STATE WATER RESOURCES CONTROL BOARD PUBLIC HEARING 1998 BAY-DELTA WATER RIGHTS HEARING HELD AT: BONDERSON BUILDING 901 P STREET SACRAMENTO, CALIFORNIA THURSDAY, MARCH 25, 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 JAMES CANADY, ENVIRONMENTAL SPECIALIST DAVID CORNELIUS, SENIOR CONTROL ENGINEER 9 10 COUNSEL: 11 WILLIAM R. ATTWATER, CHIEF COUNSEL BARBARA LEIDIGH 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 and JAMES TURNER, ESQ. 9 10 CALIFORNIA URBAN WATER AGENCIES: 11 BYRON M. BUCK 455 Capitol Mall, Suite 705 12 Sacramento, California 95814 13 RANCHO MURIETA COMMUNITY SERVICES DISTRICT: 14 MCDONOUGH, HOLLAND & ALLEN 555 Capitol Mall, 9th Floor 15 Sacramento, California 95814 BY: VIRGINIA A. CAHILL, ESQ. 16 CALIFORNIA DEPARTMENT OF FISH AND GAME: 17 OFFICE OF ATTORNEY GENERAL 18 1300 I Street, Suite 1101 Sacramento, California 95814 19 BY: MATTHEW CAMPBELL, ESQ. 20 NATURAL RESOURCES DEFENSE COUNCIL: 21 HAMILTON CANDEE, ESQ. 71 Stevenson Street 22 San Francisco, California 94105 23 24 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 ARVIN-EDISON WATER STORAGE DISTRICT, et al.: 3 DOOLEY HERR & WILLIAMS 3500 West Mineral King Avenue, Suite C 4 Visalia, California 93291 BY: DANIEL M. DOOLEY, ESQ. 5 SACRAMENTO MUNICIPAL UTILITY DISTRICT: 6 LESLIE A. DUNSWORTH, ESQ. 7 6201 S Street Sacramento, California 95817 8 SOUTH SAN JOAQUIN IRRIGATION DISTRICT, et al.: 9 BRAY, GEIGER, RUDQUIST & NUSS 10 311 East Main Street, 4th Floor Stockton, California 95202 11 BY: STEVEN P. EMRICK, ESQ. 12 EAST BAY MUNICIPAL UTILITY DISTRICT: 13 EBMUD OFFICE OF GENERAL COUNSEL 375 Eleventh Street 14 Oakland, California 94623 BY: FRED S. ETHERIDGE, ESQ. 15 GOLDEN GATE AUDUBON SOCIETY: 16 ARTHUR FEINSTEIN 17 2530 San Pablo Avenue, Suite G Berkeley, California 94702 18 CONAWAY CONSERVANCY GROUP: 19 UREMOVIC & FELGER 20 P.O. Box 5654 Fresno, California 93755 21 BY: WARREN P. FELGER, ESQ. 22 THOMES CREEK WATER ASSOCIATION: 23 THOMES CREEK WATERSHED ASSOCIATION P.O. Box 2365 24 Flournoy, California 96029 BY: LOIS FLYNNE 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 COURT APPOINTED REPS OF WESTLANDS WD AREA 1, et al.: 3 LAW OFFICES OF SMILAND & KHACHIGIAN 601 West Fifth Street, Seventh Floor 4 Los Angeles, California 90075 BY: CHRISTOPHER G. FOSTER, ESQ. 5 CITY AND COUNTY OF SAN FRANCISCO: 6 OFFICE OF THE CITY ATTORNEY 7 1390 Market Street, Sixth Floor San Francisco, California 94102 8 BY: DONN W. FURMAN, ESQ. 9 CAMP FAR WEST IRRIGATION DISTRICT, et al.: 10 DANIEL F. GALLERY, ESQ. 926 J Street, Suite 505 11 Sacramento, California 95814 12 BOSTON RANCH COMPANY, et al.: 13 J.B. BOSWELL COMPANY 101 West Walnut Street 14 Pasadena, California 91103 BY: EDWARD G. GIERMANN 15 SAN JOAQUIN RIVER GROUP AUTHORITY, et al.: 16 GRIFFTH, MASUDA & GODWIN 17 517 East Olive Street Turlock, California 95381 18 BY: ARTHUR F. GODWIN, ESQ. 19 NORTHERN CALIFORNIA WATER ASSOCIATION: 20 RICHARD GOLB 455 Capitol Mall, Suite 335 21 Sacramento, California 95814 22 PLACER COUNTY WATER AGENCY, et al.: 23 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Capitol Mall, 27th Floor 24 Sacramento, California 95814 BY: JANET GOLDSMITH, ESQ. 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 ENVIRONMENTAL DEFENSE FUND: 3 DANIEL SUYEYASU, ESQ. and 4 THOMAS J. GRAFF, ESQ. 5655 College Avenue, Suite 304 5 Oakland, California 94618 6 CALAVERAS COUNTY WATER DISTRICT: 7 SIMON GRANVILLE P.O. Box 846 8 San Andreas, California 95249 9 CHOWCHILLA WATER DISTRICT, et al.: 10 GREEN, GREEN & RIGBY P.O. Box 1019 11 Madera, California 93639 BY: DENSLOW GREEN, ESQ. 12 CALIFORNIA FARM BUREAU FEDERATION: 13 DAVID J. GUY, ESQ. 14 2300 River Plaza Drive Sacramento, California 95833 15 SANTA CLARA VALLEY WATER DISTRICT: 16 MORRISON & FORESTER 17 755 Page Mill Road Palo Alto, California 94303 18 BY: KEVIN T. HAROFF, ESQ. 19 CITY OF SHASTA LAKE: 20 ALAN N. HARVEY P.O. Box 777 21 Shasta Lake, California 96019 22 COUNTY OF STANISLAUS: 23 MICHAEL G. HEATON, ESQ. 926 J Street 24 Sacramento, California 95814 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 GORRILL LAND COMPANY: 3 GORRILL LAND COMPANY P.O. Box 427 4 Durham, California 95938 BY: DON HEFFREN 5 SOUTH DELTA WATER AGENCY: 6 JOHN HERRICK, ESQ. 7 3031 West March Lane, Suite 332 East Stockton, California 95267 8 COUNTY OF GLENN: 9 NORMAN Y. HERRING 10 525 West Sycamore Street Willows, California 95988 11 REGIONAL COUNCIL OF RURAL COUNTIES: 12 MICHAEL B. JACKSON, ESQ. 13 1020 Twelfth Street, Suite 400 Sacramento, California 95814 14 DEER CREEK WATERSHED CONSERVANCY: 15 JULIE KELLY 16 P.O. Box 307 Vina, California 96092 17 DELTA TRIBUTARY AGENCIES COMMITTEE: 18 MODESTO IRRIGATION DISTRICT 19 P.O. Box 4060 Modesto, California 95352 20 BY: BILL KETSCHER 21 SAVE THE SAN FRANCISCO BAY ASSOCIATION: 22 SAVE THE BAY 1736 Franklin Street 23 Oakland, California 94612 BY: CYNTHIA L. KOEHLER, ESQ. 24 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 BATTLE CREEK WATERSHED LANDOWNERS: 3 BATTLE CREEK WATERSHED CONSERVANCY P.O. Box 606 4 Manton, California 96059 5 BUTTE SINK WATERFOWL ASSOCIATION, et al.: 6 MARTHA H. LENNIHAN, ESQ. 455 Capitol Mall, Suite 300 7 Sacramento, California 95814 8 CITY OF YUBA CITY: 9 WILLIAM P. LEWIS 1201 Civic Center Drive 10 Yuba City 95993 11 BROWNS VALLEY IRRIGATION DISTRICT, et al.: 12 BARTKEWICZ, KRONICK & SHANAHAN 1011 22nd Street, Suite 100 13 Sacramento, California 95816 BY: ALAN B. LILLY, ESQ. 14 CONTRA COSTA WATER DISTRICT: 15 BOLD, POLISNER, MADDOW, NELSON & JUDSON 16 500 Ygnacio Valley Road, Suite 325 Walnut Creek, California 94596 17 BY: ROBERT B. MADDOW, ESQ. 18 GRASSLAND WATER DISTRICT: 19 DON MARCIOCHI 22759 South Mercey Springs Road 20 Los Banos, California 93635 21 SAN LUIS CANAL COMPANY: 22 FLANNIGAN, MASON, ROBBINS & GNASS 3351 North M Street, Suite 100 23 Merced, California 95344 BY: MICHAEL L. MASON, ESQ. 24 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 STONY CREEK BUSINESS AND LAND OWNERS COALITION: 3 R.W. MCCOMAS 4150 County Road K 4 Orland, California 95963 5 TRI-DAM POWER AUTHORITY: 6 TUOLUMNE UTILITIES DISTRICT P.O. Box 3728 7 Sonora, California 95730 BY: TIM MCCULLOUGH 8 DELANO-EARLIMART IRRIGATION DISTRICT, et al.: 9 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 10 P.O. Box 1679 Oroville, California 95965 11 BY: JEFFREY A. MEITH, ESQ. 12 HUMANE FARMING ASSOCIATION: 13 BRADLEY S. MILLER 1550 California Street, Suite 6 14 San Francisco, California 94109 15 CORDUA IRRIGATION DISTRICT, et al.: 16 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 17 Oroville, California 95965 BY: PAUL R. MINASIAN, ESQ. 18 EL DORADO COUNTY WATER AGENCY: 19 DE CUIR & SOMACH 20 400 Capitol Mall, Suite 1900 Sacramento, California 95814 21 BY: DONALD B. MOONEY, ESQ. 22 GLENN COUNTY FARM BUREAU: 23 STEVE MORA 501 Walker Street 24 Orland, California 95963 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 MODESTO IRRIGATION DISTRICT: 3 JOEL MOSKOWITZ P.O. Box 4060 4 Modesto, California 95352 5 PACIFIC GAS & ELECTRIC: 6 RICHARD H. MOSS, ESQ. P.O. Box 7442 7 San Francisco, California 94120 8 CENTRAL DELTA WATER AGENCY, et al.: 9 NOMELLINI, GRILLI & MCDANIEL P.O. Box 1461 10 Stockton, California 95201 BY: DANTE JOHN NOMELLINI, ESQ. 11 and DANTE JOHN NOMELLINI, JR., ESQ. 12 TULARE LAKE BASIN WATER STORAGE UNIT: 13 MICHAEL NORDSTROM 14 1100 Whitney Avenue Corcoran, California 93212 15 AKIN RANCH, et al.: 16 DOWNEY, BRAND, SEYMOUR & ROHWER 17 555 Capitol Mall, 10th Floor Sacramento, California 95814 18 BY: KEVIN M. O'BRIEN, ESQ. 19 OAKDALE IRRIGATION DISTRICT: 20 O'LAUGHLIN & PARIS 870 Manzanita Court, Suite B 21 Chico, California 95926 BY: TIM O'LAUGHLIN, ESQ. 22 SIERRA CLUB: 23 JENNA OLSEN 24 85 Second Street, 2nd Floor San Francisco, California 94105 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 YOLO COUNTY BOARD OF SUPERVISORS: 3 LYNNEL POLLOCK 625 Court Street 4 Woodland, California 95695 5 PATRICK PORGANS AND ASSOCIATES: 6 PATRICK PORGANS P.O. Box 60940 7 Sacramento, California 95860 8 BROADVIEW WATER DISTRICT, et al.: 9 DIANE RATHMANN 10 FRIENDS OF THE RIVER: 11 BETSY REIFSNIDER 128 J Street, 2nd Floor 12 Sacramento, California 95814 13 MERCED IRRIGATION DISTRICT: 14 FLANAGAN, MASON, ROBBINS & GNASS P.O. Box 2067 15 Merced, California 95344 BY: KENNETH M. ROBBINS, ESQ. 16 CENTRAL SAN JOAQUIN WATER CONSERVATION DISTRICT: 17 REID W. ROBERTS, ESQ. 18 311 East Main Street, Suite 202 Stockton, California 95202 19 METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA: 20 JAMES F. ROBERTS 21 P.O. Box 54153 Los Angeles, California 90054 22 SACRAMENTO AREA WATER FORUM: 23 CITY OF SACRAMENTO 24 980 9th Street, 10th Floor Sacramento, California 95814 25 BY: JOSEPH ROBINSON, ESQ. 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 WESTLANDS ENCROACHMENT AND EXPANSION LANDOWNERS: 23 BAKER, MANOCK & JENSEN 5260 North Palm Avenue 24 Fresno, Califonria 93704 BY: CHRISTOPHER L. CAMPBELL, ESQ. 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 SAN LUIS WATER DISTRICT: 3 LINNEMAN, BURGES, TELLES, VAN ATTA 1820 Marguerite Street 4 Dos Palos, California 93620 BY: THOMAS J. KEENE, ESQ. 5 6 ---oOo--- 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 1 INDEX 2 PAGE 3 RESUMPTION OF HEARING: 12296 4 AFTERNOON SESSION: 12399 5 POLICY STATEMENTS: 6 BY MR. DEVORE 12302 BY MR. JACKSON 12308 7 BY MR. HERRICK 12312 BY MR. BIRMINGHAM 12315 8 BY MR. NOMELLINI 12321 9 DEPARTMENT OF THE INTERIOR: 10 OPENING STATEMENT: BY MR. TURNER 12327 11 CONNIE RUPP FRANK MICHNY 12 DIRECT EXAMINATION: BY MR. TURNER 12333 13 CROSS-EXAMINATION: BY MR. KEENE 12350 14 BY MR. HERRICK 12354 BY MR. NOMELLINI 12415 15 BY MR. CONANT 12452 BY MR. BIRMINGHAM 12453 16 17 ---oOo--- 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 1 SACRAMENTO, CALIFORNIA 2 MARCH 25, 1999 3 ---oOo--- 4 C.O. STUBCHAER: Good morning. This is the time and 5 place for the commencement of Phase VII of the hearing on 6 Bay-Delta water rights. This hearing is held in accordance 7 with Revised Notice of Hearing dated May 6, 1998. 8 I am Jim Stubchaer. With me today are Board Member 9 John Brown, Vice Chair Mary Jane Forster and Executive 10 Director Walt Pettit. Assisting the Board at the staff 11 table are Barbara Leidigh, Senior Staff Counsel; Dave 12 Cornelius, Senior Engineer; Jim Canady, Environmental 13 Specialist. 14 The purpose of this phase of the hearing is to afford 15 the parties an opportunity to present relevant testimony, 16 maps, charts, studies and other materials to create a 17 evidentiary record which will assist the Board in making a 18 determination on the issue listed in the May 6, 1998, 19 Revised Notice of Public Hearing. That issue is: Should the 20 Board approve the petition changes in place of use and 21 purpose of use of water under the Central Valley Project 22 permits? What terms and conditions, if any, should be added 23 to the CVP permits under consideration, if the Board 24 approves these changes? 25 The order of proceeding in this hearing is to first CAPITOL REPORTERS (916) 923-5447 12296 1 take any new appearances of parties, then receive general, 2 that is, applicable to all or several of the hearing phases 3 oral policy statements from those who wish to present only a 4 policy statement. Board will also accept written policy 5 statements. A policy statement is a nonevidentiary 6 statement. It is subject to the limitations listed in the 7 hearing notice. Presenters of policy statements should fill 8 out a speaker card and give it to the staff at the front 9 table. 10 After that we will hear any opening statements from a 11 party who did not plan to present a case in chief in Phase 12 VII. After that we will hear the cases in chief of parties 13 presenting evidence in Phase VII. Each case in chief may be 14 commenced with an opening statement. After any opening 15 statement we will hear testimony from the witnesses called 16 by the party presenting the case in chief, followed by 17 cross-examination by other parties, Board staff and Board 18 Members. 19 This procedure will be followed for each party 20 presenting a case in chief. Redirect testimony and 21 recross-examination limited to the scope of the redirect 22 testimony will be permitted. After all the cases in chief 23 are completed the parties may present rebuttal evidence, 24 addressing specific case in chief evidence presented by 25 adverse parties. CAPITOL REPORTERS (916) 923-5447 12297 1 I encourage everyone to be efficient in presenting 2 their cases and their cross-examination. Except where we 3 approve a variation, we will follow the procedure set forth 4 in the Board's regulations and in the attachment to the 5 hearing notice entitled "Bay-Delta Water Rights Hearing 6 Information Concerning Appearances by Parties." 7 We will keep track of the time. As usual, the timer 8 will be stopped during objections, procedural points and 9 other interruptions. All requests to the Hearing Officer on 10 behalf of a party should be made at the lectern by the 11 parties' representatives, including requests regarding the 12 cross-examination of witnesses. 13 Regarding cross-examination, each party will be allowed 14 up to one hour to cross-examine a witness or panel of 15 witnesses. At the end of the hour the cross-examiner will 16 be given the opportunity to make an offer of proof as to the 17 additional matters which the cross-examiner wishes to cover 18 and to make an estimate of the time needed to complete the 19 cross-examination. 20 If additional cross-examination is allowed after an 21 offer of proof, the cross-examiner may be requested to 22 stipulate the amount of additional time needed to complete 23 the cross-examination. 24 We have observed that the order in which 25 cross-examiners are called makes a difference. Many of the CAPITOL REPORTERS (916) 923-5447 12298 1 questions asked by late examiners are prompted by previous 2 cross-examination, even though they should not be based on 3 the previous cross-examination. In the interest of 4 fairness, we will attempt to assign -- we will assign the 5 order of cross-examination in a random manner in order to 6 prevent late requests to cross-examine. 7 Parties who are not sure if they wish to cross-examine 8 should identify themselves when the Hearing Officer asks, 9 "Who wishes to cross-examine a panel?" They can then be 10 included in the order of cross-examination. If they later 11 determine it is not necessary to cross-examine a panel, they 12 can so state when called. 13 Unless announced otherwise, we will schedule each day 14 of hearing to begin at 9:00 a.m. and conclude at 4:00 p.m. 15 with one hour for lunch and two 12-minute breaks during the 16 day. We will try to announce any changes in this schedule 17 at least a day in advance. 18 We will call for each of the party's testimony in 19 related cross-examination in the following order: Department 20 of the Interior, Department of Fish and Game, County of 21 Trinity, Tehama-Colusa Canal Authority, Santa Clara Valley 22 Water District, Sacramento Municipal Utility District, El 23 Dorado County Water Agency, San Luis Water District, Del 24 Puerto Water District jointly with the Arvin-Edison Water 25 Storage District, Westlands Water District and Westlands CAPITOL REPORTERS (916) 923-5447 12299 1 Encroachment Landowners. 2 Please note that the order of appearance for Phase VII 3 has been modified slightly from that originally posted on 4 the website. Pixley Irrigation District and Rag Gulch Water 5 District were removed from the order of appearance because 6 they chose not to present a case. 7 Now I would like to invite any new appearances by 8 parties who have filed notices of intent to appear but have 9 not previously appeared at this hearing. Will those making 10 appearances please state your name and spell it for the 11 Court Reporter and parties whom you represent and any change 12 in address that the court reporter can enter this 13 information into the record. Copies of the service list are 14 available from the staff so you can verify that we have your 15 current address. 16 Morning. 17 MS. DUNSWORTH: Morning. My name is Leslie Dunsworth. 18 I am an attorney with the Sacramento Municipal Utility 19 District, appearing today for the first time, and I believe 20 our address is correct. 21 C.O. STUBCHAER: Thank you. 22 MR. KEENE: My name is Thomas Keene. I am an attorney 23 with the Linneman, Burges, Telles, Van Atta firm and am 24 appearing on behalf of the San Luis Water District. The 25 record, I believe, has our accurate address. CAPITOL REPORTERS (916) 923-5447 12300 1 C.O. STUBCHAER: Thank you. 2 MR. HAROFF: Mr. Chairman, Members of the Board, my 3 name is Kevin Haroff of the law firm Morrison & Forester. 4 We are making an appearance today on behalf of Santa Clara 5 Valley Water District. I think the record reflects our 6 address. 7 C.O. STUBCHAER: If you do have cards for the Court 8 Reporter, that would be helpful. 9 Anyone else? 10 MR. JACKSON: Michael Jackson appearing specially for 11 Trinity County to indicate that Trinity County will not be 12 putting on a case in chief in Phase VII. 13 C.O. STUBCHAER: Thank you, Mr. Jackson. 14 Anyone else wishing to make appearances? 15 The Court Reporter is present to prepare a transcript 16 of the proceedings. Parties wishing to have copies of the 17 transcript must make their own arrangements with the Court 18 Reporter. Copies of the transcript will be posted on the 19 Bay-Delta web page no sooner than 60 days after the Board 20 receives the transcript from the Court Reporter. 21 The Board staff also regularly posts updates on the 22 status of this proceeding on the web page and has recently 23 posted a list of accepted exhibits. The staff will give you 24 the web page address if you need it. 25 Are there any witnesses who are going to appear in this CAPITOL REPORTERS (916) 923-5447 12301 1 phase who have not previously taken the oath? 2 Please stand. 3 (Oath administered by C.O. Stubchaer.) 4 C.O. STUBCHAER: At this time we will hear any general 5 policy statements. Do you have any policy statement cards, 6 general policy statement cards? 7 MS. LEIDIGH: Somebody was just looking for a card for 8 a policy statement. 9 We have one. 10 C.O. STUBCHAER: Mr. Keith DeVore. 11 Morning. 12 MR. DEVORE: Morning. Members of the Board, I have 13 provided a statement in writing, and so I would like to read 14 that statement for the record this morning. 15 My name is Keith DeVore I am with Sacramento County 16 Water Agency. The Sacramento County Water Agency 17 appreciates this opportunity to appear before the State 18 Water Resources Control Board in order to address some 19 significant policy issues raised by the United States Bureau 20 of Reclamation petition to change and consolidate specific 21 places of use and purposes of use for the integrated parts 22 of the Central Valley Project. 23 Initially, the agency emphasizes that, as a general 24 rule, the agency supports efforts to use California's 25 limited water resources in a most efficient and effective CAPITOL REPORTERS (916) 923-5447 12302 1 manner. In this regard, the agency generally supports the 2 Bureau's petitions to the extent that it comports with wise 3 water management and area of origin requirements. In this 4 instance, however, the petition inclusion of acreage located 5 within the service areas of exporters, particularly within 6 the largest agricultural exporter, Westlands Water District, 7 is counterproductive to wise water management and violates 8 area of origin requirements. 9 This fact is evidenced by Westlands' recent lawsuit 10 against the agency with respect to the agency's proposed 11 water service contract with the Bureau, a contract 12 specifically authorized under Section 206 (b) of Public Law 13 101-514. As this Board is undoubtedly aware, legal 14 requirements contained in both state and federal law and in 15 the Bureau's permit compel the CVP be operated to meet the 16 existing and future needs of entities and individuals within 17 the area of origin of the water developed by the CVP. 18 In 1933, contemporaneous with legislation authorizing 19 the construction of the CVP, the California Legislature 20 enacted the Watershed Protection Act, Water Code Sections 21 11460 to 11463. Together with Water Code Section 11128, 22 these statues prohibit the California Department of Water 23 Resources and the Bureau from constructing or operating the 24 State Water Project and the CVP in any manner that would 25 directly or indirectly deprive water users within area of CAPITOL REPORTERS (916) 923-5447 12303 1 origin from the water that users need for current and future 2 beneficial uses. 3 The County of Origin Statutes of Water Code Section 4 10505 and 10505.5 and the Delta Protection Act, Water Code 5 Section 12200 and following provide similar protections for 6 area of origin in-Delta users. 7 Beginning with the earliest federal authorization of 8 the Central Valley Project the Department of Interior fully 9 acknowledged the obligation to protect the area of origin, 10 and it gave a priority to that water. For example, in 11 1948, U.S. Secretary Julius A. Krug explicitly stated that, 12 "There is no intent on the part of the Bureau of Reclamation 13 to ever divert from the Sacramento Valley a single acre-foot 14 of water which might be used in the valley now or later 15 ends." 16 In 1951 Congressman Clair Engle reiterated this pledge, 17 explaining that "the purpose of the Central Valley Project 18 contemplated the export of only surplus water from the 19 Sacramento Valley. The inadequacy of the presently 20 developed water supplies will probably cause a shortage of 21 water in the San Joaquin Valley in dry years, and the people 22 of that area should be so informed about it." 23 This is reprinted from the Central Valley Project 24 documents, House Document Number 416, Page 695. 25 In addition, this Board's permits for the State Water CAPITOL REPORTERS (916) 923-5447 12304 1 Project and the Central Valley Project contain terms and 2 conditions that recognize area of origin protections. 3 At the outset, the state's assignment of the water rights 4 application necessary for the United States to construct the 5 CVP were made with specific recognition of the area of 6 origin protections. Decision 990, which was issued in 1961 7 and which authorizes the primary permits for construction 8 and operation of the CVP facilities contains provisions 9 requiring area of origin protections as to other relevant 10 water rights decision. 11 It was with these fundamental understandings that 12 Reclamation authorized to construct and operate the CVP, 13 making water available to almost two-thirds of the state of 14 California. Through the intervening years, however, the 15 area of origin limitation and the specific promises made to 16 those within the areas of origin have apparently been 17 conveniently forgotten, and entities outside the area of 18 origin have taken an aggressive position attempting to 19 deprive the area of origin of water that they were promised 20 as a condition of CVP development and operation. This is 21 best evidenced by the litigation filed by Westlands Water 22 District against the agency. 23 It is against that background that the agency objects 24 to the Bureau's petition to the extent that it would permit 25 expansion of the area within Westlands and other exporters CAPITOL REPORTERS (916) 923-5447 12305 1 that could lawfully receive CVP water. Without clear and 2 unambiguous area of origin limitations placed upon the 3 expansion, it will merely further exacerbate the current 4 situation creating even greater conflict, such as Westlands' 5 claim of more and more water as against the area of origin's 6 rights to the water that they need for their existing and 7 future beneficial uses. 8 This proposed expansion simply exacerbates Westlands' 9 and other affected exporters' dependency on water to which 10 they have no legal entitlement as against the rights of area 11 of origin. 12 Furthermore, the current tension between entities like 13 Westlands and those with legitimate area of origin rights 14 has been made worse over the years through those entities' 15 actions of adding to their own water deficiencies by 16 delivering CVP water outside their authorized places of 17 use. For example, according to the DEIR for Westlands 18 petition, 7 percent of the irrigable acres within 19 Westlands Water District are outside of the CVP place of 20 use. 21 MR. BIRMINGHAM: Excuse me, Mr. Stubchaer. It is my 22 understanding the policy statements are limited to five 23 minutes. Is that understanding correct? 24 C.O. STUBCHAER: I am going to give a little latitude, 25 Mr. Birmingham. CAPITOL REPORTERS (916) 923-5447 12306 1 MR. DEVORE: I will finish shortly. 2 C.O. STUBCHAER: It has been six minutes, Mr. 3 Birmingham. 4 MR. BIRMINGHAM: I've been watching the clock. I 5 realize that. And my understanding was that the policy 6 statements were limited to five minutes. If my 7 understanding is incorrect, I apologize and will ask for the 8 Board's forgiveness, but that was my understanding. 9 C.O. STUBCHAER: Please proceed, Mr. DeVore. 10 MR. DEVORE: Of this amount, that is the 7 percent of 11 irrigable acres, more than 39,000 acres are currently 12 illegally using water from the CVP. Use of this water 13 outside the CVP place of use is violative of state water law 14 and of the specific water right permits issued to 15 Reclamation. The Board should not reward this unlawful 16 action not at the expense of area of origin. 17 In addition, as noted elsewhere, the more fundamental 18 problem with expanding the place of use to include 19 additional acreage within the service area of Westlands and 20 other exporters is that it will result in placing even 21 greater pressure on the Bureau's limited CVP resources, 22 placing greater pressure on the Bureau to ignore the 23 entitlements previously committed to the existing and future 24 needs within the area of origin. 25 The petition must instead be evaluated with a realistic CAPITOL REPORTERS (916) 923-5447 12307 1 view of Westlands' and exporters' water supplies, including 2 honoring, not litigating, the legitimate needs of 3 individuals and entities within the area of origin. While 4 the Bureau's petition may give Westlands and other exporters 5 some small increase in water reliability for the short time, 6 it does very little to address the long-term needs for 7 water. It is time for the CVP exporters, and particularly 8 Westlands, to embark upon real solutions to their water 9 problems, solutions that respect area of origin protections. 10 I appreciate your indulgence. I'm sorry I ran late. 11 C.O. STUBCHAER: It's all right. It's only two 12 minutes. If every party goes only two minutes over, we are 13 in good shape, and that includes the hour of 14 cross-examination. 15 Thank you for your statement, Mr. DeVore. 16 Are there any other policy statements from parties or 17 persons who are not party to this hearing? 18 Seeing none, are there any policy statements or -- 19 pardon me, opening statements from parties who are not going 20 to present a case in chief? 21 We have Mr. Jackson, Mr. Nomellini, Mr. Herrick. Mr. 22 Birmingham. 23 Anyone else? 24 Mr. Jackson. 25 MR. JACKSON: Morning again. Good morning. Michael CAPITOL REPORTERS (916) 923-5447 12308 1 Jackson for the Regional Council of Rural Counties. 2 And we are not going to be putting on a case in chief 3 in this stage of the hearing. We believe the evidence that 4 is necessary for this decision to be made is adequately in 5 the staff reports, in the record of the other phases, and we 6 will be attempting to show how that record attaches to the 7 law in the briefs and at the end of this phase of the 8 hearing. 9 Basically, the Regional Council of Rural Counties 10 agrees with the policy statement you just heard from the 11 Sacramento Water Agency. This question is the single most 12 important question, in our mind, to be resolved in this set 13 of hearings. The area of origin laws were the firm 14 foundation under which the rural part of California agreed 15 to a statewide comprehensive plan for the Central Valley 16 Project and the State Water Project. This was the reason 17 for our agreement and the reason that the statutes on area 18 of origin were placed in California law. 19 The State Water Board historically has supported the 20 area of origin, and you are now being asked to clearly lay 21 out the future for all of California, so that everyone can 22 understand what the rules are, and it is basically very 23 simple. 24 The area of origin is the area from which the water 25 comes and the area that was the slowest to develop in CAPITOL REPORTERS (916) 923-5447 12309 1 California. That is changing now. And the counties that I 2 represent do not have a water source for the future. If we 3 are going to continue to commit the water both for fishery 4 reasons and for expansion reasons, as brought forward by the 5 exporters in this case, there will never be a time in which 6 the area of origin will be anything except a false promise. 7 If you go back and look at the record cited by the last 8 speaker, look at the record cited within the State Board 9 staff's reports and listen to the evidence in this case, you 10 will find that you have a very clear way to follow the law 11 and to help some of the people out who have legitimate 12 complaints. The RCRC supports the expansion of the place of 13 use within the watershed. We oppose the expansion of the 14 place of use within the export areas. That does not only 15 mean Westlands, but it certainly means Westlands. It should 16 not be expanded for all of the reasons, including the area 17 of origin, but also including all of the other phases we 18 have just gone through. 19 Think about that for a moment. Based upon the evidence 20 you've already heard, to expand the place of use in 21 Westlands increases the toxic return flows, causes pressure 22 on other areas that have problems with return flows, 23 increases the damage done in the western San Joaquin and 24 puts people in the Westlands in a circumstance in which 25 sooner or later they are going to go out of business CAPITOL REPORTERS (916) 923-5447 12310 1 anyway. That may be a long time. It may be a short time, 2 but it certainly is an inevitable time, based upon the 3 evidence. 4 So, we would request that you specifically decide this 5 case based upon whether people are in the watershed of 6 origin, in the area of origin, in the counties of origin, 7 because it was expected that there would be expansion of use 8 within those areas. And these CVP facilities are the only 9 place that most of the folks in the area of origin can get 10 water. There has yet to be a design in which Delta water is 11 pumped back up hill. So, there is no place else other than 12 the terminal reservoirs or hydro facilities up above that 13 the area of origin water can be retrieved. 14 So, you are going to be looking at individual requests, 15 and I would ask you to consider them individually. Because 16 in one case the requests are consistent with the law and in 17 the case of the exporters, the requests are inconsistent 18 with the law, unless there is a complete showing that there 19 no need for water within the watershed. And that includes 20 deficiencies placed upon contractors. We do not want to see 21 an expansion of the area of origin in the export areas and 22 then a corresponding different phase that decides there is 23 not enough water available for everybody so we need to share 24 the pain. 25 Thank you very much. CAPITOL REPORTERS (916) 923-5447 12311 1 C.O. STUBCHAER: Thank you, Mr. Jackson. 2 Mr. Herrick. 3 MR. HERRICK: Thank you, Mr. Chairman. John Herrick 4 for South Delta Water Agency. 5 We would also like to join in and agree with Sacramento 6 County Water Agency's statement regarding the area of origin 7 statutes and their intent. 8 We have begun every phase up to date with the statement 9 that we don't believe it is fair or appropriate that the 10 federal government gets to choose whether or not it submits 11 to the jurisdiction of the courts that may review the 12 ultimate decision in this. We think the need for this 13 submittal of jurisdiction is more clear and important in 14 this phase, because in this phase the Bureau comes before 15 you a permit holder, a multiple permit holder. 16 Their operations of their various projects continue, 17 previously have and continue to cause harm to not only the 18 environment, but superior right holders. The same permit 19 holder comes before you and says, "Would you please ignore 20 our previously permit violations that we admit to and make 21 those violations now our permit conditions?" 22 Now the result of that is, if this Board rules that 23 those violations are okay, there is no review. And if the 24 Board, hopefully, rules that that should not be allowed or 25 continued, then the Bureau gets to choose to have it CAPITOL REPORTERS (916) 923-5447 12312 1 reviewed. That obviously is inherently unfair, and the 2 Board should take that into consideration. 3 Now the evidence is going to show, and hopefully the 4 cross-examination will bring out, that the Bureau says it is 5 a very difficult task to account for the water they have and 6 release it for only the purposes contained in their existing 7 permits and make sure it only goes to the place where it is 8 supposed to go. They can't do that, so you have to change 9 the permits. The State Water Project can do that without 10 much problem. I am not sure why the Bureau can't. 11 The South Delta Water Agency believes that all of the 12 requests that the Bureau submitted in Phase VII should be 13 denied, except as to those as applied to area of origin 14 issues. We believe that this position is further supported 15 by the recent ruling in the federal case that was mentioned 16 and the temporary -- initial order brought into evidence in 17 the last phase, the ruling on the (b)(2) water. 18 I encourage the Board to consult with its staff counsel 19 regarding the potential extreme effects from that ruling. 20 Various operations ongoing and proposed to continue 21 operations of the Bureau can and will be radically changed 22 by that ruling, and the Board needs to take that into 23 consideration before it decides whether or not existing 24 operations should be authorized. 25 We believe that more appropriately in this phase the CAPITOL REPORTERS (916) 923-5447 12313 1 Board should examine alternatives that include decreasing 2 the existing exports by the amount previously provided in 3 violation of the permits. Why would that not be an 4 alternative? Don't understand that. 5 Another alternative that should be examined is what are 6 the effects of the Bureau operating its existing facilities 7 in compliance with its permits? And that means that 8 apparently the Bureau might be -- that the Bureau more 9 correctly should be making releases for certain purposes, 10 not from where they are doing it now, but from whether their 11 permits say they can do it. 12 And, thirdly, we believe that an alternative should be 13 examined that looks at taking this water that has been 14 delivered outside of the areas permitted and using that to 15 remedy ongoing problems, like the San Joaquin River. We had 16 long discussions and arguments and evidence regarding the 17 recirculation idea. As you recall, that circumstance 18 anticipated, at the most, requiring approximately 100,000 19 acre-feet down the San Joaquin River in order to take care 20 of existing problems to some degree. 21 If we examine the amount of water being illegally 22 delivered outside the permitted areas, perhaps we can solve 23 two problems. As the Board knows, the South Delta and 24 Central Delta and other parties have filed a complaint with 25 the Board regarding alleged harm resulting from the CAPITOL REPORTERS (916) 923-5447 12314 1 incremental or incrementally resulting from the violations 2 of the Bureau's permits. 3 Now, this is not action to delay rulings in this phase 4 or any other phases, but it's a response to the Board's 5 direction in recent rulings wherein it said: These phases 6 weren't noticed to punish who or address violations. They 7 are noticed to adopt an implementation plan to the 1995 8 Water Quality Control Plan. 9 We believe that the Bureau, then, should be held 10 accountable for the prior violations. This is not something 11 that was discovered last week. This is not an innocent 12 mistake. It has been going on intentionally for many 13 years. So we believe that the Board should not delay its 14 handling of this matter or its decision in this phase, but 15 we believe its resolution of the complaint that has been 16 filed on this matter must be addressed or completed before 17 it issues a ruling on Phase VII. 18 Thank you very much. Appreciate the time. 19 C.O. STUBCHAER: Thank you, Mr. Herrick. 20 Mr. Birmingham. Mr. Birmingham, are you going to give 21 a statement for Westlands or some other party? 22 MR. BIRMINGHAM: I am going to present a statement on 23 behalf of San Luis and Delta-Mendota Water Authority, which 24 I have been representing in these hearings. The Authority 25 presented or filed a separate notice of intent to appear in CAPITOL REPORTERS (916) 923-5447 12315 1 the hearings and will not be presenting a case in chief in 2 Phase VII. So the statement that I present will be on 3 behalf of the Authority, which appreciates this opportunity 4 to present its view on that portion of the petition filed by 5 the Bureau of Reclamation which addresses changing places of 6 use for Central Valley Project water right permits. 7 The Authority represents Central Valley Project 8 contractors south of the Delta, including Delta-Mendota 9 Canal service area, the San Luis Unit and the San Felipe 10 Division. The members' agencies are by far the largest 11 group of water users affected by the petition to expand the 12 authorized place of use in the permits as shown on the place 13 of use maps, with over 650,000 acres of lands described in 14 the Draft Environmental Impact Report as potentially being 15 affected. 16 Some of the Authority's agricultural water service 17 contractors, including, for example, Westlands Water 18 District, San Luis Water District, Del Puerto Water District 19 and the Santa Clara Valley Water District will be testifying 20 that most of the lands identified as encroachment lands in 21 the Draft Environmental Impact Report and designated as 22 outside the place of use are within boundaries of these 23 districts. 24 CVP water has been delivered to such lands for extended 25 periods of time. As explained in the testimony of Connie CAPITOL REPORTERS (916) 923-5447 12316 1 Rupp, Department of Interior Exhibit 13, in some instances 2 these deliveries began well before the passage of the 3 California Environmental Quality Act. In many instances, 4 review under CEQA occurred at the time the districts' 5 projects were constructing delivery systems to the acreage 6 occurred or when the districts' boundaries were established 7 by special legislation. Neither the Bureau nor the state 8 raised the prospect that application of project water within 9 the districts' service areas was not authorized by the 10 permits. 11 Such information was material to the economic decisions 12 to enter into contracts in the first place and to invest 13 distribution systems as well, and the districts relied on 14 the federal and state governments in making these 15 decisions. The map information has not been readily 16 available to the districts, and except for the Bureau's 17 recent submitted testimony there is no explanation of how 18 the boundaries for the place of use maps were fixed. The 19 Bureau's testimony acknowledges that almost all of the areas 20 within the originally identified service areas for the 21 Central Valley Project water under the original water 22 service contracts -- excuse me, I misspoke. 23 The Bureau acknowledges that almost all of these areas 24 were within the originally identified service areas for the 25 Central Valley Project water under the original water CAPITOL REPORTERS (916) 923-5447 12317 1 service contracts and that, therefore, within the existing 2 permit conditions. For these reasons the Authority strongly 3 urges the Board to approve that portion of the petition that 4 expands the authorized place of use to include the 5 identified encroachment land. The Authority also urges the 6 Board to conclude in taking such action is in essence an 7 administerial act and does not constitute a project under 8 CEQA, and that no mitigation is required. Instead, a 9 decision by the Board to withdraw water from these lands 10 would have significant adverse environmental effect and 11 would require mitigation under CEQA. 12 With regard to increasing the authorized place of use 13 to include areas described as expansion lands, the 14 Authority's members will testify that their CVP contracts 15 include an authorized service area for CVP water that is 16 coextensive with the districts' boundaries. The Bureau's 17 testimony recognizes that the largest part of the expansion 18 lands were within the existing service areas, but the 19 original maps failed to account for major M&I service 20 areas. That is clearly true for the Santa Clara Valley 21 Water District, the authority's largest M&I contractor. 22 Further, extension of CVP water service to the areas 23 within the districts' boundaries will not necessarily cause 24 any further development. For example, Santa Clara Valley 25 Water District's service area is coextensive with the CAPITOL REPORTERS (916) 923-5447 12318 1 county's boundaries. But much of the terrain is mountainous 2 and will never receive water. Also, in many cases both 3 agricultural and M&I use, CVP supplies will become 4 alternatives to the existing supplies that were utilized for 5 development. 6 In the event there has been no water service to 7 undeveloped lands, the Authority's members strongly agree 8 that CEQA compliance as well as compliance with the 9 Endangered Species Act will require, before a local agency 10 can deliver CVP water, that there is environmental review 11 and mitigation. For these reasons the Authority urges the 12 Board to expand description of the permitted place of use 13 for Santa Clara County Water District, San Benito County 14 Water District, Del Puerto Water District, San Luis Water 15 District and Westlands Water District be coextensive with 16 the authorized boundaries for such districts. 17 At this point I would like to deviate from the prepared 18 written remarks to address a couple of comments that have 19 been made by prior speakers and in particular Mr. DeVore. 20 The Authority is well aware of Westlands' position on issues 21 of area of origin. There is no evidence in this record, nor 22 will there be evidence submitted, that Westlands have ever 23 done anything that is contrary to the principles of area of 24 origin. 25 Mr. DeVore referred to litigation filed by Westlands CAPITOL REPORTERS (916) 923-5447 12319 1 against the Sacramento County Water Agency and characterized 2 that as litigation involving the proposed contract between 3 the Bureau of Reclamation and the agency. Mr. DeVore's 4 characterization is inaccurate. The Authority is aware of 5 the litigation and is aware that the litigation does not 6 involve the contract, but instead involves the adequacy of 7 the environmental review document that is prepared by the 8 county and is being considered by the Bureau in connection 9 with the approval of that contract. 10 Moreover, the area of origin laws that govern decisions 11 by this Board do not create any water right or any property 12 interest except within the limited extent that water users 13 within the area of origin are given a right to contract with 14 the Department of Water Resources, not the Bureau of 15 Reclamation, with the Department of Water Resources for a 16 water supply. If the County of Sacramento or any other 17 water user within the area of origin wants to exercise the 18 in choate right created by area of origin or county of 19 origin statutes, the procedure that must be followed is 20 clearly established by the law. 21 Those water users simply need to file an application 22 with this Board to obtain a water right or contract with the 23 Department of Water Resources. But there is no provision of 24 law, either state or federal law, that requires that in the 25 administration of its contracts the Bureau give priority to CAPITOL REPORTERS (916) 923-5447 12320 1 water users within the area of origin. 2 In closing, project water has been delivered to the 3 service area of the Authority's member agencies for many 4 years. Withdrawal of the water would have enormous economic 5 and environmental impacts. Imposition of new mitigation 6 measures is unjustified where development has already 7 occurred. It is critical that the clerical distinction 8 between the existing maps and the actual place of use be 9 eliminated, and the petition to confirm the permits should 10 be granted. 11 Thank you for considering this opening statement. 12 C.O. STUBCHAER: Mr. Birmingham. 13 Mr. Nomellini. 14 MR. NOMELLINI: Mr. Chairman, Members of the Board, I 15 am Dante John Nomellini on behalf of Central Delta Parties. 16 Looks like this phase is going to be, perhaps, more fun than 17 some of the other phases. 18 The Central Delta Parties are opposed to the joint 19 point of diversion request by the Bureau in all of its 20 aspects. We support the deliveries to the watersheds of 21 origin. We think that could be done under the Watershed 22 Protection Act and should be done rather than pursuant to 23 the petitions herein. We think it is absolutely essential 24 that in some element of this proceeding you, Board Members, 25 decide what you think the proper interpretation is of the CAPITOL REPORTERS (916) 923-5447 12321 1 Watershed Protection Act. 2 Our view, of course, is that the simplistic promise to 3 Northern California cited by Sacramento County Water Agency 4 reflects what was intended, and that is that only surplus 5 water be exported, that the needs of the watersheds of 6 origin, including the Delta, would be met first, both the 7 present and future needs, and that there would be good faith 8 in doing that. That if more water was needed in the export 9 areas, that more projects would be developed to produce that 10 water. 11 We think it is fairly simplistic. We think the law is 12 fairly clear. The statute is clear. It has not yet been 13 interpreted. We've all been kind of dancing around the 14 bush, arguing it in court. In our case, in federal court 15 the judge wants to see what you think. It should mean 16 before he makes a determination. That is a key in a lot of 17 the allocation decisions that you are going to have to make, 18 is how you are going to handle that. 19 The sooner we get to it, and you heard me argue before, 20 that maybe we need to brief some of these legal issues. 21 That wasn't decided to be the course, but we are going to 22 brief them at the end, I guess, and fight over it later. 23 Now our view of the Bureau actions, they come before 24 you and they said, "Look, we've been delivering water 25 outside the permitted place of use. We've been mixing all CAPITOL REPORTERS (916) 923-5447 12322 1 this water up contrary to the permits. We want you to not 2 only bless what we have been doing wrong in all these years, 3 but we want you to let us expand this a little bit and add 4 another 718,000 acres." 5 Now, if the Bureau was operating in good faith, across 6 the Board, I think my clients would have a different 7 attitude. And they would say, "Well, let's see what we can 8 do to work together to try and help these people out." But 9 in our view the Bureau has not been operating in good 10 faith. They have been rather high-handed. They committed 11 the San Luis Unit water even though there was no assurance 12 there would be a valley drain. That not only hurt the 13 cause of maintaining or restoring the San Joaquin River, but 14 it's actually hurt its own contractors in the valley who we 15 know are doomed to lose large amounts of agricultural lands 16 because it cannot be adequately drained. 17 Whether that burden ought to fall on the water 18 contractors, I don't know what the facts are. I expect in 19 this phase of the hearing we are going to find out how 20 culpable some of these water contractors are. But certainly 21 the Bureau knew that its actions were outside the scope of 22 their permits, and they knew what the rules were with regard 23 to the drain and commitment of the water. Congress made it 24 fairly clear as to what their intention was. 25 The Bureau has not been meeting the Vernalis water CAPITOL REPORTERS (916) 923-5447 12323 1 quality standard. And in some of the phases in this hearing 2 they have come forward and they say, "We promise we are 3 going to meet it." And it isn't more than that few weeks 4 later in some phase they come back and say, "Well, we are 5 going to meet it only to the extent it is reasonable to do 6 so." 7 Our view is that the Bureau is playing a game with 8 regard to the water quality at Vernalis. They are not 9 meeting it. They are giving priority to the fish, fish 10 flows. We believe they are giving priority to fish flows 11 wrongfully on the Stanislaus. They are going beyond what is 12 needed under the 1987 fish agreement with Fish and Game. 13 So, we see them as bad actors in that regard. 14 We see them as displaying bad faith by not coming 15 forward with any kind of proposal as to how to resolve the 16 problems that the state has on the San Joaquin. They are 17 just ducking these issues. They are not giving us any help 18 whatsoever or any leadership on that particular issue. And 19 they should not be rewarded for this kind of conduct. If 20 they want to come forward and belly up to the bar, say, 21 "Look, we are going to meet the promises to the watersheds 22 of origin. We are going to help solve the problems with the 23 San Joaquin. We're going to pool together with the state 24 and all the parties here to help solve these problems," 25 we'd have a totally different picture of what is going on. CAPITOL REPORTERS (916) 923-5447 12324 1 Now, is there any justification for maintaining the 2 level of exports, some of which are in violation of the 3 permit terms, and is there any justification for increasing 4 the amount of exports based on what we know today? If we 5 look at the endangered species, we are not removing any of 6 the affected endangered species from listings. In fact, we 7 have new listings going on. We have aggravation of the 8 problem rather than solution. 9 So there is no indication, in our view, that there is 10 any justification for going forward and expanding the place 11 of use beyond what it is, and we don't think there is any 12 justification for maintaining it in violation of the 13 permits. 14 Now, in terms of the environmental documentation that 15 is available to you to make your decision, we believe it is 16 deficient in one major respect. There is no alternative 17 here that describes the conditions for project operation in 18 compliance with the permits. There is no alternative here, 19 no project alternative. Only eliminates the place of use 20 problem. Does not address how the water would have to be 21 allocated in compliance with the permits. And we think that 22 is a major deficiency. 23 There is also an assumption here, and I think the 24 water contractors of the federal government, just hearing 25 the opening statement from the San Luis and Delta-Mendota CAPITOL REPORTERS (916) 923-5447 12325 1 Canal group, believes that the environmental documentation 2 is also inappropriate because it doesn't evaluate what the 3 impact is of taking the water away from these particular 4 users. That has to be one of the alternative actions before 5 you. How can you go forward and not consider alternatives 6 of requiring the Bureau to comply with the permits? So we 7 think we got a grossly deficient environmental document, and 8 it will take some major evidentiary input in order to make 9 it an adequate document upon which you can make your 10 decision. 11 We don't cherish the constant battle with the federal 12 government. We kind of think that they represent us, too. 13 We never get that feeling in water matters, but one day we 14 hope that it will change, and wouldn't it be nice if we had 15 a situation where the federal government was saying: "We are 16 going to honor the commitments to the watersheds of origin. 17 We are going to take care of these problems. We are going 18 to work out the San Joaquin River solution. And to the 19 extent these junior contractors, these export contractors 20 are injured and we can't service them, then we are going to 21 compensate them." 22 We think that would be the approach, the positive 23 approach to this problem, or else develop additional water. 24 And that would be an approach that would be less 25 antagonistic, more forthright and help restore our CAPITOL REPORTERS (916) 923-5447 12326 1 confidence in our government. 2 And the state, I might add, is not totally without 3 fault here. They sit on the sidelines silent while this 4 goes on. They join in coordinated operations. They are 5 making their facilities available to pump this water, which 6 is being delivered in violation of the permits. We don't 7 see them as culpable as the Bureau, but we don't see them as 8 free from responsibility. And we would ask through this 9 statement to you that they reconsider their position and see 10 if we can't get this whole thing on a positive light. We 11 wouldn't have to sue you as often, either. 12 Thank you very much. 13 C.O. STUBCHAER: Thank you, Mr. Nomellini. 14 That concludes the opening statements of parties not 15 presenting cases in chief. We will now move on to the case 16 in chief of the Department of Interior. 17 Mr. Turner, morning. 18 ---oOo--- 19 DIRECT EXAMINATION BY DEPARTMENT OF THE INTERIOR 20 BY MR. TURNER 21 MR. TURNER: Good Morning, Mr. Stubchaer, Members of 22 the Board. My name is James Turner. I am the Acting Deputy 23 Regional Solicitor for the Pacific Southwest Region, 24 appearing on behalf of the Department of the Interior. 25 I wanted to make a short opening statement on behalf of CAPITOL REPORTERS (916) 923-5447 12327 1 the Department for Phase VII, but before I do that there is 2 one procedural issue I would like to bring to the Board's 3 and staff's attention. Mark Atlas, the attorney for 4 Tehama-Colusa Canal Authority, had mentioned to me earlier 5 that he was interested in obtaining a copy of this report, 6 the Senate document that was referred to in the testimony of 7 one of our witnesses, Ms. Rupp. I understand that that 8 particular report had previously been filed in some earlier 9 proceeding, but I did not know whether this proceeding or 10 not. 11 I was wondering if we could take a minute to see what 12 we could do about getting this particular document 13 available. It is cited, but was not filed as an exhibit. 14 We gave a judicial citation to it. We were expecting to 15 take official or judicial notice of it, but are willing to 16 make it available for review by any of the parties who would 17 like to see it, if they so desire. It is a rather 18 extensive, rather large document that was compiled many, 19 many years ago, so we didn't file it. I was wondering if 20 there is anything we needed to do to clear that up and avoid 21 any kind of problems this may raise for other parties? 22 C.O. STUBCHAER: Does staff have sufficient 23 identification of the document in question? 24 MR. CORNELIUS: I don't think I have the total with me 25 for all listings in all phases. CAPITOL REPORTERS (916) 923-5447 12328 1 MR. TURNER: If you have the written testimony of 2 Connie Rupp, on Page 3 the citation is given in the 3 footnote. The title is in the text. It is Senate Document 4 113, 81st Congress, First Session, dated August 1949. 5 C.O. STUBCHAER: Do we need time to research this and 6 bring it back later so that the -- 7 MS. LEIDIGH: It is going to take a little time to 8 figure out whether or not we already have this in the 9 record. So perhaps, we could revisit the question a little 10 bit later. 11 C.O. STUBCHAER: Mr. Atlas, we will get back to that a 12 little later, so we don't necessarily delay the proceedings 13 at this time. 14 MR. TURNER: Thank you very much, Mr. Stubchaer. 15 By way of an opening statement, I will be calling two 16 witnesses today on behalf of the Department of the 17 Interior. And as mentioned in our opening statement, they 18 will be addressing the two issues as to the request by the 19 Bureau to consolidate and expand the places of use 20 specified, currently specified, in 16 of the Central Valley 21 Project water rights permits and also to conform the places 22 of use specified in those permits. 23 My first witness, Connie Rupp, will be begin by 24 explaining why we want to have those water rights permits 25 amended to allow Reclamation to make the water appropriated CAPITOL REPORTERS (916) 923-5447 12329 1 pursuant to those permits available for any and all of the 2 multiple uses of the Central Valley Project, in other words, 3 to include all of the appropriate purposes of use in each of 4 those permits. 5 She will then explain how we determined that the 6 subject water right permits should be revised by expanding 7 the place of use to allow the Bureau to deliver CVP water to 8 all the lands within the authorized service areas of each of 9 the current CVP water service contractors. In making that 10 presentation, she will start by explaining how we have 11 determined what the current boundaries of the currently 12 permitted place of use are. That is normally, as you are 13 undoubtedly aware, a rather simple, mundane project in 14 connection with most water right permits, identifying what 15 is the current place of use. But we determined that that 16 was a much more difficult process in connection with the 17 permits that were issued for the Central Valley Project; and 18 she will explain the analysis that was done that resulted in 19 our conclusion that the currently permitted place of use in 20 the water rights permits already includes a very large 21 number of the acres of land that were identified as 22 encroachment lands or enhancement lands in the DEIR, 23 thereby significantly reducing the number of acres of land 24 that we are currently requesting be added to the CVP place 25 of use. CAPITOL REPORTERS (916) 923-5447 12330 1 As soon as she completes her testimony on these two 2 subjects, I will be calling my other witness, Frank Michny. 3 And Mr. Michny will describe the various activities and 4 programs that the Bureau of Reclamation and the Fish and 5 Wildlife Service are currently pursuing to identify and 6 develop mitigation as necessary for historic and potential 7 future adverse impacts of the Central Valley Project. 8 We hope that that information will convince you that 9 you, the Board, need not engage in a supplemental or 10 independent analysis of the environmental impacts over and 11 above what the Bureau and Fish and Wildlife Service are 12 already pursuing, and that they will be developing the 13 necessary mitigation for any adverse impacts that are, in 14 fact, so identified. 15 In closing, I would just like to point out one other 16 thing, and that is I would like to make sure the Board keep 17 in mind, and other parties as well, that what we are 18 currently asking the Board to do is to change the purposes 19 and places of use in the Central Valley Project water right 20 permits. From some of the past opening statements and from, 21 I'm afraid from some earlier impressions that I was getting, 22 a lot of the parties may be assuming that if the Board 23 expands the purposes of use or the places of use under a 24 Bureau permit that will automatically, in and of itself, 25 result in a reallocation of the project water to that new CAPITOL REPORTERS (916) 923-5447 12331 1 purpose use, to the new purpose of use or new place of use. 2 And I just would like to make clear that that is not 3 the substance of this particular petition. That we are 4 looking at having the permits read so that the Bureau can 5 make the appropriate operational decision, recognizing that 6 those operation decisions would need to take into account 7 numerous other factors, including relevant issues of law as 8 many of those other people were mentioning. So I just 9 wanted to emphasize that the witnesses today will not be 10 talking about how the Bureau would intend to reoperate the 11 Central Valley Project if you do, in fact, grant the 12 modifications we are requesting. Those are subjects that 13 are separate and apart from the phase of these proceedings 14 that we are currently involved in. 15 Unless the Board Members would have any questions, I 16 would propose to call the Department's first witness, Connie 17 Rupp. 18 C.O. STUBCHAER: Just a moment. 19 Before we hear from the witnesses, I just want to 20 restate what he stated in other phases, that the purpose of 21 the oral direct testimony are to summarize the written 22 testimony. The time allocated to do this is 20 minutes per 23 witness, and the oral testimony should not go beyond the 24 scope of the written testimony. 25 With that, please proceed. CAPITOL REPORTERS (916) 923-5447 12332 1 Mr. Atlas. 2 MR. ATLAS: Is this panel -- are we going to reserve 3 cross-examination until both witnesses have testified or is 4 Mr. Turner -- 5 C.O. STUBCHAER: Our practice has been to cross-examine 6 panels. And when a panel is being cross-examined, the 7 questions are usually directed at the panel, not just a 8 specific person, any member of the panel who has information 9 that can answer. 10 Mr. Turner. 11 MR. TURNER: Thank you, Mr. Stubchaer. 12 Ms. Rupp, would you please state your full name for 13 the record. 14 MS. RUPP: Connie L. Rupp. 15 MR. TURNER: Are you currently employed by the Bureau 16 of Reclamation? 17 MS. RUPP: Yes, I am. 18 MR. TURNER: Are you familiar with Department of 19 Interior Exhibit 13? 20 MS. RUPP: Yes. 21 MR. TURNER: Were you -- did you prepare or were you 22 involved in the preparation of that particular written 23 testimony? 24 MS. RUPP: Yes, I was. 25 MR. TURNER: Are you familiar with Department of the CAPITOL REPORTERS (916) 923-5447 12333 1 Interior Exhibit 13A? 2 MS. RUPP: Yes, I am. 3 MR. TURNER: Is that an accurate description of your 4 background and qualifications for presenting the testimony 5 you will be presenting today? 6 MS. RUPP: That is an accurate description. However, 7 there is a minor change; my current position has changed 8 with Bureau of Reclamation. 9 MR. TURNER: I note that in the Exhibit 13A you were 10 identified as holding the position of Chief of the Water 11 Rights Section for the Bureau of Reclamation here in the 12 office in Sacramento, the Mid-Pacific region. What is your 13 current position? 14 MS. RUPP: In August of last year I relocated to Salt 15 Lake City and work for the Upper Colorado Region for the 16 Bureau of Reclamation. In that capacity I continue to be 17 involved in water rights issues in the Upper Colorado Reach? 18 That involves New Mexico, Texas, Colorado, Utah. I also do 19 water acquisition in New Mexico and am involved in water 20 management issues in the Upper Colorado Region. 21 MR. TURNER: At the time that Exhibit 13 was prepared, 22 you were, though, employed as the Chief of Water Rights 23 Section here in the Mid-Pacific Region for the Bureau in 24 Sacramento; is that right? 25 MS. RUPP: Yes, I was. CAPITOL REPORTERS (916) 923-5447 12334 1 MR. TURNER: Now, Ms. Rupp, you are also familiar with 2 Department of the Interior Exhibits 13-B through 13-P; is 3 that correct? 4 MS. RUPP: Yes. 5 MR. TURNER: I presume you will be making reference to 6 various of those exhibits during your oral presentation? 7 MS. RUPP: Yes, I will. 8 MR. TURNER: Ms. Rupp, would you please summarize 9 Exhibit 13, your written testimony? 10 MS. RUPP: This testimony explains the Bureau of 11 Reclamation's position on the consolidated place of use or 12 CPO petition filed by Reclamation. The original petition, 13 filed in 1985, proposed to expand the place of use by 14 approximately 4,000,000 acres. That petition was amended in 15 1995. The present petition only conforms the place of use 16 to include the authorized service areas of the districts in 17 the Central Valley Project with existing long-term water 18 service contracts, including current interim renewal 19 contracts under CVPIA. 20 The DEIR identified 834,667 acres for analysis, based 21 on the determination that such acreage is outside the 22 currently permitted place of use. 23 We are of the opinion that only 47,880 acres are 24 involved. The long history of Reclamation's attempts to 25 modified water rights permits to reflect the integrated CAPITOL REPORTERS (916) 923-5447 12335 1 nature of the CVP is summarized in a letter dated April 1st, 2 1985, which has been identified as Government Exhibit 13-C. 3 We initially filed a petition to consolidate the 4 places of use in 1959. We are requesting the following 5 changes be made to the 16 CVP water right permits identified 6 in our petition and in the DEIR: 7 First, Reclamation wants the Board to conform the 8 purpose of use in our permits as requested in our petition. 9 As I explained in my written testimony, Reclamation filed 10 the various applications at the times the facilities were 11 being built in accordance with the customs at the time. In 12 most cases we filed separate applications for irrigation and 13 for other beneficial uses. 14 However, with the complex and integrated nature of the 15 CVP, it is not practical to require us to match up a 16 particular beneficial use to a specific permit. Reclamation 17 wants to have the permits reflect the integrated nature of 18 CVP and include all of the purposes of use. 19 Furthermore, federal legislation in 1992 amended the 20 CVP authorizations to include fish and wildlife mitigation 21 protection and restoration purposes. The CVP will continue 22 to be operated according to federal legislation, including 23 CVPIA and the commitments we have made in our water service 24 and settlement contractual arrangements, as well as our 25 permit conditions. So, no change in our operation is CAPITOL REPORTERS (916) 923-5447 12336 1 anticipated by merely including all of the purposes in our 2 various permits. 3 Next, Reclamation wants the Board to consolidate the 4 authorized place of use for the 16 permits. This request is 5 made so that the permits reflect the actual integrated 6 nature of the CVP. The CVP was always envisioned as a 7 comprehensive integrated water management plan in both 8 federal and state legislation. Reclamation is asking the 9 Board to revise the place of use maps for each of the 10 facilities so that the place of use reflects where the water 11 can physically be delivered from that particular 12 facility and is consistent with the current integrated 13 operations. 14 Originally, Reclamation asked for one place of use map 15 for the CVP because that would have been easier to handle 16 administratively. However, Dave Cornelius of the Board 17 Staff proposed that we have five maps, and that is 18 referenced in Exhibit 13-A. Reclamation is okay with 19 including a map associated with permits for particular 20 facilities which reflect the place of use where water can 21 physically be delivered from that facility. 22 Next, Reclamation wants the Board to expand the acreage 23 to which CVP water can be delivered to include the present 24 authorized service areas of the districts currently entitled 25 to receive CVP water. Reclamation has studied the boundary CAPITOL REPORTERS (916) 923-5447 12337 1 issue and determined that the required change is actually 2 very small. In order to understand how we came to that 3 determination, I would like to step through our research and 4 findings. 5 Reclamation's original petition in 1985 proposed the 6 creation of a legal boundary line for the CVP. If you 7 examine the map from the Draft EIR on Page 20, you will note 8 that the proposed boundary conformed in most cases to 9 section lines. If the boundary would have been approved, it 10 would have had a boundary with a matching legal 11 description. In making our straight lines, however, 12 Reclamation added about 4,000,000 acres to our potential 13 place of use. These areas were not necessarily within any 14 existing district's service area. 15 It is important to understand that the CVP does not 16 currently have a legally definable boundary line. That 17 makes it very difficult for us to determine whether specific 18 average is inside or outside of a line on a map. The CVP is 19 different from most other water projects. In most 20 situations the place of use boundaries are legally defined 21 and recorded. 22 If you want to do a comparison, the CVP is most closely 23 related to the State Water Project. In that case the 24 Division of Water Resources decided to use county lines in 25 most instances to define their gross place of use. Exhibit CAPITOL REPORTERS (916) 923-5447 12338 1 13-F shows the State Water Contractors' service areas and 2 illustrates how the gross place of use follows county 3 lines. 4 I have here an enlargement of Exhibit 13-G. It is the 5 pink counties and the CVP place of use. It shows what the 6 CVP place of use would look like if we had used county lines 7 like the State Water Project. Instead of 13,000,000 acres, 8 the CVP gross place of use would have included almost 9 37,000,000 acres. Reclamation did not use county lines, and 10 we are not proposing to do so now. 11 Based on my review of the CVP files, Reclamation in 12 most instances did not have water service contracts in place 13 when we submitted our applications. When Reclamation 14 entered into contracts with the various districts, we 15 specified that they could deliver water within their 16 authorized service areas. Since we did not have a legally 17 defined line for the place of use, in many cases Reclamation 18 could not make a factual determination of whether or not an 19 entire district was within the place of use when we signed 20 the water service contracts. 21 We were of the opinion and still are that the exterior 22 boundaries of the districts with whom we originally 23 contracted were within the CVP permitted place of use. 24 Reclamation examined the various permit conditions and 25 determined that the answer to boundary questions at the time CAPITOL REPORTERS (916) 923-5447 12339 1 of initial contracts is found in D-990 and the other CVP 2 decisions issued by the Board. In D-990 Condition 23 3 addresses CVP water deliveries within the Sacramento River 4 Basin. An enlargement of 13-H shows the area defined as the 5 Sacramento River Basin with the red line. That is the map 6 on the left, and the red line goes around the Sacramento 7 basin. The CVP boundary line is in blue. 8 Condition 23 said that the delivery of CVP water was 9 authorized for the Sacramento River Basin. Contracts needed 10 to be entered into by a specific time frame. There was no 11 requirement in the condition for Reclamation to file a 12 change petition if in the future a district annexed lands as 13 long as those lands are in the Sacramento River Basin. 14 Condition 29 in D-990 addressed contracts with 15 districts outside of the Sacramento River Basin. This 16 condition authorizes the delivery of water within the 17 original contract service area. And then if areas are 18 annexed and outside the place of use area change petitions 19 should be filed. That means all of the lands within the 20 boundaries of the districts at the time the original CVP 21 water service contracts were executed are within the 22 boundary of CVP place of use. 23 Similar conditions are found for the American River, in 24 Conditions 12 and 13 of the Folsom permits, and for the 25 Trinity in Condition 12 of those permits. Using the CAPITOL REPORTERS (916) 923-5447 12340 1 enlarged map of Exhibit 13-I and Exhibit 13-J, Reclamation 2 shows how many acres were subsequently annexed outside of 3 the place of use. The total acreage appropriate for 4 analysis becomes 47,880 acres, rather than 834,667 acres in 5 the Draft EIR. 6 Even though 26 districts were identified as having 7 areas outside the place of use in the DEIR with the original 8 contract boundaries recognized, only seven districts have 9 annexed lands outside of the place of use. These seven 10 districts are: El Dorado Irrigation District, Contra Costa 11 Water District, Del Puerto Water District, San Luis Water 12 District, the City of Coalinga, the City of Avenal, the 13 Westlands Water District. 14 For those of you who are following my written 15 testimony, this next information is from part 3b, starting 16 on Page 15. The Exhibit 13-I map shows the areas at issue 17 in this petition. They are the pink areas. El Dorado 18 Irrigation District has some areas which were annexed. The 19 service to EDID from Folsom is limited to M&I only. 20 Exhibit 13-K shows the annexed areas in green and 21 orange. These areas were added after the original 22 contract. These areas total 1,176 acres. The DEIR analyzes 23 these lands. It found that only 213 acres are presently 24 undeveloped. If lands were developed for M&I use, a land 25 use plan would be required. So Reclamation believes that CAPITOL REPORTERS (916) 923-5447 12341 1 the 1,176 acres should be included in the place of use. The 2 DEIR did not require any mitigation for the 965 acres which 3 presently receive CVP water. 4 Contra Costa Water District has an additional 932 5 acres. These lands were included as part of a mitigation 6 requirement with the Los Vaqueros Project. The lands are 7 protected from development so no further environmental 8 analysis or mitigation should be required prior to inclusion 9 of those lands into CVP place of use. 10 Del Puerto Water District has 1,000 acres at issue. 11 Because Del Puerto Water District merged with several other 12 water districts, I did not examine all of the original water 13 contracts to attempt to determine whether lands were annexed 14 to original boundaries. I assumed that the lands could have 15 been annexed. The DEIR examined those lands and determined 16 they were cultivated prior to receiving CVP water, so no 17 mitigation was required. These lands should be included 18 into the CVP place of use. 19 The San Luis Water District has 230 acres which were 20 annexed after the original contracts with Reclamation were 21 signed. Reclamation has records that show that when these 22 lands were -- when lands were included, equivalent lands 23 were excluded. Exhibit 13-L shows the solid yellow areas 24 which were excluded from the district. Reclamation 25 determined at the time that the annexation exclusion would CAPITOL REPORTERS (916) 923-5447 12342 1 not have any significant impacts on the environment. All 2 230 acres presently receive CVP water. These lands should 3 be included into the CVP place of use. 4 The City of Coalinga adds 28,997 acres of land. That's 5 61 percent of the acreage we have identified as outside of 6 the original service areas of our district. Exhibit 13-M 7 shows the Coalinga areas. The majority of the land, the 8 solid green area on the exhibit, 19,186 acres is due to 9 inclusion of portions of the Pleasant Valley Water 10 District. These lands received domestic water service from 11 Coalinga because of problems with groundwater quality. Some 12 2,246 acres of the remaining lands receive CVP water. Those 13 are the blue areas on the map. Remaining lands which are 14 not developed and will not be developed without land use 15 plans. 16 In addition, Coalinga uses most of its available water 17 supply. Reclamation believes that all of the service area 18 should be included in the CVP place of use. 19 The City of Avenal includes 2,560 acres which were 20 added after the original service contract with Reclamation. 21 That is identified in Exhibit 13-N. Avenal uses most of its 22 CVP water supplies, so future development would be minimal 23 unless another water supply was found. Water cannot be used 24 from the Avenal contract for irrigation. Any development 25 for M&I purposes would follow land use planning CAPITOL REPORTERS (916) 923-5447 12343 1 regulations. Reclamation believes that the service area 2 should be included in the CVP place of use. 3 Westlands Water District has an original contract 4 service area and a modified area which occurred with the 5 state authorized merger of Westplains. Service to 6 Westplains area is discussed in Exhibit 13-O. Since the 7 merger with Westplains, only approximately 12,985 acres have 8 been annexed to Westlands Water District. Exhibit 13-P is 9 in the exhibits submitted and also in an enlarged exhibit of 10 the Board there. 11 Records show that 5,277 of those acres were annexed and 12 approved for water service prior to the enactment of CEQA. 13 Reclamation feels that no environmental mitigation should be 14 required for those lands. Of the remaining lands 7,063 15 acres were in Pleasant Valley Water District prior to 16 inclusion in Westlands Water District. A 1958 DWR map shows 17 that the vast majority of the land was cultivated with 18 groundwater. These lands do not currently receive CVP 19 water. They are priority three lands. 20 Westlands has stated that these lands are cultivated 21 for weed and pest control. Even though these lands may be 22 added to the place of use, there will be no increase in the 23 net irrigated acreage for Westlands because Westlands uses 24 its full contract supply. Reclamation believes that the 25 Westlands service area should be included in the CVP place CAPITOL REPORTERS (916) 923-5447 12344 1 of use. 2 In summary, Reclamation requests that the CVP place of 3 use area be conformed to include the service areas of the 4 districts that have contracts with us. This action will not 5 result in any increased use of CVP water and is consistent 6 with the scope and intent of the Central Valley Project. 7 Thank you. 8 MR. TURNER: Ms. Rupp, does that complete your 9 testimony? 10 MS. RUPP: Yes, it does. 11 C.O. STUBCHAER: Mr. Turner it is about time for our 12 morning break. If the next witness -- is that Mr. Michny -- 13 is going to take 20 minutes, we ought to take our break now. 14 MR. MICHNY: Three minutes. 15 C.O. STUBCHAER: Let's do it. 16 MR. TURNER: I would now like to call Frank Michny. 17 Mr. Michny, would you please state your full name for 18 the record. 19 MR. MICHNY: Frank J. Michny. 20 MR. TURNER: By whom are you employed? 21 MR. MICHNY: Bureau of Reclamation. 22 MR. TURNER: What is your position with the Bureau? 23 MR. MICHNY: I am the Regional Environmental Officer 24 for the Mid-Pacific Region. 25 MR. TURNER: Did you prepare -- are you familiar with CAPITOL REPORTERS (916) 923-5447 12345 1 Exhibit 14, Department of the Interior Exhibit 14? 2 MR. MICHNY: Yes to both questions. 3 MR. TURNER: Are you also familiar with the Department 4 of the Interior Exhibit 14-A, your statement of 5 qualifications and experience? 6 MR. MICHNY: Yes, I am. 7 MR. TURNER: Is 14-A an accurate description of that 8 background and experience? 9 MR. MICHNY: In essence, yes. One minor change. This 10 indicates at a time that I prepared the qualification 11 statement I was in acting capacity in my present position. 12 That has since changed to a permanent appointment. But in 13 essence everything is the same. 14 MR. TURNER: Very good. Would you please summarize 15 Exhibit 14, which is your written testimony. 16 MR. MICHNY: Yes. The purpose of my testimony is 17 twofold. First, discuss activities undertaken by Interior 18 to address impacts to fish and wildlife within CVP service 19 areas. Secondly, to request that the Board recognize that 20 these programs and activities are or will be addressing any 21 impacts identified in the Board's final EIR. 22 Reclamation and the Fish and Wildlife Service are 23 involved in a number of activities that address fish and 24 wildlife impacts within the CVP service area. These 25 activities, which are discussed in more detail in the DEIR CAPITOL REPORTERS (916) 923-5447 12346 1 include: 2 First, the Central Valley Conservation Program, which 3 is a program which addresses the needs of threatened or 4 endangered species. 5 Secondly, a wetlands development program which assists 6 wetland development and protection activity throughout the 7 Central Valley. 8 CVPIA programs, such as the Habitat Restoration Program 9 which mitigates for impacts on the sensitive species in 10 native habitat. 11 Land Retirement Program which plans to retire up to 12 100,000 acres of agricultural land and return it to its 13 native habitat. 14 In addition to these habitat programs, Reclamation is 15 also consulting, pursuant to the Endangered Species Act, on 16 specific CVPIA activities and initiating a comprehensive 17 consultation on the CVP and implementation of the CVPIA, 18 specifically including contract renewal. 19 Reclamation will also be evaluating service area impact 20 through our contract renewal NEPA process. 21 We believe that mitigation for CVP service area impacts 22 should be implemented through the assemblage of activities 23 undertaken on a broad-based ecosystem priority basis. We 24 believe that the programs described present a prudent and 25 effective approach to addressing CVP impacts. CAPITOL REPORTERS (916) 923-5447 12347 1 We do not dispute the general assumption that the CVP 2 has contributed to the type of impacts characterized in a 3 Draft EIR. We do, however, believe that programs are 4 already in place to address these impacts and ask that the 5 Board adopt these programs as providing any mitigation that 6 may be required rather than duplicating ongoing efforts. 7 Thank you. 8 C.O. STUBCHAER: Thank you, Mr. Michny. 9 MR. TURNER: That would complete the direct testimony 10 to be presented on behalf of the Department. We would make 11 the witnesses available for cross-examination. 12 C.O. STUBCHAER: Before we take our morning break, 13 let's identify parties who wish to cross-examine. 14 Mr. Campbell, Mr. Jackson, Mr. Birmingham, Mr. Atlas, 15 Mr. Nomellini, Mr. Conant, Mr. Herrick, and -- I am sorry I 16 don't remember your name. 17 MR. KEENE: Keene, K-e-e-n-e. 18 C.O. STUBCHAER: Sorry. We will get it eventually. 19 And -- 20 MR. MOONEY: Mooney. 21 C.O. STUBCHAER: Mr. Mooney. 22 Thank you. 23 All right. It is my understanding that the coffee shop 24 across the hall is closed this morning. There is a snack -- 25 not a snack bar. I guess you call it a newsstand on the CAPITOL REPORTERS (916) 923-5447 12348 1 first floor of the Resources building which is catty-corner 2 from here. There is also a pop machine down the hall to the 3 left as you go out of the door. We will take a 15-minute 4 break. 5 MR. ATLAS: Mr. Chairman, I'm sorry. Could I get an 6 idea of the estimate of cross-examination? With Mr. 7 Jackson's announcement that Trinity is offering no case, I 8 have my witnesses to come at 9:00 Tuesday morning. We are 9 next up, whenever we are done with cross-examination. 10 MR. JACKSON: I would guess that, given what I know 11 about this hearing, he is perfectly safe. 12 MR. ATLAS: For the benefit of the Board I didn't want 13 to end up at 1:30 in the afternoon and be all done with 14 cross-examination and our case not ready to present. Other 15 than that, I will assume that they are safe coming -- 16 C.O. STUBCHAER: Let's just see. 17 Is there anyone who estimates that their 18 cross-examination will take less than an hour? 19 Just a few. 20 MR. ATLAS: Thank you. 21 C.O. STUBCHAER: With that we will take our break. 22 (Break taken.) 23 C.O. STUBCHAER: Call the hearing back to order. 24 Order of cross-examination will be Mr. Keene, Mr. 25 Herrick, Mr. Nomellini, Mr. Mooney, Mr. Birmingham, Mr. CAPITOL REPORTERS (916) 923-5447 12349 1 Conant, Mr. Campbell, Mr. Atlas, Mr. Jackson. 2 Did we miss anyone? 3 Mr. Keene. Good morning. 4 MR. KEENE: Morning. This compensation for not getting 5 my name right? 6 C.O. STUBCHAER: Blame Mr. Herrick. 7 MR. KEENE: Thank you, Mr. Herrick. 8 MR. HERRICK: Sorry. 9 ---oOo--- 10 CROSS-EXAMINATION OF DEPARTMENT OF THE INTERIOR 11 BY SAN LUIS WATER DISTRICT 12 BY MR. KEENE 13 MR. KEENE: I represent the San Luis District, just to 14 remind everybody. 15 A question for the panel, and then it is specific to 16 Ms. Rupp's written testimony. That testimony includes two 17 statements with regard to the San Luis District that are -- 18 I am not sure if they are contradictory or not. But on Page 19 16 in regard to the San Luis District, that paragraph that 20 is on the San Luis District, the next to the last sentence 21 of that paragraph says: 22 Reclamation determined at the time of the 23 annexation -- (Reading.) 24 Talking about the 230 acres that was annexed to San 25 Luis District, since its long-term contract. CAPITOL REPORTERS (916) 923-5447 12350 1 -- that there were no significant impacts to 2 the environment. (Reading.) 3 Then on Page 11 there is a statement at the San Luis 4 District paragraph on that path, last sentence: 5 Those 230 acres would require environmental 6 analysis prior to SWRCB decision. 7 (Reading.) 8 I am asking for clarification. If the Bureau has 9 determined there is no significant impact, I didn't 10 understand why the position of the Bureau is that the State 11 Board would have to now go through an additional examination 12 of environmental consideration. 13 MS. RUPP: I am not sure. The statement on Page 11 was 14 made because I was sorting through the acres that were 15 annexed subsequent to initial contracts, and I was 16 identifying those for purpose of CEQA evaluation. 17 On Page 16 what I am talking about is when we did the 18 annexation of those lands and approved them into the 19 district, the Bureau of Reclamation did a NEPA-type analysis 20 and came to the conclusion that there were no significant 21 impacts. I didn't know if that would be sufficient analysis 22 for the state in their consideration or not. 23 MR. KEENE: Only to the extent the CEQA and NEPA have 24 different demands would additional CEQA compliance or 25 additional environmental compliance be necessary? CAPITOL REPORTERS (916) 923-5447 12351 1 MS. RUPP: That's right. 2 MR. KEENE: Over on Page 6 of Ms. Rupp's written 3 testimony there is a statement in the -- near the bottom of 4 the page, about a quarter of the page up, that indicates, 5 first, that: 6 Reclamation believes that it is inappropriate 7 to use those lines as the basis of analyzing 8 the authorized place of use. (Reading.) 9 I am a little fuzzy because of the wording in that 10 paragraph as to what the precedent is or the antecedent is 11 to those lines in that sentence, which line says that the 12 Bureau is of the opinion would be inappropriate for use. 13 MS. RUPP: The lines that were hand drawn on our maps 14 when we submitted our applications. 15 MR. KEENE: Those were the lines that are, in fact, 16 shown in the preliminary Environmental Impact Report? 17 MS. RUPP: That's correct. Pretty close to those 18 lines. GIS attempted to digitize the lines based on our 19 hand-drawn maps. We didn't have the associated legal 20 description to draw the lines to any kind of specification. 21 MR. KEENE: When were those handdrawn maps drawn? 22 MS. RUPP: When we submitted our applications for the 23 various permits. 24 MR. KEENE: That was back in the '50s or -- is that 25 what we are talking about? CAPITOL REPORTERS (916) 923-5447 12352 1 MS. RUPP: I am not sure the time frame. I think for 2 most of our permits that is correct. 3 MR. KEENE: Now, also, in that same paragraph on Page 4 6, there is a statement that: 5 In examining the orders associated with CVP 6 permits, the State Water Resources Board 7 authorized use of CVP water within district 8 service areas at the time of initial 9 long-term contracts. In some cases the SWRCB 10 did not request Reclamation to file change 11 petitions if the district later annexed 12 additional lands. (Reading.) 13 Could I ask for some clarification as to what are those 14 instances? Did they apply to any of the -- I don't know, 15 you listed, I think, something like seven contractors that 16 are affected by this action now. Are any of those seven 17 included in any of those permits? 18 MS. RUPP: No, they are not. Those -- that condition I 19 am referring to is the contract that we have with the 20 entities in the Sacramento River Basin. 21 MR. KEENE: So, at this point -- well, let me back up. 22 The 238 acres in the San Luis District, as is noted in 23 the written testimony and I think was in the oral testimony, 24 was basically exchange land and that there was land within 25 the original place of use that was excluded at the same time CAPITOL REPORTERS (916) 923-5447 12353 1 as those annexations? 2 MS. RUPP: That's correct. 3 MR. KEENE: Has there been any examination as to the, 4 and this may not be your job, as to the limited ability of 5 the lands that were excluded to act as habitat for 6 endangered species compared to the lands that were annexed 7 in at that time? 8 MS. RUPP: I didn't do any analysis of that kind. 9 MR. KEENE: Thank you. 10 I don't believe I have any further questions. 11 C.O. STUBCHAER: Thank you, Mr. Keene. 12 Mr. Herrick. 13 ---oOo--- 14 CROSS-EXAMINATION OF DEPARTMENT OF THE INTERIOR 15 BY SOUTH DELTA WATER DISTRICT 16 BY MR. HERRICK 17 MR. HERRICK: Well, that is almost like being first. 18 C.O. STUBCHAER: For the benefit of the rest of you, 19 Mr. Herrick cut the cards. 20 MR. HERRICK: Under duress. 21 MEMBER FORSTER: Tell him why. He usually is first. 22 C.O. STUBCHAER: No, no. 23 MR. HERRICK: My earlier statement has been disproved. 24 Thank you, Mr. Chairman and Board Members. John 25 Herrick for South Delta Water Agency. CAPITOL REPORTERS (916) 923-5447 12354 1 Ms. Rupp, let me start with you, please. Going by your 2 biographical information, I notice that at the time this was 3 filed your current position here in California was the water 4 rights section which is responsible for ensuring that the 5 California permits and licenses associated with Mid-Pacific 6 projects comply with state water law. 7 I take it, then, that you have been involved with, at 8 least during the time of that job responsibility, the 9 analysis of how current Bureau operations may or may not 10 comply with the permits; is that correct? 11 MS. RUPP: Yes. I have been involved in the study. 12 MR. HERRICK: Excuse me if I am wrong. I understand 13 that the original petition was in 1985. 14 Was there some action taken prior to that with regard 15 to these potential conflicts with permit operations? 16 MS. RUPP: There was an action taken in 1959. 17 MR. HERRICK: So, would you say that since 1959 the 18 Bureau has been aware that its operations were not in 19 compliance with its permits? 20 MS. RUPP: I believe that we are in compliance with our 21 permits. 22 MR. HERRICK: But the purpose, then, of, I call it, the 23 petition or the request for the consolidating conform place 24 of use is to clear up a disagreement between the Bureau and 25 the Board? CAPITOL REPORTERS (916) 923-5447 12355 1 MS. RUPP: The intent is to conform the permits with 2 what is authorized in federal and state legislation. 3 MR. HERRICK: Does that include an examination of such 4 things as the Delta Protection Act? 5 MS. RUPP: I did not examine the Delta Protection Act. 6 MR. HERRICK: Do you know whether or not somebody in 7 the water rights section has or currently analyzes whether 8 or not the Bureau exports only surplus water from the 9 Delta? 10 MR. TURNER: I would take objection. That is outside 11 the scope of the testimony that we presented with respect to 12 the place of use and purposes of use of the water, not the 13 justification for operational decisions with respect to what 14 water can be exported, when, et cetera. Those are totally 15 separate and distinct matters that were not addressed by 16 either of these witnesses. 17 C.O. STUBCHAER: I think the question was, "Do you 18 know?" 19 Is that correct, Mr. Herrick? 20 MR. HERRICK: Yes. I would say the scope of cross on 21 initial testimony is very broad. 22 C.O. STUBCHAER: Yes. 23 MR. HERRICK: I think those areas are certainly 24 relevant. 25 C.O. STUBCHAER: Yes. Overruled. CAPITOL REPORTERS (916) 923-5447 12356 1 MS. RUPP: I am not involved in the operational 2 decisions of the way the project is operated with how much 3 water is released and authorized for export. 4 MR. HERRICK: But the question was whether or not 5 anybody is examining for permit compliances or law 6 compliances, or compliance with laws, whether or not exports 7 have been limited to only surplus water. 8 MS. RUPP: I don't know of any study that Reclamation 9 has done, although there may be some. I am personally not 10 aware of these. 11 MR. HERRICK: Are you aware of any examination by the 12 water rights section of whether or not exports affect on 13 water levels may in some manner violate or not comply with 14 state or federal law? 15 MS. RUPP: I am not aware of any violations of state or 16 federal law. 17 MR. HERRICK: Your testimony makes a distinction 18 between the gross acreage that granting of this request 19 would include and the actual acreage that you think is more 20 specifically defining the issue; is that correct? 21 MS. RUPP: That's correct. 22 MR. HERRICK: What is that smaller acreage? Forty-nine? 23 MS. RUPP: 47,880 acres. 24 MR. HERRICK: Does the Bureau then believe that 25 delivery -- does the Bureau then believe that delivery of CAPITOL REPORTERS (916) 923-5447 12357 1 CVP water to those areas is currently violating its permit 2 conditions? 3 MS. RUPP: My understanding is that since we have filed 4 a change petition we have not been violating our permit 5 conditions because we have requested a modification. 6 MR. HERRICK: Does that go back to the '50s or 1985? 7 MS. RUPP: The 1985 -- I did not find a copy of the 8 1959 petition, so I don't know that, the scope of that 9 petition. 10 MR. HERRICK: So would you say that before 1985, then, 11 the Bureau was in violation of its permits with regards to 12 the 46,000 acres? 13 MR. TURNER: Again, I object. I think he is asking for 14 a legal conclusion in connection with an issue that was not 15 specifically addressed; and that is, whether the Bureau was 16 or was not in violation is a determination that would have 17 to be made. 18 What Ms. Rupp and Mr. Michny addressed is a procedure 19 by which to make the permits acceptable. Whether that 20 constitutes a violation in advance, I don't feel is really 21 something that they would be able to answer. 22 MR. HERRICK: I certainly appreciate counsel's point. 23 However, the Bureau or DOI put an attorney who presented 24 testimony as to the legal ramifications and duties pursuant 25 to various statute, law and permit conditions. So I believe CAPITOL REPORTERS (916) 923-5447 12358 1 this is a perfectly appropriate question. 2 MS. RUPP: Actually, I am not acting in the capacity as 3 an attorney. 4 C.O. STUBCHAER: You may -- I am going to rule that the 5 question can be answered to the best of your ability. 6 MS. RUPP: Can I hear the question again, please? 7 MR. HERRICK: Is it the Bureau's position, then, that 8 prior to the 1985 petition that it, at least with regard to 9 the 46,000 acres, that it was in violation of its various 10 permits? 11 MS. RUPP: I could not make that determination because 12 you would have to go back and look at the specific instances 13 and whether water was actually delivered to any of those 14 lands. 15 MR. HERRICK: Part of your preparation for your 16 testimony today did not include an examination of whether or 17 not water has been actually delivered to those lands? 18 MS. RUPP: I did look at -- water has been delivered in 19 some cases to those lands, and I identified those acres in 20 there. I'm saying that I didn't make a legal determination 21 as to whether that constituted being outside the permitted 22 place of use or not. 23 MR. HERRICK: Are you familiar with the recent ruling 24 that was introduced by Westlands in the last phase regarding 25 a complaint against the Bureau Administrative Proposal for CAPITOL REPORTERS (916) 923-5447 12359 1 the (b)(2) of CVPIA? 2 MS. RUPP: No. I have been in Utah since August, so I 3 haven't been made aware of those. 4 MR. HERRICK: Mr. Michny, are you aware of those? 5 MR. MICHNY: Yes, I am aware of it. 6 MR. HERRICK: Has the Bureau taken that into 7 consideration in presenting its testimony today? 8 MR. MICHNY: I have not taken that into consideration 9 in the testimony that I provided because my testimony was 10 relatively focused on a narrow issue. 11 MR. HERRICK: Ms. Rupp, you stated in your verbal 12 testimony that it is not practicable for the Bureau to 13 comply with the existing terms and conditions with regard to 14 permitted uses for released water. Is that generally 15 correct? 16 MS. RUPP: Generally correct, yes. 17 MR. HERRICK: I don't mean to fuzz that up. So, should 18 the Board take that to mean that the Bureau doesn't believe 19 that it can limit releases from any particular reservoir 20 for, say, the existing permitted uses? 21 MS. RUPP: I think that we could operate the project in 22 a lot of different ways, probably. But the reality is the 23 federal and state legislation envisioned a integrated 24 system, and that is the way we attempted to operate. 25 If we wanted to go back and try to isolate facilities CAPITOL REPORTERS (916) 923-5447 12360 1 and operate differently, we would be in violation of our 2 federal authority. 3 MR. HERRICK: Let's explore that. Let's say the 4 permits for Shasta Dam have certain limitations or 5 designated types of use of water; is that correct? 6 MS. RUPP: Yes, that's correct. 7 MR. HERRICK: Is it your testimony, then, that the 8 Bureau is currently at some time making releases from Shasta 9 Dam for purposes not authorized by those permits? 10 MS. RUPP: Yes. We are making releases pursuant to 11 Congressional directives. 12 MR. HERRICK: I notice you referenced those 13 Congressional directives as including CVPIA; is that correct? 14 MS. RUPP: Yes. 15 MR. HERRICK: I believe you said you haven't examined 16 the recent ruling wherein the federal court, let's just say, 17 corrects or asks the Bureau to correct what it is doing 18 pursuant to that statute; is that correct? 19 MS. RUPP: I didn't understand that. 20 MR. HERRICK: You haven't analyzed -- you said that one 21 of the reasons the Bureau makes releases of water for 22 purposes other than permitted ones is to comply with federal 23 law; is that correct? 24 MS. RUPP: Yes. 25 MR. HERRICK: The Bureau has not yet taken into CAPITOL REPORTERS (916) 923-5447 12361 1 consideration what its duties may actually be under certain 2 federal laws in light of the recent decision; is that 3 correct? 4 MS. RUPP: I don't -- what recent decision? 5 MR. HERRICK: The ruling on (b)(2) water. 6 MS. RUPP: I haven't done anything on that personally, 7 so I couldn't answer that. 8 MR. HERRICK: Do you know if anybody on the Bureau has 9 done that? 10 MS. RUPP: I'm just not aware. 11 MR. HERRICK: Now, on what basis, if you know, does the 12 Bureau decide it makes releases from a dam, such as Shasta, 13 for purposes that aren't permitted by the permits for 14 Shasta? 15 MS. RUPP: I am not specifically aware of the 16 operational consideration. However, in general I know that 17 we operate according to federal directives, biological 18 opinion, AFRPs, contractual settlement, our water service 19 contracts or settlement contracts. There are a lot of 20 factors. 21 MR. HERRICK: Do you know whether or not the releases 22 from Shasta are made for fish and wildlife purposes outside 23 of permitted fish and wildlife purposes for that dam? 24 MS. RUPP: It's my understanding that there are 25 temperature releases that are made, but I don't know CAPITOL REPORTERS (916) 923-5447 12362 1 specific details. 2 MR. HERRICK: When you say you don't know specific 3 details, does that mean you don't know whether those 4 temperature releases are in violation of permit conditions 5 or that you don't know what releases may be in violation of 6 permit conditions? 7 MS. RUPP: I am just not specifically involved with the 8 operational decisions, so I can't make a judgment one way or 9 the other. 10 MR. HERRICK: That would be true with the other 11 relevant Bureau facilities, both dams and canals and things 12 like that? 13 MS. RUPP: That's correct. 14 MR. HERRICK: Are you generally familiar with CVPIA as 15 you referenced it numerous times in your testimony? 16 MS. RUPP: Yes. I worked with that when I was working 17 in California. 18 MR. HERRICK: At the -- 19 MR. ATLAS: I am sorry, I couldn't hear the last 20 remark. 21 C.O. STUBCHAER: Maybe get the mike a little closer. 22 Speak into it. 23 MS. RUPP: I was just going to say that I worked with 24 CVPIA legislation when I was in California. 25 MR. ATLAS: Thank you. CAPITOL REPORTERS (916) 923-5447 12363 1 MR. HERRICK: I believe Section 3406 requires the 2 Bureau bring its operations into compliance with existing 3 permit conditions, state laws and water quality objectives. 4 MR. TURNER: Again, I object. I think he is asking for 5 her legal interpretation of CVPIA. If he wants to read the 6 section into the record, I would certainly allow that to 7 speak for itself. I don't feel she can offer her legal 8 interpretation of that section. 9 C.O. STUBCHAER: Mr. Jackson. 10 MR. JACKSON: I would like to point out that this is a 11 lawyer for the government operating in a water rights 12 section of the Bureau of Reclamation indicating to us or 13 testifying before this Board on questions of water rights 14 and has determined in some way that about 800,000 acres is 15 wrongfully characterized by the State Board. If we are not 16 allowed to ask her questions about the law, I would move 17 that her testimony be stricken. 18 MR. HERRICK: Mr. Chairman. 19 C.O. STUBCHAER: Mr. Herrick. 20 MR. HERRICK: I would just like to add to that, the 21 witness gave as a reason for the Bureau not complying with 22 its permit conditions that federal legislation directs it to 23 do other things. So I think that makes it perfectly 24 appropriate to explore her understanding of why that is so. 25 MR. TURNER: My response is that she has stated that CAPITOL REPORTERS (916) 923-5447 12364 1 she is not capable of identifying the specific statutes, 2 criteria, guidelines that are relied on by the operations 3 people in making operational decisions, that she can 4 probably -- she would be able to tell you, yes, she is 5 familiar with that section. How it is being applied by the 6 Bureau and what is being done and how it affects operations, 7 I think, are outside the scope of her area of knowledge. 8 MR. HERRICK: I don't believe -- 9 C.O. STUBCHAER: Mr. Atlas. 10 MR. ATLAS: I think it is important right at the outset 11 that we understand what the breadth of this witness' 12 experience is. We have a resume for this woman that says 13 she was Chief of the Water Rights Section, and that the 14 section was responsible for insuring that the California 15 permits and licenses associated with the Mid-Pacific 16 projects complied with state water law. 17 She goes on to say that her work experience from 1996 18 to the time that she left included analyzing factual 19 material related to the past, present and future use of 20 water in order to compare the relative rights of the United 21 States with respect to rights of others in connection with 22 the potential development of water used for irrigation, 23 municipal and other consumptive and nonconsumptive purposes. 24 I think these questions are perfectly appropriate. 25 Based on this woman's representation of her duties and CAPITOL REPORTERS (916) 923-5447 12365 1 experience. 2 C.O. STUBCHAER: Mr. Birmingham, you are up next. 3 Mr. Herrick, go ahead. Then I'll go to him. 4 MR. HERRICK: Mr. Atlas has anticipated my future 5 questions. My comment to the objection is, I was going to 6 read the statute since Mr. Turner stated that. And my 7 question will explore how she has used or applied that 8 statute, and if she is not involved in the operational 9 decision, that is a perfectly fine answer. I don't think 10 there is any disagreement there. 11 C.O. STUBCHAER: Mr. Birmingham. 12 MR. BIRMINGHAM: Moreover, whenever intended or not, 13 Ms. Rupp's written testimony, Department of the Interior 14 Exhibit 13, is replete with legal conclusions. And she has 15 expressed opinions, including the opinion that the Bureau of 16 Reclamation has and will continue, and here I am referring 17 to Page 3 of her testimony, paraphrasing. Maybe I should 18 quote it. She states, quote: 19 The Central Valley Project will continue to 20 be operated according to federal legislation, 21 including the CVPIA and our water service and 22 settle contractual arrangements as well as 23 our permit conditions. (Reading.) 24 She has expressed legal opinion. She has expressed an 25 opinion that the Bureau is operating in a manner consistent CAPITOL REPORTERS (916) 923-5447 12366 1 with the terms and conditions of its permits. She's done 2 that -- made similar statements in response to 3 cross-examination, including a statement just a few minutes 4 ago that she believes that the Bureau is operating in 5 compliance with its permits, that to operate the facilities 6 in a nonintegrated fashion would be in violation of federal 7 authorities. All of these are legal opinions. And I 8 believe that this question is certainly within the scope of 9 her direct testimony and is permissible. 10 C.O. STUBCHAER: Ms. Leidigh. 11 MS. LEIDIGH: I see a danger here in this hearing 12 evolving from a hearing on evidentiary facts to a hearing to 13 discuss people's analysis of the law. 14 We don't need to receive evidence under oath to discuss 15 the analysis of the law. It seems to me that the content of 16 Ms. Rupp's testimony, so far as it addresses purely legal 17 issues, is not of an evidentiary factual nature and should 18 be treated like legal argument. And to that extent, 19 perhaps, we should view it in the same way that we would 20 view a legal brief being filed by the Bureau of 21 Reclamation. 22 I think that the purpose of this hearing, again, is to 23 receive factual evidence. And to the extent that we can 24 separate that out from legal analysis, I think that it would 25 be better to do that. CAPITOL REPORTERS (916) 923-5447 12367 1 C.O. STUBCHAER: That is the key, to the extent we can 2 separate it out because it was embedded in the direct 3 testimony, I think. 4 Mr. Nomellini. 5 MR. NOMELLINI: Well, the testimony is there. And in 6 order to afford those of us who desire to exercise our right 7 to cross-examination, we should be allowed to cross-examine 8 this witness with regard to her testimony and within 9 reasonable bounds of which she submitted. 10 If we are not allowed to do that, then the testimony 11 ought to be stricken and all of the record related to this 12 testimony stricken and eliminated. And if Turner wants to 13 present some legal argument -- Mr. Turner. 14 C.O. STUBCHAER: Thank you. 15 MR. NOMELLINI: If he wants to present legal argument, 16 then we'll address it in the briefs. If we are going to 17 deal with this testimony, I feel you have to let us 18 cross-examine. 19 C.O. STUBCHAER: Mr. Turner. 20 MR. TURNER: All I can say, I certainly understand the 21 concerns that are expressed by Ms. Leidigh and the other 22 parties, in that the arguments that Ms. Rupp's written 23 testimony does, in fact, contain legal conclusions. I have 24 to concede that issue because I asked you the issues that 25 needed to be addressed in making a presentation to the Board CAPITOL REPORTERS (916) 923-5447 12368 1 in this phase of the proceeding: Are any lands to which 2 water is currently being delivered or may be delivered in 3 the future, are any of those lands outside the currently 4 permitted place of use under the CVP water permits? The 5 question automatically asks for a legal conclusion: What is 6 the permitted place of use? What is outside the permitted 7 place of use? What purposes of use are permitted? What 8 purposes are not permitted? 9 It required an analysis. What Ms. Rupp was doing was 10 saying here is the factual information that she looked at to 11 conclude, to reach the conclusions that are testified in her 12 testimony. This is not submitted as a legal brief, that 13 this is, in fact, somehow required by law or is the only 14 interpretation consistent with the law. She is trying to 15 lay out the background for the conclusions that she reached 16 that do, in fact, include elements of law. 17 I have no problem with questions being asked to get 18 further information as to how these conclusions are reached, 19 what was looked at, what wasn't looked at. But going on and 20 saying, "Here is a statute. What do you think of that? I 21 would like your legal opinion," which is something totally 22 outside the scope of the arguments or the conclusions that 23 she was reaching as to what was within and what is without a 24 Bureau permit. 25 So, I think the question should be narrowed to the CAPITOL REPORTERS (916) 923-5447 12369 1 scope of the analysis she had done, not trying to get her 2 legal opinion on factors that would affect the operation of 3 the Central Valley Project, which is not the area that she 4 specifically addressed in her testimony. 5 C.O. STUBCHAER: Last comment, Mr. Herrick. 6 MR. HERRICK: There are two things to that. Number 7 one, in order to examine how she came up with her factual 8 and legal conclusions, you have to be able to explore what 9 she considered. This objection began with my questioning 10 about her answer that the reason that flows may come from a 11 reservoir in violation of a permit term is because of 12 federal law. Of course, I need to explore what that federal 13 law is and what she based it on, what it says, or that 14 doesn't mean anything. 15 But, secondly, it is impossible -- or let me put it 16 this way: it is extremely unfair if we have to conduct our 17 cross-examination based on what the witness wants to 18 answer. In other words, "Yes, I will answer that. That is 19 a factual thing." Next paragraph, "No, that is my legal 20 conclusion. You can't go any further on that." That 21 doesn't make any sense. 22 C.O. STUBCHAER: I appreciate the comments of Ms. 23 Leidigh and Mr. Turner. I am going to permit the 24 questioning to continue. It is very difficult to draw the 25 proper line. It is a gray area in-between, I will ask the CAPITOL REPORTERS (916) 923-5447 12370 1 questioners to try and be as narrow as possible, but still 2 get to the answers you need. 3 MR. HERRICK: Thank you, Mr. Chairman. 4 Ms. Rupp, let me read to you Section 3406 (b) of CVPIA 5 and ignoring the heading, it says: 6 The Secretary, immediately upon enactment of 7 this title, shall operate the Central Valley 8 Project to meet all obligations under state 9 and federal law, including, but not limited 10 to, the federal Endangered Species Act -- 11 (Reading.) 12 And the cite. 13 And all decisions of the California State 14 Water Resources Control Board establishing 15 conditions on applicable licenses and permits 16 for the project. The Secretary, in 17 consultation -- (Reading.) 18 I will end there. 19 Ms. Rupp, in light of your earlier answer that you 20 believe that releases of water from Shasta that may be in 21 violation of permit conditions, that would be done only 22 because federal law, including CVPIA was directing that. 23 Can you tell me how you analyzed or how you arrived at your 24 answer in light of the text of Section 3406 (b)? 25 MS. RUPP: Looking at the first part of that says CAPITOL REPORTERS (916) 923-5447 12371 1 immediately upon the -- I forget the exact phrase, execution 2 of the law or something, that we would operate the CVP 3 according to Endangered Species Act and those 4 considerations. We did file our change request to 5 incorporate fish and wildlife purposes in all of our 6 permits. 7 MR. HERRICK: You picked out the first listed 8 requirement and didn't talk about the other listed 9 requirements under that section. One of the further ones 10 says: 11 Operate according to all decisions of the 12 California State Water Resources Control 13 Board establishing conditions on applicable 14 licenses and permits. (Reading.) 15 How did you decide it is necessary for you to release 16 water for fishery purposes if they are not allowed under the 17 permits? 18 MS. RUPP: It is my understanding that Reclamation had 19 an obligation to make releases for endangered species, and 20 we needed to follow that requirement. That is my personal 21 observation. 22 MR. HERRICK: You are talking about additional releases 23 that would be done before there was some new requirement? 24 MS. RUPP: Some new requirement? 25 MR. HERRICK: For releases for fish and wildlife CAPITOL REPORTERS (916) 923-5447 12372 1 purposes? 2 MS. RUPP: Yes. I believe the CVPIA legislation has 3 additional release requirements included in the 4 legislation. 5 MR. HERRICK: I don't mean to be argumentative, you are 6 saying that these new releases were required. Therefore, 7 you had to do them, not that we were doing things in the 8 past, but now CVPIA authorized those, so now we don't have 9 to comply with the permit? 10 MS. RUPP: I believe that we are obligated to try to 11 work together with federal and state law, but we can't 12 ignore federal law. 13 MR. HERRICK: Now, further on in the CVPIA statute, 14 under Section (b)(2) it talks about implementing or 15 dedicating 800,000 acre-feet of project yield for the 16 purpose of implementing fish and wildlife habitat 17 restoration authorized by this act; is that correct? 18 MS. RUPP: I am sorry, but you lost me. Can you repeat 19 that? 20 MR. HERRICK: A later section of Section 3406 is 21 section (b)(2). 22 MS. RUPP: Okay. 23 MR. HERRICK: That section directs the Bureau to 24 dedicate 800,000 acre-feet of water for the purposes of fish 25 and wildlife habitat restoration as the fish and wildlife CAPITOL REPORTERS (916) 923-5447 12373 1 habitat restoration are directed to be done under the act; 2 isn't that correct? 3 MR. BIRMINGHAM: Objection. Misstates the evidence. 4 CVPIA is in evidence as State Water Resources Control Board 5 staff Exhibit 32, and Mr. Herrick indicated that it required 6 the dedication and management of 800,000 acre-feet of water. 7 In fact, I believe the evidence is that it requires the 8 management and dedication of 800,000 acre-feet of project 9 yield. 10 MR. HERRICK: I appreciate that. That is my next 11 question. I don't mean to confuse that. 12 C.O. STUBCHAER: You accept the correction, Mr. Herrick? 13 MR. HERRICK: Certainly. 14 Ms. Rupp, further on in that same paragraph it tells 15 you where to get the 800,000 acre-feet. And it says to take 16 it out of Central Valley Project yield; is that correct, as 17 Mr. Birmingham corrected? 18 MS. RUPP: I believe that is correct. 19 MR. HERRICK: For the purpose of this section, the 20 term "Central Valley Project yield" means the delivery 21 capability of the Central Valley Project during the 1928 to 22 1934 drought period after fishery, water quality and other 23 flow and operational requirements imposed by terms and 24 conditions existing in licenses, permits and other 25 agreements pertaining to the Central Valley Project under CAPITOL REPORTERS (916) 923-5447 12374 1 applicable state and federal law existing under the time of 2 enactment of this title have been met. 3 Would you agree with that? 4 MS. RUPP: Okay. 5 MR. HERRICK: Now, is it your testimony that before the 6 Bureau's making releases in order to comply with federal law 7 that adds duties for fish and wildlife downstream, that 8 before it does that it is supposed to comply with fishery, 9 water quality and other flow requirements contained in the 10 existing permits? 11 MS. RUPP: I am not aware of the operational 12 considerations. If we look at, in order of appearance, 13 number one, we make releases for this purpose and, number 14 two, I know that we have cooperative operating agreements 15 and other operational considerations. But I don't know the 16 extent of detail on how operational decisions are made. 17 MR. HERRICK: Well, as part of your job to be 18 responsible for assuring California permits and licenses 19 associated with the Mid-Pacific projects comply with state 20 and water law, did you investigate to see whether or not, 21 before making releases that might not be in compliance with 22 current permit conditions, any particular project is first 23 meeting existing fishery, water quality and other flow and 24 operational requirements? 25 MS. RUPP: I personally don't make the operational CAPITOL REPORTERS (916) 923-5447 12375 1 decisions, and we work closely with our Central Valley 2 operations office. If any questions arise regarding our 3 permits or challenges to potential violations, then we 4 investigate on a specific case. 5 MR. HERRICK: Can you tell us have you not received 6 any, shall we say, complaints or notifications from the 7 South Delta Water Agency that the operations of New Melones 8 Project is not dedicating sufficient amounts of water for 9 water quality? 10 MS. RUPP: I believe that there were complaints on New 11 Melones operations and that they were going to be addressed 12 in the Bay-Delta hearing. 13 MR. HERRICK: As part of your job to check compliance, 14 you have not checked to see if any of the various federal 15 reservoirs are actually making releases to comply with their 16 existing permit terms? 17 MS. RUPP: I guess I am not sure -- if you are asking 18 me on a day-to-day basis if the head of water rights section 19 goes through and calls up the operations office and checks 20 through the various permit conditions, I am not aware that 21 that is done. I didn't do that when I was the head of the 22 water rights section. That wasn't my responsibility. 23 MR. HERRICK: Ms. Rupp, I believe you are here today to 24 ask the Board to, I don't want to use a pejorative word, but 25 to bless or authorize henceforth existing releases that the CAPITOL REPORTERS (916) 923-5447 12376 1 Bureau has made from its various reservoirs that may not be 2 in compliance with, as we talked about so far, type of use; 3 is that correct? 4 MS. RUPP: Yes. We are asking for conformance of the 5 purposes of use, to list all of the purposes of use. 6 MR. HERRICK: But I believe your previous answers have 7 confirmed that prior to asking the Board to do that, you 8 haven't done an analysis to determine whether or not you're 9 complying with the existing permit terms and requirements? 10 MS. RUPP: I don't know of any specific instance where 11 we are not complying with our permit terms. 12 MR. HERRICK: Are you familiar with the Department of 13 the Interior's testimony in Phases II, II-A, V and VI 14 regarding its releases from New Melones for water quality 15 purposes as a measure at Vernalis? 16 MS. RUPP: No. I have not been involved in that 17 issue. 18 MR. HERRICK: Would your previous answer change if you 19 were informed that the Bureau's current operational plan for 20 New Melones indicates, by the Bureau's analysis, that water 21 quality at Vernalis would be violated in 51 percent of the 22 years? 23 MS. RUPP: I don't -- that is not my area of expertise, 24 and I would assume that if the Bureau made that 25 determination that there were some reasons behind doing CAPITOL REPORTERS (916) 923-5447 12377 1 that. 2 MR. HERRICK: And are you asking the Board to cure any 3 of those determinations? 4 MS. RUPP: I'm only talking about the consolidated 5 place of use petition. 6 MR. HERRICK: Your biographical information, as Mr. 7 Atlas referred to earlier, states that as part of your work 8 experience, and I will quote: 9 Analyzes factual material related to past, 10 present and future use of water in order to 11 compare the relative rights of the United 12 States with respect to the rights of others 13 in connection with the potential development 14 of water use for irrigation, municipal and 15 other consumptive and nonconsumptive uses. 16 Responsible for preparation of reports, 17 studies, investigations and planning 18 documents on water right matters. (Reading.) 19 Is that a correct reading of the work experience on 20 your biographical information? 21 MS. RUPP: Yes. 22 MR. HERRICK: Have you done studies, reports or 23 investigations on any of the federally owned water projects 24 to see whether or not or to what degree current operational 25 activities may or may not comply with existing permit CAPITOL REPORTERS (916) 923-5447 12378 1 conditions? 2 MS. RUPP: No, I haven't studied that. 3 MR. HERRICK: Are you asking the Board to approve 4 unknown or undesignated permit violations? 5 MR. TURNER: Objection. I think the petition speaks 6 for itself as to what we are asking the Board to 7 approve. There was nothing in there having to do with any 8 kind of remedies, recognitions, approvals of past 9 violations, et cetera. We are talking about a modification 10 to a permit, regardless of whether the past activity was 11 consistent or inconsistent with the other conditions of the 12 existing permit. 13 MR. HERRICK: I don't think it's relevant to say that 14 the documents speaks for itself. I am trying to explore the 15 basis of her testimony. She said earlier Shasta, as an 16 example, may at some times make releases that are not in 17 compliance with permit conditions. 18 C.O. STUBCHAER: Objection's overruled. 19 MS. RUPP: I believe that the Bureau of Reclamation has 20 to take into consideration federal laws and state laws as 21 well as our contractual commitments, biological opinions, 22 AFRPs and other issues when we make operational decisions. 23 MR. HERRICK: My question is more to the first request 24 contained in the consolidated conform place of use request 25 that deals with consolidation. CAPITOL REPORTERS (916) 923-5447 12379 1 Is it correct to state that you're asking the Board to 2 approve either existing or potential or past operational 3 activities of the Bureau that may not comply with the place 4 of use, even though we haven't designated or identified 5 those specific potential violations? 6 MS. RUPP: I guess the answer would be yes because I am 7 asking the Board to recognize that we have always operated 8 the Central Valley Project as an integrated project. 9 MR. HERRICK: If we don't know the specific permit -- 10 potential permit violations that have occurred, do you 11 believe that we can adequately exam the effects of either 12 approving or not approving the continuation of those? 13 MS. RUPP: My personal opinion is approving is not an 14 option. I think that if you wanted to try to insist that 15 the Central Valley Project be separate and only operate -- 16 if you operate each facility independently, that that was 17 never the intent under federal or state legislation. 18 MR. HERRICK: But you would agree that could be done, 19 wouldn't you? 20 MS. RUPP: I don't think so, not without federal 21 authority. I think you would have to go back to Congress. 22 MR. HERRICK: Let's stay with Shasta. Shasta's permit 23 allows certain things, correct, and -- 24 MS. RUPP: That's correct. 25 MR. HERRICK: -- some of those are you can store so CAPITOL REPORTERS (916) 923-5447 12380 1 much -- you can trap so much water for storage at a certain 2 time of year, correct? 3 MS. RUPP: Correct. 4 MR. HERRICK: You can make releases for various 5 purposes downstream with that stored water; is that correct? 6 MS. RUPP: Yes. 7 MR. HERRICK: Some of those purposes may be to provide 8 a downstream user whose use of water may have been 9 interfered with the dam; is that correct? 10 MS. RUPP: Yes. 11 MR. HERRICK: Another one may be a downstream user who 12 simply wants to contract with somebody who is storing water 13 in order to irrigate acreage; is that correct? 14 MS. RUPP: Yes. 15 MR. HERRICK: The same thing would apply for municipal 16 and industrial uses, correct? 17 MS. RUPP: Yes. 18 MR. HERRICK: A further reason for releasing water from 19 that dam may be to get the water to the Delta and then pump 20 it out of the Delta for delivery to various uses, I will 21 say, down south of the Delta; is that correct? 22 MS. RUPP: Yes. 23 MR. HERRICK: What part of that, which one of those 24 possible uses or requirements of that stored water can't the 25 Bureau do because -- can't the Bureau do without permit CAPITOL REPORTERS (916) 923-5447 12381 1 changes? 2 MS. RUPP: I don't know that there is anything that we 3 cannot do. 4 MR. HERRICK: A further reason for making releases 5 downstream may be for, what I will call, environmental 6 purposes whether it is fisheries or other wildlife. That 7 may be another purpose; is that correct? 8 MS. RUPP: That's true. 9 MR. HERRICK: The Bureau makes decisions to do that 10 based on existing permit conditions or some other state law 11 or some other federal law; is that correct? 12 MS. RUPP: Yes. 13 MR. HERRICK: Is it your testimony that some of those 14 releases for environmental purposes can't be done under your 15 current permits? 16 MS. RUPP: I don't know that that is the case. That 17 would get specifically with the operational constraints. I 18 know the Bay-Delta Accord that was signed had to do with 19 water releases. I don't know that whether or not we make 20 releases outside of that Accord. 21 MR. HERRICK: I believe your earlier testimony that was 22 pursuant to CVPIA and perhaps other statutes the Bureau is 23 currently making some releases that may not be authorized by 24 its permits? For example, releases for downstream fishery 25 or environmental benefits. Is that correct? CAPITOL REPORTERS (916) 923-5447 12382 1 MS. RUPP: I said it was possible. 2 MR. HERRICK: What prevents the Bureau rather than 3 asking for all of its permits for all of its dams to be 4 enlarged or conformed to every use, why wouldn't the Bureau 5 petition the Board to say, "I need to release X amount of 6 acre-feet each year for fishery purposes. Please change 7 those permits in order to allow that"? 8 MS. RUPP: I think it is probably a practical 9 consideration and flexibility of operation, and also current 10 practice of the Board is to list all the purposes of use, 11 the beneficial uses in permit, generally. 12 MR. HERRICK: I apologize. I am not following that. 13 You said there is nothing in the existing permits that 14 prevents you from making appropriate releases for the 15 appropriate places of use for Shasta Dam water; is that 16 correct? 17 MS. RUPP: Yeah. 18 MR. HERRICK: Nothing stops you from complying with 19 those permit conditions; is that correct? 20 MS. RUPP: Right. 21 MR. HERRICK: But for environmental purposes there may 22 be some tension there between what is currently allowed and 23 what you feel is directed to be done by other authorities? 24 MS. RUPP: The federal legislation directed us to have 25 our permits in order and include the fish and wildlife CAPITOL REPORTERS (916) 923-5447 12383 1 enhancement in our permits. 2 MR. HERRICK: Is there a reason in 1992, after CVPIA 3 was passed, the Bureau didn't simply petition the State 4 Board to allow it to do slightly different operations to 5 make slight changes to its Shasta permit? 6 MS. RUPP: We had a petition in place to do that. 7 MR. HERRICK: You are referring to the 1985 one? 8 MS. RUPP: Yes. 9 MR. HERRICK: That petition doesn't say, "Please let me 10 release a little more water from Shasta"; that petition 11 says, "Please let us release water for a number of purposes 12 under all of our permits"? 13 MS. RUPP: That's correct. 14 MR. HERRICK: The Bureau feels that is a better way to 15 handle this? 16 MS. RUPP: Yes. 17 MR. HERRICK: Now, Ms. Rupp, are you familiar with the 18 prior testimony in Phase VI provided by Department of the 19 Interior witnesses? 20 MS. RUPP: No, I am not. 21 MR. HERRICK: Do you understand that Phase VI dealt 22 with a proposed watershed joint point of use, and by that it 23 meant the state and federal projects being able to use each 24 other's export facilities in the Delta? 25 MS. RUPP: Yes. CAPITOL REPORTERS (916) 923-5447 12384 1 MR. HERRICK: Let me give you a hypothetical since you 2 are not familiar with that testimony. According to your 3 testimony, the request in here in Phase VII encompasses 4 additional 834,667 acres to be included or consolidated or, 5 I guess, conformed to the place of use for Bureau permits; 6 is that correct? 7 MS. RUPP: Yes. 8 MR. HERRICK: Now, under the joint point of diversion 9 proposal, and I will make this a hypothetical since you 10 weren't here for that, it's potentially possible in certain 11 high water years for exports from the Delta to increase by 12 up to 800,000 acre-feet of water. Let's take that as an 13 assumption, okay? 14 MS. RUPP: Okay. 15 MR. HERRICK: If we add 800,000 acre-feet to the 16 Bureau's permits for CVP, and we also approve up to an 17 additional 800,000 acre-feet of water exported from the 18 Delta, is it your testimony that there couldn't be any 19 increased acreage due to that increased water exported? 20 MS. RUPP: I think I testified that Westlands uses all 21 its contractual entitlement. And I don't believe that there 22 is any consideration to increase that, although I am not 23 involved in the contract negotiations. 24 MR. HERRICK: In order to examine -- to do an 25 environmental review of the proposal, would we believe that CAPITOL REPORTERS (916) 923-5447 12385 1 such possibility needs to be covered? 2 MS. RUPP: I would think that coverage of that would 3 have been in the joint point analysis. 4 MR. HERRICK: Let's just add to the hypothetical that, 5 according to objections in that phase, we were not to 6 discuss the potential joint point effect on the Phase VII 7 issues. Would that change your answer? 8 MS. RUPP: I guess I am not seeing the connection. I 9 don't think that the consolidated place of use directly 10 relates to the joint point, or I don't see the connection, I 11 guess. 12 MR. HERRICK: Is all that additional 834,000 acre-feet 13 of land, is all of that already put to use? 14 MS. RUPP: The land identified in the DEIR, not all of 15 those acres are south of the Delta. And a large portion of 16 that was Santa Clara County, and those lands would not 17 probably ever be served CVP water, because of the 18 mountainous area. 19 MR. HERRICK: I don't want to lose my place, but let me 20 digress for just a moment based on your answer. 21 You're making an assumption that increased acreage in 22 Santa Clara -- is that water district or county water 23 district? 24 MS. RUPP: Santa Clara is county. I don't know exactly 25 what their title is. I have to look at the DEIR. CAPITOL REPORTERS (916) 923-5447 12386 1 MR. HERRICK: I meant the contractors of Santa Clara 2 County or the Santa Clara County Water District. I don't 3 want to misname. 4 MR. HAROFF: Mr. Chairman, Kevin Haroff. It is Santa 5 Clara Valley Water District. They are not the county. 6 C.O. STUBCHAER: Thank you. I was going to say the 7 same thing, but I am not allowed to testify. 8 MR. HAROFF: Neither can I, but I can stand up. 9 MR. HERRICK: You have apparently made an assumption 10 that mountainous property won't be put to use; is that 11 correct? 12 MS. RUPP: That's a practical conclusion. 13 MR. HERRICK: Again, I don't mean to sound facetious, 14 wouldn't you agree that all over the state new homes are 15 being built on mountainous or hilly property? 16 MS. RUPP: If you want to specifically talk about Santa 17 Clara Valley Water District, they have many different 18 sources of water. The CVP is a small portion. They get 19 water from the State Water Project. This is a practical 20 matter of their gross place of use area being defined. It 21 is not that we intend to serve all of these areas water. We 22 just want to match up their service area with what their 23 legal service boundary is. 24 MR. HERRICK: Understand. We are trying to explore 25 alternatives in this proceeding. I would ask you, then, if CAPITOL REPORTERS (916) 923-5447 12387 1 the Bureau is able to export in some years up to 800,000 2 acre-feet of additional water under joint point proposals, 3 is it your testimony that it is not a possibility that the 4 Bureau may provide some of that water to previously unused 5 land that is now in Santa Clara Valley Water District? 6 MS. RUPP: I believe that Santa Clara Valley Water 7 District under its contract arrangements has provisions to 8 increase its water use over time, and that was a provision 9 of the contract. So, to the extent that the contract 10 arrangements would allow that, there could be some land use 11 changes. 12 MR. HERRICK: There is a potential impact that we 13 haven't looked at; is that correct? 14 MS. RUPP: Yes. But Santa Clara Valley Water District, 15 the entire county was in the initial contract service area. 16 They have not annexed additional lands. 17 MR. HERRICK: Does that mean there has been any 18 environmental review of now supplying additional water that 19 will be used on previously undeveloped land in Santa Clara? 20 MS. RUPP: I believe that land changes are covered in 21 the contractual arrangements that the Bureau has with its 22 water service contractors. 23 MR. HERRICK: I am sorry, I asked you whether or not 24 there was any environmental review for that potentiality? 25 MS. RUPP: That is what I am saying, environmental CAPITOL REPORTERS (916) 923-5447 12388 1 review -- well, in the DEIR it covers Santa Clara County. 2 MR. HERRICK: It covers the delivery of additional 3 supplies to Santa Clara County Valley? 4 MS. RUPP: I think it looked at the quantity of water 5 that was available under the contract. 6 MR. HERRICK: That is current level? 7 MS. RUPP: That's correct. 8 MR. HERRICK: You also stated, and I don't want to 9 misrepresent this, that Westlands, for instance, since they 10 use all their water, the proposed changes under this 11 wouldn't have any effects; is that correct? 12 MS. RUPP: I said there would be no change in the net 13 irrigated acreage. 14 MR. HERRICK: Based on that no change in the net 15 irrigated acreage, you conclude that there aren't any 16 significant environmental impacts from the proposal; is that 17 correct? 18 MS. RUPP: Yes. 19 MR. HERRICK: Now, would you agree that the various 20 water users south of the Delta have numerous or varied 21 supplies of water? 22 MS. RUPP: Yes. 23 MR. HERRICK: Some receive state contract water; some 24 receive federal contract water; some take groundwater; some 25 takes transfers or purchases. Is that correct? CAPITOL REPORTERS (916) 923-5447 12389 1 MS. RUPP: That's correct. 2 MR. HERRICK: Now, do you think there is any effect by 3 changing the source of any of those districts by changing 4 any of those districts' source of water? 5 MS. RUPP: I think there would probably be an effect. 6 MR. HERRICK: If we transfer water that previously -- 7 if we substitute water that previously resulted in drainage 8 somewhere, you might affect that drainage in that place; is 9 that correct? 10 MS. RUPP: Yes. This isn't a transfer proposal. 11 MR. HERRICK: We are talking about whether or not any 12 additional acreage will be changed depending on whether or 13 not this is authorized; is that correct? 14 MS. RUPP: I guess you would look at the potential for 15 change. 16 MR. HERRICK: If we hypothetically didn't allow 17 deliveries to the places outside of the permitted place of 18 use, if that was the ruling of this Board, those places, 19 even if those places continued to be irrigated, they would 20 develop or find some other source of water; is that 21 correct? 22 MS. RUPP: I don't believe that that is true in all 23 cases. I think in some cases there are no other sources of 24 water available to them. 25 MR. HERRICK: In the cases where there are no other CAPITOL REPORTERS (916) 923-5447 12390 1 sources, there would be an impact because those lands would 2 go out of production? 3 MS. RUPP: Yes. There would be an impact. 4 MR. HERRICK: Your previous answer was you didn't 5 believe this would result in any change in the acreage 6 irrigated? 7 MS. RUPP: That's correct, in the net irrigated 8 acreage. 9 MR. HERRICK: Someplace there may be a change, correct? 10 MS. RUPP: There may be a change in some places. 11 MR. HERRICK: In other places they may find, because 12 they have additional, different sources of water; is that 13 correct? 14 MS. RUPP: If other sources of water were available and 15 CVP water was no longer available to serve places, then I 16 think that would be their alternative. 17 MR. HERRICK: If one of the alternatives was no longer 18 supplying those areas with CVP water, do you believe there 19 is an analysis done as to what happens if those places find 20 additional sources of water? 21 MS. RUPP: I think that the DEIR identified if there 22 were other sources of water available to the district when 23 they did the district-by-district analysis. 24 MR. HERRICK: Do you believe DEIR analyzed the effects 25 of where that additional source might come? CAPITOL REPORTERS (916) 923-5447 12391 1 MS. RUPP: I can't remember specifically. I know that 2 they did look at the existing uses of water, like if there 3 were high use of groundwater and what level was available 4 for future development. I think that is developed in the 5 DEIR. 6 C.O. STUBCHAER: I am sorry, your voice is trailing 7 off. 8 MS. RUPP: Sorry. I said that I believe the DEIR 9 looks at the water availability district by district, and it 10 looked at groundwater availability and tried to analyze. I 11 don't know. I guess you could argue on the extent of how 12 adequate that was. But I think it is in the DEIR. 13 C.O. BROWN: That was much better, Mr. Chair. I think 14 if you could hold that microphone, the people in the back 15 are interested in hearing you, Ms. Rupp. 16 MR. HERRICK: We may disagree about the extent of 17 analysis. That is for later legal argument. Would you 18 agree that some of those areas that might no longer be able 19 to receive CVP water might then purchase water from 20 different areas to replace their supplies? 21 MS. RUPP: I would think that would be possible. 22 MR. HERRICK: That purchased water can come from 23 various places, whether it is local to that area or 24 transfers from much farther upstream, or there is a wide 25 variety of places to get it; is that correct? CAPITOL REPORTERS (916) 923-5447 12392 1 MS. RUPP: Again, that would be a general statement. 2 You would have to look at specific case-by-case analysis of 3 the facilities and the deliveries in that based on 4 locations. I couldn't make a general statement to that 5 effect. 6 MR. HERRICK: Again, I am just walking through 7 potentialities, not specifics. So it is general. 8 One of those places that somebody might purchase water 9 on the San Joaquin River system might be released, go 10 through the Delta, be exported down to those people pursuant 11 to a separate, new, different sale; is that correct? 12 MS. RUPP: Sale with the Bureau of Reclamation, you 13 mean? 14 MR. HERRICK: The hypo would have to assume that the 15 Bureau is wheeling water based on -- the Bureau would be a 16 third party involved? 17 MS. RUPP: Yes. There is a possibility that that could 18 happen, I would guess. 19 MR. HERRICK: Do you believe that the DEIR for this 20 phase analyzes any sort of potential sale like that and the 21 effects on the area where that water would originate? 22 MS. RUPP: I can't rule if it goes into that kind of 23 analysis. 24 C.O. STUBCHAER: While you're paused, Mr. Herrick, how 25 much longer do you think your cross-examination will CAPITOL REPORTERS (916) 923-5447 12393 1 require? 2 MR. HERRICK: I have a substantial amount left, perhaps 3 up to an hour, but probably half-an-hour. 4 C.O. STUBCHAER: Would you stipulate to an hour? 5 MR. HERRICK: Certainly. I don't mean to slow things 6 down too much. Sorry. 7 C.O. STUBCHAER: That's all right. It's just about an 8 hour now, so I thought I would go along with the notice. 9 MR. HERRICK: I appreciate that. 10 (Discussion held off the record.) 11 C.O. STUBCHAER: Let's discuss the exhibit and then we 12 will take our lunch break. Let's discuss the exhibit that 13 was pending that Mr. Atlas asked about. Excuse me, Mr. 14 Herrick. 15 Did Mr. Turner want to comment or Ms. Leidigh? 16 MS. LEIDIGH: Staff did check on that, and it is not in 17 the record. 18 MR. TURNER: In light of that, Mr. Stubchaer, I 19 mentioned to Mr. Atlas earlier that I would, in lieu of 20 trying to reproduce this massive volume which you can take 21 judicial notice of anyway, I would be more than happy to 22 bring a copy to the hearing next Tuesday and make it 23 available for anyone that would like to review it or at what 24 point that would be sufficient. I didn't see that it would 25 be necessary to file it in light of the fact that it was CAPITOL REPORTERS (916) 923-5447 12394 1 cited in the testimony. I would be more than happy to make 2 it available. 3 C.O. STUBCHAER: Is that available on the lawnet, 4 whatever it is called, West Law? 5 MS. LEIDIGH: Or Lexus. 6 MR. ATLAS: It is too long. It is too old for West 7 Law. It is not too old for us. 8 C.O. STUBCHAER: Mr. Atlas, you heard Mr. Turner's 9 suggestion. Is that satisfactory to you? 10 MR. ATLAS: I will accept that. 11 MR. TURNER: I will definitely bring it with me next 12 Tuesday. 13 C.O. STUBCHAER: Mr. Birmingham. 14 MR. BIRMINGHAM: I was informed by State Board staff 15 that at the conclusion of Westlands' case in chief in Phase 16 VI I failed to move for admission into evidence Westlands 17 Water District 1, which is the statement of qualifications 18 of Stephen Ottemoeller, and Westlands Water District Exhibit 19 12, which is the groundwater graph, into evidence. I would 20 like to make that motion at this time. 21 C.O. STUBCHAER: It's -- I see a bit of a problem here 22 because not all the parties to Phase VI are present, but are 23 there any objections to receipt of these exhibits? 24 Seeing none, we will accept them with the provision 25 that if somebody who was in Phase VI who isn't here comes CAPITOL REPORTERS (916) 923-5447 12395 1 forward later, we will have to consider their objection. 2 MR. BIRMINGHAM: Thank you. 3 C.O. STUBCHAER: Mr. Turner. 4 MR. TURNER: One other matter, if I could, Mr. 5 Stubchaer. Mr. Michny was advising me that he has been 6 requested to attend a rather important meeting this 7 afternoon at 2:00. 8 MR. MICHNY: Starts at 3:00. 9 MR. TURNER: What I was wondering, if possible, if he 10 would be able to possibly leave for the last hour. If the 11 people could focus their questions on Ms. Rupp and pick up 12 again with him when he returns. If not, he can stay here. 13 It would be to our convenience if he could in fact be 14 released. I didn't know if the parties would have any 15 problems with trying to focus their questions to allow him 16 to leave at that point. 17 C.O. STUBCHAER: Are there any of the examiners who do 18 not have questions for Mr. Michny? 19 MR. BIRMINGHAM: Do not? 20 C.O. STUBCHAER: Do not. 21 Let me see. Excuse me. Mr. Conant, Mr. Birmingham and 22 Mr. Atlas. I don't know. I hesitate to disrupt the order 23 of cross for that. 24 MR. BIRMINGHAM: Excuse me, Mr. Stubchaer, I understood 25 your question is there anyone who doesn't have questions for CAPITOL REPORTERS (916) 923-5447 12396 1 him. I have no questions. 2 C.O. STUBCHAER: I understand that. I was considering 3 taking the others who do have questions for him first, but I 4 don't want to adjust the order. Let's see how it works out. 5 MR. TURNER: What I was suggesting, he will certainly 6 be back next week. Just been -- I think Mr. Birmingham is 7 supposed to be coming up next. If he didn't have any 8 questions for him and that he would be -- 9 MR. NOMELLINI: Mr. Chairman. 10 C.O. STUBCHAER: Mr. Nomellini. 11 MR. NOMELLINI: In case you hadn't thought about it, 12 you can do the reverse. In his absence those who have 13 questions -- don't have questions of him could step forward 14 if they wanted to, but I think it would have to be by 15 agreement of those parties. I am not trying to move -- 16 C.O. STUBCHAER: I understand. We will consider that 17 when we get to 3:00. You have to leave or be someplace at 18 3:00? 19 MR. MICHNY: I would have to walk out of here at 2:30. 20 If it doesn't work, it doesn't work. 21 C.O. STUBCHAER: I think, Mr. Nomellini, that that is 22 really what I was thinking of, but I didn't state it very 23 well. 24 MR. TURNER: Thank you very much. 25 C.O. STUBCHAER: We will reconvene at 1:00 p.m. Let's CAPITOL REPORTERS (916) 923-5447 12397 1 take our lunch break. 2 (Luncheon break taken.) 3 ---oOo--- 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 12398 1 AFTERNOON SESSION 2 ---oOo--- 3 C.O. STUBCHAER: Good afternoon. We will resume the 4 hearing and resume the cross-examination of this panel by 5 Mr. Herrick. 6 MR. HERRICK: Thank you, Mr. Chairman, Board Members. 7 I should be more organized now, but I am not. Sorry. 8 Ms. Rupp, on Page 3 of your testimony you list the 9 various uses that you're asking that all 16 of the permits 10 be changed to include; is that correct? 11 MS. RUPP: Yes, that's correct. 12 MR. HERRICK: Without wasting everybody's time too 13 much, what sort of demand on the CVP is there for frost 14 protection or heat control? 15 MS. RUPP: I believe that there are in the summertime 16 sometimes there are releases necessary for heat control and 17 I also believe there are frost protection. We included all 18 of the uses in order to allow us the most flexibility. 19 MR. HERRICK: Heat control means temperature control of 20 the downstream portion? 21 MS. RUPP: No, no. It is dealing with crops. 22 MR. HERRICK: Is it the Bureau's position that frost 23 protection and heat control uses of water are not within the 24 definition of agricultural use? 25 MS. RUPP: I believe that they are separate beneficial CAPITOL REPORTERS (916) 923-5447 12399 1 uses. 2 MR. HERRICK: Is the Bureau asking that the five listed 3 facilities have included in each of their permits salinity 4 control on the San Joaquin River? 5 MR. TURNER: Could I ask to clarify what the five 6 listed facilities -- what particular five specific 7 facilities are being identified. 8 MR. HERRICK: I don't think I can list them. On Page 3 9 of your testimony, Ms. Rupp, it says: 10 Reclamation requested that the place of use 11 maps for the various permits associated with 12 the five facilities involved in this 13 petition... (Reading.) 14 Et cetera. Perhaps you could list the five facilities 15 for us. That is on Page 3 under the first sentence under 16 Part 2. 17 MS. RUPP: Would be Trinity Whiskeytown Folsom, Shasta, 18 DMC, and Contra Costa, the Rock Slough. 19 MR. HERRICK: Now let's go back to my question, then. 20 Is the Bureau asking that salinity control on the San 21 Joaquin River be included in the five facilities' permits? 22 MS. RUPP: That is not a specific request for the San 23 Joaquin River. 24 MR. HERRICK: You understand that salinity control, as 25 measured by water quality standard, is a requirement of the CAPITOL REPORTERS (916) 923-5447 12400 1 Bureau on the San Joaquin River system? 2 MS. RUPP: Yes, that is my understanding. 3 MR. HERRICK: You understand that from prior questions 4 that I gave you that the Bureau's projected operations of 5 their facilities on the San Joaquin are expected not to meet 6 that objective? 7 MS. RUPP: As I said before, the scope of my comments 8 are with the consolidated use petition, and I wasn't here to 9 comment on the New Melones operation, as I said before. 10 MR. HERRICK: Again, I am not trying to beat this. You 11 don't know why, then, the Bureau didn't request that its 12 inseparable joint operation wouldn't include this other 13 system? 14 MS. RUPP: New Melones isn't part of our integrated 15 operations. 16 MR. HERRICK: Why is that? 17 MS. RUPP: Because when we release water from New 18 Melones, we do not have authority to subsequently divert 19 that water at Tracy and use it as an export. 20 MR. HERRICK: You release from New Melones and then 21 consider it abandoned at Vernalis and then export it from 22 Tracy, right? 23 MS. RUPP: It is just as I stated. We do not have the 24 authority in our permits to release water from New Melones. 25 MR. HERRICK: Is there a reason why you don't want to CAPITOL REPORTERS (916) 923-5447 12401 1 integrate New Melones with the other projects so that the -- 2 other portions of the project, so that they might be used to 3 help meet the salinity objective on the San Joaquin River? 4 MS. RUPP: I don't know that -- that specific issue has 5 not been addressed by me personally. I don't know that it 6 has by the Bureau of Reclamation or not. 7 MR. HERRICK: Ms. Rupp, I get from your testimony that 8 the Bureau is equating service areas authorized by state or 9 federal legislation with permitted place of use areas. Is 10 that an incorrect observation on my part? 11 MS. RUPP: I am saying that our contracts authorize 12 service to their -- within their legal boundaries at the 13 time we entered into contracts with them. 14 MR. HERRICK: Maybe I misunderstand your testimony, but 15 I believe you go further and say because we were contracting 16 as allowed by statute with these districts that those areas 17 should be considered part of the permitted place of use. 18 MS. RUPP: I said that based on the conditions and 19 various decisions with the CVP. I looked at those decisions 20 and conditions and they indicated to me that that authorized 21 delivery within those service areas. 22 MR. HERRICK: You got that from what you listed as 23 Condition 23 and 29, those various conditions you quoted. 24 MS. RUPP: That is correct. 25 MR. HERRICK: Is that an issue for some reason? In CAPITOL REPORTERS (916) 923-5447 12402 1 other words, have you presented that and the Board disagreed 2 with that position prior to this hearing? 3 MS. RUPP: I had not had the opportunity to present it 4 to the Board staff prior to the hearing. 5 MR. HERRICK: I guess my question is: If the Bureau 6 believes those provisions equate the service area with the 7 permitted place of use area, why is the Bureau asking for 8 permit changes now? 9 MS. RUPP: I think that even though it is our -- that 10 is our understanding, we would like confirmation from the 11 Board through this proceeding that that is the case. 12 MR. HERRICK: In your testimony you go through the 13 various districts, and I wanted to clarify a few things of 14 those. Starting on Page 10, excuse me for mumbling, in many 15 of those districts that you cover you conclude that no 16 environmental analysis is required prior to a State Board 17 decision. Could you explain to us, please? 18 MS. RUPP: What I was trying to identify in that part 19 of my written testimony was whether an analysis was required 20 in the DEIR, and based on the contract boundaries. When I 21 went back and did the research, those statements indicate 22 whether the district annexed lands subsequent to the initial 23 contract or not. 24 MR. HERRICK: Are you saying that whether or not water 25 was delivered to an area authorized by existing permits, CAPITOL REPORTERS (916) 923-5447 12403 1 whether or not that was correct or not, examining whether it 2 should be authorized doesn't need an environmental review? 3 MS. RUPP: I am saying that if an area was authorized 4 through those conditions, then it should not be subject to 5 environmental review now. 6 MR. HERRICK: Isn't the environmental document 7 describing what we are doing here is examining whether or 8 not 800,000 acres should be added to the existing permit? 9 MS. RUPP: That is how the scope was defined in the 10 DEIR. 11 MR. HERRICK: Those areas, then, should have 12 environmental review? 13 MR. TURNER: Asked and answered. 14 C.O. STUBCHAER: I think it was. 15 MR. HERRICK: The reason I asked that is because I 16 thought there were two conflicting answers there. I would 17 like to explore that. I am not trying to just be 18 repetitive. 19 C.O. STUBCHAER: Two out of three. 20 MR. HERRICK: I'm stunned. 21 (Reporter changes paper.) 22 MR. HERRICK: Ms. Rupp, I have a question on Page 12 of 23 your testimony. You cite a letter from Westplains Water 24 Storage District to DWR. The letter dated 1963. Just 25 trying to draw your attention to that portion. CAPITOL REPORTERS (916) 923-5447 12404 1 MS. RUPP: Yes. 2 MR. HERRICK: Perhaps you can explain -- I don't 3 understand part of the letter says, and I am quoting: 4 The district has a split with the results 5 that the western portion, which is at the 6 highest elevation above the main canal, is 7 the only area in which state water legally 8 could be delivered. (Reading.) 9 And then later on it says: 10 If the service area were to be determined 11 today, the area of the district would be 12 either wholly within the service area or 13 wholly within the state service area. 14 (Reading.) 15 Is that, to your understanding, is that saying that if 16 they were starting from scratch today, they would draw it 17 wholly in one or wholly in the other? 18 MS. RUPP: Westplains Water Storage District doesn't 19 exist anymore. It was merged with Westlands. Are you 20 asking me to hypothesize if it were still in existence, what 21 would happen? 22 MR. HERRICK: The issue before us is whether or not 23 parts of the current Westlands are within or not within the 24 district or whether that should be approved. I am just 25 trying to clarify whether or not there is an internal CAPITOL REPORTERS (916) 923-5447 12405 1 inconsistency in the paragraph quoted. 2 Do you know whether or not what that letter was 3 attempting to say was, at the time if they were doing the -- 4 redrawing -- drawing the lines for the first time when the 5 letter was written they would either include all within one 6 or all within another instead of partially; is that what 7 that is saying? 8 MS. RUPP: Based on my research and my understanding, 9 and I may be wrong, Westplains was in a frustrating 10 situation of not being able to get all its water supply from 11 either the State Water Project or the Central Valley 12 Project. So the decision was made to merge with Westlands 13 and get its supply from Central Valley Project. 14 MR. HERRICK: I will move on. 15 The next page you reference two statutes from the water 16 Code, and each of those statutes talk about the state either 17 reference to property owners within and adjacent to the 18 service area and the other one says in and surrounding the 19 federal service area. 20 Is it your testimony here today that those references 21 are indications that state statutes were expanding or 22 confirming permitted places of use? 23 MS. RUPP: That would be my understanding. 24 MR. HERRICK: On the bottom of that page you talk about 25 Arvin-Edison Storage District. And it says: CAPITOL REPORTERS (916) 923-5447 12406 1 The district has a long-term contract with 2 Reclamation. Although the contract is for 3 service from the Friant division, 4 Arvin-Edison, in fact, receives water from 5 the Delta and provides its Friant water to 6 contractors. (Reading.) 7 Is the Bureau currently delivering water from the DMC 8 in violation of DMC permitted places of use? 9 MS. RUPP: No. 10 MR. HERRICK: Could you explain that for me, please? 11 MS. RUPP: The Trinity permits allow delivery to the 12 Arvin-Edison Water Storage District. 13 MR. HERRICK: Do the DMC permits was the question. 14 MS. RUPP: Well, the DMC area is also in the Trinity 15 permitted place of use. 16 MR. HERRICK: I take it from your testimony that you 17 were unable to determine in some instances when areas were 18 annexed or when service contracts were entered into? 19 MS. RUPP: I don't believe I had a problem with that. 20 Can you -- 21 MR. HERRICK: I recall a quote where you state that you 22 weren't able to determine when the areas were annexed and 23 you made an assumption. Is my memory faulty on that? 24 MS. RUPP: I guess I am not aware of that statement. 25 If you're talking about Del Puerto, I chose not to study CAPITOL REPORTERS (916) 923-5447 12407 1 that because there were a number of small contracts with 2 boundaries. It would have involved a lengthy research, and 3 the issue was 1000 acres, and I just determined that because 4 no mitigation was identified in the DEIR, in that 5 circumstance, that I would not go in and look at all of the 6 boundaries. 7 MR. HERRICK: Isn't it Mr. -- isn't the other panel 8 member's testimony that mitigation will be determined later 9 through other processes? 10 MS. RUPP: Del Puerto is in one of those areas that all 11 of the acreages receive CVP water. 12 MR. HERRICK: And -- 13 MS. RUPP: And so there wasn't any subsequent 14 environmental analysis required beyond the DEIR. 15 MR. HERRICK: Isn't it a possibility that the Board 16 says don't deliver to them anymore? 17 MS. RUPP: I guess that is a possibility. 18 MR. HERRICK: Doesn't that need to be evaluated for 19 impact? 20 MS. RUPP: I would -- the Board made the decision on 21 the analysis in the DEIR. I couldn't answer that. 22 MR. HERRICK: No disrespect. I am asking for your 23 opinion on that. 24 MS. RUPP: I don't know to what extent analysis would 25 need to be done. I think what we have said in the CAPITOL REPORTERS (916) 923-5447 12408 1 documentation was that we identified if there were 2 alternative sources of water available, so there was some 3 analysis done. I don't know if you are saying that that is 4 inadequate or not. 5 MR. HERRICK: The DEIR for this phase was apparently 6 produced by CH2M Hill. Did the Bureau assist in that 7 preparation? 8 MS. RUPP: Yes, we did. 9 MR. HERRICK: Who assisted in that preparation? 10 MS. RUPP: There were various staff members. I was 11 involved. Doug Kleinsmith from the Bureau was involved. 12 MR. HERRICK: Do you know who came up with the three 13 alternatives listed in that DEIR? 14 MS. RUPP: No. I wasn't with the Bureau of Reclamation 15 at the time. That would have -- I can't -- I am not sure 16 when that determination was made, I guess. 17 MR. HERRICK: Was that determination made by the Bureau 18 or CH2M Hill? 19 MS. RUPP: I think it was made by the State Board 20 staff. 21 MR. HERRICK: The State Board staff assisted in CH2M 22 Hill's preparation of this, also; is that correct? 23 MS. RUPP: It's their EIR. 24 MR. HERRICK: Do you know why one of the alternatives 25 examined did not include no longer delivering water to the CAPITOL REPORTERS (916) 923-5447 12409 1 places or decreasing exports in an amount equal to the 2 amount that previously had been delivered outside the 3 permitted areas of use? 4 MS. RUPP: Probably because contractually the Bureau of 5 Reclamation is contracted to deliver a certain quantity of 6 water to the districts. Even if a portion of that district 7 were excluded from the place of use, it wouldn't necessarily 8 reduce the amount of water they would be entitled to receive 9 under their contract. 10 MR. HERRICK: In that event, wouldn't there be 11 different environmental impacts resulting from the delivery 12 of the same amount of water but being used in a different 13 place, part of it being used in a different place? 14 MS. RUPP: I suppose there could be. 15 MR. HERRICK: If more water is available for existing 16 contracts because you no longer deliver amounts for areas 17 not permitted, might that not increase drainage to the San 18 Joaquin River? 19 MS. RUPP: I didn't analyze that. I can't really 20 speculate. 21 MR. HERRICK: If that were a possible effect, would you 22 agree that that should be analyzed? 23 MS. RUPP: I can't make a determination whether it is a 24 possible effect, so I can't determine whether it should be 25 analyzed. CAPITOL REPORTERS (916) 923-5447 12410 1 MR. HERRICK: Who at the Bureau could make that 2 determination, whether it might be an effect or not? 3 MS. RUPP: I think that it was up to the State Board 4 staff to determine the scope of the DEIR. 5 MR. HERRICK: Do you know if anybody's made any 6 determination as to what areas that are currently being 7 served with water and the CVP is not permitted to do that, 8 what areas might be contributing or not contributing to the 9 drainage on the San Joaquin River? 10 MS. RUPP: I can't answer that question. 11 MR. HERRICK: Ms. Rupp, to your knowledge does the DEIR 12 contain any analysis of the effects of any of the 13 alternatives when combined with the joint point alternatives 14 that were examined in Phase VI? 15 MS. RUPP: No. 16 MR. HERRICK: To your -- in your opinion, does that 17 combination of potential effects need to be analyzed? 18 MS. RUPP: In my opinion, it does not. 19 MR. HERRICK: Why would it not need to be analyzed, in 20 your opinion? 21 MS. RUPP: The consolidated place of use is to conform 22 our water users with our existing contract service area 23 boundaries. The joint point, the scope of that is to 24 facilitate exporting of water and ease the shortage that 25 some of the export contractors are currently experiencing. CAPITOL REPORTERS (916) 923-5447 12411 1 MR. HERRICK: I understand that. I don't understand 2 why that means it shouldn't be analyzed, the effects of 3 those two together. 4 MS. RUPP: I guess I don't see the connection between 5 those two. 6 MR. HERRICK: Again, I am not trying to be impolite. 7 What makes you conclude -- if you don't see the connection, 8 what makes you conclude there are no effects that might 9 result from both of them happening at the same time? 10 MS. RUPP: I am sorry. I don't see the connection. 11 MR. HERRICK: If a possibility were that the export 12 water, the amount of export water, delivered to areas 13 outside of the service area is no longer available for 14 export, might that perhaps allow that amount of water to be 15 available in areas where the water originates? 16 MS. RUPP: As I said before, I don't think that 17 stopping water from a certain area within a district adjusts 18 the amount they are entitled to under their contract. 19 MR. HERRICK: I understand that, but I am asking you if 20 one of the alternatives the Board considers is to simply 21 decrease exports by the amount that was previously delivered 22 in violation of permit conditions, might that make 23 additional water available in the areas where that water 24 originates? 25 MS. RUPP: I did not analyze that, and I don't have a CAPITOL REPORTERS (916) 923-5447 12412 1 response to that. 2 MR. HERRICK: Do you know whether anybody at the Bureau 3 analyzed that? 4 MS. RUPP: I am not aware of that. 5 MR. HERRICK: Do you know whether or not the areas of 6 origin might take or use water that might become available 7 in that scenario? 8 MS. RUPP: Are you talking about the area of origin 9 contractors who already have existing contracts with the 10 Bureau of Reclamation? 11 MR. HERRICK: I am talking about anybody in the areas 12 or origin who might want to use the water if it became 13 available. 14 MR. TURNER: I have to reiterate once again, I am 15 sorry, we are getting back into operational decisions that 16 are just not within the scope of Ms. Rupp's expertise of the 17 analysis that was done in connection with this document. If 18 you want to allow her to answer, I think it should be 19 recognized that she is just answering from her own personal 20 knowledge, not reflecting any familiarity with the 21 operational implications or considerations. 22 I would again object to getting into the scope of 23 questioning for this particular witness. 24 C.O. STUBCHAER: I think this line of questioning -- I 25 am going to sustain the objection on further questions CAPITOL REPORTERS (916) 923-5447 12413 1 because she's already stated several times she can't answer 2 it. So it is time to move on to the next part. 3 MR. HERRICK: I will certainly move on, Mr. Chairman. 4 I would like to state that she is also here to testify that 5 the existing environmental review is sufficient. And if 6 alternatives can be presented to her as an expert witness, 7 and those have or have not been examined, they become 8 extremely pertinent and relevant to any of those. I will 9 move on because of her previous answer. 10 C.O. STUBCHAER: Yes, that is wise. 11 MR. HERRICK: I will move on because you directed me to 12 move on. 13 C.O. STUBCHAER: You stated it properly the first time. 14 You have reached a dead end on that line of questioning 15 because it had been asked and answered three times. 16 MR. HERRICK: If the Board will give just a little bit, 17 I believe I'm done. 18 I have no further questions. 19 Thank you. 20 C.O. STUBCHAER: Thank you, Mr. Herrick. 21 Mr. Nomellini. 22 ---oOo--- 23 // 24 // 25 // CAPITOL REPORTERS (916) 923-5447 12414 1 CROSS-EXAMINATION OF DEPARTMENT OF THE INTERIOR 2 BY CENTRAL DELTA PARTIES 3 BY MR. NOMELLINI 4 MR. NOMELLINI: Mr. Chairman, Members of the Board, 5 Dante John Nomellini for Central Delta Parties. 6 My first questions are of Connie Rupp. 7 You indicated in your testimony that the first time 8 that the Bureau applied for changes of place of use was in 9 1959; is that correct? 10 MS. RUPP: That's the first time that we applied for 11 the consolidation of the uses. 12 MR. NOMELLINI: Would you agree that that would have 13 changed the place of use on some of the permits included in 14 the application? 15 MS. RUPP: Yes. 16 MR. NOMELLINI: For other permits it really didn't 17 change the place of use? Is that what you are saying? 18 MS. RUPP: That petition was to recognize the 19 integrated operations, and so it was to allow the water 20 physically be delivered to areas that was possible within 21 the facility's location. 22 MR. NOMELLINI: Going back to 1959 and the petition to 23 consolidate the place of use, did that petition include the 24 request to make a change of place of use in all of the 25 applications that were covered? CAPITOL REPORTERS (916) 923-5447 12415 1 MS. RUPP: I didn't have a copy of the 1959 2 petition, and I couldn't locate one in our records. I did 3 see all of the applications listed; some were granted from 4 our 1959 petition. And that letter is included as an 5 exhibit. 6 MR. NOMELLINI: Was the 1959 request to change the 7 purposes of use, as well? 8 MS. RUPP: Hold on one second. Let me see if it 9 references that. 10 It says that the -- Exhibit 13-D that the Bureau of 11 Reclamation submitted in the late 1950s and '60s to 12 consolidate the place of use and to add points of diversion 13 or rediversion or set water right entitlements. It does not 14 mention the purpose of use, so I considered that was not 15 included. 16 MR. NOMELLINI: Thank you. 17 In answers to a previous question I believe you stated 18 that by filing the 1959 application the Bureau was thereby 19 allowed to operate in accordance with the requested change. 20 And I understood that to be rather than the permit 21 conditions. 22 Was that your testimony? 23 MS. RUPP: I believe that I may have misstated. What I 24 meant to say was that, as far as I know, we operated in 25 accordance with our permit conditions. We do not separate CAPITOL REPORTERS (916) 923-5447 12416 1 out by facility and identify how each facility fits. We 2 operate in an integrated way. And so we probably could do 3 the accounting to show that we operate with our permit 4 conditions. That is just not how we do it. 5 MR. NOMELLINI: Now going back to 1959, is it your 6 contention that there was no need on the part of the Bureau 7 to apply for a change of place of use, which I think you 8 described as a consolidate or a place of use? 9 MR. TURNER: I object. I fail to see how Ms. Rupp 10 would have any personal knowledge of that subject. She's 11 already indicated that she has not been able to locate a 12 copy of the petition itself. 13 C.O. STUBCHAER: As usual, if the witness doesn't have 14 the answer to a question, they can so state. I think the 15 question is fair. 16 MS. RUPP: I have not looked at the specific petition 17 for 1959. 18 MR. NOMELLINI: When you say you believe you were 19 operating -- the Bureau has been operating in accordance 20 with the permit conditions, is it your testimony that the 21 Bureau is conforming with the places of use as designated in 22 the various permits that were on file prior to 1959? 23 MS. RUPP: Yes, I think so. 24 MR. NOMELLINI: Do you know why the Bureau in 1959 25 applied for a consolidation of the place of use? CAPITOL REPORTERS (916) 923-5447 12417 1 MS. RUPP: I think we wanted to be consistent with 2 federal and state legislation and have the Board recognize 3 that we do, in fact, operate in an integrated way. 4 MR. NOMELLINI: And you would agree that no change of 5 place of use, as requested in 1959, was granted by the 6 Board? 7 MS. RUPP: Change in place of use was granted for some 8 of our applications. It is on the table on 13-D. There is 9 some specific application numbers listed and the indication 10 that they were granted. 11 MR. NOMELLINI: But the general consolidation of the 12 place of use was not granted; is that your testimony? 13 MS. RUPP: That's correct. 14 MR. NOMELLINI: You had indicated that there would be, 15 I think at Page 3 of your testimony, there would be no 16 changes, at the top of the page, no changes in operations 17 are contemplated as a result of this request. 18 Do you see that? 19 MS. RUPP: Yes. 20 MR. NOMELLINI: And if I heard you correctly, you had 21 testified that even if this request was denied, the Bureau 22 would continue to operate as it has been operating? 23 MS. RUPP: Yes. I think that would be our intention, 24 to operate in an integrated way. 25 MR. NOMELLINI: And is that based on -- Strike that. CAPITOL REPORTERS (916) 923-5447 12418 1 I believe you indicated that you felt that the Bureau 2 was mandated by federal law to operate in a manner that it 3 has been operating even if that manner was contrary to 4 permits of the State Board; is that correct? 5 MS. RUPP: No. What I intended to say was that the 6 federal and state legislation said that the Central Valley 7 Project was an integrated water plan. 8 MR. NOMELLINI: Is it your contention that an 9 integrated water plan means that it can be operated without 10 compliance with State Water Resources Control Board water 11 right terms and conditions? 12 MS. RUPP: No. 13 MR. NOMELLINI: Now, I would like to pursue this. If 14 the requested changes in place of use are denied, what 15 changes, if any, would you expect? And I understand that 16 your testimony is that you would not expect any changes, and 17 I wanted to go through the specifics here. 18 First of all, would there be any change in water 19 delivery to the acreages listed as encroachment areas on 20 II-6 of the environmental document, if you know? 21 Page II-6. I am not sure I have the staff exhibit 22 number. 23 MR. CORNELIUS: Staff Exhibit 2. 24 MS. RUPP: You are asking me what again? 25 MR. NOMELLINI: If you look at the column under CAPITOL REPORTERS (916) 923-5447 12419 1 encroachment and Table II-2, is it your testimony that there 2 would be no changes in water deliveries to the acreages 3 listed under encroachment if the Board denied the request 4 for consolidation of the place of use? 5 MS. RUPP: Well, the encroachment areas there are 6 talking both M&I and irrigation areas. So I am not sure 7 what you are asking. 8 Are you asking me that if we deliver to a city, we are 9 going to shut off certain blocks and not allow water 10 delivery to those? 11 MR. NOMELLINI: What I am pursuing is your answer, 12 which I understood to be that there would be no changes in 13 the Bureau's operations if this Board denied the requested 14 consolidation of the place of use. 15 MS. RUPP: I believe that is correct. Because we 16 deliver to the district and then they distribute 17 specifically within the district. 18 MR. NOMELLINI: Let's take the other part of it. Is it 19 your testimony that there would be no changes in the 20 Bureau's operation if the Board denied the conformation of 21 the purposes of use of your various permits? 22 MS. RUPP: I believe there would be no change. 23 MR. NOMELLINI: Then, is it the purpose of your request 24 to seek the expansion, but not the approval, of the existing 25 deliveries outside the place of use? CAPITOL REPORTERS (916) 923-5447 12420 1 MS. RUPP: I am not sure I understand your question. 2 MR. NOMELLINI: Let me try a different way. If it 3 won't make any difference to the Bureau, why are you making 4 this request? 5 MS. RUPP: You are asking me if it wouldn't make a 6 difference in the operation. And it certainly does on the 7 permits to reflect the flexibility of our integrated 8 operation. We can show through accounting molecule by 9 molecule of analysis. That doesn't get us anywhere. 10 MR. NOMELLINI: What benefit does the Bureau see in 11 obtaining approval of the request for consolidation of place 12 of use and conformation of the purposes of use of its 13 permits? 14 MS. RUPP: I think it recognizes an integrated 15 operation of the CVP. 16 MR. NOMELLINI: Is it your contention that the Board, 17 in analyzing the impact of its decisions with regard to this 18 proposal, that it should not consider an analysis that would 19 remove the water from the delivery to the encroachment lands? 20 MS. RUPP: I don't have an opinion on that. 21 MR. NOMELLINI: Now, going back to the original 22 applications that are the subject of the particular request 23 for changes, is it the Bureau's contention that the Board 24 did not grant to the Bureau the requested place of use? 25 MS. RUPP: From the 1959? CAPITOL REPORTERS (916) 923-5447 12421 1 MR. NOMELLINI: Prior to 1959. 2 MS. RUPP: Can you repeat the question? 3 MR. NOMELLINI: Let me try it a little different way. 4 You would agree, would you not, that prior to 1959 the 5 Bureau made applications to the Board? 6 MS. RUPP: Yes, that's probably the case. 7 MR. NOMELLINI: Those applications included a place of 8 use, did they not? 9 MS. RUPP: We had maps associated with the 10 applications. 11 MR. NOMELLINI: Do you agree that those maps indicate 12 the requested place of use for the particular application 13 filed with the Board? 14 MS. RUPP: That was our planned delivery area. 15 MR. NOMELLINI: And the Board granted the permits based 16 on those maps, did they not? 17 MS. RUPP: The maps were included, that the Board in 18 the decisions also recognized that we did not have a service 19 contract in place and so specific conditions were included 20 that allowed delivery, in my opinion. 21 MR. NOMELLINI: Is it your contention that the Board 22 did not grant the Bureau what it wanted in terms of a place 23 of use in the application prior to 1959? 24 MS. RUPP: I believe the place of use boundary was not 25 of a significant issue to the Board at that point in time. CAPITOL REPORTERS (916) 923-5447 12422 1 Because if the Board wanted to make that boundary line a 2 legal line, then they would have required the Bureau of 3 Reclamation to survey and define it. 4 MR. NOMELLINI: Is there -- other than what you said 5 there, you couldn't find a requirement that the Bureau had 6 to survey and define it, is there anything else that you 7 have that is evidence that the place of use as requested by 8 the Bureau was not, in fact, the place of use granted by the 9 Board? 10 MS. RUPP: I think just the decisions that were issued 11 by the Board. 12 MR. NOMELLINI: Do you contend that the language in the 13 decision expands the place of use beyond the map as 14 submitted in the application? 15 MS. RUPP: Yes. 16 MR. NOMELLINI: What leads you to believe that that was 17 even requested by the Bureau at that time? 18 MS. RUPP: I don't know what you mean as far as 19 request. But I think it was recognized that we didn't have 20 contracts in place. 21 MR. NOMELLINI: Let's assume that is the case, that you 22 didn't have the contracts. And your testimony indicates 23 that you agreed that the Bureau requested a place of use as 24 depicted by a map? 25 MS. RUPP: That's right. CAPITOL REPORTERS (916) 923-5447 12423 1 MR. NOMELLINI: You would agree that you are contending 2 that the Board granted an expansion of the place of use 3 beyond that requested by the Bureau by way of its language 4 in the permit talking about the deliveries to particular 5 districts or receiving entities; is that correct? 6 MS. RUPP: Right. 7 MR. NOMELLINI: Now I am asking you what, if any, other 8 evidence other than that simple fact that would lead you to 9 believe that the Bureau granted a broader place of use than 10 requested by the applicant? 11 C.O. STUBCHAER: The Bureau granted? 12 MR. NOMELLINI: The Board, excuse me. Thank you. 13 What other evidence is there to support your belief 14 that the Board granted a broader place of use than that 15 requested by the applicant, in this case the Bureau? 16 MS. RUPP: Just the conditions in the decisions. 17 MR. NOMELLINI: Starting in 1959, the Bureau requested 18 a change in the place of use in the form of a consolidated 19 place of use for various permits. That's true and you've 20 confirmed that a couple times. 21 Subsequent to that time you have indicated that there 22 was also a filing in, I believe, 1985; is that correct? 23 MS. RUPP: That's correct. 24 MR. NOMELLINI: And in 1985 the Bureau filed for a 25 consolidation of the place of use of its various permits. CAPITOL REPORTERS (916) 923-5447 12424 1 Is that what your testimony is? 2 MS. RUPP: Yes. 3 MR. NOMELLINI: And in 1985 did the Bureau request a 4 conformance or consolidation of the purposes of use of its 5 various permits? 6 MS. RUPP: Yes. 7 MR. NOMELLINI: Is it the Bureau's contention that in 8 any way the mere filing of the application in 1985 9 constituted authority for the Bureau to operate according to 10 the requested changes rather than the permit terms? 11 MS. RUPP: No. 12 MR. NOMELLINI: Is there any evidence that you can 13 cite, going back to 1985, that would support the contention 14 that the Bureau believed that it did not need a 15 consolidation of the place of use of its permits in order to 16 conform with its operation? 17 MS. RUPP: I think that our petition is to allow the 18 flexibility and ask the state to recognize the integrated 19 operations that have always occurred on the Central Valley 20 Project. We can probably break down our project operations 21 facility by facility, but that is not, in fact, how we 22 operate. 23 MR. NOMELLINI: Do you know if anybody in the Bureau 24 has attempted to ascertain whether or not the actual 25 operations conform to the permit terms and conditions as CAPITOL REPORTERS (916) 923-5447 12425 1 granted by breaking down the project operations as you have 2 indicated? 3 MS. RUPP: I personally have not been involved in such 4 an analysis. That would be our operations office would do 5 that. 6 MR. NOMELLINI: Do you know if they, in fact, have done 7 that? 8 MS. RUPP: I am not aware, one way or the other. 9 MR. NOMELLINI: How long were you Chief of the water 10 rights section? 11 MS. RUPP: Seems like a long time, but I think actually 12 I went to California in '96, in the fall of '96, and I left 13 in '98. 14 MR. NOMELLINI: During your brief tenure as Chief of 15 Water Rights, did you have any concern that the Bureau might 16 have been operating in violation of the permit, State Water 17 Resources Control Board permit terms and conditions? 18 MS. RUPP: It was my understanding we were operating 19 consistent with our permits. If we had a complaint, a 20 specific complaint, then the water rights staff would 21 investigate that complaint. 22 MR. NOMELLINI: Then you indicated previously that you 23 don't recall ever having any knowledge of a complaint with 24 regard to the Bureau's failure to meet the Vernalis salinity 25 standard; is that what your testimony was? CAPITOL REPORTERS (916) 923-5447 12426 1 MS. RUPP: I believe that I stated that my testimony 2 here is on the consolidated place of use petition and New 3 Melones issue is outside this petition. 4 MR. NOMELLINI: Let's assume -- let's not assume. 5 As Chief of the Water Rights -- is it a department? 6 MS. RUPP: No. 7 MR. NOMELLINI: You're just Chief of Water Rights. 8 MS. RUPP: Low level. I have staff, but it was not a 9 division. 10 MR. NOMELLINI: I am talking about your position as 11 Chief of Water Rights, and I realize that you have indicated 12 that this testimony did not attempt to address the New 13 Melones applications. 14 Are you saying that you had no knowledge of a 15 contention that there was a water right violation claimed 16 with regard to the Vernalis salinity standard? 17 MS. RUPP: I know that there have been issues in that 18 regard, that the Central Valley operations office has dealt 19 with those, not the water rights staff. 20 MR. NOMELLINI: Is there an easy explanation as to why 21 the Chief of Water Rights wouldn't encounter that kind of 22 question? 23 MS. RUPP: That was the operational issue, is my 24 understanding. 25 MR. NOMELLINI: Not a water rights issue? CAPITOL REPORTERS (916) 923-5447 12427 1 MS. RUPP: I don't believe so. 2 MR. NOMELLINI: Is there somebody other than you that 3 would know? 4 MS. RUPP: With the Bureau of Reclamation? 5 MR. NOMELLINI: Yes. 6 MS. RUPP: Probably. 7 MR. NOMELLINI: Who? 8 MS. RUPP: I would say people in the Central Valley 9 operations; that is John Renning or Lowell Ploss. 10 MR. NOMELLINI: On Page 13 of your testimony you cite 11 Section 37802 of the California Water Code. You see that? 12 MS. RUPP: Yes, sir. 13 MR. NOMELLINI: You prepared this portion of your 14 testimony, did you not? 15 MS. RUPP: I did. 16 MR. NOMELLINI: And does this analysis fall within the 17 scope of your responsibilities as the Chief of Water 18 Rights? 19 MS. RUPP: That would be my intention in preparing 20 this. 21 MR. NOMELLINI: So, matters of the determination with 22 regard to the scope of environmental review fall within the 23 responsibilities of the Chief of Water Rights, at least 24 during our tenure; is that correct? 25 MS. RUPP: No, that is not it at all. I gave the CAPITOL REPORTERS (916) 923-5447 12428 1 opinion that the Westplains merger was supported by state 2 law, and so that that area would have been permitted for 3 water delivery. 4 MR. NOMELLINI: You go on to indicate that because it 5 was permitted it does not need subsequent environmental 6 review. Is that what your conclusion is? 7 MS. RUPP: That was my premise, yes. 8 MR. NOMELLINI: So your conclusion is that this one 9 element could be segmented out of the total analysis that is 10 in here and be excluded from CEQA consideration? 11 MS. RUPP: Yes. 12 MR. NOMELLINI: Is it your contention it is also 13 excluded from NEPA consideration? 14 MS. RUPP: I don't know of any NEPA consideration that 15 would be applicable. 16 MR. NOMELLINI: Going to Page 17, there is a -- it is 17 about just below the middle of the page -- a statement that 18 says: 19 Therefore, even if the SWRCB increases the 20 place of use of the CVP to include these 21 12,985 acres, there will be no increase in 22 the net acreage for Westlands as a result. 23 (Reading.) 24 MR. TURNER: You left out a very important word, the 25 word "net." CAPITOL REPORTERS (916) 923-5447 12429 1 MR. NOMELLINI: There will be no increase in the 2 net irrigated acreage for Westlands as a 3 result. (Reading.) 4 Do you see that language? 5 MS. RUPP: Yes. 6 MR. NOMELLINI: You go on later in that paragraph to 7 state that: 8 No future environmental analysis should be 9 required by the SWRCB on those lands which 10 are not presently receiving CVP water because 11 Westlands uses all of its supply already and 12 it is not proposing to use additional water 13 from the CVP. (Reading.) 14 Do you see that? 15 MS. RUPP: Yes, sir. 16 MR. NOMELLINI: You've indicated that it is up to the 17 district to determine where the water will be delivered; is 18 that correct? 19 MS. RUPP: Yes. 20 MR. NOMELLINI: So if water was to be applied to lands 21 not previously irrigated, is it your contention that there 22 is no possible significant environmental impact associated 23 with the use of water on those lands that had not been 24 previously irrigated? 25 MS. RUPP: I think that what I said there was that CAPITOL REPORTERS (916) 923-5447 12430 1 there is no increase in the net irrigated acreage. So if 2 Westlands was to deliver water to these priority three 3 lands, then equal amounts of water from other lands would be 4 taken. 5 MR. NOMELLINI: I think I understood that. Let's 6 pursue that. Let's assume that the land that had not 7 previously been irrigated contains toxic levels of selenium, 8 and that the applied water on that land would cause the 9 selenium to be mobilized that would not otherwise be 10 mobilized. 11 Would you agree that there is a possible significant 12 environmental impact in that hypothetical? 13 MR. BIRMINGHAM: Objection. Goes beyond the scope of 14 this witness' expertise. 15 C.O. STUBCHAER: I think it is relevant to the 16 petition, and I am going to allow the question to be 17 answered. I thought it ought to be "would" instead of 18 "will." 19 MR. NOMELLINI: You understand the difference between 20 will and would? 21 MS. RUPP: I think some. 22 MR. NOMELLINI: Let's use the Chairman's word "would." 23 C.O. STUBCHAER: Since it is a hypothetical. 24 MR. NOMELLINI: That's okay. I thought I had the 25 choice of words in the hypothetical, but I will yield to the CAPITOL REPORTERS (916) 923-5447 12431 1 Chair. It would satisfy me with a "would." 2 MS. RUPP: If there was a determination that the lands 3 that are not currently irrigated that are identified in this 4 area are salinity ladened? 5 MR. NOMELLINI: Selenium, that contains toxic levels of 6 selenium. 7 MS. RUPP: Maybe he can answer. 8 MR. NOMELLINI: I don't want him to answer. I am 9 pursuing your testimony on Page 17. And you concluded that 10 because the net irrigated acreage doesn't change, therefore, 11 there is no impact associated with it. I am attempting to 12 get you to pursue whether or not you would agree that there 13 could be a substantial impact by reason of applying the 14 water on a different piece of land even though the net 15 irrigating acreage remained the same. 16 C.O. STUBCHAER: There is an objection. 17 Mr. Birmingham. 18 MR. BIRMINGHAM: I am going to renew my objection. The 19 witness was attempting to defer this question to Mr. Michny, 20 suggesting that perhaps she is concluding that she is not an 21 expert in the area, as well. So I would again renew my 22 objection. This is a question beyond the scope of this 23 witness' expertise. 24 C.O. STUBCHAER: As I stated previously, if the witness 25 cannot answer the question they can so state. And also with CAPITOL REPORTERS (916) 923-5447 12432 1 regard to cross-examination, usually, of the panel, you can 2 direct it to a particular witness. But she didn't have the 3 answer and wanted to get help from another member of the 4 panel, I would say it is up to her. 5 Mr. Campbell. 6 MR. CAMPBELL: I would just like to go back to the fact 7 that Mr. Nomellini is asking her about her testimony. She 8 does have a conclusion that no additional environment 9 analysis is needed, and, I think, he's rightfully 10 appropriating her reasoning behind that conclusion. 11 C.O. STUBCHAER: Mr. Jackson. 12 MR. JACKSON: I would like to agree with Mr. Campbell. 13 I would also like to add that any time this witness can 14 factually indicate that Mr. Michny gave her the information 15 on which she based her conclusion, then it is perfectly 16 appropriate for her to again defer to him. But there has 17 been no indication factually that he had anything to do with 18 her conclusion. 19 C.O. STUBCHAER: Well, I permitted the question be 20 answered if the witness can answer the question. It could 21 be -- it is what it is. 22 MS. RUPP: My conclusion was based on the understanding 23 that the State Water Board is interested in use of water. I 24 wasn't intending to preclude a land use change would not 25 have environmental consequences. CAPITOL REPORTERS (916) 923-5447 12433 1 MR. NOMELLINI: Going down a little farther on the 2 page, again we are talking about this, your expertise in 3 environmental matters. You, under the conclusion, state: 4 It is important to note that Reclamation 5 feels considerably less mitigation is 6 required than that specified in the DEIR. 7 (Reading.) 8 MS. RUPP: Okay. 9 MR. NOMELLINI: Do you see that? 10 MS. RUPP: Yep. 11 MR. NOMELLINI: Is there significance to the word 12 "feels"? Does that indicate a very like position as opposed 13 to contention? 14 MS. RUPP: I think that I was probably getting tired at 15 that point in time. I didn't weigh my word. 16 MR. NOMELLINI: When you say "considerably less 17 mitigation," is there some aspect of the mitigation that you 18 believe should be eliminated? 19 MS. RUPP: That conclusion is based on the 20 understanding that the 834,667 acres should be reduced to 21 47,880 acres. 22 MR. NOMELLINI: Is the Bureau modifying its request to 23 limit the change to a smaller number of acres? 24 MS. RUPP: The Bureau is asking that the district's 25 contract service area boundary be included in our place of CAPITOL REPORTERS (916) 923-5447 12434 1 use. 2 MR. NOMELLINI: Would you agree that is 834,667 3 additional acres? 4 MS. RUPP: That is the number of acres, if it is 5 already the case that over 600 -- over 700,000 of those 6 acres is permitted through the conditions in the decisions, 7 then we would submit revised maps that already show that. 8 MR. NOMELLINI: In your testimony there are a number of 9 exhibits showing the place of use for the various permits; 10 is that correct? 11 MS. RUPP: Yes. 12 MR. NOMELLINI: And did you determine what the 13 boundaries were of the permitted place of use reflected on 14 the, I believe it was, Exhibit 13 series of exhibits? 15 MS. RUPP: Yes. 16 MR. NOMELLINI: Do you agree that the acreage outside 17 the place of use, as you determined in the Exhibit 13 18 series, totals 834,667 acres? 19 MS. RUPP: The total acreage includes the initial 20 contract boundaries and the areas that were annexed 21 subsequent to our initial contracts. So, I guess, yes. I 22 am not sure what you are asking. 23 MR. NOMELLINI: What I am getting at, it sounded like 24 you disagreed with the place of uses designated on those 25 exhibits. You are not disagreeing with the place of use CAPITOL REPORTERS (916) 923-5447 12435 1 shown on your own exhibits, are you? 2 MS. RUPP: I think what I am saying is that some of 3 that area should have already been considered in the place 4 of use. 5 MR. NOMELLINI: So your determination of place of use 6 as reflected in Exhibit 13-K, for example -- that might not 7 be the best one. 8 Maybe you can show me which of the exhibits do you 9 believe incorrectly shows the place of use as included in 10 the Bureau permits. 11 MR. JACKSON: Can the record reflect the ongoing 12 conversation between the witness and her lawyer. 13 C.O. STUBCHAER: I thought it was a lawyer-to-lawyer 14 conversation. 15 MR. NOMELLINI: Lawyers can have lawyers. 16 MR. JACKSON: The president should have realized that 17 you could also choose better ones. 18 C.O. STUBCHAER: What Mr. Jackson is referring to is 19 the coaching issue, just to clarify. 20 MR. TURNER: I was trying to explain the question more 21 clearly. I apologize. I will stay out of it. 22 MR. NOMELLINI: You understand my question? 23 MS. RUPP: Well, I am not really sure. I think that 24 these maps were included in the exhibit because lands were 25 annexed to these districts subsequent to the initial large CAPITOL REPORTERS (916) 923-5447 12436 1 service contracts. So all of these lands should be in the 2 place of use. Some of the land was, I believe, included at 3 the time the initial contracts were signed. So I believe 4 the acreage that actually is at issue is less than what the 5 DEIR specifies. 6 MR. NOMELLINI: Is that because the maps -- let me ask 7 the question. 8 Do the maps show the place of use as included in the 9 hand-drawn maps submitted with the application prior to 10 1959? 11 C.O. STUBCHAER: Mr. Atlas. 12 MR. ATLAS: Mr. Chair, a clarification of which maps we 13 are referring to. 14 C.O. STUBCHAER: I think that is a good point. 15 MR. NOMELLINI: That is a good point. 16 Can you tell us which of the maps indicate the place of 17 use? It is the 13 series, right, Exhibit 13? 18 C.O. STUBCHAER: Mr. Nomellini, you asked her 19 previously what was the best map to look at to see that 20 issue. 21 MR. NOMELLINI: If you want to help me, is there an 22 easy map to look at that would show that? 23 MS. RUPP: Probably 13-I. 24 MR. TURNER: That is the one that is blown up there on 25 the board. CAPITOL REPORTERS (916) 923-5447 12437 1 MR. NOMELLINI: Let's use 13-I. That has the kind of 2 composite, doesn't it? 3 MS. RUPP: Right. 4 MR. NOMELLINI: 13-I shows areas inside permitted place 5 of use; is that correct? 6 MS. RUPP: 13-I, if you look at the various districts 7 displayed there, the green area is the initial contract 8 authorized service areas for the districts. The pink areas 9 are areas annexed subsequent to the initial contract. 10 MR. NOMELLINI: Some of the world has black and white, 11 and some have color. If we can go to the 13-I on the Board, 12 could you show us the area inside the permitted place of use 13 by just pointing generally to it? 14 MS. RUPP: As it exists on the maps presently or as was 15 permitted with the conditions? 16 MR. NOMELLINI: First, on the map. 17 MS. RUPP: On the maps it would be the gray area. 18 MR. NOMELLINI: And how is that different than the 19 area included in the hand-drawn maps submitted with the 20 applications prior to 1959? 21 MS. RUPP: The gray area is not different. 22 MR. NOMELLINI: So, the gray areas is the same. And 23 the area described on Exhibit 13-I as being outside the 24 permitted place of use is depicted how? In the darker color? 25 MS. RUPP: There is a green area that when I went back CAPITOL REPORTERS (916) 923-5447 12438 1 and did the research that was the authorized service areas 2 of the districts at the time when we initially entered into 3 contracts with them. 4 The pink areas are lands that were annexed subsequent 5 to that. 6 MR. NOMELLINI: Did you choose the words "inside 7 permitted place of use" and "outside permitted place of use" 8 to be used on these exhibits, in particular 13-I? 9 MS. RUPP: I don't recall. I probably did. 10 MR. NOMELLINI: Are you saying that even though the 11 areas on 13-I is shown as outside the permitted place of 12 use, that you contend, because of the language in the 13 permit, that these areas, even though they were outside the 14 place of use maps submitted with the application, are 15 included by the language in the permit? 16 MR. BIRMINGHAM: I'm going to object to the question on 17 the ground it is ambiguous. Mr. Nomellini has referred to 18 areas that are a darker shade. And on the black and white 19 copies of exhibits there are two darker shades. I would 20 wonder if you could clarify it. 21 C.O. STUBCHAER: I thought that issue was addressed by 22 using the colored map on the bulletin board. 23 MR. BIRMINGHAM: I think his question is now referring 24 to the black and white map. 25 MR. NOMELLINI: I thought I included the darker areas CAPITOL REPORTERS (916) 923-5447 12439 1 as including both the pink and the green on the chart on the 2 wall. 3 C.O. STUBCHAER: Would you clarify the question? I 4 think it is a question that could be answered. 5 MR. NOMELLINI: All right. 6 We have established that the gray area on 13-I conforms 7 to the hand-drawn maps submitted with the applications prior 8 to 1959; is that correct? 9 MS. RUPP: To the best of our ability, yes. 10 MR. NOMELLINI: And we have established that the darker 11 areas include areas outside of the boundary of the map, 12 original maps, that were included in the contracting 13 district service areas at the time of contracting, and those 14 that were added thereafter; is that correct? 15 MS. RUPP: Yes. 16 MR. NOMELLINI: Is it your testimony that the darker 17 areas, both shades of dark, are included in the place of use 18 of the permits beyond the boundaries of the handwritten 19 maps, as originally submitted with the applications, because 20 of the language in the permit? 21 MS. RUPP: The green areas. 22 MR. NOMELLINI: Then you would agree that the pink area 23 is not? 24 MS. RUPP: That's the case, yes. 25 MR. NOMELLINI: If we wanted to understand these maps, CAPITOL REPORTERS (916) 923-5447 12440 1 the 13-I map at least, you would change the designation of 2 the color pertaining to outside the permitted place of use, 3 would you not? 4 MS. RUPP: I don't think so. 5 MR. TURNER: That is exactly what was done when you 6 look at the designation of colors. 7 MR. NOMELLINI: Maybe that is my problem. I cannot 8 tell -- 9 For the record, the original, I guess, has pink and 10 green, and what appears to me as the darker color on the 11 copy that I have is, in fact, the pink and not the green. 12 C.O. STUBCHAER: Mr. Canady just gave you a color copy. 13 You can compare it. 14 MR. NOMELLINI: Thank you. I think I now understand. 15 I think you won your freedom from me. 16 MS. RUPP: Thank you, Mr. Nomellini. 17 MR. NOMELLINI: Thank you. 18 Mr. Michny, I believe in your testimony you indicated 19 that the mitigation for the impacts of the proposed 20 consolidation of the place of use and the conformance of the 21 purpose of use should not be incorporated in the draft 22 environmental impact report. Is that a correct 23 characterization of your position? 24 MR. MICHNY: No, I don't think so. 25 MR. NOMELLINI: Could you tell me how you propose that CAPITOL REPORTERS (916) 923-5447 12441 1 the mitigation for what I will call the consolidated conform 2 place of use request should be provided? 3 MR. MICHNY: My recommendation to the Board staff when 4 we were working on the DEIR was to ask them to recognize 5 that we have -- the Department of the Interior has a number 6 of programs ongoing that are addressing impacts to fish and 7 wildlife within the CVP service areas. And when I say 8 service area, the entire CVP service area. And to the 9 extent that there is mitigation required as a result of the 10 Board's action, we are asking the Board to recognize those 11 ongoing efforts that are being put in place and implemented 12 in coordination with Fish and Wildlife Service and 13 Department of Fish and Game and resource agencies to, 14 basically, effect what we perceive is a reasonable, prudent, 15 effective way of addressing terrestrial impacts within CVP 16 service areas. 17 MR. NOMELLINI: Now, is it your position that the Board 18 should do such incorporation even if those programs are not 19 specifically defined? 20 MR. MICHNY: I think the programs themselves are 21 relatively specifically defined. Exactly what those 22 programs are going to be doing over the course of years is 23 not specifically defined. 24 MR. NOMELLINI: So is it your contention that the 25 specific reference to the program is sufficient mitigation CAPITOL REPORTERS (916) 923-5447 12442 1 without knowing the detail of how that program is going to 2 be applied? 3 MR. MICHNY: My view is yes. Because part of the 4 package, if you will, is these programs would be monitored 5 over time and that we would see where we are going to judge 6 their effectiveness. That it wasn't just you are buying a 7 pig in a poke, if you will, just sign up here and you are 8 done. There would be an ongoing, I hate to use the term 9 that is overused, ongoing adaptive management program to see 10 where we are going and what the effect is and how the 11 program would be modified to address those needs that were 12 identified. 13 MR. NOMELLINI: Is there a specific program referenced 14 by you in your testimony that would address impacts of 15 salinity on the water quality of the San Joaquin River? 16 MR. MICHNY: No. 17 MR. NOMELLINI: Is there a program that will address 18 steelhead? 19 MR. MICHNY: No. 20 MR. NOMELLINI: You referenced a CVPIA Land Retirement 21 Program, did you not? 22 MR. MICHNY: Yes, I did. 23 MR. NOMELLINI: In your oral testimony I believe you 24 said the plan was to have a hundred thousand acres of land 25 retired; is that correct? CAPITOL REPORTERS (916) 923-5447 12443 1 MR. MICHNY: To the best of my knowledge, the 2 environmental documents that are being worked on now for 3 land retirement indicate up to 100,000 acres of land may be 4 retired. 5 MR. NOMELLINI: Do you know this environmental document 6 you are talking about, what is that? 7 MR. MICHNY: There is two of them that are under 8 production. One has to do with what we are calling a pilot 9 program on the west side of the San Joaquin Valley that 10 includes, I believe, approximately 14,000 acres of land. 11 And there is another document being prepared, the 12 Programmatic Environmental Document, that is looking at the 13 overall effects of the entire land retirement program, 14 which, as I stated, up to a hundred thousand acres. 15 MR. NOMELLINI: Is it your position that the Board 16 should buy off on this program as part of mitigation even 17 though the environmental documents pertaining to that 18 program, land retirement program, have not been finalized? 19 MR. MICHNY: I wouldn't characterize it as buying off. 20 Because that goes back to my previous statement; it is not 21 buying a pig in a poke. We offered that the Board, whoever, 22 could be part of this program, assess it over time to ensure 23 we are getting to where we need to go. 24 MR. NOMELLINI: The Board would determine what 25 mitigation it thought was required and then look to the CAPITOL REPORTERS (916) 923-5447 12444 1 specific programs that you have referenced for the mechanism 2 to accomplish the mitigation which they determined to be 3 required. Is that what you are saying? 4 MR. MICHNY: I think, in essence, that in our comments 5 on the draft we invited the Board or the Board staff to be 6 part of these programs. These programs have steering 7 committees, technical committees. We use the expertise of 8 Fish and Wildlife and Fish and Game, the resources agencies 9 to evaluate the best way to spend a limited amount of 10 dollars to address resource needs in the San Joaquin 11 Valley. 12 So, to that extent we are asking the Board to be part 13 of this process to help guide these programs. 14 MR. NOMELLINI: If there is not enough money, then the 15 mitigation does not occur; is that what you are saying? 16 MR. MICHNY: I am not sure I am saying that. I mean, 17 just reality. There is not enough money in the world to do 18 what everybody wants. Any federal program is dependent 19 applicable funding or available funding. 20 But the point, at this point in time we have these 21 programs in place and these programs are being funded and 22 they're ongoing. 23 MR. NOMELLINI: I have a couple more questions and I am 24 going to leave it alone. 25 You would agree, would you not, that the significant CAPITOL REPORTERS (916) 923-5447 12445 1 adverse impacts of the proposal as perceived by the Board 2 should be mitigated, would you not? 3 MR. MICHNY: I am thinking how best to answer your 4 question. One of the concerns that I personally have had, 5 as pertains to the question you are asking, is exactly where 6 is the responsibility for the impacts that have occurred. 7 That to the extent that the Board said X amount of acres 8 have been converted with district Y, I am not going to 9 refute that fact. What I would ask is how much of that 10 converted acreage and mitigation is really the result of the 11 Central Valley Project. That is -- 12 To the extent that somebody could clearly identify to 13 me that these clearly are impacts to Central Valley Project, 14 then we should probably mitigate those. To the extent that 15 somebody says here are impacts that have occurred in the CVP 16 service area, then I would be more prone to say we would 17 assist in mitigating those impacts to a reasonable 18 extent. 19 I hope I didn't overanswer your question. 20 MR. NOMELLINI: No. 21 You agree, then, that this Board has to perform a 22 sufficient analysis to determine what the impact of the 23 proposal would be, do you not? 24 MR. MICHNY: I agree. 25 MR. NOMELLINI: And you made a statement about you CAPITOL REPORTERS (916) 923-5447 12446 1 might have some question as to whether they exercise their 2 decision making authority appropriately or not, but aside 3 from that question the Board, this Board, would determine 4 the amount of mitigation required? 5 MR. MICHNY: That's correct. 6 MR. NOMELLINI: And you've suggested that they look to 7 a specific program or programs that the Bureau is involved 8 in as the source for this mitigation? 9 MR. MICHNY: That's correct. 10 MR. NOMELLINI: And you have suggested that the lack of 11 definition in the specific program as to specific mitigation 12 should not be a hindrance because the Board staff could 13 participate with Bureau in an adaptive management approach 14 to mitigating the impacts? 15 MS. MICHNY: That's correct. 16 MR. NOMELLINI: Then where we ended was you pointed 17 out, did you not, that there was a limitation on funding? 18 MR. MICHNY: I think that is a fact with any federal 19 program. 20 MR. NOMELLINI: Does the limitation on funding, in your 21 opinion, reduce the need to achieve the mitigation? 22 MR. MICHNY: No. It should have no bearing on the need 23 to achieve the mitigation. 24 MR. NOMELLINI: Then, you would suggest, I gather, or 25 would you suggest that any kind of approval be specifically CAPITOL REPORTERS (916) 923-5447 12447 1 conditioned on there being an accomplishment of adequate 2 mitigation? 3 MR. MICHNY: I would agree with the words you just 4 said. 5 MR. NOMELLINI: What is your time line in these various 6 programs that you have referenced for delineating the 7 specific mitigation that would be provided? 8 MR. MICHNY: It is an ongoing annual basis. We develop 9 -- two of the programs I talked about, specifically the 10 Habitat Conservation Program and Central Valley Conservation 11 Program, on an annual basis we meet with resource agencies. 12 We solicit input from them. We solicit input from the 13 public as to what sorts of activities we could undertake to 14 address species that are in the greatest need. Those are 15 prioritized through various steering committees that 16 different agencies sit on, and then we implement those on a 17 priority basis. 18 I would say there is an annual work plan that is put 19 together. If you are asking me if we were to sit here and 20 we are putting a plan together over the next 20 years in the 21 San Joaquin Valley, the answer is no. 22 MR. NOMELLINI: When would you like the Board to act on 23 this particular petition? 24 MR. MICHNY: When would I like the Board to act? 25 MR. NOMELLINI: Yes. CAPITOL REPORTERS (916) 923-5447 12448 1 MR. MICHNY: I don't believe I have an answer to 2 that. I don't know that I am prepared to answer that 3 question. Whenever the appropriate process is here. 4 MR. NOMELLINI: That is all I have. 5 Thank you. 6 C.O. STUBCHAER: Thank you, Mr. Nomellini. 7 Let me ask cross-examiners again because I didn't write 8 it down before. 9 Who has no questions for Mr. Michny? 10 Birmingham, Atlas and Conant. And Mr. Mooney is not 11 present? He would be next. So Mr. Birmingham would follow 12 that with no questions for Mr. Michny and Mr. Conant follows 13 him. I think it will work. 14 MR. BIRMINGHAM: I suspect I will take the rest of the 15 afternoon. 16 C.O. STUBCHAER: With a suitable offer of proof, 17 right? I am going to call you right to the minute. 18 MR. BIRMINGHAM: Please do. 19 C.O. STUBCHAER: Mr. Pettit asked with suitable or 20 pseudo. Anyway, before we break -- 21 I will get to you, Mr. Atlas. I want to announce again 22 for those of you who didn't hear it last week or a couple 23 days ago, that we are going to have a long lunch hour on 24 Tuesday, March 30, for the Chamber luncheon. We will 25 probably have a lunch hour from 11:30 to 1:30. CAPITOL REPORTERS (916) 923-5447 12449 1 Mr. Atlas. 2 MR. ATLAS: I don't believe Mr. Mooney will be here. I 3 called him just a moment ago to tell him it was getting 4 close, and he said never mind. 5 C.O. STUBCHAER: Okay. 6 MR. ATLAS: Mr. Birmingham is up after the break. 7 C.O. STUBCHAER: That works just fine. So, we will see 8 you tomorrow? 9 Mr. Turner, will we see Mr. Michny tomorrow? 10 MR. TURNER: Tuesday. 11 C.O. STUBCHAER: Next hearing date. 12 MR. TURNER: I thank you very much on his behalf for 13 allowing him to escape to the other meeting. 14 C.O. STUBCHAER: I know you are not implying that this 15 isn't also an important meeting. 16 MR. TURNER: I fully agree. 17 MR. MICHNY: This came first. 18 C.O. STUBCHAER: Mr. Birmingham, we are going to take a 19 break now. I am going to try for a 12-minute break. 20 (Break taken.) 21 C.O. STUBCHAER: Back to order. 22 Mr. Garner. 23 MR. GARNER: Before Mr. Birmingham begins his 24 cross-examination, he was kind enough to give me the podium 25 for a moment to ask a question. I was wondering if the CAPITOL REPORTERS (916) 923-5447 12450 1 Board had any guidance for the parties on when we might be 2 expecting an order on the phased decision making or when we 3 may be expecting a notice for Phase VIII as we have moved 4 into Phase VII rather quickly? 5 C.O. STUBCHAER: No. We don't have an answer for you 6 yet, but we are working on it, and we will make an 7 announcement as soon as we can. We expect to have a 8 substantial period of time after that announcement is made 9 before we would begin Phase VIII, so the parties don't 10 necessarily have to prepare a lot of testimony. 11 MR. GARNER: Thank you very much. 12 MR. BIRMINGHAM: Excuse me, Mr. Stubchaer. Mr. Conant 13 has indicated that he has just ten minutes of questioning 14 and did not plan on being here on Tuesday of next week. I 15 wonder if there is objection if Mr. Conant could go next? 16 C.O. STUBCHAER: If you want to swap with him, that's 17 fine. 18 MR. BIRMINGHAM: I would just follow Mr. Conant? 19 C.O. STUBCHAER: Yes. 20 Afternoon, Mr. Conant. 21 MR. CONANT: Afternoon. Thank you for your 22 indulgence. This may take less than ten minutes. 23 ---oOo--- 24 // 25 // CAPITOL REPORTERS (916) 923-5447 12451 1 // 2 CROSS-EXAMINATION OF DEPARTMENT OF THE INTERIOR 3 BY THE DEL PUERTO WATER DISTRICT AND 4 ARVIN-EDISON WATER STORAGE DISTRICT 5 BY MR. CONANT 6 MR. CONANT: Ernest Conant for Del Puerto Water 7 District and Arvin-Edison Water Storage District. 8 Ms. Rupp, you indicated in your written and oral 9 testimony that, I believe, that the lines for the boundaries 10 of the Central Valley Project service areas were not legally 11 defined, I think is the term you used, that was not a legal 12 description, similar to the State Water Project and possibly 13 other permits. And I believe in your written testimony 14 there is reference to some old historic maps that have been 15 looked at before. 16 I just wanted to confirm, I assume those maps that you 17 were referring to were rather rough maps and not to the 18 precision that you now have with the GIS system. If you 19 could just confirm that those are relatively rough maps, 20 rough lines, as compared to the system you now have in place. 21 MS. RUPP: That's correct. 22 MR. CONANT: Referring to Page 11 of your written 23 testimony, and I think you have alluded to this also in your 24 oral testimony, I just wanted to verify with respect to Del 25 Puerto Water District I believed you indicated that you had CAPITOL REPORTERS (916) 923-5447 12452 1 not researched the areas within this thousand acres that 2 were in various water districts that were merged into Del 3 Puerto? 4 MS. RUPP: That's correct. 5 MR. CONANT: So, it wouldn't be a surprise to you if in 6 later testimony that it is revealed that these areas were, 7 in fact, all or some were, in fact, within the boundaries of 8 those respective districts at or before the time that they 9 entered into contracts with the United States in 10 approximately 1953? 11 MS. RUPP: Based on my research with the other 12 districts, that would seem logical. 13 MR. CONANT: That is all I have. 14 C.O. STUBCHAER: Thank you, Mr. Conant. 15 Mr. Birmingham. 16 MR. BIRMINGHAM: Thank you. 17 ---oOo--- 18 CROSS-EXAMINATION OF DEPARTMENT OF THE INTERIOR 19 BY WESTLANDS WATER DISTRICT 20 BY MR. BIRMINGHAM 21 MR. BIRMINGHAM: Ms. Rupp, my name is Tom Birmingham. 22 I am an attorney that in these proceedings has been 23 representing Westlands Water District and the San Luis and 24 Delta-Mendota Water Authority. The questions that I am 25 going to ask you this afternoon are being asked on behalf of CAPITOL REPORTERS (916) 923-5447 12453 1 Westlands. 2 Your written testimony, Department of the Interior 3 Exhibit 13, addresses a number of issues; is that correct? 4 MS. RUPP: Yes. 5 MR. BIRMINGHAM: Including among the issues addressed 6 by your written testimony, Department of Interior Exhibit 7 13, is a petition to change the purpose of use of permits 8 held by the Department of the Interior, Bureau of 9 Reclamation for operation of the Central Valley Project? 10 MS. RUPP: That's correct. 11 MR. BIRMINGHAM: Your testimony also addresses a 12 petition to change the place of use described in permits 13 held by the Bureau of Reclamation for operation of the 14 Central Valley Project? 15 MS. RUPP: That's correct. 16 MR. BIRMINGHAM: Does the change petition which is 17 addressed by your testimony, Department of Interior Exhibit 18 13, involve permits that are held by the Bureau of 19 Reclamation for operation of the New Melones Project? 20 MS. RUPP: No, it does not. 21 MR. BIRMINGHAM: Does the change petition which is the 22 subject of your testimony involve changes to the permits 23 that are held by the Bureau of Reclamation for operation of 24 the Friant Unit? 25 MS. RUPP: No. CAPITOL REPORTERS (916) 923-5447 12454 1 MR. BIRMINGHAM: Are there any other divisions or units 2 of the Central Valley Project which are not the subject of 3 the change petition addressed in your testimony, Department 4 of Interior Exhibit 13? 5 MS. RUPP: Are you talking about units that are 6 financially integrated in the CVP or operationally? Or do 7 you want to distinguish? 8 MR. BIRMINGHAM: Well you have said that the change 9 petition does not address either New Melones or the Friant 10 Unit? 11 MS. RUPP: Right. 12 MR. BIRMINGHAM: The Bureau holds permit for the 13 operation of the Trinity Division? 14 MS. RUPP: True. 15 MR. BIRMINGHAM: The change petition which is the 16 subject of your testimony involves the permits held for the 17 Trinity Division? 18 MS. RUPP: True. 19 MR. BIRMINGHAM: There is a Sacramento River division; 20 is that correct? 21 MS. RUPP: That's correct. 22 MR. BIRMINGHAM: The Bureau holds permits for the 23 operation of the Sacramento River division? 24 MS. RUPP: That's correct. 25 MR. BIRMINGHAM: The petition, which is the subject of CAPITOL REPORTERS (916) 923-5447 12455 1 your testimony, involves all of the permits held by the 2 Bureau of Reclamation for the operation of the Sacramento 3 River Division? 4 MS. RUPP: Yes. 5 MR. BIRMINGHAM: The Bureau operates the American River 6 Division? 7 MS. RUPP: Correct. 8 MR. BIRMINGHAM: The permits which are held by the 9 Bureau of Reclamation for operation of the American River 10 Division are also part of the change petition which is the 11 subject of your written testimony? 12 MS. RUPP: True. 13 MR. BIRMINGHAM: The Bureau operates the Delta Division? 14 MS. RUPP: Yes. 15 MR. BIRMINGHAM: The permits which are held by the 16 Bureau of Reclamation for the operation of the Delta 17 Division are also part of the change petition or subject of 18 the change petition that is discussed by your testimony? 19 MS. RUPP: Yes, that's correct. 20 MR. BIRMINGHAM: The Bureau operates as part of the 21 Central Valley Project, the San Luis Unit? 22 MS. RUPP: Yes. 23 MR. BIRMINGHAM: The permits that are held by the 24 Bureau for the San Luis Unit are the subject of the change 25 petition addressed by your testimony? CAPITOL REPORTERS (916) 923-5447 12456 1 MS. RUPP: Yes. 2 MR. BIRMINGHAM: Bureau of Reclamation, as part of the 3 Central Valley project, operates the San Felipe Division? 4 MS. RUPP: Yes. 5 MR. BIRMINGHAM: The permits that govern the operation 6 of San Felipe Division are the subject of the change 7 petition that is addressed by your testimony? 8 MS. RUPP: Yes. 9 MR. BIRMINGHAM: Now, are there any other divisions or 10 units of the Central Valley Project which I haven't 11 mentioned to you here in the last few minutes? 12 MS. RUPP: There are units that are financially 13 integrated with the Central Valley Project such as Hidden 14 Dam, and those units are not operationally connected, but 15 are considered part of the Central Valley Project. 16 MR. BIRMINGHAM: Because they are not operationally 17 integrated into the remainder of the CVP, the permits that 18 are held by the Bureau of Reclamation for the operation of 19 those divisions or units are not subject to the change 20 petition? 21 MS. RUPP: That's correct. 22 MR. BIRMINGHAM: I would like to talk first about the 23 petition to change or consolidate the place of use. In 24 particular, I have some questions about the Exhibit 13-I. 25 In response to questions by Mr. Nomellini I believe you CAPITOL REPORTERS (916) 923-5447 12457 1 testified that the gray area on the Department 13-I is the 2 area that was in the place of use depicted by a map 3 submitted with water right applications prior to 1959? 4 MS. RUPP: That is probably what I said, yes. 5 MR. BIRMINGHAM: Then how was it that you described the 6 green area that is depicted on Department of Interior 13-I? 7 MS. RUPP: The green area is the district's service 8 area at the time that contracts were initiated with the 9 Bureau of Reclamation. 10 MR. BIRMINGHAM: And isn't it correct, Ms. Rupp, that 11 part of the green area is within the gray shaded area as 12 depicted on Department of Interior Exhibit 13-I? 13 MS. RUPP: In most cases that is correct. 14 MR. BIRMINGHAM: For instance, a part of the green area 15 on 13-I is Westlands Water District? 16 MS. RUPP: Yes. 17 MR. BIRMINGHAM: Westlands Water District is a district 18 of approximately 605,000 acres? 19 MS. RUPP: I assume that to be correct. 20 MR. BIRMINGHAM: All but approximately 49,000 acres of 21 Westlands Water District is within the place of use as 22 depicted on maps submitted by the Bureau of Reclamation in 23 connection with water right applications prior to 1959? 24 MS. RUPP: Yes. 25 MR. BIRMINGHAM: That is shown on Department of the CAPITOL REPORTERS (916) 923-5447 12458 1 Interior Exhibit 13-P; is that correct? 2 MS. RUPP: Yes. 3 MR. BIRMINGHAM: On Department of the Interior Exhibit 4 13-P there is a line which I would call purple; is that 5 correct? 6 MS. RUPP: Yes. 7 MR. BIRMINGHAM: And the purple line is the line taken 8 from the water right application maps describing place of 9 use? 10 MS. RUPP: That's correct. 11 MR. BIRMINGHAM: Virtually all of Westlands Water 12 District is to the east of that line? 13 MS. RUPP: That's correct. 14 MR. BIRMINGHAM: And that would indicate, as shown on 15 Exhibit 13-P, that most of Westlands Water District is 16 within the permitted place of use? 17 MS. RUPP: That's correct. 18 MR. BIRMINGHAM: Your testimony makes reference to 19 Westlands Water District and Westplains Water Storage 20 District? 21 MS. RUPP: Yes. 22 MR. BIRMINGHAM: Westlands Water District and 23 Westplains Water Storage District were merged as a result of 24 a special act of California Legislature in 1965? 25 MS. RUPP: That is my understanding. CAPITOL REPORTERS (916) 923-5447 12459 1 MR. BIRMINGHAM: Included with your testimony is 2 Department of Interior Exhibit 13-O? 3 MS. RUPP: Yes. 4 MR. BIRMINGHAM: Would you please describe for me what 5 is Department of Interior 13-O? 6 MS. RUPP: It's a brochure -- sorry, 13-O. 7 13-O is a letter that was given to the -- I believe the 8 background of 13-O is that the Westplains Water Storage 9 District wanted to receive water from a federal facility. 10 MR. BIRMINGHAM: The San Luis Unit is a federally 11 authorized unit of the Central Valley Project? 12 MS. RUPP: Yes. 13 MR. BIRMINGHAM: It was authorized by an act of 14 Congress in 1960? 15 MS. RUPP: Okay. 16 MR. BIRMINGHAM: Do you know that? 17 MS. RUPP: I didn't know that, but okay. 18 MR. BIRMINGHAM: Now, the San Luis Unit is served with 19 facilities that are joint use facilities? 20 MS. RUPP: That's correct. 21 MR. BIRMINGHAM: Could you explain what is meant by the 22 term "joint use facilities"? 23 MS. RUPP: San Luis Reservoir, portion of that 24 reservoir storage is for the State Water Project and a 25 portion is for the federal CVP. CAPITOL REPORTERS (916) 923-5447 12460 1 MR. BIRMINGHAM: The same is true of what is sometimes 2 referred to as the California Aqueduct/San Luis Canal; is 3 that correct? 4 MS. RUPP: I believe so. 5 MR. BIRMINGHAM: A portion of the capacity of the canal 6 or aqueduct is owned by the State of California for the 7 State Water Project and a portion of the canal aqueduct is 8 owned by the federal government for the delivery of water to 9 portions of the San Luis Unit? 10 MS. RUPP: Okay. I don't know the specific ownership 11 issue. I know there's joint ownership, but I don't know how 12 it is split. 13 MR. BIRMINGHAM: Now, the letter from Westplains Water 14 Storage District to the Department of Water Resources, 15 marked for identification as Department of Interior Exhibit 16 13-O, makes reference to the federal San Luis Unit service 17 area. 18 Could you explain to me what is meant by the term 19 "service area"? 20 MS. RUPP: In that context I would think it would mean 21 our definite plan report we usually define the potential 22 service area for a facility when you get authorization from 23 Congress. 24 MR. BIRMINGHAM: When Congress authorizes certain 25 facilities, it will describe an area which those facilities CAPITOL REPORTERS (916) 923-5447 12461 1 are authorized to serve? 2 MS. RUPP: A lot of times it just refers to the area 3 identified in our definite plan report. 4 MR. BIRMINGHAM: Have you heard the term "the federal 5 San Luis Unit service area"? 6 MS. RUPP: Not -- I can't recall that I specifically 7 heard that. 8 MR. BIRMINGHAM: Now, Ms. Rupp, I am handing to you a 9 document that is marked for identification as Westlands 10 Water District 117, which I will identify for the record as 11 a memorandum to the Secretary of the Interior from the 12 Assistant Secretary of Water and Power Service, and it is 13 signed, if you look on Page 5, by a Mr. Holum. 14 Are you familiar with Westlands Water District 117? 15 MS. RUPP: No. I don't think I reviewed that one, 16 specifically. 17 MR. BIRMINGHAM: Now, when Westlands and Westplains 18 merged in 1965 -- let me ask the question differently. 19 Your testimony refers to different priority areas 20 within Westlands Water District? 21 MS. RUPP: Yes. 22 MR. BIRMINGHAM: Do you understand that under a 23 judgment, sometimes referred to as the Barcellos Judgment, 24 there are restrictions placed on the use of water within 25 different areas of Westlands? CAPITOL REPORTERS (916) 923-5447 12462 1 MS. RUPP: Yes, I'm aware of that. 2 MR. BIRMINGHAM: The Barcellos Judgment refers to what 3 is sometimes known as area one? 4 MS. RUPP: That's correct. 5 MR. BIRMINGHAM: Is it your understanding that area one 6 is the area of Westlands that has the first priority to 7 contract water received under the 1963 contract between the 8 district and the United States? 9 MS. RUPP: That is my understanding. 10 MR. BIRMINGHAM: That contract currently provides for 11 the delivery of up to 900,000 acre-feet of project water to 12 the district? 13 MS. RUPP: I don't recall the specific terms of the 14 contract. 15 MR. BIRMINGHAM: Isn't it correct, Ms. Rupp, that 16 currently the district is entitled -- Westlands is entitled 17 to receive up to 1,150,000 acre-feet of project water from 18 the Bureau? 19 MS. RUPP: I believe that is correct. 20 MR. BIRMINGHAM: A portion of that water is delivered 21 under the 1963 contract? 22 MS. RUPP: Yes. 23 MR. BIRMINGHAM: A portion of that water is delivered 24 under provision of the Barcellos Judgment? 25 MS. RUPP: That is my understanding. CAPITOL REPORTERS (916) 923-5447 12463 1 MR. BIRMINGHAM: Isn't it correct, Ms. Rupp, that the 2 delivery of water to both the original Westlands and 3 portions of the Westplains Water Storage District occurred 4 prior to 1972? 5 MS. RUPP: Deliveries to Westlands, yes. 6 MR. BIRMINGHAM: And those deliveries occurred to the 7 entire area within Westlands, the existing Westlands 8 boundaries? 9 MS. RUPP: I don't know the actual distribution of the 10 water. I couldn't testify to that. 11 MR. BIRMINGHAM: I would like to follow up, if I may, 12 on a question that was asked of you by Mr. Conant. He asked 13 you the quality of the maps that described the permitted 14 place of use for water held -- for water appropriated 15 pursuant to permits held by the Bureau of Reclamation. 16 Do you recall that question? 17 MS. RUPP: Yes. 18 MR. BIRMINGHAM: At the time water deliveries began to 19 Westlands, would Westlands have had any way of knowing that 20 areas within its boundaries were outside the permitted place 21 of use? 22 MS. RUPP: I don't -- I don't know that for a fact. I 23 only know what I read and what I assumed based on the 24 quality of the maps, and that was that it would have been 25 difficult to know whether the districts were inside or CAPITOL REPORTERS (916) 923-5447 12464 1 outside of the lines, and our contracts authorized service 2 within the district boundaries. 3 MR. BIRMINGHAM: The Barcellos Judgment authorizes the 4 use of water throughout the entire area one and area two of 5 Westlands Water District? 6 MS. RUPP: Yes, that is correct. 7 MR. BIRMINGHAM: So, based on the quality of the line 8 that was drawn on the maps that you have inspected, it would 9 be very difficult for the operator of a water district to 10 know if water was being delivered outside the permitted 11 place of use so long as water was being used within the 12 district's boundaries? 13 MS. RUPP: That would be my opinion. 14 MR. BIRMINGHAM: I am going to ask you to assume 15 hypothetically that the State Water Resources Control Board 16 denies the application to include all of the lands within 17 Westlands within the permitted place of use. Now, if my 18 representation to you before was correct, that Westlands has 19 about 605,000 acres of land within its boundaries and 20 approximately 49,000 acres of land are outside the permitted 21 place of use, as depicted on the maps filed with the water 22 right applications, that would mean that there is 23 approximately 556,000 acres of land within the permitted 24 place of use; isn't that correct, Ms. Rupp? 25 MS. RUPP: Yes. CAPITOL REPORTERS (916) 923-5447 12465 1 MR. BIRMINGHAM: If I asked you to assume that the 2 average demand per irrigable acre within the district is 2.5 3 acre-feet per acre, that would mean that, even excluding the 4 lands that are outside the permitted place of use, there 5 still would be a demand within Westlands for its entire 1.15 6 million acre-feet of CVP entitlement? 7 MS. RUPP: I would make that assumption. 8 MR. BIRMINGHAM: I have similar questions about other 9 districts along the DMC. San Luis Water District, even if 10 the acres that are currently outside the permitted place of 11 use were excluded, there still would be a demand within San 12 Luis Water District for its existing CVP water entitlement? 13 MS. RUPP: That is correct. In general, the service 14 areas do not irrigate every acre within their permitted 15 place of use. 16 MR. BIRMINGHAM: There are areas that are depicted 17 along the DMC that are outside the place of use on 18 Department of Interior 13-I for water districts that hold 19 contracts with the Bureau of Reclamation? 20 MS. RUPP: Yes. 21 MR. BIRMINGHAM: Isn't it correct, Ms. Rupp, that for 22 those contractors along the DMC with acreage outside the 23 permitted place of use, even if those districts were not 24 delivering water to the acreage outside the permitted place 25 of use, those districts would still have a demand for the CAPITOL REPORTERS (916) 923-5447 12466 1 CVP entitlement? 2 MS. RUPP: It would have to be a case-by-case basis. 3 If they aren't irrigating every acre within their service 4 area now, then that would be an option for them. 5 MR. BIRMINGHAM: You were asked a series of questions 6 by Mr. Nomellini about potential environmental effects 7 resulting from the delivery of water to lands outside the 8 permitted place of use within Westlands Water District. 9 Do you recall those questions? 10 MS. RUPP: Yes. 11 MR. BIRMINGHAM: You are not an expert on issues of 12 drainage? 13 MS. RUPP: That's correct. 14 MR. BIRMINGHAM: Nor are you an expert on issues of 15 hydrology? 16 MS. RUPP: That is correct. 17 MR. BIRMINGHAM: Or geology? 18 MS. RUPP: That's correct. 19 MR. BIRMINGHAM: So you would not be in a position to 20 express an opinion about the potential environmental effects 21 resulting from the delivery of lands to areas currently 22 outside the permitted place of use within Westlands Water 23 District? 24 MS. RUPP: I could not answer that in a technical way, 25 no. CAPITOL REPORTERS (916) 923-5447 12467 1 MR. BIRMINGHAM: You don't know if there is a 2 groundwater divide that underlies Westlands Water District? 3 MS. RUPP: No, I am not aware of that. 4 MR. BIRMINGHAM: You don't know the direction, if any, 5 of the groundwater migration? 6 MS. RUPP: No. 7 MR. BIRMINGHAM: You don't know which lands within 8 Westlands Water District are drainage impacted? 9 MS. RUPP: No. 10 MR. BIRMINGHAM: When you say "no," you mean -- my 11 question is -- 12 MS. RUPP: That means I am not an expert, no. It means 13 I don't know where the groundwater drainage is. 14 MR. SEXTON: Tom, would you like her to be? 15 Excuse me, Mr. Chairman. 16 MR. BIRMINGHAM: Many of the lands that are currently 17 outside the existing place of use have received CVP project 18 water? 19 MS. RUPP: Yes. 20 MR. BIRMINGHAM: Those are referred to as the 21 encroachment lands? 22 MS. RUPP: Yes. 23 MR. BIRMINGHAM: Many of those encroachment lands 24 received project water before CEQA was enacted? 25 MS. RUPP: That's true. CAPITOL REPORTERS (916) 923-5447 12468 1 MR. BIRMINGHAM: If project water were taken away from 2 those lands, there would be potential environmental effects 3 associated with that decision? 4 MR. JACKSON: I am going to object to the question on 5 the grounds that counsel has clearly established that this 6 lady is not expert in regard -- 7 MR. BIRMINGHAM: I will withdraw the question. Be 8 happy to withdraw the question. 9 C.O. STUBCHAER: Without a ruling? I was going to 10 overrule the objection. 11 MR. NOMELLINI: I was going to support Mr. Birmingham. 12 MR. BIRMINGHAM: Then I definitely will withdraw the 13 question. 14 MS. RUPP: Okay. Mr. Turner pointed out that I should 15 ask as a point of clarification that when you were talking 16 about lands that received project water, I was assuming that 17 you were talking about lands that were annexed to Westlands 18 Water District after the Westplains merger. 19 MR. BIRMINGHAM: Let me see if I can follow up a 20 little bit on this. 21 Your testimony with respect to Westlands Water District 22 also makes reference to third-priority lands? 23 MS. RUPP: Yes. 24 MR. BIRMINGHAM: Is it your understanding that 25 third-priority lands within Westlands are those lands that CAPITOL REPORTERS (916) 923-5447 12469 1 were annexed to the district after the merger between -- the 2 merger of Westlands Water District and the former Westplains 3 Water Storage District? 4 MS. RUPP: Yes. 5 MR. BIRMINGHAM: Is it your understanding that those 6 third-priority lands can receive project water from the 7 district only after the demands of the first-priority and 8 second-priority lands have been satisfied? 9 MS. RUPP: That is my understanding. 10 MR. BIRMINGHAM: And the third-priority lands within 11 Westlands, those that were annexed to the district after the 12 merger of Westlands and Westplains, are depicted on 13 Department of the Interior Exhibit 13-P as pink or orange? 14 MS. RUPP: They are orange lands and colored green. 15 MR. BIRMINGHAM: So I can make sure -- 16 C.O. STUBCHAER: Talking about the same exhibit? 17 MR. BIRMINGHAM: Ms. Rupp, I am referring to Exhibit 18 13-P, and I am asking the lands that were annexed to 19 Westlands after the merger of Westlands and Westplains are 20 depicted in orange and green? 21 MS. RUPP: Yes, that is correct. 22 MR. BIRMINGHAM: Some of those lands are also depicted 23 in pink? 24 MS. RUPP: I can't tell where the pink areas are on 25 here. It's difficult to distinguish the pink and orange on CAPITOL REPORTERS (916) 923-5447 12470 1 this. 2 MR. BIRMINGHAM: Perhaps you and I can both look at the 3 same copy of 13-P which is the blowup. 4 A portion of the areas that are outside the existing 5 place of use on Department of the Interior Exhibit 13 are 6 orange, green and pink? 7 MS. RUPP: That is correct. 8 MR. BIRMINGHAM: Those are lands that were annexed to 9 Westlands after the merger of Westlands and Westplains? 10 MS. RUPP: That's correct. 11 MR. BIRMINGHAM: Department of Interior Exhibit 13-P 12 indicates that -- 13 MS. LEIDIGH: Excuse me, perhaps we can do a little bit 14 more in the way of clarification as to where the pink is. 15 All we can see on our colored versions at the table are a 16 color that looks more like red than orange. 17 MR. NOMELLINI: I would add for us that don't have 18 colored copies, it makes it a little more difficult. 19 MS. LEIDIGH: There is some very pale, pale green that 20 is almost the same shade as the main body, which looks like 21 it is yellow. 22 C.O. BROWN: You cleared that up, Barbara. 23 MR. BIRMINGHAM: Let's see if I can clear it up this 24 way, Ms. Rupp. 25 Depicted on Department Exhibit 13-P is the boundary of CAPITOL REPORTERS (916) 923-5447 12471 1 Westlands Water District that resulted from the merger of 2 the original Westlands Water District and Westplains Water 3 Storage District? 4 MS. RUPP: That's correct. 5 MR. BIRMINGHAM: That boundary is depicted by black 6 lines? 7 MS. RUPP: Yes. 8 MR. BIRMINGHAM: There are areas that are currently 9 within Westlands that are outside predominantly in -- in 10 fact, all to the west or southwest of the black lines 11 depicted on Department of Interior Exhibit 13-P? 12 MS. RUPP: Yes. 13 MR. BIRMINGHAM: Those are areas annexed to Westlands 14 after the merger of Westlands and Westplains? 15 MS. RUPP: Yes. On the smaller maps, I should say, the 16 colored maps that many people have in their hands, that is 17 actually a red boundary instead of a black boundary, the 18 Westlands and Westplains. 19 MR. BIRMINGHAM: And a portion of those lands that are 20 outside of the boundaries of the district, resulting from 21 the merger, have received CVP project deliveries? 22 MS. RUPP: Yes. 23 MR. BIRMINGHAM: With respect to those lands that were 24 annexed to the district after the merger of Westlands and 25 Westplains and have received water from the Central Valley CAPITOL REPORTERS (916) 923-5447 12472 1 Project, the Draft Environmental Impact Report concludes 2 that there are approximately 36,386 such acres; is that 3 correct? 4 MS. RUPP: I believe so. 5 MR. BIRMINGHAM: Subsequent to the preparation of the 6 Environmental Impact Report did you become aware of 7 information provided to you by the district that indicated 8 that that acreage did not reflect all of the acres outside 9 the boundaries of Westlands after its merger with Westplains 10 that have received CVP project water? Did you understand my 11 question? 12 MS. RUPP: I think you were indicating that there were 13 additional lands that we haven't identified on the map. I 14 am not aware that there was a discrepancy. 15 MR. NOMELLINI: Swear him in and we'll get to the 16 bottom of this. 17 MR. BIRMINGHAM: I would like to go back to your 18 testimony, Department of Interior Exhibit 13. Your 19 testimony makes reference to several water rights 20 decisions? 21 MS. RUPP: Yes. 22 MR. BIRMINGHAM: Specifically, it makes reference to 23 water right Decision 990? 24 MS. RUPP: Yes. 25 MR. BIRMINGHAM: Your testimony also makes reference to CAPITOL REPORTERS (916) 923-5447 12473 1 the water rights Decision 893? 2 MS. RUPP: Yes. 3 MR. BIRMINGHAM: Decision 990 was the water rights 4 decision that authorized the appropriation of water for many 5 areas of the CVP? 6 MS. RUPP: Yes, that's correct. 7 MR. BIRMINGHAM: That included the Friant Unit, the 8 Sacramento Valley and the western San Joaquin Valley? 9 MS. RUPP: I don't know that the Friant Unit was 10 included in D-990. I know that there was another decision 11 on the Friant Unit. I would have to go back and look at 12 that. 13 MR. BIRMINGHAM: What I am interested in, Ms. Rupp, in 14 a portion of Decision 990 that is quoted by your testimony, 15 there is a statement, and in here I am referring to a 16 Condition 29 on Page 8 of Department of Interior Exhibit 17 13. Condition 29 is a condition that is taken out of the 18 Decision 990? 19 MS. RUPP: Yes. 20 MR. BIRMINGHAM: Condition 29 says that: 21 The right to the beneficial use of water for 22 irrigation purposes, except where water is 23 distributed to the general public by a 24 private agency in charge of a public use, 25 shall be appurtenant to the land on which CAPITOL REPORTERS (916) 923-5447 12474 1 said water shall be applied subject to 2 continued beneficial use and the right to 3 change the point of diversion, place of use 4 and purpose of use as provided in Chapter 10 5 of Part 2 of Division 2 of the Water Code of 6 the State of California and further subject 7 to the right to dispose of a temporary 8 surplus. (Reading.) 9 MS. RUPP: Okay. 10 MR. BIRMINGHAM: Did I accurately read that? 11 MS. RUPP: I believe so. 12 MR. BIRMINGHAM: When it says "the right to the 13 beneficial use of water for irrigation purposes shall be 14 appurtenant to the land on which said water shall be 15 applied," do you have an understanding of what that means? 16 MS. RUPP: Well, I think so, but you can correct me. 17 MR. BIRMINGHAM: Well, doesn't that mean -- it is your 18 understanding of California water law that no one in the 19 state of California owns water? 20 MS. RUPP: That's correct. 21 MR. BIRMINGHAM: It is what is referred to sometimes as 22 a usufruct? 23 MS. RUPP: I believe so. 24 MR. BIRMINGHAM: Which means that people don't own 25 water; they only have a right to use the water? CAPITOL REPORTERS (916) 923-5447 12475 1 MS. RUPP: That is correct. 2 MR. BIRMINGHAM: That right is subject to certain 3 limitations, has to be used beneficially and reasonably? 4 MS. RUPP: Right. 5 MR. BIRMINGHAM: When Decision 990 says that "the right 6 to the beneficial use of water for irrigation purposes shall 7 be appurtenant to the land on which said water shall be 8 applied," that means that once water appropriated under 9 Decision 990 is used to irrigate lands, the right to the 10 beneficial use of that water will attach to the land 11 irrigated with that water? 12 MR. TURNER: I am afraid he is asking her to make a 13 legal determination that is not within the areas of her 14 testimony. 15 C.O. STUBCHAER: Given her position with the Bureau 16 that I heard so far, I think she can answer it if she can. 17 MR. TURNER: I have no objection. I would just like to 18 make it clear that, as you may or may not be aware, it is 19 recognized by all the parties that Ms. Rupp is an attorney. 20 However, she is not employed by the department as an 21 attorney and technically is not qualified to provide legal 22 advice to the department. She is simply acting in an 23 administrative capacity. 24 I have no problem with her giving her interpretation, 25 but I would just like it to be recognized that does not CAPITOL REPORTERS (916) 923-5447 12476 1 necessarily reflect the legal position of the department. 2 It very well may and it may not. 3 C.O. STUBCHAER: That is -- you put that on the record 4 now, and we do understand that. Thank you for that 5 clarification. 6 MR. BIRMINGHAM: Would you like to have the question 7 read back, Ms. Rupp? 8 MS. RUPP: Okay. 9 (Record read as requested.) 10 MS. RUPP: I am not sure that I could reach that 11 conclusion based on that sentence. 12 MR. BIRMINGHAM: When your were in law school, you 13 studied the term "appurtenant"? 14 MS. RUPP: I know the term "appurtenant." 15 MR. BIRMINGHAM: Appurtenant means attaches to the land? 16 MS. RUPP: Yes. 17 MR. BIRMINGHAM: When Decision 990 says that "the right 18 to the beneficial use of water for irrigation purposes shall 19 be appurtenant to the land on which said water shall be 20 applied," that means that the right to the beneficial use of 21 the water attaches to the land on which said water is 22 applied? 23 MS. RUPP: That part of it is true. But it also says 24 it is subject to the existence of long-term water delivery 25 contracts between the United States. So there is other CAPITOL REPORTERS (916) 923-5447 12477 1 factors associated with that. 2 MR. BIRMINGHAM: Ms. Rupp, I would like to give to you 3 what is in evidence as Westlands Water District Exhibit 4 108 and ask you to take a moment and read that. 5 MS. RUPP: Want me to read it -- 6 MR. BIRMINGHAM: Read it to yourself, and when you are 7 done reading, please let me know. 8 MR. HERRICK: Refresh us as to what 108 is. 9 MR. BIRMINGHAM: May I have a moment? 10 C.O. STUBCHAER: Go ahead. 11 C.O. BROWN: Off the record for just a moment. 12 (Discussion held off record.) 13 MS. RUPP: Okay. 14 C.O. STUBCHAER: Back on the record. 15 MR. BIRMINGHAM: Ms. Rupp, have you had an opportunity 16 to read Westlands Water District Exhibit 108? 17 MS. RUPP: Yes. 18 MR. BIRMINGHAM: Westlands Water District Exhibit 108 19 is a letter from the United States Department of the 20 Interior, Bureau of Reclamation to Jack W. Rodner dated 21 September 29, 1960; is that correct? 22 MS. RUPP: Yes. 23 MR. BIRMINGHAM: Does Westlands Water District Exhibit 24 108 make reference to a request by the Department of the 25 Interior that Westlands assign to the Department of the CAPITOL REPORTERS (916) 923-5447 12478 1 Interior a water rights application? 2 MS. RUPP: Yes. 3 MR. BIRMINGHAM: Does Westlands Water District Exhibit 4 108 state that after the assignment and construction of the 5 San Luis Unit, that the Bureau of Reclamation will provide 6 Westlands with a permanent water supply? 7 MS. RUPP: Yes, it does. 8 MR. BIRMINGHAM: The Bureau of Reclamation also 9 appropriates water for operation of Central Valley Project 10 under Water Rights Decision 1020; is that correct? 11 MS. RUPP: I am not -- I can't recall that specific 12 number. I have been in Utah too long. 13 MR. BIRMINGHAM: I suspect that there are times here 14 today that you wish you were still in Utah. 15 I would like to hand to you a copy that was printed off 16 of West Law of Decision 1020 and ask you to review it for 17 just one moment. 18 MS. RUPP: Yes. 19 MR. BIRMINGHAM: I will try to speak up. Actually, Ms. 20 Rupp, Mr. Turner has a copy of D-1020 that he will loan us. 21 Thank you, Mr. Turner. 22 Do you have a copy of Decision 1020 in front of you, 23 Ms. Rupp? 24 MS. RUPP: Yes, I do. 25 MR. BIRMINGHAM: Looking at the first page of D-1020. CAPITOL REPORTERS (916) 923-5447 12479 1 There is a heading "Substance of the Application of Pending 2 Petitions." Do you see that reference? 3 MS. RUPP: Yes. 4 MR. BIRMINGHAM: The paragraph starts with a reference 5 to Application 15764? 6 MS. RUPP: Okay. 7 MR. BIRMINGHAM: Application 15764 is the application 8 to which the Acting Regional Director referred in his 9 letter, Westlands Water District Exhibit 108; is that 10 correct? 11 MS. RUPP: Yes. 12 MR. BIRMINGHAM: And D-1020 states that Application 13 15764 was filed by Westlands Water District on March 8, 1954? 14 MS. RUPP: Yes. 15 MR. BIRMINGHAM: And that the application was assigned 16 to the United States on November 16, 1960? 17 MS. RUPP: I have October 17th, 1960. 18 MR. BIRMINGHAM: Excuse me, thank you for correcting 19 me. 20 I would ask you to turn to the order portion of D-1020, 21 before you do that, I am sorry. 22 Based on a review of D-1020 is it now your 23 understanding that the Bureau of Reclamation operates a 24 portion of the Central Valley Project under water right 25 permits granted by Water Rights Decision 1020? CAPITOL REPORTERS (916) 923-5447 12480 1 MS. RUPP: Yes. 2 MR. BIRMINGHAM: I would ask you to look at the order 3 portion of D-1020, which I believe -- I should say is in 4 evidence as Staff Exhibit 6 -- excuse me, 5C. 5 Looking at the order portion of Water Rights Decision 6 1020, there is a Condition 13. Do you see Condition 13? 7 MS. RUPP: Yes. 8 MR. BIRMINGHAM: Now, Condition 13 is a condition that 9 is very similar to Condition 29 in D-990; is that correct? 10 MS. RUPP: Yes. 11 MR. BIRMINGHAM: Looking at Water Rights Decision 1020, 12 Condition 13, it makes reference to the fact that: 13 The beneficial use of water for irrigation 14 purposes, except where water is distributed 15 to the general public by a private agency in 16 charge of a public use, shall be appurtenant 17 to the land on which said water shall be 18 applied, subject to continued beneficial use 19 and the right to change the point of 20 diversion, place of use and purpose of use as 21 provided in Chapter 10 of Part 2 of Division 22 2 of the Water Code of the State of 23 California and further subject to the right 24 to dispose of a temporary surplus. 25 (Reading.) CAPITOL REPORTERS (916) 923-5447 12481 1 MS. RUPP: That's correct. 2 MR. BIRMINGHAM: That is identical to Condition 29A in 3 D-990; is that correct? 4 MS. RUPP: I don't know word for word, but it sounded 5 pretty similar. 6 MR. BIRMINGHAM: Looking back at the Water Rights 7 Decision 1020, there is a Paragraph B under Condition 13? 8 MS. RUPP: Yes. 9 MR. BIRMINGHAM: And Paragraph B says that: 10 The right to the beneficial use of water for 11 irrigation purposes shall, consistent with 12 other terms of the permit, continue in 13 perpetuity. (Reading.) 14 MS. RUPP: Yes. 15 MR. BIRMINGHAM: Do you have an understanding of the 16 term "perpetuity"? 17 MS. RUPP: That means for a long time. 18 MR. BIRMINGHAM: Now, do you know, Ms. Rupp, whether 19 D-990 has a Condition 29B? 20 MS. RUPP: I think there was another part to 29. 21 MR. BIRMINGHAM: Take a moment and ask Mr. Turner if we 22 can borrow his copy of D-990. 23 MS. RUPP: Yes, it has a similar term. 24 MR. BIRMINGHAM: D-990 has a term 29(b) that states 25 that: CAPITOL REPORTERS (916) 923-5447 12482 1 The right to the beneficial use of water for 2 irrigation purposes shall, consistent with 3 other terms of the permit, continue in 4 perpetuity. (Reading.) 5 MS. RUPP: Yes. 6 MR. BIRMINGHAM: Now, I asked you earlier, and I am 7 going to ask you again, but turning to the American River 8 decision referenced in your testimony, do you have that? 9 MS. RUPP: I believe that Mr. Turner has a copy. 10 MR. BIRMINGHAM: I am talking about your testimony. I 11 apologize, Department of the Interior Exhibit 13, 12 specifically Page 12 -- Page 9, excuse me. In Department of 13 Interior 13, Page 9, you quote from a portion of Decision 14 893; is that correct? 15 MS. RUPP: I think the quote is from -- the Conditions 16 12 and 13 are the numbers in the permits. And so I believe 17 that the number is different in the order, but the quote is 18 the same. 19 MR. BIRMINGHAM: Looking at the quote on Page 13, 20 Condition 12, it states that: 21 The right to divert and store water and apply 22 said water to beneficial use, as provided in 23 this permit, is granted to the United States 24 as trustee for the benefit of the public 25 agencies of the state, together with the CAPITOL REPORTERS (916) 923-5447 12483 1 landowners and water users within such public 2 agencies and shall be supplied with the water 3 appropriated hereunder. (Reading.) 4 C.O. STUBCHAER: I believe that is Page 9. 5 MR. BIRMINGHAM: I stand corrected. Thank you. 6 Page 9 of Department of the Interior Exhibit 13, 7 Condition 12. 8 MS. RUPP: Yes. 9 MR. BIRMINGHAM: Now, when the Water Board granted the 10 permit, filed by the Department of the Interior, Bureau of 11 Reclamation, to appropriate water from the American River, 12 it granted the right to the United States as trustee? 13 MS. RUPP: That's correct. 14 MR. BIRMINGHAM: Is it your understanding, Ms. Rupp, 15 that when someone owns property as a trustee it means that 16 that person or entity holds the property for another person 17 or another entity's benefit? 18 MS. RUPP: Yes. 19 MR. BIRMINGHAM: Under Condition 12 for the American 20 River permits that you are quoting on Page 9 of your 21 testimony, the United States holds the water right permit as 22 trustee for the benefit of water districts that contract 23 with the United States and landowners within those water 24 districts. Is that what that means? 25 MS. RUPP: I think it says that public trustee with the CAPITOL REPORTERS (916) 923-5447 12484 1 landowners and water users. 2 MR. BIRMINGHAM: There is a Condition 13 from the 3 American River permits quoted on Page 9 of your testimony; 4 is that correct? 5 MS. RUPP: Yes. 6 MR. BIRMINGHAM: That states that: 7 Subject to compliance with the public 8 agency's concern with any and all present and 9 future valley contractual obligations with 10 the United States, such public agencies on 11 behalf of their landowners and water users 12 shall, consistent with other terms of this 13 permit, have the permanent right to the use 14 of all water appropriated and beneficially 15 used hereunder, which right, except where 16 water is distributed to the general public by 17 a private agency in charge of a public use, 18 shall be appurtenant to the land to which 19 said water shall be applied subject to the 20 continued beneficial use and right to change 21 the point of diversion, place of use and 22 purpose of use as provided in Chapter 10 of 23 Part 2 of Division 2 of the Water Code of the 24 State of California and further subject to 25 the right to dispose of a temporary surplus. CAPITOL REPORTERS (916) 923-5447 12485 1 (Reading.) 2 MS. RUPP: Yes. 3 MR. BIRMINGHAM: Now, do you have an understanding of 4 the words "the permanent right to use all of the water 5 appropriated and beneficially used hereunder"? 6 MS. RUPP: Yes. 7 MR. BIRMINGHAM: That means that -- Condition 13 means 8 that so long as there is an existing contract and the public 9 agency is complying with the terms of its contracts with the 10 United States that public agency shall have a permanent 11 right to the use of the water appropriated under the permits 12 held by the United States for operation of its facilities on 13 the American River? 14 MS. RUPP: As long as it is consistent with the terms 15 of the contract, yes. It is provided by the other 16 provisions. 17 MR. BIRMINGHAM: I would like to ask you some questions 18 about the delivery of water to Westlands Water District. 19 Has the Department of the Interior, Bureau of 20 Reclamation delivered water to Westlands Water District, 21 appropriated under Decision 990? 22 MS. RUPP: I believe so. 23 MR. BIRMINGHAM: The Bureau of Reclamation has 24 delivered to Westlands Water District water appropriated 25 under Decision 1020? CAPITOL REPORTERS (916) 923-5447 12486 1 MS. RUPP: Yes. I would think so. 2 MR. BIRMINGHAM: The Department of Interior, Bureau of 3 Reclamation has delivered water to Westlands Water District, 4 water appropriated under the permits that it holds for 5 operation of the American River facilities? 6 MS. RUPP: I believe so. 7 MR. BIRMINGHAM: And if I asked you about other 8 contractors along the Delta-Mendota Canal, by other 9 contractors I mean other CVP contractors, the Bureau of 10 Reclamation has delivered to those other contractors water 11 appropriated under D-990? 12 MS. RUPP: Yes, I would think so. 13 MR. BIRMINGHAM: And D-1020? 14 MS. RUPP: Yes. 15 MR. BIRMINGHAM: The water right permits that are held 16 by the Bureau of Reclamation as trustee under D-893? 17 MS. RUPP: Yes. 18 MR. BIRMINGHAM: Now, in response to one of my 19 questions, you made reference to the fact that this right 20 which some of the conditions say will be permanent and other 21 conditions say will be in perpetuity, that right is subject 22 to the right to change the point of diversion, points of use 23 and purpose of use as provided under the California Water 24 Code? 25 MS. RUPP: Yes. CAPITOL REPORTERS (916) 923-5447 12487 1 MR. BIRMINGHAM: Are you familiar with the provisions 2 of California Water Code that pertain to changes in the 3 point of diversion, place of use or purpose of use? 4 MS. RUPP: I used to be pretty familiar with those, 5 yes. 6 MR. BIRMINGHAM: You are familiar with Water Code 7 Section 1702? 8 MS. RUPP: I can't recall specifically what it says. 9 MR. BIRMINGHAM: I am going to hand to you a copy of 10 the Water Code and ask that you read Section 1702 of the 11 Water Code, and after you had a chance to read it let me 12 know. 13 MS. RUPP: Okay. 14 MR. BIRMINGHAM: Having read Water Code Section 1702, 15 has your recollection as to what it says been refreshed? 16 MS. RUPP: Yes. 17 MR. BIRMINGHAM: Water Code Section 1702 says: 18 Before permission to make a change -- 19 (Reading.) 20 And you understand that the word "change" there refers 21 to a change in place of use, purpose of use or point of 22 diversion; is that correct? 23 MS. RUPP: Yes. 24 MR. BIRMINGHAM: Before permission to make a 25 change is granted, the petitioner shall CAPITOL REPORTERS (916) 923-5447 12488 1 establish to the satisfaction of the 2 Board and Board shall find that the 3 change will not operate to the injury 4 of any legal user of water involved. 5 (Reading.) 6 MS. RUPP: Okay. 7 MR. BIRMINGHAM: Is that what Water Code Section 1702 8 says? 9 MS. RUPP: I believe that is what it said, yes. 10 MR. BIRMINGHAM: Prior to enactment of CVPIA, was -- 11 let me restate the question. 12 Your testimony makes reference to the enactment of the 13 Central Valley Project Improvement Act? 14 MS. RUPP: Yes. 15 MR. BIRMINGHAM: The Central Valley Project Improvement 16 Act became law October 30, 1992? 17 MS. RUPP: I believe that is correct. 18 MR. BIRMINGHAM: I believe your testimony says that 19 CVPIA represented a major change in the purpose of the CVP? 20 MS. RUPP: I believe there was a major change, yes. 21 MR. BIRMINGHAM: I believe your testimony makes 22 reference to the fact that CVPIA put environmental uses of 23 water on an even par with other uses? 24 MS. RUPP: I believe that is correct. 25 MR. BIRMINGHAM: And it is based upon the enactment of CAPITOL REPORTERS (916) 923-5447 12489 1 the Central Valley Project Improvement Act that you are in 2 part basing your request to the Board that it change the 3 Bureau's water right permits to include what is defined by 4 California law as beneficial use, fish and wildlife 5 preservation and enhancement? 6 MS. RUPP: Yes. 7 MR. BIRMINGHAM: In fact, on Page 2 of Department of 8 the Interior Exhibit 13, you state: 9 In addition, in 1992 Congress passed the 10 Central Valley Project Improvement Act which 11 amended the CVP authorizations to include 12 fish and wildlife mitigation, protection and 13 restoration purposes. Consequently, it is 14 important that all of the CVP permits in this 15 petition include the state defined beneficial 16 use of "fish and wildlife preservation and 17 enhancement" to maximize operational 18 flexibility in order to comply with the 19 CVPIA. (Reading.) 20 MS. RUPP: That is what it says. 21 C.O. STUBCHAER: Mr. Birmingham, your first hour is 22 up. Could you tell me how much more time you think you will 23 need? 24 MR. BIRMINGHAM: Probably about another hour. 25 C.O. STUBCHAER: Can you give me an offer of proof why CAPITOL REPORTERS (916) 923-5447 12490 1 you need that hour. 2 MR. BIRMINGHAM: Yes. Although I hate to tip my hand 3 here, particularly before a long weekend. 4 I will make an offer of proof that I will use the 5 remaining hour to demonstrate approving the petition will 6 injure legal users of water. 7 C.O. STUBCHAER: Approving the petition? 8 MR. BIRMINGHAM: How approving the petition. I am 9 going to ask Ms. Rupp questions about the permits that are 10 held, the purposes that are authorized by the permits, 11 where water from those permits is used and how the water has 12 historically been used. 13 I will ask her questions about the impact of changing 14 the permitted purpose of use and the public agencies that 15 have a right in perpetuity or a permanent right to receive 16 water under the decisions of this Board. 17 C.O. STUBCHAER: Okay. Offer of proof is accepted. We 18 will grant you another hour. 19 MR. BIRMINGHAM: Thank you. 20 C.O. STUBCHAER: We are just about through for the day. 21 Do you need to wrap up in two, three, four minutes? 22 MR. BIRMINGHAM: I will conclude now. 23 C.O. STUBCHAER: Anything from staff before we adjourn 24 to Tuesday, 9:00 a.m.? 25 Board Members? CAPITOL REPORTERS (916) 923-5447 12491 1 Anyone? 2 Okay. We are adjourned. 3 (Hearing adjourned at 4:00 p.m.) 4 -