STATE WATER RESOURCES CONTROL BOARD PUBLIC HEARING 1998 BAY-DELTA WATER RIGHTS HEARING HELD AT: BONDERSON BUILDING 901 P STREET SACRAMENTO, CALIFORNIA WEDNESDAY, APRIL 7, 1999 9:00 A.M. Reported by: ESTHER F. WIATRE CSR NO. 1564 CAPITOL REPORTERS (916) 923-5447 1 APPEARANCES BOARD MEMBERS: 2 JAMES STUBCHAER, COHEARING OFFICER 3 JOHN W. BROWN, COHEARING OFFICER MARY JANE FORSTER 4 STAFF MEMBERS: 5 WALTER PETTIT, EXECUTIVE DIRECTOR 6 VICTORIA WHITNEY, CHIEF BAY-DELTA UNIT THOMAS HOWARD, SUPERVISING ENGINEER 7 JAMES CANADY, ENVIRONMENTAL SPECIALIST 8 DAVID CORNELIUS, SENIOR CONTROL ENGINEER 9 COUNSEL: 10 WILLIAM R. ATTWATER, CHIEF COUNSEL 11 BARBARA LEIDIGH 12 ---oOo--- 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 PRINCETON CODORA GLENN IRRIGATION DISTRICT, et al.: 3 FROST, DRUP & ATLAS 134 West Sycamore Street 4 Willows, California 95988 BY: J. MARK ATLAS, ESQ. 5 JOINT WATER DISTRICTS: 6 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON: 7 P.O. BOX 1679 Oroville, California 95965 8 BY: WILLIAM H. BABER III, ESQ. 9 CALIFORNIA SPORTFISHING PROTECTION ALLIANCE: 10 ROBERT J. BAIOCCHI P.O. Box 357 11 Quincy, California 12 BELLA VISTA WATER DISTRICT: 13 BRUCE L. BELTON, ESQ. 2525 Park Marina Drive, Suite 102 14 Redding, California 96001 15 WESTLANDS WATER DISTRICT: 16 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Capitol Mall, 27th Floor 17 Sacramento, California 95814 BY: THOMAS W. BIRMINGHAM, ESQ. 18 and JON ROBIN, ESQ. 19 THE BAY INSTITUTE OF SAN FRANCISCO: 20 GARY BOBKER 21 55 Shaver Street, Suite 330 San Rafael, California 94901 22 CITY OF ANTIOCH, et al.: 23 FREDERICK BOLD, JR., ESQ. 24 1201 California Street, Suite 1303 San Francisco, California 94109 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 LEAGUE OF WOMEN VOTERS: 3 ROBERTA BORGONOVO 2480 Union Street 4 San Francisco, California 94123 5 UNITED STATES DEPARTMENT OF THE INTERIOR: 6 OFFICE OF THE SOLICITOR 2800 Cottage Way, Room E1712 7 Sacramento, California 95825 BY: ALF W. BRANDT, ESQ. 8 and JAMES TURNER, ESQ. 9 10 CALIFORNIA URBAN WATER AGENCIES: 11 BYRON M. BUCK 455 Capitol Mall, Suite 705 12 Sacramento, California 95814 13 RANCHO MURIETA COMMUNITY SERVICES DISTRICT: 14 MCDONOUGH, HOLLAND & ALLEN 555 Capitol Mall, 9th Floor 15 Sacramento, California 95814 BY: VIRGINIA A. CAHILL, ESQ. 16 CALIFORNIA DEPARTMENT OF FISH AND GAME: 17 OFFICE OF ATTORNEY GENERAL 18 1300 I Street, Suite 1101 Sacramento, California 95814 19 BY: MATTHEW CAMPBELL, ESQ. 20 NATURAL RESOURCES DEFENSE COUNCIL: 21 HAMILTON CANDEE, ESQ. 71 Stevenson Street 22 San Francisco, California 94105 23 24 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 ARVIN-EDISON WATER STORAGE DISTRICT, et al.: 3 DOOLEY HERR & WILLIAMS 3500 West Mineral King Avenue, Suite C 4 Visalia, California 93291 BY: DANIEL M. DOOLEY, ESQ. 5 SACRAMENTO MUNICIPAL UTILITY DISTRICT: 6 LESLIE A. DUNSWORTH, ESQ. 7 6201 S Street Sacramento, California 95817 8 SOUTH SAN JOAQUIN IRRIGATION DISTRICT, et al.: 9 BRAY, GEIGER, RUDQUIST & NUSS 10 311 East Main Street, 4th Floor Stockton, California 95202 11 BY: STEVEN P. EMRICK, ESQ. 12 EAST BAY MUNICIPAL UTILITY DISTRICT: 13 EBMUD OFFICE OF GENERAL COUNSEL 375 Eleventh Street 14 Oakland, California 94623 BY: FRED S. ETHERIDGE, ESQ. 15 GOLDEN GATE AUDUBON SOCIETY: 16 ARTHUR FEINSTEIN 17 2530 San Pablo Avenue, Suite G Berkeley, California 94702 18 CONAWAY CONSERVANCY GROUP: 19 UREMOVIC & FELGER 20 P.O. Box 5654 Fresno, California 93755 21 BY: WARREN P. FELGER, ESQ. 22 THOMES CREEK WATER ASSOCIATION: 23 THOMES CREEK WATERSHED ASSOCIATION P.O. Box 2365 24 Flournoy, California 96029 BY: LOIS FLYNNE 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 COURT APPOINTED REPS OF WESTLANDS WD AREA 1, et al.: 3 LAW OFFICES OF SMILAND & KHACHIGIAN 601 West Fifth Street, Seventh Floor 4 Los Angeles, California 90075 BY: CHRISTOPHER G. FOSTER, ESQ. 5 CITY AND COUNTY OF SAN FRANCISCO: 6 OFFICE OF THE CITY ATTORNEY 7 1390 Market Street, Sixth Floor San Francisco, California 94102 8 BY: DONN W. FURMAN, ESQ. 9 CAMP FAR WEST IRRIGATION DISTRICT, et al.: 10 DANIEL F. GALLERY, ESQ. 926 J Street, Suite 505 11 Sacramento, California 95814 12 BOSTON RANCH COMPANY, et al.: 13 J.B. BOSWELL COMPANY 101 West Walnut Street 14 Pasadena, California 91103 BY: EDWARD G. GIERMANN 15 SAN JOAQUIN RIVER GROUP AUTHORITY, et al.: 16 GRIFFTH, MASUDA & GODWIN 17 517 East Olive Street Turlock, California 95381 18 BY: ARTHUR F. GODWIN, ESQ. 19 NORTHERN CALIFORNIA WATER ASSOCIATION: 20 RICHARD GOLB 455 Capitol Mall, Suite 335 21 Sacramento, California 95814 22 PLACER COUNTY WATER AGENCY, et al.: 23 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Capitol Mall, 27th Floor 24 Sacramento, California 95814 BY: JANET GOLDSMITH, ESQ. 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 ENVIRONMENTAL DEFENSE FUND: 3 DANIEL SUYEYASU, ESQ. and 4 THOMAS J. GRAFF, ESQ. 5655 College Avenue, Suite 304 5 Oakland, California 94618 6 CALAVERAS COUNTY WATER DISTRICT: 7 SIMON GRANVILLE P.O. Box 846 8 San Andreas, California 95249 9 CHOWCHILLA WATER DISTRICT, et al.: 10 GREEN, GREEN & RIGBY P.O. Box 1019 11 Madera, California 93639 BY: DENSLOW GREEN, ESQ. 12 CALIFORNIA FARM BUREAU FEDERATION: 13 DAVID J. GUY, ESQ. 14 2300 River Plaza Drive Sacramento, California 95833 15 SANTA CLARA VALLEY WATER DISTRICT: 16 MORRISON & FORESTER 17 755 Page Mill Road Palo Alto, California 94303 18 BY: KEVIN T. HAROFF, ESQ. 19 CITY OF SHASTA LAKE: 20 ALAN N. HARVEY P.O. Box 777 21 Shasta Lake, California 96019 22 COUNTY OF STANISLAUS: 23 MICHAEL G. HEATON, ESQ. 926 J Street 24 Sacramento, California 95814 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 GORRILL LAND COMPANY: 3 GORRILL LAND COMPANY P.O. Box 427 4 Durham, California 95938 BY: DON HEFFREN 5 SOUTH DELTA WATER AGENCY: 6 JOHN HERRICK, ESQ. 7 3031 West March Lane, Suite 332 East Stockton, California 95267 8 COUNTY OF GLENN: 9 NORMAN Y. HERRING 10 525 West Sycamore Street Willows, California 95988 11 REGIONAL COUNCIL OF RURAL COUNTIES: 12 MICHAEL B. JACKSON, ESQ. 13 1020 Twelfth Street, Suite 400 Sacramento, California 95814 14 DEER CREEK WATERSHED CONSERVANCY: 15 JULIE KELLY 16 P.O. Box 307 Vina, California 96092 17 DELTA TRIBUTARY AGENCIES COMMITTEE: 18 MODESTO IRRIGATION DISTRICT 19 P.O. Box 4060 Modesto, California 95352 20 BY: BILL KETSCHER 21 SAVE THE SAN FRANCISCO BAY ASSOCIATION: 22 SAVE THE BAY 1736 Franklin Street 23 Oakland, California 94612 BY: CYNTHIA L. KOEHLER, ESQ. 24 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 BATTLE CREEK WATERSHED LANDOWNERS: 3 BATTLE CREEK WATERSHED CONSERVANCY P.O. Box 606 4 Manton, California 96059 5 BUTTE SINK WATERFOWL ASSOCIATION, et al.: 6 MARTHA H. LENNIHAN, ESQ. 455 Capitol Mall, Suite 300 7 Sacramento, California 95814 8 CITY OF YUBA CITY: 9 WILLIAM P. LEWIS 1201 Civic Center Drive 10 Yuba City 95993 11 BROWNS VALLEY IRRIGATION DISTRICT, et al.: 12 BARTKEWICZ, KRONICK & SHANAHAN 1011 22nd Street, Suite 100 13 Sacramento, California 95816 BY: ALAN B. LILLY, ESQ. 14 CONTRA COSTA WATER DISTRICT: 15 BOLD, POLISNER, MADDOW, NELSON & JUDSON 16 500 Ygnacio Valley Road, Suite 325 Walnut Creek, California 94596 17 BY: ROBERT B. MADDOW, ESQ. 18 GRASSLAND WATER DISTRICT: 19 DON MARCIOCHI 22759 South Mercey Springs Road 20 Los Banos, California 93635 21 SAN LUIS CANAL COMPANY: 22 FLANNIGAN, MASON, ROBBINS & GNASS 3351 North M Street, Suite 100 23 Merced, California 95344 BY: MICHAEL L. MASON, ESQ. 24 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 STONY CREEK BUSINESS AND LAND OWNERS COALITION: 3 R.W. MCCOMAS 4150 County Road K 4 Orland, California 95963 5 TRI-DAM POWER AUTHORITY: 6 TUOLUMNE UTILITIES DISTRICT P.O. Box 3728 7 Sonora, California 95730 BY: TIM MCCULLOUGH 8 DELANO-EARLIMART IRRIGATION DISTRICT, et al.: 9 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 10 P.O. Box 1679 Oroville, California 95965 11 BY: JEFFREY A. MEITH, ESQ. 12 HUMANE FARMING ASSOCIATION: 13 BRADLEY S. MILLER 1550 California Street, Suite 6 14 San Francisco, California 94109 15 CORDUA IRRIGATION DISTRICT, et al.: 16 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 17 Oroville, California 95965 BY: PAUL R. MINASIAN, ESQ. 18 EL DORADO COUNTY WATER AGENCY: 19 DE CUIR & SOMACH 20 400 Capitol Mall, Suite 1900 Sacramento, California 95814 21 BY: DONALD B. MOONEY, ESQ. 22 GLENN COUNTY FARM BUREAU: 23 STEVE MORA 501 Walker Street 24 Orland, California 95963 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 MODESTO IRRIGATION DISTRICT: 3 JOEL MOSKOWITZ P.O. Box 4060 4 Modesto, California 95352 5 PACIFIC GAS & ELECTRIC: 6 RICHARD H. MOSS, ESQ. P.O. Box 7442 7 San Francisco, California 94120 8 CENTRAL DELTA WATER AGENCY, et al.: 9 NOMELLINI, GRILLI & MCDANIEL P.O. Box 1461 10 Stockton, California 95201 BY: DANTE JOHN NOMELLINI, ESQ. 11 and DANTE JOHN NOMELLINI, JR., ESQ. 12 TULARE LAKE BASIN WATER STORAGE UNIT: 13 MICHAEL NORDSTROM 14 1100 Whitney Avenue Corcoran, California 93212 15 AKIN RANCH, et al.: 16 DOWNEY, BRAND, SEYMOUR & ROHWER 17 555 Capitol Mall, 10th Floor Sacramento, California 95814 18 BY: KEVIN M. O'BRIEN, ESQ. 19 OAKDALE IRRIGATION DISTRICT: 20 O'LAUGHLIN & PARIS 870 Manzanita Court, Suite B 21 Chico, California 95926 BY: TIM O'LAUGHLIN, ESQ. 22 SIERRA CLUB: 23 JENNA OLSEN 24 85 Second Street, 2nd Floor San Francisco, California 94105 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 YOLO COUNTY BOARD OF SUPERVISORS: 3 LYNNEL POLLOCK 625 Court Street 4 Woodland, California 95695 5 PATRICK PORGANS AND ASSOCIATES: 6 PATRICK PORGANS P.O. Box 60940 7 Sacramento, California 95860 8 BROADVIEW WATER DISTRICT, et al.: 9 DIANE RATHMANN 10 FRIENDS OF THE RIVER: 11 BETSY REIFSNIDER 128 J Street, 2nd Floor 12 Sacramento, California 95814 13 MERCED IRRIGATION DISTRICT: 14 FLANAGAN, MASON, ROBBINS & GNASS P.O. Box 2067 15 Merced, California 95344 BY: KENNETH M. ROBBINS, ESQ. 16 CENTRAL SAN JOAQUIN WATER CONSERVATION DISTRICT: 17 REID W. ROBERTS, ESQ. 18 311 East Main Street, Suite 202 Stockton, California 95202 19 METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA: 20 JAMES F. ROBERTS 21 P.O. Box 54153 Los Angeles, California 90054 22 SACRAMENTO AREA WATER FORUM: 23 CITY OF SACRAMENTO 24 980 9th Street, 10th Floor Sacramento, California 95814 25 BY: JOSEPH ROBINSON, ESQ. CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 TUOLUMNE RIVER PRESERVATION TRUST: 3 NATURAL HERITAGE INSTITUTE 114 Sansome Street, Suite 1200 4 San Francisco, California 94194 BY: RICHARD ROOS-COLLINS, ESQ. 5 CALIFORNIA DEPARTMENT OF WATER RESOURCES: 6 DAVID SANDINO, ESQ. 7 CATHY CROTHERS, ESQ. P.O. Box 942836 8 Sacramento, California 94236 9 FRIANT WATER USERS AUTHORITY: 10 GARY W. SAWYERS, ESQ. 575 East Alluvial, Suite 101 11 Fresno, California 93720 12 KERN COUNTY WATER AGENCY: 13 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Capitol Mall, 27th Floor 14 Sacramento, California 95814 BY: CLIFFORD W. SCHULZ, ESQ. 15 SAN JOAQUIN RIVER EXCHANGE CONTRACTORS: 16 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON: 17 P.O. Box 1679 Oroville, California 95965 18 BY: MICHAEL V. SEXTON, ESQ. 19 SAN JOAQUIN COUNTY: 20 NEUMILLER & BEARDSLEE P.O. Box 20 21 Stockton, California 95203 BY: THOMAS J. SHEPHARD, SR., ESQ. 22 CITY OF STOCKTON: 23 DE CUIR & SOMACH 24 400 Capitol Mall, Suite 1900 Sacramento, California 95814 25 BY: PAUL S. SIMMONS, ESQ. CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 ORLAND UNIT WATER USERS' ASSOCIATION: 3 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 4 Oroville, California 95965 BY: M. ANTHONY SOARES, ESQ. 5 GLENN-COLUSA IRRIGATION DISTRICT: 6 DE CUIR & SOMACH 7 400 Capitol Mall, Suite 1900 Sacramento, California 95814 8 BY: STUART L. SOMACH, ESQ. 9 NORTH SAN JOAQUIN WATER CONSERVATION DISTRICT: 10 JAMES F. SORENSEN CONSULTING CIVIL ENGINEER, INC. 209 South Locust Street 11 Visalia, California 93279 BY: JAMES F. SORENSEN 12 PARADISE IRRIGATION DISTRICT: 13 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 14 P.O. Box 1679 Oroville, California 95695 15 BY: WILLIAM H. SPRUANCE, ESQ. 16 COUNTY OF COLUSA: 17 DONALD F. STANTON, ESQ. 1213 Market Street 18 Colusa, California 95932 19 COUNTY OF TRINITY: 20 COUNTY OF TRINITY - NATURAL RESOURCES P.O. Box 156 21 Hayfork, California 96041 BY: TOM STOKELY 22 CITY OF REDDING: 23 JEFFERY J. SWANSON, ESQ. 24 2515 Park Marina Drive, Suite 102 Redding, California 96001 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 TULARE IRRIGATION DISTRICT: 3 TEHAMA COUNTY RESOURCE CONSERVATION DISTRICT 2 Sutter Street, Suite D 4 Red Bluff, California 96080 BY: ERNEST E. WHITE 5 STATE WATER CONTRACTORS: 6 BEST BEST & KREIGER 7 P.O. Box 1028 Riverside, California 92502 8 BY: ERIC GARNER, ESQ. 9 COUNTY OF TEHAMA, et al.: 10 COUNTY OF TEHAMA BOARD OF SUPERVISORS: P.O. Box 250 11 Red Bluff, California 96080 BY: CHARLES H. WILLARD 12 MOUNTAIN COUNTIES WATER RESOURCES ASSOCIATION: 13 CHRISTOPHER D. WILLIAMS 14 P.O. Box 667 San Andreas, California 95249 15 JACKSON VALLEY IRRIGATION DISTRICT: 16 HENRY WILLY 17 6755 Lake Amador Drive Ione, California 95640 18 SOLANO COUNTY WATER AGENCY, et al.: 19 HERUM, CRABTREE, DYER, ZOLEZZI & TERPSTRA 20 2291 West March Lane, S.B.100 Stockton, California 95207 21 BY: JEANNE M. ZOLEZZI, ESQ. 22 WESTLANDS ENCROACHMENT AND EXPANSION LANDOWNERS: 23 BAKER, MANOCK & JENSEN 5260 North Palm Avenue 24 Fresno, Califonria 93704 BY: CHRISTOPHER L. CAMPBELL, ESQ. 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 SAN LUIS WATER DISTRICT: 3 LINNEMAN, BURGES, TELLES, VANATTA & VIERRA 1820 Marguerite Street 4 Dos Palos, California 93620 BY: THOMAS J. KEENE, ESQ. 5 6 ---oOo--- 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 1 INDEX 2 PAGE 3 RESUMPTION OF HEARING: 13102 4 AFTERNOON SESSION: 13220 5 SANTA CLARA VALLEY WATER DISTRICT: OPENING STATEMENT: 6 BY MR. HAROFF 13102 JOAN MAHER 7 DIRECT EXAMINATION: BY MR. HAROFF 13107 8 CROSS-EXAMINATION: BY MR. NOMELLINI 13114 9 BY MR. BIRMINGHAM 13142 BY MR. ATLAS 13156 10 BY MR. HERRICK 13163 BY BOARD MEMBERS 13198 11 SAN LUIS WATER DISTRICT: 12 OPENING STATEMENT: BY MR. KEENE 13204 13 JEAN SAGOUSPE MARVIN MEYERS 14 DIRECT EXAMINATION: BY MR. KEENE 13205 15 CROSS-EXAMINATION: BY MR. BIRMINGHAM 13217 16 BY MR. NOMELLINI 13220 BY MR. HERRICK 13247 17 REDIRECT EXAMINATION: BY MR. KEENE 13255 18 RECROSS-EXAMINATION: BY MR. TURNER 13257 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 1 INDEX 2 PAGE 3 WESTLANDS WATER DISTRICT AND WESTLANDS ENCROACHMENT AND EXPANSION LANDOWNERS: 4 OPENING STATEMENT: BY MR. C. CAMPBELL 13262 5 STEPHEN OTTEMOELLER MAYO RYAN 6 LARRY TURNQUIST DIRECT EXAMINATION: 7 BY MR. BIRMINGHAM 13263 CROSS-EXAMINATION: 8 BY MR. HERRICK 13286 BY MR. NOMELLINI 13288 9 BY MR. TURNER 13296 10 11 ---oOo--- 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 13101 1 SACRAMENTO, CALIFORNIA 2 APRIL 7, 1999 3 ---oOo--- 4 C.O. STUBCHAER: Morning. We will reconvene the 5 Bay-Delta hearing. 6 First order of business will be the case in chief of 7 the Santa Clara Valley Water District. 8 Morning, Mr. Haroff. 9 MR. HAROFF: Morning, Mr. Stubchaer, Mr. Brown. 10 C.O. BROWN: Morning. 11 ---oOo-- 12 DIRECT EXAMINATION OF SANTA CLARA VALLEY WATER DISTRICT 13 BY MR. HAROFF 14 MR. HAROFF: My name is Kevin Haroff. I am with the 15 law firm Morrison & Forester, today representing the Santa 16 Clara Valley Water District. With me today as the 17 district's witness is Joan Maher, an employee of Santa Clara 18 Valley Water District. We will be getting to her testimony 19 in just a moment. With your indulgence, though, I would 20 like to read a brief opening statement and then introduce 21 the witness. 22 C.O. STUBCHAER: Certainly. 23 MR. HAROFF: The Santa Clara Valley Water District is 24 appearing in support of the petition of the Bureau of 25 Reclamation to conform and consolidate the places and CAPITOL REPORTERS (916) 923-5447 13102 1 purposes of use designated in its water rights permits for 2 the Central Valley Project. 3 The district has contracted with the Bureau to receive 4 CVP water for the benefit of agricultural, domestic, 5 municipal and industrial users throughout Santa Clara 6 County. The district's appearance today is to provide 7 evidence and testimony on the demand for water within the 8 county, including demand associated with the vital, high 9 technology industry known as Silicon Valley and the role CVP 10 water plays in the district's overall supply arrangements to 11 meet that demand. 12 The district is appearing in these proceedings on its 13 own behalf and not on behalf of other CVP contractors. 14 However, the district is a member of San Luis and 15 Delta-Mendota Water Authority, which has previously 16 submitted a policy statement in support of certain aspects 17 of the Bureau's petition. The district joins in the views 18 expressed by the Authority in that statement. 19 As the Authority points out, the Bureau has 20 acknowledged in its testimony that lands within the service 21 areas of districts and other agencies contracting for CVP 22 water should properly be considered within the authorized 23 place of use under the Bureau CVP permits. This is true 24 regardless of whether those lands have been classified as 25 encroachment or expansion lands in the Draft Environmental CAPITOL REPORTERS (916) 923-5447 13103 1 Impact Report prepared in connection with the Bureau's 2 petition. 3 The district is aware of no legal basis for 4 distinguishing between what are described as encroachment 5 and expansion lands in the Draft EIR or for distinguishing 6 those lands from other lands within an authorized place of 7 use in water rights permits issued by the State Board. 8 There is no provision in the district's contract with the 9 Bureau that would limit the district's use of CVP to 10 anything less than its entire service area. Nor is the 11 district aware of any provision of the Water Code that 12 itself would impose such limitation. The district view is 13 so long as an agency has a valid contract for the delivery 14 of CVP water from the Bureau, the agency should be allowed 15 to distribute that water throughout its authorized service 16 area without restriction. 17 The Bureau's recognition that the services of CVP 18 contractors are within the authorized place of use is of 19 particular importance to the Santa Clara Valley Water 20 District. The Draft Environmental Impact Report suggests 21 that if the authorized place of use within the district is 22 viewed as less than the district's service area, then nearly 23 500,090 acres of land within Santa Clara Valley Water 24 District might be considered ineligible for delivery of CVP 25 water under current CVP permits. The district has been CAPITOL REPORTERS (916) 923-5447 13104 1 unable to determine from the Draft Environmental Impact 2 Report precisely how this area was determined as a factual 3 matter. Beyond that, there is no justification for the 4 arbitrary exclusion of such a large part of the district's 5 service area from access to the district's contractual 6 entitlement to CVP water. 7 The draft report suggests that this exclusion is 8 warranted because of the absence of sufficient analyses 9 under the California Environmental Quality Act, or CEQA, of 10 the environmental impacts of delivery of CVP water 11 throughout the district's service area. This suggestion 12 ignores the fact that substantial analyses were indeed 13 performed at the time CVP water deliveries to the district 14 were first contemplated. 15 These analyses were conducted as part of the 16 Environmental Impact Report prepared in the mid-1970s for 17 the federal San Felipe water distribution system through 18 which is the district receives CVP water supplies. The 19 district's entire service area, including those areas 20 projected for maximum industrial development was considered 21 in the San Felipe environmental impact report to be within 22 the potential impact area of the federal project. The 23 district believes that the analyses associated with CVP 24 deliveries within Santa Clara County was sufficient for 25 compliance with the requirements of CEQA. CAPITOL REPORTERS (916) 923-5447 13105 1 To the extent that any additional analysis is required 2 to evaluate the general land use impacts of any new 3 development within Santa Clara County, whether or not that 4 development is supported by access to federal water supply, 5 the district believes such analysis should properly be 6 conducted by the local land use authorities having a lead 7 agency responsible for permitting that development. 8 Contrary to suggestions in the present Draft Environmental 9 Impact Report and the testimony of certain parties to these 10 proceedings, there is not legal or practical justification 11 for inserting the State Board in the local land use planning 12 process. 13 For all these reasons, the Santa Clara Valley Water 14 District believes that there is no reason, based either on 15 provisions of the Water Code or on the need for further 16 environmental review under CEQA, to restrict in any way the 17 delivery of CVP water throughout the district's entire 18 service area. Consistent with the Bureau's testimony that 19 the authorized place of use within Santa Clara County is the 20 district's service area, the district supports the Bureau's 21 petition to consolidate and conform the Bureau's permit as 22 an administerial project for which no additional 23 environmental review is required under CEQA. 24 Finally, the district takes issue with the suggestion 25 made by certain parties that the CVP entitlement water that CAPITOL REPORTERS (916) 923-5447 13106 1 has not previously been used by the district should 2 constitute surplus water available for unrestricted use by 3 others. The fact that the district may not have been able 4 to use its full entitlement in past years does not mean that 5 water should be considered surplus within any meaning 6 contemplated by the Water Code. The district has regularly 7 requested its full contract amount, particularly during 8 drought years when locally conserved water was not readily 9 available. The district has and will continue to have a 10 critical need for CVP water. The district reserves its 11 right to continue to receive all CVP water to which it is 12 entitled under its contract and to use that water to serve 13 all its customers for agricultural, municipal and industrial 14 uses throughout Santa Clara County. 15 The district appreciates this opportunity to present 16 its views and testimony on the Bureau's petition. That 17 concludes my opening statement. 18 With that, I would like to introduce the witness. 19 Actually, Ms. Maher has not received the oath. 20 C.O. STUBCHAER: Let's see if we can consolidate this. 21 Are there any other witnesses in the audience who have not 22 taken the oath? 23 (Oath administered by C.O. Stubchaer.) 24 MR. HAROFF: Could you please state and spell your 25 name for the record, please. CAPITOL REPORTERS (916) 923-5447 13107 1 MS. MAHER: My name is Joan Maher. My last name is 2 M-a-h-e-r. First name is J-o-a-n. 3 MR. HAROFF: MS. Maher, are you employed at the Santa 4 Clara Valley Water District? 5 MS. MAHER: Yes. 6 MR. HAROFF: Can you please describe the character of 7 your employment with the district. 8 MS. MAHER: I am a special program engineer with the 9 water resources group at the Santa Clara Valley Water 10 District. My responsibilities at the district include water 11 resource and supply issues arising out of the district CVP 12 contract with the Bureau of Reclamation, and that is 13 primarily why I am here. 14 MR. HAROFF: The district has submitted Santa Clara 15 Valley Water District Exhibit Number 2 which purports to be 16 a copy of your curriculum vitae. Is that a true and correct 17 copy of your CV? 18 MS. MAHER: Yes, it is. 19 MR. HAROFF: Also, submitted by Santa Clara Valley 20 Water District as Exhibit Number 1 is a copy of written 21 testimony prepared by you for purposes of this hearing. Is 22 that a true and correct copy of your written testimony? 23 MS. MAHER: Yes. 24 MR. HAROFF: Ms. Maher, could you please summarize your 25 testimony for today's hearing? CAPITOL REPORTERS (916) 923-5447 13108 1 MS. MAHER: My testimony concerns the petition of the 2 Bureau of Reclamation to consolidate and conform and expand 3 the authorized purposes and places of use of the CVP water 4 under permits issued by the State Board. My purpose today 5 will be to go over briefly some of the points made in my 6 written testimony. 7 The Santa Clara Valley Water District is one of the 8 largest urban water supply agencies in California. The 9 district serves nearly 2,000,000 people in homes and 10 businesses located throughout Santa Clara County. Among 11 other things the district serves the vital high technology 12 industry known as the Silicon Valley, which generates nearly 13 $40,000,000,000 a year in gross annual product. It also 14 supports the thriving agricultural community with annual 15 crop production of approximately $160,000,000. 16 A substantial part of the water supplied by the 17 district is obtained from the CVP. In good hydrologic 18 years, such as 1997, for example, imported water deliveries 19 from the CVP were approximately 127,000 acre-feet or half of 20 the district's operational supply. In dry years the CVP and 21 other imported sources meet up to 90 percent of the 22 district's water demands. 23 Conforming the authorized purposes of use and 24 consolidating the places of use would acknowledge the 25 reality of circumstances under which the district both CAPITOL REPORTERS (916) 923-5447 13109 1 receives and distributes its CVP water supply. CVP water 2 delivered to the district is combined with local conserved 3 water and other water imported from the California State 4 Water Project for distribution throughout the district's 5 service area. The district has deliberately developed an 6 integrated water delivery system that blends CVP water with 7 water from other sources in order to maximize water supply 8 reliability within Santa Clara County. 9 With regard to the State Water Project portion of the 10 blended supply, the place of use for those water rights 11 permits includes all of Santa Clara County. It is my 12 understanding that the place of use for CVP water typically 13 is described in generic terms in the Bureau's applications 14 to appropriate water, focusing on the service areas of 15 entities contracting to receive the water. 16 Certainly, the district has always operated its system 17 in a way that treats CVP supplies the same as state supplies 18 for purposes of distribution in the service area. More 19 importantly, the district's contract with the CVP does not 20 limit the purposes or places of use of for water delivered 21 under the contract in any way. Rather, CVP water can be and 22 is distributed throughout the district's service area 23 without regard to the water's original source, subject only 24 to the physical limitations within the district's 25 distribution system. CAPITOL REPORTERS (916) 923-5447 13110 1 To my knowledge there is no provision in the district's 2 contract with Reclamation that would limit the district's 3 use of CVP to anything less than its entire service area, 4 which encompasses all of the territory within the geographic 5 boundaries of the county of Santa Clara. 6 I have read and understand the contents of the Draft 7 Environmental Impact Report or the Draft EIR that was 8 prepared for the State Board in connection with 9 Reclamation's petition. I also was involved with the 10 preparation of written comments on the written Draft EIR 11 that were submitted to the Board on March 31st, 1998. 12 At this point I would like to address Table 4-3 in the 13 Draft EIR that characterizes the district as having surplus 14 CVP supplies. The Draft EIR appears to come to the faulty 15 conclusion that if the contractor maximum historic delivery 16 does not match his contact requirements, the difference must 17 be the surplus. 18 The truth is that in many years the district has needed 19 and requested its full contract quantity, but Reclamation 20 has allocated us less. The district could, within the 21 current place of use delineated in the Draft EIR, put to 22 beneficial use its full CVP contract quantity. The 23 assumption of surplus use for development in so-called 24 expansion areas is not correct. 25 It is not my intent to go over again the various points CAPITOL REPORTERS (916) 923-5447 13111 1 made in the district's comments on the Draft EIR. However, 2 I do wish to reiterate that the delivery of CVP water 3 throughout Santa Clara County has already been the subject 4 of extensive environmental analysis. Specifically, because 5 CVP water is supplied to the district through the San Felipe 6 distribution system, it was the subject of a lengthy and 7 comprehensive environmental report completed for the San 8 Felipe Project in March of 1976. 9 The San Felipe EIR considered the direct impacts 10 associated with construction, operation and maintenance of 11 project facilities as well as indirect impacts resulting 12 from the growth associated with the project, given greater 13 emphasis to indirect impacts. Its evaluation of potential 14 impacts included an assessment of the maximum economic 15 development that would be associated with the total amount 16 of CVP water made available by the completed project. 17 All of Santa Clara County, in other words the 18 district's full service area, was considered within the 19 potential impact area of the project. The district 20 questions the assumption of the present Draft EIR that 21 additional environmental review and implementation of State 22 Board approved mitigation requirements is warranted to 23 evaluate place of use consideration at a programmatic 24 level. 25 As Reclamation's witnesses have testified, there are CAPITOL REPORTERS (916) 923-5447 13112 1 existing programs being undertaken by Reclamation to 2 mitigate against environmental impacts associated with the 3 provision of CVP water within designated places of use. 4 To the extent that additional environmental review may be 5 required for specific projects in new developed areas, the 6 district believes such review should be the responsibility 7 of municipalities and other local planning agencies with 8 authority to approve projects on a site-specific basis. 9 In summary, Reclamation's petition to consolidate, 10 conform and expand the authorized place of use for CVP water 11 is consistent with the district's existing water contract 12 with Reclamation and historical water supply operations 13 within the district. It is also consistent with the 14 environmental analysis previously performed to support the 15 district's CVP water service contract in the delivery of CVP 16 water within our service area. 17 From the district's perspective, approval of the 18 petition is warranted if for no other reason than to 19 acknowledge the practical reality of the way in which 20 Reclamation operates the CVP, meets its contractual 21 obligations to its customers, including the district. 22 Lastly, I would like to make one correction in my 23 written testimony which we noticed after it was submitted. 24 On Page 2 there is a statement referring to the Bureau's 25 Application Number 5626, which includes Santa Clara as the CAPITOL REPORTERS (916) 923-5447 13113 1 party of the intended place of use. I believe that is in 2 error. Santa Clara is not included on the Application 3 Number 5626. I think we had intended to refer instead to 4 5628 or one of Trinity County's applications. We recognize 5 that Santa Clara is not currently in that place of use. 6 That concludes my testimony on behalf of Santa Clara 7 Valley Water District. 8 MR. HAROFF: And that concludes our direct examination. 9 C.O. STUBCHAER: Who wishes to cross-examine? 10 Mr. Atlas, Mr. Birmingham, Mr. Nomellini, Mr. Jackson, 11 Mr. Herrick. 12 Anyone else? 13 C.O. STUBCHAER: I will cut them for good luck. 14 The order will be Mr. Nomellini, Mr. Birmingham, Mr. 15 Atlas, Mr. Jackson, and Mr. Herrick. 16 Morning, Mr. Nomellini. 17 ---oOo--- 18 CROSS-EXAMINATION OF SANTA CLARA VALLEY WATER DISTRICT 19 BY CENTRAL DELTA PARTIES 20 BY MR. NOMELLINI 21 MR. NOMELLINI: Morning, Mr. Chairman and Members of 22 the Board. Dante John Nomellini for Central Delta Parties. 23 On Page 2 of your testimony you indicate that, at the 24 top of the page: 25 Conforming the authorized purposes of use in CAPITOL REPORTERS (916) 923-5447 13114 1 consolidating the authorized place of use 2 would acknowledge the reality of 3 circumstances under which the district both 4 receives and distributes its CVP water 5 supply. (Reading.) 6 Do you see that? 7 MS. MAHER: Yes. 8 MR. NOMELLINI: Do you agree that the district has been 9 delivering water provided by the CVP outside the permitted 10 place of use of the permits issued by the State Water 11 Resources Control Board? 12 MR. HAROFF: I object to that. That calls for a legal 13 conclusion. 14 But you can answer the question. 15 MS. MAHER: We have been delivering it in our service 16 area consistent with our contract. 17 MR. NOMELLINI: Does your service area extend beyond 18 the area shown in the State Water Resources Control Board 19 draft environmental document as being the permitted place of 20 use for CVP water in Santa Clara County? 21 MS. MAHER: It extends beyond the line delineated in 22 the Draft EIR. 23 MR. NOMELLINI: For how long has delivery taken place 24 by your district to areas beyond the line as shown on the 25 Draft Environmental Impact Report place of use map for Santa CAPITOL REPORTERS (916) 923-5447 13115 1 Clara Valley Water District? 2 MS. MAHER: I don't know the exact time. I would guess 3 it would be from the minute CVP water was delivered to the 4 county. 5 MR. NOMELLINI: Do you agree that the delivery of water 6 by Santa Clara Valley Water District is outside the 7 permitted purpose of use of CVP water delivered to Santa 8 Clara Valley Water District? 9 MS. MAHER: Could you restate that question, please? 10 MR. NOMELLINI: Yes. Changing from place of use, now, 11 to purpose of use, and I'll go back to it in a little more 12 detail later. But do you understand that there is a 13 designated purpose of use in the permits issued by the State 14 Water Resources Control Board to the Bureau of Reclamation 15 for the Central Valley Project? 16 MS. MAHER: Yes. 17 MR. NOMELLINI: And you have indicated in your 18 testimony that you believe Santa Clara County, at least in 19 part, is within Bureau's Application 5628; is that correct? 20 MS. MAHER: At least in part. 21 MR. NOMELLINI: Do you understand that there is a 22 designated purpose of use associated with the permit granted 23 on Application 5628? 24 MS. MAHER: Yes. 25 MR. NOMELLINI: Do you agree that Santa Clara Valley CAPITOL REPORTERS (916) 923-5447 13116 1 Water District has been delivering water to purposes not 2 included within the permit granted on Application 5628? 3 MR. BIRMINGHAM: Objection. Lacks foundation. There 4 has been no showing that Ms. Maher knows where the water 5 that is delivered to Santa Clara by the Bureau of 6 Reclamation comes from. There has been no testimony that 7 Santa Clara has received water appropriated under Permit 8 11967, which is based upon 5628. Until there has been a 9 showing, this question lacks foundation. 10 C.O. STUBCHAER: Mr. Nomellini. 11 MR. NOMELLINI: I don't think it lacks foundation. But 12 if you want, we can go through the purposes of use. That 13 may be -- why don't I just approach it in a different way. 14 C.O. STUBCHAER: Lay a foundation. 15 MR. NOMELLINI: And I think the foundation will fold 16 up. 17 MR. HAROFF: Mr. Stubchaer, I would also like to join 18 the objection. It does call for a legal conclusion on the 19 part of the witness and, arguably, those go beyond the scope 20 of her testimony which encompassed water supply and demand 21 within Santa Clara Valley Water District. 22 C.O. STUBCHAER: Regarding your last point, as we've 23 said repeatedly during these proceedings, we allow broad 24 latitude on cross-examination. On the first point, Mr. 25 Nomellini is going to start over and try to lay a CAPITOL REPORTERS (916) 923-5447 13117 1 foundation. 2 MR. HAROFF: I appreciate it, and I just wanted to 3 register the objection for the record. 4 MR. NOMELLINI: Just for the record, Joan Maher's 5 testimony, which I quoted, basically, says that they want 6 the request granted to conform the permits to what is in 7 reality their operations. And so I think it is very 8 relevant to her testimony in each one of these aspects. 9 What I intend to do is delve into what purposes the 10 water goes to and those kind of things to find out what is 11 going on there and whether or not those are changes that we 12 think are such that should be granted or not and whether or 13 not they contend they are within the scope of the permit. 14 Let's go to the Santa Clara Valley Water District 15 Exhibit 4. It's attached to your testimony. 16 Is it your contention that this application, attached 17 to Santa Clara Valley Water District Number 4, covers water 18 delivered to Santa Clara Valley Water District by the Bureau 19 of Reclamation? 20 MR. HAROFF: Objection. Calls for speculation. 21 C.O. STUBCHAER: The witness is not required to 22 speculate, but if she knows the answer she can answer. 23 MS. MAHER: I think the Bureau is the only who can 24 answer whether water has been delivered under this permit to 25 Santa Clara Valley. CAPITOL REPORTERS (916) 923-5447 13118 1 MR. NOMELLINI: Let's look at Santa Clara Valley Water 2 District Number 4 and particularly at Number 3, the use to 3 which the water is to be applied. 4 See that? 5 MS. MAHER: I see it. 6 MR. NOMELLINI: And that says irrigation and incidental 7 domestic, stock watering and recreational uses (see 8 supplement); is that correct? 9 MS. MAHER: Correct. 10 MR. TURNER: If I might, Mr. Stubchaer. This is -- I 11 want to make sure my record is clear. This is Application 12 5626, correct? 13 MR. NOMELLINI: Yes. 14 MR. TURNER: Which is the application number she 15 changed in her direct testimony to 5268, correct? 16 MR. NOMELLINI: I don't know that she changed this 17 application number. She changed the reference in her 18 testimony as to where they allege that Santa Clara County 19 was included in the application. The reference should be 20 5628. That is what my understanding was. 21 MR. TURNER: That is why I am questioning why we are 22 discussing this application at this stage? 23 MR. NOMELLINI: Well, because I want to deal with these 24 purposes of use, if that is permissible. 25 C.O. STUBCHAER: Do you know that the purposes of use CAPITOL REPORTERS (916) 923-5447 13119 1 are different than they are -- 2 MR. NOMELLINI: I was going to ask the witness that 3 question. 4 C.O. STUBCHAER: Could I ask -- I would like to ask a 5 question of the panel. Given the change in reference in 6 your testimony on Page 2, is this Exhibit 4 still 7 pertinent? 8 MS. MAHER: Not for purposes of my testimony, no. 9 C.O. STUBCHAER: It is part of the record. All right. 10 MR. NOMELLINI: I just want to go from these 11 designations to the following questions. 12 With regard to the delivery of water by Santa Clara 13 Valley Water District, does the district deliver water for 14 use in irrigation? 15 MS. MAHER: Yes. 16 MR. NOMELLINI: Does the district deliver water for 17 incidental domestic? 18 MS. MAHER: Yes. 19 MR. NOMELLINI: What do you consider to be incidental 20 domestic? 21 MR. HAROFF: I would object. That calls for a legal 22 conclusion. 23 But you can answer the question. 24 MS. MAHER: I don't absolutely know the answer to 25 that. I am assuming it would be domestic uses, perhaps not CAPITOL REPORTERS (916) 923-5447 13120 1 in the incorporated town or city. 2 MR. NOMELLINI: And would you consider that to include 3 industrial use? 4 MS. MAHER: In my opinion, no, but I don't know what 5 the law says about it. 6 MR. NOMELLINI: Does the district deliver water for 7 stock watering? 8 MS. MAHER: Some of our customers -- we are a wholesale 9 water agency. Some of our customers may use it for stock 10 watering through the retail water agencies. 11 MR. NOMELLINI: What about for recreational use? 12 MS. MAHER: District supplies are used for recreation. 13 MR. NOMELLINI: To your knowledge, has your district 14 made any attempt to monitor uses to see that they comply 15 with the limitations in the water right permits applicable 16 to the water being delivered to the Santa Clara Valley Water 17 District? 18 MS. MAHER: It is our understanding that the permits 19 cover the uses that our contract was intended to supply. 20 MR. NOMELLINI: Is that then that there is no such 21 monitoring? 22 MS. MAHER: Not specifically for the permits, no. 23 MR. NOMELLINI: Just for clarification, your testimony 24 is that Santa Clara Valley Water District has not monitored 25 the use of its water to see that there was compliance with CAPITOL REPORTERS (916) 923-5447 13121 1 permit limitations of the State Water Resources Control 2 Board that might apply to that water? 3 MS. MAHER: Regarding purposes of use, no. I would say 4 that we monitor things like beneficial use, yes. 5 MR. NOMELLINI: And how about place of use? 6 MS. MAHER: We always understood our entire service use 7 was in the place of use. 8 MR. NOMELLINI: Did you ever go back to check the water 9 rights permits that you believed to be the permits that 10 enabled the Bureau to deliver water to Santa Clara Valley 11 Water District? 12 MS. MAHER: I can only speak for myself. I became 13 aware of this some years ago when these proceedings 14 started. 15 MR. NOMELLINI: You have no knowledge of anybody else 16 in the district performing such a review? 17 MS. MAHER: No. 18 MR. NOMELLINI: Now, with regard to the contention that 19 Santa Clara Valley Water District is within the place of use 20 of a given permit of the State Water Resources Control 21 Board, is application 5628 and the permit that is relevant 22 to that application the only one that Santa Clara Valley 23 Water District claims applies to it? 24 MR. HAROFF: I would object. There is no testimony on 25 what permits or applications the district claims do apply to CAPITOL REPORTERS (916) 923-5447 13122 1 the district. 2 MR. NOMELLINI: Well, there is. 3 C.O. STUBCHAER: If the -- I am going to overrule the 4 objection. 5 MS. MAHER: So the question, again? 6 MR. NOMELLINI: If you know, is this the only 7 application, 5628, that Santa Clara Valley Water District 8 claims applies to water delivered to Santa Clara Valley 9 Water District? 10 MS. MAHER: No. 11 MR. NOMELLINI: What other applications does Santa 12 Clara Valley Water District claim apply to water delivered 13 to it? 14 MR. HAROFF: Same objection. 15 C.O. STUBCHAER: Mr. Nomellini, are you talking through 16 the CVP or from whatever source? 17 MR. NOMELLINI: I was asking the broader question, for 18 the state of knowledge. But if it's too broad, I will go 19 back to CVP. 20 C.O. STUBCHAER: Well, it is up to you. 21 MR. NOMELLINI: I would like to know what other 22 application numbers do you think apply to water served by 23 Santa Clara Valley Water District? 24 MR. BIRMINGHAM: I am going to object on the grounds of 25 relevance. I don't understand what relevance Santa Clara's CAPITOL REPORTERS (916) 923-5447 13123 1 contention as to what permits apply to its place of use has 2 to whether or not the Board should consolidate the place of 3 use and expand the places of use. 4 C.O. STUBCHAER: Mr. Nomellini. 5 MR. NOMELLINI: I think it is very relevant. First of 6 all, if they don't contend that any of these other 7 applications apply to it, then, from their standpoint there 8 is no necessity to throw these all together for their use 9 and purpose. 10 MR. BIRMINGHAM: The permits and their existing terms 11 and conditions speak for themselves. Ms. Maher, I don't 12 believe, has been offered as a witness to state Santa 13 Clara's position on every issue that might come before the 14 Board. Mr. Haroff can address it. If Mr. Nomellini wants 15 to ask these questions, I will simply ask on my 16 cross-examination: Ms. Maher, isn't it correct, and I will 17 walk her through each permit on Table 3-2 of the Draft EIR 18 and point out the permits that authorized the use of water 19 in Santa Clara County for domestic, municipal and industrial 20 and irrigation purposes. 21 C.O. STUBCHAER: Mr. Atlas. 22 MR. ATLAS: At the risk of confusing the Board as to my 23 allegiance, I have to join the objection. Maher testified 24 that Santa Clara Valley Water District acknowledges that it 25 is not included in the place of use of the Shasta permit. I CAPITOL REPORTERS (916) 923-5447 13124 1 am satisfied with that testimony. 2 C.O. STUBCHAER: Mr. Herrick. 3 MR. HERRICK: If one of the purposes of the petition is 4 to change the purposes of use of the various permits, it is 5 extremely relevant to find out what permits might be added 6 to the current ones that allow the deliveries to this 7 district. So, it is certainly relevant. 8 Mr. Birmingham's comment of marching through the 9 application numbers, that will be done by other 10 cross-examiners, regardless. 11 C.O. STUBCHAER: Is your objection based upon 12 deliveries from the CVP or from any source? 13 MR. HERRICK: I am not objecting. 14 C.O. STUBCHAER: I mean your comment, not objection. 15 MR. HERRICK: CVP. 16 MR. HAROFF: Mr. Stubchaer, without addressing the 17 relevance of this line of questions, I will point out again 18 that these questions are outside the scope of the testimony 19 that has been offered by Ms. Maher, which concerns water 20 supply demand deliveries within the Santa Clara Valley Water 21 District. She has not been offered as an expert or any 22 other kind of witness on analysis of permit terms and 23 conditions. 24 C.O. STUBCHAER: Mr. Herrick. 25 MR. HERRICK: I'm sorry, I don't mean to waste the CAPITOL REPORTERS (916) 923-5447 13125 1 Board's time. You can't say she is not offered for that 2 purpose when her testimony submitted eight months ago, or 3 whenever it was, lists an application number and language 4 from that application and says that authorizes us to do 5 something. The witness comes in here today and says, "I 6 didn't mean that; I meant some other one. I am not sure 7 which one." 8 You can't avoid the questions on that topic by last 9 minute correction. This is extremely relevant, and I, for 10 one, want to explore these avenues on my cross. 11 C.O. STUBCHAER: Time-out. 12 (Discussion held off the record.) 13 C.O. STUBCHAER: Back on the record. 14 The objection is overruled. 15 I remind the witness that the witness does not need to 16 speculate on knowledge that she does not have. 17 MR. NOMELLINI: Any other application numbers other 18 than 5628 that you understand that Santa Clara Valley Water 19 District claims to be covered under? 20 MS. MAHER: You are talking about CVP water rights 21 permits? 22 MR. NOMELLINI: I will qualify my question and narrow 23 it to CVP. 24 MS. MAHER: My understanding is we are covered under a 25 number of permits. I couldn't say which ones. CAPITOL REPORTERS (916) 923-5447 13126 1 MR. NOMELLINI: Why don't we follow Mr. Birmingham's 2 suggestion and go to Table I in the draft environmental 3 document, Pages A-24 and A-25. 4 MR. HAROFF: What pages? 5 MR. NOMELLINI: A-24 and A-25. 6 Do you have Table I in front of you? 7 MS. MAHER: Yes. 8 MR. NOMELLINI: Starting with Application 5626, does 9 Santa Clara Valley Water District claim coverage under 10 Application 5626? 11 MR. HAROFF: Objection as to what is being claimed or 12 not claimed. 13 MR. NOMELLINI: If you know. 14 MS. MAHER: The place of use is not listed here and, 15 you know, basically I am going by some pretty sketchy 16 information on maps in this document. You know, I can't 17 look at this table and give you the answers that you are 18 looking for. 19 MR. NOMELLINI: You had indicated in your testimony by 20 way of the correction that 5628 was, in fact, one of the 21 applications that included Santa Clara County. 22 Is that correct? 23 MS. MAHER: Right. And I was basing that, I think, on 24 there was an earlier Table 3-2, I think it is. 25 MR. HAROFF: That is on Page 3-7 of the EIR. CAPITOL REPORTERS (916) 923-5447 13127 1 MR. NOMELLINI: Calling your attention to Table 3-2 on 2 Page 3-7 of the Draft EIR, is that the table to which you 3 just made reference in your testimony? 4 MR. HAROFF: Mr. Stubchaer, I would like to register 5 one objection. There is no evidence in the record that Ms. 6 Maher participated in the preparation of this document or 7 the table or is capable of doing anything other than reading 8 what is prepared in this table. But she is free to answer 9 the questions based upon her reading of this document. 10 C.O. STUBCHAER: Your objection is in the record. 11 MS. MAHER: I'd guess I would also like to add that 12 what I was referring to, for purposes of my testimony, 13 Figure 2-1, which shows Trinity place of use Application 14 5628 and shows the shaded area for Santa Clara County. 15 Unfortunately, the maps in this document -- 16 MR. NOMELLINI: What is that map, again? 17 MS. MAHER: That was Figure 2-1. It comes right after 18 Page 2-4. 19 MR. NOMELLINI: With regard to that map, you indicated 20 a shaded area covering Santa Clara County? 21 MS. MAHER: That is the way it shows on my copy, 22 anyway. 23 MR. HAROFF: Again, I object, just for the record, 24 questions about this map. There is no testimony that Ms. 25 Maher participated in the preparation of this map and can do CAPITOL REPORTERS (916) 923-5447 13128 1 anything other than comment on what she can see based on the 2 document right in front of her. 3 C.O. STUBCHAER: Objection noted. 4 MR. NOMELLINI: Do you contend that the shaded area on 5 Figure 2-1 includes all of Santa Clara County? 6 MS. MAHER: It includes a portion of Santa Clara 7 County. 8 MR. NOMELLINI: Then it does not include all of Santa 9 Clara County? 10 MS. MAHER: That's right. 11 MR. NOMELLINI: Do you -- first of all, going back a 12 minute. Is your attorney's statement reflective of your 13 testimony that your knowledge of the inclusion of Santa 14 Clara County other than this map with regard to the table, I 15 believe it was, 3-2 is simply you can read what is on the 16 table, you have no independent knowledge of the content? 17 MS. MAHER: No. 18 MR. NOMELLINI: Going to your map, Figure 2-1, do you 19 contend, does the district contend that an error was made in 20 the mapping, such that the entirety of Santa Clara County 21 was not included in the map? 22 MS. MAHER: We believe it should have been included in 23 on the map. 24 C.O. STUBCHAER: I couldn't hear your last word. 25 MS. MAHER: We believed that the entire service area of CAPITOL REPORTERS (916) 923-5447 13129 1 Santa Clara County should have been on this map. 2 MR. NOMELLINI: Do you claim that it was left off due 3 to error in mapping? 4 MR. HAROFF: Objection. That calls for speculation on 5 the part of the witness. She did not participate in the 6 preparation of this map. 7 C.O. STUBCHAER: If she knows. 8 MS. MAHER: I do not know how it came to be drawn in 9 this fashion. 10 MR. NOMELLINI: I was asking about the contention of 11 the district. Do they contend that there was an error made 12 in the mapping? 13 MR. HAROFF: Same objection. 14 MS. MAHER: To the extent that is not consistent with 15 our service area. 16 MR. NOMELLINI: Do you know what the service area of 17 the district was at the time of the application filing with 18 the State Water Resources Control Board on Application 19 5628? 20 MS. MAHER: When was it filed? 21 MR. NOMELLINI: I don't know. You have to answer the 22 questions. 23 C.O. STUBCHAER: You don't get to ask. 24 MR. HAROFF: I'd object to this question, Mr. 25 Stubchaer. CAPITOL REPORTERS (916) 923-5447 13130 1 MR. NOMELLINI: That's great, you're going to protect 2 me from her questions. 3 Do you know that the Santa Clara Valley Water District 4 boundary has changed? 5 MS. MAHER: It has always been contiguous with the 6 county boundary. 7 MR. NOMELLINI: As far as you know, right from its 8 inception? 9 MS. MAHER: In the state legislation that created the 10 district. 11 MR. NOMELLINI: Do you know of any other basis why the 12 Bureau would have restricted the area in the mapping of the 13 service for Santa Clara Valley Water District? 14 MR. HAROFF: Again, Mr. Stubchaer, all these questions 15 call for Ms. Maher to speculate what went on in the minds of 16 the Bureau employees who prepared this map. 17 MR. TURNER: I would just add that there is nothing to 18 establish it was the Bureau that, in fact, prepared the 19 mapping. MR. HAROFF: Even better. 20 C.O. STUBCHAER: If you don't know the answer, say so. 21 You don't need to speculate. 22 MS. MAHER: I would only be able to speculate. 23 MR. NOMELLINI: Do you have any familiarity with the 24 reclamation law? 25 MS. MAHER: Some, general. CAPITOL REPORTERS (916) 923-5447 13131 1 MR. NOMELLINI: Ever heard of the excess land law 2 provision? 3 MS. MAHER: I've heard of the title of it. 4 MR. NOMELLINI: Do you know whether or not excess land 5 laws had any application to the contract between the Santa 6 Clara Valley Water District and the Bureau of Reclamation? 7 MS. MAHER: We do acreage limitation reporting within 8 the district, in the service area. 9 MR. NOMELLINI: Do you know whether or not land 10 classification as to its suitability for irrigation is 11 relevant to the service of water provided by the Bureau of 12 Reclamation? 13 MS. MAHER: I don't have any real knowledge of land 14 classifications in relation to the delivery of water. 15 MR. NOMELLINI: Attached to your testimony is a copy of 16 a contract between Santa Clara Valley Water District and the 17 Bureau of Reclamation, your Exhibit Number 3. 18 Are you familiar with that contract? 19 MS. MAHER: Yes. 20 MR. NOMELLINI: Now, with regard to the contract, are 21 there provisions with regard to shortage allocations? 22 MS. MAHER: There is a provision on water shortage in 23 apportionment. 24 MR. NOMELLINI: Is that on Page 11? 25 MS. MAHER: Yes. CAPITOL REPORTERS (916) 923-5447 13132 1 MR. NOMELLINI: Is it your understanding that the 2 shortage allocated to municipal and industrial uses are 3 supposed to be or is supposed to be the same percentage as 4 the shortage allocated to irrigation? 5 MS. MAHER: No. 6 MR. NOMELLINI: In the bottom -- on the bottom of Page 7 11, Lines 22 through 25, could you read that into the 8 record, please? 9 MS. MAHER: In the event reduced deliveries within 10 the division are necessary, the water supplies 11 for both M&I and agricultural use shall be 12 reduced by the same percentage for each 13 contractor. (Reading.) 14 MR. NOMELLINI: What is your understanding of the 15 meaning of that sentence? 16 MS. MAHER: What it means with the San Felipe division 17 there are two contractors at this time. That Santa Clara 18 will not get a different M&I allocation than San Benito 19 County nor will we get a different allocation of ag water 20 than San Benito County. So, we will have the same M&I 21 allocation and the same agricultural allocation for each 22 contractor. 23 MR. NOMELLINI: The M&I and the ag could be different 24 percentage reductions? 25 MS. MAHER: Could be different. CAPITOL REPORTERS (916) 923-5447 13133 1 MR. NOMELLINI: Do you contend there will be no 2 difference in the delivery of water to Santa Clara Valley 3 Water District by reason of the granting of the petition for 4 consolidation of the places of use and purposes of use of 5 the CVP permits? 6 MS. MAHER: Yes. 7 MR. NOMELLINI: That is regardless of whether or not 8 Santa Clara Valley is included in the various places of use 9 of the different permits? 10 MR. BIRMINGHAM: Objection. Argumentative. 11 C.O. STUBCHAER: Overruled. 12 MS. MAHER: I think it is the same. 13 MR. NOMELLINI: Now do you agree with the statement by 14 your attorney that delivery of water throughout the service 15 area. The Santa Clara Valley Water District, is permitted 16 without restriction? 17 MS. MAHER: Yes. 18 MR. NOMELLINI: And that means water right permit 19 restrictions have no application; is that correct? 20 MR. HAROFF: I would object to these questions. It 21 calls for a legal conclusion as to what the water rights 22 permits held by the Bureau do or do not provide. This 23 witness has been brought up here to testify as to CVP 24 deliveries under the CVP contract with the Bureau and water 25 supply and demand within the district. This calls for a CAPITOL REPORTERS (916) 923-5447 13134 1 legal conclusion that is outside the scope of this witness' 2 expertise and testimony. 3 C.O. STUBCHAER: To the extent the witness can answer, 4 I will permit her to answer. 5 MS. MAHER: What was that question? 6 MR. NOMELLINI: Is it your testimony that restrictions 7 in water right permits issued by the State Water Resources 8 Control Board do not restrict the water use within the 9 service area of the Santa Clara Valley Water District? 10 MS. MAHER: Any restrictions or current restrictions? 11 MR. NOMELLINI: Any restrictions from the State Water 12 Resources Control Board. 13 MS. MAHER: Well, potentially, you know, in some 14 hypothetical cases they could, I suppose. 15 MR. NOMELLINI: Then you do not agree with the 16 statement of your attorney? 17 MR. HAROFF: Object to that as mischaracterizes her 18 testimony. 19 MS. MAHER: You are going to have to -- 20 MR. NOMELLINI: In terms of restrictions on deliveries 21 throughout the service area of the Santa Clara Valley Water 22 District you would agree, then, there could be some State 23 Water Resources Control Board water right permit 24 restrictions that would restrict the use? 25 MR. HAROFF: Objection. Calls for speculation. CAPITOL REPORTERS (916) 923-5447 13135 1 But you can answer the question. 2 MS. MAHER: I can only imagine that the State Board 3 could put permit conditions that would restrict the use. 4 MR. NOMELLINI: Such permit conditions could include 5 place of use, could they not? 6 MR. HAROFF: Same objection. 7 MS. MAHER: I suppose they could. I have no real 8 knowledge. 9 MR. NOMELLINI: And your answer would be the same, 10 would it not, for purpose of use? 11 MS. MAHER: Yes. 12 MR. NOMELLINI: Would it be the same with regard to the 13 quantity of water permitted to be diverted? 14 MR. HAROFF: Same objection. 15 C.O. STUBCHAER: It's noted. 16 MS. MAHER: My understanding is really the permits are 17 with the Bureau of Reclamation for their project supply. 18 The amount of water that Santa Clara gets is a function of 19 our contract with the Bureau of Reclamation, you know, there 20 are things between the permits and the quantities of water. 21 MR. NOMELLINI: So, if the Bureau was restricted, Santa 22 Clara Valley Water District in turn would be restricted? 23 MS. MAHER: I think I just said that is not a direct 24 connection. 25 MR. NOMELLINI: So even with the Bureau of Reclamation CAPITOL REPORTERS (916) 923-5447 13136 1 was restricted, it is your testimony that Santa Clara Valley 2 Water District would not be restricted? 3 MR. HAROFF: The witness has already answered this 4 question, I think, at least once and maybe twice. 5 MR. NOMELLINI: I don't think once. This is a 6 different form of the question. 7 MR. HAROFF: Once is enough, Mr. Nomellini. 8 C.O. STUBCHAER: Sustain that objection. 9 MR. NOMELLINI: Is it Santa Clara Valley Water 10 District's contention that adding 565,319 acres to its place 11 of use will not increase its need for water? 12 MS. MAHER: That's true. 13 MR. NOMELLINI: You also testified, did you not, that 14 in dry years 90 percent of your supply comes from the Bureau 15 of Reclamation? 16 MS. MAHER: No. I said from imported water sources. 17 MR. NOMELLINI: How much additional water does Santa 18 Clara Valley Water District anticipate importing in order to 19 serve the 565,319 additional acres? 20 MS. MAHER: We have done water supply studies based our 21 entire service area. We don't distinguish between those 22 565,000 from the rest of our county. We have our existing 23 imported water contract with the CVP and State Water 24 Project. As I say, our integrated water resources plan 25 looks at our existing supplies, looks at your entire service CAPITOL REPORTERS (916) 923-5447 13137 1 area and comes up with a plan to meet the future needs out 2 to the year 2020. 3 MR. NOMELLINI: You have more than enough water, is 4 that your testimony? 5 MR. HAROFF: Objection. Mischaracterizes her 6 testimony. 7 C.O. STUBCHAER: Sustained. 8 MS. MAHER: At this point, our integrated water 9 resources plan, if you want me to describe it, the board 10 adopted that in December of 1996. We do have enough water 11 in average and wet years altogether. It is the dry years 12 that we are concerned about into the future. 13 We project by the year 2020 that we will have a 14 shortfall of approximately 100,000 acre-feet during a 15 critical dry period. And the plans that we have to meet 16 that future shortfall really rests on four components: 17 One is an increased demand of reduction measures. 18 Another is water recycling, water transfers and water 19 banking. I would say that water transfers, or additional 20 imported supplies, are the last and the smallest component 21 of that IWRP. 22 MR. NOMELLINI: Does the plan that you made reference 23 to provide for service of water to all of the lands within 24 Santa Clara County? 25 MS. MAHER: Yes. CAPITOL REPORTERS (916) 923-5447 13138 1 MR. NOMELLINI: And what percentage of the lands within 2 Santa Clara County are presently served water? 3 MS. MAHER: By our existing system? 4 MR. NOMELLINI: In any way. Wells -- 5 MS. MAHER: I don't think I can answer in any way. 6 MR. NOMELLINI: Let's start with your system. By your 7 existing system what percentage of the county is supplied 8 water by Santa Clara Valley Water District? 9 MS. MAHER: There are about 834,000 acres in the 10 county. I could only speculate the number of acres of 11 existing water use, but it would probably be half the 12 county, I would say. Much of the county is very rugged 13 terrain in the Diablo mountain range and the Santa Cruz 14 mountain range. It's difficult to say what water uses is 15 happening up there. 16 MR. NOMELLINI: In your plan, which provides for 17 service of water to all the lands within the county, how 18 many acre-feet per acre is planned to be provided to the 19 lands within, for example, the Santa Cruz Mountains? 20 MR. HAROFF: I'd object. That is overbroad and 21 speculative. 22 You can answer that question. 23 MS. MAHER: Let me just say that our integrated water 24 resources plan provides for meeting the needs of Santa Clara 25 County. It doesn't plan to distribute water throughout CAPITOL REPORTERS (916) 923-5447 13139 1 Santa Clara County. There is a difference. 2 MR. NOMELLINI: I understand the difference. I think 3 that is different than what your testimony was before, at 4 least as I understood it. I was trying to find out if you 5 were going to serve water to all of the lands. 6 MS. MAHER: No. We presently cannot serve water. I 7 would say our existing facilities are limited to supplying 8 water, say, beneath a certain elevation, 300 feet sea 9 level. We can only pump with existing facilities up to a 10 certain level, and that's it. 11 If any new facilities -- if the local land use planning 12 agencies decide that there is development that would occur 13 outside of that area, we would need additional, major 14 facilities. Those would be the subject of additional 15 environmental review and so on. 16 MR. NOMELLINI: With regard to the area that is planned 17 to be served, is that less than the entire area of the 18 county shown to be added to the consolidated place of use in 19 the draft EIS? 20 MS. MAHER: At this point, as I said, we have no 21 current plans to build facilities to serve the Diablo range 22 or the Santa Cruz Mountains or anything like that. 23 MR. NOMELLINI: Do you know whether or not Santa Clara 24 Valley Water District would be agreeable to limiting the 25 expansion of the place of use as shown on the maps of the CAPITOL REPORTERS (916) 923-5447 13140 1 draft EIS to the area intended to be served? 2 MR. HAROFF: I would object to that question. There is 3 no foundation that Ms. Maher has any capacity to testify as 4 to what the district is agreeable to doing in the future. 5 It is a matter of Board determination at the district level, 6 not for the determination of Ms. Maher. 7 C.O. STUBCHAER: Overrule the objection. The witness 8 can answer to the best of her ability. 9 MS. MAHER: I'm sorry, you are just going to have to 10 repeat the question. 11 MR. NOMELLINI: Do you know whether or not the Santa 12 Clara Valley Water District would be agreeable to limiting 13 the expansion of the place of use to the area intended to be 14 served by the Santa Clara Valley Water District? 15 MS. MAHER: I would be speculating on our Board's 16 decision, of course. I think that it is our view that we 17 have always understood that our entire service area may be 18 served with CVP water, consistent with our State Water 19 Project supplies. We do have a blended system. I can't 20 emphasize enough the importance of the fact that the 21 district had set up its system and thousands of miles of 22 pipeline and treatment line to serve a blended supply. 23 Anything that would cause us to have to serve a separate 24 supply, a segregated supply to an area would be a tremendous 25 operational facility problem. CAPITOL REPORTERS (916) 923-5447 13141 1 MR. NOMELLINI: Thank you. 2 C.O. STUBCHAER: Mr. Nomellini. 3 Mr. Birmingham. 4 ---oOo--- 5 CROSS-EXAMINATION OF SANTA CLARA VALLEY WATER DISTRICT 6 BY WESTLANDS WATER DISTRICT 7 BY MR. BIRMINGHAM 8 MR. BIRMINGHAM: Good morning. I am Tom Birmingham. 9 I am an attorney that represents Westlands Water 10 District. I have some questions for you. 11 The contract that exists between the Bureau of 12 Reclamation and Santa Clara Valley Water District, Santa 13 Clara Valley Water District 3, does impose some limitations 14 on where water delivered under the contract can be used; 15 isn't that correct? 16 MS. MAHER: My understanding is it is within the 17 service area of the district. 18 MR. BIRMINGHAM: If we look at Article X of the 19 contract, Santa Clara Valley Water District Exhibit 3, which 20 is on Page 18 -- Page 17, I beg your pardon. Doesn't 21 Article X impose a limitation on where water can be 22 delivered under the contract? 23 MR. HAROFF: I just would object. I think the 24 document speaks for itself. I don't want to suggest that 25 she can't answer it to the extent that she can. CAPITOL REPORTERS (916) 923-5447 13142 1 C.O. STUBCHAER: Objection is noted. 2 MS. MAHER: The limitation would be referring to newly 3 irrigated lands. I could read it. 4 MR. BIRMINGHAM: Let me ask you a question. Isn't it 5 correct that under Article X there is a prohibition of 6 delivering water to newly irrigated lands if the crop being 7 grown on that land is a commodity that is in excess of a 8 supply that the Secretary of Agriculture has determined to 9 be in the public interest? 10 MR. HAROFF: If the questioner is asking her to read 11 the language of the document, she is free to do that. But I 12 don't know if she can comment beyond that. 13 MR. BIRMINGHAM: Well, let's look at Article XXIV of 14 the contract, Santa Clara Valley Water District Exhibit 3, 15 Article XXIV also imposes a limitation on where water can be 16 delivered under the contract; isn't that correct? 17 MS. MAHER: I believe this is the provision referring 18 to excess lands. 19 MR. BIRMINGHAM: Under the contract, Santa Clara Valley 20 Water District cannot deliver irrigation to excess lands 21 unless the landowner has executed what is referred to as a 22 recordable contract? 23 MR. HAROFF: Again, I'd object. The document speaks 24 for itself. If she has any independent knowledge going 25 beyond what the document says, she can comment. CAPITOL REPORTERS (916) 923-5447 13143 1 C.O. STUBCHAER: Objection is noted. 2 MS. MAHER: My understanding is simply what I read 3 here. 4 MR. BIRMINGHAM: Now, other than Article X and Article 5 XXIV, that speak for themselves, are you aware of any other 6 limitation in the contract, Exhibit 3, that restricts the 7 use of water by Santa Clara? 8 MS. MAHER: No. 9 MR. BIRMINGHAM: Has the Bureau of Reclamation, to your 10 knowledge, ever told Santa Clara Valley Water District that 11 CVP water could not be used throughout the district's 12 service area? 13 MS. MAHER: To my knowledge, no. 14 MR. BIRMINGHAM: Do you know when the contract was 15 being negotiated, Santa Clara Valley Water District Exhibit 16 3, when that contract was being negotiated, did the Bureau 17 of Reclamation inform the district's representatives that 18 water could only be used within a certain portion of the 19 district's service area? 20 MS. MAHER: To my knowledge, no. 21 MR. BIRMINGHAM: Does Santa Clara Valley Water District 22 have any regulations concerning the conservation of water? 23 MS. MAHER: We have a very active conservation 24 program. 25 MR. BIRMINGHAM: Mr. Nomellini asked you a question CAPITOL REPORTERS (916) 923-5447 13144 1 about monitoring the use of water. Does Santa Clara Valley 2 Water District monitor the use of water within its service 3 area? 4 MS. MAHER: Yes. 5 MR. BIRMINGHAM: Could you describe some of the 6 activities undertaken by Santa Clara to monitor the use of 7 water within its service area? 8 MS. MAHER: Basically everything is metered. And you 9 know, we are a wholesaler of water. We have 13 retail water 10 agencies and cities that we deliver treated water to. We 11 also operate a groundwater recharge program. And the 12 pumping from the groundwater basin is metered or measured, 13 and there is a pump tax on any water pumped out of the 14 ground. 15 At this point, as I said, in our integrated resources 16 planning demand reduction measures are a significant part of 17 our featured programs. Those activities range anywhere from 18 low-flow toilets and washing machine subsidies to landscape 19 audits and many other activities. 20 MR. BIRMINGHAM: You said a couple times that Santa 21 Clara has an integrated water resources plan? 22 MS. MAHER: Right. 23 MR. BIRMINGHAM: Santa Clara Valley Water District has 24 a number of sources of water? 25 MS. MAHER: That's right. CAPITOL REPORTERS (916) 923-5447 13145 1 MR. BIRMINGHAM: One is local groundwater? 2 MS. MAHER: Yes. 3 MR. BIRMINGHAM: Another is a contract with the State 4 of California for delivery of water from the State Water 5 Project? 6 MS. MAHER: Yes. 7 MR. BIRMINGHAM: The third is the contract the district 8 has with the Bureau of Reclamation for the delivery of CVP 9 water? 10 MS. MAHER: That is our other primary source. In 11 addition, the county receives supplies from the city and 12 county of San Francisco's Hetch-Hetchy project. Those 13 contracts are directed at some of our cities, Sunnyvale and 14 San Jose and Palo Alto and so on. 15 I think the significance there is that if those cities 16 did not receive those supplies, they would return to our 17 groundwater basin and our treated water system, and we would 18 have to supply them. 19 MR. BIRMINGHAM: Has Santa Clara Valley Water District 20 engaged in any planning activities concerning the future use 21 of or demand for water? 22 MS. MAHER: All the time. It is an ongoing process. 23 MR. BIRMINGHAM: Let's get down to the issue at hand. 24 Approximately how many acres of the district's service area 25 are within the existing place of use as depicted on the maps CAPITOL REPORTERS (916) 923-5447 13146 1 contained in the Draft EIR? 2 MS. MAHER: Well, it would be about -- I don't have the 3 exact number, but it would be about 834,000 minus 593,000. 4 MR. BIRMINGHAM: So, it would be approximately 230,000 5 acres? 6 MS. MAHER: Roughly. 7 MR. BIRMINGHAM: What is the population of the area 8 that is within the existing place of use? 9 MR. HAROFF: Could you define "place of use"? As 10 defined within the context of the maps in the EIR? 11 MR. BIRMINGHAM: Yes. When I say "place of use," 12 existing place of use, I am referring to the existing 13 permitted place of use that is -- 14 MS. MAHER: Is shown in the Draft EIR? 15 MR. BIRMINGHAM: Yes. 16 MS. MAHER: The only figures that I have are for our 17 total service area. They are in excess of 1.6 million 18 people. I could only speculate that a very large percentage 19 of them reside and work in the existing place of use. 20 MR. BIRMINGHAM: What are some of the industries that 21 exist within the exiting place of use as depicted on the 22 maps in the Draft EIR? 23 MS. MAHER: I think we have a full range of 24 industries. Primarily, our county is known for its 25 microcomputer and high technology industries, everything CAPITOL REPORTERS (916) 923-5447 13147 1 from, you know, aeronautical businesses and software 2 development, computer development, Hewlett Packard, IBM. 3 Most of the large, high-tech companies reside in Santa Clara 4 County. 5 MR. BIRMINGHAM: I am going to ask you to make an 6 assumption that the State Water Resources Control Board 7 denies the application to expand the permitted place of use 8 to include the entire service area of the district. If that 9 were to happen, could Santa Clara Valley Water District put 10 to beneficial use the water it is entitled to receive under 11 its contract with the Bureau of Reclamation within the 12 existing place of use? 13 MS. MAHER: Yes. 14 MR. BIRMINGHAM: What would the district have to do in 15 order to use the CVP water within the existing place of 16 use? 17 MS. MAHER: As I said before, well -- 18 MR. HAROFF: I would like to object. That is a little 19 vague, what would you have to do. 20 MR. BIRMINGHAM: I will withdraw the question. 21 You previously said that the district maintains a 22 blended supply system? 23 MS. MAHER: Right. 24 MR. BIRMINGHAM: What do you mean by a blended supply 25 system? CAPITOL REPORTERS (916) 923-5447 13148 1 MS. MAHER: It means that we have a network 2 distribution system such that we can use our CVP supplies 3 throughout our entire system or our state supplies or our 4 local supplies. The only difference is perhaps pumping 5 costs or some other operational consideration. For example 6 when water quality is bad on one system or good on another, 7 we will blend; you know, choose one supply to predominant. 8 I guess the importance of it, the reason why we went to 9 great expense and effort to set up an integrated system that 10 delivers a blended supply, one reason is that Santa Clara 11 County is surrounded underlain by hundreds of earthquake 12 faults. I would say Calaveras, San Andreas, Loma Prieta, 13 everything you can think of. 14 The county places a high value on no interruption in 15 service due to those hazards or any other hazards. So we 16 need to be able, for example, if in there is something that 17 disrupts our state supply, be able to take our CVP supply to 18 serve that area, or conversely if there is something that 19 disrupts San Felipe. 20 MR. BIRMINGHAM: In order to maintain an uninterrupted 21 service, does the district maintain local storage 22 facilities? 23 MS. MAHER: We have about nine local conservation 24 reservoirs, and these were designed in the 1950s. They were 25 not intended for year-to-year carryover. They do allow us CAPITOL REPORTERS (916) 923-5447 13149 1 to capture some amount of local runoff and use that. Our 2 main source of carryover storage is really the groundwater 3 basin itself. That is why we recharge the groundwater 4 basin. 5 MR. BIRMINGHAM: Going back to the question to which 6 Mr. Haroff objected, if the district were compelled to use 7 the CVP supply only within the existing place of use, would 8 the district have to undertake any construction activities? 9 MS. MAHER: I thought about that a lot and concluded 10 that if we needed today, that we would be restricted to the 11 line shown in the Draft EIR, we would have to begin 12 developing basically a duplicate system today. 13 It would disrupt virtually every street in Santa Clara 14 County because it is a matter not only of our distribution 15 system, but the distribution system of our 13 retailers as 16 well. So there would be, in my view, substantial 17 environmental economic impacts and major disruption if we 18 were to attempt to segregate our system to have greater 19 control over where CVP supplies were delivered. 20 MR. BIRMINGHAM: In the thinking that you have done 21 about this have you estimated potential cost associated with 22 having to build a duplicative system? 23 MS. MAHER: Given that it could lead to things like a 24 different treatment plant or who knows, I can only 25 speculate, it would be billions. CAPITOL REPORTERS (916) 923-5447 13150 1 MR. BIRMINGHAM: Billions? 2 MS. MAHER: Billions. 3 MR. HAROFF: That is billions. 4 C.O. STUBCHAER: With a "B" like Birmingham. 5 MR. BIRMINGHAM: Has the Santa Clara Valley Water 6 District undertaken efforts to limit its reliance on its CVP 7 supply? 8 MS. MAHER: Yes. As I said, we view the CVP supply as 9 one component of our water supply system. It's certainly 10 not the only one. We placed an importance on having a 11 variety of sources available to us. Is that -- 12 MR. BIRMINGHAM: My question: Has your Board of 13 Directors made a conscious decision to limit the district's 14 reliance on CVP supplies so that the existing CVP supply 15 would be available to other contractors? 16 MS. MAHER: Absolutely. In April of 1997 the 17 district's Board approved what is called a Water 18 Reallocation Agreement with the Bureau of Reclamation and 19 San Luis and Delta-Mendota Water Authority. The goal of 20 that agreement was to specify the terms and conditions of 21 the reliability of our CVP supplies. There is, of course, a 22 difference in reliability of M&I and ag supplies within the 23 CVP. 24 In order to deal with that difference in reliability 25 and try to mitigate or minimize the impacts of the CAPITOL REPORTERS (916) 923-5447 13151 1 reliability that M&I uses need from the CVP, we entered into 2 this water allocation agreement. It does three things. 3 One, it places an obligation on the district to use its 4 other sources of supply when they are available and places a 5 priority on that. It provides a mechanism, to the extent 6 that there is any unused CVP in Santa Clara, it provides a 7 mechanism for that unused supply to be reallocated to ag 8 contractors in the San Luis and Delta-Mendota Water 9 Authority. 10 Second thing it does is it provides that although our 11 entire contract 152,500 may convert for M&I use, a 12 substantial portion of it that is currently ag entitlement 13 will always have the reliability of ag entitlement. So, 14 22,500 of our ag entitlement will always be treated as ag 15 entitlement for the purpose of allocation, even though it is 16 used for M&I purposes. 17 The last thing it does is established that Santa 18 Clara's M&I water use, would share shortages equally with 19 ag, between 75 and 100 percent. We are not looking for any 20 preference when there are moderate shortages. What we are 21 concerned about are the very dry years when we absolutely 22 need the supply. 23 MR. BIRMINGHAM: If Santa Clara had not entered into 24 the reallocation agreement that you described with the San 25 Luis and Delta-Mendota Water Authority, would it have had CAPITOL REPORTERS (916) 923-5447 13152 1 incentive to build up its reliance on the CVP supply? 2 MS. MAHER: Yes. The Bureau's current policy for M&I 3 reliability does specify -- it provides 75 percent of the 4 historic use in a critical dry period. Therefore, in normal 5 years or wet years, we would have had an incentive to 6 maximize our CVP supply, maximize our CVP use, to make sure 7 that we had the dry year supply that we really care about. 8 We concluded that was not efficient water management, and 9 that is why we did the reallocation agreement. 10 C.O. STUBCHAER: Mr. Birmingham, how much more will you 11 have? 12 MR. BIRMINGHAM: Probably 15 minutes. 13 C.O. STUBCHAER: Let's take our morning break now. 14 (Break taken.) 15 C.O. STUBCHAER: Come back to order. 16 Resume cross-examination, Mr. Birmingham. 17 MR. BIRMINGHAM: Thank you. 18 Ms. Maher, before the recess I was asking you a number 19 of questions in response to which you described the 20 reallocation agreement between Santa Clara Valley Water 21 District, the Bureau of Reclamation and the San Luis and 22 Delta-Mendota Water Authority. 23 Did I understand that correctly, that the purpose of 24 that agreement was for Santa Clara to manage its alternate 25 water supplies in such a way as to maximize the amount of CAPITOL REPORTERS (916) 923-5447 13153 1 CVP water that can be made available to contractors south of 2 the Delta for agricultural purposes? 3 MS. MAHER: Yes. 4 MR. BIRMINGHAM: In the course of taking water from the 5 Bureau of Reclamation under the contract between the 6 district and the United States, Santa Clara Valley Water 7 District Exhibit 3, has the United States ever identified 8 the source of the water that is delivered to the district? 9 MS. MAHER: To my knowledge, it's simply project 10 supplies. 11 MR. BIRMINGHAM: So district personnel wouldn't know if 12 the water was being delivered from Trinity Reservoir or 13 Folsom Reservoir? 14 MS. MAHER: No. 15 MR. BIRMINGHAM: Or Shasta Reservoir? 16 MS. MAHER: No. 17 MR. BIRMINGHAM: Your testimony, Santa Clara Valley 18 Water District Exhibit 1, makes reference to an 19 Environmental Impact Report that was certified by a Santa 20 Clara Valley Water District Board of Directors; is that 21 correct? 22 MS. MAHER: Yes. 23 MR. BIRMINGHAM: What was the purpose of the 24 Environmental Impact Report that was -- first of all, what 25 is the exhibit number of that Environmental Impact Report? CAPITOL REPORTERS (916) 923-5447 13154 1 MR. HAROFF: It is Number 6. 2 MR. BIRMINGHAM: Thank you. 3 What was the purpose of the Environmental Impact Report 4 that has been marked for identification as Santa Clara 5 Valley Water District Exhibit 6? 6 MS. MAHER: It was to evaluate environmental impacts of 7 construction, the operation and maintenance of the San 8 Felipe division and use of CVP water in Santa Clara County 9 provided by the Central Valley Project. 10 MR. BIRMINGHAM: Was the Environmental Impact Report 11 initially prepared in a draft form? 12 MS. MAHER: That is my understanding. 13 MR. BIRMINGHAM: Was the Draft Environmental Impact 14 Report circulated for comment? 15 MS. MAHER: Yes. 16 MR. BIRMINGHAM: So, if agencies like the Department of 17 Fish and Game wanted to comment on the potential impacts of 18 serving project water within Santa Clara County, they would 19 have had that opportunity during the circulation of the 20 Draft Environmental Impact Report, marked for identification 21 as Santa Clara Valley Water District Exhibit 6? 22 MS. MAHER: Yes. 23 MR. BIRMINGHAM: To your knowledge, was there any 24 challenge to the adequacy of the Environmental Impact 25 Report, marked for identification as Santa Clara Valley CAPITOL REPORTERS (916) 923-5447 13155 1 Water District Exhibit 6? 2 MS. MAHER: I don't have any specific knowledge of 3 challenges that might have been made. 4 MR. BIRMINGHAM: I have no further questions. 5 C.O. STUBCHAER: Mr. Birmingham. 6 Mr. Atlas. 7 ---oOo--- 8 CROSS-EXAMINATION OF SANTA CLARA VALLEY WATER DISTRICT 9 BY TEHAMA-COLUSA CANAL AUTHORITY 10 BY MR. ATLAS 11 MR. ATLAS: Ms. Maher, I am Mark Atlas. As you know, 12 I represent the Tehama-Colusa Canal Authority. 13 Let me ask you first about the shortage provision in 14 Santa Clara's CVP contract, your Exhibit Number 3, the 15 provision is at Article VII of the contract. 16 Does that article provide for any maximum reduction or, 17 said another way, any minimum amount delivery that the 18 Bureau is required to make to Santa Clara in a year of 19 shortage? 20 MS. MAHER: This provision doesn't. 21 MR. ATLAS: Is there a contractual provision between 22 Santa Clara Valley Water District and the Bureau that places 23 any minimum delivery requirement or maximum shortage the 24 Bureau would deliver to Santa Clara? 25 MR. BIRMINGHAM: May I ask that that question be CAPITOL REPORTERS (916) 923-5447 13156 1 reread? 2 (Record read as requested.) 3 MR. BIRMINGHAM: May I ask for clarification? 4 MR. HAROFF: I would ask for clarification as well. 5 MR. BIRMINGHAM: Is Mr. Atlas referring only to the 6 water supply contract, Exhibit 3, or any contractual -- 7 C.O. STUBCHAER: Mr. Atlas -- 8 MR. ATLAS: That is a fair objection. Let me ask it a 9 different way. 10 Ms. Maher, you just said that as far as this contract, 11 Exhibit 3, is concerned there is nothing in it that relates 12 -- that limits the amount of shortage that the Bureau can 13 declare for Santa Clara Valley Water District. My next 14 question was and is: Are you aware of some other 15 contractual provision in any other form of agreement between 16 the district and the Bureau that limits the maximum amount 17 of shortage that the Bureau can declare for Santa Clara 18 Valley Water District? 19 MS. MAHER: I think Santa Clara is -- we do have the 20 water reallocation agreement that contains some terms and 21 conditions of shortage allocations. Notwithstanding that 22 agreement, my understanding is that we are still subject to 23 public health and safety levels with the last -- the project 24 supplies water and the state gets to a certain level and we 25 will be subject to those criteria. CAPITOL REPORTERS (916) 923-5447 13157 1 MR. ATLAS: There have, of course, been drought years 2 in the recent past in which the Bureau of Reclamation 3 declared shortages for Santa Clara Valley Water District; is 4 that right? 5 MS. MAHER: That's right. 6 MR. ATLAS: In some of those years did the Bureau of 7 Reclamation in effect execute a policy that Santa Clara 8 Valley Water District as an M&I contract would not be cut 9 any more than 25 percent of its contract supply? 10 MS. MAHER: Beginning in about 1995 the Bureau 11 developed a policy based on historic use. So it would -- in 12 general, the shortages would be 75 percent of historic use. 13 MR. ATLAS: In effect, then, they went beyond this 14 contract provision, Article VII of your water service 15 contract, and made a -- created a different shortage 16 criteria, if you will, 75 percent of the historic use rather 17 than this open-ended provision that is in your contract? 18 MS. MAHER: I think because the contract doesn't speak 19 to how shortages are to be allocated to M&I contractors, 20 their policy was an attempt to clarify that. 21 MR. ATLAS: This shortage provision that is in Santa 22 Clara Valley Water District's water service contract, to 23 your knowledge, is it similar to shortage provisions in ag 24 water service contracts in the San Luis Unit? 25 MR. HAROFF: Objection. There is no foundation she is CAPITOL REPORTERS (916) 923-5447 13158 1 familiar with such contract. 2 MR. ATLAS: The question was if she knows. 3 C.O. STUBCHAER: Yes, overruled. 4 MS. MAHER: I haven't really looked at those contracts 5 in detail. I can't recall. 6 MR. ATLAS: Is it your understanding that ag water 7 service contracts in the San Luis Unit contain no maximum 8 shortage provision? In other words, that the Bureau of 9 Reclamation, if necessary, can declare a 100 percent 10 shortage for an ag contractor? 11 MS. MAHER: That is my understanding, yes. 12 MR. ATLAS: In part, this water -- is it water 13 reallocation agreement? 14 MS. MAHER: Yes. 15 MR. ATLAS: In part one, of the provisions of it is 16 that, at least with respect to shortages, between 75 percent 17 and 100 percent or -- let me ask it differently. 18 With respect to shortages of up to 25 percent, what 19 Santa Clara Valley Water District agreed is that whatever 20 shortage the Bureau declares for ag contractors in the San 21 Luis Unit will be the same shortage that is declared for 22 Santa Clara Valley Water District? 23 MS. MAHER: Yes. 24 MR. ATLAS: But if the Bureau, for instance, determines 25 it must declare a 50-percent shortage for ag contractors in CAPITOL REPORTERS (916) 923-5447 13159 1 the San Luis Unit, then Santa Clara's maximum shortage would 2 be 25 percent? 3 MS. MAHER: Generally, yes. You have to say 25 percent 4 of what? 5 MR. ATLAS: Well, maybe you can tell me 25 percent of 6 what is your understanding? 7 MS. MAHER: The reallocation agreement, as I said, 8 having a policy based on historic use was problematic 9 because it provided an incentive for Santa Clara to maximize 10 historic use. The reallocation agreement shifted the 11 shortage from historic use to contract, of the contract 12 amount, so we didn't have that incentive to maximize our CVP 13 use in normal and wet years. 14 MR. ATLAS: Another of the provisions of this water 15 reallocation agreement dealt with converted M&I water. And 16 I think you said that there is about 22,500 acre-feet of 17 water that is the subject of that clause of the agreement; 18 is that right? 19 MS. MAHER: Yes. 20 MR. ATLAS: Let me ask this: You also testified, and I 21 couldn't write fast enough, what is the total water supply 22 under the contract, the CVP contract, for Santa Clara 23 Valley? 24 MS. MAHER: It's 152,500. 25 MR. ATLAS: Of that, then, 22,500 acre-feet has been CAPITOL REPORTERS (916) 923-5447 13160 1 identified as water that's been converted from ag to M&I 2 use? 3 MS. MAHER: No. The way it works is currently our ag 4 quantity is that 33,100 and our M&I quantity is 119,400. In 5 putting together the reallocation agreement, what we said 6 was, even though our contract does allow through the use of 7 our ag water for M&I purposes, does allow the conversion to 8 M&I, that we would not seek M&I reliability for any quantity 9 beyond 130,000. So, basically capped the M&I reliability 10 portion of our contract. 11 MR. ATLAS: You testified, I think, you said that you 12 recognized that, you being the district, you recognize that 13 the reliability of CVP M&I service is somewhat better than 14 the reliability of CVP ag service; is that a correct 15 statement? 16 MS. MAHER: That does not characterize the testimony 17 correctly. 18 C.O. STUBCHAER: Is that an objection or a comment? 19 MR. HAROFF: I object. My understanding is that that 20 does not characterize her testimony. 21 C.O. STUBCHAER: Overruled. 22 MS. MAHER: I can't recall what my exact words were 23 about it, but the Bureau's policies related to M&I shortage 24 versus ag have been different, yes. 25 MR. ATLAS: You have a copy of the Draft Environmental CAPITOL REPORTERS (916) 923-5447 13161 1 Impact Report for the consolidated place of use in front of 2 you? 3 MS. MAHER: Yes. This is -- 4 MR. ATLAS: This is Exhibit TCC 21. Ms. Maher, would 5 you compare that to the Shasta place of use map, Figure 2-2 6 in the Draft EIR? We recognize TCC Exhibit 21 as being a 7 photocopy, albeit having omitted inadvertently the 8 Arvin-Edison area, I was informed yesterday, of Figure 2-2? 9 MS. MAHER: Yes. 10 MR. ATLAS: Let me draw your attention -- this morning 11 you corrected your written statement to say that Santa Clara 12 Valley Water District recognizes that it is not included in 13 the place of use of the Shasta permits. 14 Is this map, Figure 2-2, and specifically the area of 15 Santa Clara Valley Water District that is shown as not being 16 in the Shasta place of use on this map, is this map 17 consistent with your statement this morning? 18 MS. MAHER: In fact, it is pretty much the basis for my 19 statement this morning. 20 MR. ATLAS: I have nothing further. 21 Thank you. 22 C.O. STUBCHAER: Mr. Atlas. 23 Mr. Jackson. 24 MR. HERRICK: He told me had to do something else. If 25 his turn came, it was okay to pass him by. CAPITOL REPORTERS (916) 923-5447 13162 1 C.O. STUBCHAER: All right. Mr. Herrick. 2 ---oOo--- 3 CROSS-EXAMINATION OF SANTA CLARA VALLEY WATER DISTRICT 4 BY SOUTH DELTA WATER AGENCY 5 BY MR. HERRICK 6 MR. HERRICK: Thank you, Mr. Chairman. John Herrick 7 for South Delta Water Agency. 8 Ms. Maher, I think I am going to mispronounce your last 9 name a couple times, so I apologize in advance. I will make 10 an effort here. 11 You do have a copy of the EIR in front of you; is that 12 correct? 13 MS. MAHER: Yes. 14 MR. HERRICK: Would you turn to Figures 2-1 through 15 2-5, please. 16 MS. MAHER: Okay. 17 MR. HERRICK: As other people have stated, Figure 2-1 18 purports to represent the current service area for the 19 Trinity applications or permits; is that correct? 20 MS. MAHER: Yes. 21 MR. HERRICK: According to the map, anyway, it appears 22 to include portions of Santa Clara Valley Water District; is 23 that correct? 24 MS. MAHER: As far as I can tell, yes. 25 MR. HERRICK: But part of that area does go beyond CAPITOL REPORTERS (916) 923-5447 13163 1 Santa Clara Valley Water District -- Santa Clara County, 2 doesn't it? 3 MS. MAHER: You mean part of Trinity place of use? 4 MR. HERRICK: Yes. 5 MS. MAHER: It includes other parts of the CVP. 6 MR. HERRICK: I am trying to refer to the part down 7 there that does include Santa Clara County. 8 Doesn't that part extend below the county line? 9 MS. MAHER: Yes. Into San Benito County. 10 MR. HERRICK: Is that part of your service district? 11 MS. MAHER: No. 12 MR. HERRICK: Are you -- is your district recommending 13 that that be included in any place of use for any permits 14 for parts outside of your county? 15 MS. MAHER: I think that is a question for the San 16 Benito County Water District. 17 MR. HERRICK: The next figure, Figure 2-2, purports to 18 be the place of use for various Shasta applications and 19 permits. Do you see that figure? 20 MS. MAHER: Yes. 21 MR. HERRICK: I believe as Mr. Atlas just went over, 22 the map doesn't show any portions of Santa Clara County 23 within those permitted places; is that correct? 24 MS. MAHER: Yes. 25 MR. HERRICK: The next map, Figure 2-3, is the Folsom CAPITOL REPORTERS (916) 923-5447 13164 1 place of use? 2 MS. MAHER: Yes. 3 MR. HERRICK: That appears to show -- would you agree 4 that appears to show that those applications or permits for 5 Folsom do include portions of the Santa Clara County; is 6 that correct? 7 MS. MAHER: Yes. 8 MR. HERRICK: Because of it, includes the county, it 9 includes portions of Santa Clara Valley Water District? 10 MS. MAHER: Right. 11 MR. HERRICK: The final one is Contra Costa, and we 12 don't have to look at that. 13 Now, if you will turn to that page in the addendum, 14 table in the addendum, Table 1 that Mr. Nomellini had for 15 you. 16 MR. HAROFF: Can you be more specific? What page? 17 MR. HERRICK: Table 1 on Page A4. 18 MS. MAHER: Page A4 or A-24? 19 MR. HERRICK: Table 1 on A4. 20 And just to save time, I will represent to you as part 21 of the addendum that is a table that was included in the 22 Bureau's 1985 petition or application to consolidate and 23 conform to place of use. 24 Pursuant to testimony by Bureau witnesses, the 25 applications and permits listed there are the same ones for CAPITOL REPORTERS (916) 923-5447 13165 1 the current petition except the ones for Stoney Creek and 2 the Stanislaus. 3 Anyway, as per your initial -- your direct testimony 4 this morning, you have now said Application 5626 is not what 5 you meant to reference in your written testimony; is that 6 correct? 7 MS. MAHER: I think that was not what we were aiming 8 for, no. 9 MR. HERRICK: If we just go down the line there on that 10 table, Application Number 5628 is the Trinity River system; 11 is that correct? 12 MR. HAROFF: I would just like to renew my objection in 13 connection with Mr. Nomellini's examination of this 14 witness. Ms. Maher has not participated in the preparation 15 of this document. She can read what it says. Beyond that, 16 she's not capable of testifying to its preparation or its 17 contents. 18 C.O. STUBCHAER: Your objection is noted. As we 19 previously said, the witness should not speculate. If she 20 knows the answer, she should answer. 21 MR. HERRICK: Just for everybody's understanding, these 22 are foundational. Each one of these will have a question 23 that deals with her testimony. 24 Application 5628 does include the Trinity River system, 25 would you agree? CAPITOL REPORTERS (916) 923-5447 13166 1 MS. MAHER: Appears to, yes. 2 MR. HERRICK: It shows a quantity for storage under 3 that application permit of approximately 1,500,000 4 acre-feet; is that correct? 5 MS. MAHER: Yes. 6 MR. HERRICK: The purposes of use include domestic, 7 irrigation, navigation, salinity control and flood control; 8 is that correct? 9 MS. MAHER: Yes. 10 MR. HERRICK: Those purposes do not include municipal 11 and industrial; is that correct? 12 MS. MAHER: That's right. 13 MR. HERRICK: Has your district done any analysis to 14 see whether or not after 1,540,000 acre-feet of water from 15 the Trinity River system is used for the allowed purposes 16 there was any water left over for municipal and industrial 17 purposes in Santa Clara? 18 MS. MAHER: No. 19 MR. HERRICK: The next one I want to refer you to is at 20 the bottom of Page A4, Application 13370, and that is the 21 American River-Folsom Dam. 22 Do you see that? 23 MS. MAHER: Yes. 24 MR. HERRICK: As you recall, when we looked at Figure 25 2-3, I believe, it had the Folsom place of use as including CAPITOL REPORTERS (916) 923-5447 13167 1 portions of Santa Clara County; is that correct? 2 MS. MAHER: Right. 3 MR. HERRICK: It was Figure 2-3. 4 Now, it is hard to see over there, but would you agree 5 that the purpose for that, the purpose under that 6 application for the American River-Folsom Dam, does not 7 include municipal and industrial? 8 MS. MAHER: It is kind of chopped off on the bottom of 9 my copy. I would guess it says something like flood control 10 at the very bottom. 11 MR. HERRICK: Mine, too. Whether there is something 12 hidden by that -- 13 MS. MAHER: I don't see M&I there. 14 MR. HERRICK: Has your district done any analysis to 15 see whether or not after 1,000,000 acre-feet of water from 16 the American River is applied to the allowed purposes there 17 is any water left over for municipal purposes in Santa Clara 18 County? 19 MS. MAHER: No. 20 MR. HERRICK: The next page, the first one is 21 Application 13371. 22 You see that? 23 MS. MAHER: Yes. 24 MR. HERRICK: Again, that is for the American River at 25 Folsom? CAPITOL REPORTERS (916) 923-5447 13168 1 MS. MAHER: Uh-huh. 2 MR. HERRICK: And the quantity is 300,000 acre-feet? 3 MS. MAHER: Yes. 4 MR. HERRICK: And the purpose is municipal, 5 industrial, domestic and recreation; is that correct? 6 MS. MAHER: Right. 7 MR. HERRICK: Again, has your district done any 8 analysis to see when or how often 300,000 acre-feet of water 9 is available from the American River CVP Project after the 10 prior applications or water has been allocated? 11 MS. MAHER: When you say "the prior allocation," I 12 don't understand it. 13 MR. HERRICK: I am referring to the previous 14 application number we've referenced, 13370. 15 MS. MAHER: I am just not aware there is a priority. 16 Looking -- my understanding of this chart just comes from 17 reading it. As it is, I don't understand the priority of 18 the million and 300,000. 19 MR. HERRICK: Has your district done any analysis to 20 see how much other competing municipal and industrial uses 21 exist for American River Project water? 22 MS. MAHER: We have not done an analysis. 23 MR. HERRICK: The next application I would like to 24 refer you to is 15374, which is two below the one we were 25 just talking about? CAPITOL REPORTERS (916) 923-5447 13169 1 MS. MAHER: Uh-huh. 2 MR. HERRICK: You see that includes the Trinity River? 3 MS. MAHER: Yes. 4 MR. HERRICK: The quantity is 200,000 acre-feet of 5 storage? 6 MS. MAHER: Yes. 7 MR. HERRICK: The purpose is municipal/industrial? 8 MS. MAHER: Yes. 9 MR. HERRICK: Has the district done any analysis to see 10 in what years that 200,000 acre-feet may be available for 11 municipal and industrial uses in Santa Clara County? 12 MS. MAHER: No. 13 MR. HERRICK: And at the bottom of that page, A5, is 14 Application 16767. 15 Do you see that? 16 MS. MAHER: Yes. 17 MR. HERRICK: Do you see that's for the Trinity River 18 system also? 19 MS. MAHER: Yes. 20 MR. HERRICK: Includes the Trinity River system. 21 And do you see the quantity of water, 700,000? 22 MS. MAHER: Yeah. 23 MR. HERRICK: Do you see the purposes do not include 24 municipal and industrial? 25 MS. MAHER: That's right. CAPITOL REPORTERS (916) 923-5447 13170 1 MR. HERRICK: On the next page, which is A6, the first 2 application number is 17374. 3 Do you see that? 4 MS. MAHER: Yes. 5 MR. HERRICK: Do you see that is also for the Trinity 6 River system? 7 MS. MAHER: Yes. 8 MR. HERRICK: Do you see that it doesn't have a storage 9 amount, but a direct diversion amount of 1,500 cfs? 10 MS. MAHER: Right. 11 MR. HERRICK: Do you see that that does allow municipal 12 and industrial purposes? 13 MS. MAHER: Yes. 14 MR. HERRICK: Has your district done any analysis to 15 see under what circumstances there was water available for 16 direct diversion under the Trinity system under that permit, 17 that application? 18 MS. MAHER: No. 19 MR. HERRICK: Ms. Maher, is the district's position 20 that the places of use should be consolidated under this 21 petition as well as purposes of use? 22 MS. MAHER: Yes. 23 MR. HERRICK: Now, let's assume a hypothetical, which 24 is the Bureau is operating according to its existing permits 25 and conditions so that the only M&I water it delivers to CAPITOL REPORTERS (916) 923-5447 13171 1 Santa Clara, the district, Santa Clara Valley Water 2 District, comes from either the Trinity system or the Folsom 3 Project. 4 Do you understand that hypothetical? 5 MS. MAHER: Yes. 6 MR. HERRICK: Do you have any -- does the district have 7 any information regarding under what conditions water would 8 be available to it for those M&I purposes? 9 MS. MAHER: I think that is a question the Bureau would 10 have to answer. 11 MR. HERRICK: Would you agree that under some 12 circumstances, under the hypothetical, depending on the 13 water year type, it might be a drought, that deliveries to 14 the listed places and purposes of use may be less than what 15 the contract amounts call for? 16 MR. HAROFF: Calls for speculation on the part of the 17 witness. 18 C.O. STUBCHAER: To the extent you can answer without 19 speculating. 20 MS. MAHER: Are you -- you are going to have to restate 21 the question. 22 MR. HERRICK: Let's just add another assumption. Let's 23 assume the Bureau were operating according to its permits 24 and conditions therein. We have a hydrological event that 25 decreases the amount of water available to it to divert and CAPITOL REPORTERS (916) 923-5447 13172 1 deliver under those permits to an amount less than the 2 people it has contracts with, the entities it has contracts 3 with. 4 Under that assumption, would you agree that the amount 5 of water delivered to Santa Clara Valley Water District 6 would be less than the full contract amount? 7 MR. BIRMINGHAM: Objection to the question on the 8 grounds it misstates the evidence. The assumption is that 9 the Bureau's only permitted to deliver water to Santa Clara 10 from the facilities on the Trinity River and the American 11 River. I am not sure that the -- in fact, I don't believe 12 that the evidence supports that assumption. 13 C.O. STUBCHAER: Was this a hypothetical? 14 MR. HERRICK: Most of the question was a hypothetical. 15 However, the DEIR lists the areas that have permitted places 16 of use. And if somebody wants to dispute that through 17 evidence, they certainly can. But I think it is fair to 18 assume that the DEIR designation of places of uses is 19 accurate. 20 C.O. STUBCHAER: Mr. Atlas. 21 MR. ATLAS: Mr. Herrick said it all. I don't think Mr. 22 Birmingham's objection misstates the evidence. He is 23 accurate. It is partially a hypothetical. It is based upon 24 what the Bureau of Reclamation, as the applicant, has told 25 us the current situation is. And what Santa Clara has, CAPITOL REPORTERS (916) 923-5447 13173 1 effectively, has admitted with respect to the Shasta place 2 of use. 3 C.O. STUBCHAER: Mr. Birmingham. 4 MR. BIRMINGHAM: If Mr. Herrick wants to ask his 5 question as a hypothetical, assuming the facts to be the 6 case, I have no objection. I will stand by my objection, 7 that I don't think that the facts, the evidence supports the 8 assumptions that he is asking the witness. 9 C.O. STUBCHAER: Mr. Herrick. 10 MR. HERRICK: I don't know how you can assert that the 11 DEIR doesn't support the question. That is what Figures 2-1 12 through 2-4 show. 13 C.O. STUBCHAER: I will overrule the objection. 14 MR. HAROFF: You want the question again? 15 MS. MAHER: You are going to have to say it one more 16 time. 17 MR. HERRICK: The initial assumption was that the 18 Bureau is operating according to its current permit terms 19 and conditions. And I said let's assume under certain 20 hydrological conditions the amount of water available for 21 the Bureau to divert, store and deliver to its contractors 22 is less than the contract amount that the contractors have. 23 That was the base case, I will say. 24 MS. MAHER: Right. 25 MR. HERRICK: In that base case, would you agree that CAPITOL REPORTERS (916) 923-5447 13174 1 deliveries to the contractors would be less than their 2 contract amount? 3 MS. MAHER: To the contractors as a whole? 4 MR. HERRICK: Yes. 5 MS. MAHER: If there is less water than normal, yes. 6 MR. HERRICK: I am not making any distinction between 7 those contractors. Now let's add to the hypothetical. 8 Let's assume a different system available to the Bureau, 9 different part of its project under different permits, has a 10 different hydrological setting that same year, so that it 11 has more water available. And under the consolidated and 12 conformed place of use that water is now available for 13 delivery to areas that were previously only able to get 14 water from the Trinity and the Folsom system. 15 Do you understand that? 16 MS. MAHER: I think I do. 17 MR. HERRICK: In that scenario wouldn't more water be 18 delivered to customers of the Trinity or Folsom Project than 19 in the absence of this petition being granted? 20 MR. HAROFF: Calls for the witness to speculate and to 21 circumstances under which the Bureau operates its 22 facilities, the witness is not qualified to testify to 23 that. 24 C.O. STUBCHAER: To the extent the witness can answer. 25 MS. MAHER: I guess I can't speak for what the Bureau CAPITOL REPORTERS (916) 923-5447 13175 1 does in that circumstance. Between the permits and the 2 contractors, there are contracts and policies of the 3 Bureau. So, if a change is made in the permit, I don't see 4 that automatically translates into the different water 5 supply situations. 6 MR. HERRICK: Does the district believe that the amount 7 of water available to it under its contracts will be a more 8 firm supply than with the petition being granted than 9 without? 10 MR. HAROFF: I think that question has previously been 11 asked, but if you can answer it. 12 MS. MAHER: I think that our -- I can't speak as to the 13 reliability of the supply. All I know is our current 14 experience with the contract and the supply. 15 As I said, there are, between the permit change and our 16 supply, there are contracts and Bureau policies. 17 MR. HERRICK: Again, let's assume that the Trinity 18 River and the Folsom system are the only two permitted 19 sources of water for M&I use in the Santa Clara County. 20 Okay? Wouldn't you agree that if we add the Shasta system 21 that increases the number of times that water, more water 22 would be available to Santa Clara? 23 MR. HAROFF: I would reiterate the same objection that 24 I made previously about the witness' expertise on matters 25 concerning the Bureau's operation. CAPITOL REPORTERS (916) 923-5447 13176 1 MR. HERRICK: This isn't a question about expertise in 2 Bureau operations. It is a fairly simple hypothetical, that 3 if you add one gigantic dam system to the available supply, 4 whether or not the district believes that will affect their 5 long-term supply. I think it is a very simple and clear 6 question; it has nothing to would with Bureau operations. 7 C.O. STUBCHAER: The witness may answer, again, to the 8 best of your knowledge. 9 MS. MAHER: You're asking me what I believe will 10 happen under that circumstance. To be honest, I don't 11 know. 12 MR. HERRICK: Ms. Maher, on Page 2 of your testimony, 13 which is Santa Clara Exhibit Number 1, and I don't mean to 14 be harping on the correction you made earlier, but in that 15 bottom paragraph you reference Application Number 5626, and 16 then you make a quote from what you say is the addendum to 17 that application. 18 Do you see that quote? 19 MS. MAHER: At the bottom of the page, yeah. 20 MR. HERRICK: Did you, in fact, take that quote from 21 the supplemental to the application or is that from the 22 supplement to a different application? 23 MS. MAHER: I can't recall. 24 MR. HERRICK: You did go to look at some application in 25 order to support your testimony; is that correct? CAPITOL REPORTERS (916) 923-5447 13177 1 MS. MAHER: Yes. 2 MR. HERRICK: And I notice that in your Exhibit Number 3 4, which is the application, the supplement is not 4 included? 5 MS. MAHER: That's right. 6 MR. HERRICK: Did you make a copy of the supplement 7 that you did look at? 8 MS. MAHER: Again, I can't speak as to why the 9 supplement was not included there or which supplement I was 10 actually looking at. I know we were looking at all the 11 applications, and we inadvertently put the wrong one. 12 MR. HERRICK: The quote that you used states: 13 The service areas of districts, 14 municipalities, water companies, corporations 15 and other legal entities within the gross 16 area, located within the gross area of the 17 place of potential use delineated on a 18 certain map. (Reading.) 19 Is that correct? 20 MS. MAHER: I think so. 21 MR. HERRICK: Your meaning of that -- you read that to 22 confirm that any portion of the Santa Clara Valley Water 23 District is currently within the place of use of the 24 Bureau's permits? 25 MR. HAROFF: I would object that the question calls for CAPITOL REPORTERS (916) 923-5447 13178 1 the witness to provide a legal conclusion in response. 2 MR. HERRICK: The witness offered this language in 3 support of a legal position. 4 C.O. STUBCHAER: Yes. 5 MR. HAROFF: The witness offered this language in 6 support of her testimony, not in support of any legal 7 argument. 8 MR. HERRICK: I will limit it, Mr. Chairman, to 9 whatever she means by definition of place of use, which is 10 why she offers this. If that is not legal, that is fine. 11 I am trying to explore what she is talking about. 12 C.O. STUBCHAER: All right. 13 MS. MAHER: We considered that the place of use was our 14 entire service area when we signed our contract. 15 MR. HERRICK: Well, is this quote offered as an example 16 of something that justifies the district's position when it 17 signed its contract in 1976? 18 MS. MAHER: When we signed our contract -- I am just 19 offering it as an explanation of what we may have believed 20 when we signed our contract that the service area was the 21 place of use. 22 MR. HERRICK: You read that language, and correct me if 23 I am wrong, to mean if any portion of the district is within 24 the gross area of potential use on the map, then it can be 25 delivered; is that correct? CAPITOL REPORTERS (916) 923-5447 13179 1 MS. MAHER: That's right. 2 MR. HERRICK: The exact language doesn't say "if any 3 portion"; is that correct? 4 MR. HAROFF: Again. I think the language -- I object 5 to this question. I think the language speaks to itself. 6 To the extent that the question goes beyond that, he is 7 requesting a legal conclusion as to the interpretation of 8 this legal document. 9 C.O. STUBCHAER: I will sustain that objection. 10 MR. HERRICK: On the next page of your testimony, Page 11 3 of the Santa Clara Valley Water District Number 1, excuse 12 me for being fast, Page 3 of her testimony. 13 Do you have that, Ms. Maher? 14 MS. MAHER: Yes. 15 MR. HERRICK: You state that in reference to Figures 16 2-1 through 2-5: 17 However, it is not possible to determine the 18 basis of the POU depicted in these maps from 19 any information provided in the DEIR. 20 (Reading.) 21 What do you mean when you say that it is not possible 22 to determine the basis? 23 MS. MAHER: Just that when, basically, in looking 24 through the Draft EIR, I can't really figure out how that 25 line came to be drawn for Santa Clara County or as a place CAPITOL REPORTERS (916) 923-5447 13180 1 of use in Santa Clara County. 2 MR. HERRICK: In your investigation I believe you said 3 you looked at various maps in the applications; is that 4 correct? 5 MS. MAHER: I looked at the Draft Environmental Impact 6 Report. These are the ones. 7 MR. HERRICK: It is your understanding that the maps 8 shown on Figures 2-1 through 2-5 were developed from the 9 original maps attached to the applications submitted by the 10 Bureau? 11 MS. MAHER: That is my understanding. 12 MR. HERRICK: Do you have any reason to believe that 13 the lines on Figures 2-1 through 2-5 are any different than 14 the original maps attached to the applications? 15 MS. MAHER: I just know the line is very imprecisely 16 drawn. I don't know how possible it is to match from one 17 map to another the accuracy of this line. 18 MR. HERRICK: Let's turn to Page 3-121 in the Draft 19 EIR, which is the map for Santa Clara Valley Water 20 District. 21 MR. HAROFF: What page? 22 MR. HERRICK: Page 3-121, the map. 23 MS. MAHER: Right. 24 MR. HERRICK: Without getting lost in a description of 25 that shape, the existing permitted place of use, according CAPITOL REPORTERS (916) 923-5447 13181 1 to this map, is an odd-shaped area. Would you agree? 2 MS. MAHER: Yes. 3 MR. HERRICK: It has sort of an enlarged area at the 4 top, and it narrows in the middle and then it enlarges at 5 the bottom? 6 MS. MAHER: Right. 7 MR. HERRICK: Again, I am not trying to make too fine a 8 point on this, is it your testimony that the people who drew 9 the original map for the Bureau's application mistakenly 10 made this odd-shaped form instead of drawing around the 11 county lines? 12 MS. MAHER: I don't know what was in the thinking of 13 the person who drew this line. I can speculate that 14 somebody said, "Well, generally where is the water going to 15 be used?" They generally drew this line in about 30 16 seconds, never thinking that it would be exclusionary or 17 inclusionary or that CAS or GIS systems would be invented 18 and this line would be digitized and attributed a level of 19 meaning and accuracy which it was never intended to have. 20 MR. HERRICK: When you say "never intended to have," 21 how do you know that the people who drew this funny-shaped 22 area didn't intend that shape? 23 MS. MAHER: I think if it was intended to be more of -- 24 have more meaning, I think they would have taken more time 25 with it. That is my personal speculation on it. CAPITOL REPORTERS (916) 923-5447 13182 1 MR. HERRICK: Were you here during the testimony of the 2 Arvin-Edison representative yesterday? 3 MS. MAHER: Yes. 4 MR. HERRICK: Do you recall him showing how the actual 5 county boundaries of his district were somewhat closely 6 followed to the line that was drawn for the place of use on 7 the applications? 8 MS. MAHER: Right. 9 MR. HERRICK: Is it your assertion that this map, 10 3-121, reflects that same sort of potential misdrawing that 11 the Arvin-Edison claimed? 12 MR. HAROFF: I think she's already testified to these 13 questions. She did not participate in the preparation of 14 this map. She has no -- she testified that she doesn't 15 have an understanding of how the maps were prepared. This 16 goes well beyond what she's testified. 17 C.O. STUBCHAER: Mr. Herrick. 18 MR. HERRICK: My comment to that is she just testified 19 that it wasn't the intent of people who drew this to limit 20 this in any way. 21 MR. HAROFF: She also testified that was personal 22 speculation. 23 C.O. STUBCHAER: Yes. She speculated; I wouldn't say 24 testified. 25 MR. HERRICK: So, is it your ruling she can speculate CAPITOL REPORTERS (916) 923-5447 13183 1 when she wants, but I can't ask her questions about her 2 speculation? 3 C.O. STUBCHAER: No, no, no. I just didn't want to 4 mischaracterize her speculation. 5 MR. HAROFF: Thank you, Mr. Stubchaer. 6 MR. HERRICK: Ms. Maher, you testified that in response 7 to a cross-examination question that the district's existing 8 facilities has some sort of a 300-foot elevation lift 9 limitation; is that correct? 10 MS. MAHER: I know that there is in our system only a 11 limited ability to pump water with existing facilities into 12 the more mountainous regions of the county. 13 MR. HERRICK: Do you know whether or not this 14 odd-shaped permitted place of use corresponds to any 15 particular elevations? 16 MS. MAHER: It does not. 17 MR. HERRICK: It does not correspond? 18 MS. MAHER: No. 19 C.O. STUBCHAER: Audible answer for the last 20 one. 21 MS. MAHER: It does not correspond to any given 22 elevation in the county, anything that I can think of at 23 this point. 24 MR. HERRICK: You will excuse my ignorance, the little 25 corridor there doesn't follow, what is that, 101? CAPITOL REPORTERS (916) 923-5447 13184 1 MS. MAHER: If there was a gross estimate of what this 2 is, it is roughly, you know, the valley floor; and 101 does 3 -- I can't say whether it actually goes through this narrow 4 portion or not. I don't think it does. But, basically, 5 this is some of the nonmountainous areas of the county. 6 MR. HERRICK: Without comparing this to any elevation 7 map, this could reflect some sort of elevation limitation? 8 MR. HAROFF: Objection. She's already testified that 9 it doesn't correspond to elevation. She's been asked this 10 question and she's answered it. 11 MS. MAHER: No. 12 MR. HERRICK: That was her first answer, and then she 13 said it appears that it could roughly reflect the lower 14 elevation. 15 MS. MAHER: I am talking about plus or minus a hundred 16 feet or something. You know, San Jose is maybe 98 feet 17 elevation. That is about it. 18 MR. HERRICK: At the time of the -- in answer to other 19 questions by a previous cross-examiner you stated that you 20 had some familiarity with reclamation law? 21 MS. MAHER: Some amount. 22 MR. HERRICK: For the next question or two I want you 23 to assume that reclamation law placed a limitation on the 24 Bureau under some circumstances that it could only supply 25 water to irrigable land. CAPITOL REPORTERS (916) 923-5447 13185 1 Do you understand that as a hypothetical? 2 MS. MAHER: Okay. 3 MR. HERRICK: According to reclamation law, I want you 4 to assume they define what irrigable land is. It is 5 supposed to be determined before the Bureau does anything. 6 Do you know whether or not this odd-shaped outline on 7 the map on Page 3-121 corresponds to any designation by the 8 Bureau of irrigable land on the date that the applications 9 were filed? 10 MS. MAHER: No, I don't. 11 MR. HERRICK: On Page 2 of your testimony, that bottom 12 paragraph before the quote, would you find that, please? 13 The first two sentences say: 14 I am aware of no statutory or regulatory 15 definition that limits "place of use" to any 16 particular geographic area. "Place of use" 17 for CVP water typically is described in 18 generic terms in the Bureau's various 19 applications to appropriate water. 20 (Reading.) 21 What do you mean when you say generic terms? 22 MS. MAHER: I think it basically goes on. I go on to 23 talk about how CVP water can be used within the service 24 areas of the district for which the Bureau contracts to 25 supply CVP water. That is what I mean by generic. CAPITOL REPORTERS (916) 923-5447 13186 1 MR. HERRICK: You said you examined various 2 applications of the Bureau that are part of this petition; 3 is that correct? 4 MS. MAHER: I remember looking at, certainly, 5626. 5 MR. HERRICK: On 5626, under Paragraph 11, it says, 6 under place of use, see supplement and map. Don't all of 7 the applications that you examined refer to a map for the 8 service area? 9 MS. MAHER: Right, and I do not recall seeing the maps 10 associated with these applications. 11 MR. HERRICK: When the application refers to a map that 12 had lines drawn on it, you take that to be, as you say, a 13 generic description of the place of use? 14 MR. HAROFF: I think she's already testified what she 15 means by "generic" in this context. I think that question 16 has already been answered. 17 MR. HERRICK: Mr. Chairman, for the generic part she 18 referenced the quote from some supplement to some 19 application that we don't know. But she also references the 20 maps. 21 I just wanted to see if there is any difference or 22 change in her description of what may or may not be 23 generic. 24 MR. HAROFF: I think that mischaracterizes her 25 testimony, Mr. Stubchaer. I think she was referring in CAPITOL REPORTERS (916) 923-5447 13187 1 describing what she meant by generic as service areas of the 2 districts identified in the applications. She wasn't 3 getting into maps. 4 C.O. STUBCHAER: In the context of the last question 5 Mr. Herrick asked, I will allow the question to be 6 answered. 7 MS. MAHER: So, if I understand your question, you are 8 trying to ask how did the maps fit in about the term 9 "generic"? 10 MR. HERRICK: Correct. 11 MS. MAHER: Is that roughly what it is? I couldn't 12 answer to that one. I was referring -- used the word 13 "generic" it was in reference to the service areas of the 14 districts. 15 MR. HERRICK: Your testimony says "place of use for CVP 16 water is typically in generic terms." You don't say the 17 service areas for the districts. 18 MS. MAHER: The place of use is described in generic 19 terms in terms of the service areas of the districts. 20 MR. HERRICK: Do you know whether or not the 21 applications, any other applications, dating around the same 22 time as we are talking about, do anything different with 23 regards to references to place of use? 24 MS. MAHER: I can't recall at this moment. 25 MR. HERRICK: Do you know whether or not any other CAPITOL REPORTERS (916) 923-5447 13188 1 applications around this same time also have maps attached? 2 MS. MAHER: My understanding is there are maps attached 3 to various permits and applications. 4 MR. HERRICK: Your testimony references -- this is 5 whining all the time; isn't it? 6 C.O. STUBCHAER: What? 7 MR. HERRICK: This mike gets feedback all the time. 8 Sorry about that. 9 Your Exhibit Number 6, which is the San Felipe water 10 distribution system, can you pull that out, please? 11 MS. MAHER: Okay. 12 MR. HERRICK: Now, please correct me if I misstate 13 this. You offer this in support of the position that the 14 use of CVP water on all Santa Clara Valley Water District 15 lands has been analyzed in what EIR? 16 MS. MAHER: In this EIR, yes. 17 MR. HERRICK: This EIR was done in 1976? 18 MS. MAHER: Yes. 19 MR. HERRICK: It analyzes impacts for three time 20 frames, 19- -- excuse me, why don't you turn to Page 3 of 21 that document, please. 22 And in the first paragraph it says: 23 Therefore, the presentation of impacts in the 24 EIR is divided into three time frames: 1975 25 to 1980, 1980 to 1985 and 1985 to the year CAPITOL REPORTERS (916) 923-5447 13189 1 2000. (Reading.) 2 Is that correct? 3 MS. MAHER: Right. 4 MR. HERRICK: Would you agree that this document does 5 not examine any impacts beyond the year 2000, that might 6 occur beyond the year 2000? 7 MS. MAHER: As is stated here, the year 2000 was 8 represented, what they called, maximum development or 9 growth. 10 MR. HERRICK: For the purposes of this study in '76? 11 MS. MAHER: Right. 12 MR. HERRICK: Of course, we are beyond that now. Are 13 there any projections for growth beyond 2000 that Santa 14 Clara Valley Water District has done? 15 MS. MAHER: We are looking at a range of demands 16 increasing potentially. Our integrated planning brackets 17 350,000 to 500,000 acre-feet of demand in the county in the 18 future. We are at about 400 right now. We did drop down to 19 300 during the drought. 20 MR. HERRICK: This document doesn't examine potential 21 effects from the delivery of water that occur in the year 22 2000 and beyond? 23 MR. HAROFF: That misrepresents her testimony. I 24 object. 25 MR. HERRICK: That is why I asked the question, Mr. CAPITOL REPORTERS (916) 923-5447 13190 1 Chairman. 2 C.O. STUBCHAER: Please answer. 3 MS. MAHER: You asked whether this document evaluates 4 impacts of CVP water delivered beyond the year 2000. Is 5 that your question? I believe that it does. 6 MR. HERRICK: What portion of it does that? 7 MS. MAHER: To the extent there is development in the 8 county supported by CVP water supply at this time and will 9 continue to be in the future, those impacts are addressed. 10 MR. HERRICK: The document also states it projects 11 there will be a decline in agriculture in the south county. 12 That is on Page 21. Do you agree with that? 13 MS. MAHER: Not necessarily. We are seeing -- I don't 14 know whether you are aware of the growth of vineyards and 15 things like that in the Bay Area. 16 MR. HERRICK: Does part of the county's long-term 17 planning for water supplies or does the county's long-term 18 planning anticipate decreased ag in the next 20 years in the 19 county? 20 MS. MAHER: No, not really. I think -- in our county 21 most of the agricultural water uses are in the south part of 22 the county and most of the urbanized area is in the north. 23 It's through our rate structure and so on we have basically 24 subsidized ag in our county in order to keep the open 25 space. There is nothing in our planning at this point that CAPITOL REPORTERS (916) 923-5447 13191 1 I know of that changes that policy. 2 MR. HERRICK: In response to questions I believe by Mr. 3 Atlas you confirmed that approximately 119,000 acre-feet of 4 water is used for M&I and 33,000 for ag, approximately 5 33,000? 6 MS. MAHER: Approximately, yes. 7 MR. HERRICK: Of that 33 approximately, I don't recall, 8 22,000 of the 33,000 is not under an M&I limitation 9 regarding the shortages? Did I say that right? 10 MS. MAHER: I think you said that a little bit in 11 reverse. Of the 33,100 of ag contract quantity 22,500 is 12 the subject of a water reallocation agreement with the 13 limitation on reliability in the future for that supply. 14 MR. HERRICK: Does that mean the remaining -- is it 10 15 5 or 11 of the ag? 16 MS. MAHER: Somewhere in there. 17 MR. HERRICK: That remaining ag water might be 18 converted to M&I use in the future? 19 MS. MAHER: It means that -- well, you have to 20 understand that all of the supply will probably, you know, 21 could conceivably revert to M&I use. That particular 22 10,000, I am trying to think of -- yes, I guess in answer to 23 your question what I could say is that we would expect that 24 as M&I use increased in the county, that that 10,000 would 25 eventually become treated as M&I contract quantity. CAPITOL REPORTERS (916) 923-5447 13192 1 MR. HERRICK: And that would be -- would then be -- 2 that 10,000 would then be, I will say, entitled to receive a 3 less decrease in times of shortages from the Bureau; is that 4 correct? 5 MS. MAHER: Potentially. 6 MR. HERRICK: That water is not receiving protections 7 from decreases at this time; is that correct? 8 MS. MAHER: That is correct. 9 MR. HERRICK: On Page 6 of that contract, of your 10 contract with the Bureau, has a table which shows the 11 deliveries, the schedule of deliveries? 12 MR. HAROFF: District Exhibit Number 4. 13 MR. HERRICK: Correct. Excuse me, Exhibit Number 3, 14 the contract. 15 MR. HAROFF: Yes. 16 MS. MAHER: Right. 17 MR. HERRICK: Where are we on this chart? 18 MS. MAHER: Year one of the contract was 1988, so we 19 are roughly -- 20 MR. HERRICK: Elevenish. 21 MS. MAHER: Elevenish. 22 MR. HERRICK: What I am trying to explore is your 23 disagreement with the Draft EIR's designation of your 24 county, your district as being one of the ones with surplus 25 water. Do you remember that? CAPITOL REPORTERS (916) 923-5447 13193 1 MS. MAHER: Right. 2 MR. HERRICK: Is that based -- do you know, if you 3 know, is the DEIR's conclusion based on the fact that the 4 district is not receiving all of the 152,000, whatever it 5 is, acre-feet which is the maximum of the contract? 6 MS. MAHER: It is to point out that certainly in dry 7 years we have requested our full 152,500. We haven't been 8 allocated that amount, but we have requested it. Our 9 situation is that we have local water available to us in 10 normal and wet years; and dry years that is supply, about a 11 hundred thousand or 150,000 is not there in our local 12 reservoirs. Those are the years when we rely most heavily 13 on our supported supply. Long-term average, we are fine, 14 but -- 15 MR. HERRICK: In the years that -- you said in drought 16 years you request your full allotment? 17 MS. MAHER: Yes. 18 MR. HERRICK: What do you request in nondrought years? 19 MS. MAHER: Depending on the condition of other 20 supplies, it can vary. But it goes up to 152,500. 21 MR. HERRICK: In what years do you not request all of 22 it? 23 MS. MAHER: If we have full state supplies, good 24 groundwater conditions or we have enough water to process 25 for groundwater recharge from our local reservoirs, we CAPITOL REPORTERS (916) 923-5447 13194 1 didn't need that water. We don't request it. 2 MR. HERRICK: Do you know why the district -- let me 3 start over. 4 If Santa Clara County has continued population growth 5 in water demand, wouldn't your district, at least under some 6 circumstances, request the full allotment more frequently? 7 MS. MAHER: That is -- as we approached the year 2020, 8 our planning horizon, that is quite possible that we will be 9 needing that more frequently if our population grows and our 10 water demand grows. 11 MR. HERRICK: Was your district aware of the Bureau's 12 1985 petition to consolidate and conform a place of use? 13 MS. MAHER: I believe we were. 14 MR. HERRICK: What, if anything, has your district done 15 with regards to this issue of potential permit violations 16 since 1985? 17 MR. HAROFF: I have to object to that. It assumes 18 that there are permit violations that have been responded 19 to. I don't think there is evidence in the record that 20 supports that. 21 MR. HERRICK: I thought I said -- I meant to say the 22 alleged permit violations. 23 C.O. STUBCHAER: With that. 24 MS. MAHER: I think we have basically done a review of, 25 a legal review and review of the relevant documents to CAPITOL REPORTERS (916) 923-5447 13195 1 determine whether we think the place of use is as is shown 2 in the Draft EIR or whether we think it is something more 3 consistent with our contract. 4 MR. HERRICK: If additional water became available 5 through the CVP, does your agency have a policy on whether 6 or not it would seek to acquire deliveries of that through 7 additional contracting? 8 MS. MAHER: As I stated, at this point our main concern 9 is our existing CVP contract. We don't have any plans or 10 any plans in our integrated water resources plan to throw 11 ourselves into the CVP in any way in the future, more than 12 we are right now. To the extent we have shortages in the 13 future, we expect those to be met by demand reduction, 14 recycling, water banking and water transfers. 15 MR. HERRICK: Wouldn't water banking include 16 potentially additional water supplies from the Bureau when 17 they're available? 18 MS. MAHER: In wet years, like this year, yes, we could 19 use part of our supply to bank. 20 MR. HERRICK: So if the -- are you familiar with the 21 prior phase we went through regarding the joint point of 22 diversion? 23 MS. MAHER: No. 24 MR. HERRICK: Let's say, hypothetically, that CVP is 25 granted a joint point power so that in certain wet years it CAPITOL REPORTERS (916) 923-5447 13196 1 can export more water. In those situations do you think 2 that your district might consider additional purchases in 3 order to do additional groundwater banking? 4 MR. HAROFF: I object. This calls for complete 5 speculation on the part of the witness as to what would 6 happen under those circumstances. 7 MR. HERRICK: I don't think it does. She just 8 testified that in wet years if there were more CVP supply 9 available, that might be available for groundwater banking. 10 I just hooked that up to another part of this phase. I 11 don't see how that changes or makes it speculative. 12 MR. HAROFF: I would view the prior question as 13 speculative, too. 14 MS. MAHER: I can't speak to what the Bureau intends to 15 do with any water it would acquire under the joint point of 16 diversion. The Bureau is the one that is going to have to 17 speak to that. 18 MR. HERRICK: I didn't ask you about what the Bureau 19 wanted. I asked you whether or not your district under 20 those circumstances would still want to potentially seek 21 additional water for things such as groundwater banking. 22 MS. MAHER: In years when we are allocated a supply, 23 like we have been the last year or two within our contract 24 quantity, we may take a portion of that supply and move it 25 to groundwater banking in preparation for a critical dry CAPITOL REPORTERS (916) 923-5447 13197 1 period. I think that is consistent with the kind of water 2 management that needs to be done in the state. 3 MR. HERRICK: Does your district have any position on 4 whether or not CVP exports from the Delta should be 5 conditioned upon the CVP mitigating any adverse effects that 6 result from those exports? 7 MS. MAHER: We don't have any official Board position 8 related to that aspect of this proceeding here. We are very 9 actively involved in the CalFed program and other programs 10 to restore the Delta and so on. If you're asking -- 11 MR. HERRICK: I won't go there. 12 MS. MAHER: If you are asking for a Board statement -- 13 MR. HERRICK: Thank you. 14 I have no further questions. 15 C.O. STUBCHAER: Staff have any questions of this 16 witness? 17 MS. LEIDIGH: No. 18 C.O. STUBCHAER: Mr. Brown. 19 C.O. BROWN: Thank you, Mr. Chairman. 20 ---oOo--- 21 CROSS-EXAMINATION OF SANTA CLARA VALLEY WATER DISTRICT 22 BY BOARD MEMBERS 23 C.O. BROWN: Have you seen any soil classification 24 study that might have been done by the Bureau of Reclamation 25 for the Santa Clara Valley? CAPITOL REPORTERS (916) 923-5447 13198 1 MS. MAHER: I have not seen one myself. I am assuming 2 that those kinds of studies would have been done at the time 3 the project was -- feasibility records were done for the 4 project. 5 C.O. BROWN: Are you familiar with those studies that 6 the federal government performs and what they are used for? 7 MS. MAHER: The soil classification studies? 8 C.O. BROWN: Right. 9 MS. MAHER: Not in any great detail, no. 10 C.O. BROWN: How much water on the average does the 11 district use in acre-feet? 12 MS. MAHER: The demands within the county right now are 13 at about 400,000 acre-feet. 14 C.O. BROWN: And up to 152,500 can be CVP water? 15 MS. MAHER: Yes. 16 C.O. BROWN: What are the other sources? 17 MS. MAHER: We obtain water from the State Water 18 Project. That contract amount is about a hundred thousand 19 acre-feet. A portion of demand in the county is met by the 20 city and county of San Francisco's Hetch-Hetchy system. 21 That is roughly 70,000, 75,000 acre-feet. And the remaining 22 part of the demand is met through locally conserved water 23 and natural groundwater recharge that occurs. 24 C.O. BROWN: You have four reservoirs? 25 MS. MAHER: I always forget the exact number. It is CAPITOL REPORTERS (916) 923-5447 13199 1 about ten, ten small reservoirs. The largest of them is 2 about 89,000 acre-feet. 3 C.O. BROWN: The average yield of those are? 4 MS. MAHER: About a hundred or 150,000. 5 C.O. BROWN: What about reclamation and reuse? 6 MS. MAHER: At this time -- look at my notes for a 7 second. My understanding is that recycling at this time is 8 about 7,000 acre-feet. Our integrated resources plan calls 9 for developing another 14- or 15,000 of nonpotable recycling 10 and potentially another 60,000 of indirect potable 11 recycling. That would be a phase further out. 12 C.O. BROWN: What happens to the treated water now from 13 your metropolitan districts? You are treating 7,000; does 14 it go down to Pajaro? 15 MS. MAHER: It's used within the county at this point. 16 C.O. BROWN: Your current usage is about 400,000 17 today. Do you have a master plan to protect future demand? 18 MS. MAHER: Yes. That is the integrated resources 19 water plan. 20 C.O. BROWN: How much is that? 21 MS. MAHER: It provides a range up to 500,000 acre-feet 22 within the county. 23 C.O. BROWN: So, you're looking for, on a long-term 24 average, another hundred thousand acre-feet? 25 MS. MAHER: We believe that our current supplies would CAPITOL REPORTERS (916) 923-5447 13200 1 be adequate on average for the future. It is really the 2 critical dry period where we have a shortfall of about a 3 hundred thousand acre-feet during the critical dry period. 4 C.O. BROWN: If you have 152,000 CVP and a hundred 5 thousand state water and 70,000 from San Francisco and 6 100,000 from local -- 7 MS. MAHER: It sounds like a lot of water when you look 8 at the contract, but when you add up the shortages, it is 9 not. I think that is what we are saying. 10 C.O. BROWN: It doesn't add up quite to 500,000. Where 11 is the difference coming from? 12 MS. MAHER: On long-term average it does meet our 2020 13 demand forecast. 14 C.O. BROWN: You have groundwater included in there, 15 then? 16 MS. MAHER: No. I think what is probably missing is 17 you have 150,000 or so from surface water reservoirs. There 18 is natural groundwater recharge that occurs; it is 19 unregulated recharge from the watersheds. 20 C.O. BROWN: You do use groundwater? 21 MS. MAHER: We do, yes. 22 C.O. BROWN: How much groundwater? 23 MS. MAHER: I can't tell you offhand the quantity of 24 pumping. We do have to be careful not to recount because a 25 great deal of surface supplies is recharged into the CAPITOL REPORTERS (916) 923-5447 13201 1 groundwater basin and pumped out. When people try to add 2 your local surface water and your groundwater pumping, they 3 are going to double count by about a hundred thousand feet. 4 C.O. BROWN: Do you have wells? 5 MS. MAHER: The district does not have wells, but 6 retail water agencies and ag pumpers have wells. 7 C.O. BROWN: Do you have an estimate of what the total 8 yield might be from the groundwater basin? 9 MS. MAHER: Not an estimate of the yield. We think we 10 have an operable storage amount of about 400,000 acre-feet 11 there when the basin is in good condition like it is at the 12 moment. 13 One of the reasons the district was formed is to 14 prevent the reoccurrence of subsidence, before state water 15 was imported, downtown San Jose subsided about 12 feet. The 16 only -- what halted that was that we were beginning to 17 import water. During the most recent drought we saw returns 18 to our compaction wells, when we monitored. We were at one 19 point headed in that direction again. So the district does 20 operate a very aggressive groundwater management program to 21 prevent that. 22 C.O. BROWN: That is all I have, Mr. Chairman. 23 Thank you. 24 C.O. STUBCHAER: That concludes cross-examination. Are 25 you going to have any redirect, Mr. Haroff? CAPITOL REPORTERS (916) 923-5447 13202 1 MR. HAROFF: No, Mr. Stubchaer. I have no redirect. 2 We would like to request the acceptance of Santa Clara 3 Valley Water District Exhibits 1 through 6 into the record. 4 C.O. STUBCHAER: One through six. That numbering check 5 with staff numbers? 6 MR. CORNELIUS: Yes. 7 C.O. STUBCHAER: Any objections to the receipt of 8 these exhibits into the record? 9 Seeing none, they are accepted. 10 Thank you for your participation. 11 MR. HAROFF: Thank you very much. 12 C.O. STUBCHAER: Mr. Birmingham. 13 MR. BIRMINGHAM: On a scheduling issue, Mr. Stubchaer, 14 a number of the attorneys that are representing parties in 15 this proceeding have a conference call with Judge Oliver 16 Wanger to discuss potential injunctive relief against the 17 United States in connection with some litigation that is 18 pending in his court that is starting at 1:00. 19 I wonder if it wouldn't be too much of an inconvenience 20 for the Board or any of the parties if we could take our 21 lunch recess from 12:30 to 1:30. I have spoken to Mr. Keene 22 and he said he could put on his direct evidence during the 23 12:00 to 12:30 period. 24 C.O. STUBCHAER: I will have to check with my stomach. 25 MR. BIRMINGHAM: There are lot of people who, I am CAPITOL REPORTERS (916) 923-5447 13203 1 sure, feel the same way. 2 C.O. STUBCHAER: Any objections to doing that? I think 3 it is a good idea. 4 MR. BIRMINGHAM: Thank you and thank the Board. 5 C.O. STUBCHAER: Mr. Keene. Next will be the case in 6 chief of the San Luis Water District. 7 (Reporter changes paper.) 8 C.O. STUBCHAER: Good afternoon and good afternoon to 9 witnesses. 10 ---oOo--- 11 DIRECT EXAMINATION OF SAN LUIS WATER DISTRICT 12 BY MR. KEENE 13 MR. KEENE: The San Luis Water District was originally 14 founded in 1951. It had its first long-term contract with 15 the Bureau in 1959. It had a second long-term contract with 16 the Bureau in 1974, which was for about 25,000 acre-feet 17 more than the first contract. 18 In 1974 it performed -- it certified an Environmental 19 Impact Report, which is one of the exhibits that has been 20 marked for identification. 21 There have only been some minor annexations since then. 22 For our purposes for this side of the district, each 23 annexation was coupled with exclusion of the same acreage. 24 The district has, like most public agencies, incurred 25 some debt. If the -- part of testimony that will be offered CAPITOL REPORTERS (916) 923-5447 13204 1 will speak to what would happen in terms of the district's 2 ability to pay its debt in the event that the Bureau's 3 petition was not granted with regard to the place of use. 4 We believe that it would seriously adversely affect the 5 district's ability to repay that debt. That has some 6 consequences that should be considered that have not, in 7 fact, been considered by the Draft Environmental Impact 8 Report. 9 The other main issue that the testimony will cover 10 deals with damages. I believe that I have the privilege of 11 presenting the first panel composed entirely of farmers. 12 MR. HERRICK: I would object to that. 13 MR. KEENE: You would. 14 C.O. STUBCHAER: In this phase, perhaps. 15 MR. KEENE: In this case. 16 Mr. Meyers, who will testify, is not only a member of 17 our Board of Directors, but also owns some of the land that 18 has been identified by encroachment land by the 19 Environmental Impact Report. His testimony will address the 20 damages to him personally should the petition not be 21 granted. 22 And with that, perhaps I can proceed with the 23 witnesses. 24 First, Mr. Jean Sagouspe. 25 Mr. Sagouspe, let me ask you a few questions about your CAPITOL REPORTERS (916) 923-5447 13205 1 background first. How long have you been farming? 2 MR. SAGOUSPE: About 30 years. 3 MR. KEENE: Has all of that been in the San Luis Water 4 District? 5 MR. SAGOUSPE: I have been in the San Luis Water 6 District for 30 years. I farmed in other districts also. 7 MR. KEENE: Now, you presently hold a position on the 8 Board of Directors of the San Luis Delta-Mendota Water 9 Authority? 10 MR. SAGOUSPE: That's correct. 11 MR. KEENE: Are you an officer of that body? 12 MR. SAGOUSPE: Yes. 13 MR. KEENE: Are you an officer of any other 14 organizations of farmers? 15 MR. SAGOUSPE: I am an officer of San Luis Water 16 District. I am also on the Board, not an officer but on 17 board of, CalCot, cotton marketing cooperative in 18 Bakersfield. 19 MR. KEENE: Mr. Sagouspe, can you summarize your 20 written testimony. 21 MR. SAGOUSPE: Yes, I can. I usually don't read my 22 testimony. But since I have been instructed to make sure I 23 don't leave anything out, I am going to read it. 24 I am a landowner and a farmer, active farmer, in San 25 Luis Water District. I am also president of the Board of CAPITOL REPORTERS (916) 923-5447 13206 1 Directors of the San Luis Water District. 2 My testimony is going to address two major topics: 3 One, the history of the district and, two, the district's 4 debt structure. 5 The San Luis Water District was originally organized 6 and entered into its first long-term water contract with the 7 Bureau of Reclamation in 1959. At that time it received 8 water from the Delta-Mendota Canal and that water was 9 delivered to what is now known as the direct service area 10 and improvement district number one in San Luis Water 11 District. 12 Much of the district as it then existed has no way of 13 getting water to land that was within the district, but 14 which had no access to water under that '59 contract. That 15 land later became known as improvement district two and 16 three. 17 In 1974 the district's contract with the Bureau of 18 Reclamation was amended to allow the district to receive 19 water from the San Luis Canal. The 1974 contract limited 20 water deliveries to lands which were designated on the map, 21 which was attached to the contract. The attached map 22 showed boundaries of the entire district as it existed at 23 that time. 24 At that time, at the time of the 1974 contract, the 25 district performed an environmental study, wrote and adopted CAPITOL REPORTERS (916) 923-5447 13207 1 the Environmental Impact Report, which a copy was attached 2 as Exhibit 3 to my written testimony. It included a rather 3 large scale map showing the boundaries of the district at 4 that time. As far as the lands shown in the PEIR as being 5 encroachment lands, the 1974 boundaries are the same as the 6 district's current boundaries with the exception of 7 approximately 300 acres. 8 In the preparation of the EIR, the comments of the Fish 9 and Wildlife Service, the Environmental Protection Agency, 10 the Resource Agency of California, and a number of other 11 state and federal agencies were received. The final 12 EIR addressed each of those comments in details as 13 necessary. No one filed suit against the district after it 14 certified its final Environmental Impact Report. 15 Today the district consists of 65,047 acres, 9,604 16 acres of which have been identified in the PEIR as being 17 encroachment lands. Of the 9,604 acres, 8,131 acres were in 18 the district boundaries prior to the effective date of 19 CEQA, and were also, therefore, included in the map as part 20 of the Environmental Impact Report certified by the district 21 in 1974. 22 The district has performed two annexations which have 23 been mentioned in the testimony of Connie Rupp, the 24 representative of the Bureau. In each of those annexations 25 approximately the same amount of acreage was excluded from CAPITOL REPORTERS (916) 923-5447 13208 1 the district at the same time that the additional land was 2 annexed. In each case the land excluded from the district 3 had been within the area which was the subject of the 4 district's 1974 EIR. In each of these cases we believe that 5 these detachments annexation combinations had neither no 6 impact on the environment or had a beneficial effect on the 7 excluding lands which was at least as good or better 8 wildlife habitat and annexing land which was not 9 particularly good habitat. 10 The district -- in 1977 the district finished the 11 construction of its water delivery system in improvement 12 districts two and three. These were financed through PL 130 13 loans on security for which was the district's ability to 14 collect money from these lands. 15 In the years since 1977, the district has borrowed 16 money a number of times. In each case, but one in -- but 17 one, the bonds were certificates of participation, were sold 18 to the public at large and the debts were secured by the 19 district's ability to build these lands for water deliveries 20 into successive lands based on the value of irrigated 21 farmland. The one exception to this pattern was the 22 $5,000,000 loan which this Board, you, made to the district 23 through the SRF program to finance more efficient irrigation 24 systems. 25 In that case the security for the debt repayment was CAPITOL REPORTERS (916) 923-5447 13209 1 the ability of the farmer to make lease payments on the 2 equipment. All this debt was incurred based on the 3 understanding that all of the lands in the district would 4 continue to receive irrigation water through the Central 5 Valley Project. The only source of water which the district 6 had is surface water through the Bureau of Reclamation 7 through the Central Valley Project. In the climate of the 8 Central Valley, no crop of any significant value would grow 9 without water. We believe that if the district purports to 10 stop delivering water to the 9,600 acres of encroachment 11 land, those lands would go out of agricultural production 12 and the districts, not those lands, would cease. 13 The district staff has analyzed the district's ability 14 to repay debt if the full 9,604 acres designated as 15 encroachment land were taken out of production. The results 16 of that study are set forth in the debt summary for parcels 17 outside the POU, which is marked as Exhibit 7 to my written 18 testimony. It shows that debt per acre for improvement 19 district two would double and for improvement district three 20 would increase nearly 60 percent. The district's opinion 21 is that some of the farmers in each of these two improvement 22 districts who farm nonencroachment land would be unable to 23 continue farming their land if they have to carry the 24 additional debt which is currently serviced by the 25 encroachment lands. CAPITOL REPORTERS (916) 923-5447 13210 1 The PEIR for the Bureau's petition does not address any 2 of these foreseeable consequences to either denying the 3 petition, conform the place of use or to imposing such a 4 stiff mitigation fee that encroachment land is taken out of 5 agricultural production. 6 In summary, the district's Board of Directors firmly 7 believes that the Bureau's petition to conform the place of 8 use should be granted and that further compliance with the 9 Environmental Quality Act should not be required merely to 10 correct what was probably a clerical error. Almost all of 11 the district's encroachment land was already in the 12 district's boundary before CEQA went into effect and even 13 after a CEQA went into effect was subject to a complete 14 Environmental Impact Report in 1970. Not only would it be 15 unfair to require additional environmental compliance, it is 16 always not necessary. 17 However, if this Board should seriously consider either 18 denying the Bureau's petition to conform the place of use or 19 imposing significant mitigation fees for granting the 20 petition, then additional environmental work must be done 21 first. This additional environmental work should consider 22 the ability of the land excluded from the district when 23 annexations occurred to act as habitat for endangered 24 species and other economic impact on the community of taking 25 the proposed step. CAPITOL REPORTERS (916) 923-5447 13211 1 Finally, we are also of the opinion that there has not 2 been adequate study done to know the affect of conforming 3 the purposes of use. This proposed change would allow the 4 use of water under 14 of the permits for fish and wildlife 5 enhancement for the first time and would allow use of water 6 under 13 of the permits for salinity control for the first 7 time, and for water quality under 12 of the permits for the 8 first time. Obviously, if this water is being used for fish 9 and wildlife, salinity control or other water quality 10 enhancements it is not going to be available for 11 agricultural uses as it is currently. There is virtually no 12 discussion in the PEIR of the environmental consequence, if 13 any, of these changes. 14 Therefore, we have taken no formal position with regard 15 to this part of the Bureau's proposal, except to urge 16 further study, perhaps as a separate project from the place 17 of use issues. 18 Thank you. That concludes my oral. 19 MR. KEENE: Thank you. 20 Mr. Meyers, you are currently a member of the San Luis 21 Water District Board of Directors? 22 MR. MEYERS: Yes, I am. 23 MR. KEENE: Are you also a participant in Governor 24 Davis' Ag Water Transition Committee? 25 MR. MEYERS: Yes, I am. CAPITOL REPORTERS (916) 923-5447 13212 1 MR. KEENE: Are you also a participant in the Farm 2 Bureau's Safe Harbor Program Committee with regard to 3 endangered species? 4 MR. MEYERS: Yes, I am. 5 MR. KEENE: Can you summarize your testimony. 6 MR. MEYERS: I will try not to read all of it. 7 My family and I were a -- I'm a landowner in the San 8 Luis Water District and, as mentioned before, I am a member 9 of the Board of Directors of the district. And some of the 10 land that I farm is designated in the PEIR as encroachment 11 land. Specifically I farm -- there is 902 acres of deeded 12 land that we own and 505 acres of leased land. 13 We purchased more land in this area in 1997 [verbatim] 14 after the district water delivery to improvement district 15 number two, which most of our land is located, was 16 constructed. Before we purchased our land, we were assured 17 by our district manager that the San Luis Water District at 18 the time that the land was purchased, it was eligible to 19 receive a CVP allocation. 20 And if the land -- if I wasn't assured at that time 21 that water was available, that it was eligible to receive an 22 allocation, I would not have considered purchasing the 23 land. We had to go to financial institutions and assure 24 them in securing loans for the purchase of those properties 25 that we would -- that we had an eligible water supply. CAPITOL REPORTERS (916) 923-5447 13213 1 Since we bought the land or purchased the land and over 2 the last 22 years have invested over $9,000,000 in 3 developments, some of the developments include return 4 systems, drip systems, water control devices and wildlife 5 habitat establishments. And, in opinion and a lot of people 6 that I had come, experts, legislative and so on, come to our 7 land and our ranch we consider is a model of water 8 efficiency. I would welcome anybody to come there and see 9 it. 10 We don't contribute any drainage problem. We have no 11 tailwater on our farms. We irrigate only enough to farm the 12 profile of the root system in our plants of our diversified 13 farm. 14 I also serve as the Chairman of the Board of -- 15 Chairman of the Improvement District Number Two Advisory 16 Board. We invested a great deal as a improvement district 17 in water efficiency, as well. We installed a liner in a 18 canal to conserve water which would otherwise be lost due to 19 seepage. The funds to construct these improvements were 20 always borrowed with the land acting as security for the 21 loan. 22 Presently, we, obviously, must repay this loan. 23 Presently we use about 26 inches of water during the entire 24 cotton growing season and we have a great deal of Almond 25 acreage which is all on drip, ranging from one year old to CAPITOL REPORTERS (916) 923-5447 13214 1 ten years old, and they use -- our mature almonds use 2 anywhere from three to three and a half acre-feet per acre 3 per year on drip systems. 4 All of our orchards, in fact, all the orchards in 5 improvement district number two and throughout the district 6 are on drip. We have managed to have keep the high yields 7 in all of our crops by using less water because of this 8 technology of efficient water management. As, obviously, 9 the technology cost a great deal of money and we have taken 10 that direction in investing a huge amount of money and 11 incurred a lot of debts in order to be efficient. 12 Once we have done these investments, we have to repay, 13 you know, these investments. I am a player in the SRF Fund 14 Program, which has been a wonderful opportunity for us to 15 invest in our water efficiency systems. In my opinion, if 16 your decision on the Bureau's petition with regard to the 17 place of use of results in the district no longer being able 18 to deliver water to the encroachment lands, my ability to 19 repay these investments will be lost. 20 Not only will there not be any incentive for future 21 investment of water efficiency, but a number of us will not 22 be able to pay bills, and this land will go out of 23 production. To be very frank with you, I will go bankrupt. 24 When we purchased this land, we had no idea that it 25 might not be in the place of use. In fact, I didn't even CAPITOL REPORTERS (916) 923-5447 13215 1 know what it meant. When we invested our lives and money, 2 we borrowed more money to invest in our land, we had no way 3 of knowing that you might make it lose its value by taking 4 our water rights to receive CVP water. I honestly don't 5 believe that is a fair way to treat us, the farmers, in this 6 way. 7 Thank you. 8 MR. KEENE: That concludes our direct testimony. 9 C.O. STUBCHAER: All right. Let's see who wishes to 10 cross-examine this panel. 11 Mr. Birmingham. Mr. Nomellini, Mr. Herrick. 12 Anyone else? 13 I don't think we need the cards for this. We will just 14 use three coins. 15 Mr. Herrick is first. 16 Mr. Birmingham. 17 MR. BIRMINGHAM: Since I may not be back precisely at 18 1:30, may I go first? 19 C.O. STUBCHAER: We were going to start -- I was going 20 to find out who was going to appear and then start the 21 cross-examination at 1:30. I don't think you can finish in 22 eight minutes. 23 MR. BIRMINGHAM: I will stipulate to eight minutes. 24 C.O. STUBCHAER: All right. Any objections? 25 Okay, Mr. Birmingham. CAPITOL REPORTERS (916) 923-5447 13216 1 MR. KEENE: Can I object? 2 C.O. STUBCHAER: No. 3 ---oOo--- 4 CROSS-EXAMINATION OF SAN LUIS WATER DISTRICT 5 BY WESTLANDS WATER DISTRICT 6 BY MR. BIRMINGHAM 7 MR. BIRMINGHAM: Gentlemen, I believe you both know me. 8 I am Tom Birmingham. I represent Westlands Water District. 9 Mr. Sagouspe, I understand from your testimony that the 10 total acreage of San Luis Water District has remained static 11 throughout its history; is that correct? 12 MR. SAGOUSPE: That is correct. 13 MR. BIRMINGHAM: As lands have been annexed in to the 14 district, lands have been excluded from the district? 15 MR. SAGOUSPE: That's correct. 16 MR. BIRMINGHAM: The lands that were excluded from the 17 district were converted to wildlife habitat. 18 MR. SAGOUSPE: That's correct. 19 MR. BIRMINGHAM: The district currently has a 20 contractual entitlement to 128,000 acre-feet? 21 MR. SAGOUSPE: I believe that is correct. 22 MR. BIRMINGHAM: There are 65,000, approximately 65,000 23 acres within the district? 24 MR. SAGOUSPE: That's correct. 25 MR. BIRMINGHAM: If the encroachment lands were CAPITOL REPORTERS (916) 923-5447 13217 1 excluded from the district, that would reduce the number of 2 irrigable acres to approximately 55,433 acres? 3 MR. SAGOUSPE: Approximately. 4 MR. BIRMINGHAM: Would the district -- if the Board 5 were to deny the petition to change the place of use, and 6 the district could no longer supply CVP water to the 7 encroachment lands, would there still be a demand within the 8 district for the full 128,000 acre-feet of project water the 9 district is entitled to receive? 10 MR. SAGOUSPE: Yes. 11 MR. BIRMINGHAM: Excluding the encroachment lands would 12 not reduce the demand of water within the district? 13 MR. SAGOUSPE: No. 14 C.O. BROWN: Clarification, Mr. Chairman. 15 Not reduce the demand for the CVP water? 16 MR. BIRMINGHAM: Thank you, Mr. Brown, I appreciate 17 that. 18 MR. SAGOUSPE: That is our only supply. 19 MR. BIRMINGHAM: Mr. Meyers, in your oral summary you 20 said that you purchased your land in San Luis District in 21 1997? 22 MR. MEYERS: Yes. 23 MR. BIRMINGHAM: Was it 1997 or 1977? 24 MR. MEYERS: '77. 25 MR. BIRMINGHAM: If you said 1997 as the date you CAPITOL REPORTERS (916) 923-5447 13218 1 acquired your land, you misspoke? 2 MR. MEYERS: Yes, I did. 3 MR. BIRMINGHAM: I have no further questions. 4 C.O. STUBCHAER: Thank you, Mr. Birmingham. 5 After the lunch break it will be Mr. Nomellini, 6 followed by Mr. Herrick. And we will reconvene at 1:30. 7 (Luncheon break taken.) 8 ---oOo--- 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 13219 1 AFTERNOON SESSION 2 ---oOo--- 3 C.O. STUBCHAER: Afternoon. Come back to order. 4 Cross-examination of the San Luis panel will continue. 5 Mr. Nomellini. 6 ---oOo--- 7 CROSS-EXAMINATION OF SAN LUIS WATER DISTRICT 8 BY CENTRAL DELTA PARTIES 9 BY MR. NOMELLINI 10 MR. NOMELLINI: Mr. Chairman, Members of the Board. 11 Dante John Nomellini for Central Delta Parties. 12 My first questions are of Mr. Sagouspe. If I 13 mispronounce your name, we'll blame your attorney because I 14 asked him how to pronounce it. 15 MR. SAGOUSPE: I mispronounce it myself. 16 MR. NOMELLINI: In the draft environmental document, 17 Figure 3-19, there is a map showing what is represented to 18 be the areas within the permitted place of use. I think it 19 is for the San Luis Water District. 20 Could you look at that map and tell me if that shows 21 roughly the boundary of the San Luis Water District? 22 MR. SAGOUSPE: The excluded part or on mine, I have a 23 color copy, which is the green areas. These are the 24 boundaries. That is within the boundary of San Luis Water 25 District. CAPITOL REPORTERS (916) 923-5447 13220 1 MR. NOMELLINI: All of the lands shown as outlined in 2 the -- 3 MR. SAGOUSPE: Outlined in the dark lines of San Luis 4 Water District. 5 MR. NOMELLINI: For some reason when they gave me my 6 copy, maybe for good reasons, when they gave me my copy they 7 didn't give me the colored ones. 8 Is the official one in the Board's record a color copy, 9 might I ask, Mr. Chairman? 10 C.O. STUBCHAER: Ask staff to answer. 11 MS. LEIDIGH: The answer is, yes, it does have color. 12 C.O. STUBCHAER: Thank you. 13 MR. NOMELLINI: So the area that is shown in green on 14 yours, which is irrigated CVP, I think the designation on 15 mine, is that the same you have on yours, irrigated CVP for 16 the green? 17 MR. SAGOUSPE: Yes. 18 MR. NOMELLINI: That area shown on Figure 3-19 is in 19 the San Luis Water District today; is that correct? 20 MR. SAGOUSPE: Today and in 1974. 21 MR. NOMELLINI: Now going back to 1959, were those 22 areas that are in green listed as irrigated CVP within the 23 boundary of the San Luis Water District? 24 MR. SAGOUSPE: I believe they were. 25 MR. NOMELLINI: In 1959? CAPITOL REPORTERS (916) 923-5447 13221 1 MR. SAGOUSPE: I believe they were, but I am not 2 positive. I am positive in 1974 they were. I am not 3 positive in 1959. 4 MR. NOMELLINI: If they were not in the district in 5 1959, then the map of the place of use would have been 6 accurate with regard to the description of the areas to be 7 served; is that correct? 8 MR. KEENE: Objection. I am not sure I understand the 9 question. We had a map that was Exhibit 1, I believe San 10 Luis Water District Exhibit 1, which was designated in our 11 1974 contract as our place of use. 12 Are you referring now to that map, or are you referring 13 to the boundary line that is shown in the -- I'm sorry, I 14 should be addressing the Chair. 15 Is the question referring to that map, or is it 16 referring to one of the maps that is contained in the 17 Programmatic Environmental Impact Report? 18 C.O. STUBCHAER: Mr. Nomellini. 19 MR. NOMELLINI: Let me clarify. I think that is a 20 legitimate question. 21 C.O. STUBCHAER: I think so, too. 22 MR. NOMELLINI: Figure 3-19 from the Draft 23 Environmental Impact Report reflects an existing permitted 24 place of use, does it not? 25 MR. SAGOUSPE: Yes. CAPITOL REPORTERS (916) 923-5447 13222 1 MR. NOMELLINI: That on yours is blue and on mine is 2 shaded. You agree it is in blue on yours? 3 MR. SAGOUSPE: Yeah, yeah, it's in blue. 4 MR. NOMELLINI: Now assuming that was the map used with 5 the submission of the application for permits by the Bureau, 6 that would have been the designated place of use 7 corresponding to the map. Let's assume that is the case. 8 MR. SAGOUSPE: I can't assume anything. Our 9 recollection from day one our boundaries haven't changed. 10 We had a water supply from the original contract. We were 11 unable to serve portions of our land without a construction 12 of a distribution system, and those portions of land are ID 13 2 and ID 3 came on in 1974 which the EIR addressed at that 14 point in time. We had a water supply for the entire 15 district. And to my knowledge, with the exception of 300 16 acres which are annexed and deannexed out, that hasn't 17 changed from day one. I haven't been on the Board from day 18 one, but I have been on for a long time and there has been 19 no changes, to my recollection. 20 MR. NOMELLINI: Fair enough. 21 When you did you first go on the Board? 22 MR. SAGOUSPE: Fifteen or 20 years ago. I am not 23 positive. Too long, as a matter of fact. 24 MR. NOMELLINI: I am sure that is the case. 25 So, somewhere in 1970, 1978? CAPITOL REPORTERS (916) 923-5447 13223 1 MR. SAGOUSPE: Late '70s I would say. 2 MR. NOMELLINI: Is it fair to state then that you don't 3 have any particular knowledge as to the boundary of the 4 district in 1959? 5 MR. SAGOUSPE: No firsthand knowledge. 6 MR. NOMELLINI: Did you make any comparison of the 7 present-day boundary to the maps as shown in the Draft EIS, 8 Figure 3-19? 9 MR. SAGOUSPE: After? 10 MR. NOMELLINI: Prior to today. 11 MR. SAGOUSPE: When we first saw this PEIS, we kind of 12 wondered how this line came about since the district 13 boundaries have not changed. 14 MR. NOMELLINI: Did you make any attempt to review the 15 maps that were submitted by the Bureau of Reclamation with 16 applications to the State Water Resources Control Board? 17 MR. SAGOUSPE: I believe our staff did. 18 MR. NOMELLINI: Did they report to you what the outcome 19 was of their review? 20 MR. SAGOUSPE: That the boundaries, that our 21 boundaries, existing boundaries, and the drawn-in new 22 boundaries were not the same. 23 MR. NOMELLINI: I missed that. The drawn-in boundaries? 24 MR. SAGOUSPE: This imaginary line that kind of cuts 25 90,000 acres out of the district is an imaginary line CAPITOL REPORTERS (916) 923-5447 13224 1 because it is not part of any boundary that we recognize. 2 Never has -- 3 MR. NOMELLINI: In other words, 3-19 line defining the 4 area shown thereon as existing permitted place of use does 5 not conform to a district boundary? 6 MR. SAGOUSPE: Correct. 7 MR. NOMELLINI: You had concluded that, Page 8 of your 8 testimony, that a clerical error occurred in the submission 9 by the Bureau of Reclamation of its place of use map to the 10 State Water Resources Control Board; is that correct? 11 MR. SAGOUSPE: Yes. 12 MR. NOMELLINI: And is the only basis for your 13 determination that there was a clerical error the fact that 14 Figure 3-19 on the draft -- of the draft environmental 15 document reflects a line for the existing permitted place of 16 use that does not conform to the existing boundaries? 17 MR. SAGOUSPE: Not only the line, but acreage. Since 18 all of our acreage is originally within the permitted place 19 of use, there has been no changes, it has been through an 20 environmental document and there has been no changes since 21 then with the exception of 300 acres, two parcels, we can 22 only lead to the conclusion that somebody made a mistake. 23 MR. NOMELLINI: Did you have any conversations with the 24 representatives of the Bureau of Reclamation with regard to 25 what you've termed a mistake? CAPITOL REPORTERS (916) 923-5447 13225 1 MR. KEENE: Objection. Clarification. Is that you 2 plural or you singular? Is the question for the entire 3 district staff of for Mr. Sagouspe individually? 4 C.O. STUBCHAER: Clarify. 5 MR. NOMELLINI: For Mr. Sagouspe individually first. 6 MR. SAGOUSPE: No, I have not. 7 MR. NOMELLINI: Are you aware of any communications 8 with the Bureau of Reclamation by representatives of your 9 district with regard to the cause of this mapping 10 difference? 11 MR. SAGOUSPE: Our attorney wrote a letter to the 12 Bureau of Reclamation and it is attached to the testimony. 13 MR. NOMELLINI: Other than that, are you aware of any 14 communication? 15 MR. SAGOUSPE: No. 16 MR. NOMELLINI: You have indicated that of the 9,604.57 17 acres, 8,131.71 acres was in the district boundaries prior 18 to the effective date of CEQA. 19 You see that on Page 4? 20 MR. SAGOUSPE: Yes. 21 MR. NOMELLINI: So the acreage that is the difference 22 between the two was added to the district boundary some time 23 thereafter, was it not? 24 MR. SAGOUSPE: That's correct. 25 MR. NOMELLINI: Is it your contention that that extra CAPITOL REPORTERS (916) 923-5447 13226 1 acreage, which is 500 acres or so -- 2 MR. SAGOUSPE: Should be about 300. 3 MR. NOMELLINI: Is it your contention that that 500 4 acres was left out of the place of use because of a clerical 5 error? 6 MR. SAGOUSPE: No. 7 MR. NOMELLINI: Calling your attention to the Figure 8 3-19 -- 9 MR. SAGOUSPE: Yes. 10 MR. NOMELLINI: Where on 3-19 is the roughly 500 acres 11 that was added to the district boundary? 12 MR. SAGOUSPE: I think it is roughly 300 acres. 13 MR. NOMELLINI: Let's test your mathematics. Do you 14 have -- do you have your testimony, Page 4? 15 Compromise, somewhere around 400 plus? 16 MR. KEENE: Excuse me. Mr. Chairman, if the questioner 17 is asking about the difference between 9,604.57 acres and 18 8,131.71 acres, I make that more like 1,570-some-odd acres 19 rather than 500. I think the witness may have been confused 20 about the 300 acres that Ms. Rupp had testified to. 21 MR. NOMELLINI: Let's use the right number, then. 22 C.O. STUBCHAER: Thank you, Mr. Keene. 23 MR. NOMELLINI: Tell me the difference that you say was 24 added to the district after the effective date of CEQA. 25 MR. SAGOUSPE: I can't tell you what the exact CAPITOL REPORTERS (916) 923-5447 13227 1 difference was, what it accounted to. There were lands that 2 were brought in and taken out several different times over 3 the years, but no new -- if we added land, all land that was 4 added, there was an equal amount detached from the 5 district. 6 MR. NOMELLINI: On Page 4 of tour testimony there are 7 two numbers shown there. It says of 9,604.57 acres, 8 8,131.71 was in the district boundaries prior to the 9 effective date of CEQA. Let's assume the difference is 10 roughly 1,500 acres. 11 With regard to that 1500 acres that was added after the 12 effective date of CEQA, is it your contention that that was 13 omitted from the permitted place of use of the Bureau 14 permits by reason of a clerical error? 15 MR. SAGOUSPE: I don't contend anything regarding 16 that. All of these applications went through the Bureau 17 process, through county annexation processes, were approved 18 by the Bureau. And so I can only assume they were correct. 19 We did nothing outside of any official process. 20 MR. NOMELLINI: So, then, what you're really saying 21 then is that the Bureau should have applied for whatever 22 necessary permit changes were required to correspond with 23 their agreements with your district at the time? 24 MR. SAGOUSPE: All our contracts is with Bureau. We 25 only deal with the Bureau. We don't deal with permitting. CAPITOL REPORTERS (916) 923-5447 13228 1 We don't deal with the State Board. We don't deal with 2 anybody else besides the person that contracts for us to 3 deliver water. We made the application. We went through 4 all the processes that were in place at the time, whatever 5 they happened to be, and we had final approval. 6 MR. NOMELLINI: Then, you would agree then you have no 7 evidence to indicate that the roughly 1,500 acres difference 8 on Page 4 was left out due to a clerical error? 9 MR. SAGOUSPE: I don't believe so. I just believe the 10 clerical error was the imaginary line being drawn across an 11 area. 12 MR. NOMELLINI: Do you have any opinion as to when the 13 imaginary line drawn across an area, clerical error, 14 occurred? 15 MR. SAGOUSPE: Had to occur sometime during the PEIS. 16 MR. NOMELLINI: You are not contending, then, that the 17 clerical error occurred in the process of filing 18 applications with the State Water Resources Control Board by 19 the Bureau? 20 MR. SAGOUSPE: I don't know when the clerical error 21 happened. 22 MR. NOMELLINI: With regard to the roughly 1,500 acres 23 referenced on Page 4 of your testimony, where on Figure 3-19 24 are the roughly 1,500 acres located? 25 MR. SAGOUSPE: I can't specifically pick them out. I CAPITOL REPORTERS (916) 923-5447 13229 1 believe in two or three different areas. They are not 2 contiguous. But I can't identify them on that map. 3 MR. NOMELLINI: On Page 5 of your testimony you 4 indicated that if the request for consolidation and 5 expansion of the place of use was not granted, that the 6 encroachment land would no longer be used for productive 7 agriculture. Is that what you are telling us? 8 MR. SAGOUSPE: If it didn't have water, it wouldn't be 9 farmed. 10 MR. NOMELLINI: Is it your testimony that the only way 11 to provide water to the so-called encroachment lands is with 12 CVP water? 13 MR. SAGOUSPE: That's correct. 14 MR. NOMELLINI: Is there any usable groundwater in the 15 San Luis Water District? 16 MR. SAGOUSPE: Virtually none. Very, very little. 17 MR. NOMELLINI: How much is "very little," roughly? 18 MR. SAGOUSPE: Less than a thousand acres. 19 MR. NOMELLINI: Enough water for about a thousand acres? 20 MR. SAGOUSPE: There is only one area that transitions 21 the district. It's in a basin that is fed by Los Banos 22 Creek, and that is probably one of our narrowest points in 23 the district. And there is a small area in there that 24 probably comprises -- might not be that big. That has some 25 groundwater. The balance of the district has no CAPITOL REPORTERS (916) 923-5447 13230 1 groundwater. 2 MR. KEENE: For clarification, if I can jump in. Mr. 3 Sagouspe, the district itself owns no wells, does it? 4 MR. SAGOUSPE: No. 5 MR. KEENE: Thank you. 6 C.O. BROWN: Clarification question. 7 C.O. STUBCHAER: Mr. Brown. 8 C.O. BROWN: It's the lack of groundwater due to 9 groundwater quality or there is no yield? 10 MR. SAGOUSPE: There is no groundwater, period. 11 C.O. BROWN: Thank you. 12 MR. NOMELLINI: What is the water -- the quantity of 13 water per acre that is delivered to the district lands by 14 the district per year? 15 MR. SAGOUSPE: Our allocation is approximately 2.1 16 acre-foot per acre. 17 MR. NOMELLINI: You would agree, would you not, that 18 2.1 acre-feet per acre is insufficient to meet the water 19 supply needs for most of the lands in the district? 20 MR. SAGOUSPE: Yeah, I would agree. 21 MR. NOMELLINI: What do the farmers do when they have 22 only 2.1 acre-feet per acre and they need an amount such as 23 three acre-feet per acre? 24 MR. SAGOUSPE: The most common thing is a farmer would 25 have a certain amount of acreage, and depending on his CAPITOL REPORTERS (916) 923-5447 13231 1 cropping patterns for the year, he would either rotate or 2 plant a certain amount of crops that required less water, 3 which is grains, and then use the balance of that supply to 4 other crops that required more water. Or another 5 alternative was to transfer water in from other districts or 6 purchase other supplies that landowners individually could 7 do or the district could do. 8 MR. NOMELLINI: Is any land fallowed in your district? 9 MR. SAGOUSPE: There is land fallowed. In most years 10 there are some lands fallowed. 11 MR. NOMELLINI: In terms of transfers from other 12 districts, what specifically has occurred in recent years? 13 MR. SAGOUSPE: Well, how recent is recent? 14 MR. NOMELLINI: Let's say the last five years? 15 MR. SAGOUSPE: So you are talking about during the end 16 of the drought and during the wet years, the last three 17 years? 18 MR. NOMELLINI: Let's go back to 1995. 19 MR. SAGOUSPE: I would say that because of CVPIA 20 implementation on average our district has been reduced to 21 about 70 percent supply of our contract. On average the 22 last two years I believe was -- last year was 95 percent. 23 And the year before was a hundred percent delivery. 24 But what has happened over the years, usually those 25 announcements by the Bureau for delivery have been at a late CAPITOL REPORTERS (916) 923-5447 13232 1 date. That was after planting intentions and actually crops 2 were planted to use the water. So there has been water 3 available from other districts in the same position. 4 A lot of farmers in all the west side districts farm in 5 more than one district. So, they will transfer water 6 between districts and maximize the beneficial use of water 7 wherever they happen to have it by transfers of their own 8 water. 9 There has been water available on certain occasions 10 from some of the state contracting districts. There has 11 been various means of and ways to get certain amount of 12 water, but, by no means, has it been enough to fully 13 irrigate the district. 14 MR. NOMELLINI: With regard to the encroachment lands 15 shown on Figure 3-19, and assuming that the State Board did 16 not approve the consolidation and expansion of the place of 17 use, why would these transferred waters not be a potential 18 source to irrigate the encroachment lands? 19 MR. SAGOUSPE: I think you can say that every source is 20 a potential source. Whether it is a reliable source is 21 another matter. Without a reliable source most of these 22 properties are in permanent crops now and with very 23 expensive high-tech irrigation systems. There is no way 24 that without having a permanent source and a reliable source 25 that you are going to be able to continue farming on an CAPITOL REPORTERS (916) 923-5447 13233 1 economic basis. 2 MR. NOMELLINI: Is that a -- is that lack of reliable 3 source occurring by reason of the 70-percent supply 4 associated with, I think you said, the CVPIA? 5 MR. SAGOUSPE: 70-percent supply is an average. We 6 have years that we get 50 percent, 25 percent. And all of 7 those years that we're out, everybody is in the same 8 position at that point in time, looking for water. When 9 there is a short supply, obviously, the price goes up. So 10 there is severe competition not only from ag districts or 11 urban districts for amounts of water that are available out 12 there. The economics that at a point will simply not 13 justify irrigating any kind of crop. 14 The other thing is we -- we don't have the ability to 15 just use CVP facilities for any type of water. We can only 16 use those facilities for federal water transfers. And if we 17 get into a point, we have to get permission on an annual 18 basis to use those facilities. And a lot of times those, 19 that permission isn't coming in a timely manner. 20 MR. NOMELLINI: Are you familiar with the land 21 retirement program? 22 MR. SAGOUSPE: Yes. 23 MR. NOMELLINI: Of the Bureau? 24 MR. SAGOUSPE: Yes. 25 MR. NOMELLINI: If water could not be supplied to the CAPITOL REPORTERS (916) 923-5447 13234 1 encroachment lands shown on Figure 3-19, is there a 2 possibility as you see it that that land could be the 3 subject of a land retirement purchase by the Bureau and 4 thereby mitigate somewhat the loss to the individual 5 landowner? 6 MR. SAGOUSPE: My understanding of the land retirement 7 program was to take drainage, impacted areas out of 8 production and retire those lands that are either impacted 9 by drainage or causing drainage impacts. And this property 10 wouldn't qualify for that. 11 MR. NOMELLINI: You have indicated in your testimony 12 that the consolidation of the purposes of use require 13 further study. Is that a fair statement? 14 MR. SAGOUSPE: Yes. 15 MR. NOMELLINI: You have indicated that all fish and 16 wildlife enhancement and salinity control as being applied 17 to the purpose of use on permits. And is it your testimony 18 that you fear that could reduce the supply available to 19 agriculture? 20 MR. SAGOUSPE: Yes. We are not opposed to doing any of 21 this as long as it doesn't impact our water supply. In that 22 case, we are opposed to anything that impacts our water 23 supply because we have impacted now and unfairly, I might 24 add. 25 MR. NOMELLINI: That is kind of an universal feeling CAPITOL REPORTERS (916) 923-5447 13235 1 throughout the agricultural industry and the state, isn't 2 it? 3 MR. SAGOUSPE: Certainly with me. This is my 4 livelihood and my family's livelihood. I don't take this 5 thing lightly. It is a serious matter. The impacts are not 6 fairly placed on this, obviously. 7 MR. NOMELLINI: Staying right on this question of the 8 changes in purpose of use, do you have any concern that 9 adding municipal and industrial use to permits could reduce 10 the agriculture deliveries to your district? 11 MR. SAGOUSPE: No, because we have the ability in our 12 contract for municipal and industrial uses as it is. We may 13 want to convert some of our lands to that in the future. 14 MR. NOMELLINI: Mr. Meyers, you indicate in your 15 testimony that you bought your land in 1977. I realize that 16 at once you said 1997 and corrected it. 1977 was a fairly 17 dry year, was it not? 18 MR. MEYERS: Yes, sir, sure was. 19 MR. NOMELLINI: At the time of the purchase was there 20 any water shortage in the general area that you were aware 21 of? 22 MR. MEYERS: Yes. 23 MR. NOMELLINI: What was that? What was your general 24 understanding of the water shortage in the area of 1977 when 25 you bought the encroachment lands? CAPITOL REPORTERS (916) 923-5447 13236 1 MR. MEYERS: There was going to be reduced water supply 2 that year. 3 MR. NOMELLINI: Do you know about how much of a water 4 supply it was going to be? 5 MR. MEYERS: In 1977, 35 percent. 6 MR. NOMELLINI: Did you think 35 percent was enough for 7 you to go on and farm this land? 8 MR. MEYERS: Of course not. That was the first year I 9 bought it. 10 MR. NOMELLINI: What was your plan in terms of farming? 11 Were you going to fallow a certain amount of the land to 12 correspond to the water supply? 13 MR. MEYERS: Plant a portion, fallow some ground. 14 Plant a portion that I could farm with moving the water to 15 the portion that I farmed. 16 MR. NOMELLINI: That was pretty much your plan, I 17 would imagine, for the future. As water became short you'd 18 adjust the amount of acreage that you would actually plant. 19 Is that a fair statement? 20 MR. MEYERS: In part. 21 MR. NOMELLINI: You indicated that you talked to 22 somebody in the district about require to water being 23 available to the land? 24 MR. MEYERS: Yes. 25 MR. NOMELLINI: Do you recall who that was? CAPITOL REPORTERS (916) 923-5447 13237 1 MR. MEYERS: Our manager. 2 MR. NOMELLINI: It's not this young man over here? 3 MR. MEYERS: No. 4 MR. NOMELLINI: Do you remember his name? 5 MR. MEYERS: Cecil Carry. 6 MR. NOMELLINI: Do you recall what he told you? 7 MR. MEYERS: He told me that I would have -- the land 8 that I purchased had an eligible water supply for water, the 9 lands were eligible to receive CVP water, and the contract 10 was good and that I could go to any financial institution 11 and use that as basis for financing. 12 MR. NOMELLINI: Did he say anything about how much 13 water would be available per acre? 14 MR. MEYERS: I can't recall exactly what the allocation 15 was then. 16 MR. NOMELLINI: Did you expect a full supply? 17 MR. MEYERS: Yes. 18 MR. NOMELLINI: What would that have been per acre, in 19 your mind? 20 MR. MEYERS: I think it was before Santa Clara came on 21 line. I can't recall. Two and a half feet, something like 22 that, acre-feet. Back in 1977 I am not exactly sure. 23 MR. NOMELLINI: Was the amount of acre-feet of water 24 per acre for your land reduced by reason of Santa Clara 25 coming on line in the CVP? CAPITOL REPORTERS (916) 923-5447 13238 1 MR. MEYERS: Not that I am aware of. 2 MR. NOMELLINI: With regard to the decision to purchase 3 your land, were you advised in any way by a water rights 4 lawyer or a water special engineer or something like that? 5 MR. MEYERS: About what? 6 MR. NOMELLINI: About the availability of water to this 7 parcel. 8 MR. MEYER: Just my manager. 9 MR. NOMELLINI: Was this land irrigated at the time of 10 your purchase? 11 MR. MEYERS: Just a portion of it was, only about 350 12 acres. That was my first purchase. 13 MR. NOMELLINI: With regard to your holding of the 14 encroachment lands, how much of the encroachment lands do 15 you own today? 16 MR. MEYERS: 900 acres. 17 MR. NOMELLINI: The first purchase was in 1997 -- 18 MR. MEYERS: '77. 19 MR. NOMELLINI: Thank you. 20 -- 1977 was the 350 acres? 21 MR. MEYERS: Yes, sir. 22 MR. NOMELLINI: When was your next purchase? 23 MR. MEYERS: Oh, geez, I don't remember. I bought 24 little pieces at a time. 25 MR. NOMELLINI: Is it all continguous? CAPITOL REPORTERS (916) 923-5447 13239 1 MR. MEYERS: Yes. It is all within -- very close to 2 each other. 3 MR. NOMELLINI: If you look at Figure 3-19, where on 4 Figure 3-19 is your land located? 5 MR. MEYERS: Well, there is a piece located on the very 6 top. 7 Are you with me? 8 MR. NOMELLINI: Yes. 9 MR. MEYERS: Over here on this -- 10 MR. NOMELLINI: Right above the word "Fresno"? 11 MR. MEYERS: Yes. The pieces -- this is part of it 12 right here. Over here by the -- where the little Panoche 13 Dam is. You come across to the first green and then you go 14 down to the next one; that is also a piece of mine. And 15 then there is a little piece that is right above the "Fresno 16 Co," c-o. And then below in the large piece, the very west 17 half of that large piece or the left side of the large 18 piece, and also down on the east side here, this piece down 19 here. This part and then half of this larger piece is mine, 20 all the way to the west side. 21 MR. KEENE: For the sake of the record let me state 22 that, and, Mr. Nomellini, please correct me if I am 23 incorrect. The witness was indicating on that map, which 24 has been identified as Figure 3-19 in the Programmatic 25 Environmental Impact Report. All of the land he was CAPITOL REPORTERS (916) 923-5447 13240 1 pointing to is exclusively in Fresno County, in the southern 2 portion of the map. 3 And the land that he started to indicate, I believe, 4 there is a small body of water that is in the lighter shaded 5 portion of that part of the map, and it was the initial 6 piece of land he indicated was due east of that body of 7 water, and then he indicated land to the south, immediately 8 adjacent thereto, and one or two parcels that were perhaps 9 not immediately adjacent thereto. 10 MR. NOMELLINI: That is fair enough. 11 C.O. STUBCHAER: Thank you. 12 MR. NOMELLINI: Thank you. 13 Now, you have indicated that in some of your land -- 14 well, let's go back on these purchases. Each time you 15 purchased an additional block on land, did you inquire of 16 the district whether or not the land was eligible to be 17 served with federal water? 18 MR. MEYER: No, I did not inquire. 19 MR. NOMELLINI: Did you know that it was going to be 20 served because it was irrigated already? 21 MR. MEYERS: That is correct. 22 MR. NOMELLINI: Except for the initial purchase, the 23 rest of the purchases involved land that were being 24 irrigated? 25 MR. MEYERS: That is correct. CAPITOL REPORTERS (916) 923-5447 13241 1 MR. NOMELLINI: Now, you indicated that you have -- one 2 of your crops is almonds? 3 MR. MEYERS: Yes, sir. 4 MR. NOMELLINI: Is that a crop that helps in your 5 ability to pay for federal water? 6 MR. MEYERS: I don't follow you. 7 C.O. STUBCHAER: Sorry, Mr. Meyers. 8 MR. MEYERS: I didn't know what he meant by "pay for 9 federal water." 10 C.O. STUBCHAER: Maybe get the microphone closer. 11 MR. NOMELLINI: Is an almond crop a profitable crop for 12 you? 13 MR. MEYERS: That's risky? 14 MR. NOMELLINI: On the average, now, not this year. 15 MR. MEYERS: On the average. 16 MR. NOMELLINI: Is it -- 17 MR. MEYERS: You're walking on thin ice. 18 MR. NOMELLINI: You had a bad year? 19 MR. MEYERS: Yes. It is profitable. Of all the crops 20 I've got, it's the only one making any money. 21 MR. NOMELLINI: In terms of crops, would a farmer's 22 ability to pay be enhanced by having an almond crop versus a 23 grain crop? 24 MR. BIRMINGHAM: Objection. Calls for speculation. 25 Mr. Nomellini has posed a question that is going to depend CAPITOL REPORTERS (916) 923-5447 13242 1 upon many factors, many variables. Without specifying each 2 variable or factors, there isn't any way this witness can 3 answer that question. 4 MR. KEENE: I join. 5 MR. NOMELLINI: No, no. Wait a minute. I've got the 6 foremost expert here on the subject. I've got a farmer. We 7 normally have to listen to some economist or something. 8 This man is the man who knows. 9 C.O. STUBCHAER: I agree we have an expert at the 10 witness table. 11 Mr. Nomellini, could you change the "w" to a "c," the 12 would to a could? 13 MR. NOMELLINI: Yeah, that is fair enough. 14 Let me set a little background. Might be catching you 15 too cold on this. Let me represent to you that previously 16 in this hearing we've heard witnesses say if they could go 17 to permanent crops, such as almonds, their ability to pay 18 for federal water would be improved. And my, perhaps, 19 ignorant understanding of that was that it was more 20 profitable to go to a permanent type of crop, like almonds. 21 And would you agree that it is more profitable to go to a 22 more permanent type crop? 23 MR. BIRMINGHAM: Objection. Calls for speculation. 24 Again, Mr. Nomellini is asking -- 25 MR. NOMELLINI: Could. In your opinion, could it be CAPITOL REPORTERS (916) 923-5447 13243 1 more profitable. 2 MR. BIRMINGHAM: Mr. Nomellini's question was not could 3 it, it was would it. 4 MR. NOMELLINI: Yes. And I am changing it to could to 5 satisfy your objection. 6 C.O. STUBCHAER: And my concern. 7 MR. NOMELLINI: And the Chairman's concern, primarily. 8 C.O. STUBCHAER: A little moment of levity. We have to 9 have this. 10 Please continue. 11 MR. NOMELLINI: Could -- 12 MR. MEYERS: Ask me. 13 MR. NOMELLINI: Could it improve the ability of the 14 farmer to make payment for federal water? 15 MR. MEYERS: When they're bearing, yes. If they are 16 the Hartwell [phonetic]. 17 MR. NOMELLINI: Now, in your testimony on Page 2, you 18 say we do not contribute to the drainage problem that exists 19 in other areas of the San Joaquin Valley. 20 Do you see that? 21 MR. MEYERS: Yes. 22 MR. NOMELLINI: Now, when you say "a drainage problem 23 that exists in other areas of the San Joaquin Valley," what 24 are you referring to? 25 MR. MEYERS: The areas that have been under -- the CAPITOL REPORTERS (916) 923-5447 13244 1 problem areas that have been talked about: the San Luis 2 drain not being finished, the problems in some of the 3 Westlands area that has a high water table because of 4 drainage problems. That is the areas I am talking about. 5 MR. NOMELLINI: Are there any areas in San Luis Water 6 District that fall in the category that you set forth here, 7 drainage problem? 8 MR. MEYERS: Not that I am aware of. 9 In some of the Board meetings it has been mentioned 10 that the Charleston Drainage District, and it is part of our 11 district, has a drainage problem, but it is being handled. 12 MR. NOMELLINI: Is that a high water table problem? 13 MR. MEYERS: I believe so. 14 MR. NOMELLINI: Is any part of the high water table 15 problem caused by upland irrigation? 16 MR. MEYERS: Not that I am aware of. 17 MR. NOMELLINI: What is causing the high water table 18 problem in that area, if you know? 19 MR. BIRMINGHAM: I am going to object to the question 20 on ground of relevance. We spent weeks and weeks and weeks 21 talking about drainage problems in Phase II, II-A, V. I 22 don't understand how drainage relates to whether or not the 23 place of use to conform to the district's boundaries should 24 be modified. 25 C.O. STUBCHAER: Mr. Nomellini, can you explain the CAPITOL REPORTERS (916) 923-5447 13245 1 relevance? 2 MR. NOMELLINI: Yes. The testimony says we do not 3 contribute to the drainage problem that exists in other 4 areas of the San Joaquin Valley. In order to understand the 5 difference of this piece of land versus what the problems he 6 was describing, I want to understand, get on the record, 7 what he considered to be a problem. I am not going to spend 8 two weeks on it. 9 MR. BIRMINGHAM: That is now on the record. Further 10 questions on this alone is really irrelevant. 11 C.O. STUBCHAER: One more question, Mr. Nomellini. 12 MR. NOMELLINI: Do you know what is contributing to the 13 drainage problem in Charleston? 14 MR. MEYERS: I don't know. There is probably a high 15 water table down there. You know, when I mentioned in my 16 testimony, I put in there that also we only irrigate to the 17 profile of the root system. We are very serious about 18 that. We take profiles of our soils, and we know where our 19 water is going and that is what I said. We do not 20 contribute to the drainage; we only farm to the profile of 21 the root system. 22 MR. NOMELLINI: Let's stay with that. 23 MR. MEYERS: Sure. 24 MR. NOMELLINI: Some of your water is used as a 25 leaching fraction; is that correct? Some of your applied CAPITOL REPORTERS (916) 923-5447 13246 1 water goes into the ground? 2 MR. MEYERS: Yes, it goes into the soil. 3 MR. NOMELLINI: When it goes into the soil, does it all 4 evaporate? 5 MR. MEYERS: No, it doesn't evaporate. 6 MR. NOMELLINI: Does it create a water table of some 7 kind? 8 MR. MEYERS: No, it does not. 9 MR. NOMELLINI: It simply adds to the soil moisture in 10 your area? 11 MR. MEYERS: That's correct. To the crop uses. 12 MR. NOMELLINI: Is there any groundwater underneath 13 your land? 14 MR. MEYERS: No, there is not. 15 MR. NOMELLINI: That is all I have. 16 C.O. STUBCHAER: Thank you, Mr. Nomellini. 17 Mr. Herrick. 18 ---oOo--- 19 CROSS-EXAMINATION OF SAN LUIS WATER DISTRICT 20 BY SOUTH DELTA WATER AGENCY 21 BY MR. HERRICK 22 MR. HERRICK: Thank you, Mr. Chairman, Board Members. 23 John Herrick, again, for South Delta Water Agency. I have a 24 few questions. 25 Start with Mr. S. CAPITOL REPORTERS (916) 923-5447 13247 1 MR. SAGOUSPE: Can't pronounce it, I don't answer. 2 MR. HERRICK: I didn't want to ruin it. 3 Your testimony references Exhibit 1, which is the map 4 that was included with the EIR; is that correct? 5 MR. SAGOUSPE: This map represents -- this is what was 6 attached to the '74 contract. 7 MR. HERRICK: It is my understanding there was some 8 environmental review done at that time; is that correct? 9 MR. SAGOUSPE: Yes, sir, complete EIR. 10 MR. HERRICK: That review examined the acreage shown on 11 that map? 12 MR. SAGOUSPE: That's correct. 13 MR. HERRICK: Without, again, putting too fine a point 14 on it. My brief review shows that that map is slightly 15 different than the outline of the district on Figure 3-19 of 16 the EIR. 17 MR. SAGOUSPE: In which way? 18 MR. HERRICK: Just to find a couple examples here. Do 19 you see Los Banos Reservoir on 3-19? 20 MR. SAGOUSPE: Yes. 21 MR. HERRICK: Not the forebay, but Los Banos Reservoir? 22 MR. SAGOUSPE: Yes. 23 MR. HERRICK: Then there is the shaded area just to the 24 southeast of that? 25 MR. SAGOUSPE: Yes. CAPITOL REPORTERS (916) 923-5447 13248 1 MR. HERRICK: And it has a little square touching that 2 part but on Exhibit 1 it has an L-shaped triangle? 3 MR. SAGOUSPE: Yes, that is correct. That is one of 4 the parcels annexed in and there was a corresponding 5 acreage, that was a quarter section -- that square is a 6 section of land, total, the missing was a quarter section 7 and there was a quarter section, and I can't tell you 8 exactly where in the district there was another quarter 9 section that was deannexed out. 10 MR. HERRICK: I guess, since I couldn't describe it 11 anyway, is it your testimony that the differences between 12 3-19 and your Exhibit 1 would be those instances of 13 annexation land with a corresponding removal of land from 14 the district? 15 MR. SAGOUSPE: That's correct. 16 MR. HERRICK: I believe your testimony was that some of 17 the land or maybe it was all of the land taken out of the 18 district at times of annexation become habitat. Is that 19 correct? 20 MR. SAGOUSPE: Yes, returned to its native state. 21 MR. HERRICK: Again, I am not trying to be using a 22 pejorative term, they stopped farming it? 23 MR. SAGOUSPE: In several cases. I can't tell you, but 24 either it was stopped farming or it's not been farmed 25 prior, or only farmed occasionally. CAPITOL REPORTERS (916) 923-5447 13249 1 MR. HERRICK: Those annexations and removing from the 2 district occurred when? Can you give me a time frame? 3 MR. SAGOUSPE: Off the top of my head I can't. There 4 was over a period of years. I can't tell you exactly when 5 those occurred. 6 MR. KEENE: I believe that there was a schedule that 7 was attached, I thought, to Mr. Sagouspe's testimony that 8 listed all of the acreage and it listed these particular 9 parcels, the place of use summary parcel map, Exhibit 6. 10 MR. HERRICK: I didn't read that to put dates on there. 11 Am I missing something? 12 MR. KEENE: Excuse me, it doesn't have dates. 13 Excuse me. There are two sets of dates that are listed 14 on that document. The '83 and the '89 annexations, which 15 according to the testimony were the only annexations that 16 occurred after 1974 that are relevant to this area. 17 MR. HERRICK: It is, then, correct that the annexations 18 you are talking about and corresponding removals from 19 districts occurred in that two years, '83 and '89? 20 MR. SAGOUSPE: Yes, '83 and '89. 21 MR. HERRICK: Mr. Meyers, you make a point in your 22 testimony of saying that denial of the petition could result 23 in significant economic effects to you and other members -- 24 other people within the district; is that correct? 25 MR. MEYERS: Yes, I do. CAPITOL REPORTERS (916) 923-5447 13250 1 MR. HERRICK: Do you know if anybody's done any 2 analysis comparing those economic effects with any potential 3 economic effects that occur because of the operations of the 4 CVP? 5 MR. MEYERS: Clarify that for me, please. I don't 6 understand the question. 7 MR. HERRICK: It's been alleged here by my client and 8 some others that the operation of the CVP causes adverse 9 effects in the South Delta and other parts of San Joaquin 10 River. 11 Are you aware of any analysis which compares the 12 potential effects of denying the petition, those effects on 13 you, with potential ongoing effects on the CVP project on 14 Delta farmers? 15 MR. MEYERS: I am not aware of any analysis. 16 MR. HERRICK: If the Board granted the petition to 17 conform the place of use, would you object to a condition 18 that required exports from the Delta mitigate or avoid 19 adverse impacts to the South Delta? 20 MR. KEENE: Objection. I am going to ask for 21 clarification. Is the you plural or singular? Is it 22 addressed to Mr. Meyers as an individual or to the 23 district? 24 MR. HERRICK: Addressed to Mr. Meyers as an individual. 25 I don't believe he his here representing the district. Is CAPITOL REPORTERS (916) 923-5447 13251 1 he? 2 MR. KEENE: I believe both witnesses are representing 3 the District. 4 MR. HERRICK: I am sorry. 5 C.O. STUBCHAER: Mr. Birmingham. 6 MR. BIRMINGHAM: Same clarification. 7 MR. HERRICK: That is my mistake. I will ask both 8 questions. Mr. Meyers, I would like to ask that question 9 with regard to you personally. 10 MR. MEYERS: Ask me again, please. 11 MR. HERRICK: Would you be agreeable to the Board 12 putting a condition on its approval of this petition that 13 condition being exports from the Delta by the CVP must not 14 or must mitigate harm to South Delta agricultural interests? 15 MR. KEENE: I am going to instruct my client to answer, 16 but place on the record an objection to relevance. 17 MR. HERRICK: I would like to address that. 18 C.O. STUBCHAER: His objection is already on the record 19 as noted. He said his clients could answer, so provide. 20 MR. MEYERS: Yes. I would agree to that. 21 MR. HERRICK: That would be agreeable to you? 22 MR. MEYERS: I don't think I understand the question. 23 You talk about the -- run the question back through me 24 again, please, and go slowly. I am having a problem with 25 it. CAPITOL REPORTERS (916) 923-5447 13252 1 MR. HERRICK: That is quite all right. It's been 2 alleged in these proceedings by some parties that the 3 operation of CVP can or does cause adverse impacts. Some of 4 those being impacts caused by the export pumps on South 5 Delta water level or water quality. 6 MR. MEYERS: I am with you there. 7 MR. HERRICK: The question is: Would you be agreeable, 8 you personally, to a condition of the approval, placed on 9 approval of the petition to conform the place of use, a 10 condition which says exports by the CVP from the South Delta 11 must only occur if they do not or mitigate harm caused by 12 those exports? 13 MR. MEYERS: By mitigation, how do you mean mitigation? 14 MR. HERRICK: Depends what may be available. In other 15 words, either don't do it or if you do it make up for it. 16 MR. MEYERS: No, I wouldn't be agreeable. Why should 17 I have to mitigate what I felt wasn't mine in the first 18 place? 19 MR. HERRICK: What is it that you feel is yours? 20 MR. MEYERS: I had a right to the water on my lands. 21 MR. HERRICK: You make a distinction between that and a 22 potential right by the South Delta farmers to the water? 23 MR. MEYERS: I do have a contract. Doesn't the 24 district have a contract? Our district does have a 25 contract. CAPITOL REPORTERS (916) 923-5447 13253 1 MR. HERRICK: You believe that your district should get 2 that contract water or an amount of that contract water 3 regardless of whether or not delivering the water to the 4 contractors causes adverse effects to people in the Delta? 5 MR. MEYERS: I am not aware of those adverse problems 6 that South Delta has. I shouldn't think there would be harm 7 to either one. I shouldn't think that I would have to pay 8 for a problem that exists in the South Delta. 9 MR. HERRICK: If the question were if you had to pay or 10 not, I can understand that. 11 MR. MEYERS: Pay or mitigate. 12 MR. HERRICK: Do you have any objection to that 13 condition being placed on the Bureau? 14 MR. KEENE: Again, this is you, personally? 15 MR. HERRICK: Yes. 16 MR. MEYERS: Same condition on the Bureau? I imagine 17 that is fine. 18 MR. HERRICK: Do you know whether or not your district 19 has any position on that issue that I just raised? 20 MR. MEYERS: No, I don't have none. 21 MR. HERRICK: I have no further questions. 22 C.O. STUBCHAER: Mr. Herrick. 23 Staff, have any questions of this panel? 24 MS. LEIDIGH: No. 25 C.O. STUBCHAER: Board Members. CAPITOL REPORTERS (916) 923-5447 13254 1 That concludes -- 2 MR. KEENE: I have just a couple redirect. 3 C.O. STUBCHAER: That comes next. We are going to get 4 to that. I was just going to say that concludes the 5 cross-examination of this panel. Do you have any redirect? 6 MR. KEENE: Yes, I do. 7 Let me do it in here. 8 ---oOo--- 9 REDIRECT-EXAMINATION OF SAN LUIS WATER DISTRICT 10 BY MR. KEENE 11 MR. KEENE: Mr. Sagouspe, a couple of questions to 12 clarify your testimony. 13 I believe Mr. Nomellini at one point was asking about 14 review of maps attached to the petitions that the Bureau has 15 filed with the State Board. To your knowledge, has anybody 16 on behalf of the district reviewed any of those maps? 17 MR. SAGOUSPE: No. 18 MR. KEENE: Mr. Nomellini also asked you some questions 19 -- part of your answer had to do with use of CVP facilities 20 to transport water to the encroachment lands if the Board 21 denied the petition in those remaining encroachment lands. 22 Do you know whether or not nonCVP water can legally be 23 transported through CVP facilities to lands outside the 24 place of use? 25 MR. SAGOUSPE: I believe they can't be used for CAPITOL REPORTERS (916) 923-5447 13255 1 transporting nonCVP water. I also believe that you have to 2 get special permission to use any of the facilities, from 3 the Bureau. 4 MR. KEENE: Do you know if there is any way of getting 5 water to the encroachment land in the San Luis District 6 other than using CVP facilities? 7 MR. SAGOUSPE: There is no other way. 8 MR. KEENE: Mr. Meyers, one short question. 9 You had indicated in response to a question by Mr. 10 Nomellini that almond trees, I believe, can be -- can help a 11 farmer pay his bills if they are bearing. 12 What did you mean "when they are bearing"? 13 MR. MEYERS: When they are in production, when they 14 have yield. 15 MR. KEENE: How long does a tree need to be in the 16 ground to yield? 17 MR. MEYERS: Well, profitability begins -- revenue 18 doesn't begin until after the fifth or sixth year. You have 19 all the nonbearing years to repay, capital costs. 20 MR. KEENE: Thank you. 21 C.O. STUBCHAER: Any recross, limited to the scope of 22 the redirect? 23 Mr. Turner. 24 ---oOo--- 25 // CAPITOL REPORTERS (916) 923-5447 13256 1 RECROSS-EXAMINATION OF SAN LUIS WATER DISTRICT 2 BY BUREAU OF RECLAMATION 3 BY MR. TURNER 4 MR. TURNER: Thank you. James Turner representing the 5 Bureau of Reclamation. One quick question. 6 Mr. Meyers, are you at all familiar with what is called 7 the Warren Act under federal reclamation law? 8 MR. MEYERS: Yes, I am, somewhat. I am not super 9 familiar, but I know about it. 10 MR. TURNER: As I understood a minute ago, I thought 11 you had responded to your attorney's question by saying that 12 you cannot wheel, convey nonfederal, nonproject water 13 through project facilities. Is that what you said? 14 MR. SAGOUSPE: I am the one that said it. 15 MR. MEYERS: Not me. 16 MR. SAGOUSPE: You have to have a Warren Act, but that 17 is an annual thing. If you guys would give us a permanent 18 Warren Act, we'd eliminate the problem. 19 MR. TURNER: I just want to get clear on the record 20 that there is a procedure by which you can go ahead and get 21 permission to put the project water in -- 22 MR. SAGOUSPE: Which I did say if you can get 23 permission. You are not allowed to do it. But you can get 24 permission. It is on an annual basis. And by the time you 25 go through that process with the Bureau, you don't need the CAPITOL REPORTERS (916) 923-5447 13257 1 water anymore. You missed the opportunity for use, so -- 2 C.O. STUBCHAER: Ask a question, you get an answer. 3 MR. TURNER: I didn't ask if he liked the arrangement. 4 C.O. STUBCHAER: Okay. Any recross-examination by 5 staff? 6 Board Members? 7 Mr. Keene. 8 MR. KEENE: I am sorry, Mr. Chairman. 9 C.O. STUBCHAER: Are you ready to present your 10 exhibits? 11 MR. KEENE: Yes, if I can only find my list. Perhaps I 12 can ask staff what is -- I believe the last numbered exhibit 13 is Mr. Sagouspe's testimony? 14 MS. LEIDIGH: Nine. 15 MR. KEENE: Yes. The San Luis District would move into 16 evidence exhibits, San Luis District's Exhibits 1 through 17 9. 18 C.O. STUBCHAER: Any objection to the receipt of these 19 exhibits into evidence? 20 Seeing none, they are accepted. 21 Thank you for your participation. 22 MR. KEENE: Thank you. 23 C.O. STUBCHAER: Next will be the case in chief of the 24 Westlands Water District. 25 Mr. Birmingham. CAPITOL REPORTERS (916) 923-5447 13258 1 MR. BIRMINGHAM: Before we begin the presentation of 2 the case in chief, would this be an appropriate time to take 3 our mid-afternoon break? 4 C.O. STUBCHAER: Sure. I was waiting a little later 5 because we didn't start till 1:30. This is fine. 6 (Break taken.) 7 C.O. STUBCHAER: Reconvene the Bay-Delta Water Rights 8 Hearing. 9 Mr. Herrick. 10 MR. HERRICK: Before we start, if I may. On 11 cross-examination of the Bureau's witnesses under this phase 12 I asked some questions about the actual maps used to produce 13 the maps in the EIR. I asked if those could be produced. I 14 sent a letter to the Bureau. The Bureau has brought them. 15 I don't know how many. There is seven maps. I was 16 wondering if the Board would agree to me just labeling that 17 an exhibit of mine. I will make a copy. I will give the 18 Board a full-size copy and 19 smaller copies, if that is 19 okay with everybody. That is a good way to have the record 20 complete as to what that is. Rather than me ask the ladies 21 here to show up again for a rebuttal case just to introduce 22 the maps. 23 C.O. STUBCHAER: What time frame would we look at for 24 reproduction distribution? 25 MR. HERRICK: They offered to make one copy, give a CAPITOL REPORTERS (916) 923-5447 13259 1 full size to me. I'll go immediately and mail them out 2 immediately. 3 C.O. STUBCHAER: Comments. 4 Mr. Keene. 5 MR. KEENE: The size of the full size, I am not quite 6 clear on what that is. If it is going to be a map this big 7 that is shrunk down to eight-and-a-half-by-eleven, I am 8 going to want to see the full size. 9 C.O. STUBCHAER: Mr. Campbell, you're up here for the 10 direct? 11 MR. C. CAMPBELL: Yes. 12 C.O. STUBCHAER: Mr. Atlas. 13 MR. ATLAS: I am sorry, I was outside. These place of 14 use maps -- 15 MR. HERRICK: The maps that the Bureau provided to CH2M 16 Hill, which resulted in the Figures 2-1 through 2-6. 17 C.O. STUBCHAER: Do you have the map with you, one of 18 the maps? Could you hold it up so we can see the size? 19 MS. RUPP: That is half of Folsom. 20 MR. NOMELLINI: We'll look at them and start the phase 21 over. 22 C.O. STUBCHAER: Mr. Herrick, are you talking about 23 reproduction of size? 24 MR. HERRICK: If I subpoena them and ask them to come 25 just to put that part in the record, that is my question. CAPITOL REPORTERS (916) 923-5447 13260 1 If the Board wants me to make a full size, I will 2 unfortunately do that. But, I would propose I make a full 3 size for the Board and provide other people with a 4 reasonable sort of map, maybe two or three pages. 5 MR. KEENE: Mr. Chairman, what I would suggest, if we 6 can have schedules and time, maybe first thing tomorrow 7 morning. We have the opportunity to review the full size. 8 Then I might be more willing to accept a small reproduction 9 once I had the opportunity to examine the maps that are 10 relevant to my client. 11 C.O. STUBCHAER: Mr. Birmingham. 12 MR. BIRMINGHAM: One alternative. If the party would 13 like to have a full-size map, perhaps they could agree to 14 reimburse Mr. Herrick's firm for the cost of reproducing a 15 set of full size for that party. We would like to have a 16 full size, and we would be willing to reimburse Mr. Herrick 17 for the reproduction cost to obtain a full size. 18 C.O. STUBCHAER: Mr. Nomellini. 19 MR. NOMELLINI: I was going to suggest that a number of 20 us join together, share the costs and get the full size 21 reproductions out. Because just managing his office trying 22 to manage collecting the money from everybody would probably 23 be a -- 24 C.O. STUBCHAER: Any party here not willing to share in 25 the cost of the full-size reproductions? CAPITOL REPORTERS (916) 923-5447 13261 1 MR. KEENE: The other question I have, Mr. Chair, how 2 long that would take. I would like to have the opportunity 3 to look at those maps since they have been produced before I 4 finish my closing argument. 5 MR. HERRICK: I will just suggest we can look at the 6 maps today or tomorrow, and as quickly as the Bureau gets me 7 a copy I can get a copy to everybody. 8 MR. KEENE: That would be acceptable to me. 9 MR. HERRICK: I will -- South Delta with make all the 10 maps, one exhibit, or 58 is the next number. 11 MR. NOMELLINI: Who else is going to join in the cost? 12 C.O. STUBCHAER: Everyone who wants a full size please 13 stand so we can get an idea here. 14 MR. TURNER: We already have one. 15 MR. HERRICK: I will work that out. 16 C.O. STUBCHAER: Thank you. 17 Mr. Campbell. 18 MR. C. CAMPBELL: Good afternoon. I am Christopher 19 Campbell. As I previously mentioned, I represent certain of 20 the expansion and encroachment landholders within Westlands 21 Water District. We have two of them here today: Mayo Ryan 22 representing his family and Larry Turnquist representing 23 Redfern Ranches. To consolidate things for the Board, we 24 have put them on a panel with the Westlands District, well, 25 whatever he is. But to enhance the coherence of this Mr. CAPITOL REPORTERS (916) 923-5447 13262 1 Birmingham will handle all of the direct testimony and 2 handle the panel. 3 C.O. STUBCHAER: Joint presentation, then, Westlands 4 Water District and Westlands Encroachment landowners. 5 MR. C. CAMPBELL: Yes. 6 ---oOo--- 7 DIRECT EXAMINATION OF WESTLANDS WATER DISTRICT AND 8 WESTLANDS EXPANSION AND ENCROACHMENT LANDHOLDERS 9 BY MR. BIRMINGHAM 10 MR. BIRMINGHAM: Good afternoon. To speed things 11 along, I will waive a right to present an opening statement 12 and get right to the testimony. 13 There are, as Mr. Campbell said, three witnesses who 14 are appearing this afternoon. I would like to begin with 15 the testimony of Stephen Ottemoeller. 16 They were all present -- I have been asked by staff if 17 they were sworn. They were present this morning when there 18 was a mass oath administered. 19 Beginning with the testimony of Stephen Ottemoeller who 20 previously appeared before the Board in these proceedings, 21 Mr. Ottemoeller, do you have a copy of Westlands Exhibit 14 22 with you? 23 MR. OTTEMOELLER: Yes, I do. 24 MR. BIRMINGHAM: Westlands Water District Exhibit 14 is 25 the testimony of Stephen Ottemoeller for Phase VII? CAPITOL REPORTERS (916) 923-5447 13263 1 MR. OTTEMOELLER: Yes. 2 MR. BIRMINGHAM: Would you please summarize the 3 testimony that has been prepared and submitted as Westlands 4 Exhibit 14. 5 MR. OTTEMOELLER: Yes. Westlands, as I mentioned in my 6 testimony on prior phases, is a California water district 7 located on the west side of the San Joaquin Valley. The 8 district has two contracts with the Bureau of Reclamation, 9 comprising a total of 1,150,000 acre-feet of CVP water. The 10 water is primarily exported from the Delta and used to 11 irrigate approximately 600,000 acres of land. 12 Westlands is within the San Luis Unit of the CVP, which 13 was authorized in 1960. Westlands entered into its first 14 water supply contract with the United States in 1963. Under 15 that contract Westlands was entitled to receive 900,000 16 acre-feet. In 1965, Bureau of Reclamation urged that 17 Westlands merge with its neighbor at the time, Westplains 18 Water Storage District for geographic purposes. Generally 19 the western third of the district, those lands which lie to 20 the west of the California Aqueduct/San Luis Canal are the 21 lands that made up the Westplains Water Storage District. 22 That merger took place and the Bureau of Reclamation 23 committed to an additional 250,000 acre-feet to serve the 24 additional 194,000 acres of land. 25 To cut a long story short, in 1986 the Federal Eastern CAPITOL REPORTERS (916) 923-5447 13264 1 -- U.S. Court for the Eastern District of California entered 2 into a judgment called Barcellos and Wilson, Incorporated, 3 et al., versus Westlands Water District. And at the end of 4 that judgment it was determined that all of the lands in 5 Westlands boundaries are within the CVP service area. 6 Now, the State Water Resources Control Board is being 7 asked to decide whether or not to approve a petition on 8 changes for place and purpose of use. Under the Draft EIR, 9 that was prepared by the United States, there are two types 10 of land that you've talked about, expansion lands and 11 encroachment lands. Expansion lands being those lands that 12 are outside the current permitted place of use as described 13 in the Bureau's permits that have never received CVP water, 14 but are entitled to service under CVP contracts. 15 Encroachment lands being those lands that have received CVP 16 water. 17 Just as a matter of clarification, there are acreages 18 within Westlands that are or that the total acreage within 19 Westlands that is outside the permitted place of use is 20 49,401 acres. But the number of acres that are classified 21 in the Draft EIR as native vegetation is incorrect. And 22 there is a table in my testimony that shows the appropriate 23 corrections to those lands, changing for the most part lands 24 from expansion lands to encroachment lands. This is based 25 on information provided by the landowners and verified by CAPITOL REPORTERS (916) 923-5447 13265 1 the district. 2 In Westlands Water District, approval of the petition 3 for consolidation of place of use would not affect the 4 total amount of water used within the district, even if the 5 change in place of use were approved Westlands' entire 6 contract supply -- 7 MR. BIRMINGHAM: I believe you misspoke even if the 8 changes were not approved. 9 MR. OTTEMOELLER: I am sorry. If the place of use 10 were not approved, Westlands' higher contract supply would 11 be put to reasonable and beneficial use on other district 12 lands which are within the existing permitted place of use. 13 There are some negative impacts that would occur from 14 denying the petition. Those lands that are outside the 15 place of use would no longer be able to receive CVP 16 water. And, therefore, would be more difficult for them to 17 continue their farming operations. In some cases farmers 18 would make choices because of price and the difficulty in 19 getting water not to farm those lands. 20 In summary, those lands that are -- if those lands are 21 not included in the permitted place of use, there would be 22 significant farming investments potentially lost. Now, 23 there has been testimony previously by Westlands Water 24 District, so I won't go into a lot of detail. Essentially, 25 lost revenue in Westlands based on this is total economic CAPITOL REPORTERS (916) 923-5447 13266 1 value within the district equates to about $1,500 per acre. 2 And the example being if 400 acres is taken out of 3 production due to fallowing, you are seeing a $600,000 4 impact in the area. 5 In addition, the traditional view of farming operations 6 is such that for every 80 acres of land that goes out of 7 production, you've got one full-time farm worker that 8 doesn't have a job. So, these are the types of impacts that 9 occur when land is taken out of production. 10 There are other impacts from land being taken out of 11 production, particularly in the areas of the district where 12 these encroachment lands exist. One of them is the air 13 quality problem. Some of those lands, if not farmed, are 14 contributing to dust problems, fugitive and dust emissions 15 from fallow fields have been known to cause exceedances of 16 air quality regulations on the PM 10 standard and have also 17 contributed to accidents along I-5. Generally, that is the 18 vicinity of most of the lands which are under 19 consideration. 20 By approving the petition to change the permitted 21 place of use for encroachment lands and expansion lands 22 within Westlands, you would be protecting existing farming 23 investments and the economic stability of the region. 24 The other issues on which I am testifying is related to 25 the Bureau's petition to conform the purposes of use in CAPITOL REPORTERS (916) 923-5447 13267 1 their 16 individual permits to appropriate water. If 2 approved by the State Board, Reclamation would then be 3 permitted to appropriate water under each permit for 4 numerous purposes including fish and wildlife enhancements. 5 The permits that are subject to the Bureau's petition, 6 only two currently authorize appropriation for fish and 7 wildlife purposes. Those are permits Numbers 11 -- 11969 8 and 11973, which the Bureau obtained appropriate water from 9 the Trinity River. 10 It is my opinion that if each of the Reclamation's 11 permits were changed to permit the appropriate water for 12 fish and wildlife enhancement, that the quantity of water 13 that would be available for the water users in Westlands 14 would be reduced, and that reduction, as we have talked 15 about before, can cause substantial injury. 16 The impacts of permitting -- of changing the permitted 17 purposes are best demonstrated by looking at the actual 18 consequences of the Bureau's implementation of CVPIA. 19 Except in times of actual water shortages due to drought, 20 the Bureau makes available all amounts of water specified in 21 the terms of its water service contracts. At least that is 22 what it used to do, except in 1977 when water deliveries 23 under long-term service contracts were reduced because of 24 the drought conditions. The Bureau provided full contract 25 supplies to all of its CVP export water service contractors CAPITOL REPORTERS (916) 923-5447 13268 1 and also those in the Sacramento Valley, up through 1989. 2 Actually up to and including 1989 the Bureau usually 3 provided what was called interim water, kind of a foreign 4 concept now. Water that the Bureau had available to deliver 5 to its contractors because not all of the contractors were 6 taking their full contracted supply. 7 In 1992, CVPIA became law. And among CVPIA's purposes 8 were to protect, restore and enhance fish and wildlife. 9 CVPIA directed that the Secretary of the Interior take 10 certain steps for the benefits of fish and wildlife, 11 including dedication of 800,000 acre-feet of CVP yield for 12 the primary purpose of implementing CVPIA fish and wildlife 13 habitat restoration purposes. It also included a completion 14 of a Trinity River fish flow evaluation study which would 15 lead to development of recommendations for in-stream fishery 16 flow requirements for the restoration and maintenance of the 17 Trinity River fishery, and it also included deliveries to 18 specific quantities of water to wildlife refuges. 19 Notwithstanding CVPIA Section 11(a) which provides that 20 the Secretary of Interior obtain modification for the 21 purposes of use, combined or contained in the Bureau's 22 permits, before reallocating water to a purpose that is not 23 contained in those permits, Reclamation began implementing 24 some of those fish and wildlife provisions in 1993. For 25 example, if water -- used water that was appropriated under CAPITOL REPORTERS (916) 923-5447 13269 1 its permits 11315 and 11316 to enhance the American River 2 fishery. Reclamation also used water appropriated under 3 permits 12721, 12722 and 12723 to supply water to wildlife 4 refuges in the Sacramento and San Joaquin Valleys for the 5 benefit of waterfowl. 6 CVP water supplied to wildlife refuges in the San 7 Joaquin Valley is diverted at the Tracy pumping plant and 8 conveyed in the Delta-Mendota Canal. The Bureau's water 9 rights permits do not authorize the use of these CVP 10 facilities for those purposes. Water year 1993-94 -- let me 11 explain. That is district water year which starts in 12 February was an above normal year. The hydrologic water 13 year would have been starting in October of '92 and going 14 into September of '93, which would be the above normal 15 year. At any rate, based on my experience and the way the 16 Bureau used to operate the system, prior to the CVPIA 17 including the biological opinion for the winter-run salmon, 18 it is my opinion that if the fish and wildlife provisions of 19 CVPIA had not been implemented during that 1993 water year, 20 CVP contractors would have received, essentially, a hundred 21 percent allocation. 22 Instead and primarily because of CVPIA, the CVP 23 contractors received a 50-percent allocation. In March of 24 1994, another example, it was a critically dry year. 25 Reclamation announced that CVP agriculture contractors would CAPITOL REPORTERS (916) 923-5447 13270 1 receive a 35-percent supply. The reduction resulted in part 2 from below normal participation but also from implementation 3 of CVPIA. The implementation of the Endangered Species 4 Act. During that year, Westlands obtained a preliminary 5 injunction to prevent implementation of the 800,000 6 acre-feet of dedication for wildlife refuge supply 7 provisions of the CVPIA. The United States District Court, 8 based on the injunction and in part on the injury that would 9 result to Westlands users if this -- the injunction was 10 based in part on the impacts that would occur to water users 11 in Westlands. After the injunction was entered, during that 12 water year, Westlands received an increase in its water 13 supply from 35 percent to 42 percent of its contracted 14 supply. 15 Those events demonstrate that if the Bureau is 16 permitted to appropriate more water for enhancement of fish 17 and wildlife than is currently permitted, then the quantity 18 of water it can supply to CVP contractors will be reduced. 19 A very significant impact on the export areas is the 20 delivery to fish and wildlife refuges. Those deliveries by 21 themselves significantly reduce the water supply that can be 22 allocated to contractors south of the Delta. 23 Modeling studies have indicated similar impacts into 24 the future. Based on implementation of CVPIA, both those 25 modeling studies that have been done by the authority and CAPITOL REPORTERS (916) 923-5447 13271 1 Westlands, as well as the studies that the Bureau has done 2 under their own programmatic EIS, generally those model runs 3 indicate that Westlands' long-term water supply is going to 4 be reduced on the order of 25 to 35 percent. Some of those 5 reductions may be based on Bureau obligations to comply with 6 biological opinions of the 1995 Water Quality Control Plan. 7 But a substantial part of that impact does result from the 8 CVPIA's operation intended to enhance fish and wildlife. 9 Another significant concern is changes in Trinity River 10 diversion for CVP. Under CVPIA, the Trinity River flow 11 evaluation study, a draft of which was released in 1998, has 12 flow recommendations that would result in significant 13 increases in the releases on the Trinity River from their 14 current level of a maximum of 340,000 acre-feet to levels 15 ranging from 368,000 acre-feet in a critically dry year to 16 815,000 acre-feet in a very wet year. 17 Specifically, Permit Number 11969 does permit the 18 appropriation of water for fish and wildlife enhancement 19 from the Trinity River. However, the application, Number 20 15375, which resulted in that permit, states that the use of 21 water for fish and wildlife appropriated under that permit 22 application would occur in the Sacramento and not the 23 Trinity River. And I won't go in to reading the specific 24 detail of that supplemental application, but it is in my 25 testimony. CAPITOL REPORTERS (916) 923-5447 13272 1 The conclusion is that the appropriation of water to 2 meet the schedule of releases in the draft flow study is not 3 authorized under the existing permit. Generally, as a 4 result of CVP -- reduced CVP water supplies, water users in 5 Westlands will have to rely on alternative supplies. We 6 have discussed those before. It includes groundwater to a 7 significant extent. It includes land fallowing under 8 certain conditions, and it also includes water transfers. 9 I previously testified on the impacts of the reliance 10 of groundwater, including environmental impacts and land 11 subsidence impacts. In addition, we've got potential 12 decreases in the quality of the water. As more groundwater 13 is used, one impact of that is to increase the soil salinity 14 and decreasing the yield of crops that are forced to use 15 that groundwater. 16 As I mentioned before, another alternative supply is 17 water transfers. Westlands and its individual water users 18 have become fairly adept at obtaining water supplies from 19 other sources. But bear in mind we have to do that every 20 year. As water supply years -- in years when there is a 21 shortage, that becomes even more difficult because places 22 that are specifically sources of transferred water are also 23 water short. 24 The other impact of dealing with water transfers is 25 that typically it comes on higher costs. And in my written CAPITOL REPORTERS (916) 923-5447 13273 1 testimony I identify some specific numbers. In the interest 2 of time I won't go into those. I will just note that 3 short-term transfers are less reliable. Long-term 4 transfers, typically the water cost is higher. As you -- 5 particularly in the instance of the encroachment lands, if 6 they had to rely on transfer water or groundwater instead of 7 the CVP water, not withstanding their ability, potential 8 ability, to get water, the cost would be significantly 9 higher and supports the conclusion earlier in my testimony 10 that it would have economic impacts on those farmers if 11 their land is not permitted to receive CVP water. 12 That concludes my testimony. 13 MR. BIRMINGHAM: Next Westlands Water District would 14 like to call Mayo Ryan. 15 Mr. Ryan, Westlands Water District Exhibit 21 is the 16 testimony of Mayo Ryan for Phase VII on behalf of those 17 landowners represented by Baker, Manock & Jensen; is that 18 correct? 19 MR. RYAN: I believe so. This doesn't have an 20 exhibit. 21 MR. BIRMINGHAM: I would like to show to you what has 22 been marked for identification as Westlands Exhibit 21. Is 23 Westlands Exhibit 21 the testimony of Mayo Ryan for Phase 24 VII on behalf of the landowners that are represented by 25 Baker, Manock & Jensen? CAPITOL REPORTERS (916) 923-5447 13274 1 MR. RYAN: Yes, it is. 2 MR. BIRMINGHAM: Mr. Ryan, would you please summarize 3 the testimony that has been submitted as Westlands Water 4 District Exhibit 21. 5 MR. RYAN: I think it would be just as quick to read 6 through this. It is very brief, as it would take me to 7 summarize the exhibit. 8 I want to make a couple clarifications here today. My 9 name is Mayo Ryan. I've been farming in the Westlands Water 10 District area since 1959. That is rather than 1956. My 11 grandfather began acquiring land, not necessarily farming, 12 in the area and also my father as early as the 1900s. And 13 much of that land is still held by me, my mother and my 14 brothers and sister. With my sons and my daughter I farm an 15 additional 3,300 acres of which approximately 1292 acres is 16 located outside the technical place of use described in 17 Bureau of Reclamation's appropriations permits from the 18 State Water Resources Control Board. 19 I have extensive experience with the property and land 20 values within the district. In addition to being a farmer, 21 I am also a licensed real estate broker. And I have been 22 involved in various transactions affecting many thousands of 23 acres within the district. I have appraised many properties 24 within the district for financial institutions, the district 25 itself and for private parties. Furthermore, I served as CAPITOL REPORTERS (916) 923-5447 13275 1 the secretary/tax treasurer/tax collector and assessor for 2 the district in the 1960s. 3 Throughout my involvement with the district and my 4 career as an appraiser-broker and farmer it's always been my 5 understanding that all land within the district boundary 6 was eligible to receive federal project water subject to 7 federal Reclamation law. I was never informed or made 8 aware, either as a broker, appraiser or farmer or district 9 official that any land within the district was outside the 10 place of use described in the Bureau of Reclamation's 11 permits. Therefore, technically ineligible to receive 12 water. 13 Had such information been readily available to the 14 general public and specifically to real estate 15 professionals, I would have been aware of it. It would have 16 been my duty to disclose such information to parties in any 17 transactions involving land located outside the technical 18 place of use. Such information would definitely have 19 affected value of such land reflecting an inherent risk of 20 potential loss of project water. 21 Based on my experience and knowledge of the local real 22 estate market, my family has acquired through purchase or 23 lease approximately 3,300 acres of property since 1995 that 24 we currently farm. When we acquired these properties, the 25 purchase and lease prices did not reflect any difference for CAPITOL REPORTERS (916) 923-5447 13276 1 lands outside the technical place of use. Before acquiring 2 the property, we investigated the availability of water to 3 the property with the district and Bureau of Reclamation. 4 We were assured by both agencies that the property was 5 entitled to receive water subject to compliance with various 6 district and Reclamation law requirements. 7 No one ever indicated to us that approximately 1,292 8 acres of our current farming operation would be ineligible 9 to receive project water because it was outside the 10 technical place of use. In fact, we have never had any 11 reason to believe these properties were not entitled to 12 receive project water. All of these properties have been 13 irrigated with project water for many years. Because the 14 Westlands distribution system is not completed in our area, 15 prior owners have installed permanent irrigation facilities 16 and distribution systems that are designed to irrigate the 17 entire property, including the portion outside the technical 18 place of use. 19 The facilities are owned by the district and operated 20 by the Ryan family pursuant to permits from the Department 21 of Water Resources. I understand that DWR inspected and 22 approved the entire design of the system, including the 23 portion that supplied water to ground which we are now told 24 is outside the technical place of use. Because we 25 reasonably believed water was available to these properties, CAPITOL REPORTERS (916) 923-5447 13277 1 we made substantial investments and long-term improvements. 2 We have built and now supply housing to our employees, 3 installed the water filtration plant for drinking water and 4 installed several miles of additional irrigation pipeline 5 and installed miles of pipeline for natural gas deliveries 6 and installed a sophisticated computer system to relegate 7 irrigation flow. 8 We employ approximately 26 full-time employees, 9 providing them higher than market wages, health benefits, 11 10 paid holidays, and many other benefits not typically found 11 in agricultural employment. Three families live on our 12 farms in houses built by us since buying the property. Four 13 children have been born to these families and paid for by a 14 farm insurance package. One child of an employee recently 15 had a disfiguring birth defect surgically repaired through 16 our health insurance. 17 In short, in addition to the substantial amount of 18 investments we have made to the property, we have made 19 personal, human one, too. 20 Our property is farmed by three operating entities. 21 Although we operate these three farming companies 22 independently, the family makes large-scale investments, 23 considering the proportion benefit to each company. At 24 least one of these companies is now in jeopardy of losing 25 much of its project water supply if the technical place of CAPITOL REPORTERS (916) 923-5447 13278 1 use is not expanded to include all lands within the district 2 boundary. Had we had any question about the availability of 3 project water to all of our properties, we would never have 4 made such extensive and expensive improvements over the last 5 three years. Nor would we have jeopardized the state of 6 affairs with regard to our employees and their livelihood. 7 In fact, had we known that there was any reasonable 8 possibility that these properties were not fully entitled to 9 project water, we would not have acquired any of the 3,300 10 acres that we currently farm and would have acquired other 11 properties that were available to purchase in 1995. 12 In sum, I have had extensive involvement with real 13 estate in the district. And despite my extensive 14 involvement and comprehensive awareness of property and 15 property values in the area, I have never been aware of any 16 land within the district's boundary that was outside the 17 technical place of use described in the Bureau's 18 appropriation permit. In fact, my family has made 19 substantial investments based on our reasonable and 20 well-educated understanding that not all land within the 21 district boundaries are eligible, subject to district's and 22 Bureau's requirements, to receive project water. 23 Thank you. 24 MR. BIRMINGHAM: Next Westlands Water District would 25 like to call Larry Turnquist. CAPITOL REPORTERS (916) 923-5447 13279 1 Mr. Turnquist, I am showing to you a document that has 2 been marked for identification as Westlands Exhibit 22. 3 Is Westlands Exhibit 22 the testimony of Larry 4 Turnquist for Phase VII on behalf of landowners represented 5 by Baker, Manock & Jensen? 6 MR. TURNQUIST: Yes, it is. 7 MR. BIRMINGHAM: Mr. Turnquist, would you please 8 summarize the testimony that has been submitted as Westlands 9 Water Exhibit 22. 10 MR. TURNQUIST: Certainly. I served on the Westlands 11 Water District Board of Directors from 1982 until 1994. For 12 the last two of those years, 1992 through '94, I was 13 president of the Board of Directors at Westlands. I had 14 also served on a group known as the California Westside 15 Farmers who were basically from an independent group of 16 Westlands landowners and farmers who sought after revision 17 of the reclamation law. That effort concluded in 1982 with 18 what we now refer to as Title 1, Title 2 Reclamation law. 19 I am currently general manager at Redfern Ranches. 20 As to this place of use and Redfern Ranches, there is 21 1,800 acres which represents three sections of land which is 22 directly affected. Two of those sections are Westlands 23 Water District. One of them is in San Luis Water District. 24 You heard from the previous panel. 25 This land was purchased by Mr. Redfern in 1942. World CAPITOL REPORTERS (916) 923-5447 13280 1 War II was just about to begin or just began. He had 2 started farming on the west side of Fresno County in 3 1927 and lived a very fruitful life until 1993. He passed 4 away at the age of 98, and the farming business was his 5 life. 6 I have had the opportunity to review aerial photographs 7 of this land that is in question. And the aerial 8 photographs were taken in May of 1967. They define, without 9 question to me, that the Westlands' land, Sections 28 and 10 Sections 22, had been farmed prior to this photograph or 11 these photographs in 1967. You can see the disk marks and 12 the figure eights, the patterns of the disk turning. 13 Typically at that time, I was involved in another farming 14 operation, but part was in Westlands. And a typical program 15 was where water supply was not available, there was dry 16 farming planted to grain, probably every third or fourth 17 year and laid out for two or three years for the ability for 18 the soil to accumulate moisture and would be planted to 19 grain again. Strictly a roll of the dice. But these aerial 20 photographs very definitively tell me that this land had 21 been farmed prior to 1967. 22 There has never been any reason to be suspect that 23 these lands were not eligible for CVP water. There is no 24 piece of the puzzle that I can find through my own personal 25 information or through records within Westlands Water CAPITOL REPORTERS (916) 923-5447 13281 1 District that there would ever have been a limitation of 2 these lands not being served by CVP water. 3 There has been numerous federal and state actions that 4 have affected these lands over an extensive amount of 5 time. I talked about those aerial photographs in 1967; one 6 of those photographs on one of the sections shows the 7 construction of Interstate 5. It wasn't finished, but it is 8 laid out and quite defined. 9 When Caltrans took that land, they took about 20 acres 10 from the Redfern Ranch. But interestingly enough, now comes 11 in question were these lands eligible to receive water. 12 Caltrans, a state agency, built physical structure 13 facilities underneath the freeway, underneath I-5, to 14 distribute water from the canal which is of I-5 to the lands 15 that are uphill of I-5. Caltrans also built drain pipes so 16 as we had runoff from one field on one side of the freeway 17 we could catch it and use it on the other side of the 18 freeway. These were State of California actions. 19 Also, the U.S. Bureau of Reclamation built distribution 20 facilities in the '70s to serve the 1,200 plus acres that is 21 in Westlands Water District. In my recollection in years at 22 Westlands there was never a question that arose when it came 23 time to build structural facilities within the district that 24 there might be land that could not be served by the 25 structures that were being built by the U.S. Bureau of CAPITOL REPORTERS (916) 923-5447 13282 1 Reclamation. 2 Since 1993, the year following implementation of CVPIA, 3 Redfern Ranches has transferred water from the Central 4 California Irrigation District under the rules of CVPIA to 5 three federal districts that are served by the San Luis 6 Unit. Those are San Luis Water District, the Panoche Water 7 District and Westlands Water District. We had done annual 8 transfers for 1993 and 1994. In 1995 we entered into a 9 three-year transfer under CVPIA, the water being delivered 10 to all of those three districts. The process for those 11 transfers is quite extensive. It requires a CEQA review. 12 The documentation is processed through the water district, 13 in this case at Central California Irrigation District. It 14 is then handed to the U.S. Bureau of Reclamation for their 15 review and distribution. It is commented on by California 16 Fish and Game. It is commented on by U.S. Fish and Wildlife 17 Service. And I am not sure how many other agencies. But 18 never during any of those transfers has a question been 19 raised that this water could not be transferred and used 20 within Westlands Water District, or within San Luis Water 21 District, the two districts that are of issue this 22 afternoon. 23 We are now in the process of beginning a similar but a 24 five-year transfer. The mechanism is in place and that will 25 probably be completed in about two months. CAPITOL REPORTERS (916) 923-5447 13283 1 Also specific actions that have taken -- the Redfern 2 family entered into -- Redfern Ranches entered into a group 3 of recordable contracts which are required under reclamation 4 law for excess land holders which requires them to within a 5 ten-year period of receiving federal water that they must 6 dispose of the lands at a price that does not reflect the 7 presence of surface water, CVP water. Those lands were sold 8 within that ten-year period at a price that was approved by 9 the Bureau of Reclamation. It was sold to two trusts set up 10 for two of Mr. Redfern's grandsons. It was formerly 11 terminated at the end of the ten-year period in 1988. It 12 came with a condition that those lands could not be sold for 13 another ten years, and those ten years have elapsed. It is 14 still in the two trusts for Mr. Redfern's grandchildren. 15 But never during that time was a question raised, and I have 16 gone back and read an extensive number of documents 17 concerning that, was there any question that came about from 18 any group or any agency that said that these lands could not 19 be served by federal CVP water. 20 Redfern Ranches has abided with reclamation law which 21 now requires a limitation of 960 acres per family. And it 22 has limited its ownership. There are only four family 23 members and has limited their ownership to 960 acres per 24 person. Because of reclamation law, they have not been able 25 to acquire any other lands in federal districts. But yet CAPITOL REPORTERS (916) 923-5447 13284 1 the question arises, these lands may not be eligible to 2 receive federal water. I would like to read the last 3 paragraph from my prepared statement: 4 The Redferns have reasonably relied on the 5 actions of many state and federal agencies 6 in farming, improving and holding the 7 Westlands properties. Even to the exclusion 8 of acquiring other properties. The Redferns 9 have never been given any reason to believe 10 that Westlands property were not entitled to 11 receive project water and specifically had no 12 reason to know that such properties were 13 located outside the technical place of use. 14 If technical place of use is not expanded to 15 include all land within district boundaries, 16 the Redferns will be severely harmed. 17 (Reading.) 18 Thank you for your time. 19 MR. BIRMINGHAM: This panel will now be available for 20 cross-examination by the other parties, although I doubt 21 that any of the parties have cross-examination. 22 C.O. STUBCHAER: We will find out. 23 Who wishes to cross-examine this panel? 24 Mr. Turner, Mr. Sexton, Mr. Atlas, Mr. Nomellini, Mr. 25 Jackson and Mr. Herrick. We ought to ask who can complete CAPITOL REPORTERS (916) 923-5447 13285 1 their cross-examination in less than 30 minutes. 2 Just two. We are going to give priority to these 3 folks, if you don't mind. If you want to take your chance 4 on the lottery, and maybe go last, that is up to you. 5 Mr. Atlas. 6 MR. ATLAS: That is fine. Please proceed. 7 MR. BIRMINGHAM: Excuse me, Mr. Stubchaer. Mr. Ryan 8 has expressed some concerns about his availability tomorrow. 9 I wonder if we could ask if there are any parties that have 10 questions of Mr. Ryan and, if they do, have them ask those 11 questions this afternoon. 12 MR. ATLAS: I have none. My questions are only for Mr. 13 Ottemoeller. 14 C.O. STUBCHAER: Who has questions of Mr. Ryan? 15 Mr. Nomellini and Mr. Herrick. 16 Can you conclude those within the time remaining? 17 Mr. Herrick first. 18 ---oOo--- 19 CROSS-EXAMINATION OF WESTLANDS WATER DISTRICT AND 20 WESTLANDS EXPANSION AND ENCROACHMENT LANDHOLDERS 21 BY SOUTH DELTA WATER AGENCY 22 BY MR. HERRICK 23 MR. HERRICK: Mr. Chairman, John Herrick for South 24 Delta Water Agency, again. 25 Mr. Ryan, I just have one or two questions. Your CAPITOL REPORTERS (916) 923-5447 13286 1 testimony goes on at length to say that there was no 2 indication to you that there was any problem with the 3 delivery of water to your district; is that correct? 4 MR. RYAN: That's correct. 5 MR. HERRICK: Do you have a copy of the Draft 6 Environmental Impact Report in front of you? 7 MR. RYAN: No, I do not. 8 MR. HERRICK: Perhaps your attorney could supply one. 9 If you can turn to the back, the Appendix, which pages start 10 with A-1 in the back. 11 Now, if you will turn to page A-8. This is, apparently 12 anyway, a notice sent out to the public regarding the 13 Bureau's similar petition to conform and consolidate the 14 places and purchases of use sent out in December 1986. 15 To your knowledge, did your district receive a copy of 16 this notice? 17 MR. RYAN: I can't say whether the district received it 18 or not. I, as an individual, certainly didn't. 19 MR. HERRICK: You would acknowledge that the acreage 20 that you are talking about being affected was purchased or 21 leased by you or your family since 1995; is that correct? 22 MR. RYAN: Yes, December of 1995 is when we acquired 23 it. 24 MR. HERRICK: I have no further questions. 25 C.O. STUBCHAER: Mr. Nomellini. CAPITOL REPORTERS (916) 923-5447 13287 1 Are those cookies for everyone? 2 MR. NOMELLINI: I didn't make any representation that I 3 could finish by 4:00. I am going to give it a shot. 4 Let me pass these out first. 5 C.O. STUBCHAER: These are questions for Mr. Ryan. 6 MR. NOMELLINI: Yes, sir. 7 C.O. STUBCHAER: Go ahead. 8 ---oOo--- 9 CROSS-EXAMINATION OF WESTLANDS WATER DISTRICT AND 10 WESTLANDS EXPANSION AND ENCROACHMENT LANDHOLDERS 11 BY CENTRAL DELTA PARTIES 12 BY MR. NOMELLINI 13 MR. NOMELLINI: Dante John Nomellini for Central Delta 14 Parties. 15 Mr. Ryan, first of all, could you look at Figure 3-26 16 from the draft environmental document. I think you have 17 that in front of you over there. 18 MR. RYAN: Where is that? 19 MR. NOMELLINI: I would note for the record that 20 neither Mr. Ryan's copy nor mine has a page number on it. 21 MR. BIRMINGHAM: Immediately following Page 3-148 of 22 State Water Resources Control Board Staff Exhibit 2. 23 MR. NOMELLINI: I will agree to that. 24 Mr. Ryan, where on Figure 3-26 is the land holding 25 which your family has? CAPITOL REPORTERS (916) 923-5447 13288 1 MR. RYAN: It's hard to see it here, but it is in 2 Township 16 south, Range 14 east. Just to the west of the 3 California Aqueduct, and we are just to the east of 4 Interstate I-5. The sections in question are Sections 27 -- 5 part of 27, 28 and 34. 6 MR. NOMELLINI: Is it near Cantua Creek? 7 MR. RYAN: Yes. It is about maybe eight to ten miles 8 west of Cantua Creek. 9 MR. NOMELLINI: Is there a descriptive item on the map 10 that you can make reference to? 11 MR. RYAN: No, there really isn't. It is just out in 12 the middle of nowhere. 13 MR. NOMELLINI: Can you put your finger on it? 14 MR. RYAN: If I can see this better, the Township 17 15 south. That is 16 south. It would be right in here. I 16 think it goes from Interstate 5 up to that California 17 Aqueduct there, the distance of about five miles. 18 MR. NOMELLINI: We are pointing above Cantua Creek? 19 MR. RYAN: Cantua Creek is located in the southwest. 20 On the map it shows it -- 21 MR. C. CAMPBELL: It runs basically from where the C is 22 in California Aqueduct down to the township line. 23 MR. NOMELLINI: Directly down below the "C" on 24 California Aqueduct is shown on Figure 3-26, roughly; is 25 that correct? CAPITOL REPORTERS (916) 923-5447 13289 1 MR. C. CAMPBELL: To the township line. 2 MR. NOMELLINI: Your land is outside the existing 3 permitted place of use as shown on Figure 3-26; is that 4 correct? 5 MR. RYAN: A portion of it. 6 MR. NOMELLINI: Do you recall roughly what the acreage 7 is of the portion that is outside? 8 MR. RYAN: Approximately 1,292 acres. 9 MR. NOMELLINI: You indicated that you purchased this 10 land about three years ago? 11 MR. RYAN: December of 1995 closed escrow. 12 MR. NOMELLINI: At the time of your purchase were you 13 aware that the allocation to the Westlands Water District 14 was approximately 35 percent of the contractual entitlement? 15 MR. RYAN: In 1995? 16 MR. NOMELLINI: In 1994. 17 MR. RYAN: We weren't involved in the operation in 1994 18 or 1995. We started farming for the 1996 crops. 19 MR. NOMELLINI: Were you aware of the size of the 20 allocation to the Westlands Water District in 1994 when you 21 purchased your property in 1995? 22 MR. RYAN: No. 23 MR. NOMELLINI: Did you inquire as to what the expected 24 supply per acre would be from the Westlands Water District 25 to your property? CAPITOL REPORTERS (916) 923-5447 13290 1 MR. RYAN: Yeah. 2 MR. NOMELLINI: And who did you inquire of? 3 MR. RYAN: With Westlands Water District. 4 MR. NOMELLINI: Anyone in particular at Westlands? 5 MR. RYAN: I forget who that might have been. Ben 6 Shara [phonetic]. I just don't remember. 7 MR. NOMELLINI: Do you recall what you were told as to 8 what you could expect as annual quantity per acre? 9 MR. RYAN: Well, we have both priority one and priority 10 two lands within the holding. There are two different 11 allocations. It was our understanding that we'd get about 12 2.6 acre-feet in priority one, and 1.3 acre-feet per acre in 13 priority two. 14 MR. NOMELLINI: With regard to those lands that are 15 outside, shown to be outside the permitted place of use on 16 Figure 3-26, are those lands both priority one and priority 17 two? 18 MR. RYAN: No. All priority two. The priority one 19 lands are adjacent to the California Aqueduct. 20 MR. NOMELLINI: With regard to the priority two lands, 21 did the amount of water per acre that would be available 22 from Westlands Water District affect the pricing of the 23 1,291 acres? 24 MR. RYAN: No. The availability of the allocation, 25 no. CAPITOL REPORTERS (916) 923-5447 13291 1 MR. NOMELLINI: Where -- is more than 1.3 feet per acre 2 required to properly irrigate the 1,292 acres? 3 MR. RYAN: Yes. It wouldn't be adequate, so we have 4 other supplies of water. 5 MR. NOMELLINI: What other supplies do you have? 6 MR. RYAN: I have -- when I acquired the property, 7 there was one irrigation well. And the first thing I did 8 was drill another one. And then I own land in priority one, 9 and I don't farm, and I transfer the water allocation from 10 that property to this one. 11 MR. NOMELLINI: Priority one land that you own, why 12 don't you farm that? 13 MR. RYAN: We just sold it to the Bureau of 14 Reclamation. 15 MR. NOMELLINI: You were able to keep the water 16 entitlement to that. 17 MR. RYAN: For that year and the prior year, yes. 18 MR. NOMELLINI: Is the land which you sold in the 19 priority one area drainage-impacted land? 20 MR. RYAN: Yes, very. 21 MR. NOMELLINI: You indicated that you've been in the 22 real estate business for a number of years? 23 MR. RYAN: Yes, sir, since 1978. 24 MR. NOMELLINI: Have you been buying and selling ranch 25 properties in any area as a realtor? CAPITOL REPORTERS (916) 923-5447 13292 1 MR. RYAN: No. This is the first land I have acquired 2 as a principal, but I have represented a lot of buyers and 3 sellers within the district and elsewhere. 4 MR. NOMELLINI: Did you have any awareness whatsoever 5 with regard to a place of use eligibility problem associated 6 with any land in the area? 7 MR. RYAN: No, not in any way. In fact, when we 8 represent a property, we do a very, very complete 9 description of the property that would include topography, 10 soils, zoning designations, location. We are looking at 11 our own interest. We don't want to be sued. I don't want 12 to sell somebody a piece of property, two years down the 13 road they find out that it is ineligible for water, we have 14 to do our due diligence, not only the presentation of 15 property but in the preparation of an appraisal report. 16 MR. NOMELLINI: In the con- -- go ahead. 17 MR. RYAN: We really -- we work with the Bureau. We 18 work with Westlands when we are doing work outside of 19 Westlands making Madera Irrigation District, Arvin-Edison. 20 You ask any pertinent questions that might affect property, 21 and this has never, never arisen. 22 MR. NOMELLINI: With regard to the designation of the 23 place of use, do you have any opinion as to whether or not 24 any error was made in the mapping of the place of use for 25 the water rights that serve as the basis for CVP delivery to CAPITOL REPORTERS (916) 923-5447 13293 1 Westlands? 2 MR. RYAN: I can't answer. I don't know who prepared 3 the map. I don't know what the criteria was for drawing 4 this line that goes up. There I really can't say. 5 MR. NOMELLINI: With regard to the disclosures 6 associated with real estate in the Westlands area, is there 7 a disclosure as to whether or not the property is entitled 8 to priority one or priority two deliveries? 9 MR. RYAN: Yes. There is a map that clearly shows the 10 different priority areas. 11 MR. NOMELLINI: You indicated previously you were not 12 aware that there had been only a 35-percent allocation to 13 Westlands in the year 1994? 14 MR. RYAN: No, I wasn't concerned about 1994. 15 MR. NOMELLINI: As a realtor in attempting to do your 16 due diligence for sales in this area, do you normally 17 inquire as to what the prior delivery allocation was to the 18 Westlands Water District by the Bureau? 19 MR. RYAN: Yes. We give historical background. 20 MR. NOMELLINI: Do you know what the historical 21 deliveries have been prior to 1994? 22 MR. RYAN: I remember 1976 and 1977 very well because I 23 went through the drought years. I was farming then. The 24 other years, no. To a particular year, I would have to go 25 back to my records. CAPITOL REPORTERS (916) 923-5447 13294 1 MR. NOMELLINI: I handed out a packet that bears 2 Central Delta Water Agency Exhibit Numbers 30 and 31. If 3 you look past the index, Exhibit 30, is a July 13th 4 memorandum from the Acting Inspector General to the 5 Secretary of Interior, and Central Delta Water Agency 31. 6 Do you see that, Mr. Ryan, Exhibit 30? 7 MR. RYAN: Yes. 8 MR. NOMELLINI: And Central Delta Water Agency 31, 9 which is an audit report entitled, "Irrigation of Ineligible 10 Lands, Bureau of Reclamation Report Number 94-I-930, July 11 1994." 12 Would you take a quick look at those two. What I 13 would like to know, if you've ever seen those before. 14 MR. RYAN: No, I haven't. 15 MR. NOMELLINI: Are you aware of any Inspector General 16 investigation of eligibility of lands within the Westlands 17 Water District occurring on or prior to July 11th of 1994? 18 MR. RYAN: No. 19 MR. NOMELLINI: All right. Mr. Chairman, that is all I 20 have of this witness. 21 C.O. STUBCHAER: Thank you, Mr. Nomellini. Is there 22 any cross-examiner who will take ten minutes or less? 23 Mr. Turner. 24 ---oOo--- 25 // CAPITOL REPORTERS (916) 923-5447 13295 1 CROSS-EXAMINATION OF WESTLANDS WATER DISTRICT AND 2 WESTLANDS EXPANSION AND ENCROACHMENT LANDHOLDERS 3 BY THE BUREAU OF RECLAMATION 4 BY MR. TURNER 5 MR. TURNER: Jim Turner representing the Bureau of 6 Reclamation. 7 I just have one question for you, Mr. Turnquist. 8 During your oral testimony you made reference to being 9 involved in the development of the law that was enacted in 10 1982 that you were referring to as the Title 1, Title 2 law. 11 I presume -- were you talking about the Reclamation Reform 12 Act that you referenced in your written testimony? 13 MR. TURNQUIST: Yes, that is correct. 14 MR. TURNER: Thank you. 15 The remainder of my questions will be addressed to Mr. 16 Ottemoeller. I will try to keep this as short as possible. 17 My first question relates to the statement you have at 18 the end of the first full paragraph on Page 5, where you 19 state that: 20 If each of Reclamation's permits were changed 21 to admit the appropriation of water for fish 22 and wildlife enhancement, the quantity of 23 water available for use by water use in 24 Westlands service area would be substantially 25 reduced. This would result in substantial CAPITOL REPORTERS (916) 923-5447 13296 1 injury to these water users. (Reading.) 2 I guess in very simple terms my question is: Are you, 3 on behalf of Westlands, asking the Board to deny the 4 petition irrespective of the content and responsibilities 5 that have been posed on the Bureau by the Central Valley 6 Project Improvement Act? 7 MR. BIRMINGHAM: Objection. Mr. Ottemoeller is here 8 presenting expert testimony. He is not -- he is a witness. 9 Witnesses do not represent anyone. They present evidence. 10 And I am not sure that -- I know that Mr. Ottemoeller has 11 not been authorized to state the position of Westlands Water 12 District on this issue. 13 C.O. STUBCHAER: Mr. Turner. 14 MR. TURNER: I'll go ahead and retract the question. 15 Let me present it this way: I notice in your testimony you 16 make specific references later on to some various activities 17 that are being pursued pursuant to the Central Valley 18 Project Improvement Act, correct? 19 MR. OTTEMOELLER: Yes. 20 MR. TURNER: Is it your opinion that those activities 21 can still be pursued absent the Board approving the Bureau's 22 petition to change the purpose of use in the permit? 23 MR. OTTEMOELLER: Some of them could not be pursued if 24 the permits, as they currently exist, are adhered to by the 25 Bureau of Reclamation. CAPITOL REPORTERS (916) 923-5447 13297 1 MR. TURNER: So there would be some kind of a potential 2 conflict between the Board making such denial decision and 3 the implementation of CVPIA? 4 MR. BIRMINGHAM: Objection. Calls for legal 5 conclusion. 6 C.O. STUBCHAER: I will allow the question to be 7 answered if the witness can without speculating. 8 MR. OTTEMOELLER: In terms of the physical ability of 9 the Bureau to do the things that are described or proposed 10 under CVPIA and their ability and their existing permits, if 11 the United States had not intended that there be a review of 12 whether and to what extent the Bureau can do these actions 13 without changing their permits, they wouldn't have directed 14 that that be done in the act. 15 MR. TURNER: Can I take exception to a legal 16 conclusion? 17 C.O. STUBCHAER: You may certainly. 18 MR. TURNER: I will go ahead let it pass. 19 Next question, on Page 7 of your written testimony, you 20 state in about the middle of the first full paragraph that: 21 In 1994 Westlands obtained a preliminary 22 injunction to prevent implementation of 23 the 800,000 acre-foot yield dedication 24 in wildlife provision of the CVPIA. 25 (Reading.) CAPITOL REPORTERS (916) 923-5447 13298 1 Are you familiar with the basis pursuant to which 2 Westlands sought that injunction? 3 MR. OTTEMOELLER: As I recall, the failure to comply 4 with NEPA. 5 MR. TURNER: With the National Environmental Policy 6 Act? 7 MR. OTTEMOELLER: Yes. 8 MR. TURNER: Was that judgment not subsequently 9 reversed by the Ninth Circuit Court of Appeals? 10 MR. OTTEMOELLER: I believe so. 11 MR. TURNER: So that -- I will leave it at that. 12 My final question would relate to some testimony that 13 you presented on Page 8. The sentence at the very end of 14 the last full paragraph happens to be a quotation. It says: 15 Therefore, the appropriation of water to 16 meet the scheduling of releases contained 17 in the draft flow study would not be 18 authorized by Permit Number 11969. 19 (Reading.) 20 Are you familiar with the fact that the Central Valley 21 Project Improvement Act itself established the releases to 22 be made from Trinity Reservoir into the Trinity River? 23 MR. OTTEMOELLER: It is my understanding that it is up 24 to 340,000 acre-feet. 25 MR. TURNER: My question was: Are you aware that that CAPITOL REPORTERS (916) 923-5447 13299 1 is a specific figure, a directive, in the Central Valley 2 Project Improvement Act itself? 3 MR. OTTEMOELLER: Yeah. 4 MR. TURNER: But your statement here is saying -- let 5 me go back. 6 Are you saying that Permit Number 11969 prohibits or 7 specifically addresses the quantities of water to be 8 released down the Trinity River? 9 MR. OTTEMOELLER: What I am saying is that the permit, 10 to the extent that it provides for releases of appropriated 11 water for fish and wildlife enhancement, provides for those 12 releases to the Sacramento River. 13 MR. TURNER: That is where I've got the confusion. If 14 I have a permit to store water in a reservoir for a specific 15 beneficial use, and I am further permitted to release that 16 water for rediversion someplace downstream for that 17 beneficial use, all of those activities, the storage, the 18 release, the rediversion are covered by the permit, 19 correct? 20 MR. OTTEMOELLER: Yes, I believe so. 21 MR. TURNER: Now, I decide on some day that the 22 reservoir is getting too high. I don't want to keep that 23 much water in the reservoir. So open gates. Let it flow 24 downstream. 25 Am I in violation of my permit? CAPITOL REPORTERS (916) 923-5447 13300 1 MR. OTTEMOELLER: Probably not. 2 MR. TURNER: If I decide to open the gate and let the 3 water flow downstream because I wanted to lower the 4 temperature in the river downstream to help fish or I think 5 it would be aesthetically pretty to see the water flowing 6 down the river, am I in violation of my permit? 7 MR. BIRMINGHAM: Objection. Calls for a legal 8 conclusion. 9 C.O. STUBCHAER: Overruled. 10 MR. OTTEMOELLER: I don't know the answer to that one. 11 MR. TURNER: But you do feel comfortable making the 12 statement that releases of water into the Trinity River in 13 accordance with the CVPIA directive is not permitted by, 14 authorized by Permit 11969, which tells me you are telling 15 me that the release is supposed to or should be covered by 16 11969. 17 What I am asking you, is that, in fact, your 18 determination? 19 MR. OTTEMOELLER: It is my testimony, again, that if 20 the purpose of the release is for fish enhancement, then, 21 according to the permit, that purpose is met only if it is 22 being released down the Sacramento River. 23 MR. TURNER: If I don't have a fish and wildlife 24 purpose of use, but I release the water from the reservoir, 25 do I get to prohibit anyone else from diverting that water? CAPITOL REPORTERS (916) 923-5447 13301 1 MR. NOMELLINI: Objection. 2 MR. OTTEMOELLER: I am not sure about that. 3 MR. TURNER: I would have no further questions. 4 C.O. STUBCHAER: Thank you, Mr. Turner. 5 The order of cross-examination of this panel tomorrow 6 will be Mr. Herrick, Mr. Atlas, Mr. Sexton, Mr. Jackson, and 7 Mr. Nomellini. 8 Mr. Birmingham. 9 MR. BIRMINGHAM: Do I understand that Mr. Ryan is 10 excused? 11 C.O. STUBCHAER: Yes. Mr. Ryan is excused. 12 Thank you for your appearance today, Mr. Ryan. 13 And anything else before we adjourn for the day? 14 Seeing none, we are adjourned until 9:00 a.m. tomorrow. 15 (Hearing adjourned at 4:05 p.m.) 16 -