STATE WATER RESOURCES CONTROL BOARD PUBLIC HEARING 1998 BAY-DELTA WATER RIGHTS HEARING HELD AT 901 P STREET SACRAMENTO, CALIFORNIA TUESDAY, MARCH 30, 1999 9:00 A.M. Reported by: MARY GALLAGHER, CSR #10749 CAPITOL REPORTERS (916) 923-5447 1 APPEARANCES ---oOo--- 2 3 BOARD MEMBERS: 4 JAMES STUBCHAER, CO-HEARING OFFICER JOHN W. BROWN, CO-HEARING OFFICER 5 MARC DEL PIERO MARY JANE FORSTER 6 7 STAFF MEMBERS: 8 THOMAS HOWARD - Supervising Engineer VICTORIA A. WHITNEY - Senior Engineer 9 DAVID G. CORNELIUS - Senior Engineer 10 JIM CANADAY - Environmental Specialist 11 COUNSEL: 12 WILLIAM R. ATTWATER - Chief Counsel 13 WALTER PETTIT - Executive Director BARBARA LEIDIGH - Senior Staff Counsel 14 15 ---oOo--- 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 12494 1 REPRESENTATIVES 2 PRINCETON CODORA GLENN IRRIGATION DISTRICT, et al. 3 FROST, DRUP & ATLAS 4 134 West Sycamore STreet Willows, California 95988 5 BY: J. MARK ATLAS, ESQ. 6 JOINT WATER DISTRICTS: 7 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 8 Oroville, California 95965 BY: WILLIAM H. BABER, III, ESQ. 9 CALIFORNIA SPORTFISHING PROTECTION ALLIANCE: 10 ROBERT J. BAIOCCHI 11 P.O. Box 357 Quincy, California 95971 12 BELLA VISTA WATER DISTRICT: 13 BRUCE L. BELTON, ESQ. 14 2525 Park Marina Drive, Suite 102 Redding, California 96001 15 WESTLANDS WATER DISTRICT: 16 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 17 400 Capitol Mall, 27th Floor Sacramento, California 95814 18 BY: THOMAS W. BIRMINGHAM, ESQ. AMELIA MINABERRIGARAI, ESQ. 19 THE BAY INSTITUTE OF SAN FRANCISCO: 20 GRAY BOBKER 21 55 Shaver Street, Suite 330 San Rafael, California 94901 22 CITY OF ANTIOCH, et al.: 23 FREDERICK BOLD, JR., ESQ. 24 1201 California Street, Suite 1303 San Francisco, California 94109 25 CAPITOL REPORTERS (916) 923-5447 12495 1 REPRESENTATIVES 2 LEAGUE OF WOMEN VOTERS: 3 ROBERTA BORGONOVO 4 2480 Union Street San Francisco, California 94123 5 UNITED STATES DEPARTMENT OF THE INTERIOR: 6 OFFICE OF THE SOLICITOR 7 2800 Cottage Way, Roon E1712 Sacramento, California 95825 8 BY: ALF W. BRANDT, ESQ. 9 CALIFORNIA URBAN WATER AGENCIES: 10 BYRON M. BUCK 455 Capitol Mall, Suite 705 11 Sacramento, California 95814 12 RANCHO MURIETA COMMUNITY SERVICES DISTRICT: 13 MCDONOUGH, HOLLAND & ALLEN 555 Capitol Mall, 9th Floor 14 Sacramento, California 95814 BY: VIRGINIA A. CAHILL, ESQ. 15 CALIFORNIA DEPARTMENT OF FISH AND GAME: 16 OFFICE OF THE ATTORNEY GENERAL 17 1300 I Street, Suite 1101 Sacramento, California 95814 18 BY: MATTHEW CAMPBELL, ESQ. 19 NATURAL RESOURCES DEFENSE COUNCIL: 20 HAMILTON CANDEE, ESQ. 71 Stevenson Street 21 San Francisco, California 94105 22 ARVIN-EDISON WATER STORAGE DISTRICT, et al.: 23 DOOLEY HERR & WILLIAMS 3500 West Mineral King Avenue, Suite C 24 Visalia, California 93191 BY: DANIEL M. DOOLEY, ESQ. 25 CAPITOL REPORTERS (916) 923-5447 12496 1 REPRESENTATIVES 2 SACRAMENTO MUNICIPAL UTILITY DISTRICT: 3 LESLIE A. DUNSWORTH, ESQ. 4 6201 S Street Sacramento, California 95817 5 SOUTH SAN JOAQUIN IRRIGATION DISTRICT, et al.: 6 BRAY, GEIGER, RUDQUIST & NUSS 7 311 East Main Street, 4th Floor Stockton, California 95202 8 BY: STEVEN P. EMRICK, ESQ. 9 EAST BAY MUNICIPAL UTILITY DISTRICT: 10 EBMUD OFFICE OF GENERAL COUNSEL 375 Eleventh Street 11 Oakland, California 94623 BY: FRED ETHERIDGE, ESQ. 12 GOLDEN GATE AUDUBON SOCIETY: 13 ARTHUR FEINSTEIN 14 2530 San Pablo Avenue, Suite G Berkeley, California 94702 15 CONAWAY CONSERVANCY GROUP: 16 UREMOVIC & FELGER 17 P.O. Box 5654 Fresno, California 93755 18 BY: WARREN P. FELGER, ESQ. 19 THOMES CREEK WATER ASSOCIATION: 20 THOMES CREEK WATERSHED ASSOCIATION P.O. Box 2365 21 Flournoy, California 96029 BY: LOIS FLYNNE 22 COURT APPOINTED REPS OF WESTLANDS WD AREA 1, et al.: 23 LAW OFFICES OF SMILAND & KHACHIGIAN 24 601 West Fifth Street, Seventh Floor Los Angeles, California 90075 25 BY: CHRISTOPHER G. FOSTER, ESQ. CAPITOL REPORTERS (916) 923-5447 12497 1 REPRESENTATIVES 2 CITY AND COUNTY OF SAN FRANCISCO: 3 OFFICE OF THE CITY ATTORNEY 4 1390 Market Street, Sixth Floor San Francisco, California 94102 5 BY: DONN W. FURMAN, ESQ. 6 CAMP FAR WEST IRRIGATION DISTRICT, et al.: 7 DANIEL F. GALLERY, ESQ. 926 J Street, Suite 505 8 Sacramento, California 95814 9 BOSTON RANCH COMPANY, et al.: 10 J.B. BOSWELL COMPANY 101 West Walnut Street 11 Pasadena, California 91103 BY: EDWARD G. GIERMANN 12 SAN JOAQUIN RIVER GROUP AUTHORITY, et al.: 13 GRIFFIN, MASUDA & GODWIN 14 517 East Olive Street Turlock, California 95381 15 BY: ARTHUR F. GODWIN, ESQ. 16 NORTHERN CALIFORNIA WATER ASSOCIATION: 17 RICHARD GOLB 455 Capitol Mall, Suite 335 18 Sacramento, California 95814 19 PLACER COUNTY WATER AGENCY, et al.: 20 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Capitol Mall, 27th Floor 21 Sacramento, California 95814 BY: JANET GOLDSMITH, ESQ. 22 ENVIRONMENTAL DEFENSE FUND: 23 THOMAS J. GRAFF, ESQ. 24 5655 College Avenue, Suite 304 Oakland, California 94618 25 CAPITOL REPORTERS (916) 923-5447 12498 1 REPRESENTATIVES 2 CALAVERAS COUNTY WATER DISTRICT: 3 SIMON GRANVILLE 4 P.O. Box 846 San Andreas, California 95249 5 CHOWCHILLA WATER DISTRICT, et al.: 6 GREEN, GREEN & RIGBY 7 P.O. Box 1019 Madera, California 93639 8 BY: DENSLOW GREEN, ESQ. 9 CALIFORNIA FARM BUREAU FEDERATION: 10 DAVID J. GUY, ESQ. 2300 River Plaza Drive 11 Sacramento, California 95833 12 SANTA CLARA VALLEY WATER DISTRICT: 13 MORRISON & FORESTER 755 Page Mill Road 14 Palo Alto, California 94303 BY: KEVIN T. HAROFF, ESQ. 15 CITY OF SHASTA LAKE: 16 ALAN N. HARVEY 17 P.O. Box 777 Shasta Lake, California 96019 18 COUNTY OF STANISLAUS: 19 MICHAEL G. HEATON, ESQ. 20 926 J Street Sacramento, California 95814 21 GORRILL LAND COMPANY: 22 GORRILL LAND COMPANY 23 P.O. Box 427 Durham, California 95938 24 BY: DON HEFFREN 25 CAPITOL REPORTERS (916) 923-5447 12499 1 REPRESENTATIVES 2 SOUTH DELTA WATER AGENCY: 3 JOHN HERRICK, ESQ. 4 3031 West March Lane, Suite 332 East Stockton, California 95267 5 COUNTY OF GLENN: 6 NORMAN Y. HERRING 7 525 West Sycamore Street Willows, California 95988 8 REGIONAL COUNCIL OF RURAL COUNTIES: 9 MICHAEL B. JACKSON 10 1020 Twelfth Street, Suite 400 Sacramento, California 95814 11 DEER CREEK WATERSHED CONSERVANCY: 12 JULIE KELLY 13 P.O. Box 307 Vina, California 96092 14 DELTA TRIBUTARY AGENCIES COMMITTEE: 15 MODESTO IRRIGATION DISTRICT 16 P.O. Box 4060 Modesto, California 95352 17 BY: BILL KETSCHER 18 SAVE THE SAN FRANCISCO BAY ASSOCIATION: 19 SAVE THE BAY 1736 Franklin Street 20 Oakland, California 94612 BY: CYNTHIA L. KOEHLER, ESQ. 21 BATTLE CREEK WATERSHED LANDOWNERS: 22 BATTLE CREEK WATERSHED CONSERVANCY 23 P.O. Box 606 Manton, California 96059 24 25 CAPITOL REPORTERS (916) 923-5447 12500 1 REPRESENTATIVES 2 BUTTE SINK WATERFOWL ASSOCIATION, et al.: 3 MARTHA H. LENNIHAN, ESQ. 4 455 Capitol Mall, Suite 300 Sacramento, California 95814 5 CITY OF YUBA CITY: 6 WILLIAM P. LEWIS 7 1201 Civic Center Drive Yuba City, California 95993 8 BROWNS VALLEY IRRIGTAION DISTRICT, et al.: 9 BARTKIEWICZ, KRONICK & SHANAHAN 10 1011 22nd Street, Suite 100 Sacramento, California 95816 11 BY: ALAN B. LILLY, ESQ. 12 CONTRA COSTA WATER DISTRICT: 13 BOLD, POLISNER, MADDOW, NELSON & JUDSON 500 Ygnacio Valley Road, Suite 325 14 Walnut Creek, California 94596 BY: ROBERT B. MADDOW, ESQ. 15 GRASSLAND WATER DISTRICT: 16 DON MARCIOCHI 17 22759 South Mercey Springs Road Los Banos, California 93635 18 SAN LUIS CANAL COMPANY: 19 FLANAGAN, MASON, ROBBINS & GNASS 20 3351 North M Street, Suite 100 Merced, California 95344 21 BY: MIICHAEL L. MASON, ESQ. 22 STONY CREEK BUSINESS AND LAND OWNERS COALITION: 23 R.W. MCCOMAS 4150 County Road K 24 Orland, California 95963 25 CAPITOL REPORTERS (916) 923-5447 12501 1 REPRESENTATIVES 2 TRI-DAM POWER AUTHORITY: 3 TUOLUMNE UTILITIES DISTRICT 4 P.O. Box 3728 Sonora, California 95730 5 BY: TIM MCCULLOUGH 6 DELANO-EARLIMART IRRIGATION DISTRICT, et al.: 7 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 8 Oroville, California 95965 BY: JEFFREY A. MEITH, ESQ. 9 HUMANE FARMING ASSOCIATION: 10 BRADLEY S. MILLER. 11 1550 California Street, Suite 6 San Francisco, California 94109 12 CORDUA IRRIGATION DISTRICT, et al.: 13 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 14 P.O. Box 1679 Oroville, California 95965 15 BY: PAUL R. MINASIAN, ESQ. 16 EL DORADO COUNTY WATER AGENCY: 17 DE CUIR & SOMACH 400 Capitol Mall, Suite 1900 18 Sacramento, California 95814 BY: DONALD B. MOONEY, ESQ. 19 GLENN COUNTY FARM BUREAU: 20 STEVE MORA 21 501 Walker Street Orland, California 95963 22 MODESTO IRRIGATION DISTRICT: 23 JOEL MOSKOWITZ 24 P.O. Box 4060 Modesto, California 95352 25 CAPITOL REPORTERS (916) 923-5447 12502 1 REPRESENTATIVES 2 PACIFIC GAS & ELECTRIC: 3 RICHARD H. MOSS, ESQ. 4 P.O. Box 7442 San Francisco, California 94120 5 CENTRAL DELTA WATER AGENCY, et al.: 6 NOMELLINI, GRILLI & MCDANIEL 7 P.O. Box 1461 Stockton, California 95201 8 BY: DANTE JOHN NOMELLINI, ESQ. and 9 DANTE JOHN NOMELLINI, JR., ESQ. 10 TULARE LAKE BASIN WATER STORAGE UNIT: 11 MICHAEL NORDSTROM 1100 Whitney Avenue 12 Corcoran, California 93212 13 AKIN RANCH, et al.: 14 DOWNEY, BRAND, SEYMOUR & ROHWER 555 Capitol Mall, 10th Floor 15 Sacramento, California 95814 BY: KEVIN M. O'BRIEN, ESQ. 16 OAKDALE IRRIGATION DISTRICT: 17 O'LAUGHLIN & PARIS 18 870 Manzanita Court, Suite B Chico, California 95926 19 BY: TIM O'LAUGHLIN, ESQ. 20 SIERRA CLUB: 21 JENNA OLSEN 85 Second Street, 2nd Floor 22 San Francisco, California 94105 23 YOLO COUNTY BOARD OF SUPERVISORS: 24 LYNNEL POLLOCK 625 Court Street 25 Woodland, California 95695 CAPITOL REPORTERS (916) 923-5447 12503 1 REPRESENTATIVES 2 PATRICK PORGENS & ASSOCIATES: 3 PATRICK PORGENS 4 P.O. Box 60940 Sacramento, California 95860 5 BROADVIEW WATER DISTRICT, et al.: 6 DIANE RATHMANN 7 P.O. Box 156 Dos Palos, California 93620 8 FRIENDS OF THE RIVER: 9 BETSY REIFSNIDER 10 128 J Street, 2nd Floor Sacramento, California 95814 11 MERCED IRRIGATION DISTRICT: 12 FLANAGAN, MASON, ROBBINS & GNASS 13 P.O. Box 2067 Merced, California 95344 14 BY: KENNETH M. ROBBINS, ESQ. 15 CENTRAL SAN JOAQUIN WATER CONSERVATION DISTRICT: 16 REID W. ROBERTS, ESQ. 311 East Main Street, Suite 202 17 Stockton, California 95202 18 METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA: 19 JAMES F. ROBERTS P.O. Box 54153 20 Los Angeles, California 90054 21 SACRAMENTO AREA WATER FORUM: 22 CITY OF SACRAMENTO 980 9th Street, 10th Floor 23 Sacramento, California 95814 BY: JOSEPH ROBINSON, ESQ. 24 25 CAPITOL REPORTERS (916) 923-5447 12504 1 REPRESENTATIVES 2 TUOLUMNE RIVER PRESERVATION TRUST: 3 NATURAL HERITAGE INSTITUTE 4 114 Sansome Street, Suite 1200 San Francisco, California 94194 5 BY: RICHARD ROOS-COLLINS, ESQ. 6 CALIFORNIA DEPARTMENT OF WATER RESOURCES: 7 DAVID A. SANDINO, ESQ. P.O. Box 942836 8 Sacramento, California 94236 9 FRIANT WATER USERS AUTHORITY: 10 GARY W. SAWYERS, ESQ. 575 East Alluvial, Suite 101 11 Fresno, California 93720 12 KERN COUNTY WATER AGENCY: 13 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Captiol Mall, 27th Floor 14 Sacramento, California 95814 BY: CLIFFORD W. SCHULZ, ESQ. 15 SAN JOAQUIN RIVER EXCHANGE CONTRACTORS: 16 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 17 P.O. Box 1679 Oroville, California 95965 18 BY: MICHAEL V. SEXTON, ESQ. 19 SAN JOAQUIN COUNTY: 20 NEUMILLER & BEARDSLEE P.O. Box 20 21 Stockton, California 95203 BY: THOMAS J. SHEPHARD, SR., ESQ. 22 CITY OF STOCKTON: 23 DE CUIR & SOMACH 24 400 Capitol Mall, Suite 1900 Sacramento, California 95814 25 BY: PAUL S. SIMMONS, ESQ. CAPITOL REPORTERS (916) 923-5447 12505 1 REPRESENTATIVES 2 ORLAND UNIT WATER USERS' ASSOCIATION: 3 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 4 P.O. Box 1679 Oroville, California 95965 5 BY: M. ANTHONY SOARES, ESQ. 6 GLENN-COLUSA IRRIGATION DISTRICT: 7 DE CUIR & SOMACH 400 Capitol Mall, Suite 1900 8 Sacramento, California 95814 BY: STUART L. SOMACH, ESQ. 9 NORTH SAN JOAQUIN WATER CONSERVATION DISTRICT: 10 JAMES F. SORENSEN CONSULTING CIVIL ENGINEER, INC.: 11 209 South Locust Street Visalia, California 93279 12 BY: JAMES F. SORENSEN 13 PARADISE IRRIGATION DISTRICT: 14 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 15 Oroville, California 95965 BY: WILLIAM H. SPRUANCE, ESQ. 16 COUNTY OF COLUSA: 17 DONALD F. STANTON, ESQ. 18 1213 Market Street Colusa, California 95932 19 COUNTY OF TRINITY: 20 COUNTY OF TRINITY - NATURAL RESOURCES 21 P.O. Box 156 Hayfork, California 96041 22 BY: TOM STOKELY 23 CITY OF REDDING: 24 JEFFERY J. SWANSON, ESQ. 2515 Park Marina Drive, Suite 102 25 Redding, California 96001 CAPITOL REPORTERS (916) 923-5447 12506 1 REPRESENTATIVES 2 TULARE IRRIGATION DISTRICT: 3 TEHEMA COUNTY RESOURCE CONSERVATION DISTRICT 4 2 Sutter Street, Suite D Red Bluff, California 96080 5 BY: ERNEST E. WHITE 6 STATE WATER CONTRACTORS: 7 BEST BEST & KREIGER P.O. Box 1028 8 Riverside, California 92502 BY: ERIC GARNER, ESQ. 9 COUTNY OF TEHEMA, et al.: 10 COUNTY OF TEHEMA BOARD OF SUPERVISORS 11 P.O. Box 250 Red Bluff, California 96080 12 BY: CHARLES H. WILLARD 13 MOUNTAIN COUNTIES WATER RESOURCES ASSOCIATION: 14 CHRISTOPHER D. WILLIAMS P.O. Box 667 15 San Andreas, California 95249 16 JACKSON VALLEY IRRIGATION DISTRICT: 17 HENRY WILLY 6755 Lake Amador Drive 18 Ione, California 95640 19 SOLANO COUNTY WATER AGENCY, et al.: 20 HERUM, CRABTREE, DYER, ZOLEZZI & TERPSTRA 2291 West March Lane, S.B. 100 21 Stockton, California 95207 BY: JEANNE M. ZOLEZZI, ESQ. 22 WESTLANDS ENCROACHMENT AND EXPANSION LANDOWNERS: 23 BAKER, MANOCK & JENSEN 24 5260 North Palm Avenue Fresno, California 93704 25 BY: CHRISTOPHER L. CAMPBELL, ESQ. CAPITOL REPORTERS (916) 923-5447 12507 1 REPRESENTATIVES 2 SAN LUIS WATER DISTRICT: 3 LINNEMAN, BURGES, TELLES, VAN ATTA 4 1820 Marguerite Street Dos Palos, California 93620 5 BY: THOMAS J. KEENE, ESQ. 6 7 ---oOo--- 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 12508 1 I N D E X 2 ---oOo--- 3 4 PAGE 5 OPENING OF HEARING 12510 6 AFTERNOON SESSION 12553 7 END OF PROCEEDINGS 12636 8 CROSS-EXAMINATION OF THE BUREAU OF RECLAMATION, 9 DEPARTMENT OF THE INTERIOR: 10 MR. BIRMINGHAM 12512 MR. CAMPBELL 12556 11 MR. ATLAS 12558 MR. JACKSON 12591 12 MR. HAROFF 12622 BY STAFF 12625 13 BY THE BOARD 12632 14 ---oOo--- 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 12509 1 TUESDAY, MARCH 30, 1999 9:00 A.M. 2 SACRAMENTO, CALIFORNIA 3 ---oOo--- 4 C.O. STUBCHAER: Good morning. Call the Bay-Delta 5 hearing back to order. Mr. Birmingham, you were 6 cross-examining the Department of the Interior -- 7 Mr. Turner? 8 MR. TURNER: Before we begin, Mr. Stubchaer, last 9 week at the hearing we had discussed a document that was 10 cited in Connie Rupp's written testimony specifically on 11 Page 3, Paragraph 2. It was a document entitled, "Central 12 Valley Basin, a Comprehensive Departmental Report on 13 Development of the Water and the Related Resources of the 14 Central Valley Basin and Comments from the State of 15 California and Federal Agencies." And this it's noted as 16 Senate Document 113, 81st Congress, First Session. 17 As we mentioned last week, that particular 18 document was cited by Ms. Rupp in her testimony, but was 19 not admitted as an exhibit, but I volunteered to make a 20 copy of that document available to any of the parties that 21 wanted to review it. And I do have that document here. 22 And I just wanted it clear, that if anyone would like to 23 review any portions of that document they are welcome to 24 come see me and we can arrange for their review at their 25 earliest convenience. CAPITOL REPORTERS (916) 923-5447 12510 1 C.O. STUBCHAER: How about right now if somebody 2 wanted to look at it while they're listening to the 3 cross-examination? 4 MR. TURNER: That would be just fine. If anyone 5 would be interested, I would make it available. 6 C.O. STUBCHAER: Mr. Atlas looks eager back there. 7 MR. ATLAS: Well, I actually had a chance to thumb 8 through it a bit this morning. I think the government 9 ought to reproduce it and serve it on all the parties. 10 It's referred to in their testimony and I think it's 11 something that every good water industry person ought to 12 be fully informed about. 13 I have had a chance to look at it, it's fairly 14 generic. I have no objection to testimony referring to 15 it. If there were 130 some copies available, I wouldn't 16 mind having one. 17 MR. TURNER: For an appropriate charge I'm sure the 18 Bureau would be happy to reproduce it for you. 19 MR. ATLAS: Thank you, Mr. Turner. 20 C.O. STUBCHAER: I didn't know if you were serious 21 or not, but I'll take the first remarks as facetious so 22 then we won't call on our counsel to respond. 23 Okay. Anything else before Mr. Birmingham 24 resumes his cross? 25 Mr. Birmingham, as I recall you have a stipulated CAPITOL REPORTERS (916) 923-5447 12511 1 one hour remaining; is that correct? Is that your 2 recollection? 3 MR. BIRMINGHAM: I don't recall stipulating to that. 4 I recall being asked by the Hearing Officer how much more 5 time I would require. I said an hour, but I don't recall 6 your saying, or asking if I would stipulate to the hour. 7 C.O. STUBCHAER: Will you stipulate? 8 MR. BIRMINGHAM: I will stipulate subject to my 9 being able to make an offer at the conclusion of the 10 additional hour. 11 C.O. STUBCHAER: Well, that's a conditional 12 stipulation. Okay. Go ahead, do your best. 13 ---oOo--- 14 CROSS-EXAMINATION OF THE BUREAU OF RECLAMATION 15 DEPARTMENT OF THE INTERIOR 16 BY WESTLANDS WATER DISTRICT 17 BY MR. BIRMINGHAM 18 MR. BIRMINGHAM: Good morning, Ms. Rupp. 19 MS. RUPP: Good morning. 20 MR. BIRMINGHAM: Were you able to return to Utah 21 over the weekend? 22 MS. RUPP: Yes, I did. 23 MR. BIRMINGHAM: Good. Ms. Rupp, at the conclusion 24 of the hearing on Thursday I was asking you a number of 25 questions about the permits that are held by the Bureau of CAPITOL REPORTERS (916) 923-5447 12512 1 Reclamation. And I'd like to continue with that line of 2 questioning. 3 I'm going to hand to you a document. I'm handing 4 it to you only for purposes of refreshing your 5 recollection, because I'm going to ask you a series of 6 questions about individual permits that are held by the 7 Bureau. You have reviewed the permits held by the Bureau 8 of Reclamation? 9 MS. RUPP: Yes. 10 MR. BIRMINGHAM: Permit Number 11315 is a permit 11 held by the Bureau of Reclamation for the operation of the 12 American River-Folsom Dam facilities; is that correct? 13 MS. RUPP: Yes. 14 MR. BIRMINGHAM: And currently the authorized 15 purposes of use under permit 11315 are irrigation, 16 salinity control and flood control? 17 MS. RUPP: Yes, that's correct. 18 MR. BIRMINGHAM: And the permitted place of use 19 includes the service area of the Delta-Mendota Canal and 20 the San Luis Unit? 21 MR. TURNER: If I could interrupt for a second. 22 Mr. Birmingham, are you asking Ms. Rupp to confirm that 23 what you're saying is stated on this document that you 24 handed to her, or is she supposed to be providing her 25 personal knowledge with respect to the terms and CAPITOL REPORTERS (916) 923-5447 12513 1 conditions of those permits? 2 MR. BIRMINGHAM: I'm asking her for her personal 3 knowledge of the terms and conditions of the permit, not 4 to confirm what is written on the document that I've 5 handed to her, which I believe I indicated was being 6 offered to her only for purposes of refreshing her 7 recollection if she was unable to recall from her existing 8 memory the terms and conditions of the permits. 9 MR. TURNER: I would just like to have it noted on 10 the record that the permits are not in front of Ms. Rupp 11 at this particular point in time. And that any statements 12 she's making are purely her recollection, then if that is 13 understood I certainly have no objection to that. But I 14 would certainly like it clear that the permits would, 15 obviously, speak for themselves but they are not here 16 before the witness. So I question whether this is really 17 giving any direct responsive information. 18 C.O. BROWN: Could you hear him in the back of the 19 room? 20 MR. NOMELLINI: Not very well. 21 C.O. STUBCHAER: I guess you will have to use the 22 microphone, Mr. Turner. 23 MR. TURNER: I'm sorry. 24 C.O. STUBCHAER: Mr. Turner said that he didn't 25 object, but that the recollections of the witness are not CAPITOL REPORTERS (916) 923-5447 12514 1 necessarily those that are stated in the permits. Is that 2 a fair summary? 3 MR. TURNER: That is correct, those permits are not 4 in front of her at this point, right. 5 C.O. STUBCHAER: Okay. That is so noted on the 6 record. 7 Please, proceed. 8 MR. BIRMINGHAM: Is it your understanding, Ms. Rupp, 9 that the place of use for permit number 11315 includes the 10 Western San Joaquin Valley? 11 MS. RUPP: That would be my recollection, yes. 12 MR. BIRMINGHAM: And so water appropriated by the 13 Bureau under permit number 11315 has been used by 14 contractors or water users within the service area of 15 contractors to irrigate lands on the west side of the San 16 Joaquin Valley? 17 MS. RUPP: I would assume that would be the case, 18 yes. 19 MR. BIRMINGHAM: Do you know that to be the case? 20 MS. RUPP: No. I have never traced the water 21 molecules to show where a particular -- where a particular 22 water source end up. 23 MR. BIRMINGHAM: Mr. Michny, although I promised I 24 wouldn't have any questions for you, do you know the 25 answer to that question? CAPITOL REPORTERS (916) 923-5447 12515 1 MR. MICHNY: No, I do not. 2 MR. BIRMINGHAM: You are currently seeking to amend 3 permit 11315 to include fish and wildlife enhancement as a 4 beneficial use under the permit; is that correct? 5 MS. RUPP: That's correct. 6 MR. BIRMINGHAM: Permit number 11316 is a permit 7 held by the Bureau of Reclamation for appropriation from 8 the American River at Folsom Dam; is that correct? 9 MS. RUPP: Yes. 10 MR. BIRMINGHAM: And, Ms. Rupp, if it would be 11 helpful maybe you could refer to Table 3-2 from the Draft 12 Environmental Impact Report for the consolidated and 13 conformed place of use, which I believe is in evidence as 14 Staff Exhibit 2. 15 MR. NOMELLINI: What page is that on, Tom? 16 MR. BIRMINGHAM: It is on Page 3-7, I believe. 17 MR. NOMELLINI: Thank you. 18 MR. BIRMINGHAM: Do you have Table 3-7 in front of 19 you, Ms. Rupp -- I'm sorry Table 3-2, which is on Page 3-7 20 of Staff Exhibit 2? 21 MS. RUPP: Yes. 22 MR. BIRMINGHAM: Now, we're talking about permit 23 number 11316. The current authorized purposes of use are 24 domestic, municipal, industrial, and recreation? 25 MS. RUPP: Yes. CAPITOL REPORTERS (916) 923-5447 12516 1 MR. BIRMINGHAM: And the Bureau is requesting that 2 the permit be amended to include as a purpose of use the 3 protection and enhancement of fish and wildlife? 4 MS. RUPP: Yes. And we're also including irrigation 5 in our request. 6 MR. BIRMINGHAM: Permit number 11967 is a permit 7 held by the Bureau of Reclamation for operation of the 8 Trinity River Division? 9 MS. RUPP: Yes. 10 MR. BIRMINGHAM: And the existing place of use under 11 the permit is the Sacramento and San Joaquin Valleys? 12 MS. RUPP: Yes. 13 MR. BIRMINGHAM: And that would include the area on 14 the west side of the San Joaquin Valley? 15 MS. RUPP: Yes. 16 MR. BIRMINGHAM: And the existing permitted purposes 17 of use are irrigation, domestic and salinity control? 18 MS. RUPP: Yes. 19 MR. BIRMINGHAM: Permit number 11968 is also held by 20 the Bureau of Reclamation for operation of the Trinity 21 River Division? 22 MS. RUPP: Yes. 23 MR. BIRMINGHAM: And the permitted place of use 24 under permit number 11968 includes the San Joaquin Valley? 25 MS. RUPP: Yes. CAPITOL REPORTERS (916) 923-5447 12517 1 MR. BIRMINGHAM: Now, there currently exists in 2 permit 11968 a beneficial use of fish and wildlife 3 enhancement; is that correct? 4 MS. RUPP: 11969 has fish and wildlife enhancement, 5 is that what you're talking about? 6 MR. BIRMINGHAM: Yes. 7 MS. RUPP: I thought we were talking about 11968. 8 MR. BIRMINGHAM: Okay, I beg your pardon. 11969 9 authorizes the use of water for fish and wildlife 10 enhancement? 11 MS. RUPP: Yes. 12 MR. TURNER: If I might interrupt, could we not 13 shorten this rather significantly if Mr. Birmingham would 14 like to ask Ms. Rupp if she would confirm the accuracy of 15 this table? I think it would accomplish the same thing as 16 going through permit by permit and reading just what the 17 table says. 18 C.O. STUBCHAER: Mr. Birmingham. 19 MR. BIRMINGHAM: I have specific questions related 20 to each individual permit that I'm not sure would be 21 answered by a question in the general nature that 22 Mr. Turner is suggesting. 23 C.O. STUBCHAER: It does seem that the permit says 24 what it says. You could cite the permit in your question, 25 couldn't you, without asking her to confirm each time? CAPITOL REPORTERS (916) 923-5447 12518 1 Just a question of view. 2 MR. JACKSON: Mr. Stubchaer, I intended to go 3 through the same foundation for a series of questions that 4 I'm going to ask. I will forego the foundation if you let 5 Mr. Birmingham lay it for all of us. But, otherwise, 6 we'll be going through this again. 7 C.O. STUBCHAER: Ms. Leidigh. 8 MS. LEIDIGH: I just think it might be appropriate 9 to comment that one can make reference to these, unless 10 there is an objection that the foundation is not adequate. 11 It seems to me that it's not necessary to go through and 12 confirm that each permit does what it does. If you have a 13 table that is accurate you could simply ask if it's 14 accurate and then refer back to it in later questions. 15 It's not necessary to go through those. 16 MR. BIRMINGHAM: If that's the Hearing Officer's 17 direction, that's what I will do. 18 C.O. STUBCHAER: Please, do the best you can. 19 MR. BIRMINGHAM: Ms. Rupp, the information that's 20 contained on Table 3-2, Staff Exhibit Number 2, is that 21 information accurate? 22 MS. RUPP: Yes, to the best of my knowledge, it is. 23 MR. BIRMINGHAM: Now, I'd like to go back to permit 24 number 11315. Has the Bureau of Reclamation used water 25 appropriated under 11315 for fish and wildlife CAPITOL REPORTERS (916) 923-5447 12519 1 enhancement? 2 MR. TURNER: Could I ask for a clarification? When 3 Mr. Birmingham asked "used," what does that mean? 4 Diverted? Rediverted? Released? 5 C.O. STUBCHAER: Mr. Birmingham, could you clarify 6 it? 7 MR. BIRMINGHAM: What's the definition of "is"? 8 Ms. Rupp, do you have an understanding of the 9 term "use" as that term applies in California Water Law? 10 MS. RUPP: I think that I do. 11 MR. BIRMINGHAM: All right. So if I use the term, 12 "use" or "used," you understand that to mean that the 13 Bureau of Reclamation has taken water and put it to a 14 particular beneficial use; is that a fair assumption? 15 MS. RUPP: I think that's correct. But I -- I also 16 know that there is instream flow issues that I -- I don't 17 know if that's considered a beneficial consumptive use, or 18 if that's merely increasing stream flows. So that would 19 be nice to be clarified what you mean by that. 20 MR. BIRMINGHAM: Well, let's follow-up on that. To 21 your knowledge, does permit 11315 include conditions that 22 require minimum stream flows below Nimbus Dam? 23 MS. RUPP: Yes. 24 MR. BIRMINGHAM: And has the Bureau of Reclamation 25 used water appropriated pursuant to 11315 to make releases CAPITOL REPORTERS (916) 923-5447 12520 1 in excess of the minimum releases required in the permit? 2 MS. RUPP: I don't know that we've made specific 3 releases. I'm not an operational person. To the best of 4 my knowledge, I think Reclamation has tried to operate to 5 the standards that were in the decision on the Auburn Dam, 6 but I don't -- I don't know specifically operationally 7 what we do. 8 MR. BIRMINGHAM: Is it your understanding that the 9 decision on Auburn Dam imposed minimum flows below Nimbus 10 that were greater than the minimum flows imposed by permit 11 number 11315? 12 MS. RUPP: Yes. 13 MR. BIRMINGHAM: And the Bureau of Reclamation has 14 used water appropriated under 11315 to meet the minimum 15 flows imposed by the decision on Auburn Dam? 16 MS. RUPP: That would be my understanding. 17 MR. BIRMINGHAM: Auburn Dam has not been 18 constructed? 19 MS. RUPP: Yes. 20 MR. BIRMINGHAM: And the Bureau of Reclamation is 21 not impounding water under the decision that the Water 22 Board issued related to Auburn Dam? 23 MS. RUPP: That's correct. 24 MR. BIRMINGHAM: Now, Mr. Minchy, do you know the 25 answer to this question: Has the Bureau of Reclamation CAPITOL REPORTERS (916) 923-5447 12521 1 used water appropriated under 11315 for fish and wildlife 2 enhancement beyond the conditions imposed by the permit? 3 MR. MICHNY: No. I have no specific knowledge 4 relative to operational decisions as a general response to 5 your question. 6 MR. BIRMINGHAM: With respects to 11316, do you know 7 if the Bureau of Reclamation has used water for fish and 8 wildlife enhancement beyond the requirements or the 9 conditions of the permit? 10 MS. RUPP: I don't know that -- operationally we 11 don't separate out by permit how each molecule of water is 12 used. And I really can't answer those kinds of questions. 13 MR. BIRMINGHAM: Ms. Rupp, do I understand that your 14 testimony would be the same with respect to each one of 15 the permits that is the subject of the petition currently 16 pending before the Board? 17 MS. RUPP: Yes. 18 MR. BIRMINGHAM: In your testimony you make 19 reference to operating the Central Valley Project in 20 compliance with federal law? 21 MS. RUPP: Yes. 22 MR. BIRMINGHAM: And I believe your written 23 testimony, Government Exhibit 13, indicates that it is 24 your view that Reclamation has operated the Central Valley 25 Project in a manner consistent with federal law? CAPITOL REPORTERS (916) 923-5447 12522 1 MS. RUPP: Yes. 2 MR. BIRMINGHAM: Is there a provision of federal law 3 that is sometimes referred to as Section 8 of the 4 Reclamation Act of 1902? 5 MS. RUPP: I believe so. 6 MR. BIRMINGHAM: Does Section 8 of the Reclamation 7 Act of 1902 require that the Bureau of Reclamation operate 8 Reclamation facilities in accordance with the law of the 9 state as it pertains to the use of water? 10 MR. TURNER: I have to object again. We're now 11 getting into -- if he is asking Ms. Rupp for a legal 12 conclusion, it's an inappropriate question. If he's 13 asking Ms. Rupp to confirm the language of a statute, I 14 would suggest that the statute speaks for itself. And I 15 fail to see what purpose there is in having her confirm 16 the words that are on the page when she is not in a 17 position to provide legal interpretation of that statute 18 to the Board. 19 C.O. STUBCHAER: Mr. Birmingham. 20 MR. BIRMINGHAM: Again, Ms. Rupp's testimony is full 21 of legal conclusions. And if you'd like, I could take a 22 few moments and walk-through the testimony and point 23 different legal conclusions out. 24 She has just stated in response to my question 25 that her testimony does state that the Bureau has operated CAPITOL REPORTERS (916) 923-5447 12523 1 in a manner consistent with federal law. She is an 2 attorney. I understand she's not being offered here as an 3 expert witness on the law. But given her background, 4 given the nature of her responsibilities with the Bureau 5 of Reclamation as the chief of the water rights section 6 and given the nature of her testimony, I think this is a 7 permissible question and she's qualified to answer it. 8 C.O. STUBCHAER: Well, the question may be answered. 9 Please, answer to the best of your ability. 10 MR. BIRMINGHAM: Would you like the question 11 repeated, Ms. Rupp? 12 MS. RUPP: No. I believe that the statute speaks 13 for itself. 14 MR. BIRMINGHAM: And is it your understanding of the 15 statute that it requires that the Bureau of Reclamation 16 operate the project in a manner consistent with State 17 Water Law? 18 MS. RUPP: I would suggest that we just read that 19 section into the record, if that's what you would like to 20 do. 21 MR. BIRMINGHAM: May I ask for an instruction from 22 the Hearing Officer to the witness that she answer my 23 question? 24 C.O. STUBCHAER: Ms. Rupp, please, answer the 25 question to the best of your ability. CAPITOL REPORTERS (916) 923-5447 12524 1 MS. RUPP: I believe that Section 8 of the 2 Reclamation Law requires that we comply with state permits 3 to the extent feasible within the scope of the federal 4 project. 5 MR. BIRMINGHAM: Now, when you say "to the extent 6 feasible," on what legal basis do you say "to the extent 7 feasible"? 8 MS. RUPP: If I recall correctly the last sentence 9 in Section 8 talks about the federal projects, but -- and 10 that's why I suggested that we read it into the record, 11 because I can't recall exactly the wording. 12 MR. BIRMINGHAM: Now, then, under Section 8 if the 13 Bureau of Reclamation is authorized by a permit to use 14 water for a particular purpose, Section 8 would require 15 that water be used for the specified purposes? 16 MS. RUPP: Yes, we follow state law. 17 MR. BIRMINGHAM: Now, in response to questions asked 18 of you by other attorneys you said that it was your view 19 that because the Bureau of Reclamation sought a change in 20 the purpose of use by filing a petition in 1985 that you 21 had complied with state and federal law governing the 22 operation of the CVP, is that your view? 23 MS. RUPP: No. I probably misstated. 24 MR. BIRMINGHAM: In fact, isn't it correct, 25 Ms. Rupp, that Water Code Section 1391 requires that CAPITOL REPORTERS (916) 923-5447 12525 1 permits issued by the State Water Resources Control Board 2 include the enumeration of conditions including place of 3 use and purpose of use? 4 MR. TURNER: Again, Ms. Rupp, does not have that 5 statute in front of her. And I fail to see that she can 6 confirm that that's what it says without seeing it. 7 MR. BIRMINGHAM: Let me hand to you, Ms. Rupp, Water 8 Code Section 1391 and after you've had a chance to review 9 that, would you, please, let me know. 10 MS. RUPP: I've read it. 11 MR. BIRMINGHAM: Ms. Rupp, is it your understanding 12 of Section 1391 of the California Water Code that it 13 imposes an obligation on the Water Board to include permit 14 terms and conditions in permits issued by the Board? 15 MS. RUPP: Yes. 16 MR. BIRMINGHAM: And last week very briefly we 17 talked about the process that is used to change the terms 18 and conditions of a permit granted by the State Water 19 Resources Control Board. 20 Do you recall that testimony? 21 MS. RUPP: I recall those types of questions. 22 MR. BIRMINGHAM: I would ask you to look at Water 23 Code Section 1700. And after you've had a moment to 24 review it, let me know. 25 MS. RUPP: Okay. CAPITOL REPORTERS (916) 923-5447 12526 1 MR. BIRMINGHAM: Water Code Section 1700, Ms. Rupp, 2 requires that water appropriated under permits issued by 3 the State Water Resources Control Board shall not be 4 deemed appropriated for any other or different purpose but 5 the purpose of use contained in the permit; isn't that 6 correct? 7 MS. RUPP: Yes. 8 MR. TURNER: Again, Mr. Stubchaer, I apologize for 9 continuing to interrupt. But what I'm hearing is 10 Mr. Birmingham saying, okay, Ms. Rupp, here are the 11 arguments I'm going to raise in my post-hearing brief, now 12 I want you to confirm that you think my arguments are 13 correct, you agree with me? 14 This accomplishes nothing. I fail to see where 15 his asking for Ms. Rupp's personal legal interpretation, 16 of a statute, which interpretation is not binding in any 17 way, shape or form on Reclamation, has no relevance to 18 this particular proceeding. 19 It seems to me Mr. Birmingham is trying to, in 20 effect, preclude the Bureau for presenting its legal 21 arguments in its closing brief, because its witness has 22 already confirmed it, "Yes, Mr. Birmingham, you're right, 23 that's a good interpretation, that statute is relevant. 24 That's what it says." 25 I don't know how else to present my objection. I CAPITOL REPORTERS (916) 923-5447 12527 1 just fail to see where asking these legal questions is 2 relating to the factual underpinnings of this petition. 3 C.O. STUBCHAER: Mr. Birmingham. 4 MR. BIRMINGHAM: Again, Ms. Rupp's testimony, 5 written testimony says that the Bureau has operated a 6 project in a manner consistent with state and federal law. 7 That's not my testimony, that is her testimony. 8 And I -- because she couched that testimony in 9 terms of legal conclusions, my questions about the basis 10 of her testimony are within the scope of what was 11 presented by the Department of the Interior. 12 If the Department of the Interior did not want 13 other parties in this proceeding to question the witness 14 on her understanding of the law, then the Department of 15 the Interior should not have proffered testimony that 16 expresses a legal conclusion. 17 Now, Mr. Turner is correct that I will make 18 arguments. My arguments are not going to be based upon 19 Ms. Rupp's testimony. My arguments will be based upon my 20 references to the Water Code, but this is testimony that 21 the Department of the Interior has offered. 22 C.O. STUBCHAER: Mr. Birmingham -- Mr. Turner. 23 MR. TURNER: Let me respond. If Mr. Birmingham 24 wants to ask Ms. Rupp -- 25 C.O. STUBCHAER: Would you use the mic, please. CAPITOL REPORTERS (916) 923-5447 12528 1 MR. TURNER: I can understand Mr. Birmingham saying, 2 all right, Ms. Rupp, you made a statement that in your 3 opinion the Bureau is operating the CVP in accordance with 4 all applicable divisions of federal and state law. He can 5 then go through and say, did you, in fact, review statute 6 so-and-so, yes or no? Did you review statute so-and-so? 7 We can go through a list of 7,000 statutes and 8 regulations and ask whether she took that into account in 9 reaching the conclusion we're operating in accordance with 10 law. But I fail to see where it makes any sense to say, 11 "Doesn't this statute say this and doesn't this mean 12 that?" There's nothing in the record to indicate that 13 that statute was ever specifically reviewed, or even 14 relevant to the subject matter of her conclusion. 15 C.O. STUBCHAER: Mr. Herrick. 16 MR. HERRICK: This is the same objection we had last 17 week. And previous questioners have been able to review 18 statutes with the witness. I think this is perfectly 19 appropriate given the testimony. And we don't know what 20 the next questions are, yet, for Mr. Birmingham. He's 21 leading to them. 22 It's certainly appropriate to specify and go over 23 and see what the language is of any statute upon which she 24 has based her testimony. I don't see how you can change 25 your ruling now given that and given that the prior CAPITOL REPORTERS (916) 923-5447 12529 1 practice of the other attorneys that questioned. 2 MR. TURNER: And in response, that's what I said a 3 minute ago in response to Mr. Herrick. 4 C.O. STUBCHAER: Mic. 5 MR. TURNER: I have no objection to 6 Mr. Birmingham asking Ms. Rupp, "Have you, in fact, 7 reviewed a specific statute?" He can read it into the 8 record if he wants, "Did you review that statute and did 9 you rely on that statute to support your conclusion that 10 the Bureau is acting in accordance with state law or 11 federal law?" 12 Other than that when he goes on to say, and 13 doesn't that statute mean, doesn't it say, that's asking 14 for legal interpretations. Whether she relied on it or 15 not I can understand, he certainly can ask that question. 16 But what she thinks it means is a very different subject 17 that I take strong exception to. 18 C.O. STUBCHAER: Mr. Birmingham. 19 MR. BIRMINGHAM: Well, I appreciate Mr. Turner's 20 strong exception. But, again, it was the Department of 21 the Interior who offered this witness. And it was the 22 Department of the Interior that included in her written 23 testimony legal statements. 24 Now, Mr. Turner is certainly correct that I can 25 ask her: Did you consider this? But I can also go to the CAPITOL REPORTERS (916) 923-5447 12530 1 next step and that's what he's objecting to. And the next 2 step is: If you had considered this, wouldn't it have 3 affected your conclusion in this way? 4 And I am entitled to do that. There is nothing 5 impermissible about these questions, because it's the 6 Department of the Interior that has offered this 7 testimony. 8 C.O. STUBCHAER: Ms. Leidigh. 9 MS. LEIDIGH: I have sort of a long-winded 10 suggestion, perhaps, but it may be something that would 11 work. It does not seem really appropriate to go through 12 legal argument and discussion in a hearing where we should 13 be hearing evidence of fact. And there really doesn't 14 seem to be very much probative value to hearing about 15 legal interpretations from somebody who hasn't looked at 16 the statute lately and hasn't referred to case law and 17 doesn't necessarily have a prepared opinion on these 18 things. 19 On the other hand, the Bureau did submit this 20 testimony that is full of legal conclusions and reads like 21 a legal brief. Now, it seems to me that what 22 Mr. Birmingham is saying by asking these questions and 23 what the other questioners are saying by asking their 24 questions, is really that they object to the form of 25 testimony that the Bureau of Reclamation submitted. CAPITOL REPORTERS (916) 923-5447 12531 1 Now, one solution, if we treat their actions as 2 an objection to this testimony, is to consider whether or 3 not the Board should rule to the extent that the written 4 testimony and the oral testimony consist of legal 5 conclusions that they will not be treated as evidence of 6 fact and will be treated as legal argument and will be 7 treated in the same way as the brief that was filed by the 8 Bureau of Reclamation. 9 Perhaps, Mr. Turner would like to basically 10 withdraw any implication that those legal arguments are 11 factual in nature. And, then, we could probably go on 12 with this, or the Chair could rule that they will not be 13 treated as factual, that they will be treated simply as 14 legal argument and not subject to the need for 15 cross-examination. 16 I don't think we're getting any facts out of 17 this. All we're getting is somewhat incomplete legal 18 argument that I don't think we'll be able to use for 19 anything. 20 C.O. STUBCHAER: Mr. Turner, do you have a response? 21 MR. TURNER: Two things, first of all, I take no 22 exception to stipulating that the, quote, legal 23 conclusions, end quote, that are contained in Ms. Rupp's 24 or Mr. Michny's testimony are, in fact, precisely that, 25 legal conclusions not factual statements of fact and that CAPITOL REPORTERS (916) 923-5447 12532 1 they should not be given any weight with respect to the 2 propriety of their legal analysis underpinning them or 3 whatever. 4 But the further problem that I have is what we 5 are pursuing right now is the question of: Is the Bureau 6 of operation currently, or has it historically operated 7 its project, the CVP, in conformance with its existing 8 permits? That is not the subject of this phase of the 9 proceeding. 10 The subject is, we, the Bureau has requested that 11 the permits be amended. Here are the reasons why we 12 wanted them amended; not: Have you violated it 1957, '65, 13 whatever. I fail to see where that's even relevant to the 14 subject matter of Ms. Rupp's testimony. 15 But if, in fact, Mr. Birmingham would like a 16 stipulation that the legal conclusions in Ms. Rupp's brief 17 are strictly that, that they are, in fact, legal 18 conclusions, I think we have to go through and identify 19 each particular conclusion that fits that designation, 20 I'll stipulate that those are, in fact, legal conclusions 21 and should not be given weight as a factual -- as an 22 allegation or statement of fact. 23 I don't know that that -- we're any better off 24 then than we are now, but if that would be satisfactory, 25 that's the way we can go. CAPITOL REPORTERS (916) 923-5447 12533 1 C.O. STUBCHAER: We have several behind you, 2 Mr. Birmingham. 3 Mr. Nomellini. 4 MR. NOMELLINI: Yes, Mr. Chairman. We're revisiting 5 the exact question that you ruled on some time back with 6 regard to this particular witness. This is 7 cross-examination of this witness' statement. 8 This witness did testify to the extent that 9 legally they were, the Bureau, was in compliance with the 10 permit. Mr. Turner has the problem, he may want to 11 impeach the testimony of his own witness, he's got that 12 choice. 13 But Mr. Birmingham, as all of us, do have the 14 right within the latitudes of what your Board thinks is 15 undue repetition and use up too much time to cross-examine 16 this witness on her testimony which involves legal 17 conclusions as well as the factual statements. I think it 18 would be grossly unfair to change the rules of the game at 19 this point in time. 20 We face the threshold question as to whether or 21 not the Board wanted to strike all of the testimony 22 presented by the Department in lieu of pursuing 23 cross-examination on this broader subject. But having not 24 done that, unless you want to strike everything that went 25 back, it would be grossly unfair to change that at this CAPITOL REPORTERS (916) 923-5447 12534 1 point in time with Mr. Birmingham's cross-examination. 2 C.O. STUBCHAER: Thank you. 3 Mr. Atlas. 4 MR. ATLAS: I'll just add, Mr. Chairman, that it 5 seems to me that this witness is testifying to facts which 6 are sort of bound up in some legal conclusions. The issue 7 of how the Bureau operates under its permits is, in fact, 8 something that the chief of the water rights section had 9 to look at in the context of the law that applied. And I 10 think that's where Mr. Birmingham is going. 11 C.O. STUBCHAER: Mr. Jackson. 12 MR. JACKSON: My memory fades as I get older, but I 13 think I made a motion to strike this testimony upon seeing 14 it. And you ruled that you would not strike it. Now, to 15 limit cross-examination on the testimony seems to me to be 16 unfair. 17 C.O. STUBCHAER: And then, also, trying to divide 18 these -- you said, it's not a fine line, or these shades 19 of gray which we talked about last week, so I'm going to 20 overrule the objection. 21 MR. BIRMINGHAM: Ms. Rupp, I'd like for you to turn 22 to the Page 3 of Interior Exhibit 13. Do you have Page 3 23 of Interior Exhibit 13 with you? Interior 13 is your 24 written testimony. 25 MS. RUPP: Yes. CAPITOL REPORTERS (916) 923-5447 12535 1 MR. BIRMINGHAM: Towards the top of your your -- 2 Page 3 of Department of the Interior Exhibit 13 it states, 3 this is immediately before the heading, "Part 2," 4 (Reading): 5 "No changes in operations are contemplated as a 6 result of this request. The Central Valley 7 Project will continue to be operated according 8 to federal legislation including the CVPIA and 9 our water service and settlement contractual 10 arrangements as well as our permit conditions." 11 Do you see that testimony? 12 MS. RUPP: Yes. 13 MR. BIRMINGHAM: Did you draft that testimony? 14 MS. RUPP: Yes, I did. 15 MR. BIRMINGHAM: Now, I'd like you to look at 16 Department of the Interior Exhibit 13-A. Department of 17 the Interior Exhibit 13-A is a statement of your 18 qualifications; is that correct? 19 MS. RUPP: Yes. 20 MR. BIRMINGHAM: And under "work experience" it 21 says, 22 (Reading): 23 "1996 to present as chief of the water rights 24 section manages the activities associated with 25 complying with California State Water Law and CAPITOL REPORTERS (916) 923-5447 12536 1 protecting Reclamation's water rights." 2 MS. RUPP: Yes. 3 MR. BIRMINGHAM: Now, your responsibility as the 4 chief of the water rights section involved reviewing 5 Bureau operations to make sure that the Bureau was 6 operating in compliance with California State Water Law? 7 MS. RUPP: No. That would be an incorrect 8 statement. The operational office is a separate office. 9 They're aware of our water right permits conditions. We 10 investigate if there's any complaint that's filed against 11 our water rights. 12 We do an investigation to correct it, or if the 13 operational office notifies us that there's a problem or a 14 potential area where we should consider changing our water 15 right permits, then we investigate that. For example, at 16 New Melones we filed for emergency permission to divert 17 water outside of our permit conditions because of the high 18 water year last year. 19 MR. BIRMINGHAM: And in performing your 20 responsibilities as the chief of the water rights section, 21 you had to be familiar with California Water Law? 22 MS. RUPP: Yes, I became familiar with California 23 Water Law. 24 MR. BIRMINGHAM: And in your testimony when you say 25 on Page 3, "The Central Valley Project will continue to be CAPITOL REPORTERS (916) 923-5447 12537 1 operated according to the permit conditions," that implies 2 a factual statement that the Bureau of Reclamation has 3 operated the CVP in a manner consistent with its permit 4 conditions; isn't that right? 5 MS. RUPP: That was my assumption, yes. 6 MR. BIRMINGHAM: Now, I'd like to ask you a series 7 of questions to test that assumption. 8 MS. RUPP: Okay. But I did not investigate 9 operational records. I'll -- I'll just say that right up 10 front, so there isn't any point in proving that point. 11 MR. BIRMINGHAM: Well, I appreciate that, but in 12 performing your responsibilities as the chief of the 13 division of water rights with the Bureau of Reclamation 14 you had to be familiar with Water Code Section 1700; is 15 that correct, Ms. Rupp? 16 MS. RUPP: Yes. 17 MR. BIRMINGHAM: Now, I'd like you to take a moment 18 and review Water Code Section 1700, which I believe you 19 have in front of you. And when you have finished with 20 that review, let me know. 21 MS. RUPP: Okay. 22 MR. BIRMINGHAM: Now, isn't it correct, Ms. Rupp -- 23 well, first let me ask you: In reaching your opinion that 24 the Bureau of Reclamation has operated in a manner 25 consistent with California Water Law, did you include in CAPITOL REPORTERS (916) 923-5447 12538 1 that analysis the law as it pertains to changing the 2 permitted purpose of use? 3 MS. RUPP: Yes. 4 MR. BIRMINGHAM: Now, isn't it correct, Ms. Rupp, 5 that Water Code Section 1700 provides that water 6 appropriated under the Water Commission Act for this code 7 for one specific purpose shall not be deemed to be 8 appropriated for any other or different purpose? 9 MS. RUPP: That's what it says. 10 MR. BIRMINGHAM: Now, is it your understanding of 11 the law that what that means is that if an entity 12 appropriates water for irrigation that that water cannot 13 be used for municipal and industrial purposes? 14 MS. RUPP: That would appear to be what the intent 15 of the statute is, yes. 16 MR. BIRMINGHAM: Now, your testimony makes reference 17 of the fact that under California Water Law that fish and 18 wildlife enhancement is a beneficial use? 19 MS. RUPP: Yes. 20 MR. BIRMINGHAM: So it's possible under California 21 Water Law for an entity to appropriate water for fish and 22 wildlife enhancement? 23 MS. RUPP: Yes. 24 MR. BIRMINGHAM: And if an entity appropriated 25 water, obtained a permit to appropriate water for fish and CAPITOL REPORTERS (916) 923-5447 12539 1 wildlife enhancement, that entity could not use that water 2 under Section 1700 of the Water Code for irrigation or 3 municipal and industrial use, could it? 4 MS. RUPP: I don't know how the multi-use purpose -- 5 once water has satisfied a fish and wildlife purpose if 6 then it is available for other purposes. 7 MR. BIRMINGHAM: Let me go back to my question, 8 Ms. Rupp, because I'm not sure you understood it. Let's 9 say hypothetically I applied for a permit from the State 10 Water Resources Control Board -- and this probably will be 11 a stretch for many of the people in this room -- but I 12 apply for a permit to appropriate water for fish and 13 wildlife enhancement. And I'm granted that permit and I 14 construct a reservoir and start appropriating water for 15 fish and wildlife enhancement. And that is the only 16 purpose of use contained in my permit. 17 Now, if I take water out of the reservoir that I 18 constructed under the permit to appropriate water for fish 19 and wildlife enhancement and divert that water to a field 20 for purposes of irrigation, that would be in violation of 21 State Water Law, wouldn't it? 22 MS. RUPP: I would guess so. 23 MR. BIRMINGHAM: And that's because Section 1700 24 says that, "The appropriation for one use shall not be 25 deemed an appropriation for an unspecified use"? CAPITOL REPORTERS (916) 923-5447 12540 1 MS. RUPP: Well -- 2 MR. BIRMINGHAM: Could we take a break? 3 C.O. STUBCHAER: Yes. 4 MR. BIRMINGHAM: Could we have ten minutes, please? 5 C.O. STUBCHAER: Well, we'll take our morning break 6 now. As we announced last week, we're going to take our 7 lunch recess at 11:30. So let's take our morning break 8 and reconvene at 10:00. 9 MR. BIRMINGHAM: Thank you. 10 (Recess taken from 9:49 a.m. to 10:07 a.m.) 11 C.O. STUBCHAER: Reconvene the hearing. 12 Mr. Birmingham. 13 MR. BIRMINGHAM: Thank you. Ms. Rupp, prior to the 14 recess I was asking you the question about Water Code 15 Section 1700, the requirements of the California Water 16 Code. 17 Now, the reason that the Bureau of Reclamation 18 filed the change petition in 1985 was to address the 19 issues involving the State Water Law that you and I are 20 currently talking about; is that correct? 21 MS. RUPP: Yes. 22 MR. BIRMINGHAM: Now, I'd like you to look at Water 23 Code Section 1701. And, again, this relates to a question 24 that you were asked last week and in response to which you 25 said that you thought that the Bureau was operating in a CAPITOL REPORTERS (916) 923-5447 12541 1 manner consistent with its water right permits because it 2 had sought a change. 3 Would you take a moment and look at Water Code 4 Section 1700 and in particular the last clause. And when 5 you finish your review of that, let me know. 6 MR. TURNER: Excuse me, are you talking 1700 or 7 1701? 8 MR. BIRMINGHAM: 1701. Thank you, Mr. Turner. 9 MS. RUPP: Okay. 10 MR. BIRMINGHAM: Now, isn't it correct, Ms. Rupp, 11 that under Section 1701 a change in a permit term with 12 respect to purpose of use cannot be implemented until 13 permission to make that change is granted by the Board? 14 MS. RUPP: That's what the statute says. 15 MR. BIRMINGHAM: Your testimony makes -- on Page 2 16 of your testimony, Department of the Interior Exhibit 13, 17 you describe how Reclamation operates the Central Valley 18 Project as an integrated project; is that correct? 19 MS. RUPP: Yes. 20 MR. BIRMINGHAM: In particular you say that, 21 (Reading): 22 "With the magnitude of the CVP and its 23 integrated operations, however, it is not 24 practical to try to match up a particular 25 beneficial water use to a specific permit." CAPITOL REPORTERS (916) 923-5447 12542 1 Did I accurately read that, Ms. Rupp? 2 MS. RUPP: I believe so. 3 MR. BIRMINGHAM: Now, you've testified that you are 4 not an expert in terms of Bureau operations? 5 MS. RUPP: That's correct. 6 MR. BIRMINGHAM: And so your statement on Page 2, 7 which I've just read, that it's not practical to try to 8 match up a particular beneficial use to a specific permit, 9 that is a statement being made of you in a layperson's 10 capacity? 11 MS. RUPP: That's right. It just reflects the 12 integrated nature that we do, in fact, operate under. 13 MR. BIRMINGHAM: Now, your testimony on Page 2 also 14 makes reference to the enactment of the Central Valley 15 Project Improvement Act? 16 MS. RUPP: Yes. 17 MR. BIRMINGHAM: The Central Valley Improvement Act 18 represented a major change in the purpose of the Central 19 Valley Project; is that correct, Ms. Rupp? 20 MS. RUPP: I believe so. 21 MR. BIRMINGHAM: Under the Central Valley Project 22 Improvement Act environmental uses of water were put on an 23 even par with other authorized uses of CVP water? 24 MS. RUPP: That's correct. 25 MR. BIRMINGHAM: And here when we're talking about CAPITOL REPORTERS (916) 923-5447 12543 1 authorized uses of CVP water, we're talking about uses 2 that are authorized by federal law? 3 MS. RUPP: Yes. 4 MR. BIRMINGHAM: Ms. Rupp, in reaching your 5 conclusion about the need to obtain a permit -- a change 6 in permits held by the Bureau of Reclamation, you 7 considered the need to comply with the Central Valley 8 Project Improvement Act? 9 MS. RUPP: Yes, that was one of the reasons that we 10 added fish and wildlife purposes. 11 MR. BIRMINGHAM: Now, you are familiar with Section 12 3411(a) of the Central Valley Improvement Act? 13 MS. RUPP: Yes. 14 MR. BIRMINGHAM: I have placed on the overhead 15 projector a blowup of Section 3411(a) of the Central 16 Valley Improvement Act, which is in evidence as Staff 17 Exhibit 32. 18 Ms. Rupp, in reaching your conclusion that the 19 Bureau of Reclamation has been operating the Central 20 Valley Project Improvement Act in a manner consistent with 21 state and federal law, you considered the Central Valley 22 Project Improvement Act as one of the federal laws with 23 which the Bureau must comply? 24 MS. RUPP: Yes. 25 MR. BIRMINGHAM: And you considered the requirements CAPITOL REPORTERS (916) 923-5447 12544 1 of Section 3411(a)? 2 MS. RUPP: Yes. 3 MR. BIRMINGHAM: Now, Section 3411(a) says, 4 (Reading): 5 "Notwithstanding any other provision of this 6 title the Secretary shall, prior to the 7 reallocation of water from any purpose of use 8 or place of use specified within applicable 9 Central Valley Project water right permits and 10 licenses to a purpose of use or place of use 11 not specified within said permits or licenses, 12 obtain a modification in those permits and 13 licenses in a manner consistent with the 14 provisions of applicable State law to allow 15 such changes in purpose of use or place of 16 use." 17 Is that correct? 18 MS. RUPP: Yes. 19 MR. BIRMINGHAM: The provisions of applicable state 20 law concerning changes in place of use or purpose of use 21 are those provisions set out in Water Code Section 1700, 22 et seq., is that your understanding? 23 MS. RUPP: Yes. 24 MR. BIRMINGHAM: The Bureau currently holds permits 25 which authorize the use of water for fish and wildlife CAPITOL REPORTERS (916) 923-5447 12545 1 enhancement? 2 MS. RUPP: Yes. 3 MR. BIRMINGHAM: And those permits are the permits 4 for the operation of the Trinity division and New Melones 5 Reservoir? 6 MS. RUPP: Trinity is the one that is in this 7 petition. 8 MR. BIRMINGHAM: But isn't it correct, Ms. Rupp, 9 that the permits held by the Bureau of Reclamation for the 10 operation of the New Melones Reservoir authorize the 11 appropriation of water for fish and wildlife enhancement? 12 MS. RUPP: That would be my recollection, yes. 13 MR. BIRMINGHAM: And so even if the State Water 14 Resources Control Board were not -- let me restate the 15 question. 16 Even if the State Water Resource Control Board 17 did not change the purpose of use for permits held on the 18 Sacramento River or the American River, it would still be 19 possible for the Bureau of Reclamation to implement the 20 fish and wildlife provisions of the CVPIA with water from 21 Trinity River and the Stanislaus River? 22 And, Ms. Rupp, if you don't know the answer to 23 the question, that would be fine. 24 MS. RUPP: I don't know that I could make that 25 assumption. CAPITOL REPORTERS (916) 923-5447 12546 1 MR. BIRMINGHAM: Now, did the Bureau of Reclamation 2 obtain a modification of its permits in a manner 3 consistent with applicable provisions of state law before 4 reallocating water under the CVPIA? 5 MR. TURNER: Objection. He is going on the 6 assumption there was a reallocation under CVPIA and I 7 don't think he's established that. 8 C.O. STUBCHAER: Sustained. 9 MR. BIRMINGHAM: Actually, to the contrary -- 10 C.O. STUBCHAER: Okay. I withdraw my ruling, 11 temporarily. 12 MR. BIRMINGHAM: May I address Mr. Turner's 13 objection? 14 C.O. STUBCHAER: Yes. 15 MR. BIRMINGHAM: Ms. Rupp's testimony does refer to 16 the fact that the Bureau has operated in a manner 17 consistent with CVPIA. The Bureau has indicated that even 18 if the change -- if the change petition is granted there 19 wouldn't be any other changes. I think there's lots of 20 evidence in the record that the CVPIA has been 21 implemented. There is evidence in the record, the 22 Bay-Delta Accord, that the CVPIA has resulted in the 23 reallocation of water. 24 Mr. Turner's objection is to my question assumes 25 facts not in evidence. And Interior has put in evidence, CAPITOL REPORTERS (916) 923-5447 12547 1 other parties have put in evidence, I don't think there's 2 any dispute that there is evidence in the record that 3 CVPIA has been implemented and it has resulted in a 4 reallocation of water. 5 C.O. STUBCHAER: I think you're thinking globally 6 and Mr. Turner is thinking locally. 7 MR. BIRMINGHAM: I'll ask the foundational question. 8 C.O. STUBCHAER: All right. 9 MR. BIRMINGHAM: Ms. Rupp, the Bureau of Reclamation 10 has reallocated water under the fish and wildlife 11 enhancement provisions of the Central Valley Project 12 Improvement Act; isn't that correct? 13 MS. RUPP: I don't know specifically if I could tie 14 it to permits. Again, we operate in an integrated manner. 15 And so specifically permit by permit I could not identify 16 any violations of the permit. 17 MR. BIRMINGHAM: Mr. Michny, do you know if the 18 Bureau of Reclamation -- actually, let me restate the 19 question. 20 Do you know if the Department of the Interior has 21 reallocated water pursuant to the Central Valley Project 22 Improvement Act? 23 MR. MICHNY: I have no specific factual knowledge in 24 that regard. 25 MR. BIRMINGHAM: Mr. Michny, are you aware of the CAPITOL REPORTERS (916) 923-5447 12548 1 activities of the Bureau of Reclamation in implementing 2 CVPIA in 1993? 3 MR. MICHNY: Not specifically '93, that I can 4 recall. 5 MR. BIRMINGHAM: Tell me, what do you know about the 6 activities of the Bureau of Reclamation in implementing 7 the Central Valley Project Improvement Act? 8 MR. MICHNY: Well, since it was passed I probably 9 know quite a bit -- I don't know that I can sit here and, 10 you know, give you a litany of everything that I know has 11 happened since 1992, which is basically the last six 12 years. 13 But I know, generally, about the CVPIA. I know 14 generally about what has occurred. A lot -- as I 15 mentioned before, a lot of the specific, you know, 16 operational decisions, the factual basis of specific 17 allocations, you know, I have no factual knowledge of 18 other than a general working knowledge, if you will, about 19 what's going on. 20 MR. BIRMINGHAM: In 1993 did the Bureau of 21 Reclamation implement Section 3406(b)(2)? 22 MR. MICHNY: To the best -- to the best of my 23 recollection I believe we started implementing 3406(b)(2), 24 yes. 25 MR. BIRMINGHAM: And in implementing 3406(b)(2) in CAPITOL REPORTERS (916) 923-5447 12549 1 1993, did the Bureau of Reclamation use water for those 2 purposes from Shasta Dam? 3 MR. MICHNY: I have no specific knowledge of that. 4 MR. BIRMINGHAM: Do you have any knowledge of that? 5 MR. MICHNY: I would say, no, I have no knowledge of 6 where any specific water came from to implement the 7 specific provisions of 3406(b)(2). 8 MR. BIRMINGHAM: Let me ask you a question, then, 9 hypothetically, Ms. Rupp. If water were used from the 10 American River to implement the fish and wildlife and 11 habitat restoration purposes of the Central Valley Project 12 Improvement Act, that use of water would have occurred 13 before the Department of the Interior obtained a 14 modification of the permits that the Bureau holds for the 15 appropriation of water on the American River? 16 MR. TURNER: I object. Again, there are two 17 assumptions underlying that question that are not 18 appropriate. 19 First of all, when Mr. Birmingham says, "used the 20 water," is he referring to let the water flow out of the 21 reservoir? Is that a use, quote, unquote, when the 22 permits are for diversion and rediversion? And, secondly, 23 the statute that he's referring to is talking about is -- 24 and I quote -- 25 (Reading): CAPITOL REPORTERS (916) 923-5447 12550 1 "Reallocation of water from any purpose of use 2 or place of use." And I emphasize, "Specified 3 within applicable Central Valley Project water 4 rights permits and licenses." 5 And then goes on to talk about, "to a purpose of 6 use or a place of use not specified within said permits." 7 So the fact that the Bureau on Monday might have 8 decided that I am going to release water for rediversion 9 for irrigation, and on Tuesday, says, no, I will release 10 water for diversion for municipal and industrial uses, if 11 both of those are covered under existing permits there has 12 not been a reallocation of water in accordance with that 13 section, again, legal arguments notwithstanding. 14 C.O. STUBCHAER: Now, was that a legal argument or 15 an objection? 16 MR. TURNER: It is an objection. He's asking a 17 question about whether the Bureau violated this statute 18 without giving a full background -- 19 MR. BIRMINGHAM: Let me -- 20 C.O. STUBCHAER: Mr. Birmingham. 21 MR. BIRMINGHAM: Let me do it with the appropriate 22 questions. 23 Ms. Rupp, earlier you testified that the permits 24 held by the Bureau of Reclamation for operation of the 25 Central Valley -- excuse me, let me restate the question. CAPITOL REPORTERS (916) 923-5447 12551 1 Earlier you testified that the permits held by 2 the Bureau of Reclamation for operation of the American 3 River Project do not authorize the use of water for fish 4 and wildlife enhancement? 5 MS. RUPP: I said that fish and wildlife enhancement 6 is not in our -- in some of our permits, that's correct. 7 MR. BIRMINGHAM: Now, I'm going to ask you a 8 hypothetical question. I'm going to ask you to assume 9 that since enactment of the CVPIA in 1992 the Bureau of 10 Reclamation has used water appropriated at Folsom 11 Reservoir for fish and wildlife enhancement in the lower 12 American River. 13 C.O. STUBCHAER: Mr. Birmingham, let's take a brief 14 recess. 15 MR. BIRMINGHAM: Thank you. 16 C.O. STUBCHAER: And Mr. Turner and Mr. Birmingham 17 would you, please. 18 MR. BIRMINGHAM: Sure. 19 (Recess taken from 10:27 a.m. to 10:29 a.m.) 20 C.O. STUBCHAER: Back on the record. We're going to 21 recess now until 1:30 this afternoon. 22 (Luncheon recess.) 23 ---oOo--- 24 25 CAPITOL REPORTERS (916) 923-5447 12552 1 TUESDAY, MARCH 30, 1999, 1:30 P.M. 2 SACRAMENTO, CALIFORNIA 3 ---oOo--- 4 C.O. STUBCHAER: Good afternoon. We'll call the 5 hearing back to order. Mr. Birmingham, you have about, 6 according to my record, about 23 minutes left of your 7 hour. 8 MR. BIRMINGHAM: Boy, that is a challenge. I will 9 not use 23 minutes. 10 MR. NOMELLINI: With the objections, we ought to 11 take care of that. 12 C.O. STUBCHAER: And, Mr. Nomellini, the objections 13 don't count. 14 MR. NOMELLINI: Oh, okay. 15 C.O. STUBCHAER: Okay. 16 MR. BIRMINGHAM: I'm handing to Mr. Canaday, a 17 document that's been marked as Westlands' Exhibit 118. 18 And I'm handing a copy to the witness. And I will 19 identify Westlands Water District Exhibit 118 as a 20 declaration of Joel S. Miller that was filed in an action, 21 Civil Number 93-5327-0WW/SSH in United States District 22 Court for the Eastern District of California, Westlands 23 Water District, et al., versus United States. I believe 24 that Mr. Turner will stipulate to the authenticity of 25 Westlands Water District Exhibit 118. CAPITOL REPORTERS (916) 923-5447 12553 1 MR. TURNER: Yes, I will do so. That is an accurate 2 copy of that declaration. 3 C.O. STUBCHAER: Okay. So noted. 4 MR. BIRMINGHAM: I'm handing to Mr. Canaday 20 5 copies of Westlands' Exhibit 119 which is a declaration of 6 Roger K. Patterson with exhibits in the same action of 7 Civil Number 93-5327-0WW/SSH Westlands Water District, et 8 al., versus United States. And I'm handing to Mr. Turner 9 a copy of the declaration. And I believe Mr. Turner will 10 stipulate that it is an authentic copy -- that Westlands 11 119 is an authentic copy of the declaration of 12 Roger K. Patterson filed in that action. 13 MR. TURNER: I will so stipulate. 14 C.O. STUBCHAER: So noted. 15 MR. BIRMINGHAM: I'm handing to Mr. Canaday 16 Westlands Water District Exhibit 120, which is the Bureau 17 of Reclamation Central Valley Project water supply for 18 1993 dated April 7, 1993. And I'm handing a copy of it to 19 Mr. Turner. And I believe Mr. Turner will stipulate to 20 the authenticity of Westlands Water District Exhibit 120. 21 MR. TURNER: I would so stipulate. Just pointing 22 out that the water supply forecast itself is in narrative 23 form on the first page and then there are six pages -- 24 seven pages of charts that are attached thereto that were 25 also released in connection with that particular forecast. CAPITOL REPORTERS (916) 923-5447 12554 1 C.O. STUBCHAER: Thank you. 2 MR. BIRMINGHAM: I'm handing to Mr. Canaday a 3 document that's been marked as Westlands' Exhibit 121, 4 which is a Notice of Petition for Changes and Extension of 5 Time to Complete Use of Water under permit 12721, 6 application 5626 and 18 others dated July 29, 1986. And I 7 believe Mr. Turner will stipulate to the authenticity of 8 Westlands Water District Exhibit 121. 9 MR. TURNER: I would do so, Mr. Chairman. The only 10 question I have is whether this particular notice of 11 petition would already be in the record in Phase VII in 12 light of fact that it is, in fact, a notice that was 13 released by the Board staff in connection with the then 14 pending petition for the changes, extension of time and 15 purposes of use which is the subject of this proceeding. 16 I presume that would most likely already be in the record, 17 but I would maybe ask the staff to check on that. 18 C.O. STUBCHAER: The staff can check on that. Is 19 there any harm in proceeding and having a duplicate? 20 MR. TURNER: No, I would have no problem. 21 MR. BIRMINGHAM: And I would guess that it's already 22 in the record, but I wanted to have this marked to make 23 sure. And so we have provided 20 copies of Westlands 24 Water District Exhibit 121 to the Board and have 25 additional copies for the parties that are present. CAPITOL REPORTERS (916) 923-5447 12555 1 C.O. STUBCHAER: Mr. Canaday. 2 MR. CANADAY: Mr. Chairman, it is, in fact, a part 3 of Staff Exhibit 2 -- 4 C.O. STUBCHAER: Fine. 5 MR. CANADAY: -- of the Draft EIR. 6 C.O. STUBCHAER: Okay. Staff Exhibit 2. 7 MR. BIRMINGHAM: And last week, Mr. Chairman, I had 8 marked for identification Westlands Water District Exhibit 9 117, which is a memorandum dated October 7, 1964, to the 10 Secretary of Interior from Kenneth Holum, sometimes 11 referred to as the "Holum Memorandum," H-O-L-U-M. And I 12 believe Mr. Turner will stipulate to the authenticity of 13 Westlands Water District Exhibit 117. 14 MR. TURNER: I so stipulate. 15 C.O. STUBCHAER: So noted. 16 MR. BIRMINGHAM: I have no further questions. 17 C.O. STUBCHAER: Thank you, Mr. Birmingham. 18 Mr. Campbell. Good afternoon. 19 ---oOo--- 20 CROSS-EXAMINATION OF THE DEPARTMENT OF THE INTERIOR 21 BUREAU OF RECLAMATION 22 BY THE DEPARTMENT OF FISH AND GAME 23 BY MR. CAMPBELL 24 MR. CAMPBELL: Good afternoon. I have a few 25 questions for Mr. Michny. CAPITOL REPORTERS (916) 923-5447 12556 1 Mr. Michny, in your written testimony you refer 2 to several programs that are intended to mitigate the 3 impacts of the CVP on wildlife, plants and habitat; is 4 that correct? 5 MR. MICHNY: Yes, that's correct. 6 MR. CAMPBELL: Do these programs have defined 7 conservation targets? 8 MR. MICHNY: No, they do not. 9 MR. CAMPBELL: Do these programs have defined 10 mitigation standards? 11 MR. MICHNY: No, they do not. 12 MR. CAMPBELL: Do these programs have defined 13 mitigation or conservation criteria? 14 MR. MICHNY: No, they do not. 15 MR. CAMPBELL: Were those programs -- let me back up 16 for a moment. 17 Do those programs have required conditions? 18 MR. MICHNY: No. 19 MR. CAMPBELL: Were those programs and their 20 conditions intended to address the impacts of the 21 encroachment lands and the expansion lands as is before 22 the Board here today? 23 MR. MICHNY: You're previous question asked me if 24 there were conditions, there's no specific conditions in 25 these programs. The second part of your question: Were CAPITOL REPORTERS (916) 923-5447 12557 1 these designed to address the impacts of the encroachment 2 lands? Specifically the answer to that question is, no. 3 They were designed to address impacts of the CVP Central 4 Valley wide the type of impact that occurred in 5 encroachment lands. Are those types of impacts, those are 6 more or less a de facto covering of those types of 7 impacts. 8 MR. CAMPBELL: Okay. So the programs are not 9 specifically tailored to address the impacts of the 10 encroachment lands and the expansion lands as is before 11 the Board here today? 12 MR. MICHNY: That's correct. 13 MR. CAMPBELL: I have no further questions. 14 C.O. STUBCHAER: Thank you, Mr. Campbell. 15 Mr. Atlas. Good afternoon. 16 ---oOo--- 17 CROSS-EXAMINATION OF THE BUREAU OF RECLAMATION 18 DEPARTMENT OF THE INTERIOR 19 TEHAMA COLUSA CANAL AUTHORITY 20 BY MR. ATLAS 21 MR. ATLAS: I have no questions for Mr. Michny, but 22 I have a series of overheads, so rather than work around 23 you, Mr. Michny, if you don't mind maybe with the Board's 24 concurrence you can be excused from the table for a minute 25 if you like and breath a sigh of relief, if you wish. CAPITOL REPORTERS (916) 923-5447 12558 1 MR. MICHNY: All right. 2 C.O. STUBCHAER: Or you can move a chair up to the 3 other end, it's your choice. 4 MR. ATLAS: Ms. Rupp, I want to tell you that I only 5 have one question on each page of this binder for you. 6 MS. RUPP: That sounds reasonable. 7 MR. ATLAS: Actually, I will, with the Board's 8 indulgence, tell you it's never easy for a lawyer to 9 testify. I was called to testify under oath and subject 10 to cross-examination about my fees one time about a year 11 and a half ago. And so I kind of know how you feel, but 12 maybe not. 13 My name is Mark Atlas. And I represent the 14 Tehama Colusa Canal Authority and some of the contractors 15 who are members of that authority who receive water from 16 the Central Valley Project. Do you know where the Tehama 17 Colusa Canal and Corning Canals are? 18 MS. RUPP: Yes, sir. 19 MR. ATLAS: All right. Thank you. One of the 20 things you said in your resume was that your duties 21 included -- or that the water rights section was 22 responsible to ensure that Reclamation complies with state 23 water rights law. And your own work experience included a 24 duty to analyze factual material related to the past, 25 present and future use of water in order to compare the CAPITOL REPORTERS (916) 923-5447 12559 1 relative rights of the United States with respect to the 2 rights of others in connection with potential development 3 of water use. And I'm sure you remember writing that, do 4 you not? 5 MS. RUPP: Yes, sir. 6 MR. ATLAS: Is it your testimony that the United 7 States does comply with state water rights law in its 8 operation of the CVP currently? 9 MS. RUPP: Yes, that's my impression. 10 MR. ATLAS: To your knowledge has the United States 11 met all the needs for the Central Valley Project water in 12 the Sacramento Valley? 13 MS. RUPP: We've met the requirements of our 14 contracts to the extent possible. 15 MR. ATLAS: All right. Do you, of your own 16 knowledge, know whether or not those contracts meet all 17 the needs of the contractors for CVP water though? 18 MS. RUPP: I don't know for a fact that it does or 19 it does not. 20 MR. ATLAS: Okay. Does the water rights section 21 also seek to ensure that U.S. policy on the exercise of 22 water rights is carried out? 23 MS. RUPP: I think -- yes, we try to follow our 24 policy guidelines. 25 MR. ATLAS: What I've put on the overhead is CAPITOL REPORTERS (916) 923-5447 12560 1 actually a part of TCCA Exhibit Number 1. It is extracted 2 from the congressional record. You see the boldfaced 3 print there? 4 MS. RUPP: Yes, I do. 5 MR. ATLAS: All right. And it says it's a statement 6 of the Secretary of the Interior in October 1948 -- 7 MR. TURNER: Before we go on -- 8 MR. ATLAS: -- of a speech in Oroville. 9 MR. TURNER: I have to object. I fail to see the 10 relevance of this testimony to the petition that is the 11 subject of this proceeding, specifically the request by 12 the Bureau of Reclamation to modify the place of use and 13 purpose of use in the existing Central Valley Project 14 water right permits that are identified in the petition. 15 What this particular -- I fail to see how this 16 has any relevance to the substance of the petition that 17 has, in fact, been filed. I mean, I would be interested 18 to see how Mr. Atlas would be able to explain how this 19 relates to the subject matter of this phase of the 20 proceeding. 21 C.O. STUBCHAER: Mr. Atlas. 22 MR. ATLAS: Well, Ms. Rupp did say that one of the 23 duties of the water rights section was to ensure that the 24 U.S. policy on the exercise of water rights is carried 25 out. And what I'm exploring now is whether or not the CAPITOL REPORTERS (916) 923-5447 12561 1 Bureau is actually doing that. 2 MR. TURNER: And the substance of Ms. Rupp's 3 testimony is not the exercise of the Bureau's rights, it 4 was a request for modification of Bureau permits, two 5 totally separate subjects. 6 C.O. STUBCHAER: Mr. Atlas, are you getting at the 7 question of whether or not additional water would be used 8 on these lands? 9 MR. ATLAS: Yes. 10 C.O. STUBCHAER: All right. Overruled. 11 MR. TURNER: Excuse me, additional water would be 12 used on these, quote, unquote, "lands" as a result of this 13 petition, or independently? 14 C.O. STUBCHAER: We will see where the question 15 leads. 16 MR. ATLAS: Okay. Well, Ms. Rupp, would you read 17 the boldface print for me, please? 18 MS. RUPP: 19 (Reading): 20 "Let me state clearly and finally, the Interior 21 Department is fully and completely committed to 22 the policy that no water which is needed in the 23 Sacramento Valley will be sent out of it. 24 There is no intent on the part of the Bureau of 25 Reclamation ever to divert from the Sacramento CAPITOL REPORTERS (916) 923-5447 12562 1 Valley a single acre-foot of water which might 2 be used in the valley now or later." 3 MR. ATLAS: Thank you. To your knowledge, is the 4 United States now in compliance of that policy? 5 MR. TURNER: Asking for a conclusion of law. 6 MR. ATLAS: Are we going to revisit that issue 7 again? 8 C.O. STUBCHAER: It sounds like a factual question 9 to me, if she knows. 10 If you know, you may answer. 11 MR. BIRMINGHAM: Excuse me. I'm going to object on 12 the grounds that the question is ambiguous. Is Mr. Atlas 13 asking the witness: Has the Bureau of Reclamation 14 diverted water out of the Sacramento Valley which is 15 required for use within the Sacramento Valley? 16 C.O. STUBCHAER: Mr. Atlas, is that your question? 17 MR. ATLAS: Yes. 18 C.O. STUBCHAER: All right. 19 MR. ATLAS: Well, if that's the policy, yes. 20 C.O. STUBCHAER: That's the question as I took it. 21 MR. ATLAS: Thank you. 22 C.O. STUBCHAER: If you know. 23 MS. RUPP: My understanding of Reclamation policy is 24 that pursuant to the decisions on the Central Valley 25 Project we gave entities in the Sacramento Valley a CAPITOL REPORTERS (916) 923-5447 12563 1 priority to contract with the United States before our 2 projects -- before we committed water for export. 3 They were to identify their present and future 4 needs. Once federal contracts are in place, and we 5 operate under contractual obligations, all of our 6 contractors are treated equally. And that's the case on 7 every Reclamation project that I've been involved in. 8 MR. ATLAS: Okay. We'll come back to that in a few 9 minutes. You have a copy of the Draft Environmental 10 Impact Report there. You recognize this map that's 11 included in the report? 12 MS. RUPP: Yes, sir. 13 MR. ATLAS: And it is a depiction of the place of 14 use for the water that the Central Valley Project has 15 under the noted permits and it's referred to as the 16 "Shasta place of use;" is that correct? 17 MS. RUPP: Yes. 18 MR. ATLAS: All right. 19 C.O. STUBCHAER: Figure 2-2? 20 MR. ATLAS: Yes, Mr. Chairman. 21 First of all, if I could, Ms. Rupp, the other day 22 you testified about this Exhibit 13-I, and you said this 23 was a depiction of the consolidated and conformed place of 24 use. But the reality is that when you compare this map to 25 Figure 2-2 out of the EIR, Exhibit 13-I is a much -- shows CAPITOL REPORTERS (916) 923-5447 12564 1 a much wider area into which Shasta water could be 2 delivered than is depicted on this map Figure 2-2; is that 3 correct, as things currently stand today? 4 MS. RUPP: It might be a little misleading, but what 5 you're saying is correct. 6 MR. ATLAS: Okay. 7 MS. RUPP: You may not be able to tell the 8 boundaries of the Shasta place of use. 9 MR. ATLAS: Now, in the area that I have marked in 10 blue, essentially, south of the Delta that's the area 11 that's shaded -- if I can get the key up here, actually, I 12 apologize I cut the key off. But this area, the shaded 13 area is what is referred to on the map as the permitted 14 place of use, currently; is that right? 15 MS. RUPP: That is correct. 16 MR. ATLAS: Okay. And so what I've outlined in the 17 area south of the Delta is the shaded area -- and if you 18 need to, it is clearer on the map in your own document so 19 please refer to it if you like -- that is the area to 20 which, south of the Delta, the Central Valley Project 21 currently can export water from Shasta; is that right? 22 MS. RUPP: That's correct. 23 MR. ATLAS: Okay. And, then, the area that I'm 24 marking here and there is a bit -- as I say, I 25 apologize -- was cut off. The areas that I've colored in CAPITOL REPORTERS (916) 923-5447 12565 1 now, those are areas to which if the Board grants this 2 petition the Bureau would then be authorized to export 3 water from Shasta; is that right? 4 MS. RUPP: That would then be included in our 5 permits, that's correct. 6 MR. ATLAS: Okay. 7 C.O. STUBCHAER: Mr. Atlas, the record is -- it's 8 going to be difficult to discern what you have marked and 9 what you have kind of shaded in for purposes of the 10 transcript. Are you going to give a copy of that, or are 11 you going to leave that with the staff? 12 MR. ATLAS: I can leave this with the staff and have 13 it marked as TCCA next in order, if that makes it easier. 14 C.O. STUBCHAER: I think that would be appropriate. 15 All right. 16 MR. ATLAS: We'll just have it marked then and I'll 17 leave it. But for purposes of the record, what I have 18 marked, Ms. Rupp, and please correct me if I'm wrong, 19 there is an area which is not shaded in any shade of gray 20 on the map. In fact, on your full color map it's white, 21 that south of the Delta is currently outside the Shasta 22 place of use but would be included in the place of use in 23 the future? 24 MS. RUPP: That's correct. 25 MR. ATLAS: Okay. And that includes a substantial CAPITOL REPORTERS (916) 923-5447 12566 1 part of the San Joaquin Valley and also includes areas of 2 the Santa Clara and I guess San Benito Counties; is that 3 right? 4 MS. RUPP: Yes. 5 MR. ATLAS: Okay. And this is just for purposes of 6 the written record, obviously, the map speaks for itself. 7 Well, put another way then: The area in gray is the only 8 area currently that legally the Central Valley Project can 9 export water or deliver water if you will from Shasta; is 10 that right? 11 MS. RUPP: Yes. 12 MR. ATLAS: Okay. Now, the other day both in your 13 written and oral testimony you used the phrase quite 14 often, or the term I guess, quite often "integrated" or 15 the phrase "integrated operation." 16 Would you accept as one definition of integrated 17 operation that if one reservoir in the Central Valley 18 Project doesn't have adequate water to meet the needs of 19 CVP contractors then another reservoir of the project is 20 going to have to make up for that? 21 MS. RUPP: I guess that could be one of the factors 22 in integrated operation, there are numerous ones. 23 MR. ATLAS: Okay. But that's one -- at least an 24 understanding that we can share about what an integrated 25 operation is: As one reservoir goes down and the demand CAPITOL REPORTERS (916) 923-5447 12567 1 remains the same, some other reservoir is going to have to 2 pick up the difference? 3 MS. RUPP: Okay. 4 MR. ATLAS: All right. Now, are you familiar with 5 the possibility that up to 340,000 acre-feet a year of 6 water out of Trinity may be released for various purposes 7 on the Trinity River? 8 MS. RUPP: I'm not the person to speak to specific 9 operations. I don't know quantities of water. 10 MR. ATLAS: Okay. And you weren't here a couple of 11 weeks ago when we heard testimony that because of the 12 Hoopa Tribe proposal to impose some temperature control 13 standards on the Trinity that even the entire yield of the 14 Trinity project may be devoted to instream uses in the 15 Trinity River? 16 MS. RUPP: Since I've gone back to Utah I haven't 17 kept up with the negotiations in that project, but I know 18 they've been ongoing. 19 MR. ATLAS: Okay. Well, let's accept, if you would, 20 that there is a possibility that the entire yield of the 21 Trinity Reservoir could be dedicated to instream uses on 22 the Trinity River. Okay? 23 MS. RUPP: Okay. 24 MR. ATLAS: All right. And you understand, then, 25 that that means that water that is currently being CAPITOL REPORTERS (916) 923-5447 12568 1 exported from the Trinity Reservoir into the Sacramento 2 basin and used for purposes -- for CVP purposes then could 3 be lost to that use? 4 MS. RUPP: Yes. 5 MR. ATLAS: Okay. Now, if this Board grants the 6 Bureau's petition, then, with respect to -- strike that. 7 If the Board grants the Bureau's petition and if 8 significant water is, in fact, lost for instream uses to 9 the Trinity River, that would mean less Shasta water to 10 meet needs in the area of origin, wouldn't it? 11 MS. RUPP: I don't -- I don't know if I could make 12 that conclusion. 13 MR. ATLAS: Okay. 14 MS. RUPP: I mean there's all kinds of different 15 operational scenarios that could occur if that happened. 16 MR. ATLAS: In your -- 17 C.O. STUBCHAER: Mr. Atlas, excuse me. I have a 18 question to clarify for me your last question. You said, 19 as I recall, that if the Trinity water is taken out of the 20 Shasta system you make less water available for the area 21 of origin, is that what you asked? 22 MR. ATLAS: I asked if the Board grants the petition 23 and if significant amounts of water are lost for the 24 Trinity River for instream use, doesn't that mean -- 25 C.O. STUBCHAER: All right. It was the first part CAPITOL REPORTERS (916) 923-5447 12569 1 of your question that I missed. 2 MR. ATLAS: Okay. 3 C.O. STUBCHAER: Thank you. 4 MR. ATLAS: You're welcome. 5 Ms. Rupp, in your written testimony you quoted 6 Water Code Section 11126 and I put it up here. Do you 7 remember that? 8 MS. RUPP: Yes. 9 MR. ATLAS: And you quoted it, if I remember 10 correctly -- well, you quoted the provision there that, 11 (Reading): 12 "Provisions of this part shall be liberally 13 construed to effectuate the purposes and 14 objects thereof." 15 Is it your understanding that when the 16 Legislature used the language "this part" they were 17 referring to part 3 of this division of the Water Code? 18 MS. RUPP: I would think so. 19 MR. ATLAS: And "this part" is part 3 which is 20 entitled, "Central Valley Project," part of Division 6 of 21 the Water Code? 22 MS. RUPP: Yes. 23 MR. ATLAS: Okay. Are you familiar with this 24 section, 11460 of the California Water Code? Go ahead and 25 take a moment to read it. CAPITOL REPORTERS (916) 923-5447 12570 1 MS. RUPP: Okay. 2 MR. ATLAS: All right. Have you seen that before? 3 MS. RUPP: Yes, I have. 4 MR. ATLAS: Okay. And this is also a part of part 5 3, the Central Valley Project provisions of the Water 6 Code; isn't it? 7 MS. RUPP: Yes. 8 MR. ATLAS: So would it be fair to say that this 9 section is to be liberally construed as the legislature 10 directed in 11126? 11 MS. RUPP: I would think that would be fair. 12 MR. ATLAS: Okay. And this section says, 13 (Reading): 14 "In the construction and operation of any 15 project under the provisions of this part a 16 watershed or area wherein water originates or 17 an area immediately adjacent thereto," 18 jumping ahead, "shall not be deprived by the 19 Department, directly or indirectly of the prior 20 right to all the water reasonably required to 21 adequately supply the beneficial needs of the 22 watershed area or any of the inhabitants or 23 property owners therein." 24 You see that? 25 MS. RUPP: Uh-huh. CAPITOL REPORTERS (916) 923-5447 12571 1 MR. ATLAS: Now, let's talk for a moment about the 2 concept that Reclamation has to do something in order to 3 make beneficial use of its water. You understand that 4 when a water right holder has a water right that in order 5 to preserve that right the user has to make use of the 6 water, reasonable use; is that your understanding? 7 MS. RUPP: Yes. 8 MR. ATLAS: Okay. Now, the Bureau of Reclamation 9 doesn't use water itself, does it? With all due respect 10 to Mr. Birmingham's definition of "use," the Bureau really 11 doesn't use the water itself, does it? 12 MS. RUPP: That's correct. The projects are for the 13 benefit of the people of California. 14 MR. ATLAS: Exactly. And, in fact, in some cases 15 this Board has referred to the Bureau in the context of 16 its permits as being a trustee of the water. Do you 17 understand that concept? 18 MS. RUPP: I understand the concept of trustee. 19 MR. ATLAS: All right. And in order -- and the 20 Bureau must deliver water in order to make beneficial use 21 of it; isn't that correct? 22 MS. RUPP: Yes. 23 MR. ATLAS: Okay. And the Bureau does that by 24 executing contracts with water districts and agencies; 25 isn't that true? CAPITOL REPORTERS (916) 923-5447 12572 1 MS. RUPP: That's one of the ways, yes. 2 MR. ATLAS: Okay. And when it does that in the 3 Sacramento Valley, I think you even earlier said that it 4 does it by contracting. And when it does that in the 5 Sacramento Valley, isn't it meeting what this statute 6 refers to as, "The beneficial needs of the watershed area 7 or the inhabitants and property owners therein"? 8 MS. RUPP: When we deliver water in the Sacramento 9 basin? 10 MR. ATLAS: Yes. 11 MS. RUPP: I would think so. 12 MR. ATLAS: Okay. So when Reclamation signs a 13 contract with a district in the Sacramento Valley and that 14 contract is for all that district's beneficial needs for 15 CVP water, Reclamation is meeting its obligations under 16 11460; isn't it? 17 MS. RUPP: Reclamation met its obligations through 18 the contract commitment, yes. 19 MR. ATLAS: Okay. But my question was: If the 20 contract is for all of a particular district's needs for 21 CVP water, then Reclamation is meeting its obligations 22 under 11460? 23 MR. TURNER: Again, I would have to object. Again, 24 I fail to see the relevance of this to the petition in 25 question as to whether a certain contract satisfies the -- CAPITOL REPORTERS (916) 923-5447 12573 1 this provision of the Water Code, how does that relate to 2 whether the place of use, or purposes of use are modified? 3 C.O. STUBCHAER: Mr. Atlas. 4 MR. ATLAS: Well, the United States in Ms. Rupp's 5 own testimony brings the subject of area of origin and 6 contracting up. And in about three questions I'm going to 7 be right there. 8 C.O. STUBCHAER: Mr. Jackson. 9 MR. JACKSON: I just wanted to indicate that I think 10 this is directly relevant to her testimony, because of her 11 reference to the area of origin law. It is also directly 12 relevant as to whether or not the Bureau of Reclamation's 13 petition to expand the purpose and place of use directly 14 or indirectly violates 11460. 15 MR. TURNER: All I can respond, Mr. Stubchaer, is 16 that what we are asking the Board to do is to modify the 17 Bureau permits, not to tell the Bureau how it must operate 18 to satisfy the watershed area water of origin provisions 19 of California Water Law, two totally separate subjects and 20 I fail to see their connection. 21 C.O. STUBCHAER: Mr. Turner, as we said several 22 times in the past, under cross-examination they have 23 pretty wide latitude. Recross-examination is different, 24 but cross-examination is pretty wide. So I'm going to 25 overrule the objection. CAPITOL REPORTERS (916) 923-5447 12574 1 You may proceed. 2 MR. ATLAS: Thank you, Mr. Chairman. 3 Ms. Rupp, earlier you said that the United States 4 had established, in effect, a time when contractors in the 5 Sacramento Valley could contract and that by executing 6 those contracts the United States had met its area of 7 origin obligations. Did I understand that? It was one of 8 your answers to one of my questions? 9 MS. RUPP: Actually, it was the decisions from the 10 State Water Board that established the time frames for us 11 to enter into contracts. 12 MR. ATLAS: Okay. If a contract with a Sacramento 13 Valley water district is for less than that district's 14 identified need for CVP water, then Reclamation isn't 15 meeting its obligation under 11460, is it? 16 MS. RUPP: I believe that it is. 17 MR. ATLAS: Now, you know that the United States 18 acknowledges that there are contractors in the Sacramento 19 Valley who are short of CVP water, don't you? 20 MS. RUPP: Yes, there are contractors throughout the 21 CVP that are short of water. 22 MR. ATLAS: Now, you recognize this letter? Maybe I 23 haven't shown you enough of it yet. This is from your own 24 testimony; isn't it? 25 MS. RUPP: Okay. CAPITOL REPORTERS (916) 923-5447 12575 1 MR. ATLAS: Would you read the sentence that I've 2 highlighted there. 3 C.O. STUBCHAER: Could you identify the exhibit 4 number, please? 5 MR. ATLAS: I beg your pardon. Yes, this is United 6 States Exhibit 13-C, a letter dated April 1, 1985, written 7 to Jack Campbell the manager of Glide Water District in 8 Willows, California. And it's signed by Neil Schild the 9 assistant regional director at that time. 10 Would you read the sentence that's in blue? 11 MS. RUPP: 12 (Reading): 13 "Your letter expressed concern about initiation 14 of these negotiations prior to completing the 15 water marketing programs in the Tehama Colusa 16 and Corning Canal service areas." 17 MR. ATLAS: I apologize. I probably should have 18 pointed out and had you read the first sentence refers to 19 a letter that Mr. Campbell wrote to the United States, 20 quote, 21 (Reading): 22 "Regarding the proposed sale of CVP water to 23 the State of California and the proposed 24 expansion of the place of use for CVP water." 25 Do you see that? CAPITOL REPORTERS (916) 923-5447 12576 1 MS. RUPP: Yes. 2 MR. ATLAS: Okay. And Mr. Schild characterizes what 3 the proposed petition would do and he lists six items. 4 Would you read that item number 2? 5 MS. RUPP: 6 (Reading): 7 "Expand the place of use to cover all areas 8 that might logically be served with CVP water 9 in the near future, particularly areas in the 10 Sacramento Valley under the area of origin 11 concept." 12 MR. ATLAS: Thank you. And would you read the last 13 paragraph that I marked, the first paragraph after item 14 six. 15 MS. RUPP: 16 (Reading): 17 "We met with representatives of concerned water 18 districts in the Sacramento Valley on March 19 6th, 1985, to discuss the issue and its impact 20 on the contracting programs in that area. We 21 assured those in attendance that we fully 22 intend to identify the water demands of the 23 areas of origin and provide the water needed." 24 MR. ATLAS: So Reclamation admits by this language 25 that the expanded place of use petition is subject to area CAPITOL REPORTERS (916) 923-5447 12577 1 of origin protections for CVP contractors, doesn't it? 2 MR. TURNER: The letter speaks for itself. 3 MR. ATLAS: I would like her to answer. 4 C.O. STUBCHAER: Ms. Rupp, if you can, please, 5 answer. 6 MS. RUPP: I don't know what conclusions you could 7 draw from that. 8 MR. ATLAS: Well, we'll draw our own then. 9 MS. RUPP: Okay. 10 MR. ATLAS: Excuse me, just a moment. 11 C.O. STUBCHAER: Sure. 12 MR. ATLAS: Ms. Rupp, I'm going to put on the 13 overhead here -- maybe I'll start with the second page 14 first. This is a letter from Lawrence Hancock who at that 15 time was regional director of the Bureau. This is a part 16 of TCCA Exhibit 13. I'm interested in the first 17 paragraph. Would you read that, please? 18 MS. RUPP: 19 (Reading): 20 "In August 1986 the U.S. Bureau of 21 Reclamation's Bureau Mid-Pacific Regional 22 Office asked potential contractors in the 23 Sacramento River service to identify the 24 amount of Central Valley Project water they 25 wished to contract for following completion of CAPITOL REPORTERS (916) 923-5447 12578 1 the Sacramento River Water Marketing 2 Environmental Impact Statement, EIS. 3 Since that time the Bureau has received a 4 number of requests from districts and 5 municipalities in the area who did not respond 6 to our earlier request asking how they could be 7 included in the Sacramento River Water 8 Marketing EIS. 9 To accommodate these requests and make sure 10 all the water needs in the area are considered 11 during the environmental assessment process, 12 the Bureau is asking potential contractors in 13 the area of origin to confirm the amount of 14 water they wish to contract for. Contractors 15 who responded in writing to our earlier 16 requests need not reapply." 17 MR. ATLAS: Would it be fair to conclude that based 18 on this language Reclamation has admitted that in its 19 contracting program it has an obligation to meet needs in 20 the area of origin, the needs of its CVP contractors? 21 MS. RUPP: I think when they were scoping the EIS 22 that that's what -- they were trying to identify the 23 needs. 24 MR. ATLAS: Okay. And it is also fair to conclude 25 that Reclamation understands then that there are unmet CAPITOL REPORTERS (916) 923-5447 12579 1 needs for CVP water in the Sacramento Valley, isn't there? 2 MS. RUPP: I -- I don't know that for a fact. I 3 would -- I don't know why -- I don't know the background 4 on this letter. I'm sorry. 5 MR. ATLAS: Now, you were here last Wednesday, was 6 it, that this phase started -- whenever, Mr. Birmingham 7 gave an opening statement on behalf of the San Luis 8 Delta-Mendota Water Authority; Mr. Turner gave an opening 9 statement. You heard each of them say, words to the 10 effect, that the laws that we looked at here earlier, 11 these water code sections and such, give CVP contractors 12 no priority to -- CVP contractors in the Sacramento 13 Valley, no priority to call on the Central Valley Project, 14 but rather just a right to file their own water rights and 15 develop their own project. 16 Did you hear those comments? 17 MS. RUPP: Yes, I did. 18 MR. ATLAS: Is it your understanding that those 19 comments are consistent with the policy of the Mid Pacific 20 Region currently with respect to its area of origin 21 obligations? 22 MS. RUPP: Yes. 23 MR. ATLAS: Okay. Now, one of the things that you 24 attached to your testimony was this booklet, Government 25 Exhibit 13-B. Do you remember that? CAPITOL REPORTERS (916) 923-5447 12580 1 MS. RUPP: Yes, sir. 2 MR. ATLAS: Okay. And I think that a number of 3 times in your testimony and in answer to other questions 4 on cross-examination you said that one of the important 5 factors in operating the CVP is to assure that 6 congressional intent is carried out; is that correct? 7 MS. RUPP: Congressional intent? 8 MR. ATLAS: Yes. 9 MS. RUPP: Congressional legislation. 10 MR. ATLAS: Well, is it fair to assume that when 11 congress adopts a law, the legislation what it passes is 12 an expression of its intent? 13 MS. RUPP: To the extent that that is correct, yes, 14 I would say so. 15 MR. ATLAS: Well, in fact, let me help you. I think 16 on the 25th you said, this is not a direct quote, but your 17 testimony was that federal and state legislation -- the 18 purpose of the state -- federal and state legislation with 19 respect to the CVP was to have the project operated as an 20 integrated project and that limiting one feature of the 21 project or another would violate congressional directives. 22 MS. RUPP: Yes. 23 MR. ATLAS: As I say that wasn't a direct quote, but 24 is that a fair characterization of your testimony? 25 MS. RUPP: Yes. CAPITOL REPORTERS (916) 923-5447 12581 1 MR. ATLAS: Okay. So is it fair to say that 2 congressional authorizations are a part of the history of 3 the CVP that this Board should consider in connection with 4 this petition? 5 MR. TURNER: Objection. Mr. Atlas goes through and 6 asks Ms. Rupp to confirm his reference to congressional 7 directives and now changes the term to congressional 8 authorizations, and I would point out that those are 9 significantly different terms. 10 If he's going to ask for concurrence on the use 11 of one term, I would suggest he use that term again when 12 he asks the question. 13 C.O. STUBCHAER: That's a technical point, but I 14 think it's correct, so I'll sustain it. 15 MR. ATLAS: All right. I will use the term 16 "congressional authorizations." You understand -- well, 17 strike that. 18 Let me read to you from Page 3 of this Government 19 Exhibit 13-B then -- 20 MR. BIRMINGHAM: Excuse me, Mr. Atlas, you said 21 13-B? 22 MR. ATLAS: "B" as in Bravo. This book is entitled 23 "Central Valley Project, It's Historical Background and 24 Economic Impacts." 25 On Page 3, Ms. Rupp, on the right-hand column CAPITOL REPORTERS (916) 923-5447 12582 1 first full paragraph it says, 2 (Reading): 3 "The River and Harbors Act of 1935 approved 4 August 30, 1935, authorized construction of the 5 initial features of the Central Valley Project 6 by the U.S. Army Corps of Engineers." 7 And then skipping down to the next paragraph, 8 (Reading): 9 "This action was followed by many additional 10 congressional authorizations with the last one 11 being in 1976." 12 Do you see those? 13 MS. RUPP: Yes. 14 MR. ATLAS: All right. And so you understand what 15 is meant by the term "authorizations" as used in this 16 book? 17 MS. RUPP: Yes. 18 MR. ATLAS: Okay. Let me show you another 19 authorization. This is a part of TCCA Exhibit 1. Start 20 over here, it's a reprint from House report number 765. 21 You see the title, "The Bill Authorizing Sacramento Valley 22 Irrigation Canal Central Valley Project"? 23 MS. RUPP: Yes, that's from a House report. 24 MR. ATLAS: Okay. Can we accept that this is a part 25 of a congressional authorization? CAPITOL REPORTERS (916) 923-5447 12583 1 MR. TURNER: Asking for a conclusion of law that she 2 is not -- 3 MR. ATLAS: I'll withdraw the question. 4 MR. TURNER: She cannot testify as to whether that 5 does or doesn't constitute part of the authorization. 6 MR. ATLAS: All right. I'll withdraw the question 7 and ask it this way: Ms. Rupp, would read the first 8 paragraph that I've highlighted in blue, please. 9 MS. RUPP: 10 (Reading): 11 "The committee on public lands to whom is 12 referred the Bill HR 163 to authorize 13 Sacramento Valley Irrigation Canals, Central 14 Valley Project, California, having considered 15 the same report favorably thereon without 16 amendment and recommend that the bill be 17 passed." 18 MR. ATLAS: All right. Thank you. And would you 19 read, then, this highlighted blue. 20 MS. RUPP: 21 (Reading): 22 "In 1941 the State Legislature, by legislation 23 specifically, added these canals to the State 24 Central Valley Project. Prior to that 25 legislation, the State Legislature passed the CAPITOL REPORTERS (916) 923-5447 12584 1 County of Origin Act, which reserves to the 2 watershed of origin sufficient water to meet 3 its beneficial uses, both present and future, 4 in any plan which requires export of water to 5 other areas. 6 The authorization and construction of these 7 irrigation canals is a desirable step to 8 implement the intent of the legislation of the 9 State of California, which preserves the water 10 supply that will be required to meet present 11 and future beneficial uses in the various 12 watersheds of origin. 13 Carrying out the intent of the State 14 Legislation relating to preserving sufficient 15 water for watersheds of origin the Bureau of 16 Reclamation in 1944 again studied the 17 irrigation possibilities of the Sacramento 18 Valley and proposed a system of canals similar 19 to those described in this legislation." 20 MR. ATLAS: All right. Thank you. And I'll draw 21 your attention to about three lines down, the canals that 22 they are referring to were then known as the Red 23 Bluff-Dunnigan Canal. You understand that that was the 24 original designation of what is know called the Tehama 25 Colusa Canal? CAPITOL REPORTERS (916) 923-5447 12585 1 MS. RUPP: That would make sense of the area, but I 2 didn't know that for a fact. 3 MR. ATLAS: Okay. So based on this language is it 4 fair to say that congress made a link between the Central 5 Valley Project's construction of the Sacramento Valley 6 canals as a specific step in meeting area of origin 7 obligations? 8 MS. RUPP: Yes, I think in 1949 that was accurate. 9 MR. ATLAS: So is it also fair to say that 10 Reclamation's policy today that denies priority for CVP 11 contractors in the Sacramento Valley a priority for CVP 12 water that that violates this congressional authorization? 13 MS. RUPP: No -- 14 MR. TURNER: Objection. I think we previously 15 established that this was not necessarily a part of 16 considered congressional authorization for an order. 17 MR. ATLAS: I don't know that we've established that 18 at all. 19 MR. TURNER: You withdraw the question with respect 20 to whether or not this constitutes a part of the 21 authorization. 22 MR. ATLAS: No -- 23 C.O. STUBCHAER: All right. Mr. Atlas, go ahead -- 24 no, wait. Answer the objection. 25 MR. ATLAS: Well, the language speaks for itself. CAPITOL REPORTERS (916) 923-5447 12586 1 This is a part of an authorization. 2 MR. TURNER: That is a House report. I would admit 3 it is a House report. 4 MR. ATLAS: Okay. Well, maybe I'll let the document 5 speak for itself, Mr. Turner. 6 C.O. STUBCHAER: All right. 7 MR. TURNER: Thank you. 8 MR. BIRMINGHAM: Excuse me, Mr. Stubchaer, the 9 question was answered. I don't think that there's been a 10 ruling on the objection. I believe the question was 11 answered. 12 C.O. STUBCHAER: All right. The objection was de 13 facto, sustained by the action subsequent. 14 MR. ATLAS: Thank you. 15 C.O. STUBCHAER: And just a point of clarification, 16 does every congress have a House report number 765? 17 Should we say it's the 81st Congress? 18 MS. RUPP: Yes. 19 MR. ATLAS: Well, yes. It is part of what we 20 submitted as a TCCA exhibit. And I would say no other 21 TCCA exhibit includes a House report 765. 22 C.O. STUBCHAER: You got me. 23 MR. ATLAS: I think we're safe. 24 Ms. Rupp, given the fact there is an unmet need 25 in the Sacramento Valley for CVP contract supplies and CAPITOL REPORTERS (916) 923-5447 12587 1 that one of the goals of this petition is to allow 2 Reclamation to spread CVP Shasta water into whole areas of 3 the Central Valley Project that aren't currently included 4 in the place of use, isn't it reasonable to expect that we 5 could fashion a condition on this Board's granting that 6 petition that would carry out the congressional intent 7 that's embodied in this authorization that you just read 8 from? 9 MR. BIRMINGHAM: Objection. Misstates the evidence. 10 C.O. STUBCHAER: Mr. Atlas. 11 MR. ATLAS: Well, I thought we had established that 12 the Bureau understands that there's an unmet need for CVP 13 contract supply. We've established that there are areas 14 of the Central Valley Project in the San Joaquin Valley 15 that are not included in the Shasta permits currently. 16 And this Board's notice of this hearing asks for 17 proposals as to the conditions that would be placed on the 18 petition that the Bureau has filed. And I asked whether 19 such a condition -- whether we could fashion such a 20 condition to carry out this intent. 21 MR. BIRMINGHAM: Actually, that's not the question 22 that he asked. He asked whether or not the Board could 23 fashion a condition that would carry out this 24 congressional authorization. Mr. Atlas has repeatedly 25 referred to this House report as a congressional CAPITOL REPORTERS (916) 923-5447 12588 1 authorization. Whether it is or isn't has not been 2 established. 3 He has made reference to the obligation that is 4 referenced in this House report, but there's no reference 5 to an obligation. There's a statement about carrying out 6 an intent of the California legislature, but it doesn't 7 talk about an obligation. And so I believe that 8 Mr. Atlas's question is assuming facts, albeit, legal 9 facts that are not in evidence. 10 C.O. STUBCHAER: Mr. Atlas, does your question 11 assume that there's a change in the amount of water 12 delivered to the existing place of use, or is it just a 13 generic question about the impact of exports on the 14 Sacramento Valley needs or supplies? 15 MR. ATLAS: I'm not sure I understand your question, 16 Mr. Chairman. 17 C.O. STUBCHAER: Okay. Why don't we start over 18 then. Why don't you start with another question and see 19 if we can get there. 20 MR. ATLAS: Maybe I could have my original question 21 read back. 22 C.O. STUBCHAER: Please, read the question back. 23 MR. ATLAS: Well, let me ask this question: 24 Ms. Rupp, if we're going to carry out state law, the 25 provision we talked about earlier 11460 of the Water Code CAPITOL REPORTERS (916) 923-5447 12589 1 and if, in fact, this Board wants to carry out what 2 congress said in this report number 765, then shouldn't 3 the Board condition the consolidation of place of use in a 4 way that will protect Sacramento Valley CVP contractors? 5 MS. RUPP: I don't believe that any protection would 6 be necessary. I think that we entered into the contract 7 pursuant to the conditions. There are still provisions in 8 the water law that allow the area of origin entities to 9 perfect a water right. And there are provisions in that 10 law which under certain circumstances would have a 11 priority right over our project. 12 MR. ATLAS: Those provisions provide that -- what 13 you're referring to and correct me if I'm wrong -- that 14 the people that you're thinking of can file for a water 15 right, develop their own water rights and develop their 16 own project; isn't that what you mean? 17 MS. RUPP: Yes, sir. 18 MR. ATLAS: All right. But -- well, strike that. 19 I have no other questions. 20 C.O. STUBCHAER: Thank you, Mr. Atlas. 21 Mr. Jackson. 22 MR. JACKSON: Do you want to take our afternoon 23 break now? 24 C.O. STUBCHAER: How long is your cross going to 25 take? CAPITOL REPORTERS (916) 923-5447 12590 1 MR. JACKSON: Actually, an awful lot of my questions 2 have been asked and answered already. I don't think it 3 will be more than 30 minutes. 4 C.O. STUBCHAER: 30 minutes. Well, then we'll take 5 our afternoon break now, 12-minute recess. 6 (Recess taken from 2:28 p.m. to 2:39 p.m.) 7 C.O. STUBCHAER: Good afternoon. We will come back 8 to order. 9 Mr. Jackson. 10 MR. JACKSON: Thank you, sir. 11 ---oOo--- 12 CROSS-EXAMINATION OF THE BUREAU OR RECLAMATION, 13 DEPARTMENT OF THE INTERIOR 14 BY COUNCIL FOR RURAL COUNTIES 15 BY MR. JACKSON 16 MR. JACKSON: Ms. Rupp, my name is Michael Jackson. 17 And I'm an attorney for Regional Council of Rural 18 Counties. In your testimony on Page 1 you indicate that 19 the original consolidated place of use petition filed by 20 Reclamation in 1985 requested an expansion of the place of 21 use by approximately four million acres within the Central 22 Valley Project gross area boundary. 23 What is the Central Valley Project gross area 24 boundary that you're referring to? 25 MS. RUPP: That would be the boundary line for our CAPITOL REPORTERS (916) 923-5447 12591 1 place of use -- I'm not sure what you're asking me. 2 MR. JACKSON: Well, is there a map that includes the 3 four million acres that you originally asked for an 4 expansion for? 5 MS. RUPP: Yeah, that was the Appendix A-20 that I 6 had as an exhibit, or I may have just referenced that. It 7 is in the DEIR on Page A-20. 8 MR. JACKSON: Yeah. Thanks. To be clear, then, you 9 have deleted approximately 3.2 million acres from your 10 1985 request in your 1995 request from that gross area 11 boundary? 12 MS. RUPP: It wasn't a matter of deleting acres. We 13 redefined the project to add only the authorized service 14 areas. So it's not like we went and changed the line on 15 the 1985 map, rather we just looked at the existing map 16 and added in the current district service area boundaries 17 of our districts. 18 MR. JACKSON: When you -- what was the additional 19 3.2 million acre-foot difference? Where was that located, 20 the 3.2 million acres difference? 21 MS. RUPP: I don't think it's that simple. Let me 22 look at the -- 23 MR. JACKSON: I don't either. I could not find it. 24 MS. RUPP: Most of the acreage -- let me find the 25 A-20 map. Most of the acreage in the squared off area CAPITOL REPORTERS (916) 923-5447 12592 1 based on reports that I read was actually in the northern 2 Sacramento Valley area. And there's some acreage in the 3 southern area as well. 4 But like I said before, the change was in scope. 5 It wasn't in taking the 1985 map and removing areas, 6 rather it is looking at our existing district service 7 areas and conforming the place of use to include those 8 areas in our contracts where we said districts could 9 deliver water. 10 MR. JACKSON: Well, is it fair to say that the 11 difference between the 834,667 acres and the four million, 12 which were present in your original -- in the Bureau's 13 original petition for a consolidated place of use, are in 14 the Sacramento Valley and would qualify as area of origin 15 acres? 16 MS. RUPP: I'm not sure I follow that. Are you 17 saying that all of the -- the difference in acres was in 18 the northern area? 19 MR. JACKSON: I'm asking you: Whether or not that 20 is true? 21 MS. RUPP: I don't believe that's true. 22 MR. JACKSON: Then where was it? 23 MS. RUPP: As I said before, this is not -- the 24 modified petition does not modify the 1985 boundary. I 25 took the boundary lines on the map and we looked at our CAPITOL REPORTERS (916) 923-5447 12593 1 district service area boundaries and we expanded the map 2 in those locations where the district service areas were 3 outside of that line. 4 MR. JACKSON: And so you ended up with 834,667 acres 5 out of the original four million? 6 MS. RUPP: The 834,000 acres may or may not have 7 been in the four million acres. I don't know, for 8 example, in 1985 if we included all of Santa Clara County 9 in our boundary. 10 MR. JACKSON: Let's deal with that one directly. 11 For the request you are making today is Exhibit 13-I on 12 the wall and the acres in green and orange the 834,667 13 acres that you're talking about? 14 MS. RUPP: Yes. 15 MR. JACKSON: All right. Now, let's talk about 16 Santa Clara, since you brought it up -- 17 MS. RUPP: Well, let me clarify that, I'm sorry. 18 The areas in green are the service areas. Some of those 19 areas are absolutely in the place of use. So it's not all 20 of the green area is outside the place of use. 21 MR. JACKSON: Do you know how much of the area in 22 green in the area of Santa Clara County is presently in 23 the place of use of the Central Valley Project? 24 MS. RUPP: If you go according to the maps, the 25 hand-drawn maps and the DEIR, then the acreage that is CAPITOL REPORTERS (916) 923-5447 12594 1 listed in there is accurate. And it was I think 500 and 2 some thousand acres. I can't remember the exact number. 3 MR. JACKSON: So of the 834,664 acres it's your 4 testimony that approximately 500,000 acres of that is in 5 the Santa Clara Valley? 6 MS. RUPP: Yes. 7 MR. JACKSON: Santa Clara County? 8 MS. RUPP: Yes. 9 MR. JACKSON: All right. Mr. Michny, did you 10 examine the growth inducing impacts of expanding the area 11 of water availability in Santa Clara County by 500,000 12 acres? 13 MR. MICHNY: No, I did not. 14 MR. JACKSON: To your knowledge, has there been any 15 environmental review of the growth inducing impacts of an 16 additional 500,000 acres to be serviced by the CVP in 17 Santa Clara County? 18 MR. BIRMINGHAM: Objection. Assumes facts not in 19 evidence. 20 C.O. STUBCHAER: Mr. Jackson. 21 MR. JACKSON: I don't believe it does. 22 MR. BIRMINGHAM: I think Mr. Jackson is assuming 23 that there are growth inducing impacts. I'm not aware of 24 any evidence that expanding the place of use to include 25 all of Santa Clara County will, in fact, have growth CAPITOL REPORTERS (916) 923-5447 12595 1 inducing impacts. 2 C.O. STUBCHAER: I think that's correct. I recall 3 testimony regarding nondevelopable areas within the 4 county. 5 MR. JACKSON: I was planning on getting to that. 6 C.O. STUBCHAER: All right. 7 MR. JACKSON: But first I want to know whether or 8 not there's been a study. 9 C.O. STUBCHAER: All right. That's a fair question. 10 MR. MICHNY: Not specifically to my knowledge, no. 11 MR. JACKSON: All right. Now, out of the 500,000 12 acres in Santa Clara County, how much of it is buildable? 13 MR. MICHNY: I don't have any specific knowledge in 14 that regard. 15 MR. JACKSON: Ms. Rupp, do you have any? 16 MS. RUPP: No. 17 MR. JACKSON: How much of it has other water 18 supplies, Mr. Michny? 19 MR. MICHNY: I'm unaware of that also. I do not 20 know the specific water supply situation in Santa Clara 21 County. 22 MR. JACKSON: Ms. Rupp, do you have any idea how 23 much of that has alternative water supply? 24 MS. RUPP: I don't know the service area 25 circumstances. I know that they have other sources of CAPITOL REPORTERS (916) 923-5447 12596 1 water including the State Water Project. 2 MR. JACKSON: Calling your attention on Exhibit 13-I 3 to the small green space at the bottom of San Joaquin 4 Valley, is that, perhaps, the City of Bakersfield? 5 MS. RUPP: It's Arvin-Edison Water Storage District 6 I believe it's called. 7 MR. JACKSON: Do you know whether that serves the 8 City of Bakersfield? 9 MS. RUPP: I'm not sure. 10 MR. JACKSON: Mr. Michny, has there been any study 11 of how much water it would require to serve the 500,000 12 acres of expanded CVP service area in Santa Clara County? 13 MR. MICHNY: Not to my knowledge. 14 MR. JACKSON: Has -- and either of you can answer 15 this question: Have either of you determined whether or 16 not there is presently enough municipal and industrial 17 water available for such an expansion in Santa Clara 18 County? 19 MR. TURNER: If I could ask -- 20 MR. JACKSON: From the CVP. 21 MR. TURNER: From the -- okay. 22 MS. RUPP: I'm sorry. Could you ask me that 23 question again? 24 MR. JACKSON: Yes. Do you presently know how much 25 water it would take to serve the -- do you know whether or CAPITOL REPORTERS (916) 923-5447 12597 1 not the CVP has the water available to serve the 2 additional 500,000 acres of land in this application? 3 MS. RUPP: The water available to Santa Clara is 4 pursuant to its contract with the Bureau of Reclamation. 5 And this petition doesn't envision any change in the 6 contract terms. 7 MR. JACKSON: So if Santa Clara is presently taking 8 all of the water that is in its contract, this would not 9 give them any additional water? 10 MS. RUPP: That's correct. 11 MR. JACKSON: Then what is the purpose of expanding 12 the place of use? 13 MS. RUPP: To conform the place of use to our 14 district service area boundaries. 15 MR. JACKSON: What would be the purpose in changing 16 the purpose of use in such a situation? 17 MS. RUPP: It would be to allow flexibility in 18 management. 19 MR. JACKSON: Mr. Michny, in the course of your 20 environmental review of this petition for change in place 21 and purpose of use, did you do any environmental 22 examination of whether or not there is enough permitted 23 M&I water available for this expansion? 24 MR. MICHNY: First, I want to clarify something. 25 You started your question to say in my environmental CAPITOL REPORTERS (916) 923-5447 12598 1 review of the entire petition, I did not do an 2 environmental review of the petition. I was involved on 3 the aspect of what is appropriate mitigation, that aspect. 4 So just to clarify your question. 5 And to answer your question: No, I did not do 6 such an analysis. 7 MR. JACKSON: So the Bureau did no environmental 8 review of this petition on its own; is that correct? 9 MR. MICHNY: The Bureau as an agency was involved 10 with the State Board in developing the EIR. Different 11 people were involved with different aspects of the 12 development of the EIR. I was just trying to characterize 13 my involvement in this EIR. 14 MR. JACKSON: Okay. In the EIR there was an initial 15 study done, correct? 16 MR. MICHNY: Yes. 17 MR. JACKSON: Did you prepare the initial study? 18 MR. MICHNY: I did not. 19 MR. JACKSON: All right. Did you take part in a 20 review to determine whether or not an EIR would be 21 required? 22 MR. MICHNY: I don't -- I don't -- okay. This 23 process -- my involvement has been in and out of this for 24 probably the last seven years. I'm not sure -- to various 25 degrees. I'm not sure I can characterize accurately what CAPITOL REPORTERS (916) 923-5447 12599 1 my role was in determining, you know, in answer to your 2 question. 3 MR. JACKSON: Did you yourself have any 4 responsibility in the preparation of material which the 5 Bureau prepared in regard to the environmental effects of 6 this proposed action? 7 MR. MICHNY: Yes. I was involved with some of the 8 material that was being prepared by a contractor. The 9 actual analysis to develop the information was being 10 prepared by a contractor under the direct direction of the 11 State Board staff with assistance by Reclamation. 12 MR. JACKSON: Okay. What part did you play 13 yourself, sir? 14 MR. MICHNY: Probably, you know, some assistance 15 with characterization of the type of impacts that could 16 occur and then specifically with the section relating to 17 how those impacts could possibility be mitigated. 18 MR. JACKSON: All right. I take it since you were 19 working on mitigation of impacts that there was a finding 20 that there were impacts, correct? 21 MR. MICHNY: Well, there was a finding that there 22 were impacts within the EIR. 23 MR. JACKSON: Okay. Now, what impacts were 24 identified within the EIR that needed for you to work on 25 mitigation? CAPITOL REPORTERS (916) 923-5447 12600 1 MR. MICHNY: Well, I would reference Table 5-1 on 2 Page 2 in the EIR, which identifies -- I think it is 3 various, you know, water districts, various habitat types 4 and the number of acres as habitats -- the title of the 5 table is, "Habitats Affected and Associated Threatened 6 Species." And I believe if you add those up it comes to 7 approximately 49,000 acres plus or minus. 8 MR. JACKSON: And do you know where those acres are 9 located? 10 MR. MICHNY: Throughout the CVP in the -- what was 11 classified as the encroachment areas. 12 MR. JACKSON: And when that was identified then 13 somebody came to you and asked you to work on a mitigation 14 package? 15 MR. MICHNY: I don't know if I'd characterize it 16 like that. I would say in the course of discussions when 17 EIR identified these impacts and discussions ensued as to 18 how these impacts could be mitigated, I was involved in 19 discussions and provided my views as to how that could be 20 approached. 21 MR. JACKSON: All right. And the list of programs 22 which you identified to Mr. Campbell, is that the sole 23 list of mitigations that were identified? 24 MR. MICHNY: I think -- I think it captured the 25 substance. I believe the section in the EIR, if I'm not CAPITOL REPORTERS (916) 923-5447 12601 1 mistaken, that I wrote was approximately eight pages long, 2 plus or minus. The testimony I provided was I believe 3 about a page and a half, so it was more of a 4 capsulization, but I believe in essence it captured the 5 essence of the programs. 6 MR. JACKSON: All right. Calling your attention to 7 these mitigations, how do these programs mitigate the 8 development of presently undeveloped land within the 9 expanded place of use proposed for Santa Clara County? 10 MR. MICHNY: I don't think we have any mitigation 11 that I could point to and say this specifically mitigates 12 for any impact within Santa Clara County. 13 MR. JACKSON: And that would be true for all of the 14 other places within that 49,000 acres? 15 MR. MICHNY: Yes. If you're asking me if there's 16 specific mitigation identified for specific impacts, then, 17 yes, that's true. 18 MR. JACKSON: To your knowledge, were there any 19 specific impacts for each of the places in which the place 20 of use would be -- the place of use would be expanded to 21 include? 22 MR. MICHNY: I think we looked at them just in terms 23 of gross acres within the various areas. 24 MR. JACKSON: And there was no treatment of slope, 25 the difference between flat land and hilly land? CAPITOL REPORTERS (916) 923-5447 12602 1 MR. MICHNY: No. 2 MR. JACKSON: No difference between forested or 3 agricultural land? 4 MR. MICHNY: Well, the habitat types -- again, going 5 back to Table 1, we're basically talking about native 6 habitats that were being converted. 7 MR. JACKSON: All right. What native habitats were 8 being converted in Santa Clara County? 9 MR. MICHNY: I don't specifically recall the list of 10 habitats in Santa Clara County. 11 MR. JACKSON: What species were affected in Santa 12 Clara County? 13 MR. MICHNY: Right now I cannot tell you what those 14 species were. 15 MR. JACKSON: Thank you, sir. 16 Ms. Rupp, you indicate in your first page of your 17 testimony in the last paragraph you say that, 18 (Reading): 19 "Reclamation long ago recognized that there 20 were conflicts between your water right permits 21 and actual operations of the CVP." 22 What conflicts are you referencing there? 23 MS. RUPP: I'm just referencing the reality that we 24 operate in an integrated manner and the permits were 25 issued pursuant to a specific facility. And so in 1959 we CAPITOL REPORTERS (916) 923-5447 12603 1 attempted to consolidate the CVP maps to make it 2 consistent with our integrated operations. 3 MR. JACKSON: And that has not been done since 1959, 4 correct? 5 MS. RUPP: That's correct. 6 MR. JACKSON: So is it fair to say, then, that 7 Reclamation since 1959 has been operating in violation of 8 the permits? 9 MS. RUPP: No. It's fair to say that we've operated 10 in an integrated manner. 11 MR. JACKSON: And that the integrated manner 12 violated the permits? 13 MS. RUPP: No. It's just that there may be 14 inconsistencies. We don't account for the water based on 15 a single facility, we account for the Central Valley 16 Project. 17 MR. JACKSON: In your review of the inconsistencies 18 between the permits and your operations, did you notify 19 the operation folks that they were operating outside the 20 permits? 21 MS. RUPP: I don't know -- 22 MR. TURNER: Ms. Rupp just finished testifying that 23 there was no operation outside the permits. 24 C.O. STUBCHAER: Mr. Jackson. 25 MR. JACKSON: I'm looking, sir, at her testimony. CAPITOL REPORTERS (916) 923-5447 12604 1 (Reading): 2 "Reclamation long ago recognized that there 3 were conflicts between our water right permits 4 and actual operations of the CVP." 5 MR. TURNER: And Ms. Rupp testified that she was 6 talking about conflicts between the permits and the 7 integrated operation, not violation of the permits for 8 activities outside the permits, very critical distinction. 9 MR. JACKSON: Well, we'll find that out when we get 10 to court, but let me get the factual situation here. 11 C.O. STUBCHAER: I'm going to sustain that 12 objection, Mr. Jackson. 13 MR. JACKSON: All right. Was the fact that water 14 was used for a different purpose than the permits called 15 for one of the inconsistencies that you found? 16 MS. RUPP: No. 17 MR. JACKSON: How much M&I water does Reclamation 18 presently supply out of the Central Valley Project? 19 MS. RUPP: I don't know the totals offhand. 20 MR. JACKSON: Let's -- you have attached to your 21 testimony -- excuse me. 22 You were handed an exhibit earlier, Westlands 23 121, which is also Staff Exhibit 2, which is the notice of 24 petition for change and extension of time to complete the 25 use of water under permit 12721 and 18 others. CAPITOL REPORTERS (916) 923-5447 12605 1 MS. RUPP: Okay. 2 MR. JACKSON: Calling your attention to Table 1. 3 Now, on Table 1 there are a number of applications and 4 permits listed and I'd like to ask you some questions 5 about this table. 6 You indicated in your testimony that New Melones 7 was not part of the petition to consolidate and expand the 8 place of use and to conform purposes of use for the 9 Federal Central Valley Project? 10 MS. RUPP: It's not currently part. I believe in 11 our original petition New Melones was in there and it was 12 later amended. 13 MR. JACKSON: All right. So calling your attention 14 to this particular table, application number 1 -- on the 15 second sheet of the -- of Table 1, New Melones and the 16 Stanislaus River application number 14858(a) permit 16597 17 should be dropped from this table? 18 MS. RUPP: Yes. 19 MR. JACKSON: And calling your attention to sheet 20 three of three, application number 19304 and permit number 21 16600, the Stanislaus River, New Melones Dam should be 22 dropped from this petition? 23 MS. RUPP: Yes, that's correct. 24 MR. JACKSON: Okay. 25 MS. RUPP: Actually, the one above that the Stony CAPITOL REPORTERS (916) 923-5447 12606 1 Creek one is also no longer part of the petition. 2 MR. JACKSON: And that would be application number 3 18115, 13776? 4 MS. RUPP: Yes. 5 MR. JACKSON: Now, all of those had as one of the 6 purposes of use municipal, but we're dropping those, 7 correct? 8 MS. RUPP: Yes. 9 MR. JACKSON: All right. Now, presently is it fair 10 to say that on Page 1 the only two permits that allow 11 municipal and industrial use on the first page are the 12 310,000 acre-feet in permit number 12722, Sacramento 13 River, Shasta Dam, Delta-Mendota Canal; and permit number 14 12726, Rock Slough, Contra Costa Canal, are those the only 15 two that presently authorize municipal and industrial use? 16 MS. RUPP: On the first page that would appear to be 17 the case. 18 MR. JACKSON: All right. And Rock Slough is Contra 19 Costa Water District and is not available for anyone 20 else's use? 21 MS. RUPP: It's not exported from Contra Costa, 22 right. 23 MR. JACKSON: All right. So the only thing on the 24 first page that could be exported for municipal and 25 industrial use would be the Sacramento River permit 12722? CAPITOL REPORTERS (916) 923-5447 12607 1 MS. RUPP: Yes. 2 MR. JACKSON: Now, do you know where that water 3 presently goes? 4 MS. RUPP: No. As I said, we operate in an 5 integrated manner and I don't trace molecules from each 6 facility as to where it's delivered. 7 MR. JACKSON: Well, if that's municipal use on the 8 Sacramento River, you don't have any other facility other 9 than the Sacramento and the Trinity that could possibly 10 deliver muni and industrial water to the Sacramento 11 Valley, do you? 12 MS. RUPP: It would be within the area covered on 13 the -- in our Shasta permit. 14 MR. JACKSON: All right. And if it's inside the 15 area covered in the Shasta permit that was shown to you by 16 Mr. Atlas, then it would be a violation of the permit to 17 use it for municipal and industrial use outside the place 18 identified in the Shasta permit? 19 MS. RUPP: This permit says we're authorized to use 20 the water within the Shasta place of use for a municipal 21 and industrial purposes of the quantities specified. 22 MR. JACKSON: All right. And if it is -- again, 23 that water, if it were used for municipal and industrial 24 use outside of the map attached to permit number 12722, it 25 would be unauthorized? CAPITOL REPORTERS (916) 923-5447 12608 1 MS. RUPP: It would not be according to the permit, 2 yes. 3 MR. JACKSON: Now, calling your attention to the 4 second page, there is 300,000 acre-feet in permit number 5 11316 on the American River that could be used for 6 municipal, industrial, domestic and recreational uses? 7 MR. TURNER: If I could interrupt a second? 8 C.O. STUBCHAER: Mr. Turner. 9 MR. TURNER: I guess Ms. Rupp will address the 10 question. I was just questioning whether that 300,000 was 11 a quantity for storage versus direct diversion, or for M&I 12 versus irrigation. 13 MR. JACKSON: I was going to try to find out, 14 because this chart doesn't tell me that. 15 C.O. STUBCHAER: The column says "storage." 16 MR. JACKSON: That particular column says "storage." 17 MR. TURNER: Next to it is "direct diversion" with a 18 different quantity, so I'm presuming those are quantities 19 not by purpose of use but by type of diversion. I don't 20 know. That's why I was asking the question for 21 clarification. 22 MR. JACKSON: That's what I'm trying to find out on 23 this chart, because what I'm trying to do is to identify 24 whether anybody knows whether there's any municipal and 25 industrial water left that could be used outside -- in CAPITOL REPORTERS (916) 923-5447 12609 1 this new place of use -- 2 MR. TURNER: I think so -- 3 MR. JACKSON: -- or whether it would have to come 4 from the irrigators. 5 MR. TURNER: Ms. Rupp already testified on that as 6 well and said this petition is not being filed to modify 7 in any way the current allocations of water to 8 contractors. They don't need any new water if you're not 9 going to modify the contract supplies. 10 MR. JACKSON: Mr. Stubchaer, that sort of begs the 11 question: If M&I gets -- in some year gets 75 percent of 12 their allocation and irrigation gets 50, if you expand the 13 M&I use you're going to hammer the irrigators. 14 C.O. STUBCHAER: Why don't you proceed with the 15 question as expeditiously as possible. 16 MR. JACKSON: Do you know whether or not the 17 authorized amount of municipal and industrial water is 18 fully utilized at the present time? 19 MS. RUPP: No, I don't. I -- I know that we are not 20 entering into any new contracts. And I know that we're 21 doing an environmental analysis, but we approach it more 22 from a contractual commitment than from the permits. 23 MR. JACKSON: All right. Now, you've indicated here 24 in your testimony that you are not -- that it is the 25 policy of the CVP that they are not entering into any new CAPITOL REPORTERS (916) 923-5447 12610 1 contracts, correct? 2 MS. RUPP: It's my understanding that we were 3 directed to do an environmental analysis before we could 4 enter into any water service contracts. 5 MR. JACKSON: So if somebody did make an area of 6 origin claim for water and filed an application, it is the 7 policy of the Bureau at the present time that that 8 application would be turned down? 9 MR. TURNER: I object. We're talking again contract 10 versus application to appropriate, two totally different 11 concepts. 12 C.O. STUBCHAER: Please, clarify the question. I 13 agree with Mr. Turner's objection. 14 MR. JACKSON: Right, I did mix them up. 15 At the present time, if in the county in which I 16 live, which you can take hypothetically, would be within 17 the watershed of origin, if we apply for an additional 18 water right, or apply for a contract with the Bureau for 19 the delivery of water, what is the Bureau's present policy 20 in regard to our application? 21 MS. RUPP: A request for contracting water service 22 at this time I don't believe can be considered. 23 MR. JACKSON: All right. Now, calling -- in your 24 testimony on Page 2 you quote Decision 990. 25 MS. RUPP: Yes. CAPITOL REPORTERS (916) 923-5447 12611 1 MR. JACKSON: What was your purpose in quoting 990 2 in your testimony? 3 MS. RUPP: I think it was to express the intent of 4 the state in the concept of a comprehensive water project 5 and the integrated nature that was envisioned. 6 MR. JACKSON: So you are using Decision 990 to 7 support your concept of an integrated water program; is 8 that correct? 9 MS. RUPP: Yeah. 10 MR. JACKSON: Okay. Now, I'd like to ask you a few 11 questions about the quoted part here. What does "surplus 12 water" mean in the quote that you have used here? 13 MS. RUPP: I think that based on the references that 14 I've seen there was an understanding that in Northern 15 California there was a surplus water supply and in 16 Southern California there was a shortage of water. And 17 the idea was to have an integrated water project that 18 would move this surplus water in the north and export it 19 to the south. 20 MR. JACKSON: Is it your understanding that that 21 surplus water would ever be returned to the unirrigated 22 lands in the Sacramento Valley, for instance? 23 MS. RUPP: I don't know what you mean by "returned." 24 MR. JACKSON: Well, you quoted the book "Central 25 Valley Basin, A Comprehensive Departmental Report on the CAPITOL REPORTERS (916) 923-5447 12612 1 Development of the Water and Related Resources of the 2 Central Valley Basin" and comments from the State of 3 California and federal agencies, August 1949 -- 4 MS. RUPP: Yes, sir. 5 MR. JACKSON: -- in your testimony? 6 MS. RUPP: Yes, sir. 7 MR. JACKSON: Calling your attention to Page 66 -- 8 excuse me, Page 65, Paragraph 66, I would like to show 9 this to you and have you read the paragraph and then ask 10 you a couple of questions. 11 MS. RUPP: Okay. 12 MR. JACKSON: Would you, please, read it outloud. 13 MS. RUPP: Okay. 14 (Reading): 15 "In addition to respecting all existing water 16 rights the Bureau in this report has complied 17 with California's county of origin legislation 18 which requires that water shall be reserved for 19 the presently unirrigated lands of the areas in 20 which the water originates to the end that only 21 surplus waters will be exported elsewhere. 22 Next in importance after the areas having water 23 rights in the counties of origin are the areas 24 now under irrigation systems, but needing 25 supplemental water. The water requirements of CAPITOL REPORTERS (916) 923-5447 12613 1 such areas have also been given priority over 2 the needs of new areas." 3 MR. JACKSON: Now, in your quote from D-990 in your 4 testimony on Page 2, you quote that, 5 (Reading): 6 "For many years it had been the ambition of 7 those people concerned with water development 8 in the state to construct a project capable of 9 exporting surplus water from the Sacramento 10 Valley into the San Joaquin Valley and at the 11 same time provide a supplemental supply for 12 those water users in the Sacramento Valley 13 dependent upon the natural stream flow." 14 Does the review of the regional director's report 15 on the Central Valley basin from the comprehensive 16 departmental report on the development of water and 17 related resources change your view about what is meant by 18 "surplus water"? 19 MS. RUPP: No. 20 MR. JACKSON: Well, let's take a look at your 21 Exhibit 13-I. You see in the north of the Delta there is 22 a -- as you go north there is sort of a thinning of your 23 place of use in the Sacramento Valley going north? 24 MS. RUPP: That's true. 25 MR. JACKSON: There's a substantial amount of land CAPITOL REPORTERS (916) 923-5447 12614 1 in the Sacramento Valley that is outside of the present 2 place of use; is there not? 3 MS. RUPP: Yes. 4 MR. JACKSON: That's presently unirrigated land? 5 MS. RUPP: I don't know for a fact whether it's 6 irrigated or not. 7 MR. JACKSON: Is it your testimony that the Bureau 8 never committed to allowing that land to be irrigated in 9 the area of origins? 10 MS. RUPP: My understanding of the way that the 11 initial lines were drawn on the map based on the '49 12 report was that we looked at potential irrigatable lands 13 and drew them a boundary according to our estimates. We 14 opened up the contracting pursuant to the decisions in the 15 various CVP requirements to any entity in the Sacramento 16 basin that wanted to contract with us. 17 MR. JACKSON: And so if I hadn't been born at that 18 time, although I may have, but if I hadn't been born at 19 that time there was some time deadline in which if I now 20 buy land up there I will never be able to get water from 21 the Central Valley Project; is that your understanding? 22 MS. RUPP: If you wanted to contract in the future 23 with the Central Valley Project it would be based on an 24 available supply. If there were an identified supply 25 available you would be able to contract; if there wasn't, CAPITOL REPORTERS (916) 923-5447 12615 1 we have reserved amounts within our existing contracts for 2 future development, but for a new contract there was no 3 guarantee. 4 MR. JACKSON: And that's the Bureau's view of the 5 area of origin statute of the State of California? 6 MR. TURNER: Objection. That has nothing to do with 7 the area of origin. He asked about contracting policy. 8 C.O. STUBCHAER: Sustained. 9 MR. JACKSON: It is the Bureau's view that there is 10 no area of origin protection for the areas within the 11 watershed absent a Bureau contract? 12 MS. RUPP: No, I don't think that's what I said. I 13 said that as far as CVP water goes, we entered into 14 contracts with any entity that was interested and 15 identified present and future needs in the Sacramento 16 basin. We did that. If there's -- and then we entered 17 into other contracts. 18 If there's supplemental water available within 19 our CVP supply, we could enter into additional contracts. 20 If an entity wants water, then there are provisions in the 21 State Water Code that they can file an application like 22 any other water user and claim the area of origin 23 entitlement. 24 MR. JACKSON: So let's start with your idea of how 25 this works. In the -- as you understand it then, in order CAPITOL REPORTERS (916) 923-5447 12616 1 to ever have a chance to contract with the Bureau in one 2 of these areas that may need future irrigation supplies, 3 it would behoove such an individual to oppose any 4 expansion of the Bureau's use of water otherwise there 5 would never be any supplemental water available; is that 6 right? 7 MS. RUPP: I don't know that we're proposing to 8 enter into any contracts anyplace, new contracts. 9 MR. JACKSON: But we are going to expand the place 10 of use upon which water already contracted can be used, 11 correct? 12 MS. RUPP: That's true. 13 MR. JACKSON: And that may very well cause there to 14 be less water available in the future for those who wish 15 to contract within the watershed, correct? 16 MS. RUPP: It may or may not. 17 MR. JACKSON: Mr. Michny, did you do any examination 18 of the effect upon presently non-irrigated land within the 19 areas of origin of these CVP projects from the expansion 20 of either the place of use or the purpose of use? 21 MR. MICHNY: No, I did not. 22 MR. JACKSON: All right. Now, Ms. Rupp, going back 23 to your testimony on the first page, you indicate that 24 Reclamation initially -- and this is in the last paragraph 25 as well -- Reclamation initially filed a petition to CAPITOL REPORTERS (916) 923-5447 12617 1 correct those problems which we've identified in 1959. 2 And the next sentence indicates that that petition to 3 correct the problems was not acted upon due to the 4 objections raised by certain interests in the Sacramento 5 and San Joaquin Valleys. 6 Correct? 7 MS. RUPP: Yes. 8 MR. JACKSON: Essentially, as you've heard from some 9 of the San Joaquin parties and some of the Sacramento 10 Valley parties who have made particular objections to the 11 expansion of the place and the purpose of use, these same 12 discussions have been going on, these same differences 13 have been taking place since 1959? 14 MS. RUPP: I believe that's the case. 15 MR. JACKSON: And we're in precisely the same place 16 in this request that they were in in 1959, 1965 and 1985? 17 MS. RUPP: I would think so. 18 MR. JACKSON: Mr. Michny, when you were working on 19 the potential impacts of this proposal, did you look into 20 the positions of the parties in 1959, 1965 and 1985 who 21 claimed to be impacted by this proposal? 22 MR. MICHNY: No, I did not. 23 MR. JACKSON: Ms. Rupp, calling your attention, 24 again, to Table 1 of Staff Exhibit 2, or Westlands' 25 Exhibit 121, the petition -- the notice of petition for CAPITOL REPORTERS (916) 923-5447 12618 1 change and extension of time, is it the desire of 2 Reclamation to totally make available all CVP water for 3 municipal and industrial use? 4 MS. RUPP: No. 5 MR. JACKSON: How much of the available water would 6 be usable for municipal and industrial use under this 7 petition? 8 MS. RUPP: Under the petition itself it probably 9 would allow all of it to be used for M&I. It would allow 10 all of it to be used for irrigation. But the reality is 11 that we have water service contracts and we would be 12 fulfilling our contractual obligations. 13 MR. JACKSON: Now, Ms. Rupp, I thought that you 14 indicated in response to Mr. Atlas that you could not 15 fulfill your contractual obligations in every type of 16 water year at the present time? 17 MS. RUPP: I don't believe I had that specific 18 question. 19 MR. JACKSON: All right. Well, let's ask that 20 specific question: Can the Central Valley Project fulfill 21 all of its contractual obligations in every type of water 22 year? 23 MS. RUPP: No, I don't believe we can. 24 MR. JACKSON: Does the Central Valley Project have a 25 different standard in terms of deliveries for M&I water CAPITOL REPORTERS (916) 923-5447 12619 1 vis-a-vis irrigation water? 2 MS. RUPP: I'm not directly involved in the shortage 3 provision and that, but that would be my understanding 4 that that's correct. 5 MR. JACKSON: Mr. Michny, was there any attempt to 6 determine whether the transfer of the -- or the change of 7 the purpose of use from irrigation to make all of the 8 water available for M&I examined in terms of the 9 environmental impacts on agriculture of such a change? 10 MR. MICHNY: Not in any evaluation process I was 11 involved in. 12 MR. JACKSON: Do you know whether such a change in 13 purpose of use would make it less likely that in certain 14 water years irrigators would get as much water? 15 MR. MICHNY: Excuse me, could you recast the 16 question, I lost it? 17 MR. JACKSON: Sure, you're changing the purpose of 18 use -- 19 MR. MICHNY: Right. 20 MR. JACKSON: -- so that all of the water becomes 21 available for M&I. You're expanding your place of use. 22 Was there any environmental review to determine whether in 23 dry and critically dry years such a change would mean 24 there would be less water available to meet irrigation 25 contracts either above the Delta or below the Delta? CAPITOL REPORTERS (916) 923-5447 12620 1 MR. MICHNY: I am unaware of any such review. 2 MR. JACKSON: Thank you. I don't have any further 3 questions. 4 C.O. STUBCHAER: Thank you, Mr. Jackson. 5 Staff have any cross-examination questions -- 6 oh, Mr. Haroff? 7 MR. HAROFF: Mr. Stubchaer, Kevin Haroff with Santa 8 Clara Valley Water District. I wonder -- I did not 9 actually request an opportunity to do any 10 cross-examination, but in light of some of the testimony 11 that occurred this afternoon I wondered if I could ask 12 your indulgence for that brief opportunity this afternoon? 13 C.O. STUBCHAER: Mr. Haroff, the reason we went 14 through the order of cross-examination that we did was to 15 prevent people from listening to the previous examination 16 and asking questions and going last. 17 MR. HAROFF: I appreciate that, Mr. Stubchaer, but 18 it really has to do with just a couple of brief items that 19 came up during the course of the last hour that I didn't 20 anticipate would be testified to. 21 C.O. STUBCHAER: Well, I know nobody anticipates 22 when they request cross-examination. I'll tell you what, 23 I'll give you six minutes, is that adequate? 24 MR. HAROFF: I think that would be more than 25 adequate. CAPITOL REPORTERS (916) 923-5447 12621 1 C.O. STUBCHAER: Okay. 2 MR. HAROFF: Thank you very much. 3 C.O. STUBCHAER: And I'm getting stares of 4 disapproval from other folks. 5 MR. HAROFF: I'll try not to look around the room. 6 Thank you very much. 7 ---oOo--- 8 CROSS-EXAMINATION OF THE BUREAU OF RECLAMATION, 9 DEPARTMENT OF THE INTERIOR 10 BY SANTA CLARA VALLEY WATER DISTRICT 11 BY MR. HAROFF 12 MR. HAROFF: Ms. Rupp and Mr. Michny, my name is 13 Kevin Haroff. I'm an attorney with the Santa Clara Valley 14 Water District. I would really just like to ask some 15 brief questions to clarify some of the testimony that was 16 provided earlier this afternoon, because I got confused 17 particularly with respect to some of the questions that 18 Mr. Atlas was asking about some of the maps that were put 19 up on the board earlier in the afternoon. 20 Ms. Rupp, I would just like to ask you: Isn't it 21 your testimony that the service areas of agencies 22 contracting with the Bureau are the places of use for 23 water appropriated under CVP permit; isn't that an 24 accurate characterization of your testimony? 25 MS. RUPP: Can you repeat that, please? CAPITOL REPORTERS (916) 923-5447 12622 1 MR. HAROFF: That the service areas of agencies 2 contracting with the Bureau are the places of use for 3 water appropriated under CVP permits; is that accurate? 4 MR. JACKSON: Mr. Stubchaer, I'm going to object to 5 the question on the grounds that it assumes facts not in 6 evidence. 7 MR. HAROFF: Mr. Stubchaer, I'm just asking if 8 that's an accurate reflection of her testimony or not. It 9 either is or isn't. 10 C.O. STUBCHAER: If you recall, please, answer. 11 MS. RUPP: Okay. I think what my statement was is 12 that I believe that the conditions in the decisions 13 provided that our initial contract service area boundaries 14 were authorized for delivery. Does that answer your 15 question? 16 MR. HAROFF: Not exactly. 17 MS. RUPP: Oh, darn. 18 MR. HAROFF: What I'm trying to get at, Ms. Rupp, is 19 I understood your testimony from yesterday to essentially 20 be, at least with respect to Santa Clara Valley Water 21 District, under existing CVP permits the places of use for 22 water to be delivered within Santa Clara County 23 constitutes the service area of Santa Clara Valley Water 24 District; is that correct? 25 MS. RUPP: That was my statement. CAPITOL REPORTERS (916) 923-5447 12623 1 MR. HAROFF: That was your statement? 2 MS. RUPP: Yes. 3 MR. HAROFF: Okay. 4 MS. RUPP: But I don't know for a fact that that's 5 how the Board would interpret that. 6 MR. HAROFF: I appreciate that, I just wanted to 7 clarify what your testimony was during the course of these 8 proceedings. And to the extent that the maps that are 9 contained in the Draft Environmental Impact Report don't 10 necessarily reflect deliveries within the entire service 11 area, wouldn't those maps be to that extent be inaccurate? 12 MS. RUPP: Yes. 13 MR. HAROFF: Okay. And I also understood your 14 testimony from earlier today to the effect that the 15 actions being requested in the Bureau's petition will not 16 have any impact on the amount of water or the manner in 17 which water is delivered and used within Santa Clara 18 County; is that accurate? 19 MS. RUPP: That's correct. 20 C.O. STUBCHAER: Mr. Herrick. 21 MR. HERRICK: Notwithstanding the Board's earlier 22 ruling, but I don't see how this is clarification. I see 23 this as rehabilitation of the witness and I don't think 24 it's appropriate given the rules that we have set up 25 before this. CAPITOL REPORTERS (916) 923-5447 12624 1 C.O. STUBCHAER: I think that's right, Mr. Haroff. 2 MR. HAROFF: With respect to that last question -- 3 C.O. STUBCHAER: I'll sustain the question. 4 MR. HAROFF: That's fine, Mr. Stubchaer. I'll 5 withdraw it. 6 Mr. Michny, I just want to ask one or two 7 questions of you. Are you familiar with the San Felipe 8 Water distribution system? 9 MR. MICHNY: Not in any detail, no. 10 MR. HAROFF: Are you familiar with any environmental 11 impact report that was prepared in connection with the 12 construction of the San Felipe distribution system? 13 MR. MICHNY: Right at the moment I don't recall. 14 MR. HAROFF: Okay. That's all I wanted to ask right 15 now. Thank you very much. 16 C.O. STUBCHAER: Thank you, Mr. Haroff. 17 Staff have any questions of this panel? 18 MS. LEIDIGH: Mr. Canaday will start. 19 C.O. STUBCHAER: Mr. Canaday. 20 ---oOo--- 21 CROSS-EXAMINATION OF THE BUREAU OF RECLAMATION 22 DEPARTMENT OF THE INTERIOR 23 BY STAFF 24 MR. CANADAY: This is for the panel so you can 25 answer the question if you know. CAPITOL REPORTERS (916) 923-5447 12625 1 Ms. Rupp, you participated in the development of 2 the Draft EIR which is Staff Exhibit 2? 3 MS. RUPP: Yes, I did. 4 MR. CANADAY: And part of your participation was the 5 assistance in developing the maps of the places of use for 6 the different districts? 7 MS. RUPP: Yes. 8 MR. CANADAY: And in that preparation of those maps 9 the Bureau GIS system was used? 10 MS. RUPP: Yes. 11 MR. CANADAY: And that system generated the numbers 12 of acres either in or out of the place of use? 13 MS. RUPP: Yes. 14 MR. CANADAY: Mr. Michny, you did not participate in 15 the preparation of the EIR, but you more were involved in 16 the review of the EIR? 17 MR. MICHNY: I was in and out of the process over a 18 couple years, but I -- I would have to say I was involved 19 with part of the preparation, some of the discussions 20 about the impact areas. And, then, specifically the 21 section -- I believe is section five -- or chapter five. 22 That had to do with, you know, how mitigation was going to 23 be approached. I think I drafted -- I provided a first 24 draft of that, if I'm not mistaken. 25 MR. CANADAY: In that Chapter 5 it identifies -- CAPITOL REPORTERS (916) 923-5447 12626 1 well, first I will ask a question that both of you can 2 answer: 3 In the EIR the premise for the analysis in 4 looking at lands that were being petitioned we use the 5 words "encroached lands" and "expanded lands." Could you 6 explain your understanding of those two different 7 characterizations? 8 MR. MICHNY: You want me to? I'll give you my 9 understanding, if it's different than yours then you can 10 respond also. 11 My understanding is encroached lands are lands 12 that have already received CVP water. Expansion lands are 13 those lands that would be incorporated within the 14 corrected line, if you will, that, to date, have not yet 15 received CVP water. So it would be an expansion of use. 16 MR. CANADAY: So Chapter 5 primarily addresses 17 itself to those lands that would fall under the encroached 18 lands; is that correct? 19 MR. MICHNY: Yes. When I refer to Table 5-1 in 20 Chapter 5 it specifically talks about encroached lands. 21 MR. CANADAY: And you mention 49,000 and change, 22 that number would be 49,602 acres; is that correct? 23 MR. MICHNY: That is the number I have here, yes. 24 MR. CANADAY: Again, those acreages would have been 25 determined based on the GIS system provided to the CAPITOL REPORTERS (916) 923-5447 12627 1 preparers of the EIR by the Bureau; is that correct? 2 MR. MICHNY: Yes, to the best of my knowledge, yes. 3 MR. CANADAY: And in that 49,602 acres it is broken 4 out into various types of habitat types; is that correct? 5 MR. MICHNY: That's correct. 6 MR. CANADAY: Would you agree with me that most of 7 those lands are upland lands? 8 MR. MICHNY: Yes. I would agree the vast majority 9 are upland lands. 10 MR. CANADAY: Now, the various programs that the 11 Bureau has access to to provide mitigation for the 12 encroached lands, two important programs would be the 13 (b)(1) "other" program? 14 MR. MICHNY: That's one. 15 MR. CANADAY: And the (b)(1) program is designed to 16 mitigate for what types of lands are you aware? 17 MR. MICHNY: Well, the (b)(1) program is a program 18 that's designed to mitigate, as we put it, for impacts of 19 the CVP that were not specifically enumerated within the 20 statute. 21 MR. CANADAY: Okay. Would uplands be those types of 22 lands that would fall under the (b)(1) "other" program? 23 MR. MICHNY: Yes, they would. 24 MR. CANADAY: Okay. Another program that has been 25 identified in the mitigation chapter is the Central Valley CAPITOL REPORTERS (916) 923-5447 12628 1 Project Conservation Program? 2 MR. MICHNY: It's been renamed. It's now called the 3 Central Valley Conservation Program. 4 MR. CANADAY: Okay. And its purpose is to -- 5 MR. MICHNY: It's purpose -- it's a proactive 6 program undertaking -- undertaken under authority of 7 section 7(a)(1) of the Endangered Species Act to address 8 the needs of species that have been impacted by, you know, 9 various means, projects, whatever within the Central 10 Valley as a whole. Specifically geared towards, you know, 11 those impacts that may have been associated with the 12 Central Valley Project. 13 MR. CANADAY: Would you agree with me that the lands 14 and the species identified in Table 5-1 would be species 15 and lands that would fall under that program? 16 MR. MICHNY: Yes, I would. 17 MR. CANADAY: One question, Ms. Rupp, if I can find 18 your exhibit. It's Exhibit 13-J, which is a table of 19 applicable permit term and appropriate acreage for 20 environmental analysis for 26 districts included in the 21 place of use petition. 22 MS. RUPP: Yes, sir. 23 MR. CANADAY: Do the acreages referred to in this 24 table refer to lands that would fall under the encroached 25 lands, or lands that would fall under the expanded lands? CAPITOL REPORTERS (916) 923-5447 12629 1 MS. RUPP: They're a mixture. 2 MR. CANADAY: So it would be your testimony that 3 this would be the total acreage that would likely be -- 4 that the Bureau would be likely to mitigate for under this 5 particular petition? 6 MS. RUPP: If you included both encroachment and 7 expansion lands that would be the total. 8 MR. CANADAY: The total being the 47,800 acres? 9 MS. RUPP: That's correct. 10 MR. CANADAY: And how did you determine that? 11 MS. RUPP: I went back and looked at our contract 12 history for each of the 26 districts. I -- this occurred 13 after the DEIR was listed. I started looking at our 14 boundary issue in detail. And it occurred to me that 15 there may have been a miscommunication in that people 16 thought that we actually annexed a lot of land after we 17 did our initial contracts. And so I went back to 18 factually determine if that was the case. And what I 19 found out was that the initial contract service area 20 boundaries were not accurately reflected on the maps. 21 MR. CANADAY: For the sake of the question let's 22 assume that the 47,880 acres is a correct number. 23 MS. RUPP: Yes. 24 MR. CANADAY: How would we break these acres out to 25 understand the types of habitats and then the species that CAPITOL REPORTERS (916) 923-5447 12630 1 were impacted? 2 MS. RUPP: We could go back through the DEIR 3 analysis and reduce the acreage. I can show you where the 4 acreage occurs. Is that what you're asking? 5 MR. CANADAY: But there isn't an exhibit now that 6 staff could look at and determine what acres -- types of 7 acres and the type of species impacted was based on this 8 table? 9 MS. RUPP: No. I didn't go back through the DEIR 10 and do that kind of an analysis. 11 MR. CANADAY: Thank you. 12 C.O. STUBCHAER: Ms. Leidigh, do you have a 13 question? 14 MS. LEIDIGH: I just had one that is basically for 15 clarification with respect to the mitigation measures in 16 the Draft EIR. 17 Is there anyplace in the Draft EIR where those 18 mitigation measures are laid out specifically, or is it 19 just by reference to the various programs that are 20 discussed in Chapter 5? 21 MR. MICHNY: My recollection is there is not -- 22 there are not specific mitigation measures laid out for 23 specific impacts. 24 MS. LEIDIGH: Okay. That's what I needed to know. 25 Thank you. CAPITOL REPORTERS (916) 923-5447 12631 1 C.O. STUBCHAER: Board Members have questions? 2 C.O. BROWN: Yes, sir. 3 C.O. STUBCHAER: Mr. Brown. 4 C.O. BROWN: Thank you, Mr. Chairman. 5 ---oOo--- 6 CROSS-EXAMINATION OF THE BUREAU OF RECLAMATION 7 DEPARTMENT OF THE INTERIOR 8 BY BOARD MEMBERS 9 C.O. BROWN: I understand that the expanded lands 10 and the place of use will not require any more water 11 because of the contracts you have with the existing areas, 12 so the contract amount would remain the same? 13 MS. RUPP: That's correct. 14 C.O. BROWN: Do any of the expanded areas include 15 additional demands for domestic or M&I water? 16 MS. RUPP: I'm trying to -- the land -- are you -- 17 you said expansion lands, correct? 18 C.O. BROWN: Correct. 19 MS. RUPP: There may, in some instances, be areas 20 that do -- the districts do not use all of their 21 entitlement and there could be development in those areas, 22 yes, and they would use some of the water from their 23 contract in the future. 24 C.O. BROWN: Does the Bureau have a different 25 priority rate for domestic supplies as opposed to CAPITOL REPORTERS (916) 923-5447 12632 1 agriculture? 2 MS. RUPP: I don't believe so. 3 C.O. BROWN: During dry or critical dry years if 4 there is a shortage, is agriculture, is it, for instance, 5 cut back more than the domestic water users? 6 MS. RUPP: The municipal and industrial water 7 users -- 8 C.O. BROWN: Right. 9 MS. RUPP: -- I believe take less of a reduction 10 than the irrigators. 11 C.O. BROWN: Could this have an impact on the 12 agricultural community? 13 MS. RUPP: Could this petition have an impact? 14 C.O. BROWN: Yes. 15 MS. RUPP: I don't believe so. I think that if 16 there's an impact it would be on our general policy on the 17 water delivery. It wouldn't be based on permit 18 conditions. It would be based on our contracts. And so 19 that would be a matter for that policy area. 20 C.O. BROWN: Because you have -- 21 C.O. STUBCHAER: When you're through, I'll go ahead. 22 C.O. BROWN: I'm not sure I understand. So, again, 23 not meaning to be argumentative on this, I just want to 24 try to get some clarification: 25 The concern being that if we include additional CAPITOL REPORTERS (916) 923-5447 12633 1 areas for domestic or M&I water and if those areas have a 2 higher priority in usage during dry or critically dry 3 years then could some of the existing agricultural uses 4 take a hit in order to provide water for the domestic 5 uses? That's the question and I accept your answer, but 6 I'm not clear on it. 7 MS. RUPP: Yeah. 8 C.O. BROWN: I'm not sure -- 9 MS. RUPP: Well, I think the division of waters 10 pursuant to our contracts -- it would have to be based on 11 an M&I water service contractor that had water available 12 under the contract that's not currently being used and 13 then that water would be used in the future. And they 14 would take less of a reduction than an irrigator. So 15 under those circumstances that would be possible. 16 C.O. BROWN: Thank you, Mr. Chairman. 17 C.O. STUBCHAER: I think my question was answered 18 subsequent to the time I formulated it. So that concludes 19 the cross-examination of this panel. 20 Mr. Turner, do you have redirect? 21 MR. TURNER: Yes, I do Mr. Stubchaer. 22 C.O. STUBCHAER: Mr. Turner, it's close to 4:00 23 o'clock, how extensive is your redirect? 24 MR. TURNER: I imagine probably 15, 20 minutes. 25 C.O. STUBCHAER: Perhaps, it would be a good time to CAPITOL REPORTERS (916) 923-5447 12634 1 adjourn for the day so that the redirect questions will be 2 fresh in everyone's mind when recross starts. 3 MR. TURNER: I think that would be good. That way I 4 can make sure that I get some of the remaining redirect 5 questions -- 6 C.O. STUBCHAER: Of course, they don't like it, 7 because they won't have overnight to think of more 8 questions. Okay. Anything to come before us before we 9 adjourn? 10 Mr. Mooney? 11 MR. MOONEY: I just have one question with regards 12 to the schedule coming up for tomorrow. I have a very 13 longstanding conflict. My client, El Dorado Water Agency, 14 is way down the list, I know how sometimes these things 15 speed up at the last minute. And I was just wondering if 16 I can be -- either be able -- if it did speed up that we 17 would be able to put them on on Tuesday. 18 C.O. STUBCHAER: Would the San Luis Water District 19 be ready to step up should we get to that tomorrow? 20 UNIDENTIFIED MAN: No, sir. We have a similar 21 problem. 22 C.O. STUBCHAER: All right. Del 23 Puerto/Arvin-Edison? 24 UNIDENTIFIED MAN: He's not here. 25 C.O. STUBCHAER: And Westlands? CAPITOL REPORTERS (916) 923-5447 12635 1 MR. BIRMINGHAM: I'm not sure that we would be 2 ready, but Mr. Mooney's question is: What's the 3 likelihood that we're going to get to El Dorado County? 4 And given that we have the Department of Fish and Game, 5 Tehama Colusa Canal Authority and then SMUD, it's not 6 likely. 7 MR. MOONEY: Okay. 8 MR. BIRMINGHAM: And moreover, if Mr. Turner has 9 redirect of this panel that always gives us the 10 opportunity to ask recross. 11 C.O. STUBCHAER: Strictly limited, of course, right? 12 Okay. It looks -- I doubt if we'll get there, Mr. Mooney. 13 And we will accommodate you. 14 MR. MOONEY: Thank you very much. I'll probably be 15 here in the morning, but I can't be here in the afternoon. 16 C.O. STUBCHAER: Yes. Anyone else? Okay. We'll 17 see you at 9:00 in the morning. Adjourned. 18 (The proceedings concluded at 3:51 p.m.) 19 ---oOo--- 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 12636 1 REPORTER'S_CERTIFICATE __________ ___________ 2 3 STATE OF CALIFORNIA ) ) ss. 4 COUNTY OF SACRAMENTO ) 5 I, MARY R. GALLAGHER, certify that I was the 6 Official Court Reporter for the proceedings named herein, 7 and that as such reporter I reported in verbatim shorthand 8 writing those proceedings; that I thereafter caused my 9 shorthand writing to be reduced to typewriting, and the 10 pages numbered 12510 through 12636 herein constitute a 11 complete, true and correct record of the proceedings. 12 IN WITNESS WHEREOF, I have subscribed this 13 certificate at Sacramento, California, on this 3rd day of 14 April, 1999. 15 16 ________________________________ MARY R. GALLAGHER, CSR #10749 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 12637