 9 you to answer my question, and then if you would like to 10 explain the basis of your answer, that would be fine. 11 MR. CAMPBELL: I object to that. I believe the witness 12 was endeavoring to answer the question. 13 C.O. STUBCHAER: I agree with Mr. Birmingham. 14 Answer the question first and -- 15 MR. WHITE: Repeat the question, please. 16 MR. BIRMINGHAM: In fact, in your testimony you stated 17 that all other things being equal, the survival index for 18 smolts released in the Georgiana Slough would be 37 percent 19 lower than the survival index for smolts released in the 20 Sacramento River near Ryde? 21 MR. WHITE: My testimony, I believe, indicates that, 22 based on the difference in minimum migration distance from 23 the release sites to the sampling or recovery point at 24 Chipps Island, that the mortality would be 37 percent 25 greater, all else being equal, because the migration CAPITOL REPORTERS (916) 923-5447 12041 1 distance was 37 percent greater. I did not coach it in 2 terms of survival. 3 MR. BIRMINGHAM: The migration distance is not 37 4 percent greater; you said that the migration distance for 5 fish released in the Georgiana Slough is 37 miles? 6 MR. WHITE: It is a coincidence that the distance from 7 Georgiana Slough release point to the sampling point at 8 Chipps Island is 37 miles and that that is also 37 percent 9 greater than the Ryde release point to the Chipps Island 10 recovery point. 11 MR. BIRMINGHAM: So the answer to my earlier question 12 that your testimony states that, all other things being 13 equal, the survival rate or index for fish released in the 14 Georgiana Slough would be 37 percent lower than the survival 15 index for fish placed in the Sacramento River near Ryde is 16 yes? 17 MR. WHITE: My testimony is coached in terms of 18 difference, relative difference in mortality, not survival. 19 MR. BIRMINGHAM: What is the difference between 20 mortality and survival? 21 MR. WHITE: Typically, organisms either experience 22 survival or mortality, and the relationship between survival 23 and mortality is that mortality is one minus survival or 24 vice versa. Survival is one minus mortality, if you are 25 speaking about rates. CAPITOL REPORTERS (916) 923-5447 12042 1 MR. BIRMINGHAM: So, in other words, the answer to my 2 question would have been, no, in fact, the difference 3 between the survival of fish released in the Georgiana 4 Slough and fish released in the Sacramento River near Ryde 5 is 73 percent? 6 MR. WHITE: That is kind of getting a little tricky 7 when you start manipulating the ratios. 8 MR. BIRMINGHAM: Sixty-seven. 9 MR. WHITE: Based on what my testimony is. 10 MR. BIRMINGHAM: Sixty-three, excuse me. Shows I 11 didn't go to Stanford. 12 MR. WHITE: One needs to be careful when speaking about 13 mortality and survival rates and percentage changes in 14 those. 15 MR. BIRMINGHAM: You would both agree with me, would 16 you not, that there are independent mortality agents that 17 affect fish released at Ryde and fish released in Georgiana 18 Slough? 19 MR. CAMPBELL: Objection. Vague as independent as 20 what. 21 C.O. BROWN: Mr. Birmingham. 22 MR. BIRMINGHAM: Do either of you understand the term 23 "independent mortality agent"? 24 MR. WHITE: It is not clear to me. 25 DR. KJELSON: Maybe you could define it for us. CAPITOL REPORTERS (916) 923-5447 12043 1 C.O. BROWN: How much more time do you need, Mr. 2 Birmingham? 3 MR. BIRMINGHAM: An hour to an hour and a half. 4 C.O. BROWN: Let's take a 12-minute break now. 5 (Break taken.) 6 C.O. BROWN: Come back to order. 7 Mr. Birmingham. 8 MR. BIRMINGHAM: Dr. Kjelson, Mr. White, before the 9 recess I was asking you some questions about independent 10 mortality agent. Before we move on to that point, Dr. 11 Kjelson, I would like to go back to Section 3406 (b)(2) 12 Management Plan that is Department of Interior Exhibit 12-C. 13 14 Do you have a copy of that? 15 DR. KJELSON: Yes. 16 MR. BIRMINGHAM: What is the status of that plan? 17 DR. KJELSON: What plan? 18 MR. BIRMINGHAM: The Final Administrative Proposal on 19 Management of Section 3406 (b)(2) Water, Department of 20 Interior Exhibit 12-C? 21 DR. KJELSON: I am hesitant to answer. 22 MR. BIRMINGHAM: I have a couple more exhibits that I 23 have premarked, so I am going to mark a document as 24 Westlands Water District Exhibit 116, and I am going to hand 25 this to you, Dr. Kjelson, and I am going to ask you if you CAPITOL REPORTERS (916) 923-5447 12044 1 are familiar with this document? 2 DR. KJELSON: No, I'm not. 3 MR. BIRMINGHAM: I would ask you to turn to Page 51 and 4 52 and starting, I believe, on page -- actually, Page 49 5 there is a conclusion. I would ask you to take a few 6 minutes and read the conclusion, and when you are finished 7 reading the conclusion of Westlands Water District Exhibit 8 116, let me know. 9 MR. TURNER: I object to this line of questioning, 10 Mr. Brown. This exhibit that Mr. Birmingham is referring to 11 is an exhibit that has not, in fact, to date been analyzed 12 by the Department of Interior. The Department of the 13 Interior has developed no departmental interpretations of 14 any of the elements of that decision. I think it is 15 premature to be asking Dr. Kjelson to independently evaluate 16 what his personal interpretation of this particular 17 decision is when he is testifying on behalf of Fish and 18 Wildlife Service, Department of Interior. 19 C.O. BROWN: Is the exhibit in draft form, Mr. Turner? 20 MR. TURNER: No. 21 C.O. BROWN: What form? 22 MR. TURNER: It is a court order that was issued last 23 Friday. 24 C.O. BROWN: What is the title of the exhibit? 25 MR. BIRMINGHAM: The title of the exhibit is Memorandum CAPITOL REPORTERS (916) 923-5447 12045 1 Opinion and Order Re Cross-Motions for Partial Summary 2 Judgment. 3 Mr. Brown, I agree with a lot of what Mr. Turner has 4 said about this document. I had not intended in asking Dr. 5 Kjelson any significant questions about the opinion or ask 6 him to express views about the opinion. He is the witness 7 that through his testimony Interior has offered Department 8 of Interior Exhibit 12-C. So, since this opinion relates 9 specifically to that document, I thought he was the 10 appropriate witness to ask questions. 11 I will represent to the Board, and I think Mr. Turner 12 will agree with this, that Westlands Water District Exhibit 13 116 is a District Court order which vacates the 14 administrative decision adopting Interior Department Exhibit 15 12-C finding that it is -- that the action taken by the 16 Department of the Interior adopting the document 12-C was 17 inconsistent with the provisions of the Central Valley 18 Project Improvement Act, specifically Section 3406 (b)(2). 19 C.O. BROWN: Mr. Turner. 20 MR. TURNER: I will not -- I don't feel it is 21 appropriate to concede that that is an appropriate statement 22 as to what this particular decision does. I have to admit I 23 have not had the opportunity to review it in great detail 24 myself. 25 However, I understand that the judge did, in fact, CAPITOL REPORTERS (916) 923-5447 12046 1 express concerns and objections to some of the elements of 2 that particular decision of Exhibit 12. However, I will 3 point out that the decision holds that injunctive release is 4 justified. Parties are directed to schedule a date within 5 ten days following date of service of this decision to 6 resolve the language of the injunctive orders. In other 7 words, this is a memorandum opinion that was put together by 8 a District Court judge wherein he has not, in fact, issued 9 any kind of order directing the parties to do anything in 10 specific terms as of yet. That is still to be resolved. 11 So, I take no exception to Mr. Birmingham wanting to 12 introduce this exhibit as a further Westlands Water District 13 exhibit for the information to the Board as to the 14 expression of this District Court judge, but I don't feel it 15 is appropriate to conclude that this decision holds that 16 Exhibit 12-C will or will not be vacated, will or will not 17 be implemented. That is yet to be determined by the 18 parties and the Court. 19 C.O. BROWN: Thank you, Mr. Turner. 20 MR. BIRMINGHAM: If what Mr. Turner is doing is saying 21 that he will stipulate to the admission of Westlands Water 22 District 116 for identification, I will accept that and 23 will provide the requisite number of copies to the Board and 24 distribute it to the other parties in this case. I 25 appreciate that, and that will conclude my examination on CAPITOL REPORTERS (916) 923-5447 12047 1 this point. 2 C.O. BROWN: Is that all right, Mr. Turner? 3 MR. TURNER: Yes. I take no exception to that. 4 C.O. BROWN: So ordered, then. 5 MR. BIRMINGHAM: Before the recess I asked Dr. Kjelson 6 and Mr. White whether they were familiar with the term 7 "independent mortality agent." I believe you both testified 8 that that is a term with which you are both unfamiliar; is 9 that correct? 10 MR. WHITE: I would say it is a term that needs 11 substantial clarification in your question. 12 DR. KJELSON: I agree. 13 MR. BIRMINGHAM: Have you heard that term before, 14 "independent mortality agent"? 15 DR. KJELSON: We probably have heard it, but, again, we 16 need clarification to be of value. 17 MR. BIRMINGHAM: As an expert biologist, Dr. Kjelson, 18 do you have an understanding of the term "independent 19 mortality agent"? 20 MR. CAMPBELL: Objection. Asked and answered. 21 C.O. BROWN: Sustained, Mr. Birmingham. 22 MR. BIRMINGHAM: You would agree that there are many 23 factors that affect salmon smolt mortality in the Delta? 24 DR. KJELSON: Yes, I would agree with that. 25 MR. BIRMINGHAM: And many of those factors are CAPITOL REPORTERS (916) 923-5447 12048 1 unrelated to the operation of the export pumps? 2 DR. KJELSON: Certainly, some of them are, yes. 3 MR. BIRMINGHAM: Salmon smolt mortality may be affected 4 by water quality? 5 DR. KJELSON: Possibly. 6 MR. BIRMINGHAM: Salmon smolt mortality may be affected 7 by flow? 8 DR. KJELSON: Yes. 9 MR. BIRMINGHAM: Salmon smolt mortality may be affected 10 by predation? 11 DR. KJELSON: Yes. 12 MR. BIRMINGHAM: Mr. White, these are some of the 13 factors that you described in your testimony, Department of 14 Fish and Game Exhibit 27, in describing the many factors 15 that affect mortality; is that correct? 16 MR. WHITE: Yes, it is. 17 MR. BIRMINGHAM: It is because of these factors that 18 are independent of the export, the operation of the export 19 pumps that there is a difference, all other things being 20 equal, between the survival index for Georgiana Slough and 21 the survival index for fish placed in Sacramento near Ryde? 22 DR. KJELSON: You made a very complex statement, but, 23 certainly, various factors are influencing why we get the 24 data that we do. The differences in survival with one 25 release group versus another. CAPITOL REPORTERS (916) 923-5447 12049 1 MR. BIRMINGHAM: Now, Dr. Kjelson, your testimony 2 earlier today was that recent trends suggest that there is a 3 statistically significant relationship between the rate of 4 export pumps and the survival of salmon smolts released in 5 the Central Delta? 6 DR. KJELSON: I qualified it a little bit different 7 relation, relating to the relative to that at Ryde. But, 8 generally, that is correct. 9 MR. BIRMINGHAM: Department of the Interior Exhibit 10 12-AA shows the relationship between average combined 11 exports and the Georgiana Slough/Ryde survival index ratio? 12 DR. KJELSON: Yes. 13 MR. BIRMINGHAM: It does not compare average combined 14 export rates with the Georgiana Slough survival index? 15 DR. KJELSON: No, it does not. 16 MR. BIRMINGHAM: You have indicated that there are 17 factors that are unrelated to exports that affect survival 18 for fish placed in the Georgiana Slough and fish placed in 19 the Sacramento River near Ryde? 20 DR. KJELSON: That is a general understanding, although 21 it is very difficult to specify or differentiate which is 22 more important than the other. 23 MR. BIRMINGHAM: The fact that there are different 24 factors in a statistical analysis are called confounding 25 factors; isn't that correct? CAPITOL REPORTERS (916) 923-5447 12050 1 DR. KJELSON: I believe that is generally a general 2 understanding. 3 MR. BIRMINGHAM: The fact that there are certain things 4 affecting the relationship between Georgiana Slough survival 5 index and Ryde survival index that are unrelated to exports 6 is a factor that confounds the statistical analysis prepared 7 for the preparation of Department of Interior Exhibit 12-A? 8 DR. KJELSON: That causes variability to come into the 9 situation. 10 MR. BIRMINGHAM: What kind of analysis, Dr. Kjelson, 11 did you do or did your staff do when you prepared Department 12 of the Interior Exhibits 12-A to eliminate the influence of 13 the confounding factors that we talked about? 14 DR. KJELSON: Well, as noted in my testimony and I 15 believe Mr. White's also, that is one of the reasons we used 16 the ratio of the two indices of the two ratios to try to get 17 rid of some of the confounding factors, such as trawl 18 efficiency at Chipps Island appears to vary with different 19 conditions. And if you simply used one and then tried to do 20 a regression over a variety of years, it would confound it 21 and bring a lot of variability in. 22 We found that this ratio approach eliminates some of 23 those and lessens some of it. 24 MR. BIRMINGHAM: Let me explore that a little bit 25 further. If we want to establish the between exports and CAPITOL REPORTERS (916) 923-5447 12051 1 smolts that are released in the Central Delta, that is a 2 relationship that would be established by comparing rates of 3 export with the survival index for fish released in the 4 Georgiana Slough? 5 DR. KJELSON: Would you repeat your question, please? 6 I don't know if you asked a question. 7 MR. BIRMINGHAM: I did, but I will repeat it if you 8 didn't understand it. 9 If we want to determine the relationship between 10 exports and the survival of smolts released in the Central 11 Delta, that would be determined by looking at the 12 relationship between exports and smolts released in the 13 Georgiana Slough? 14 DR. KJELSON: No. It is for that reason that we are 15 using the ratio, for the reason I just gave. Each year you 16 are going to be recovering those smolts, be it released in 17 Georgiana and/or at Ryde. And that brings additional 18 variability in the data. And what we feel and why we chose 19 the ratio is to eliminate that. I forget the proper term, 20 the variation between years, for example, the trawl 21 efficiency may vary between years. If you just released 22 them at Georgiana Slough, that variability will confound 23 your ability to see a relationship if one really exists. 24 MR. WHITE: I would like to add to that that it is 25 physically impossible to eliminate some of these sources of CAPITOL REPORTERS (916) 923-5447 12052 1 variability, some of these confounding factors. 2 The Delta is not a highly controlled, experimental 3 environment. And that just about forces you to take this 4 paired release approach, and your assumption is that the 5 uncontrolled factors affect the survival of Georgiana 6 released fish and Ryde released fish similarly. And when 7 you use the ratio, those uncontrolled effects cancel out. 8 MR. BIRMINGHAM: May I ask the reporter to read back 9 Mr. White's last statement so I can make sure that I 10 understand it? 11 (Record read as requested.) 12 MR. BIRMINGHAM: Thank you. 13 Mr. White, you stated and I had it read back twice to 14 make sure we understood it. The assumption is that the 15 uncontrolled factors affecting survival of fish released in 16 Georgiana Slough, the assumption is that uncontrolled 17 factors affect survival of fish released in Georgiana Slough 18 and fish released at Ryde similarly; is that correct? 19 MR. WHITE: I believe that is what I said. 20 MR. BIRMINGHAM: Didn't we establish a little while ago 21 that all other things being equal, there is a 37 percent 22 difference in mortality for fish released in Georgiana 23 Slough versus fish released at Ryde? 24 MR. WHITE: Please repeat the question. 25 MR. BIRMINGHAM: I ask that the question be reread. CAPITOL REPORTERS (916) 923-5447 12053 1 (Record read as requested.) 2 MR. WHITE: Yes, that is right. 3 MR. BIRMINGHAM: So we cannot assume that the 4 uncontrolled factors that we have identified, water quality, 5 flow, predation, outmigration distance, that those 6 uncontrolled factors affect the survival of fish released at 7 Georgiana Slough and fish released at Ryde similarly? 8 MR. WHITE: Well, I believe you described the affects 9 in terms of rate of effects, the magnitude of effect on an 10 instantaneous basis, you can do that. 11 MR. BIRMINGHAM: But we don't know the rate of affect, 12 do we? 13 MR. WHITE: We are assuming that conditions in the two 14 migration routes are affecting survival in ways that we 15 could not begin to understand in total, but that the affects 16 on both released groups of fish are similar. 17 MR. BIRMINGHAM: So the assumption that you articulated 18 a few moments ago that the uncontrolled factors affect the 19 fish released at Ryde and the fish released at Georgiana 20 Slough similarly, is not an assumption which can be 21 supported by the data we have collected? 22 DR. KJELSON: Let me try to clarify something. What 23 Mr. White was talking about, I think, is what I referred to 24 earlier and why we use the ratio. 25 On a given year, I believe we are assuming that the CAPITOL REPORTERS (916) 923-5447 12054 1 factors that may cause variability to measure survival, and 2 I gave the example of net efficiency, in a high flow year we 3 probably have a different net efficiency than in a low flow 4 year. But we are saying the chance of recovering the two 5 groups is similar in that year, and when you use the ratio, 6 it negates that. I don't think we ever meant to say that 7 factors at Ryde are identical to those in Georgiana 8 Slough, and we talked about that in the testimony we gave 9 and the example being export. 10 MR. WHITE: To the extent that there is a difference 11 in the minimum migration distance each year, it is the same 12 each year and affects the ratio each year the same. 13 MR. BIRMINGHAM: Dr. Kjelson, you just said something 14 that I want to follow up on. I believe you said that the 15 assumption is that for each set of given circumstances at 16 any given time, those circumstances are going to affect 17 survival of the fish released in Georgiana Slough the same 18 way that they would affect fish released in the Sacramento 19 River? 20 DR. KJELSON: No. I was very specific. The example I 21 gave you was net efficiency. I didn't talk about same as 22 you just stated. I was trying to defend why we use ratios. 23 I think you are getting off the mark here. I don't know 24 where you are going. I don't think you are representing our 25 testimony properly. CAPITOL REPORTERS (916) 923-5447 12055 1 MR. BIRMINGHAM: Let's look at the data that are 2 contained in 12-A Replacement, Department of Interior 3 exhibit. Let's take, for example, the 12/29/98 data. The 4 Ryde survival index is .36? 5 DR. KJELSON: That's correct. 6 MR. BIRMINGHAM: And the Georgiana Slough survival 7 index is .26? 8 DR. KJELSON: Yes. 9 MR. BIRMINGHAM: Let' look at the 12/1/98 data. The 10 12/1/98 data shows that the Ryde survival index is .71? 11 DR. KJELSON: Yes. 12 MR. BIRMINGHAM: And the Georgiana Slough survival 13 index is .17? 14 DR. KJELSON: Yes. 15 MR. BIRMINGHAM: Now, Dr. Kjelson, you would agree that 16 the difference between the Ryde survival index and Georgiana 17 Slough survival index for 12/29/98 when compared to the 18 difference for the data collected in 12/1/98 is a difference 19 in order of magnitude? 20 DR. KJELSON: It is quite different; there is no 21 question about that. 22 MR. BIRMINGHAM: So something happened to these fish in 23 early December 1998 that affected the survival index or 24 Georgiana/Ryde ratio in a significant way; is that correct? 25 DR. KJELSON: Yes. Particularly relating to our CAPITOL REPORTERS (916) 923-5447 12056 1 ability to represent what the true survival was. There is a 2 lot of variability around that. There is imprecision and 3 probably some biases, too. 4 MR. BIRMINGHAM: The one thing there isn't much 5 variability in is the level of exports? 6 DR. KJELSON: That's correct. 7 MR. BIRMINGHAM: So, there was something that happened 8 in December 1998 that was unrelated to exports that had a 9 significant affect on the Georgiana/Ryde survival ratio? 10 DR. KJELSON: Yes. I think Mr. White and myself have 11 discussed that, and we acknowledge that. There are other 12 factors that influence other than export. 13 MR. BIRMINGHAM: In going back, again, in doing your 14 statistical analysis, linear regression analysis, that 15 resulted in Department of the Interior Exhibit 12-AA, what 16 analysis did you do to eliminate the confounding factors 17 that resulted in the difference between the 12/29/98 18 Georgiana/Ryde ratio and the 12/1/98 Georgiana/Ryde ratio? 19 DR. KJELSON: Well, you know, the analysis we did. We 20 did regression analysis. Based on some of the earlier 21 comments we made, we can eliminate a considerable part of 22 the variability, and that is why we have uncertainty in our 23 understanding. 24 MR. BIRMINGHAM: I believe your testimony -- and I 25 don't want to misrepresent it, Dr. Kjelson. I believe your CAPITOL REPORTERS (916) 923-5447 12057 1 testimony earlier was in order to eliminate the confounding 2 factors that affect the Georgiana Slough survival index and 3 the Ryde survival index, you'd use the ratio? 4 DR. KJELSON: Yes. But wait a minute. You misstated 5 or certainly misunderstood me to say using a ratio will 6 eliminate all variability. That simply can't happen. This 7 is trying to eliminate at least some of the variability and 8 I gave some examples. That doesn't mean that it was not 9 going to have other variability. It is evident in the 10 figures. 11 MR. BIRMINGHAM: You said you didn't know where I was 12 going; let me explain. 13 You said that in order to eliminate or as much as you 14 can -- I don't want to misrepresent anything, Dr. Kjelson, 15 and your testimony is very important. 16 In order to eliminate the variables that affect the 17 Ryde survival index and Georgiana survival index 18 differently, you rely on the ratio for your statistical 19 analysis. 20 Do I understand that correctly? 21 DR. KJELSON: No, you do not. I just stated that the 22 ratio eliminates some of the variability, we believe, 23 probably imperfect, but not all of it. You just made a 24 statement that the ratio eliminates all, and that is not 25 correct. CAPITOL REPORTERS (916) 923-5447 12058 1 MR. BIRMINGHAM: I don't believe that is my statement. 2 I don't want to argue with you, Dr. Kjelson. In order to 3 eliminate some of the confounding factors that affect the 4 Ryde survival index and Georgiana Slough survival index 5 differently, you used the ratio? 6 DR. KJELSON: Yes. In particularly over a period of 7 years. I don't want you to believe that just one data point 8 is the only thing in this story. 9 MR. BIRMINGHAM: Let's go to the next step. In 10 conducting your analysis what did you do to eliminate the 11 confounding factors that affect the Georgiana/Ryde ratio 12 differently? Did you do any analysis? 13 MR. WHITE: I guess we got two different approaches to 14 eliminating effects of confounding factors or sources of 15 variation. On the one hand you can try to minimize those 16 sources of variation when you set up your experiment. And 17 as I think everyone would agree, there is -- there are 18 limitations on the extent to which you can control the flows 19 and other conditions in the Delta during the course of a 20 trail. 21 So, given that limitation on the ability to control the 22 experimental environment, to gravitate toward the approach 23 of paired releases and examination of ratio. We have done 24 that, and I believe everyone fairly well understands that. 25 You are not eliminating the sources of variation, but you CAPITOL REPORTERS (916) 923-5447 12059 1 are putting two groups of fish out there that are more or 2 less affected in a similar manner. That is the best you can 3 do. 4 The other way to look at it is after you collected 5 your data I hear you asking if there is some way you can 6 manipulate that data to extract extraneous affects or 7 affects of confounding factors. I don't believe there is 8 any attempt to do that in this analysis at all. 9 MR. BIRMINGHAM: In the analysis presented for 10 Department of Interior Exhibit 12-AA Replacement? 11 MR. WHITE: That's right. 12 MR. BIRMINGHAM: To determine whether or not there is a 13 statistically significant relationship between exports and 14 salmon smolt survival for fish in the Central Delta, you 15 compared average export rates with the Georgiana/Ryde ratio? 16 DR. KJELSON: That's right. 17 MR. BIRMINGHAM: The reason that you used the 18 Georgiana/Ryde ratio is to eliminate in part, Dr. Kjelson, 19 in part, the confounding factors that affect the survival 20 index for Ryde and the survival index for Georgiana Slough? 21 DR. KJELSON: Yes. 22 MR. BIRMINGHAM: I believe the answer to that question 23 was yes. 24 Now, when we compare the .72 Georgiana/Ryde ratio for 25 12/29/98 with the .24 Georgiana/Ryde ratio for 12/1/98, CAPITOL REPORTERS (916) 923-5447 12060 1 there is something that happened in the Delta that caused 2 the significant variation between those two Georgiana/Ryde 3 ratio calculations? 4 DR. KJELSON: That's right, although I hesitate for you 5 to use the word "significant." 6 MR. BIRMINGHAM: Well, there is a difference. We have 7 established I think, Dr. Kjelson, that the difference is 8 about three times? 9 DR. KJELSON: I am sorry, please repeat. Yes, there is 10 -- of the data we have, there is about a threefold flow 11 difference, acknowledging the fact that this is simply an 12 estimate of survival with all the variability, and the true 13 value may be .25, maybe .50, or whatever. 14 MR. BIRMINGHAM: So you don't know what the true value 15 is for the 12/29/98 Ryde/Georgiana ratio? 16 DR. KJELSON: I know what the true value is based on 17 our analysis. I am talking about that group of fish, how 18 many exactly survived at Chipps Island. 19 MR. BIRMINGHAM: And in preparing Department of the 20 Interior Exhibit 12-A your staff did nothing to tease out 21 the confounding factors that resulted in this threefold 22 difference between the Georgiana/Ryde ratio you for 12/29/98 23 and the same ratio for 12/1/98? 24 DR. KJELSON: No, we didn't. 25 C.O. BROWN: Mr. Birmingham, Ms. Forster has a question CAPITOL REPORTERS (916) 923-5447 12061 1 if you would so permit. 2 MEMBER FORSTER: While you were taking a moment ago, I 3 wanted to ask you, the last question Mr. Birmingham asked 4 you was: You did not nothing to tease out the 5 difference? And why wouldn't you go and do that further to 6 get some better knowledge of what is going on? Do we just 7 -- I am not going to assume. Go ahead. 8 DR. KJELSON: The simple answer is it is very difficult 9 to understand. Normally, there is variability in our 10 ability to estimate a survival, primarily due to lack of 11 understanding of the whole system. We will have normal 12 variability in the data, and we can't control everything. 13 And it is difficult to have enough data to actually tease 14 out or correct that. We certainly would try to do that if 15 we felt we could. 16 There may be some other methods that we're not aware of 17 to do it. 18 MR. WHITE: I think it would be fair to say this is 19 kind of an ongoing effort to figure these things out, and 20 because things haven't been done to date doesn't mean they 21 aren't worth attempting in the future. 22 C.O. BROWN: Thank you. 23 Mr. Birmingham. 24 MR. BIRMINGHAM: Dr. Kjelson, Mr. White, I have placed 25 on the overhead projector a plot of data. And, Dr. Kjelson, CAPITOL REPORTERS (916) 923-5447 12062 1 I would ask -- this has been marked for identification as 2 Westlands Exhibit 114. I would ask you to take a few 3 moments and look at the scatter plot on 114 and compare it 4 with the data for the Ryde survival index contained in 5 Department of Interior Exhibit 12-A Replacement. 6 MR. WHITE: We have not seen this figure before. I 7 think we need a few minutes to look at the table and make 8 some judgment about it. 9 MR. BIRMINGHAM: Sure. 10 C.O. BROWN: Go ahead. 11 Mr. Campbell. 12 MR. CAMPBELL: I would like to inquire whether this 13 exhibit was submitted on November 23rd, 1998, the deadline 14 for submission of exhibits for Phase VI? 15 MR. BIRMINGHAM: No, it was not, Mr. Brown. And, in 16 fact, I don't believe there is any requirement that exhibits 17 that are introduced during cross-examination of a witness be 18 submitted by the deadline. In fact, it would be impossible 19 to anticipate what exhibits you will need to cross-examine 20 before the opposing party has submitted the testimony. 21 C.O. BROWN: Mr. Campbell. 22 MR. CAMPBELL: Wouldn't, given that explanation, 23 wouldn't the exhibit more appropriately be introduced during 24 that party's rebuttal case? 25 C.O. BROWN: Mr. O'Laughlin. CAPITOL REPORTERS (916) 923-5447 12063 1 MR. O'LAUGHLIN: No, it wouldn't be, in response to 2 that question. 3 C.O. BROWN: Thank you, Mr. O'Laughlin, I was searching 4 for that. 5 MR. O'LAUGHLIN: We have been through this. I don't 6 know why counsel is stalling on this point. Throughout the 7 entire proceeding we have had new introductions, exhibits 8 such as this which have been taken, introduced as evidence, 9 extrapolated from them for points of cross-examination. So 10 it is perfectly proper, and I would ask that the Chair 11 overrule. 12 C.O. BROWN: I agree. 13 Proceed, Mr. Birmingham. 14 MR. BIRMINGHAM: The other thing I observed, for Mr. 15 Campbell's benefit -- 16 C.O. BROWN: Are you going to talk me out of the 17 decision here? 18 MR. BIRMINGHAM: Have you had a chance to look at these 19 data? 20 DR. KJELSON: Yes, we have. 21 MR. BIRMINGHAM: These data contain data collected in 22 December 1998; isn't that correct, Westlands Water District 23 Exhibit 114? 24 DR. KJELSON: Yes. 25 MR. BIRMINGHAM: So, it would have been impossible for CAPITOL REPORTERS (916) 923-5447 12064 1 me to produce a document that looks like Exhibit 114 prior 2 to your collection of the December 1998 data in November 3 1998? 4 MR. NOMELLINI: I object. 5 C.O. BROWN: Mr. Nomellini. 6 MR. NOMELLINI: You just ruled. You just ruled to 7 eliminate this kind of dialogue. I think the use of these 8 exhibits has been ruled to be appropriate and to argue about 9 it further -- 10 MR. BIRMINGHAM: I will withdraw the question. 11 C.O. BROWN: Thank you, Mr. Birmingham. 12 MR. BIRMINGHAM: Dr. Kjelson, Mr. White, you have had 13 an opportunity to compare Westlands Water District Exhibit 14 114 with the data contained for the Ryde survival index 15 contained in Department of Interior Exhibit 12-A 16 Replacement? 17 DR. KJELSON: Yes. We made a quick review of it. We 18 noticed you left off one data point, at least one. 19 MR. BIRMINGHAM: The one data point that we left off 20 that you have identified is the data point collected on 21 12/2/93; is that correct? 22 DR. KJELSON: Yes. 23 MR. BIRMINGHAM: That Ryde survival index was 1.91; is 24 that correct? 25 DR. KJELSON: Yes. CAPITOL REPORTERS (916) 923-5447 12065 1 MR. BIRMINGHAM: So, given the scales that are 2 contained on Westlands Water District 114, it would have 3 been impossible to plot that 12/2/93 data point? 4 DR. KJELSON: Yes. 5 MR. BIRMINGHAM: In fact, using the scales contained on 6 Department of Interior Exhibit 12-AA Replacement, it would 7 have been impossible to plot that 12/2/93 data point for the 8 Ryde survival index? 9 DR. KJELSON: Well, that is true. It doesn't have Ryde 10 survival index alone, also. 11 MR. BIRMINGHAM: So, Westlands Water District Exhibit 12 114 is a scatter plot of the Ryde survival index compared to 13 exports; is that correct, Dr. Kjelson, with the exception of 14 the one data point we have identified collected on 12/2/93? 15 DR. KJELSON: Let me restate it. Your exhibit that you 16 show on the board here is representative of the data on 17 Exhibit 12-A Replacement with the exception of one point, 18 that is correct. 19 MR. BIRMINGHAM: Have you done any kind of regression 20 analysis to determine if there is a statistically 21 significant relationship between exports and the Ryde 22 survival index? 23 DR. KJELSON: My staff did plot that scatter diagram. 24 And to my knowledge, there is no relationship between its R 25 square value. It is quite low. CAPITOL REPORTERS (916) 923-5447 12066 1 MR. BIRMINGHAM: Dr. Kjelson, I am going to ask you to 2 take a look at what I am placing up on the overhead 3 projector, Westlands Water District Exhibit 115, and compare 4 the data contained in Westlands Water District Exhibit 115 5 with the data contained for the Georgiana Slough survival 6 index in Interior Exhibit 12-A Replacement. 7 Have you had an opportunity to compare the data 8 contained on Westlands Water District Exhibit 115 with the 9 data contained in Department of Interior Exhibit 12-A 10 Replacement for Georgiana Slough survival index? 11 DR. KJELSON: Yes. We also made the same plot. I 12 notice you have used a very wide axis on the left for the 13 survival, for the survival index. 14 MR. BIRMINGHAM: The data that are contained in 15 Westlands Water District 115 -- let me state the question 16 differently. 17 Westlands Water District Exhibit 115 is a scatter plot 18 of the data comparing exports with the Georgiana Slough 19 survival index contained in Department of Interior Exhibit 20 12-A Replacement; is that right, Dr. Kjelson? 21 DR. KJELSON: That's correct. 22 MR. BIRMINGHAM: Did your staff conduct a regression 23 analysis to determine whether or not there is any kind of 24 statistically significant relationship between exports and 25 the Georgiana Slough survival index? CAPITOL REPORTERS (916) 923-5447 12067 1 DR. KJELSON: Yes. We calculated a linear regression. 2 To my knowledge, it was not significant. The R square was 3 about .25. Did show a slight decrease in survival as 4 exports increased. It was a trend; that is about all we 5 would say. 6 MR. BIRMINGHAM: So, you would agree that looking at 7 the data comparing exports with the Georgiana Slough 8 survival index, there is no statistically significant 9 relationship between exports and Georgiana Slough survival? 10 DR. KJELSON: Looking at the data, I could see a very 11 rough trend downward. But you are correct, we did not see 12 -- to my knowledge, we did not see a statistically 13 significant relationship. 14 MR. BIRMINGHAM: I have no further questions. 15 C.O. BROWN: Thank you, Mr. Birmingham. 16 Mr. Nomellini. 17 ---oOo--- 18 CROSS-EXAMINATION OF DEPARTMENT OF THE INTERIOR AND 19 DEPARTMENT OF FISH AND GAME 20 BY CENTRAL DELTA PARTIES 21 BY MR. NOMELLINI 22 ---oOo--- 23 MR. NOMELLINI: Mr. Chairman, Members of the Board, 24 Dante John Nomellini for Central Delta Parties. 25 Mr. Birmingham, could you leave those overheads? CAPITOL REPORTERS (916) 923-5447 12068 1 MR. BIRMINGHAM: Sure. 2 MR. NOMELLINI: If we start with Westlands 115? 3 MR. BIRMINGHAM: Yes. 4 MR. NOMELLINI: Mr. Kjelson, I recognize you didn't 5 have a chance to look at these before, but it appears that 6 some of the data from Exhibit 12-A is not shown on that 7 particular exhibit and perhaps, at least, it doesn't appear 8 to me? 9 DR. KJELSON: I think it is shown on this one, but not 10 on the previous one with Ryde. 11 MR. NOMELLINI: Perhaps you can help me. If you go to 12 Government Exhibit 12-A Replacement, and the Georgiana 13 Slough survival index for 1/4/95, that would have been .06; 14 is that correct? 15 DR. KJELSON: Yes. I think he has that on the -- 16 MR. NOMELLINI: That would be right on axis between ten 17 and 12? 18 DR. KJELSON: Yes. 19 MR. NOMELLINI: How about for 12/4/97, which would be 20 .03? 21 DR. KJELSON: It's probably that one to the right, up. 22 It seems like it may be a little high. I am not sure. 23 MR. NOMELLINI: So, you think the smaller number would 24 be farther up on the graph? 25 DR. KJELSON: Let me -- I think he may have -- that two CAPITOL REPORTERS (916) 923-5447 12069 1 down in the lower right-hand corner may have been 2 transposed. He may have them mixed up. 3 MR. NOMELLINI: So, your data is not necessarily 4 accurately reflected on Westlands Exhibit 115, is it? 5 DR. KJELSON: Not that I can tell, but we haven't had 6 much time. 7 MR. NOMELLINI: Let's go to Westlands Exhibit 113 and 8 I'll put it on. 9 If we look at -- I will represent to you that is 10 Westlands Exhibit 113. And if we look at the two dots on 11 the left, the first two dots, shouldn't the upper dot be to 12 the right of the lower dot rather than to the left of the 13 lower dot? 14 DR. KJELSON: That's correct. And it is properly shown 15 on our Exhibit 12-AA Replacement. 16 MR. NOMELLINI: It would appear that with regard to 17 Westlands 113 that the plot does not accurately reflect your 18 data; is that correct? 19 DR. KJELSON: Not exactly. 20 MR. NOMELLINI: Let's leave Westlands exhibits alone, 21 and let's go to your Exhibit 12-AA. Recognizing the 22 difficulty with analyzing fishery data and coming to firm 23 conclusions, let's assume that the data point for 12/29/98 24 was eliminated because it's spread too far from some line. 25 Would it not be true that approaching this data CAPITOL REPORTERS (916) 923-5447 12070 1 statistically the way that you have done it, you would still 2 get a line that decrease as export rates increase? 3 DR. KJELSON: I generally believe that to be the case, 4 but the slope would be a little shallower. The line would 5 drop down, although I don't have the exact equation, so I am 6 a little hesitant to draw a lot of conclusions from that. 7 MR. NOMELLINI: With regard to the impact of export 8 pumps on fish mortality, how do the export pumps impact fish 9 mortality? 10 DR. KJELSON: There may be a variety of ways, but the 11 one that comes to mind, and Mr. White has, I think, 12 expressed it more eloquently in his testimony, most likely 13 it is due to the change in hydrology in the Central Delta 14 that would occur with a change in export. 15 MR. NOMELLINI: Let me break it down. 16 In your opinion, do the state or federal export pumps 17 kill fish that get beyond the screens and enter into the 18 turbines of the pumps? 19 DR. KJELSON: Yes. 20 MR. NOMELLINI: Do they or do you know whether or not 21 they kill any life form of salmon in that manner? 22 DR. KJELSON: Certainly, the salvage data would suggest 23 that and applicable estimation of loss that would occur. 24 MR. NOMELLINI: Would that apply to winter-run 25 salmon? CAPITOL REPORTERS (916) 923-5447 12071 1 DR. KJELSON: Yes, it probably would. 2 MR. NOMELLINI: And would it apply to fall-run salmon? 3 DR. KJELSON: Yes. 4 MR. NOMELLINI: Would it apply to late full-run 5 salmon? 6 DR. KJELSON: Yes. 7 MR. NOMELLINI: Would it apply to spring-run salmon? 8 DR. KJELSON: Yes. 9 MR. NOMELLINI: Would it apply to steelhead? 10 DR. KJELSON: Yes. 11 MR. NOMELLINI: All right. And would it apply to 12 striped bass? 13 DR. KJELSON: Yes. 14 MR. NOMELLINI: Delta smelt? 15 DR. KJELSON: Yes. 16 MR. NOMELLINI: Splittail? 17 DR. KJELSON: Yes. 18 MR. NOMELLINI: Long fin smelt? 19 DR. KJELSON: Yes. 20 MR. NOMELLINI: So, one of the impacts of the pumps for 21 the Delta smelt is for the fish that get by the screens is 22 the fish could be killed by the pump itself; is that 23 correct? 24 DR. KJELSON: Yes. 25 MR. NOMELLINI: If a fish survived the pumps, that fish CAPITOL REPORTERS (916) 923-5447 12072 1 could be exported to a different environment, too, would 2 that not be possible also? 3 DR. KJELSON: You mean placed in aqueducts and 4 survive? 5 MR. NOMELLINI: Correct. 6 DR. KJELSON: Yes. 7 MR. NOMELLINI: In fact, striped bass are in San Luis 8 Reservoir and various stages of the aqueduct because some 9 life form of striped bass survived going through the pumping 10 plant and ending up in a different environment? 11 DR. KJELSON: Yes. 12 MR. NOMELLINI: Is that generally true with all regard 13 to all the fish species that we talked about that could be 14 killed by the pumps? 15 DR. KJELSON: There is a great diversity of effect of 16 the pumps. Generally, the smaller the fish, more likelihood 17 that they might survive that. Although small larval fish 18 are also very sensitive and easily killed. But it varies 19 with the species. 20 As you know, salmon are a cold water fish. That can 21 influence their survival in the long term versus something 22 like striped bass which could handle higher temperatures. 23 Considerable variability as to by species and size class, 24 year class, size class of the species or lifestage as to the 25 effects of pumping. CAPITOL REPORTERS (916) 923-5447 12073 1 MR. NOMELLINI: We wouldn't expect salmonids to do very 2 well in an environment in the aqueduct such as in the 3 aqueduct or San Luis? 4 DR. KJELSON: No. 5 MR. NOMELLINI: And then, of course, that would not be 6 on their normal migratory path, would it? 7 DR. KJELSON: No. 8 MR. NOMELLINI: So, if they did do well or survive, 9 they wouldn't find their spawning grounds or their -- they 10 wouldn't find their way to the ocean? 11 DR. KJELSON: That's correct. 12 MR. NOMELLINI: We have identified two impacts, as I am 13 writing down the list of the export pumps. And would a 14 third one be fish being killed in the screens or associated 15 with the salvage operation of the pumps? 16 DR. KJELSON: Yes. Certainly, there is a loss that 17 occurs in the salvage and trucking process. 18 MR. NOMELLINI: Would that be generally true with 19 regard to all the fish species that we talked about that 20 would get killed by the turbines or the pumps? 21 DR. KJELSON: Yes. With the qualifications, some do 22 better in a salvage trucking process than others. 23 MR. NOMELLINI: The degree of impact would vary 24 depending on the type of fish and presumably the size? 25 DR. KJELSON: Yes. CAPITOL REPORTERS (916) 923-5447 12074 1 MR. NOMELLINI: We have loss in the salvage that is 2 related to the pumps. And we have heard testimony about 3 predators using the Clifton Court Forebay as an opportunity 4 to attain food. 5 Do the pumps affect the predation that occurs in 6 Clifton Court Forebay? 7 DR. KJELSON: Been some time that I have evaluated 8 that, but there probably is a difference in the predation 9 levels depending on what is occurring at the pumps and what 10 predation is occurring at Clifton Court Forebay. I am a 11 little hesitant to get any further than that. 12 MR. WHITE: I would add to the extent that the Banks 13 pumping plant removes water from forebay and when the radial 14 gates are open forebay refills and new fish are drawn into 15 forebay, and that, to me, seems to be the connection between 16 the pumping and the predation in forebay. 17 MR. NOMELLINI: Let's go back to the three easy ones: 18 Killing fish in the turbines or pumps, sending them to a 19 different environment, and the loss in salvage. Those three 20 impacts, focusing on those three, would you expect that 21 those impacts to increase as the rate of pumping increases? 22 DR. KJELSON: Well, that is, again, quite a complicated 23 question. You have to make assumptions as to availability 24 of numbers of fish in the Delta available to be affected by 25 entrainment or pumping. CAPITOL REPORTERS (916) 923-5447 12075 1 But I would look to our Exhibit 12-A Replacement, and 2 one might see a general -- one sees a general trend between 3 higher exports, seen a greater number of tagged fish 4 recovery from Georgiana Slough, or for that matter Ryde, 5 when the pumping is higher than it is when it is lower, 6 although we have a limited amount of data to draw that 7 conclusion. 8 MR. NOMELLINI: Calling upon your experience as a 9 biologist and you're a fishery biologist, are you not? 10 DR. KJELSON: Yes. 11 MR. NOMELLINI: Forget about this statistical 12 significance. In your opinion, would a higher level of 13 export pumping kill more fish in the turbines than a lower 14 level of export pumping? 15 DR. KJELSON: I don't know. There is a lot of 16 qualifications you could put on that. I'm not very familiar 17 with pumping at 4,000 versus pumping at 10,000, as to the 18 specific response of a fish when they enter the turbine. 19 There may be a difference. 20 MR. NOMELLINI: Would your answer be the -- 21 Mr. White, go ahead. 22 MR. WHITE; I guess I would add that the density of 23 fish in water being pumped remains constant, then the 24 number killed would increase as the value of pumping 25 increased. CAPITOL REPORTERS (916) 923-5447 12076 1 MR. NOMELLINI: So that in any given situation, pumping 2 two acre-feet of water would kill more fish than pumping one 3 acre-foot of water. Is that your testimony, Mr. White? 4 MR. WHITE: Yes. 5 MR. NOMELLINI: Mr. Kjelson, on that same question, 6 what is your opinion? Given the same exact density of fish 7 in water, would pumping two acre-feet of water kill more 8 fish than one acre-foot? 9 DR. KJELSON: Yes. 10 MR. NOMELLINI: And would your testimony be the same as 11 to that example, pumping two acre-feet versus one acre-foot, 12 with regard to the impact of moving fish into a different 13 environment, given the density of fish in the water being 14 the same? 15 DR. KJELSON: Yes, generally. 16 MR. NOMELLINI: Mr. White. 17 MR. WHITE: I agree with that. 18 MR. NOMELLINI: Would the same be true with regard to 19 the salvage? 20 DR. KJELSON: Yes. 21 MR. WHITE: Yes. 22 MR. NOMELLINI: With regard to predation at the 23 forebay, is one of the impacts of export pumping drawing 24 fish into areas of predation that would be higher than had 25 they remained undisturbed in their particular migration CAPITOL REPORTERS (916) 923-5447 12077 1 route? 2 MR. WHITE: I can't say my knowledge is complete on 3 this. In Clifton Court Forebay predation, predator numbers 4 are known to be high. Predators tend to accumulate in the 5 forebay. I really don't have any information on the 6 relative rate at which predators in the forebay consume fish 7 compared to the rate predators outside the forebay consume 8 fish. I don't think there would be any difference. 9 MR. NOMELLINI: Mr. Kjelson, do you agree with that? 10 DR. KJELSON: Generally. But, again, there are a lot 11 of assumptions you have to make: the density of Clifton 12 Court versus outside. I think you are aware that in past 13 years the interagency program has put test fish or tagged 14 fish, for example, salmon, in the Clifton Court Forebay and 15 generally found apparently a fairly high rate of loss as 16 they pass through the forebay. 17 MR. NOMELLINI: Let's focus in on your salmon 18 experiment, and let's take salmon smolt that would be 19 migrating down the Sacramento River with a given level of 20 export pumping. And my question to you is: Would a higher 21 rate of pumping, export pumping, be expected to draw more of 22 those Sacramento River fish into the interior of the Delta? 23 DR. KJELSON: You are getting into an area of hydrology 24 that I feel a little hesitant to dwell in. My general 25 understanding is that exports do not vary the amount of flow CAPITOL REPORTERS (916) 923-5447 12078 1 coming off the Sacramento through either Cross Channel or 2 Georgiana Slough. However, based, as you can tell from our 3 data, fishery released at Ryde in some way get to the 4 pumping facilities; and there certainly is times with high 5 pumping where you have a net reverse flow in the western San 6 Joaquin and flow moving through Three Mile. But, again, I 7 hesitate to go into any more detail on exact hydrological 8 description of what happened with different rates of 9 pumping. 10 MR. NOMELLINI: Mr. White, do you agree with that 11 testimony? 12 MR. WHITE: I certainly agree that neither Dr. Kjelson 13 or I are experts on the hydrodynamics of the Delta. 14 The experts we work with tell us that pumping -- the 15 pumping rate does not determine the proportion of the 16 Sacramento River flow that goes in Georgiana or the Delta 17 Cross Channel, as Dr. Kjelson has suggested. But what we 18 presume must happen, therefore, as the pumping rate 19 increases, the amount of water that could be drawn through 20 Three Mile Slough or from the Sacramento into the San 21 Joaquin near Sherman Island and that portion of the Delta 22 would increase. 23 MR. NOMELLINI: Given that testimony, is there a reason 24 from a salmon smolt survival standpoint, and again talking 25 about Sacramento River salmon smolt, to keep the Delta Cross CAPITOL REPORTERS (916) 923-5447 12079 1 Channel closed at certain times of the year? 2 DR. KJELSON: Yes. Based on my own experimentation, we 3 found that when the Cross Channel is open, survival fish 4 released above there is less than fish released below the 5 open Cross Channel. 6 MR. NOMELLINI: Is that in any way related to the 7 amount of export pumping? 8 DR. KJELSON: Based on our earlier statements, I don't 9 believe we have shown any relationship. 10 MR. NOMELLINI: The testimony that you submitted, Mr. 11 Kjelson, includes Exhibit 12-B; is that correct? 12 DR. KJELSON: Yes. 13 MR. NOMELLINI: Calling your attention to Page 6 of DOI 14 12-B and looking at Table 1, is it correct that the numbers 15 in the parens are the number of fish actually recovered in 16 the sampling? 17 DR. KJELSON: Yes, that is correct. 18 MR. NOMELLINI: Focusing on Georgiana Slough, the 19 released data 12/2/93, it shows five. Does that mean that 20 only five -- strike "only." Does that mean that five fish 21 were captured in the trawling at Chipps Island? 22 DR. KJELSON: Yes. 23 MR. NOMELLINI: And likewise for December 5th, 1994, 24 four fish? 25 DR. KJELSON: That is correct. CAPITOL REPORTERS (916) 923-5447 12080 1 MR. NOMELLINI: And January '95, four fish? 2 DR. KJELSON: Yes. 3 MR. NOMELLINI: And January 10th, five fish? 4 DR. KJELSON: Yes. 5 MR. NOMELLINI: Is this representative of the number of 6 fish that we have to work with to draw these fishery 7 conclusions? Or is this unusually high or low? 8 DR. KJELSON: Bear with me a minute. I just want to 9 check a table that I have that has a record, a past record, 10 of recoveries from all our data. 11 The variability between our number recovered at Chipps 12 Island, based on the question you asked, varies from as 13 little as two fish to a total of 48 fish. And as you might 14 suspect, the lesser number are from the Georgiana Slough 15 release compared to the Ryde release. 16 MR. NOMELLINI: Do you weight in any way the sampling 17 results by way of the number of fish actually included in 18 the sample? 19 DR. KJELSON: I am not sure I understand your 20 question. Are you asking -- 21 MR. NOMELLINI: You haven't done that with regard to 22 government Exhibit 12-AA Replacement, have you? 23 DR. KJELSON: I am not sure what you are asking. Are 24 you asking how we calculate the index and then the 25 survival? What is considered? CAPITOL REPORTERS (916) 923-5447 12081 1 MR. NOMELLINI: Let's go back a little bit. 2 Do the number of fish captured in a particular sampling 3 enter into the calculation of the survival or mortality in 4 terms of the number of fish included in the sample? I 5 understand you use them in a ratio. If we had one sample 6 that had only one fish captured, would you throw that out 7 because you didn't have enough information? 8 DR. KJELSON: No. We include all the fish sampled 9 after the release up to a period of time. And generally 10 that is three or four weeks or even longer. 11 MR. NOMELLINI: Would you consider data based on 12 capture of one fish less significant than data based on the 13 capture of 37 fish? 14 DR. KJELSON: I think my general answer would be that 15 we utilize all the data, all the fish captured. Certainly, 16 that brings in the fact that you get lesser numbers of fish 17 may bring more variability into it. If there is a lot of 18 fish coming by that have survived and you can collect a lot 19 of them, there is less variability than if for some reason 20 very few survive and you have to capture just that one or 21 two that made it. We expand for time sampled and width of 22 river. That is all in the expansion factors that are -- 23 basically, the width of the river is constant. The time 24 sampled varies some. I hope that helps. 25 C.O. BROWN: How much more time do you need, Mr. CAPITOL REPORTERS (916) 923-5447 12082 1 Nomellini? 2 MR. NOMELLINI: I am going to need about a half hour 3 longer. I can't finish before we eat; we will starve to 4 death. 5 C.O. BROWN: Would this be a good time to break for you 6 then? 7 MR. NOMELLINI: Be a good time. 8 MR. WHITE: Can I make one point in response to the 9 last question? 10 C.O. BROWN: You may. Yes, go ahead. 11 MR. WHITE: In essence, we assume that if a group -- 12 two groups of fish were released, and from one group 37 are 13 recovered and from one group one is recovered, that that is 14 a reflection of a difference in the survival of those two 15 groups of fish. 16 MR. NOMELLINI: I will follow up after lunch. 17 C.O. BROWN: Mr. Birmingham. 18 MR. BIRMINGHAM: Mr. Brown, since it is unlikely that I 19 will be here when the Department of the Interior concludes 20 its case, I wonder if I could now move for admission of 21 Westlands 113, 114, 115 and 116 so that if there is any 22 objection to the admission of those exhibits I can address 23 the objections now? And I understand that the admission of 24 116 would be conditioned upon my delivery of 20 copies of 25 the exhibit to the State Board this afternoon and CAPITOL REPORTERS (916) 923-5447 12083 1 distribution of copies to the parties. 2 C.O. BROWN: Are there objections to the admission? 3 MR. NOMELLINI: If they would be admitted solely for 4 the purpose of reflecting the testimony, I would have no 5 objection. But I don't think they accurately reflect the 6 data and, therefore, I would like them conditionally entered 7 into the record with the notation that the data itself has 8 not been verified. 9 C.O. BROWN: Is that all right with you, Mr. 10 Birmingham? 11 MR. BIRMINGHAM: Well, I think that the record does 12 speak. Dr. Kjelson testified that generally the data are 13 correct. There are a couple anomalies where the figures may 14 have been transposed. 15 C.O. BROWN: I think at least three, was it not? 16 MR. BIRMINGHAM: Yes. 17 If that is what Mr. Nomellini is talking about, I have 18 no objection to that. 19 C.O. BROWN: That is what you're talking about? 20 MR. NOMELLINI: I would like it noted that they're 21 obviously not reflecting the data. 22 C.O. BROWN: That is noted. 23 Mr. Jackson. 24 MR. JACKSON: I would object to the entrance of all 25 because it is clear that they are incorrect. And I don't CAPITOL REPORTERS (916) 923-5447 12084 1 believe that the record should have incorrect data in there, 2 so I would object to them going in at all. 3 C.O. BROWN: Thank you, Mr. Jackson. 4 Mr. Campbell. 5 MR. CAMPBELL: I object to their introduction on the 6 grounds that they lack -- join in the objections Mr. 7 Nomellini and Mr. Jackson made. I also object on the 8 grounds that they lack foundation. We don't know who 9 created them, how they were created, whether they are valid 10 or not valid. 11 I'd also like to make a backup objection. Even if they 12 are admitted into the record, they are hearsay and cannot 13 support the basis of a finding by this Board. 14 C.O. BROWN: Mr. Birmingham. 15 MR. BIRMINGHAM: I think the appropriate foundation has 16 been laid. Dr. Kjelson did testify that generally, with the 17 exceptions that were identified on the record, they do 18 accurately reflect what is in Exhibit 12-A Replacement. And 19 based upon his examination of them, I think the appropriate 20 foundation has been laid. He is able to identify them as 21 scatter plots and they represent what is in his data with 22 the limited exceptions. 23 I think the record, without the admission of these 24 exhibits, the record would be completely meaningless. There 25 is a lot of discussion about these exhibits. And I agree CAPITOL REPORTERS (916) 923-5447 12085 1 with Mr. Campbell that, because they are hearsay, they could 2 not serve as the basis of any finding by the Board, but they 3 certainly would aid in the understanding of the record. 4 C.O. BROWN: Mr. Jackson. 5 MR. JACKSON: I think Mr. Birmingham has accurately 6 reflected the facts. They are hearsay. They cannot serve 7 as anything that the Board can rely on to make a decision. 8 They are factually incorrect. The statement that Dr. 9 Kjelson made was made after only being able to look at these 10 for a short period of time. I do agree that the record 11 without them will make the cross-examination meaningless. 12 But I think that is the fact; it is meaningless. 13 C.O. BROWN: Thank you, Mr. Jackson. 14 Thank you all. I am ready to rule on this. 15 The exhibits will be allowed, and they will be given 16 the weight of the evidence and the accuracy, I think, is 17 duly in the record as to the points that were off. On that 18 basis they will be admitted into evidence. 19 MR. BIRMINGHAM: Thank you very much. 20 C.O. BROWN: There is another note that I have here 21 from Ms. Whitney. 22 MS. LEIDIGH: Exhibit 116 was the motion to admit, it 23 was to admit conditionally on Mr. Birmingham providing 24 copies for everybody this afternoon. 25 C.O. BROWN: Mr. Birmingham so stated. CAPITOL REPORTERS (916) 923-5447 12086 1 MR. BIRMINGHAM: That is my understanding. We will 2 deliver 20 copies to the Board this afternoon and distribute 3 copies to the parties by mail. 4 C.O. BROWN: That's correct. 5 The briefs for Phase II-A are due on Monday, April 19th 6 by 5:00 p.m., since the last Phase II-A transcript was 7 received on 3/18/99. Any questions on that? 8 MR. GODWIN: April 19th? 9 C.O. BROWN: Yes, April 19th, Monday, 5:00 p.m. 10 C.O. STUBCHAER: Mr. Brown, can I make a couple of 11 comments? 12 C.O. BROWN: Yes. In fact, you may have the gavel. 13 C.O. STUBCHAER: We will be adjourning today at 3:30 14 rather than four. We have an executive session scheduled. 15 Also, on Tuesday, March the 30th, we are going to take a 16 long lunch so we can attend the Chamber of Commerce 17 luncheon. So we will probably adjourn at 11:30 and 18 reconvene at 1:30. That is Tuesday, March 30th. 19 Back to you, Mr. Brown. 20 C.O. BROWN: We stand adjourned for lunch. We will 21 meet here at 1:10. 22 (Luncheon break taken.) 23 ---oOo--- 24 25 CAPITOL REPORTERS (916) 923-5447 12087 1 AFTERNOON SESSION 2 ---oOo--- 3 C.O. STUBCHAER: Call the hearing back to order. 4 Mr. Nomellini. 5 MR. NOMELLINI: I believe I was on Page 6 of -- 6 C.O. STUBCHAER: We need Mr. Kjelson. I didn't notice 7 your absence. 8 DR. KJELSON: Excuse me. 9 C.O. STUBCHAER: You are not late. I started a minute 10 early. 11 MR. NOMELLINI: -- Page 6 of Exhibit 12-B. Mr. 12 Kjelson, we had gone through a series of questions where I 13 was asking about whether or not the number of fish actually 14 sampled was factored in or weighted in any way. And I think 15 you explained that all samples are taken into consideration, 16 even where one fish was recovered; is that correct? 17 DR. KJELSON: That's correct. 18 MR. NOMELLINI: I gather from this that because of the 19 difficulty in sampling, the natural environment and the 20 species, that all information gathered is of some value; is 21 that correct? 22 DR. KJELSON: We are not sure all is of value, but we 23 get as much as we can. Then we attempt to interpret its 24 value. 25 MR. NOMELLINI: I think we had an overhead. Did CAPITOL REPORTERS (916) 923-5447 12088 1 Birmingham leave with his overheads? 2 MR. GARNER: Which overhead? 3 MR. NOMELLINI: The AA. 4 Mr. Kjelson, with regard to government Exhibit 12-AA 5 Replacement, is the attempt to develop a statistical 6 correlation, as you have done here with all of the 7 imperfections and variables, fairly typical of what is done 8 by fishery biologists in evaluating possible impacts on 9 different species? 10 DR. KJELSON: Yes. I think that is quite typical. 11 They look at a variety of analytical procedures, looking at 12 the data, try to infer truth from those, that information. 13 MR. NOMELLINI: You were -- go ahead, Mr. White. 14 MR. WHITE: If I could just add. I think it is a 15 typical situation where one does not know as much about the 16 underlying conditions as you would like to. We have had the 17 assumptions involved in using the regression analysis 18 technique laid out for us; and it is clear that these data 19 may not satisfy all of the assumptions that underlay the 20 mathematical computation of regression analyses. I think it 21 is safe to say that that is almost always the case 22 regardless of what sort of experimentation one does. 23 Because you don't know the distribution of line items 24 used or because you don't know that they are normally 25 distributed across all values of X or because they don't -- CAPITOL REPORTERS (916) 923-5447 12089 1 they may not have the same variation across all values of X, 2 doesn't mean you don't use the regression technique. I 3 think it is very common. In fact, it is almost universal. 4 There are some things about the distribution of your 5 underlying data, the underlying information, that you don't 6 know. That is why you are using statistical techniques to 7 begin with. 8 MR. NOMELLINI: In fact, in many situations fishery 9 biologists must make decisions even from data where there is 10 no significant statistical correlation; is that correct? 11 DR. KJELSON: Certainly. I would add, oftentimes we 12 may not have that, but we will attempt to use collaborative 13 data, a variety of pieces of information that may not be 14 statistically significant, but they all draw the same 15 conclusion that gives us more confidence in our decision. 16 MR. NOMELLINI: If we were to compare the significance 17 of this correlation between export pumping and salmon smolt 18 survival to the correlation between San Joaquin River flow 19 and salmon smolt survival, is it true that with regard to 20 the export pumping we have a statistically significant 21 correlation, whereas with regard to the San Joaquin River 22 flow and San Joaquin River smolt survival we do not have 23 such a correlation? 24 DR. KJELSON: I don't think that is correct because Ms. 25 Brandis, my assistant testifying in the Phase II, did CAPITOL REPORTERS (916) 923-5447 12090 1 provide a relationship between flow and survival. Although 2 I am a little hazy; it's been so long ago. But, basically, 3 she has developed a relationship between flow and survival 4 on the San Joaquin with the Head of Old River Barrier and 5 without most recently. 6 MR. NOMELLINI: Was that -- do you recall whether or 7 not that received the same statistical analysis as we dealt 8 with here? 9 DR. KJELSON: It used -- the same analysis was 10 utilized, but I am embarrassed to say I don't know the 11 details of the R squares and level of significance. 12 MR. NOMELLINI: Mr. White, do you recall that 13 testimony? 14 MR. WHITE: I do not, I am sorry. 15 MR. NOMELLINI: Do you know whether or not, Mr. 16 Kjelson, with regard to the range of flows that we're 17 talking about on the exports how that correlates to the 18 range of flows related to the San Joaquin River? 19 DR. KJELSON: Well, the range of flows in the 20 Sacramento are higher than the range of flows in the San 21 Joaquin, as far as I recall. 22 MR. NOMELLINI: Is there data missing for certain range 23 of San Joaquin River flows with regard to correlation to 24 salmon smolt survival, whereas in this one we have a range 25 of data points over the entire, zero to 10,000 cubic feet CAPITOL REPORTERS (916) 923-5447 12091 1 per second? 2 DR. KJELSON: I simply can't recall the data set and 3 range of flows. I am sorry. We certainly have a lot of 4 data in the San Joaquin with low flows, but, again, it 5 depends when we did our studies and what flow we had. I 6 think, in general, we had more data in the low flows than 7 the higher flows in the San Joaquin. 8 MR. NOMELLINI: Mr. Kjelson, calling your attention to 9 your testimony with regard to the, I think it was, the 10 experiment Delta Action Number 8, and that was on Page A13 11 of -- 12 DR. KJELSON: What exhibit? 13 MR. NOMELLINI: Appendix A to your Exhibit 12-C, 12-C, 14 Appendix A, Page A13. 15 DR. KJELSON: Yes, I have it. 16 MR. NOMELLINI: The second paragraph, third sentence: 17 It is critical to achieve as wide a 18 difference, a minimum target difference, of 19 7,000 cubic feet per second between the low 20 and the high export levels to increase the 21 chance of observing a potential effect of 22 export from survival. (Reading.) 23 You see that? 24 DR. KJELSON: Yes. 25 MR. NOMELLINI: Isn't it true that Exhibit 12-AA CAPITOL REPORTERS (916) 923-5447 12092 1 includes such a spread, which goes from roughly 2,000 cubic 2 feet per second to a high of 12? 3 DR. KJELSON: Yes, that is correct. 4 MR. NOMELLINI: So that this statement doesn't mean 5 that in an individual month there has to be a spread of 6 7,000 cubic feet per second, does it? 7 DR. KJELSON: No. We are talking about this was set up 8 describing a single year's experiment. That if we had the 9 conditions set up where we could do a high and a low, we 10 would want them wide to increase the chance of seeing a 11 relationship if, indeed, one exists. 12 MR. NOMELLINI: Now let's go to the next sentence. I 13 questioned that as to whether or not you can come to that 14 conclusion from a reading of this paragraph. Perhaps you 15 can explain. Let's read the next sentence. It says: 16 Ideally, the sequence of high and low exports 17 should be alternated each year. (Reading.) 18 Doesn't that mean in one year you might have a low 19 export level and then in another year you would have the 20 higher export level? 21 DR. KJELSON: No. It means the sequence. If we have 22 two experiments or two releases a year, two paired releases 23 a year, early December, for example, we might have a high, 24 and then in early January we have a low, and the next year 25 we reverse that and have a low in early December and a high. CAPITOL REPORTERS (916) 923-5447 12093 1 So, we didn't have any unnecessary bias into our 2 experimental design. 3 MR. NOMELLINI: Then, the plan, as outlined on A13, 4 would be -- for example, if we focused in on December of 5 '98, would have been to have a spread of 7,000 cubic feet 6 per second between one release of salmon smolts and the 7 second release? 8 DR. KJELSON: Yes. But as I think I said earlier and 9 say now, while this was our design, we found through the 10 years, for a variety of reasons, that we were lacking data. 11 So this year the opportunity came up because of water supply 12 conditions and so forth for us to do two low exports. And 13 that was our whole goal all along, is to try to increase our 14 understanding and get as much data with as wide a spread as 15 possible to improve our understanding and improve the 16 probability of getting good data. 17 MR. WHITE: If I could add to that. It seems to me 18 what we are talking about here is the distinction between 19 how you would think about designing your experiment when you 20 sit at your desk in your office or as Mr. Birmingham 21 referred to, the team meetings that we had in the summer of 22 '97, you want to set it up so you randomize effects that you 23 can't control. You would want to do a high export and a low 24 export in the same year. But you'd also want to have the 25 inflow conditions to be the same during both of those. You CAPITOL REPORTERS (916) 923-5447 12094 1 can hardly ever achieve that. 2 So what we are talking about here is accommodations to 3 reality in the Delta, some of which is related to water 4 project operation needs. You make some compromises from 5 your hypothetical, ideal experimental design in order to 6 accommodate realities in the world. 7 In December and January of '98, when these last two 8 data points were collected, it turned out that the Bureau of 9 Reclamation needed to do some repairs to their canal. And 10 it was convenient to do low export experiments at that time 11 because they weren't going to be pumping, weren't going to 12 be able to pump. That is a kind of accommodation we make to 13 the hypothetical, ideal experimental design, and we must do 14 that fairly routinely. 15 MR. NOMELLINI: Back to you, Mr. Kjelson. On Page 6 of 16 your Exhibit 12-B. That was the one that had the number of 17 fish included in the sampling? 18 DR. KJELSON: Yes. 19 MR. NOMELLINI: You have Page 6 in front of you? 20 DR. KJELSON: Yes. 21 MR. NOMELLINI: If we looked at the release date of 22 12/2/93, you testified that the number in the parens 23 indicated, for example, on Georgiana Slough five. Five was 24 the number of fish actually captured; is that correct? 25 DR. KJELSON: Yes. CAPITOL REPORTERS (916) 923-5447 12095 1 MR. NOMELLINI: How mechanically were the fish captured 2 as shown -- those five fish on 12/2/92? 3 DR. KJELSON: That was the released date. They were 4 captured over a period of days after release date, of 5 course. Mechanically, we use midwater trawl near to Chipps 6 Island. Made 10-, 20-minute trawls, generally, each day 7 during the period of salmon recovery. I don't know what 8 else to add. 9 MR. NOMELLINI: Over what period of time were the 10 trawls taking place? 11 DR. KJELSON: Three days. 12 MR. NOMELLINI: Three-day period? 13 DR. KJELSON: Three in a day are you talking about? 14 MR. NOMELLINI: How many days in a row? 15 DR. KJELSON: Generally five days in a row at times. 16 Well, we try to do it seven days in a row, depending upon 17 staff resources and other weather problems and so forth. We 18 try to do a consistent sampling each day until we basically 19 no longer collect any fish. Then we go back to a more 20 routine sampling, generally two or three days. 21 MR. NOMELLINI: Then I would gather from that answer 22 that the amount of trawling that took place could with 23 regard to one sample be two or three days and with regard to 24 another sample could be ten days; is that correct? 25 DR. KJELSON: Well, in answer to your question if I CAPITOL REPORTERS (916) 923-5447 12096 1 understood it, looking at the entire record of recovery days 2 -- not recovery, trawling days to recover a given release 3 group ranged to as few as five days all the way to a hundred 4 days, a hundred and one days. So there is quite a 5 variability in the number of days we actually trawled to 6 recover a given release. 7 MR. NOMELLINI: Does that affect the validity of the 8 comparison? 9 DR. KJELSON: I don't believe so. We weight that in 10 our calculation of index as a percent of time sampled out of 11 a given day, for example, as you might guess. 200 minutes 12 are a typical trawling day, and there are more minutes in a 13 day than that. 14 MR. NOMELLINI: Have you ever been fishing? 15 DR. KJELSON: Yep. 16 MR. NOMELLINI: This is the best you could do with the 17 state of the art equipment and techniques that are available 18 to you. Is that a fair statement? 19 DR. KJELSON: Are you talking about the intensity of 20 trawling or -- 21 C.O. STUBCHAER: Let him finish. 22 DR. KJELSON: If you are you talking about the 23 intensity or effort we put into the sampling, we could go 24 24 hours a day if we had the resources to do so, and 25 undoubtedly collect more fish. But given the limitations CAPITOL REPORTERS (916) 923-5447 12097 1 that we have and also things like if we seem to catch more 2 fish during the dawn and dusk period than we do in the 3 middle of the night, we take all of those things into 4 consideration in what we do. 5 MR. NOMELLINI: The variability that I was trying to 6 get to, I assume that sometimes the boat driver doesn't show 7 up on a given day and, therefore, you might miss a day of 8 trawling. Is that possible? 9 C.O. BROWN: 10 DR. KJELSON: Never, never happens. No, seriously, of 11 course, we have various problems that come up, both 12 maintenance or fog or weather that alter and bring more 13 variability to our ability to predict how much fish actually 14 pass Chipps Island. 15 MR. NOMELLINI: Scientific perfection is somewhere off 16 into the future in terms of fish sampling in the Delta, is 17 it not? 18 DR. KJELSON: Well, I don't know if we will ever reach 19 perfection, but you're right. 20 MR. NOMELLINI: Let's go to that Page 6 again. We 21 sampled five fish in the trawling that took place after the 22 December 2nd, 1993, release. And then you go over to the 23 right on that page and you see "Ocean Recovery Rate"? 24 DR. KJELSON: Yes. 25 MR. NOMELLINI: If we caught five fish trawling, how CAPITOL REPORTERS (916) 923-5447 12098 1 many fish are in the sample for that 12/2/93 in terms of 2 ocean recovery rate? 3 DR. KJELSON: I don't have that information in front of 4 me. 5 MR. NOMELLINI: Is it based on the five that we found 6 at Georgiana Slough? 7 DR. KJELSON: No. It is based on recovery of coded 8 wire nose tag basically from the sports and commercial 9 fishery that exist. Additional expansion factors are 10 utilized to expand those numbers for a percentage of port 11 sampled and percentage of fish looked at. And we basically 12 come out with an estimate of the number of survivors to 13 recruitment adult size and commercial and sport fishery. 14 And we use that data to calculate an ocean recovery rate. 15 MR. NOMELLINI: Do you have to have at least one coded 16 wire tagged returned in order to have a number here? 17 DR. KJELSON: I can't recall. There may be times where 18 we saw no fish and we would have a zero. 19 MR. NOMELLINI: Is it true that if there was no coded 20 wire tagged, there would not be a number estimated for ocean 21 recovery rate? 22 DR. KJELSON: I believe that to be correct. Of course, 23 in sampling that would not mean that not a single fish got 24 to the ocean. It would be variability in our sampling out 25 there. Most likely it would have been some fish, but CAPITOL REPORTERS (916) 923-5447 12099 1 probably a very low number. 2 MR. NOMELLINI: Do you know how the numbers on Page 6 3 were derived under ocean recovery rates? 4 DR. KJELSON: Well, I think I just generally described 5 that. We take into consideration our estimate of recoveries 6 of tags from the ocean sport fishery and then compare it 7 with the number of fish that we released. And in addition, 8 and I am getting a little fuzzy and I am embarrassed, we 9 also have a control group that we release at Port Chicago, 10 generally, in the western Delta. And we utilized that -- 11 recovery of those tags also to come up with a recovery rate 12 at Ryde versus that at Port Chicago control. It is actually 13 a more -- we feel more accurate estimate of the true 14 absolute survival of a given release group utilizing that 15 process. 16 MR. NOMELLINI: That is not shown on Page 6, is it? 17 DR. KJELSON: No. The complete data was shown. 18 MR. NOMELLINI: Was the data on Page 6 used for the 19 preparation of government Exhibit 12-AA? 20 DR. KJELSON: Some of the data for the Chipps Island 21 survival was. Of course, we had more data on that, but the 22 ocean recovery rates were not. 23 I don't know if Mr. White testified on this. Our ocean 24 recovery rates, basically, a double check or confirmation of 25 our conclusions of our trawl survival rate, relationships CAPITOL REPORTERS (916) 923-5447 12100 1 that we developed. 2 So with time, we could take the ocean recovery rate and 3 their ratios plotted in the same manner that we did in 12-AA 4 to see if the relationship holds up. It would be a totally 5 independent set of data to do that. 6 MR. NOMELLINI: In the preparation of government 7 Exhibit 12-AA did you use the ocean recovery rate ratio to 8 verify the Ryde/GS ratio used for Chipps Island survival 9 indices which I understand are incorporated on the exhibit? 10 DR. KJELSON: No, we didn't do that direct 11 relationship. You can look at the table here and get a 12 general sense of the fact that there are, with the exception 13 of the first one, are generally related, reasonably close. 14 MR. NOMELLINI: Okay. This statistically significant 15 correlation between Sacramento -- I should say Georgiana 16 Slough salmon smolt survival and export, would you expect 17 that relationship to be representative of the impact of 18 export pumping on San Joaquin River smolt survival? 19 DR. KJELSON: Not necessarily. 20 MR. NOMELLINI: And what factors would you cite to 21 indicate that that relationship would not necessarily be 22 applicable? 23 DR. KJELSON: Primarily the fact that San Joaquin are 24 following a different migration path as they come down the 25 San Joaquin River and enter the Delta and move towards the CAPITOL REPORTERS (916) 923-5447 12101 1 ocean. 2 MR. NOMELLINI: In your testimony you, in Paragraph 12, 3 and I think I have the right revised testimony but I may 4 not, but I have a sentence that reads: 5 The Board has the opportunity to use new 6 information via its triennial review process 7 to further refine and improve the 1995 Water 8 Quality Control Plan and associated water 9 right decisions. I encourage you to use 10 those reviews to the fullest extent possible 11 to assure future water rights and water 12 quality decisions are made with the best 13 information available. (Reading.) 14 Do you see that? 15 DR. KJELSON: Yes. 16 MR. NOMELLINI: That is in your final version of 17 testimony; isn't it? 18 DR. KJELSON: Yes, under Exhibit 12. 19 MR. NOMELLINI: With regard to the current process and 20 this Board in its decision making, are you encouraging the 21 Board to accomplish the triennial review before making any 22 decisions in this water right proceeding? 23 DR. KJELSON: No. 24 MR. NOMELLINI: When do you expect the Board to start 25 this triennial review process? CAPITOL REPORTERS (916) 923-5447 12102 1 MR. CAMPBELL: Objection. Calls for speculation. 2 C.O. STUBCHAER: Sustained. 3 MR. NOMELLINI: I will stipulate to that. What does 4 triennial mean to you, Mr. Kjelson? 5 DR. KJELSON: Every three years. 6 MR. NOMELLINI: You would agree that three years have 7 passed since the adoption of the 1995 Water Quality Control 8 Plan, would you not? 9 DR. KJELSON: Yes. 10 MR. NOMELLINI: Is there new information with regard to 11 fisheries that would be relevant to the triennial review 12 process? 13 MR. CAMPBELL: Objection. This appears to be opening 14 up what is likely to be an irrelevant line of questioning, 15 that you take an undue amount of time for this Board to 16 address. I will object to it on that ground. 17 C.O. STUBCHAER: I don't know if those are grounds for 18 objection. I agree with you. 19 MR. NOMELLINI: Come on, you guys. 20 C.O. STUBCHAER: Please explain the relevance of this 21 line of questioning? 22 MR. NOMELLINI: Well, the relevance is his testimony 23 contains those two statements. And I would like to know 24 what is it that he believes is relevant to the triennial 25 review whereby he is encouraging the Board to use those CAPITOL REPORTERS (916) 923-5447 12103 1 reviews to the fullest extent possible. I wanted to ask 2 what information about fish -- I assume he is talking about 3 fish. I don't know that that is necessarily the case -- to 4 see what it is that he is encouraging you to review under 5 the triennial review process, if anything? 6 C.O. STUBCHAER: Mr. Campbell. 7 MR. CAMPBELL: Somewhat misstates -- counsel somewhat 8 misstates what Mr. Kjelson's testimony states. It says the 9 Board has the opportunity to use new information. And that 10 is fairly generic. He is not necessarily referencing any 11 particular new information or the new information. But as a 12 general statement he is saying at the time of its triennial 13 the Board has the opportunity to use new information. 14 C.O. STUBCHAER: I think we ought to move on, Mr. 15 Nomellini. 16 MR. NOMELLINI: Is there any particular new information 17 that, Mr. Kjelson, you had in mind in this statement that I 18 read? 19 DR. KJELSON: I think Mr. Campbell described -- my 20 general point here is that we are continually attempting to 21 gather as much information to improve our understanding, and 22 I would simply encourage the Board to do so. 23 MR. NOMELLINI: Is it your testimony that government 24 Exhibit 12-AA is new information that was not considered at 25 the time of the adoption of the 1995 Water Quality Control CAPITOL REPORTERS (916) 923-5447 12104 1 Plan? 2 DR. KJELSON: Certainly, it is new information. 3 MR. NOMELLINI: Other than government Exhibit 12-AA, is 4 there any other new information with regard to fisheries 5 that would be -- that you would encourage the Board to look 6 at in a triennial review? 7 MR. CAMPBELL: I am going to object on the grounds of 8 relevance. I think these questions are contrary to the 9 Board's ruling on that issue not two minutes ago. 10 C.O. STUBCHAER: Sustain the objection. 11 MR. NOMELLINI: You guys are mean-spirited. 12 C.O. STUBCHAER: Nobody can be mean with you. You are 13 always smiling, Mr. Nomellini. 14 MR. NOMELLINI: With regard to your testimony, Mr. 15 Kjelson, you indicated that with the joint point of 16 diversion proposal that high pumping during the November 17 through January period is of particular concern. And on my 18 copy of your testimony that is on Paragraph 10. 19 DR. KJELSON: Yes. I see it. 20 MR. NOMELLINI: What particular concern is there with 21 regard to the high pumping during the November through 22 January period that you refer to in that statement? 23 DR. KJELSON: Well, as I stated in the last sentence 24 there, the present Water Quality Control Plan allows for a 25 high E/I ratio up to 65 percent, which generally, I think I CAPITOL REPORTERS (916) 923-5447 12105 1 said verbally this morning, reflects a high export 2 rate. And based on my other testimony and exhibits, there 3 is some risk there. That is what I was referring to or 4 concerned about. 5 MR. NOMELLINI: Is it your opinion that that is too 6 high of an export inflow ratio for the period of November 7 through January? 8 MR. WHITE: I guess I would say that under 9 circumstances where juvenile salmon are in the Delta and 10 being affected by conditions there, that exports that could 11 occur within the 65 percent allowable could be detrimental. 12 MR. NOMELLINI: If the Chairman won't allow me to ask 13 you, I won't ask whether or not that should be considered in 14 the triennial review. 15 Thank you very much. 16 C.O. STUBCHAER: Thank you, Mr. Nomellini. 17 Mr. Maddow. 18 MR. TURNER: If I could, Mr. Stubchaer. 19 Excuse me, Mr. Maddow. I was wondering, again, as I 20 mentioned last week, would there be any way before we 21 adjourn today to get some kind of an estimate as to when we 22 expect to be getting completed with the Phase VI, the 23 rebuttal, et cetera, and moving on to Phase VII so I can 24 finalize the arrangements for my next set of witnesses? If 25 we had the opportunity, I would appreciate that. CAPITOL REPORTERS (916) 923-5447 12106 1 C.O. STUBCHAER: Mr. Turner, we can ask the parties how 2 long their cross-examination is estimated to be, but we have 3 seen in the past those estimates are also not very 4 accurate. We will just go around. 5 Mr. Maddow, do you have an estimate? 6 MR. MADDOW: Not more than 15 minutes, Mr. Stubchaer. 7 C.O. STUBCHAER: Mr. Etheridge. 8 MR. ETHERIDGE: Fifteen minutes. 9 C.O. STUBCHAER: Mr. Godwin. 10 Mr. Garner. 11 MR. GARNER: Ten minutes. 12 C.O. STUBCHAER: Mr. Herrick. 13 MR. HERRICK: Perhaps a half hour. 14 MR. TURNER: Then we have rebuttal coming after that. 15 C.O. STUBCHAER: Mr. Godwin didn't respond. 16 MR. JOHNSTON: Mr. Godwin had to attend another 17 meeting. He may be back. 18 MR. ROBBINS: He is at the OPS meeting, and he 19 indicated that Mr. Birmingham has asked most of his 20 questions. I believe his cross would be 15 minutes, at 21 most. 22 C.O. STUBCHAER: Yes, we would move to rebuttal after 23 the conclusion of the examination and redirect if you have 24 any and recross of this panel. 25 It looks like -- we are going to adjourn at 3:30 today. CAPITOL REPORTERS (916) 923-5447 12107 1 It looks like we may just get through today. So rebuttal 2 could start tomorrow. 3 MR. TURNER: Thank you. 4 C.O. STUBCHAER: Fair estimate, staff? 5 MS. LEIDIGH: That seems approximately right. 6 C.O. STUBCHAER: Now, Mr. Maddow. 7 ---oOo--- 8 CROSS-EXAMINATION OF DEPARTMENT OF THE INTERIOR AND 9 DEPARTMENT OF FISH AND GAME 10 BY CONTRA COSTA WATER DISTRICT 11 BY MR. MADDOW 12 MR. MADDOW: Thank you, Mr. Stubchaer, Members of the 13 Board. For the record I am Robert Maddow appearing today on 14 behalf of the Contra Costa Water District. 15 I did have a number of questions which were covered 16 this morning. I don't intend to ask questions that would be 17 cumulative, and I have questions primarily for Dr. Kjelson. 18 First, Dr. Kjelson, as I understand the series of 19 exhibits that you have submitted, initially in July 1998 you 20 submitted Department of the Interior Exhibit 12. Is that 21 correct? 22 DR. KJELSON: That's right. 23 MR. MADDOW: That was revised in November of 1998; is 24 that correct? 25 DR. KJELSON: Yes. CAPITOL REPORTERS (916) 923-5447 12108 1 MR. MADDOW: Comparing the original Exhibit 12 and the 2 revised version that was submitted in November of 1998, Dr. 3 Kjelson, isn't it true that in discussing the trend which 4 you had observed that you shifted your focus from the export 5 inflow ratio to total exports in relationship to the ratio 6 of survival indices? 7 DR. KJELSON: I believe that is correct although I 8 don't have that July right in front of me. If you want me 9 to look at that, I can confirm that. 10 MR. MADDOW: I do have a copy of the original version 11 in front of me, and this, again, the July version of 12 Department of Interior Exhibit 12, and I will pass it to Mr. 13 Kjelson. I had opened it to, I believe it is, the third 14 page, and I would direct your attention to Paragraph Number 15 8. 16 C.O. STUBCHAER: Mr. Campbell. 17 MR. CAMPBELL: I would make an objection that DOI 18 Exhibit 12, as originally submitted in July, I understand 19 has been withdrawn by the Department of the Interior. I 20 will look to Mr. Turner to confirm that. And if it has been 21 withdrawn, I don't believe it is a proper subject of 22 cross-examination. 23 C.O. STUBCHAER: Mr. Turner, Exhibit 12. 24 MR. TURNER: Exhibit 12 has been withdrawn, and I did 25 not raise an objection because I understand Mr. Maddow was CAPITOL REPORTERS (916) 923-5447 12109 1 asking whether Mr. Kjelson had, in fact, changed the focus 2 of his testimony from what he presented in July from what he 3 presented in November. 4 C.O. STUBCHAER: I think that is a fair question. 5 Proceed. 6 MR. MADDOW: Thank you, Mr. Stubchaer. 7 And, Dr. Kjelson, I did not intend to take you any 8 further through the original version of the document. I did 9 want to use that question to make a further inquiry in 10 regard to some of the, I guess what might be referred to as 11 the, X axis, independent variables, that you have been 12 discussing through your testimony and cross-examination. 13 As I understand your most recent submissions, Dr. 14 Kjelson, and by most recent I am referring to the March 15th 15 and March 18th submissions, you have been focusing on the 16 correlation between the survival indices and total exports; 17 is that correct? 18 DR. KJELSON: The ratio of the survival indices; that 19 is correct. 20 MR. MADDOW: Isn't it also true, however, Dr. Kjelson, 21 the data which you presented included a number of other 22 independent variables, which could have been the subject of 23 your testimony? 24 DR. KJELSON: Yes. I could have included comments on 25 those other variables. CAPITOL REPORTERS (916) 923-5447 12110 1 MR. MADDOW: If I may, I would like to put on the 2 overhead a copy of replacement Department of Interior 3 Exhibit 12-A, and my thanks to Mr. Garner for allowing me to 4 borrow that from him. 5 As I read the legend across the top of the Exhibit 6 12-A, Dr. Kjelson, I believe there are at least three 7 potential candidates for correlation analysis: Qwest, 8 exports, perhaps, for Sacramento flow at Freeport, and 9 export/inflow ratio. 10 Am I reading that correct, Dr. Kjelson? 11 DR. KJELSON: Yes. 12 MR. MADDOW: Your testimony was limited to exports; is 13 that correct? 14 DR. KJELSON: That's correct. 15 MR. MADDOW: Did you perform regression analyses with 16 regard to any of those other candidates for the X axis? 17 DR. KJELSON: Yes, my staff performed regression 18 analysis for all of them. 19 MR. MADDOW: That data was not presented in your 20 testimony? 21 DR. KJELSON: That's correct. 22 MR. MADDOW: Were those -- did any of those analyses, 23 Dr. Kjelson, result in correlations which rise to the level 24 to what you have testified to as statistical significance? 25 DR. KJELSON: No. CAPITOL REPORTERS (916) 923-5447 12111 1 MR. MADDOW: Did you, among the indices that -- Strike 2 that. 3 Among the correlations that your staff did, Dr. 4 Kjelson, did they look at the correlation between the ratio 5 of the survival indices and export/inflow ratio? 6 DR. KJELSON: Yes. 7 MR. MADDOW: What was the R squared factor that was 8 determined when that analysis was done? 9 DR. KJELSON: For the Georgiana Slough/Ryde survival 10 indices to export/inflow the R square was .17. 11 MR. MADDOW: In your opinion, Dr. Kjelson, can one 12 infer statistical significance with an R square value of 13 1.7? 14 DR. KJELSON: I don't believe so, typically. It is 15 probably not out of the question, but it is rather doubtful. 16 MR. MADDOW: Is that doubtful because of the limited 17 data that is available? 18 DR. KJELSON: That's -- if I can follow your question. 19 MR. MADDOW: You had eight data points, and that is 20 what I was referring to when I said limited data was 21 available, Dr. Kjelson. So, my question is whether your 22 doubtfulness is based upon the limited amount of data that 23 was available? 24 DR. KJELSON: Limited amount of data is taken into 25 consideration. You might have considerably additional CAPITOL REPORTERS (916) 923-5447 12112 1 amount of data and still have a very low R squared, because 2 you have a lot of variability around. 3 MR. MADDOW: With regard to Qwest, Dr. Kjelson, did 4 your staff do one of the correlations to which you referred 5 to moments ago? 6 DR. KJELSON: Yes. 7 MR. MADDOW: What was the R squared figure for that 8 correlation? 9 DR. KJELSON: .01. 10 MR. MADDOW: Again, this a correlation of survival 11 indices ratio with the Qwest data; is that correct? 12 DR. KJELSON: That's right. 13 MR. MADDOW: Dr. Kjelson, with the R squared value of 14 .01, could you infer statistical significance for that? 15 DR. KJELSON: Be very doubtful. 16 MR. MADDOW: I guess my final question, Dr. Kjelson, is 17 whether or not there is some data other than that which has 18 been presented which caused you to conclude that the 19 material relevant for Phase VI is the series of comparisons 20 or export data with the survivability ratio as compared to 21 the Qwest or the export/inflow ratio data? 22 DR. KJELSON: I am sorry, it was too long a question. 23 MR. MADDOW: That was a badly framed question, Dr. 24 Kjelson. 25 You testified that there has been a regression analysis CAPITOL REPORTERS (916) 923-5447 12113 1 done with regard to the survivability index ratio with three 2 of the candidate X axis factors that are identified in 3 replacement Exhibit 12-A; is that correct? 4 DR. KJELSON: That's correct. 5 MR. MADDOW: My question is why your testimony was 6 limited to the regression analysis related to the export 7 data as compared to the regression analysis related to Qwest 8 or the export/inflow ratio data? 9 DR. KJELSON: Well, as you might guess, it was -- we 10 did the analysis. We saw that one was statistically 11 significant at the .1 level. The others were not. We 12 attempted to think of why could that be true. Probably the 13 best answer I can give you is that exports were far and 14 beyond the most controllable factor during the period of 15 time when the fish appeared to be migrating through the 16 Delta after release. 17 There is considerable variability in the Qwest, the 18 frequent flow and the export/inflow ratio, all of which 19 lessens our ability to see a relationship between those 20 other parameters if one, indeed, exists. That was our 21 belief that just brought in too much variability to see even 22 if it did not exist. Although, as you might guess, exports 23 have generally a general affect on Qwest, and one would 24 think there would probably be some sort of relationship. 25 But in addition we have a problem in choosing the right CAPITOL REPORTERS (916) 923-5447 12114 1 number of days or period of time following the release to 2 represent a given parameter. In our analysis we chose 17 3 days which we felt was fairly representative. With Qwest 4 and flow and E/I ratio changing so much, while they may be a 5 factor that influences survival, picking an exact period of 6 time that the fish are exposed to those conditions or these 7 parameters was very difficult. And one thing we are 8 thinking about in the future is putting radio tags or sonic 9 tags on individual fish and watching them so we know exactly 10 where they are and what the conditions are, which may shed 11 some better light. 12 The only other thing I add that you neglected to 13 mention in that cable is that we had expanded Georgiana 14 Slough recovery and expanded Ryde recoveries at the project 15 salvage facilities and our ratio X squared for exports 16 versus Georgiana releases, the R squared there was about .49 17 and for the Ryde R squared was .25 and the relationship 18 said the more export the more you will salvage. 19 But I will hasten to add, as you may have gathered from 20 looking at the table, the number of fish actually salvaged 21 is quite a small percentage of those released. And even if 22 you consider expanding and taking into consideration loss 23 factors, generally, the expanded and salvage loss isn't a 24 very high number relative to the loss you see that we think 25 is attributed, or at least the data suggest, attributed to CAPITOL REPORTERS (916) 923-5447 12115 1 exports. If that helps. 2 MR. MADDOW: I think I will stop there, Mr. Chairman. 3 Thank you very much. 4 C.O. STUBCHAER: Thank you, Mr. Maddow. 5 Mr. Etheridge. 6 ---oOo--- 7 CROSS-EXAMINATION OF DEPARTMENT OF THE INTERIOR AND 8 DEPARTMENT OF FISH AND GAME 9 BY EAST BAY MUNICIPAL UTILITY DISTRICT 10 BY MR. ETHERIDGE 11 MR. ETHERIDGE: Good afternoon. Thank you, Mr. 12 Stubchaer and Members of the Board. 13 Good afternoon, Dr. Kjelson. My name is Fred 14 Etheridge, and I am representing the East Bay Municipal 15 Utility District. I have a few questions. 16 Dr. Kjelson, part of your testimony concerns the 17 impacts of export pumping on the survival of juvenile 18 anadromous salmonids; is that correct? 19 DR. KJELSON: Yes. 20 MR. ETHERIDGE: That testimony describes export pumping 21 risk to several different species of salmonids, including 22 fall-run chinook salmon; is that correct? 23 DR. KJELSON: I lost you. 24 MR. ETHERIDGE: I wonder as part of your testimony you 25 describe that export pumping risk to several different CAPITOL REPORTERS (916) 923-5447 12116 1 species of salmon and salmonids, including steelhead? 2 DR. KJELSON: Potentially could affect variety of races 3 of salmon. In our direct testimony and experimental 4 evidence was only on coded wire tagged late fall salmon. 5 MR. ETHERIDGE: Is it your opinion that as a greater 6 portion of Delta inflow as exported at the export pumps, 7 juvenile Sacramento River anadromous salmonids diverted into 8 the Central Delta experience greater mortality? 9 DR. KJELSON: I just got through noting a relationship 10 between the E/I, or export/inflow ratio, and salvage was not 11 significant, was a low R square value. 12 MR. ETHERIDGE: But it is your opinion that during late 13 fall and early winter the use of joint points of diversion 14 could increase the mortality of fall-run juvenile salmon 15 that are diverted into the Central Delta; is that correct? 16 DR. KJELSON: Would you repeat -- just repeat it 17 slower. 18 MR. ETHERIDGE: Is it your opinion during the late fall 19 and early winter the use of joint points of diversion could 20 increase the mortality of fall-run juvenile salmonids that 21 are diverted into the Central Delta? 22 MR. TURNER: I would have to object and ask for a 23 little clarification, if he is asking the use of the joint 24 point for pumping the same quantities of water or additional 25 quantities of water. I think that would have a significant CAPITOL REPORTERS (916) 923-5447 12117 1 impact on Dr. Kjelson's ability to respond. 2 C.O. STUBCHAER: Could you lay a little more 3 foundation, Mr. Etheridge? 4 MR. ETHERIDGE: I was referring to Paragraph 9 of your 5 testimony: 6 During the late fall and early winter, use of 7 joint point could increase mortality. 8 (Reading.) 9 I am trying to confirm that opinion. 10 MR. CAMPBELL: I believe Mr. Etheridge is looking at -- 11 I am not sure, but I believe he is looking at the withdrawn 12 testimony, and I can see if I can give him a copy of -- 13 DR. KJELSON: What number are you referring to? 14 MR. CAMPBELL: -- Mr. Kjelson's revised testimony as 15 submitted in November and see if I can find that spot. 16 C.O. STUBCHAER: Mr. Etheridge, could you determine if 17 there is a difference between the testimony. 18 MR. ETHERIDGE: It is Paragraph 5 I was referring to. 19 His opinion that in the November to January period there's 20 potential to put anadromous salmonids at risk with the 21 increased export. 22 I want to confirm that that is his opinion. 23 DR. KJELSON: There is certainly that potential. But I 24 think, as our attorney mentioned, to go beyond that you need 25 to define what the export levels are, when they are CAPITOL REPORTERS (916) 923-5447 12118 1 occurring, what numbers of salmon are in the Delta, and so 2 forth. 3 MR. ETHERIDGE: To help mitigate impacts, is it your 4 opinion that Delta Cross Channel could be closed during 5 certain times during the December to January time period? 6 DR. KJELSON: Yes. It was closed this past fall and 7 actually Water Quality Control Plan, CVPIA and a variety of 8 other things all talk about closure of the Cross Channel 9 during that period. 10 MR. ETHERIDGE: That is to benefit juvenile -- the 11 outmigration of juvenile salmonids? 12 DR. KJELSON: Yes. 13 MR. ETHERIDGE: Would that also hold true to juvenile 14 anadromous Mokelumne River salmonids? 15 DR. KJELSON: As you undoubtedly know, Mokelumne fish 16 have a different migration path or choices of migration 17 through the Delta than do fish coming down the Sacramento 18 River. So, the closure of the Cross Channel is largely 19 designed to prevent fish from entering the interior Delta 20 where we found, or at least believe, higher mortalities 21 occur. 22 Mokelumne River fish, of course, come down the 23 Mokelumne and split with different forks of the Mokelumne 24 and other channels in the Delta and then go to the ocean via 25 the western Delta, although there may be some exception, CAPITOL REPORTERS (916) 923-5447 12119 1 but finding their way other ways, but generally that is the 2 path. 3 So closing the Cross Channel in a direct sense probably 4 would not help Mokelumne fish. Although by opening the 5 Cross Channel, leaving it open sends more flow through the 6 Central Delta which conceivably could be a benefit to the 7 Mokelumne fish as opposed to a lesser amount of flow. But 8 we don't have a great deal of evidence about that. 9 MR. ETHERIDGE: You agree that the State Board should 10 approve unlimited joint point so long as that approval is 11 conditioned on CalFed first drafting and approving a joint 12 point of diversion operations plan; is that correct? 13 DR. KJELSON: Yes. With appropriate fishery protection 14 included. 15 MR. ETHERIDGE: Given that CalFed has many subgroups 16 and committees, which specific CalFed group would develop 17 this joint point of diversion operations plan? 18 DR. KJELSON: I believe Mr. Thabault testified at 19 length on that. I don't want to confuse matters, but maybe 20 Mr. White could clarify. 21 MR. WHITE: I think Dr. Kjelson is right. Mr. Thabault 22 did get to that. There are several groups that have been 23 formed related to the evaluation of fisheries' effects and 24 project operations, and it is likely that those groups would 25 be the principal ones considering this issue, that CAPITOL REPORTERS (916) 923-5447 12120 1 ultimately their recommendations would move through the 2 CalFed agencies' management and result in a recommendation. 3 MR. ETHERIDGE: That would be a recommendation to 4 whom? 5 MR. WHITE: Well, the approved plan, if one is 6 developed and accepted by the CalFed agencies, would be 7 brought back to the Board. 8 MR. ETHERIDGE: Is it part of the plan that the State 9 Board would then approve that joint point operations plan or 10 simply accept it and file it. 11 MR. TURNER: I would like to point -- just point out, 12 if I could, that all of this information was presented in 13 Mr. Thabault's testimony when the panel was here, and this 14 is not elements that are within the scope of Mr. Kjelson's 15 testimony, so I would like to suggest that Mr. Etheridge 16 review the testimony that has been previously presented to 17 answer these questions. 18 C.O. STUBCHAER: Mr. Campbell. 19 MR. CAMPBELL: Just a portion of the panel's testimony 20 was called out for further direct testimony by Mr. Kjelson 21 and further cross-examination just on those issues. On that 22 basis we were allowed to dismiss the rest of our panel. We 23 have been trying to accommodate Mr. Etheridge as best we can 24 with these two witnesses to answer his questions, but I 25 believe that the answers would best be provided by Mr. CAPITOL REPORTERS (916) 923-5447 12121 1 Thabault who did answer similar questions, maybe not all of 2 Mr. Etheridge's questions, when he was available for 3 cross-examination last week. 4 C.O. STUBCHAER: I think you and Mr. Turner have valid 5 points. The purpose of this cross-examination is for Mr. 6 Kjelson's revised direct testimony. 7 I will say, if you know the answer, Mr. Kjelson, please 8 state so, and if you don't, state that. 9 DR. KJELSON: The only answer I would give would be to 10 read from Mr. Thabault's testimony to clarify. 11 C.O. STUBCHAER: Don't do that; that is on the record. 12 MR. ETHERIDGE: Thank you. 13 That is all the questions I have. 14 C.O. STUBCHAER: Thank you, Mr. Etheridge. 15 Mr. Godwin back yet? 16 UNIDENTIFIED VOICE: No. 17 C.O. STUBCHAER: Mr. Garner. 18 Good afternoon. 19 ---oOo--- 20 CROSS-EXAMINATION OF DEPARTMENT OF THE INTERIOR AND 21 DEPARTMENT OF FISH AND GAME 22 BY STATE WATER CONTRACTORS 23 BY MR. GARNER 24 MR. GARNER: Good afternoon, Mr. Stubchaer and Members 25 of the Board. Eric Garner on behalf of the State Water CAPITOL REPORTERS (916) 923-5447 12122 1 Contractors. 2 Good afternoon, Dr. Kjelson, Mr. White. I just have a 3 few questions for you. 4 If I can direct your attention to Government Exhibit 5 12-A Replacement, which is on the overhead. In the first 6 sentence it describes how the environmental conditions, such 7 as Qwest and CVP and SWP exports, are calculated; is that 8 correct? 9 DR. KJELSON: Yes. 10 MR. GARNER: Do I understand that exports, Qwest and 11 average flow at Freeport were calculated based on a 17-day 12 average following the release of the code wire tagged fish? 13 DR. KJELSON: That's correct. 14 MR. GARNER: And then the survival index data in the 15 second column, labeled live survival index on the Georgiana 16 Slough index? 17 DR. KJELSON: Yes. 18 MR. GARNER: That data is also calculated on a 17-day 19 average? 20 DR. KJELSON: No, it is not. 21 MR. GARNER: It is not. So that data was collected on 22 more than a 17-day period; is that correct? 23 DR. KJELSON: Yes. If you bear with me a minute. For 24 example, as I think I said earlier to Mr. Nomellini, the 25 number of days of sampling recovered the fish varied from CAPITOL REPORTERS (916) 923-5447 12123 1 five days to 101 days. In other words, the fish often find 2 a way to Chipps Island at a time typically longer than seven 3 days, although there are a number that were shorter. 4 MR. GARNER: Dr. Kjelson, just to make sure I 5 understand this, then, directing your attention to Exhibit 6 12-AA Replacement on the overhead, on the X axis we have 7 average combined exports in thousands of cfs, and that is 8 based on a 17-day average? 9 DR. KJELSON: Yes. 10 MR. GARNER: On the Y axis we have a data from the 11 Georgiana Slough and Ryde survival index, and that has been 12 developed into a ratio. But that data is collected over any 13 time bearing, between five days and 101 days; is that 14 correct? 15 DR. KJELSON: Yes. 16 MR. GARNER: The index ratio is evaluated against a 17 17-day average period? 18 DR. KJELSON: That's right. 19 MR. GARNER: Why was that done? 20 DR. KJELSON: As I think I referred earlier to a 21 question, one of the problems we have is knowing under what 22 condition the fish are exposed during their migration. 23 Ideally, we could predict exactly when the fish were 24 released and when they reached the given point out of the 25 affect of some parameter, for example. But we don't know CAPITOL REPORTERS (916) 923-5447 12124 1 that. It is one of our problems and variability enters into 2 the data set and our understanding. So we have chosen to 3 simply do the best we can, estimating a period of time that 4 we predict most of them probably have gone through the 5 Delta, based on our past recovery, and we ended up choosing 6 a 17-day average. We could have chosen 14 days or 25 days 7 or something else. 8 Actually, my staff just recently looked at the 9 difference between a 14-day average recovery period and, I 10 think he did, a 20-day. And the 20-day recovery period, at 11 least for a couple data sets or couple release groups, 12 really, basically, told the whole story. 13 In other words, we didn't really need a lot more fish 14 and there weren't very many fish after 20 days. But after 15 14 days a lot of fish were missing. And it really did not 16 tell the story, based our relationship between -- in the 17 export survival relationship. 18 I don't know if you followed all that, but that is the 19 problem. 20 MR. GARNER: I think I did. Let me ask a couple 21 follow-up questions. 22 There is variability at the rate at which fish move 23 from Ryde and Georgiana Slough to Chipps Island, is there 24 not? 25 DR. KJELSON: Yes. CAPITOL REPORTERS (916) 923-5447 12125 1 MR. GARNER: I think that both you and Mr. White 2 testified earlier that fish in Georgiana Slough would 3 typically take a longer period of time to make it to Chipps 4 Island than fish arrived at Ryde? 5 DR. KJELSON: That's correct. 6 MR. GARNER: So, if we have a group of fish released at 7 Georgiana Slough and it takes them, assume hypothetically, 8 35 days to reach Chipps Island, your export data would have 9 only evaluated 17 of those days and 18 days of export 10 wouldn't be evaluated? 11 DR. KJELSON: Wouldn't be taken into consideration in 12 the average. 13 MR. GARNER: Just a couple final questions. 14 Given that it does take fish longer to move from 15 Georgiana Slough to Ryde, why did you evaluate both of their 16 migrations on a 17-day average? 17 DR. KJELSON: Would you repeat it? 18 MR. GARNER: I said, given that it takes fish, as you 19 and Mr. White testified to, that it takes fish longer to 20 move from Georgiana Slough to Chipps Island than from Chipps 21 to Ryde, on average. 22 DR. KJELSON: Yes. 23 MR. GARNER: Did you evaluate both of the releases, the 24 fish released to Ryde and fish released to Georgiana Slough, 25 in the 17-day average? CAPITOL REPORTERS (916) 923-5447 12126 1 DR. KJELSON: The fact we are using an average, we had 2 to choose some number before -- one number to use in the 3 ratio. We had only one number to apply against whatever 4 parameter of 17 days. That was what we chose. 5 MR. GARNER: Does that create a bias in the study -- 6 let me rephrase that. 7 Does that make it more difficult to evaluate the 8 environmental conditions faced by the Georgiana Slough fish 9 than the Ryde fish? 10 DR. KJELSON: Well, or vice versa. As I said earlier, 11 it is very difficult to know which, both individual fish and 12 group of tagged fish, when they are exposed to different 13 conditions. That is the dilemma we have. We tried to pick 14 a number that, hopefully, it was representative. That 15 certainly is potential bias and causes more variability. 16 MR. GARNER: Given the importance, as you discussed 17 earlier with Mr. Birmingham, I believe, of accurately 18 measuring the independent variable in regression analysis, 19 and here the exports are the independent variable, given 20 that, doesn't that cast a doubt on the result of the study 21 because you have an average as your independent variable 22 which does not consider significant portions of time when 23 fish are moving towards Chipps Island? 24 DR. KJELSON: I think it is, again, part of our dilemma 25 and it does cause more variability and brings in more CAPITOL REPORTERS (916) 923-5447 12127 1 uncertainty, that we simply didn't know how to address that 2 further. 3 MR. GARNER: Finally, regarding the data you collected 4 in 1998, your December 1st, 1998, data point and your 5 December 29th, 1998, data point. You have confidence in the 6 data that was collected in December of 1998? 7 DR. KJELSON: The 29th one? 8 MR. GARNER: Both, the 29th and the 1st. 9 DR. KJELSON: We have confidence that the recoveries 10 and the process we went through are basically the same for 11 the other points. We have no reason to believe that they 12 are biased one way or the other, any more so than the other 13 data. 14 MR. GARNER: That is true even though 1998 was an 15 extremely wet year? 16 DR. KJELSON: Yes. There was considerable variability 17 in the flow, also. 18 MR. GARNER: You think the data collected in 1998 even 19 though it was a wet year has some validity and can be useful 20 in evaluating fish populations? 21 DR. KJELSON: Yes. One of the reasons that -- I may 22 have mentioned earlier, utilizing the ratio, we have some 23 indication that at higher flows our efficiency of recovery 24 at times causes problems or variability, and the ratio, we 25 hope, overcomes that. So in a wet year or dry year we have CAPITOL REPORTERS (916) 923-5447 12128 1 equal confidence in our results. 2 MR. GARNER: Would that extend to data such as 3 abundance indices, as well? 4 DR. KJELSON: I haven't thought that through for the 5 reason I give you, abundance indices are probably more 6 variable because it is not a ratio abundance in this. It is 7 abundance for a given year class of juveniles, or what have 8 you. 9 MR. GARNER: I have no further questions. 10 Thank you. 11 C.O. STUBCHAER: Thank you, Mr. Garner. 12 Since this is a short afternoon, let's take a 13 ten-minute break. After the break, Mr. Herrick will examine 14 if Mr. Godwin isn't back. 15 (Break taken.) 16 C.O. STUBCHAER: Reconvene the hearing. 17 MR. TURNER: During the break, Mr. Stubchaer, Dr. 18 Kjelson and Mr. White advised me they wanted a try to 19 clarify very quickly a couple responses they have made, I 20 believe, to Mr. Nomellini's cross-examination. So that we 21 can make sure the record is clear, if that would be all 22 right with you. 23 MR. NOMELLINI: I couldn't hear any of that. 24 C.O. STUBCHAER: Mr. Turner stated that the two 25 witnesses would like to clarify some of their answers to CAPITOL REPORTERS (916) 923-5447 12129 1 your cross-examination questions. 2 Now last time we tried this I thought it was pretty 3 easy, and there were some problems. Let's run this by 4 parties. 5 MR. NOMELLINI: Isn't that rebuttal? 6 UNIDENTIFIED VOICE: Redirect. 7 C.O. STUBCHAER: There is redirect, Mr. Turner. Would 8 you rather do it then? On redirect then their answers would 9 be subject to recross. We can go until tomorrow. 10 MR. TURNER: Okay. Very good. 11 C.O. STUBCHAER: Mr. Kjelson. 12 DR. KJELSON: I was just trying to clarify something. 13 I think it may have been more confusing to the people. I 14 want to clarify it. 15 C.O. STUBCHAER: I know, but redirect. 16 Mr. Herrick. 17 ---oOo--- 18 CROSS-EXAMINATION OF DEPARTMENT OF THE INTERIOR AND 19 DEPARTMENT OF FISH AND GAME 20 BY SOUTH DELTA WATER DISTRICT 21 BY MR. HERRICK 22 MR. HERRICK: Thank you, Mr. Chairman, Board Members. 23 John Herrick for South Delta Water Agency. 24 Mr. Kjelson, notwithstanding Westlands Exhibit 116 and 25 its effect, you attached the Bureau's Administrative CAPITOL REPORTERS (916) 923-5447 12130 1 Proposal for the Management of (b)(2) Water to your 2 testimony; is that correct? 3 DR. KJELSON: Yes. 4 MR. HERRICK: Delta Action 1 as part of that is the 5 Vernalis Adaptive Management Program; isn't that correct? 6 It is on page A-2 of that document. 7 Excuse me if I jump around too quickly. 8 DR. KJELSON: I believe in general it is a reflection 9 of the VAMP or Vernalis Adaptive Management Program. The 10 reason I am hesitating is when this came out in 1987 versus 11 when the -- in '97 and the actual San Joaquin River 12 Agreement, including the Vernalis Adaptive Management Plan, 13 there may have been some changes that occurred after that. 14 MR. HERRICK: Okay. I don't want to put too fine a 15 point on it. Before the Bureau had come to agreement with 16 the San Joaquin River Group Authority, it had decided to go 17 forward with the VAMP program; is that correct? 18 DR. KJELSON: I am hesitant to answer that question. I 19 just haven't followed the progress, and I don't want to 20 mislead you. 21 MR. HERRICK: I will accept that. I just want to 22 clarify that Delta Action is labeled VAMP? 23 DR. KJELSON: Yes. 24 MR. HERRICK: Delta Action 2 is the Head of Old River 25 Barrier; is that correct? CAPITOL REPORTERS (916) 923-5447 12131 1 DR. KJELSON: Yes. 2 MR. HERRICK: That is independent of any San Joaquin 3 River Agreement, the Bureau's commitment to go ahead with 4 the Head of Old River Barrier on an annual basis? 5 DR. KJELSON: I don't care to answer that question 6 because I am not close to that policy issue. 7 MR. HERRICK: And another one of the Delta actions, is 8 Delta Action Number 5 on Page A8? 9 DR. KJELSON: Yes. 10 MR. HERRICK: Correct me if I am wrong. That action 11 contemplates, depending on the conditions, an extension of 12 the pulse day beyond 31 days, pulse flow beyond the 31-day 13 period; is that correct? 14 DR. KJELSON: I don't remember exactly the extension 15 necessarily. 16 MR. HERRICK: Perhaps I could direct you to -- 17 DR. KJELSON: The reason I am questioning you is there 18 isn't literally flows. It's a ramping issue, where ramping 19 of exports up and potentially maintaining Vernalis flows and 20 exports. So, I think the description as you read it there 21 is pretty reflective of what was meant. 22 MR. HERRICK: I don't mean to misstate it. Depending 23 on various conditions, Delta Action 5 contemplates a 24 potential lengthening of the pulse flow; is that correct? 25 DR. KJELSON: Yes, potentially that is correct. CAPITOL REPORTERS (916) 923-5447 12132 1 MR. HERRICK: It also potentially anticipates a ramping 2 up of exports past the decreased exports during the 31-day 3 time period? 4 DR. KJELSON: Yes, that is correct. 5 MR. HERRICK: And under another joint point of 6 diversion part of the administrative proposal, and that 7 begins on Page C3 of the attachment to your testimony, that 8 describes a 250,000 acre-foot additional amount of export; 9 is that correct, or mentions it? That number is on the top 10 of Page C4. 11 DR. KJELSON: Yes. I agree that is what it says on the 12 top of page C4. 13 MR. HERRICK: Would you agree that the administrative 14 proposal contemplates the use of some of that additional 15 exports for fishery purposes or environmental purposes? Is 16 that correct? 17 DR. KJELSON: I hesitate to respond because I have not 18 evaluated this, and the whole joint point of diversion 19 aspect was testified to by the panel earlier. And the 20 linkage between what it says in the administrative proposal 21 and that, I just -- 22 MR. HERRICK: Let me ask one last question on that. 23 Perhaps you are aware, you may be working on it, I don't 24 know. Are you aware of whether or not those additional 25 exports would be held in some sort of account after they are CAPITOL REPORTERS (916) 923-5447 12133 1 exported for fishery purposes? Or is that the same answer 2 you had before? 3 DR. KJELSON: Give you the same answer as before. 4 MR. HERRICK: Thank you. 5 Mr. Kjelson, excuse me if some of this seems 6 repetitive. I don't think it is. I just want to clarify. 7 Between your original testimony and then the newest 8 testimony which is the replacement testimony, you changed 9 your conclusion as to what P value would equal a 10 statistically significant relationship; is that correct? 11 DR. KJELSON: As I said this morning, we found when we 12 reanalyzed the new data and corrected for the computer 13 programming error, we found that the relationship was 14 significant at a new level of significance, dropping from 15 less than .05 to less than .1, and I stipulated the 16 probability was now .6, which is a little greater than .05 17 -- .06, a little greater than .05. 18 MR. HERRICK: Excuse my ignorance in statistical 19 analysis. The first time you did it less .05 you determined 20 to be the dividing line between statistically significant 21 and not statistically significant; is that correct? 22 DR. KJELSON: It wasn't a conscious choice. We ran the 23 P value in our analysis and came lower than .05. So we 24 simply stated that, as we talked this morning, is oftentimes 25 a level of significance that is chosen. Then when we ran it CAPITOL REPORTERS (916) 923-5447 12134 1 with the new and corrected data, it was not significant at 2 that level, but was at a .1 level of significance. Was more 3 of a statement than a change of our level of the bar, should 4 we say. 5 MR. HERRICK: And perhaps that is my misunderstanding. 6 You are saying that the .06 -- are you saying that the .06 7 is what was determined by the new data or that you chose 8 the .06? 9 DR. KJELSON: That was what was calculated with the new 10 data. 11 MR. HERRICK: What about the new calculation tells you 12 that .6 is as reliable as the below .05? 13 DR. KJELSON: It isn't as reliable. It's a different 14 level of significance. It gives you more cause to question 15 the significance at simply a different level of 16 significance. That as stated, it wasn't a choice. It's 17 just a fact of life. 18 Normally, I haven't done this a lot, but you could 19 choose .07 as a level of significance and say it is, .06 is 20 lower than .07? 21 MR. HERRICK: Thank you. That is what I was trying to 22 understand. Appreciate that. 23 In answer to one of your questions or maybe it was on 24 direct, you stated that at one point since the original 25 testimony, I have it written down here, one more fish was CAPITOL REPORTERS (916) 923-5447 12135 1 found in the sampling; is this correct? 2 DR. KJELSON: Yes. 3 MR. HERRICK: Now, that is the part I don't understand. 4 I have on the board 12-A Replacement, on the overhead 12A 5 Replacement. Let me see if I can get to this point. 6 Do you have 12A in front of you? 7 DR. KJELSON: Yes. 8 MR. HERRICK: The two right-hand columns show fish 9 recoveries at CVP and SWP or CVP or SWP; is that correct, 10 far right-hand column? 11 DR. KJELSON: Yes. 12 MR. HERRICK: Are those recoveries at the export pumps 13 or are those recoveries from your trawling catches? 14 DR. KJELSON: Those are at the salvage facilities. 15 MR. HERRICK: Those are two different things, the 16 trawling and export facilities? 17 DR. KJELSON: Absolutely. 18 MR. HERRICK: The columns on -- the two columns on the 19 far right of 12A Replacement, some of the spots have 20 asterisks? Some have three. Some have two. Some have one. 21 Is that correct? 22 DR. KJELSON: Yes. 23 MR. HERRICK: The three asterisks refer to or explain 24 towards the bottom of that and it says that a few fish were 25 recovered but expanded numbers are not yet known; is that CAPITOL REPORTERS (916) 923-5447 12136 1 correct? 2 DR. KJELSON: At the time we put this together, that 3 was true. My assistants have received the information since 4 we put this out and expanded numbers, we do have some. I 5 have them if you want to know them. 6 MR. HERRICK: My first question is: What happens -- 7 how do you discover more fish were taken or grabbed at the 8 pumps? Is there some -- is there some pile somewhere that 9 hasn't been gone through? 10 DR. KJELSON: The expansion coefficient, if I am 11 correct, was not known at the time we put this together, 12 because it based on the amount of time sampled down there 13 and we have to get records from the Bureau and Department of 14 Water Resources to get that expansion factor. So, I am not 15 totally clear that this one fish and three fish are the ones 16 that were expanded. I believe so. I don't think we 17 received any more at the facilities in the last few days or 18 last few weeks. 19 But it was the fact that we didn't have the information 20 on how much the Bureau and State Water Project had actually 21 sampled down there. So we couldn't expand it at the time we 22 put this together. 23 MR. HERRICK: Once they take a sample at those 24 locations, then something else, some other calculation is 25 applied to those real numbers in order to determine a final CAPITOL REPORTERS (916) 923-5447 12137 1 number? 2 DR. KJELSON: That's correct. 3 MR. HERRICK: If we go down to the third column under 4 expanded Georgiana recovery, CVP, SWP, the third spot, it 5 shows two for the CVP and zero for the State Water Project; 6 is that correct? 7 DR. KJELSON: Yes. 8 MR. HERRICK: In developing the two, then, was that 9 some sort of expansion of something less than two? 10 DR. KJELSON: Most likely it was one fish was 11 collected, and they sampled half the time. So they doubled 12 it. That is my simple answer. I believe that to be true. 13 MR. HERRICK: So, for the first three columns, first 14 three rows, first three rows on the last two columns, using 15 the asterisk explanations as well as data in those columns, 16 the most that was sampled at either of the export facilities 17 was three fish; is that correct? 18 DR. KJELSON: I'm really hesitant to answer that 19 question. Let me see if I can get some additional 20 information here that is more up to date on that exact 21 point. 22 Please restate your question. 23 MR. HERRICK: For the first three rows of the last two 24 columns of Exhibit 12-A Replacement, the largest number of 25 fish taken and sampled or found at either the state or CAPITOL REPORTERS (916) 923-5447 12138 1 federal projects was at most three; is that correct? 2 DR. KJELSON: Yes. 3 MR. HERRICK: The actual number? 4 DR. KJELSON: As far as we know. These are somewhat 5 preliminary values. It is not to say tomorrow one will 6 show up tomorrow, and we will take that into consideration. 7 MR. HERRICK: I hope this isn't argumentative. I am 8 really trying to understand this. 9 Given that level of location or finding of fish at the 10 pumps for three of your eight data points, do you feel 11 confident that you can draw a conclusion that there is a 12 relationship between exports and pump take? Let me back up. 13 DR. KJELSON: I will give it a try. 14 MR. HERRICK: Maybe I can help, if you don't mind. If 15 your ultimate conclusion is that higher exports take fish, 16 okay, and we have got three data points that show virtually 17 no take, does that affect your ultimate conclusion, given 18 that three of the eight data points show virtually no take? 19 DR. KJELSON: I think we are mixing apples and oranges 20 here. The expanded recoveries basically we call direct 21 mortality, relative to exports. Other mortality that you 22 see in our -- reflected in our Exhibit 12-AA Replacement 23 also occurs, and we call that indirect mortality. In that 24 the fish, of course, exhibit mortality as they come through 25 the Delta. Some survive. Some don't. Some of that CAPITOL REPORTERS (916) 923-5447 12139 1 mortality is attributed to what is salvaged at the pumps or 2 lost in that process. 3 And as I think I stated earlier, that generally is a 4 very small percentage of the mortality that we have 5 estimated to occur as they pass through the Delta. The 6 other is related to a variety of factors not reflected in 7 the salvage numbers that you are referring to, but reflected 8 in our survival indices and survival ratio. And some of 9 that mortality is nonexport related. But based on our 10 figure some of it appears to be related to exports 11 directly. 12 And this figure, Exhibit 12-AA, pictorially somewhat 13 reflects that. I don't know if you want me to go into that 14 and clarify for you or not. 15 MR. HERRICK: Let me put it this way: You weren't able 16 -- I believe you weren't able to draw a conclusion until the 17 most recent data came in; is that correct? I believe your 18 earlier testimony said there was a gap, so I don't feel 19 confident drawing a conclusion? 20 DR. KJELSON: Yes. The December '98 data was very 21 important to drawing a conclusion. 22 MR. HERRICK: The most recent data shows either zero or 23 up to three fish, and, yet, that lets you draw a conclusion 24 that there is a relationship? 25 DR. KJELSON: Again, the recoveries at the fish CAPITOL REPORTERS (916) 923-5447 12140 1 facilities that you are referring to is only a very minor 2 part in the conclusion that exports are related to 3 survival. 4 MR. HERRICK: Is the Fish and Wildlife Service 5 exploring ways to keep fish out of Georgiana Slough as they 6 are keeping them out of the rest of the Delta through the 7 closure of the Delta Cross Channel? 8 DR. KJELSON: Well, we and many others in CalFed 9 agencies and other parties, stakeholders and others, 10 continually are trying to find ways that might lessen that. 11 And there's been a variety of things. It's been some time 12 which we talked about that. Screening Georgiana would be 13 one aspect. Putting a gated -- gates in the mouth of 14 Georgiana Slough is another. We've looked at a variety of 15 potentials to do that, and CalFed is looking at a variety of 16 them, too. 17 So, up to this point we have not either got a consensus 18 or agreement that anything else could be done. That is 19 going to be considered, of course, in our proposal in joint 20 point of diversion in overall CalFed operation. 21 MR. HERRICK: Do you still have Westlands Exhibit 115 22 and 114 that Mr. Birmingham passed out to you? 23 DR. KJELSON: I don't have it. 24 MR. HERRICK: Let me give you mine. If you will look 25 at those, I believe with some corrections you agreed that CAPITOL REPORTERS (916) 923-5447 12141 1 that data, generally, describes the two separate survival 2 ratios, the survival rates, rather than the ratio of the 3 two; is that correct? 4 DR. KJELSON: Yes. They generally reflect the separate 5 indices of the two relationships. 6 MR. HERRICK: One set shows the survival index for the 7 Ryde releases and one shows the survival index for the 8 Georgiana Slough releases; is that correct? 9 DR. KJELSON: That's correct. 10 MR. HERRICK: Did you conclude that, based on those two 11 charts, that there was no statistical relationship between 12 exports and the two different survival indices? 13 DR. KJELSON: As I stated in earlier cross-examination, 14 I don't recall what the statistical analysis showed, but in 15 general I think we did conclude typically for the Ryde, 16 Exhibit 114, very likely no relationship. R square was very 17 low. And for the Georgiana I forget what I said. I think 18 actually the R square for that was a fair degree higher. 19 Let's see if I can -- 20 I am glad they didn't put all these in the record; we'd 21 have everybody confused. 22 MR. HERRICK: Everybody else may have enjoyed having 23 those in the record. 24 DR. KJELSON: As I said this morning, R squared for the 25 Georgiana survival index alone versus exports alone was .25, CAPITOL REPORTERS (916) 923-5447 12142 1 and I don't remember if that was significant. I think if it 2 was, we would have noted it. 3 MR. WHITE: Can I make a clarifying point here? 4 MR. HERRICK: Sure. 5 MR. WHITE: We don't want to be confusing what the R 6 square value with what the P value means. The P value 7 essentially describes the probability of concluding that 8 there is a -- there is a relationship where none actually 9 exists. That is what that is. The R squared value simply 10 tells you how much of the variability of Y is explained by 11 X. So there has been a little bit of a tendency to go back 12 and forth between those two. The R squared value doesn't 13 tell you anything about the significance of the 14 relationship. 15 MR. HERRICK: Generally, would you agree, Dr. Kjelson, 16 that when you have the choice of putting salmon smolts down 17 on the Sacramento River or routing them to the Central Delta 18 you would prefer to put them down the Sacramento River? 19 DR. KJELSON: Yes. Fish coming from the Sacramento 20 Basin certainly would. 21 MR. HERRICK: Let's flip over to the San Joaquin River. 22 I will give you a couple assumptions in order to answer this 23 hypothetical. One assumption is under some conditions all 24 of the flow from the San Joaquin River would go straight 25 over to the export pumps. The other assumption under some CAPITOL REPORTERS (916) 923-5447 12143 1 conditions is if you have head of Old River Barrier in or 2 three tidal barriers, the fish are redirected instead of 3 towards the pumps to the Central Delta. 4 In that instance would you choose the Central Delta 5 route over the South Delta route? 6 DR. KJELSON: With the hypothetical statements you make 7 I would choose the San Joaquin route rather than straight to 8 the pumps, and I think we in our testimony in Phase II 9 expressed that also. 10 MR. HERRICK: Based on the knowledge -- although it is 11 a different route, the data you have provided for salmon 12 smolts on the Sacramento River, although fewer have survived 13 going through the Central Delta, it seems to be a pretty 14 flat line for the survivability; isn't that correct? 15 DR. KJELSON: I am hesitant to agree with your 16 conclusion. As I mentioned this morning, when you plot this 17 on a different axis and actually do the regression analysis, 18 the slope is downward. Even though it does not appear to be 19 significant, there is considerable variability. So I don't 20 know if I agree with you particularly for the Georgiana 21 Slough survival versus export. 22 MR. HERRICK: Is it your understanding that the CalFed 23 process which will come up with this recommended operations 24 plan, is that process going to determine the potential 25 effects of the operating plan on the salmon smolts? CAPITOL REPORTERS (916) 923-5447 12144 1 MR. CAMPBELL: May want to object to that on the same 2 basis that we objected to these types of questions from 3 counsel for East Bay MUD. 4 We had a witness available to answer questions 5 regarding the processes. We had several witness available, 6 typically Mr. Thabault of the Fish and Wildlife Service as 7 part of a full panel. Only this portion of the panel was 8 asked to stay after school and provide additional testimony 9 and be available for additional cross-examination. 10 So I think Mr. Herrick's already had a chance to ask 11 these questions of Mr. Thabault, and I believe he did ask 12 some of these questions. So I would object on the ground 13 that the panel is no longer available for that type of 14 cross-examination question. 15 C.O. STUBCHAER: Mr. Herrick. 16 MR. HERRICK: I understand that. However, I did ask 17 similar questions of Mr. Thabault. But I think it is 18 perfectly appropriate to ask this panel member those 19 questions because we weren't allowed to question him on 20 anything. I am just trying to find out his understanding of 21 what -- we can make it from his perspective at Fish and 22 Wildlife Service, what will be examined. 23 What I am getting to is whether the effects will be 24 examined or mitigation will be examined. I think that is 25 appropriate for him. CAPITOL REPORTERS (916) 923-5447 12145 1 C.O. BROWN: Overruled. Answer the question if you 2 can. 3 DR. KJELSON: I don't think I can answer the 4 question. I think, as Mr. Campbell said, Mr. Thabault is 5 much closer to the process aspects of CalFed than I am. 6 Undoubtedly, the testimony I've given in joint point of 7 diversion will be used and considered, as I have stated in 8 testimony and Mr. White did, will be considered in that 9 operational plan. I don't think I can go further. 10 MR. HERRICK: Do you understand -- do you believe that 11 more data will be developed prior to the development of that 12 operations plan? 13 DR. KJELSON: Our next chance of gaining data of this 14 sort will be the next fall and December. And my 15 understanding is that concept would be that the proposal 16 would be developed before that time. So we would not use 17 any new data collected in the field. We may consider 18 additional analysis of the data. That might have a bearing 19 on that plan. 20 MR. WHITE: I would add to that that regardless of 21 what the operation plan may contain, it is intended to 22 emphasize to a substantial degree adaptive management and to 23 be responsive to new information as it is collected. 24 MR. HERRICK: Dr. Kjelson, do you believe that the 25 DEIR produced by State Board staff contains a similar CAPITOL REPORTERS (916) 923-5447 12146 1 analysis to the one that you have done? 2 DR. KJELSON: No. As I think was testified before, 3 they did not have information to evaluate the affect of 4 joint point of diversion on spring-run. But Mr. White is a 5 lot closer to that. He may want to supplement what I just 6 said. 7 MR. WHITE: I believe Dr. Kjelson's statement in that 8 regard is accurate. 9 MR. HERRICK: Finally, just a few questions on the 10 reliability of each of the data points you developed. Am I 11 correct in concluding from that Page 6 that Mr. Nomellini 12 was covering with you, which is Page 6 of your proposal to 13 compare survival indices attached to your original 14 testimony, is -- 15 DR. KJELSON: Exhibit 12-B. 16 MR. HERRICK: Yes. Am I correct in reading that the 17 Chipps Island survival indices for both Ryde and Georgiana 18 Slough, the numbers in parenthesis are the actual fish 19 caught; is that correct? 20 DR. KJELSON: Yes. 21 MR. HERRICK: Could you tell us how many fish were 22 released each time? 23 DR. KJELSON: Yes, if you'd bear with me a minute. 24 MR. WHITE: The table is starting to look like my 25 desk. CAPITOL REPORTERS (916) 923-5447 12147 1 DR. KJELSON: You asked how many fish were released? 2 MR. HERRICK: Yes. Is it a changing number? 3 DR. KJELSON: Yes. It is a variable number and ranged 4 over the year we have done the work to about 30,000 fish to 5 71,000 fish. 6 MR. HERRICK: When you capture, say, five fish that 7 were originally released in Georgiana Slough out of -- how 8 many fish were released in 12/2/93 at Georgiana Slough? 9 DR. KJELSON: 33,668. 10 MR. HERRICK: When you capture five fish, do you know 11 how many days the sampling was done under that instance? 12 DR. KJELSON: From December 12th to March 4th or 83 13 days. 14 C.O. BROWN: Eighty-three days and you caught five 15 fish? 16 DR. KJELSON: Yes. 17 MR. HERRICK: Did you do some sort of adjustment to 18 that number in order to develop the survival indices? In 19 other words, did you increase that or decrease it or -- 20 DR. KJELSON: Yes. As I explained this morning, our 21 index is basically the number of fish recovered divided by 22 the number released times, both in the denominator, times 23 the percentage of time sampled and the fraction of the 24 channel sampled, which is basically a constant. That gives 25 the survival indices for each release. CAPITOL REPORTERS (916) 923-5447 12148 1 MR. HERRICK: Has your department done any sort of 2 analysis of the reliability of that calculation? 3 DR. KJELSON: Well, we have been doing it for so long I 4 hesitate to try to give you a lecture of all the things we 5 have done. We have attempted to look for bias in our 6 sampling, such as where we trawl, on what side of the 7 channel or the other, how long we trawl, what time of the 8 period of day we catch more fish or no fish. We have done a 9 lot of -- made a lot of efforts to try to improve upon that 10 and lessen the bias and variability. 11 MR. HERRICK: I think my question is more the feedback. 12 I understand that you have tried to do a number of things, 13 whether the side of the channel or center of the channel or 14 night or day. Those are understandable efforts to address 15 variables. I understand that. 16 What sort of feedback do you have to suggest that those 17 attempts at addressing variables have any affect or 18 significance? 19 DR. KJELSON: I am not sure I am prepared to answer 20 that fully. I am not sure I can. 21 MR. HERRICK: Has the Service secured any outside 22 critical analysis of these practices to see if there could 23 be changes or whether or not they are reliable or something 24 else? 25 DR. KJELSON: One example that comes to mind is the CAPITOL REPORTERS (916) 923-5447 12149 1 various parties in both agencies and stakeholders and 2 university people have suggested it would be valuable to 3 capture as many fish as we can. So at least during -- for 4 example, during our VAMP studies we are doubling our 5 trawling efforts to increase that resource. That is 6 resource-based, so we can't always do that. 7 I know we have been -- some people have suggested 8 utilizing a larger trawl, I believe a large Kodiak trawl. 9 We rejected that basically from a safety standpoint. But 10 both in our testimony we gave in 1987 and 1992 and Phase II 11 and a variety of other CalFed and endangered species forums, 12 we've had many people overlooking our processes and making 13 suggestions, and I think we have consciously taken them all 14 into consideration. So we have been able to implement and 15 others we have rejected, feeling that it wasn't 16 appropriate. 17 MR. HERRICK: I appreciate that, and I don't mean to 18 sound critical. My question is more, is there -- have you 19 asked some outside agency or expert to comment whether or 20 not, despite your efforts, it's a catch of fish over 83 days 21 is somehow representative? 22 MR. CAMPBELL: Objection. Asked and answered and 23 argumentative. 24 C.O. BROWN: I would like to hear the answer. 25 DR. KJELSON: I guess I can't remember the specific CAPITOL REPORTERS (916) 923-5447 12150 1 point. I know, as I described earlier, we had a team of 2 agency and consultant fishery biologists, what we call the 3 (b)(2) fish team, that went through a lot of our 4 experimental design for all the (b)(2) anadromous fish 5 restoration actions in the Delta. All of them had 6 suggestions. As I said, some of them we implemented and 7 some we didn't. 8 I think we've continually asked for assistance in 9 evaluation, as I said in a variety of forums. If you have a 10 specific example of what we rejected and accepted, I could 11 respond to that. 12 MR. HERRICK: What information do you rely upon, if 13 any, as to the time frame it takes any certain percentage of 14 the fish released at Georgiana Slough to make it to Chipps 15 Island or beyond? In other words, do you know whether or 16 not after 40 days 80 percent have gone or after a hundred 17 days 99 percent have gone? Do you know that information? 18 DR. KJELSON: Again, my staff went through each one of 19 these releases, and we looked at the numbers of days of a 20 given release group and how long it took them to get to 21 Chipps Island. Basically, the rule is when we run out of 22 fish we no longer put any further effort into doing so. 23 But as I described earlier, the total number of days 24 varied considerably as to our recoveries. Again, I don't 25 have this off the top of my head. But we certainly could CAPITOL REPORTERS (916) 923-5447 12151 1 calculate a percentage, 80 percent past and recovered at 2 Chipps Island versus some other percent. We could do that, 3 and we have done so, and I think I referred earlier this 4 morning, at least for one example we did, of the releases 5 made this past December. Recoveries in 14 days didn't 6 appear to tell the story as much as recoveries up to 20 7 days. After 20 days there were very few recoveries. 8 MR. HERRICK: Is it correct to say that you keep 9 sampling until you don't recover any more fish and then you 10 conclude that 100 percent of the releasees have reached 11 there or died? 12 DR. KJELSON: That is basically it. As I said this 13 morning, it is a difficult choice and we don't have an easy 14 answer as to the perfect time. Each year is a little 15 different. And that dilemma we have of matching up what 16 conditions the fish were exposed to is very difficult and it 17 causes considerable variation in our regression analysis and 18 our ability to draw very sound conclusions on some of the 19 parameters we are evaluating. 20 MR. HERRICK: I am sorry for taking long. I am almost 21 done here. 22 If you catch five fish in 83 days, you can't -- if you 23 spread those out evenly, there is sixteen days approximately 24 between catches perhaps. That is not the right number. But 25 why didn't you stop sampling after the first gap? How do CAPITOL REPORTERS (916) 923-5447 12152 1 you know to keep going for 83 days? At some point there is 2 a great big gap, yet you're deciding there still might be 3 fish. 4 DR. KJELSON: That isn't a conscious decision. We are 5 out there and we want to collect as much data as we can. We 6 are also doing relative sampling at that point to evaluate 7 the out-migration of other races. We are there, so we 8 collect fish. It isn't that we stop. Say, they are no 9 longer here; we stop sampling. We want to get as much 10 information as we can. 11 MR. WHITE: I think it is safe to say that when you are 12 going to do one of these experiments, right after you 13 release the fish, the frequency of sampling is typically 14 increased. I think Marty said earlier it might have been 15 two or three days a week, the routine level of sampling, and 16 after the release of these fish sampling is done at seven 17 days per week, if possible, or five, but an intensified 18 sampling in terms of frequency. And then at the point where 19 it appears as if the marked fish have passed Chipps Island 20 and the catch has declined to zero, you go back to the 21 baseline level of sampling of, say, two days a week. And if 22 you are wrong about all the fish having passed, you may 23 catch one in your two-day-a week sampling. 24 MR. HERRICK: How do you describe a statistical 25 significance to catching one fish 80 days after you have CAPITOL REPORTERS (916) 923-5447 12153 1 released them? How do you know that that catch has any 2 statistical reliability? 3 DR. KJELSON: Well, again, for example, in our draft 4 between exports and the survival ratio, that is simply a 5 data point. And undoubtedly that has variability around it 6 associated with what you are talking about. Limited numbers 7 of fish give you low survivals and there is noise and 8 variability around there. But I think why I haven't graphed 9 it, I think that it's quite consistent that if you plot the 10 number of fish recovered with the survival indices it 11 certainly is related. We correct for time sampled and a 12 variety of other things. You get one or two fish, in the 13 rawest terms, they did not survive very well. In our 14 context you start recovering 30, 40, 50 fish and the 15 survival is very high. 16 MR. HERRICK: At what point would a gap between 17 catching the last fish and another fish, at what point would 18 that lead you to conclude that that is an unreliable data 19 point in order to develop your regression analysis? 20 DR. KJELSON: Well, we could set a series of rules, as 21 I referred to this morning. We did not do that. I think in 22 general our analysis is not affected greatly by those late 23 recovered fish in the context of the fact that we have a few 24 number of fish you have low survival and high number of fish 25 you get high survival. I don't think that kind of bias or CAPITOL REPORTERS (916) 923-5447 12154 1 variability that you are inferring is something that would 2 cause us to throw off information we gained overall from all 3 the data. 4 MR. HERRICK: That is all I have. I would like my two 5 Westlands exhibits back. If nobody is going to use the 6 overheads -- 7 Keep sampling. 8 DR. KJELSON: One of those outliers. 9 C.O. STUBCHAER: I won't say something is fishy, that 10 is too -- 11 Thank you, Mr. Herrick. 12 Staff have any questions? 13 MR. HOWARD: No questions. 14 C.O. STUBCHAER: Mr. Brown. 15 ---oOo--- 16 CROSS-EXAMINATION OF DEPARTMENT OF THE INTERIOR AND 17 DEPARTMENT OF FISH AND GAME 18 BY BOARD MEMBERS 19 C.O. BROWN: I have one I thought Mr. Nomellini was 20 working on. 21 MR. NOMELLINI: Electrocuting the fish? 22 C.O. BROWN: No. The question was: Would a higher 23 rate of pumping cause a greater rate of fish loss that Mr. 24 Nomellini asked? My question is: Would a higher rate of 25 pumping cause a greater fish loss than a lower rate if the CAPITOL REPORTERS (916) 923-5447 12155 1 total amount of water pumped remains the same? 2 MR. WHITE: Certainly the time frame over which that 3 would be considered is part of that. If you could -- 4 C.O. BROWN: You pick -- 5 MR. WHITE: If you could define the question a little 6 more precisely. 7 DR. KJELSON: May I attempt? I think in some of my 8 testimony and my verbal testimony this morning I referred to 9 the fact that, consistent with the joint point of diversion 10 concept, you could spread the pumping over a variety of 11 months, same volume, opposed to pumping it all in one month, 12 it would greatly determine its affect on the fishery 13 population. 14 For example, if yearling spring run were concentrated 15 in the month of December and you pumped a high volume all in 16 that month, you would probably have a more likelihood based 17 on our data to have harm to those stocks than if you pumped 18 a whole -- that same volume over a period of three or four 19 months when the fish may not be exposed for that whole 20 period of time to the degree they were in that one month. I 21 don't know if that explains. 22 MR. WHITE: I guess if you look at it over the course 23 of just one day, it wouldn't make any difference. 24 C.O. BROWN: All right. Can you put up your Exhibit 25 12-AA Replacement? CAPITOL REPORTERS (916) 923-5447 12156 1 It's been a long time since I studied statistics. But 2 why didn't you throw out the high point and the low point on 3 this graph? 4 DR. KJELSON: Why did we or why don't we? 5 C.O. BROWN: Why don't you? Isn't that a common way of 6 doing it? And then if you go ahead and you were to do it 7 that way, you would have a pretty flat curve, wouldn't you? 8 DR. KJELSON: Yes, you would. 9 C.O. BROWN: Was there some reason that you did not 10 eliminate the excessive high point and the lowest point? Or 11 you don't do it that way anymore? 12 DR. KJELSON: No, I am not familiar with that. I think 13 we want to use as much data as we can unless we have a 14 strong reason to throw out a point due to some bias. 15 C.O. BROWN: Just something that is not right. And 16 when I was studying math, statistics, I believe that is the 17 way that it was done, in fact, back in college then. That 18 has been ten years ago. 19 That is all I have, Mr. Chairman. 20 C.O. STUBCHAER: Ms. Forster. 21 MEMBER FORSTER: Now that we are talking what was 22 studied in college, I wanted to be a biologist, but I didn't 23 like statistics too much, so I would have been unhappy in 24 the field, I think. 25 Simple question that you answered in a very technical CAPITOL REPORTERS (916) 923-5447 12157 1 way all day. You said that for your study for this whole 2 issue you have been explaining all day, you put 33,668 fish 3 in the system and in five days you got five fish. The 4 simple question would be: Where did the rest of them go? 5 And not using all the statistical information you gave us, 6 just -- 7 DR. KJELSON: The -- some of them died. Apparently a 8 great deal of them died. You have to remember the number 9 recovered is expanded based on the fraction of the time we 10 sampled. We only sampled 200 minutes out of the day. In 11 general you have expanded that where five becomes a much 12 greater number. And, secondly, we only sampled only a very 13 small portion of the channel. The width of our net is about 14 nine meters while the channel is about a half mile wide or 15 something of that nature. 16 It's all these expansions that allow you to predict 17 with some hesitation how many fish actually sampled or 18 passed Chipps Island. 19 MEMBER FORSTER: Thank you. Made this all simpler. 20 DR. KJELSON: I may add that many of us biologists 21 didn't care much for statistics. And the ones that really 22 did became statisticians. The rest of us were biologists. 23 C.O. STUBCHAER: I will just ask that question 24 semifacetiously, I guess. Did you try multiple regressions 25 on all the variables that were mentioned? Of course, If you CAPITOL REPORTERS (916) 923-5447 12158 1 have eight variables and eight data points, you get a 2 perfect fit. 3 DR. KJELSON: We did not try multiple regression with 4 this set of data. However, there is a considerable effort 5 that has gone on by ourselves and a variety of other people 6 to try to model multiple regression theory and other 7 techniques to see what factors seem to be most important in 8 determining survival. So that is another whole realm of 9 work that is ongoing. 10 C.O. STUBCHAER: That concludes the cross-examination. 11 Mr. Turner, are you going to do redirect? 12 MR. TURNER: Yes. If I could have just one minute. 13 Thank you, Mr. Stubchaer. All I would like to do by 14 way of redirect is just give Mr. Kjelson the opportunity to 15 correct some of the responses he had made to Mr. Nomellini 16 in connection with Table 1 on Exhibit 12-B which was dealing 17 with the ocean recovery rates. He felt there was -- 18 C.O. STUBCHAER: Start over. Use the mike. 19 ---oOo--- 20 REDIRECT EXAMINATION OF DEPARTMENT OF THE INTERIOR AND 21 DEPARTMENT OF FISH AND GAME 22 BY MR. TURNER 23 MR. TURNER: I just wanted to ask Mr. Kjelson if he 24 wanted to clarify one of the responses he had made to Mr. 25 Nomellini in connection with Table 1 of Exhibit 12-B CAPITOL REPORTERS (916) 923-5447 12159 1 regarding the ocean recovery rates. 2 DR. KJELSON: Yes, and it is purely a clarification. 3 When he was asking me about ocean recovery rates on Page 6, 4 the ocean recovery rates shown here are purely an expansion 5 of the number of fish recovered in the ocean fishery, 6 commercial and sport, divided by the number released. So it 7 is recovery rate. 8 Where I may have confused people is that in other work 9 we have done with fall-run fish, we released fish somewhere 10 in the Delta. Also released them at Port Chicago as a 11 control, quite similar to Ryde versus Georgiana concept, and 12 recovered then those fish in the ocean, and that was what we 13 call our ocean estimate of survival. It was a ratio of the 14 number of expanded recoveries divided by the number released 15 of a given release group divided by that same recovery 16 expansion of the fish released at Port Chicago. And I just 17 wanted to clarify that potential misunderstanding. 18 C.O. STUBCHAER: Thank you, Mr. Kjelson. 19 Any recross-examination? 20 MR. NOMELLINI: Now that it has been clarified, I've 21 got a perfect understanding of it. 22 C.O. BROWN: Well, thank you for that. 23 That concludes the case in chief of Department of the 24 Interior, I believe. 25 Mr. Turner. CAPITOL REPORTERS (916) 923-5447 12160 1 MR. TURNER: Thank you, Mr. Chairman. I would now like 2 to offer the Department of Interior exhibits for 3 introduction into the record. Those would consist of -- 4 those exhibits would consist of Exhibits 10, 11, 12, and 17 5 with all of the attached exhibits that have been given the 6 same exhibit number with the attached letters. We are 7 talking Exhibit 10, 11, 12, 13 and 17. 8 C.O. STUBCHAER: Ms. Whitney. 9 MS. WHITNEY: 13 was not introduced. Those are 10 exhibits for Connie Rupp, who has not testified. 11 MR. TURNER: Just talking 10, 11 and 12. 12 MS. WHITNEY: For clarity to the record I would like 13 him to read the attachments, at least the beginning one and 14 the ending ones to make sure we have them all. 15 C.O. STUBCHAER: Read the attachments. 16 MS. WHITNEY: A through whatever. 17 MR. TURNER: On Exhibit 10 we are talking about 18 attachments 10-A through 10-WW. 19 MS. WHITNEY: What about XX and YY? Those were 20 submitted by John Renning with his supplemental testimony. 21 Also, you submitted a revised 10-Z. I assume you want the 22 revised 10-Z in the record not the original 10-Z? 23 MR. TURNER: That is correct, revised 10-Z. The 24 exhibits will be running through, you are correct, Exhibit 25 10-A through -- the attachments to 10-A through 10-YY and CAPITOL REPORTERS (916) 923-5447 12161 1 revised Exhibit 10-Z to replace the previous Exhibit 10-Z. 2 We then have Exhibit 11, with attachments 11-A through 3 11-LL. 4 MS. WHITNEY: I don't have that many exhibits for 5 11. I only have 11-A through 11-N. 6 C.O. STUBCHAER: Mr. Jackson, what is the nature of 7 your appearance here? 8 MR. JACKSON: I am going to ask for some time, at 9 least until tomorrow before these go into evidence. I just 10 have finished and have been reading for most of the day a 11 memorandum opinion, an order, from the United States 12 District Court, Eastern District of California, which finds 13 the Administrative Proposal of the Department of the 14 Interior to be illegal. And at least one of these exhibits 15 is the Administrative Proposal. So, clearly, I would oppose 16 the entry of that into this record. 17 But I would like to examine the testimony now in light 18 of this ruling because I think that we need to strike most 19 of the testimony of the Department of Interior witnesses in 20 this phase, but I can't tell you that for sure until I have 21 a chance to compare this ruling with those documents. 22 C.O. STUBCHAER: What is the date of the ruling? 23 MR. JACKSON: March 19th. 24 MS. WHITNEY: Exhibit 116. 25 MR. JACKSON: Exhibit 116. CAPITOL REPORTERS (916) 923-5447 12162 1 C.O. STUBCHAER: Mr. Campbell. 2 MR. CAMPBELL: Mr. Jackson is getting into an area of 3 legal argument that he will have ample opportunity to make 4 in more appropriate fashion in his closing brief. 5 Returning to a ruling made by then acting Chair, 6 Mr. Brown, with regard to some apparent deficiencies in 7 Westlands' exhibits, they were admitted over objection on 8 the grounds that the parties can fight them in legal briefs 9 over what they mean or don't mean. But the Board will 10 ultimately assign what weight should be given to those 11 exhibits as evidence. 12 I would recommend that that same approach be utilized 13 here, that Mr. Jackson's remedy with regard to his 14 interpretation of the court decision, to argue in his legal 15 brief, closing brief. 16 MR. JACKSON: No, sir, that is not correct. The 17 government is now offering, at least in 12-B, an 18 administrative proposal which they know has been disapproved 19 by the District Court and is binding upon them. And they 20 have no right to enter that into this record or to use that 21 in any fashion for the conclusions of these expert 22 witnesses. 23 Now, how much that taints or changes the testimony and 24 the exhibits, I cannot stand here and tell you that I know 25 at this point because I have not had an opportunity to CAPITOL REPORTERS (916) 923-5447 12163 1 review it. I am not a party to that case. It seems to me 2 that this is critical in that it's evidence going into the 3 record at a time in which they know it's interpretations are 4 not legal. 5 C.O. STUBCHAER: Well, Mr. Nomellini was next. Then I 6 will take Mr. Campbell. 7 MR. NOMELLINI: My recollection is that the Westlands 8 exhibit number, whatever it is, including that decision went 9 in by stipulation. It didn't go in on the conditions Mr. 10 Campbell has stated. 11 MR. CAMPBELL: I am sorry. I was talking about 12 Westlands' 114 and 115, not Westlands', I forgot which 13 number, 113, which was the court order. Those exhibits did 14 not go in under stipulation. They were subject to 15 objection. And the Board's ruling was to let them in and 16 then the Board would determine the weight of their 17 evidence. 18 I think that is what the Board should do with these 19 exhibits as well. It is not as if in the federal court 20 proceeding the Court issued an order to this Board that the 21 Board cannot receive these documents into evidence for 22 whatever the Board may seek to use them for. And it is not 23 clear that this court decision is final. It may be subject 24 to appeal. 25 So, I still see this as a question of pure legal CAPITOL REPORTERS (916) 923-5447 12164 1 argument on the part of Mr. Jackson, and that he is welcome 2 to make that legal argument in his closing brief, and he can 3 advise the Board in his closing argument that his opinion 4 and for any legal reasons he cares to cite that evidence 5 that relates to that court decision should be given no 6 weight, some weight, whatever. 7 C.O. STUBCHAER: Let me ask Mr. Turner a question. 8 Mr. Turner, are you going to be here tomorrow with your 9 rebuttal witnesses? 10 MR. TURNER: Yes, I will, Mr. Stubchaer. 11 C.O. STUBCHAER: Ms. Leidigh, deferring this decision 12 until tomorrow cause any problems? Be a courtesy to Mr. 13 Jackson so he can look at it, and we have to adjourn to get 14 to our Executive Session now. 15 MS. LEIDIGH: I don't see any problem in waiting until 16 tomorrow. 17 C.O. STUBCHAER: That is what we will do. We will rule 18 on the admission of the evidence in the morning since you 19 are going to be here. The panel isn't going to be here 20 unless they're your rebuttal witnesses, of courses. 21 MR. TURNER: We will definitely be here. I am going to 22 go ahead and clear up the exhibit numbers we want to 23 introduce. We can do that in the morning as well. 24 C.O. STUBCHAER: Mr. Sexton. 25 MR. SEXTON: Do you want to consider cross-examination CAPITOL REPORTERS (916) 923-5447 12165 1 exhibits this afternoon or wait until morning, Mr. 2 Stubchaer? 3 C.O. STUBCHAER: I prefer to wait until tomorrow, if 4 that doesn't cause you any inconvenience. 5 MR. SEXTON: No inconvenience. 6 Mr. Campbell. 7 MR. CAMPBELL: I would like to go ahead and offer my, 8 the Department of Fish and Game exhibits into the record. I 9 think the Department of Water Resources would like to do so, 10 as well, for the convenience of our witnesses so they do not 11 have to return tomorrow. 12 C.O. STUBCHAER: I don't think they have to be here to 13 accept them into evidence. They don't have to be here for 14 that. 15 The panel is excused unless you bring them back for 16 rebuttal. 17 MR. CAMPBELL: For example, I know this won't happen 18 with ours, but if it happened to be a problem with the 19 admission of the exhibits that could be cured easily with 20 the availability of the witness. I would like to have a 21 witness here and that is what I have now. 22 C.O. STUBCHAER: I don't recall that happening during 23 this hearing. Put it this way: Do you have them all 24 organized? We have to adjourn. And if there are no 25 objections, we can do it. If there are objections, we will CAPITOL REPORTERS (916) 923-5447 12166 1 wait. 2 MR. CAMPBELL: Without knowledge of any objection, if 3 you give me two minutes I can get this done. 4 C.O. STUBCHAER: We will do it in the morning. Sorry. 5 It is no problem. We are adjourned until 9:00 a.m. tomorrow 6 morning. 7 (Hearing adjourned at 3:35 p.m.) 8 ---oOo--- 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 12167 1 REPORTER'S CERTIFICATE 2 3 4 STATE OF CALIFORNIA ) ) ss. 5 COUNTY OF SACRAMENTO ) 6 7 8 I, ESTHER F. WIATRE, certify that I was the 9 official Court Reporter for the proceedings named herein, 10 and that as such reporter, I reported in verbatim shorthand 11 writing those proceedings; 12 That I thereafter caused my shorthand writing to be 13 reduced to typewriting, and the pages numbered 11999 through 14 12167 herein constitute a complete, true and correct record 15 of the proceedings. 16 17 IN WITNESS WHEREOF, I have subscribed this certificate 18 at Sacramento, California, on this 2nd day of April 1998. 19 20 21 22 23 ______________________________ ESTHER F. WIATRE 24 CSR NO. 1564 25