STATE WATER RESOURCES CONTROL BOARD PUBLIC HEARING 1998 BAY-DELTA WATER RIGHTS HEARING HELD AT: BONDERSON BUILDING 901 P STREET SACRAMENTO, CALIFORNIA WEDNESDAY, MARCH 31, 1999 9:00 A.M. Reported by: ESTHER F. WIATRE CSR NO. 1564 CAPITOL REPORTERS (916) 923-5447 1 APPEARANCES BOARD MEMBERS: 2 JAMES STUBCHAER, COHEARING OFFICER 3 JOHN W. BROWN, COHEARING OFFICER MARY JANE FORSTER 4 MARC DEL PIERO 5 STAFF MEMBERS: 6 WALTER PETTIT, EXECUTIVE DIRECTOR VICTORIA WHITNEY, CHIEF BAY-DELTA UNIT 7 THOMAS HOWARD, SUPERVISING ENGINEER 8 JAMES CANADY, ENVIRONMENTAL SPECIALIST DAVID CORNELIUS, SENIOR CONTROL ENGINEER 9 10 COUNSEL: 11 WILLIAM R. ATTWATER, CHIEF COUNSEL BARBARA LEIDIGH 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 PRINCETON CODORA GLENN IRRIGATION DISTRICT, et al.: 3 FROST, DRUP & ATLAS 134 West Sycamore Street 4 Willows, California 95988 BY: J. MARK ATLAS, ESQ. 5 JOINT WATER DISTRICTS: 6 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON: 7 P.O. BOX 1679 Oroville, California 95965 8 BY: WILLIAM H. BABER III, ESQ. 9 CALIFORNIA SPORTFISHING PROTECTION ALLIANCE: 10 ROBERT J. BAIOCCHI P.O. Box 357 11 Quincy, California 12 BELLA VISTA WATER DISTRICT: 13 BRUCE L. BELTON, ESQ. 2525 Park Marina Drive, Suite 102 14 Redding, California 96001 15 WESTLANDS WATER DISTRICT: 16 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Capitol Mall, 27th Floor 17 Sacramento, California 95814 BY: THOMAS W. BIRMINGHAM, ESQ. 18 and AMELIA MINABERRIGARAI, ESQ. 19 THE BAY INSTITUTE OF SAN FRANCISCO: 20 GARY BOBKER 21 55 Shaver Street, Suite 330 San Rafael, California 94901 22 CITY OF ANTIOCH, et al.: 23 FREDERICK BOLD, JR., ESQ. 24 1201 California Street, Suite 1303 San Francisco, California 94109 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 LEAGUE OF WOMEN VOTERS: 3 ROBERTA BORGONOVO 2480 Union Street 4 San Francisco, California 94123 5 UNITED STATES DEPARTMENT OF THE INTERIOR: 6 OFFICE OF THE SOLICITOR 2800 Cottage Way, Room E1712 7 Sacramento, California 95825 BY: ALF W. BRANDT, ESQ. 8 and JAMES TURNER, ESQ. 9 10 CALIFORNIA URBAN WATER AGENCIES: 11 BYRON M. BUCK 455 Capitol Mall, Suite 705 12 Sacramento, California 95814 13 RANCHO MURIETA COMMUNITY SERVICES DISTRICT: 14 MCDONOUGH, HOLLAND & ALLEN 555 Capitol Mall, 9th Floor 15 Sacramento, California 95814 BY: VIRGINIA A. CAHILL, ESQ. 16 CALIFORNIA DEPARTMENT OF FISH AND GAME: 17 OFFICE OF ATTORNEY GENERAL 18 1300 I Street, Suite 1101 Sacramento, California 95814 19 BY: MATTHEW CAMPBELL, ESQ. 20 NATURAL RESOURCES DEFENSE COUNCIL: 21 HAMILTON CANDEE, ESQ. 71 Stevenson Street 22 San Francisco, California 94105 23 24 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 ARVIN-EDISON WATER STORAGE DISTRICT, et al.: 3 DOOLEY HERR & WILLIAMS 3500 West Mineral King Avenue, Suite C 4 Visalia, California 93291 BY: DANIEL M. DOOLEY, ESQ. 5 SACRAMENTO MUNICIPAL UTILITY DISTRICT: 6 LESLIE A. DUNSWORTH, ESQ. 7 6201 S Street Sacramento, California 95817 8 SOUTH SAN JOAQUIN IRRIGATION DISTRICT, et al.: 9 BRAY, GEIGER, RUDQUIST & NUSS 10 311 East Main Street, 4th Floor Stockton, California 95202 11 BY: STEVEN P. EMRICK, ESQ. 12 EAST BAY MUNICIPAL UTILITY DISTRICT: 13 EBMUD OFFICE OF GENERAL COUNSEL 375 Eleventh Street 14 Oakland, California 94623 BY: FRED S. ETHERIDGE, ESQ. 15 GOLDEN GATE AUDUBON SOCIETY: 16 ARTHUR FEINSTEIN 17 2530 San Pablo Avenue, Suite G Berkeley, California 94702 18 CONAWAY CONSERVANCY GROUP: 19 UREMOVIC & FELGER 20 P.O. Box 5654 Fresno, California 93755 21 BY: WARREN P. FELGER, ESQ. 22 THOMES CREEK WATER ASSOCIATION: 23 THOMES CREEK WATERSHED ASSOCIATION P.O. Box 2365 24 Flournoy, California 96029 BY: LOIS FLYNNE 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 COURT APPOINTED REPS OF WESTLANDS WD AREA 1, et al.: 3 LAW OFFICES OF SMILAND & KHACHIGIAN 601 West Fifth Street, Seventh Floor 4 Los Angeles, California 90075 BY: CHRISTOPHER G. FOSTER, ESQ. 5 CITY AND COUNTY OF SAN FRANCISCO: 6 OFFICE OF THE CITY ATTORNEY 7 1390 Market Street, Sixth Floor San Francisco, California 94102 8 BY: DONN W. FURMAN, ESQ. 9 CAMP FAR WEST IRRIGATION DISTRICT, et al.: 10 DANIEL F. GALLERY, ESQ. 926 J Street, Suite 505 11 Sacramento, California 95814 12 BOSTON RANCH COMPANY, et al.: 13 J.B. BOSWELL COMPANY 101 West Walnut Street 14 Pasadena, California 91103 BY: EDWARD G. GIERMANN 15 SAN JOAQUIN RIVER GROUP AUTHORITY, et al.: 16 GRIFFTH, MASUDA & GODWIN 17 517 East Olive Street Turlock, California 95381 18 BY: ARTHUR F. GODWIN, ESQ. 19 NORTHERN CALIFORNIA WATER ASSOCIATION: 20 RICHARD GOLB 455 Capitol Mall, Suite 335 21 Sacramento, California 95814 22 PLACER COUNTY WATER AGENCY, et al.: 23 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Capitol Mall, 27th Floor 24 Sacramento, California 95814 BY: JANET GOLDSMITH, ESQ. 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 ENVIRONMENTAL DEFENSE FUND: 3 DANIEL SUYEYASU, ESQ. and 4 THOMAS J. GRAFF, ESQ. 5655 College Avenue, Suite 304 5 Oakland, California 94618 6 CALAVERAS COUNTY WATER DISTRICT: 7 SIMON GRANVILLE P.O. Box 846 8 San Andreas, California 95249 9 CHOWCHILLA WATER DISTRICT, et al.: 10 GREEN, GREEN & RIGBY P.O. Box 1019 11 Madera, California 93639 BY: DENSLOW GREEN, ESQ. 12 CALIFORNIA FARM BUREAU FEDERATION: 13 DAVID J. GUY, ESQ. 14 2300 River Plaza Drive Sacramento, California 95833 15 SANTA CLARA VALLEY WATER DISTRICT: 16 MORRISON & FORESTER 17 755 Page Mill Road Palo Alto, California 94303 18 BY: KEVIN T. HAROFF, ESQ. 19 CITY OF SHASTA LAKE: 20 ALAN N. HARVEY P.O. Box 777 21 Shasta Lake, California 96019 22 COUNTY OF STANISLAUS: 23 MICHAEL G. HEATON, ESQ. 926 J Street 24 Sacramento, California 95814 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 GORRILL LAND COMPANY: 3 GORRILL LAND COMPANY P.O. Box 427 4 Durham, California 95938 BY: DON HEFFREN 5 SOUTH DELTA WATER AGENCY: 6 JOHN HERRICK, ESQ. 7 3031 West March Lane, Suite 332 East Stockton, California 95267 8 COUNTY OF GLENN: 9 NORMAN Y. HERRING 10 525 West Sycamore Street Willows, California 95988 11 REGIONAL COUNCIL OF RURAL COUNTIES: 12 MICHAEL B. JACKSON, ESQ. 13 1020 Twelfth Street, Suite 400 Sacramento, California 95814 14 DEER CREEK WATERSHED CONSERVANCY: 15 JULIE KELLY 16 P.O. Box 307 Vina, California 96092 17 DELTA TRIBUTARY AGENCIES COMMITTEE: 18 MODESTO IRRIGATION DISTRICT 19 P.O. Box 4060 Modesto, California 95352 20 BY: BILL KETSCHER 21 SAVE THE SAN FRANCISCO BAY ASSOCIATION: 22 SAVE THE BAY 1736 Franklin Street 23 Oakland, California 94612 BY: CYNTHIA L. KOEHLER, ESQ. 24 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 BATTLE CREEK WATERSHED LANDOWNERS: 3 BATTLE CREEK WATERSHED CONSERVANCY P.O. Box 606 4 Manton, California 96059 5 BUTTE SINK WATERFOWL ASSOCIATION, et al.: 6 MARTHA H. LENNIHAN, ESQ. 455 Capitol Mall, Suite 300 7 Sacramento, California 95814 8 CITY OF YUBA CITY: 9 WILLIAM P. LEWIS 1201 Civic Center Drive 10 Yuba City 95993 11 BROWNS VALLEY IRRIGATION DISTRICT, et al.: 12 BARTKEWICZ, KRONICK & SHANAHAN 1011 22nd Street, Suite 100 13 Sacramento, California 95816 BY: ALAN B. LILLY, ESQ. 14 CONTRA COSTA WATER DISTRICT: 15 BOLD, POLISNER, MADDOW, NELSON & JUDSON 16 500 Ygnacio Valley Road, Suite 325 Walnut Creek, California 94596 17 BY: ROBERT B. MADDOW, ESQ. 18 GRASSLAND WATER DISTRICT: 19 DON MARCIOCHI 22759 South Mercey Springs Road 20 Los Banos, California 93635 21 SAN LUIS CANAL COMPANY: 22 FLANNIGAN, MASON, ROBBINS & GNASS 3351 North M Street, Suite 100 23 Merced, California 95344 BY: MICHAEL L. MASON, ESQ. 24 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 STONY CREEK BUSINESS AND LAND OWNERS COALITION: 3 R.W. MCCOMAS 4150 County Road K 4 Orland, California 95963 5 TRI-DAM POWER AUTHORITY: 6 TUOLUMNE UTILITIES DISTRICT P.O. Box 3728 7 Sonora, California 95730 BY: TIM MCCULLOUGH 8 DELANO-EARLIMART IRRIGATION DISTRICT, et al.: 9 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 10 P.O. Box 1679 Oroville, California 95965 11 BY: JEFFREY A. MEITH, ESQ. 12 HUMANE FARMING ASSOCIATION: 13 BRADLEY S. MILLER 1550 California Street, Suite 6 14 San Francisco, California 94109 15 CORDUA IRRIGATION DISTRICT, et al.: 16 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 17 Oroville, California 95965 BY: PAUL R. MINASIAN, ESQ. 18 EL DORADO COUNTY WATER AGENCY: 19 DE CUIR & SOMACH 20 400 Capitol Mall, Suite 1900 Sacramento, California 95814 21 BY: DONALD B. MOONEY, ESQ. 22 GLENN COUNTY FARM BUREAU: 23 STEVE MORA 501 Walker Street 24 Orland, California 95963 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 MODESTO IRRIGATION DISTRICT: 3 JOEL MOSKOWITZ P.O. Box 4060 4 Modesto, California 95352 5 PACIFIC GAS & ELECTRIC: 6 RICHARD H. MOSS, ESQ. P.O. Box 7442 7 San Francisco, California 94120 8 CENTRAL DELTA WATER AGENCY, et al.: 9 NOMELLINI, GRILLI & MCDANIEL P.O. Box 1461 10 Stockton, California 95201 BY: DANTE JOHN NOMELLINI, ESQ. 11 and DANTE JOHN NOMELLINI, JR., ESQ. 12 TULARE LAKE BASIN WATER STORAGE UNIT: 13 MICHAEL NORDSTROM 14 1100 Whitney Avenue Corcoran, California 93212 15 AKIN RANCH, et al.: 16 DOWNEY, BRAND, SEYMOUR & ROHWER 17 555 Capitol Mall, 10th Floor Sacramento, California 95814 18 BY: KEVIN M. O'BRIEN, ESQ. 19 OAKDALE IRRIGATION DISTRICT: 20 O'LAUGHLIN & PARIS 870 Manzanita Court, Suite B 21 Chico, California 95926 BY: TIM O'LAUGHLIN, ESQ. 22 SIERRA CLUB: 23 JENNA OLSEN 24 85 Second Street, 2nd Floor San Francisco, California 94105 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 YOLO COUNTY BOARD OF SUPERVISORS: 3 LYNNEL POLLOCK 625 Court Street 4 Woodland, California 95695 5 PATRICK PORGANS AND ASSOCIATES: 6 PATRICK PORGANS P.O. Box 60940 7 Sacramento, California 95860 8 BROADVIEW WATER DISTRICT, et al.: 9 DIANE RATHMANN 10 FRIENDS OF THE RIVER: 11 BETSY REIFSNIDER 128 J Street, 2nd Floor 12 Sacramento, California 95814 13 MERCED IRRIGATION DISTRICT: 14 FLANAGAN, MASON, ROBBINS & GNASS P.O. Box 2067 15 Merced, California 95344 BY: KENNETH M. ROBBINS, ESQ. 16 CENTRAL SAN JOAQUIN WATER CONSERVATION DISTRICT: 17 REID W. ROBERTS, ESQ. 18 311 East Main Street, Suite 202 Stockton, California 95202 19 METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA: 20 JAMES F. ROBERTS 21 P.O. Box 54153 Los Angeles, California 90054 22 SACRAMENTO AREA WATER FORUM: 23 CITY OF SACRAMENTO 24 980 9th Street, 10th Floor Sacramento, California 95814 25 BY: JOSEPH ROBINSON, ESQ. CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 TUOLUMNE RIVER PRESERVATION TRUST: 3 NATURAL HERITAGE INSTITUTE 114 Sansome Street, Suite 1200 4 San Francisco, California 94194 BY: RICHARD ROOS-COLLINS, ESQ. 5 CALIFORNIA DEPARTMENT OF WATER RESOURCES: 6 DAVID SANDINO, ESQ. 7 CATHY CROTHERS, ESQ. P.O. Box 942836 8 Sacramento, California 94236 9 FRIANT WATER USERS AUTHORITY: 10 GARY W. SAWYERS, ESQ. 575 East Alluvial, Suite 101 11 Fresno, California 93720 12 KERN COUNTY WATER AGENCY: 13 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Capitol Mall, 27th Floor 14 Sacramento, California 95814 BY: CLIFFORD W. SCHULZ, ESQ. 15 SAN JOAQUIN RIVER EXCHANGE CONTRACTORS: 16 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON: 17 P.O. Box 1679 Oroville, California 95965 18 BY: MICHAEL V. SEXTON, ESQ. 19 SAN JOAQUIN COUNTY: 20 NEUMILLER & BEARDSLEE P.O. Box 20 21 Stockton, California 95203 BY: THOMAS J. SHEPHARD, SR., ESQ. 22 CITY OF STOCKTON: 23 DE CUIR & SOMACH 24 400 Capitol Mall, Suite 1900 Sacramento, California 95814 25 BY: PAUL S. SIMMONS, ESQ. CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 ORLAND UNIT WATER USERS' ASSOCIATION: 3 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 4 Oroville, California 95965 BY: M. ANTHONY SOARES, ESQ. 5 GLENN-COLUSA IRRIGATION DISTRICT: 6 DE CUIR & SOMACH 7 400 Capitol Mall, Suite 1900 Sacramento, California 95814 8 BY: STUART L. SOMACH, ESQ. 9 NORTH SAN JOAQUIN WATER CONSERVATION DISTRICT: 10 JAMES F. SORENSEN CONSULTING CIVIL ENGINEER, INC. 209 South Locust Street 11 Visalia, California 93279 BY: JAMES F. SORENSEN 12 PARADISE IRRIGATION DISTRICT: 13 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 14 P.O. Box 1679 Oroville, California 95695 15 BY: WILLIAM H. SPRUANCE, ESQ. 16 COUNTY OF COLUSA: 17 DONALD F. STANTON, ESQ. 1213 Market Street 18 Colusa, California 95932 19 COUNTY OF TRINITY: 20 COUNTY OF TRINITY - NATURAL RESOURCES P.O. Box 156 21 Hayfork, California 96041 BY: TOM STOKELY 22 CITY OF REDDING: 23 JEFFERY J. SWANSON, ESQ. 24 2515 Park Marina Drive, Suite 102 Redding, California 96001 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 TULARE IRRIGATION DISTRICT: 3 TEHAMA COUNTY RESOURCE CONSERVATION DISTRICT 2 Sutter Street, Suite D 4 Red Bluff, California 96080 BY: ERNEST E. WHITE 5 STATE WATER CONTRACTORS: 6 BEST BEST & KREIGER 7 P.O. Box 1028 Riverside, California 92502 8 BY: ERIC GARNER, ESQ. 9 COUNTY OF TEHAMA, et al.: 10 COUNTY OF TEHAMA BOARD OF SUPERVISORS: P.O. Box 250 11 Red Bluff, California 96080 BY: CHARLES H. WILLARD 12 MOUNTAIN COUNTIES WATER RESOURCES ASSOCIATION: 13 CHRISTOPHER D. WILLIAMS 14 P.O. Box 667 San Andreas, California 95249 15 JACKSON VALLEY IRRIGATION DISTRICT: 16 HENRY WILLY 17 6755 Lake Amador Drive Ione, California 95640 18 SOLANO COUNTY WATER AGENCY, et al.: 19 HERUM, CRABTREE, DYER, ZOLEZZI & TERPSTRA 20 2291 West March Lane, S.B.100 Stockton, California 95207 21 BY: JEANNE M. ZOLEZZI, ESQ. 22 WESTLANDS ENCROACHMENT AND EXPANSION LANDOWNERS: 23 BAKER, MANOCK & JENSEN 5260 North Palm Avenue 24 Fresno, Califonria 93704 BY: CHRISTOPHER L. CAMPBELL, ESQ. 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 SAN LUIS WATER DISTRICT: 3 LINNEMAN, BURGES, TELLES, VAN ATTA 1820 Marguerite Street 4 Dos Palos, California 93620 BY: THOMAS J. KEENE, ESQ. 5 6 ---oOo--- 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 1 INDEX PAGE 2 RESUMPTION OF HEARING: 12656 AFTERNOON SESSION: 12751 3 DEPARTMENT OF THE INTERIOR: 4 CONNIE RUPP FRANK MICHNY 5 REDIRECT EXAMINATION: BY MR. TURNER 12656 6 RECROSS-EXAMINATION: BY MR. BIRMINGHAM 12667 7 BY MR. ATLAS 12669 BY MR. NOMELLINI 12672 8 BY MR. KEENE 12678 BY MR. HERRICK 12687 9 DEPARTMENT OF FISH AND GAME: 10 OPENING STATEMENT: 11 BY MR. CAMPBELL 12697 JEFFREY SINGLE 12 DIRECT EXAMINATION: BY MR. CAMPBELL 12699 13 CROSS-EXAMINATION: BY MR. BIRMINGHAM 12708 14 BY MR. NOMELLINI 12743 BY MR. TURNER 12759 15 BY MR. KEENE 12767 BY MR. C. CAMPBELL 12787 16 BY MR. ATLAS 12809 BY MR. HERRICK 12812 17 BY STAFF 12821 BY BOARD MEMBERS 12824 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 1 INDEX (CONT.) 2 PAGE 3 TEHAMA-COLUSA CANAL AUTHORITY: 4 OPENING STATEMENT: BY MR. ATLAS 12826 5 GUS LOHSE CYNTHIA PETERSON 6 LEE EMRICK MICHAEL ALVES 7 DIRECT EXAMINATION: BY MR. ATLAS 12838 8 9 ---oOo--- 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 1 SACRAMENTO, CALIFORNIA 2 MARCH 31, 1999 3 ---oOo--- 4 C.O. STUBCHAER: Morning. We will reconvene the 5 Bay-Delta hearing. 6 According to my notes, we are going to have redirect 7 from the Department of the Interior. 8 Mr. Turner. 9 ---oOo--- 10 REDIRECT EXAMINATION OF DEPARTMENT OF THE INTERIOR 11 BY MR. TURNER 12 MR. TURNER: Thank you, Mr. Stubchaer. 13 I am going to be presenting some questions to you, Ms. 14 Rupp, and you, Mr. Michny, based upon my notes of some of 15 the statements that were made during the cross-examination 16 by the other witnesses, and so I will structure these in my 17 telling you what my notes reveal and feel free to tell me 18 whether my notes are off base. 19 I'll begin by asking you, Ms. Rupp, that I believe when 20 you were being cross-examined by Mr. Herrick that you stated 21 that Reclamation has on some occasions released water from 22 Shasta Dam in violation of the terms and conditions of the 23 Bureau's water rights permits. 24 First, if that is an accurate statement, is that really 25 a correct statement? CAPITOL REPORTERS (916) 923-5447 12656 1 MS. RUPP: No, it is not. 2 MR. TURNER: Could you explain to me -- first of all, 3 let me ask: Do the Bureau's water rights permits with 4 respect to the impoundments of water in Shasta Lake, do 5 those permits address the releases of water from Shasta 6 Lake? 7 MS. RUPP: No. They don't specifically say you could 8 only make a release for a certain reason. 9 MR. TURNER: So water can be released down the 10 Sacramento River without any kind of limitations or 11 restrictions under the permit? 12 MS. RUPP: That's true. 13 MR. TURNER: I take it that the permits address 14 rediversion of that water after release? 15 MS. RUPP: That's correct. 16 MR. TURNER: Now, the questions also have been 17 presented by a couple of the attorneys on cross-examination 18 with respect to, I guess, the role that the water rights 19 section of the contracting branch of the Bureau that you 20 used to supervise, what their precise role had been in 21 connection with the operations of the CVP. And I would like 22 to ask whether you or anyone else on that staff, while you 23 were supervising it, had ever been asked to identify the 24 precise purpose or purposes of use for which Reclamation is 25 releasing water from Shasta Dam for any specific purposes of CAPITOL REPORTERS (916) 923-5447 12657 1 rediversion, any specific occasion? In other words, before 2 the Bureau released water from Shasta Dam for some 3 rediversion purpose, did they come to your staff and say, 4 "Can we do this under our permits?" 5 MS. RUPP: No. 6 MR. TURNER: This was not done with your approval or 7 determination that any and all of those quantities of water 8 were, in fact, appropriate for rediversion under the 9 permits? 10 MS. RUPP: No. That is not our responsibility in the 11 water rights section. 12 MR. TURNER: Secondly, is Shasta Lake the only CVP 13 reservoir from which the Bureau releases water for 14 rediversion from the Sacramento River? 15 MS. RUPP: No, it is not. 16 MR. TURNER: How about from the Delta? Is that the 17 only storage facility from which water is released for 18 rediversions in the Delta? 19 MS. RUPP: No. 20 MR. TURNER: What other facilities would be involved 21 with respect to making releases of stored water for 22 rediversion in the Sacramento River? 23 MS. RUPP: From the CVP Whiskeytown and Folsom. 24 MR. TURNER: That would be in the Sacramento area 25 downstream of the confluence of the American and Sacramento CAPITOL REPORTERS (916) 923-5447 12658 1 Rivers? 2 MS. RUPP: Right. 3 MR. TURNER: As far as the Delta, Folsom and Whiskey 4 Town as well as Shasta would all have to be looked at as 5 sources of the water that might be rediverted? 6 MS. RUPP: That is correct. 7 MR. TURNER: Now, when you're trying to make a 8 determination as to the -- well, let me ask it this way: 9 Have you or your staff ever been asked to identify from 10 precisely which one of those reservoirs each acre-foot of 11 water that has been rediverted from the Sacramento River or 12 the Delta was, in fact, released? 13 MS. RUPP: No. 14 MR. TURNER: Well, to make -- I understand from your 15 previous question that in having to consider Shasta, Folsom 16 and Whiskey Town, that we need to be looking at the releases 17 that were made from all three of those reservoirs to 18 determine the source of water rediverted at the Delta at any 19 point in time? 20 MS. RUPP: Yes, that would be correct. 21 MR. TURNER: To make such a determination, would you -- 22 would losses have to be taken into account? 23 MS. RUPP: Yes. 24 MR. TURNER: Would the losses from all three of those 25 reservoirs vary? CAPITOL REPORTERS (916) 923-5447 12659 1 MS. RUPP: Yes. 2 MR. TURNER: What about the time at which the water 3 would need to be released from all those reservoirs in order 4 to be rediverted at some point on the Sacramento River or 5 from the Delta, wouldn't that vary among the reservoirs? 6 MS. RUPP: Yes. 7 MR. BIRMINGHAM: Objection. I believe Ms. Rupp has 8 testified that she is not an expert on operations. Mr. 9 Turner is now asking her questions related to the operations 10 of the project, and I would object on the ground it goes 11 beyond the scope of her expertise. 12 MR. TURNER: My response, Mr. Stubchaer, is that I 100 13 percent concur with Mr. Birmingham's objection, but for the 14 fact that throughout the cross-examination of Ms. Rupp each 15 and every one of the attorneys were specifically permitted 16 to ask Ms. Rupp her opinion on operations of the Central 17 Valley Project. In light of that, I felt it is essential to 18 try and point out that her function as a water rights 19 specialist and the actual operations of the CVP are not the 20 same situation, that her responses are, in fact, limited by 21 the fact that these specific analyses of the operations as 22 it relates to actual rediversions and releases is not 23 something that she has, in fact, analyzed. 24 I want to make it clear on the record that that is the 25 point. If we want -- if you would like to rule that any CAPITOL REPORTERS (916) 923-5447 12660 1 testimony that Connie or Ms. Rupp has presented in 2 connection with the operations of the project is irrelevant, 3 I would concur 100 percent and discontinue any further 4 discussion about her knowledge or her role in making the 5 operational decisions. 6 C.O. STUBCHAER: Mr. Birmingham. 7 MR. BIRMINGHAM: I think through Ms. Rupp's testimony 8 on redirect up to this point Mr. Turner has elicited 9 responses that she has not looked at the operations in 10 fulfilling her role as Chief of the Division of Water 11 Rights. 12 But now the questions that he is asking relates 13 specifically to operations, and I do believe that goes 14 beyond the scope of her expertise. 15 C.O. STUBCHAER: The objection is overruled. But the 16 Board will consider the expertise of the witness in the 17 operations questions in giving weight to the evidence. 18 MR. TURNER: Thank you, Mr. Stubchaer. 19 I think we could forego any further questioning on that 20 subject. I think we probably have presented enough for the 21 record to take care of that. Let's move on to another 22 subject. 23 Again, according to my notes, I believe that when you 24 were being cross-examined by Mr. Herrick, you had also 25 stated at one point that, as you recall, the Draft CAPITOL REPORTERS (916) 923-5447 12661 1 Environmental Impact Report that was prepared in connection 2 with this phase of the proceedings did not address the 3 environmental impacts of the Board's denial of the Bureau 4 petition. 5 If that statement is correct, did you make that 6 statement? Would that be a correct statement? 7 MS. RUPP: No, that would not be correct. 8 MR. TURNER: What, in fact, is the correct statement of 9 response to that question? 10 MS. RUPP: The DEIR identified that as the no project 11 alternative. 12 MR. TURNER: So, that is specifically addressed in the 13 DEIR? 14 MS. RUPP: Yes. 15 MR. TURNER: Then, moving on, I also have in my notes 16 that you made the statement, I think in response to a 17 question presented to you by Mr. Jackson, and I will read 18 what I have written here, "Reclamation cannot comply with 19 its CVP contracts during dry years." 20 If that is what you said, is that a correct statement? 21 MS. RUPP: No. 22 MR. TURNER: If you were addressing the deliveries of 23 water in compliance with contracts in dry years, how should 24 that correctly be responded to? 25 MS. RUPP: There are terms in the contracts that CAPITOL REPORTERS (916) 923-5447 12662 1 provide for water shortages in case of dry years. So even 2 though they may get less than an entitlement, it would still 3 be following the contract. 4 MR. TURNER: Thank you. 5 Next, I have an indication that in response to a 6 question I think that was being presented to you by Board 7 staff member Mr. Canady yesterday afternoon, you had -- I 8 think he had asked you whether you had identified the 9 specific encroachment lands and the expansion lands that 10 were included within the 47,880 acres of lands that Bureau 11 is now requesting be added to the CVP place of use. And I 12 think you advised him, according to my notes, that you had 13 not made that specific determination, but that that could be 14 made from the records that had been admitted. 15 If that -- could you please explain how you would go 16 about identifying each of those lands that are, in fact, 17 involved? 18 MS. RUPP: In the testimony in exhibits that 19 Reclamation has, we have maps that identify the specific 20 district that had annexed land, and those maps, Exhibits 21 13-K through 13-P, have acreage identified as to which 22 received CVP water and which do not. 23 MR. TURNER: Thank you. 24 I think my final question arose from some questions 25 that had been presented, I believe, by Mr. Jackson. There CAPITOL REPORTERS (916) 923-5447 12663 1 seem to be some confusion as to the, let's call it, the 2 variance between the scope of the Draft Environmental Impact 3 Report and the request that we had been making to the Board 4 today with respect to what lands needed to be included or 5 added to the CVP place of use. And I think Mr. Jackson was 6 pointing out that the DEIR was looking at a considerably 7 larger number of acres that we are now saying are really 8 appropriate or necessary for addition or inclusion. 9 Could you please summarize quickly for the Board how 10 that variance occurred, what had transpired or led to that 11 variance between DEIR on our current proposal. 12 MS. RUPP: I think originally when we did the 1985 13 petition we used the hand-drawn maps and then we drew the 14 section lines and it expanded the boundaries. In '95 we 15 modified our request, amended our request. We said we only 16 wanted to change the district boundaries. 17 When our GIS section drew the maps, they only looked at 18 the original hand-drawn maps that were submitted with 19 applications, and they attempted to digitize that. I am not 20 aware that anyone analyzed the conditions and looked at 21 whether or not the original contract service boundaries 22 were, in fact, authorized through the decisions and permits. 23 We only looked at the maps. 24 MR. TURNER: So at the time the DEIR was being put 25 together, there was further analysis done after those CAPITOL REPORTERS (916) 923-5447 12664 1 decisions had been made as to what could be identified as 2 encroachment lands, enlargement lands, and we subsequently 3 made a determination of less acres were, in fact, at issue? 4 After the DEIR had been prepared or was in the process of 5 being prepared, is that accurate? 6 MS. RUPP: I came on board in '96 to work on the 7 consolidated place of use petition. And when I came on 8 board it was expressed to me by staff in Reclamation that 9 the boundary issue was already decided. So I didn't really 10 look at it initially until through discussions it kind of -- 11 I started thinking, "Well, it seems to me the perception 12 here is that Reclamation has allowed these districts to 13 annex a lot of the additional land." And I questioned 14 whether that was, in fact, the case. 15 And so I started studying the district boundaries at 16 the time we entered into contracts, and I found that it 17 wasn't the case. 18 MR. TURNER: Thank you. 19 I just had one question for you, Mr. Michny. This was 20 to maybe see some clarification on one specific issue. And 21 that is, are there situations in which there will need to be 22 some kind of analysis done of the environmental impacts, 23 including impacts on fish and wildlife, that may result from 24 the annexation or, let me say, the inclusion of additional 25 acres within the CVP place of use? CAPITOL REPORTERS (916) 923-5447 12665 1 MR. MICHNY: Yes. To the extent that the inclusion, 2 which is it as you are characterizing, is a federal action, 3 and we will need to go through a federal environmental 4 review process. 5 MR. TURNER: I think you testified that review process 6 is being undertaken through the various studies and analyses 7 are, in fact, going on or scheduled along in the near 8 future? 9 MR. MICHNY: Well, the environmental review process 10 will be undertaken through the NEPA and ESA compliance 11 processes. I am just separating those from the programs 12 that are ongoing to address impacts. 13 MR. TURNER: Thank you. 14 I would have no further questions. 15 C.O. STUBCHAER: All right. Who wishes to 16 recross-examine this panel? 17 Mr. Atlas, Birmingham, Nomellini, Herrick -- and I 18 don't remember -- 19 MR. KEENE: You never do. Keene. 20 C.O. STUBCHAER: Ought to be put last for my 21 oversight. We can't do that. I will just state again as we 22 stated before that I am not going to entertain any late 23 requests to cross-examine this time. So if you think you 24 may want to recross, raise your hand now. 25 We will determine the order in a minute. CAPITOL REPORTERS (916) 923-5447 12666 1 The order will be Mr. Birmingham, Mr. Atlas, Mr. 2 Nomellini, Mr. Keene and Mr. Herrick. 3 Mr. Birmingham. 4 ---oOo--- 5 RECROSS-EXAMINATION OF DEPARTMENT OF THE INTERIOR 6 BY WESTLANDS WATER DISTRICT 7 BY MR. BIRMINGHAM 8 MR. BIRMINGHAM: Ms. Rupp, I have just a few questions 9 for you. 10 In response to a question asked of you by Mr. Turner, 11 the permits that are held by the Bureau of Reclamation for 12 operation of Shasta address releases of water, you responded 13 that they do not. 14 Are you familiar with Water Quality Order 90-5? 15 MS. RUPP: I can't say that I recall the specifics of 16 that water right order. 17 MR. BIRMINGHAM: Is there an obligation on the part of 18 Bureau of Reclamation to make releases of water from Shasta 19 Dam to maintain temperature in the Sacramento River? 20 MS. RUPP: I believe that there are some -- there is a 21 water right order to that effect. 22 MR. BIRMINGHAM: Does the permit that is held by the 23 Bureau for the operation of Shasta Dam contain minimum 24 releases for the protection of fish? 25 MS. RUPP: I'm sorry, I can't recall specifically. CAPITOL REPORTERS (916) 923-5447 12667 1 MR. BIRMINGHAM: In response to questions about sources 2 of water being rediverted from the Delta or the Sacramento 3 River, you identified Shasta Dam, Trinity Lake and Folsom 4 Dam as sources of water for rediversion from the Sacramento 5 River or the Delta? 6 MS. RUPP: Yes. 7 MR. BIRMINGHAM: Is water released from Trinity Lake 8 into the Sacramento River? 9 MS. RUPP: From Whiskey Town, yes, Reservoir. Goes 10 into the Sacramento River. 11 MR. BIRMINGHAM: Is there a tunnel directly from 12 Trinity Lake to the Sacramento River which is used for power 13 generation? 14 MS. RUPP: I would have to look at a map of our 15 facilities to be able to answer that question. 16 MR. BIRMINGHAM: One of the other sources of water for 17 diversion from the Delta is Old River; is that correct? 18 MS. RUPP: Yes. 19 MR. BIRMINGHAM: The water diverted from Old River is 20 diverted by the Bureau under Water Rights Decision 1020? 21 MS. RUPP: Yes. 22 MR. BIRMINGHAM: No further questions. 23 C.O. STUBCHAER: Mr. Atlas. 24 ---oOo--- 25 // CAPITOL REPORTERS (916) 923-5447 12668 1 RECROSS-EXAMINATION OF DEPARTMENT OF THE INTERIOR 2 BY TEHAMA-COLUSA CANAL AUTHORITY 3 BY MR. ATLAS 4 MR. ATLAS: Ms. Rupp, I want to clarify something that 5 Mr. Birmingham just asked you about. I believe your 6 testimony in answer to Mr. Turner's questions was that the 7 three reservoirs that were available for release for 8 reversion into the Delta were Shasta, Folsom and Whiskey 9 Town. You answered Whiskeytown; isn't that right? 10 MS. RUPP: Whiskeytown Reservoir, I believe. 11 MR. ATLAS: A moment ago, just to be sure that the 12 record is clear, in fact, Whiskeytown is something of a 13 regulating reservoir for releases from Trinity; is that 14 right? 15 MS. RUPP: I guess -- I can't answer that question. I 16 don't know the specifics on the Trinity Division. It's been 17 way too long. I would have to go back and look at that 18 information. 19 MR. ATLAS: I think Mr. Birmingham covered it, though. 20 In fact, the three reservoirs that release water that can be 21 rediverted at the Delta are Shasta, Trinity and Folsom. Is 22 that a more accurate characterization of the project? 23 MS. RUPP: I couldn't say whether it is or is not. 24 MR. ATLAS: You also testified about the cutbacks that 25 from time to time the Bureau has to make in water deliveries CAPITOL REPORTERS (916) 923-5447 12669 1 to its contractors. 2 In fact, isn't it your understanding that essentially 3 every year the United States makes an announcement of the 4 percentage of contract quantity that its various classes of 5 contractors will receive that year; is that right? 6 MS. RUPP: I don't know that for a fact. I don't work 7 in the contracts section, so I couldn't make that 8 statement. 9 MR. ATLAS: Mr. Turner did ask you about your knowledge 10 in dry years there are -- in dry years you understand that 11 the Bureau announces a particular percentage or particular 12 quantity that a particular contractor is going to receive; 13 isn't that right? 14 MS. RUPP: That is my understanding, yes. 15 MR. ATLAS: You also said that, with respect to 16 releases and rediversion at the Delta, that this required 17 some release and then some calculation of losses, in effect 18 some sort of accounting, right? 19 MS. RUPP: Some sort of accounting for what purpose? 20 MR. ATLAS: You didn't use that term; that was my 21 term. 22 Just before Mr. Birmingham objected to your expert -- 23 whether or not you were going to testify about your 24 operational expertise, you made a statement that, in answer 25 to one of Mr. Turner's questions, that something to the CAPITOL REPORTERS (916) 923-5447 12670 1 effect that in releasing water for reversion at the Delta 2 there would have to be releases from these reservoirs, and 3 then there would have to be some calculation made of losses. 4 You remember that testimony? 5 MS. RUPP: Yes. 6 MR. ATLAS: My point is that the Bureau makes these 7 kinds of calculations and determinations all the time, 8 doesn't it? It determines what water is released from a 9 reservoir, how much is lost and how much can be delivered to 10 its contractors, doesn't it? 11 MS. RUPP: Yes. That is the responsibility of the 12 Central Valley Project office which integrates and manages 13 the facilities. 14 MR. ATLAS: They do it under the provisions of their 15 water rights permits issued by this Board, don't they? 16 MS. RUPP: Yes. 17 MR. ATLAS: If a permit has a condition on it that 18 limits the amount that can be released or the purpose for 19 which it can be released or the contractors to whom it is 20 delivered, those are no different than that kind of 21 calculations we talked about a few moments ago, are they? 22 MS. RUPP: I don't know of any condition in any of our 23 permits that limits the amount of release. I am not aware 24 of any. 25 MR. ATLAS: What about the other factors: the amount CAPITOL REPORTERS (916) 923-5447 12671 1 that can be delivered to a particular contractor? 2 Strike that. Let me ask the question this way: If a 3 permit contained conditions that limited the amount that 4 could be released, the time at which it could be released, 5 the place in which it could be used, those are all things 6 that could be calculated as you understood it, aren't they? 7 MS. RUPP: I imagine that it is possible to do that. I 8 don't think it is within the scope of what the intent of 9 what the Central Valley Project was. 10 MR. ATLAS: Right. We have heard that. 11 Thank you. 12 C.O. STUBCHAER: Mr. Nomellini. 13 ---oOo--- 14 RECROSS-EXAMINATION OF DEPARTMENT OF THE INTERIOR 15 BY CENTRAL DELTA PARTIES 16 BY MR. NOMELLINI 17 MR. NOMELLINI: Mr. Chairman, Members of the Board, 18 Dante John Nomellini for Central Delta Parties. 19 Ms. Rupp, with regard to the testimony that you gave on 20 whether or not it was possible to calculate the amounts of 21 water from the various reservoirs in accordance with 22 permits, is it your contention that the Bureau does not 23 already do that? 24 MS. RUPP: Yes. We integrate the operations and 25 calculate numbers for the Central Valley Project. CAPITOL REPORTERS (916) 923-5447 12672 1 MR. NOMELLINI: In your role as the Chief of Water 2 Rights have you ever seen a water license report prepared by 3 the Bureau of Reclamation? 4 MS. RUPP: A water -- a permitting report? 5 MR. NOMELLINI: Yes. 6 MS. RUPP: Yep, I have seen those. 7 MR. NOMELLINI: It is your contention there is no such 8 breakdown in accordance with the permit requirement in such 9 reports? 10 MS. RUPP: My recollection is that we group the Central 11 Valley Project, and we include information on inflow and 12 outflow from the various reservoirs in that report. But all 13 of the facilities are grouped and we submit it as a group. 14 MR. NOMELLINI: You recall when the last time was that 15 you reviewed such a report involving the Central Valley 16 Project operations in California? 17 MS. RUPP: I know that we are behind on our permitting 18 reports. I think we submitted some in '97, I believe. 19 MR. NOMELLINI: So, the last time you reviewed a report 20 was in '97? 21 MS. RUPP: Yes. 22 MR. NOMELLINI: You testified in response to the 23 redirect questions about original hand-drawn maps. Is it 24 your contention that the original hand-drawn maps that you 25 have been referring to were submitted as part of the CAPITOL REPORTERS (916) 923-5447 12673 1 application by the Bureau to the State Water Resources 2 Control Board for the licenses and permits given to the 3 Bureau? 4 MS. RUPP: Yes. They were submitted with our 5 applications. 6 MR. NOMELLINI: Now, could you define what an original 7 hand-drawn map is? 8 MS. RUPP: Original hand-drawn map. It would be a map 9 of the area that somebody drew the boundary on at the time 10 that we submitted the application. 11 MR. NOMELLINI: Have you compared the maps, original 12 hand-drawn maps, that you've worked with in preparation of 13 your testimony here with the maps on file with the State 14 Water Resources Control Board? 15 MS. RUPP: No. That was done prior to my coming on 16 Board. So I personally did not do that. 17 MR. NOMELLINI: Do you know that the original 18 hand-drawn maps that you used are the same as the maps in 19 the file of the State Water Resources Control Board? 20 MS. RUPP: I don't know specifically which maps were 21 used. As I said, that was done before I came on Board. So 22 I was told that that was what was done. 23 MR. NOMELLINI: If I told you that an original 24 hand-drawn map in the file of the State Water Resources 25 Control Board is, in fact, a blueprint of a map, does that CAPITOL REPORTERS (916) 923-5447 12674 1 fit your definition of an original hand-drawn map? 2 MS. RUPP: I don't know what a blueprint of a map would 3 look like. 4 MR. NOMELLINI: Do you know what a map reproduction 5 is? 6 MS. RUPP: A copy. Is that what you are talking 7 about? 8 MR. NOMELLINI: A map reproduction would be a copy. 9 Are you familiar with a blueprinting process of reproducing 10 maps? 11 MS. RUPP: No, I'm sorry, I am not. 12 MR. NOMELLINI: Do you have workpapers and the 13 so-called original hand-drawn maps that formulated the basis 14 for your testimony? 15 MS. RUPP: Do I have -- I don't have workpapers on the 16 GIS boundary. As I said, that was established before I came 17 on board. I have the papers to provide the background 18 information on the original contract service area 19 boundaries. 20 MR. NOMELLINI: You have the workpapers for which your 21 calculations were produced or from which your calculations 22 were produced for the testimony in this hearing, do you not? 23 MS. RUPP: Yes. 24 MR. NOMELLINI: Where are those located? 25 MS. RUPP: They are located in the water rights section CAPITOL REPORTERS (916) 923-5447 12675 1 in the Sacramento office. 2 MR. NOMELLINI: With regard to the hand-drawn maps that 3 you said you reviewed for the purpose of computing the 4 acreages, where are those maps located that you used? 5 MS. RUPP: I used the GIS maps that were submitted as 6 representing the hand-drawn maps, and those GIS maps are on 7 the computer in our GIS section in the water division. 8 MR. NOMELLINI: So that in preparation of your 9 testimony here you did not use the original hand-drawn maps, 10 but used the GIS maps that you believe were reproduced from 11 those original hand-drawn maps? 12 MS. RUPP: That's correct. 13 MR. NOMELLINI: Have you seen these original hand-drawn 14 maps to which you make reference? 15 MS. RUPP: I have looked at several maps that we have 16 on file in our historical records. I don't know if those 17 were the specific ones submitted with our application. 18 MR. NOMELLINI: Do you recall what areas were depicted 19 on the maps that you did review from your records? 20 MS. RUPP: They were similar to the GIS drawings. 21 MR. NOMELLINI: Did they have any numbers on them that 22 you recall? 23 MS. RUPP: Yes. 24 MR. NOMELLINI: Go ahead. 25 MS. RUPP: I was going to say I wouldn't recall CAPITOL REPORTERS (916) 923-5447 12676 1 specific numbers, but our maps are numbered and identified. 2 MR. NOMELLINI: Do you have any notes in your 3 workpapers in connection with the testimony produced here 4 that would indicate which of those so-called original 5 hand-drawn map numbers you looked at? 6 MR. BIRMINGHAM: Objection. This line of questioning 7 goes well beyond the scope of the redirect examination. 8 C.O. STUBCHAER: Mr. Nomellini. 9 MR. NOMELLINI: I don't think so. I am at the end, but 10 Mr. Turner brought this mapping question up again. It was 11 in response to his redirect that the witness testified about 12 the original hand-drawn maps. And so I think I am within 13 the scope of redirect, and I do not intend to burden the 14 proceeding much longer with it, but I think I am entitled to 15 an answer to the last question. 16 C.O. STUBCHAER: You may proceed. 17 MR. NOMELLINI: Do your notes contain a reference to 18 the map numbers of the original hand-drawn maps that you 19 recall looking at? 20 MS. RUPP: I don't recall whether I specifically 21 referenced those or not. As I said, I relied on the GIS 22 maps primarily, although I did look at original maps. 23 MR. NOMELLINI: It is your contention, is it not, that 24 the maps used in the Draft Environmental Impact Report are 25 different than the maps that you used for your testimony? CAPITOL REPORTERS (916) 923-5447 12677 1 MS. RUPP: No. The maps in the DEIR are similar. The 2 boundary lines have changed in the maps that I submitted in 3 the exhibit. 4 MR. NOMELLINI: Which are correct, DEIR maps or the 5 maps that you submitted? 6 MS. RUPP: I believe mine are correct. 7 MR. NOMELLINI: The DEIR maps were submitted by the 8 Bureau to the staff of the State Board, were they not? 9 MS. RUPP: Yes. 10 MR. NOMELLINI: In fact, the Bureau prepared the Draft 11 EIR that is being used by the State Board staff? 12 MS. RUPP: The contractor prepared. Reclamation wasn't 13 called to any extent. As I said, the question is one of 14 boundary was in or out. It's not -- the maps themselves are 15 the same. 16 MR. NOMELLINI: But the map of what constitutes an area 17 within the permitted place of use is different? 18 MS. RUPP: Right. 19 MR. NOMELLINI: Thank you very much. 20 C.O. STUBCHAER: Mr. Keene. 21 ---oOo--- 22 RECROSS-EXAMINATION OF DEPARTMENT OF THE INTERIOR 23 BY THE SAN LUIS WATER DISTRICT 24 BY MR. KEENE 25 MR. KEENE: I have some questions for each of you. CAPITOL REPORTERS (916) 923-5447 12678 1 Mr. Michny, you testified on redirect that, as I 2 understood it, that the federal government or the Bureau of 3 Reclamation is in the process of preparing some documents 4 for NEPA compliance in regard to this application; is that 5 correct? 6 MR. MICHNY: No, it is not correct. 7 MR. KEENE: You testified in regard to there being 8 preparation of some NEPA documents underway. I am not clear 9 what those are. 10 MR. MICHNY: My testimony under redirect was that at 11 the time that there is a federal action to include lands 12 within our service areas, i.e., we are talking about these 13 expansion lands, that at that point Reclamation will do an 14 appropriate environmental review relative to that federal 15 action. That is what my testimony was on redirect. 16 MR. KEENE: Was there any NEPA document that was 17 prepared in regard to this application? 18 MR. MICHNY: No, there was not. 19 MR. KEENE: This NEPA document that you anticipate may 20 be created at some time in the future, would that apply to 21 the encroachment lands as well? 22 MR. MICHNY: It would apply to whatever lands are the 23 subject of the federal action that are being included 24 within the service areas. That may or may not include areas 25 that are called encroachment lands. CAPITOL REPORTERS (916) 923-5447 12679 1 MR. KEENE: The encroachment lands, as I understand it, 2 are lands already within the boundaries of the districts and 3 have been receiving water but may have been outside of the 4 map with regard to the place of use. So, I don't understand 5 your answer in light of my understanding of the definition 6 of what these lands are. 7 The expansion of the district, the area where water can 8 be delivered, would that include the expansion of current 9 district -- I am sorry, of your -- of the boundaries as they 10 exist to include what was annexed after those boundaries? 11 MR. MICHNY: No. Just to clarify. If the lands are -- 12 if the expansion lands or encroachment lands are already 13 within the district boundary, there would be no federal 14 action taken to include those lands, because they are 15 already within the boundaries. So there would be no 16 environmental compliance activities on the federal level 17 relative to the inclusion of those lands. That clarifies 18 the point. 19 MR. KEENE: f petition and 17 the resulting need for those encroachment lands to secure 18 water from a different source? 19 MS. RUPP: Yes. I believe on each of the district 20 analyses there is mention of whether alternative sources of 21 water are available. 22 MR. HERRICK: That is not an answer to my question. 23 That identifies there are the sources. I am asking whether 24 or not examines the effects or securing or using other 25 sources. CAPITOL REPORTERS (916) 923-5447 12694 1 MS. RUPP: I believe that that is mentioned in the 2 DEIR. Whether it's sufficient in your mind, I don't know. 3 MR. HERRICK: That is all I have. 4 Thank you, Mr. Chairman. 5 C.O. STUBCHAER: Mr. Herrick. 6 Does staff have any recross-examination questions? 7 Mr. Brown? 8 C.O. BROWN: No, sir. 9 C.O. STUBCHAER: Mr. Turner, do you have any exhibits 10 at this time or did you consolidate? 11 MR. TURNER: Excuse me just one second. 12 Thank you. Yes, I would like to offer the Department 13 of Interior Exhibits 13 through 13-P and 14 through 14-A for 14 admission in the record to support the testimony presented 15 by Ms. Rupp and Mr. Michny. 16 C.O. STUBCHAER: Any objections? 17 Seeing none, they are accepted. 18 Does that conclude -- 19 MR. TURNER: That would conclude the presentation to be 20 made by the Department of the Interior in this case. 21 C.O. STUBCHAER: Thank you, Ms. Rupp, Mr. Michny, for 22 your participation. Appreciate it. 23 Mr. Birmingham. 24 MR. BIRMINGHAM: I would move admission of Westlands 25 Water District Exhibits 117, 118, 119, 120 and 121. CAPITOL REPORTERS (916) 923-5447 12695 1 C.O. STUBCHAER: Any objections? 2 They are accepted. 3 Anyone else? 4 Mr. Atlas. 5 MR. ATLAS: We move for the admission of TCCA Exhibit 6 21, the overhead map of the Shasta place of use. 7 C.O. STUBCHAER: Any objections? 8 It is accepted. 9 Anything else? 10 Next will be the direct case in chief of the Department 11 of Fish and Game, excuse me. 12 MR. C. CAMPBELL: While they are transferring over, Mr. 13 Chair, I would like to enter in an appearance. My name is 14 Christopher Campbell. I represent landowners within 15 Westlands Water District who own encroachment and expansion 16 properties. We have submitted testimony and will be 17 presenting that as part of a panel with Westlands later on. 18 Just wanted to enter in and appearance now. I have 19 given my card to the reporter. I will give you one so you 20 will remember my name. 21 C.O. STUBCHAER: Thank you. Hopefully. That is 22 Westlands encroachment landowners? 23 MR. C. CAMPBELL: Yes. Encroachment and expansion 24 landowners. I wanted to enter an appearance because I will 25 want to cross-examine Fish and Game. CAPITOL REPORTERS (916) 923-5447 12696 1 C.O. STUBCHAER: We are going to differentiate between 2 two Campbells. 3 MR. C. CAMPBELL: That is right. 4 C.O. STUBCHAER: Morning, Mr. Campbell. 5 ---oOo--- 6 DIRECT EXAMINATION OF DEPARTMENT OF FISH AND GAME 7 BY MR. CAMPBELL 8 MR. CAMPBELL: Morning, Mr. Chairman, Members of the 9 Board, Board staff. My name is Matt Campbell. I am a 10 Deputy Attorney General appearing on behalf of the State of 11 California, Department of Fish and Game. 12 According to the hearing notice in Phase VII of this 13 Bay-Delta water rights hearing, the Board will decide 14 whether or not to approve, subject to terms and conditions, 15 the U.S. Bureau of Reclamation's petition to change the 16 places of use and purposes of use in its water rights 17 permits for integrated parts of the federal Central Valley 18 Project. The Board's regulatory basis for its action 19 regarding this petition include the Board's continuing 20 police power authority over all water rights under the 21 common law Public Trust Doctrine and its responsibilities 22 under the California Environmental Quality Act and the 23 California Endangered Species Act. 24 The Draft Programmatic Environmental Impact Report for 25 the Bureau's petition identifies two types of lands CAPITOL REPORTERS (916) 923-5447 12697 1 requested for an increase in the authorized place of use for 2 CVP water under the Bureau's permits, expansion lands and 3 encroachment lands. 4 Expansion lands are defined in the Draft EIR as areas 5 outside the authorized place of use as described in the 6 Bureau's water rights permits that have never received CVP 7 water but have contracted for such water. Encroachment 8 lands are defined as areas that have already received CVP 9 water, but are outside the authorized place of use. 10 The Department of Fish and Game's witness in Phase VII 11 is Dr. Jeffrey Single, a senior biologist supervisor, will 12 testify as to DFG's environmental concerns regarding the 13 Bureau's proposal to increase the authorized place of use to 14 include expansion lands and encroachment lands. 15 As a representative of the State's trustee agency for 16 the effective resources and as a biological expert witness, 17 Dr. Single will also provide DFG's recommendations for 18 effective evaluation of the environmental impacts of the 19 proposed actions and for the implementation of mitigation 20 measures and other terms and conditions necessary to protect 21 public trust resources. 22 In essence, DFG recommends that the Board impose a 23 series of general impact evaluation and monitoring measures 24 that would apply to any decision the Board makes on the 25 Bureau's petition. CAPITOL REPORTERS (916) 923-5447 12698 1 For proposed Changes 1, 3a and 3b, as described in the 2 DEIR, DFG also recommends specific conditions that are 3 necessary for adequate impact assessment mitigation design 4 and protection of public trust resources, including species 5 listed under the California Endangered Species Act. 6 In summary, the Department of Fish and Game believes 7 that its evidence and recommendations in Phase VII will 8 assist the Board in its evaluation and regulation of 9 Bureau's proposed changes in the place of use of its CVP 10 water rights permits pursuant to the Board's powers and 11 responsibilities under CEQA, the Public Trust Doctrine and 12 the California Endangered Species Act. 13 Thank you. 14 After that opening statement I would like to call Dr. 15 Jeffrey Single. 16 C.O. STUBCHAER: Mr. Campbell, let's do it after the 17 morning break. 18 MR. CAMPBELL: That would be fine. 19 C.O. STUBCHAER: We are in recess for 12 minutes. 20 (Break taken.) 21 C.O. STUBCHAER: We will reconvene the hearing. 22 Mr. Campbell, has your witness taken the oath? 23 MR. CAMPBELL: Yes, he has. 24 Dr. Single, will you please state and spell your full 25 name and title. CAPITOL REPORTERS (916) 923-5447 12699 1 DR. SINGLE: My name is Jeffrey R. Single; 2 J-e-f-f-r-e-y S-i-n-g-l-e. I am currently Senior Biologist 3 supervisor with the Department of Fish and Game in the 4 Southern Sierra, San Joaquin Valley region. 5 MR. CAMPBELL: Are you familiar with DFG Exhibit 9, 6 your statement of qualifications as an expert witness? 7 DR. SINGLE: Yes, I am. 8 MR. CAMPBELL: Is DFG Exhibit 9 a true and correct copy 9 of that document? 10 DR. SINGLE: Yes, it is. 11 MR. CAMPBELL: Is there one correction, and update, you 12 would like to make to that statement of qualifications to 13 reflect your new position? 14 DR. SINGLE: It should be updated to reflect my new 15 position with the Department of Fish and Game as I stated 16 earlier. 17 MR. CAMPBELL: Are you familiar with DFG Exhibit 30? 18 DR. SINGLE: Yes. 19 MR. CAMPBELL: Is DFG Exhibit 30 a true and correct 20 copy of your written testimony? 21 DR. SINGLE: Yes. 22 MR. CAMPBELL: Are there some updates and corrections 23 that you would like to make to your written testimony? 24 DR. SINGLE: There are two typos on this testimony. 25 One is in the heading where we refer to Phase VII petition. CAPITOL REPORTERS (916) 923-5447 12700 1 We refer to integrated parts of the Bay-Delta Water Rights 2 Hearing. It should refer to Central Valley Project instead. 3 Similarly, Part B in the first paragraph we refer to 4 integrated parts of the Bay-Delta Water Rights Hearing. 5 That should also be replaced by CVP. 6 MR. CAMPBELL: In addition to those two typographical 7 errors, are you aware of some other updates and corrections 8 that were submitted to the Board staff on your behalf on 9 March 22, 1999? 10 DR. SINGLE: Yes, I am. 11 MR. CAMPBELL: I would like to ask the Board and Board 12 staff for guidance. How would you like us to enter the 13 changes into the record? It occurs to me there are two ways 14 that we can do that. One, he could read those changes into 15 the record orally, and it would be in the transcript. Or 16 two, to make things quicker, we could mark the March 22 17 letter with the updates and corrections that was served upon 18 all parties as DFG 30-A and just have that entered into the 19 record. 20 C.O. STUBCHAER: Let's do that. 21 MR. CAMPBELL: I so request that the March 22, 1999, 22 letter regarding Bay-Delta Water Rights Hearing, Phase VII, 23 updates and corrections to the written testimony of Dr. 24 Jeffrey Single be marked as DFG Exhibit 30-A. 25 Those corrections accurately reflect the current state CAPITOL REPORTERS (916) 923-5447 12701 1 of your written testimony; is that correct? 2 DR. SINGLE: Yes, that is correct. 3 MR. CAMPBELL: Are you familiar with DFG Exhibit 31 4 Revised? 5 DR. SINGLE: Yes, I am. 6 MR. CAMPBELL: What is that document? 7 DR. SINGLE: The revised recovery plan. 8 MR. CAMPBELL: If you could please state the title of 9 that document. 10 DR. SINGLE: Correct title is "Recovery Plan for 11 Uplands Species of the San Joaquin Valley, California." It 12 is the final version of the draft recovery plan submitted in 13 our original exhibits. 14 MR. CAMPBELL: Did you receive a copy of that document 15 from the United States Fish and Wildlife Service in the 16 regular course and scope of your employment with the 17 Department of Fish and Game? 18 DR. SINGLE: Yes, I did. 19 MR. CAMPBELL: Have you reviewed Exhibit 31 Revised? 20 DR. SINGLE: Yes, I have. 21 MR. CAMPBELL: Have you relied upon your review of DFG 22 31 Revised as part of the basis for formulating your expert 23 opinion as stated in your written testimony? 24 DR. SINGLE: Well, essentially, I have but my testimony 25 was prepared at the time the draft that we submitted was CAPITOL REPORTERS (916) 923-5447 12702 1 available. 2 MR. CAMPBELL: Does the change from the draft recovery 3 plan to the final recovery plan change the substance of your 4 expert opinion as reflected in your written testimony? 5 DR. SINGLE: No, it doesn't. 6 MR. CAMPBELL: Returning your attention to DFG Exhibit 7 30, would you please summarize your testimony. 8 DR. SINGLE: Well, I will try to be brief. You have 9 our testimony. I thought it was fairly straightforward. 10 Overall, the Department's purpose is to encourage the Board 11 to adequately evaluate the biological consequences of the 12 Board's actions and adopt appropriate conditions in trying 13 to deal with those resources and effects of the proposed 14 changes on them. 15 With that in mind, we provided some fairly broad 16 general recommendations to the Board trying to match the 17 programmatic nature of the Draft EIR. 18 Regarding proposed Change 1, conforming the authorized 19 uses and proposed change use, consolidated place of use, the 20 Department basically concur with these proposals. We have 21 no recommendations except that we request that the Board 22 include fish and wildlife enhancements, water quality and 23 salinity control as authorized uses. And in this regard our 24 position appears to be fairly consistent with the Department 25 of Interior's. CAPITOL REPORTERS (916) 923-5447 12703 1 Regarding Change 3a, adjustments to the place of use to 2 include already encroached lands, I should note that we are 3 not advocating withdrawing water service from any lands 4 currently receiving water. I would like to point out that 5 the Draft EIR may have underestimated the extent of 6 encroachments and the extent of their impacts by not 7 analyzing the influence of CVP water supply, facilitating 8 encroachments, even if this water was not delivered to 9 encroached lands at the time or if these lands are not 10 currently being supplied by the CVP, and also in not 11 evaluating the effects of CVP water in maintaining 12 encroachments, regardless of what water facilitated the 13 initial conversion. 14 If the Board determines to approve Change 3a as 15 written, we have recommended some ways to develop 16 appropriate conditions and guide mitigations and conditions 17 for this proposed change. 18 Regarding Change 3b, the adjusted place of use to 19 include expansion lands, as it is written, our 20 recommendation is that the Board deny this change. And that 21 is simply based on fact that as it is written there is some 22 things that just don't seem right. 23 For one thing the, scope of the adjustment is 700-, 24 800,000 acres. But there is assertions in the draft EIR 25 that there is only estimated supply for about 21,000 acres. CAPITOL REPORTERS (916) 923-5447 12704 1 So, we think the proposed scope of expansion is not 2 consistent with the proposed supply. Even though this 3 21,000-acre figure, as stated in the Draft EIR, there 4 appears to be nothing that actually limits CVP supply to 5 21,000 plus or minus acres. 6 So, in theory, in that expansion area there could be 7 impacts from water supplied throughout the expansion area up 8 to the full extent of it if there were enough water to go 9 around. The Draft EIR really does not provide clear 10 guidance for impact assessment and mitigation in this area. 11 And, finally, the role of the Board in subsequent CEQA 12 processes, as they are tiered into this program, EIR seems 13 fairly restricted to us, and we feel there would be better 14 environmental review if the Board were involved in further 15 CEQA process. Now, again, if your Board determines to 16 approve this Change 3b, we again made some recommendations 17 on regarding how to evaluate the impacts and how to 18 establish appropriate levels of mitigation and cooperative 19 collaborative process with the Department of Fish and Game. 20 To summarize our concerns in several points, from 21 reading the Draft EIR, one gathers there has been a loss of 22 native habitat, possible take of threatened of endangered 23 plants and animals and possible other impacts to fish, 24 wildlife and their habitats. These impacts may have been 25 underestimated in the Draft EIR. There appears to have been CAPITOL REPORTERS (916) 923-5447 12705 1 no monitoring or attempts to control the encroachment 2 areas. There is really no mitigation for past 3 encroachments, and appears that expansion into the -- 4 expansion of the authorized place of use could cause 5 indeterminate amount of additional impacts. The Draft EIR 6 does not establish very good guidance for mitigating these 7 additional impacts. It refers to the Bureau programs 8 intended to benefit biological sources affected by the 9 Central Valley Project, but these programs by themselves 10 really do not establish mitigation for the impacts of the 11 proposed changes. 12 Similarly, the Draft EIR recommends compliance with 13 state and federal Endangered Species Acts; that, of course, 14 is a good thing. But compliance with those acts does not 15 necessarily ensure that there will be suitable mitigation 16 for the biological and ecological impacts of the proposed 17 actions. And, again, we believe that public trust resources 18 would be better served if the Board asserted its role in 19 subsequent CEQA processes. It appears that the Board is 20 deferring its role in CEQA to local agencies. And the other 21 factor to consider is that there may not be any further 22 environmental review from any of the land use changes that 23 could happen following these proposed changes. 24 So, that's about it. I don't need to lecture the Board 25 on your responsibilities. I will point out that in this CAPITOL REPORTERS (916) 923-5447 12706 1 case this is one of the situations where the Board has more 2 apparent effect on Department of Fish and Game's public 3 trust resources than the Department does at the moment, and 4 whatever you decide we are just here to encourage you to 5 consider biological effects of your actions and to consider 6 working with the Department and your staff and ours to 7 develop appropriate mitigation and conditions that could 8 alleviate those. 9 That's all I have to say. 10 C.O. STUBCHAER: Thank you, Dr. Single. 11 MR. CAMPBELL: Mr. Chairman, I have one more direct 12 examination question to ask which I neglected to do at the 13 outset. 14 Dr. Single, is DFG Exhibit 31 Revised a true and 15 correct copy of that document? That is the U.S. Fish and 16 Wildlife Recovery Plan? 17 DR. SINGLE: Yes, it is. 18 C.O. STUBCHAER: Ready for cross-examination? 19 MR. CAMPBELL: Yes, we are. 20 C.O. STUBCHAER: Who wishes to cross-examine this 21 panel? 22 Mr. Birmingham, Mr. Campbell, Mr. Keene, Mr. Atlas, Mr. 23 Turner, Mr. Nomellini, Mr. Herrick. 24 Would have been easier to ask who isn't going to 25 cross-examine. CAPITOL REPORTERS (916) 923-5447 12707 1 Please do the cards. 2 MR. BIRMINGHAM: Excuse me, Mr. Chairman. 3 C.O. STUBCHAER: Mr. Birmingham. 4 MR. BIRMINGHAM: I again have to be to a meeting this 5 afternoon upstairs, with the Board's -- 6 C.O. STUBCHAER: Would anyone object if Mr. Birmingham 7 volunteered to go first? 8 Seeing no objections, please proceed. 9 ---oOo--- 10 CROSS-EXAMINATION OF DEPARTMENT OF FISH AND GAME 11 BY WESTLANDS WATER DISTRICT 12 BY MR. BIRMINGHAM 13 MR. BIRMINGHAM: Dr. Single, my name is Tom Birmingham. 14 I am an attorney that represents Westlands Water 15 District. I have a few questions for you. 16 You started off your oral summary of your written 17 testimony Department of Fish and Game Exhibit 30 by stating 18 it addresses the biological consequences of the Board's 19 actions; is that correct? 20 C.O. STUBCHAER: Dr. Single, I believe it is up to you 21 to answer. 22 DR. SINGLE: That sounds correct. That's my intent. 23 MR. BIRMINGHAM: And the Board's action that you are 24 referring to is the potential decision by the Board on the 25 change petition filed by the Department of the Interior, CAPITOL REPORTERS (916) 923-5447 12708 1 Bureau of Reclamation. 2 DR. SINGLE: Yes. 3 MR. BIRMINGHAM: From your written testimony and the 4 oral summary of your written testimony, Department of Fish 5 and Game Exhibit 30, I take it that generally it is the 6 Department of Fish and Game's position that mitigation 7 should be provided when an action has a biological or 8 ecological consequence? 9 DR. SINGLE: Yes. 10 MR. BIRMINGHAM: If a project will not have any 11 biological or ecological consequence, then there is no need 12 for mitigation? 13 DR. SINGLE: With regard to the resources that are our 14 trust, yeah, that appears reasonable. 15 MR. BIRMINGHAM: Dr. Single, you may have to speak up. 16 Your voice tends to trail off at the end of your sentence. 17 DR. SINGLE: I will try to attend to that. 18 MR. BIRMINGHAM: Thank you. 19 Your testimony states on Page 3 that the Department of 20 Fish and Game is committed to integrated water resource 21 management. That statement is made under Paragraph 2b on 22 Page 3 of the Department of Fish and Game Exhibit 30; is 23 that correct? 24 DR. SINGLE: Yes. 25 MR. BIRMINGHAM: Now, when you say that the Department CAPITOL REPORTERS (916) 923-5447 12709 1 of Fish and Game is committed to integrated water resource 2 management, that means that the Department of Fish and Game 3 supports the integrated management of the state's water 4 resources? 5 DR. SINGLE: Essentially, the intent there is to 6 establish that we believe that this and other resources need 7 to be dealt with on a large system basis. 8 MR. BIRMINGHAM: That is because when you deal with 9 resources of this nature on a large system basis, it's more 10 feasible to balance environmental and ecological benefits 11 and harm? 12 DR. SINGLE: Yes, that is one consequence. 13 MR. BIRMINGHAM: On Page 2 of Department of Fish and 14 Game Exhibit 30, you state that substantial encroachment has 15 occurred outside the place of use? 16 DR. SINGLE: Yes. 17 MR. BIRMINGHAM: And the place of use that you are 18 referring to is the place of use authorized in the permits 19 held by the Bureau of Reclamation? 20 DR. SINGLE: Yes. As presented in the Draft EIR. 21 MR. BIRMINGHAM: And your testimony, Department of Fish 22 and Game Exhibit 30, goes on to state that encroachment has 23 resulted significant losses of natural lands? 24 DR. SINGLE: That is a conclusion I reached from the 25 material in the Draft EIR. CAPITOL REPORTERS (916) 923-5447 12710 1 MR. BIRMINGHAM: Encroachment, as that term is used in 2 the EIR, means the delivery of CVP water to lands outside 3 the place of use that has already occurred? 4 DR. SINGLE: Yes. 5 MR. BIRMINGHAM: Looking at Page 2 of Department of 6 Fish and Game Exhibit 30, Paragraph 1c, you make a 7 statement: 8 USBR to provide an analysis of the role of 9 CVP water in maintaining land uses in 10 encroached lands that were established 11 without CVP water. (Reading.) 12 DR. SINGLE: Yes. 13 MR. BIRMINGHAM: When you use the term "encroached 14 lands" in that statement, are you using the definition of 15 encroached lands contained in the Draft Environmental Impact 16 Report? 17 DR. SINGLE: That was my intent, yes. 18 MR. BIRMINGHAM: In fact, encroached lands -- withdraw 19 that. 20 Dr. Single, isn't it correct that it was the 21 conversion of land from its natural condition to 22 agricultural production that resulted in the loss of natural 23 lands? 24 DR. SINGLE: In many cases, yes. 25 MR. BIRMINGHAM: In what cases can you think of wasn't CAPITOL REPORTERS (916) 923-5447 12711 1 it the -- when we're talking about farmland, wasn't it -- in 2 what cases wasn't it the conversion of the land from its 3 natural condition to agricultural production that resulted 4 in the loss of natural land? 5 DR. SINGLE: I didn't realize you were restricting the 6 question to farmland. It is also conversion to urban 7 development that cause loss of natural habitats. 8 MR. BIRMINGHAM: If I restrict my question to the loss 9 of natural lands -- 10 DR. SINGLE: Yes. 11 MR. BIRMINGHAM: -- that resulted from agricultural 12 production, it was the conversion of the land from its 13 natural condition to agricultural production that resulted 14 in the loss of natural lands? 15 DR. SINGLE: With that restriction, yes. 16 MR. BIRMINGHAM: If land were dry farmed, the 17 conversion of land to dry farming would have resulted in the 18 loss of natural lands? 19 DR. SINGLE: Yes. 20 MR. BIRMINGHAM: If lands were irrigated with 21 groundwater, it would have been the conversion of those 22 lands to agricultural production that would have resulted in 23 the loss of natural lands? 24 DR. SINGLE: If I understand your question correctly, 25 yes. CAPITOL REPORTERS (916) 923-5447 12712 1 MR. BIRMINGHAM: Let me restate the question to make 2 sure that you understand it. If lands were irrigated with 3 groundwater, it would have been the conversion of those 4 lands from their natural condition to agricultural 5 production with irrigated groundwater that would have 6 resulted in the loss of natural lands? 7 DR. SINGLE: Yes. 8 MR. BIRMINGHAM: So on Page 2 of your testimony, 9 Department of Fish and Game Exhibit 30, when you say that 10 substantial encroachment has occurred outside the authorized 11 place of use, it doesn't necessarily result that the 12 encroachment caused the loss of natural lands? 13 DR. SINGLE: I don't think that necessarily follows. 14 My understanding was that material from the DEIR attempted 15 to establish that there was a conversion due to 16 encroachment. 17 MR. BIRMINGHAM: Perhaps you can point to me in the 18 DEIR where it says that it was the delivery of project water 19 to places outside the place of use that resulted in the 20 conversion of the lands from their natural condition to 21 agricultural production. 22 DR. SINGLE: I don't have that at hand; that may take 23 me a minute to find. 24 MR. BIRMINGHAM: Let me follow up with some other 25 questions. I would like to draw your attention to CAPITOL REPORTERS (916) 923-5447 12713 1 Department of Interior Exhibit 13-P, which is a map of 2 Westlands Water District. 3 Have you reviewed Department of the Interior Exhibit 4 13-P? 5 DR. SINGLE: Only in a very cursory manner. I have not 6 tried to analyze it or make particular sense out of it. 7 MR. BIRMINGHAM: Isn't it correct, Dr. Single, that 8 prior to the delivery of project water to lands within the 9 San Luis Unit of the Central Valley Project, landowners had 10 to make a showing that the land had previously been 11 irrigated? 12 DR. SINGLE: I don't know. 13 MR. BIRMINGHAM: In fact, you don't know which lands 14 that are currently outside the place of use were dry farmed 15 before they received CVP water? 16 DR. SINGLE: I currently am not aware of that. 17 MR. BIRMINGHAM: You don't know how much land that is 18 defined as encroachment land was irrigated with groundwater 19 before it received CVP water? 20 DR. SINGLE: I don't have that information. 21 MR. BIRMINGHAM: So, you don't know if it was the 22 delivery of CVP water that resulted in the loss of natural 23 lands? 24 DR. SINGLE: Well, when I looked at Table III-7 in the 25 Draft EIR, there are figures on Page III-3. There is a CAPITOL REPORTERS (916) 923-5447 12714 1 column entitled "CVP Induced Agricultural" under 2 encroachment lands. Is that not the meaning of that part of 3 the EIR? 4 MR. BIRMINGHAM: I don't know the answer to that. But 5 even if I did, I couldn't answer it because I am not the 6 witness, Dr. Single. 7 With respect to the 35,386 acres in Table III-7, under 8 the column "CVP Induced Agricultural" with respect to 9 Westlands Water District, you don't know if any of those 10 36,386 acres were farmed before the delivery of CVP water? 11 DR. SINGLE: No, I do not have that information. 12 MR. BIRMINGHAM: If they were farmed before the 13 delivery of CVP water, the decision to deliver CVP water to 14 those lands would not result in the loss of natural lands? 15 DR. SINGLE: Yes, it would result in the loss of 16 natural lands. There could be other impacts or effects from 17 that continued delivery, though. 18 MR. BIRMINGHAM: One of those continued effects would 19 be, that if those lands continued to receive CVP water, they 20 would not have to rely on groundwater for irrigation; isn't 21 that correct? 22 DR. SINGLE: That would appear to be correct. 23 MR. BIRMINGHAM: And if water, CVP water, were taken 24 away from the encroachment lands, some of those farmers 25 would rely exclusively on groundwater? CAPITOL REPORTERS (916) 923-5447 12715 1 DR. SINGLE: I don't know that from my own experience 2 or understanding of Westlands. 3 MR. BIRMINGHAM: I will ask you to assume that if CVP 4 water was taken away from some of these farmers they would 5 rely exclusively on groundwater. If they were to rely 6 exclusively on groundwater, that could potentially lead to 7 an overdraft of the basin underlying Westlands Water 8 District? 9 DR. SINGLE: Is that an assumption? 10 MR. BIRMINGHAM: I am asking you that question. 11 DR. SINGLE: I don't know. I am not familiar with the 12 modeling of the groundwater basin. 13 MR. BIRMINGHAM: I will ask you to assume that if -- 14 let me ask you this, Dr. Single: Do you know why the San 15 Luis Unit was authorized by Congress as a part of the CVP? 16 DR. SINGLE: No. 17 MR. BIRMINGHAM: If landowners within Westlands began 18 to rely exclusively on groundwater and that resulted in an 19 overdraft of the Basin that could lead to land subsidence, 20 couldn't it? 21 DR. SINGLE: I would suppose so. I don't know all the 22 facts and geology. But I heard that discussion, so I could 23 assume that for our purposes. 24 MR. BIRMINGHAM: One of the consequences of delivering 25 CVP water to what are defined as encroachment lands in the CAPITOL REPORTERS (916) 923-5447 12716 1 Draft EIR would be the avoidance of land subsidence? 2 DR. SINGLE: I am not sure I could quite make that 3 connection so directly. 4 MR. BIRMINGHAM: The avoidance of land subsidence 5 would be an ecological benefit, wouldn't it, Dr. Single? 6 DR. SINGLE: Not necessarily for many of the species of 7 concern that live solely on the surface or shallow 8 subterranean areas. 9 MR. BIRMINGHAM: You would agree, Dr. Single, that 10 generally land subsidence is a negative environmental 11 effect? 12 DR. SINGLE: Well, the ramifications of that effect 13 vary tremendously depending on what area you were looking 14 at. 15 MR. BIRMINGHAM: Your testimony makes reference to the 16 City of Coalinga. Do you know if the City of Coalinga has 17 alternative water supplies? 18 DR. SINGLE: I don't recollect. 19 MR. BIRMINGHAM: Isn't it correct, Dr. Single, that 20 before the receipt of CVP water the City of Coalinga had to 21 truck in drinking water? 22 DR. SINGLE: I don't know. 23 MR. BIRMINGHAM: Do you know the condition of the 24 groundwater that underlies the City of Coalinga? 25 DR. SINGLE: No, I don't. CAPITOL REPORTERS (916) 923-5447 12717 1 MR. BIRMINGHAM: On Page 2 you make a statement that 2 the take of state listed threatened and endangered animals 3 and plants, including fully protected species likely to have 4 occurred as a result of past encroachments, and is likely to 5 occur as a result of the proposed expansion; is that correct, 6 Dr. Single? 7 DR. SINGLE: Yes, I made that statement. 8 MR. BIRMINGHAM: I would like to go back again to my 9 earlier analysis. If land were dry farmed before the 10 receipt of CVP water, it would have been the conversion of 11 the land from its natural condition to agricultural 12 production that would have resulted in the take of 13 threatened or endangered animals? 14 DR. SINGLE: That would have probably been the primary 15 source of the take. There is also the opportunity for 16 ongoing take of endangered animals as they move on to 17 cultivated areas. 18 MR. BIRMINGHAM: That is an environmental consequence 19 that is unrelated to the Board's action as we have defined 20 it; isn't that correct, Dr. Single? 21 DR. SINGLE: I don't think it is totally unrelated. 22 MR. BIRMINGHAM: Let's talk about that for a moment 23 with respect to Westlands Water District. I am pointing to 24 Exhibit 13-P of the Department of Interior, and I am 25 pointing to an area in Section 14S, 12 east that is east of CAPITOL REPORTERS (916) 923-5447 12718 1 the place of use boundary. And it is your testimony, isn't 2 it, Dr. Single, that on the lands that are within the 3 existing place of use that currently under agricultural 4 production endangered species could wander on to those 5 lands? 6 DR. SINGLE: That is possible, but the likelihood 7 depends tremendously on location of parcel in question, 8 habitats that are adjacent to it and those factors. 9 Certainly not equal for all areas in the district. 10 MR. BIRMINGHAM: Now I am pointing to an area in 11 Section 14S, 12 E on Department of Interior Exhibit 13-P 12 that is immediately to the west of the boundary of the place 13 of use. Is it your testimony that the likelihood of 14 endangered species wandering onto those lands is different 15 than that likelihood of endangered species wandering on to 16 the immediately adjacent land within the place of use? 17 DR. SINGLE: Again, the likelihood of that happening on 18 any particular parcel would depend very much on 19 site-specific conditions, and to try to have this discussion 20 on a districtwide basis does not seem to be very productive. 21 MR. BIRMINGHAM: I am not talking about on a 22 districtwide basis. I am asking you a question about a 23 specific piece of land within Section 14S, 12 east on 24 Department of the Interior Exhibit 13-P. 25 DR. SINGLE: I would have to say without detailed CAPITOL REPORTERS (916) 923-5447 12719 1 information I couldn't make any more specific comments on 2 that likelihood with regard to a particular parcel. 3 MR. BIRMINGHAM: If the State Water Resources Control 4 Board were to change the place of use to include 5 encroachment lands within Westlands Water District, that 6 would not affect the likelihood of endangered or threatened 7 species wandering on to those encroachment lands, would it, 8 Dr. Single? 9 MR. CAMPBELL: Objection. Asked and answered. 10 C.O. STUBCHAER: Overruled. 11 DR. SINGLE: To the extent that the Board's approval of 12 the change would not affect the land use that exists at this 13 time and cropping patterns and like land use patterns in the 14 area, then the likelihood of patterns of animals would 15 probably stay the same. 16 MR. BIRMINGHAM: On Page 5 of your testimony you state 17 that some actions, notably farming, would not be subject to 18 CEQA review? 19 DR. SINGLE: Yes. 20 MR. BIRMINGHAM: What do you mean by that, Dr. Single? 21 DR. SINGLE: It is my understanding that in most cases 22 agricultural uses are considered a vested right, and 23 landowners conversion of land from native habitat to 24 agricultural, from one form of agricultural to another, is 25 not typically reviewed by local lead agencies. CAPITOL REPORTERS (916) 923-5447 12720 1 MR. BIRMINGHAM: In other words, for landowners within 2 the boundaries of Westlands Water District, if they owned 3 land that had been dry farmed, they would not have to go to 4 some agency to obtain approval, discretionary approval, that 5 implicate CEQA in order to begin irrigating those lands with 6 groundwater? 7 DR. SINGLE: I am not certain of that particular 8 scenario, as far as use of groundwater for irrigation. 9 MR. BIRMINGHAM: Let me ask you this question, then: 10 If someone had a piece of land that were farmed, they would 11 not need to obtain discretionary approval from some agency 12 in order to start using water to irrigate those lands? 13 DR. SINGLE: I am assuming that -- I don't know. That 14 would probably depend on the source of water and other 15 things. My intent here was to address the action of land 16 conversion and the acts of farming. 17 MR. BIRMINGHAM: But we have established that with 18 respect to the encroachment lands or lands that are 19 currently being farmed outside of the place of use, you 20 don't know how a decision by this Board would affect land 21 use? 22 MR. CAMPBELL: Objection. I believe that assumes facts 23 not in evidence. I don't think that has been established as 24 a fact. 25 C.O. STUBCHAER: Mr. Birmingham. CAPITOL REPORTERS (916) 923-5447 12721 1 MR. BIRMINGHAM: Let me restate the question. 2 Dr. Single -- can I have a moment? 3 C.O. STUBCHAER: Yes. 4 MR. BIRMINGHAM: I would ask you to look at Page IV-17 5 of the Draft Environmental Impact Report, which is part of 6 Staff Exhibit 2. Under 4.5.1, which is one of the sections 7 of the Draft Environmental Impact Report, you cite, Dr. 8 Single, in your testimony -- first of all, is Section 4.5.1 9 a section of the Environmental Impact Report that you cite 10 in your testimony? 11 DR. SINGLE: I will look for it to verify that. 12 MR. BIRMINGHAM: If you look at Page 2 of Department 13 of Fish and Game Exhibit 30, you cite Section 4.5 of the 14 Environmental Impact Report? 15 DR. SINGLE: Okay, yes. 16 MR. BIRMINGHAM: Section 4.5.1 is within Section 4.5? 17 DR. SINGLE: Yes. 18 MR. BIRMINGHAM: You relied on 4.5 in preparing your 19 testimony? 20 DR. SINGLE: Yes. 21 MR. BIRMINGHAM: There is a paragraph, the second 22 paragraph, under the title Comparison of Existing Conditions 23 that states that: 24 Although each CVP water contractor could 25 conceivably redistribute water to support new CAPITOL REPORTERS (916) 923-5447 12722 1 development within its service area, it would 2 not likely be redistributed if existing water 3 users would not receive sufficient water to 4 support existing land uses. (Reading.) 5 You see that statement? 6 DR. SINGLE: Yes. 7 MR. BIRMINGHAM: Is that a statement with which you 8 agree, Dr. Single? 9 Let me restate the question. Do you have any reason to 10 disagree with that statement? 11 DR. SINGLE: I feel that that's an assumption that is 12 presented in the Draft EIR and speculative. 13 MR. BIRMINGHAM: But you have no facts to either 14 support or refute that statement, do you, Dr. Single? 15 DR. SINGLE: I don't have particular cases, but it's a 16 vague statement and does not really seem to suitably 17 establish the trend in the EIR. 18 MR. BIRMINGHAM: But again going back to my question, 19 you are unaware of any facts that either support or refute 20 the statement that I just read? 21 MR. CAMPBELL: Objection. Asked and answered. 22 C.O. STUBCHAER: Sustained. 23 MR. BIRMINGHAM: The next statement in the Draft EIR 24 says: 25 Therefore, future new development would not CAPITOL REPORTERS (916) 923-5447 12723 1 likely occur within individual CVP water 2 contractor service areas that do not have 3 firm CVP water delivery contracts of 4 sufficient quantity to support the demand of 5 future land uses. (Reading.) 6 Do you see that, Dr. Single? 7 DR. SINGLE: Yes, I do. 8 MR. BIRMINGHAM: Do you have any facts to either 9 support or refute that statement? 10 DR. SINGLE: I don't have particular cases. But when 11 you look at these two statements together, they seem to draw 12 to an uncertain conclusion in light of trends and things 13 like groundwater banking, water transfers and developing 14 multiple water sources, it's -- I think this conclusion is 15 not well-founded within the Draft EIR. 16 MR. BIRMINGHAM: Focusing on Westlands Water District, 17 Dr. Single, would a change in place of use result in the 18 delivery of more water to Westlands Water District? 19 DR. SINGLE: I am not sure. I would have to go through 20 the document and find that. 21 MR. BIRMINGHAM: Let's look at -- going back to Page 22 IV-17 of the Draft Environmental Impact Report, State Water 23 Resources Control Board Staff Exhibit 2, there is a 24 statement: 25 Therefore, 13 CVP water contractors, totaling CAPITOL REPORTERS (916) 923-5447 12724 1 641,775 acres of both land that could be 2 developed and surplus CVP water. 3 (Reading.) 4 Do you see that statement? 5 DR. SINGLE: Yes, I do. 6 MR. BIRMINGHAM: Those 13 CVP contractors are listed in 7 Table IV-6; isn't that correct, Dr. Single? 8 DR. SINGLE: Yes. 9 MR. BIRMINGHAM: And Westlands Water District is not 10 among the CVP contractors listed on Table IV-6? 11 DR. SINGLE: That's correct. 12 MR. BIRMINGHAM: That would lead you to conclude that 13 Westlands Water District does not have surplus water that 14 could lead to the development of additional agricultural 15 lands? 16 DR. SINGLE: It leads me to conclude there would not be 17 additional CVP supplies. 18 MR. BIRMINGHAM: So if the State Water Resources 19 Control Board were to change the place of use to include all 20 of the lands within Westlands boundaries, it would not 21 result in additional deliveries of Central Valley Project 22 water to Westlands? 23 DR. SINGLE: That is my understanding from the material 24 in the Draft EIR. 25 MR. BIRMINGHAM: In preparing your testimony did you CAPITOL REPORTERS (916) 923-5447 12725 1 review any other material other than the Draft Environmental 2 Impact Report? 3 DR. SINGLE: Yes, I did. 4 MR. BIRMINGHAM: What else? 5 DR. SINGLE: Reviewed principally the biological 6 material regarding recovery efforts for threatened and 7 endangered species. My testimony was based principally on 8 the Draft EIR. 9 MR. BIRMINGHAM: You referred to the statement on Page 10 IV-17 of the Draft Environmental Impact Report, State Water 11 Resources Control Board Exhibit 2, that, although each CVP 12 contractor could conceivably redistribute water to support 13 new development within its service area, it would not likely 14 be redistributed if existing water users would not receive 15 sufficient water to support existing land uses, as being 16 speculative? 17 DR. SINGLE: Yes. 18 MR. BIRMINGHAM: What do you mean by "speculative"? 19 DR. SINGLE: It seems to me this statement assumes -- 20 makes the assumption that water would not be redistributed 21 if there was not sufficient water to support existing land 22 uses. And doesn't really address the issues of other water 23 supplies, multiple sources other than CVP water. It also 24 doesn't address the issue of changes of land use that could 25 free up water supplies for other uses. CAPITOL REPORTERS (916) 923-5447 12726 1 MR. BIRMINGHAM: The thing that makes this statement 2 speculative is that it is based upon an assumption? 3 MR. CAMPBELL: Objection. Asked and answered and 4 misstates the witness' testimony. He just asked that very 5 same question and got an answer that was different than the 6 answer he just supplied in his follow-up questions. 7 C.O. STUBCHAER: Mr. Birmingham. 8 MR. BIRMINGHAM: I did ask the same question. I am not 9 sure that the question was answered. I asked him why it was 10 speculative, and he gave me reasons as to why he thinks it 11 might be wrong. But I want to understand what his meaning 12 of the word speculative is. 13 C.O. STUBCHAER: All right. You may answer the 14 question. 15 MR. BIRMINGHAM: Dr. Single, the reason that you think 16 that the statement is speculative is because it's based upon 17 assumptions that aren't necessarily supported by facts in 18 the document? 19 DR. SINGLE: That is one reason. You know, it 20 speculates a hypothetical situation, essentially. 21 MR. BIRMINGHAM: I would like to go back to your 22 statement on Page 2 of Department of Fish and Game Exhibit 23 30 that the take of state listed and endangered animals and 24 plants, including fully protected species, is likely to have 25 occurred as a result of past encroachments and is likely to CAPITOL REPORTERS (916) 923-5447 12727 1 occur as a result of proposed expansion. 2 Let's focus on the first half of that: is likely to 3 have occurred as a result of past encroachments. That is 4 also speculative; isn't it, Dr. Single? 5 DR. SINGLE: It is to some extent, yes. 6 MR. BIRMINGHAM: It is speculative to the same degree 7 as the statement on Page IV-17 on Staff Exhibit 2 that we 8 have been talking about? 9 DR. SINGLE: I don't think I would necessarily equate 10 them. 11 MR. BIRMINGHAM: You said you don't know which of the 12 encroachment lands were dry farmed prior to the delivery of 13 CVP water; isn't that right? 14 DR. SINGLE: Right. 15 MR. BIRMINGHAM: And you said you don't know which 16 lands were irrigated with groundwater prior to the delivery 17 of CVP water? 18 DR. SINGLE: Correct. 19 MR. BIRMINGHAM: By encroachment lands we are talking 20 about lands outside the place of use that have received CVP 21 water? 22 DR. SINGLE: Yes. 23 MR. BIRMINGHAM: And with respect to my questions about 24 Department of the Interior Exhibit 13-P, you said that we 25 couldn't talk about effects on a districtwide basis because CAPITOL REPORTERS (916) 923-5447 12728 1 effects on plant and animals would depend upon a number of 2 circumstances? 3 DR. SINGLE: That is not exactly what I said. You were 4 talking about the likelihood of take under current 5 agricultural condition in one part versus another? 6 MR. BIRMINGHAM: That would depend upon -- 7 DR. SINGLE: Site specific conditions. 8 MR. BIRMINGHAM: You are not aware of the specific site 9 conditions with respect to the land of Westlands Water 10 District? 11 DR. SINGLE: Correct. 12 MR. BIRMINGHAM: So applying the statement on Page 2 of 13 your testimony, Department of Fish and Game Exhibit 30, that 14 the take of state listed threatened and endangered animals 15 and plants, including fully protected species, is likely to 16 occur as a result of past encroachments, that statement is 17 speculative to the same degree as the statement contained on 18 Page IV-17 of the State Water Resources Control Board Staff 19 Exhibit 2? 20 MR. CAMPBELL: Objection. Asked and answered. 21 C.O. STUBCHAER: Mr. Birmingham. 22 MR. BIRMINGHAM: It was asked; I am not sure it has 23 been answered. 24 DR. SINGLE: No, I do not think it is speculative to 25 the same degree. CAPITOL REPORTERS (916) 923-5447 12729 1 MR. CAMPBELL: That is the same answer that was 2 provided before. 3 C.O. STUBCHAER: Yes. 4 MR. BIRMINGHAM: Now, I am going to ask you to assume, 5 Dr. Single, there are lands within Westlands that were dry 6 farmed before the receipt of CVP water and that were 7 irrigated with groundwater before receipt of CVP water. 8 Making that assumption, you can't tell us, can you, whether 9 there was ever a take of a threatened or endangered species 10 that resulted from the conversion of that land from its 11 natural condition to dry farming or to farming with 12 groundwater? 13 DR. SINGLE: I can't establish that there was actual 14 death or injury of a listed animal. What we can do is look 15 at historical land use, habitat type, distribution of listed 16 plants and animals and make a reasonable inference. 17 MR. BIRMINGHAM: Whether or not the conversion of land 18 from its natural condition to agricultural production 19 resulted in the death or injury of a listed species would 20 depend on when the conversion occurred? 21 DR. SINGLE: With regards to the listing status of 22 various species. Is that your point? 23 MR. BIRMINGHAM: Well, am I correct that, Dr. Single, 24 that whether or not there was a take of a listed species 25 that resulted from the conversion of lands in their natural CAPITOL REPORTERS (916) 923-5447 12730 1 condition to agricultural production would depend on when 2 the conversion occurred? 3 DR. SINGLE: It could, yes. 4 MR. BIRMINGHAM: Well, if the lands were converted to 5 agricultural production prior to the enactment of the state 6 or federal Endangered Species Act, the conversion would not 7 have resulted in a take; isn't that right? 8 DR. SINGLE: At that time, yes. 9 MR. BIRMINGHAM: If the lands that are currently in 10 agricultural production within Westlands Water District were 11 in agricultural production prior to 1940, that would not -- 12 the conversion of lands from their natural condition to 13 agricultural production would not have resulted in the take 14 of any species? 15 DR. SINGLE: Take of threatened or endangered species 16 as defined under the Endangered Species Act. The same 17 animals could have still been there, still been killed. 18 Right, okay. 19 MR. BIRMINGHAM: I would like to go back and ask you a 20 question concerning your statement about the Department of 21 Fish and Game's position on when mitigation is appropriate. 22 I would like to ask you a question about the delivery 23 of water to the building in which we are sitting right now. 24 If this building were not in the place of use of water right 25 permits held by the City of Sacramento for the appropriation CAPITOL REPORTERS (916) 923-5447 12731 1 of water from either the American or Sacramento River -- 2 DR. SINGLE: Okay. 3 MR. BIRMINGHAM: But water had been delivered to this 4 building by the City of Sacramento from the American or 5 Sacramento River, in any event, would a change in the place 6 of use to permit the delivery of water to this building 7 result in any biological or ecological consequence, making 8 the assumption that changing the place of use will not 9 increase the amount of water that is delivered to -- that is 10 diverted from either river? 11 MR. CAMPBELL: Objection. Incomplete hypothetical. Is 12 the building occupied or not occupied? 13 C.O. STUBCHAER: It is hypothetical, but I think it is 14 understandable. 15 MR. BIRMINGHAM: Do you understand my question? 16 DR. SINGLE: Yes, it is a rather extreme example. And 17 in terms of biological issues, you know, cessation of water 18 supply would affect whatever biological resources that were 19 dependent on the site or whether there were other impacts 20 occurring resulting from the use of the site. It could be 21 expanded to air pollution and other things, all the people 22 that drive or commute here, what have you. 23 MR. BIRMINGHAM: Making a decision to include the 24 building that we are all sitting in right now, so addressing 25 Mr. Campbell's assumptions, we know that it is occupied, to CAPITOL REPORTERS (916) 923-5447 12732 1 include that within the place of use isn't going to change 2 the amount of traffic that results from the use of this 3 building? 4 DR. SINGLE: It is going to maintain the impact. 5 MR. BIRMINGHAM: Wasn't your statement earlier that, 6 generally, the Department of Fish and Game takes the 7 position that mitigation should be provided when an action 8 has biological or ecological consequences? 9 DR. SINGLE: Yes. 10 MR. BIRMINGHAM: That means a change; isn't that 11 correct? 12 DR. SINGLE: Not necessarily. I don't see the 13 consequences have to be associated with a change. 14 MR. BIRMINGHAM: Well, generally the Department of Fish 15 and Game only has the authority to impose mitigation 16 measures when an action will result in a change? 17 DR. SINGLE: I am not clear at all as in terms of where 18 you are going with that. 19 MR. BIRMINGHAM: Regardless of where I am going with 20 that, Dr. Single, let -- 21 DR. SINGLE: I can't comment on the way you phrased 22 it. 23 MR. BIRMINGHAM: Let me rephrase it. 24 Typically, the Department of Fish and Game appears in 25 proceedings before the Board when it is considering water CAPITOL REPORTERS (916) 923-5447 12733 1 right applications? 2 DR. SINGLE: Yes. 3 MR. BIRMINGHAM: And if a water right application will 4 result in some change of the physical environment, then, 5 under CEQA the State Water Resources Control Board can 6 consider mitigation measures? 7 DR. SINGLE: Yes. 8 MR. BIRMINGHAM: And if the decision of the State Water 9 Resources Control Board is going to result in some change in 10 the physical environment, the Department of Fish and Game 11 will make recommendations as to mitigation measures that 12 would be imposed? 13 DR. SINGLE: Yes. But it is also conceivably the Board 14 can make a decision that would maintain existing conditions 15 which are not suitable or beneficial or created existing 16 impacts. I don't think you can limit it that way. 17 MR. BIRMINGHAM: Well, you're familiar with the 18 definition of a significant effect under CEQA, Dr. Single? 19 DR. SINGLE: Generally. I can't quote it to you right 20 now. 21 MR. BIRMINGHAM: Isn't a significant effect under CEQA 22 a negative change in the physical environment resulting from 23 a discretionary decision? 24 MR. CAMPBELL: Objection. Calls for a legal 25 conclusion. CAPITOL REPORTERS (916) 923-5447 12734 1 C.O. STUBCHAER: You may answer, if you know. 2 MR. BIRMINGHAM: May I go ahead? 3 DR. SINGLE: I was just going to say, I am not sure. 4 C.O. BROWN: That is the answer. 5 MR. BIRMINGHAM: Your comment or, excuse me, your draft 6 testimony, Department of Fish and Game Exhibit 30, Dr. 7 Single, makes references to the requirement under CEQA that 8 the State Water Resources Control Board impose mitigation 9 measures; isn't that correct? 10 DR. SINGLE: I believe that is correct. Do you have a 11 particular reference you want to direct my attention to? 12 MR. BIRMINGHAM: Sure. Page 5 of Department of Fish 13 and Game Exhibit 30. You make a reference to future CEQA 14 review. This is the first full paragraph on Page 5 of 15 Department of Fish and Game Exhibit 30. 16 DR. SINGLE: Yes. 17 MR. BIRMINGHAM: Lower on Page 5 of Department of Fish 18 and Game Exhibit 30 in your testimony you make references to 19 some actions not being subject to review under CEQA? 20 DR. SINGLE: Yes. 21 MR. BIRMINGHAM: You state that, accordingly, the 22 Board's action in approving the expansion areas would be the 23 last discretionary action subject to CEQA? 24 DR. SINGLE: Yes. 25 MR. BIRMINGHAM: Therefore, you're proposing that the CAPITOL REPORTERS (916) 923-5447 12735 1 Board impose mitigation measures at this time? 2 DR. SINGLE: Mitigation measures or standards or 3 guidelines that would direct mitigation that could be 4 established under subsequent CEQA process. 5 MR. BIRMINGHAM: The basis of your testimony in this 6 regard is your understanding of the circumstances in which 7 CEQA requires the imposition of mitigation measures? 8 MR. CAMPBELL: Objection. It misstates the written 9 testimony. The Department's position reflected in written 10 testimony is that is not just CEQA, but the Board has 11 independent police power authority under the Public Trust 12 Doctrine. Also object on the grounds it calls for a legal 13 conclusion. 14 MR. BIRMINGHAM: Mr. Stubchaer, if we are going to have 15 state agencies including legal testimony in documents or 16 testimony that they present to the Board for its 17 consideration, I certainly have a right to cross-examine the 18 witness on his understanding of the law. 19 C.O. STUBCHAER: Objection is overruled. 20 DR. SINGLE: Could you restate your question, please? 21 MR. BIRMINGHAM: The basis of your discussion about the 22 imposition of mitigation measures as a result of the CEQA 23 review process that is contained on Page 5 of Department of 24 Fish and Game Exhibit 30 was based on your understanding of 25 the obligation of the agency to impose mitigation measures CAPITOL REPORTERS (916) 923-5447 12736 1 as part of the CEQA review process? 2 DR. SINGLE: It was based on that and discussions of 3 future processes that were within the Draft EIR. 4 MR. BIRMINGHAM: In response to an earlier question I 5 believe you stated that you're not well-informed on the CEQA 6 review process and the obligation to impose mitigation 7 measures as a result of that process? 8 DR. SINGLE: I don't recollect that question. 9 MR. BIRMINGHAM: Maybe we can go back, and I will ask 10 you to answer the question to which your counsel objected. 11 MR. CAMPBELL: It's fine. 12 MR. BIRMINGHAM: Isn't it correct, Dr. Single, that the 13 obligations to impose mitigation measures is an obligation 14 that arises when a discretionary project results in an 15 adverse change in the physical environment? 16 DR. SINGLE: I am not -- I believe when we discussed 17 that question I answered I wasn't sure. I think that 18 critical element there is change as opposed to effect or 19 impact. 20 MR. BIRMINGHAM: Isn't it correct that significant 21 environmental effect is defined by CEQA as an adverse change 22 in the physical environment? 23 MR. CAMPBELL: Objection. Calls for legal conclusion. 24 C.O. STUBCHAER: Witness may answer to the best of his 25 ability. CAPITOL REPORTERS (916) 923-5447 12737 1 DR. SINGLE: Again, I am not really sure of that 2 particular definition nor am I sure to the extent to which 3 it is a restricted definition, the only definition. 4 MR. BIRMINGHAM: Let's go back to your statement on 5 Page 5 that some actions, notably farming, would not be 6 subject to review under CEQA. Now, you have heard the 7 testimony of Ms. Rupp that the place of use boundaries that 8 exist from the Bureau permits has resulted from the drawing 9 of a line on a map? 10 DR. SINGLE: Yes. 11 MR. BIRMINGHAM: And that when the Department of the 12 Interior, Bureau of Reclamation applied for water right 13 permits, it intended to include the service area of each one 14 of its contractors within the permitted place of use? 15 DR. SINGLE: I heard that testimony. 16 MR. BIRMINGHAM: Now, going back to Department of 17 Interior Exhibit 13-P, let's assume when the hand-drawn 18 boundary was drawn, it had been drawn to include all of the 19 service area within the original boundaries of Westlands 20 Water District after the merger in 1965. 21 DR. SINGLE: Okay. 22 MR. BIRMINGHAM: If that had been done with respect to 23 the encroachment lands, we would not be here talking about 24 changing the place of use; isn't that correct? 25 DR. SINGLE: That seems to be correct. CAPITOL REPORTERS (916) 923-5447 12738 1 MR. BIRMINGHAM: The line would have been drawn in a 2 manner consistent with what the Department of Interior had 3 intended when it filed the applications for water right 4 permits? 5 DR. SINGLE: Don't know about their intention or the 6 rest of that. 7 MR. BIRMINGHAM: You did hear -- 8 DR. SINGLE: First question? 9 MR. BIRMINGHAM: You did hear Ms. Rupp testify when the 10 Department of the Interior applied for water right permits 11 it intended to include place of use the areas within the 12 boundaries of its contract? 13 DR. SINGLE: I heard something to that effect. I am 14 not sure of the exact wording on it. 15 MR. BIRMINGHAM: Again going back to Department of the 16 Interior 13-P, if the boundary had been drawn to include the 17 service area of Westlands Water District, it would have been 18 drawn in a manner consistent with the intent of the 19 Department of Interior, as described by Ms. Rupp, at the 20 time the applications were filed? 21 DR. SINGLE: That is a question, sorry. I thought we 22 covered that. It appears to be the case, yes. 23 MR. BIRMINGHAM: So, because the boundary was drawn in 24 the area that was not intended by the Department of 25 Interior, the Department of Fish and Game is seeking CAPITOL REPORTERS (916) 923-5447 12739 1 mitigation to continue the use of water; is that correct? 2 DR. SINGLE: We believe that those impacts should be 3 evaluated. If the Board determines they are significant, 4 that they should be mitigated. We don't think the EIR 5 evaluates those impacts, so I don't know how much further we 6 can get with that. 7 MR. BIRMINGHAM: In other words, Dr. Single, what the 8 Department of Fish and Game is attempting to do is obtain 9 mitigation in a circumstance where, if the boundary had been 10 drawn properly in a manner consistent with the Department of 11 Interior's intent, the Department of Fish and Game could not 12 obtain mitigation? 13 DR. SINGLE: I think the first thing we are trying to 14 do is obtain an accurate evaluation of impacts. If there 15 are boundary errors and land use questions, those need to be 16 factored into that. They are not brought out in the Draft 17 EIR. 18 MR. ATLAS: Mr. Chairman, I am going to object. I 19 don't believe the witness answered the question that was 20 asked. 21 C.O. STUBCHAER: I think that you could amplify your 22 answer. 23 MR. BIRMINGHAM: Would you like to have the question 24 reread, Dr. Single? 25 DR. SINGLE: Yes, please. CAPITOL REPORTERS (916) 923-5447 12740 1 (Record read as requested.) 2 MR. CAMPBELL: Objection. Calls for legal conclusion. 3 C.O. STUBCHAER: Answer the best of your ability. 4 DR. SINGLE: I think we are only trying to obtain 5 mitigation for what actual impacts have occurred, and I 6 think you're asking me to speculate on intent and where the 7 boundary lines are and that sort of thing. 8 MR. BIRMINGHAM: You were trying to obtain mitigation 9 for the impacts that have occurred? 10 DR. SINGLE: Yes. 11 MR. BIRMINGHAM: And you don't know whether the impacts 12 occurred as a result of the delivery of project water to 13 these lands? 14 DR. SINGLE: Based on the material in the Draft EIR, 15 Draft EIR attempts to establish that lands were converted on 16 the basis of project water. 17 MR. BIRMINGHAM: Again, you're not able to point out a 18 specific statement in the Draft EIR where it says "that the 19 encroachment lands within the boundaries of Westlands Water 20 District were converted because of the delivery of CVP 21 water"? 22 DR. SINGLE: Isn't that material the same as we 23 discussed earlier? 24 MR. BIRMINGHAM: I am looking for a statement, Dr. 25 Single, that it says in the Draft EIR, if there is one, that CAPITOL REPORTERS (916) 923-5447 12741 1 says that the conversion of the encroachment lands from the 2 natural conditions to agricultural production resulted from 3 the delivery of CVP water. 4 DR. SINGLE: I would have to search for that. I don't 5 know off the top of my head if there is actually that 6 statement in there or not. 7 MR. BIRMINGHAM: Going back to my question, you don't 8 know from any records that you have reviewed if the 9 conversion of the encroachment lands within Westlands' 10 boundaries resulted from the delivery of CVP water? 11 MR. CAMPBELL: Objection. Asked and answered. 12 C.O. STUBCHAER: Sustained. 13 MR. BIRMINGHAM: Mr. Stubchaer, I don't believe that 14 the question has been answered. I think he attempted to 15 answer it. But I don't think that the question, as I posed 16 it, has ever been answered. 17 C.O. STUBCHAER: I thought it was answered earlier in 18 your examination. I sustain the objection. 19 MR. BIRMINGHAM: Dr. Single, are you aware of anything 20 other than the statement that you think it might be in the 21 Draft Environmental Impact Report from which you would 22 conclude that the conversion of the encroachment lands 23 within Westlands Water District from their natural condition 24 to agricultural production resulted from the delivery of 25 project water to those lands? CAPITOL REPORTERS (916) 923-5447 12742 1 DR. SINGLE: No. I have not conducted any analysis in 2 regard to that question relative to any other information. 3 MR. BIRMINGHAM: I have no further questions. 4 C.O. STUBCHAER: Mr. Birmingham. 5 The order of the remaining cross-examination will be 6 Mr. Nomellini, Mr. Brandt -- sorry, Mr. Turner, sorry, Mr. 7 Keene, Mr. Campbell, Mr. Atlas, Mr. Herrick. 8 You will do better if you enter the Lotto, Mr. Herrick. 9 C.O. STUBCHAER: Mr. Nomellini. How long is your 10 examination going to take? Could you estimate? 11 MR. NOMELLINI: It might take more than ten minutes, 12 but I can use my ten minutes now if you wanted to. It's up 13 to you. 14 C.O. STUBCHAER: Let's do that. 15 ---oOo--- 16 CROSS-EXAMINATION OF DEPARTMENT OF FISH AND GAME 17 BY CENTRAL DELTA PARTIES 18 BY MR. NOMELLINI 19 MR. NOMELLINI: Dante John Nomellini for Central Delta 20 Parties. 21 Start with an easy one first, Mr. Single. Would you 22 look at Page III-31 of the Draft EIR? 23 DR. SINGLE: Yes. 24 MR. NOMELLINI: Is that the information in the EIR that 25 reflected a determination by the writers that the 36,386 CAPITOL REPORTERS (916) 923-5447 12743 1 acres of Westlands Water District land was CVP induced 2 agriculture? 3 DR. SINGLE: I believe so. 4 MR. NOMELLINI: You indicated in your testimony that 5 you made no independent study, but rather relied on findings 6 in the document? 7 DR. SINGLE: Yes. 8 MR. NOMELLINI: Staying somewhat with that subject, is 9 there a difference in environmental impact between 10 conversion from natural land to dry land agriculture as 11 opposed to the conversion from natural land to irrigated 12 agriculture? 13 DR. SINGLE: There is sometimes additional impact 14 conversion on irrigated agriculture, depending upon the type 15 of land leveling that is conducted to facilitate 16 irrigation. But the major impact, of course, is the 17 conversion from native habitat to any form of agriculture. 18 MR. NOMELLINI: Do you consider cattle grazing a form 19 of agriculture? 20 DR. SINGLE: Not for the purpose of my discussion and 21 for these impact analyses. 22 MR. NOMELLINI: Could you define what you assume to be 23 the definition of dry land farming? 24 DR. SINGLE: My understanding of dry land farming, it 25 is conducted without the aid of any applied water, relying CAPITOL REPORTERS (916) 923-5447 12744 1 on natural rainfall. 2 MR. NOMELLINI: That would be the growing of crops, 3 then? 4 DR. SINGLE: Yes, tilling of the soil. 5 MR. NOMELLINI: Grazing would be excepted from that? 6 DR. SINGLE: Yes, I would exclude grazing from that. 7 MR. NOMELLINI: In your -- 8 DR. SINGLE: May I qualify? 9 MR. NOMELLINI: Go ahead. 10 DR. SINGLE: I would exclude grazing on naturally 11 occurring non native graze lands, range land conditions, and 12 make a distinction between those types of sites and highly 13 improved pasture and those sorts of areas. 14 MR. NOMELLINI: In your oral statement, and I am not 15 sure I got the words right, you indicated that the State 16 Board has the more -- has more authority to protect the 17 public trust with regard to this particular application than 18 does the Department of Fish and Game? 19 DR. SINGLE: Certainly appears to me to be that way to 20 me at the moment, yes. 21 MR. NOMELLINI: Is that because the requested changes 22 in places of use and purposes of use do not require the 23 Department of Fish and Game action, in your opinion? 24 DR. SINGLE: Yes. 25 MR. NOMELLINI: With regard to your written testimony, CAPITOL REPORTERS (916) 923-5447 12745 1 on Page 3 with regard to Change 3a, the following sentence 2 is included. It states: 3 This proposal recognizes the investments made 4 in the encroached lands by legitimizing their 5 current CVP deliveries. (Reading.) 6 You see that? 7 DR. SINGLE: Yes. 8 MR. NOMELLINI: Is it your testimony that the 9 Department of Fish and Game is willing to go along with that 10 particular change even if it was the result of a violation 11 of the permits granted to the CVP because investments had 12 been made in the encroached lands? 13 MR. CAMPBELL: Objection. Calls for speculation in 14 terms of whether they are in violation or not. 15 MR. NOMELLINI: Assuming for hypothetical purposes, and 16 I didn't state it as a fact, I just stated that if it was. 17 C.O. STUBCHAER: Let's make it clear. Please make 18 clear it is a hypothetical. 19 MR. NOMELLINI: Assuming for the sake of this question, 20 that the diversion of water to the encroached lands was, in 21 fact, in violation of the permit terms applicable to the CVP 22 deliveries, is the Department of Fish and Game saying that 23 it is now legitimate because there was a recognized 24 investment in the encroached lands? 25 DR. SINGLE: I don't think that I made that CAPITOL REPORTERS (916) 923-5447 12746 1 statement. I think it is our determination -- I don't think 2 it is the Department's determination to make. 3 MR. NOMELLINI: Is there any policy in the Department 4 of Fish and Game that would legitimize a violation of the 5 law because there has been a recognized investment as a 6 result of that violation? 7 MR. CAMPBELL: Objection. Calls for speculation on the 8 part of the witness, and it is outside of the scope of this 9 witness's employment. 10 C.O. STUBCHAER: The witness may answer to the best of 11 his ability, if you can answer. As we said before, so 12 state. 13 DR. SINGLE: I don't think I can answer that. 14 MR. NOMELLINI: With regard to your testimony on Page 15 3, under the conformed authorized uses, is it true that the 16 Department of Fish and Game supports conforming the 17 authorized uses as requested? 18 DR. SINGLE: No, not as requested. 19 MR. NOMELLINI: And what change would you ask the Board 20 to make in order for the Department to support the conformed 21 authorized uses? 22 DR. SINGLE: To support or at least be neutral to the 23 conformed authorized uses, we have recommended to the Board 24 that the Board add fish and wildlife enhancement, water 25 quality and salinity control. CAPITOL REPORTERS (916) 923-5447 12747 1 MR. NOMELLINI: Would the Department support the 2 conformed authorized uses with the changes you just 3 indicated even if such a conformation of the uses would 4 result in a shift from one particular use to another? 5 MR. CAMPBELL: Objection. Calls for speculation. 6 C.O. STUBCHAER: Mr. Nomellini. 7 MR. NOMELLINI: It goes to the Department's position, 8 which isn't absolutely clear on its face here. It appears 9 to be a support condition on this. And I am cross-examining 10 to pursue the reasoning behind the support and the position. 11 C.O. STUBCHAER: Objection is overruled. 12 DR. SINGLE: You are asking, would we support with 13 these conditions if these conditions resulted in some 14 changes in water, water use among different uses? 15 MR. NOMELLINI: Correct. 16 DR. SINGLE: I think we would have to know what those 17 changes would be. 18 MR. NOMELLINI: Have you attempted to evaluate whether 19 or not conformation of the authorized uses would result in a 20 shift of water from agriculture to municipal and industrial 21 uses? 22 DR. SINGLE: I have not attempted to reevaluate that, 23 but I believe there is some discussion in the EIR of the 24 potential expand of that shift. 25 C.O. STUBCHAER: Mr. Nomellini. CAPITOL REPORTERS (916) 923-5447 12748 1 MR. NOMELLINI: Good time to have lunch. 2 C.O. STUBCHAER: Good time. We are going to take a 3 lunch break until 1:00 p.m. 4 MR. ATLAS: Mr. Chairman, before we break, could I ask 5 the others who are going to cross-examine for an estimate of 6 the time? I have my witnesses ready to go as we finish 7 Fish and Game's case. If it is really unlikely that we are 8 going to get to them this afternoon, I'd just as soon 9 release them. 10 C.O. STUBCHAER: Mr. Nomellini, how much more time? 11 MR. NOMELLINI: I think 15 minutes. 12 C.O. STUBCHAER: Mr. Turner. 13 MR. TURNER: About 15 minutes. 14 C.O. STUBCHAER: Mr. Keene. 15 MR. KEENE: About 20 to 30 minutes. 16 C.O. STUBCHAER: Mr. Campbell. 17 MR. C. CAMPBELL: Twenty to 30 minutes. 18 C.O. STUBCHAER: Mr. Herrick. 19 MR. HERRICK: About 15. 20 MR. ATLAS: I couldn't keep track. What did that add 21 up to? 22 C.O. STUBCHAER: Depends how much you are going to 23 have. We didn't ask you. 24 MR. ATLAS: Five minutes. 25 C.O. STUBCHAER: Approximately about two hours, maybe a CAPITOL REPORTERS (916) 923-5447 12749 1 little less. 2 MR. ATLAS: Okay. Thank you. 3 (Lunch break.) 4 ---oOo--- 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 12750 1 AFTERNOON SESSION 2 ---oOo--- 3 C.O. STUBCHAER: Call the hearing back to order. 4 Mr. Haroff. 5 MR. HAROFF: Before Mr. Nomellini returns, I would like 6 to make a request. I was hoping we would be getting to 7 Santa Clara Valley Water District before the end of this 8 week. It now looks like that is not going to be in the 9 cards. We are scheduled to go, I think, fourth on the list, 10 which would put us after Tehama. That would have us going 11 likely on Tuesday. I have a personal conflict. I have a 12 requirement to make an appearance in a court hearing in San 13 Francisco on Tuesday. I wonder if the schedule could be 14 modified to allow us to proceed on Wednesday? 15 C.O. STUBCHAER: Could the Sacramento Municipal Utility 16 District be prepared to go on Tuesday? 17 MS. DUNSWORTH: Yes, we will. 18 C.O. STUBCHAER: El Dorado? 19 UNIDENTIFIED VOICE: He's not here. 20 C.O. STUBCHAER: Mr. Keene? 21 Mr. Haroff, what I would suggest is that you contact 22 the parties who immediately follow you and see if they would 23 object. It sounds like they are -- 24 MR. HAROFF: I already did that with one, and I will do 25 that with Mr. Keene as well. CAPITOL REPORTERS (916) 923-5447 12751 1 C.O. STUBCHAER: We do try and accommodate parties. If 2 there is no objection we will happy to put you off until 3 Wednesday. 4 MR. HAROFF: I very much appreciate that and I will 5 follow up. 6 C.O. STUBCHAER: Mr. Nomellini, we almost forfeited 7 your -- 8 MR. NOMELLINI: I apologize for being tardy. I was 9 forced to eat at a restaurant instead of the cafeteria, and 10 it took more time, Mr. Chairman. I will cut a few minutes 11 off of my 15-minute estimate to make up for it. 12 Mr. Single, would you agree that environmental impacts 13 associated with M&I use would, in general, be greater than 14 environmental impacts from agricultural uses? 15 DR. SINGLE: Not necessarily. They would be different 16 to some extent, and there would be some very -- some impacts 17 would be the same; some would be different. I am not sure 18 in all cases if they would be greater or less than, as a 19 generalization. 20 MR. NOMELLINI: Let's compare an agricultural use of 21 land for growing a crop such as cotton as opposed to a paved 22 parking lot for some large chain store. Which would have 23 the greatest adverse environmental impact, in your opinion? 24 C.O. STUBCHAER: Mr. Turner. 25 MR. TURNER: Might I ask if Mr. Nomellini can clarify CAPITOL REPORTERS (916) 923-5447 12752 1 the environmental impacts on what? 2 C.O. STUBCHAER: I thought it was kind of broad. 3 MR. NOMELLINI: Whatever you environmental experts 4 consider impacts on. 5 DR. SINGLE: That is a very broad question. 6 MR. NOMELLINI: Fish and wildlife species. 7 DR. SINGLE: Assuming that they were both created from 8 native habitat, they would share that same degree of impact 9 in terms of eliminating existing habitats. After that there 10 would be associated impacts on things like drainage, 11 pesticides, air quality, traffic and those sort of things 12 which might vary from project to project. 13 I would expect them to be different as kind of -- it's 14 kind of hard for me to add them all up and quantify and 15 decide with that example. 16 MR. NOMELLINI: The long and the short of it is, then, 17 you have to analyze in particular the specific situation 18 that you were encountering? 19 DR. SINGLE: To get the best evaluation of impacts, 20 yes. 21 MR. NOMELLINI: With regard to irrigated agriculture, 22 assuming the same amount of land was irrigated, might there 23 be a different impact depending upon the source of the water 24 used to irrigate that particular land? 25 DR. SINGLE: If you're looking at the association of CAPITOL REPORTERS (916) 923-5447 12753 1 water supplies and that sort of thing, I would assume, yes, 2 there could be a different impact. 3 MR. NOMELLINI: You agree that you would have to look 4 beyond the question of whether or not the particular land 5 simply was going to be continued as irrigated agriculture 6 and look at the source of the water that was provided for 7 land? 8 DR. SINGLE: That would be a more complete analysis. 9 MR. NOMELLINI: With regard to the Page 3 of your 10 testimony, Change 2, under -- well, you say this proposal is 11 consistent with our commitment to integrated water resource 12 management and large area planning. 13 What is the commitment that you are referring to 14 there? 15 DR. SINGLE: I am referring to a general direction the 16 Department seems to be taking in how it deals with land 17 management, water management, which is to look at larger 18 scopes and to deal with many entities. 19 MR. NOMELLINI: Is that a written policy of some kind? 20 DR. SINGLE: No. 21 MR. NOMELLINI: It is a sense you gathered from 22 superiors in the Department of Fish and Game? 23 DR. SINGLE: From my observations of the activities of 24 the Department. 25 MR. NOMELLINI: On Page 4 of your testimony, you talk CAPITOL REPORTERS (916) 923-5447 12754 1 about mitigation should generally be in kind, and then you 2 say there should be a minimum of three-to-one mitigation 3 impact ratio. 4 Do you see that? 5 DR. SINGLE: Yes. 6 MR. NOMELLINI: Have you made any determination of what 7 the appropriate acreage of mitigation would be required to 8 accommodate the alternative that has the encroachment lands 9 continued to be served with water? 10 DR. SINGLE: No, I have not. 11 MR. NOMELLINI: On Page 5 at the top, you talk about 12 the need for the 700,000-acre expansion of the authorized 13 place of use is not supported in the DEIR, and in your oral 14 testimony, I believe, you pointed out that the document 15 indicated that there was no water supply other than 20 16 some-odd thousand acres, I don't remember if you said 17 acre-feet, that could go towards expansion area. 18 Do you recall that testimony? 19 DR. SINGLE: Yes. 20 MR. BIRMINGHAM: What was your statement with regard to 21 the 20-some-odd thousand? Was that acre-feet? 22 DR. SINGLE: I believe it is acres that could be 23 supplied. I can try to find the reference for you in the 24 EIR. There are estimates in the EIR that there is supply 25 for approximately 21,000 acres. CAPITOL REPORTERS (916) 923-5447 12755 1 MR. NOMELLINI: That is good enough. I don't want to 2 take too much of my time. 3 Are you aware that the Department of Fish and Game is 4 supporting consolidation of the points of diversion of the 5 two projects that could facilitate additional exports from 6 the Delta? 7 DR. SINGLE: I have not been involved in that aspect of 8 our Department's operations. I am not familiar with the 9 details. 10 MR. NOMELLINI: Is it fair to state other than what is 11 in the environmental document you have not attempted to 12 ascertain the availability of water to go beyond the present 13 contractual entitlements of the Central Valley Project? 14 DR. SINGLE: That is correct. 15 MR. NOMELLINI: Down at the bottom of Page 5, it says: 16 Therefore, DFG recommends that the Board 17 deny proposed Change 3b. However, we 18 further recommend that the Board ensure that 19 all state and federal sites eligible to 20 receive CVP water for conservation purposes 21 be included in the authorized place of use. 22 (Reading.) 23 Sounds a little inconsistent to me, but perhaps you can 24 explain. 25 DR. SINGLE: It is a relatively small thing. We didn't CAPITOL REPORTERS (916) 923-5447 12756 1 want to lose, through neglect or oversight, refuge water 2 supplies. 3 MR. NOMELLINI: Is it the Department's position that if 4 refuges are outside the authorized place of use, that the 5 change in authorized place of use of the Bureau permits 6 should be modified to include those sites? 7 DR. SINGLE: We would want to see refuges that need 8 water be within appropriate place of use. I am not aware 9 that there is currently any inconsistencies there. That is 10 sort of a catch-all phrase to be sure we haven't missed 11 something. 12 MR. NOMELLINI: If such refuges are added to the 13 authorized place of use, would it be your position that the 14 impact of such an addition be fully mitigated? 15 MR. CAMPBELL: Objection. Assumes facts not in 16 evidence and assumes that there would be impacts. 17 MR. NOMELLINI: No, no. If there are none, then you 18 can fully mitigate it by doing nothing. 19 C.O. BROWN: I understand your question. Answer it if 20 you can. 21 DR. SINGLE: I am not aware of my Department's policy 22 regarding that particular question. As a general matter, of 23 course, we would want to see things done appropriately and 24 water use balanced, impacts mitigated through Board process 25 or whatever process was at hand at a particular situation. CAPITOL REPORTERS (916) 923-5447 12757 1 As I said, I am not familiar with my Department's 2 particular position or policy on that issue. 3 MR. NOMELLINI: Do you have any opinion of whether or 4 not such impact should be mitigated, if any? 5 DR. SINGLE: My personal opinion is relevant here? 6 MR. CAMPBELL: I would state that the witness is being 7 provided by the Department of Fish and Game and he's 8 testifying in the course and scope of his employment. So, I 9 believe he's only qualified to provide his professional 10 opinion as opposed to any personal opinion to the extent 11 there is a difference. 12 C.O. BROWN: Mr. Nomellini, how did you want that 13 question answered? 14 MR. NOMELLINI: They brought an expert in here. He's 15 some background and expertise in the field. He's a Ph.D. 16 C.O. BROWN: Wait a minute. One at a time. 17 Mr. Nomellini. 18 MR. NOMELLINI: He has a Ph.D. Just like we asked 19 other people if they had an opinion. 20 C.O. BROWN: He is asking you for your opinion. If you 21 have an opinion, answer the question. 22 DR. SINGLE: In my opinion, my personal, professional 23 opinion, yes, that all processes going through, through this 24 process, should be evaluated for impacts and those impacts 25 should be weighed by the Board. CAPITOL REPORTERS (916) 923-5447 12758 1 MR. NOMELLINI: Thank you very much. I think I made up 2 for my tardiness. 3 C.O. STUBCHAER: You did. 4 Mr. Turner. 5 ---oOo--- 6 CROSS-EXAMINATION OF DEPARTMENT OF FISH AND GAME 7 BY DEPARTMENT OF THE INTERIOR 8 BY MR. TURNER 9 MR. TURNER: Thank you, Mr. Stubchaer. I am Jim 10 Turner. I am an attorney representing the Department of the 11 Interior in this phase of the proceedings. 12 And, Dr. Single, I just have some rather simple, 13 straightforward questions for you that have not been raised 14 by any of the attorneys so far. I would ask you to turn to 15 Page 2 of your written testimony, and my questions are going 16 to be focusing on the portion of the testimony on Page 2 17 which begins with "consequently if the Board approves any of 18 the proposed changes, we recommend that the Board require 19 the following." 20 And then, thereafter there is a list of six things that 21 you are recommending that the Board do in connection with 22 its approval of any of the suggested changes. 23 My concerns, I have a problem understanding precisely 24 how you might envision these various conditions, terms or 25 conditions, whatever you want to call them, how they would CAPITOL REPORTERS (916) 923-5447 12759 1 be implemented by the Bureau. Let me begin by saying, I am 2 presuming that you are presenting these as conditions that 3 you would like to see the Board include in any kind of an 4 order approving this change? 5 DR. SINGLE: Yes. 6 MR. TURNER: So, let's start with number one. So if 7 the Board were to approve the expansion of the CVP place of 8 use as we have been requesting, then you're saying they 9 should do that subject to the condition that the permittee, 10 the United States, establish a program that will monitor the 11 sites of CVP water use to confirm that no further 12 encroachment occurs? 13 How would the Bureau go about doing something like 14 that? Any ideas? 15 Let me give you a little further. I presume you're 16 familiar with the fact that the Bureau of Reclamation -- 17 MR. CAMPBELL: I would like to object at this point. 18 I've been listening to this for a while. I am getting more 19 testimony -- I believe we are getting testimony out of Mr. 20 Turner and not specific, concrete questions. 21 I object on that grounds. I would like this to remain 22 focused on questions and answers and not testimony by the 23 cross-examiner. 24 C.O. STUBCHAER: Mr. Turner, I think, see if the 25 witness could answer the question before you started the CAPITOL REPORTERS (916) 923-5447 12760 1 last amplification of it, and then go on from that. 2 MR. TURNER: I just repeat that question. How would 3 you suggest the Bureau might implement this kind of 4 condition? 5 DR. SINGLE: I haven't gone into any lengthy 6 considerations of design or respite, but the basic issue is 7 that encroachment apparently has occurred in the past so we 8 have a question as to the reliability of maintaining CVP 9 water use within whatever place of use it is approved for. 10 And I think that is a reasonable request to make, that if 11 there is a place of use approved water should be applied 12 within that. 13 Now, how that is determined could vary gravely. I 14 would assume it could evolve review of a number of factors, 15 such as delivery systems, land use changes and that sort of 16 thing. I don't have a particular program in mind. I think 17 it is a reasonable request. 18 MR. TURNER: Would you be recommending that the same 19 kind of condition be implemented in all water right 20 permits? 21 DR. SINGLE: It certainly sounds reasonable. I had 22 assumed that that sort of intent or condition was implicit 23 in granting a permit for a place of use, that the water was 24 supposed to stay within the boundaries of the approved place 25 of use. CAPITOL REPORTERS (916) 923-5447 12761 1 MR. TURNER: That is why I am asking the question as to 2 why we need -- why you are recommending a specific expressed 3 condition in this case. 4 DR. SINGLE: Because in the past that has apparently 5 not been the case in the past. In my mind that is a 6 performance issue or compliance issue, if you will. 7 MR. TURNER: Let's move on to the second. You would 8 like to condition that the Bureau provide an analysis of the 9 effect of CVP water functioning as a buffer or supplement to 10 other water supplies, thus facilitating loss of natural 11 lands outside the authorized place of use. 12 Could you please -- I don't quite understand what kind 13 of analysis that you are looking for. What is that supposed 14 to mean? 15 DR. SINGLE: It seems to me the Draft EIR focused 16 principally on the direct use of CVP water for land use 17 changes. Now, there is potential for other kinds of effects 18 that this water supply could have in terms of providing 19 enough water supply to supplement, in combination with other 20 water supplies, to make possible land conversions that would 21 not otherwise be possible. 22 Those sorts of issues I do not think were analyzed in 23 the Draft EIR. And those impacts should be evaluated and 24 presented to the Board for their consideration. 25 MR. TURNER: This would be done as an element of the CAPITOL REPORTERS (916) 923-5447 12762 1 Board's approval, which is supposed to follow or precede the 2 environmental analysis? 3 DR. SINGLE: Well, it could be done that way because my 4 understanding is that there is subsequent analyses and 5 processes suggested in the Draft EIR. I think it would be 6 more appropriate to have it done ahead of time in the Draft 7 EIR so it would be here for the Board to consider in the 8 overall program. 9 MR. TURNER: Moving to the third issue. USBR to 10 provide analysis of the role of CVP water in maintaining 11 land uses and encroached lands that were established without 12 CVP water. 13 Again, could you give a little further explanation of 14 what kind of analysis we are talking about here? 15 DR. SINGLE: Similar to the other one. There is -- the 16 Draft EIR appears to not consider -- well, just what I wrote 17 there: Encroachment that occurred without using CVP water, 18 but these sites are now receiving project water, and that 19 doesn't even seem to be addressed in the Draft EIR. Those 20 effects seem to have fallen right now. 21 MR. TURNER: Similar to the question I asked you in 22 connection with the last item, is this something that you 23 feel would be -- should be a condition in the permit or 24 element of the Draft EIR which is supposed to be a 25 foundation for an order granting -- CAPITOL REPORTERS (916) 923-5447 12763 1 DR. SINGLE: If it is not in the Draft EIR, it should 2 be a condition of the permit. I think it is important 3 information for the Board to consider, and the implication 4 is that there would be subsequent processes here. 5 MR. TURNER: Move on to "d." I guess back to the same 6 question, again, which came first the chicken or the egg. 7 Should this mitigation be addressed in the DEIR or should 8 the Board -- or are you recommending that the Board can go 9 ahead approve the petition and you've got to mitigate 10 somehow in the future? 11 MR. CAMPBELL: Objection. Asked and answered. 12 C.O. STUBCHAER: Overruled. 13 DR. SINGLE: Does your question relate to staging of 14 mitigation? I am not clear on this. 15 MR. TURNER: What I am asking, are you saying that it 16 would be appropriate for the Board to issue an order saying, 17 "Bureau, you are hereby permitted to conform your places of 18 use, to conform your purpose of use, expand your places of 19 use subject to the condition that you mitigate any impacts? 20 We'll stop at that point. 21 DR. SINGLE: If that included some means of evaluating 22 those impacts, some authority for the Board to assure the 23 mitigation did happen, that will be acceptable. 24 MR. TURNER: So, an additional requirement that you are 25 including here is not only must the condition require that CAPITOL REPORTERS (916) 923-5447 12764 1 there be mitigation for any impacts, but that such 2 mitigation be approved by the Board as a condition of the 3 permit? 4 MR. CAMPBELL: I believe that last question misstates 5 his previous testimony. I think he said that the mitigation 6 to be enforceable by the Board, not approved. 7 DR. SINGLE: Yes, that is what I said. Although if you 8 wanted the Board to approve it, that would be good, too. 9 MR. TURNER: So that the condition -- what you are 10 saying, that the condition in the order would then provide 11 there must be mitigation for any impacts, that will be 12 enforceable by the Board, the implementation of those 13 mitigation measures? 14 DR. SINGLE: Yes. 15 MR. TURNER: The fifth item you say that the condition 16 should be that USBR establish a monitoring mitigation 17 program to monitor such secondary effects and to provide 18 mitigation. Can you explain what you mean "such secondary 19 effects"? 20 DR. SINGLE: In essence, all of the effects which were 21 not well analyzed in the Draft EIR that relate to impacts 22 other than the direct application of water to a parcel. 23 MR. TURNER: Then the last item you have here is that 24 there must be a condition that would be included in the 25 Board order approving the petition making the, what, the CAPITOL REPORTERS (916) 923-5447 12765 1 implementation of that particular order conditioned upon the 2 Board establishing some kind of procedure to comply with 3 California Endangered Species Act and public trust resources 4 with DFG. This is going to be a precondition to the 5 effectiveness of the order? 6 MR. CAMPBELL: Objection. Vague as to what is meant 7 the "effectiveness of the order." 8 C.O. STUBCHAER: I think the question is basically 9 understandable. You want to restate it just a little bit? 10 MR. TURNER: Yes. Let me go back. 11 The proposal here would be to include this Item Number 12 F as a condition in the Board's approval of the petition, 13 correct? 14 DR. SINGLE: Yes, if that were possible. 15 MR. TURNER: If that were done, would that mean that 16 the Bureau would not be or, let's say, the Board order would 17 not be in force and effect pending compliance with this 18 particular requirement? 19 MR. CAMPBELL: Objection. Calls for a legal 20 conclusion. 21 C.O. STUBCHAER: I don't think it is necessarily legal. 22 It's like you said, which comes first; it's that type of 23 question. If you have an answer, Dr. Single. 24 DR. SINGLE: I am not sure that is not necessarily our 25 intent. CAPITOL REPORTERS (916) 923-5447 12766 1 MR. TURNER: I guess, then, let me ask you, what would 2 be -- what is the intent, then, of saying that this should 3 be a condition for the Board's approval? 4 DR. SINGLE: To ensure that the Board and the 5 Department are working together to evaluate impacts and 6 implement mitigation, oversee that aspect of it because it 7 is the Department of Fish and Game's public trust resources 8 that we are trying to deal with here. Provides a way of 9 ensuring that our staffs can collaborate on this issue. 10 MR. TURNER: I guess what I am hearing you say is all 11 of those elements essentially -- all of these six matters 12 should be resolved, addressed prior to the issuance of the 13 order by the Board? 14 DR. SINGLE: That I think that would be the ideal 15 situation because they're foundational material for the 16 decision. But if that were not feasible for some reason or 17 another, then they could include it in the order, and these 18 conditions could be met as subsequent decisions are made. 19 MR. TURNER: I have no further questions. 20 C.O. STUBCHAER: Mr. Keene. 21 ---oOo--- 22 CROSS-EXAMINATION OF DEPARTMENT OF FISH AND GAME 23 BY SAN LUIS WATER DISTRICT 24 BY MR. KEENE 25 MR. KEENE: Thank you. CAPITOL REPORTERS (916) 923-5447 12767 1 Dr. Single. We met earlier. I am Tom Keene. I am 2 representing San Luis Water District. 3 Back on that same page of your testimony that Mr. 4 Turner was just on, Page 2, you state there in the second 5 paragraph under the title one, these two separate things 6 that you indicate there that the analysis and DEIR lacks? 7 DR. SINGLE: Yes. 8 MR. KEENE: The first of those is the role of CVP 9 deliveries and maintaining encroachments not directly 10 facilitated by the CVP supplies. Then you get back down to 11 that in "c" in your list at the bottom of the page? 12 DR. SINGLE: Yes. 13 MR. KEENE: Do you know when the California Endangered 14 Species Act went into effect? 15 DR. SINGLE: No. 16 MR. KEENE: I will represent that it went into effect 17 in 1984. Do you know when the California Environmental 18 Quality Act went into effect? 19 DR. SINGLE: Again, I have not memorized the exact 20 year. 21 MR. KEENE: I will represent to you that it was in 22 1970. If water was applied to land and it was CVP water 23 that was applied to the land before 1970, is it Fish and 24 Game's position that mitigation of this sort is still 25 required as set forth in Item Number 1 in that paragraph I CAPITOL REPORTERS (916) 923-5447 12768 1 indicated and in Paragraph C? 2 MR. CAMPBELL: Objection. Calls for a legal conclusion. 3 MR. KEENE: I was just asking for what Fish and Game's 4 position is. 5 C.O. STUBCHAER: I think the question may be answered. 6 DR. SINGLE: It seems to me if we are evaluating an 7 action currently by the Board, and that action could have 8 ongoing impacts, that those should be evaluated. And if 9 there are impacts, that the Board should consider 10 mitigation. 11 MR. KEENE: And your position, Fish and Game's 12 position, that that mitigation should be ordered even if the 13 initial project, in CEQA language the initial event, 14 predated the effective date of either CEQA or the California 15 Endangered Species Act? 16 DR. SINGLE: Yes. We are talking about ongoing impacts 17 that will continue or exist because of the Board's decision, 18 not going back in time to something that happened before. 19 MR. KEENE: Before what? 20 DR. SINGLE: Before the Board's decision here. 21 MR. KEENE: Is it your position that this Board should 22 order mitigation for basically all of the irrigated land in 23 any one of the districts that has land that has been 24 identified as encroachment land? 25 DR. SINGLE: I think there are a couple ways of looking CAPITOL REPORTERS (916) 923-5447 12769 1 at that, but, in essence, just to a large degree, yes. If 2 there are ongoing impacts or impacts that would continue as 3 a result of the Board's actions, then those definitely need 4 to be evaluated under CEQA. 5 MR. KEENE: I'm sorry, go ahead. 6 DR. SINGLE: That is one key part of it. Now, there is 7 this questionable issue of the loss of other habitats 8 predating CEQA or predating ESA. And that is a legal 9 situation that I don't think I can get into. 10 But the Board has other responsibilities and other 11 powers to condition its permits and its authorizations. 12 MR. KEENE: What other powers are you referring to? 13 DR. SINGLE: Does not the Board have public trust 14 authorizations to appropriately condition all of its 15 decision and permits? 16 MR. KEENE: So, your position is that the -- or rather 17 the Department of Fish and Game's position is that using the 18 Public Trust Doctrine that this Board could, in essence, 19 require mitigation for every acre of land that is irrigated, 20 for example, in Westlands or in San Luis regardless of 21 whether it was inside or outside the permissive place of 22 use? 23 DR. SINGLE: That is a rather extreme example, and I am 24 not sure of all the other processes that might be 25 influencing that particular example. CAPITOL REPORTERS (916) 923-5447 12770 1 MR. KEENE: Let's go on, then, to Item Number 2. In 2 that same paragraph that we have been looking at, you say 3 that the role of CVP supply as a buffer or supplemental 4 water source that facilitated the use of other water 5 supplies for encroachment, which is to say secondary 6 facilitation, and that relates, as I read it, to Item b on 7 your list at the bottom of the page; is that correct? 8 DR. SINGLE: Yes. 9 MR. KEENE: If the district has no other source of 10 water other than CVP water, in your opinion, would it be 11 necessary to have that condition? 12 Let's back up and reapproach this if I can. You look 13 in a quandary. 14 The DEIR attempts to go through each of the districts 15 or water contractors affected by this proposed action and 16 identify whether it has another source of water supply; is 17 that correct? 18 DR. SINGLE: I believe so. I don't recollect the 19 details. I will accept that. 20 MR. KEENE: I will represent to you that that is, in 21 fact, the case. Then, for districts that don't have any 22 other source of supply is it necessary then to go through 23 this whole process of trying to monitor some sort of 24 secondary supplemental function that CVP water has played? 25 DR. SINGLE: If that were the case, I would expect that CAPITOL REPORTERS (916) 923-5447 12771 1 analysis to show no such effect. 2 MR. KEENE: We still have to go through the process, in 3 your opinion? 4 DR. SINGLE: To a very minor degree, I would assume. 5 MR. KEENE: Let me direct your attention to the Draft 6 Program Environmental Impact Report for a moment if I can, 7 that same Page 3.30 and 3.31 which is Table III-7. 8 DR. SINGLE: Yes. 9 MR. KEENE: I understood your earlier testimony to be 10 that land which was identified in that column that is CVP 11 induced agriculture should have some mitigation with regard 12 to endangered species. But that land that was in the non 13 CVP induced agriculture somehow or another had less of a 14 demand for mitigation; is that correct? 15 DR. SINGLE: I don't recollect saying that in my 16 testimony. 17 MR. KEENE: You did refer to that chart in your 18 testimony with Mr. Birmingham? 19 DR. SINGLE: Yes. 20 MR. KEENE: In your opinion, should the two types of 21 land be treated any differently? 22 DR. SINGLE: In terms of original conversion to 23 agriculture, I believe it's possible to consider them 24 differently by looking at the role of CVP water in each of 25 them. If there were a role of project water that CAPITOL REPORTERS (916) 923-5447 12772 1 facilitated conversion of non CVP -- of these lands that are 2 non CVP agriculture column. If project water actually did 3 have a role in those conversions, which is something that is 4 not analyzed in the Draft EIR, then that is an impact that 5 we should be looking at. 6 MR. KEENE: Let me explore that a little bit. 7 DR. SINGLE: I may have stepped beyond your question. 8 I apologize. 9 MR. KEENE: What I am trying to get at is, and I am not 10 sure you answered my question -- 11 DR. SINGLE: I think -- did you ask if they be treated 12 differently? 13 MR. KEENE: Yes. 14 DR. SINGLE: I think they could be treated differently. 15 MR. KEENE: In your opinion, should they be treated 16 differently? 17 DR. SINGLE: I think they should be -- I think they 18 should be evaluated in a slightly different manner. And 19 what the end use of that evaluation is, I don't know, but it 20 could very well be different from the evaluation that is 21 given to CVP induced agriculture. 22 MR. KEENE: In your testimony, again, at the bottom of 23 Page 3, in discussing the proposed Change 3a, your very last 24 sentence there is: 25 Therefore, if the Board approves or denies CAPITOL REPORTERS (916) 923-5447 12773 1 Change 3a, Department of Fish and Game 2 recommends the following conditions. 3 (Reading.) 4 If the Board denies the petition, is it Fish and Game's 5 position that the Board still should exercise its Public 6 Trust Doctrine authority to require all this stuff that is 7 on Page 4? 8 DR. SINGLE: Yes. If that is a feasible action for the 9 Board. 10 MR. KEENE: On the top of Page 4 in item Number 1, the 11 second bullet there, says loss of habitat should be 12 mitigated by conservation or preservation of suitable 13 habitat at a minimum three to one ratio. 14 If the Board denies the petition, then I am not sure I 15 understand what you mean by the application of that ratio. 16 Would you suggest, then, that the Bureau should still be 17 required to come up with three acres for every acre of 18 farmland that is, what, in the series area? I don't 19 understand. I am asking you to, please, explain that 20 consequence of your testimony. 21 DR. SINGLE: Well, assuming that we can have an 22 evaluation of the impacts on encroachment lands, and there 23 is some determination that certain impacts occurred, then, 24 yes, we believe that because these are encroachment lands 25 that are apparently outside the place of use, that some CAPITOL REPORTERS (916) 923-5447 12774 1 mitigation should be provided. 2 The ratio you referred to is a typical one, but there 3 could be other ways of deriving appropriate mitigation. To 4 get appropriate mitigation, we have to have a better idea of 5 what the impacts are. 6 MR. KEENE: So, for example, if a district excluded 7 undeveloped land that had been in its original place of use 8 when it annexed other land and that was then developed, 9 would you then examine the excluded land to determine what 10 that did in terms of providing habitat? 11 DR. SINGLE: I don't know. I suppose that is one kind 12 of thing that could be done. 13 MR. KEENE: You're a relatively young man. Let me ask 14 were you with the Department of Fish and Game in 1974? 15 DR. SINGLE: No. 16 MR. KEENE: I will represent to you in the evidence and 17 our case in chief, which we'll put on sometime this year, 18 hopefully, will indicate that the San Luis Water District -- 19 MR. CAMPBELL: I'll object. I don't think it is 20 appropriate to represent evidence from a case in chief that 21 hasn't been put on yet. 22 C.O. STUBCHAER: You can just represent without 23 reference to the case in chief. 24 MR. KEENE: Certainly. 25 The San Luis Water District has an exhibit that has CAPITOL REPORTERS (916) 923-5447 12775 1 already been submitted and served on all of the attorneys an 2 Environmental Impact Report that it certified in 1974 for 3 the application of water to the land in the San Luis 4 District as its boundaries existed at that time. That 5 report includes correspondence from the Department of Fish 6 and Game. 7 At that time the Department of Fish and Game requested 8 that the San Luis District not pipe its ditches so there 9 would be a resting places for waterfowl, and there was also 10 some discussion about the number of trees that would be in 11 that part of the district in order to provide resting places 12 for fowl. 13 Now, in your opinion, does the Draft Program 14 Environmental Impact Report that is before us now, before 15 the Board now, adequately address the impacts of terminating 16 water delivery to these areas? 17 DR. SINGLE: I don't recollect that kind of analysis in 18 this Draft EIR. 19 MR. KEENE: Now, I believe in response to a question by 20 Mr. Birmingham, I am asking if this is correct, that you 21 indicated that the Board's action does not change the use of 22 the land, then the Board's action will not change the 23 likelihood of endangered species being taken. I wrote as 24 fast as I could; that is as close to a direct quote as I 25 could get. CAPITOL REPORTERS (916) 923-5447 12776 1 DR. SINGLE: That sounds essentially like something I 2 probably said. That sounds close enough to work on. 3 MR. KEENE: You feel comfortable with that statement 4 being attributed to you? 5 DR. SINGLE: Yes. 6 MR. KEENE: Let me follow-up on it. 7 If we had land that has been receiving CVP water for 8 the last 40 years, has been irrigated for all of that time 9 with CVP water, and the Board now expands the place of use, 10 grants the petition so that is now within the boundaries of 11 the permitted place of use, will that action of the Board 12 change the likelihood of endangered species being taken? 13 DR. SINGLE: May not change the likelihood of 14 endangered species being taken on that parcel; that may 15 remain the same. But their ongoing take seems to fall under 16 an action of the Board in terms of maintaining water supply 17 to the irrigated parcel. 18 MR. KEENE: What do you mean by "their ongoing take"? 19 DR. SINGLE: If there were ongoing take on a particular 20 parcel. 21 MR. KEENE: Could you define "ongoing take" for me? I 22 don't understand the term. 23 DR. SINGLE: Occasional take of an endangered animal, 24 routinely over a period, may not be routinely, periodically 25 over time. CAPITOL REPORTERS (916) 923-5447 12777 1 MR. KEENE: Like a kit fox? 2 DR. SINGLE: Yeah. Bad example, but, yes, that level. 3 MR. KEENE: A Tipton kangaroo? 4 DR. SINGLE: That level of occurrence. To the extent 5 that the Board's action in providing or continuing to 6 provide project water to a site maintains that site in that 7 land use, then the Board is maintaining that level of take. 8 MR. KEENE: How about incidental take? 9 DR. SINGLE: I don't want to -- 10 MR. KEENE: Is that a yes? 11 DR. SINGLE: I am not sure. I don't want to get into 12 legal issues, what is incidental and what is not. 13 MR. KEENE: Okay. Then is it Fish and Game's position 14 that even for land that was not -- well, was in agricultural 15 production which was not CVP induced agricultural 16 production, and that that use has been going on with CVP 17 water since before the effective date of either CEQA or 18 California Endangered Species Act that there should still be 19 mitigation required? 20 MR. CAMPBELL: Objection. Asked and answered. 21 C.O. STUBCHAER: Sustained. 22 MR. KEENE: The mitigation that would be required for 23 that, would that be this three-to-one ratio that you are 24 talking about on top of Page 4? 25 DR. SINGLE: Not necessarily. CAPITOL REPORTERS (916) 923-5447 12778 1 MR. KEENE: Would it be any less than that? 2 DR. SINGLE: Could possibly. 3 MR. KEENE: So, your statement right here that says 4 loss of habitat should be mitigated by conservation or 5 preservation of suitable habitat at a minimum 3.1, doesn't 6 really mean at a minimum of 3.1? 7 DR. SINGLE: I may have lost track of your question. 8 In general, loss of -- I thought we were discussing the 9 ongoing impacts of ongoing take. 10 MR. KEENE: I thought we were discussing any take that 11 was in the parameters of the question that I laid down, that 12 this was land that was outside of the permissive place of 13 use, but had been receiving CVP water since before the 14 effective date of the California Environmental Quality Act 15 or the California Endangered Species Act and that the permit 16 then was granted to expand the place of use boundaries, that 17 that would then require, I thought you said, a take of less 18 than three-to-one. 19 Did I misunderstand you? 20 DR. SINGLE: I think it is possible. As I stated 21 before the Board, these are general recommendations. I 22 think it is possible to partition out different kinds of 23 impact that would engender different kinds of mitigation. 24 And I think, typically, for loss of native habitat occupied 25 by threatened and endangered species, three-to-one is a CAPITOL REPORTERS (916) 923-5447 12779 1 typical mitigation ratio that we've seen in recent years in 2 the San Joaquin Valley. That is a different kind of impact 3 than ongoing killing of an occasional individual of an 4 endangered species of animal. I think those different kinds 5 of impacts could receive different kinds of treatments by 6 the Board. 7 MR. KEENE: Would that be -- would that different type 8 of treatment be geared to when water started being applied 9 to the land so that it would be different, say, it was after 10 the effective date of the California Environmental Quality 11 Act? 12 DR. SINGLE: It seems to be a legal issue. I am not 13 qualified. 14 MR. KEENE: Let me rephrase it, then. 15 Are you proposing, then, in your answer to my question 16 a moment ago a sliding scale of level of mitigation 17 depending upon the nature of the take that is involved? 18 DR. SINGLE: I don't think I actually proposed that, 19 but I think such an approach is feasible. 20 MR. KEENE: Now, the parameters that would cause the 21 scale to slide, what would those parameters be, in your 22 opinion, or what should they be? 23 DR. SINGLE: Key parameters should be the type and 24 magnitude of impact, severity of impact. 25 MR. KEENE: Would a parameter be, then, how long the CAPITOL REPORTERS (916) 923-5447 12780 1 land had been in agricultural production as a determination 2 as to the severity of impact? Are you talking only about 3 ongoing impact? 4 DR. SINGLE: I think the duration that a parcel was in 5 agricultural production, just the length of time that it was 6 in production would have little effect on the analysis of 7 biological impacts, which is what I would be focusing on in 8 this analysis. 9 MR. KEENE: What would be the key parameters, in your 10 opinion, for such a sliding scale? 11 DR. SINGLE: As I stated before, the type of impact, 12 severity, extent. 13 MR. KEENE: What do you mean by "the type of impact"? 14 DR. SINGLE: Long-term or permanent land conversion, 15 repeated occasional impacts, secondary impacts from 16 associated traffic, those sorts of things. 17 MR. KEENE: You just said long-term land conversion. 18 DR. SINGLE: Long-term or permanent. 19 MR. KEENE: A moment ago you seemed to indicate it 20 didn't matter how long land had been in agricultural 21 production, so I don't understand what you mean by long-term 22 in your list of parameters. 23 DR. SINGLE: I was contrasting that with occasional or 24 repeated disturbances that aren't necessarily associated 25 with conversion from habitat. That those things happen CAPITOL REPORTERS (916) 923-5447 12781 1 often. 2 There are also repeated occurrences of take that could 3 happen on a parcel that is converted to agriculture and has 4 been for some time. 5 MR. KEENE: Are there some types of agricultural use 6 that provide some level of benefit for endangered species? 7 DR. SINGLE: Yes. 8 MR. KEENE: What types of agricultural use? 9 DR. SINGLE: Generally, the less intensive disturbances 10 on a parcel, the more the likelihood of benefits. Uses that 11 retain idle areas or grazing uses tend to have some benefits 12 often. And another factor in whether benefits are supplied 13 by agricultural lands depends on their location, proximity 14 to natural lands and other open spaces. 15 MR. KEENE: For example, land that was on the -- land 16 that was on the western side of a canal and surrounded on 17 three sides by Bureau of Land Management controlled property 18 that's never been developed is probably -- has a higher 19 value than land that is on the eastern side of a canal and 20 is surrounded on three sides by agriculture and on the 21 fourth by the canal? 22 DR. SINGLE: Generally, one would think that, yes. 23 MR. KEENE: Isn't it also true that some types of 24 crops, for example, provide habitat or, if nothing else, 25 foraging for certain types of endangered species? CAPITOL REPORTERS (916) 923-5447 12782 1 DR. SINGLE: Yes, this is also true. 2 MR. KEENE: Isn't it also true that some types of 3 permanent planting, some types of trees provide roosting 4 places for endangered water fowl? 5 DR. SINGLE: That is conceivable. I am not sure of a 6 specific example in this area. 7 MR. KEENE: So, the type of use to which -- the type of 8 agricultural use to which the land is put is one of the 9 factors? 10 DR. SINGLE: Yes, could be. 11 MR. KEENE: Is Fish and Game's position, then, that 12 since this DEIR doesn't seem to address those sorts of 13 issues, that additional environmental study is necessary 14 before action on this permit? 15 MR. CAMPBELL: Objection. Vague as to those sorts of 16 issues. 17 C.O. STUBCHAER: Please clarify the reference. 18 MR. KEENE: This DEIR does not go through those 19 parameters that you have just listed; is that correct? 20 DR. SINGLE: Yes. 21 MR. KEENE: I believe that your testimony was that, I 22 don't know if you used the word "vague," that this DEIR was 23 nonspecific or as to the methods of mitigating the impacts? 24 DR. SINGLE: Yes. 25 MR. KEENE: So, is Fish and Game's position that CAPITOL REPORTERS (916) 923-5447 12783 1 because of these perceived defects in this DEIR that the 2 Board should not take action that is based on this DEIR 3 without doing further environmental study? 4 DR. SINGLE: That would be one of our recommendations 5 to the Board, yes. It would be preferable to have a sound 6 environmental document with all the information needed to 7 make a good decision. 8 MR. KEENE: And it is your position -- well, I also 9 notice that several of your recommendations deal with 10 mitigation plans? 11 DR. SINGLE: Yes. 12 MR. KEENE: Would your recommendation extend to that in 13 terms of this DEIR? Well, let me back up. 14 This DEIR does, contains a section that is on 15 mitigation plans, correct? 16 DR. SINGLE: Yes. 17 MR. KEENE: But this DEIR section on mitigation plans 18 doesn't lay out a specific plan in terms of, not of 19 mitigation land or how we determine the amount of mitigation 20 land? 21 DR. SINGLE: Correct. It lays out neither of those 22 aspects. 23 MR. KEENE: Would it be fair to characterize your 24 estimation of the mitigation monitoring section of this DEIR 25 as being, again, nonspecific with regard to mitigation? CAPITOL REPORTERS (916) 923-5447 12784 1 DR. SINGLE: Yes. 2 MR. KEENE: Is it your recommendation, also, then, that 3 this Board take no action until it has a mitigation 4 monitoring plan? 5 DR. SINGLE: That would seem to be a wise course of 6 action for the Board to have everything laid out before 7 them. 8 MR. KEENE: Now, if, and this is a hypothetical, if the 9 maps in the DEIR that establish the place of use were a 10 mistake and that the place of use is actually much larger 11 than that, is it your position that before correcting this 12 mistake that all of this additional environmental work ought 13 to be done? 14 DR. SINGLE: No. I think we should be working from 15 accurate representation of what the boundaries are. 16 MR. KEENE: So the correcting of the mistake wouldn't 17 necessarily require further environmental analysis? 18 MR. CAMPBELL: Objection. Assumes facts not in 19 evidence, assuming that there is a mistake. 20 C.O. STUBCHAER: I thought it was a hypothetical. 21 MR. CAMPBELL: He started with a hypothetical in his 22 previous question, but this question sounded a lot less 23 hypothetical. 24 MR. KEENE: I would submit that Ms. Rupp in my 25 recross-examination indicated that the boundary line that CAPITOL REPORTERS (916) 923-5447 12785 1 was submitted that appears on Map 13-I was a mistake, and, 2 therefore, I would say that it is a fact in evidence. 3 MR. CAMPBELL: It is not a determination that has been 4 made by this Board. 5 C.O. STUBCHAER: You are right. It is in evidence. 6 Could you restate the question? 7 MR. KEENE: Could I have it read back, please. 8 (Record read as requested.) 9 MR. KEENE: That is a question. She didn't read the 10 question mark at the end, but that is a question. 11 MR. CAMPBELL: I still think the question is 12 inappropriate unless it says the question of a mistake, 13 assuming there is one. 14 C.O. STUBCHAER: I think the question could be 15 answered. You can make the assumption. 16 MR. KEENE: Assuming that this Board found that, in 17 fact, Ms. Rupp was correct and that that was a mistake, is 18 the Department of Fish and Game's position that further 19 environmental analysis may not be required in order to 20 correct the mistake? 21 DR. SINGLE: I think that environmental analysis should 22 be required, and it should be based on whatever appropriate 23 boundary lines are as determined by the Board. 24 MR. KEENE: I will accept that answer. 25 Thank you. I have no further questions. CAPITOL REPORTERS (916) 923-5447 12786 1 C.O. STUBCHAER: Mr. Campbell. 2 ---oOo--- 3 CROSS-EXAMINATION OF DEPARTMENT OF FISH AND GAME 4 BY WESTLANDS ENCROACHMENT AND EXPANSION LANDOWNERS 5 BY MR. C. CAMPBELL 6 MR. C. CAMPBELL: Thank you. My name is Christopher 7 Campbell. As far as I know, I am not related to my cousin 8 here. 9 I represent individual landowners within Westlands 10 Water District who own lands that have been identified in 11 the DEIR, State Board Exhibit 2, as either encroachment or 12 expansion lands. So I am going to be going over a lot of 13 the Westlands' issue that Mr. Birmingham raised, but I will 14 try not to repeat anything. 15 First of all, in your responses to Mr. Keene's 16 questioning, you kept referring to ongoing or continuing 17 impacts, and I think you focused in on ongoing takes or 18 possibility of ongoing take. 19 Is it your position that just maintaining land in 20 agriculture that land that used to be habitat, which 21 obviously all of the Central Valley used to be at one point, 22 isn't an ongoing or continuing impact? 23 DR. SINGLE: Not necessarily maintaining the land in 24 agriculture, but there could be associated effects which 25 might be impacts and could be evaluated by the Board. CAPITOL REPORTERS (916) 923-5447 12787 1 MR. C. CAMPBELL: Also, in questioning Mr. Birmingham 2 was asking you about two parcels that were in the same 3 township, one on one side of the line and one on the other. 4 You said different properties, different parcels of 5 property, would have different impacts depending on their 6 site-specific? 7 DR. SINGLE: I believe he asked about the potential for 8 take on those parcels. And, yes, a potential for take of a 9 transient animal on an agriculture parcel depends on a 10 number of site-specific facts such as the access to native 11 habitat. 12 MR. C. CAMPBELL: Mr. Keene went into a similar line of 13 questioning. Isn't it true that animals are going to be 14 more likely to be in the farmland on the last farm next to 15 the native habitat? 16 DR. SINGLE: Yes. 17 MR. C. CAMPBELL: That is true whether there is a line 18 on a map in an office in Sacramento saying that that last 19 farm is within the permitted place of use or outside the 20 permitted place of use, right? 21 DR. SINGLE: Yes. 22 MR. C. CAMPBELL: Most of the people here didn't know 23 the line was on the map, let alone the animals. 24 DR. SINGLE: Animals aren't real good with lines on 25 maps. CAPITOL REPORTERS (916) 923-5447 12788 1 MR. C. CAMPBELL: So that wherever that place of use 2 line is, the last farm is going to be the one where 3 continuing takes are most likely because of the proximity to 4 the habitat? 5 DR. SINGLE: Possibly, yes. I wouldn't say in all 6 cases necessarily so. 7 MR. C. CAMPBELL: Well, the last farm next to the 8 habitat is more likely to have -- 9 DR. SINGLE: Proximity to habitat would increase the 10 chances of take. 11 MR. C. CAMPBELL: Since these encroachment properties 12 are in Westlands' example are the most westerly, they are 13 essentially on the edge of the developed property, to the 14 extent there is a continuing take, it is more related to 15 their location on the edge than the location of the place of 16 use line? 17 DR. SINGLE: Yes. 18 MR. C. CAMPBELL: In your testimony, DFG Exhibit 30, on 19 Page 4 you go through the mitigation that you are 20 recommending. Since I represent people who own this land or 21 some portions of this land that you are requesting 22 mitigation for I would like to go through so that the Board 23 and my clients can understand what this mitigation language 24 or these mitigation conditions you are recommending actually 25 mean. CAPITOL REPORTERS (916) 923-5447 12789 1 What do you mean when you say it is "in kind"? 2 DR. SINGLE: Generally, particular with regard to loss 3 of habitat, it is desirable if a particular kind of habitat 4 type was lost and its impact that requires mitigation, 5 mitigation should create or preserve that same kind of 6 habitat. You don't replace wells with deserts or grasslands 7 with forests, that sort of thing. 8 MR. C. CAMPBELL: In the DEIR, State Board Exhibit 2, 9 most of this land is identified as, or a significant 10 portion, as alkali scrub. So you would recommend that these 11 landowners or someone acquire alkali scrub and do what with 12 it? 13 DR. SINGLE: If there were requirement to mitigate the 14 loss of alkali scrub, then current practices involve either 15 obtaining and preserving such habitats, managing them, 16 enhancing their quality, and in some cases restoring 17 habitats, although that is fairly an experimental situation 18 at present. 19 MR. C. CAMPBELL: Well, moving on, you say mitigated to 20 three-to-one. Does that mean three acres to one acre of 21 farmland, three acres of scrub to one acre of scrub that has 22 been converted to farmland? 23 DR. SINGLE: Yes, that is what that means. 24 MR. C. CAMPBELL: What is the basis for the 25 three-to-one ratio? CAPITOL REPORTERS (916) 923-5447 12790 1 DR. SINGLE: It is a longstanding practice regarding 2 loss of named species habitat in the San Joaquin Valley. It 3 comes from a review of potential to increase the caring 4 capacity of native lands through you preservation and 5 management. As I indicated earlier, there is a general 6 recommendation, and all these are general recommendations, 7 which could be tailored, I think, to particular needs of the 8 Board. 9 MR. C. CAMPBELL: When I am explaining to my client 10 they've plowed one acre and you are saying that they have to 11 go buy three to replace it, why? 12 DR. SINGLE: We think that we can increase the quality 13 with the caring capacity the number of animals that can be 14 sustained on a parcel by approximately a third through sound 15 management. So if we lose -- this is 25 percent. If we 16 lose one acre, we get three acres, and we can enhance -- the 17 three acres already exists somewhere and has existing 18 habitat and animals. We can enhance that existing habitat 19 enough to make up for the loss of that one acre. There is 20 still a net loss in surface area of habitat, but we think 21 through management and preservation the remaining habitat 22 that is reserved can support, make up the difference and 23 support what was lost. That is the rationale for that 24 approach. 25 MR. C. CAMPBELL: Has DFG submitted any evidence in CAPITOL REPORTERS (916) 923-5447 12791 1 this proceeding to support that claim? 2 DR. SINGLE: No, we have not. 3 MR. C. CAMPBELL: Then you say that mitigation should 4 include funding for enhancement and long-term management. 5 What kind of -- back to our one acre of alkali scrub that's 6 been converted to farmland, what kind of dollars are we 7 talking about? 8 DR. SINGLE: Current practice has been looking at -- 9 well, it depends a lot on what specifically is required to 10 manage the property and where it is. Sometimes a lot of the 11 management costs have to do with things like trespass 12 issues, fencing, trash removal, that sort of thing. 13 Typical practice has been to establish endowments. The 14 interest from the endowments is used to manage the parcels, 15 and the endowments have ranged from approximately 150 to 16 $300 an acre. Some of the more intensively managed parcels 17 the endowments have gone to about $500 an acre. The 18 principal is not touched. 19 There are some alternative approaches which are being 20 explored which involve an individual accepting 21 responsibility for management and providing some kind of 22 fallback security should they fail to perform management. 23 MR. C. CAMPBELL: You say per acre, you have three to 24 one -- 25 DR. SINGLE: For the preserved habitat. CAPITOL REPORTERS (916) 923-5447 12792 1 MR. C. CAMPBELL: So for each acre of farmland you have 2 to purchase three acres that presumably meets the DFG 3 requirements. Do you know what the going rate is for any of 4 these habitat types? 5 DR. SINGLE: Offhand I do not. 6 MR. C. CAMPBELL: But at any rate, the farmer who has 7 one acre has to purchase three acres and then provide an 8 endowment to Fish and Game of 300 to $500 per acre? 9 DR. SINGLE: That has been one way of dealing with this 10 issue. I -- 11 MR. C. CAMPBELL: Well, my question is -- 12 C.O. STUBCHAER: Allow him to finish his answer. 13 DR. SINGLE: I did not specify that the farmer that 14 plowed an acre of native land had to do that, and there are 15 other ways of doing this, institutionally or through other 16 agencies as well. 17 MR. C. CAMPBELL: My question is: You're proposing a 18 condition to be added to the permit by this Board, and I am 19 just trying to ask what you mean here. 20 Can I restate your answer? What you are saying is that 21 that acreage could be provided to Fish and Game or to other 22 agencies, that acreage and the endowment moneys? 23 DR. SINGLE: That is part of my answer. And the other 24 part is that your questions seem to assume that this would 25 be a requirement of the individual landowner, and I did not CAPITOL REPORTERS (916) 923-5447 12793 1 say that in my testimony or in my answer. 2 MR. C. CAMPBELL: Who would the requirement be imposed 3 upon if not the individual landowner? 4 DR. SINGLE: I think that would be up to the Board's 5 discretion. 6 MR. C. CAMPBELL: If I can review the bidding -- 7 DR. SINGLE: Well, excuse me -- 8 C.O. STUBCHAER: You're up. 9 MR. C. CAMPBELL: Did you have something to add? 10 DR. SINGLE: Offer to elaborate briefly. The Draft EIR 11 lists a number of Bureau of Reclamation programs which are 12 proposed to mitigate for impacts. These include, if I 13 remember right, these include land retirement programs that 14 are linked to drainage control and other actions. So, the 15 Bureau has already put itself in the position of attempting 16 to provide the remedies for these impacts. 17 MR. C. CAMPBELL: Going on, you say specific mitigation 18 measures should be based on the best available scientific 19 information. Are you proposing that site-specific analysis 20 be done for each of the properties in question? 21 DR. SINGLE: Not directly, but that is something that 22 could be performed, yes, that would fall within that 23 statement. 24 MR. C. CAMPBELL: So, from those recommendations I am 25 counting up that we have one acre of farmland, which CAPITOL REPORTERS (916) 923-5447 12794 1 generally in this eastern area of Westlands -- western area 2 of Westlands is valued in the $2,000 range. You've got 3 three acres that you are requesting be set aside, by an acre 4 of land is 300 to $500, even for range land, 3- to $500 to 5 enhance it. So $500, that is $3,000 and 300 it's closer to 6 $1800 to mitigate each acre of encroachment land that has 7 already been converted? 8 MR. CAMPBELL: Objection. Assumes facts not in 9 evidence. Sounds more like summation of a legal argument as 10 opposed to a question. None of those dollar values have 11 been entered into evidence. The cross-examiner cannot 12 properly provide evidence to this Board. He has asked a 13 question about dollar values about five or ten minutes ago, 14 and we received an answer of "I don't know." 15 C.O. STUBCHAER: That is correct. 16 Mr. Campbell. 17 MR. C. CAMPBELL: It's certainly not correct that he 18 did not give a dollar value on mitigation. He gave a dollar 19 value on mitigation endowments. 20 C.O. STUBCHAER: Right. The land values were yours. 21 MR. C. CAMPBELL: Okay. I will accept that. 22 C.O. STUBCHAER: You can say "assuming," of course. 23 That makes it a hypothetical. 24 MR. C. CAMPBELL: What you are saying is that in 25 addition to the cost of acquiring the three acres, whatever CAPITOL REPORTERS (916) 923-5447 12795 1 that cost, certainly it is something, whoever it is, the 2 landowner, the Bureau, the district, would have to 3 contribute to someone another thousand to $2,000, roughly, 4 for an endowment to maintain that land, per acre of farmland? 5 DR. SINGLE: Not necessarily. There should be some 6 provision for its ongoing management, and funding an 7 endowment is only one way of doing it. I believe that is 8 what I was saying in my testimony. 9 MR. C. CAMPBELL: Since this is going to be expensive, 10 are you familiar with the Central Valley Project -- 11 MR. CAMPBELL: Objection. Argumentative and assumes 12 facts not in evidence. 13 MR. C. CAMPBELL: It is going to take money. I will 14 change it. 15 Are you familiar with the CVPIA restoration fund? 16 DR. SINGLE: No great detail at all, only 17 peripherally. 18 MR. C. CAMPBELL: Do you know if the Department of Fish 19 and Game has a position on whether those restoration fund 20 moneys could be utilized for this type of mitigation? 21 DR. SINGLE: I don't know. 22 MR. C. CAMPBELL: Are you familiar with the written 23 testimony submitted by United States Bureau of Reclamation, 24 Ms. Rupp's testimony, that she -- I believe you were present 25 for the oral review? CAPITOL REPORTERS (916) 923-5447 12796 1 DR. SINGLE: I am familiar with it, generally. I have 2 not analyzed her testimony or delved into it. 3 MR. C. CAMPBELL: Just a couple questions on that. As 4 you have said in that table in the Draft Environmental 5 Impact Report, which I believe you have in front of you, 6 Table III-7, it shows that 49,000 plus or minus slightly 7 more acres in Westlands are encroachment or expansion lands? 8 DR. SINGLE: Yes. 9 MR. C. CAMPBELL: In Ms. Rupp's testimony she stated 10 that the Bureau believes that the appropriate number is 11 12,985 acres in Westlands due to -- that were annexed after 12 the merger statute? 13 DR. SINGLE: Yes. 14 MR. C. CAMPBELL: Does Fish and Game have a position on 15 which number is the correct number that should be analyzed 16 for Westlands? 17 DR. SINGLE: We don't have a position on those two 18 numbers. Our position is that it should be the correct 19 number based on facts. The Board determines. 20 MR. C. CAMPBELL: Going on, she stated that 5,277 acres 21 were annexed and approved prior to CEQA, and USBR believes 22 that no mitigation is appropriate for those. 23 Does Fish and Game agree or disagree with that 24 statement? 25 DR. SINGLE: Well, without going into legal aspects of CAPITOL REPORTERS (916) 923-5447 12797 1 that, there are two things: one is the Board's general 2 responsibilities and the other is the potential of ongoing 3 impacts associated with those lands, which would be a 4 current impact resulting from the Board's current decision. 5 MR. C. CAMPBELL: In addition, she states that another 6 7,063 acres when Pleasant Valley Water District in a 1958 7 crop survey shows that those were cultivated, obviously, 8 with non CVP water because there was no CVP in the area at 9 that time. Therefore, the Bureau believes that no 10 mitigation would be appropriate for those. 11 Does Fish and Game have an opinion on that? 12 DR. SINGLE: I think we need to look at least at the 13 potential for ongoing effects again as a result of the 14 Board's current actions. We do want to see accurate 15 information used to establish what the land uses were at the 16 baseline time. 17 MR. C. CAMPBELL: On Page 5 of your testimony, Fish and 18 Game Exhibit 30, you discussed the Coalinga Habitat 19 Conservation Plan. Have you been personally involved in 20 preparing that? 21 DR. SINGLE: No. But I have reviewed portions of it 22 and held internal discussion with Department staff from time 23 to time on it. 24 MR. C. CAMPBELL: Have you been involved in preparing 25 other habitat conservation plans? CAPITOL REPORTERS (916) 923-5447 12798 1 DR. SINGLE: Yes. 2 MR. C. CAMPBELL: Do you know how many acres are in the 3 Coalinga boundary at this point? 4 DR. SINGLE: At this time I do not. My understanding 5 is that at this point the Coalinga plan has been reduced to 6 approximately either the city boundaries or the smaller 7 sphere of influence around the city, but I couldn't tell you 8 how many acres it is. 9 MR. C. CAMPBELL: Because Fish and Game is stating that 10 the acreage within the HCP area would be fully mitigated, is 11 it possible to submit boundary maps so that we might know 12 which acres might be mitigated by that? 13 DR. SINGLE: Formulating this plan is not within our 14 power, and we are not the ones doing it. That is City of 15 Coalinga. I could attempt to find that information for you 16 or follow up on it some way or another. It is mutable. It 17 is not fixed until it is done. 18 MR. C. CAMPBELL: It is not adopted, of course. 19 In terms of your testimony, you say Fish and Game 20 believes the HCP would mitigate future impacts. First of 21 all, does that refer to encroachment land and expansion land 22 or only to expansion lands? 23 DR. SINGLE: Well, future impacts, so it would be 24 expansion lands. Land use changes that would occur under 25 authority of that or under auspices of HCP from the time it CAPITOL REPORTERS (916) 923-5447 12799 1 was enacted. 2 MR. C. CAMPBELL: Would the HCP also mitigate what 3 you've referred to, I don't want to misstate you, the 4 ongoing and continuing impacts of the encroachment lands? 5 DR. SINGLE: I don't know. I don't know the answer to 6 that question in this particular case. 7 MR. C. CAMPBELL: Could you explain how the HCP 8 mitigates the impacts of the -- you said of the expansion 9 lands it does. How the HCP would act to do that? 10 DR. SINGLE: It would essentially establish conditions 11 that provide mitigation for changes from the native habitat 12 within HCP boundaries, and those chances would be 13 essentially the same changes that would be induced by 14 applying CVP water within those boundaries. So, the impacts 15 are essentially the same, particularly with regard to 16 endangered species. 17 There may be some other -- there may be other impacts, 18 secondary impacts, water supply impacts, that are addressed 19 in Coalinga HCP. But in terms of the land use changes 20 within the HCP boundary, the HCP should mitigate their 21 impacts, in particular with regards to endangered species. 22 MR. C. CAMPBELL: Is it correct to say that the HCP 23 provide a clear set of rules? 24 DR. SINGLE: Yes. 25 MR. C. CAMPBELL: Of what your responsibilities are if CAPITOL REPORTERS (916) 923-5447 12800 1 you are going to convert a particular parcel? 2 DR. SINGLE: Yes. Again, it is in preparation. That 3 is what will come out of it if it is going to be enacted. 4 MR. C. CAMPBELL: HCP is general. 5 Excuse me a second. I want to skip over the questions 6 that have already been handled. 7 In your testimony, Fish and Game Exhibit 30, Page 6, 8 you have a series of recommendations for conditions that you 9 believe the Board should adopt if the Board expands the 10 boundary to include the expansion lands, correct? 11 DR. SINGLE: Yes. 12 MR. C. CAMPBELL: The first item, the 21,000, limiting 13 the net area to which water may be delivered to the 21,000 14 acres, does that come from the DEIR, Staff Exhibit 2, that 15 the 4.5.1 that you previously discussed with Mr. Birmingham? 16 DR. SINGLE: Yes. 17 MR. C. CAMPBELL: That states that the number of acres, 18 that number of acres is based on the amount of water that 19 the preparers believe is available, but the location of 20 those acres is unknown? 21 DR. SINGLE: Yes. 22 MC. C. CAMPBELL: Is your proposal just to limit it 23 generally to 21,000 acres among whatever it is, 13 24 districts? 25 DR. SINGLE: That seems to be the scenario that is CAPITOL REPORTERS (916) 923-5447 12801 1 presented in the Draft EIR, with the difference being that 2 there is no limit to the actual number of acres that could 3 be served. So there is a disparity between the outside 4 boundaries of the new proposed place of use and the amount 5 of area that is estimated that could be served. Very big 6 difference there. And there is also no actual -- there is 7 impact analysis of really of how many acres -- what the 8 impacts would be of how many acres are actually served. 9 So, intent is if DEIR is proposing -- is evaluating a 10 level of impacts based on about 21,000 acres, then maybe 11 21,000 acres should be the amount of service area that is 12 approved. 13 MR. C. CAMPBELL: Fish and Game at this point has no 14 recommendation based on biological considerations as to 15 where those 21,000 acres should be located? 16 DR. SINGLE: No. 17 C.O. STUBCHAER: Mr. Campbell, Christopher Campbell, 18 how much more time? 19 MR. C. CAMPBELL: I am almost done. 20 Pausing occasionally, as I am skipping over questions. 21 We have had a number of questions about CEQA. I just 22 wanted to clarify a couple things. You have talked about 23 the local CEQA process. Are the recommendations that you 24 have here, recommendations to essentially add on to what you 25 believe to be the normal CEQA process? CAPITOL REPORTERS (916) 923-5447 12802 1 DR. SINGLE: No. 2 MR. C. CAMPBELL: You have said in your testimony that 3 CEQA review would not involve conversion of farmland, 4 correct? 5 DR. SINGLE: Typically not, right. 6 MR. C. CAMPBELL: It would not be involved in 7 conversion of farmland, but you are now asking the Board to 8 condition Board and DFG CEQA review if a conversion of land 9 occurred, correct? 10 DR. SINGLE: Yes, for the CEQA process that we are 11 engaged in now or for CEQA process that is tiered to this 12 programmatic EIR. 13 MR. C. CAMPBELL: Let me understand. If, 14 theoretically, it's not actually all that theoretical, I 15 represent a client in Westlands who has 40 acres of land 16 that is zoned ag exclusive and under the zoning they have a 17 right to farm that land, if I understand your 18 recommendations, you are saying that farmer to farm that 40 19 acres of land that they had purchased in the past on 20 reliance on zoning would have to come to DFG and to the 21 State Water Resources Control Board to go through a CEQA 22 review before they could farm that property? 23 DR. SINGLE: No. 24 MR. C. CAMPBELL: Is that what these recommendations 25 say? CAPITOL REPORTERS (916) 923-5447 12803 1 DR. SINGLE: No. I am saying that the Board's action 2 of approving changes that would allow water supply to that 3 property to come under CEQA review. That is the CEQA 4 process there. 5 MR. C. CAMPBELL: I don't want to be argumentative, you 6 are requesting that these conditions -- 7 DR. SINGLE: Are you talking about Condition 3? 8 C.O. STUBCHAER: Please, one at a time. 9 MR. C. CAMPBELL: Conditions 3 and 4. 10 DR. SINGLE: When I say establish requirements for 11 subsequent Board CEQA process, basically that is as 12 described in the Draft EIR, tiered. It alludes to what I 13 assumed to be tiered environmental document, tiered CEQA 14 documents. As this is a programmatic document, there are 15 going to be other CEQA documents that follow and build from 16 this. The suggestion was just firm that up in terms of 17 Board action in that regard. 18 MR. C. CAMPBELL: I am not sure that I got an answer to 19 the question. If my client wants to farm that 40 acres, 20 using the Westlands turnout that they are already using to 21 farm the balance of that quarter section, they would have 22 to, if your suggested condition is adopted, they would have 23 to come to a State Board hearing to get approval to do 24 that? 25 MR. CAMPBELL: Objection. Asked and answered. CAPITOL REPORTERS (916) 923-5447 12804 1 C.O. STUBCHAER: I am going to permit the answer. 2 I would like to ask a question of the questioner: Is 3 this 40 acres inside or outside the existing place of use? 4 MR. C. CAMPBELL: This is currently outside the 5 existing place of use. If the Board granted the change in 6 place of use to include it with the condition requested by 7 DFG. I am trying to figure out what the impact of these 8 conditions would be upon granting the change in the place of 9 use. 10 C.O. STUBCHAER: Understand. 11 DR. SINGLE: No, I was not proposing an additional 12 process. There are, for example, in the Draft EIR 5.3.2.1, 13 each CVP contractor does need CEQA lead agency to prepare 14 and submit a plan, appropriate CEQA environmental document 15 to Reclamation. I believe the Board has a role in that and 16 that Board is establishing itself as the CEQA lead agency 17 through the programmatic EIR. 18 MR. C. CAMPBELL: So the answer is yes? 19 DR. SINGLE: I think the answer to your question is 20 still no. 21 MR. C. CAMPBELL: Last item. I apologize. I lost 22 where it is in your testimony. You say that these 23 conditions are required because you did not believe the 24 compliance with ESA will provide -- excuse me, the 25 Endangered Species Act will provide adequate mitigation for CAPITOL REPORTERS (916) 923-5447 12805 1 some of these impacts? 2 DR. SINGLE: Yes. 3 MR. C. CAMPBELL: Why -- I mean, I don't want to 4 testify, but many of my clients think that with complying 5 the Endangered Species Act is pretty onerous. 6 Why is it that you don't believe that that is 7 sufficient? 8 DR. SINGLE: Essentially, the state Endangered Species 9 Act limits us to considering only currently listed and 10 threatened plants and animals, actually, principally the 11 animals. There are other wildlife impacts, other impacts to 12 rare species that merit this thing that can occur that are 13 not necessarily dealt with under the state Endangered 14 Species Act. That is the bulk of it. 15 Under the federal Endangered Species Act there is an 16 issue of jeopardy, no jeopardy calls. I don't want to get 17 into the legal side of it. Potentially, there are impacts 18 that occur that are other than the take of threatened or 19 endangered animals which is the focus of the state 20 Endangered Species Act. 21 MR. C. CAMPBELL: You are familiar with Department of 22 Fish and Game Exhibit 31, the Recovery Plan for Upland 23 Species in the San Joaquin Valley, California. 24 DR. SINGLE: Yes. 25 MR. C. CAMPBELL: Prepared by the U.S. Fish and CAPITOL REPORTERS (916) 923-5447 12806 1 Wildlife Service? 2 DR. SINGLE: Yes, yes. 3 MR. C. CAMPBELL: You were not involved in preparing 4 that? 5 DR. SINGLE: No. 6 MR. C. CAMPBELL: In that on Page 178, there is a 7 discussion in Paragraph 2, I guess it is 2(i) -- 8 DR. SINGLE: Yes. 9 MR. C. CAMPBELL: -- that species such as the San 10 Joaquin kit fox and others can move through the farmland 11 matrix and linkage can be accomplished in part through a 12 Safe Harbor Program? 13 DR. SINGLE: Yes. 14 MR. C. CAMPBELL: Is that part of the mitigation you 15 would be performing or proposing? 16 DR. SINGLE: I had not considered that. It is 17 certainly an element that could be included as a component, 18 depending on how it balanced impacts, how the whole thing 19 came out in the end. 20 MR. C. CAMPBELL: Can you explain just very briefly 21 what the Safe Harbor Program is? 22 DR. SINGLE: I don't think any two people have the 23 same understanding what a safe harbor program is. But one 24 of the aspects of a safe harbor program that I think could 25 be interesting to many people is it would provide or a safe CAPITOL REPORTERS (916) 923-5447 12807 1 harbor program could provide incidental take coverage to 2 landowners or farmers who are engaged in normal, routine 3 farming activities and happen to incidentally take or 4 accidentally taken an endangered animal that wanders onto 5 their property. It could also provide take authorization 6 for circumstances where farmers bring lands in and out of 7 being fallowed, rotate lands through fallow state, where for 8 whatever purpose, where endangered animals move onto those 9 lands, take up residence, and it is time to rotate them back 10 out. There is a take issue there. 11 Those are some key components of a safe harbor program 12 that I always thought might be worthwhile. 13 MR. C. CAMPBELL: In other words, similar to an HCP, it 14 would provide a clear set of rules to the farmer as to how 15 they manage their lands to stay out of trouble? 16 DR. SINGLE: It could do that, yeah. 17 MR. C. CAMPBELL: Thank you. 18 C.O. STUBCHAER: We will take our 12-minute afternoon 19 break now. 20 (Break taken.) 21 C.O. STUBCHAER: Call the hearing back to order. 22 Mr. Atlas. We seem to be slipping on the two-hour 23 estimate. 24 MR. ATLAS: From what I understand that is more the 25 rule than the exception. CAPITOL REPORTERS (916) 923-5447 12808 1 ---oOo--- 2 CROSS-EXAMINATION OF DEPARTMENT OF FISH AND GAME 3 BY TEHAMA-COLUSA CANAL AUTHORITY 4 BY MR. ATLAS 5 MR. ATLAS: Just a few questions, Doctor. When you 6 prepared your testimony, had you first reviewed any of the 7 environmental impact statements or similar NEPA-type 8 documents that may have been done by the Bureau of 9 Reclamation in connection with the construction of CVP 10 facilities, San Luis Unit, Tehama-Colusa Canal, those 11 preexisting NEPA documents? 12 DR. SINGLE: No, I did not. 13 MR. ATLAS: Did you review the EIR or negative 14 declaration that may have been issued by districts certified 15 by districts in advance of their construction of their local 16 distribution facilities? Speaking of CVP contractors. 17 DR. SINGLE: No, I did not. 18 MR. ATLAS: Did you review any CEQA documents that may 19 have been issued by counties in connection with the creation 20 of their general plans or the amendments of their general 21 plans with respect to land use, water resources and 22 endangered species or similar types of activities? 23 DR. SINGLE: For my review of the Draft EIR I did not 24 review those sorts of plans. I have reviewed those kinds of 25 plans in the past, but not associated with my preparation CAPITOL REPORTERS (916) 923-5447 12809 1 for this. 2 MR. ATLAS: Well, specifically did you review in 3 connection with this CEQA documentation regarding zoning 4 changes relating to agriculture lands in CVP service areas? 5 DR. SINGLE: No. 6 MR. ATLAS: How about CEQA documents in connection with 7 annexations, detachments, district consolidations, similar 8 proceedings under the rules that relate to changes in 9 boundaries of local agencies like water districts? 10 DR. SINGLE: No. 11 MR. ATLAS: Did you review any NEPA documents in 12 connection with the renewal of Central Valley Project water 13 service contracts? 14 DR. SINGLE: No, I did not. 15 MR. ATLAS: How about the CVPIA PEIS, draft PEIS I 16 should say? 17 DR. SINGLE: I did not review that in connection with 18 preparing for this Draft EIR. 19 MR. ATLAS: With respect to those items that I just 20 listed where I referred to CEQA documents, is it fair to 21 characterize those as what you called on Page 5 of your 22 testimony, I will let you turn to it -- strike that. Let me 23 ask it differently. 24 In your testimony on Page 5 you say: 25 A process for future CEQA review is proposed CAPITOL REPORTERS (916) 923-5447 12810 1 that appears to rely on local agency CEQA 2 process. (Reading.) 3 Remember that statement? 4 DR. SINGLE: Yes. 5 MR. ATLAS: Is it fair to characterize the CEQA 6 documents, those in connection with county general plans, in 7 connection with zoning changes, annexations, detachments, et 8 cetera relating to district boundaries, are those local 9 agency CEQA processes? 10 DR. SINGLE: Yes. 11 MR. ATLAS: To the extent then that those CEQA 12 processes and to extent also that the federal NEPA processes 13 that I referred to, EIS, in connection with construction of 14 CVP facilities, contracting rules and all, to the extent 15 that those affect the ability of farmers to farm, how did we 16 rectify that with your statement further down on Page 5: 17 Some actions, notably farming, would not be 18 subject to CEQA review. (Reading.) 19 DR. SINGLE: I was considering existing situations. 20 And it's been my experience that under existing land use 21 scenarios, if a landowner has the appropriate zoning vested 22 right to farm, then there is no additional CEQA review. I 23 was not considering district boundary changes or zoning 24 changes to allow farming because my experience, usually, 25 lands are often agriculture zoned first primarily. CAPITOL REPORTERS (916) 923-5447 12811 1 MR. ATLAS: That is fine, I can accept that. But you 2 can accept also, then, that all of these things I listed are 3 ongoing or at times recurring environmental analyses, both 4 under federal or state law, that may impact that farmer's 5 ability to continue to do business or the ability of other 6 farmers to do business brand new, right? 7 DR. SINGLE: There is that potential, yes. 8 MR. ATLAS: Thank you very much. 9 There is nothing further. 10 C.O. STUBCHAER: Mr. Herrick. 11 ---oOo--- 12 CROSS-EXAMINATION OF DEPARTMENT OF FISH AND GAME 13 BY SOUTH DELTA WATER AGENCY 14 BY MR. HERRICK 15 MR. HERRICK: Thank you, Mr. Chairman, Board Members. 16 John Herrick for South Delta Water Agency. 17 I just have a few questions of Dr. Single. 18 On Page 2 of your testimony, as has been referenced 19 before, right in the middle you reference that the DEIR 20 analysis neglects two important factors, and you list those 21 factors; is that correct? 22 DR. SINGLE: Yes. 23 MR. HERRICK: Why do you believe that the process 24 should proceed without first having some sort of CEQA 25 analysis of those factors rather than go forward with other CAPITOL REPORTERS (916) 923-5447 12812 1 conditions imposed on the petitioners? 2 DR. SINGLE: I am sorry, would you repeat that, 3 please? 4 MR. HERRICK: Why don't you believe a CEQA analysis of 5 those things you believe haven't been analyzed, why don't 6 you believe that that should occur first than later in the 7 process? 8 DR. SINGLE: Why don't I believe it shouldn't occur? 9 MR. HERRICK: Should occur first. 10 DR. SINGLE: Well, actually I do believe it should 11 occur first. But these recommendations were premised on the 12 Board continuing with the CEQA process, not delving into the 13 issue of revising and recirculating the Draft EIR. 14 MR. HERRICK: Is that a convenience issue you've taken 15 into consideration? 16 DR. SINGLE: Not necessarily. I was assuming the Board 17 was going to proceed with this Draft EIR rather than revise 18 it or recirculate. So it's an assumption on my part. 19 MR. HERRICK: Do you believe the mitigation for any of 20 the adverse effects should be identified first before the 21 condition petition is granted? 22 DR. SINGLE: I believe at least the general guidelines 23 for mitigation and the process by which mitigation would be 24 identified should be identified at a level appropriate for a 25 programmatic document. CAPITOL REPORTERS (916) 923-5447 12813 1 MR. HERRICK: On Page 3 of your testimony under, I 2 guess 2(b), you talk about the consolidation of place of 3 use. You say that: 4 Proposal is consistent with the Department's 5 commitment to integrated water source 6 management and large area planning. 7 (Reading.) 8 Let me back up and see if I can explore your acceptance 9 of that part of the petition a little bit. 10 As it currently establishes, each of the Bureau's 11 reservoirs has a permit or, I guess, a permit that sets 12 certain conditions for amounts and purposes of use of water; 13 is that correct? 14 DR. SINGLE: I will assume that, yes. 15 MR. HERRICK: Generally, without getting into which is 16 which, one would expect that each reservoir has a different 17 downstream obligation for purposes of fish and wildlife 18 preservation? 19 DR. SINGLE: Okay. 20 MR. HERRICK: I assume that would be reasonable to 21 assume, given that they're different places and different 22 links of streams down below them and stuff like that, right? 23 Would you agree with that? 24 DR. SINGLE: Okay. 25 MR. HERRICK: If you consolidate place of use, then one CAPITOL REPORTERS (916) 923-5447 12814 1 reservoir's water can go to a use that would have been 2 previously provided by a different reservoir's water; is 3 that correct? 4 DR. SINGLE: I believe so. 5 MR. HERRICK: Does the Department have any position on 6 whether or not that ability to use different water causes 7 potential adverse environmental effects? 8 DR. SINGLE: I don't believe that we have formulated a 9 position on that particular question. We would want the 10 Board to consider such effects and deal with them as 11 appropriate under their conditions. 12 MR. HERRICK: As an example, let's just say if 13 previously the Bureau used a permit for Shasta to provide 14 water for environmental purposes in the Delta and since they 15 had the petition changed, they were able to use water that 16 came from Folsom, that would change, potentially change, the 17 water available in Folsom in future years for other 18 purposes? 19 DR. SINGLE: That could. 20 MR. HERRICK: Do you believe that sort of potential 21 impact is examined in this programmatic EIR? 22 DR. SINGLE: I didn't recollect that kind of analysis 23 was in the Draft EIR. 24 MR. HERRICK: Do you believe that should be done before 25 any petition is authorized? CAPITOL REPORTERS (916) 923-5447 12815 1 DR. SINGLE: It seems suitable. 2 MR. HERRICK: On Page 4, which is your discussion of 3 recommended -- which includes your discussion of recommended 4 conditions if the Board approves 3a, you state that under 5 Number 2: 6 The Department should be included as a 7 participant in designing mitigation. 8 (Reading.) 9 Do you see that? 10 DR. SINGLE: Yes. 11 C.O. STUBCHAER: Mr. Keene. 12 MR. KEENE: I believe that the question misstated what 13 that item was. At the bottom of Page 3 it indicates that 14 condition or recommended condition whether the Board 15 approves or denies. 16 C.O. STUBCHAER: That is correct. 17 MR. HERRICK: Correct. I will restate that. I did not 18 mean to mischaracterize that. 19 I was referring to Page 4 which lists conditions which 20 you have recommended be implemented whether or not the Board 21 approves or denies the petition? 22 DR. SINGLE: Yes. 23 MR. HERRICK: One of those under Number 2 is that the 24 Department be included as a participant in designing 25 mitigation; is that correct? CAPITOL REPORTERS (916) 923-5447 12816 1 DR. SINGLE: Yes. 2 MR. HERRICK: Now, that is based on your belief that 3 there are possible adverse effects to fish and wildlife that 4 may result -- that have resulted from the use of CVP water 5 on various lands; is that correct? 6 DR. SINGLE: Yes. 7 MR. HERRICK: I say that because you said whether or 8 not it is approved or denied. I assume that includes 9 whether or not it causes something new or perpetuates 10 something that occurred in the past? 11 DR. SINGLE: Correct. I believe it is possible that 12 those impacts exist. 13 MR. HERRICK: Are there other potential impacts that 14 could result or have resulted that are not within the 15 purview of the Department of Fish and Game? And maybe a 16 better way to restate that: Are the adverse environmental 17 impacts that are of concern in the CEQA review limited to 18 fish and wildlife impacts? 19 DR. SINGLE: No. 20 MR. HERRICK: Who do you suggest also be included as a 21 participant in designing mitigation to address those other 22 potential adverse impacts? 23 DR. SINGLE: I don't know. I would assume that the 24 Board would want to have appropriate trustee agencies or 25 other sources of expertise work with the Board staff on the CAPITOL REPORTERS (916) 923-5447 12817 1 particular affected areas. 2 MR. HERRICK: Say, for example -- let me do a 3 different question. 4 Wouldn't the potential need for other parties to be 5 involved in designing mitigation argue for an analysis and 6 determination of mitigation before you proceed rather than 7 after? 8 DR. SINGLE: To some extent it may be possible, I 9 think, to also proceed with the programmatic EIR by not 10 defining the mitigation precisely, but defining the general 11 scope of mitigation and how mitigation requirements would be 12 determined. 13 MR. HERRICK: But you would agree that the Department 14 of Fish and Game, for example, isn't taking any position on 15 whether or not the Vernalis water quality is being complied 16 with? 17 MR. CAMPBELL: Objection. Relevance to -- irrelevant 18 to Phase VII of this proceeding. 19 C.O. STUBCHAER: As you know, we do allow some 20 latitude. But before I rule, Mr. Herrick. 21 MR. HERRICK: I was just going to say I am not going 22 very far with this. I am trying to highlight the point that 23 Fish and Game believes it should be there in order to make 24 sure that mitigation is done correctly. But there are areas 25 outside of its concern and, therefore, other parties might CAPITOL REPORTERS (916) 923-5447 12818 1 want to have that sort of review. 2 C.O. STUBCHAER: The objection is sustained. 3 (Discussion held off record.) 4 MR. HERRICK: Dr. Single, there were questions put to 5 you where you made references in your testimony on Page 6 IV-17. 7 Do you recall those generally? 8 DR. SINGLE: Turning to IV-17. 9 MR. HERRICK: Sure. 10 DR. SINGLE: I don't recall all the questions regarding 11 this section. 12 MR. HERRICK: According to Table 6-6, which is referred 13 to on Page 4-17, but appears on 4-18, there are apparently 14 some contractors who are not currently using all of their 15 contracted for water, thus potentially enabling them to 16 increase the areas that are developed; is that correct? 17 DR. SINGLE: I believe so. This is the 13 CVP water 18 contractors; the 13 CVP contractors that have both land 19 developed and surplus CVP waters. So, both of those 20 requirements, I believe. 21 MR. HERRICK: You were reading a portion of the 22 language on Page IV-17? 23 DR. SINGLE: Yes. 24 MR. HERRICK: Is there anything that you know that 25 prevents those CVP contractors from exercising that right to CAPITOL REPORTERS (916) 923-5447 12819 1 that additional water and then transferring to other CVP 2 contractors whose service area may be increased by this 3 petition? 4 DR. SINGLE: I am not aware of any particular 5 restrictions. 6 MR. HERRICK: If the Board would bear with me, 7 obviously most of my questions have been asked. I don't 8 want to repeat. 9 I guess as a final question, excuse me if this is too 10 labored a sentence. I just want to get your opinion on 11 this, Dr. Single. 12 If the harm to the environment that resulted from a 13 prior action, and that action being delivery of CVP water, 14 was a result of deliveries contrary to the permit conditions 15 that allow that water to be delivered, do you believe that 16 review and determination of mitigation should still be done 17 now rather than just authorizing that prior potential harm? 18 DR. SINGLE: Yes. 19 MR. HERRICK: That is all I have. 20 Thank you, Mr. Chairman. 21 C.O. STUBCHAER: Mr. Herrick. 22 Does staff have any questions? 23 Mr. Canady. 24 ---oOo--- 25 // CAPITOL REPORTERS (916) 923-5447 12820 1 CROSS-EXAMINATION OF DEPARTMENT OF FISH AND GAME 2 BY STAFF 3 MR. CANADY: I have just a few, Dr. Single. I refer 4 you to testimony on Page 4 and near the bottom of Page 4, 5 under .2 and the last, I'll call it, bullet or dash, it's 6 referring to whether or in fact the Board approves Change 7 3a, this is one of DFG's recommendations that an 8 implementation schedule be established that targets 9 completion of mitigation obligations within six years? 10 DR. SINGLE: Yes. 11 MR. CANADY: Can you explain what the importance of a 12 six-year deadline is? 13 DR. SINGLE: I think it is important to establish some 14 kind of reasonable time frame for implementing the 15 mitigation, and does something that certainly should be 16 adjusted, depending upon the scope of mitigation required. 17 It may be actually more feasible to target segments of 18 mitigation especially as -- take that back. 19 As impacts are identified and mitigation measures are 20 identified and possibly required by the Board, the other 21 part to that is that we need to have some kind of time line 22 for implementation. Six years seemed like a reasonable time 23 line based on my experience with other projects plus, but 24 certainly something that could be flexible as long as there 25 were some kind of completion schedule as opposed to the CAPITOL REPORTERS (916) 923-5447 12821 1 open-ended programmatic nature of the Bureau's programs 2 listed in the Draft EIR. 3 MR. CANADY: You would agree with me that the time 4 frame could be sensitive to funding availability? 5 DR. SINGLE: I think it would have to be to some 6 extent, yes. 7 MR. CANADY: Fish and Game provided DFG Exhibit 31 8 Revised. Are we to assume that the draft document, we are 9 no longer to consider that? How does the department want us 10 to handle -- 11 DR. SINGLE: I would replace the draft with the final 12 because the final incorporates comments from Fish and 13 Wildlife Service reviewers, is their adopted recovery plan. 14 MR. CANADAY: Is this a Fish and Game document? 15 DR. SINGLE: No. It is Fish and Wildlife Service 16 adopted recovery plan. It represents the best compilation 17 of information on these affected plants and animals within 18 the San Joaquin Valley. So it is presented to the Board in 19 that context. 20 MR. CANADY: Would it be your opinion or would you 21 agree with me that this recovery plan, what we are talking 22 about is DFG 31 Revised, represents a good example of types 23 of mitigation programs that the Department would support -- 24 DR. SINGLE: Yes. 25 MR. CANADY: -- as to species that would be impacted? CAPITOL REPORTERS (916) 923-5447 12822 1 DR. SINGLE: Yes, absolutely. Particularly insofar as 2 the impacts of these actions in the San Joaquin Valley 3 affected or could affect these kind of habitats and these 4 kind of species. That recovery plan provides a sound frame 5 work for directing mitigation and conservation efforts. 6 MR. CANADY: One question to link back the draft to 7 the final. I am talking about Executive Summary under Page 8 XI. It talks about totality estimated cost of recovery? 9 DR. SINGLE: Yes. 10 MR. CANADY: In priority one task here identifies a 11 cost of $19,000,000. To your knowledge, is that the 12 currently accepted number for priority one costs? 13 DR. SINGLE: I am not familiar with the current cost 14 estimate. 15 MR. CANADY: But it represents a change from the 16 draft? 17 DR. SINGLE: I will verify. 18 Yes, it does. 19 MR. CANADY: So, this is the number if we were to take 20 notice of it? This would be the number because it is the 21 final, so we should take notice of it? 22 DR. SINGLE: Yes. 23 MR. CANADY: That is all I have. 24 Thank you. 25 MS. LEIDIGH: I have no questions. CAPITOL REPORTERS (916) 923-5447 12823 1 C.O. BROWN: I have one, Mr. Chairman. 2 ---oOo--- 3 CROSS-EXAMINATION OF DEPARTMENT OF FISH AND GAME 4 BY BOARD MEMBERS 5 MR. BROWN: I believe Mr. Keene asked this. I want to 6 make sure I understood it correctly. Westlands or other 7 areas that were being serviced that is outside the place of 8 use, if those lands were admitted due to error, a drafting 9 error, or for whatever reason, then you suggested that these 10 lands should continue to receive water and require no 11 additional environmental work? 12 DR. SINGLE: In essence, yes. I guess, in my opinion, 13 it would depend somewhat on the scope of the error. And I'm 14 thinking more in terms of, as you said, drafting errors, 15 actual technical errors as opposed to intent. 16 C.O. BROWN: Thank you, Mr. Chairman. 17 C.O. STUBCHAER: You're welcome. 18 Mr. Campbell, do you have any redirect? 19 MR. CAMPBELL: No, we do not. 20 C.O. STUBCHAER: No redirect. 21 Do you wish to do the exhibits? 22 MR. CAMPBELL: Yes. 23 Department of Fish and Game would like to move into 24 evidence at this time DFG Exhibit 9, 30, DFG Exhibit 30-A, 25 and DFG Exhibit 31 Revised. CAPITOL REPORTERS (916) 923-5447 12824 1 C.O. STUBCHAER: Those numbers jive? 2 Any objections? 3 Seeing none, they are accepted. 4 MR. CAMPBELL: Thank you. 5 C.O. STUBCHAER: I don't remember if we had any 6 cross-examination exhibits. Anyone have any? 7 All right. That concludes the case in chief of Fish 8 and Game? 9 Thank you, Dr. Single, for your participation. 10 DR. SINGLE: Thank you. 11 C.O. STUBCHAER: Excused. 12 And we will now move on to the case in chief of Tehama. 13 I don't know if I say that correctly, Colusa Water Canal 14 Authority. 15 MR. ATLAS: You do now. 16 C.O. STUBCHAER: I didn't before. I used a short "a" 17 instead of a long "a." 18 MR. ATLAS: It's Tehama. 19 C.O. STUBCHAER: Good afternoon, Mr. Atlas. 20 MR. ATLAS: If we can take just a moment. I have a 21 panel of four witnesses. 22 C.O. STUBCHAER: Have these witnesses taken the oath? 23 MR. ATLAS: No. 24 (Oath administered by C.O. Stubchaer.) 25 ---oOo--- CAPITOL REPORTERS (916) 923-5447 12825 1 DIRECT EXAMINATION OF TEHAMA-COLUSA CANAL AUTHORITY 2 BY MR. ATLAS 3 MR. ATLAS: Mr. Chairman and Members of the Board, my 4 name is Mark Atlas, as you know. I have an opening 5 statement. It will not take long. Just a lot of copies. 6 Sorry. 7 As you know, I represent the Tehama-Colusa Canal 8 Authority. The Authority is a joint powers authority 9 consisting of 15 water agencies that receive water 10 deliveries through the Bureau of Reclamation, Tehama-Colusa 11 and Corning Canals. 12 The managers of four of the larger member agencies of 13 the authority about their Central Valley Project water 14 supplies and Reclamation's failure, despite promises from 15 the highest levels of the government for decades, despite 16 Congressional recognition of the state's areas of origin 17 laws and policies and despite this Board's own imposition of 18 these protections as a necessary condition on CVP water 19 rights to provide these districts with contracts for an 20 adequate CVP water supply. 21 Meanwhile, as you have so often heard in this and other 22 phases of your hearing, Reclamation seeks authority to make 23 additional exports feasible. 24 We think the time is now to stop draining the 25 Sacramento Valley. CAPITOL REPORTERS (916) 923-5447 12826 1 Let me take you back in time a bit. Imagine yourself a 2 farmer on the west side of the Sacramento Valley in the late 3 1940's. The United States has begun investigating expansion 4 of the new Central Valley Project to serve parts of the 5 Sacramento Valley. You are suspicious of the CVP for many 6 reasons. Only a few years after water projects to serve 7 Southern California have depleted the Owens Valley here is a 8 project that has the potential to do the same to your 9 valley. 10 During the depression many of your neighbors in the 11 area, maybe even some relatives, lost their property because 12 of the defaults on irrigation and district lines. And the 13 districts with historic Sacramento River water rights, where 14 you might even be farming some land, are facing a major 15 battle with Reclamation over the government's sudden claim 16 to rights to water that the farmers developed for themselves 17 and have been using for more than 60 years, long before 18 Shasta Dam was completed. 19 As a farmer in the area plan for Tehama-Colusa Canal 20 service, you have a dry land grain or livestock operation. 21 Unlike other CVP service areas, yours is not one of 22 significant irrigated farming that needs service water to 23 replace declining water levels. Rather, you have to be 24 convinced that the CVP will make your life better, and, if 25 you make the commitment to shift to irrigated agriculture, CAPITOL REPORTERS (916) 923-5447 12827 1 your future as a CVP contractor will be secure. 2 Reclamation sends a representative from their office in 3 Chico to meet with your neighbors and you on many occasions, 4 I might add. He explains that the government doesn't 5 contract with individuals, "You need to form water districts 6 and you need to sign water contracts soon so that 7 Reclamation can demonstrate to Congress there is interest 8 here in a canal project." 9 Later Reclamation will even open an office in Willows, 10 in the very building where my firm's law office was and 11 still is. But the concerns of the people persist. In 12 response, the United States repeatedly and adamantly 13 professes to Congress, to you farmers, to community leaders 14 and to anyone who will listen that the CVP's expansion into 15 the San Joaquin Valley will be absolutely linked with the 16 assurances that your own present and future needs will be 17 protected. 18 Yesterday I put up on the overhead and you saw the 19 words that Julius Krug, the Secretary of the Interior in 20 1948, said in a speech in Oroville. Other Interior 21 officials at every level, almost too many to count, repeat 22 the commitment. 23 Yesterday I also put up on the overhead the words of 24 the Congress of the United States, who after hearing those 25 words at special hearings, authorized the construction of CAPITOL REPORTERS (916) 923-5447 12828 1 the Sacramento Valley canals and say that those canals are a 2 desirable step to implement the intent of the legislation of 3 the State of California to protect the areas of origin. And 4 you heard the testimony of Ms. Rupp telling you that the 5 United States wants you to enforce the intent of Congress 6 with respect to the CVP. 7 With these promises ringing in your ears as a farmer in 8 the Sacramento Valley, you undertake the plan the government 9 has laid out. You form districts. You sign water contracts 10 for an initial supply of water long before the first 11 shovelful is turned on the canal. You encumber your land 12 through your districts to build distribution systems to 13 convey the water from the canals to your farm, and you take 14 on huge debts to level your land, install irrigation 15 systems, buy new equipment and do all the other things 16 necessary to transform yourself into a modern, irrigated 17 agricultural operation operator that you expected to be. In 18 effect, you mortgage your life and your future to the United 19 States. 20 In the process you sacrifice your financial capability 21 to develop your own water supply projects. But why not? 22 You won't ever need one, will you? 23 Reclamation and others would have us believe that that 24 is all so much ancient history, perhaps interesting, but 25 largely irrelevant. We disagree. CAPITOL REPORTERS (916) 923-5447 12829 1 While the circumstances today may be different than 2 your predecessors on this Board and ours thought they would 3 be 50 years ago, the results will be identical. Reclamation 4 plans to export more water out of the watersheds of origin. 5 But to this day these districts have yet to receive a CVP 6 water service contract for an adequate water supply. And in 7 drought years, when Secretary Krug's successor in office 8 allocates water as a percentage of contract supply, which is 9 how they do it, those districts are doubly punished. 10 When questioned about how they've turned their backs 11 on commitments, Reclamation offers the most frustrating 12 double speech. Sometimes they acknowledge that they have an 13 area of origin obligation and intend to provide the 14 necessary water for these districts; and you saw that on the 15 overhead yesterday, a letter from the regional director. 16 Sometimes they assert that they have already met their area 17 of origin obligations by contracting with the agencies 18 within the watershed, even though the contracts are 19 inadequate. Sometimes they deny any CVP area of origin 20 obligation at all, other than to respect the rights of 21 people in the protected watersheds to develop their own 22 rights and projects. 23 Reclamation's disdain is astonishing. What an absurd 24 world it will be if the farmers of the Sacramento Valley 25 could be induced to mortgage themselves to the government so CAPITOL REPORTERS (916) 923-5447 12830 1 that the same government could acquire the water rights it 2 needed for the CVP, now to be told their only hope is to 3 build their own project when more than sufficient CVP water 4 to meet all their needs passes their canal intake every 5 single year headed for export. 6 Reclamation's duplicity has backed these districts into 7 a corner. You will hear these district representatives 8 testify that they are not receiving the water to which they 9 are entitled under area of origin laws and Reclamation 10 admits that they are short. They will also testify that 11 because of their CVP obligation their districts cannot 12 afford to develop their own water rights and facilities. 13 In the case of Orland-Altois Water District, 14 Reclamation even told the California State Treasurer in an 15 oversight hearing on the district's proposed water 16 distribution and system loan contract that they were urging 17 the district to annex additional land, knowing that their 18 water contract was inadequate but assuring that the quantity 19 would be increased when necessary. 20 In the interest of time, I have a written statement 21 that goes on but I think that is enough. We will get a feel 22 for it here. I plan to call the four witnesses as a panel 23 in order, starting with Mr. Lohse. And so, I guess without 24 further adieu -- 25 MR. TURNER: At this point -- CAPITOL REPORTERS (916) 923-5447 12831 1 C.O. STUBCHAER: Mr. Turner. 2 MR. TURNER: Mr. Stubchaer, I would like to register a 3 formal objection to the introduction of any of this 4 testimony into the record. As I mentioned when Mr. Atlas 5 was cross-examining the Department of the Interior 6 witnesses, I fail to see how this particular testimony is at 7 all relevant to the subject matter of this proceeding, this 8 particular phase of the proceeding. 9 As you are well aware, this is the phase in which you 10 are considering the Bureau of Reclamation's petition to 11 modify, let us say, the place of use and purposes of use in 12 16 CVP permits. Mr. Atlas's testimony is all addressing the 13 manner in which the Central Valley Project has been operated 14 in the past by way of allocations of water to its 15 contractors. I fail to see where there is any relevance to 16 this in any way, shape or form to the subject matter of this 17 proceeding, and I would object to this being admitted as 18 part of the record in this phase. 19 C.O. STUBCHAER: Mr. Atlas. 20 MR. ATLAS: Well, I don't see the distinction between 21 Mr. Turner's characterization of the issues here as 22 something that is simply operational. He said this has to 23 do with the way the Bureau's operating in allocating 24 contract supply. It, in fact, deals with how the Bureau 25 allocates its contract supply. CAPITOL REPORTERS (916) 923-5447 12832 1 I invite the Board to remember one of the exhibits 2 which was part of Ms. Rupp's testimony, that being a letter 3 from Neal Shield, the Assistant Regional Director, to Jack 4 Campbell, Mr. Alves' predecessor as manager of Glide Water 5 District. When the issue was raised about the purpose of 6 the Bureau's petition to expand the place of use, Mr. 7 Hancock said, "Your letter expressed concern about the 8 initiating of these negotiations prior to completing the 9 water marketing programs in the Tehama-Colusa and Corning 10 Canal service area." He said, "The proposed petition would, 11 among other things, expand the place of use to cover all 12 areas that might logically be served with CVP water in the 13 near future, particularly areas in the Sacramento Valley 14 under the area of origin concept." And later in the letter 15 he says, "We met with representatives of concerned water 16 districts in the Sacramento Valley in March 1985. We 17 assured those in attendance that we fully intend to identify 18 the water demands of the areas of origin and provide the 19 water needed." The United States has submitted the issue 20 right in front of you. 21 C.O. STUBCHAER: Mr. Nomellini. 22 MR. NOMELLINI: Yes. Mr. Chairman, it is quite clear 23 that the proposal before us in this phase has two parts. 24 One is the expansion of the place of use, and the other is a 25 change with regard to the purpose of use by consolidating CAPITOL REPORTERS (916) 923-5447 12833 1 the various purposes for the permits. 2 It is clear in the environmental document that some of 3 the additional water use that is facilitated by the changes 4 requested will be in M&I. And it is further clear in the 5 record that M&I enjoys a smaller deficiency during droughts 6 than agriculture. So the increase in M&I use, because some 7 of these districts have uncommitted entitlement that would 8 be facilitated by these changes, will result in there being 9 less of a supply for agriculture, both above the Delta and 10 south of the Delta. 11 In addition, this proposal includes expansion of place 12 of use south of the Delta, which could very well add to the 13 sharing of water by people north of the Delta, and there is 14 nowhere in here for any provision of priority for the 15 northern districts because of their location within the 16 watersheds of origin. 17 So I think it is all very relevant. It is the exact 18 petition by the Bureau that brought this matter before us 19 and the testimony, I think, should be allowed, should not be 20 stricken pursuant to the motion. 21 C.O. STUBCHAER: Mr. Birmingham, followed by Mr. 22 Turner, followed by Mr. Herrick. 23 MR. BIRMINGHAM: I will preface my remarks by saying 24 that Westlands Water District certainly is sympathetic to 25 the position that these water districts find themselves CAPITOL REPORTERS (916) 923-5447 12834 1 in. I too am going to join in -- I will join in Mr. 2 Turner's objection on the grounds that the testimony that 3 has been submitted is irrelevant to the question before the 4 Board. 5 The question that is before the Board is should it 6 authorize a change in the permitted place of use or purposes 7 of use. And the standard by which that application is 8 judged set out in Section 1702 of the Water Code. And the 9 question is: Will the change injure a legal user of the 10 water involved? 11 The testimony that has been submitted by the 12 Tehama-Colusa Canal Authority districts pertains to the way 13 in which Reclamation has administered its contracts with 14 them and whether or not that violates the area of origin 15 laws. That issue could be addressed in a number of ways, 16 including filing a complaint with the Board. 17 That hasn't been done. The testimony does not relate 18 to whether or not change in place of use will deprive these 19 water districts of water that they have been using. Again, 20 that is the standard by which the change should be judged 21 under the Water Code, and unless this evidence is relevant 22 to that question, it should be excluded. 23 C.O. STUBCHAER: Mr. Turner. 24 MR. TURNER: The only thing I would like to add is that 25 during the direct testimony, in both written testimony and CAPITOL REPORTERS (916) 923-5447 12835 1 oral testimony, it has been restated numerous times by Ms. 2 Rupp that the Bureau is not by this petition requesting 3 permission to allocate any more water to any of the existing 4 contractors. 5 This petition, as I will remind, is addressing trying 6 to have the -- making sure that the permit, the places of 7 use and the purposes of use described in the permit, are 8 consistent with the current Bureau allocations of water to 9 its contractors. There is nothing through this petition 10 that is in any way, shape or form going to result in some 11 additional water being allocated out of the Sacramento 12 Valley to the San Joaquin Valley. 13 I think what is critical to keep in mind is that all of 14 this testimony that Mr. Atlas is proposing to present is 15 based on the premise that now the Bureau is going to steal 16 more water from the Sacramento Valley. The reallocations of 17 water is not being proposed in this proceeding. 18 C.O. STUBCHAER: Mr. Herrick. 19 MR. HERRICK: South Delta would also oppose the 20 objection that has been made. The petition is for change in 21 place and purposes of use. If the issue of current 22 operations is not relevant to determine whether or not 23 change in that place or purpose of use affects other 24 parties, then there is no reason for reviewing the petition. 25 Just grant it outright. Of course, it is a relevant CAPITOL REPORTERS (916) 923-5447 12836 1 portion. 2 Number two, we are here to determine whether or not 3 conditions should be imposed upon the permits if the change 4 is granted. To say that one party can't propose that the 5 Bureau be forced to comply with other permit conditions or 6 another specific permit condition be instituted so they 7 comply with the law. You know, that doesn't make any 8 sense. 9 Thirdly, I will say that it doesn't matter what the 10 Bureau's intent is, past, present or future, the potential 11 effects from the change. And not withstanding the Bureau's 12 reassurance that they are reallocating or looking to change 13 deliveries, the question is what can they do under the 14 petition for changes, and they certainly can make changes 15 and there certainly can be effects. I think it is clear 16 this is extremely relevant and important for the Board to 17 hear at this time. 18 Thank you. 19 C.O. STUBCHAER: Mr. Atlas. 20 MR. ATLAS: I just underscore that it is, in fact, a 21 part of the Board's notice. You asked what conditions would 22 be appropriate on the request. The United States has 23 submitted the issue of contracts and area of origin. I 24 couldn't have asked for a better exhibit to be a part of 25 their testimony than that letter, I think, to tee up this CAPITOL REPORTERS (916) 923-5447 12837 1 issue. 2 In addition, Mr. Turner, I hope, misspoke. He said the 3 Bureau wasn't here asking permission to have this Board 4 allocate its water. I suspect that he wouldn't stipulate 5 that this Board has the authority to tell the Bureau how to 6 allocate its water. If he will, then we will be back here 7 on another day. 8 But I am here with these witnesses to offer testimony 9 that I think addresses what sort of condition this Board 10 ought to consider with respect to the change in place of 11 use. I remind the Board about the testimony we heard in 12 Phase VI about the potential loss of the entire yield of the 13 Trinity Project to the CVP and the implications that has for 14 those who are already in the current place of use of the 15 Shasta permits. And I think that this testimony is 16 extremely relevant. 17 C.O. STUBCHAER: We are going to go off the record for 18 consultation. 19 (Discussion held off the record.) 20 C.O. STUBCHAER: The objection is overruled. 21 Please proceed. 22 MR. ATLAS: Thank you. Start with Mr. Lohse. 23 Mr. Lohse, at the time that you prepared the written 24 statement that has been submitted, you were the manager of 25 the Orland-Altois Water District; is that right? CAPITOL REPORTERS (916) 923-5447 12838 1 MR. LOHSE: Right. 2 MR. ATLAS: Since then you left that position; is that 3 right? 4 MR. LOHSE: That's correct. 5 MR ATLAS: Would you tell the Board what your current 6 position is. 7 MR. LOHSE: Currently I am a farmer again, since 8 January 1st. Enjoy farming walnuts and using the water 9 instead of arguing over it. 10 MR. ATLAS: Mr. Lohse, then would you summarize your 11 written testimony, please. 12 MR. LOHSE: As I mentioned, I am Gus Lohse, the 13 previous manager of Orland-Altois Water District, OAWD. I 14 held that position since 1987, until December of 1998. I 15 was raised on a ranch, part of which is in the OAWD service 16 area. Before leaving to finish my undergraduate study, I 17 farmed a variety of crops in OAWD. 18 OAWD is located in Glenn County in the Sacramento 19 Valley, about 90 miles north of Sacramento. It is a 20 contractor for water from the Central Valley Project, having 21 first executed its contract in 1963. 22 OAWD includes approximately 29,000 acres and its 23 current CVP contract provides for only 53,000 acre-feet. 24 Reclamation has admitted that OAWD needs an additional 25 supply, and no less than 36,700 acre-feet under CVP CAPITOL REPORTERS (916) 923-5447 12839 1 contract, but has refused to contract for any more water. 2 OAWD's lands are served through fully metered, 3 underground pipeline distribution system, and the district 4 has a strict policy on recapture of irrigation runoff. 5 Like many districts in the Tehama-Colusa Canal service 6 area, OAWD was formed to serve an area that had little in 7 any groundwater resources and no other source of surface 8 water. Historically, it was an area of large, dry land 9 grain or livestock farming operations. In contrast, now, 10 within the advent of CVP water supplies, land holdings are 11 smaller, the crops are significantly more varied, including 12 almonds, prunes, olives, corn, sunflower, alfalfa and 13 various seed crops, wine vineyards and rice. 14 At the time of OAWD's first water service contract, 15 neither Tehama-Colusa Canal, from which the water is 16 delivered, nor any district distribution facilities existed. 17 In order to demonstrate the demand for CVP water the 18 feasibility of the construction of the Tehama-Colusa Canal, 19 it was Reclamation's practice to have the district execute 20 water service contracts long before the water was 21 available. Thus, OAWD executed its first water contract in 22 1963. 23 Reclamation admits that OAWD's present water contract 24 is inadequate to meet the district's CVP water needs. In 25 fact, Reclamation's stated intent was that OAWD should CAPITOL REPORTERS (916) 923-5447 12840 1 continue to expand its service area by annexing land, and 2 Reclamation would continue to amend its water contracts 3 accordingly. 4 TCCA Exhibit 11 is correspondence between Reclamation 5 and California State Treasurer's District Security Advisory 6 Commission in 1975 and '76 and official minutes of the 7 commission hearing on OAWD water service and pipeline 8 prepayment contract. 9 The commission was concerned that OAWD's water supply 10 was not adequate, and that the district would not be able to 11 repay Reclamation for the cost of the pipeline system. 12 Reclamation stated that also -- although their opinion was 13 53,000 acre-feet was adequate for OAWD at the time. It had 14 designed a distribution system to serve more than 31,000 15 irrigatable acres, and it urged OAWD to annex additional 16 land. We did exactly that. 17 By letters dated August 5th, 1986, and March 31st, 18 1987, TCCA Exhibits 13, Reclamation solicited OAWD's request 19 for additional water. OAWD supplied data, worked with 20 Reclamation and its consultant, CH2M Hill and Jones & Stokes 21 and the district's future water needs. And the result was 22 Reclamation's determination that OAWD's supply was 23 inadequate by 36,700 acre-feet. 24 Nevertheless, Reclamation has refused to contract for 25 any additional water for OAWD. For instance, during the CAPITOL REPORTERS (916) 923-5447 12841 1 negotiations for water contract renewals in 1994, 2 Reclamation refused to discuss any increase in the 3 district's contract water supply. During those 1994 4 negotiations, Reclamation also denied that it had any 5 obligation under the area of origin protections to provide 6 any special protection for CVP contractors in the Sac 7 Valley. Reclamation also asserted that the only area of 8 origin obligation it has is that this Board could give a 9 filing by a potential water user in a county of origin, our 10 protected watershed, a priority over CVP water rights that 11 are exercised for export of water outside that county 12 watershed or watersheds. The only option for OAWD would be 13 to file its own water rights. 14 Reclamation, however, has absorbed all of OAWD's 15 financial capability to acquire such facilities. In 1993, 16 OAWD and other Tehama-Colusa and Corning Canal districts 17 requested a payment capacity analysis in accordance with 18 Reclamation law. The study demonstrated that OAWD has no 19 financial ability to pay all of its obligation to 20 Reclamation, let alone acquire its own facilities to 21 exercise its independent water right. 22 C.O. BROWN: Put the microphone closer to you, Mr. 23 Lohse. 24 MR. LOHSE: In conclusion, Reclamation has demonstrated 25 that it will not voluntarily honor the area of origin CAPITOL REPORTERS (916) 923-5447 12842 1 commitments of the Department of the Interior that are part 2 of history of the CVP. We do not understand Reclamation's 3 policy, but we certainly understand its implications for 4 us. Reclamation's position is that any contract is adequate 5 to meet our obligation, their obligation to the contractors 6 in the Sacramento Valley, regardless of whether that 7 contract meets the contractor's actual needs. 8 Reclamation has no incentive to change as long as the 9 Board allows them to continue as they have. 10 And I want to thank you for allowing me to appear here 11 to testify. I would be happy to answer any questions you 12 have. 13 C.O. STUBCHAER: You will have the opportunity later. 14 MR. ATLAS: Next, Mr. Emrick. 15 Mr. Emrick, you assisted in the preparation of your 16 written testimony, didn't you? 17 MR. EMRICK: Yes, I did. 18 MR. ATLAS: Would you summarize that for the Board, 19 please. 20 MR. EMRICK: Yes. 21 I am Lee Emrick, manager of Colusa County Water 22 District, the position that I have held since 1981. 23 Our district is located in the southern Colusa and 24 northern Yolo counties. A contractor for water in the 25 Central Valley Project and having first executed a contract CAPITOL REPORTERS (916) 923-5447 12843 1 in 1963. 2 Our district includes approximately 40,000 irrigable 3 acres. Its current CVP water contracts provide only about 4 60,000 acre-feet of water. Reclamation has admitted that 5 our district needs additional supply of no less than 55,000 6 acre-feet under CVP contract, but has refused to contract 7 for any more water. 8 CCWD's lands are served water through a fully metered, 9 underground pipeline distribution system. And the district 10 has a strict policy to recapture irrigation runoff. 11 Our district was formed to serve an area of declining 12 groundwater level and aquifers subject to boron 13 contamination. Significant other parts of the district have 14 little or no developable groundwater, and there's no 15 feasible surface water besides the Tehama-Colusa Canal. 16 Historically, the central part of the Colusa County 17 Water District was some of the earliest area in the 18 Sacramento Valley developed for almond orchards, and the 19 rest of the district was large, dry land grain or livestock 20 operations. At the time of our district's first water 21 service contract either Tehama-Colusa Canal, from which our 22 water it is delivered, nor any district distribution 23 facilities existed. Groundwater conditions were so severe 24 that in the 1960's Reclamation and the district constructed 25 a temporary water supply system that pumped water uphill CAPITOL REPORTERS (916) 923-5447 12844 1 from the Colusa Basin drain. 2 Colusa County Water District's first water contract was 3 signed in May 1963, for 45,400 acre-feet and amended the 4 next year to its current quantity, which is 62,200 5 acre-feet. 6 Colusa County Water District also has a subcontract 7 with the County of Colusa for the rest of our current 8 supply. Reclamation has never offered Colusa County Water 9 District the opportunity to contract for any additional 10 water. The last of our distribution system went into 11 operation in 1987. The time since has been particularly 12 difficult, both for the district and the landowners. We 13 have suffered through periods of intense drought, both 14 natural and legislative and the depression in the farm 15 economy. 16 At the same time that our farmers were trying to make 17 capital investment necessary to use the district's new 18 irrigation supply, we only have full water allocations in 19 six years. Even in those years when CVP supplies are 20 theoretically available, operating restrictions at Red Bluff 21 Diversion Dam to approve salmon runs undermine the earlier 22 season reliability of water supplies that are critic to some 23 of the more valuable crops that our farmers could consider. 24 Reclamation admits that CCWD's present water contract 25 is inadequate to meet the district's long-term needs. By CAPITOL REPORTERS (916) 923-5447 12845 1 letters dated August 5th, 1986, and March 31, 1987, 2 Reclamation solicited our estimates of additional water it 3 would need. We supplied the data, and the result was 4 Reclamation's determination was that Colusa County Water 5 District supply was inadequate by 55,000 acre-feet. 6 Nevertheless, Reclamation has refused to contract for 7 any additional water for Colusa County Water District. 8 During the 1994 contract renewal negotiations, Reclamation 9 also denied it had any obligation in area of protection to 10 provide any special protection to CVP contractors in the 11 Sacramento Valley. 12 If this were true, the only option for our district is 13 to file for its own water rights. This Board requires that 14 water right holders be able to exercise physical control 15 over the water and facilities for its diversion and 16 storage. Reclamation, however, has absorbed all our 17 district's financial capability to acquire such facilities. 18 In 1993 our district and other Tehama-Colusa and Corning 19 Canal districts requested a payment capacity analysis in 20 accordance with Reclamation law. The study demonstrated 21 that Colusa County Water District has no financial ability 22 to pay all its obligations to Reclamation, let alone acquire 23 its own facilities to exercise any kind of water right. 24 In conclusion, Reclamation has demonstrated that it 25 will not voluntarily honor the area of origin commitments to CAPITOL REPORTERS (916) 923-5447 12846 1 the Depth of Interior that are part of the history of the 2 CVP. We do not understand Reclamation's policy, and we also 3 certainly understand the implications for us. 4 The Board should order a condition on any consolidation 5 of the place of use CVP water that the consolidation will 6 not be effective until and unless the identified needs of 7 Colusa County Water District's 55,000 acre-feet of CVP water 8 are provided in long-term water contracts with Reclamation, 9 in compliance with area of origin requirements. 10 Thank you for allowing me to appear, and I would be 11 happy to answer any questions you would have. 12 C.O. STUBCHAER: Thank you. 13 Mr. Brown. 14 C.O. BROWN: Clarification. I am sure, Mr. Emrick, I 15 heard you correctly. The payment capacity of the land is 16 currently insufficient to pay off CVP obligations? 17 MR. EMRICK: That is correct. 18 C.O. BROWN: Thank you. 19 C.O. STUBCHAER: Mr. Atlas, the Board has to be 20 upstairs at 4:00 p.m. Do you think we can get one more 21 witness in or should we put it over, the two remaining 22 witnesses, until the morning? 23 MR. ATLAS: I think we might be able to get both of 24 them in. 25 C.O. STUBCHAER: You think so? CAPITOL REPORTERS (916) 923-5447 12847 1 MR. ATLAS: Sure. 2 C.O. STUBCHAER: Let's go. 3 MR. ATLAS: Ms. Peterson, you are next. 4 MR. NOMELLINI: Tuesday morning. 5 C.O. STUBCHAER: Thank you. You're right. 6 MR. ATLAS: You want to summarize your written 7 testimony, Ms. Peterson. 8 MS. PETERSON: I am Cynthia Peterson, the manager of 9 Dunnigan Water District, a position I have held since 10 November 1982. Prior to that, for 17 years I was the 11 secretary of the Colusa County Water District. 12 Dunnigan Water District is located in northern Yolo 13 County in the Sacramento Valley about 40 miles north of 14 Sacramento. The district is a contractor for water from the 15 Central Valley Project, having first executed a contract in 16 1963. 17 Dunnigan Water District includes approximately 11,000 18 acres, and its current CVP water contract provides only 19 19,000 acre-feet. 20 Reclamation has admitted that Dunnigan Water District 21 needs an additional supply of no less than 5,600 acre-feet 22 under the CVP contract, but has refused to contract for any 23 more water. 24 Dunnigan Water District was formed to serve an area 25 that has restricted groundwater resources. Yolo County CAPITOL REPORTERS (916) 923-5447 12848 1 suffers from declining groundwater levels and subsidence. 2 Our first contract was signed February 5th, 1963, for the 3 same water quantity that we still have. Dunnigan Water 4 District has never been given the opportunity to contract 5 for additional supply, even though, since 1963, Reclamation 6 finally completed the Tehama-Colusa Canal to Dunnigan in 7 1980. 8 We constructed the district's distribution system 9 pipeline, which was finished in late 1982, and most of our 10 landowners have made the kinds of changes in their farming 11 practices that the Tehama-Colusa Canal and the rest of the 12 CVP was intended to promote. Reclamation admits that the 13 Dunnigan Water District's present water contract is 14 inadequate to meet the district's long-term CVP water needs 15 by 5,600 acre-feet. Reclamation has refused again to 16 contract for any additional water supply for Dunnigan Water 17 District. 18 In conclusion, the Board should order a condition on 19 any consolidation of the place of use of CVP water that the 20 consolidation will not be effective until and unless the 21 identified needs of Dunnigan Water District for an 22 additional 5,600 acre-feet of the CVP water is provided in a 23 long-term water contract with Reclamation in compliance with 24 the area of origin requirement. 25 Thank you for allowing me to testify here today. CAPITOL REPORTERS (916) 923-5447 12849 1 C.O. STUBCHAER: That you for summarizing. 2 MR. ATLAS: The last one is even faster. 3 C.O. STUBCHAER: Not too fast, or Esther will -- 4 MR. ATLAS: Never too fast for the reporter. 5 Mr. Alves, your predecessor as manager of Glide Water 6 District was Jack Campbell; is that right? 7 MR. ALVES: Yes, it is. 8 MR. ATLAS: It was. 9 MR. ALVES: Yes, it was. 10 MR. ATLAS: Would you summarize your testimony. 11 MR. ALVES: I am Mike Alves, manager of the Glide Water 12 District. I've held this position since 1989. 13 The district is a contractor for water from the Central 14 Valley Project, having first executed a contract in 1977. 15 The district includes approximately 8,000 acres and its 16 current CVP contract provides only 10,500 acre-feet. 17 Reclamation has admitted that Glide needs an additional 18 supply of no less than 12,700 acre-feet under the Central 19 Valley Project contract, but has refused to contract for 20 more water. 21 Glide has no financial ability to pay all of its 22 obligation to Reclamation, let alone acquire its own 23 facilities to exercise an independent water right. Our 24 impression, right or wrong, is that the Board has often 25 chosen actively to assert its legal authority over the CAPITOL REPORTERS (916) 923-5447 12850 1 manner in which water rights are exercised and could and 2 should do the same here. 3 Clearly, unless it does, the area of origin protections 4 that should apply to the Central Valley Project contractors, 5 like Glide Water District, will continue to be empty 6 promises. 7 Thank you for allowing me to make these comments today. 8 I will be happy to answer your questions. 9 C.O. STUBCHAER: Thank you, Mr. Alves. 10 Mr. Birmingham. 11 MR. ATLAS: That concludes our direct testimony. 12 MR. BIRMINGHAM: Mr. Stubchaer, if I could take just a 13 moment of the Board's time. 14 On July 2, 1998, on the second day of these hearings, 15 after having listened to Mr. Nomellini's cross-examination 16 for about an hour, Amelia Thomas bent over to me and said, 17 "I am going to look for another job." And being a woman of 18 her word, Ms. Thomas went out and found another job, of 19 course, changing her name in the interim. 20 Today is Ms. Minaberrigarai's last day at these 21 hearings, and I wanted to stand up and thank her publicly 22 for all the help that she has provided me during the 23 hearings. 24 Mr. Nomellini and Mr. Jackson thought I was hard to get 25 a long with before; they haven't seen anything yet. But I CAPITOL REPORTERS (916) 923-5447 12851 1 did want to make it clear on the record that Ms. 2 Miniberrigari will no longer be appearing as counsel of 3 record for Westlands or the Authority, which is a sad day. 4 C.O. STUBCHAER: It is. 5 Ms. Miniberrigari, we want to wish you the best. You 6 are moving to Bakersfield, I understand, with your 7 husband. We certainly appreciate your appearances here 8 before us. You've added to the decorum of the room at 9 times. 10 MR. NOMELLINI: I would like to commend her for her 11 ability to work with Mr. Birmingham. 12 C.O. STUBCHAER: Would you like to have any final say? 13 No, okay. All the best. 14 And, Mr. Atlas, we will have the cross-examination of 15 this panel at 9:00 a.m. on Tuesday. 16 MR. ATLAS: Is there going to be any? 17 MR. BIRMINGHAM: Yes, there will be some. 18 C.O. STUBCHAER: That is a safe assumption. It's 19 dangerous to make an assumption, but I didn't even ask. 20 MR. ATLAS: I was facetious, again. 21 C.O. STUBCHAER: We will ask on the 6th of April, 22 Tuesday, 9:00 a.m. 23 With that we are -- wait just a moment. 24 MR. HAROFF: Mr. Stubchaer, I just wanted to follow up 25 with the request we made for Santa Clara Valley earlier. CAPITOL REPORTERS (916) 923-5447 12852 1 I've checked with counsel for the parties that follow us, 2 and I don't believe there is any problem with our going 3 Wednesday. 4 C.O. STUBCHAER: We will not take Santa Clara before 5 Wednesday. Not a time certain for Wednesday, but not before 6 Wednesday. 7 MR. HAROFF: We will be here all day long. 8 C.O. STUBCHAER: We are adjourned. 9 (Hearing adjourned at 4:05 p.m.) 10 -