STATE WATER RESOURCES CONTROL BOARD PUBLIC HEARING 1998 BAY-DELTA WATER RIGHTS HEARING HELD AT 901 P STREET SACRAMENTO, CALIFORNIA TUESDAY, APRIL 6, 1999 9:00 A.M. Reported by: MARY GALLAGHER, CSR #10749 CAPITOL REPORTERS (916) 923-5447 1 APPEARANCES ---oOo--- 2 3 BOARD MEMBERS: 4 JAMES STUBCHAER, CO-HEARING OFFICER JOHN W. BROWN, CO-HEARING OFFICER 5 MARC DEL PIERO MARY JANE FORSTER 6 7 STAFF MEMBERS: 8 THOMAS HOWARD - Supervising Engineer VICTORIA A. WHITNEY - Senior Engineer 9 DAVID G. CORNELIUS - Senior Water Resources Control 10 Engineer JIM CANADAY - Environmental Specialist 11 12 COUNSEL: 13 WILLIAM R. ATTWATER - Chief Counsel WALTER PETTIT - Executive Director 14 BARBARA LEIDIGH - Senior Staff Counsel 15 ---oOo--- 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 12856 1 REPRESENTATIVES 2 PRINCETON CODORA GLENN IRRIGATION DISTRICT, et al. 3 FROST, DRUP & ATLAS 4 134 West Sycamore STreet Willows, California 95988 5 BY: J. MARK ATLAS, ESQ. 6 JOINT WATER DISTRICTS: 7 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 8 Oroville, California 95965 BY: WILLIAM H. BABER, III, ESQ. 9 CALIFORNIA SPORTFISHING PROTECTION ALLIANCE: 10 ROBERT J. BAIOCCHI 11 P.O. Box 357 Quincy, California 95971 12 BELLA VISTA WATER DISTRICT: 13 BRUCE L. BELTON, ESQ. 14 2525 Park Marina Drive, Suite 102 Redding, California 96001 15 WESTLANDS WATER DISTRICT: 16 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 17 400 Capitol Mall, 27th Floor Sacramento, California 95814 18 BY: THOMAS W. BIRMINGHAM, ESQ. JOHN RUBIN, ESQ. 19 THE BAY INSTITUTE OF SAN FRANCISCO: 20 GRAY BOBKER 21 55 Shaver Street, Suite 330 San Rafael, California 94901 22 CITY OF ANTIOCH, et al.: 23 FREDERICK BOLD, JR., ESQ. 24 1201 California Street, Suite 1303 San Francisco, California 94109 25 CAPITOL REPORTERS (916) 923-5447 12857 1 REPRESENTATIVES 2 LEAGUE OF WOMEN VOTERS: 3 ROBERTA BORGONOVO 4 2480 Union Street San Francisco, California 94123 5 UNITED STATES DEPARTMENT OF THE INTERIOR: 6 OFFICE OF THE SOLICITOR 7 2800 Cottage Way, Roon E1712 Sacramento, California 95825 8 BY: ALF W. BRANDT, ESQ. 9 CALIFORNIA URBAN WATER AGENCIES: 10 BYRON M. BUCK 455 Capitol Mall, Suite 705 11 Sacramento, California 95814 12 RANCHO MURIETA COMMUNITY SERVICES DISTRICT: 13 MCDONOUGH, HOLLAND & ALLEN 555 Capitol Mall, 9th Floor 14 Sacramento, California 95814 BY: VIRGINIA A. CAHILL, ESQ. 15 CALIFORNIA DEPARTMENT OF FISH AND GAME: 16 OFFICE OF THE ATTORNEY GENERAL 17 1300 I Street, Suite 1101 Sacramento, California 95814 18 BY: MATTHEW CAMPBELL, ESQ. 19 NATURAL RESOURCES DEFENSE COUNCIL: 20 HAMILTON CANDEE, ESQ. 71 Stevenson Street 21 San Francisco, California 94105 22 ARVIN-EDISON WATER STORAGE DISTRICT, et al.: 23 DOOLEY HERR & WILLIAMS 3500 West Mineral King Avenue, Suite C 24 Visalia, California 93191 BY: DANIEL M. DOOLEY, ESQ. 25 CAPITOL REPORTERS (916) 923-5447 12858 1 REPRESENTATIVES 2 SACRAMENTO MUNICIPAL UTILITY DISTRICT: 3 LESLIE A. DUNSWORTH, ESQ. 4 6201 S Street Sacramento, California 95817 5 SOUTH SAN JOAQUIN IRRIGATION DISTRICT, et al.: 6 BRAY, GEIGER, RUDQUIST & NUSS 7 311 East Main Street, 4th Floor Stockton, California 95202 8 BY: STEVEN P. EMRICK, ESQ. 9 EAST BAY MUNICIPAL UTILITY DISTRICT: 10 EBMUD OFFICE OF GENERAL COUNSEL 375 Eleventh Street 11 Oakland, California 94623 BY: FRED ETHERIDGE, ESQ. 12 GOLDEN GATE AUDUBON SOCIETY: 13 ARTHUR FEINSTEIN 14 2530 San Pablo Avenue, Suite G Berkeley, California 94702 15 CONAWAY CONSERVANCY GROUP: 16 UREMOVIC & FELGER 17 P.O. Box 5654 Fresno, California 93755 18 BY: WARREN P. FELGER, ESQ. 19 THOMES CREEK WATER ASSOCIATION: 20 THOMES CREEK WATERSHED ASSOCIATION P.O. Box 2365 21 Flournoy, California 96029 BY: LOIS FLYNNE 22 COURT APPOINTED REPS OF WESTLANDS WD AREA 1, et al.: 23 LAW OFFICES OF SMILAND & KHACHIGIAN 24 601 West Fifth Street, Seventh Floor Los Angeles, California 90075 25 BY: CHRISTOPHER G. FOSTER, ESQ. CAPITOL REPORTERS (916) 923-5447 12859 1 REPRESENTATIVES 2 CITY AND COUNTY OF SAN FRANCISCO: 3 OFFICE OF THE CITY ATTORNEY 4 1390 Market Street, Sixth Floor San Francisco, California 94102 5 BY: DONN W. FURMAN, ESQ. 6 CAMP FAR WEST IRRIGATION DISTRICT, et al.: 7 DANIEL F. GALLERY, ESQ. 926 J Street, Suite 505 8 Sacramento, California 95814 9 BOSTON RANCH COMPANY, et al.: 10 J.B. BOSWELL COMPANY 101 West Walnut Street 11 Pasadena, California 91103 BY: EDWARD G. GIERMANN 12 SAN JOAQUIN RIVER GROUP AUTHORITY, et al.: 13 GRIFFIN, MASUDA & GODWIN 14 517 East Olive Street Turlock, California 95381 15 BY: ARTHUR F. GODWIN, ESQ. 16 NORTHERN CALIFORNIA WATER ASSOCIATION: 17 RICHARD GOLB 455 Capitol Mall, Suite 335 18 Sacramento, California 95814 19 PLACER COUNTY WATER AGENCY, et al.: 20 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Capitol Mall, 27th Floor 21 Sacramento, California 95814 BY: JANET GOLDSMITH, ESQ. 22 ENVIRONMENTAL DEFENSE FUND: 23 THOMAS J. GRAFF, ESQ. 24 5655 College Avenue, Suite 304 Oakland, California 94618 25 CAPITOL REPORTERS (916) 923-5447 12860 1 REPRESENTATIVES 2 CALAVERAS COUNTY WATER DISTRICT: 3 SIMON GRANVILLE 4 P.O. Box 846 San Andreas, California 95249 5 CHOWCHILLA WATER DISTRICT, et al.: 6 GREEN, GREEN & RIGBY 7 P.O. Box 1019 Madera, California 93639 8 BY: DENSLOW GREEN, ESQ. 9 CALIFORNIA FARM BUREAU FEDERATION: 10 DAVID J. GUY, ESQ. 2300 River Plaza Drive 11 Sacramento, California 95833 12 SANTA CLARA VALLEY WATER DISTRICT: 13 MORRISON & FORESTER 755 Page Mill Road 14 Palo Alto, California 94303 BY: KEVIN T. HAROFF, ESQ. 15 CITY OF SHASTA LAKE: 16 ALAN N. HARVEY 17 P.O. Box 777 Shasta Lake, California 96019 18 COUNTY OF STANISLAUS: 19 MICHAEL G. HEATON, ESQ. 20 926 J Street Sacramento, California 95814 21 GORRILL LAND COMPANY: 22 GORRILL LAND COMPANY 23 P.O. Box 427 Durham, California 95938 24 BY: DON HEFFREN 25 CAPITOL REPORTERS (916) 923-5447 12861 1 REPRESENTATIVES 2 SOUTH DELTA WATER AGENCY: 3 JOHN HERRICK, ESQ. 4 3031 West March Lane, Suite 332 East Stockton, California 95267 5 COUNTY OF GLENN: 6 NORMAN Y. HERRING 7 525 West Sycamore Street Willows, California 95988 8 REGIONAL COUNCIL OF RURAL COUNTIES: 9 MICHAEL B. JACKSON 10 1020 Twelfth Street, Suite 400 Sacramento, California 95814 11 DEER CREEK WATERSHED CONSERVANCY: 12 JULIE KELLY 13 P.O. Box 307 Vina, California 96092 14 DELTA TRIBUTARY AGENCIES COMMITTEE: 15 MODESTO IRRIGATION DISTRICT 16 P.O. Box 4060 Modesto, California 95352 17 BY: BILL KETSCHER 18 SAVE THE SAN FRANCISCO BAY ASSOCIATION: 19 SAVE THE BAY 1736 Franklin Street 20 Oakland, California 94612 BY: CYNTHIA L. KOEHLER, ESQ. 21 BATTLE CREEK WATERSHED LANDOWNERS: 22 BATTLE CREEK WATERSHED CONSERVANCY 23 P.O. Box 606 Manton, California 96059 24 25 CAPITOL REPORTERS (916) 923-5447 12862 1 REPRESENTATIVES 2 BUTTE SINK WATERFOWL ASSOCIATION, et al.: 3 MARTHA H. LENNIHAN, ESQ. 4 455 Capitol Mall, Suite 300 Sacramento, California 95814 5 CITY OF YUBA CITY: 6 WILLIAM P. LEWIS 7 1201 Civic Center Drive Yuba City, California 95993 8 BROWNS VALLEY IRRIGTAION DISTRICT, et al.: 9 BARTKIEWICZ, KRONICK & SHANAHAN 10 1011 22nd Street, Suite 100 Sacramento, California 95816 11 BY: ALAN B. LILLY, ESQ. 12 CONTRA COSTA WATER DISTRICT: 13 BOLD, POLISNER, MADDOW, NELSON & JUDSON 500 Ygnacio Valley Road, Suite 325 14 Walnut Creek, California 94596 BY: ROBERT B. MADDOW, ESQ. 15 GRASSLAND WATER DISTRICT: 16 DON MARCIOCHI 17 22759 South Mercey Springs Road Los Banos, California 93635 18 SAN LUIS CANAL COMPANY: 19 FLANAGAN, MASON, ROBBINS & GNASS 20 3351 North M Street, Suite 100 Merced, California 95344 21 BY: MIICHAEL L. MASON, ESQ. 22 STONY CREEK BUSINESS AND LAND OWNERS COALITION: 23 R.W. MCCOMAS 4150 County Road K 24 Orland, California 95963 25 CAPITOL REPORTERS (916) 923-5447 12863 1 REPRESENTATIVES 2 TRI-DAM POWER AUTHORITY: 3 TUOLUMNE UTILITIES DISTRICT 4 P.O. Box 3728 Sonora, California 95730 5 BY: TIM MCCULLOUGH 6 DELANO-EARLIMART IRRIGATION DISTRICT, et al.: 7 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 8 Oroville, California 95965 BY: JEFFREY A. MEITH, ESQ. 9 HUMANE FARMING ASSOCIATION: 10 BRADLEY S. MILLER. 11 1550 California Street, Suite 6 San Francisco, California 94109 12 CORDUA IRRIGATION DISTRICT, et al.: 13 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 14 P.O. Box 1679 Oroville, California 95965 15 BY: PAUL R. MINASIAN, ESQ. 16 EL DORADO COUNTY WATER AGENCY: 17 DE CUIR & SOMACH 400 Capitol Mall, Suite 1900 18 Sacramento, California 95814 BY: DONALD B. MOONEY, ESQ. 19 GLENN COUNTY FARM BUREAU: 20 STEVE MORA 21 501 Walker Street Orland, California 95963 22 MODESTO IRRIGATION DISTRICT: 23 JOEL MOSKOWITZ 24 P.O. Box 4060 Modesto, California 95352 25 CAPITOL REPORTERS (916) 923-5447 12864 1 REPRESENTATIVES 2 PACIFIC GAS & ELECTRIC: 3 RICHARD H. MOSS, ESQ. 4 P.O. Box 7442 San Francisco, California 94120 5 CENTRAL DELTA WATER AGENCY, et al.: 6 NOMELLINI, GRILLI & MCDANIEL 7 P.O. Box 1461 Stockton, California 95201 8 BY: DANTE JOHN NOMELLINI, ESQ. and 9 DANTE JOHN NOMELLINI, JR., ESQ. 10 TULARE LAKE BASIN WATER STORAGE UNIT: 11 MICHAEL NORDSTROM 1100 Whitney Avenue 12 Corcoran, California 93212 13 AKIN RANCH, et al.: 14 DOWNEY, BRAND, SEYMOUR & ROHWER 555 Capitol Mall, 10th Floor 15 Sacramento, California 95814 BY: KEVIN M. O'BRIEN, ESQ. 16 OAKDALE IRRIGATION DISTRICT: 17 O'LAUGHLIN & PARIS 18 870 Manzanita Court, Suite B Chico, California 95926 19 BY: TIM O'LAUGHLIN, ESQ. 20 SIERRA CLUB: 21 JENNA OLSEN 85 Second Street, 2nd Floor 22 San Francisco, California 94105 23 YOLO COUNTY BOARD OF SUPERVISORS: 24 LYNNEL POLLOCK 625 Court Street 25 Woodland, California 95695 CAPITOL REPORTERS (916) 923-5447 12865 1 REPRESENTATIVES 2 PATRICK PORGENS & ASSOCIATES: 3 PATRICK PORGENS 4 P.O. Box 60940 Sacramento, California 95860 5 BROADVIEW WATER DISTRICT, et al.: 6 DIANE RATHMANN 7 P.O. Box 156 Dos Palos, California 93620 8 FRIENDS OF THE RIVER: 9 BETSY REIFSNIDER 10 128 J Street, 2nd Floor Sacramento, California 95814 11 MERCED IRRIGATION DISTRICT: 12 FLANAGAN, MASON, ROBBINS & GNASS 13 P.O. Box 2067 Merced, California 95344 14 BY: KENNETH M. ROBBINS, ESQ. 15 CENTRAL SAN JOAQUIN WATER CONSERVATION DISTRICT: 16 REID W. ROBERTS, ESQ. 311 East Main Street, Suite 202 17 Stockton, California 95202 18 METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA: 19 JAMES F. ROBERTS P.O. Box 54153 20 Los Angeles, California 90054 21 SACRAMENTO AREA WATER FORUM: 22 CITY OF SACRAMENTO 980 9th Street, 10th Floor 23 Sacramento, California 95814 BY: JOSEPH ROBINSON, ESQ. 24 25 CAPITOL REPORTERS (916) 923-5447 12866 1 REPRESENTATIVES 2 TUOLUMNE RIVER PRESERVATION TRUST: 3 NATURAL HERITAGE INSTITUTE 4 114 Sansome Street, Suite 1200 San Francisco, California 94194 5 BY: RICHARD ROOS-COLLINS, ESQ. 6 CALIFORNIA DEPARTMENT OF WATER RESOURCES: 7 DAVID A. SANDINO, ESQ. P.O. Box 942836 8 Sacramento, California 94236 9 FRIANT WATER USERS AUTHORITY: 10 GARY W. SAWYERS, ESQ. 575 East Alluvial, Suite 101 11 Fresno, California 93720 12 KERN COUNTY WATER AGENCY: 13 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Captiol Mall, 27th Floor 14 Sacramento, California 95814 BY: CLIFFORD W. SCHULZ, ESQ. 15 SAN JOAQUIN RIVER EXCHANGE CONTRACTORS: 16 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 17 P.O. Box 1679 Oroville, California 95965 18 BY: MICHAEL V. SEXTON, ESQ. 19 SAN JOAQUIN COUNTY: 20 NEUMILLER & BEARDSLEE P.O. Box 20 21 Stockton, California 95203 BY: THOMAS J. SHEPHARD, SR., ESQ. 22 CITY OF STOCKTON: 23 DE CUIR & SOMACH 24 400 Capitol Mall, Suite 1900 Sacramento, California 95814 25 BY: PAUL S. SIMMONS, ESQ. CAPITOL REPORTERS (916) 923-5447 12867 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 95965 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 12868 1 REPRESENTATIVES 2 TULARE IRRIGATION DISTRICT: 3 TEHEMA 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 COUTNY OF TEHEMA, et al.: 10 COUNTY OF TEHEMA 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, California 93704 BY: CHRISTOPHER L. CAMPBELL, ESQ. 25 CAPITOL REPORTERS (916) 923-5447 12869 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 12870 1 I N D E X 2 ---oOo--- 3 4 PAGE 5 OPENING OF HEARING 12873 6 AFTERNOON SESSION 12987 7 END OF PROCEEDINGS 13082 8 CROSS-EXAMINATION OF TEHAMA-COLUSA CANAL AUTHORITY: 9 MR. NOMELLINI 12878 10 MR. BIRMINGHAM 12879 BY THE BOARD 12977 11 CASE IN CHIEF OF SACRAMENTO MUNICIPAL UTILITY DISTRICT: 12 PANEL: 12987 13 STEVE REDEKER 14 BRIAN JOBSON 15 CROSS-EXAMINATION OF SACRAMENTO MUNICIPAL UTILITY DISTRICT: 16 MR. HERRICK 12996 17 MR. NOMELLINI 13002 18 CASE IN CHIEF OF EL DORADO COUNTY WATER AGENCY: 19 PANEL: 20 MERV DeHAAS 13006 21 CASE IN CHIEF OF DEL PUERTO WATER DISTRICT AND ARVIN-EDISON WATER STORAGE DISTRICT: 22 PANEL: 23 WILLIAM HARRISON 13010 24 STEVE C. COLLUP 25 CAPITOL REPORTERS (916) 923-5447 12871 1 I N D E X (Cont'd.) 2 ---oOo--- 3 CROSS-EXAMINATION OF DEL PUERTO WATER DISTRICT AND ARVIN-EDISON WATER STORAGE DISTRICT: 4 MR. BIRMINGHAM 13025 5 MR. HERRICK 13033 MR. NOMELLINI 13041 6 MR. ATLAS 13068 7 ---oOo--- 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 12872 1 TUESDAY, APRIL 6, 1999, 9:00 A.M. 2 SACRAMENTO, CALIFORNIA 3 ---oOo--- 4 C.O. STUBCHAER: Good morning. We'll reconvene the 5 Bay-Delta Water Rights hearing. Next order of business 6 will be the cross-examination of the Tehama-Colusa panel. 7 Who wishes to cross-examine this panel? Mr. Birmingham, 8 Mr. Nomellini. Anyone else, last chance? Okay. 9 Mr. Turner. 10 MR. TURNER: If I may, Mr. Stubchaer, in lieu of 11 pursuing any cross-examination, I talked to Mark Atlas 12 earlier this morning and he had agreed to stipulate to the 13 introduction on behalf of the Department of the Interior 14 of a letter that was sent to Mr. Atlas back in May of 1991 15 by the State Water Resources Control Board, Division of 16 Water Rights, addressing the county of origin issue, which 17 they have been pursuing in their direct examination. 18 So I would move to have this particular document 19 admitted as the next document of record for the Department 20 of the Interior, I see no need to pursue any 21 cross-examination. 22 C.O. STUBCHAER: Mr. Atlas. 23 MR. ATLAS: No objection so as long as the 24 government also introduces the complaint that this 25 responds to -- it just occurred to me now, but in order CAPITOL REPORTERS (916) 923-5447 12873 1 for the record to have the complete story if you'll also 2 produce the complaint and introduce that, we will have no 3 objection. 4 C.O. STUBCHAER: Mr. Turner. 5 MR. TURNER: I will take no exception to that and if 6 I'm not mistaken there was an answer that was filed on 7 behalf of the Bureau. We'll just file the complaint and 8 the answer if the Board would so prefer. 9 C.O. STUBCHAER: Are you going to make copies 10 available to the parties? 11 MR. TURNER: I have copies with me today that I can 12 make available to the Board staff and all the parties who 13 are here. And I would go ahead and make official service 14 of this particular letter as well as the complaint and the 15 answer and serve all the parties with that as well. 16 The only thing I need to request is do you happen 17 to have the next number for the Department of the 18 Interior. 19 MR. CORNELIUS: 108 for the staff letter -- 20 MR. ATLAS: Perhaps, the complaint would be 108 and 21 the answer 109 and this letter response 110. 22 MR. CORNELIUS: The letter response. 23 MR. ATLAS: The letter from the staff dated -- 24 MR. CORNELIUS: So we have three documents. 25 MR. TURNER: That's correct. The complaint would be CAPITOL REPORTERS (916) 923-5447 12874 1 108, the answer would be 109. 2 MR. CORNELIUS: Okay. And then the Board staff 3 response to the complaint would be 110. 4 C.O. STUBCHAER: Any objections? Seeing none -- 5 MR. NOMELLINI: Wait -- 6 C.O. STUBCHAER: Mr. Nomellini. 7 MR. NOMELLINI: We haven't seen these documents and 8 I guess they're part of the Board's records. Is that what 9 they're saying, these are part of the official record of 10 the Board? 11 C.O. STUBCHAER: Is it? It sounds to me like they 12 are. 13 Ms. Leidigh. 14 MS. LEIDIGH: It sounds like these would be part of 15 the Board's files. I don't know if they're part of the 16 files for this proceeding already, but once they're 17 admitted in evidence they would be. 18 C.O. STUBCHAER: Right. 19 MR. TURNER: As I mentioned, just for clarification 20 this is not a document that was prepared by the Board, per 21 se. This was prepared by the Board staff. And that's why 22 I was introducing it into the record in lieu -- not 23 knowing whether you have access to all of that stuff in 24 your general files or not. So -- 25 MR. NOMELLINI: I'd like to interpose an objection: CAPITOL REPORTERS (916) 923-5447 12875 1 Pending my review of the documents and before the end of 2 the phase if I am not concerned about it, I'll withdraw 3 the objection. 4 C.O. STUBCHAER: Well, Mr. Turner is giving up his 5 right to cross-examine with these documents. So there's a 6 question of timeliness. How long do you think it would 7 take for you to review the documents, Mr. Nomellini? 8 MR. NOMELLINI: I can review them today. If you 9 hand them to me, I'll look at them during the noon break 10 or morning break. 11 C.O. STUBCHAER: All right. 12 MR. TURNER: As I mention, I have copies, I think I 13 have 30 copies with me today that I'd be willing to 14 circulate to the people in attendance. 15 C.O. STUBCHAER: It doesn't include the complaint. 16 MR. TURNER: I do not have the complaint or the 17 answer with me, just the final decision. 18 C.O. STUBCHAER: Mr. Jackson. 19 MR. JACKSON: I'm just looking for the document. 20 C.O. STUBCHAER: All right. Mr. Herrick, you're 21 looking for the document, too? 22 MR. HERRICK: Yes, I'm just concerned that two 23 parties stipulate to put something in the record and I 24 don't think it's been explained what it is. Could we have 25 just a description for the record what this is and what is CAPITOL REPORTERS (916) 923-5447 12876 1 it about? 2 C.O. STUBCHAER: Mr. Turner. 3 MR. TURNER: Department of the Interior Exhibit 110, 4 as I mentioned, is a letter dated May 24, 1991, addressed 5 to Mr. Atlas. And it was executed by Roger Johnston, the 6 Assistant Division Chief of the Division of Water Quality 7 and the Water Rights for the State Water Resources Control 8 Board. 9 It is a document that was sent in response to a 10 complaint that was filed by Glide and Orland Water 11 Districts against the Bureau of Reclamation. And the 12 complaint -- as stated in this letter, the complaint 13 alleges that the two districts are not being served enough 14 water during the current drought and Reclamation should 15 provide for water to the districts under the area of 16 origin laws. 17 And this is the Board staffs' response to that 18 complaint arguing that that is not an appropriate issue 19 for the Board to address by directing the Bureau to 20 allocate more water to these two districts. That is not 21 an entitlement under the county or watershed provision 22 under California water law. 23 C.O. STUBCHAER: All right. We'll hold the ruling 24 on this matter in abeyance until parties have had an 25 opportunity to review the exhibit. CAPITOL REPORTERS (916) 923-5447 12877 1 The order of cross-examination will be 2 Mr. Nomellini followed by Mr. Birmingham. 3 Mr. Nomellini. 4 ---oOo--- 5 CROSS-EXAMINATION OF TEHAMA-COLUSA CANAL AUTHORITY 6 BY CENTRAL DELTA PARTIES 7 BY MR. NOMELLINI 8 MR. NOMELLINI: Thank you, Mr. Chairman, Members of 9 the Board. Dante John Nomellini for the Central Delta 10 Parties. 11 I have just a couple of brief questions. You 12 had -- the panel had testified that they had requested 13 additional water service from the Bureau and it had been 14 refused because of the Bureau's lack of water due to 15 deliveries to export service areas; is that correct, 16 anyone on the panel? 17 MR. LOHSE: Yes, that's correct. 18 MR. NOMELLINI: And in terms of allocation of 19 shortages during water shortage periods, did any of you or 20 your districts object to the Bureau's allocation of water 21 for delivery to export service areas when at the same time 22 your districts were not getting their full entitlement 23 under the contract? 24 MR. LOHSE: Yes, we did. 25 MR. NOMELLINI: Is that true generally for all of CAPITOL REPORTERS (916) 923-5447 12878 1 the districts? 2 MS. PETERSON: Yes. 3 MR. ALVES: Yes. 4 MR. NOMELLINI: And did the Bureau give a reason as 5 to why it was not recognizing the Watershed Protection Act 6 priority for deliveries to your particular districts as 7 opposed to the export service areas? 8 MR. LOHSE: Their reason was usually we met that 9 requirement, you have a contract. 10 MR. NOMELLINI: So they would not go beyond the 11 terms of the contract in terms of their consideration. 12 MR. LOHSE: That's correct. 13 MR. NOMELLINI: All right. Thank you. That's all I 14 have. 15 C.O. STUBCHAER: Mr. Birmingham. Good morning. 16 MR. BIRMINGHAM: Good morning. 17 18 ---oOo--- 19 CROSS-EXAMINATION OF TEHAMA-COLUSA CANAL AUTHORITY 20 BY WESTLANDS WATER DISTRICT 21 BY MR. BIRMINGHAM 22 MR. BIRMINGHAM: My name is Tom Birmingham. I'm an 23 attorney that represents Westlands Water District in these 24 proceedings and I have a few questions. 25 First, Mr. Lohse, you are with Orland-Artois CAPITOL REPORTERS (916) 923-5447 12879 1 Water District? 2 MR. LOHSE: That's correct. 3 MR. BIRMINGHAM: You may want to use the mic. 4 MR. LOHSE: That's correct. 5 MR. BIRMINGHAM: And I believe your testimony, 6 Tehama-Colusa Canal Authority Exhibit 6, states that 7 Orland-Artois Water District executed its first contract 8 with the Bureau of Reclamation in 1963? 9 MR. LOHSE: Yes. 10 MR. BIRMINGHAM: Is your 1963 contract, has it 11 expired? 12 MR. LOHSE: It's been renewed. 13 MR. BIRMINGHAM: For what period of time has your 14 1963 contract been renewed? 15 MR. LOHSE: I don't -- you mean -- I don't know if I 16 understand your question. 17 MR. BIRMINGHAM: When your testimony refers to 18 negotiations with the Bureau of Reclamation in 1994. 19 C.O. STUBCHAER: Please, give an audible answer. 20 MR. LOHSE: Okay. Well -- 21 MR. BIRMINGHAM: Is that correct, Mr. Lohse? 22 MR. LOHSE: Yes, I believe that's the date of 23 probably the interim contract. 24 MR. BIRMINGHAM: So the contract under which 25 Orland-Artois receives water is an interim contract? CAPITOL REPORTERS (916) 923-5447 12880 1 MR. LOHSE: Correct. 2 MR. BIRMINGHAM: And when does that interim contract 3 expire? 4 MR. LOHSE: I have forgotten the date. 5 MR. BIRMINGHAM: Was it a two-year interim contract? 6 MR. LOHSE: That's correct. Initially it was three 7 years and now I believe the current contract is for two 8 years. 9 MR. BIRMINGHAM: So in 1994, you executed an interim 10 contract for a period of three years. So that would have 11 extended to 1997? 12 MS. PETERSON: '98. 13 MR. LOHSE: I'm sorry. I'd have to defer that to 14 Mr. Atlas. I haven't reviewed those documents for a 15 while. 16 MR. BIRMINGHAM: Well, your testimony, Tehama-Colusa 17 Canal Authority Exhibit 6, states that during the 1994 18 negotiations Orland-Artois Water District requested more 19 water? 20 MR. LOHSE: That's correct. 21 MR. BIRMINGHAM: In response to a question that was 22 asked of you a few moments ago by Mr. Nomellini, the panel 23 said that the request for more water was refused because 24 there was a lack of water due to the export of water by 25 the Bureau of Reclamation and I believe that the panel CAPITOL REPORTERS (916) 923-5447 12881 1 said that that was correct? 2 MR. LOHSE: That's correct. 3 MR. BIRMINGHAM: Can you point out to me, Mr. Lohse, 4 where in your testimony, Tehama-Colusa Canal Authority 5 Exhibit 6, it states that the reason that the Bureau 6 refused to provide more water to Orland-Artois Water 7 District in 1994 was because of the amount of water that 8 it was exporting to the export service area? 9 MR. LOHSE: Could you explain that? 10 MR. BIRMINGHAM: Well, looking at your testimony, 11 Tehama-Colusa Canal Authority Exhibit 6, Page 3 on Line 12 12 through 17 that's where your testimony addresses 13 Reclamation's response in 1994 to Orland-Artois' request 14 for additional water; is that correct? 15 MR. LOHSE: That's correct. 16 MR. BIRMINGHAM: And it states, 17 (Reading): 18 "Nevertheless, Reclamation has refused to 19 contract for any additional water for 20 Orland-Artois Water District. For instance, 21 during the negotiation for Water Contract Rules 22 of 1994 Reclamation refused to discuss any 23 increase in the District's contract supply and, 24 in fact, was suggesting that some districts in 25 the Tehama-Colusa and Corning Canal service CAPITOL REPORTERS (916) 923-5447 12882 1 area would lose some of their contract 2 supplies. Ultimately all the contracts were 3 renewed just for the then existing quantities." 4 Your testimony, Tehama-Colusa Canal Authority 5 Exhibit 6, does not say, does it, that the Bureau of 6 Reclamation refused to provide additional water to 7 Orland-Artois because of its deliveries to export service 8 areas? 9 MR. LOHSE: No, I don't believe it says that 10 directly. 11 MR. BIRMINGHAM: And Mr. Alves, you're the manager 12 of Glide Water District? 13 MR. ALVES: Yes, I am. 14 MR. BIRMINGHAM: Your testimony does not say that 15 Glide Water District was refused additional water because 16 the Bureau was exporting water to areas outside of the 17 Sacramento River basin? 18 MR. ALVES: No, it doesn't. But it's a given as 19 water is exported out of the area of origin we receive 20 more of a shortage. 21 MR. BIRMINGHAM: Ms. Peterson, you're the manager of 22 Dunnigan Water District? 23 MS. PETERSON: Yes, I am. 24 MR. BIRMINGHAM: When Dunnigan was negotiating a 25 renewal of its contract in 1994 it also requested CAPITOL REPORTERS (916) 923-5447 12883 1 additional water? 2 MS. PETERSON: We did not request additional water 3 at that time I believe. 4 MR. BIRMINGHAM: Could I ask you to look at your 5 testimony, Tehama-Colusa Canal exhibit -- excuse me, 6 Tehama-Colusa Canal Authority Exhibit 8 on Page 3. 7 On line 13 it makes reference to the fact that 8 Reclamation refused to provide additional water to 9 Dunnigan water service. 10 MS. PETERSON: That's what it says, uh-huh. 11 MR. BIRMINGHAM: Is that an inadequate statement? 12 MS. PETERSON: I believe at that time we had not 13 requested any additional water. We were trying to retain 14 our current contract supply at the time, because they were 15 considering taking away some of our contract supply. So 16 at the time that this water contract renewal in 1994 was 17 done we were trying to retain what we had. 18 MR. BIRMINGHAM: So on Lines 14 and 15 when you say, 19 (Reading): 20 "In 1994 Reclamation refused to discuss any 21 increase in the District's contract water supply; 22 Dunnigan Water District did not make a request 23 for increased water supplies." 24 MS. PETERSON: I don't believe so. 25 MR. BIRMINGHAM: Mr. Emrick, you are with Colusa CAPITOL REPORTERS (916) 923-5447 12884 1 County Water District? 2 MR. EMRICK: Yes, I am. 3 MR. BIRMINGHAM: And did you also negotiate a 4 renewal of your contract with the Bureau of Reclamation in 5 1994? 6 MR. EMRICK: Yes, we did. 7 MR. BIRMINGHAM: Did you make a request for 8 additional water in 1994? 9 MR. EMRICK: Yes. We had originally requested more 10 water in our contract. 11 MR. BIRMINGHAM: Now, looking at your testimony, 12 Tehama-Colusa Canal Authority Exhibit 9, it does not say, 13 does it, that Reclamation refused to discuss additional 14 supplies for Colusa County Water District because of a 15 lack of water resulting from exports? 16 MR. EMRICK: No. It doesn't say that in that 17 particular paragraph. I think that, to me, the next 18 paragraph explains it a little bit, that they had denied 19 that there was any area of origin obligation to increase 20 our water supplies, and that, to me, ties it into export. 21 MR. BIRMINGHAM: Isn't it correct that in 1994 when 22 each of your districts was negotiating the renewal of your 23 contracts with the Bureau of Reclamation there was a 24 statutory prohibition against new contracting? 25 MR. ATLAS: I'm going to object. I'm not sure of CAPITOL REPORTERS (916) 923-5447 12885 1 the statutory prohibition has anything to do with existing 2 water contracts. 3 C.O. STUBCHAER: We had a fairly broad latitude on 4 cross-examination. And if the witnesses have the -- know 5 the answer, they should answer. 6 MR. EMRICK: Yes, there was. And the difficulty 7 that we had with that was what I think Mark was talking 8 about is: Is it a new contract or is it the same old 9 contract in a different quantity? And we lost the 10 argument. 11 MR. BIRMINGHAM: When you say, "you lost the 12 argument," isn't it correct that in 1994 the Bureau of 13 Reclamation told you that they could not discuss 14 additional supplies under your water service contracts 15 because of the prohibition contained in the Central Valley 16 Project Improvement Act against new contracts? 17 MR. EMRICK: I think that that is part of the 18 negotiation process that that was one of the answers that 19 we were given. 20 MR. BIRMINGHAM: So in 1994, so I can make sure we 21 understand the response of this panel, in 1994, when you 22 requested additional water, this would not apply to 23 Dunnigan Water District because apparently Dunnigan Water 24 District did not request new water in 1994. 25 But for the other districts when you requested CAPITOL REPORTERS (916) 923-5447 12886 1 additional water in 1994 you were told by the Bureau of 2 Reclamation that they could not negotiate a contract for 3 additional water because of the prohibition contained in 4 the Central Valley Improvement Act against new contracts? 5 MR. EMRICK: Well, yes, that was part of their 6 answer, I think, that was one of the reasons that they 7 gave to us at the negotiations. 8 MR. BIRMINGHAM: Mr. Alves, a few moments ago in 9 response to one of my questions you said that it is a 10 given that as water is exported out of the area of 11 origin -- actually, I'm sorry. 12 You said that it's a given as water is exported 13 out of the area of origin, area of origin receives more of 14 a shortage. I'd like to explore that with you a little 15 bit. When did Glide Water District first receive water 16 under its contract with the Bureau of Reclamation? 17 MR. ALVES: I believe our first year's deliveries 18 was in 1977, I believe. 19 MR. BIRMINGHAM: And 1977 was a severe drought year? 20 MR. ALVES: Yes. 21 MR. BIRMINGHAM: And in 1977 you received a 22 25-percent allocation? 23 MR. ALVES: I believe so. 24 MR. BIRMINGHAM: In 1978 Glide Water District 25 received all of the water it requested under its contract? CAPITOL REPORTERS (916) 923-5447 12887 1 MR. ALVES: I would guess. I don't have those 2 numbers off the top of my head, but -- 3 MR. BIRMINGHAM: Well, prior to 1990, other than 4 1977 are you aware of any year in which Glide Water 5 District received less than its full contractual 6 entitlement? 7 MR. ALVES: There is a difference between our 8 contract quantity and our actually identified need. And 9 it's a great difference. We have approximately 50 percent 10 under our need under contract. So even in those years 11 when the Bureau was allocating our full supply it was not 12 even close to what the Bureau has identified as being our 13 ultimate need. 14 MR. BIRMINGHAM: I would request an instruction from 15 the Hearing Officer that the witness answer my question. 16 C.O. STUBCHAER: That's a fair request, and -- but 17 then the witnesses may explain their answers. 18 MR. ALVES: Sure. Could you repeat the question? 19 MR. BIRMINGHAM: Prior to 1990, other than 1977, are 20 you aware of any year in which Glide Water District was 21 allocated less water by the Bureau of Reclamation than its 22 full contractual entitlement? 23 MR. ALVES: No. 24 MR. BIRMINGHAM: I'd like to ask you the same 25 question, Mr. Lohse. Are you aware of any year prior to CAPITOL REPORTERS (916) 923-5447 12888 1 1990 -- prior to 1977 when Orland-Artois Water District 2 received less than its full contractual entitlement? 3 MR. LOHSE: I believe our service started in '76 so, 4 again, without the record here in front of me, I believe 5 both of those '76 and '77 would have been drought years. 6 MR. BIRMINGHAM: But in 1977 you received a 7 100-percent supply; isn't that correct? 8 MR. LOHSE: 100 percent of contract, I'm not sure. 9 MR. BIRMINGHAM: In 1977 you received a 25-percent 10 allocation? 11 MR. LOHSE: That sounds right to my recollection. 12 MR. BIRMINGHAM: And for the years 1978 through 1990 13 Orland-Artois Water District received a 100-percent water 14 allocation under its contract? 15 MR. LOHSE: I believe so. 16 MR. BIRMINGHAM: Ms. Peterson, when did Dunnigan 17 Water District first receive water under its contract with 18 the Bureau of Reclamation? 19 MS. PETERSON: 1983. 20 MR. BIRMINGHAM: 1983 was a wet year? 21 MS. PETERSON: Yes, it was. 22 MR. BIRMINGHAM: So you received all the water that 23 you requested from the Bureau in 1983? 24 MS. PETERSON: Yes. 25 MR. BIRMINGHAM: Are you aware of any year in which CAPITOL REPORTERS (916) 923-5447 12889 1 Dunnigan Water District received less than the 100 percent 2 of its contractual entitlement? 3 MS. PETERSON: No. 4 MR. BIRMINGHAM: Mr. Emrick, when did Colusa Water 5 District first receive water under its contract with the 6 Bureau of Reclamation? 7 MR. EMRICK: In 1970. 8 MR. BIRMINGHAM: For the period 1970 through 1976; 9 isn't it correct that Colusa Water District received 100 10 percent of its contractual entitlement? 11 MR. EMRICK: It was available. I'd like to note 12 that we may not have received it, because we didn't have 13 the facilities to distribute it at that time. 14 MR. BIRMINGHAM: But the Bureau of Reclamation told 15 you, "If you want the water, it was available"? 16 MR. EMRICK: It was available. 17 MR. BIRMINGHAM: And in 1977 Colusa Water District 18 received a 25-percent allocation of its contract supply? 19 MR. EMRICK: Yes, I believe we did. We -- there's a 20 physical thing that goes on with us. We took the water 21 originally out of an emergency project, out of an open 22 drain. The canal wasn't built in our district until about 23 1980. 24 So we could not have gotten the full contract 25 amount because of physical limitations in our facilities CAPITOL REPORTERS (916) 923-5447 12890 1 to distribute until the 1980s. And then it wasn't until 2 1986 that we had our facilities completed so we could 3 distribute the entire quantities that were available to 4 us. 5 MR. BIRMINGHAM: But, from the period when Colusa 6 County Water District started taking water from the Bureau 7 of Reclamation through 1986, the Bureau supplied to Colusa 8 County Water District all of the water that was requested 9 by the District; isn't that correct? 10 MR. EMRICK: Not really until 1980. When you say 11 "the Bureau supplied," the Bureau doesn't put any water 12 into the -- into the facility that we took the water out 13 of. So it was -- it was available in there if there 14 happened to be water flowing in what they called the 15 Colusa Drain or the 2040 drain. 16 If there was water there we could pump it and we 17 had to pay the District something -- or the Bureau of 18 Reclamation similar to an exchange contract that exists 19 now with another water district that takes water out of 20 that drain. And our actual removal from the TC Canal 21 didn't begin until the 19- -- 1980 or '81, whenever the 22 canal was constructed in our area. Then the Bureau would 23 probably, indicated would provide the water for us, 24 because they put it in. 25 MR. BIRMINGHAM: Thank you for that clarification. CAPITOL REPORTERS (916) 923-5447 12891 1 For the period up through 1990 was there a year other than 2 1977 when the Bureau of Reclamation allocated to Colusa 3 County Water District less than 100 percent of its 4 contractual entitlement? 5 MR. EMRICK: Would you repeat those years again? 6 MR. BIRMINGHAM: With the exception of 1977, for the 7 period through 1990, was there any year in which the 8 Bureau of Reclamation allocated to Colusa County Water 9 District less than 100 percent of its contractual 10 entitlement? 11 MR. EMRICK: I don't believe there was. 12 MR. BIRMINGHAM: Now, the period 1990 through 1992 13 was a drought period; is that correct? 14 MR. EMRICK: Yes, it was. 15 MR. BIRMINGHAM: And during that drought period the 16 Bureau of Reclamation allocated to each of your districts 17 less than 100 percent of the District's contractual 18 entitlement? 19 MR. EMRICK: That's correct. 20 MR. ALVES: Yes. 21 MS. PETERSON: Yes. 22 MR. BIRMINGHAM: And in 1992 the Central Valley 23 Project Improvement Act was adopted? 24 MS. PETERSON: Yes. 25 MR. ALVES: Yes. CAPITOL REPORTERS (916) 923-5447 12892 1 MR. EMRICK: Yes. 2 MR. BIRMINGHAM: Mr. Alves, has the implementation 3 of the Central Valley Improvement Act reduced water 4 deliveries to Tehama-Colusa Canal Water districts? 5 MR. ALVES: Yes, I believe so for environmental 6 water and it has also increased the costs of our water. 7 MR. BIRMINGHAM: So implementation of CVPIA has 8 reduced the water available to your districts and it has 9 increased the cost of that water? 10 MR. ALVES: I believe so. 11 MR. BIRMINGHAM: Mr. Alves, during the period up to 12 1990 are you aware of how much water was exported by the 13 Bureau of Reclamation for delivery to contractors south of 14 the Delta? 15 MR. ALVES: Too much. No, I am not. 16 MR. BIRMINGHAM: So you don't know in acre-feet how 17 much water was exported from the Delta by the Bureau of 18 Reclamation for delivery to contractors south of the 19 Delta? 20 MR. ALVES: No, I am not aware of that. 21 MR. BIRMINGHAM: Does anyone on the panel know how 22 much water was exported by the Bureau of Reclamation for 23 delivery to contractors south of the Delta prior to 1990? 24 MS. PETERSON: No. 25 MR. EMRICK: I think in general terms we look at the CAPITOL REPORTERS (916) 923-5447 12893 1 project as having about a seven million acre-feet yield 2 and about 350,000, 360,000 would go into the Tehama-Colusa 3 Canal and some of it goes to the Sacramento River 4 contractors and the rest of it is exported. 5 MR. BIRMINGHAM: Is San Juan a water contract, 6 Mr. Emrick? 7 MR. EMRICK: I'm sorry. I don't know where San Juan 8 Water District is. 9 MR. BIRMINGHAM: Settlement contractors along the 10 Sacramento River are export contractors, Mr. Emrick? 11 MR. ATLAS: He testified -- that misstates the 12 testimony. His testimony was about 360,000 is delivered 13 into the TCC area, some goes to the Sacramento River 14 contractors and the rest is exported. That is his 15 testimony. 16 C.O. STUBCHAER: Mr. Birmingham. 17 MR. BIRMINGHAM: I'll withdraw the question. 18 I'm going to ask -- actually, I'll get back to 19 this question in a few moments. 20 Mr. Lohse, is the contract that is held by 21 Orland-Artois Water District for receipt of water from the 22 Bureau of Reclamation a water service contract, or a 23 repayment contract? 24 MR. LOHSE: Both. 25 MR. BIRMINGHAM: What portion of the contract CAPITOL REPORTERS (916) 923-5447 12894 1 between Orland-Artois Water District and the Bureau of 2 Reclamation is a repayment contract? 3 MR. LOHSE: I believe there's a Part A and a Part B. 4 I'm not sure which part of that is the repayment, whether 5 it's A or B, but they were -- they were combined together 6 and -- well, not together. They were two separate parts. 7 In '76 the water service part of it was renewed in '94. 8 MR. BIRMINGHAM: The water service part was renewed 9 in '94 and again in 1997? 10 MR. LOHSE: Yes, I believe that's correct. 11 MR. BIRMINGHAM: Could you explain to the Board the 12 difference between a repayment contract and a water 13 service contract? 14 MR. LOHSE: I'm not sure I understand what kind of 15 difference you're looking for. 16 MR. BIRMINGHAM: Any member of the panel can answer 17 these questions: Isn't it correct that Reclamation Law 18 provides two basic approaches to contracting for water and 19 repayment of construction costs to the federal government? 20 MR. ATLAS: I'm going to object. Are you asking for 21 these people to explain what Reclamation Law provides? 22 C.O. STUBCHAER: Mr. Birmingham. 23 MR. BIRMINGHAM: The testimony of these witnesses 24 states that Reclamation has absorbed all of the respective 25 districts' financial capability to acquire water CAPITOL REPORTERS (916) 923-5447 12895 1 facilities. 2 C.O. STUBCHAER: Which page? 3 MR. BIRMINGHAM: I'm looking at Mr. Lohse's 4 testimony, Tehama-Colusa Canal Exhibit 6 on Page 4. And I 5 believe that a very similar statement, not precisely the 6 same statement, is made in the testimony of each of the 7 other witnesses. 8 And what I'm trying to cross-examine is as to the 9 basis of that statement. 10 C.O. STUBCHAER: Mr. Atlas. 11 MR. ATLAS: Well, if Mr. Birmingham wants an 12 explanation of what that statement means, that's one 13 thing. If he wants these witnesses to explain what 14 Reclamation Law provides, I would stipulate that we read 15 the appropriate section of the U.S. Code and leave it at 16 that. 17 C.O. STUBCHAER: I'm going to allow the witnesses to 18 answer the question to the best of their ability. 19 MR. BIRMINGHAM: Mr. Lohse, is it your understanding 20 that there are two different kinds of contracts that a 21 water district can have with the Bureau of Reclamation for 22 the receipt of water? 23 MR. LOHSE: I am not sure how many different types 24 of contracts a water district could have to receive water. 25 I -- CAPITOL REPORTERS (916) 923-5447 12896 1 MR. BIRMINGHAM: You're familiar with the term 2 "repayment contract"? 3 MR. LOHSE: Yes. 4 MR. BIRMINGHAM: And you're familiar with the term 5 "water service contract"? 6 MR. LOHSE: Yes. 7 MR. BIRMINGHAM: Mr. Alves, do you understand that 8 there's a difference between a water service contract and 9 a repayment contract? 10 MR. ALVES: Yes. 11 MR. BIRMINGHAM: Now, the contract that Glide Water 12 District has, is it a water service contract or a 13 repayment contract? 14 MR. ALVES: We have a water service contract. In 15 addition to that we had a repayment contract, but since we 16 have bought those out and they're held by a private 17 lender. 18 MR. BIRMINGHAM: The repayment contract that you had 19 was a contract for the construction of a distribution 20 facility? 21 MR. ALVES: That's correct. 22 MR. BIRMINGHAM: And you've repaid that repayment 23 contract? 24 MR. ALVES: We've paid the Bureau but we have not 25 paid the system off. CAPITOL REPORTERS (916) 923-5447 12897 1 MR. BIRMINGHAM: Ms. Peterson, Dunnigan Water 2 District, does it have a repayment contract or a water 3 service contract? 4 MS. PETERSON: The Dunnigan Water District has two 5 contracts. That's both of them. 6 MR. BIRMINGHAM: It has a water service contract? 7 MS. PETERSON: That's correct. 8 MR. BIRMINGHAM: And it is the -- it's under the 9 water service contract that water is delivered by the 10 Bureau of Reclamation to Dunnigan Water District? 11 MS. PETERSON: That's correct. 12 MR. BIRMINGHAM: And it has a repayment contract? 13 MS. PETERSON: We have a repayment contract with the 14 Bureau, also. 15 MR. BIRMINGHAM: And that is for the construction of 16 a distribution system? 17 MS. PETERSON: Yes. 18 MR. BIRMINGHAM: And, Mr. Emrick, Colusa County 19 Water District, does it have a water service contract or 20 repayment contract? 21 MR. EMRICK: We currently have one of each. 22 MR. BIRMINGHAM: The contract under which Colusa 23 County Water Districts receive -- excuse me, let me 24 restate the question. 25 The contract under which Colusa County Water CAPITOL REPORTERS (916) 923-5447 12898 1 District receives water is the water service contract? 2 MR. EMRICK: Yes, it is. And that's -- it -- the 3 water rate that's charged also is consistent with 4 providing some repayment for the facilities, the capital 5 costs. And I'm not sure whether you're referring to that 6 when you're talking to repayment, about repayment. 7 MR. BIRMINGHAM: The repayment contract that you 8 have is for the construction of a distribution system? 9 MR. EMRICK: Yes. We constructed -- we had 10 originally two repayment contracts with the Bureau, one of 11 them we refinanced. 12 MR. BIRMINGHAM: When you refinanced that contract, 13 was it refinanced with the Bureau or did you refinance it 14 with a private agency? 15 MR. EMRICK: We refinanced it with a private agency 16 and we're making payments on that. 17 MR. BIRMINGHAM: Mr. Emrick, you understand the 18 difference between a repayment contract and a water 19 service contract? 20 MR. EMRICK: Yes, I believe I do. 21 MS. PETERSON: Hope so. 22 MR. BIRMINGHAM: A water service contract -- let me 23 restate the question. 24 It's possible for a district to receive water 25 under a repayment contract? CAPITOL REPORTERS (916) 923-5447 12899 1 MR. EMRICK: It may be, but we don't, I don't 2 believe. 3 MR. BIRMINGHAM: And under a repayment contract, the 4 contract specifies a percentage of project costs that are 5 to be repaid by the individual contractor? 6 MR. EMRICK: I don't believe I have ever seen one 7 that did that, unless you're talking about the portion of 8 the water right that refers to capital costs and payment. 9 MR. BIRMINGHAM: The water rate that is paid by 10 Colusa County Water District is established under Federal 11 Reclamation Law? 12 MR. EMRICK: I think I would say that, yes. It's 13 more of a local policy, though, something federally 14 legislated. 15 MR. BIRMINGHAM: And the rate has several 16 components? 17 MR. EMRICK: Several components, yes. 18 MR. BIRMINGHAM: One of the components is to pay for 19 the water being received? 20 MR. EMRICK: Yes, the operation and maintenance 21 portion. 22 MR. BIRMINGHAM: And that's to pay for the operation 23 and maintenance of the project facilities including Shasta 24 Dam, the canal that delivers water to you and other 25 project facilities? CAPITOL REPORTERS (916) 923-5447 12900 1 MR. EMRICK: That's correct. 2 MR. BIRMINGHAM: And then there is a component of 3 the rate which is intended to repay the government for the 4 capital expenditure in constructing the project? 5 MR. EMRICK: Yes, there is. 6 MR. BIRMINGHAM: And that is a rate that is fixed 7 annually by the Bureau of Reclamation? 8 MR. EMRICK: The total rate, yes. 9 MR. BIRMINGHAM: So annually the Bureau of 10 Reclamation calculates a rate, a portion of which pays for 11 the operation and maintenance of the facility project and 12 a portion of which pays for capital? 13 MR. EMRICK: Yes. 14 MR. BIRMINGHAM: Now, Colusa County Water District 15 pays for a portion of capital. Mr. Alves, does Glide 16 Water District -- 17 MR. EMRICK: I'm sorry, that -- was that a question? 18 MR. BIRMINGHAM: My question is going to be to 19 Mr. Alves. 20 Mr. Alves, does Glide Water District pay a rate 21 that includes a capital component? 22 MR. ALVES: No. Actually, Glide Water District 23 receives relief under Reclamation law. Under Reclamation 24 law if a district was to receive its full identified need 25 it would only enhance its position to pay its own capital CAPITOL REPORTERS (916) 923-5447 12901 1 component. 2 MR. BIRMINGHAM: But, currently, Glide Water 3 District does not repay any capital? 4 MR. ALVES: No. It is repaid by power. 5 MR. BIRMINGHAM: Ms. Peterson, does Dunnigan Water 6 District pay a capital component in its water right? 7 MS. PETERSON: No, we do not. 8 MR. BIRMINGHAM: And, Mr. Lohse, does Orland-Artois 9 Water District pay a capital component as part of its 10 water rate? 11 MR. LOHSE: The answer isn't clear-cut, no. You 12 asked earlier about the different types of water service 13 contracts. Our repayment system for our distribution 14 system is included under a 9(d) contract. We do repay our 15 capital component of that directly and it is also included 16 in a portion -- as part of the water rate in some of the 17 components. 18 MR. KEENE: I'm having a hard time hearing the 19 witness. 20 C.O. STUBCHAER: Would you, please, move it closer 21 and perhaps move it towards Mr. Birmingham, because you're 22 looking at him when you're giving the answer. That's 23 fine. 24 You wanted the answer repeated, Mr. Keene? 25 MR. KEENE: I don't think I caught enough of that. CAPITOL REPORTERS (916) 923-5447 12902 1 It was fading. 2 C.O. STUBCHAER: All right. 3 MR. BIRMINGHAM: So part of the rate that you pay 4 under your contract with the Bureau of Reclamation has a 5 capital component for the repayment contract which you 6 refer to as the 9(d) contract? 7 MR. LOHSE: Correct. 8 MR. BIRMINGHAM: And then as part of the water rate 9 Orland-Artois Water District pays a capital component for 10 other project facilities? 11 MR. LOHSE: It would depend on the customer. For 12 the most part the answer is, no. We do deliver a small 13 amount of full cost water and they are required to pay all 14 the capital components and even the system 9(d) is a 15 charged component through that water rate. 16 MR. BIRMINGHAM: Now, I want to make sure that I 17 have a good understanding of this. You refer to a 9(d) 18 contract, why do you call it a 9(d) contract? 19 MR. LOHSE: It's just something that I have referred 20 to over the years. Am I referring to it incorrectly? 21 MR. BIRMINGHAM: Do you refer to it as a 9(d) 22 contract because it was a contract that was executed 23 pursuant to Section 9(d), 1939 Reclamation Act? 24 MR. LOHSE: I refer only to it as a 9(d) and I know 25 our system was designed and our contract is referred to as CAPITOL REPORTERS (916) 923-5447 12903 1 9(d). 2 MR. BIRMINGHAM: Are you familiar with the term 9(e) 3 contract? 4 MR. LOHSE: I've heard the term, I'm not familiar 5 with it. 6 MR. BIRMINGHAM: Mr. Emrick, have you heard the term 7 9(e) contract -- 8 MR. EMRICK: Yes, I have heard that. 9 MR. BIRMINGHAM: -- executed pursuant to Section 10 9(e), 1939 Reclamation Act? 11 MR. EMRICK: I haven't studied that, but, yes, it's 12 a Reclamation Law. 13 MR. BIRMINGHAM: And now, Mr. Emrick, I'd like to 14 ask you a question: Assume hypothetically that Colusa 15 County Water District allowed its existing water service 16 contract to expire and did not renew the contract. 17 Isn't it correct that Colusa County Water 18 District would be under no further obligation to pay for 19 the major project facilities that have been used to 20 deliver water to Colusa County Water District? 21 MR. ATLAS: I am going to object. That called for a 22 legal conclusion about the result of allowing a contract 23 to expire. 24 C.O. STUBCHAER: Mr. Birmingham. 25 MR. BIRMINGHAM: Well, again, we're here talking CAPITOL REPORTERS (916) 923-5447 12904 1 about whether or not the Bureau of Reclamation has 2 absorbed the ability of Colusa County Water District to 3 acquire and construct facilities to appropriate water. 4 And my question relates to the basis of that statement. 5 C.O. STUBCHAER: The witness may answer the question 6 if he knows the answer. 7 MR. EMRICK: Well, it's difficult to say what the 8 Bureau would require. We have in addition to the formal 9 obligations that we have to repay the Bureau of 10 Reclamation for construction of our distribution 11 facilities which were -- 12 MR. BIRMINGHAM: Excuse me, Mr. Emrick, my question 13 related to the water service contract as opposed to your 14 repayment contract. Let me restate the question, if I 15 may. 16 If Colusa County Water District allowed its water 17 service contract to expire, would Colusa Water District be 18 under any further obligation to pay for the capital costs 19 of the major project facilities used to deliver water to 20 Colusa County Water District? 21 MR. ATLAS: I'm going to object again. I think it 22 calls for tremendous speculation about what happens if the 23 District lets its contract expire. We don't know what the 24 United States' response to that will be. 25 C.O. STUBCHAER: The witness can only answer to the CAPITOL REPORTERS (916) 923-5447 12905 1 extent that he has knowledge. If the witness doesn't 2 know, he can so state. 3 MR. EMRICK: I really don't know what the Bureau 4 would require. 5 MR. BIRMINGHAM: Each of your written testimonies 6 refer to Tehama-Colusa Canal Authority Exhibit 19; is that 7 correct? 8 MS. PETERSON: That's what I have. 9 MR. ALVES: I don't believe that mine does. I may 10 be missing it, but I don't see it. 11 MR. EMRICK: Colusa County does. 12 MS. PETERSON: So does Dunnigan. 13 MR. BIRMINGHAM: Mr. Lohse, does your contract -- or 14 does your testimony refer to Exhibit 19? 15 MR. LOHSE: Yes, it does. 16 MR. BIRMINGHAM: Mr. Lohse, can you, please, explain 17 to me what is Exhibit 19? 18 MR. LOHSE: It refers to the payment capacity 19 analysis. 20 MR. BIRMINGHAM: Can you, please, tell the Board how 21 that was prepared? 22 MR. LOHSE: It was prepared by the Bureau of 23 Reclamation. 24 MR. BIRMINGHAM: Can you explain how the Bureau of 25 Reclamation prepared Exhibit 19, please? CAPITOL REPORTERS (916) 923-5447 12906 1 MR. LOHSE: I'll attempt to. Generally, they 2 considered numerous components for the District. The 3 cropping pattern over a period of years, the yields, the 4 prices received, other data and the farm investment in 5 land and other components and to do an analysis under 6 Reclamation Law to determine whether or not -- whether or 7 not you had payment capacity to repay capital and 8 restoration. 9 MR. BIRMINGHAM: And for Orland-Artois Water 10 District, the Bureau of Reclamation determined that the 11 District has no repayment capacity? 12 MR. LOHSE: That's correct. 13 MR. BIRMINGHAM: And as a result of that 14 determination, with the exception of water users who 15 receive full-cost water, Orland-Artois Water District 16 repays no capital costs for major project facilities? 17 MR. LOHSE: Yes, if you're excluding our 18 distribution facility. 19 MR. BIRMINGHAM: The distribution system which is 20 the subject of your 9(d) part of your contract, is for a 21 water distribution system that exists within the 22 boundaries of your district? 23 MR. LOHSE: That's correct. 24 MR. BIRMINGHAM: And in calculating rates the Bureau 25 of Reclamation does not consider your intra district CAPITOL REPORTERS (916) 923-5447 12907 1 distribution system as a major project facility? 2 MR. LOHSE: Was that a statement or are you asking a 3 question. 4 MR. BIRMINGHAM: It's a question? 5 MR. LOHSE: Question -- 6 MR. BIRMINGHAM: I can't make statements, I'm sorry. 7 MR. LOHSE: Would you re-ask the question, could you 8 rephrase it? 9 MR. BIRMINGHAM: Sure. When the Bureau of 10 Reclamation is calculating a water rate, particularly that 11 component that will repay capital facilities, does it 12 include the water distribution system that exists within 13 your District's boundaries? 14 MR. LOHSE: I don't believe it does under cost of 15 service rates, but some of the other components as I 16 mentioned earlier it does as you refer to as the full 17 costs or the -- the other rate. 18 MR. BIRMINGHAM: So the major project facilities, 19 that would include Shasta Dam? 20 MR. LOHSE: That would be a major facility. 21 MR. BIRMINGHAM: The diversion facilities on the 22 Sacramento River, which are used to divert water into the 23 Tehama-Colusa Canal? 24 MR. LOHSE: That's correct. 25 MR. BIRMINGHAM: The Tehama-Colusa Canal is a major CAPITOL REPORTERS (916) 923-5447 12908 1 project facility? 2 MR. LOHSE: Yes. 3 C.O. STUBCHAER: I'm sorry, I couldn't hear the 4 answer. 5 MR. LOHSE: Yes, I believe so. 6 MR. BIRMINGHAM: And presently Orland-Artois Water 7 District is not repaying any of those, the costs for those 8 facilities? 9 MR. LOHSE: Again, that would be true, generally, 10 but let's not lose sight of those paying full cost for the 11 water, they are repaying for those facilities. And I 12 believe we were meeting our obligations with the rest of 13 users because under Reclamation Law it's that component -- 14 those components are being repaid by energy. And 15 Reclamation is not being less -- is not being left without 16 being repaid under the terms of that law. 17 MR. BIRMINGHAM: Ms. Peterson, Dunnigan Water 18 District, is it correct that when the Bureau of 19 Reclamation prepared the analysis, which is depicted in 20 Tehama-Colusa Canal Authority Exhibit 19, the Bureau 21 concluded that Dunnigan Water District has no repayment 22 capacity? 23 MS. PETERSON: That is correct. 24 MR. BIRMINGHAM: So presently Dunnigan Water 25 District is not repaying any of the capital costs for the CAPITOL REPORTERS (916) 923-5447 12909 1 major project facilities? 2 MS. PETERSON: Except for those water users that are 3 paying full cost, that's correct. 4 MR. BIRMINGHAM: What is the percentage of water 5 users in Dunnigan Water District that pay full cost? 6 MS. PETERSON: The percentage, it's very small. 7 MR. BIRMINGHAM: Mr. Lohse, with respect to 8 Orland-Artois, what percentage of water users in your 9 water district pay full cost? 10 MR. LOHSE: I guess your answer would base it on 11 water quantity served or agers served, either way it would 12 be small. 13 MR. BIRMINGHAM: When you say small, would it be 14 less than 5 percent? 15 MR. LOHSE: Less than 5 percent. 16 MR. BIRMINGHAM: Ms. Peterson, when you say small, 17 would you mean less than 5 percent? 18 MS. PETERSON: Yes. 19 MR. BIRMINGHAM: Mr. Alves, does Glide Water 20 District pay any -- let me restate the question. 21 When Exhibit 19 was prepared the Bureau of 22 Reclamation concluded that Glide Water District has no 23 repayment capacity? 24 MR. ALVES: That's correct, limited payment 25 capacity. CAPITOL REPORTERS (916) 923-5447 12910 1 MR. BIRMINGHAM: And so Glide Water District is not 2 paying the capital costs of the major project facilities 3 that we've described. 4 MR. ALVES: Not at this time, but when we're granted 5 our additional water and are able to plant permanent crops 6 and get some more certainty back into the project, it's 7 very likely that we'll be able to pay those costs. 8 MR. BIRMINGHAM: You say "get more certainty back 9 into the water supply," the uncertainty that you're 10 referring to has been caused by the implementation of the 11 Central Valley Project Improvement Act; isn't that 12 correct? 13 MR. ALVES: Not necessarily, no. 14 MR. BIRMINGHAM: What else has caused it? 15 MR. ALVES: The refusal of the Bureau of Reclamation 16 to meet our full needs, the short contract that we've been 17 living with for many years. 18 MR. BIRMINGHAM: What is the contractual entitlement 19 of Glide Water District is entitled to receive on an 20 annual basis? 21 MR. ALVES: 10,500 acre-feet. 22 MR. BIRMINGHAM: Since 1992 how many years has Glide 23 Water District received the full allocation of 10,500 24 acre-feet? 25 MR. ALVES: Since 1992? CAPITOL REPORTERS (916) 923-5447 12911 1 MR. BIRMINGHAM: Yes. 2 MR. ALVES: I would guess, and it's not going to be 3 exact, possibly four or five years. 4 MR. BIRMINGHAM: Mr. Emrick, do you know the answer 5 to that question? 6 MR. ATLAS: As to Glide, or as to Colusa County 7 Water District? 8 MR. BIRMINGHAM: Actually, as to Glide. 9 MR. EMRICK: As to Glide? 10 MR. BIRMINGHAM: As to Glide. 11 MR. EMRICK: You said since 1992? 12 MR. BIRMINGHAM: Yes. Since 1992 how many years has 13 Glide received -- 14 MR. ATLAS: You're asking Mr. Emrick about Glide 15 Water District's contractual allocations? 16 MR. BIRMINGHAM: I am. 17 MR. ATLAS: All right. Thank you. 18 MR. EMRICK: Okay. Not answering directly for 19 Glide, but in 1993 we had a 65-percent supply; 1994, we 20 had a 35-percent supply; and 1997 I believe they announced 21 a 90-percent supply. 22 And the -- all the districts along the service 23 area have the same supply availability. Plus in the 24 calculations for the water rate there is a diminishment of 25 the supply for our canal, because of the operation of the CAPITOL REPORTERS (916) 923-5447 12912 1 Red Bluff diversion dam for fisheries purposes, protecting 2 the salmon there. We only get water buildup about four 3 months out of the year of water into the TC Canal. So 4 there's a diminishment of the availability for physical 5 reasons in our -- for all of our districts. 6 MR. BIRMINGHAM: Now, you said that in 1993 the 7 contractors within the Tehama-Colusa Canal service area, 8 which would include Glide Water District, received a 9 65-percent supply? 10 MR. EMRICK: That's what I have written down for my 11 district. 12 MR. BIRMINGHAM: And Glide would have received the 13 same allocation? 14 MR. EMRICK: I believe so. 15 MR. ALVES: Yes. 16 MR. BIRMINGHAM: Now, 1993 was a wet year, wasn't 17 it? 18 MR. ALVES: I don't know. 19 MR. BIRMINGHAM: Mr. Emrick, do you know if 1993 was 20 a wet year? 21 MR. EMRICK: No, I don't know the weather. I just 22 have a reference that I brought along with me that I may 23 have put the numbers with the incorrect year, but I have 24 '93 and '94 having shortages. 25 MR. BIRMINGHAM: Okay. CAPITOL REPORTERS (916) 923-5447 12913 1 MR. EMRICK: Also, and -- 2 MR. BIRMINGHAM: I'm going to ask you to assume that 3 1993 was a wet year. 4 MR. EMRICK: Okay. 5 MR. BIRMINGHAM: Now, prior to the enactment of 6 CVPIA and the implementation of the Endangered Species 7 Act, isn't it correct that in all wet years all of the 8 contractors in the Sacramento Valley received a 9 hundred-percent allocation? 10 MR. ATLAS: You mean 100 percent of contract 11 entitlement or 100 percent of their need? 12 MR. BIRMINGHAM: I don't think that this is an 13 ambiguous question. Mr. Atlas' objection is being 14 argumentative. I believe that if I ask these witnesses a 15 series of questions we would establish that "allocation" 16 is a term that is used regularly by the Bureau of 17 Reclamation and has a specific meaning, and I'm happy to 18 do that. 19 C.O. STUBCHAER: I do think that definition was 20 lacking in the question, so why don't you repeat it with 21 that definition. 22 MR. ATLAS: Thank you. 23 MR. BIRMINGHAM: Mr. Emrick, isn't it correct that 24 annually the Bureau of Reclamation makes an allocation 25 announcement? CAPITOL REPORTERS (916) 923-5447 12914 1 MR. EMRICK: Yes, they do. 2 MR. BIRMINGHAM: And the Bureau -- the allocation 3 announcement is how much of a water district's supply, 4 contract supply will be made available by the Bureau of 5 Reclamation to that water district? 6 MR. EMRICK: Yes, that's correct. 7 MR. BIRMINGHAM: So in a year in which the Bureau 8 makes a 100-percent allocation for contractors in the 9 Sacramento Valley, your district receives 100-percent of 10 its contractual entitlement? 11 Let me restate the question: 100 percent of the 12 contractual entitlement is made available to your district 13 by the Bureau of Reclamation when it makes a 100 percent 14 allocation to contractors in the Sacramento Valley? 15 MR. EMRICK: I believe that's correct theoretically 16 if we can get it into the canal at the right time. 17 MR. BIRMINGHAM: "If we could get it into the canal 18 at the right time," what prevents you from getting it into 19 the canal at the right time? 20 MR. EMRICK: The irrigators in our district are 21 irrigating presently. They began in February irrigating 22 tomatoes. And half our district is permanent crops, 23 vineyards, they began irrigating, also. 24 The dam is not in the river and there is very 25 limited pumping capacity to put water into the canal to CAPITOL REPORTERS (916) 923-5447 12915 1 get down to us. And as the capacity -- or the capacity, 2 there are some pumps that substitute for putting the gates 3 in the river to create the diversion to put water into the 4 Tehama-Colusa Canal by gravity. 5 And whenever those gates go in the river they 6 form a little pond there that's called Lake Red Bluff. 7 And then the water flows by gravity into the canal. 8 There's a few pumps that -- gates aren't in the river. 9 And those pumps have not been able to keep up with the 10 historic demand. We've all had shortage allocations up 11 until the time from the beginning of the year -- a year up 12 until a month -- or the day that the gates go into the 13 river. 14 MR. BIRMINGHAM: Now, placement of the gates in the 15 river, that's -- that is unrelated to the amount of water 16 being exported, isn't it? 17 MR. EMRICK: I think it's -- yes, it's more related 18 to the migration of winter-run salmon. 19 MR. BIRMINGHAM: So if -- you said presently the 20 gates are not in place? 21 MR. EMRICK: That's correct. 22 MR. BIRMINGHAM: Okay. So let's assume that there 23 are zero exports, presently, the gates would still not be 24 in place? 25 MR. EMRICK: That's correct. CAPITOL REPORTERS (916) 923-5447 12916 1 MR. BIRMINGHAM: And let's assume that the Central 2 Valley Project pumping plant at Tracy were operating full 3 bore, the gates still would not be in place? 4 MR. EMRICK: The gates would not be in place. 5 MR. BIRMINGHAM: And the reason the gates are not in 6 place is because the gates are lifted from the river to 7 permit the migration of winter-run chinook salmon? 8 MR. EMRICK: Yes, that's correct. 9 MR. BIRMINGHAM: So a few moments ago when Mr. Alves 10 was talking about uncertainty in supply, the ability of 11 the Bureau of Reclamation to operate the Red Bluff 12 diversion facility -- or the inability of the Bureau of 13 Reclamation to operate the Red Bluff diversion facility 14 contributes to the uncertainty? 15 MR. EMRICK: That's a -- I don't think it's their 16 ability. It's -- they're quite capable of operating the 17 facilities, but it's the operating conditions they have to 18 operate it under. That is one of the conditions that 19 creates difficulty for our service area. 20 MR. BIRMINGHAM: Let me restate the question: 21 Whether or not the Bureau of Reclamation is permitted to 22 operate the Red Bluff diversion facility contributes to 23 the uncertainty of the water supply in the Tehama-Colusa 24 Canal service area? 25 MR. EMRICK: It has an impact on our service. CAPITOL REPORTERS (916) 923-5447 12917 1 C.O. STUBCHAER: Mr. Birmingham, your hour is up. 2 How much more time do you believe you will require? 3 MR. BIRMINGHAM: An additional hour. 4 C.O. STUBCHAER: Can you make an offer of proof as 5 to why that hour is needed and tie it to this phase of the 6 hearing? 7 MR. BIRMINGHAM: Certainly. The Tehama-Colusa Canal 8 Authority apparently has offered this testimony to support 9 conditions that it will propose be attached to any change 10 in place of use authorized by a decision resulting from 11 this phase. 12 My cross-examination is directed at whether or 13 not the conditions that are proposed will address the 14 problems identified in the testimony submitted by the 15 Tehama-Colusa Canal Authority. 16 C.O. STUBCHAER: All right. I'll grant you another 17 hour. 18 MR. BIRMINGHAM: Thank you. Would this be a good 19 time to take a break? 20 C.O. STUBCHAER: It's a good time, there's always a 21 good time. 22 Mr. Keene. 23 MR. KEENE: I'm a little bit confused about what the 24 order of cases in chief is going to be this afternoon. 25 I -- I made a preliminary agreement with the Santa Clara CAPITOL REPORTERS (916) 923-5447 12918 1 County Water District, but I was not counting on 2 Vice-president Gore being in Merced this morning. And my 3 witness is meeting with them. So what I need to know is 4 do I need to speed up Highway 5, or is there some other 5 sequence of cases in chief that's planned? 6 C.O. STUBCHAER: Well, the sequence that we have 7 here is it's Santa Clara is put over until Wednesday, as 8 you know, and followed by Sacramento Municipal Utility 9 District, El Dorado County Water District and then your 10 district. 11 MR. KEENE: Thank you very much. 12 C.O. STUBCHAER: You're welcome. Take a 12-minute 13 break. 14 (Recess taken from 10:21 a.m. to 10:33 a.m.) 15 C.O. STUBCHAER: Call the hearing back to order. 16 Mr. Birmingham. 17 MR. BIRMINGHAM: Mr. Emrick, immediately before the 18 recess you were describing for me some limitations that 19 have been imposed on the operation of the Red Bluff 20 diversion facilities. 21 Do you recall that discussion? 22 MR. EMRICK: Yes. 23 MR. BIRMINGHAM: And that discussion was prompted by 24 a question about -- or an answer concerning the ability of 25 the Bureau to deliver water to your district. CAPITOL REPORTERS (916) 923-5447 12919 1 MR. EMRICK: Yes. 2 MR. BIRMINGHAM: And so even in years when you 3 receive a 100-percent allocation of your contract supply, 4 you may not be able to take all of that water? 5 MR. EMRICK: Yes. We suffer the same difficulties 6 as most of Reclamation contractors do. Even the export 7 contractors have limitations, environment limitations on 8 pumping. 9 MR. BIRMINGHAM: Now, what is the amount of water 10 that Colusa County Water District is entitled to receive 11 under its water service contract? 12 MR. EMRICK: It's 68,000 acre-feet in round numbers. 13 I could give you the exact number, 68,165. 14 MR. BIRMINGHAM: Now, I'm going to ask you to assume 15 hypothetically that you went to the Bureau of Reclamation 16 and asked that they give you another 30,000 acre-feet. 17 And they entered into a contract with Colusa County Water 18 District for 98,165 acre-feet. 19 Under those circumstances there may be years in 20 which, despite a 100-percent allocation, Colusa Water 21 District still could not take 68,165 acre-feet? 22 MR. EMRICK: In shortage years, yes, there could be 23 an allocation that would be less than our contract amount. 24 MR. BIRMINGHAM: My question, Mr. Emrick, was 25 assuming a 100-percent allocation. You testified that CAPITOL REPORTERS (916) 923-5447 12920 1 even in circumstances when you presently receive a 2 100-percent allocation, 68,165 acre-feet, you may not be 3 able to take all of that water because of the limitations 4 imposed on the operation of the Red Bluff diversion 5 facility? 6 MR. EMRICK: That's correct. And it -- I initially 7 was referring to the water pricing policy that the Bureau 8 has established takes that into account until, I believe, 9 1998 or so, whenever the original study that is going on 10 there on how to correct that problem is completed. 11 And some corrections are started so that we can 12 receive that. In a 25-year contract in a long-term 13 contract we're looking into the future where some of these 14 problems are solved for the water districts. 15 MR. BIRMINGHAM: Under existing circumstances you 16 testified, Mr. Emrick, that even if your district receives 17 a 100-percent allocation, you may not be able to take 18 delivery of all of your contractual entitlement because 19 the Bureau can't get the water into the canal at the right 20 time? 21 MR. EMRICK: Well, we have experienced that in the 22 past historically, but not every year. 23 MR. BIRMINGHAM: You are experiencing that this 24 year? 25 MR. EMRICK: Not this year yet, no. CAPITOL REPORTERS (916) 923-5447 12921 1 MR. BIRMINGHAM: Did you experience that last year? 2 MR. EMRICK: No, not last year. I believe it was 3 the year before last where we had some allocation process 4 that we had to go through between the districts along the 5 canal for about three to four weeks, the early deliveries 6 before April 15th -- May 15th. 7 MR. BIRMINGHAM: Let's get into that for a moment if 8 we can. It's my understanding that each one of the 9 districts that's represented on this panel has requested 10 that the Bureau of Reclamation provide additional water to 11 them in their contracts; is that correct? 12 MR. EMRICK: That's correct. 13 MR. BIRMINGHAM: Now, a few years ago, or it may 14 have even been last year, have any of you heard of Roberta 15 Water District? 16 MR. ALVES: Yes. 17 MR. BIRMINGHAM: Have any of you heard of Thomes 18 Creek Water District? 19 MR. EMRICK: Yes. 20 MS. PETERSON: Yes. 21 MR. ALVES: Yes. 22 MR. BIRMINGHAM: Elder Creek Water District? 23 MR. EMRICK: Yes. 24 MR. BIRMINGHAM: Now, each one of the districts you 25 just identified had a contract with the Bureau of CAPITOL REPORTERS (916) 923-5447 12922 1 Reclamation for the delivery of project water; isn't that 2 correct? 3 MR. EMRICK: Yes, they do. 4 MR. BIRMINGHAM: And those water districts recently 5 assigned their contracts back to the Bureau of 6 Reclamation; isn't that correct? 7 MR. EMRICK: I don't believe so. The District 8 has -- or the Bureau has been able to remove some water 9 from our service area somewhere around 30,000 acre-feet of 10 water, which used to be available for transfers among our 11 water districts. 12 Two of the water districts signed contracts, or 13 negotiated with the Bureau for financial reasons. They 14 were having, as we testified, a little more extreme 15 difficulty than the four districts that are here right now 16 and entered into some kind of negotiations to help 17 themselves out financially by reducing their water supply. 18 And the other two couldn't afford the water in the 1995 19 negotiations. The water price has been going up very 20 quickly for many of the water districts. And they did not 21 resign their contracts. 22 MR. BIRMINGHAM: Now, isn't it correct that Roberta 23 Water District, Thomes Water District and Elder Creek 24 Water District assigned a portion of their contract to the 25 Department of the Interior for delivery to wildlife CAPITOL REPORTERS (916) 923-5447 12923 1 refuges in the Sacramento Valley? 2 MR. EMRICK: I'm not familiar with their contracts. 3 There was some assignment that was requested. The water 4 was requested to be assigned to other water districts in 5 the service area, which the Bureau of Reclamation, I might 6 say, refused to do. 7 MR. BIRMINGHAM: Did the Corning Canal Water 8 District recently reassign a portion of its contract to 9 the Bureau of Reclamation? 10 MR. EMRICK: I believe that they did, yes. Their 11 quantities are now less as we enter into the negotiations 12 as they were prior and they did. 13 MR. BIRMINGHAM: And the portion of the Corning 14 Canal Water District contract that was assigned back to 15 the Bureau of Reclamation, isn't it correct that that 16 water was offered to other contractors in the 17 Tehama-Colusa Canal service area? 18 MR. EMRICK: I would have taken it if it was. 19 MR. ALVES: Actually, it was offered to our district 20 at a cost way beyond our ability to purchase it. This was 21 another attempt or another move on the Bureau to take 22 water from our service area that is our water. 23 MR. BIRMINGHAM: So if I understand your testimony, 24 Mr. Alves, then Glide Water District was offered the water 25 that was made available as a result of the Corning Canal CAPITOL REPORTERS (916) 923-5447 12924 1 Water District assignment to the Bureau of Reclamation? 2 MR. ALVES: Correct. 3 MR. BIRMINGHAM: And Glide Water District refused to 4 take that water? 5 MR. ALVES: Could not afford to purchase it at the 6 price the Bureau was willing to pay Corning Water 7 District. 8 MR. BIRMINGHAM: So because you couldn't afford to 9 purchase the water at the price the Bureau of Reclamation 10 was going to charge, Glide Water District refused to take 11 that water? 12 MR. ALVES: Correct. 13 MR. ATLAS: Wait -- question misstates the 14 testimony. The testimony was that the district couldn't 15 afford to pay the price that Reclamation was willing to 16 pay for the water, not that Reclamation was offering to 17 sell the water to the district for. 18 C.O. STUBCHAER: Yes, I did hear that. The answer 19 the way you stated it, Mr. Atlas. 20 MR. BIRMINGHAM: And he answered "yes" to my 21 question. So if that's a misstatement -- 22 MR. ALVES: I misunderstood the question. 23 C.O. STUBCHAER: Why don't we revisit that. 24 MR. ATLAS: Thank you. 25 MR. BIRMINGHAM: The water was offered -- the water CAPITOL REPORTERS (916) 923-5447 12925 1 from Corning Canal Water District was offered to Glide 2 Water District? 3 MR. ALVES: Yes. 4 MR. BIRMINGHAM: And Glide Water District refused to 5 take that water? 6 MR. ALVES: Yes. We could not afford to purchase 7 it. 8 MR. BIRMINGHAM: What was the price that you were 9 asked to pay for the water that would have been made 10 available to you as a result of the Corning Canal 11 assignment? 12 MR. ALVES: I'm not sure I can nail it down exactly. 13 I believe it was $400 an acre-foot. And we need 12,000 14 acre-feet, approximately. 15 C.O. BROWN: Clarification. 16 C.O. STUBCHAER: Mr. Brown. 17 C.O. BROWN: Mr. Birmingham, I would like that 18 clarified, please. 19 MR. BIRMINGHAM: Sure. 20 C.O. BROWN: Is that $400 an acre-foot annual, or 21 $400 a one-time cost, or what? 22 MR. ALVES: It was my understanding it was a 23 one-time purchase of the assignment of the water, it would 24 then be under our contract. 25 C.O. BROWN: It would be an annual cost beyond that? CAPITOL REPORTERS (916) 923-5447 12926 1 MR. ALVES: (Witness nods.) 2 MR. ATLAS: You have to answer out loud for the 3 Reporter. 4 MR. ALVES: Yes, it would be an annual purchase cost 5 of the water in addition to the one-time fee to basically 6 purchase the water right of the contract from the Corning 7 districts. 8 C.O. BROWN: Thank you, Mr. Birmingham. 9 MR. BIRMINGHAM: Thank you, Mr. Brown. 10 Mr. Emrick, you say that if the Corning Canal 11 Water District had been offered to you you would have 12 taken it. Was Colusa County Water District recently 13 involved in a water transfer? 14 MR. EMRICK: Yes. We have an adjacent water 15 district that has offered us to transfer water from their 16 district into ours on a long-term basis and we have a 17 long-term contract with them. 18 MR. BIRMINGHAM: Westside Water District recently 19 entered into an agreement with the Colusa County water 20 agency for a 25-year water transfer? 21 MR. EMRICK: Yes, they did. 22 MR. BIRMINGHAM: And how much water is the Colusa 23 County Water District going to receive as a result of the 24 25-year water transfer? 25 MR. EMRICK: Right now we're receiving 25,000 CAPITOL REPORTERS (916) 923-5447 12927 1 acre-feet. 2 MR. BIRMINGHAM: So that's in addition to the water 3 being made available to your district by the Central 4 Valley Project under your water service contract? 5 MR. EMRICK: Yes, it is. 6 MR. BIRMINGHAM: Okay. Mr. Alves, what is the 7 current O&M rate that is paid for water in your district? 8 What I'm asking for is the annual charge paid to the 9 Bureau of Reclamation. 10 MR. ALVES: I'm trying to think exactly, I believe 11 it's right around $10 an acre-foot. And then in addition 12 to that we have O&M costs for our local canals. 13 MR. BIRMINGHAM: A few moments ago you said that, 14 "The purchase of the Corning Canal Water District water by 15 the Bureau of Reclamation was another attempt to take 16 water from our service area that is our water." 17 Was that your statement? 18 MR. ALVES: Yes, it was. 19 MR. BIRMINGHAM: Now, when you say, "that is our 20 water," on what do you base that? 21 MR. ALVES: There is clearly a need for all the 22 water that's contracted in our area. Some of it may be 23 with districts that don't demonstrate that full need right 24 now, but they are able to do annual transfers to meet the 25 needs of those districts that are short. But as those CAPITOL REPORTERS (916) 923-5447 12928 1 districts fully develop, that will dry up too. And as 2 these transfers occur it continues to dry up our service 3 area. 4 MR. BIRMINGHAM: Now, the $400 per acre-foot from 5 Corning Canal Water District, that was not a fee that was 6 fixed by the Bureau of Reclamation? 7 MR. ALVES: No, I don't believe so. 8 MR. BIRMINGHAM: That was the price that was set by 9 the Corning Canal Water District? 10 MR. ALVES: I believe so, yes. 11 MR. BIRMINGHAM: So if the Corning Canal Water 12 District thought that the water could be better used by 13 Glide Water District, it could have set a price that you 14 could afford to pay? 15 MR. ATLAS: I'm going to object. I don't know that 16 this witness can answer about the thinking process of the 17 Corning Water District. And I'm also not sure about the 18 term "better used" is -- means. 19 C.O. STUBCHAER: Mr. Birmingham. 20 C.O. BROWN: Perhaps, you could restate the 21 question. 22 C.O. STUBCHAER: Well -- 23 MR. BIRMINGHAM: I'll restate the question, 24 Mr. Stubchaer. 25 When the Corning Canal Water District was CAPITOL REPORTERS (916) 923-5447 12929 1 involved in discussions with the Bureau of Reclamation to 2 transfer water or assign a portion of its contract back to 3 the Bureau of Reclamation, there was some discussion of 4 price. 5 MR. ATLAS: Objection. This is -- are we here to 6 discuss the Corning Water District and their negotiations 7 with the Bureau? If so, we have the wrong panel of 8 witnesses. 9 C.O. STUBCHAER: Mr. Birmingham. 10 MR. BIRMINGHAM: Well, Mr. Alves testified that the 11 transfer involved water that is, and I'm quoting now, "our 12 water." I'm trying to explore that a little bit. 13 MR. ATLAS: Well, let's explore that, then, instead 14 of what Corning Canal Water District may have discussed 15 with the Bureau of Reclamation, because none of us here at 16 this table, none of these witnesses know that. I mean if 17 you want to ask them if they know what Corning discussed 18 with the Bureau, that's one thing. 19 C.O. STUBCHAER: Well -- 20 MR. BIRMINGHAM: Mr. Stubchaer, may I say that every 21 single one of my questions is based upon an assumption 22 that the witness will provide me with an answer based upon 23 what the witness knows. If the witness doesn't know, the 24 simple answer to the question is: I don't know. 25 C.O. STUBCHAER: That's what I was going to say. CAPITOL REPORTERS (916) 923-5447 12930 1 Witnesses are not required to speculate, but if you know 2 the answer you should answer. 3 Please, proceed. 4 MR. BIRMINGHAM: Now, Mr. Alves, during the 5 discussions that occurred between the Corning Canal Water 6 District and the Bureau of Reclamation there was some 7 discussion about how much would be paid for the water. 8 MR. ALVES: Yes. 9 MR. BIRMINGHAM: And the Corning Canal Water 10 District decided that it would provide that water to the 11 Bureau of Reclamation at a cost of $400 per acre-foot. 12 MR. ALVES: No. I believe the Bureau purchased it 13 for probably in excess of $700 an acre-foot. They thought 14 they were giving us a good deal by selling us out. 15 MR. BIRMINGHAM: So Corning Canal Water District 16 sold out the Glide Water District? 17 MR. ALVES: Yes, that's my feeling. 18 MR. BIRMINGHAM: And when you say "sold out," what 19 do you mean by that? 20 MR. ALVES: Again, it's water within the service 21 area that's obviously needed within that area. 22 MR. BIRMINGHAM: Did you have any discussions with 23 the general manager of Corning Canal Water District 24 concerning their decision to sell out Glide Water 25 District? CAPITOL REPORTERS (916) 923-5447 12931 1 MR. ALVES: Yes. We're still very unhappy with them 2 for selling water outside the service area. You have to 3 understand, the Bureau has been promising us water for 20 4 years and they're yet to come through on the promises. 5 MR. BIRMINGHAM: Mr. Emrick, Colusa County Water 6 District is located in Colusa County? 7 MR. EMRICK: We're a bi-county agency, we're also in 8 Yolo County. 9 MR. BIRMINGHAM: Mr. Alves, Glide Water District is 10 located in Glenn County? 11 MR. ALVES: Yes, it is. 12 MR. BIRMINGHAM: And Ms. Peterson, Dunnigan Water 13 District is located in Yolo County? 14 MS. PETERSON: That's correct. 15 C.O. STUBCHAER: Sorry, we don't have more mics, 16 we're trying to work on that. 17 MR. BIRMINGHAM: And, Mr. Lohse, Orland-Artois Water 18 District is located in Glenn County? 19 MR. LOHSE: That's correct. 20 MR. BIRMINGHAM: Now, the water that is provided to 21 you by the Bureau of Reclamation, that is water that is 22 appropriated by the Bureau at Shasta Dam? 23 MR. EMRICK: Anybody? The service area, of course, 24 is downstream from Shasta Dam, so that would include the 25 Trinity Reservoir, I would imagine, and Shasta Dam. CAPITOL REPORTERS (916) 923-5447 12932 1 MR. BIRMINGHAM: So the water that is provided to 2 your districts is supplied to the districts by the Bureau 3 of Reclamation from Shasta Dam, or from Trinity Reservoir? 4 MR. EMRICK: Yes. 5 MR. BIRMINGHAM: Now, the water that flows into 6 Trinity Reservoir falls in Trinity County? 7 MR. EMRICK: I think for a major portion of it does. 8 The watershed for the Trinity River could extend into 9 Shasta County and also into Siskiyou County I believe. 10 MR. BIRMINGHAM: Colusa County is not within the 11 watershed of the Trinity River? 12 MR. EMRICK: No, nothing in the Sacramento Valley is 13 in the watershed of the Trinity River. 14 MR. BIRMINGHAM: So none of the water that flows 15 into Trinity Reservoir falls within the boundaries of 16 Colusa County, Yolo County or Glenn County? 17 MR. EMRICK: I think that would be geographically 18 correct, yes. 19 MR. BIRMINGHAM: Let's talk a moment about Shasta 20 Lake. Water that flows into Shasta Lake falls in Shasta 21 County; is that correct? 22 MR. EMRICK: Yes. 23 MR. BIRMINGHAM: Siskiyou County? 24 MR. EMRICK: Yes. 25 MR. BIRMINGHAM: Modoc County? CAPITOL REPORTERS (916) 923-5447 12933 1 MR. EMRICK: That's pretty far up there, but some of 2 it may come down the river there. 3 MR. BIRMINGHAM: And Lassen County? 4 MR. EMRICK: Yes. 5 MR. BIRMINGHAM: Now, does any of the water that 6 flows into Shasta Reservoir fall in Yolo County? 7 MR. EMRICK: No. 8 MR. BIRMINGHAM: Does any of the water that flows 9 into Shasta Reservoir fall in Glenn County? 10 MR. EMRICK: No, it doesn't. 11 MR. BIRMINGHAM: Does any of the water that flows 12 into Shasta Reservoir fall into Colusa County? 13 MR. EMRICK: No, it doesn't. 14 MR. BIRMINGHAM: Nor Glenn, nor Yolo; is that right? 15 MR. EMRICK: I think that's correct, yes. 16 MR. BIRMINGHAM: So the service area within the 17 districts represented by witnesses on this panel are not 18 within the counties of origin for the water which is 19 supplied to you? 20 MR. EMRICK: Well, I think that depends on the 21 counties -- it depends on where you're standing. The 22 Sacramento River watershed and water that flows into the 23 Sacramento through accretion, water coming into the 24 hydrologic system, depletion water going out of it, is 25 generated through those counties also. It's all part of CAPITOL REPORTERS (916) 923-5447 12934 1 the Sacramento River flow. 2 It's the water that reaches the E Street bridge 3 down here in Sacramento doesn't come only from Trinity and 4 Shasta, but the stream flows. And that's why the Bureau 5 of Reclamation came in for the water rights of all the 6 water users along the Sacramento River, because part of 7 those flows are part of the delivery system 8 hydrologically. 9 MR. BIRMINGHAM: Mr. Emrick, the Colusa County Water 10 District is served by the Bureau of Reclamation from the 11 Tehama-Colusa Canal? 12 MR. EMRICK: It is now, yes. 13 MR. BIRMINGHAM: Mr. Alves, the Glide Water District 14 is served by the Tehama-Colusa Canal? 15 MR. ALVES: Yes, it is. 16 MR. BIRMINGHAM: Ms. Peterson, the Dunnigan Water 17 District is served by the Tehama-Colusa Canal? 18 MS. PETERSON: Yes, it is. 19 MR. BIRMINGHAM: And, Mr. Lohse, Orland-Artois Water 20 District is served by the Tehama-Colusa Canal? 21 MR. LOHSE: Yes, it is. 22 MR. BIRMINGHAM: Now, the intake for the 23 Tehama-Colusa Canal is on the Sacramento River downstream 24 from the City of Red Bluff of approximately a mile? 25 MR. LOHSE: That's one intake that we use. CAPITOL REPORTERS (916) 923-5447 12935 1 MR. BIRMINGHAM: And the water which is diverted by 2 the Bureau of Reclamation into the Tehama-Colusa Canal 3 near the City of Red Bluff is water that falls in Trinity 4 County, Siskiyou County, Modoc County, Lassen County, 5 Shasta County? 6 MR. LOHSE: And Glenn County. 7 MR. EMRICK: Yes. 8 MR. LOHSE: And Colusa County. 9 MR. BIRMINGHAM: Glenn County is downstream of the 10 intake at the City of Red Bluff; is that correct? 11 MR. LOHSE: That's correct. 12 MR. BIRMINGHAM: So in order for water falling in 13 Glenn County to be diverted by the Bureau of Reclamation 14 at the Red Bluff diversion facility -- let me restate the 15 question. 16 In order for water falling in Glenn County to be 17 diverted at the Red Bluff diversion facility by the Bureau 18 of Reclamation, the water would have to flow uphill? 19 MR. LOHSE: I didn't say it was all diverted from 20 Red Bluff, you did. 21 MR. BIRMINGHAM: No, I -- I don't mean to be 22 argumentative, but if you could listen to my questions, I 23 would appreciate it because my question related to water 24 diverted at the City of Red Bluff. With that 25 understanding -- CAPITOL REPORTERS (916) 923-5447 12936 1 MR. LOHSE: That wasn't the way I understood your 2 question. Your question referred to water being diverted 3 in the TC Canal. 4 MR. BIRMINGHAM: Could we go back and ask the 5 Reporter to read back my question? 6 C.O. STUBCHAER: Yes, we can do that. 7 (Whereupon the question was read back by the Reporter.) 8 MR. BIRMINGHAM: Now, I'd like to go back to that 9 question, Mr. Lohse. Water which is diverted by the 10 Bureau of Reclamation at the Red Bluff diversion facility 11 near the City of Red Bluff is water that falls in Glenn 12 County? 13 MR. LOHSE: No, it is not. 14 MR. BIRMINGHAM: Now, there was a document which was 15 marked for identification today as the Department of the 16 Interior Exhibit 110. And it's a letter dated May 24, 17 1991, to Mr. Atlas regarding a complaint against the 18 Bureau of Reclamation filed on behalf of Glide and 19 Orland-Artois Water Districts. 20 Mr. Lohse, were you aware of the complaint that 21 was filed on behalf of Orland-Artois Water District by 22 Mr. Atlas? 23 MR. LOHSE: Yeah. 24 MR. BIRMINGHAM: And Mr. Alves, were you aware of 25 the complaint filed by Mr. Atlas on behalf of Glide Water CAPITOL REPORTERS (916) 923-5447 12937 1 District? 2 MR. ALVES: Yes. 3 MR. BIRMINGHAM: And the complaint that was filed on 4 behalf of Glide and Orland-Artois Water District asserted 5 that the Bureau of Reclamation reducing water supplies to 6 the two districts violated the county of origin statutes; 7 is that correct? 8 MR. ALVES: I believe that's true, yes. 9 MR. LOHSE: That's correct. 10 MR. BIRMINGHAM: And the assistant division chief of 11 the division of water rights rejected that complaint; is 12 that correct? 13 MR. ALVES: I believe the conclusion was they 14 advised us to go out and appropriate our own water right, 15 or file for our water right. That leads us back to this 16 payment capacity problem. We paid for one system already 17 and we are still waiting for the water that we were 18 promised. 19 MR. BIRMINGHAM: I'd like to examine that statement, 20 Mr. Alves. You've paid for one system already; is that a 21 true statement? 22 MR. ALVES: Yes, it is. 23 MR. BIRMINGHAM: You've paid for one system, I 24 thought your earlier testimony was that Glide Water 25 District does not repay capital components, because the CAPITOL REPORTERS (916) 923-5447 12938 1 Bureau of Reclamation has determined that it has no 2 payment capacity? 3 MR. ALVES: That's only a portion of our repayment. 4 We still have a full distribution system to pay for. 5 MR. BIRMINGHAM: And you've fully paid for the 6 distribution system? 7 MR. ALVES: No. We have not. We have financed it 8 through an independent firm. 9 MR. BIRMINGHAM: So when you say you've paid for one 10 system already, that's not an accurate statement? 11 MR. ALVES: Probably not, we are currently paying 12 for it. 13 MR. BIRMINGHAM: You're currently paying for the 14 intra-district distribution system? 15 MR. ALVES: Yes. 16 MR. BIRMINGHAM: You are not paying for the major 17 project facility? 18 MR. ALVES: At this time, no. 19 MR. BIRMINGHAM: And that's because the Bureau of 20 Reclamation has concluded that you have no ability to pay? 21 MR. ALVES: At this time, but the studies are re-run 22 every five years. And as our ability improves we will 23 start paying our capital component. 24 MR. BIRMINGHAM: And you said earlier that if you 25 had more water you would improve your ability to pay by CAPITOL REPORTERS (916) 923-5447 12939 1 planting permanent crops? 2 MR. ALVES: Absolutely. 3 MR. BIRMINGHAM: One of those permanent crops would 4 be almonds? 5 MR. ALVES: Yes. 6 MR. BIRMINGHAM: What is the current price paid for 7 almonds to the farm? 8 MR. ALVES: I don't know that. 9 MR. BIRMINGHAM: How much does it cost to produce a 10 pound of almonds? 11 MR. ALVES: I don't grow almonds. 12 MR. BIRMINGHAM: So you don't know if planting 13 almonds would improve your payment capacity? 14 MR. ALVES: Well, I think it's well-known that 15 permanent planting, whether it's almonds, pistachios, 16 vines have a higher return than some of your field crops. 17 MR. BIRMINGHAM: Let's talk about pistachios. How 18 much does it cost to grow a pound of pistachios? 19 MR. ALVES: I don't grow pistachios either. 20 MR. BIRMINGHAM: And what is the price paid for 21 pistachios to the farm? 22 MR. ALVES: I don't have that information. 23 MR. BIRMINGHAM: So you don't know if growing 24 pistachios would improve Glide Water District's repayment 25 capacity? CAPITOL REPORTERS (916) 923-5447 12940 1 MR. ALVES: I would assume that it would. 2 MR. BIRMINGHAM: But without making an assumption, 3 you don't know if planting pistachios would improve Glide 4 Water District's repayment capacity? 5 MR. ATLAS: It's asked and answered. 6 C.O. STUBCHAER: It has been. 7 MR. BIRMINGHAM: I don't think it has been, 8 Mr. Stubchaer. He says he's making an assumption. I want 9 to know if it's an assumption or if it's something he 10 knows, so I don't think it has been answered. 11 C.O. STUBCHAER: All right. Without making an 12 assumption, could you answer? 13 MR. ALVES: I suppose you could assume that it would 14 not make an improvement. I don't know that any of us here 15 have that answer. I do not have that answer. It could 16 be. 17 MR. BIRMINGHAM: Could be? 18 MR. ALVES: Could be, could be not. I mean, who 19 knows? 20 MR. BIRMINGHAM: Let's talk about vines, how much 21 does it cost to produce vines? 22 MR. ALVES: I do not grow vines. I do not have that 23 answer. 24 MR. BIRMINGHAM: And what is the return to the farm 25 for growing vines? CAPITOL REPORTERS (916) 923-5447 12941 1 MR. ALVES: I don't know. 2 MR. BIRMINGHAM: So you don't know if growing vines 3 would improve the payment capacity of Glide Water 4 District? 5 MR. ALVES: No. 6 MR. BIRMINGHAM: Now, Mr. Emrick, I'd like to ask 7 you the same question. Do you know what it costs to 8 produce the permanent crops that Mr. Alves and I have just 9 been talking about, mainly almonds, pistachios and vines? 10 MR. EMRICK: I'm not a grower, I'm a civil engineer. 11 And I have -- I can't grow anything in my garden in my own 12 backyard. But from -- I'm fairly familiar with the 13 analysis that was done for the districts on the repayment 14 capacities. 15 And since half of my district is almonds, I 16 hear -- and it may be hearsay to you attorneys -- that it 17 costs somewhere around .70, .80 a pound is the way they 18 refer to it to grow the almonds. That's through the 19 irrigation spraying and whatever else. 20 MR. BIRMINGHAM: And the present price for almonds 21 is approximately .75 per pound to the farm? 22 MR. EMRICK: That's this year. Last year it was 23 $2.20 some cents a pound. It fluctuates up and down. And 24 I think it's with all farm operations you hope for one or 25 two good years out of five. And that seems to be what the CAPITOL REPORTERS (916) 923-5447 12942 1 farm industry is all about. 2 MR. BIRMINGHAM: So planting almonds may or may not 3 improve the payment capacity of an individual district 4 within the Tehama-Colusa Canal service area? 5 MR. EMRICK: Well, I would say that it would, 6 because it's considered to be a good cash crop. And 7 unless that changes our -- I think our district, and my 8 district particularly, is in very bad shape if something 9 happens to the almond industry since 50 percent of our 10 land out there is producing almonds. 11 MR. BIRMINGHAM: Mr. Alves, I'd like to go back to 12 your statement a few moments ago with respect to 13 Department of the Interior Exhibit 110. You said that you 14 understood that the response of the State Water Resources 15 Control Board assistant division chief for the division of 16 water quality and water rights was that Glide Water 17 District should apply for its own water right permits. 18 MR. ALVES: Yes. 19 MR. BIRMINGHAM: Has Glide Water District applied 20 for its own water right permit? 21 MR. ALVES: No, we have not. My understanding was 22 one of the conditions were you had to have a facility to 23 deliver the water. We did not have the means to go 24 construct an additional facility. 25 MR. BIRMINGHAM: Has anybody from Glide Water CAPITOL REPORTERS (916) 923-5447 12943 1 District, to your knowledge, spoken with the Bureau of 2 Reclamation about abandoning the water supply contract 3 that it has and making some adjustment to the repayment 4 contract for the intra-district distribution system so 5 that Glide Water District could afford to acquire its own 6 water rights? 7 MR. ALVES: Not to my knowledge. No one ever 8 considered throwing it all away and starting all over 9 again. 10 MR. BIRMINGHAM: Mr. Emrick, do you know if anybody 11 at Colusa County Water District has had discussions with 12 the Bureau of Reclamation about abandoning its water 13 service contract and making some adjustment on the 14 repayment contract so that the Dunnigan Water District 15 could afford to develop its own water supply? 16 MR. EMRICK: If I understand your question 17 correctly, no. We have not talked to the Bureau of 18 Reclamation about reducing our water quantities. 19 MS. PETERSON: You don't know what's going on at 20 Dunnigan? 21 MR. EMRICK: No, I don't know. I think it was to 22 give Dunnigan -- 23 MR. BIRMINGHAM: My question relates to Colusa 24 County Water District. I corrected myself. 25 MR. EMRICK: Okay. Please. CAPITOL REPORTERS (916) 923-5447 12944 1 MR. BIRMINGHAM: Has anyone at Colusa County Water 2 District spoken to the Bureau of Reclamation about 3 rescinding or abandoning the water supply contract? 4 MR. EMRICK: No, we haven't. 5 MR. BIRMINGHAM: Have you spoke to the Bureau of 6 Reclamation about the potential of making some adjustment 7 under your repayment contract for the intra-district water 8 distribution system? 9 MR. EMRICK: Well, the adjustment that we made was 10 to pay them off by refinancing one of our loans through an 11 independent agency. And it was a federal program actually 12 that came to us and asked us if we would like to 13 refinance. 14 MR. BIRMINGHAM: With respect to Dunnigan Water 15 District, Ms. Peterson, has anyone at Dunnigan Water 16 District, to your knowledge, talked to the Bureau of 17 Reclamation about rescinding the water service contract 18 that you have? 19 MS. PETERSON: Not that I'm aware of. 20 MR. BIRMINGHAM: Has Dunnigan Water District made an 21 application to appropriate water? 22 MS. PETERSON: No, we have not. 23 MR. BIRMINGHAM: Have you spoken to the Bureau of 24 Reclamation about making adjustments to your repayment 25 contract for the intra-district distribution system? CAPITOL REPORTERS (916) 923-5447 12945 1 MS. PETERSON: Yes. We've talked to the Bureau on 2 several occasions about being able to refinance our 9(d) 3 contracts. And that process is not as easy -- it's much 4 more complicated than refinancing the PL 130 loans that 5 several of the districts have had. And we've been in 6 talks on several occasions, but it's never gone anywhere. 7 We've never continued because we understood that it was a 8 much more complicated process. 9 MR. BIRMINGHAM: Mr. Lohse, has the Orland-Artois 10 Water District talked with the Bureau of Reclamation about 11 the potential of rescinding its water service contract? 12 MR. LOHSE: I don't believe so. That would be 13 unreasonable at this point in time. 14 MR. BIRMINGHAM: Have you spoken to them about 15 making some adjustment on the repayment contract for the 16 intra-district distribution system? 17 MR. LOHSE: Intra-district -- help me out. 18 MR. BIRMINGHAM: You said that you have a repayment 19 contract for a distribution system that was constructed 20 within your district? 21 MR. LOHSE: Uh-huh. 22 MR. BIRMINGHAM: You need to answer audibly. 23 C.O. STUBCHAER: Yes, please, give an audible answer 24 and into the mic. 25 MR. LOHSE: Yes. I'm sorry. CAPITOL REPORTERS (916) 923-5447 12946 1 MR. BIRMINGHAM: And have you spoken with the Bureau 2 of Reclamation about making some adjustment to the 3 repayment capacity for the intra-district distribution 4 system so that Orland-Artois Water District would be in a 5 position to afford to develop its own water supply? 6 MR. LOHSE: Not directly in that regard. 7 MR. BIRMINGHAM: Has Orland-Artois Water District 8 made an application to appropriate water? 9 MR. LOHSE: No. 10 MR. BIRMINGHAM: I'd like to go back to a question 11 that I had asked Mr. Emrick earlier and I'm not sure that 12 it was ever answered. 13 Mr. Emrick, earlier I asked you a question about 14 water allocations prior to 1990 and water allocations in 15 wet years prior to 1990. And you may recall I asked you 16 to assume that 1993 was a wet year. 17 Do you recall that question? 18 MR. EMRICK: Yes. 19 MR. BIRMINGHAM: Now, in wet years prior to 1990, 20 was there ever a year in which Colusa County Water 21 District received less than a 100-percent allocation under 22 its water service contract? 23 MR. EMRICK: Well, you did mention the possibility 24 of 1977 where there was a drought. There was -- 25 MR. BIRMINGHAM: Excuse me, Mr. Emrick? CAPITOL REPORTERS (916) 923-5447 12947 1 MR. EMRICK: Yes. 2 MR. BIRMINGHAM: My question is pertaining only to 3 wet years. 4 MR. EMRICK: Only to wet years. 5 MR. BIRMINGHAM: 1977 was a drought year; is that 6 correct? 7 MR. EMRICK: Yes. I think they were able to deliver 8 us after 1980, since the construction of the canal, as 9 much water as we were able to use at that time in the 10 stage of the period of development that our district was 11 in, yes. So the answer to your question should be, yes. 12 MR. BIRMINGHAM: But in 1993, if 1993 were a wet 13 year you received less than a 100-percent supply? 14 MR. EMRICK: I have a note here, yes, that we 15 received a 65-percent supply that year. That might have 16 been the original announcement and it might have been 17 modified later, but that's what my note says. 18 MR. BIRMINGHAM: Does your note address the 19 allocations that were made to contractors south of the 20 Delta in 1993? 21 MR. EMRICK: No. 22 MR. BIRMINGHAM: I'm going to ask you to assume, 23 hypothetically, that the State Water Resources Control 24 Board rejects the current petition to change the place of 25 use for water within the export service area of the CAPITOL REPORTERS (916) 923-5447 12948 1 project. 2 Mr. Emrick, do you understand that assumption? 3 MR. EMRICK: I believe I understand what your 4 assumption is. 5 MR. BIRMINGHAM: The Bureau of Reclamation has asked 6 the State Water Resources Control Board to change the 7 place of use to include areas that are currently outside 8 of the authorized place of use for export contractors. Is 9 that your understanding? 10 MR. EMRICK: Yes, I understand that. 11 MR. BIRMINGHAM: I'm going to ask you to assume that 12 the State Water Resources Control Board rejects the 13 Bureau's request. If the State Board rejects the petition 14 to change the place of use, would that result in any more 15 water being made available to Colusa County Water 16 District? 17 MR. EMRICK: I think it's very probable that the 18 yield would be -- more of the yield of the project would 19 be coming into the county of origin the way the Bureau 20 administers and operates their system right now. 21 MR. BIRMINGHAM: You said if the Board were to 22 reject the petition that more of the yield would be 23 delivered within the area of origin the way the Bureau 24 operates the system right now. 25 Is that your testimony? CAPITOL REPORTERS (916) 923-5447 12949 1 MR. EMRICK: Yes. 2 MR. BIRMINGHAM: Let's talk about Westlands Water 3 District. Within Westlands Water District how much of the 4 District's contract supply can be used within the existing 5 place of use? 6 MR. EMRICK: I'm sorry, I don't know for Westlands 7 how much can be used. 8 MR. BIRMINGHAM: For the contractors along the 9 Delta-Mendota Canal, how much of their contract supply can 10 be used within the existing service area? 11 MR. EMRICK: I'm not familiar with their area 12 either. 13 MR. BIRMINGHAM: Contractors within the San Felipe 14 division, how much of the existing contract supply can be 15 used within the existing service area of the San Felipe 16 area? 17 MR. EMRICK: I don't know that quantity either. 18 MR. BIRMINGHAM: So if 100 percent of the existing 19 contract supply for contractors south of the Delta can be 20 used within the existing place of use, denying the 21 petition to change the place of use would not result in 22 any more water being made available to your service area 23 would it be, Mr. Emrick? 24 MR. ATLAS: I'm going to object to this line of 25 questioning because if I remember that the three or four CAPITOL REPORTERS (916) 923-5447 12950 1 questions that led up to this, or at least a couple 2 questions, the question was: How much of the water could 3 be used within the service area of San Luis -- or -- I'm 4 sorry, I can't remember. There were questions about 5 Westlands. And I think that question was place of use and 6 then we start talking about service area. Now, we're back 7 to place of use. I think -- 8 MR. BIRMINGHAM: I think -- excuse me. I didn't 9 mean to speak over Mr. Atlas. I think each one of my 10 questions said "existing place of use." If I didn't say 11 that, I will go back and re-ask the questions, but -- may 12 I have a moment? 13 C.O. STUBCHAER: I believe you did on the first and 14 third. I don't recall the second either. So do you want 15 that read back or do you just want to re-ask the question? 16 MR. BIRMINGHAM: I'll just re-ask the question. 17 MR. ATLAS: Thank you. 18 MR. BIRMINGHAM: Mr. Emrick, for the contractors 19 along the Delta-Mendota Canal, do you know how much of 20 their contract supply can be used within the existing 21 place of use? 22 MR. EMRICK: No, I don't. 23 MR. BIRMINGHAM: And for other contractors in the 24 San Luis Unit, contractors other than Westlands, do you 25 know how much of their contract supply can be used within CAPITOL REPORTERS (916) 923-5447 12951 1 the existing place of use? 2 MR. EMRICK: No, I don't. 3 MR. BIRMINGHAM: Have you reviewed the analysis 4 contained in the Draft Environmental Impact Report 5 concerning demands within the existing place of use for 6 CVP contractors south of the Delta? 7 MR. EMRICK: No, I haven't. 8 MR. BIRMINGHAM: I'm going to ask you to assume that 9 100 percent of the contractual supply for contractors 10 south of the Delta can be used within the existing place 11 of use, do you understand that assumption? 12 MR. EMRICK: Yes, I believe so. 13 MR. BIRMINGHAM: If 100 percent of the existing 14 contract supply can be used within the existing place of 15 use, would denial of the petition by the State Board to 16 change the place of use to include the service areas of 17 existing contractors result in more water being made 18 available to your service area? 19 MR. EMRICK: I -- more water being available, it's 20 hard -- the way you phrased it before: Would it 21 deplete -- would there be any depletion, I think is more 22 the way that I view it. As I don't think it's -- I don't 23 think it's going to create any water so, no. With that -- 24 in that vein it's not going to create additional water. 25 MR. BIRMINGHAM: So in response to my question, if CAPITOL REPORTERS (916) 923-5447 12952 1 the Board were to reject the petition to change the place 2 of use, it's not going to create any more water to be made 3 available to your water district? 4 MR. EMRICK: That's correct. 5 MR. BIRMINGHAM: Now, were you present for 6 Mr. Atlas' opening statement? 7 MR. EMRICK: Yes, I was. 8 MR. BIRMINGHAM: In his opening statement it states 9 that, 10 (Reading): 11 "That Reclamation plans to export more water 12 out of the watersheds of origin." 13 Do you have a copy of his statement with you? 14 MR. EMRICK: Yes, I do. 15 MR. BIRMINGHAM: If you look at the top of Page 3, 16 the first full sentence states, 17 (Reading): 18 "Reclamation plans to export more water out of 19 watersheds of origin." 20 You see that statement? 21 MR. EMRICK: Yes, I do. 22 MR. BIRMINGHAM: Do you know of any plans by the 23 Bureau of Reclamation to export more water out of the 24 watersheds of origin? 25 MR. EMRICK: One of them is called CalFed and they CAPITOL REPORTERS (916) 923-5447 12953 1 are in a process right now of trying to remove some of the 2 obstructions to exporting additional water supplies, 3 passage of water through the Delta. 4 MR. BIRMINGHAM: Now, it's your understanding that 5 there's presently constraints that are imposed on the 6 export of water out of the Delta? 7 MR. EMRICK: Yes, I do. 8 MR. BIRMINGHAM: And those are constraints that are 9 imposed by the Endangered Species Act? 10 MR. EMRICK: That's one of the constraints. 11 MR. BIRMINGHAM: And implementing the 1994 Bay-Delta 12 Accord? 13 MR. EMRICK: Yes. 14 MR. BIRMINGHAM: Now, prior to the implementation of 15 the Endangered Species Act and 1994 Bay-Delta Accord, the 16 Bureau was able to export as much water as it needed to 17 satisfy the demands of its contractors south of the Delta. 18 Is that your understanding? 19 MR. EMRICK: I'm not sure of that. I don't think I 20 can answer that question, no. 21 MR. BIRMINGHAM: So comparing the exports prior to 22 implementation of CVPIA and 1994 Bay-Delta Accord and the 23 Endangered Species Act, would exports after the 24 implementation of those new regulations, you don't know if 25 Reclamation is going to export more water out of the CAPITOL REPORTERS (916) 923-5447 12954 1 watersheds of origin? 2 MR. EMRICK: Well, it's difficult to deal currently 3 with the Bureau of Reclamation. I think that there's some 4 litigation going on trying to get the Bureau to come up 5 with the yield of their project. And as they make their 6 presentations at one point in time, I think when we were 7 talking previously, the Bureau was talking about a project 8 that had a million acre-feet of uncontracted water that 9 was available in 19 -- I think it's in our testimony. 10 They asked us if we wanted any water out of that 11 and that's when all these districts came in, provided them 12 with their needs analysis that we could use some more 13 water. 14 Well, that marketing never took place and now 15 that water seems to have disappeared, but no one seems to 16 know how much has disappeared. Maybe the Bureau will come 17 up with some project operation numbers to let us know 18 where they're at. 19 MR. BIRMINGHAM: You said that the Bureau had one 20 million acre-feet of available water -- 21 MR. EMRICK: Uncontracted for water I should say. 22 MR. BIRMINGHAM: And they -- as a result of the 23 availability of this one million acre-feet of uncontracted 24 water they approached your water district in the mid 1980s 25 and asked you if you would like to have some more water? CAPITOL REPORTERS (916) 923-5447 12955 1 MR. EMRICK: I believe they approached every 2 district in their Central Valley Project and asked them, 3 yes. 4 MR. BIRMINGHAM: And since you were approached by 5 the Bureau of Reclamation in the mid '80s the Central 6 Valley Project Improvement Act has been enacted? 7 MR. EMRICK: Yes. And I believe 800,000 acre-feet 8 of that million seems to have -- 9 MR. BIRMINGHAM: The Central Valley Improvement Act 10 dedicated 800,000 acre-feet of project yield for fish and 11 wildlife enhancement; is that correct? 12 MR. EMRICK: That's correct. 13 MR. BIRMINGHAM: So of the one million acre-feet of 14 uncontracted water that was identified by the Bureau in 15 the mid '80s, 800,000 acre-feet of that project yield was 16 consumed by the enactment of Section 3406(b)(2) of the 17 CVPIA? 18 MR. ATLAS: I'm going to object. That's a heck of a 19 leap, that the million acre-feet that the Bureau of 20 Reclamation was discussing marketing in 1988, that 80 21 percent of that evaporated upon signature of the CVPIA, I 22 think that runs counter to the lawsuit that the opinion 23 for which was just entered into the record not two weeks 24 ago. 25 MR. BIRMINGHAM: Mr. Atlas is testifying. My CAPITOL REPORTERS (916) 923-5447 12956 1 question is directed at Mr. Emrick, not at Mr. Atlas. If 2 Mr. Atlas has some objection to the question maybe he can 3 state succinctly the objection for the record. 4 C.O. STUBCHAER: Mr. Atlas. 5 MR. ATLAS: I thought I had. 6 MR. BIRMINGHAM: I heard some testimony that that's 7 a leap, but I have not heard me asking a question that 8 assumes a leap is not an objection. 9 C.O. STUBCHAER: Mr. Atlas, do you have a restated 10 objection? 11 MR. ATLAS: I will withdraw the objection. 12 MR. BIRMINGHAM: Mr. Emrick, let me go back and ask 13 the question again. You testified that in the mid 1980s 14 the Bureau of Reclamation identified a million acre-feet 15 of uncontracted water that was available. And then you 16 testified that 800,000 acre-feet of project yield was 17 dedicated to fish and wildlife enhancement as a result of 18 the enactment of the CVPIA; is that correct? 19 MR. EMRICK: That's a current -- yes. 20 MR. BIRMINGHAM: Okay. And the enactment of the 21 Central Valley Improvement Act required that the Bureau of 22 Reclamation make specified deliveries of water to wildlife 23 refuges? 24 MR. EMRICK: Yes, it did. 25 MR. BIRMINGHAM: And that further reduced the amount CAPITOL REPORTERS (916) 923-5447 12957 1 of uncontracted water that was available for delivery to 2 CVP contractors? 3 MR. EMRICK: Yes. 4 MR. BIRMINGHAM: The Central Valley Project 5 Improvement Act required that the Bureau of Reclamation 6 reduce -- excuse me. Let me restate the question. 7 The Central Valley Improvement Act required the 8 Bureau of Reclamation release at least 340,000 acre-feet 9 of water into the Trinity River? 10 MR. EMRICK: I'm -- I know that was -- there was 11 water released in the Trinity River under a secretarial 12 decision. I'm not certain -- I can't say for certain that 13 I've read that in the CVPIA. It may be there. 14 MR. BIRMINGHAM: I'm going to hand to you a copy of 15 Section 3406(b)(23) of the Central Valley Improvement Act 16 and ask you to review that. And when you're finished 17 reviewing that, let me know. 18 MR. EMRICK: I'm sorry, which -- 19 MR. BIRMINGHAM: Section 3406(b)(23). 20 MR. EMRICK: 3406(b)(23). 21 MR. BIRMINGHAM: And when you're done reviewing 22 that, Mr. Emrick, let me know. 23 MR. EMRICK: Okay. 24 MR. BIRMINGHAM: Isn't it correct, Mr. Emrick, that 25 the Central Valley Project Improvement Act requires that CAPITOL REPORTERS (916) 923-5447 12958 1 the Secretary of the Interior release at least 340,000 2 acre-feet of water into the Trinity River? 3 MR. EMRICK: Yes, I saw that in there. 4 MR. BIRMINGHAM: Right. And isn't it correct that 5 the Central Valley Project Improvement Act directs the 6 Secretary of Interior to conduct a study to determine what 7 additional releases might need to be made into the Trinity 8 River for restoration of the Trinity River basin? 9 MR. EMRICK: Yes. 10 MR. BIRMINGHAM: And isn't it correct that as a 11 result of that study there may be additional releases of 12 water into the Trinity River from Trinity Lake? 13 MR. EMRICK: That could happen. 14 MR. BIRMINGHAM: And that could further reduce the 15 one million acre-feet of uncontracted water that was 16 identified by the Bureau of Reclamation in the mid 1980s? 17 MR. EMRICK: Yes, it could. 18 MR. BIRMINGHAM: Now, let me ask you a question, 19 Mr. Emrick: Are you aware of any contracts that were 20 signed by the Bureau of Reclamation with contractors in 21 the export service area after you were contacted by the 22 Bureau of Reclamation in the mid 1980s about the potential 23 for contracting for additional water? 24 MR. EMRICK: Am I aware of any that were signed 25 after that, I guess -- there were some that were -- there CAPITOL REPORTERS (916) 923-5447 12959 1 were contracts signed after that time. 2 MR. BIRMINGHAM: Those were renewal contracts, 3 weren't they? 4 MR. EMRICK: Renewal, yes. 5 MR. BIRMINGHAM: My question is this, Mr. Emrick: 6 Are you aware of any additional contract commitments, and 7 by additional contract commitments I'm talking about 8 quantities of water that were made by the Bureau of 9 Reclamation south of the Delta after the Bureau contacted 10 you in the mid 1980s about the potential for contracting 11 for additional water? 12 MR. EMRICK: I can't recall any. 13 MR. BIRMINGHAM: The contracts -- the contractual 14 commitments in the San Luis Unit existed prior to the time 15 you were contacted by the Bureau of Reclamation in the 16 1980s? 17 MR. EMRICK: Yes, I believe those were. 18 MR. BIRMINGHAM: And the contracts along the 19 Delta-Mendota Canal service area existed at the time you 20 were contacted by the Bureau of Reclamation about 21 contracting for additional water in the mid 1980s? 22 MR. EMRICK: Well, I'm familiar enough with the area 23 to know that there were contracts in that time, but -- 24 MR. BIRMINGHAM: And you're not aware of any new 25 contracts that were signed for additional water south of CAPITOL REPORTERS (916) 923-5447 12960 1 the Delta? 2 MR. EMRICK: Myself personally, no, I haven't been 3 made aware. 4 C.O. STUBCHAER: How much more time, Mr. Birmingham? 5 MR. BIRMINGHAM: Ten minutes. 6 C.O. STUBCHAER: All right. 7 MR. BIRMINGHAM: Mr. Alves, I'd like to ask you a 8 number of questions that are similar to the questions that 9 I asked of Mr. Emrick. 10 I would ask you to assume that 100 percent of the 11 contract supplies made available to contractors south of 12 the Delta can be used within the existing place of use 13 under permits held by the Bureau, do you understand that 14 assumption? 15 MR. ALVES: Yes. 16 MR. BIRMINGHAM: Now, with that assumption in mind, 17 let's assume that the State Board denies the request to 18 change the place of use that's the subject of this phase 19 of this hearing. 20 Do you have that assumption in mind? 21 MR. ALVES: Yes. 22 MR. BIRMINGHAM: Would that denial result in any 23 additional water being made available to Glide Water 24 District? 25 MR. ALVES: No, I don't believe so, but it could CAPITOL REPORTERS (916) 923-5447 12961 1 reduce our supply. 2 MR. BIRMINGHAM: Thank you. I'm going to give you a 3 chance to correct that. Denial of the petition -- listen, 4 this is what you said and I'm going to give you a chance 5 to correct it, Mr. Alves. 6 You said that the denial of the petition to 7 change the place of use could reduce your water supply? 8 MR. ALVES: My point of that is that as we see M&I 9 conversions we see more water exported to meet those 10 needs. And the Bureau has come up with policies in the 11 last year where M&I has higher priority over ag. So just 12 the mere time passing will reduce our supplies. 13 MR. BIRMINGHAM: Mr. Alves, in any given year the 14 Bureau of Reclamation has so much water it can make 15 available to its contractors? 16 MR. ALVES: Yes. 17 MR. BIRMINGHAM: What is the rate of conversion to 18 M&I contracts for contractors south of the Delta? 19 MR. ALVES: I don't know that. 20 MR. BIRMINGHAM: So you don't know if the conversion 21 of water, M&I contracts -- you don't know if there is a 22 conversion from ag contracts to M&I contracts? 23 MR. ALVES: Water has to come from someplace that's 24 as population increases. And I can't tell you if it's all 25 going to come from CVP, but I have a hunch that some of it CAPITOL REPORTERS (916) 923-5447 12962 1 will. 2 MR. BIRMINGHAM: Maybe, Mr. Alves, you could respond 3 to my question. 4 Could I ask the question to be read back? 5 C.O. STUBCHAER: Yes. 6 (Whereupon the question was read back by the Reporter.) 7 MR. ALVES: Is that just in export areas? 8 MR. BIRMINGHAM: Yes. 9 MR. ALVES: No, I do not. 10 MR. BIRMINGHAM: So denial of the petition to change 11 the place of use to include the service area of the export 12 contractors will not result in additional water being made 13 available to Glide Water District? 14 MR. ALVES: I thought we plowed this ground, but I 15 guess I didn't answer it right. 16 MR. BIRMINGHAM: Well, would you like me to ask the 17 question again? 18 MR. ALVES: I thought I answered it, but like I 19 said, I guess it wasn't the right answer. So I guess I 20 could assume: No. 21 MR. BIRMINGHAM: Ms. Peterson, I'd like to ask you a 22 couple questions. I'm going to ask you to assume that 100 23 percent of the contractual supply -- let me restate the 24 question. 25 Let me ask you to assume that 100 percent of the CAPITOL REPORTERS (916) 923-5447 12963 1 contractual obligation that the Bureau has south of the 2 Delta can be used within the existing place of use for 3 export contractors. 4 Do you understand that assumption? 5 MS. PETERSON: I believe I do. 6 MR. BIRMINGHAM: And I'm going to ask you to assume 7 that the State Water Resources Control Board denies the 8 petition to change the place of use to include the entire 9 service area of CVP export contractors. Do you understand 10 that assumption? 11 MS. PETERSON: Uh-huh. 12 MR. BIRMINGHAM: With those two assumptions in mind, 13 would the denial of the petition to change the place of 14 use for export contractors result in additional water 15 being made available to Dunnigan Water District? 16 MS. PETERSON: I don't believe I can answer that 17 question. 18 MR. BIRMINGHAM: Mr. Lohse, I'm going to ask you to 19 assume that 100 percent of the Bureau's contractual 20 obligations south of the Delta can be used within the 21 existing place of use. 22 Do you understand that assumption? 23 MR. LOHSE: Yeah. 24 MR. BIRMINGHAM: You're going to have to speak up a 25 little bit. CAPITOL REPORTERS (916) 923-5447 12964 1 MR. LOHSE: Yes, I do. 2 MR. BIRMINGHAM: With that assumption in mind, if 3 the State Water Resources Control Board denies the 4 petition to change the place of use to include the service 5 area of the existing CVP export contractors, would that 6 denial result in more water being made available to your 7 district? 8 MR. LOHSE: I'm not sure, but I'm going to speculate 9 that it might. 10 MR. BIRMINGHAM: You're speculating that it might? 11 MR. LOHSE: Well, we're making assumptions here and 12 I think it's fair that I make assumptions. 13 MR. BIRMINGHAM: Let's put this -- we can reduce it 14 to a microphone. Let's assume that the only contract that 15 exists south of the Delta is Westlands Water District. 16 And that 100 -- and Westlands Water District has a water 17 supply contract for 1,150,000 acre-feet. 18 Do you understand those assumptions? 19 MR. LOHSE: I do. 20 MR. BIRMINGHAM: And let's assume that the entire 21 contract supply, all 1,150,000 acre-feet can be used 22 within the existing place of use. 23 MR. LOHSE: Can we also assume that Westlands is a 24 contractor -- or within the place of use of the facilities 25 that we're talking about? CAPITOL REPORTERS (916) 923-5447 12965 1 MR. BIRMINGHAM: Sure. 2 MR. LOHSE: Or -- I mean, part of my testimony, the 3 problem I have in speculating on the answer to that is I 4 am not sure of those dynamics, whether or not the Bureau 5 is here for clarification of the place of use. 6 And my understanding is they're looking for 7 clarification to get it addressed to operate the project 8 as -- to get it addressed to clear up the paper to operate 9 the project as they do now. That tells me that there may 10 be something that's a little bit wrong with what they do 11 in their operations currently. 12 And if that is true and if they're forced by what 13 the Board comes out with in their decision to operate it 14 in a little bit different fashion than they do currently, 15 by addressing this place of use issue, yes, I believe it 16 could make water available for the north state if they 17 address the origin differently. 18 MR. BIRMINGHAM: No. I'm asking you, Mr. Lohse, 19 about the denial of the petition, outright denial. So I 20 want to make sure you understand that. We're not talking 21 about any conditions, we're talking about outright denial. 22 All right. Do you understand that? 23 MR. LOHSE: I understand it in legal -- in layman 24 terms. I'm not a legal person. 25 MR. BIRMINGHAM: That's fine. The State Board says CAPITOL REPORTERS (916) 923-5447 12966 1 no, you can't change the place of use. Do you understand 2 that? 3 MR. LOHSE: (Witness nods.) 4 MR. BIRMINGHAM: Let's go back to my example. We're 5 talking about Westlands Water District. Westlands has a 6 contract for 1,150,000 acre-feet. All right? 7 MR. LOHSE: Can I ask a question for clarification? 8 MR. ATLAS: Why don't you let him finish the 9 question. 10 MR. BIRMINGHAM: And it is within the existing place 11 of use, Westlands is within the existing place of use, a 12 portion of Westlands is within the existing place of use 13 of all of the Bureau's permits. And Westlands within the 14 existing place of use can use 1,150,000 acre-feet 15 beneficially and reasonably. Do you understand those 16 assumptions? 17 MR. LOHSE: Uh-huh. 18 MR. BIRMINGHAM: Now, let's assume that there's 19 45,000 acres that are outside of the existing place of use 20 within Westlands boundaries. Do you understand that 21 assumption? 22 MR. LOHSE: I can assume that. 23 MR. BIRMINGHAM: Now, if the State Board were to say 24 to the Bureau of Reclamation, "No, you cannot change the 25 place of use to include the 45,000 acres," the Bureau of CAPITOL REPORTERS (916) 923-5447 12967 1 Reclamation would still have a contractual obligation to 2 provide Westlands 1,150,000 acre-feet; isn't that correct? 3 MR. LOHSE: I believe so. 4 MR. BIRMINGHAM: And the Bureau would continue to 5 operate the project to honor that contractual obligation? 6 MR. LOHSE: That's where I'm not sure if the 7 obligation in the way the Bureau operates the project 8 would change at that point. 9 MR. BIRMINGHAM: Well, Mr. Lohse, if Westlands could 10 take 1,150,000 acre-feet and use it within the existing 11 place of use, and if there is a contractual obligation to 12 supply Westlands 1,150,000 acre-feet, what in your mind 13 suggests that the Bureau of Reclamation would change the 14 way it operates because the Board has said, "No, you can't 15 serve water to the 45,000 acres that is outside the 16 existing place of use"? 17 MR. LOHSE: I guess if there are no further 18 clarifications that need to be done on the place of use, 19 other than what you're defining in that statement, that 20 assumption may be true. I'm saying I don't know whether 21 or not there are additional clarifications the Bureau is 22 looking for under their permit conditions for the place of 23 use. 24 MR. BIRMINGHAM: We're going to walk through each 25 one of those, Mr. Lohse. We're going to walk through each CAPITOL REPORTERS (916) 923-5447 12968 1 one of them. So if we look just at Westlands Water 2 District based upon the assumptions that we have made 3 about its contractual entitlement and its ability to use 4 that contractual entitlement within that existing place of 5 use, denial of the petition to change the place of use 6 isn't going to result in any more water being made 7 available to Orland-Artois Water District, is it? 8 MR. LOHSE: As I stated earlier, I'm not sure. 9 Under your assumptions that seems to be the case. 10 MR. BIRMINGHAM: Let's assume that hypothetically 11 that the Bureau has permits for the -- that allow the use 12 of some water in the service area of the Tehama-Colusa -- 13 excuse me, Tehama-Colusa Canal, the Delta-Mendota Canal 14 and a portion of Westlands Water District. 15 And other permits include the Tehama-Colusa Canal 16 and the Delta-Mendota Canal and all of Westlands Water 17 District with the exception of the 45,000 acres. You 18 understand those assumptions? 19 MR. LOHSE: I understand them. 20 MR. BIRMINGHAM: And let's assume hypothetically 21 that all of the water which the Bureau is obligated to 22 deliver to contractors within the Delta could be put -- 23 excuse me, let me restate the question. 24 Contractors south of the Delta, could be taken 25 and put to beneficial use within the existing permitted CAPITOL REPORTERS (916) 923-5447 12969 1 place of use. Do you understand that assumption? 2 MR. LOHSE: Okay. 3 MR. BIRMINGHAM: Now, if the State Board denies the 4 petition to change the place of use to include the 45,000 5 acres outside of Westlands, is that going to result in 6 more water being made available to Orland-Artois Water 7 District? 8 MR. LOHSE: I don't believe so as you're referring. 9 MR. BIRMINGHAM: So if all the water the Bureau is 10 obligated to deliver south of the Delta can be used within 11 the existing places of use for permits held by the Bureau, 12 denying the petition to change the place of use isn't 13 going to improve your water supply? 14 MR. LOHSE: Your use of all or some of the 15 terminology bothers me, because I can think of those years 16 in San Luis Reservoir that part of the project which is 17 integrated and we pay for also and receive no benefit for 18 and leaves you the opportunity to store water south of the 19 Delta if some of those triggers and mechanisms during the 20 year were changed, yes, more water could be made available 21 for the north state. 22 And if adjusting a small portion of the place of 23 use would do that, you know, like I said I'm assuming 24 certain things that you said and I don't think that I 25 understand all the dynamics. CAPITOL REPORTERS (916) 923-5447 12970 1 MR. BIRMINGHAM: I'm going to ask you to assume 2 the -- you mentioned the permit that's held by the Bureau 3 of Reclamation to store water in San Luis Reservoir. Do 4 you know the history of that permit, Mr. Lohse? 5 MR. LOHSE: I didn't mention the permit for San Luis 6 Reservoir. 7 MR. BIRMINGHAM: You mentioned San Luis Reservoir. 8 MR. LOHSE: Yes. 9 MR. BIRMINGHAM: Are you familiar with the permit 10 that is held by the Bureau of Reclamation to store water 11 in San Luis Reservoir? 12 MR. LOHSE: No. 13 MR. BIRMINGHAM: So you don't know if that was a 14 permit that was originally applied for by the Westlands 15 Water District? 16 MR. LOHSE: I'll repeat: No. 17 MR. BIRMINGHAM: Let's go back to my hypothetical 18 question. Let's assume that the Bureau has a contractual 19 obligation to deliver water south of the Delta of X 20 acre-feet. All right? 21 MR. LOHSE: I'm with you. 22 MR. BIRMINGHAM: And that X acre-feet can be used 23 within the existing place of use. 24 MR. LOHSE: Okay. 25 MR. BIRMINGHAM: And the Bureau comes to the State CAPITOL REPORTERS (916) 923-5447 12971 1 Water Resources Control Board and says 45,000 acres of 2 Westlands Water District is outside the place of use of 3 these permits and we would like to change the permits so 4 the water can be delivered to those 45,000 acres. 5 MR. LOHSE: Okay. 6 MR. BIRMINGHAM: The State Water Resources Control 7 Board, says "no." Do you understand that assumption? 8 MR. LOHSE: Uh-huh. 9 MR. BIRMINGHAM: The Bureau of Reclamation is still 10 going to be obligated to deliver X acre-feet south of the 11 Delta? 12 MR. LOHSE: Are we leaping from wetlands to south of 13 the Delta? I don't know that the Bureau of Reclamation is 14 going to be required to deliver X acre-feet south of the 15 Delta, and that's the difficulty with my answer. 16 MR. BIRMINGHAM: Mr. Lohse, the Bureau of 17 Reclamation's contractual obligations isn't dependent on 18 place of use, is it? 19 MR. LOHSE: I don't know. That's -- that's what 20 your assumptions are. 21 MR. BIRMINGHAM: Okay. 22 MR. LOHSE: I don't know that. 23 MR. BIRMINGHAM: Are there any areas in the 24 Tehama-Colusa Canal -- are there any areas within the 25 Tehama-Colusa Canal service area that are outside the CAPITOL REPORTERS (916) 923-5447 12972 1 existing place of use? 2 MR. LOHSE: I believe there are some. 3 MR. BIRMINGHAM: Now, let's assume that the State 4 Water Resources Control Board denies the application to 5 include those areas within the permitted place of use. 6 The Bureau of Reclamation is going to still have 7 contractual obligations to deliver to Orland-Artois Water 8 District a specified amount of water? 9 MR. LOHSE: You asked, TC and then Orland-Artois and 10 in Orland-Artois it's 30,000 acre-feet, that effect of 11 changing -- or not honoring that place of use would have 12 no effect at all. 13 MR. BIRMINGHAM: It would have no effect at all on 14 Orland-Artois' ability to take that water and put it to 15 beneficial use? 16 MR. LOHSE: That's correct. 17 MR. BIRMINGHAM: And if the same facts are true of 18 Westlands Water District, the answer is the same, isn't 19 it? 20 MR. LOHSE: It would be, yeah. 21 MR. BIRMINGHAM: So let's go back to my question, 22 Mr. Lohse. If the State Water Resources Control Board 23 denies the petition to change the place of use to include 24 the place of use of contractors south of the Delta, are 25 you aware of anything that would reduce the Bureau's CAPITOL REPORTERS (916) 923-5447 12973 1 contractual obligations to south of the Delta? 2 MR. LOHSE: No. 3 MR. BIRMINGHAM: If the contracts with contractors 4 south of the Delta is like a contract that Orland-Artois 5 has with the Bureau of Reclamation excluding 45,000 acres 6 of land from Westlands Water District wouldn't affect the 7 Bureau's obligation to deliver 1.15 million acre-feet of 8 water to Westlands Water District, would it? 9 MR. LOHSE: Under those assumptions, I don't believe 10 so. 11 MR. BIRMINGHAM: And the same thing applies to all 12 of the other contractors south of the Delta, if their 13 contracts are like Orland-Artois' contract denying the 14 petition to change the place of use to include lands that 15 might be outside of a contractor's service area would not 16 change the contractual obligation of the Bureau to deliver 17 water to those districts if the districts could take the 18 water and put it to beneficial use within the existing 19 place of use? 20 MR. LOHSE: I suppose so. I -- again, we're making 21 assumptions they are like my district. 22 MR. BIRMINGHAM: And so, Mr. Lohse, if the Bureau of 23 Reclamation has an obligation to deliver X million 24 acre-feet south of the Delta, denying the place of use -- 25 the petition to change the place of use isn't going to CAPITOL REPORTERS (916) 923-5447 12974 1 make any more water available to Orland-Artois Water 2 District, is it? 3 MR. LOHSE: Under all the assumptions that you 4 stated, again, I guess so. 5 MR. BIRMINGHAM: Now -- 6 MR. LOHSE: I don't know. 7 MR. BIRMINGHAM: Now, your panel is here because 8 each district that's represented by a witness on this 9 panel is of the view that the Bureau of Reclamation is 10 administering their respective contracts in a way that is 11 contrary to the area of origin laws; is that correct? 12 MR. LOHSE: That's correct. 13 MR. BIRMINGHAM: And so it's your view that the 14 Bureau of Reclamation isn't living up to its contractual 15 obligation to your district? 16 MR. ATLAS: I'm going to object. That misstates the 17 testimony. The testimony is that the Bureau of 18 Reclamation is not living up to its legal obligations 19 under the area of origin laws. 20 MR. BIRMINGHAM: Well, if -- 21 C.O. STUBCHAER: Mr. Birmingham. 22 MR. BIRMINGHAM: If Mr. Atlas wants to subject this 23 panel to that area, I'm happy to go down that road, but -- 24 MR. ATLAS: I don't know what road we've been 25 following for the last three hours, then, because that is CAPITOL REPORTERS (916) 923-5447 12975 1 exactly what the issue is that we placed before the Board: 2 Is that the United States has certain obligations under 3 the State laws that we define -- that we refer to as area 4 of origin statutes. The United States has acknowledged 5 the existence of those laws. At times has said, yes, they 6 will honor them and other times they've said, no, they 7 aren't going to. That's the point of the testimony. 8 C.O. STUBCHAER: Mr. Atlas, you're giving us part of 9 your closing argument I think right now. 10 MR. ATLAS: I'll withdraw. 11 C.O. STUBCHAER: Nonetheless, if the witness can 12 answer the question, he should. 13 MR. LOHSE: Could you repeat it? 14 MR. BIRMINGHAM: It's your view that the Bureau of 15 Reclamation is administering its contract with your 16 district in a way that is contrary to the area of origin 17 statutes? 18 MR. LOHSE: Yeah. 19 MR. BIRMINGHAM: And it's your view that your 20 contract gives your district a right to receive as much 21 water as your district needs, regardless of your ability 22 to pay for it, because you're in the watershed of the 23 Sacramento River? 24 MR. LOHSE: No, that's why we're here giving 25 testimony because our contract does not do that. CAPITOL REPORTERS (916) 923-5447 12976 1 MR. BIRMINGHAM: I have no further questions. 2 C.O. STUBCHAER: Does staff have questions of this 3 panel? 4 MS. LEIDIGH: No questions. 5 C.O. STUBCHAER: Board Members? 6 C.O. BROWN: Mr. Stubchaer. 7 C.O. STUBCHAER: Mr. Brown. 8 ---oOo--- 9 CROSS-EXAMINATION OF TEHAMA-COLUSA CANAL AUTHORITY 10 BY BOARD MEMBERS 11 C.O. BROWN: On the $400 per acre first cost for the 12 water that was offered to you from Corning Water 13 District -- 14 MR. ALVES: Yes. 15 C.O. BROWN: -- how much water was that? 16 MR. ALVES: I don't have an exact amount. 17 C.O. BROWN: Approximately? 18 MR. ALVES: I believe Lee mentioned a total of 19 30,000 has been exported -- removed from our area. Now, 20 exactly how much of that is from -- I think it all came up 21 from that area at one time or another. 22 C.O. BROWN: If I understand this right, the Bureau 23 bought this water back from Corning for $700 an acre-foot? 24 MR. ALVES: I believe it was 7- or $800 an 25 acre-foot. CAPITOL REPORTERS (916) 923-5447 12977 1 C.O. BROWN: And then they offered to sell it to 2 several buyers, potential buyers for 400? 3 MR. ALVES: Yes, at least to our service area. I 4 know they approached a couple of districts that were short 5 of supply and transferred water from them in the past, 6 offered to sell it to us for the $400 an acre-foot. 7 C.O. BROWN: The $400 acre-foot was a one-time cost 8 to cover the conveyance and wheeling costs for delivery to 9 the districts, the capital -- 10 MR. ALVES: I'm sorry, I don't understand. Could 11 you repeat that? 12 C.O. BROWN: The $400 is a one-time cost that the 13 Bureau was asking for to help pay for the facilities to 14 regulate and deliver the water to the district? 15 MR. ALVES: Actually, the $400 purchase price was 16 between the districts. That was prior to the Bureau 17 purchasing it to make that water available to refuge or 18 whatever their need was for it. 19 C.O. BROWN: Okay. 20 MR. ALVES: And that was just to purchase -- pay the 21 other districts for a portion of their contract, which 22 would then become our contract water, but we would still 23 have to purchase it annually from the Bureau and pay all 24 the conveyance costs of our related facility. 25 C.O. BROWN: Okay. So the Bureau did not buy it and CAPITOL REPORTERS (916) 923-5447 12978 1 then offer it for sale? 2 MR. ALVES: No. It was offered to us prior to 3 the -- 4 C.O. BROWN: Corning made the offer to you? 5 MR. ALVES: Trying to keep peace in the neighborhood 6 they said, "We'll offer it to you for only 400." 7 C.O. BROWN: Okay. So they offered it to you for 8 400 and you were unable to buy it and then the Bureau 9 picked it up for 700? 10 MR. ALVES: Correct. 11 C.O. BROWN: The $400 cost that would be amortized 12 over the life of the project? 13 MR. ALVES: It would have been amortized out over 14 the two-year term of the contract at that time. 15 C.O. BROWN: But you would -- if you were to finance 16 it, you would finance it for something longer than two 17 years? 18 MR. ALVES: You would if there was some certainty of 19 the contract. The problem is we were in interim contracts 20 and not knowing what the long-term -- 21 C.O. BROWN: I see. 22 MR. ALVES: It's pretty hard to bite that not 23 knowing if the contract is going to be renewed, or what 24 terms and conditions would be put on that contract. 25 C.O. BROWN: Did the Bureau offer up any suggestions CAPITOL REPORTERS (916) 923-5447 12979 1 or consulting -- 2 MR. ALVES: Actually, they've been very helpful, as 3 you can imagine, in the past. We tried to do some 4 assignments in the past and they actually put so many 5 conditions on those and increased the costs so much that 6 we were unable to even come to an agreement on assignment 7 from district to district. 8 C.O. BROWN: Thank you. That really cleared that 9 up. 10 One other question, Mr. Chairman. 11 C.O. STUBCHAER: Sure, Mr. Brown. 12 C.O. BROWN: A concern that one of the four of you 13 expressed, and I'm sorry my notes don't reflect which one, 14 one of the concerns expressed was that if this Board 15 allows the change in place of use, within that change of 16 place of use if those areas are developed domestically or 17 domestic water requirements, a concern you expressed was 18 that the domestic requirements appear to have a higher 19 priority than the agricultural requirements. 20 And I thank you, Mr. Stubchaer, I'm saying 21 domestic requirements, and M&I, it's one in the same as 22 I'm calling it. 23 So if the M&I -- if the change in place of use, 24 if those areas, 40,000 acres of Westlands as an example, 25 if those areas were developed that could require M&I CAPITOL REPORTERS (916) 923-5447 12980 1 water, then M&I water requirements having a higher 2 priority with the Bureau of Reclamation could distract 3 from all other agriculture users north or south of the 4 Delta possibly? 5 MR. ALVES: Yes, that was my statement. Yes, I 6 believe that's true including the Sacramento Valley, yes. 7 C.O. BROWN: All right. So the question I'm going 8 to ask you then: If there was a restriction placed upon 9 the change in place of use and if those areas do become 10 developed and M&I water is required, say, within Westlands 11 as an example, if the Board was to limit those water 12 supplies to those developed areas not to exceed the 13 Westlands contract, as an example, so that they would 14 resolve the problem within the district themselves and not 15 distract from other agricultural water users outside of 16 their districts, would you then still object to the change 17 in place of use? 18 MR. ALVES: I believe that would be helpful, but I 19 still think we have the problem of the Bureau standing in 20 our town hall telling us for years that we will not take 21 any water out of this area and export it, any water that's 22 needed in this area in the Sacramento Valley today or 23 anytime in the future -- 24 C.O. BROWN: I'm talking about a State Water 25 Resources Control Board requirement, not a Bureau. CAPITOL REPORTERS (916) 923-5447 12981 1 MR. ALVES: Couldn't the Board condition the permit 2 to make the Bureau live up to the area of origin promises 3 that are made years ago? 4 C.O. BROWN: No, that's not the question. The 5 question is: If we were to put a condition on the change 6 of place of use that should these areas become developed 7 within a given district then that resolution to that would 8 be within the district itself, which would protect you 9 then from the concern that you so ably expressed. 10 MR. ALVES: I'm probably talking around it and I 11 apologize, but I believe that would help. But I still 12 don't believe that that takes care of the districts that 13 are short of water -- 14 C.O. BROWN: Different problem, different concern, 15 different party. My question is very specific. 16 MR. ALVES: I guess I don't know because my 17 impression is the condition that we would look for is for 18 that additional water within the area of origin and maybe 19 it's two separate conditions. The one would be helpful. 20 I don't know that that -- I don't believe that withdraws 21 our complaint or purpose of being here today. 22 C.O. BROWN: Thank you, Mr. Chairman. 23 C.O. STUBCHAER: Thank you, Mr. Brown. 24 Mr. Nomellini, have you had a chance to look at 25 Exhibit 110? CAPITOL REPORTERS (916) 923-5447 12982 1 MR. NOMELLINI: Yeah, I'm okay with it. 2 C.O. STUBCHAER: All right. 3 MR. NOMELLINI: I withdraw my objection. 4 C.O. STUBCHAER: Any other objections to accepting, 5 was it 110, 11 and 12? 6 MR. TURNER: It's going to be 108, 109 and 110. 7 C.O. STUBCHAER: All right. 8 MR. TURNER: But 108 and 109 have not been served on 9 the parties yet. 110 has been made available to the Board 10 staff and distributed to the people who are here in 11 attendance. 12 C.O. STUBCHAER: Ms. Leidigh. 13 MS. LEIDIGH: I just wanted to check and find out 14 whether Mr. Atlas had any redirect before -- 15 C.O. STUBCHAER: I'm going to get to that, he does, 16 but that's going to be after lunch. I wanted to find out 17 about this exhibit, because if he did object and we 18 honored the objection then Mr. Turner might want to 19 cross-examine this panel since this exhibit was in lieu of 20 cross-examination. 21 MS. LEIDIGH: I understand. 22 C.O. STUBCHAER: Okay. So no objections, then we 23 will accept this into the record after the completion of 24 the case in chief. 25 And do you still have redirect? CAPITOL REPORTERS (916) 923-5447 12983 1 MR. ATLAS: No, I don't have any redirect. We 2 covered it. 3 C.O. STUBCHAER: All right. So we have no redirect. 4 So then it is appropriate now to do the exhibits. 5 MR. ATLAS: Yes. And I would move for admission of 6 TCCA Exhibits 1 through 20 with the exception that Exhibit 7 3 we noted in our original index that we might offer 8 portions of the Central Valley Improvement Act. That's 9 already a staff exhibit. We didn't offer it specifically 10 and so I suppose to keep the record clear, we're not -- I 11 suppose we would not move separately for the admission of 12 Exhibit 3. It's already in the record, but with that 13 exception we would move 1 through -- well, 1 and 2 and 14 then 4 through 20. 15 MS. LEIDIGH: Exhibit 4 is State Board Decision 990 16 which is also a State Board Staff Exhibit, Exhibit 5-B. 17 So it seems to me that on the principle of keeping the 18 record nonduplicative neither 3 nor 4 should be offered. 19 MR. ATLAS: That's fine. I have no objection. We 20 move 1 through 2 and 5 through 20. 21 C.O. STUBCHAER: All right. Any objections? Seeing 22 none, it's accepted into the record. 23 Mr. Turner, you previously offered 110 I believe. 24 And I'm not clear whether the others are going to be 25 offered after they're distributed or now subject to CAPITOL REPORTERS (916) 923-5447 12984 1 objection after they're received. 2 MR. TURNER: I would certainly like to offer them 3 now and have them admitted in the blind, but I assume the 4 parties might have a concern with that. So I was going to 5 await on them having been distributed and offer them after 6 that's been done. I don't think there should be any 7 controversy since they relate directly to 110. 8 C.O. STUBCHAER: Right. 9 MR. TURNER: Background to 110. But if the parties 10 would be willing to stipulate at this point to their 11 admission, then that would certainly expedite the matter. 12 C.O. STUBCHAER: Would anyone object to 109 and 108 13 being accepted at this time? Seeing none, they are 14 accepted. 15 MR. TURNER: Thank you. 16 C.O. STUBCHAER: All right. 17 Ms. Leidigh. 18 MS. LEIDIGH: I have one more thing, TCCA also had 19 an Exhibit 21, which was a map that they offered last week 20 or introduced last week. 21 MR. ATLAS: And I'm sorry, if that was not accepted 22 I would move for that to be admitted as well. 23 MS. LEIDIGH: Okay. 24 MR. ATLAS: I beg your pardon. 25 C.O. STUBCHAER: All right. Any objections to the CAPITOL REPORTERS (916) 923-5447 12985 1 acceptance of Exhibit 21, the map? Seeing none, it is 2 accepted. 3 That concludes your case in chief? 4 MR. ATLAS: It does. 5 C.O. STUBCHAER: Thank you for your participation, 6 panelists, no fun. 7 MS. PETERSON: We'll go back to work. 8 C.O. STUBCHAER: Yes. And we will reconvene at 9 1:15. 10 (Luncheon recess.) 11 ---oOo--- 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 12986 1 TUESDAY, APRIL 6, 1999, 1:16 P.M. 2 SACRAMENTO, CALIFORNIA 3 ---oOo--- 4 C.O. STUBCHAER: Good afternoon. We'll reconvene 5 the Bay-Delta Water Rights Hearing. Next will be the case 6 in chief of the Sacramento Municipal Utility District. 7 Good afternoon, Ms. Dunsworth. 8 ---oOo--- 9 CASE IN CHIEF OF SACRAMENTO MUNICIPAL UTILITY DISTRICT 10 STEVE REDEKER 11 BRIAN JOBSON 12 BY LESLIE DUNSWORTH 13 MS. DUNSWORTH: Good afternoon, Mr. Chairman, 14 Mr. Brown. 15 My name is Leslie Dunsworth, I'm an attorney for 16 the Sacramento Municipal Utility District. SMUD appears 17 today in support of the Department of the Interior's 18 petition to change the places and purposes of use for the 19 water right permits associated with the Central Valley 20 Project. 21 In particular, SMUD appears in support of 22 inclusion of what the Draft Program EIR calls the 23 encroachment lands, those lands that have already received 24 CVP water pursuant to water service contract but are 25 presently outside the authorized place of use. CAPITOL REPORTERS (916) 923-5447 12987 1 The encroachment lands are referenced in the 2 Draft Program EIR as change 3A and included in the 3 proposed project alternative and Alternative 2, the 4 existing conditions alternative. 5 As an energy provider SMUD's needs for CVP water 6 are, perhaps, unique among the CVP water service 7 contractors. SMUD's purpose today is to emphasize SMUD's 8 ongoing need for CVP water at the site of SMUD's Rancho 9 Seco's nuclear plant through the testimony of two 10 witnesses. 11 Steve Redeker will testify to the continuing need 12 for a reliable water supply for purposes related to the 13 nuclear plant and its ancillary facilities. Brian Jobson 14 will testify to the need for CVP water to support future 15 generating needs. And if there are no questions our 16 witnesses are prepared. 17 C.O. STUBCHAER: Have your witnesses -- 18 MS. DUNSWORTH: They have not had the oath. 19 C.O. STUBCHAER: -- taken the oath? All right. 20 Gentlemen, will you please stand. 21 Raise your right hand. Do you promise to tell 22 the truth in this proceeding? 23 MR. JOBSON: I do. 24 MR. REDEKER: I do. 25 C.O. STUBCHAER: Thank you. You may proceed. CAPITOL REPORTERS (916) 923-5447 12988 1 MS. DUNSWORTH: We'll begin with Mr. Redeker. 2 Please, state your name for the record. 3 MR. REDEKER: Steve Redeker. 4 MS. DUNSWORTH: Are you presently employed by the 5 Sacramento Municipal Utility District? 6 MR. REDEKER: Yes, I am. 7 MS. DUNSWORTH: And in what position are you 8 employed? 9 MR. REDEKER: Manager of the Rancho Seco Nuclear 10 Plant. 11 MS. DUNSWORTH: What are your duties? 12 MR. REDEKER: My duties include overseeing and 13 managing all the site activities including nuclear plant 14 decommissioning, nuclear fuel storage and ancillary 15 activities including the Rancho Seco park operation. 16 MS. DUNSWORTH: Did you prepare or assist in the 17 preparation of SMUD Exhibit 4? 18 MR. REDEKER: Yes. 19 MS. DUNSWORTH: Did you prepare or assist in the 20 preparation of SMUD Exhibit 7? 21 MR. REDEKER: Yes. 22 MS. DUNSWORTH: Is there any correction that you 23 would like to make to SMUD Exhibit 7? 24 MR. REDEKER: Yes. On Page 3 a typographical error 25 appears on the sixth line of the first paragraph. The CAPITOL REPORTERS (916) 923-5447 12989 1 word "spend," S-P-E-N-D, should be changed to "spent," 2 S-P-E-N-T. 3 C.O. BROWN: Where are you, which one? 4 MR. REDEKER: On Page 3, the sixth line of the first 5 full paragraph. 6 C.O. STUBCHAER: Spent nuclear fuel. 7 MR. REDEKER: It should say "spent nuclear fuel," 8 instead of "spend nuclear fuel." 9 MS. DUNSWORTH: Would you summarize your testimony, 10 please. 11 MR. REDEKER: Good afternoon. I'll keep my remarks 12 brief focusing on the key items in my written statement 13 which outline the critical need for reliable continuing 14 supply of water for the Rancho Seco site including the 15 nuclear facility. Rancho Seco operated from 1974 until 16 1989, at which time it was permanently shut down. Since 17 1989 we have been in the process of closing the plant, 18 that includes conserving resources including water. 19 However, a reliable water source remains vital to 20 our activities. Closing the facility has two major 21 components: Moving the nuclear fuel from wet spent fuel 22 storage into dry storage and then nuclear decontamination 23 dismantlement of the power-generating facility itself. 24 At the time my written statement was prepared the 25 schedule for moving the nuclear fuel into dry storage CAPITOL REPORTERS (916) 923-5447 12990 1 could not be predicted with any degree of certainty as 2 noted on Page 4. However, since then we have made 3 progress and now expect to complete that transfer into dry 4 storage in the year 2000. So that's an update to that 5 portion of the statement. 6 Regarding the need for water, a reliable supply 7 is essential to be able to conduct the site activities in 8 accordance with the strict Nuclear Regulatory Commission, 9 NRC rules. The NRC has numerous regulations for operating 10 plants including, but not limited to, such things as 11 liquid effluents, liquid effluent release limits from the 12 site, emergency water supplies for the nuclear reactor and 13 the spent fuel pool for cooling and for fire protection. 14 There are many others. 15 These regulations are adjusted for permanently 16 shut down plants such as Rancho Seco. And they continue 17 to include provisions and limits which can only be met 18 with a reliable water supply. These uses at Rancho Seco 19 include, for example, the plant fire protection water 20 system and a continuous site effluent water stream flow. 21 Typically plants are located on a large body of 22 water such a lake or river or ocean which meets all the 23 plant's water needs. Rancho Seco is unique in that the 24 site is dry. It's remote from any suitable water source, 25 thus, delivered water is critical for our operation. CAPITOL REPORTERS (916) 923-5447 12991 1 Regarding the decommissioning and 2 decontamination, this includes both the radiologic aspects 3 as well as chemical decontamination and other types of 4 decontamination associated with dismantling any large 5 facility like this, many available processes using water. 6 At present we're concentrating on those that 7 don't use water; however, more extensive use of the 8 available water processes may be needed as decommissioning 9 progresses. It's important that we continue to receive 10 water so that all appropriate processes can be used during 11 decommissioning. 12 In addition to the nuclear plant, the Rancho Seco 13 site includes the Rancho Seco Park, which has a 164 acre 14 lake. We have a contract with the State under the David 15 Grunski Act which requires us to operate the facility as a 16 recreational facility and maintain the lake through the 17 year 2022. 18 The lake was constructed on previously dry land 19 and is maintained primarily by the use of delivered water. 20 There is some water which comes in from rainwater, but 21 that's a minor contribution. The park provides water 22 recreation including fishing, boating, swimming as well as 23 camping, RVing and other picnicking facilities. 24 In conclusion, delivered water is critical for 25 operation of the Rancho Seco Nuclear Plant for us to be CAPITOL REPORTERS (916) 923-5447 12992 1 able to maintain compliance with the Nuclear Regulatory 2 Commission compliance. And it's essential as well for 3 other site uses including the Rancho Seco Park. This 4 concludes my presentation. 5 MS. DUNSWORTH: Mr. Jobson, would you state your 6 name for the record. 7 MR. JOBSON: Brian Jobson. 8 MS. DUNSWORTH: Are you presently employed by the 9 Sacramento Municipal Utility District? 10 MR. JOBSON: I am. 11 MS. DUNSWORTH: And in what position? 12 MR. JOBSON: Principal power contract specialist. 13 MS. DUNSWORTH: What are your duties? 14 MR. JOBSON: I negotiate and administer contracts 15 for both power and water and manage our participation in 16 electric industry restructuring. 17 MS. DUNSWORTH: Are you familiar with SMUD Exhibit 18 2? 19 MR. JOBSON: Yes. 20 MS. DUNSWORTH: Is there a correction that you would 21 like to make to that exhibit? 22 MR. JOBSON: Yes. I would like to change my 23 position title to principle power contract specialist and 24 the department name to Fuels and Contracts reflecting 25 internal changes at SMUD. CAPITOL REPORTERS (916) 923-5447 12993 1 MS. DUNSWORTH: Did you prepare or assist in the 2 preparation of SMUD Exhibit 5? 3 MR. JOBSON: Yes, I did. 4 MS. DUNSWORTH: Is there a correction you would like 5 to make in that exhibit? 6 MR. JOBSON: Yes. SMUD's water service contract 7 with Reclamation was inadvertently omitted from the 8 exhibit and I would like to add it to the exhibit. 9 MS. DUNSWORTH: Mr. Chairman, our apologies for the 10 oversight. This is a 29-year-old public record that we 11 would like to introduce as SMUD Exhibit 3-A as a 12 supplement to -- excuse me, 5-A as supplement to 13 Mr. Jobson's testimony. We do not believe that it would 14 prejudice any party or be controversial. 15 And we believe that Board regulation 648.4 would 16 allow you to do that. And if allowed to come in we would 17 serve it on all parties and revise our exhibit list 18 appropriately. 19 C.O. STUBCHAER: Let's see if there are any concerns 20 that any of the parties have about this late exhibit. 21 Seeing none, why don't you follow the course of action you 22 just outlined. 23 MS. DUNSWORTH: Okay. I don't know if staff would 24 like those now. 25 MS. LEIDIGH: Do you have those now? CAPITOL REPORTERS (916) 923-5447 12994 1 MS. DUNSWORTH: Yes. Right here. And we have 2 copies for the audience, too. 3 Mr. Jobson, would you summarize your testimony, 4 please. 5 MR. JOBSON: Yes, again I'll be very brief here. In 6 order to meet the needs of a growing community for 7 reliable electric power, SMUD builds electrical power 8 plants which require reliable, secure high-quality water 9 supplies. Originally Rancho Seco was the plant that was 10 constructed and relied on the water supply provided under 11 our Reclamation contract. 12 The previous witness explained the need for water 13 at Rancho Seco associated with that plan. However, the 14 site is also a primary location for building additional 15 power plants in the future which must be done in order to 16 maintain a reliable supply to our customers in Sacramento 17 County and a small portion of Placer County. 18 The Rancho Seco site is an extremely important 19 component of our planning, because it offers key features 20 for power plant development. It has adequate land under 21 district ownership for the appropriate Sacramento County 22 land-use designations. It has existing electrical 23 infrastructure, including high-voltage transmission lines, 24 substations and switching equipment, which are very 25 expensive to install and are already on-site and it has a CAPITOL REPORTERS (916) 923-5447 12995 1 reliable water supply. 2 Because of these important assets, the District 3 will maintain the Rancho Seco site for future power plant 4 siting and development. And, consequently, we need to 5 continue to have a reliable water supply to that site. 6 That concludes my summary. 7 MS. DUNSWORTH: Mr. Chairman, that concludes our 8 direct testimony and the witnesses are offered for 9 cross-examination. 10 C.O. STUBCHAER: Thank you. Who wishes to 11 cross-examine this panel? Mr. Herrick, Mr. Nomellini, 12 Mr. Jackson. Anyone else? 13 All right. We'll just do it this way: First 14 will be Mr. Herrick followed by Mr. Jackson then 15 Mr. Nomellini. 16 ---oOo--- 17 CROSS-EXAMINATION OF SACRAMENTO MUNICIPAL UTILITY DISTRICT 18 BY SOUTH DELTA WATER AGENCY 19 BY MR. HERRICK 20 MR. HERRICK: Thank you, Mr. Chairman, Board Member 21 Brown, John Herrick for the South Delta Water Agency. 22 MR. BIRMINGHAM: I'd like to just point out for 23 Mr. Herrick's benefit that if he resides in close 24 proximity to Rancho Seco, if it goes, so does he. 25 MR. HERRICK: He sounds like he's against that. CAPITOL REPORTERS (916) 923-5447 12996 1 C.O. STUBCHAER: It's going to be hard for it to go 2 when it's decommissioned, isn't it, I hope. 3 MR. HERRICK: I just have a couple of questions. 4 I'm not sure which panel member this is for so I'll just 5 kind of throw it out there. Is it your testimony that no 6 part of the Rancho Seco grounds are within the current 7 service area for the Folsom Project of the Bureau? 8 MR. JOBSON: I believe that's correct. 9 MR. HERRICK: Thank you. And does anybody have any 10 information whether or not that was discussed at the time 11 of the contracting for SMUD? 12 MR. JOBSON: To my knowledge it was not. 13 MR. HERRICK: I notice from your contract that SMUD 14 has the ability to sell this water; is that correct? 15 MR. JOBSON: I think there are conditions on that, 16 but I believe that is a possibility. 17 MR. HERRICK: Okay. And I'm looking at Page 11 of 18 the contract that was just handed out. And I believe it 19 says that the district can transfer -- under certain 20 conditions the district can transfer the water to third 21 parties that have contracts with the United States; is 22 that correct? 23 MR. JOBSON: I believe so. 24 MR. HERRICK: What is the projected use of water at 25 the Rancho Seco facility once the decommissioning and CAPITOL REPORTERS (916) 923-5447 12997 1 eventual transportation of the spent fuel rods is 2 accomplished? 3 MR. REDEKER: The continual use after that would be 4 for the ancillary functions of the site such as Rancho 5 Seco Park and to support any other activities at the site. 6 There also is a need to continue the flow down the stream 7 for a period of time subsequent to the completion of 8 decommission. 9 MR. HERRICK: When you say there's a need for 10 downstream flow, what is that need? 11 MR. REDEKER: It's a prudent activity to assure that 12 any residual materials that was released from the site is 13 continued to be moved down the stream and does not reside 14 in the stream. 15 MR. HERRICK: When you say "material," you mean 16 nuclear material? 17 MR. REDEKER: Any material that was released from 18 the site, that would include the nuclear material. 19 MR. HERRICK: And how much water -- I don't see the 20 acre-feet being mentioned in your testimony. How much 21 water is the Bureau providing to the Rancho Seco site? 22 MR. REDEKER: We are -- I could speak to how much we 23 are currently using. 24 C.O. STUBCHAER: Mr. Redeker, could you, please, 25 move the microphone over to your left so that you can CAPITOL REPORTERS (916) 923-5447 12998 1 speak into it. 2 MR. REDEKER: We are currently using -- we're 3 targeting to use approximately 40 acre-feet per day, 4 that's the time unit that I think in terms of. We use 5 slightly more than that on average, however. 6 MR. HERRICK: 40 acre-feet per day? 7 MR. REDEKER: Yes. 8 MR. HERRICK: And I read your contract again -- 9 excuse me if I'm wrong. I read your contract to say that 10 you could be provided up to 75,000 acre-feet during a 11 year; is that correct? 12 MR. JOBSON: That's correct. 13 MR. HERRICK: And how much water does it take to 14 maintain the lake that you say needs to be -- use of which 15 needs to be continued for 25 years, 20 years? 16 MR. REDEKER: Approximately, until the year 2022 is 17 the contract term. That number is not readily available. 18 We don't have a way to actually meter and figure that out. 19 So I really couldn't speak to how much that is. It is a 20 small portion of the 40 acre-feet to make up for 21 evaporation. 22 However, the total amount or significant portion 23 of that amount does flush in and out of the lake every day 24 that provides the ecosystems to develop there. So we 25 basically are using all of that -- most of that water to CAPITOL REPORTERS (916) 923-5447 12999 1 maintain the lake in its current status. 2 MR. HERRICK: Do you know whether or not SMUD would 3 object to any sort of limitation on the use of water, 4 quantity of water to reflect the historic and future uses 5 for the existing purposes, not for future purposes? 6 MR. JOBSON: I'm not sure I understand your 7 question. Could you restate it? 8 MR. HERRICK: I believe neither of you were able to 9 quantify the amount used except there's approximately 40 10 acre-feet per day now; is that correct? 11 MR. JOBSON: Approximately, although it varies year 12 to year. 13 MR. HERRICK: Okay. And once the facility is fully 14 decommissioned would that use decrease? 15 MR. JOBSON: Not initially, but as I mentioned there 16 are other uses in the future outside Rancho Seco, i.e., 17 development of new power plants which will require 18 additional water separate and apart from -- indeed, the 19 intent of our contract was to provide increasing water 20 over time to meet SMUD's increasing needs, which stem from 21 our obligation to serve all the electrical demands within 22 the county. 23 MR. HERRICK: I believe your testimony states, 24 though, that you don't know where or whether or not those 25 additional power generating needs will be located? CAPITOL REPORTERS (916) 923-5447 13000 1 MR. JOBSON: That's correct. 2 MR. HERRICK: And they might not be on the Rancho 3 Seco site; is that correct? 4 MR. JOBSON: That's a possibility. 5 MR. HERRICK: So adding the Rancho Seco site to the 6 Bureau's permits for Folsom does not necessarily take care 7 of those future power -- water needs for power generation 8 for SMUD, does it? 9 MR. JOBSON: Well, the District possesses the 10 discretion to locate the power plants we build at the most 11 appropriate site. This is a particularly appropriate site 12 as I mentioned in my summary, because of the unique 13 characteristics of it. So it is likely in our judgment 14 that we will use the site for a good portion of our future 15 power plant requirements. It's economically beneficial 16 and it has the other infrastructure that could be costly 17 and have impacts to bring into other sites. 18 MR. HERRICK: Okay. Does the Nuclear Regulatory 19 Commission know that the water being supplied to Rancho 20 Seco is not authorized by the Bureau's current permits? 21 MR. REDEKER: I'm not aware that they're 22 knowledgeable on that. 23 MR. HERRICK: I have no further questions. Thank 24 you. 25 C.O. STUBCHAER: Mr. Jackson. CAPITOL REPORTERS (916) 923-5447 13001 1 MR. JACKSON: Yes, Mr. Herrick covered the questions 2 I had. 3 C.O. STUBCHAER: All right. Thank you. 4 Mr. Nomellini. 5 ---oOo--- 6 CROSS-EXAMINATION OF SACRAMENTO MUNICIPAL UTILITY DISTRICT 7 BY CENTRAL DELTA PARTIES 8 BY DANTE JOHN NOMELLINI 9 MR. NOMELLINI: Dante John Nomellini for Central 10 Delta Parties. Just a couple of follow-ups. Was there 11 any discussion at all at the time of negotiation of the 12 agreement with the Bureau as to whether or not appropriate 13 water rights were in place to furnish the water to SMUD? 14 MR. JOBSON: I have no knowledge of that. 15 MR. NOMELLINI: Okay. Either of you have any 16 awareness of what was discussed at the time of the 17 contract? 18 MR. REDEKER: I do not. 19 MR. NOMELLINI: Okay. 20 MR. REDEKER: I can tell you that I think that SMUD 21 understood that Reclamation was empowered to deliver to 22 the plant, because we relied on that contract as a water 23 supply to base a significant amount of investment of 24 money. So I think that's a safe assumption on our part. 25 MR. NOMELLINI: We all have great confidence in the CAPITOL REPORTERS (916) 923-5447 13002 1 Bureau of Reclamation, I'm sure. Subsequent to the 2 contract negotiation were there any discussions that 3 either of you two are aware with the Bureau of Reclamation 4 with regard to whether or not they contend that they had 5 filed a map with the appropriate water right application 6 that was intended to include this area? 7 MR. JOBSON: Subsequent all the way until now you 8 mean? 9 MR. NOMELLINI: Until today. 10 MR. JOBSON: I believe there have been discussions 11 about the place of use. I mean this application by the 12 Bureau, I understand, has some history to it. It's been 13 around and been contemplated in a number of different 14 instances in the past. But separate and apart from what's 15 going on in this proceeding, I'm not aware of any further 16 back in the past, closer to the time the contract was 17 negotiated. Does that answer your question? 18 MR. NOMELLINI: No. Let me follow up. When did you 19 first become aware that there could be a problem 20 associated with the power plant being outside the 21 designated place of use of the Bureau permit? 22 MR. JOBSON: I don't have an accurate recollection 23 of the date, but I would say it was in the last couple of 24 years. I think this proceeding has been initiated by the 25 Bureau over an extended period of time going back. And I CAPITOL REPORTERS (916) 923-5447 13003 1 can't recall exactly when that time was. But I think it 2 was at the same time that it became general knowledge and 3 other people became involved, there were no particular 4 discussions between SMUD and Reclamation apart from the 5 general proceeding that I'm aware of. 6 MR. NOMELLINI: Okay. So, then, to your knowledge 7 nobody in SMUD called the Bureau up and said, "Hey, what 8 the heck is going on here? We thought we had a contract 9 that provided for the water and everything was covered and 10 now is there a problem associated with this?" 11 MR. JOBSON: No. But just to clarify, we still 12 think we have that contract. 13 MR. NOMELLINI: Okay. So your testimony is other 14 than the testimony you've seen presented in these 15 hearings, there's been no discussion between SMUD that 16 you're aware and the Bureau of Reclamation with regard to 17 the place of use question associated with the delivery of 18 water to Rancho Seco? 19 MR. JOBSON: Not other than that which I already 20 mentioned. 21 MR. NOMELLINI: All right. Do you agree? 22 MR. REDEKER: I'm not aware of any discussion. 23 MR. NOMELLINI: All right. Very good. Thank you. 24 C.O. STUBCHAER: Thank you, Mr. Nomellini. 25 Staff have any questions of this panel? CAPITOL REPORTERS (916) 923-5447 13004 1 MS. LEIDIGH: No. 2 C.O. STUBCHAER: Mr. Brown? 3 C.O. BROWN: No, sir. 4 C.O. STUBCHAER: All right. That concludes the 5 cross-examination, short and sweet. And do you have any 6 redirect? 7 MS. DUNSWORTH: No, I do not. 8 C.O. STUBCHAER: Do you want to move the exhibits? 9 MS. DUNSWORTH: I would like to. At this time I 10 would move for the admission of the following exhibits, 11 SMUD's Exhibits 2, 4, 5, 5-A, 6 and 7. 12 C.O. STUBCHAER: Any objections? Numbering jive 13 with ours, staff? 14 MS. LEIDIGH: Yeah. 15 C.O. STUBCHAER: Okay. The exhibits are accepted. 16 Thank you for your appearance. 17 MS. DUNSWORTH: Thank you. 18 C.O. STUBCHAER: Next will be the case in chief of 19 the El Dorado County Water Agency. 20 Mr. Mooney, good afternoon. 21 MR. MOONEY: Good afternoon. 22 // 23 // 24 // 25 // CAPITOL REPORTERS (916) 923-5447 13005 1 ---oOo--- 2 CASE IN CHIEF OF EL DORADO COUNTY WATER AGENCY 3 MERV DeHAAS 4 BY MR. MOONEY 5 MR. MOONEY: Good morning. My name is Donald 6 Mooney. I'm here on behalf of the El Dorado County Water 7 Agency. And with me today to provide testimony is the 8 general manager Merv DeHaas. 9 As possibly -- as a couple of housekeeping 10 matters real quick, I inadvertently failed to identify the 11 testimony and statement of qualifications, provide exhibit 12 numbers to them. So for point of reference I'd like to 13 identify Mr. DeHaas' statement of qualifications as El 14 Dorado County Water Agency Exhibit 1. And then the 15 testimony as Exhibit 2. Testimony labeled as testimony of 16 Merv DeHaas. And then there's also one additional 17 correction on there where it says -- and the heading of 18 the testimony, and it's not the substantive portion, it 19 says, "Water Rights Hearing for the El Dorado Project." 20 That should be the "Bay-Delta Hearings." 21 C.O. STUBCHAER: Carryover from some old word 22 processor. 23 MR. MOONEY: Yes. I apologize for that. I believe 24 Mr. DeHaas has not taken the oath. 25 C.O. STUBCHAER: Mr. DeHaas, would you, please, CAPITOL REPORTERS (916) 923-5447 13006 1 rise. Raise your right hand. Do you promise to tell the 2 truth in these proceedings? 3 MR. DeHAAS: Yes, I do. 4 C.O. STUBCHAER: Please, take a seat. Thank you. 5 MR. MOONEY: Could you, please, state your name for 6 the record. 7 MR. DeHAAS: Merv DeHaas. 8 MR. MOONEY: And what is your current position? 9 MR. DeHAAS: I am the general manager of the El 10 Dorado County Water Agency. 11 MR. MOONEY: And does El Dorado Exhibit 1, is that 12 your statement of qualifications? 13 MR. DeHAAS: Yes, it is. 14 MR. MOONEY: And did you assist and review in the 15 preparation of the Exhibit Number 2, which is identified 16 as testimony of Merv DeHaas? 17 MR. DeHAAS: Yes, I did. 18 MR. MOONEY: And do you affirm that testimony? 19 MR. DeHAAS: Yes, I do. 20 MR. MOONEY: Mr. DeHaas, could you briefly explain 21 the importance of the Bureau's change petition as it 22 applies to El Dorado County. 23 MR. DeHAAS: All right. The El Dorado County area 24 in the western edge in El Dorado Hills is served out of 25 Folsom Reservoir. And presently that area is not included CAPITOL REPORTERS (916) 923-5447 13007 1 in the place of use of the American River permits of the 2 Bureau of Reclamation. 3 There is presently a contract, or actually 4 there's two contracts, totalling 7,550 acre-feet of 5 supplies for that area. And the present use is somewhere 6 around 5,000 acre-feet I believe. We also have a 7 congressional directive that directs the Bureau to enter 8 into a contract with the El Dorado County Water Agency for 9 an additional 15,000 -- up to 15,000 acre-feet to meet the 10 needs of El Dorado County, which will also be in that same 11 area, in the western area of El Dorado Hills. 12 El Dorado County does not have a large 13 groundwater aquifer. There are some small fracture rock 14 sources of water, but nothing you could build a large -- 15 or supply a large area like El Dorado Hills. So it cannot 16 revert to groundwater. And there are no other available 17 water supplies in El Dorado County that they could use to 18 meet that demand in that area. 19 The area I believe is in the Sly Park place of 20 use, which is also part of the Central Valley Project, but 21 there is sufficient supplies to meet all of the El Dorado 22 Hills area plus everything else that's east of that in the 23 county that's presently being served from Sly Park. 24 MR. MOONEY: That concludes our direct. 25 C.O. STUBCHAER: Who wishes to cross-examine this CAPITOL REPORTERS (916) 923-5447 13008 1 panel? Seeing none. Staff? 2 MS. LEIDIGH: No. 3 C.O. STUBCHAER: Board? 4 C.O. BROWN: No. 5 C.O. STUBCHAER: You set a new record. 6 MR. MOONEY: Thank you. 7 C.O. STUBCHAER: Wait a minute, there was no 8 redirect, no cross, how about the exhibits? 9 MR. MOONEY: We move to enter El Dorado County 10 Exhibits 1 and 2. 11 C.O. STUBCHAER: Any objections? Numbering agree, 12 staff? 13 MR. CORNELIUS: 1 and 2, right. 14 MS. LEIDIGH: Fine. 15 C.O. STUBCHAER: Okay. The exhibits are accepted. 16 Thank you very much. 17 MR. MOONEY: Thank you. 18 C.O. STUBCHAER: And, Mr. Keene, that shows the 19 problem of trying to predict the future. 20 MR. KEENE: Yes, Mr. Chairman. And my witnesses are 21 not here. They may be able to get here by about the very 22 close of the day, but I have my doubts. I apologize. 23 C.O. STUBCHAER: Is anyone else ready to put on 24 their case in chief this afternoon? 25 Del Puerto? CAPITOL REPORTERS (916) 923-5447 13009 1 MR. KEENE: I think their attorney is in the hall. 2 C.O. STUBCHAER: Okay. 3 MR. BIRMINGHAM: I could change my mind and ask to 4 cross-examine El Dorado. 5 MR. HERRICK: We could stretch that out. 6 C.O. STUBCHAER: Mr. Conant, are you ready to 7 proceed? 8 MR. CONANT: Well, we were just getting ready out in 9 the hallway. 10 C.O. STUBCHAER: If you need a few minutes like five 11 minutes, ten minutes -- 12 MR. CONANT: Sure. 13 C.O. STUBCHAER: Let's take a five-minute recess. 14 (Recess taken from 1:46 p.m. to 1:53 p.m.) 15 C.O. STUBCHAER: We'll get back on the record. And 16 welcome, Mr. Conant, and thank you for being ready. We're 17 happy to try and accommodate you with a few minutes. As 18 we discussed earlier, it's very hard to predict how long 19 some of these things are going to take. 20 ---oOo--- 21 CASE IN CHIEF OF DEL PUERTO WATER DISTRICT AND 22 ARVIN-EDISON WATER STORAGE DISTRICT 23 BY MR. CONANT 24 MR. CONANT: Good afternoon, Board Members. My name 25 is Ernest Conant with Young Wooldridge Law Firm here today CAPITOL REPORTERS (916) 923-5447 13010 1 representing Del Puerto Water District and Arvin-Edison 2 Water Storage District, for which we serve as general 3 counsel. 4 These districts appear today in support of the 5 Bureau's petition. In addition to the information 6 regarding irreparable harm that would occur if the place 7 of use was not conformed as other contractors have 8 testified, we also want to bring out some information 9 today relative to this issue of the boundaries not being a 10 legally defined line. And you'll see some information 11 that we'll present which illustrates that if some 12 draftsman back in the 1950s had drawn the line just a 13 little bit differently we would not be here at all today. 14 A little background information which two 15 witnesses will get into in more detail in a moment, Del 16 Puerto Water District represented by Bill Harrison, 17 involves an encroachment of about a 1,000 acres. And as 18 Mr. Harrison will discuss, Del Puerto has been around for 19 a long time, was one of the first CVP contractors to 20 receive water from the Delta. 21 And with one small exception, the lands in 22 question have been within the districts from the time they 23 entered their contracts or annexation shortly thereafter. 24 In the case of Arvin-Edison represented by its manager 25 Steve Collup, this involves a combination of encroachment CAPITOL REPORTERS (916) 923-5447 13011 1 and expansion. I think the total is around approximately 2 3,000 acres. 3 Arvin-Edison is kind of unique in these 4 proceedings. It is a Friant contractor and is only 5 implicated in this proceeding, because it facilitates the 6 cross-valley exchange. Whereby cross-valley canals 7 contractors' supply is delivered to Arvin-Edison. And it 8 in turn gives up a portion of its Friant supply and 9 therefore you have Delta molecules physically going to 10 Arvin-Edison. And Mr. Collup will be discussing and 11 illustrating some of the mysteries of this boundary line. 12 And what's unique about Arvin-Edison is its 13 boundaries have not changed one bit since it was formed in 14 1942, long before these lines started to be drawn. So if 15 the intention was that as the Bureau has testified that 16 the intention was to draw the line to encompass the 17 boundaries of its contractors, they simply miss the bark 18 back in the '50s, or whenever this draftsman drew this 19 mysterious line. 20 And while the only -- the last point that I'll 21 make is that while the acreages involved with these two 22 districts are relatively small when compared to the 23 13-million-acre service area of the CVP, this is very 24 important to these two districts, much of the area 25 involved is planted with permanent crops. And that's why CAPITOL REPORTERS (916) 923-5447 13012 1 they've taken a keen interest in these proceedings and are 2 spending the time and effort and resources to participate 3 in these proceedings. 4 So at this point I guess we need to swear in the 5 two witnesses. 6 C.O. STUBCHAER: Would you, please, stand. Raise 7 your right hand. You promise to tell the truth in this 8 proceeding? 9 MR. COLLUP: I do. 10 MR. HARRISON: I do. 11 C.O. STUBCHAER: Thank you. You may be seated. 12 MR. CONANT: We'll start with Del Puerto and Bill 13 Harrison. 14 Mr. Harrison, could you briefly describe your 15 background. And I think it's summarized in his testimony 16 at the beginning of his written testimony. 17 MR. HARRISON: Once again, my name is Bill Harrison. 18 I am general manager for the Del Puerto Water District. 19 It's a position that I've held since 1978 when I succeeded 20 my father, Lawrence, who held the position since the 21 district's formation in the late 1940s and early 1950s. 22 I believe I provided a statement of 23 qualifications earlier, but just to put it on the record 24 here, was born and raised in Patterson, California, 25 apricot capital of the world, graduated from Patterson CAPITOL REPORTERS (916) 923-5447 13013 1 High School, went on to Stanford University. 2 I have a BA in sociology, graduated from the 3 theological union from Berkeley with a Master's degree in 4 systematic and philosophical theology. And as I said 5 earlier, I've been general manager of the Del Puerto Water 6 District from 1978 to the present. I also serve as a 7 Board Member on the San Luis and Delta-Mendota Water 8 Authority and have since its inception in 1978. 9 I'm a Board Member on the Central Valley Project 10 Water Association from 1986 to the present. I'm a 11 committee member for the Stanislaus County Water Advisory 12 Committee, community member for State Senator Dick 13 Monteith's Water Advisory Committee, and a committee 14 member for United States Congressman Gary Condit's Water 15 Advisory Committee. I think that concludes my 16 introduction here. 17 MR. CONANT: Mr. Harrison, would you summarize your 18 testimony now. 19 MR. HARRISON: Yes. The District is somewhat 20 unique, the Del Puerto Water District itself was formed 21 about 1947 and entered into its first long-term contract 22 with the Bureau of Reclamation on June 10th of 1953. 23 As I said earlier, I serve as general manager for 24 the Del Puerto Water District. I also served as general 25 manager for a string of 11 other small water districts CAPITOL REPORTERS (916) 923-5447 13014 1 which were contiguous with the Del Puerto Water District. 2 It's a rather long, narrow set of districts on the western 3 side of San Joaquin, Stanislaus and Merced counties. 4 It was upslope from preexisting districts. All 5 these districts were upslope from preexisting districts, 6 which had appropriate rights from the San Joaquin River. 7 And it became feasible to irrigate that strip of ground 8 through canal-site deliveries from the Delta-Mendota 9 Canal. 10 That became obvious as the canal was being built 11 and the districts were formed for the purpose of 12 contracting with the Bureau of Reclamation for supplies 13 out of the Delta-Mendota Canal. I do have an overhead 14 which sort of shows the basic outline of those district 15 boundaries. 16 In February of 1995 the district was consolidated 17 and assigned the water service contracts of those other 18 ten districts and became the new Del Puerto Water District 19 at that point in time. 20 The districts involved in the assignment and the 21 consolidation were the Hospital Water District, I'll read 22 these north to south. Start at Hospital in the north. 23 They go to the Kern Canon Water District then the Del 24 Puerto, itself, was more southerly, Salado Water District, 25 Sunflower Water District, Orestimba Water District, CAPITOL REPORTERS (916) 923-5447 13015 1 Foothill Water District, Davis Water District, Mustang 2 Water District, Quinto Water District and Romero Water 3 District. That's north to south recitation of the 4 districts that were consolidated into the Del Puerto Water 5 District in '95. 6 All of these districts were formed in the late 7 1940s and early 1950s. And as I said their purpose was to 8 enter into agricultural water service contracts with the 9 Bureau. In each instance, negotiations were begun shortly 10 after the formation. And between 1953 and 1961 each of 11 these districts executed separate long-term contracts with 12 the Bureau for canal-site delivery of Class I agricultural 13 water supplies from the Delta-Mendota Canal. 14 C.O. STUBCHAER: Let's identify the exhibit that's 15 on the screen. Is it DPWD 002? 16 MR. CONANT: That's right. 17 MR. HARRISON: Yes, it's Exhibit 2. You're not 18 going to quite see the entire boundaries of the district 19 here to the north. We do go a little further north here. 20 But as you can see it's a relatively long, narrow 21 district. This is sheet one of one. There's a second 22 sheet that takes us further south here even. 23 To give you an idea, our first turnout on the 24 canal is Milepost 18 and our last turnout is at Milepost 25 68 on the Delta-Mendota Canal. So there's 50 miles of CAPITOL REPORTERS (916) 923-5447 13016 1 Delta-Mendota Canal which our district surrounds for the 2 most part. 3 The preexisting districts were downslope and had 4 access to appropriative water from the San Joaquin River. 5 It was pumped to as high an elevation as was economically 6 feasible at that point in time. And areas at a higher 7 elevation were dry land farmed since the early '20s and 8 '30s, sky farm. Basically, wheat and oats, but it became 9 feasible to irrigate from the site canal deliveries from 10 the Delta-Mendota Canal. 11 I'll put the second sheet up just to show you the 12 bottom half of the district. This is, as I said, the 13 bottom half of the district. The very end of the district 14 down here is just about to the entrance of the O'Neill 15 Forebay at San Luis Dam. So we take in a long, narrow 16 strip between basically Vernalis, it's just south of 17 Tracy, and the O'Neill Forebay. 18 The districts were, in fact, among the very first 19 to contract for water and receive supplies exported from 20 the Delta. The canal was being built basically to service 21 the exchange contractors' needs. And it was sized 22 appropriately to meet agricultural deliveries that were 23 being entertained by the Bureau at that time on our 24 behalf. 25 Several -- these maps also point out the areas CAPITOL REPORTERS (916) 923-5447 13017 1 that are in question in this proceeding, several of which 2 just barely fall outside the place of use. This, for 3 instance, this area is somewhat unique in that it does 4 extend quite a ways beyond the place of use boundary which 5 is I assume this line here -- 6 C.O. STUBCHAER: Excuse me, but when you use 7 references like "here" and "this line here," it doesn't 8 show up in the written transcript. So somebody reading 9 that later is going to have a difficult time. So, please, 10 identify it as much as you can. 11 MR. HARRISON: Okay. And they are labeled by areas 12 so I will stick with that to the best I can. 13 C.O. STUBCHAER: The first one you mentioned was 14 with a circle. 15 MR. HARRISON: Right. It doesn't happen to have a 16 label. 17 C.O. STUBCHAER: It's the unlabeled one. 18 MR. HARRISON: Yes, the unlabeled one. Area four is 19 somewhat unique. There's a couple of instances where 20 we've fallen afoul of the place of use due to areas which 21 are low-lying valleys, nice developable valleys which do 22 extend beyond the place of use boundary. 23 And the area four is a perfect example of that 24 where there's a very good valley that's been developed for 25 agricultural purposes which extends in kind of a strange CAPITOL REPORTERS (916) 923-5447 13018 1 shape going west of the current place of use boundary. 2 With the exception of the northern portion of 3 area one, all of these -- all of the areas that are in 4 question were either part of the original district 5 boundaries or annexed within the first few years and 6 developed shortly thereafter. 7 All annexations in any cases where there was an 8 annexation were approved by the Bureau of Reclamation. It 9 was part of our contractual understanding with them and in 10 each instance Bureau approval was sought and received. 11 All lands, as I said with the exception of the 12 northern area -- northern part of area one, are currently 13 developed and being farmed. I would also note that while 14 the areas outside the current place of use are very small, 15 there are some even larger areas inside the place of use 16 that are not within the district, nor are they receiving 17 CVP water supplies. Several cases in point that you can 18 view on the exhibits. 19 I think another point that I'd like to make for 20 the Board is that we are a water shortage district. And 21 that if there was any case where water should not be made 22 available to subject lands, it would in no way reduce the 23 district's needs for those water supplies. We have both 24 the need and the ability to put those supplies to 25 beneficial use throughout the district. I think that CAPITOL REPORTERS (916) 923-5447 13019 1 fairly well summarizes my testimony. 2 MR. CONANT: Thank you, Mr. Harrison. 3 Mr. Collup, would you summarize your education 4 and work experience. I believe it's attached to your 5 written testimony so you don't need to list it all, but 6 just hit the high points. 7 MR. COLLUP: Yes. My name is Steve Collup. I am 8 the engineer manager of Arvin-Edison Water Storage 9 District. I've been the manager for about three years. 10 I've been employed by the District since 1990. I have a 11 degree in civil engineering. And I'm a registered civil 12 engineer in the State of California. 13 MR. CONANT: And would you summarize your testimony. 14 MR. COLLUP: As Mr. Conant mentioned earlier, 15 Arvin-Edison holds a contract for federal water from the 16 Friant Kern system of the Central Valley Project, but we 17 also have a water management program, a water exchange 18 program whereby we exchange some of that water with eight 19 other districts who hold contracts for Delta CVP water. 20 And that exchange has been going on for about 25 years. 21 We refer to this program as the Cross-Valley 22 Canal exchange. These long-term exchanges have added 23 greatly to the reliability of water supplies as well as 24 enhanced water management for those districts. So 25 accordingly, we have a vested interest in the outcome of CAPITOL REPORTERS (916) 923-5447 13020 1 Phase VII of these hearings regarding the place of use. 2 So let me repeat that although Arvin is a 3 contractor on the Friant system and would not otherwise be 4 involved in the place of use proceedings, we do facilitate 5 this cross-valley exchange. And as a result we physically 6 receive CVP water from the Delta. 7 The principal point that I'd like to make is that 8 we believe the Draft EIR place of use boundary map 9 regarding the Arvin-Edison area is erroneous, it's wrong. 10 We have requested the original place of use boundary maps 11 from which the Draft EIR maps were drawn and extrapolated. 12 They haven't been supplied. We suspect they are very 13 similar to this 1960 CVP service area place map, which is 14 our Arvin-Edison Exhibit 2. 15 Arvin-Edison is located in the south eastern 16 portion of this place of use map. A couple of things I'd 17 like to note, one is this is a 1960 CVP place of use map. 18 This scale is so large that the smallest vision or square 19 is a full township in range, or 36 square miles. It's so 20 large that not even the section lines are shown. 21 We have continued to maintain that all of 22 Arvin-Edison is incorporated in that place of use 23 boundary. And that the Draft EIR maps inappropriately and 24 inaccurately attempt to extrapolate additional resolution 25 beyond that use in the original maps. CAPITOL REPORTERS (916) 923-5447 13021 1 We note that the Draft EIR map also lacks the 2 authority of a legal description to legitimatize the 3 placement of the boundary line. The district's boundary, 4 which was established in 1942, prior to these place of use 5 maps has remained unchanged to the present. And it's 6 based upon the precise legal description. 7 The district in previous correspondence to the 8 Draft EIR has asserted that this line is -- that their 9 lines in the Draft EIR are erroneous and no hard evidence 10 has been offered back to the contrary. Another boundary 11 map illustrated as Figure 3-3 in the Draft EIR is 12 submitted as Arvin-Edison Exhibit Number 3. 13 On this overhead the blue boundary represents 14 Arvin-Edison. The orange is what someone has extrapolated 15 from that other version of the place of use map. And 16 first thing you note is how very closely it resembles all 17 of the gigs and jags and jogs that you have to take to get 18 around the district. But other than that, it appears 19 capricious, somewhat arbitrary, maybe even a little bit 20 haphazard and plain sloppy. 21 The place of use boundary in the Arvin-Edison 22 follows no consistent marker, elevation, section line, or 23 any sort of physiographic feature, nor does it follow the 24 Arvin-Edison boundary established decades prior. However, 25 as I have pointed out, the shape of the valley is such CAPITOL REPORTERS (916) 923-5447 13022 1 that it was obviously intended to include all of the 2 Arvin-Edison lands. 3 Now, allow me to take this one step further by 4 examining a larger scale Bureau map previously provided to 5 the district from which Arvin-Edison Exhibits 4 and 5 are 6 excerpted. Here, again, somebody has taken that boundary 7 line that was -- the width of the line itself was about a 8 half a mile in width. And they tried to further 9 extrapolate it section by section. And for no apparent 10 reason the boundary line falls just a little bit south of 11 that section line. Again, on the bottom of this sheet it 12 does the same thing again while it's attempting to 13 generally follow the outlines of our district. 14 Let me see, would you slide that up a little bit 15 for me? Actually, the two best examples are Section 7, 8 16 and 9, right there where the place of use boundary is 17 slightly south. And, again, Sections 27 and 28 where it's 18 just almost aligned with it on that map even as further 19 illustrated in Exhibit 5. 20 We're now down at the southern portion of our 21 district and the place of use line just tracks just a 22 little bit east of the district boundary -- just a little 23 bit east of the district boundary just missing the section 24 line. 25 Mr. Conant, if I could ask you to go back to CAPITOL REPORTERS (916) 923-5447 13023 1 Exhibit 3. The other thing I would point out, by making a 2 sloppy copy of the place of use map they've left out small 3 portions of our district to the north, but they have 4 included large portions in the place of use that are 5 beyond our district boundary. Nobody is asking to be 6 included in the place of use. 7 If you were to adopt this particular line, you 8 would be adding 14,000 acres while deleting 3,000 acres 9 that have always been in the district and subject to the 10 CVP contract. I mean this begs the question: Why does 11 the Draft EIR place of use boundary, which is unsupported 12 by legal description, wander around the map roughly 13 approximating, but just missing, the district's more 14 precise boundary? 15 If the place of use boundary is to be valid by 16 the State Board, what was the rationale for its apparent 17 wandering, slightly displaced section lines and following 18 no logical course? What's the official origin of this 19 alleged boundary? 20 It's the district's suspicion that the original 21 map upon which the boundary was sketched was of such a 22 scale that the place of use line was nearly one mile in 23 width. If this is the case, so long as the district's 24 boundary is within a half a mile or a mile, the acreage 25 should be considered within the place of use. And the CAPITOL REPORTERS (916) 923-5447 13024 1 discrepancy attributed to the imprecise nature of the 2 original place of use map. 3 In short, it was the intent of the original 4 author to circle the boundaries of the district, which 5 have remained unchanged since its creation in 1942. And 6 really that's the gist of what we would like to share 7 today. 8 MR. CONANT: That is correct. 9 C.O. STUBCHAER: Mr. Conant, ready for 10 cross-examination? 11 MR. CONANT: Yes. 12 C.O. STUBCHAER: All right. Who wishes to 13 cross-examine this panel? Mr. Atlas, Mr. Birmingham, 14 Mr. Nomellini, Mr. Herrick. 15 Okay. The order of cross-examination will be: 16 Mr. Birmingham, Mr. Herrick, Mr. Nomellini, and Mr. Atlas. 17 Mr. Birmingham. 18 ---oOo--- 19 CROSS-EXAMINATION OF DEL PUERTO WATER DISTRICT AND 20 ARVIN-EDISON WATER STORAGE DISTRICT 21 BY WESTLANDS WATER DISTRICT 22 BY MR. BIRMINGHAM 23 MR. BIRMINGHAM: Good afternoon. My name is Tom 24 Birmingham. I'm an attorney that represents Westlands 25 Water District and I have a few questions. CAPITOL REPORTERS (916) 923-5447 13025 1 Mr. Harrison, during your oral summary of Del 2 Puerto Exhibit 1 you made a statement that Del Puerto is a 3 water short district. Could you explain what you meant by 4 that? 5 MR. HARRISON: Yes. We've experienced that shortage 6 greatly since a number of actions have taken place in the 7 Delta curtailing our water supply. CVPIA being, perhaps, 8 one of the larger issues which have resulted in water 9 shortages south of the Delta. 10 We estimate that our average contract supply 11 south of the Delta is probably about 65 to 70 percent of 12 our contract supply. And that leaves us in a severely 13 water short situation where we are searching for 14 additional supplies on an annual basis. 15 MR. BIRMINGHAM: What is the total amount of water 16 which Del Puerto is entitled to receive under its contract 17 or contracts with the Bureau of Reclamation? 18 MR. HARRISON: We do now have one contract. Through 19 the interim renewal processes we have weeded ourselves 20 down to a single contract. And that contract is for 21 140,210 acre-feet. 22 MR. BIRMINGHAM: And how much of Del Puerto Water 23 District is outside the existing place of use boundary? 24 MR. HARRISON: Approximately 1,000. 25 MR. BIRMINGHAM: And how much gross acres are CAPITOL REPORTERS (916) 923-5447 13026 1 there -- let me restate the question. 2 How many acres are there in Del Puerto Water 3 District? 4 MR. HARRISON: Gross acres are about 49,000, 5 irrigatable is a little over 45,000. 6 MR. BIRMINGHAM: So that means there's approximately 7 44,000 irrigatable acres within Del Puerto Water District? 8 MR. HARRISON: 45,000. 9 MR. BIRMINGHAM: I'm sorry, I misstated my question. 10 MR. HARRISON: I understand your question, then. 11 MR. BIRMINGHAM: There are approximately 44,000 12 irrigatable acres of Del Puerto Water District that are 13 within the existing place of use? 14 MR. HARRISON: That's correct. 15 MR. BIRMINGHAM: Now, Mr. Harrison, I'm going to ask 16 you to assume that the State Water Resources Control Board 17 were to deny the petition to expand the place of use to 18 include the 1,000 acres of Del Puerto Water District that 19 is outside the place of use boundary. 20 If that were to happen, could Del Puerto Water 21 District put to beneficial use the full 140,210 acre-feet 22 it's entitled to under its contract on the remaining 23 44,000 irrigatable acres? 24 MR. HARRISON: Yes. 25 MR. BIRMINGHAM: So would including the 1,000 acres CAPITOL REPORTERS (916) 923-5447 13027 1 currently outside the place of use of Del -- let me 2 restate the question. 3 Including the 1,000 acres of Del Puerto Water 4 District that is outside the existing place of use within 5 the place of use, would that increase Del Puerto's 6 entitlement to receive water from the Bureau of 7 Reclamation? 8 MR. HARRISON: No. 9 MR. BIRMINGHAM: Is it your understanding that 10 including the 1,000 acres that are outside the existing 11 place of use would increase the demand that Del Puerto 12 would make on CVP water? 13 MR. HARRISON: No. 14 MR. BIRMINGHAM: Now, you said that you were a 15 member of the Board of Directors of the San Luis and 16 Delta-Mendota Water Authority? 17 MR. HARRISON: That's correct. 18 MR. BIRMINGHAM: Are you generally familiar with the 19 water demands of member agencies of the San Luis and 20 Delta-Mendota Water Authority? 21 MR. HARRISON: Yes, generally. 22 MR. BIRMINGHAM: Are you aware of any water district 23 agency that is a member of the San Luis and Delta-Mendota 24 Water Authority that could not use its existing contract 25 supply within the authorized permitted place of use? CAPITOL REPORTERS (916) 923-5447 13028 1 MR. HARRISON: No, I'm not aware of any district in 2 that situation. 3 MR. BIRMINGHAM: What kind of crops are grown on the 4 land that is within Del Puerto Water District but outside 5 the existing place of use? 6 MR. HARRISON: We have several instances of 7 permanent crops, almonds and walnuts being the principal 8 permanent crops being grown in those areas outside the 9 place of use. Other crops grown that are not in permanent 10 plantings include beans, tomatoes, bell peppers, wheat and 11 oats. 12 MR. BIRMINGHAM: Is there a long-term reliable 13 alternative water supply for the 1,000 acres of Del Puerto 14 Water District that is currently outside the existing 15 place of use? 16 MR. HARRISON: No, there's not. Groundwater sources 17 are limited and of extremely poor quality particularly in 18 the areas associated with this hearing, outside the place 19 of use. 20 MR. BIRMINGHAM: What would be the potential impacts 21 if Del Puerto Water District were told that it could no 22 longer deliver project water to the 1,000 acres that are 23 currently outside the place of use? 24 MR. HARRISON: They would be very severe 25 economically. We have orchards that are valued at, say, 8 CAPITOL REPORTERS (916) 923-5447 13029 1 to $10,000 per acre and there are very expensive delivery 2 systems to provide water to those acreages. 3 Some of these lands are in their second planting 4 of permanent crops and have gone through extensive 5 renovations of the delivery systems of late, high price 6 drips and microsystems are engaged in irrigating those 7 permanent crop areas and long concrete pipelines and 8 booster pump situations are involved in getting water to 9 the open ground areas as well. 10 I don't have a dollar figure that I can place on 11 the value of those lands going out of production, which 12 would be the upshot of them not being able to receive CVP 13 water, but it would be extremely significant and would 14 definitely devastate the life work of several of our 15 family farmers. 16 MR. BIRMINGHAM: I'm sorry, did I understand your 17 testimony to be that if Del Puerto could not deliver 18 project water to the 1,000 acres within Del Puerto's 19 boundary that are outside the permitted place of use for 20 the project that those lands would go out of production? 21 MR. HARRISON: Yes, that's correct. 22 MR. BIRMINGHAM: Mr. Collup, I have just a few 23 questions for you. During your oral summary of your 24 testimony Arvin-Edison Exhibit 1, you seemed to be 25 critical of the method that was used to draw the boundary CAPITOL REPORTERS (916) 923-5447 13030 1 on the place of use maps associated with the Bureau's 2 permits; is that correct? 3 MR. COLLUP: That's correct. 4 MR. BIRMINGHAM: And you said in some circumstances 5 the boundary was because of the scale of the map 6 represented a width of one mile? 7 MR. COLLUP: Yes, if you look at the exhibit in the 8 Draft EIR as well where the entire place of use falls on 9 one fold-out sheet. It's drawn on there with a crayon. I 10 mean it's just the scale of the thing that the line itself 11 could cover half a mile to a mile of lands. 12 MR. BIRMINGHAM: Now, you testified that you are a 13 civil engineer? 14 MR. COLLUP: Yes, sir. 15 MR. BIRMINGHAM: As a civil engineer if you had 16 taken the place of use map part of State Water Resources 17 Control Board records and compared that with the boundary 18 of Arvin-Edison Water Storage District, would it be 19 possible for you to tell whether or not the areas within 20 Arvin-Edison were outside the place of use as depicted on 21 the map? 22 MR. COLLUP: I don't see how they could draw their 23 boundaries from that base map that you have to use as a 24 start. 25 MR. BIRMINGHAM: So if you took the -- a map of CAPITOL REPORTERS (916) 923-5447 13031 1 Arvin-Edison Water Storage District, let's assume you're 2 the operator of the Arvin-Edison Water Storage facilities. 3 If you took the Arvin-Edison Water Storage District map 4 and compared it with the place of use map you couldn't 5 tell the parts of Arvin-Edison Water Storage District that 6 were outside the place of use? 7 MR. COLLUP: No. You'd be able to notice all the 8 features and twists and turns, you would assume they were 9 the same. 10 MR. BIRMINGHAM: I have no further questions. 11 C.O. STUBCHAER: Thank you, Mr. Birmingham. 12 Mr. Herrick, I know it's time for the break 13 Ms. Forster tells me; how long do you think your cross 14 will last? 15 MR. HERRICK: Probably 20 minutes. 16 C.O. STUBCHAER: Let's take our 12-minute break now 17 then. 18 (Recess taken from 2:31 p.m. to 2:44 p.m.) 19 C.O. STUBCHAER: Call the hearing back to order. 20 Mr. Herrick. 21 // 22 // 23 // 24 // 25 // CAPITOL REPORTERS (916) 923-5447 13032 1 ---oOo--- 2 CROSS-EXAMINATION OF DEL PUERTO WATER DISTRICT AND 3 ARVIN-EDISON WATER STORAGE DISTRICT 4 BY SOUTH DELTA WATER AGENCY 5 BY MR. HERRICK 6 MR. HERRICK: Thank you, Mr. Chairman. John Herrick 7 for the South Delta Water Agency. I just have a few 8 questions first for Mr. Harrison. 9 I noticed that you said that most of the areas 10 that are currently outside of the place of use were 11 annexed to the district within the first few years of the 12 contracts being made. Is that what you said? 13 MR. HARRISON: Yes. Several of the areas were 14 included within original district boundaries and several 15 were added within the first few years. 16 MR. HERRICK: And do you know how many acres of the 17 1,000 were added after the contracts were made? 18 MR. HARRISON: Not exactly, no. 19 MR. HERRICK: Mr. Collup, do you know whether or not 20 all of Arvin-Edison's service area is within the place of 21 use designated on the Friant permits? 22 MR. COLLUP: I believe that it is. 23 MR. BIRMINGHAM: Objection. Relevance. 24 C.O. STUBCHAER: Overruled. 25 MR. COLLUP: I believe that it is. CAPITOL REPORTERS (916) 923-5447 13033 1 MR. HERRICK: Okay. I have a question: It's my 2 understanding from your testimony that -- you haven't 3 examined the actual map attached to the Bureau's 4 applications; is that correct? 5 MR. COLLUP: I did examine the one in the Draft EIR, 6 I think it was -- is it 3.1 or 3.2? It's roughly the same 7 scale as Arvin's Exhibit 2. 8 MR. HERRICK: And you're talking about the overall 9 map, not the one just for the Arvin-Edison District; is 10 that correct? 11 MR. COLLUP: Yes, that's correct. 12 MR. HERRICK: Now, this is a copy of the Draft EIR, 13 and do you have a copy of that Figure 3.1 which has 14 something on it, because this one doesn't? 15 MR. COLLUP: Yes, I believe so. 16 MR. HERRICK: Okay. All right. Now, you mentioned 17 in your testimony -- excuse me, in your cross in one of 18 your answers to a cross question that lines were drawn 19 with a crayon or something. Is that an exaggeration or 20 have you seen a map where they actually used something 21 other than a pen or pencil to draw that line? 22 MR. COLLUP: That is an exaggeration. I was trying 23 to get the point across that the thickness of the line on 24 a map where the scale was in inches is 10,000 feet. The 25 thickness of the line itself covers a great deal of land. CAPITOL REPORTERS (916) 923-5447 13034 1 MR. HERRICK: Okay. Is it your testimony that the 2 map that should be on -- that should be as Figure 3.1 in 3 the DEIR, is that the map that's attached to the Bureau's 4 application or applications? 5 MR. COLLUP: I'm not sure I can answer that. In our 6 research we contacted the Bureau, both the federal and the 7 Sacramento office, asking for the place of use map that 8 they derived these boundaries from as they blew them up 9 and blew them up on the GSI system. And the ones that 10 were sent to us were similar to our Exhibit 2, which is 11 roughly the same scale as the one in the Draft EIR. 12 MR. HERRICK: And do you know whether or not the one 13 you used corresponds to the map actually attached to the 14 various applications on file with the State Board? 15 MR. COLLUP: No, I don't. 16 MR. HERRICK: Who's your M&I customer? 17 MR. COLLUP: East Niles Community Service District. 18 And we don't have a M&I contract. We converted some of 19 our water to M&I use. 20 MR. HERRICK: Is the Arvin District, is it 21 contemplating any sales of its water to other districts? 22 MR. COLLUP: No. 23 MR. HERRICK: Does it have any existing contracts 24 transferring water it receives from the CVP to other 25 areas? CAPITOL REPORTERS (916) 923-5447 13035 1 MR. COLLUP: We have a variety of contracts, 2 agreements, MOUs where we exchange water and water 3 management programs with probably a couple dozen other 4 districts. 5 MR. HERRICK: Okay. 6 MR. COLLUP: We exchange water to both help resolve 7 timing issues, both year to year and even month to month. 8 MR. HERRICK: And although you're -- I believe you 9 said you're supposed to receive Friant water through these 10 exchanges, you actually receive DMC water; is that 11 correct? 12 MR. COLLUP: We have a contract for Friant water 13 that's our principal and only water supply. And through 14 exchanges we receive some Delta Central Valley Project 15 water. 16 MR. HERRICK: Okay. And that is to your benefit for 17 what reasons receiving the exchange water? 18 MR. COLLUP: This exchange which was created in 19 about '74 with about eight other districts allowed Arvin 20 to give these eight districts a portion of Arvin supply, 21 which is highly erratic and variable. And in exchange we 22 would take their Delta supply, which at that time was very 23 firm and dependable. So it helped regulate an erratic 24 supply for us. 25 MR. HERRICK: Have you done an analysis to see the CAPITOL REPORTERS (916) 923-5447 13036 1 difference between the quantities your district would be 2 receiving if it were -- between receiving water strictly 3 from the Friant division or the amounts of water received 4 through the exchanges? 5 MR. COLLUP: Yes. We've not only done an analysis, 6 we maintain a summary. Some of the principals of the 7 exchange was that they would balance out over time. And 8 as a matter of fact, they have done that very well. 25 9 years later we've given them approximately a million 10 acre-feet, they've given us approximately a million 11 acre-feet. It's just been very steady and regulated for 12 us. 13 MR. HERRICK: And does your agency or district have 14 any opinion as to whether or not deliveries from the 15 Central Valley Project should be conditioned upon 16 mitigation of any adverse effects caused by that project 17 to the South Delta users? 18 MR. COLLUP: I don't think I can answer that. 19 MR. HERRICK: Okay. Again, I'm just asking if your 20 district has a position on that. And I'll just say as a 21 hypothetical, let's assume that at certain times operation 22 of the CVP pumps can adversely affect riparian users in 23 the Delta, do you think water delivered through the DMC to 24 your district should be conditioned upon the prevention or 25 mitigation of those effects that might be caused in the CAPITOL REPORTERS (916) 923-5447 13037 1 southern Delta? 2 MR. COLLUP: I would have to speculate at this point 3 on what my Board's position would be and I can't do that. 4 Again, that's not our primary supply so we're not as 5 plugged into that process. 6 MR. HERRICK: Would you object to a condition being 7 placed upon the approval of the petition that somehow 8 would limit CVP deliveries if or until mitigation was done 9 to Delta water users? 10 MR. COLLUP: I think my only response -- and this is 11 in somewhat general terms is -- and our exchange is a good 12 example, when we created that exchange it provided a 13 firmer and more reliable supply for us. As time has gone 14 on and all the changes with the Endangered Species Act and 15 Delta smelt and CVPIA, that supply has become less 16 reliable. And the district has to continue to struggle to 17 firm up its water supply. So most of those types of 18 changes have meant a reduction in water supply. 19 MR. HERRICK: Okay. But my question was more: 20 Would you object to a condition being placed on the 21 granting of this petition that somehow limited or 22 conditioned CVP deliveries on the mitigation of adverse 23 effects caused in the south Delta? 24 MR. BIRMINGHAM: I'm going to object to the question 25 on the grounds that it lacks foundation. The witness has CAPITOL REPORTERS (916) 923-5447 13038 1 testified that he doesn't know what his Board's position 2 would be on this issue. And unless Mr. Herrick is asking 3 him his personal view as opposed to the view of this 4 witness' district, then the question lacks foundation. 5 C.O. STUBCHAER: Mr. Herrick. 6 MR. HERRICK: Yes, I agree the witness did say that 7 his Board doesn't have a position, but that was a 8 different question, that was on the general. And now I'm 9 on the specific whether or not we could present a 10 condition to the permit. 11 I don't think -- I don't think whether or not -- 12 I don't think lacks foundation is an appropriate objection 13 in that at any time after this we can suggest that 14 position -- that condition. And if the witness doesn't 15 feel he can respond, he can say that. 16 C.O. STUBCHAER: Mr. Birmingham. 17 MR. BIRMINGHAM: Actually, I believe the witness' 18 testimony was he didn't know what his Board's position 19 would be, not that they didn't have one. And either the 20 question lacks foundation or it calls for speculation. 21 C.O. STUBCHAER: I think the first question was on 22 mitigation and the second question was an objection to a 23 condition put in the permit, as I recall. 24 And the witness is not required to speculate. 25 So, please, answer the question to the best of your CAPITOL REPORTERS (916) 923-5447 13039 1 ability. 2 MR. COLLUP: Yeah, I feel that I don't have enough 3 information to speculate. I don't have the expertise to 4 give you one. 5 MR. HERRICK: Okay. Mr. Harrison, do you know 6 whether or not your agency has a position on whether or 7 not adverse effects of the CVP on the south Delta should 8 be mitigated? 9 MR. HARRISON: No, I do not know whether my Board 10 has a position. 11 MR. HERRICK: Do you know whether or not your Board 12 would object to some sort of condition being placed on the 13 granting of this petition to require mitigation of any 14 potential effects like that? 15 MR. HARRISON: I can only speculate that they would 16 be concerned that any -- with any condition that would 17 further reduce our water supplies or had that potential. 18 MR. HERRICK: Do you believe that potential effects 19 on superior water right holders would also come into that 20 calculation by your client? 21 MR. HARRISON: I don't care to speculate on that. I 22 don't have the expertise to speak to that. 23 MR. HERRICK: Are you here in support of just the 24 change in the place of use, or also the purpose of use? 25 MR. HARRISON: Place of use only. CAPITOL REPORTERS (916) 923-5447 13040 1 MR. HERRICK: And, Mr. Collup? 2 MR. COLLUP: If I can -- can I speak without the 3 microphone? 4 C.O. STUBCHAER: No. Probably can, but you may not. 5 MR. COLLUP: Our primary concern is with 6 consolidating the place of use. And as we spoke earlier 7 we don't think we need a change, we think the map is in 8 error with regard to Arvin-Edison. 9 MR. HERRICK: Okay. Is Arvin-Edison taking a 10 position on the requested change for the purpose of use in 11 the various Bureau applications or permits? 12 MR. COLLUP: I don't believe we took a position on 13 that. 14 MR. HERRICK: I have no further questions. Thank 15 you very much. 16 C.O. STUBCHAER: Mr. Nomellini. 17 ---oOo--- 18 CROSS-EXAMINATION OF DEL PUERTO WATER DISTRICT AND 19 ARVIN-EDISON WATER STORAGE DISTRICT 20 BY CENTRAL DELTA PARTIES 21 BY MR. NOMELLINI 22 MR. NOMELLINI: Mr. Chairman, Members of the Board, 23 Dante John Nomellini with Central Delta Parties. 24 Mr. Harrison, starting with you, do you agree 25 that the deliveries of water to your district is limited CAPITOL REPORTERS (916) 923-5447 13041 1 to water that is surplus to the present and future needs 2 of users within the areas of origin? 3 MR. BIRMINGHAM: Objection. Calls for a legal 4 speculation. 5 MR. CONANT: Objection. 6 C.O. STUBCHAER: Mr. Nomellini. 7 MR. NOMELLINI: I mean if they know the answer, this 8 is -- they're entitled to put forth an opinion. We're not 9 seeking a legal determination, but whether or not they 10 agree that those contracts are subject to that. And it's 11 very relevant in the consideration with -- my further 12 questions will get to the reliability anticipated in their 13 supply and the damage that would result allegedly from a 14 denial of the request for the expansion of place of use. 15 MR. CONANT: I have the same objection that 16 Mr. Birmingham voiced. 17 C.O. STUBCHAER: Please, rephrase the question to 18 avoid the legal conclusions and then you can get on with 19 the rest of the questions, Mr. Nomellini. 20 MR. NOMELLINI: All right. Let's set a little 21 background here. With regard to the contracts that your 22 districts have with the Bureau of Reclamation, do you 23 consider those to be a firm water supply? 24 MR. HARRISON: Yes. 25 MR. NOMELLINI: Are they, in your opinion, subject CAPITOL REPORTERS (916) 923-5447 13042 1 to any variability? 2 MR. HARRISON: Yes. There's a water shortage 3 provision which -- which alters our supply on an annual 4 basis. 5 MR. NOMELLINI: Okay. And do you know what factors 6 could be utilized to determine what that shortage should 7 be? 8 MR. HARRISON: I'm aware of several factors, 9 primarily hydrology. 10 MR. NOMELLINI: All right. How about regulatory 11 constraints, are you aware of any regulatory constraints 12 that could affect the amount of water delivered under your 13 contract? 14 MR. HARRISON: I'm of the understanding that, yes, 15 there are regulatory constraints which are affecting my 16 water supplies. 17 MR. NOMELLINI: All right. Let's break those down a 18 little bit. Some of those restraints could be related to 19 fishery concerns, could they not? 20 MR. HARRISON: Yes. 21 MR. NOMELLINI: Some of those constraints could be 22 related to endangered fish, correct? 23 MR. HARRISON: Yes. 24 MR. NOMELLINI: Some of those constraints could be 25 required to conditions imposed on the permits of the CAPITOL REPORTERS (916) 923-5447 13043 1 Bureau by the State Water Resources Control Board, could 2 they not? 3 MR. HARRISON: That's my understanding. 4 MR. NOMELLINI: All right. And those could be in 5 the form of requirements to meet Delta water quality 6 standards? 7 MR. HARRISON: Yes. 8 MR. NOMELLINI: Okay. Do you know whether or not 9 increases in water use in areas of origin could result in 10 less water being available to be diverted by the Bureau of 11 Reclamation to serve your contracts? 12 MR. BIRMINGHAM: I'm going to object to the question 13 on the grounds that it's an incomplete hypothetical. 14 MR. NOMELLINI: It's not even a hypothetical. 15 C.O. STUBCHAER: Please, let Mr. Birmingham finish 16 and then we'll get to you, Mr. Nomellini. 17 MR. BIRMINGHAM: Mr. Nomellini has talked about 18 increased use within the area of origin. Increased under 19 what circumstances? Increased deliveries to CVP 20 contractors, individuals within the area of origin, 21 obtained assignment of State filed applications? Water 22 users within the area of origin make their own 23 applications to appropriate water. 24 I think there needs to be further assumptions 25 stated in order for the witness to be able to answer the CAPITOL REPORTERS (916) 923-5447 13044 1 question. 2 C.O. STUBCHAER: Did I see Mr. Atlas back there? 3 MR. ATLAS: You did for a moment. 4 C.O. STUBCHAER: For a moment. I think the question 5 was, "Do you know if," if I recall correctly. And I'll 6 allow the question to be answered. Like we said before, 7 if the witness doesn't know, he doesn't have to answer and 8 he doesn't have to speculate. 9 Please, proceed. 10 MR. HARRISON: The question again was? 11 MR. NOMELLINI: Do you know if increases in water 12 use within the areas of origin would reduce the amount of 13 water available to the Bureau of Reclamation to be 14 delivered to your contracts? 15 MR. HARRISON: No, I do not know. 16 MR. NOMELLINI: Do you know whether or not increases 17 in water consumption within the areas of origin will 18 reduce the amount of water available in the Delta to be 19 exported? 20 MR. HARRISON: No, I don't know. 21 MR. NOMELLINI: Did you indicate that you were an 22 engineer? 23 MR. HARRISON: No. 24 MR. NOMELLINI: No. What is your background? 25 MR. HARRISON: Bachelor's degree in sociology and a CAPITOL REPORTERS (916) 923-5447 13045 1 Master's degree in philosophy. 2 MR. NOMELLINI: Okay. With regard to your 3 district's position with regard to provision of water to 4 the areas of origin, do you know whether or not your 5 district has a position with regard to that? 6 MR. HARRISON: No, I do not. 7 MR. NOMELLINI: Do you know whether or not your 8 district claims the contract right that it has with the 9 Bureau of Reclamation is superior to the rights of water 10 contractors of the Bureau for delivery of water in the 11 areas of origin? 12 MR. HARRISON: No, I do not know. 13 MR. NOMELLINI: Now, with regard to the boundaries 14 of the Del Puerto Districts and the place of use 15 designated in the permits of the Bureau of Reclamation, 16 have you made any comparison of the boundaries of your 17 areas to the areas shown in the maps attached to the 18 applications of the Bureau filed with the State Water 19 Resources Control Board? 20 MR. HARRISON: I did my comparison based on the maps 21 included in the Draft EIR. 22 MR. NOMELLINI: All right. And I gathered from your 23 testimony that you are not contending that all of the 24 areas shown to be outside the place of use are the result 25 of errors in the mapping; is that correct? CAPITOL REPORTERS (916) 923-5447 13046 1 MR. HARRISON: I'm not -- I'm not sure of the origin 2 of those maps, of the place of use maps. I am under the 3 impression that they were rather crudely drawn and did not 4 take into consideration existing district boundaries at 5 the time the districts were formed and at the time that 6 the contracts were entered into. And they appear to sort 7 of arbitrarily exclude areas which, obviously, to my way 8 of thinking, should have been included. 9 MR. NOMELLINI: How did you develop your impression 10 that they were crudely drawn? And I'm speaking about the 11 place of use maps submitted with the applications of the 12 Bureau of Reclamation to the State Water Resources Control 13 Board. 14 MR. KEENE: Objection. I believe that 15 mischaracterizes the testimony. He has not testified that 16 the maps that were attached to the permit applications 17 were crudely drawn. He has testified that his impression 18 is that the maps that he has seen were crudely drawn. He 19 has already testified that he has never seen the maps 20 attached to the permit application. 21 C.O. STUBCHAER: Mr. Nomellini. 22 MR. NOMELLINI: Yeah, I thought he said -- maybe we 23 have to clarify -- that it was his understanding that the 24 maps attached to the application submitted to the State 25 Water Resources Control Board were crudely drawn. And I CAPITOL REPORTERS (916) 923-5447 13047 1 asked what the basis of his understanding was. 2 C.O. STUBCHAER: I don't recall if it was the EIR 3 maps, or attached to the application maps. Perhaps, we 4 could go back in the record, or you just want to start -- 5 MR. NOMELLINI: Well, I can go back and ask the 6 question. 7 Are you speaking about crudely drawn with regard 8 to the maps attached to the applications of the Bureau to 9 the State Water Resources Control Board? 10 MR. HARRISON: The boundaries that I'm seeing in the 11 draft appear to be somewhat arbitrary given the fact that 12 some of these lands were included within the original 13 district boundaries and were assumed to be within the 14 permitted place of use. 15 MR. NOMELLINI: Okay. I recall, perhaps 16 erroneously, that you said that you understood that the 17 boundaries were crudely drawn. Do you recall that 18 testimony? 19 MR. HARRISON: Yes. 20 MR. NOMELLINI: All right. What are you referring 21 to in that testimony? 22 MR. HARRISON: I have not seen the maps that were 23 filed with the permits, so I can only speak to the maps 24 that were included within the Draft EIR. 25 MR. NOMELLINI: Okay. With regard to your CAPITOL REPORTERS (916) 923-5447 13048 1 statement, "crudely drawn," are you talking about the maps 2 in the draft environmental document? 3 MR. HARRISON: Yes. 4 MR. NOMELLINI: Okay. Do you have your Del Puerto 5 Exhibit 2 overheads? 6 MR. HARRISON: Yes. 7 MR. NOMELLINI: Could you start with sheet one of 8 two and put that on the overhead, please. Okay. Calling 9 your attention to Del Puerto -- and I notice you called it 10 Del Puerto? 11 MR. HARRISON: Yes. 12 MR. NOMELLINI: Is Del Puerto the right 13 pronunciation? 14 MR. HARRISON: Yes. 15 MR. NOMELLINI: Okay. With regard to Del Puerto 16 Exhibit 2, sheet one of one, mine shows that to be sheet 17 one of two -- okay, that's on the bottom, I see. All 18 right. Thank you. Sheet one of two of the exhibit. 19 Could you show me on that drawing where the line 20 is that's depicted in the Draft Environmental Impact 21 Report? 22 MR. HARRISON: You're talking to the place of use 23 line -- 24 MR. NOMELLINI: Yes. 25 MR. HARRISON: -- or district boundary line? CAPITOL REPORTERS (916) 923-5447 13049 1 MR. NOMELLINI: Well, is the place of use line on 2 the map? 3 MR. HARRISON: Yeah. It's my understanding that the 4 place of use line is the dotted line that you see here. 5 MS. LEIDIGH: I think for purposes of the record it 6 would be helpful to point out that it's the dotted line on 7 the left-hand side of the shaded area. 8 C.O. STUBCHAER: And as a highly technical engineer 9 I would call it a dashed line. 10 MR. NOMELLINI: I'll go along with the Chairman. 11 C.O. STUBCHAER: Very wise. 12 MR. NOMELLINI: All right. Now, you concluded that 13 line is crudely drawn; is that correct? 14 MR. HARRISON: Yeah, insofar as it doesn't tend to 15 coincide with any either district boundaries or other 16 known boundaries to me. It appears rather arbitrary. 17 Perhaps, crude is a poor choice of words. 18 MR. NOMELLINI: All right. Picking the far 19 right-hand line at the right-hand edge of the crosshatched 20 area, do you know what that line is? 21 MR. HARRISON: This line is the Del Puerto Water 22 District boundary line. 23 MR. NOMELLINI: Now, would you agree that that line 24 is crudely drawn in that it doesn't follow any section 25 lines, or a great deal of section lines? CAPITOL REPORTERS (916) 923-5447 13050 1 MR. HARRISON: No. There is -- there is specific 2 descriptions associated with that line. 3 MR. NOMELLINI: So if there was a specific 4 description associated with the dashed boundary line on 5 the left, then you would conclude that it was not crudely 6 drawn, correct? 7 MR. HARRISON: It would make more sense to me. 8 MR. NOMELLINI: Okay. Now, going back to the 9 contention as to whether or not the areas designated as 10 outside the place of use were the result of an error in 11 the mapping, is it your contention looking at Area 1 on 12 sheet one of two of Del Puerto Exhibit 2, that any part of 13 that area was left out due to an error in mapping? 14 MR. HARRISON: Yes, insofar as it was our 15 understanding that the place of use was to include the 16 original district boundaries, there is a portion of that 17 area which due to some clerical or drafting oversight we 18 feel should have been included within the place of use 19 permit. 20 MR. NOMELLINI: All right. What part of Area 1 21 shown on Del Puerto Exhibit 2, sheet one of two, do you 22 contend was part of the original boundary? 23 MR. HARRISON: Basically, there are two portions of 24 property in Area 1. There's a northern section that falls 25 outside the place of use and the southern piece of ground CAPITOL REPORTERS (916) 923-5447 13051 1 that falls outside the place of use. It's our contention 2 that the southern place was within the original district 3 boundaries and should have been included within the place 4 of use. 5 The northern area was annexed at a later point in 6 time and although perfectly suited for production 7 purposes, was not part of original district boundaries and 8 perhaps for that reason was not included within the 9 original place of use mapping. 10 MR. NOMELLINI: Do you contend that as the districts 11 expand their boundaries the place of use would 12 automatically extend to the annexed areas? 13 MR. HARRISON: Yeah, I don't know that I know the 14 answer to that. You know "automatically," I don't think I 15 would say necessarily automatically, but -- but I don't 16 know that I can really speak to that. That would be a 17 question for someone other than me. 18 MR. NOMELLINI: So you don't know the official 19 position of your agency with regard to that particular 20 contention? 21 MR. HARRISON: No. 22 MR. NOMELLINI: All right. With regard to Area 2, 23 shown on Del Puerto Exhibit 2, sheet one of two, is there 24 any part of that area shown in Area 2 that was not part of 25 the so-called "original district boundary" recognizing CAPITOL REPORTERS (916) 923-5447 13052 1 that there are a number of districts here? 2 MR. HARRISON: No. That also was a part of our 3 original district boundaries. 4 MR. NOMELLINI: All right. Going to Area 3 as shown 5 on Del Puerto Exhibit 2, sheet one of two, was any part of 6 Area 3 excluded from the original district boundary, again 7 recognizing multiple districts? 8 MR. HARRISON: Right, all but the southern most 50 9 plus or minus acres was included within the original 10 district boundaries. That was at least at the time of 11 contracting in 1953, the southerly plus or minus 50 acres 12 were bought in 1956. 13 MR. NOMELLINI: All right. Going back to Area 1 14 briefly, how many acres are encompassed within the 15 northern portion of Area 1 that was not included in the 16 so-called original district boundary? 17 MR. HARRISON: We estimate about 190 acres. 18 MR. NOMELLINI: All right. Going to sheet two of 19 two, I think you have another overhead, if you could put 20 that up, please. 21 In between the areas shown as Area 3 and Area 4 22 of Del Puerto Exhibit 2, sheet two of two, there's a 23 crudely drawn circle, does that indicate anything in 24 particular? 25 MR. HARRISON: Yeah. It indicates an area where it CAPITOL REPORTERS (916) 923-5447 13053 1 appears that there is a small piece of ground within the 2 district boundaries that does fall outside the current 3 place of use. 4 MR. NOMELLINI: Okay. And is that included in the 5 Draft EIR as an expansion area, or encroachment area? 6 MR. HARRISON: Yeah. It's a little hard to read on 7 the scale, but it appears that there's a very small sliver 8 of land that is within district boundaries but falls 9 outside the place of use. 10 MR. NOMELLINI: Okay. And, again, speaking with 11 regard to the circled area between Area 3 and 4, is that 12 area presently served with water by your district? 13 MR. HARRISON: No. The Eastern portion of that 14 northwestern quarter section is, but the area outside the 15 place of use I do not believe is currently receiving CVP 16 water. 17 MR. NOMELLINI: Is it your district's contention 18 that areas that are not now receiving district water but 19 are included within the district boundary, yet shown to be 20 outside the place of use, should be included in the place 21 of use? 22 MR. HARRISON: If I understand your question 23 correctly, yes, we feel that our district boundaries 24 should be included within the place of use. 25 MR. NOMELLINI: All right. And going to a little CAPITOL REPORTERS (916) 923-5447 13054 1 broader question: Do you understand what has been 2 described as "expansion areas"? 3 MR. HARRISON: Yes, I believe I do. 4 MR. NOMELLINI: Okay. And would the area between 5 Area 3 and Area 4 on Del Puerto Exhibit 2, sheet two of 6 two, be one such example of an expansion area? 7 MR. HARRISON: Insofar as to my knowledge it's never 8 received CVP water, and if that is the definition of 9 expansion area as opposed to encroachment area, then, yes. 10 MR. NOMELLINI: Okay. Is that your understanding of 11 what expansion area means? 12 MR. HARRISON: Yes. 13 MR. NOMELLINI: Okay. Going to Area 4 as shown on 14 Del Puerto Exhibit 2, sheet two of two, is any part of the 15 area -- land in Area 4 outside the so-called "original 16 boundary" of the district? 17 MR. HARRISON: Not to my knowledge. 18 MR. NOMELLINI: Now, you had indicated that if the 19 State Board did not approve the change in place of use 20 that there could be some detrimental impact to your 21 district; is that correct? 22 MR. HARRISON: To landowners within my district, 23 yes. 24 MR. NOMELLINI: Okay. So that it is your testimony, 25 is it not, that regardless of what the Board does your CAPITOL REPORTERS (916) 923-5447 13055 1 district is still going to get the same amount of water 2 regardless? 3 MR. HARRISON: Yes, we'll continue to put our 4 contract supplies to beneficial use. 5 MR. NOMELLINI: Okay. But in terms of the area 6 outside the permitted place of use, that land may not 7 receive district water, is that what your testimony is? 8 MR. HARRISON: If they were, you know -- if that 9 were the decision of the Board to exclude those from the 10 place of use, it is my understanding that deliveries would 11 not be permitted to those lands. 12 MR. NOMELLINI: Okay. And if the Board denied the 13 petition then you would expect that your district would 14 not deliver CVP water to those lands that were outside the 15 permitted place of use; is that correct? 16 MR. HARRISON: Not without further permission. 17 MR. NOMELLINI: Now, do you contend that there would 18 be some injury to those landowners associated with that? 19 MR. HARRISON: Yes. 20 MR. NOMELLINI: And I believe you testified you 21 couldn't put an exact total dollar amount, but that there 22 was land in that area that would be in the neighborhood of 23 $8,000 an acre; is that what your testimony was? 24 MR. HARRISON: That's correct. 25 MR. NOMELLINI: And is it your contention that the CAPITOL REPORTERS (916) 923-5447 13056 1 land would not be irrigated if it did not receive district 2 water? 3 MR. HARRISON: To my knowledge the sole source of 4 supplies to some of those acreages is the CVP water supply 5 that the district provides. 6 MR. NOMELLINI: All right. How much of the acreage 7 that's shown to be outside the permitted place of use is 8 dependent solely on CVP water? 9 MR. HARRISON: All of it. 10 MR. NOMELLINI: And it's your testimony, then, that 11 the groundwater beneath such land could not be utilized? 12 MR. HARRISON: That's correct. If there is 13 groundwater available underneath those lands it's 14 extremely limited and of very poor quality. 15 MR. NOMELLINI: Is it your contention that it could 16 not be used for agricultural purposes? 17 MR. HARRISON: Yes. 18 MR. NOMELLINI: Now, are these same lands that are 19 outside the place of use given a full supply of water by 20 your district each year? 21 MR. HARRISON: Yes, with the exception of the 22 northern portion of Area 1, which is available only in 23 years of declared surplus by the district, where supplies 24 are made available only in years of declared surplus. 25 MR. NOMELLINI: And on the average is that half the CAPITOL REPORTERS (916) 923-5447 13057 1 time that they would get water, or what percentage of the 2 time on the average would that be? 3 MR. HARRISON: Almost never. 4 MR. NOMELLINI: Okay. So the injury to that 5 landowner that has that land that would almost never get a 6 district supply would be much smaller in terms of impact 7 than the injury to a landowner who was getting a full 8 supply from the district; is that correct? 9 MR. HARRISON: That's correct. 10 MR. NOMELLINI: And you made no attempt to delineate 11 the difference in the impacts to those two particular 12 areas? 13 MR. HARRISON: No. 14 MR. NOMELLINI: When you use the term "full supply," 15 and maybe I started it first, but if we assume the full 16 supply -- how many acre-feet per acre is that, or is there 17 another way to describe it? 18 MR. HARRISON: Approximately three acre-feet per 19 acre. 20 MR. NOMELLINI: So if the consumptive use of a 21 particular crop was greater than three acre-feet per acre, 22 the landowner would simply underirrigate his crop? 23 MR. HARRISON: Yes, or seek alternative supply 24 sources, limited availability of groundwater on those 25 areas. There are areas within the district which do have CAPITOL REPORTERS (916) 923-5447 13058 1 access to sufficient and good quality groundwater. 2 MR. NOMELLINI: Okay. So that even though the area 3 outside the place of use doesn't have usable groundwater 4 beneath it, arrangements can be made for water to be 5 extracted from the ground in some other portion of the 6 district and then delivered to these lands; is that what 7 your testimony is? 8 MR. HARRISON: No. I'm not saying that groundwater 9 can be transferred to lands outside the place of use, that 10 could be -- that would be something that's not happened in 11 the past, it's not been done. 12 MR. NOMELLINI: Okay. Let's go back a minute. I 13 understood you to say that full delivery was three 14 acre-feet per acre; is that correct? 15 MR. HARRISON: That's correct. 16 MR. NOMELLINI: All right. And I asked the 17 question: Well, what happened if a crop required more 18 than three acre-feet per acre? And I asked whether or not 19 a farmer would simply undersupply his crop. 20 Do you remember that? 21 MR. HARRISON: Yes. 22 MR. NOMELLINI: All right. And then you said 23 something about groundwater, usable groundwater in other 24 places in the district? 25 MR. HARRISON: That's correct. CAPITOL REPORTERS (916) 923-5447 13059 1 MR. NOMELLINI: Okay. Now, how does that 2 groundwater in the other places in the district help this 3 farmer that only gets three acre-feet per acre when he 4 needs a little more for his crop? 5 MR. BIRMINGHAM: I'm going to object to the question 6 on the grounds that it assumes a fact not in evidence. I 7 don't think Mr. Harrison has testified that the 8 availability of groundwater to some growers necessarily 9 helps growers to whom that groundwater is not available. 10 So to ask: How does it help, assumes a fact not in 11 evidence. 12 C.O. STUBCHAER: Well, Mr. Conant, did you want 13 to -- 14 MR. CONANT: No. 15 C.O. STUBCHAER: With regard to the place where the 16 groundwater is used, I don't think there was any testimony 17 on that. 18 Well, go ahead. 19 MR. NOMELLINI: I'll go ahead and try to clarify it, 20 perhaps I misunderstood. 21 Is there any way that the farmer who gets his 22 full delivery of three acre-feet per acre but needs more 23 for his crop can get more water in your district? 24 MR. HARRISON: If I'm understanding your question 25 correctly -- and this relates to district lands other than CAPITOL REPORTERS (916) 923-5447 13060 1 the district lands in question -- falling outside the 2 place of use -- 3 MR. NOMELLINI: I'm talking only about the lands 4 outside the permitted place of use. 5 MR. HARRISON: Is there some other way that those 6 lands can get water to it other than CVP water, is that 7 your question? 8 MR. NOMELLINI: Correct. 9 MR. HARRISON: Other than the CVP supply, no. 10 MR. NOMELLINI: Okay. That's fine. For lands that 11 are within the district, some of those lands have usable 12 groundwater beneath them, I guess that's what your 13 testimony was? 14 MR. HARRISON: Yeah, exactly. 15 MR. NOMELLINI: Okay. 16 MR. HARRISON: The District itself has no 17 groundwater sources or delivery systems. All those supply 18 sources, groundwater supply sources are privately owned 19 and operated for overlying uses. 20 MR. NOMELLINI: Okay. Mr. Collup, you had indicated 21 in testimony for descriptive purposes that the lines on 22 the place of use map may have been drawn with a crayon; is 23 that correct? 24 MR. COLLUP: Yes, that was my testimony. 25 MR. NOMELLINI: All right. And you also testified CAPITOL REPORTERS (916) 923-5447 13061 1 that you, in fact, have not looked at the maps that were 2 submitted with the Bureau applications to the State Water 3 Resources Control Board; is that correct? 4 MR. COLLUP: Yes. 5 MR. NOMELLINI: And you've indicated that you asked 6 for that, the maps from the Bureau; is that correct? 7 MR. COLLUP: Yes. 8 MR. NOMELLINI: Did you make any attempt to look at 9 the State Water Resources Control Board files? 10 MR. COLLUP: Only through the Bureau. 11 MR. NOMELLINI: Would it make any difference to you 12 if the maps were drawn on a fairly large piece of paper 13 perhaps two feet by three feet? 14 MR. COLLUP: That would depend entirely on the 15 scale. 16 MR. NOMELLINI: Now, you indicated that you thought 17 the entire Arvin-Edison boundary was included within the 18 place of use mapping for the Friant permit. Do you recall 19 that? 20 MR. COLLUP: Yes. 21 MR. NOMELLINI: Did you look at the map attached to 22 the application of the Bureau for the Friant permit? 23 MR. COLLUP: We did. 24 MR. NOMELLINI: Did you? 25 MR. COLLUP: Yes, with some others. I don't have a CAPITOL REPORTERS (916) 923-5447 13062 1 copy of it, but I did with some others. 2 MR. NOMELLINI: Okay. What was the scale of that 3 map? 4 MR. COLLUP: If I recall it was similar to this map 5 right here, which is our Exhibit 2. 6 MR. NOMELLINI: Arvin-Edison Exhibit 2? 7 MR. COLLUP: Yes. 8 MR. NOMELLINI: Now, what would the width of the 9 line be, in your opinion, on the scale on Arvin-Edison 10 Exhibit 2? 11 MR. COLLUP: Depending, you know, where on the map 12 you wanted to measure the thickness of it, it's going to 13 be several hundred feet maybe -- maybe a half a mile. 14 MR. NOMELLINI: Okay. So you think it would be 15 perhaps as wide as what you've described this crudely 16 drawn map to be that was attached to the application of 17 the Bureau to the State Board for the places of use in 18 question with regard to this phase of the hearing; is that 19 correct? 20 MR. COLLUP: My understanding is that the maps 21 prepared for this phase of the hearing and the Draft EIR, 22 all of these GIS maps were made from maps to scale in 23 accuracy and precision. Those maps did not exist before 24 this exercise. 25 MR. NOMELLINI: Okay. I understand that, the GIS CAPITOL REPORTERS (916) 923-5447 13063 1 maps. 2 MR. COLLUP: Right. 3 MR. NOMELLINI: You also described you thought the 4 line on the -- well, perhaps, I could clarify that. Is it 5 your testimony that you understand the maps that were 6 submitted with the applications to the State Water 7 Resources Control Board, that are the subject of this 8 phase of the hearing, contain lines that are roughly a 9 half mile in width? 10 MR. COLLUP: It's my understanding that the maps 11 that they were generated from were similar to scale as are 12 Exhibit 2. 13 MR. NOMELLINI: Okay. Have you discussed this place 14 of use exclusion with the Bureau of Reclamation? 15 MR. COLLUP: I'm sorry, I'm not sure what you mean 16 by the term "exclusion." 17 MR. NOMELLINI: With regard to this phase of the 18 hearing we're concerned about an application by the Bureau 19 to expand the place of use to include areas that are 20 viewed to be within the boundaries of the Arvin-Edison 21 District. Is that correct? 22 MR. COLLUP: Yes. 23 MR. NOMELLINI: All right. And some of those areas 24 have been shown in the draft environmental document to be 25 outside the permitted place of use; is that correct? CAPITOL REPORTERS (916) 923-5447 13064 1 MR. COLLUP: Yes. 2 MR. NOMELLINI: All right. With regard to that fact 3 that the Draft EIR shows some of your district area to be 4 outside the permitted place of use, have you had any 5 discussions with the Bureau of Reclamation? 6 MR. COLLUP: Yes. 7 MR. NOMELLINI: All right. And when did you first 8 have such discussions? 9 MR. COLLUP: I think is when the Draft EIR first 10 came out, or -- actually, we had an opportunity to put 11 comments maybe before that came out. I forget what the 12 document was called, but anyway it was with this process. 13 MR. NOMELLINI: All right. And was it at that time 14 that you asked the Bureau to produce the maps for you that 15 they used with the application? 16 MR. COLLUP: Yes. 17 MR. NOMELLINI: And to date they haven't done that? 18 MR. COLLUP: They have sent us different maps, none 19 of which are of the scale as the maps prepared in the 20 Draft EIR. 21 MR. NOMELLINI: Did they send you maps that you 22 understand to be the maps that were attached to the 23 original applications? 24 MR. COLLUP: I'd have to say, yes, that that's my 25 understanding. CAPITOL REPORTERS (916) 923-5447 13065 1 MR. NOMELLINI: Okay. You have those with you 2 today? 3 MR. COLLUP: A portion of one of those maps is our 4 Arvin-Edison Exhibit 2. 5 MR. NOMELLINI: Did you ask the Bureau -- going to 6 Arvin-Edison Exhibit 2, which is a portion of the map that 7 was submitted to you by the Bureau as being a copy, I 8 guess, of the map that was submitted with the application 9 for the permit; is that your understanding? 10 MR. COLLUP: Yes. 11 MR. NOMELLINI: All right. Now, does Arvin-Edison 12 Exhibit 2 incorrectly reflect the boundary of the 13 Arvin-Edison District? 14 MR. COLLUP: At that point and at that scale it 15 would be impossible to tell. 16 MR. NOMELLINI: Okay. Calling your attention to 17 Arvin-Edison Exhibit 2, how does Arvin-Edison Exhibit 2 18 differ, if it does, from the map attached to the 19 application by the Bureau for the Friant water? 20 MR. COLLUP: I believe they're similar. I don't 21 know that there are differences. 22 MR. NOMELLINI: Well -- 23 MR. COLLUP: It appears to follow the district 24 boundaries. 25 MR. NOMELLINI: Okay. So you do not know of any CAPITOL REPORTERS (916) 923-5447 13066 1 difference between the two maps; is that correct? 2 MR. COLLUP: That's correct. 3 MR. NOMELLINI: And your argument, then, is with the 4 GIS interpretation of those maps; is that more accurate? 5 MR. COLLUP: Yes. 6 MR. NOMELLINI: Okay. Now, with regard to your 7 district's position, do you seek to have areas added in 8 the place of use that are categorized as expansion areas 9 in the draft environmental document? 10 MR. COLLUP: No. 11 MR. NOMELLINI: So, then, is it true that all you 12 seek is inclusion of the encroachment areas? 13 MR. COLLUP: That's correct. 14 MR. NOMELLINI: All right. Getting around to some 15 real easy questions now -- 16 C.O. STUBCHAER: I hope they're quick as well as 17 easy. 18 MR. NOMELLINI: Well, you know I've been learning 19 from Mr. Birmingham and therefore -- 20 C.O. STUBCHAER: Oh, we're in trouble. 21 MR. NOMELLINI: Anyway, I'm going to make it fast. 22 Do you agree that deliveries to your district 23 from the CVP are limited to water that is surplus to the 24 present and future needs of users within the area of 25 origin? CAPITOL REPORTERS (916) 923-5447 13067 1 MR. CONANT: I'll object. It's the same discussion 2 we had earlier, he's asking for a legal conclusion 3 C.O. STUBCHAER: The witness may answer, as we said 4 before, if he knows the answer, but if he doesn't, he 5 doesn't need to speculate. 6 MR. COLLUP: I have no expertise with area of 7 origin. And I understand there's some controversy about 8 the definition. 9 MR. NOMELLINI: How about political science, do you 10 have any knowledge of political science? 11 Okay. That's all I have. Thank you very much. 12 C.O. STUBCHAER: Thank you, Mr. Nomellini. 13 Mr. Atlas. 14 ---oOo--- 15 CROSS-EXAMINATION OF DEL PUERTO WATER DISTRICT AND 16 ARVIN-EDISON WATER STORAGE DISTRICT 17 BY TEHAMA-COLUSA CANAL AUTHORITY 18 BY MR. ATLAS 19 MR. ATLAS: Good afternoon. My name is Mark Atlas 20 and I'm an attorney for Tehama-Colusa Canal Authority. 21 Mr. Collup, let's start with you, I guess. Do 22 you have a copy of the Draft EIR available to you? 23 MR. COLLUP: Yes. 24 MR. ATLAS: Okay. Let me ask you first: You're an 25 engineer and so are you familiar with the firm CH2M Hill? CAPITOL REPORTERS (916) 923-5447 13068 1 MR. COLLUP: Yes. 2 MR. ATLAS: And they prepared the Draft EIR 3 according to what's on the cover; is that correct? 4 MR. COLLUP: That's what I understand. 5 MR. ATLAS: You know them to be a fairly reputable 6 engineering firm? 7 MR. COLLUP: Uh-huh. 8 MR. ATLAS: Is it fair to say "highly reputable"? 9 MR. COLLUP: Yes. 10 MR. ATLAS: Now, let me ask you about the place of 11 use map. It's the Shasta place of use, it's Figure 2-2. 12 And it's immediately following Page 2-6. There's a 13 Trinity place of use map and then the next one beyond is 14 the Shasta place of use map. 15 Do you have that now? 16 MR. COLLUP: Yes. 17 MR. ATLAS: Okay. And for ease of reference I'm 18 going to put on the overhead what's previously been marked 19 as an -- and actually introduced now and accepted into 20 evidence, TCCA Exhibit 21. 21 Compare that, if you would, to the map that's in 22 front of you. They're the same with the exception of the 23 blue markings; is that correct? 24 MR. COLLUP: Yes, but you have Arvin-Edison off the 25 map there. CAPITOL REPORTERS (916) 923-5447 13069 1 MR. ATLAS: They're beyond even? 2 MR. COLLUP: Right down there at the -- 3 MR. NOMELLINI: That looks like a rather crudely 4 drawn map. 5 MR. HARRISON: You didn't copy the bottom part of 6 that. 7 MR. ATLAS: All right. Well, my apologies for 8 having cut Arvin-Edison off the TCCA Exhibit 21. 9 MR. COLLUP: That's okay, that looks familiar. I'm 10 getting use to it. 11 MR. ATLAS: Okay. Well, then let's look at the map 12 then in the DEIR itself. Arvin-Edison is, obviously 13 included on that map. Is that correct? 14 MR. BIRMINGHAM: Are we talking Figure 2-2? 15 MR. ATLAS: Yes, Figure 2-2 in the DEIR. 16 MR. COLLUP: I would assume that it is, until 17 somebody starts pulling it up. It's my assumption that 18 that includes all of Arvin-Edison. 19 MR. ATLAS: All right. Let's do it this way: Is 20 Arvin-Edison shown on exhibit -- or in Figure 2-2? 21 MR. COLLUP: Yes. 22 MR. ATLAS: And is it included in the -- well, you 23 see in the key the solid line that is shown, or is 24 described as the "proposed place of use," you see that 25 notation in the key? CAPITOL REPORTERS (916) 923-5447 13070 1 MR. COLLUP: Yes. 2 MR. ATLAS: And is Arvin-Edison included in the 3 southern most part of the proposed place of use, the solid 4 black line? 5 MR. COLLUP: It appears to be. 6 MR. ATLAS: Okay. And I'm not interested, 7 particularly, in how much of Arvin is in and how much of 8 Arvin is out, but some portion of Arvin-Edison is inside 9 that area; is that right? 10 MR. COLLUP: Yes. 11 MR. ATLAS: All right. But then I want to draw your 12 attention to what the key describes as the shaded area 13 entitled, "Permitted Place of Use," paren, "Current." 14 Do you see that? 15 MR. COLLUP: Yes. 16 MR. ATLAS: And you see that area that's depicted on 17 the map? 18 MR. COLLUP: Yes. 19 MR. ATLAS: No part of Arvin-Edison is in what is 20 called the current place of use? 21 MR. COLLUP: For those permits. 22 MR. ATLAS: For those permits, right. 23 MR. COLLUP: Right. 24 MR. ATLAS: Let me have you flip over for a moment 25 to the figure just before the Trinity place of use, Figure CAPITOL REPORTERS (916) 923-5447 13071 1 2-1. According to the key the permitted -- the current 2 permitted place of use for the Trinity permits includes 3 Arvin-Edison; is that right? 4 MR. COLLUP: It appears to. 5 MR. ATLAS: Okay. Now, is it your testimony that 6 Arvin-Edison does not appear within the current permitted 7 place of use on Figure 2-2 because of an error? I'm 8 sorry, let me state the question differently. 9 Because of an error in the way Figure 2-2 was 10 drawn? 11 MR. COLLUP: You're regarding -- you're referencing 12 with respect to whether or not it's shaded? 13 MR. ATLAS: That's right. 14 MR. COLLUP: I'd have to say I'm not familiar enough 15 with exactly which permits authorize these water 16 deliveries. Recall that this is water belonging to eight 17 different exchange districts that we're just exchanging 18 for and receiving. So I relied on the section in the 19 Draft EIR where CH2M Hill for the Bureau had delineated 20 the place of use boundaries. 21 MR. ATLAS: Okay. But if this map, Figure 2-2, is 22 correct and the distinction it makes between the current 23 permitted place of use and the proposed place of use for 24 the Shasta applications and permits that are listed on it, 25 if this map is correct, then Arvin-Edison is not currently CAPITOL REPORTERS (916) 923-5447 13072 1 in the Shasta permitted place of use; is that right? 2 MR. COLLUP: That is the way I would read this map. 3 MR. ATLAS: Okay. Now, you said that Arvin receives 4 service from the Delta, essentially, in return for 5 foregoing some Friant water that goes into the Cross 6 Valley Contractors, do I understand that right? 7 MR. COLLUP: Yes. We have a long-term exchange. 8 MR. ATLAS: Okay. All right. If the United States 9 for some reason could not deliver water to Arvin through 10 the Delta, is it Arvin-Edison then that suffers the 11 reduction, or do the Cross Valley Contractors suffer the 12 reduction? 13 MR. COLLUP: Arvin-Edison would suffer the 14 reduction. 15 MR. ATLAS: Okay. Mr. Harrison. I have to say, 16 Mr. Harrison, I've met a lot of water district managers in 17 my years, but I have yet to meet one, until you, who is a 18 sociologist and a philosopher, and I congratulate you for 19 being able to be involved in this industry with that 20 background. 21 You testified earlier today that -- in fact, I 22 think it was in answer to a question from Mr. Nomellini -- 23 that if we take the number of acres of Del Puerto Water 24 District and divide it into the district's CVP contract 25 supply, you come out with about 3 acre-feet per acre of CAPITOL REPORTERS (916) 923-5447 13073 1 contract supply; is that right? 2 MR. HARRISON: That's correct. 3 MR. ATLAS: Okay. And you also said I think earlier 4 that on average you figure now because of the various 5 constraints on deliveries to Del Puerto that your contract 6 supply runs between 65 and 70 percent of your contract 7 entitlement; is that -- 8 MR. HARRISON: That's correct. 9 MR. ATLAS: So if we take 70 percent of 3 acre-feet 10 that's roughly about 2.1 acre-feet per acre; is that -- 11 MR. HARRISON: That's correct. 12 MR. ATLAS: Okay. If I told you that Orland-Artois 13 Water District, one of my clients has 29,000 acres and 14 about 53,000 acre-feet contract entitlement, would you 15 accept that that's about 1.8 acre-feet per acre? 16 MR. HARRISON: Sounds like you've done the math. 17 MR. ATLAS: I've done the math. Would you accept 18 that as an accurate statement? 19 MR. HARRISON: Yes. 20 MR. ATLAS: Okay. And if I told you that Glide 21 Water District has about 8,000 and about 10,500 acre-feet, 22 that that equates to about 1.3 acre-feet per acre? 23 MR. HARRISON: Yes. 24 MR. ATLAS: Okay. Do you have a feel -- you said 25 that a substantial part of your district is planted with CAPITOL REPORTERS (916) 923-5447 13074 1 almonds; is that right? 2 MR. HARRISON: Yes, and other permanent crops. 3 MR. ATLAS: Okay. 4 MR. HARRISON: We're probably a little bit better 5 than 50 percent in permanent crops at this point. 6 MR. ATLAS: If you know, about how many acre-feet 7 per acre do almond farmers apply in your district? 8 MR. HARRISON: Three to four. 9 MR. ATLAS: Okay. Now, obviously, inherent in your 10 testimony that you now get about 65 to 70 percent of your 11 contract supply, that's as a result of various cutbacks in 12 CVP water; is that right? 13 MR. HARRISON: That's correct. 14 MR. ATLAS: And I think you said that those cutbacks 15 come by virtue of a shortage clause in your contract, 16 under that clause the Bureau of Reclamation each year 17 informs you of how much of your contract supply you'll -- 18 you can expect to receive; is that right? 19 MR. HARRISON: That's correct. 20 MR. ATLAS: Okay. And those cutbacks are for 21 reasons of implementation of the CVPIA, in part; is that 22 right? 23 MR. HARRISON: That's my understanding, that and the 24 Endangered Species Act consideration. 25 MR. ATLAS: All right. And sometimes because of CAPITOL REPORTERS (916) 923-5447 13075 1 natural drought? 2 MR. HARRISON: Exactly. 3 MR. ATLAS: Has implementation of the CVPIA, to your 4 knowledge, ever changed Del Puerto Water District's demand 5 for CVP water? 6 MR. HARRISON: No, we've still got the same cropping 7 patterns going on. 8 MR. ATLAS: As an example, almonds -- farmers who 9 are raising almonds still want 3 acre-feet per acre, 10 whether they can get it or not is another question, right? 11 MR. HARRISON: Yes. 12 MR. ATLAS: All right. So we understand -- we each 13 understand what we mean by "demand"? 14 MR. HARRISON: Yes. 15 MR. ATLAS: Okay. Has implementation of the 16 Endangered Species Act ever changed Del Puerto Water 17 District's demand for CVP water? 18 MR. HARRISON: No. 19 MR. ATLAS: And the same would be the same for 20 drought, it doesn't change the demand? 21 MR. HARRISON: No. 22 MR. ATLAS: Okay. So is it fair to say that demand 23 is one thing, the Bureau of Reclamation's capabilities or 24 willingness to deliver CVP water is another matter; do you 25 understand the distinction? CAPITOL REPORTERS (916) 923-5447 13076 1 MR. HARRISON: Yes. 2 MR. ATLAS: You would accept that there is a 3 distinction? 4 MR. HARRISON: There is a distinction, yeah. 5 MR. ATLAS: Okay. One other -- you also testified, 6 I think maybe in cross-examination, that certain 7 regulatory constraints might affect the Bureau's -- might 8 affect Del Puerto's water supply, CVP water supply; is 9 that right? 10 MR. HARRISON: Yeah. We are dependent upon the 11 ability of Tracy pumping plant to export. And insofar as 12 the pumping is restricted by endangered species 13 considerations, yes, we feel there is an impact on our 14 water supplies. 15 MR. ATLAS: And I'm sorry, I don't remember who it 16 was that asked the question of you, but the question was 17 in context of regulatory constraints such as permit terms 18 issued by this Board; is that what you understand? 19 MR. HARRISON: I was speaking more towards the 20 Endangered Species Act when I spoke. I don't know how 21 this Board figures into -- into that scenario, to tell you 22 the truth. 23 MR. ATLAS: All right. I think the question was, 24 the Board may have in the past may -- in the future issue 25 orders that include terms, for instance, to maintain water CAPITOL REPORTERS (916) 923-5447 13077 1 quality in the Delta. And I think -- it might have even 2 been Mr. Herrick's question, then, that a permit term from 3 the Board requiring certain quality standards in the Delta 4 would be a regulatory constraint that could impact Del 5 Puerto water supply. 6 Is that correct? 7 MR. HARRISON: Yes, that's correct. 8 MR. ATLAS: Okay. And those regulatory constraints 9 wouldn't change Del Puerto's demand; is that correct? 10 MR. HARRISON: Also correct. 11 MR. ATLAS: Okay. It would change the Bureau's 12 ability to meet that demand, though? 13 MR. HARRISON: Exactly. 14 MR. ATLAS: Okay. Mr. Collup, just one or two more 15 questions. If you could open the Draft EIR one more time 16 to those maps. 17 MR. COLLUP: Okay. 18 MR. ATLAS: Okay. And, again, comparing the Trinity 19 place of use and Shasta place of use maps, if we assume 20 for the moment that those maps are correct depictions of 21 what is called "the current permitted place of use," as I 22 said earlier -- as you acknowledged earlier, I should say, 23 Arvin-Edison is included in Trinity excluded from the 24 place of use of the Shasta permits. 25 Now, if for some reason the Central Valley CAPITOL REPORTERS (916) 923-5447 13078 1 Project is no longer able to divert water out of the 2 Trinity project and into the Sacramento Valley for 3 delivery as CVP water, is it your understanding, then, 4 that service to Arvin-Edison would have to come from -- 5 well, strike that. Let me ask it a different way. 6 If this Board grants the expansion of the Shasta 7 place of use or consolidation, as the term is used, to 8 include Arvin-Edison in the Shasta place of use, and then 9 if the CVP can no longer divert water out of Trinity, it's 10 your understanding that Arvin-Edison then would receive 11 water in part from Shasta; is that correct? 12 MR. COLLUP: Again, I'm not sure of the water rights 13 of our exchangers and their permits and exactly how that 14 water is mingled and what have you. So I'm not sure I can 15 answer that. 16 MR. ATLAS: I have no further questions. Thank you. 17 C.O. STUBCHAER: Thank you, Mr. Atlas. 18 Does staff have any questions of this panel? 19 MS. LEIDIGH: No. 20 C.O. STUBCHAER: Board Members? 21 C.O. BROWN: No, sir. 22 C.O. STUBCHAER: Mr. Conant, you're probably 23 checking on redirect now. 24 MR. CONANT: No redirect. 25 C.O. STUBCHAER: No redirect -- CAPITOL REPORTERS (916) 923-5447 13079 1 MR. BIRMINGHAM: Excuse me, may I have a moment to 2 confirm with Mr. Conant? 3 C.O. STUBCHAER: After we finish this panel? 4 MR. BIRMINGHAM: Before we finish this panel. 5 C.O. STUBCHAER: All right. Go ahead. 6 And, Mr. Turner, I haven't forgotten you wanted 7 to discuss -- 8 MR. TURNER: If we have a moment maybe we can do 9 that at this point. What I was interested in was if we 10 can get some kind of projection from the other parties as 11 to whether they will be anticipating presenting any kind 12 of rebuttal evidence. 13 And, if so, I'm just trying to figure out, in 14 light of testimony that Mr. Atlas presented today, I 15 figured it was necessary to present some rebuttal in 16 connection with the Bureau contracting and exchanges and 17 transfers of water. 18 So I need to bring a Bureau witness in from the 19 Willows office and I'm trying to figure out whether we'd 20 be purging that tomorrow afternoon, Thursday morning. If 21 I can get an indication for the convenience of my witness. 22 C.O. STUBCHAER: I'm not sure all the parties are 23 here in the room, but could we have a show of hands, one 24 per party, of those who intend to present rebuttal 25 testimony. CAPITOL REPORTERS (916) 923-5447 13080 1 Mr. Birmingham, Mr. Turner, Mr. Nomellini, 2 Mr. Herrick with a question mark. Anyone else? 3 MR. TURNER: And then we have four parties left to 4 present their direct and cross, right? 5 C.O. STUBCHAER: Yes. We have the Santa Clara 6 Valley Water Districts, San Luis Water District, Westlands 7 Water District and Westlands Encroachment Landowners. 8 MR. TURNER: Probably Thursday morning I would 9 imagine. 10 C.O. STUBCHAER: You can project at your peril. 11 Okay. Back to you, Mr. Conant. 12 MR. CONANT: We have no redirect. 13 C.O. STUBCHAER: No redirect. How about the 14 exhibits? 15 MR. CONANT: Yeah, Mr. Chairman, at this point I 16 would move to introduce Arvin-Edison's Exhibits 1, 2, 3, 17 4, 5 and 6 and Del Puerto's 1, 2 and 3. 18 C.O. STUBCHAER: Does the numbering jive with the 19 staff? 20 MR. CORNELIUS: Yes. 21 C.O. STUBCHAER: Any objections? Seeing none, 22 everyone is worn out this late in the day, so those 23 exhibits are accepted. 24 MR. CONANT: Thank you. 25 C.O. STUBCHAER: And thank you, panel members, for CAPITOL REPORTERS (916) 923-5447 13081 1 your participation and you're excused. 2 Okay. Any other matters to discuss before we 3 adjourn for today? Staff? Mr. Birmingham? 4 MR. BIRMINGHAM: While we have a moment I would like 5 to state for the record that John Rubin, who is an 6 associate in our firm, is now appearing on behalf of 7 Westlands and the Authority. 8 C.O. STUBCHAER: Mr. Rubin, welcome. It that 9 spelled, R-U-B-E-N? 10 MR. RUBIN: R-U-B-I-N. 11 C.O. STUBCHAER: R-U-B-I-N, all right. Anything 12 else? If not, we're adjourned until 9:00 a.m. tomorrow. 13 (The proceedings concluded at 3:59 p.m.) 14 ---oOo--- 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 13082 1 REPORTER'S_CERTIFICATE __________ ___________ 2 3 STATE OF CALIFORNIA ) ) ss. 4 COUNTY OF SACRAMENTO ) 5 I, MARY R. GALLAGHER, certify that I was the 6 Official Court Reporter for the proceedings named herein, 7 and that as such reporter I reported in verbatim shorthand 8 writing those proceedings; that I thereafter caused my 9 shorthand writing to be reduced to typewriting, and the 10 pages numbered 12873 through 13082 herein constitute a 11 complete, true and correct record of the proceedings. 12 IN WITNESS WHEREOF, I have subscribed this 13 certificate at Sacramento, California, on this 16th day of 14 April, 1999. 15 16 ________________________________ MARY R. GALLAGHER, CSR #10749 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 13083