STATE WATER RESOURCES CONTROL BOARD PUBLIC HEARING 1998 BAY-DELTA WATER RIGHTS HEARING HELD AT 901 P STREET SACRAMENTO, CALIFORNIA THURSDAY, APRIL 8, 1999 9:00 A.M. Reported by: MARY GALLAGHER, CSR #10749 CAPITOL REPORTERS (916) 923-5447 1 APPEARANCES ---oOo--- 2 3 BOARD MEMBERS: 4 JAMES STUBCHAER, CO-HEARING OFFICER JOHN W. BROWN, CO-HEARING OFFICER 5 MARY JANE FORSTER 6 STAFF MEMBERS: 7 THOMAS HOWARD - Supervising Engineer 8 VICTORIA A. WHITNEY - Senior Engineer 9 DAVID G. CORNELIUS - Senior Water Resources Control Engineer 10 JIM CANADAY - Environmental Specialist 11 COUNSEL: 12 WILLIAM R. ATTWATER - Chief Counsel 13 WALTER PETTIT - Executive Director BARBARA LEIDIGH - Senior Staff Counsel 14 15 ---oOo--- 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 13305 1 REPRESENTATIVES 2 PRINCETON CODORA GLENN IRRIGATION DISTRICT, et al. 3 FROST, DRUP & ATLAS 4 134 West Sycamore STreet Willows, California 95988 5 BY: J. MARK ATLAS, ESQ. 6 JOINT WATER DISTRICTS: 7 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 8 Oroville, California 95965 BY: WILLIAM H. BABER, III, ESQ. 9 CALIFORNIA SPORTFISHING PROTECTION ALLIANCE: 10 ROBERT J. BAIOCCHI 11 P.O. Box 357 Quincy, California 95971 12 BELLA VISTA WATER DISTRICT: 13 BRUCE L. BELTON, ESQ. 14 2525 Park Marina Drive, Suite 102 Redding, California 96001 15 WESTLANDS WATER DISTRICT: 16 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 17 400 Capitol Mall, 27th Floor Sacramento, California 95814 18 BY: THOMAS W. BIRMINGHAM, ESQ. JOHN RUBIN, ESQ. 19 THE BAY INSTITUTE OF SAN FRANCISCO: 20 GRAY BOBKER 21 55 Shaver Street, Suite 330 San Rafael, California 94901 22 CITY OF ANTIOCH, et al.: 23 FREDERICK BOLD, JR., ESQ. 24 1201 California Street, Suite 1303 San Francisco, California 94109 25 CAPITOL REPORTERS (916) 923-5447 13306 1 REPRESENTATIVES 2 LEAGUE OF WOMEN VOTERS: 3 ROBERTA BORGONOVO 4 2480 Union Street San Francisco, California 94123 5 UNITED STATES DEPARTMENT OF THE INTERIOR: 6 OFFICE OF THE SOLICITOR 7 2800 Cottage Way, Roon E1712 Sacramento, California 95825 8 BY: ALF W. BRANDT, ESQ. 9 CALIFORNIA URBAN WATER AGENCIES: 10 BYRON M. BUCK 455 Capitol Mall, Suite 705 11 Sacramento, California 95814 12 RANCHO MURIETA COMMUNITY SERVICES DISTRICT: 13 MCDONOUGH, HOLLAND & ALLEN 555 Capitol Mall, 9th Floor 14 Sacramento, California 95814 BY: VIRGINIA A. CAHILL, ESQ. 15 CALIFORNIA DEPARTMENT OF FISH AND GAME: 16 OFFICE OF THE ATTORNEY GENERAL 17 1300 I Street, Suite 1101 Sacramento, California 95814 18 BY: MATTHEW CAMPBELL, ESQ. 19 NATURAL RESOURCES DEFENSE COUNCIL: 20 HAMILTON CANDEE, ESQ. 71 Stevenson Street 21 San Francisco, California 94105 22 ARVIN-EDISON WATER STORAGE DISTRICT, et al.: 23 DOOLEY HERR & WILLIAMS 3500 West Mineral King Avenue, Suite C 24 Visalia, California 93191 BY: DANIEL M. DOOLEY, ESQ. 25 CAPITOL REPORTERS (916) 923-5447 13307 1 REPRESENTATIVES 2 SACRAMENTO MUNICIPAL UTILITY DISTRICT: 3 LESLIE A. DUNSWORTH, ESQ. 4 6201 S Street Sacramento, California 95817 5 SOUTH SAN JOAQUIN IRRIGATION DISTRICT, et al.: 6 BRAY, GEIGER, RUDQUIST & NUSS 7 311 East Main Street, 4th Floor Stockton, California 95202 8 BY: STEVEN P. EMRICK, ESQ. 9 EAST BAY MUNICIPAL UTILITY DISTRICT: 10 EBMUD OFFICE OF GENERAL COUNSEL 375 Eleventh Street 11 Oakland, California 94623 BY: FRED ETHERIDGE, ESQ. 12 GOLDEN GATE AUDUBON SOCIETY: 13 ARTHUR FEINSTEIN 14 2530 San Pablo Avenue, Suite G Berkeley, California 94702 15 CONAWAY CONSERVANCY GROUP: 16 UREMOVIC & FELGER 17 P.O. Box 5654 Fresno, California 93755 18 BY: WARREN P. FELGER, ESQ. 19 THOMES CREEK WATER ASSOCIATION: 20 THOMES CREEK WATERSHED ASSOCIATION P.O. Box 2365 21 Flournoy, California 96029 BY: LOIS FLYNNE 22 COURT APPOINTED REPS OF WESTLANDS WD AREA 1, et al.: 23 LAW OFFICES OF SMILAND & KHACHIGIAN 24 601 West Fifth Street, Seventh Floor Los Angeles, California 90075 25 BY: CHRISTOPHER G. FOSTER, ESQ. CAPITOL REPORTERS (916) 923-5447 13308 1 REPRESENTATIVES 2 CITY AND COUNTY OF SAN FRANCISCO: 3 OFFICE OF THE CITY ATTORNEY 4 1390 Market Street, Sixth Floor San Francisco, California 94102 5 BY: DONN W. FURMAN, ESQ. 6 CAMP FAR WEST IRRIGATION DISTRICT, et al.: 7 DANIEL F. GALLERY, ESQ. 926 J Street, Suite 505 8 Sacramento, California 95814 9 BOSTON RANCH COMPANY, et al.: 10 J.B. BOSWELL COMPANY 101 West Walnut Street 11 Pasadena, California 91103 BY: EDWARD G. GIERMANN 12 SAN JOAQUIN RIVER GROUP AUTHORITY, et al.: 13 GRIFFIN, MASUDA & GODWIN 14 517 East Olive Street Turlock, California 95381 15 BY: ARTHUR F. GODWIN, ESQ. 16 NORTHERN CALIFORNIA WATER ASSOCIATION: 17 RICHARD GOLB 455 Capitol Mall, Suite 335 18 Sacramento, California 95814 19 PLACER COUNTY WATER AGENCY, et al.: 20 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Capitol Mall, 27th Floor 21 Sacramento, California 95814 BY: JANET GOLDSMITH, ESQ. 22 ENVIRONMENTAL DEFENSE FUND: 23 THOMAS J. GRAFF, ESQ. 24 5655 College Avenue, Suite 304 Oakland, California 94618 25 CAPITOL REPORTERS (916) 923-5447 13309 1 REPRESENTATIVES 2 CALAVERAS COUNTY WATER DISTRICT: 3 SIMON GRANVILLE 4 P.O. Box 846 San Andreas, California 95249 5 CHOWCHILLA WATER DISTRICT, et al.: 6 GREEN, GREEN & RIGBY 7 P.O. Box 1019 Madera, California 93639 8 BY: DENSLOW GREEN, ESQ. 9 CALIFORNIA FARM BUREAU FEDERATION: 10 DAVID J. GUY, ESQ. 2300 River Plaza Drive 11 Sacramento, California 95833 12 SANTA CLARA VALLEY WATER DISTRICT: 13 MORRISON & FORESTER 755 Page Mill Road 14 Palo Alto, California 94303 BY: KEVIN T. HAROFF, ESQ. 15 CITY OF SHASTA LAKE: 16 ALAN N. HARVEY 17 P.O. Box 777 Shasta Lake, California 96019 18 COUNTY OF STANISLAUS: 19 MICHAEL G. HEATON, ESQ. 20 926 J Street Sacramento, California 95814 21 GORRILL LAND COMPANY: 22 GORRILL LAND COMPANY 23 P.O. Box 427 Durham, California 95938 24 BY: DON HEFFREN 25 CAPITOL REPORTERS (916) 923-5447 13310 1 REPRESENTATIVES 2 SOUTH DELTA WATER AGENCY: 3 JOHN HERRICK, ESQ. 4 3031 West March Lane, Suite 332 East Stockton, California 95267 5 COUNTY OF GLENN: 6 NORMAN Y. HERRING 7 525 West Sycamore Street Willows, California 95988 8 REGIONAL COUNCIL OF RURAL COUNTIES: 9 MICHAEL B. JACKSON 10 1020 Twelfth Street, Suite 400 Sacramento, California 95814 11 DEER CREEK WATERSHED CONSERVANCY: 12 JULIE KELLY 13 P.O. Box 307 Vina, California 96092 14 DELTA TRIBUTARY AGENCIES COMMITTEE: 15 MODESTO IRRIGATION DISTRICT 16 P.O. Box 4060 Modesto, California 95352 17 BY: BILL KETSCHER 18 SAVE THE SAN FRANCISCO BAY ASSOCIATION: 19 SAVE THE BAY 1736 Franklin Street 20 Oakland, California 94612 BY: CYNTHIA L. KOEHLER, ESQ. 21 BATTLE CREEK WATERSHED LANDOWNERS: 22 BATTLE CREEK WATERSHED CONSERVANCY 23 P.O. Box 606 Manton, California 96059 24 25 CAPITOL REPORTERS (916) 923-5447 13311 1 REPRESENTATIVES 2 BUTTE SINK WATERFOWL ASSOCIATION, et al.: 3 MARTHA H. LENNIHAN, ESQ. 4 455 Capitol Mall, Suite 300 Sacramento, California 95814 5 CITY OF YUBA CITY: 6 WILLIAM P. LEWIS 7 1201 Civic Center Drive Yuba City, California 95993 8 BROWNS VALLEY IRRIGTAION DISTRICT, et al.: 9 BARTKIEWICZ, KRONICK & SHANAHAN 10 1011 22nd Street, Suite 100 Sacramento, California 95816 11 BY: ALAN B. LILLY, ESQ. 12 CONTRA COSTA WATER DISTRICT: 13 BOLD, POLISNER, MADDOW, NELSON & JUDSON 500 Ygnacio Valley Road, Suite 325 14 Walnut Creek, California 94596 BY: ROBERT B. MADDOW, ESQ. 15 GRASSLAND WATER DISTRICT: 16 DON MARCIOCHI 17 22759 South Mercey Springs Road Los Banos, California 93635 18 SAN LUIS CANAL COMPANY: 19 FLANAGAN, MASON, ROBBINS & GNASS 20 3351 North M Street, Suite 100 Merced, California 95344 21 BY: MIICHAEL L. MASON, ESQ. 22 STONY CREEK BUSINESS AND LAND OWNERS COALITION: 23 R.W. MCCOMAS 4150 County Road K 24 Orland, California 95963 25 CAPITOL REPORTERS (916) 923-5447 13312 1 REPRESENTATIVES 2 TRI-DAM POWER AUTHORITY: 3 TUOLUMNE UTILITIES DISTRICT 4 P.O. Box 3728 Sonora, California 95730 5 BY: TIM MCCULLOUGH 6 DELANO-EARLIMART IRRIGATION DISTRICT, et al.: 7 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 8 Oroville, California 95965 BY: JEFFREY A. MEITH, ESQ. 9 HUMANE FARMING ASSOCIATION: 10 BRADLEY S. MILLER. 11 1550 California Street, Suite 6 San Francisco, California 94109 12 CORDUA IRRIGATION DISTRICT, et al.: 13 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 14 P.O. Box 1679 Oroville, California 95965 15 BY: PAUL R. MINASIAN, ESQ. 16 EL DORADO COUNTY WATER AGENCY: 17 DE CUIR & SOMACH 400 Capitol Mall, Suite 1900 18 Sacramento, California 95814 BY: DONALD B. MOONEY, ESQ. 19 GLENN COUNTY FARM BUREAU: 20 STEVE MORA 21 501 Walker Street Orland, California 95963 22 MODESTO IRRIGATION DISTRICT: 23 JOEL MOSKOWITZ 24 P.O. Box 4060 Modesto, California 95352 25 CAPITOL REPORTERS (916) 923-5447 13313 1 REPRESENTATIVES 2 PACIFIC GAS & ELECTRIC: 3 RICHARD H. MOSS, ESQ. 4 P.O. Box 7442 San Francisco, California 94120 5 CENTRAL DELTA WATER AGENCY, et al.: 6 NOMELLINI, GRILLI & MCDANIEL 7 P.O. Box 1461 Stockton, California 95201 8 BY: DANTE JOHN NOMELLINI, ESQ. and 9 DANTE JOHN NOMELLINI, JR., ESQ. 10 TULARE LAKE BASIN WATER STORAGE UNIT: 11 MICHAEL NORDSTROM 1100 Whitney Avenue 12 Corcoran, California 93212 13 AKIN RANCH, et al.: 14 DOWNEY, BRAND, SEYMOUR & ROHWER 555 Capitol Mall, 10th Floor 15 Sacramento, California 95814 BY: KEVIN M. O'BRIEN, ESQ. 16 OAKDALE IRRIGATION DISTRICT: 17 O'LAUGHLIN & PARIS 18 870 Manzanita Court, Suite B Chico, California 95926 19 BY: TIM O'LAUGHLIN, ESQ. 20 SIERRA CLUB: 21 JENNA OLSEN 85 Second Street, 2nd Floor 22 San Francisco, California 94105 23 YOLO COUNTY BOARD OF SUPERVISORS: 24 LYNNEL POLLOCK 625 Court Street 25 Woodland, California 95695 CAPITOL REPORTERS (916) 923-5447 13314 1 REPRESENTATIVES 2 PATRICK PORGENS & ASSOCIATES: 3 PATRICK PORGENS 4 P.O. Box 60940 Sacramento, California 95860 5 BROADVIEW WATER DISTRICT, et al.: 6 DIANE RATHMANN 7 P.O. Box 156 Dos Palos, California 93620 8 FRIENDS OF THE RIVER: 9 BETSY REIFSNIDER 10 128 J Street, 2nd Floor Sacramento, California 95814 11 MERCED IRRIGATION DISTRICT: 12 FLANAGAN, MASON, ROBBINS & GNASS 13 P.O. Box 2067 Merced, California 95344 14 BY: KENNETH M. ROBBINS, ESQ. 15 CENTRAL SAN JOAQUIN WATER CONSERVATION DISTRICT: 16 REID W. ROBERTS, ESQ. 311 East Main Street, Suite 202 17 Stockton, California 95202 18 METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA: 19 JAMES F. ROBERTS P.O. Box 54153 20 Los Angeles, California 90054 21 SACRAMENTO AREA WATER FORUM: 22 CITY OF SACRAMENTO 980 9th Street, 10th Floor 23 Sacramento, California 95814 BY: JOSEPH ROBINSON, ESQ. 24 25 CAPITOL REPORTERS (916) 923-5447 13315 1 REPRESENTATIVES 2 TUOLUMNE RIVER PRESERVATION TRUST: 3 NATURAL HERITAGE INSTITUTE 4 114 Sansome Street, Suite 1200 San Francisco, California 94194 5 BY: RICHARD ROOS-COLLINS, ESQ. 6 CALIFORNIA DEPARTMENT OF WATER RESOURCES: 7 DAVID A. SANDINO, ESQ. P.O. Box 942836 8 Sacramento, California 94236 9 FRIANT WATER USERS AUTHORITY: 10 GARY W. SAWYERS, ESQ. 575 East Alluvial, Suite 101 11 Fresno, California 93720 12 KERN COUNTY WATER AGENCY: 13 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Captiol Mall, 27th Floor 14 Sacramento, California 95814 BY: CLIFFORD W. SCHULZ, ESQ. 15 SAN JOAQUIN RIVER EXCHANGE CONTRACTORS: 16 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 17 P.O. Box 1679 Oroville, California 95965 18 BY: MICHAEL V. SEXTON, ESQ. 19 SAN JOAQUIN COUNTY: 20 NEUMILLER & BEARDSLEE P.O. Box 20 21 Stockton, California 95203 BY: THOMAS J. SHEPHARD, SR., ESQ. 22 CITY OF STOCKTON: 23 DE CUIR & SOMACH 24 400 Capitol Mall, Suite 1900 Sacramento, California 95814 25 BY: PAUL S. SIMMONS, ESQ. CAPITOL REPORTERS (916) 923-5447 13316 1 REPRESENTATIVES 2 ORLAND UNIT WATER USERS' ASSOCIATION: 3 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 4 Oroville, California 95965 BY: M. ANTHONY SOARES, ESQ. 5 GLENN-COLUSA IRRIGATION DISTRICT: 6 DE CUIR & SOMACH 7 400 Capitol Mall, Suite 1900 Sacramento, California 95814 8 BY: STUART L. SOMACH, ESQ. 9 NORTH SAN JOAQUIN WATER CONSERVATION DISTRICT: 10 JAMES F. SORENSEN CONSULTING CIVIL ENGINEER, INC.: 209 South Locust Street 11 Visalia, California 93279 BY: JAMES F. SORENSEN 12 PARADISE IRRIGATION DISTRICT: 13 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 14 P.O. Box 1679 Oroville, California 95965 15 BY: WILLIAM H. SPRUANCE, ESQ. 16 COUNTY OF COLUSA: 17 DONALD F. STANTON, ESQ. 1213 Market Street 18 Colusa, California 95932 19 COUNTY OF TRINITY: 20 COUNTY OF TRINITY - NATURAL RESOURCES P.O. Box 156 21 Hayfork, California 96041 BY: TOM STOKELY 22 CITY OF REDDING: 23 JEFFERY J. SWANSON, ESQ. 24 2515 Park Marina Drive, Suite 102 Redding, California 96001 25 CAPITOL REPORTERS (916) 923-5447 13317 1 REPRESENTATIVES 2 TULARE IRRIGATION DISTRICT: 3 TEHEMA COUNTY RESOURCE CONSERVATION DISTRICT 2 Sutter Street, Suite D 4 Red Bluff, California 96080 BY: ERNEST E. WHITE 5 STATE WATER CONTRACTORS: 6 BEST BEST & KREIGER 7 P.O. Box 1028 Riverside, California 92502 8 BY: ERIC GARNER, ESQ. 9 COUTNY OF TEHEMA, et al.: 10 COUNTY OF TEHEMA BOARD OF SUPERVISORS P.O. Box 250 11 Red Bluff, California 96080 BY: CHARLES H. WILLARD 12 MOUNTAIN COUNTIES WATER RESOURCES ASSOCIATION: 13 CHRISTOPHER D. WILLIAMS 14 P.O. Box 667 San Andreas, California 95249 15 JACKSON VALLEY IRRIGATION DISTRICT: 16 HENRY WILLY 17 6755 Lake Amador Drive Ione, California 95640 18 SOLANO COUNTY WATER AGENCY, et al.: 19 HERUM, CRABTREE, DYER, ZOLEZZI & TERPSTRA 20 2291 West March Lane, S.B. 100 Stockton, California 95207 21 BY: JEANNE M. ZOLEZZI, ESQ. 22 WESTLANDS ENCROACHMENT AND EXPANSION LANDOWNERS: 23 BAKER, MANOCK & JENSEN 5260 North Palm Avenue 24 Fresno, California 93704 BY: CHRISTOPHER L. CAMPBELL, ESQ. 25 CAPITOL REPORTERS (916) 923-5447 13318 1 REPRESENTATIVES 2 SAN LUIS WATER DISTRICT: 3 LINNEMAN, BURGES, TELLES, VAN ATTA 1820 Marguerite Street 4 Dos Palos, California 93620 BY: THOMAS J. KEENE, ESQ. 5 6 ---oOo--- 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 13319 1 I N D E X 2 ---oOo--- 3 4 PAGE 5 OPENING OF HEARING 13321 6 AFTERNOON SESSION 13429 7 END OF PROCEEDINGS 14528 8 CROSS-EXAMINATION OF WESTLANDS WATER DISTRICT: 9 MR. HERRICK 13321 10 MR. ATLAS 13330 MR. SEXTON 13337 11 MR. JACKSON 13343 MR. NOMELLINI 13360 12 REDIRECT EXAMINATION OF WESTLANDS WATER DISTRICT: 13 MR. BIRMINGHAM 13409 14 RECROSS-EXAMINATION OF WESTLANDS WATER DISTRICT: 15 MR. ATLAS 13465 16 MR. NOMELLINI 13471 THE BOARD 13481 17 REBUTTAL TESTIMONY OF THE BUREAU OF RECLAMATION, 18 DEPARTMENT OF THE INTERIOR: 19 MR. TURNER 13485 20 CROSS-EXAMINATION OF THE BUREAU OF RECLAMATION, DEPARTMENT OF THE INTERIOR: 21 MR. KEENE 14493 22 MR. BIRMINGHAM 14510 23 ---oOo--- 24 25 CAPITOL REPORTERS (916) 923-5447 13320 1 THURSDAY, APRIL 8, 1999, 9:00 A.M. 2 SACRAMENTO, CALIFORNIA 3 ---oOo--- 4 C.O. STUBCHAER: Good morning. Call the hearing 5 back to order. We are in the process of cross-examining 6 the Westlands panel. Next cross-examiner will be 7 Mr. Herrick. 8 ---oOo--- 9 CROSS-EXAMINATION OF WESTLANDS WATER DISTRICT 10 BY SOUTH DELTA WATER AGENCY 11 BY MR. HERRICK 12 MR. HERRICK: Thank you, Mr. Chairman, Board Member 13 Brown. John Herrick for the South Delta Water Agency. 14 Good morning. 15 MR. OTTEMOELLER: Good morning. 16 MR. TURNQUIST: Good morning. 17 MR. HERRICK: I don't have that many questions so 18 I'll be prompt if I can here. Mr. Ottemoeller, in your 19 testimony you reference the -- I'm going to say this 20 wrong -- the Barcellos suit; is that correct? 21 MR. OTTEMOELLER: Yes. 22 MR. HERRICK: And as an attachment or as another 23 exhibit to your testimony are portions of the -- I guess 24 it's a final judgment in that suit; is that correct? 25 MR. OTTEMOELLER: Yes. CAPITOL REPORTERS (916) 923-5447 13321 1 MR. HERRICK: Now, under paragraph 10 and its 2 subparts, that suit draws certain conclusions about 3 different areas within Westlands as being within the 4 authorized service area of the Central Valley Project; is 5 that correct? 6 MR. OTTEMOELLER: Yes, that's correct. 7 MR. HERRICK: Now, I noticed it uses the term 8 "service area" instead of "place of use." Do you know 9 whether or not that determination had to do with service 10 area or authorized use under Reclamation Law, or under the 11 existing permits issued by the State Board? 12 MR. OTTEMOELLER: It's my understanding this was 13 about a contract issue with the United States. It had to 14 do primarily with the service area that the Bureau was 15 serving. But it was always Westlands' contemplation that 16 the place of use included the service area of the CVP, or 17 conversely, Westlands was within the place of use of the 18 Bureau's permits as long as we were in the service area of 19 the CVP. 20 MR. HERRICK: Okay. And I don't want to test your 21 knowledge of the law, since none of us could pass the test 22 probably, do you make a distinction between the Court's 23 ruling on service area as opposed to what this Board 24 labels as place of use under its permits? 25 MR. OTTEMOELLER: Do I make a distinction? CAPITOL REPORTERS (916) 923-5447 13322 1 MR. HERRICK: Yeah, just from your understanding of 2 the suit I mean. 3 MR. OTTEMOELLER: No. At the time the suit was 4 going on I didn't make any distinction, because I wasn't 5 aware that there was actually this separate process that 6 was going to happen. Now that there's a separate process, 7 clearly there's a distinction. 8 MR. HERRICK: Your testimony also references, I 9 believe, that portion of the CVPIA, Section 3411, which 10 directs the Secretary of the Interior to obtain 11 modifications to any licenses or permits that the Central 12 Valley Project may have prior to the reallocation of water 13 for any purpose specified in the statute; is that correct? 14 MR. OTTEMOELLER: Yes. 15 MR. HERRICK: And is it your belief that the Bureau 16 did not do that prior to making releases for fish and 17 wildlife purposes? 18 MR. OTTEMOELLER: Yes, that's my belief. 19 MR. HERRICK: And have you made any analysis to 20 determine whether or not you're referring generally to 21 Bureau practices, or to releases from the Trinity system 22 and/or the Folsom system? 23 MR. OTTEMOELLER: Well, generally I know that the 24 Bureau began implementing the CVPIA, including specific 25 actions for enhancement of fish and wildlife, before CAPITOL REPORTERS (916) 923-5447 13323 1 getting their permits modified, because they'd been doing 2 it for several years and we're just now in these hearings. 3 MR. HERRICK: And when did the Bureau start making 4 those releases for fish and wildlife under CVPIA to your 5 knowledge? 6 MR. OTTEMOELLER: 1993. 7 MR. HERRICK: Do you have a copy of the Draft EIR in 8 front of you? 9 MR. OTTEMOELLER: Yes. 10 MR. HERRICK: Could you turn to the addendum, Page 11 84 of that. It's in the back. The first Trinity River 12 application or permit is the second item on that table, do 13 you see that? 14 MR. OTTEMOELLER: Yes. 15 MR. HERRICK: And is it your position that water 16 stored -- the first -- well, is it your position that the 17 first 1,540,000 acre-feet of water stored in Trinity 18 should be used for the purposes listed there next to that 19 application, rather than for fish and wildlife purposes? 20 MR. OTTEMOELLER: No. It's not the first 1,540,000, 21 that's a quantity that they can store under that permit. 22 And then all of the uses for which it is permitted are 23 uses that they can make of that water. 24 MR. HERRICK: But those purposes for that permit -- 25 and I'm talking about Application 5628, do not include CAPITOL REPORTERS (916) 923-5447 13324 1 fish and wildlife; is that correct? 2 MR. OTTEMOELLER: Yes, that's correct for that one. 3 MR. HERRICK: Have you done any analysis indicating 4 how much water may be available for -- let's start with 5 fish and wildlife purposes -- under CV -- may be available 6 for fish and wildlife purposes if the initial purposes are 7 taken care of first? 8 MR. OTTEMOELLER: No, I've not done that analysis. 9 MR. HERRICK: Do you know if the Bureau has done 10 that analysis? 11 MR. OTTEMOELLER: No, I don't. 12 MR. HERRICK: Mr. Ottemoeller, you're not here 13 representing Westlands; is that correct, I mean you're not 14 speaking for Westlands? 15 MR. OTTEMOELLER: From a policy perspective? 16 MR. HERRICK: Yeah. 17 MR. OTTEMOELLER: That's correct. 18 MR. HERRICK: I guess I can ask you the question 19 individually, then: Do you believe in principle that 20 exports from the Delta through the CVP pumps should be 21 done in a manner that do not cause injury to Delta 22 riparian water users? 23 MR. TURNER: I'd have to object to the relevancy of 24 that question with respect to CVP operations as it relates 25 to place of use, purpose of use which is the subject of CAPITOL REPORTERS (916) 923-5447 13325 1 this proceeding, not the operations and quantities of 2 water diverted at the Delta. 3 C.O. STUBCHAER: Mr. Herrick. 4 MR. HERRICK: We will, certainly, be recommending 5 that the petition be denied; however, if the Board adopts 6 a petition, we believe that a reasonable condition placed 7 on that is some sort of protection to South Delta 8 interests with regard to when and how pumping is done. I 9 think that's an appropriate topic, because it's a 10 potential condition to approval of the petition. 11 C.O. STUBCHAER: What does Mr. Ottemoeller's 12 personal opinion on that question have to do with this 13 phase? 14 MR. HERRICK: Well, Mr. Ottemoeller has previously 15 been -- if I'm correct -- the manager of Westlands -- 16 MR. OTTEMOELLER: Assistant manager. 17 MR. HERRICK: -- he's involved in -- I believe he's 18 the manager of another export down there. I think it's 19 certainly relevant to discover the position of the people 20 who use the water that is taken out of the southern Delta. 21 C.O. STUBCHAER: Objection is sustained. 22 MR. HERRICK: Mr. Turnquist. 23 MR. TURNQUIST: Yes. 24 MR. HERRICK: Do you have -- do you agree in 25 principle -- would you agree in principle with a condition CAPITOL REPORTERS (916) 923-5447 13326 1 placed upon approval of the petition that required exports 2 by the CVP pumps to be done in a manner that does not 3 cause injury to South Delta riparian water users? 4 MR. KEENE: Objection, that's irrelevant. 5 Mr. Turnquist represents only one of the family farms that 6 owns lands in some of the districts. He does not 7 represent any of the districts. He has no authority to 8 speak on behalf of anybody but himself. 9 MR. HERRICK: Well, I think the distinction is he's 10 a water user and I think that's perfectly relevant. 11 C.O. STUBCHAER: Yes, the objection is overruled. 12 We permitted the other witness to answer this yesterday. 13 MR. TURNQUIST: Would you restate the question, 14 please? 15 MR. HERRICK: Yes. Would you agree in principle 16 with a condition on the approval of the petition before us 17 that the export of water by the CVP pumps in the south 18 Delta be done in a manner that does not adversely affect 19 South Delta water users? 20 MR. TURNQUIST: I don't think I have sufficient 21 background to answer that question. 22 MR. HERRICK: What additional information do you 23 think you would need to answer that? 24 MR. TURNQUIST: What are the conditions -- I would 25 have to understand all the pieces of the puzzle and I CAPITOL REPORTERS (916) 923-5447 13327 1 don't think they're before me today. 2 MR. HERRICK: Mr. Turnquist, in your testimony on 3 Page 3 you reference the fact that Redfern properties has 4 transferred water it receives from California Irrigation 5 District to properties it has in the Westlands District. 6 Is that true? Is that correct? 7 MR. TURNQUIST: Central California Irrigation 8 District. 9 MR. HERRICK: I'm sorry. CCID? 10 MR. TURNQUIST: Yes. 11 MR. HERRICK: And when did that occur? 12 MR. TURNQUIST: The first transfer was in '93. We 13 have transferred each year since then with the exception 14 of '98. 15 MR. HERRICK: And did the Redfern property in the 16 Central California Irrigation District decrease its 17 consumption to an amount equal to that amount of 18 transferred water? 19 MR. TURNQUIST: That's correct. There's specific 20 rules under CVPIA which allow that transfer. And we are 21 only able to transfer that quantity of water that has been 22 the ET, evapotranspiration, during nondrought years and 23 depending on the cropping program for the most recent 24 three nondrought years. 25 MR. HERRICK: And in your testimony you reference a CAPITOL REPORTERS (916) 923-5447 13328 1 transfer of properties to a trust. Can you tell us what 2 year that occurred -- or sales of property to a trust? 3 MR. TURNQUIST: Recollection, because it was -- 4 final approval was in '88, it was probably done in '78. 5 MR. HERRICK: And yesterday I had asked the other 6 witness if he was familiar with the notice that the Bureau 7 and the Board had issued in 1985 regarding a similar 8 request for petition -- similar petition at the time of 9 the transfer of the sales to the trust, were you aware of 10 that 1985 -- 1986 notice by the Board? 11 MR. BIRMINGHAM: I'm going to object. The question 12 is ambiguous at best. Mr. Turnquist testified that the 13 transfer occurred in 1978. If my math is right, that's 14 seven years prior to the date the petition was filed, 15 there's no way anybody could have known about the petition 16 seven years before it was filed. 17 C.O. STUBCHAER: Mr. Herrick. 18 MR. HERRICK: This is not an attempt to be nasty or 19 anything, I thought you just said 1988 was the final 20 approval. 21 MR. BIRMINGHAM: Final approval was in 1988. The 22 transfer occurred -- the question was: When did the 23 transfer occur? And did you know about it at the time 24 when the transfer occurred? The transfer occurred in 25 1978. CAPITOL REPORTERS (916) 923-5447 13329 1 MR. HERRICK: That's easily cleared up. This is not 2 a -- 3 C.O. STUBCHAER: All right. 4 MR. HERRICK: When was the property transferred? 5 MR. TURNQUIST: To my recollection from the fact 6 that the final approval was in '88 tells me it was 7 probably then 10 years prior to that, in 1978. 8 MR. HERRICK: Okay. I have no further questions. 9 Thank you very much. 10 C.O. STUBCHAER: Mr. Herrick. 11 Mr. Atlas. 12 ---oOo--- 13 CROSS-EXAMINATION OF WESTLANDS WATER DISTRICT 14 BY TEHAMA-COLUSA CANAL AUTHORITY 15 BY MR. ATLAS 16 MR. ATLAS: Good morning, Mr. Ottemoeller. 17 MR. OTTEMOELLER: Good morning. 18 MR. ATLAS: Mr. Turnquist. 19 MR. TURNQUIST: Good morning. 20 MR. ATLAS: I'm Mark Atlas. I represent the 21 Tehama-Colusa County Canal Authority. 22 Mr. Ottemoeller, in your testimony yesterday you 23 mentioned the Trinity Project. And in particular, at one 24 point you said that there was a flow evaluation study that 25 was released in 1998 that could increase releases from the CAPITOL REPORTERS (916) 923-5447 13330 1 Trinity -- let me step back. 2 First of all you mentioned, I think, the CVPIA 3 provision that dictates 340,000 acre-feet releases from 4 Trinity; is that correct? 5 MR. OTTEMOELLER: Yes, that's correct. 6 MR. ATLAS: And then you also mentioned this 1988 7 flow evaluation study and you said, I think, that could 8 increase releases from Trinity in dry years to 368,000 and 9 in wet years to as much as 815,000 feet. 10 Is that right? Do I have that right? 11 MR. OTTEMOELLER: Yes. 12 MR. ATLAS: Okay. And is it fair to say that 13 Westlands is concerned about the loss of water from 14 Trinity that now is being diverted and used in the Central 15 Valley Project? Isn't that the point of your testimony? 16 MR. OTTEMOELLER: Yes. 17 MR. ATLAS: Okay. In other words, as the demands on 18 Trinity increase for various releases that take water that 19 is now being exported into the Central Valley Project and 20 used in the -- throughout the CVP, as those demands 21 increase that means what's left in the other CVP -- and 22 the rest of the CVP system just has to work harder to meet 23 the demands of the CVP. 24 Is that a fair statement? 25 MR. OTTEMOELLER: I guess I'm not sure that there CAPITOL REPORTERS (916) 923-5447 13331 1 are increasing demands on the Trinity. I mean there's a 2 study that talks about releasing more water, but -- 3 MR. ATLAS: I'm sorry. Maybe I misled you and, 4 perhaps, the question wasn't clear. The reality is that 5 as less water from Trinity for use elsewhere in the CVP, 6 then the rest of the CVP has to make up to meet the CVP 7 demands; is that right? 8 MR. OTTEMOELLER: Yes, that's correct. There's less 9 water to meet the existing demand. 10 MR. ATLAS: All right. And if we focus on Shasta, 11 for example, then the less water there is from Trinity the 12 more water that there is that has to come from Shasta, and 13 I don't mean necessarily acre-foot for acre-foot, but 14 conceptually the more water that has to come from Shasta 15 then to meet CVP demand? 16 MR. OTTEMOELLER: Well, all of the Shasta water is 17 to meet CVP demand and there's only so much. So I would 18 phrase it a little bit differently, I'd say there's less 19 water to meet CVP demand and a greater percentage is 20 coming from Shasta. 21 MR. ATLAS: Sure, I'll accept that. And do you have 22 the Draft EIR in front of you? 23 MR. OTTEMOELLER: Yes. 24 MR. ATLAS: Could you turn to Figure 2-2, it follows 25 Page 2-6 and it also follows Figure 2-1 which is the CAPITOL REPORTERS (916) 923-5447 13332 1 Trinity place of use, particularly the Shasta place of 2 use. 3 What's on the overhead is TCCA Exhibit 21 and 4 that is a copy, again, albeit, having cutoff a portion of 5 the southern part of the CVP, but a copy of Figure 2-2. 6 So do you recognize that as being Figure 2-2? 7 MR. OTTEMOELLER: Yes. 8 MR. ATLAS: I want to ask you specifically about 9 Westlands. I know the district boundary -- let me ask: 10 Westlands' district boundary is not marked on Figure 2-2; 11 is it? 12 MR. OTTEMOELLER: No, it's not. 13 MR. ATLAS: Could I ask you, if you look at the area 14 you'll see in the area in Madera and Fresno Counties there 15 is an area on Figure 2-2 that's shaded gray. And if you 16 look at the key that's indicated as the current permitted 17 place of use for Shasta water. And then there's an area 18 that's not shaded, it's white. 19 Can you tell me, if you know, how much of 20 Westlands Water District is inside the current permitted 21 place of use area shown on this map? Obviously, not a 22 specific acreage, but could you give us an estimate even? 23 MR. OTTEMOELLER: It would be something less than 24 half, more than 25 percent it looks like. 25 MR. ATLAS: So between 25 and 50 percent of CAPITOL REPORTERS (916) 923-5447 13333 1 Westlands is inside the current place of use? 2 MR. OTTEMOELLER: It's inside that shaded area, yes. 3 MR. ATLAS: Okay, inside the shaded area. So 4 something between 25 and 50 percent of the district is 5 outside the shaded area on this map? 6 MR. OTTEMOELLER: Yes. 7 MR. ATLAS: If -- let me have you turn to the 8 preceding figure, then, just for comparison. And that's 9 the Trinity place of use, Figure 2-1. You see the 10 entirety of -- well, certainly the entirety of Fresno and 11 Kings Counties is within the shaded area. So that's all 12 within the Trinity place of use. Do you see that? 13 MR. OTTEMOELLER: Yes. 14 MR. ATLAS: If the Bureau of Reclamation were 15 prevented from delivering Shasta water to Westlands, other 16 than for use within the area that's shaded on Figure 2-2, 17 Westlands has a contract for 1,150,000 acre-feet; is that 18 right? 19 MR. OTTEMOELLER: Yes. 20 MR. ATLAS: Could the area that is inside the shaded 21 area on Figure 2-2, the area of Westlands, could it use 22 the entire 1,150,000 acre-feet reasonably and 23 beneficially? 24 MR. OTTEMOELLER: No. 25 MR. ATLAS: It's just too much water for that amount CAPITOL REPORTERS (916) 923-5447 13334 1 of acreage; is that right? 2 MR. OTTEMOELLER: That's correct. 3 MR. ATLAS: Okay. 4 MR. OTTEMOELLER: But I would add that that is not 5 the only place where water from the CVP can be used. I 6 mean the shaded area on the Shasta place of use doesn't 7 put that kind of limitation on the Bureau, because they 8 have other ways of getting other permits that they can use 9 to get the water to the rest of the district. 10 For example, the main thing would be most of 11 Westlands' deliveries are deliveries that have been stored 12 in San Luis. Most of that water that is put in San Luis 13 is diverted during times of excess flow. So that water 14 wasn't necessarily water that was developed under the 15 Shasta permit. 16 MR. ATLAS: Oh, I understand that. Okay. I 17 understand that. But if your Board -- you understand that 18 the Bureau of Reclamation is asking this Board to expand 19 the place of use of the Shasta permits so that the map for 20 the Shasta permits would, in effect, look like the map for 21 the Trinity permits. 22 And the Board has asked what conditions we might 23 suggest be placed on that. If a condition were that the 24 Bureau of Reclamation could not -- well, let me put it a 25 different way. CAPITOL REPORTERS (916) 923-5447 13335 1 If the Board were to deny the ability of the 2 Bureau to deliver Shasta water outside the current place 3 of use, then the Bureau would have to do something else in 4 order to meet your contract demand besides directly 5 deliver water from the Shasta. 6 Don't we agree with that? 7 MR. BIRMINGHAM: May I ask for a clarification? 8 C.O. STUBCHAER: Yes. 9 MR. BIRMINGHAM: Does Mr. Atlas' question mean to 10 that area within Westlands that is outside the existing 11 place of use for Shasta? 12 MR. ATLAS: Yes. 13 MR. OTTEMOELLER: I'm sorry. Could you repeat that? 14 MR. ATLAS: Okay. Well, let me ask it a different 15 way. We know -- we agree, don't we, that the Central 16 Valley Project, obviously, has a number of facilities out 17 of which the Bureau can deliver water to any particular 18 contractor, theoretically at least; is that right? 19 MR. OTTEMOELLER: Yes. 20 MR. ATLAS: Folsom, Trinity, Shasta, San Luis, et 21 cetera, et cetera; is that right? 22 MR. OTTEMOELLER: Yes. 23 MR. ATLAS: Okay. So the point of your statement is 24 that if the Bureau of Reclamation were not permitted to 25 deliver Shasta water to any part of Westlands Water CAPITOL REPORTERS (916) 923-5447 13336 1 District outside the current place of use that's depicted 2 on Figure 2-2, then the Bureau would have to find other 3 facilities that it could use to deliver that water; isn't 4 that what you meant? 5 MR. OTTEMOELLER: Well, not exactly. What I meant 6 was that the Bureau has and has been using the facilities 7 and the capabilities of the permits. And whether or not 8 that aspect of the place of use is approved by this Board, 9 I don't think it makes any difference either in the amount 10 of water the Bureau can deliver legally under its permits 11 to Westlands, or to anybody else for that matter. I don't 12 see that as being a limitation right now in the way the 13 Bureau operates. 14 MR. ATLAS: Well, we certainly agree that's not the 15 way the Bureau operates today, but I have no other 16 questions. Thank you. 17 C.O. STUBCHAER: Okay. 18 Mr. Sexton. Good morning. 19 ---oOo--- 20 CROSS-EXAMINATION OF WESTLANDS WATER DISTRICT 21 BY THE EXCHANGE CONTRACTORS 22 BY MR. SEXTON 23 MR. SEXTON: Good morning, Mr. Stubchaer, Mr. Brown. 24 I'm Michael Sexton on behalf of the Exchange Contractors. 25 Good morning, gentlemen. CAPITOL REPORTERS (916) 923-5447 13337 1 MR. OTTEMOELLER: Good morning. 2 MR. TURNQUIST: Good morning. 3 MR. ATLAS: Did you need this, Mr. Sexton? 4 MR. SEXTON: No. 5 MR. ATLAS: Okay. 6 MR. SEXTON: Mr. Turnquist, you're familiar with 7 water transfers between Central California Irrigation 8 District, which is one of the Exchange Contractors, and 9 Westside Water Service contractor districts, correct? 10 MR. TURNQUIST: That's correct. 11 MR. SEXTON: And I think you testified that the 12 first transfer that was put together for Redfern from CCID 13 was done in 1993; is that correct? 14 MR. TURNQUIST: That's correct. 15 MR. SEXTON: And each year since then Redfern has 16 come back to the CCID Board with a proposal to transfer 17 some of its CCID allocation to Westlands to San Luis Water 18 District to Panoche Water District, correct? 19 MR. TURNQUIST: That's correct. 20 MR. SEXTON: Has that been an easy process for 21 Redfern? 22 MR. TURNQUIST: No. 23 MR. SEXTON: And why is that? 24 MR. TURNQUIST: Kind of walking through a minefield 25 without a mine detector. CAPITOL REPORTERS (916) 923-5447 13338 1 MR. SEXTON: So if this Board were to deny the 2 petition to conform, consolidate and expand the place of 3 use, in your view would Redfern be able to come up with 4 water through transfers to serve the lands that are 5 currently either outside of the place of use, or the lands 6 that are subject to this petition? 7 MR. TURNQUIST: Probably not, because we use the 8 transfers as a supplement to the existing supplies. And I 9 don't think our abilities are such to meet the level of 10 requirements within CCID and the Exchange Contractors that 11 would allow us to transfer a full supply to those lands. 12 MR. SEXTON: Okay. Now, CCID is a member of the 13 Exchange Contractors of the water right district, correct? 14 MR. TURNQUIST: Yes, it is. 15 MR. SEXTON: So as a water right district when you 16 transfer water from CCID, let's say, for example, to San 17 Luis Water District the costs associated with that are 18 very minimal, right? 19 MR. TURNQUIST: No, they're quite expensive. Each 20 district that receives the water charges us the -- that 21 year's Bureau rates plus that district's O&M. Some of the 22 districts associate various fees and repayment activities. 23 That water costs us every bit as much as if it were 24 delivered and actually originated as Bureau water. 25 MR. SEXTON: Okay. Now, let's say for sake of CAPITOL REPORTERS (916) 923-5447 13339 1 argument that some of Redfern property within CCID has 2 agricultural wells on the property. And you chose to pump 3 groundwater and put it into one of CCID's canals and then 4 transfer that water into Westlands Water District. 5 You with me so far? 6 MR. TURNQUIST: Yes. 7 MR. SEXTON: Is that considered to be a project 8 water transfer by the Bureau of Reclamation? 9 MR. TURNQUIST: That's a permitted transfer under 10 CVPIA, because that can be one of the sources of water is 11 pumped groundwater. Now, whether -- and we have not done 12 that. 13 Whether that would be an approved transfer by 14 CCID and the Exchange Contractors would depend upon their 15 analysis of the effect that that would have on their 16 groundwater. 17 MR. SEXTON: Okay. Now, assume for sake of argument 18 that Redfern was able to secure approval of a groundwater 19 transfer from CCID to one of the Westside Water Service 20 contractor districts, all right? 21 MR. TURNQUIST: All right. 22 MR. SEXTON: Is it your understanding that that 23 transfer can be made using WAPA power, in other words, 24 preference power by the Bureau of Reclamation? 25 MR. TURNQUIST: I don't know the answer to that. CAPITOL REPORTERS (916) 923-5447 13340 1 But if we were excluded -- if it did exclude us from WAPA 2 power, the difference in that is probably 6 to maybe 9 3 times the power rate if it had to be PG&E or whoever 4 supplied the water. 5 MR. SEXTON: So if you were able to move groundwater 6 you would have to do it by means of Warren Act contract; 7 is that correct? 8 MR. TURNQUIST: I'm not sure. I would have to run 9 down those materials. 10 MR. SEXTON: Mr. Ottemoeller, are you familiar with 11 whether groundwater can be moved from exchange contractor 12 service area by means of the Warren Act contract? 13 MR. OTTEMOELLER: The only way that I'm aware of 14 that it can use a Warren Act contract was if the 15 groundwater was pumped into one of the Bureau facilities, 16 if it was done by an exchange. 17 It's been a while since I worked on those, but I 18 believe the Bureau would consider that a transfer of CVP 19 water. They would not concern themselves with how -- with 20 whether the water being made available by CCID was because 21 of a groundwater substitution or because of a conserved 22 water or whatever. From their perspective it would be a 23 transfer of CVP water. 24 MR. SEXTON: Okay. When you were with Westlands you 25 were the chief of the water operations -- CAPITOL REPORTERS (916) 923-5447 13341 1 MR. OTTEMOELLER: Among other titles, yes. 2 MR. SEXTON: Among other titles. And as part of 3 your duties you actively sought securing water that could 4 be transferred into Westlands for use on bearing lands; is 5 that right? 6 MR. OTTEMOELLER: Yes. 7 MR. SEXTON: In your view if this Board were to deny 8 the petition to conform, consolidate and expand the place 9 of use to the lands that are subject to this petition, 10 would Westlands be able, in your view, to secure water 11 through transfers to serve all of those lands? 12 MR. OTTEMOELLER: Be able, to the extent they're 13 able to find water to meet their needs right now, yes. It 14 would make it more difficult in that some types of 15 transfers which could be done, for example, a CVP transfer 16 without going through the State Board would then be 17 subject to a whole separate process of State Board 18 approvals for CVP water to be placed on that land. It's 19 already part of the process for other water rights water 20 to be placed on that land. 21 MR. SEXTON: Okay. Thank you. Nothing further. 22 C.O. STUBCHAER: Mr. Jackson. 23 Good morning. 24 MR. JACKSON: Good morning, sir. 25 // CAPITOL REPORTERS (916) 923-5447 13342 1 ---oOo--- 2 CROSS-EXAMINATION OF WESTLANDS WATER DISTRICT 3 BY REGIONAL COUNCIL FOR RURAL COUNTIES 4 BY MR. JACKSON 5 MR. JACKSON: Michael Jackson for the Regional 6 Council of Rural Counties. 7 Mr. Ottemoeller, who do you work for now? 8 MR. OTTEMOELLER: Madera Irrigation District. 9 MR. JACKSON: And I take it from your testimony that 10 you are not here to relate policy positions of the 11 Westlands Water District in this testimony? 12 MR. OTTEMOELLER: That's correct. 13 MR. JACKSON: Is there anyone on this panel who is 14 authorized to indicate Westlands' policy positions? 15 MR. TURNQUIST: I'm not. 16 MR. JACKSON: Okay. Mr. Ottemoeller, you indicated 17 that you don't think, I guess as an individual, that it 18 makes -- see if I got this right -- any difference whether 19 the Board approves the change in the place of use in terms 20 of the delivery of water to Westlands? 21 MR. OTTEMOELLER: Well, I said that in a couple of 22 ways. In my testimony I said that if they don't approve 23 the inclusion of the encroachment and expansion lands that 24 are within Westlands that will not make a difference in 25 Westlands' demand for water. They will still have a need CAPITOL REPORTERS (916) 923-5447 13343 1 for their full contract supply every year. 2 In response to Mr. Atlas' question it was 3 specifically referenced to the place of use that's on the 4 Shasta permit. And my statement there was intended to 5 reflect that that currently is not a limitation. I don't 6 see that as a limitation on the Bureau's ability to 7 legally deliver all of Westlands' contract supply. 8 MR. JACKSON: So from a practical point of view, 9 that's why you come to the conclusion that it doesn't make 10 any difference to Westlands' overall water supply whether 11 or not the place of use is approved, change in place of 12 use is approved or not? 13 MR. OTTEMOELLER: I just want to make sure there's 14 an understanding. It doesn't makes a difference on the 15 demand. I don't think it make a difference on the 16 Bureau's ability to deliver the water. It does make a 17 difference to those specific landholders with regard to 18 the cost and ability for them to serve that land. So in 19 that respect it does make a difference to the district. 20 MR. JACKSON: So there are some landholders out of 21 every place of use that the Bureau has? 22 MR. OTTEMOELLER: Well, they're outside the lines on 23 the map, yes. 24 MR. JACKSON: All right. Now, let's follow the 25 water from Westlands. Physically the water from Westlands CAPITOL REPORTERS (916) 923-5447 13344 1 comes from San Luis? 2 MR. OTTEMOELLER: It comes from a number of places. 3 The largest portion comes from San Luis, yes. 4 MR. JACKSON: All right. And there is a San Luis 5 permit? 6 MR. OTTEMOELLER: Yes. 7 MR. JACKSON: And is all of Westlands in the San 8 Luis permit? 9 MR. OTTEMOELLER: Yes. 10 MR. JACKSON: Then, as it exists now, part of 11 Westlands is -- you said half to three-quarters of 12 Westlands is outside the Shasta place of use? 13 MR. OTTEMOELLER: Yes. 14 MR. JACKSON: Is Westlands in -- have you come to 15 the conclusion that Westlands is in the Folsom place of 16 use? 17 MR. OTTEMOELLER: It looks like approximately the 18 same line as the Shasta place of use. 19 MR. JACKSON: All right. So Shasta and Folsom in 20 terms of the lines on the maps in the EIR both include 21 less than half but more than a quarter of the Westlands 22 inside the Shasta and the Folsom places of use? 23 MR. OTTEMOELLER: Yes. 24 MR. JACKSON: Now, were those facilities already 25 built when Westlands began receiving water from the CVP? CAPITOL REPORTERS (916) 923-5447 13345 1 MR. OTTEMOELLER: Yes. 2 MR. JACKSON: And they were already serving water 3 from Shasta and Folsom to the designated places of use in 4 those permits before Westlands came online as a CVP water 5 user? 6 MR. OTTEMOELLER: Yes. 7 MR. JACKSON: Was there any reference in the Trinity 8 permits and the San Luis permits to water availability 9 from the older parts of the CVP? 10 MR. BIRMINGHAM: Objection. Ambiguous. 11 C.O. STUBCHAER: Mr. Jackson. 12 MR. JACKSON: Yeah, I think the question is 13 relatively straightforward. I'm asking whether or not at 14 the time that the Bureau permitted Westlands to receive 15 water from the Trinity and San Luis, whether or not there 16 was anything in the permits to acknowledge that they could 17 also get water from the older facilities. 18 C.O. STUBCHAER: Which permits? 19 MR. JACKSON: Shasta permits and the Folsom permit. 20 C.O. STUBCHAER: All right. You may answer, if you 21 know. 22 MR. OTTEMOELLER: Well, portions of those existing 23 permits, Shasta and Folsom, did include Westlands. The 24 new permits that the Bureau received to make the 25 deliveries to the San Luis Unit included -- I don't have CAPITOL REPORTERS (916) 923-5447 13346 1 all of them at the top of my head without looking them 2 up -- but basically Trinity and the Old River permits were 3 diverted to Tracy and the San Luis Reservoir. All of 4 those combined gave the Bureau the capability to deliver 5 all of their contract obligations. 6 MR. JACKSON: Was there anything in the contract 7 between Westlands and the Bureau that indicated -- at the 8 time that Westlands became a contractor for CVP water, 9 that indicated that Westlands could rely on Shasta and 10 Folsom as a place to get their water? 11 MR. OTTEMOELLER: There's nothing to my knowledge in 12 the contract that talks about any of the Bureau's permits. 13 The presumption from the district's perspective is that 14 the Bureau was going to be able to meet its contractual 15 obligations and that they had done their homework and had 16 all the appropriate permits to make that delivery, but 17 it's not in the contract for any facility. 18 MR. JACKSON: Prior to the building of the Trinity 19 and San Luis, the three-quarters of Westlands that is 20 outside the Shasta and the Folsom place of use, were not 21 entitled to be served with CVP water, were they? 22 MR. OTTEMOELLER: That's correct. 23 MR. JACKSON: And there was nothing in the new -- 24 after the new facilities were built, there was nothing in 25 either the permits or the contracts that indicated that CAPITOL REPORTERS (916) 923-5447 13347 1 Westlands could rely on anything except Trinity and San 2 Luis, was there? 3 MR. BIRMINGHAM: May I ask that that question be 4 reread? 5 C.O. STUBCHAER: Yes. 6 (Whereupon the question was read back by the Reporter.) 7 MR. BIRMINGHAM: Objection. Asked and answered. 8 C.O. STUBCHAER: Mr. Jackson. 9 MR. JACKSON: Well, I'd -- if -- if the answer is, 10 no, then I believe it's asked and answered. I'm just 11 attempting to clarify it, to pin it down to make sure that 12 the answer is "no." 13 C.O. STUBCHAER: I think it was answered with an 14 explanation. 15 MR. JACKSON: Yes. And so now I'm trying to be a 16 little more direct to ask him whether or not there is 17 anything in the permits or the contracts that indicate 18 that Westlands could rely on the other facilities. 19 C.O. STUBCHAER: I'm going to sustain the objection. 20 MR. JACKSON: Now, in the Trinity place of use, I 21 believe it was your testimony that one of the permitted 22 uses is fish and wildlife, correct? 23 MR. OTTEMOELLER: Fish and wildlife enhancement, 24 yes. 25 MR. JACKSON: Is there anything in the Trinity CAPITOL REPORTERS (916) 923-5447 13348 1 permits or contracts that you rely on to justify your 2 conclusion that that did not mean that the storage was 3 available for fish and wildlife on the Trinity River? 4 MR. OTTEMOELLER: Yes. I specifically referenced 5 that in my testimony. The supplement on the application 6 states that the primary purpose was to appropriate water 7 for irrigation purposes, during certain months. 8 And I'm reading from my testimony, 9 (Reading): 10 "Could be released specifically to supplement 11 the natural flow of the Sacramento River to 12 provide the flow necessary for navigation and 13 fish purposes between Keswick and Sacramento." 14 So from that application we draw the conclusion 15 that the fish and wildlife enhancement purposes were 16 permitted for Sacramento River and not for the Trinity 17 River. 18 MR. JACKSON: All right. And is that the only 19 thing -- only fact that you use to come to that 20 conclusion? 21 MR. OTTEMOELLER: Yes. 22 MR. JACKSON: It is not your position that the 23 Bureau is not -- let me step back. 24 Is it your position that the Bureau is not 25 obligated to obey fish and wildlife provisions of the CAPITOL REPORTERS (916) 923-5447 13349 1 federal and state laws in regard to in-stream flow on the 2 Trinity River? 3 MR. KEENE: I'm going to object to that question. 4 It calls for a legal conclusion in terms of whether or not 5 the federal government is obligated to follow state law. 6 Frankly, as an attorney who's been practicing over 20 7 years in it California, I don't know the answer to that 8 question. 9 MR. JACKSON: Well, I would refer you to the case 10 involving NRDC versus Patterson at Friant. I think that's 11 relatively clear at this point. 12 C.O. STUBCHAER: Well -- 13 MR. BIRMINGHAM: I don't want to engage in a legal 14 debate here, but -- 15 C.O. STUBCHAER: That's legal. 16 MR. BIRMINGHAM: -- Mr. Jackson is entirely wrong. 17 The meaning of NRCD versus Patterson is not clear. I'm 18 sure Mr. Turner would agree with that -- 19 C.O. STUBCHAER: That's not a subject of this 20 hearing. 21 MR. JACKSON: Mr. Turner -- 22 C.O. STUBCHAER: Regarding the objection, getting 23 back to the objection, Mr. Ottemoeller may answer the 24 question to the best of his ability but -- to the best of 25 your ability. CAPITOL REPORTERS (916) 923-5447 13350 1 MR. OTTEMOELLER: To my knowledge, the Bureau is 2 obligated to meet all of its obligations under CVPIA. One 3 of those includes conforming its permits to meet the 4 purposes or the obligations that it incurred under CVPIA. 5 Congress specifically recognized that there were some 6 things they would have to do in order to comply with state 7 law in order to do all the things they were suggesting 8 that the Bureau and Fish and Wildlife do under CVPIA. 9 MR. JACKSON: And do you believe that the Bureau has 10 the authority to do that under the CVPIA? 11 MR. OTTEMOELLER: Authority to do what? 12 MR. JACKSON: To conform their activities to the 13 CVPIA. 14 MR. OTTEMOELLER: Well, there are some things they 15 currently have the authority to do and other things, for 16 example in this process, that they're seeking the 17 authority to do under their permits. 18 MR. JACKSON: It's a little difficult since you 19 don't speak for Westlands, but -- 20 MR. BIRMINGHAM: Excuse me, so that Mr. Jackson 21 doesn't feel hampered, yesterday I observed that 22 Mr. Ottemoeller is here as a witness to provide evidence 23 to the Board. Mr. Jackson is certainly free to ask 24 Mr. Ottemoeller if he's aware of the district's policy. 25 And if he is aware of it, what is his understanding of the CAPITOL REPORTERS (916) 923-5447 13351 1 policy. 2 But, then, my objection yesterday related to a 3 question: What would Westlands' position be on a 4 particular issue without the appropriate foundation, but 5 he knows what the Board's policy is. So I don't want 6 Mr. Jackson to feel hampered. Mr. Ottemoeller may know 7 about a Board policy or a district policy, if he does, 8 he's free to testify. 9 MR. JACKSON: Thank you, that does help. 10 Mr. Ottemoeller, if you know the answers to these 11 policy questions, feel free to tell me what they are. If 12 you don't, fell free to indicate to me that you don't know 13 the answers to those. 14 Westlands' position in this hearing is that they 15 support the changes in the place of use in the Shasta and 16 Folsom places of use as indicated in their permits; is 17 that correct? 18 MR. BIRMINGHAM: The question is ambiguous. 19 C.O. STUBCHAER: Yes. 20 MR. BIRMINGHAM: I think Mr. Jackson means in its 21 petition. 22 MR. JACKSON: Yes. Is it Westlands' position that 23 Westlands supports the expansion of the places of use in 24 the Shasta and Folsom permit to cover all of the 25 Westlands' land? CAPITOL REPORTERS (916) 923-5447 13352 1 MR. OTTEMOELLER: Well, it's not just the Shasta and 2 Folsom places of use. The lines on the map don't exactly 3 fit the boundaries of our district. It's Westlands' 4 position that all of the lands within Westlands should be 5 within the permitted place of use of the Bureau's permits. 6 MR. JACKSON: And Westlands supports that part of 7 the Bureau's application to conform their places of use? 8 MR. OTTEMOELLER: Yes. And that is on the basis 9 that it does not have any impact on its demand or on 10 anybody else's water supplies. 11 MR. JACKSON: Is it the Westlands' policy that they 12 do not support the expansion of the purpose of use of the 13 Central Valley Project permits? 14 MR. OTTEMOELLER: I don't know that I can answer it 15 in that way. I do know that it's Westlands' position that 16 the expansion of the purposes of use will have impacts on 17 water supplies to Westlands' water users. 18 MR. JACKSON: And you would assume that they would 19 also have impacts to other CVP water users as well? 20 MR. OTTEMOELLER: Well, yes. To some others who are 21 in the same situation as Westlands with respect to the 22 water service priority, yes. 23 MR. JACKSON: And that would include the Sacramento 24 Valley CVP diverters? 25 MR. OTTEMOELLER: Potentially, yes. CAPITOL REPORTERS (916) 923-5447 13353 1 MR. JACKSON: Why does Westlands believe that that 2 would be -- that expansion of the purpose of use would 3 affect -- would cause legal injury to Westlands? 4 MR. OTTEMOELLER: Because there are certain actions 5 that the Bureau has taken and is proposing to take with 6 regard to releases and uses of water from Folsom and 7 Shasta which cannot then be diverted. And, therefore, 8 that water is lost from the overall supply that they can 9 use to meet their contract obligations. 10 MR. JACKSON: And that would be true for any 11 existing CVP users, correct? 12 MR. OTTEMOELLER: Yes. 13 MR. JACKSON: And that would be true whether or not 14 the new users allowed by this change in the purpose of use 15 would be municipal users or fish and wildlife? 16 MR. BIRMINGHAM: Objection. Assumes facts not in 17 evidence. There is no evidence that there will be new 18 users that would result from the change in the purpose of 19 use. 20 C.O. STUBCHAER: Mr. Jackson -- 21 MR. BIRMINGHAM: Excuse me, change in the place of 22 use. 23 MR. JACKSON: There is no indication that there 24 would be new users, there is no indication that there 25 would not. If the purposes change, for instance, someone CAPITOL REPORTERS (916) 923-5447 13354 1 filing an application in the drainage for some of this 2 elusive area of origin water, might want to use it for the 3 new purpose and in which case, it would enable new users. 4 C.O. STUBCHAER: Mr. Birmingham. 5 MR. BIRMINGHAM: The new user that Mr. Jackson is 6 referring to is a new user that would result from an 7 entirely different process. There would have to be a new 8 application filed -- 9 MR. JACKSON: There would. 10 MR. BIRMINGHAM: -- there would have to be a 11 hearing. His question was premised on new users resulting 12 from the change which is the subject of the petition 13 presently before the Board. And there is no evidence. In 14 fact, to the contrary the evidence is that there will be 15 no new users resulting from the change in place of use 16 which is the subject of the petition filed by Westlands. 17 C.O. STUBCHAER: I wonder if the question might have 18 been referring to new uses instead of new users. 19 MR. JACKSON: Well, certainly, it is new uses by a 20 different set of people, which -- 21 C.O. STUBCHAER: Well, why don't you start over? 22 MR. JACKSON: Right. Why don't I rephrase the 23 question. Would you read the question back? 24 (Whereupon the question was read back by the Reporter.) 25 MR. JACKSON: So we will change that question to: CAPITOL REPORTERS (916) 923-5447 13355 1 Whether the new uses would be municipal or fish 2 and wildlife. 3 MR. OTTEMOELLER: I guess I'm not sure what the 4 first part of that question was. 5 MR. JACKSON: All right. We'll try a new question. 6 The expansion of the purposes of use, you have 7 indicated, you believe might cause legal harm to 8 Westlands? 9 MR. OTTEMOELLER: Yes. 10 MR. JACKSON: And that would be true whether the 11 expansion of the new uses were for fish and wildlife 12 purposes or for municipal use, correct? 13 MR. OTTEMOELLER: If we're talking theoretical, 14 that's correct, because M&I uses tends to get water before 15 Westlands. 16 MR. JACKSON: And so the change in the balance of 17 CVP water use as a result of the granting of a change in 18 purposes of use could, in your opinion, have an effect on 19 your ability to get water in water short times? 20 MR. OTTEMOELLER: The change in the balance as a 21 result of the change of purposes of use -- 22 MR. JACKSON: Yeah. Change in purpose of use and 23 you allow more municipal use, and you don't grow the pie 24 by more storage of some kind, does that tend to result in 25 less water for agricultural uses, in your opinion? CAPITOL REPORTERS (916) 923-5447 13356 1 MR. OTTEMOELLER: Generally, yes. 2 MR. JACKSON: And so this change of the purposes of 3 use could result in less water being available to all CVP 4 water users that are presently taking water from the CVP? 5 MR. OTTEMOELLER: I want to make sure I understand, 6 I'm not misunderstanding. Your question referenced the 7 purpose of use, but this line has been dealing with M&I. 8 The change in purposes of use, that my testimony 9 says is going to impact us is the changes to allow fish 10 and wildlife enhancement out of Shasta and Folsom. The 11 changes in -- or additional M&I uses as a result in the 12 change of the place of use is a different issue. So I'm 13 not sure which question I'm answering. 14 MR. JACKSON: Well, do you have two different 15 standards, one for the change to M&I and one for the 16 change to fish and wildlife, or are you worried about any 17 change? 18 MR. OTTEMOELLER: I have two different levels of 19 understanding. I think I understand fairly well what 20 would happen as a result of the changes in the purpose of 21 use that have been petitioned. I've not done the required 22 studies and I don't have the knowledge as to the potential 23 increased M&I uses to answer whether or not a change in 24 the place of use is going to result in more M&I use. 25 MR. JACKSON: You haven't, for instance, taken a CAPITOL REPORTERS (916) 923-5447 13357 1 look at the effect of the addition of 500-and-some-odd 2 thousands acres of land in the Santa Clara Valley Water 3 District to the permitted place of use? 4 MR. OTTEMOELLER: I didn't specifically look at 5 those numbers. And I wasn't here for the testimony. 6 MR. JACKSON: Okay. 7 MR. OTTEMOELLER: So I don't know what that impact 8 is. 9 MR. JACKSON: If the -- if there is less water -- 10 you've indicated that Westlands has concerns about the 11 Trinity River flow decisions. Those concerns are that 12 there would be less water in the Sacramento River; is that 13 the main concern? 14 MR. OTTEMOELLER: As part of the overall operations 15 of the Bureau, yes. If there's more water going down the 16 Trinity, there's less water that they can use for normal 17 CVP operations on the Sacramento side. 18 MR. JACKSON: How would you envision that affecting 19 Westlands' ability to get water from the San Luis 20 Reservoir? 21 MR. OTTEMOELLER: Well, if you take supply away from 22 the Bureau they're less likely to be able to fill San Luis 23 or keep San Luis full on an annual basis, if there's less 24 water coming out of the Trinity system. 25 MR. JACKSON: Well, given the fact that there is CAPITOL REPORTERS (916) 923-5447 13358 1 this flow evaluation study going on and this review of 2 in-stream flows in the Trinity River, then how can you 3 justify expanding the place of use to include more acreage 4 to be served? 5 MR. OTTEMOELLER: To reiterate my testimony with 6 respect to Westlands, our use does not change. Our need 7 for our full contractual entitlement does not change in 8 any year with or without the inclusion of the encroachment 9 and expansion lands that are within Westlands. So my 10 testimony is that Westlands' demands don't change. 11 MR. JACKSON: They stay exactly the same? 12 MR. OTTEMOELLER: For our CVP contract supply, 13 that's correct. 14 MR. JACKSON: And so what is the benefit of the 15 change in the place of use to Westlands since it doesn't 16 increase their water supply, or the likelihood that they 17 will get water? 18 MR. OTTEMOELLER: Primarily it's for the benefit of 19 those lands from an economy standpoint and from a 20 reliability standpoint. It's in the long-term cheaper 21 probably to have CVP water available than to have to go 22 out on the market. And it's also notwithstanding the 23 unreliability of the CVP supply, that's more reliable than 24 having to go for annual temporary transfers to meet 25 demands on those lands. CAPITOL REPORTERS (916) 923-5447 13359 1 MR. JACKSON: All right. So this is not an issue of 2 availability of water, it's the reliability of water? 3 MR. OTTEMOELLER: For those particular lands, yes. 4 MR. JACKSON: All right. Now, does Westlands 5 believe -- if you can answer this, does Westlands believe 6 that the addition of the Westlands' acreage to the Folsom 7 and Shasta permits would cause other parties that are 8 within those permitted places of use to lose water? 9 MR. OTTEMOELLER: We do not believe that there's any 10 impact to other users of those water supplies. 11 MR. JACKSON: Do you believe that, therefore, you 12 would accept -- Westlands would accept a condition that on 13 the expansion of the place of use that the original areas 14 permitted should be served first? 15 MR. OTTEMOELLER: I don't know what Westlands would 16 agree to. 17 MR. JACKSON: I don't have any other questions. 18 C.O. STUBCHAER: Okay. 19 Mr. Nomellini. 20 ---oOo--- 21 CROSS-EXAMIANTION OF WESTLANDS WATER DISTRICT 22 BY CENTRAL DELTA PARTIES 23 BY MR. NOMELLINI 24 MR. NOMELLINI: Mr. Chairman, Members of the Board, 25 Dante John Nomellini for Central Delta Parties. First, CAPITOL REPORTERS (916) 923-5447 13360 1 some questions for Mr. Turnquist. 2 Mr. Turnquist, do you have a copy of the Figure 3 3-26 from the draft environmental document of the Board? 4 MR. TURNQUIST: Yes, I do. 5 MR. NOMELLINI: All right. With regard to Figure 6 3-26 could you indicate for us the location of the 7 Redfern's property about which you testified in your 8 written Westlands' Exhibit 22? 9 MR. TURNQUIST: I can get pretty close. If you 10 look -- this is a colored map. And if you look at the 11 most northerly area that is marked green, there's the 12 indication "12-E," which is part of the basin radiant. 13 The land that I testified about is near there. 14 MR. NOMELLINI: So that would be near the word 15 "Panoche"? 16 MR. TURNQUIST: No. Keep going north. See the -- 17 my guess is it's 14 south, 12 east. 18 MR. NOMELLINI: Okay. So it's above the word 19 "Panoche"? 20 MR. TURNQUIST: That's correct. 21 MR. NOMELLINI: All right. And you've indicated in 22 your testimony that approximately 1200 acres of the 23 Redfern property is located within Westlands. Is the 1200 24 acres in the location that you just indicated? 25 MR. TURNQUIST: Yes, it is. CAPITOL REPORTERS (916) 923-5447 13361 1 MR. NOMELLINI: Now, staying with Figure 3-26, is it 2 your contention that the areas shown to be outside the 3 existing permitted place of use on Figure 3-26 were left 4 out of the place of use as a result of a clerical error? 5 MR. TURNQUIST: I don't know why they were left out. 6 I don't have any knowledge as to how that line was 7 created. I do have extensive knowledge that I testified 8 to that there has never been a question that those lands 9 were included and to be served by Westlands Water 10 District. 11 MR. NOMELLINI: Okay. In your testimony you've 12 indicated that the Redferns have relied on a series of 13 state and federal actions in developing the Westlands' 14 properties; is that correct? 15 MR. TURNQUIST: That's correct. 16 MR. NOMELLINI: All right. And then on Page 2 of 17 your testimony you say, first, they have relied on the 18 actions of the district and the Bureau. Do you see that 19 in about the middle of the page? 20 MR. TURNQUIST: Yes. 21 MR. NOMELLINI: All right. Do you contend that -- 22 well, first of all, by your reference to "the district," 23 are you talking about the Westlands Water District? 24 MR. TURNQUIST: Yes. 25 MR. NOMELLINI: All right. Do you contend that the CAPITOL REPORTERS (916) 923-5447 13362 1 Westlands Water District actions constitute state or 2 federal action? 3 MR. TURNQUIST: Try that again, please. 4 MR. NOMELLINI: Do you contend that Westlands Water 5 District's actions constitute state or federal action? 6 MR. TURNQUIST: No. 7 MR. NOMELLINI: All right. So the first sentence of 8 that paragraph should more correctly read that the 9 Redferns have relied on a series of district, state and 10 federal actions, then? Do you agree with that? 11 MR. TURNQUIST: No. 12 MR. NOMELLINI: Okay. Let's dissect, that a bit. 13 Are there any actions of the district, Westlands Water 14 District that the Redferns relied upon that would lead 15 them to the conclusion that the lands owned by the 16 Redferns in the Westlands Water District were eligible to 17 receive federal water? 18 MR. TURNQUIST: The district actions would have been 19 and have been delivering water, physical delivery of 20 water. The process of doing -- dealing with Reclamation 21 Law and submitting forms for disposition under recordable 22 contracts is all done -- it's a Bureau group of rules and 23 regulations, but mechanically it's dealt with through the 24 district. 25 MR. NOMELLINI: And is that process a fairly complex CAPITOL REPORTERS (916) 923-5447 13363 1 process? 2 MR. TURNQUIST: All depends if you've ever done it 3 before. 4 MR. NOMELLINI: The rules have changed from time to 5 time over the years, haven't they? 6 MR. TURNQUIST: Dramatically. 7 MR. NOMELLINI: Okay. Perhaps, I missed it in your 8 statement. How long have you been involved -- I see it's 9 here but, perhaps, for the record we can confirm it. 10 How long have you been involved with irrigated 11 lands in the Westlands Water District area? 12 MR. TURNQUIST: Prior to receipt of water, my first 13 management of the ranch was in 1965, part of those lands 14 were within Westlands. 15 MR. NOMELLINI: Is it fair to state that you're 16 fairly familiar with the requirements of eligibility of 17 land to receive federal water? 18 MR. TURNQUIST: Yes. 19 MR. NOMELLINI: All right. Going back now to 20 your -- the Redferns' reliance, if I use the term "you" 21 inadvertently here, I mean in your capacity for Redferns. 22 MR. TURNQUIST: Okay. 23 MR. NOMELLINI: With regard to the district actions 24 you indicated that they'd supplied water to the lands in 25 question for a number of years; is that correct? CAPITOL REPORTERS (916) 923-5447 13364 1 MR. TURNQUIST: Yes. 2 MR. NOMELLINI: About how many years have they 3 supplied water? 4 MR. TURNQUIST: Probably at the time the facilities 5 were available. And my guess would be, the records that 6 were available to me, probably in the mid '70s, could have 7 been early '70s. 8 MR. NOMELLINI: Okay. Was it your understanding 9 that at all times the delivery of water included federal 10 water? 11 MR. TURNQUIST: That's correct. 12 MR. NOMELLINI: Okay. 13 MR. TURNQUIST: Well, take a step back. You said 14 "all times." There have been times that we, through our 15 water transfers that I testified to and there may have 16 been through Westlands' acquisitions of water, some of 17 that water could have been nonfederal. 18 MR. NOMELLINI: Okay. 19 MR. TURNQUIST: But it's all -- 20 MR. NOMELLINI: At all times, though, there's been 21 going back to the '70s some federal water delivered by 22 Westlands to the lands of the Redferns in question here? 23 MR. TURNQUIST: That's correct. 24 MR. NOMELLINI: All right. And with regard to the 25 district's processing of the eligibility of the lands in CAPITOL REPORTERS (916) 923-5447 13365 1 compliance with federal law, was that with regard to the 2 excess land law provisions? 3 MR. TURNQUIST: That's correct. 4 MR. NOMELLINI: All right. And you understand that 5 they processed this application and it was approved? 6 MR. TURNQUIST: Yes. In the -- I was not at Redfern 7 Ranches in the '70s, but the records that I have observed 8 show me correspondence coming back and forth between the 9 Bureau, Westlands and Redfern Ranches that those 10 applications under recordable contract were approved. And 11 when the land was disposed of under the terms of that 12 contract that that was also approved by the Bureau. 13 MR. NOMELLINI: All right. Now, other than the 14 excess land law requirements, were there requirements to 15 determine the eligibility of the land to receive water 16 based on whether or not it was suitable for irrigation? 17 MR. TURNQUIST: As to those lands, I don't have 18 personal knowledge. 19 MR. NOMELLINI: Okay. Do you have any knowledge as 20 to whether or not the Redfern's property were found to be 21 eligible for receipt of federal water because they were 22 classified as irrigatable lands? 23 MR. TURNQUIST: Try that again, please. 24 MR. NOMELLINI: Okay. Do you agree that in order to 25 receive federal water a determination has to be made that CAPITOL REPORTERS (916) 923-5447 13366 1 the lands are suitable for irrigation? 2 MR. TURNQUIST: I'm concerned about the word 3 "suitable." 4 MR. NOMELLINI: Are you more comfortable with 5 "irrigatable"? 6 MR. TURNQUIST: That to me means you can apply water 7 to it. 8 MR. NOMELLINI: All right. In your understanding of 9 Reclamation Law has there been a requirement that lands be 10 classified as to their suitability for irrigation as a 11 precondition to the eligibility of those lands to receive 12 federal water? 13 MR. TURNQUIST: Well, we're back to my suitability 14 concern. If you're dealing with land classifications, is 15 that your issue? 16 MR. NOMELLINI: Yeah, well, let's start there. Is 17 there a land classification requirement? 18 MR. TURNQUIST: Yes. 19 MR. NOMELLINI: Okay. And what is that requirement 20 as you understand it? 21 MR. TURNQUIST: My understanding, and I cannot speak 22 to the Redfern lands, but my understanding with years with 23 Westlands, is that classifications, with the exclusion of 24 Class 6, are eligible to receive federal water. 25 MR. NOMELLINI: Okay. What is Class 6? CAPITOL REPORTERS (916) 923-5447 13367 1 MR. TURNQUIST: I don't think I can go through the 2 technical description of that. 3 MR. NOMELLINI: Okay. Do you know who makes the 4 classification? 5 MR. TURNQUIST: My guess would be Soil Conservation 6 Service. 7 MR. NOMELLINI: Okay. Do you know whether or not 8 the Redfern properties in question here were classified by 9 the Soil Conservation Service, or any other entity? 10 MR. TURNQUIST: I don't know. 11 MR. NOMELLINI: Do you know whether or not a 12 determination has been made that the Redfern properties 13 are eligible to receive federal water? 14 MR. TURNQUIST: Oh, without question. And that's 15 through the actions that I described in my testimony. 16 MR. NOMELLINI: Okay. And without question is, 17 number one, the district has been supplying the water -- 18 MR. TURNQUIST: Yes. 19 MR. NOMELLINI: -- for these years? And any other 20 actions of the district that you want to point to as 21 having relied on those actions? 22 MR. BIRMINGHAM: Objection. Asked and answered. 23 MR. NOMELLINI: No. 24 C.O. STUBCHAER: Proceed. 25 MR. NOMELLINI: Yeah, maybe I can do a better job CAPITOL REPORTERS (916) 923-5447 13368 1 clarifying. 2 You've indicated that the delivery of water by 3 Westlands is one thing that would indicate the land was 4 eligible -- am I blocking your communication here? 5 MR. BIRMINGHAM: No. 6 MR. NOMELLINI: All right. The second one was the 7 district process, the excess land law application? 8 MR. TURNQUIST: Yes. 9 MR. NOMELLINI: Okay. Is there any other action of 10 the district that was relied on that would indicate the 11 eligibility of the Redfern property to receive federal 12 water? 13 MR. TURNQUIST: 1982 came about with new Reclamation 14 Law. 15 C.O. STUBCHAER: Mr. Turnquist, could you turn the 16 mic around to your left, please. 17 MR. TURNQUIST: Excuse me. I should address the 18 Chair. 19 C.O. STUBCHAER: No. No. That's all right. 20 MR. TURNQUIST: Okay. In 1982 a new set of rules 21 came. We, as water users in federal districts, must file 22 annually or more frequently if there are changes inan 23 extensive series of forms. I'm trying to be kind. 24 MR. NOMELLINI: You can abuse the Bureau people all 25 you want as far as I'm concerned. CAPITOL REPORTERS (916) 923-5447 13369 1 MR. TURNQUIST: That state who owns the land, who 2 farms the land and designates the eligibility for those 3 lands to receive water. And that, as a mechanical 4 process, is all done with the district, Westlands in that 5 particular case. We also filed the same forms with the 6 other federal districts where we use water. 7 C.O. STUBCHAER: Mr. Turnquist, I apologize for 8 getting your name wrong. 9 MR. TURNQUIST: That's quite all right. 10 There may be other activities that we have with 11 Westlands that don't come to mind. 12 MR. NOMELLINI: Okay. And for the Redfern property 13 since roughly 1982 you've been filing these forms? 14 MR. TURNQUIST: It's required, if you don't file the 15 forms, you don't get the water. 16 MR. NOMELLINI: Okay. And you file those forms with 17 the district? 18 MR. TURNQUIST: Yes. 19 MR. NOMELLINI: Do you know that the district has 20 given those forms to the Bureau of Reclamation? 21 MR. TURNQUIST: No. They are not required to give 22 them to the Bureau, the Bureau comes and audits. 23 MR. NOMELLINI: Okay. Do you know if there's been 24 an audit of these forms since 1982? 25 MR. TURNQUIST: Yes. CAPITOL REPORTERS (916) 923-5447 13370 1 MR. NOMELLINI: All right. I handed out yesterday 2 at the end of the session, Central Delta Water Agency 3 Exhibits 30 and 31 relating to an audit report on the 4 irrigation of ineligible lands. And the date on there is 5 1994. 6 Are you aware of any review or investigation by 7 the Office of the Inspector General, U.S. Department of 8 the Interior, on or about July of 1994? 9 MR. BIRMINGHAM: Objection. Relevance. The 10 document that Mr. Nomellini has marked as Central Delta 11 Water Agency Exhibit 30 and the document marked as Central 12 Delta Water Agency Exhibit 31 do not deal at all with 13 questions of place of use. 14 And whether or not some investigation was done to 15 determine whether lands fall within the classification of 16 irrigatable is irrelevant; unless there's some evidence 17 that the lands that are the subject of the petition are 18 Class 6 lands and, therefore, ineligible. There is no 19 such evidence. 20 C.O. STUBCHAER: Mr. Nomellini. 21 MR. NOMELLINI: Well, I think that these exhibits 22 are relevant in a number of respects. One goes to whether 23 or not there's any notice of the question of eligibility 24 of the lands to receive federal water. Testimony is that 25 there's been no indication, it's all been positive, that CAPITOL REPORTERS (916) 923-5447 13371 1 the lands are eligible to receive water. So I think the 2 eligibility question is there. 3 There's also the question related to the extent 4 of damage to the party by reason of the fact that they 5 have gone ahead and received water, relied on all these 6 things and if they had knowledge of some of these other 7 things, to me, that would go to the question of whether or 8 not they, in fact, would have made all the investments 9 that would entitle them to make the claim that the place 10 of use change is going to result in the damage to them. 11 Not all that damage may be the result of the 12 place of use change. So I think it goes both to the 13 question on the damage issue, which they raised in their 14 testimony, how they're damaged if you don't grant this 15 change in place of use, as well as the eligibility 16 testimony in here. 17 And I don't think it's clear that the eligibility 18 addressed in the Inspector General's report excludes the 19 question of whether or not it's outside the permitted 20 place of use, because I think they talk about whether or 21 not the permits are -- the permits of the projects issued 22 by the states are being complied with. I think this 23 Inspector General report also goes broader than just the 24 eligibility of the land because of the soil 25 classification. CAPITOL REPORTERS (916) 923-5447 13372 1 C.O. STUBCHAER: Mr. Birmingham. 2 MR. BIRMINGHAM: I'd like to address Mr. Nomellini's 3 points in order. First, he says that this document goes 4 to the notice question, that we talked about whether or 5 not the landowners had notice about the eligibility to 6 receive federal project water. 7 What we are talking about in this proceeding is 8 whether the lands are entitled to receive CVP water, 9 because they are outside the place of use contained in the 10 water right permits obtained by the Bureau of Reclamation. 11 This report, Central Delta Water Agency Exhibit 12 31, does not deal with that issue. It deals with whether 13 or not lands are eligible to receive federal water under 14 Federal Reclamation Law. Number one: Do they meet the 15 soil classifications? And number two: Are the lands 16 within the service area of the projects authorized by 17 Congress? 18 If Mr. Nomellini can point out to me one place in 19 these documents where there is a reference to water right 20 permits held by the Central Valley Project issued by this 21 state, I will kiss him and buy him lunch, but -- 22 MR. JACKSON: Terrible threat. 23 MR. NOMELLINI: The buying of the lunch is okay, but 24 that kissing, I don't know whether or not I want -- 25 MR. BIRMINGHAM: The reports don't deal with that CAPITOL REPORTERS (916) 923-5447 13373 1 issue. Second, he says that it goes to the damage. 2 Again, this report deals with whether or not the lands are 3 eligible under Federal Reclamation Law, not whether they 4 are within the permitted place of use. 5 Finally, Mr. Nomellini argues that the definition 6 of eligibility that these reports may include water rights 7 issues. Well, to the contrary. On Page 1 of Central 8 Delta Water Agency Exhibit 31, there's a discussion of the 9 type of eligibility this report deals with. And that is 10 whether or not the project lands are suitable and formally 11 classified under Federal Reclamation Law and whether the 12 lands are outside the boundaries established for federal 13 irrigation projects. In other words, the boundaries 14 established by Congress. 15 If you look at the San Luis Act, which is in 16 evidence in this proceeding, there is a description of the 17 service area of the federal project authorized by 18 Congress. There was earlier testimony by Mr. Ottemoeller 19 about the Barcellos judgment and a determination that all 20 of Westlands is within the authorized service area of the 21 San Luis Unit. 22 That is a determination made by a federal judge 23 about a federal statute. This report does not deal with 24 questions of place of use under state water law. 25 C.O. STUBCHAER: Mr. Herrick. CAPITOL REPORTERS (916) 923-5447 13374 1 MR. HERRICK: I would disagree with most of that. I 2 believe 90 percent -- 3 MR. BIRMINGHAM: I'll kiss and buy Mr. Herrick lunch 4 if he can point out where this talks about CVP -- 5 MR. NOMELLINI: Don't get -- 6 C.O. STUBCHAER: Please, Mr. Herrick, has the floor. 7 MR. HERRICK: 90 percent of the testimony in this 8 phase has stated that they believe that the drawing of the 9 lines for the permitted place of use on the permits was 10 somehow a mistake, a clerical error or nonspecific. 11 Nobody has been able to come up with a person or people 12 who draw the lines to see: Why did you do that? What was 13 the reason it being here or there? 14 This document, whatever its level of proof, is 15 relevant to the question of whether or not there are other 16 issues involved as to why the lines were drawn as they 17 were drawn. 18 And I believe Mr. Nomellini should be able to 19 explore with the witnesses this document to see whether or 20 not these types of decisions, what lands should be 21 eligible for federal projects, may, indeed, have been the 22 basis for the lines drawn on the various maps. So I think 23 it's very relevant. 24 C.O. STUBCHAER: Mr. Atlas. 25 MR. ATLAS: I have to join with Mr. Birmingham's CAPITOL REPORTERS (916) 923-5447 13375 1 objection. We are way, way off the subject here. If the 2 Board starts getting into the question of how the United 3 States has enforced the acreage limitations under 4 Reclamation Law, it is getting into an area that I can 5 assure is quicksand of the worse kind. 6 This report, if the Board looks at the 7 recommendation, this report has absolutely nothing to do 8 with the issue before this Board. The recommendations are 9 addressed to the Commissioner of the Bureau of Reclamation 10 to establish a schedule for identifying the extent to 11 which ineligible land is receiving federal irrigation 12 water and develop a plan to address those instances, to 13 request a formal opinion from the Office of the Solicitor 14 about those subjects, to implement a policy to assess 15 charges for federal project water that's delivered to 16 ineligible land. 17 The only discussion that I've heard so far, 18 either in the direct or cross-examination about 19 eligibility under the Reclamation format, is that these 20 landowners had no notice at all that they were ineligible. 21 There's nothing in this Inspector General's report that 22 you can find that would give them any other notice other 23 than that, they were eligible. 24 C.O. STUBCHAER: Mr. Nomellini. 25 MR. NOMELLINI: My turn next -- and I don't want CAPITOL REPORTERS (916) 923-5447 13376 1 this kiss. The lunch maybe, but no kiss. 2 Page 6 says, 3 (Reading): 4 "The Bureau has also identified state laws and 5 project legislation as other obstacles to 6 transferring, conserve water from irrigation to 7 other unmet needs such as increased instream 8 flows for fisheries, environmental protection 9 and restoration and municipal and industrial 10 water supplies to the nation's urban areas. 11 To illustrate a basic tenent of water law, the 12 western states is the prior appropriations 13 doctrine which gives the first party to 14 appropriate the water a priority right to that 15 water. 16 If the water is not used, the first 17 appropriator can lose the right to the water. 18 In addition, water rights are an integral part 19 of property evaluation in the west, on lands 20 without water rights has little market value. 21 As such a water right holder, such as an 22 irrigator, would have no economic incentive to 23 give up conserved water and the associated 24 water rights without compensation for both the 25 loss of crop value and evaluation." CAPITOL REPORTERS (916) 923-5447 13377 1 Now, in terms of the eligibility of the land to 2 receive federal water, if it was not eligible to receive 3 federal water because it's not properly classified, then 4 leaving it out of the place of use is perfectly 5 appropriate because the delivery of that water is 6 inappropriate anyway. 7 And, therefore, there is no justification to go 8 ahead and strain the boundaries of these maps that were 9 filed with the applications for appropriation to include 10 land that's ineligible anyway. 11 The witnesses have come before us and indicated a 12 lack of any knowledge. My attempt in cross-examination 13 with regard to this document is not to get into all of the 14 intricacies of the excess land law limitations and all 15 those changes, but to go to the question of whether or not 16 the witnesses had any knowledge of these questions of 17 eligibility, which if there was knowledge, how they relate 18 to the actions that took place. 19 It could be that some of these people just 20 speculated buying land, hoping they could get a water 21 supply, I don't know. But I think I'm entitled to pursue 22 that. This is one document that raises those questions 23 and I think I should be able to pursue it to the extent 24 that I wanted to go, not to the extent that Mr. Atlas has 25 suggested I'm headed. I'm not headed there. CAPITOL REPORTERS (916) 923-5447 13378 1 C.O. STUBCHAER: Mr. Campbell. 2 MR. C. CAMPBELL: Once again, there's absolutely no 3 foundation. Mr. Turnquist has testified that the lands in 4 question are eligible. They are in classifications that 5 are eligible. They are recorded annually as to their 6 classification. 7 There is a classification in Westlands and 8 clearly they are not Class 6 lands. They have been 9 classified, they're recorded as eligible. There's no 10 evidence that the expansion and encroachment lands within 11 Westlands are ineligible under this definition. So 12 there's no basis for this line of questioning. 13 C.O. STUBCHAER: Mr. Birmingham. 14 MR. BIRMINGHAM: Let's assume hypothetically that 15 Mr. Nomellini is right. There's some piece of land within 16 the encroachment lands or expansion lands adjacent -- 17 within Westlands that are not eligible because of the land 18 classification. 19 Changing the place of use to include those lands 20 is not going to harm anybody, because if the lands are 21 determined to be ineligible they will not receive project 22 water. I would like to refer the Board to Page 2 of the 23 document Central Delta Water Agency Exhibit 31. 24 It talks about the objective of the audit. It 25 talks about an original objective and it talks about a CAPITOL REPORTERS (916) 923-5447 13379 1 revised objective. And it says, 2 (Reading): 3 "Our revised objective was to determine whether 4 the Bureau was ensuring that Reclamation 5 project water was used to irrigate only lands 6 determined to be eligible to receive water," 7 not under state law, "under Federal Reclamation 8 Law." 9 And the statement that Mr. Nomellini read on Page 10 6, I don't see that statement giving rise to any 11 obligation for me to kiss him or buy him lunch. 12 MR. NOMELLINI: Don't kiss me. The lunch I'll let 13 you off the hook, I don't care about, because I've got my 14 own money. 15 MR. BIRMINGHAM: There is no reference to the 16 statement that Mr. Nomellini read about the operation of 17 the CVP or the rights that are -- the water right permits 18 that are held by the Bureau of Reclamation for operation 19 of the CVP, this document is completely irrelevant. 20 MR. NOMELLINI: Last -- 21 C.O. STUBCHAER: Last word? 22 MR. NOMELLINI: Last word. It is my contention, and 23 I think the contention of the State of California, 24 including this Board, that the federal government is 25 obligated to comply with California water rights law to CAPITOL REPORTERS (916) 923-5447 13380 1 the extent not inconsistent with a specific congressional 2 directive. 3 So the eligibility of land to receive federal 4 water requires, under federal law, that there be a permit 5 from the state. And, of course, under state law it be 6 within the permitted place of use. 7 So I think the two are integrally tied, but I 8 should be allowed to pursue this with regard to the 9 knowledge of these parties as to the eligibility of the 10 land. And of course, if the land is not eligible we're 11 fighting over nothing and the state should not do anything 12 to bless an illegal delivery of water. We ought to bring 13 it to a halt, stop it. So we certainly shouldn't expand 14 the place of use. 15 C.O. STUBCHAER: We're going to take our morning 16 break now and we'll have a consultation during the break. 17 (Recess taken from 10:35 a.m. to 10:47 a.m.) 18 C.O. STUBCHAER: Call the hearing back to order. 19 The objection is sustained. 20 MR. NOMELLINI: Okay. I'm not sure I remember the 21 objection. 22 MR. BIRMINGHAM: Relevance. 23 MR. JACKSON: You can't ask any more questions. 24 MR. NOMELLINI: Well, maybe we'll refresh my 25 recollection. Mr. Turnquist, have you ever seen Central CAPITOL REPORTERS (916) 923-5447 13381 1 Delta Water Agency Exhibit 30 or 31? 2 MR. BIRMINGHAM: Objection. Relevance. 3 C.O. STUBCHAER: Mr. Nomellini, what is the 4 relevance of this in view of the ruling? 5 MR. NOMELLINI: As to whether or not there was any 6 question of eligibility of the lands of the Redfern to 7 receive federal water. 8 C.O. STUBCHAER: That was the subject of -- well, 9 I'm going to sustain the objection. 10 MR. NOMELLINI: Okay. Mr. Turnquist, going now to 11 your testimony on Page 2 and the federal actions that were 12 relied on by the Redferns as to the eligibility of their 13 properties to receive federal water, could you describe 14 what those actions were on the part of the federal 15 agencies? 16 MR. TURNQUIST: Number one, U.S. Bureau of 17 Reclamation built physical distribution facilities and 18 acquired right of ways and would have acquired right of 19 ways for those facilities from the Redfern family. 20 MR. NOMELLINI: Anything other than that? 21 MR. TURNQUIST: They imposed upon the district the 22 rules of eligibility that we talked about earlier. And 23 the Bureau acted upon -- the Bureau of Reclamation acted 24 upon those documents relating to excess land holdings, 25 recordable contractings and the conclusions of those. CAPITOL REPORTERS (916) 923-5447 13382 1 MR. NOMELLINI: Okay. Have you seen anything in 2 writing that would reflect the Bureau's determination that 3 the Redfern properties were eligible to receive federal 4 water? 5 MR. TURNQUIST: I don't quite know what you mean "in 6 writing." Did they write the Redferns a letter and say, 7 "This land is eligible"? 8 MR. NOMELLINI: Well, did they do that? 9 MR. TURNQUIST: Not that I'm aware of, but that 10 would have been 20-plus-some years ago. 11 MR. NOMELLINI: Okay. Have you seen any written 12 evidence of the federal agencies indicating that the 13 Redfern property was eligible to receive federal water? 14 MR. TURNQUIST: Yes. The -- through my knowledge of 15 Reclamation Law and the required documentation of 16 recordable contracts, the execution of them, the 17 disposition of them, there are numerous letters in the 18 Redfern files that relate to that. 19 MR. NOMELLINI: And in those letters you recall 20 seeing words to the affect that the lands are eligible for 21 the receipt of water? 22 MR. TURNQUIST: No, I don't. And I don't know that 23 that level of correspondence would address that issue. 24 To me the fact that those documents were in the files, the 25 Bureau executed them, tells me as a knowledgeable person CAPITOL REPORTERS (916) 923-5447 13383 1 of the issues that it was eligible to receive water. 2 MR. NOMELLINI: All right. Now, with regard to the 3 Bureau developing the delivery and distribution system, 4 are you saying the Bureau actually engaged a contractor to 5 build the distribution system? 6 MR. TURNQUIST: That was the Bureau's 7 responsibility. 8 MR. NOMELLINI: All right. But that is what your 9 testimony is -- 10 MR. TURNQUIST: Yes. 11 MR. NOMELLINI: -- is that they did it? 12 MR. TURNQUIST: Yes. 13 MR. NOMELLINI: All right. With regard to the state 14 you indicated the Redferns have relied on a series of 15 state actions. Other than the construction of the 16 highway, I-5, which I want to ask a couple questions 17 about, are there any other state actions that the Redferns 18 relied on that would indicate the Redfern lands in 19 question here are eligible to receive federal water? 20 MR. TURNQUIST: Nothing comes to mind. 21 MR. NOMELLINI: Okay. Now, with regard to the -- 22 your testimony regarding Caltrans taking approximately 20 23 acres and putting in drains and irrigation pipes, is it 24 your contention that those actions of Caltrans reflect a 25 determination that the Redfern property was entitled to CAPITOL REPORTERS (916) 923-5447 13384 1 receive federal water? 2 MR. TURNQUIST: I don't know that I can state as to 3 what Caltrans' intentions were. I do know specifically 4 that they made the plumbing available for the Bureau of 5 Reclamation to build the distribution facilities. And, 6 obviously, there was some reason that those facilities 7 were put in place. I don't know if the Bureau paid 8 Caltrans for that, what the level of correspondence there 9 was. 10 MR. NOMELLINI: Then you would agree that that in 11 and of itself does not indicate that the state made any 12 determination as to the eligibility of the lands to 13 receive federal water? 14 MR. TURNQUIST: I don't think I can conclude that. 15 MR. NOMELLINI: So this reliance by the Redfern 16 properties on the state action -- well, perhaps you can 17 tell me: 18 How did the state action, or how was it relied on 19 by the Redfern property? 20 MR. TURNQUIST: Not being there in the '70s, I 21 cannot testify as to the specific reliance. Looking back 22 at the records in the files it is quite evident that 23 Caltrans and the state agency and the Bureau of 24 Reclamation had the intention of building facilities, 25 water distribution facilities. CAPITOL REPORTERS (916) 923-5447 13385 1 I don't know that it's relevant, but we'll put in 2 for what it is worth, as part of that acquisition of the 3 20 acres -- and this was probably joint between the State 4 of California and Fresno County -- an overpass was built 5 over the freeway that allowed access for the Redferns and 6 neighbors to go back and forth over the freeway. And that 7 overpass connects two -- the two sections of land that the 8 Redferns have in Westlands. 9 MR. NOMELLINI: Would you expect that Caltrans would 10 normally take care of the access problems associated with 11 a severed parcel of land? 12 MR. TURNQUIST: Frequently they don't. 13 MR. NOMELLINI: So, you think that in this case 14 because they did that indicated a determination by 15 Caltrans that the Redfern lands were eligible to receive 16 federal water? 17 MR. TURNQUIST: I can't make that assumption. 18 MR. NOMELLINI: Okay. All right. If the Redfern 19 lands were excluded from CVP service of water because the 20 place of use did not include them, are there any other 21 sources of water that could be utilized by the Redfern 22 Ranches to sustain their irrigation? 23 MR. TURNQUIST: "To sustain"? 24 MR. NOMELLINI: Yes. 25 MR. TURNQUIST: There are other sources of water. I CAPITOL REPORTERS (916) 923-5447 13386 1 testified earlier in response to the Exchange Contractors 2 CCID questions, that we have used that tool to supplement 3 the water supply. To go and replace the entire water 4 supply might be a doable thing. 5 Number one, it would be fraught with problems; 6 two, its reliability is becoming a huge question. And the 7 paramount issue when it comes down to dollars and cents of 8 being in the farming business, I would conclude that the 9 cost would be astronomical. 10 MR. NOMELLINI: Does the Redfern property that is 11 located outside the place of use, the line shown on Figure 12 3-26, receive a full supply of water from the Westlands 13 Water District? 14 MR. TURNQUIST: No. It's in Westlands Water 15 District Area 2, which when there is a full 100-percent 16 CVP supply, only receives 1.3 acre-feet. And typically by 17 our modeling under today's rules and endless limitations 18 the best we can anticipate would be 65 or 70 percent, 19 which gets us under one foot. 20 MR. NOMELLINI: All right. And that 65 to 70 21 percent that you would expect to receive from Westlands, 22 assuming the land was included in the permitted place of 23 use, is based on, what, regulatory constraints, or -- 24 MR. TURNQUIST: Endangered Species Act, pumping 25 restrictions -- CAPITOL REPORTERS (916) 923-5447 13387 1 MR. NOMELLINI: Okay. 2 MR. TURNQUIST: And what we historically have 3 experienced since basically '92 is non-Mother Nature 4 drought regulations, regulatory drought that has infected 5 us. 6 MR. NOMELLINI: All right. How do you deal with the 7 irrigation of the Redfern properties with only one 8 acre-foot per acre from Westlands? 9 MR. TURNQUIST: We transfer water to it. 10 MR. NOMELLINI: All right. And when you -- in your 11 planning to irrigate the Redfern properties, how much 12 water per acre do you attempt to get from transferred 13 water? 14 MR. TURNQUIST: Depends, as you allude to, the 15 cropping pattern. And we use various methods in our 16 cropping pattern. Probably two acre-feet, total -- 17 MR. NOMELLINI: All right. 18 MR. TURNQUIST: -- meets our needs. 19 MR. NOMELLINI: Then, in your cropping pattern, or 20 cropping plan, excuse me, are some lands left fallowed 21 each year? 22 MR. TURNQUIST: During the Mother Nature drought of 23 the early '90s, some was. Since then we have been able to 24 buy additional waters from the district beyond the typical 25 one acre-foot and also transferred some water. I don't CAPITOL REPORTERS (916) 923-5447 13388 1 remember a field that has been left idled. 2 MR. NOMELLINI: All right. 3 MR. TURNQUIST: What we do, our typical crops we use 4 two, two-and-a-half feet per acre, but we put a mix in 5 there, for example, melons, that we can utilize about a 6 foot and a quarter, foot and a half. 7 MR. NOMELLINI: Okay. So you can actually irrigate 8 all of your Redfern property in question here if you get 9 about two acre-feet per acre overall for your annual 10 water? 11 MR. TURNQUIST: That's a fair conclusion under 12 today's cropping plan. 13 MR. NOMELLINI: All right. Were you aware of the -- 14 let me show you Westlands' Exhibit 121. Okay. Have you 15 had a chance to review that, Westlands' Exhibit 121? 16 MR. TURNQUIST: Not to the point that I could 17 understand it. 18 MR. NOMELLINI: Okay. Recognizing that that is a 19 notice of petition for change to the State Water Resources 20 Control Board, in 1986 did you have any notification from 21 the Westlands Water District that a petition for change of 22 place of use as included in that notice had been filed? 23 MR. TURNQUIST: Why don't you describe to me what 24 this is? 25 MR. NOMELLINI: Okay. Let's do it a different way. CAPITOL REPORTERS (916) 923-5447 13389 1 Have you -- when did you first become aware that there was 2 a place of use question related to water rights associated 3 with the federal delivery of water to Westlands Water 4 District? 5 MR. TURNQUIST: As to the issues that are before 6 this Board? 7 MR. NOMELLINI: Well, the place of use portion. 8 MR. TURNQUIST: A year and a half ago. 9 MR. NOMELLINI: Okay. I think you've earned your 10 freedom. Let's go to Mr. Ottemoeller. 11 MR. OTTEMOELLER: Oh, shoot, I thought we were done. 12 MR. NOMELLINI: No. No. No. We're not done. 13 Okay. Let's start with some real easy ones. You 14 previously worked for the Westlands Water District, didn't 15 you? 16 MR. OTTEMOELLER: Yes. 17 MR. NOMELLINI: And when did you first start your 18 work with the Westlands Water District? 19 MR. OTTEMOELLER: June 1982. 20 MR. NOMELLINI: And in what capacity were you 21 engaged at that time? 22 MR. OTTEMOELLER: At that time I was an assistant 23 drainage engineer. 24 MR. NOMELLINI: Okay. And without a lot of the 25 detail, could you generally describe your employment with CAPITOL REPORTERS (916) 923-5447 13390 1 Westlands indicating the capacity beginning in June of 2 1982. 3 MR. BIRMINGHAM: Excuse me. Perhaps, to help 4 Mr. Ottemoeller to refresh his recollection, I could give 5 to him a copy of Westlands' Exhibit 1, which is a 6 statement of his qualifications. 7 MR. OTTEMOELLER: For approximately a year and a 8 half I was the assistant drainage engineer. In January, 9 1984, I became the assistant chief of operations which 10 involved supervision of the office and field operations 11 activities including management of the water supply. 12 In 1987 I became chief of operations, which was a 13 division head position reporting directly to the general 14 manager with increasing responsibilities to do with water 15 supply. 16 And then things evolved in the late -- in the 17 middle '90s with some title changes. My responsibilities 18 became more directly water supply and less actual field 19 operations. In the last year I was assistant to the 20 general manager dealing primarily with water policy 21 issues. 22 MR. NOMELLINI: And that's when you decided to go 23 someplace else? 24 MR. OTTEMOELLER: I decided to find another 25 opportunity -- CAPITOL REPORTERS (916) 923-5447 13391 1 MR. NOMELLINI: That's okay. 2 MR. OTTEMOELLER: -- which was about the same. 3 MR. BIRMINGHAM: And I'd like to state for the 4 record that Westlands Water District would hire 5 Mr. Ottemoeller back in a heartbeat. 6 MR. NOMELLINI: I bet you would. I'll stipulate to 7 that. 8 With regard to the place of use question 9 associated with some of the lands of the Westlands Water 10 District, when did you first become aware that there was 11 an issue associated with whether or not all of the lands 12 served by Westlands with federal water might not be 13 included in a permitted place of use of the permits that 14 the Bureau used to provide water to Westlands? 15 MR. OTTEMOELLER: It would have been in the mid 16 '80s. 17 MR. NOMELLINI: All right. You think this notice, 18 this Westlands' 121, was an indication to you? 19 MR. OTTEMOELLER: I can't recall specifically seeing 20 this, but I was aware that the Bureau had made the 21 application. 22 MR. NOMELLINI: All right. Are you aware whether or 23 not Westlands made any attempt at that time to notify its 24 landowners that there was a pending question related to 25 whether or not some of the lands might be outside the CAPITOL REPORTERS (916) 923-5447 13392 1 permitted place of use? 2 MR. OTTEMOELLER: To my knowledge we did not. That 3 was about the time that we completed the Barcellos 4 judgment. And as I recall the discussions that we had it 5 was our understanding and belief that being within the CVP 6 service area, essentially, covered that issue. It was 7 always our belief that based on that judgment that we were 8 legally receiving water from the Bureau. 9 There was nobody telling us that we couldn't 10 receive water. So at that time we didn't have any details 11 to provide anybody. So we didn't make public notice to 12 individual landowners that there was any potential 13 question. 14 MR. NOMELLINI: Was there a discussion at that time 15 as to whether or not the project surface area coincided 16 with the place of use of the permits issued by the State 17 Water Resources Control Board to the Bureau of 18 Reclamation? 19 MR. OTTEMOELLER: Well, yes. I was generally aware 20 that they didn't coincide exactly, which is why the Bureau 21 was making that petition. 22 MR. NOMELLINI: Okay. Was the State Water Resources 23 Control Board a party to the determination in the 24 Barcellos case that you spoke about determining the 25 boundary of the service area? CAPITOL REPORTERS (916) 923-5447 13393 1 MR. OTTEMOELLER: Not that I was aware of. 2 MR. NOMELLINI: Okay. Do you recall discussions 3 with regard to the need to process an application through 4 the State Water Resources Control Board to address the 5 issue of lands being outside the permitted place of use? 6 MR. OTTEMOELLER: I don't recall any specific 7 discussions with regard to the need for it. I was simply 8 aware that the Bureau was making that petition, in an 9 general sense, of consolidating and expanding the place 10 and purpose of use. I was not aware of details. 11 MR. NOMELLINI: Does Westlands regularly hold a 12 meeting of the landowners? 13 MR. OTTEMOELLER: Well, not a specific landowners' 14 meeting. There's typically a meeting, or a workshop of 15 some sort about the beginning of the water season to 16 apprise water users of the potential water supply. We 17 typically get 20, 25 percent participation. 18 MR. NOMELLINI: Do you know whether or not since the 19 beginning of this hearing has Westlands convened a meeting 20 of its landowners and discussed the issue of whether or 21 not some of the lands are outside the place of use of the 22 State Water Resources Control Board permits for the 23 Bureau? 24 MR. OTTEMOELLER: I don't know of any specific 25 meeting. I know notice was provided to those who, when we CAPITOL REPORTERS (916) 923-5447 13394 1 found out which lands were included in the petition and in 2 the EIR, the Draft EIR, we provided individual notice to 3 landowners, but I'm not aware of any meeting. 4 MR. NOMELLINI: Okay. So the individual written 5 notice you're aware of went out once the Draft 6 Environmental Impact Report was prepared? 7 MR. OTTEMOELLER: I'm fuzzy as to the exact time 8 relative to the draft, but it was approximately in that 9 time frame. 10 MR. NOMELLINI: All right. And your testimony is 11 that you're not aware of any similar type of notice back 12 in 1986? 13 MR. OTTEMOELLER: I'm virtually certain there was no 14 notice of that type to the landowners at that time. 15 MR. NOMELLINI: Are you aware -- well, you indicated 16 that was your first awareness, right, in '86, right about 17 then? 18 MR. OTTEMOELLER: About that time, yes. 19 MR. NOMELLINI: I didn't ask the question, but 20 somewhat redundant: You are not aware, then, of any such 21 application filed by the Bureau with regard to the place 22 of use filed like in 1959? 23 MR. OTTEMOELLER: No, I am not. I have no 24 knowledge. 25 MR. NOMELLINI: Okay. Calling your attention to CAPITOL REPORTERS (916) 923-5447 13395 1 Figure 3-26 of the Draft Environmental Impact Report to 2 the Board, do you know whether or not all of the lands 3 shown to be outside existing permitted place of use, which 4 on yours would be the -- 5 MR. OTTEMOELLER: Green. 6 MR. NOMELLINI: -- the green and a lighter shade of 7 green, I guess, do you know whether or not those lands 8 have been served with federal water by Westlands Water 9 District? 10 MR. OTTEMOELLER: I know a majority of them have. I 11 couldn't point to specific parcels of land. And the 12 district's comments on the Draft EIR, or Draft EIS we 13 proposed some corrections to those lands which they had 14 considered as being expansion lands or native vegetation 15 and corrected that as being previously irrigated. I don't 16 know specifically which lands, but I know most of them 17 have received water from the district. 18 MR. NOMELLINI: Do you know for how long the lands 19 shown to be outside the existing permitted place of use 20 received federal water from Westlands Water District? 21 MR. OTTEMOELLER: Since the time of the completion 22 of the distribution systems in those areas, or in some of 23 those areas individual landowners built what we used to 24 call temporary systems, that diverted directly out of the 25 canal, because the district -- or the Bureau never CAPITOL REPORTERS (916) 923-5447 13396 1 completed our distribution system. 2 But, actually, shortly after the beginning -- 3 after the completion of the canal there were a number of 4 systems that were built by individual landowners, some of 5 them to serve some of these lands. So that would have 6 been starting in the late '60s. As the district completed 7 its distribution system those private systems were 8 replaced until we got to where we are today. 9 MR. NOMELLINI: Are you familiar with the system of 10 distribution installed by the Bureau of Reclamation 11 referred to by Mr. Turnquist to serve the Redfern 12 properties? 13 MR. OTTEMOELLER: Yes. 14 MR. NOMELLINI: When was that put in? 15 MR. OTTEMOELLER: I don't know specifically. 16 MR. NOMELLINI: All right. 17 MR. OTTEMOELLER: It would have -- it was not one of 18 the first systems. That's a pump lateral, if I had to 19 take a guess it would be in the early '70s. 20 MR. NOMELLINI: Now, you indicated that the Bureau 21 cannot complete the distribution system in some areas? 22 MR. OTTEMOELLER: That's correct. 23 MR. NOMELLINI: All right. Do you know why the 24 Bureau did not complete the distribution systems in some 25 areas? CAPITOL REPORTERS (916) 923-5447 13397 1 MR. OTTEMOELLER: As I understand it, essentially, 2 we ran out of money in terms of the amount of funding that 3 had been set aside to build the distribution system. 4 MR. NOMELLINI: Okay. You don't recall there being 5 any eligibility question raised with regard to that 6 funding? 7 MR. OTTEMOELLER: I wasn't involved, but those lands 8 include a lot of land that is within the place of use as 9 described on this map. 10 MR. NOMELLINI: Okay. With regard to the boundaries 11 of Westlands Water District, do you know when the 12 Westlands Water District was formed? 13 MR. OTTEMOELLER: Westlands Water District was 14 formed in 1953. The boundary in question here as related 15 to the merger of the West Plains Water Storage District, 16 all of the original Westlands is within the permitted 17 place of use on this map. Those lands that are outside 18 were part of the West Plains Water Storage District that 19 was merged with the Westlands in 1965. 20 MR. NOMELLINI: Okay. Let's go back to 1953. Do 21 you know whether or not the boundary of the Westlands 22 Water District as of 1953 was included within the place of 23 use for the Shasta application by the Bureau? 24 MR. OTTEMOELLER: Based on that map that, 2-2, not 25 all of the original Westlands would have been within the CAPITOL REPORTERS (916) 923-5447 13398 1 place of use within Shasta or Folsom. 2 MR. NOMELLINI: Do you know whether or not Westlands 3 Water District claims that the absence of portions of the 4 Westlands Water District as it existed in 1953 from the 5 filings for the Shasta permits was due to a clerical error 6 on the part of the Bureau of Reclamation? 7 MR. OTTEMOELLER: Well, at the time those permits 8 were done I'm not sure that Westlands existed. In 9 preparing or dealing with the San Luis Unit, all of the 10 permits at that time were intended to include all of 11 Westlands, to my knowledge. But I don't specifically know 12 who did it or when they did it in terms of drawing the 13 lines on the map. 14 MR. NOMELLINI: Okay. Now, with regard to your 15 indication of the merger with the West Plains Water 16 Storage District, your testimony indicates that Westlands 17 had an entitlement -- this is on the first page of your 18 testimony -- an entitlement to receive up to 900,000 19 acre-feet of CVP water annually; is that correct? 20 MR. OTTEMOELLER: Yes. 21 MR. NOMELLINI: Do you know when that entitlement 22 was obtained? 23 MR. OTTEMOELLER: The contract was signed in 1963. 24 MR. NOMELLINI: All right. Then you indicate in 25 1965 Reclamation urged Westlands to merge with its CAPITOL REPORTERS (916) 923-5447 13399 1 neighbor, West Plains Water Storage District. Do you see 2 that? 3 MR. OTTEMOELLER: Yes. 4 MR. NOMELLINI: Now, at one time the West Plains 5 Water Storage District was intended to be served with 6 State Water Project water; was it not? 7 MR. BIRMINGHAM: Objection. Assumes facts not in 8 evidence. 9 C.O. STUBCHAER: Mr. Nomellini. 10 MR. NOMELLINI: Cross-examination. 11 C.O. STUBCHAER: It's a question, you may answer. 12 MR. OTTEMOELLER: I don't know. 13 C.O. STUBCHAER: While we're interrupted, with the 14 interruptions you've had your first hour. So how much 15 more time will you need? 16 MR. NOMELLINI: I think I need another half hour. 17 C.O. STUBCHAER: For what purpose? 18 MR. NOMELLINI: Well, there's two witnesses here. 19 And one of them we spent a lot of time -- I don't know, 20 did you deduct all the kissing time and all of that? 21 C.O. STUBCHAER: I deducted the discussion. 22 MR. NOMELLINI: Well, I want to go through this 23 mapping thing with Mr. Ottemoeller a little more 24 thoroughly than I have. I want to go through the merger 25 of the two districts, the availability of water to the CAPITOL REPORTERS (916) 923-5447 13400 1 lands. And let's see here, I think that's about it. It 2 may not take a half hour. 3 C.O. STUBCHAER: It seems to me, Mr. Nomellini, 4 reading him his testimony and then asking him if that's 5 correct is not real productive. 6 MR. NOMELLINI: Yeah, I'm not going to do too much 7 more of that. 8 C.O. STUBCHAER: All right. I'll grant you a half 9 hour. 10 MR. NOMELLINI: All right. 11 MR. BIRMINGHAM: While we've interrupted 12 Mr. Nomellini, at 1:30 I have to excuse myself. And 13 Mr. Campbell will represent myself during my absence. 14 C.O. STUBCHAER: All right. 15 MR. NOMELLINI: You don't want to kiss me, do you? 16 MR. C. CAMPBELL: I prefer not. 17 MR. NOMELLINI: No objection. 18 C.O. STUBCHAER: We've beaten that horse to death. 19 Okay. Let's go on. 20 MR. NOMELLINI: All right. Is it true prior to the 21 merging with Westlands, West Plains Water Storage District 22 was planned to be served with State Water Project water? 23 MR. OTTEMOELLER: I don't know that. 24 MR. NOMELLINI: Okay. How did you conclude that 25 Reclamation urged Westlands to merge with its neighbor? CAPITOL REPORTERS (916) 923-5447 13401 1 MR. OTTEMOELLER: That was a fairly well-discussed 2 issue during our litigation with the United States. There 3 was a memorandum from the Department of Interior official 4 by the name of Holum who described that urging that the 5 district merge with West Plains and that we would in 6 exchange receive 250,000 acre-feet -- or not in exchange 7 in recognition of that. 8 MR. NOMELLINI: Okay. You weren't there at the 9 time? 10 MR. OTTEMOELLER: No. 11 MR. NOMELLINI: Let me show you Westlands' Exhibit 12 117. 13 MR. OTTEMOELLER: Okay. 14 MR. NOMELLINI: All right. With regard to 117, is 15 that the letter that you're talking about as urging -- 16 MR. OTTEMOELLER: Frankly, I'm not sure whether this 17 is the Holum memorandum, it's consistent with that. I 18 don't know if this is the memorandum that we refer to in 19 all our discussions with the United States. 20 MR. NOMELLINI: Okay. With regard to the West 21 Plains Water Storage District, you indicated there was an 22 additional commitment of 250,000 acre-feet; is that 23 correct? 24 MR. OTTEMOELLER: Yes. 25 MR. NOMELLINI: And was that a firm supply? CAPITOL REPORTERS (916) 923-5447 13402 1 MR. OTTEMOELLER: From the district's perspective, 2 yes, that was a firm supply. 3 MR. NOMELLINI: And would you agree that that only 4 represented 35 or so percent of the water need of the West 5 Plains Storage District area? 6 MR. OTTEMOELLER: It's closer to half. I guess I 7 would be more comfortable with the 45-percent end of that 8 range. 9 MR. NOMELLINI: Okay. And you're looking at 10 Westlands' 117 -- 11 MR. OTTEMOELLER: Page 5. 12 MR. NOMELLINI: -- Page 5. There's an indication 13 that the range is 35 to 45 percent -- 14 MR. OTTEMOELLER: Yes. 15 MR. NOMELLINI: -- is that correct? 16 MR. OTTEMOELLER: Yes. 17 MR. NOMELLINI: Okay. On Westlands' 117, do you see 18 the language, it didn't come through very well, that 19 indicates that, 20 (Reading): 21 "The additional water required to meet the 22 area's needs is expected to be supplied under a 23 specifically stated contract provision and 24 understanding that such water might later have 25 to be withdrawn to meet our commitments." CAPITOL REPORTERS (916) 923-5447 13403 1 Do you see that? 2 MR. OTTEMOELLER: Yes, I see that sentence. 3 MR. NOMELLINI: Okay. And the next sentence which 4 is kind of hard to read, would you agree that that speaks 5 to a reservation for the east side division? 6 MR. OTTEMOELLER: Actually, I can't read that. I 7 don't know what it says. 8 MR. NOMELLINI: Okay. Do you have any knowledge of 9 the reservation associated with the federal delivery of 10 water to serve the West Plains Water Storage District? 11 MR. OTTEMOELLER: No. 12 MR. NOMELLINI: Do you agree that if the change in 13 place of use is not granted by the Board that the land 14 shown to be outside the permitted place of use would still 15 obtain water transferred from non-federal sources to meet 16 their irrigation needs? 17 MR. OTTEMOELLER: Yes. And from federal sources 18 provided there was action through the State Board to 19 permit those specific deliveries. But as we discussed 20 earlier, that's generally going to be at an additional 21 cost. 22 MR. NOMELLINI: Do you know other than the excess 23 land law provisions whether or not there are other 24 eligibility requirements for land to receive federal 25 water? CAPITOL REPORTERS (916) 923-5447 13404 1 MR. OTTEMOELLER: Well, part of Reclamation Law 2 includes delivery to lands that meet the land 3 classification for suitability for irrigation, that's 4 right. 5 MR. NOMELLINI: Do you know whether or not the lands 6 that are shown to be outside the permitted place of use on 7 Figure 3-26 have been found to meet the classification as 8 suitable for irrigation for the delivery of federal water? 9 MR. OTTEMOELLER: I know that everything that has 10 received water is suitable under those land 11 classifications. I can't speak to those lands that have 12 not received water as to whether or not they've been 13 classified as Class 6 or otherwise. 14 MR. NOMELLINI: Okay. And your knowledge as to the 15 suitability as to the classification -- or your knowledge 16 as to the classification, what is that based on? 17 MR. OTTEMOELLER: Well, two things. Originally, the 18 Bureau paid very close attention as we were constructing 19 our distribution system and delivering CVP water to lands, 20 they were very careful to make sure all of those lands had 21 previously received water. 22 And then in the mid '80s there was a 23 reclassification study. And I know specifically because I 24 was there at the time, as a result of that study any lands 25 that were Class 6 not only didn't receive any water, they CAPITOL REPORTERS (916) 923-5447 13405 1 didn't receive any allocation. 2 MR. NOMELLINI: And Class 6 lands are what? 3 MR. OTTEMOELLER: Lands that were not suitable for 4 irrigation and, therefore, not eligible. 5 MR. NOMELLINI: Okay. And what kind of lands would 6 fall into that category, generally? 7 MR. OTTEMOELLER: Typically string bottoms, lands 8 over certain slope and some lands with significant 9 drainage problems, highly saline or very high soils. 10 MR. NOMELLINI: When we speak about drainage 11 problems, you're aware -- well, you testified before about 12 the drainage-impacted area of Westlands. 13 MR. OTTEMOELLER: I'll not talk -- get into the 14 issue of defining drainage impacts. Yes, there are parts 15 of Westlands that have drainage impacts. 16 MR. NOMELLINI: All right. Now, are any parts of 17 the drainage-impact areas of Westlands such that they fall 18 in classification number six as the suitability for 19 irrigation? 20 MR. BIRMINGHAM: Objection. Relevance. We're 21 talking about lands that are outside the place of use. 22 The testimony has been that the lands that are outside the 23 place of use, Mr. Johnston testified to this extensively 24 in Phase II-A and Phase II, that the lands that are 25 outside of the place of use are not drainage impacted. CAPITOL REPORTERS (916) 923-5447 13406 1 So pursuing this line of questions is completely 2 irrelevant. 3 C.O. STUBCHAER: Well, I'm going to overrule the 4 objection. 5 MR. NOMELLINI: Okay. 6 MR. OTTEMOELLER: I'm sorry, can you restate the 7 question? 8 MR. NOMELLINI: Yeah. Do you know whether or not 9 any of the lands within the drainage-impact area of 10 Westlands are classified as Class 6? 11 MR. OTTEMOELLER: Yes, there are some. 12 MR. NOMELLINI: Approximately how many acres? 13 MR. OTTEMOELLER: That I don't know. 14 MR. NOMELLINI: Okay. Let me check one thing and I 15 think I'm ready to wrap it up. 16 MR. HERRICK: If the Board will give us a minute, 17 please? 18 C.O. STUBCHAER: All right. 19 MR. NOMELLINI: Thank you for the indulgence. I'll 20 be through very rapidly. 21 Does the condition of the soil in terms of 22 elevated conditions -- well, let's strike that. 23 Do elevated soil selenium levels result in a 24 Class 6 classification of soils? 25 MR. OTTEMOELLER: I don't know. CAPITOL REPORTERS (916) 923-5447 13407 1 MR. NOMELLINI: With regard to the lands that are 2 subject to the expansion of the place of use, do you know 3 whether or not the Westlands Water District seeks to have 4 the expansion lands added to the place of use as well as 5 the encroachment lands? 6 MR. OTTEMOELLER: As far as I know, yes. I -- I'll 7 have to respond, I'm not certain on that. 8 MR. NOMELLINI: Are you aware of any concern by the 9 Bureau of Reclamation that applying CVP water on land with 10 elevated soil selenium levels may constitute a wasteful 11 and unreasonable use of water under State law? 12 MR. BIRMINGHAM: May I ask that that question be 13 reread? 14 C.O. STUBCHAER: Yes. 15 MR. BIRMINGHAM: Thank you. 16 (Whereupon the question was read back by the Reporter.) 17 MR. BIRMINGHAM: Thank you. 18 MR. OTTEMOELLER: No, frankly I'm not aware of that. 19 MR. NOMELLINI: Do you know whether or not any of 20 the lands shown on Figure 3-26 to be outside the existing 21 permitted place of use contain elevated soil selenium 22 levels? 23 MR. BIRMINGHAM: Objection. Ambiguous. 24 C.O. STUBCHAER: Overruled. 25 MR. OTTEMOELLER: No, I don't know. CAPITOL REPORTERS (916) 923-5447 13408 1 MR. NOMELLINI: Okay. Thank you very much, 2 gentlemen. 3 Thank you, Mr. Chairman. 4 C.O. STUBCHAER: Thank you. 5 Staff have any questions of this panel? 6 MS. LEIDIGH: No. 7 C.O. STUBCHAER: Mr. Brown? 8 C.O. BROWN: No, I have none, Mr. Chairman. 9 C.O. STUBCHAER: Mr. Birmingham or Mr. Campbell, do 10 you have any redirect? 11 MR. BIRMINGHAM: We do have redirect. Can we start 12 the redirect after the lunch recess? 13 C.O. STUBCHAER: I prefer that we do it now. 14 ---oOo--- 15 REDIRECT EXAMINATION OF WESTLANDS WATER DISTRICT 16 BY MR. BIRMINGHAM 17 MR. BIRMINGHAM: Mr. Turnquist, you were asked a 18 number of questions by Mr. Nomellini concerning the state 19 and federal actions on which the Redferns had relied in 20 concluding that the lands that are outside the existing 21 place of use, as depicted on the maps attached to the 22 Bureau's permits, were eligible to receive Central Valley 23 Project water. 24 Do you recall those questions? 25 MR. TURNQUIST: Yes, in general. CAPITOL REPORTERS (916) 923-5447 13409 1 MR. BIRMINGHAM: Now, in response to -- well, he 2 asked you specifically what state actions you were 3 referring to. And I would like to follow up on that a 4 little bit. 5 You are aware of the law that resulted in the 6 merger of the West Plains and West -- West Plains Water 7 Storage District and the original Westlands Water 8 District? 9 MR. TURNQUIST: Yes, I am. 10 MR. BIRMINGHAM: Now, is it correct that the law 11 that resulted in the merger of Westlands and West Plains 12 Water Storage District was a special act of the 13 Legislature? 14 MR. TURNQUIST: I know it was an act of the 15 Legislature. 16 MR. BIRMINGHAM: And you said that you started 17 managing a farm in Westlands in 1965? 18 MR. TURNQUIST: Yes. 19 MR. BIRMINGHAM: And that was at about the same time 20 that the merger occurred; is that correct? 21 MR. TURNQUIST: Yes. The merger -- the statute -- 22 state statute was done in 1965. 23 MR. BIRMINGHAM: I'm handing to you Water Code 24 Section 37801. And I'm going to ask you to take a moment 25 and review that Water Code section. CAPITOL REPORTERS (916) 923-5447 13410 1 MR. TURNQUIST: 37801? 2 MR. BIRMINGHAM: 37801, yes. 3 MR. TURNQUIST: I've read that. 4 MR. BIRMINGHAM: 37801 of the Water Code states 5 that, 6 (Reading): 7 "The State and the people thereof have a 8 primary and supreme interest in securing to the 9 inhabitants and property owners within and 10 adjacent to the federal service area of the San 11 Luis Unit of the Central Valley Project now 12 under construction by the United States the 13 greatest possible use and conservation of the 14 waters to be made available from said unit; and 15 the greatest use thereof to the area thereby 16 assuring that the greatest productivity of the 17 largest possible area may be accomplished and 18 safely carried on within reasonable limits of 19 economy." 20 Do you know if the Redferns relied on the 21 declaration by the State Legislature which is set forth in 22 Section 37801 in reaching the conclusion that the lands 23 about which you've been testifying could receive federal 24 project water? 25 MR. TURNQUIST: I was not at the Redfern Ranches in CAPITOL REPORTERS (916) 923-5447 13411 1 1965. It was another ranch that I was working for. And 2 so I cannot testify as to what actions or conclusions 3 could have been at the time. 4 I am quite aware that Mr. Redfern was closely 5 involved in the water issues and served on several boards. 6 It would certainly be quite easy to conclude that he was 7 very familiar with this, because he'd owned this land 8 since 1942. And this would have been lands that would 9 have been -- lands that he owned for a long time, what are 10 we, 20-plus years at that time, that would become eligible 11 to receive water based on this California law. 12 MR. BIRMINGHAM: Now, based upon your knowledge of 13 the merger, was the merger the subject of significant 14 public discussion among water users within the West Plains 15 Water Storage District and Westlands Water District at the 16 time that the merger occurred? 17 MR. TURNQUIST: I don't remember anything 18 specifically. The Westlands' lands that I was involved in 19 on the ranch were all part of the original Westlands at 20 the time. 21 MR. BIRMINGHAM: Now, yesterday when Mr. Ryan was 22 here he talked about the fact that some water users had 23 constructed outlets into the San Luis Canal/California 24 Aqueduct and obtained DWR approval, the Department of 25 Water Resource approval for the construction of those CAPITOL REPORTERS (916) 923-5447 13412 1 diversion facilities from the aqueduct. 2 Do you recall that testimony? 3 MR. TURNQUIST: Yes. 4 MR. BIRMINGHAM: And he testified that when he -- in 5 reaching the conclusion that his lands were eligible to 6 receive project water, he was relying, in part, or basing 7 his conclusion in part on the fact that the DWR had 8 approved the construction of these facilities to serve 9 these lands? 10 MR. TURNQUIST: Yes. 11 MR. BIRMINGHAM: Do you know if Mr. Redfern or 12 anyone that operated on the Redfern property had 13 constructed outlet facilities from the California Aqueduct 14 and obtained approval for the construction of those 15 facilities from the Department of Water Resources? 16 MR. TURNQUIST: No. I'm familiar with the process 17 of DWR permit approval for that and the mechanics of that 18 activity. The Redfern property was never served, that I 19 can find, by one of those temporary facilities. And would 20 conclude from that, it's a great distance from the 21 California Aqueduct to these properties and probably the 22 economic end of building -- constructing that was beyond 23 the reach of economic reality. 24 MR. BIRMINGHAM: And you testified that, in response 25 to questions by Mr. Nomellini, that the federal government CAPITOL REPORTERS (916) 923-5447 13413 1 constructed a distribution system to supply water to the 2 lands you've been discussing in your testimony from the 3 San Luis Canal? 4 MR. TURNQUIST: Yes. That's correct. 5 MR. BIRMINGHAM: Mr. Nomellini also asked you 6 questions about the potential to obtain alternative 7 supplies of water if the land that is the subject of your 8 testimony were excluded from the permitted place of use. 9 Do you recall those questions? 10 MR. TURNQUIST: Yes. 11 MR. BIRMINGHAM: Now, in your direct testimony you 12 talked about the transfers of water from Central 13 California Irrigation District to these subject lands from 14 the period 1993 through present? 15 MR. TURNQUIST: That's correct. 16 MR. BIRMINGHAM: Now, I'm going to ask you to assume 17 that the State Board excluded the Redfern property from 18 the permitted place of use. 19 MR. TURNQUIST: All right. 20 MR. BIRMINGHAM: Now, if that were to occur, could 21 you obtain a transfer of water from the Central California 22 Irrigation District? 23 MR. TURNQUIST: Probably, however, when it comes 24 down to reality of economics, one of the three 25 alternatives under CVPIA for transfer of water, and those CAPITOL REPORTERS (916) 923-5447 13414 1 three choices -- or those three alternatives are: 2 Conserved water, pumped groundwater and fallowing lands. 3 And all of the transfers that we have done from 4 '93 to current have been a result of fallowed lands within 5 CCID. To obtain the level of water, if -- that we 6 currently need to farm that, we would have to idle 7 additional lands in CCID, or go to a conserved water 8 program, which to date, the Bureau has not established. 9 When you ask them what "conserved water" is, they 10 just kind of hold up their hands and say, "We don't have 11 those rules yet" -- 12 MR. BIRMINGHAM: Excuse me. What is the source of 13 water that the Central California Irrigation District 14 receives and then transfers to the Redfern property? 15 MR. TURNQUIST: They're one of the four Exchange 16 Contractors. 17 MR. BIRMINGHAM: And the four Exchange Contractors 18 receive water from the Central Valley Project? 19 MR. TURNQUIST: No. They receive it from a 20 contract. The term "exchange contract" was a trade of 21 water as a result of building Friant. And the flows from 22 the San Joaquin had been an entitlement to these lands. 23 And those flows were traded for water from the Delta 24 delivered through the Delta-Mendota Canal to the Mendota 25 Pool. CAPITOL REPORTERS (916) 923-5447 13415 1 MR. BIRMINGHAM: And the waters that are delivered 2 to the Exchange Contractors under the exchange contract 3 via the Delta-Mendota Canal, is water that is appropriated 4 by the Central Valley Project under the permits that the 5 Bureau of Reclamation holds for the operation of the 6 Central Valley Project? 7 MR. TURNQUIST: I would have to conclude that the 8 Bureau had the authority to do that. 9 MR. BIRMINGHAM: Let me ask you this question, 10 Mr. Ottemoeller: You're familiar with the exchange 11 contract? 12 MR. OTTEMOELLER: Yes. 13 MR. BIRMINGHAM: And you're familiar with the 14 methods that are used by the Bureau of Reclamation to 15 supply the Exchange Contractors with what is defined as 16 "substitute water" under the exchange contract? 17 MR. OTTEMOELLER: Yes. 18 MR. BIRMINGHAM: The water that is supplied as 19 substitute water under the exchange contract by the Bureau 20 of Reclamation, what is the source of that water? 21 MR. OTTEMOELLER: Generally, it's water that's been 22 exported from the Delta through the Tracy pumping plant. 23 MR. BIRMINGHAM: And that water is water that is 24 appropriated by the Bureau of Reclamation pursuant to 25 permits that it holds to operate the Central Valley CAPITOL REPORTERS (916) 923-5447 13416 1 Project? 2 MR. OTTEMOELLER: Yes. 3 MR. BIRMINGHAM: Now, if the State Water Resources 4 Control Board were to exclude the Redfern property from 5 the place of use for permits held by the Bureau of 6 Reclamation, how would the water from CCID be transferred 7 to the Redfern property? 8 MR. OTTEMOELLER: It would be my sense that there 9 would have to be a process of application to the State 10 Board either for a long-term transfer or for a temporary 11 transfer anytime water from CCID, or any other CVP, or 12 non-CVP district were to be transferred to that land. 13 MR. BIRMINGHAM: And the purpose of the petition to 14 the State Board to approve either a short-term or a 15 long-term transfer from CCID to the Redfern property would 16 involve a request that the Board approve a change in the 17 place of use? 18 MR. OTTEMOELLER: Yes. 19 MR. BIRMINGHAM: Okay. So if I understand your 20 testimony, excluding the Redfern property from the 21 existing place of use under the Bureau's permits would 22 impede transfers from Central California Irrigation 23 District to the Redfern property? 24 MR. OTTEMOELLER: It would make them more difficult, 25 yes. CAPITOL REPORTERS (916) 923-5447 13417 1 MR. BIRMINGHAM: Now, Mr. Turnquist, you testified I 2 believe in response to questions by a number of attorneys 3 that cross-examined you that you'd come to rely on 4 transfers from CCID? 5 MR. TURNQUIST: That's correct. 6 MR. BIRMINGHAM: Mr. Ottemoeller, you were asked a 7 question by Mr. Herrick about the potential conditions 8 that would be imposed on the approval of the change in the 9 place of use, which is the subject of the petition now 10 being considered by the Board. 11 Do you recall that question? 12 MR. HERRICK: Mr. Chairman, I believe there was -- 13 MR. OTTEMOELLER: Not specifically. 14 MR. HERRICK: -- an objection to that question and 15 there was no answer to that. 16 MR. BIRMINGHAM: Mr. Herrick is absolutely right, he 17 asked the question and I objected and you sustained the 18 objection. 19 C.O. BROWN: So you're asking the question? 20 MR. BIRMINGHAM: No, I'm not going to ask the 21 question. I'm going to ask Mr. Ottemoeller for his expert 22 opinion which is different than the question that was 23 asked by Mr. Herrick. 24 MR. HERRICK: The point is if the objection was 25 sustained so I could not follow that line of the question, CAPITOL REPORTERS (916) 923-5447 13418 1 there's nothing to redirect on. 2 C.O. STUBCHAER: I think that's a valid point. 3 MR. BIRMINGHAM: Well, in fact, he then asked 4 Mr. Turnquist a very similar question and Mr. Turnquist 5 answered the question. And now I want to -- over my 6 objection, the question was answered by Mr. Turnquist -- 7 or actually I believe it was an objection expressed by 8 Mr. Keene. 9 C.O. STUBCHAER: What's the difference between a 10 water user and a non-water users? 11 MR. BIRMINGHAM: I understand that. And maybe if 12 Mr. Herrick wants to object to the question after I ask 13 it, he certainly can, but I certainly ought to be 14 permitted to ask the question. 15 Now, Mr. Ottemoeller, you are familiar with the 16 assertions made by the South Delta Water Agency concerning 17 the impacts of the Central Valley Project on the South 18 Delta Water Agency? 19 MR. OTTEMOELLER: Generally. 20 MR. BIRMINGHAM: Now -- 21 MR. HERRICK: Excuse me. I'm not trying to delay 22 this to lunch or anything, the topic was not covered on 23 direct so there's nothing to ask on redirect. I don't 24 think questions that were answered by the other witness 25 can be transferred over to Mr. Ottemoeller to elicit some CAPITOL REPORTERS (916) 923-5447 13419 1 other response that the party wants. 2 C.O. STUBCHAER: Mr. Birmingham. 3 MR. BIRMINGHAM: These witnesses were presented as a 4 panel. Mr. Herrick asked Mr. Turnquist a question and 5 elicited a response. Now, I'm going to ask 6 Mr. Ottemoeller if there is, in his opinion, any basis for 7 the condition which Mr. Herrick has proposed. 8 C.O. STUBCHAER: Objection sustained. 9 MR. BIRMINGHAM: In response to a number of 10 questions by attorneys, Mr. Ottemoeller, you testified 11 that in your opinion approving the change in the place of 12 use is not going to injure other water users. 13 Do you recall testifying to that in response to 14 questions asked of you by Mr. Atlas, Mr. Nomellini and -- 15 let me check my notes -- 16 MR. OTTEMOELLER: Yes, I recall the response. I 17 don't recall who all asked. 18 MR. BIRMINGHAM: Okay. I'd like to follow up on 19 that a little bit. Why is it your view that changing the 20 place of use to include the expansion lands or the 21 encroachment lands would not injure other users of water? 22 MR. OTTEMOELLER: Specifically with respect to 23 Westlands is because the demand, or the need for 24 Westlands -- the total need for water in Westlands to meet 25 all of its irrigation needs far exceeds its full contract CAPITOL REPORTERS (916) 923-5447 13420 1 supply with the United States. 2 So that removing the lands that are subject to 3 this petition in Westlands from -- or not adding them to 4 the place of use, not permitting CVP water to be delivered 5 there does not change the amount of water that Westlands 6 would beneficially use in any year. And, therefore, it 7 doesn't have -- it doesn't have any impact on anybody 8 else. 9 MR. BIRMINGHAM: Now, Mr. Nomellini asked you a 10 number of questions about -- and Mr. Jackson asked you 11 these questions as well -- about the impacts of making 12 changes with respect to other water users, other CVP 13 contractors. And I'd like to follow up on that a little 14 bit. 15 Let's assume, hypothetically, that each one of 16 the CVP export contractors could use all of the water 17 which they are entitled to receive under their contracts 18 with the Bureau of Reclamation within the existing place 19 of use as depicted on the maps that are attached to the 20 Bureau's permits. 21 Do you understand that assumption? 22 MR. OTTEMOELLER: Yes. 23 MR. BIRMINGHAM: Now, making that assumption, if the 24 Board were to approve the change in the place of use to 25 include the encroachment lands or the expansion lands that CAPITOL REPORTERS (916) 923-5447 13421 1 are within the boundaries of those other CVP contractors, 2 would that have an effect on other users of the water? 3 MR. OTTEMOELLER: I guess I'm not real familiar with 4 all of the expansion lands. With respect to encroachment 5 lands, that's the case. There is no impact. With respect 6 to some of the expansion lands and areas outside of the 7 San Joaquin Valley, I -- I can't really be sure on that 8 one. I'd have to look at the numbers. 9 MR. BIRMINGHAM: So with respect to the contractors 10 and the encroachment lands within the San Joaquin Valley, 11 if the contractor can use all of the existing contract 12 supply within the existing place of use, including the 13 encroachment lands within the place of use, it would not 14 affect legal users of water? 15 MR. OTTEMOELLER: I don't believe so. 16 MR. BIRMINGHAM: Mr. Atlas asked you a series of 17 questions -- first let's go to Mr. Turner's 18 cross-examination of you. 19 Mr. Turner asked you a question about the 20 operation of the Trinity River division. Do you recall 21 those questions? 22 MR. OTTEMOELLER: Yes. 23 MR. BIRMINGHAM: And Mr. Turner asked you: Let's 24 assume hypothetically that the Bureau of Reclamation 25 simply decided that they wanted to release water out of CAPITOL REPORTERS (916) 923-5447 13422 1 Trinity River to go down -- out of Trinity Reservoir to 2 flow down the Trinity River, would that be a violation of 3 its permit? 4 Now, have you often suspected that that's the way 5 the Bureau of Reclamation makes decisions? 6 MR. OTTEMOELLER: Maybe I better not comment on it, 7 I've certainly not had it suggested to me by a federal 8 official that that was the way to operate the project. 9 MR. BIRMINGHAM: Okay. Well, he followed up on the 10 question -- on that question by asking you a question 11 about the release of appropriated water for the benefit of 12 fish in the Trinity River. 13 Do you recall that question? 14 MR. OTTEMOELLER: Yes. 15 MR. BIRMINGHAM: And you responded to that question 16 by saying that if the water were released for the benefit 17 of fish in the Trinity River, it's your view that that 18 would be a violation of the Bureau's Trinity River permit. 19 Do you recall saying that? 20 MR. OTTEMOELLER: That's correct, yes. 21 MR. BIRMINGHAM: Could you explain the reason for 22 that, the basis of your answer? 23 MR. OTTEMOELLER: Okay. The basis is -- what was in 24 my testimony -- in my original testimony, I didn't read 25 the specific language from the application, I think I've CAPITOL REPORTERS (916) 923-5447 13423 1 done that since on cross-examination, but basically it was 2 a supplement to the application that specified what the 3 purpose of the application was. 4 And that was that it was for fishery purposes in 5 the Sacramento River. And, therefore, release for the 6 purpose of fisheries in the Trinity is not consistent with 7 the permit. 8 MR. BIRMINGHAM: Now, your answer assumes that the 9 release is being made of appropriated water? 10 MR. OTTEMOELLER: Yes. 11 MR. BIRMINGHAM: Now, if the Bureau decides to not 12 impound the water for a specified period of days in 13 Trinity River -- in the Trinity Reservoir, then the water 14 hasn't been appropriated; is that correct? 15 MR. OTTEMOELLER: That's my understanding of the way 16 it works, yes. 17 MR. BIRMINGHAM: So if the Bureau allows water to 18 flow through there's been no appropriation? 19 MR. OTTEMOELLER: That's correct. 20 MR. BIRMINGHAM: Now, Mr. Turner asked you a 21 question about the ability of the Bureau of Reclamation to 22 comply with the provisions of the Central Valley Project 23 Improvement Act without a change in the permitted purposes 24 of use. 25 Do you recall him asking you that question? CAPITOL REPORTERS (916) 923-5447 13424 1 MR. OTTEMOELLER: Yes. 2 MR. BIRMINGHAM: Now, he then specifically asked you 3 about Section 3406(b)(23) of the Central Valley Project 4 Improvement Act which deals with the release of water into 5 the Trinity River by the Bureau of Reclamation. 6 Do you recall that question? 7 MR. OTTEMOELLER: Yes. 8 MR. BIRMINGHAM: And I believe it was your testimony 9 that it's your understanding of that provision of the act 10 that pending the completion and approval of a flow study, 11 the Bureau is obligated under Section 3406(b)(23) of CVPIA 12 to release a minimum of 340,000 acre-feet of water into 13 the Trinity River? 14 MR. OTTEMOELLER: That's my general understanding of 15 the act, yes. 16 MR. BIRMINGHAM: Now, the act doesn't specify that 17 the water to be released is appropriated water, does it? 18 MR. OTTEMOELLER: Without looking at the language, I 19 don't know. 20 MR. BIRMINGHAM: Well, let me hand to you a copy of 21 Section 3406(b)(23) -- 22 MR. TURNER: At this point, Mr. Chairman, I think 23 I'd have to object to him asking for the legal advice of 24 his client rather than addressing this matter in a 25 post-hearing brief. CAPITOL REPORTERS (916) 923-5447 13425 1 I think we're talking about asking his client to 2 interpret the statute in lieu of him being able to testify 3 on his own behalf to that interpretation. So I question 4 the relevance of that kind of questioning. 5 C.O. STUBCHAER: Mr. Birmingham. 6 MR. BIRMINGHAM: You may recall that when Mr. Turner 7 asked the question there was an objection. And then 8 Mr. Turner got an answer and Mr. Turner wanted to strike 9 the answer, because it was a legal conclusion. I'm 10 following up. I certainly can withdraw the question and 11 move on. 12 It's now 12:00 o'clock, I wonder if we can break 13 for lunch? 14 C.O. STUBCHAER: Well, how much longer are you going 15 to have? 16 MR. BIRMINGHAM: Mr. Stubchaer, I want you to recall 17 yesterday I said eight minutes and it was five. I think I 18 probably will have another 45 minutes to one hour. 19 MR. NOMELLINI: Don't forget to ask him about 20 Central Delta 30 and 31. 21 C.O. STUBCHAER: Okay. We'll take our lunch break 22 now. Off the record. 23 (Off the record from 12:01 p.m. to 12:02 p.m.) 24 C.O. STUBCHAER: Back on the record. We'll take the 25 lunch break and reconvene at 1:00 p.m. CAPITOL REPORTERS (916) 923-5447 13426 1 MR. BIRMINGHAM: Thank you. 2 MR. TURNER: If I could ask, Mr. Stubchaer, I have a 3 witness coming from another town to appear for rebuttal 4 testimony today. And I'm just wondering if it appears 5 that we are going to be able to reach rebuttal or if I can 6 go ahead and send my witness home. 7 Can we get an indication if we're going to have 8 further recross of the witness? 9 C.O. STUBCHAER: Let's have a showing of hands of 10 people who have recross: Sexton, Atlas, Nomellini, 11 Herrick, staff, Board. 12 Let's see, extensive? 13 MR. HERRICK: Very small. 14 MR. NOMELLINI: Depends on what he does in the next 15 15 minutes. 16 C.O. STUBCHAER: Yeah, it's a hard question to 17 answer. 18 MR. ATLAS: I would say very short. 19 C.O. STUBCHAER: Mr. Sexton? 20 MR. SEXTON: Very short. 21 MR. TURNER: All right. I thank you very much. 22 Then I'll just go ahead and have my witness remain, 23 presuming that we'll be able to move into that next. 24 Thank you. 25 C.O. STUBCHAER: All right. CAPITOL REPORTERS (916) 923-5447 13427 1 (Luncheon recess.) 2 ---oOo--- 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 13428 1 THURSDAY, APRIL 8, 1999, 1:00 P.M. 2 SACRAMENTO, CALIFORNIA 3 ---oOo--- 4 C.O. STUBCHAER: Good afternoon, we'll call the 5 hearing back to order. 6 MR. TURNER: Mr. Stubchaer. 7 C.O. STUBCHAER: Mr. Turner. 8 MR. TURNER: If I could interrupt for one more 9 moment. In the accordance with the agreement we reached 10 yesterday, we did in fact produce a copy of all the maps 11 that we had discussed that were in the Bureau files that 12 related to the preparation of the GIS maps that were 13 included within the DEIR. And those maps are available 14 today for the parties to take a look at and we're making a 15 copy available to Mr. Herrick to reproduce for everyone's 16 files. 17 In connection with the production of those maps, 18 however, we were asked whether it would be possible to 19 have someone explain exactly how those maps were utilized, 20 what the procedure was to convert those to the GIS maps. 21 I do have a Bureau employee that I would be able 22 to call to present that kind of information. What I was 23 wondering was the procedure by which you might suggest we 24 present that. I could do that in the connection with the 25 rebuttal evidence that we would be presenting in this CAPITOL REPORTERS (916) 923-5447 13429 1 phase, although, it's not technically rebuttal, it would 2 just be for clarification of the record. 3 But if that would be acceptable to you, I think 4 that might be the most expeditious way of getting that 5 information into the record with the knowledge of all the 6 parties. 7 C.O. STUBCHAER: I agree. 8 MR. KEENE: Mr. Stubchaer? 9 C.O. STUBCHAER: Yes. 10 MR. KEENE: I'm the one that originated this 11 request. My concern is that what I'm hopeful is that I 12 might be able to -- if I get the copies of the maps in 13 time -- have my own witness in rebuttal that can review 14 those maps. What I was hoping is that if the Bureau has 15 available somebody at this time, since we're going to be 16 off I believe next week -- 17 C.O. STUBCHAER: Right. 18 MR. KEENE: -- if it might be opportune in terms of 19 the timing to present that witness this afternoon in order 20 to have that foundational information to take to my person 21 to review the maps. 22 C.O. STUBCHAER: If we get to the rebuttal the 23 Department of the Interior is first. 24 MR. KEENE: Right. Thank you. 25 C.O. STUBCHAER: And I don't know if that is the CAPITOL REPORTERS (916) 923-5447 13430 1 witness who is here. 2 MR. TURNER: Yes. 3 C.O. STUBCHAER: Is that the witness who is here? 4 MR. TURNER: No. I have another witness here for my 5 rebuttal, but I have another witness, Gale Heffler-Scott 6 who is familiar in the way in which these maps were 7 utilized and converted. So she would be able to present 8 that as testimony on the record, that might be helpful. I 9 thank Mr. Keene for his further analysis. 10 C.O. STUBCHAER: Mr. Herrick. 11 MR. HERRICK: That sounds wonderful to me, too, not 12 that that matters, but I will make the larger reproduction 13 and get them out first thing next week. I'll do that very 14 quickly. 15 MR. KEENE: Thank you. 16 C.O. STUBCHAER: All right. 17 MR. TURNER: Thank you very much, Mr. Stubchaer. 18 C.O. STUBCHAER: Thank you. 19 Mr. Birmingham, oh, there you are, 20 Mr. Birmingham. 21 ---oOo--- 22 REDIRECT EXAMINATION OF WESTLANDS WATER DISTRICT (Cont'd.) 23 BY MR. BIRMINGHAM 24 MR. BIRMINGHAM: Mr. Ottemoeller, before the lunch 25 recess we were talking about the Bureau of Reclamation's CAPITOL REPORTERS (916) 923-5447 13431 1 ability to comply with the requirements of Section 2 3406(b)(23) further, the release of water. Let me ask you 3 a question from an engineering perspective. 4 If an agency were obligated to release 340,000 5 acre-feet of water from a reservoir into a river below the 6 reservoir, it could accomplish that release by the bypass 7 of water; is that correct? 8 MR. OTTEMOELLER: In terms of total quantity of 9 water, that's theoretically possible if there's that much 10 inflow available to bypass, yes. 11 MR. BIRMINGHAM: Mr. Atlas, may I borrow your 12 Tehama-Colusa Canal Authority Exhibit 21? 13 MR. ATLAS: Yes. 14 MR. BIRMINGHAM: Mr. Ottemoeller, I have placed on 15 the overhead projector a copy of Tehama-Colusa Canal 16 Authority Exhibit 21. This exhibit was the subject of a 17 number of questions that were posed to you by Mr. Atlas 18 during his cross-examination of you. 19 Do you recall those questions? 20 MR. OTTEMOELLER: Yes. 21 MR. BIRMINGHAM: Now, as a result of your work at 22 Westlands Water District did you become familiar with the 23 methods used by the Department of the Interior to 24 determine how much water was available for allocation to 25 individual contractors in any given year? CAPITOL REPORTERS (916) 923-5447 13432 1 MR. OTTEMOELLER: Yes. 2 MR. BIRMINGHAM: And would you explain the analysis 3 that was typically conducted by the Department of the 4 Interior to determine the allocation of water to 5 contractors in a given year? 6 MR. OTTEMOELLER: Well, at the risk of leaving out 7 some detail, I'll try to keep it relatively short. Each 8 year the Bureau looks at the amount of water it has in 9 storage, at the given time of the year projects potential 10 inflow based on precipitation patterns of either a 11 50-percent or a 90-percent exceedance. 12 And then since CVPIA was passed, uses the 13 90-percent exceedance as the basis for which they make 14 assumptions about how much water is going to be available 15 at various parts of the system. They then have their 16 hierarchy of allocations, the model operations assume that 17 they meet all of their permit and instream flow 18 requirements. 19 They then make water available to their water 20 rights settlement and exchange contractors. They then 21 make water available to M&I and refuges. And, then, 22 finally they look to see how much water is left for water 23 service contractors. 24 Generally, all water service contractors -- or 25 previously all water service contractors would get the CAPITOL REPORTERS (916) 923-5447 13433 1 same quantity of water. More recently with the 2 restrictions in the Delta there has been a difference 3 sometimes between the amount of water available north of 4 the Delta and the amount south of the Delta. And then 5 on -- well, I'll leave Friant as a separate system. 6 MR. BIRMINGHAM: Now, turning your attention to 7 Tehama-Colusa Canal Exhibit 21, it depicts the permitted 8 place of use for the permits held by the Bureau of 9 Reclamation for appropriation of water at Shasta Dam. 10 Is that your understanding? 11 MR. OTTEMOELLER: Yes. 12 MR. BIRMINGHAM: And the permitted place of use as 13 depicted by the light shading and with respect to the area 14 in the San Joaquin Valley it is surrounded by a blue line, 15 or -- that I will represent to you was drawn by Mr. Atlas. 16 Is that your understanding? 17 MR. OTTEMOELLER: Yes. 18 MR. BIRMINGHAM: Now, in the Sacramento Valley, and 19 it's depicted on Tehama-Colusa Canal Authority Exhibit 21, 20 are there contractors who receive water from the Bureau of 21 Reclamation that is delivered to them from water 22 appropriated at Shasta Reservoir? 23 MR. OTTEMOELLER: Yes. 24 MR. BIRMINGHAM: There are water service 25 contractors -- are there water right settlement CAPITOL REPORTERS (916) 923-5447 13434 1 contractors along the Sacramento River that receive water 2 from Shasta Reservoir? 3 MR. OTTEMOELLER: Yes. 4 MR. BIRMINGHAM: Now, in your discussion of the 5 method used by the Bureau of Reclamation to calculate the 6 amount of water available for allocation to contractors, 7 you made reference to modeling; is that correct? 8 MR. OTTEMOELLER: Yes. 9 MR. BIRMINGHAM: And when the Bureau of Reclamation 10 is conducting the modeling to determine how much water 11 will be available for allocation to contractors, is there 12 any assumption about return flows that goes into the 13 model? 14 MR. OTTEMOELLER: Well, the portion of the model 15 that deals with the Sacramento River watershed and the 16 potential for return flows is part of what the Bureau 17 calls the hydrology of that section. They don't 18 specifically identify return flows, but the hydrology for 19 a critically dry year, or dry year, or above normal year 20 has built into it certain historical practices -- well, I 21 shouldn't say "practices." 22 It reflects what has happened in the past under 23 those year types with respect to the amount of flow, 24 for example, that reaches the Sacramento I Street bridge, 25 compared to the amount of water that's been delivered up CAPITOL REPORTERS (916) 923-5447 13435 1 north. So it's built in, but it's not specifically 2 identified as part of that model as an input. 3 MR. BIRMINGHAM: So from your answer I take it that 4 included in the analysis performed by the Bureau of 5 Reclamation is an assumption that there will be return 6 flow to the Sacramento River from contractors along the 7 Sacramento or within other areas of the Sacramento Valley? 8 MR. OTTEMOELLER: Yes. 9 MR. BIRMINGHAM: Now, from your understanding of the 10 system is it possible for some of those return flows to 11 make their way to the Sacramento-San Joaquin River Delta? 12 MR. OTTEMOELLER: Certainly. 13 MR. BIRMINGHAM: Now, the place of use that is 14 depicted on Tehama-Colusa Canal Authority Exhibit 21 you 15 said you understand is to represent the place of use for 16 the Shasta permits. 17 Does the Bureau of Reclamation hold other permits 18 for the appropriation of water from the Delta-Mendota -- 19 excuse me, from the Sacramento-San Joaquin River Delta? 20 MR. OTTEMOELLER: Yes, they do. 21 MR. BIRMINGHAM: Do you have a copy of the Draft 22 Environmental Impact Report, State Water Resources Control 23 Board Staff Exhibit 2 in front of you? 24 MR. OTTEMOELLER: I guess, that's Exhibit 2, yes. 25 MR. BIRMINGHAM: And in Appendix A to the Draft CAPITOL REPORTERS (916) 923-5447 13436 1 Environmental Impact Report there is a chart that shows a 2 number of applications, permits and sources of water for 3 diversion that are held by the Bureau of Reclamation. 4 Is that your understanding? 5 MR. OTTEMOELLER: Do you have a page number? 6 MR. BIRMINGHAM: It begins at A-1. 7 MR. OTTEMOELLER: A-1, okay. 8 MR. BIRMINGHAM: And the chart which is actually 9 Table 1 to the appendix that begins on A-4. 10 MR. OTTEMOELLER: Okay. 11 MR. BIRMINGHAM: Now, do any of the permits that are 12 listed in Table 1 of Appendix A to State Water Resources 13 Control Board Staff Exhibit 2 permit the appropriation of 14 water from the Sacramento-San Joaquin River Delta? 15 MR. OTTEMOELLER: Yes. 16 MR. BIRMINGHAM: And do some of the permits that 17 allow the appropriation of water from the Sacramento-San 18 Joaquin River Delta by the Bureau of Reclamation include 19 as part of the permitted place of use all of Westlands 20 Water District except what's been identified as the 21 excursion lands or the expansion lands -- excuse me, 22 encroachment or expansion lands? 23 MR. OTTEMOELLER: Yes. 24 MR. BIRMINGHAM: I'm thinking about water quality 25 standards. Sorry. CAPITOL REPORTERS (916) 923-5447 13437 1 MR. OTTEMOELLER: Yes. 2 MR. BIRMINGHAM: Now, let me ask you, again, going 3 back to Tehama-Colusa Canal Authority Exhibit 21 and the 4 return flows, if there is water that is -- that has been 5 appropriated at Shasta delivered to a contractor within 6 the permitted place of use and a portion of that water 7 flows back into the Sacramento River and to the Delta, 8 that water could be exported from the Delta pursuant to 9 permits held by the Bureau of Reclamation for the 10 appropriation of water from the Delta; is that correct? 11 MR. OTTEMOELLER: That's my understanding of the way 12 that system works, yes. 13 MR. BIRMINGHAM: And that water could then be used 14 anywhere within the permitted place of use for the permits 15 held by the Bureau of Reclamation for the appropriation of 16 water from the Delta? 17 MR. OTTEMOELLER: Yes. 18 MR. BIRMINGHAM: And one of those permits is a 19 permit for the Delta-Mendota Canal service area; is that 20 correct? 21 MR. OTTEMOELLER: Yes. 22 MR. BIRMINGHAM: And that is shown -- the service 23 area for that permit is depicted as Figure 2-5 in the 24 Draft Environmental Impact Report, State Water Resources 25 Control Board Staff Exhibit 2? CAPITOL REPORTERS (916) 923-5447 13438 1 MR. OTTEMOELLER: That's correct. 2 MR. BIRMINGHAM: So, theoretically, water originally 3 appropriated by the Bureau of Reclamation under permits 4 that it holds for the appropriation of water at Shasta 5 Reservoir could be used within any area of Westlands in a 6 manner consistent with the existing permit terms and 7 conditions held by the Bureau of Reclamation for the 8 appropriation of water from the Sacramento-San Joaquin 9 River Delta? 10 MR. OTTEMOELLER: It's possible, yes. 11 MR. BIRMINGHAM: Now, in response to a question 12 asked of you by Mr. Atlas about expanding the place of use 13 for the Bureau's permits for the Shasta facilities and the 14 American River facilities, you testified that it's your 15 view that including areas within Westlands, all of the 16 areas within Westlands within places of use for those 17 permits would not injure other users of that water. 18 Do you recall that testimony? 19 MR. OTTEMOELLER: Yes. That's right. 20 MR. BIRMINGHAM: Could you, please, explain the 21 basis of your opinion? 22 MR. OTTEMOELLER: Well, because of the other permits 23 that the Bureau has besides the Shasta and Folsom permits, 24 example being the permit for diversion at the Old River, 25 the Bureau can meet all of its contractual obligations CAPITOL REPORTERS (916) 923-5447 13439 1 with its existing places of use in combination with the 2 permits it has without reducing the amount of water 3 available to anybody else, particularly those areas north 4 of the Delta. 5 MR. BIRMINGHAM: So expanding the place of use for 6 the Shasta permits to include all of Westlands Water 7 District would not result in reduced deliveries of water 8 to the districts within the Tehama-Colusa Canal service 9 area? 10 MR. OTTEMOELLER: No, not in my opinion. 11 MR. ATLAS: I'm going to object. That's a leading 12 question and it misstates what Mr. Ottemoeller's answer to 13 the previous question was. The line of questions up to 14 this point was: Can the Bureau meet its obligation to 15 Westlands using the permits it currently has and the 16 existing places of use? 17 C.O. STUBCHAER: Mr. Birmingham. 18 MR. BIRMINGHAM: It's a leading question, there's no 19 doubt that it's a leading question. But the Board has 20 stated repeatedly early on in this hearing in response to 21 my objections that people are entitled to ask leading 22 questions. 23 And it is a question which is intended to elicit 24 a response. So whether it's based upon earlier testimony 25 or not is not a reason to object to the question. CAPITOL REPORTERS (916) 923-5447 13440 1 C.O. STUBCHAER: Time-out. Off the record. 2 (Off the record from 1:22 p.m. to 1:23 p.m.) 3 C.O. STUBCHAER: We have permitted leading questions 4 on cross-examination, but we can't recall permitting 5 leading questions on redirect examination. 6 Mr. Birmingham. 7 MR. BIRMINGHAM: I can recall very distinctly 8 objecting to leading questions on redirect examination and 9 Ms. Leidigh stating to the Hearing Officer at the time, 10 Mr. Caffrey, Technical Rules of Evidence don't apply in 11 these proceedings. This is not a courtroom. And if we're 12 going to change that rule this late in the game, we have a 13 very serious problem. 14 I would be very happy to ask my associate to go 15 back and get the transcript where I objected to a leading 16 question and was told that that's not a basis of objection 17 in these hearings. 18 If we were in a courtroom, Mr. Atlas' objection 19 would be absolutely correct. And I made objections early 20 on in this hearing, because he is correct. And, again, 21 was told -- 22 C.O. STUBCHAER: Do you recall the setting of that 23 objection? 24 MR. BIRMINGHAM: Yes, it was on direct examination. 25 Not redirect, direct examination. Any cross-examiner can CAPITOL REPORTERS (916) 923-5447 13441 1 ask a leading question. 2 C.O. STUBCHAER: Right. 3 MR. BIRMINGHAM: Whether it's here or in a 4 courtroom, leading questions on cross-examination are 5 permitted and are appropriate. Typically in a courtroom 6 on redirect examination, leading questions are not 7 permitted. 8 But, again, in this hearing we were told early on 9 that leading questions on direct or redirect are perfectly 10 okay. But I'm going to ask my associate to get that 11 transcript. I will re-ask the question in a nonleading 12 manner. 13 C.O. STUBCHAER: Thank you. That's appreciated. 14 You want to say something, Ms. Leidigh? 15 MS. LEIDIGH: Yeah. I just wanted to ask a 16 question. While you're going back and looking at that, 17 not only should you look at whether or not whether it was 18 direct or cross-examination, but also what the basis of 19 the objection was that was stated. 20 MR. BIRMINGHAM: I'd be happy to do that for 21 Ms. Leidigh. 22 C.O. STUBCHAER: All right. 23 MS. LEIDIGH: Thank you. 24 MR. BIRMINGHAM: Mr. Ottemoeller, do you have an 25 opinion as to whether or not expanding the place of use of CAPITOL REPORTERS (916) 923-5447 13442 1 the Shasta permits to include all of Westlands Water 2 District would result in reduced water supplies to the 3 contractors within the Tehama-Colusa Canal service area? 4 MR. OTTEMOELLER: Yes. 5 MR. BIRMINGHAM: What is your opinion? 6 MR. OTTEMOELLER: My opinion is that it would not 7 have any impact on the ability -- or on the amount of 8 water that the Bureau would be able to allocate to 9 Tehama-Colusa members. 10 MR. BIRMINGHAM: And what is the basis of your 11 opinion? 12 MR. OTTEMOELLER: That the Bureau has ample 13 authority within its existing permits to meet to the 14 extent it currently does its contract obligations south of 15 the Delta. Specifically, that is the permits for the 16 Trinity, the permits for diversion at Old River in 17 addition to the portions of the place of use that are 18 included in Folsom and Shasta. 19 That authority is ample such that it doesn't -- 20 adding the place of use to those two permits to include 21 all of Westlands would not materially in any way change 22 the amount of water that the Bureau has available to 23 allocate to its water service contractors in the 24 Tehama-Colusa area. 25 MR. BIRMINGHAM: Now, I'm going to ask you a CAPITOL REPORTERS (916) 923-5447 13443 1 question -- or a series of questions about the existing 2 place of use for the Folsom permits that are held by the 3 Bureau of Reclamation, which are depicted on Figure 2-3 of 4 State Water Resources Control Board Staff Exhibit 2. 5 Do you have a copy of that in front of you? 6 MR. OTTEMOELLER: Yes. 7 MR. BIRMINGHAM: Do you have an opinion, 8 Mr. Ottemoeller, as to whether or not including all of 9 Westlands Water District within the permitted place of use 10 for the American River project facilities would result in 11 reduced water availability to supply contractors in the 12 Tehama-Colusa Canal service area? 13 MR. OTTEMOELLER: Yes. 14 MR. BIRMINGHAM: What is your opinion? 15 MR. OTTEMOELLER: That it would not have an impact. 16 MR. BIRMINGHAM: And would you, please, explain the 17 basis of your opinion. 18 MR. OTTEMOELLER: Well, it's very similar in that 19 the Bureau has the capability under other permits to 20 legally divert the water stored in San Luis and make it 21 available to Westlands -- excuse me a minute. In 22 addition, the water that comes out of Folsom can't be 23 delivered to Tehama-Colusa. So they're dependent on 24 permits upstream of Folsom anyway. 25 MR. BIRMINGHAM: Now, Mr. Ottemoeller, are you CAPITOL REPORTERS (916) 923-5447 13444 1 familiar with the term "integrated operation"? 2 MR. OTTEMOELLER: Yes. 3 MR. BIRMINGHAM: Would you, please, explain the 4 meaning of the term "integrated operation"? 5 MR. OTTEMOELLER: Well, as I understand it in fairly 6 simplified terms it means that the Bureau doesn't 7 necessarily follow the molecules for every release and 8 diversion of water. It looks at its operations as a whole 9 and makes decisions for its operations of all of its 10 reservoirs and contract obligations as a unit. 11 MR. BIRMINGHAM: Approximately how many reservoirs 12 does the Bureau of Reclamation operate as an integrated 13 unit for the Central Valley Project? 14 MR. OTTEMOELLER: Well, there's more than I can 15 think of off the top of my head. There's probably five 16 significant ones related to the operations of everything 17 except the Friant system. 18 There are a number of smaller ones regulating 19 reservoirs in -- I'm losing the term, small reservoirs 20 below the big reservoirs. But the large storage 21 reservoirs that would be Shasta, Trinity, Folsom, San 22 Luis, Whiskeytown. 23 MR. BIRMINGHAM: Now, from your list you have 24 excluded New Melones Reservoir? 25 MR. OTTEMOELLER: That's right. CAPITOL REPORTERS (916) 923-5447 13445 1 MR. BIRMINGHAM: Why did you exclude New Melones 2 Reservoir from your list of reservoirs operated by the 3 Bureau of Reclamation in an integrated manner? 4 MR. OTTEMOELLER: Well, they don't operate that 5 reservoir with their contract obligations for the rest of 6 the CVP in mind, because that's only permitted for uses in 7 that stream area for water quality purposes. 8 So to my knowledge in all of the Bureau's 9 allocation decisions I've never seen them refer to what 10 was going on in New Melones and how that was being 11 operated as to whether or not that had a bearing on 12 allocations to Sacramento Valley or San Joaquin Valley 13 water service contractors. 14 I should qualify that, except to the extent that 15 there were impact -- or conditions in the Delta that might 16 be affected by New Melones or any other reservoir that 17 happened to be contributing to water supplies including 18 non-CVP reservoirs. 19 MR. BIRMINGHAM: Now, for a project that is the size 20 of the Central Valley Project, are there advantages to 21 operating the project in an integrated manner? 22 MR. OTTEMOELLER: Certainly. You can be more 23 efficient with the water that you have available if you're 24 doing things in an integrated way. 25 MR. BIRMINGHAM: So if the Board were to deny the CAPITOL REPORTERS (916) 923-5447 13446 1 application of the Bureau of Reclamation to expand and 2 conform the place of use under the various permits that it 3 holds, would that make the operation of the CVP more 4 difficult? 5 MR. OTTEMOELLER: It would certainly make 6 documentation of the operation more difficult. I'm still 7 not sure -- well, I don't know given the numbers whether 8 they would have to actually do things differently on an 9 operational basis, but they may have to consider doing 10 things differently in order to make the individual 11 documentation match. 12 MR. BIRMINGHAM: Mr. Nomellini asked you a series of 13 questions, Mr. Ottemoeller, about the eligibility of lands 14 within the district to receive Central Valley Project 15 water. 16 Do you recall those questions? 17 MR. OTTEMOELLER: Generally, yes. 18 MR. BIRMINGHAM: And in response to his question 19 about the eligibility of the encroachment lands to receive 20 project water, you testified that the Bureau of 21 Reclamation conducted an eligibility analysis in the mid 22 1980s; is that correct? 23 MR. OTTEMOELLER: Well, not exactly eligibility. 24 They called it "Lands Classification Study," where they 25 reviewed their classification system for all of the lands CAPITOL REPORTERS (916) 923-5447 13447 1 in the district based -- at the request of the district to 2 either verify or clarify what the land classification was 3 for all of the district lands. 4 MR. BIRMINGHAM: And as a result of that land 5 classification study, were there any lands that had been 6 receiving project water that were identified as being 7 ineligible? 8 MR. OTTEMOELLER: I don't recall any specifically. 9 MR. BIRMINGHAM: Now, Mr. Turnquist, you've 10 testified that you have been farming the Westlands Water 11 District since 1965. And that was prior to the receipt -- 12 well, I don't want to ask it in a leading way. 13 When did Westlands start receiving water from the 14 Central Valley Project? 15 MR. TURNQUIST: It was available in 1967 on a -- 16 over the bank or temporary facility. 17 MR. BIRMINGHAM: Is 1967 after 1965? 18 MR. TURNQUIST: Where I went to school. 19 C.O. STUBCHAER: B.C. or A.D.? 20 MR. BIRMINGHAM: Is 1967 A.D. after 1965 A.D.? 21 MR. TURNQUIST: Yes. 22 MR. BIRMINGHAM: Now, when a landowner in Westlands 23 Water District wanted to receive water from the Central 24 Valley Project, what would that landowner do? 25 MR. TURNQUIST: I remember a specific parcel of land CAPITOL REPORTERS (916) 923-5447 13448 1 at the ranch that I worked for rented and the owners of 2 that land would have been, under what our terms are today, 3 excess landholders, which would have constituted to make 4 that land eligible -- we lost a well was the issue in the 5 middle of the summer and we were trying to get water to 6 finish up a crop. 7 And the landowner had to agree to sign a 8 recordable contract. And that was processed through the 9 Westlands' district office. And it was with the blessing 10 of the recordable contract that we were able to supply 11 canal water to that parcel of land. 12 MR. BIRMINGHAM: Now, other than assigning the 13 recordable contract, did the landowner have to do anything 14 to establish that the land was eligible to receive project 15 water? 16 MR. TURNQUIST: I don't remember the circumstances 17 around that parcel. But the -- my knowledge of time in 18 the district was that what we thought we as water users, 19 growers thought of as district rules, but I think in most 20 cases they originated with the Bureau, that we could not 21 apply water to land that had not otherwise been irrigated. 22 MR. BIRMINGHAM: I'm sorry, you could not apply 23 project water to land that otherwise had not been 24 irrigated? 25 MR. TURNQUIST: Yes. CAPITOL REPORTERS (916) 923-5447 13449 1 MR. BIRMINGHAM: Now, in order to have the land 2 otherwise irrigated, what would be the source of water for 3 the irrigation? 4 MR. TURNQUIST: Typically, it was wells. 5 MR. BIRMINGHAM: Now, a few moments ago you 6 mentioned "recordable contracts" and that takes me to 7 another issue that I wanted to explore with you in 8 response to some questions that were asked of you by 9 Mr. Nomellini. 10 And, in particular, he asked you a series of 11 questions related to statements made by the Bureau of 12 Reclamation or the United States as to the eligibility of 13 the lands to receive water. 14 Do you recall those questions? 15 MR. TURNQUIST: As a group, not specifically. 16 MR. BIRMINGHAM: Now, he asked you a question about 17 whether or not you had ever seen any writing from the 18 United States that said that the Redfern property was 19 eligible to receive water. 20 Do you recall that question? 21 MR. TURNQUIST: I recall that question. 22 MR. BIRMINGHAM: Now, going back to the process 23 that's followed with respect to recordable contracts, what 24 was the purpose of a recordable contract? 25 MR. TURNQUIST: Under the terms of Reclamation Law CAPITOL REPORTERS (916) 923-5447 13450 1 and clear back to the -- well, whatever process out of 2 1902, any lands beyond the authorized acreage ownership 3 prior to 1902 was 160 acres per person. 4 And after that, the landowner had opted in the 5 title two, they could have 160 acres per family. Any 6 lands beyond that acreage limitation could receive Bureau 7 water for a period of ten years by executing what is 8 commonly referred to as "a recordable contract." 9 And that's an agreement between the -- and it's 10 recorded, between the landowner and the U.S. Bureau of 11 Reclamation that states that as a condition of receiving 12 water for a period of ten years, which subsequently got 13 reduced to five, that the land would have to be sold 14 anytime within the ten-year period; if it was not sold 15 within the ten-year period, the Secretary of Interior 16 would sell it. And whatever the price that the landowner 17 would receive could not reflect the value of the surface 18 water made available by the CVP. 19 MR. BIRMINGHAM: Now, if the landowner were going to 20 sell the land that was subject to the recordable contract 21 as opposed to the government selling the land, was there a 22 process that the landowner had to go through in order to 23 obtain the consent of the United States to sell the land? 24 MR. TURNQUIST: Yes, there was. 25 MR. BIRMINGHAM: What was that process? CAPITOL REPORTERS (916) 923-5447 13451 1 MR. TURNQUIST: Application had to be made to the 2 Bureau of Reclamation. The process was that the land was 3 appraised and it was appraised as to its value absent the 4 presence of surface water or CVP supply water. And that 5 was the maximum sum of money that the landowner could 6 receive in consideration of the land sale. 7 MR. BIRMINGHAM: And as a result of that process was 8 there any document that indicated that the Secretary was 9 approving the price for the land? 10 MR. TURNQUIST: Oh, yes. 11 MR. BIRMINGHAM: And did that document contain any 12 statement as to the right of the project -- excuse me. 13 Let me restate the question. 14 Did the document that indicated that the 15 government approved the price of the land, did that 16 document make any statements concerning the eligibility of 17 the land to receive water from the Central Valley Project? 18 MR. TURNQUIST: I'm not aware of the specific 19 language, but in practice there was no question that the 20 land was eligible to receive water. The base premise of 21 going through the recordable contract process was as a 22 condition of being able to receive the water. 23 MR. BIRMINGHAM: I have just a few more questions, 24 Mr. Ottemoeller. In response to some earlier questions 25 that were asked of you by me that were related to CAPITOL REPORTERS (916) 923-5447 13452 1 questions asked of you by cross-examiners in a leading 2 form, you, I think, testified that expanding the place of 3 use to include lands within contractor service areas, in 4 particular Westlands, would not affect other water users, 5 other contractors. 6 If the place of use were expanded to include 7 encroachment lands or expansion lands, would that require 8 the export of additional water from the Sacramento-San 9 Joaquin Rivers' Delta? 10 MR. OTTEMOELLER: As I recall I distinguished my 11 answer between those lands within the San Joaquin Valley 12 and those lands outside, because I don't know the answer 13 with respect to the lands in the Santa Clara Valley Water 14 District. 15 With respect to those lands within the 16 Delta-Mendota and San Luis service areas, it's my opinion 17 that adding those encroachment and expansion lands to the 18 place of use would not affect either the demand for water 19 or the amount of water the Bureau would export from the 20 Delta. 21 MR. BIRMINGHAM: Mr. Turner asked you some questions 22 about the injunction that was obtained by Westlands Water 23 District in 1994 concerning the implementation of Section 24 3406(b)(2) of the Central Valley Project Improvement Act. 25 Do you recall that question -- CAPITOL REPORTERS (916) 923-5447 13453 1 MR. OTTEMOELLER: Yes. 2 MR. BIRMINGHAM: -- series of questions? 3 MR. OTTEMOELLER: Yes. 4 MR. BIRMINGHAM: Mr. Turner asked you if the 5 injunction that had been entered by the district court had 6 been vacated. Do you recall that? 7 MR. OTTEMOELLER: I don't know that he used 8 "vacated." As I recall it was overturned on appeal. 9 MR. BIRMINGHAM: Now, I'd like to go back to your 10 testimony, your direct testimony that was the basis of 11 Mr. Turner's questions. On Page 7 of Westlands Water 12 District Exhibit 14 there is a reference to the injunction 13 that was the subject of Mr. Turner's questions. 14 Is that correct? 15 MR. OTTEMOELLER: Yes. 16 MR. BIRMINGHAM: Now, what was the purpose for 17 including the discussion of the injunction in your 18 testimony, Westlands Water District Exhibit 14? 19 MR. OTTEMOELLER: Well, it's to demonstrate that, in 20 part, at least because of the time that the Bureau was 21 unable to implement certain portions -- or certain actions 22 that they proposed to do as part of their B-2 actions, or 23 the use of the 800,000, that the result of that was that 24 there was an increase in the district's water supply later 25 in the year. CAPITOL REPORTERS (916) 923-5447 13454 1 MR. BIRMINGHAM: Prior to the Court entering the 2 injunction, what was the allocation of water to the 3 district? 4 MR. OTTEMOELLER: If I have my timing correct, it 5 was 35 percent. 6 MR. BIRMINGHAM: Would you, please, take a moment 7 and read the first paragraph to yourself, first full 8 paragraph on Page 7 of Westlands Water District Exhibit 9 14. And when you've finished reading that paragraph, 10 please, let me know. 11 MR. OTTEMOELLER: It's 35 percent. 12 MR. BIRMINGHAM: Well, let me ask the question -- 13 MR. OTTEMOELLER: Sure. 14 MR. BIRMINGHAM: Let me ask the question. Having 15 read the paragraph on Page 7 on Westlands Water District 16 Exhibit 14, is your recollection as to the allocation of 17 CVP water before the injunction was entered refreshed? 18 MR. OTTEMOELLER: Yes. 19 MR. BIRMINGHAM: Prior to the entry of the 20 injunction in 1994, what was the allocation of project 21 water to Westlands Water District? 22 MR. OTTEMOELLER: I'm sorry, prior to the 23 injunction? 24 MR. BIRMINGHAM: Prior to the entry of the 25 injunction in March of 1994 to which you've testified, CAPITOL REPORTERS (916) 923-5447 13455 1 what was the allocation of water to Westlands Water 2 District? 3 MR. OTTEMOELLER: I believe it was the 35 percent. 4 MR. BIRMINGHAM: Okay. Now, after the injunction 5 was entered, do you know if the Bureau of Reclamation 6 suspended implementation of Section 3406(b)(2)? 7 MR. OTTEMOELLER: I don't recall specifically which 8 actions. It's my recollection that there were some things 9 that they had proposed to do that they didn't do. 10 MR. BIRMINGHAM: And after the injunction was 11 entered prohibiting implementation of Section 3406(b)(2), 12 what happened to the district's water supply? 13 MR. OTTEMOELLER: Actually, it remained the same 14 until sometime later in the spring -- or later in the 15 summer or early fall. As I recall it was the district's 16 analysis at the time that the Bureau didn't do those 17 certain actions that there was water available to allocate 18 based on water levels in San Luis, which was one of their 19 defining criteria for allocation. 20 However, the Bureau declined to increase the 21 allocation until that projection on our part was actually 22 demonstrated and then they made some additional water 23 available. 24 MR. BIRMINGHAM: And the water supply then was 25 increased? CAPITOL REPORTERS (916) 923-5447 13456 1 MR. OTTEMOELLER: The water supply was increased 2 later in the year, yes. 3 MR. BIRMINGHAM: To what was it increased? 4 MR. OTTEMOELLER: It was increased to the equivalent 5 of 45 percent -- or 42 percent. It was not done as an 6 increase in allocation on a percentage basis. It was done 7 as an increase in water supply by a fixed quantity which 8 was distributed to those districts that were water short 9 at the time. 10 MR. BIRMINGHAM: And from those events, 11 Mr. Ottemoeller, did you draw some conclusion as to 12 whether or not implementation of (b)(2) had resulted in 13 reduced allocations of water to -- let me restate the 14 question. 15 As a result of those events, did you conclude 16 that the proposed implementation of Section 3406(b)(2) 17 would have resulted in reduced water deliveries for the 18 1994/1995 contract year? 19 MR. OTTEMOELLER: Well, my conclusion was that it 20 did for most of the irrigation season in that -- the fact 21 that they weren't able to do it and we did get the extra 22 water, kind of proved that out. 23 MR. BIRMINGHAM: You say, "They weren't able to do 24 it," you mean by that that -- I don't want to ask a 25 leading question. CAPITOL REPORTERS (916) 923-5447 13457 1 When you say, "They weren't able to do it," what 2 do you mean? 3 MR. OTTEMOELLER: When they weren't able to do all 4 of the actions that they proposed to do during the spring, 5 as a result there was more water in San Luis and, 6 therefore, more water available for allocation. 7 MR. BIRMINGHAM: And when you say, "All of the 8 actions which they proposed to do," what do you mean by 9 that term? 10 MR. OTTEMOELLER: Well, the reason I put it that way 11 is I don't recall everything that they had proposed to do. 12 There may have been some things that they proposed to do 13 and they were calling them (b)(2) actions which they were 14 able to do under other authorities. I just don't have a 15 specific recollection of all of the actions that were 16 proposed and prohibited and then subsequently allowed. 17 MR. BIRMINGHAM: Mr. Ottemoeller, you were asked a 18 series of questions about the merger of Westlands and West 19 Plains Water District. 20 Do you recall those questions? 21 MR. OTTEMOELLER: Generally, yes. 22 MR. BIRMINGHAM: And Mr. Nomellini asked you a 23 series of questions about the water supply for the 24 original Westlands Water District and the water supply for 25 the former West Plains Water Storage District. CAPITOL REPORTERS (916) 923-5447 13458 1 Do you recall those questions? 2 MR. OTTEMOELLER: Yes. 3 MR. BIRMINGHAM: Now, is there some shorthand -- I 4 don't want to ask a leading question. 5 How is the former West Plains area referred to by 6 district staff at Westlands Water District? 7 MR. OTTEMOELLER: It's commonly referred to as Area 8 2. 9 MR. BIRMINGHAM: What is the water entitlement to 10 CVP water, if any, that Area 2 has? 11 MR. OTTEMOELLER: It works out to approximately 1.3 12 acre-feet per acre, when we have 100-percent water supply. 13 It's reduced accordingly as our water supply is reduced. 14 MR. BIRMINGHAM: And if you were to express that in 15 terms of acre-feet, how much water would that be? 16 MR. OTTEMOELLER: 250,000 acre-feet. 17 MR. BIRMINGHAM: Mr. Nomellini asked you questions 18 about the interruptability of that water supply. Are 19 there any documents of which you are aware that address 20 the obligation of the United States to deliver to 21 Westlands Water District the 250,000 acre-feet to which 22 you referred to in your testimony? 23 MR. OTTEMOELLER: The Barcellos judgment is the one 24 that creates the most recent and most positive obligation 25 that I'm aware of to deliver that 250,000. CAPITOL REPORTERS (916) 923-5447 13459 1 MR. BIRMINGHAM: What does the Barcellos judgment 2 say about the obligation of the United States to deliver 3 the 250,000 acre-feet of water to Westlands Water District 4 for the benefit of Area 2? 5 MR. OTTEMOELLER: I don't recall the specific 6 language, but in layman's terms it says that the United 7 States shall deliver the 250,000 acre-feet to the 8 Westlands Water District for the Area 2 lands pursuant 9 to -- essentially, pursuant to contract terms. There's 10 not an actual contract for that water like there is for 11 the '63 contract water, but it's considered to be a 12 contract supply. 13 MR. BIRMINGHAM: Now, when did you leave Westlands 14 Water District? 15 MR. OTTEMOELLER: In July of 1998. 16 MR. BIRMINGHAM: Prior to July of 1998, do you know 17 if Westlands Water District and the United States entered 18 into any kind of agreement concerning the renewal of the 19 contractual provisions of the judgment concerning the 20 delivery of the 250,000 acre-feet? 21 MR. OTTEMOELLER: Under CVPIA there's an obligation 22 to either renew the contract by a certain date, or 23 potentially face a penalty. Westlands entered into a -- I 24 forget the term right now -- 25 MR. BIRMINGHAM: If I were to say the term "binding CAPITOL REPORTERS (916) 923-5447 13460 1 agreement," would that refresh your recollection? 2 MR. OTTEMOELLER: Yes, binding agreement. The 3 binding agreement which includes -- and the binding 4 agreement says that Westlands intends to renew its 5 contract, and that includes the 250,000 and the 900,000 6 acre-feet in that binding agreement. 7 MR. BIRMINGHAM: Do you recall whether Westlands 8 entered into one or two binding agreements? 9 MR. OTTEMOELLER: If I recall it was one binding 10 agreement. 11 MR. BIRMINGHAM: Now, what happens -- are there -- 12 let me ask: 13 Are there circumstances in which all of the 14 900,000 acre-feet of water that's delivered to Westlands 15 under its 1963 contract is not used within the original 16 Westlands Water District? 17 MR. OTTEMOELLER: Yes. 18 MR. BIRMINGHAM: Is there a shorthand way that 19 people sometimes refer to the original Westlands Water 20 District? 21 MR. OTTEMOELLER: Area 1. 22 MR. BIRMINGHAM: What happens if not all of the 1963 23 contract water is used in Area 1? 24 MR. OTTEMOELLER: Well, the real short answer is it 25 gets used in Area 2. Under the district's allocation CAPITOL REPORTERS (916) 923-5447 13461 1 regulations one of two things happens: Either all of the 2 water is timely applied for and purchased by Area 1 lands, 3 which means it's then allocated to Area 1, Area 1 lands; 4 if that's the case the water can be used anywhere within 5 the district, either in Area 1 or Area 2, by the 6 individuals who receive the allocation. 7 If not all of the 900,000 acre-feet is timely 8 applied for and purchased, then the amount that is not 9 timely applied for and purchased is allocated ratably to 10 all of the Area 2 lands. 11 MR. BIRMINGHAM: All right. So do I understand from 12 your testimony that if water is not used in Area 1, what 13 water is delivered to the district by the project under 14 the 1963 contract, that lands within Area 2 have a right 15 to receive a portion of that 1963 contract water? 16 MR. OTTEMOELLER: Well, again, it's -- maybe we're 17 talking past each other on terminology. The regulations 18 and the district's interpretation of the judgment is that 19 once the water is applied for and allocated, the water 20 user who has received that allocation can use that water 21 anywhere in the district. So he can use it on Area 1, 22 Area 2 or Area 3 lands. 23 MR. BIRMINGHAM: But you testified that there's some 24 circumstances in which not all of the water delivered to 25 the district under the 1963 contract is allocated to Area CAPITOL REPORTERS (916) 923-5447 13462 1 1 lands? 2 MR. OTTEMOELLER: Yes. If there's not sufficient 3 applications in Area 1 to use all of the 900,000, that 4 water would be ratably allocated to all of the Area 2 5 lands. That's never happened, but that's part of the 6 provisions of the judgment and district regulations. 7 MR. BIRMINGHAM: I have no further questions. 8 C.O. STUBCHAER: Mr. Birmingham, are you going to 9 research that leading question issue? 10 MR. BIRMINGHAM: Yes, we are going to research. 11 C.O. STUBCHAER: Could you also check and see if the 12 leading question was within the scope of the written 13 testimony? 14 MR. BIRMINGHAM: Absolutely. 15 C.O. STUBCHAER: Thank you. 16 MR. BIRMINGHAM: I'd be more than happy to do that. 17 And you know this is -- we're almost at the conclusion of 18 this, but it's going to be interesting to see how many 19 objections there are now based upon the form of the 20 question being leading. I suspect it's going to be a few. 21 C.O. STUBCHAER: Okay. Thank you. 22 Now, before we get on with recross, do the 23 parties have a preference on hearing the rebuttal 24 testimony of the Department of the Interior on the mapping 25 issue only? CAPITOL REPORTERS (916) 923-5447 13463 1 MR. KEENE: Mr. Stubchaer? 2 C.O. STUBCHAER: Mr. Keene. 3 MR. KEENE: My preference would be to hear it today 4 if possible. 5 C.O. STUBCHAER: Mr. Birmingham. 6 MR. BIRMINGHAM: I have no objection to it being 7 heard today, but we have two panel members who have been 8 here for two days. We'd like to conclude them today if 9 possible. 10 C.O. STUBCHAER: I understand. I'm trying to see if 11 there's a consensus. There's only two hours remaining and 12 we want to best use the time. So are there any other 13 opinions on the mapping versus the recross-examination? 14 Seeing none -- well, Mr. Keene? 15 MR. KEENE: Mr. Chairman, I would concede to 16 Mr. Birmingham. I would agree that these two gentlemen 17 have been more than patient and it would probably be a 18 higher priority to get them out of here. 19 C.O. STUBCHAER: Yes. All right. Let's see who 20 wishes to recross-examine. Mr. Atlas, Mr. Nomellini, just 21 those two. Okay. We don't need to do the cards, we'll 22 just flip a coin. 23 Mr. Nomellini, you're heads. Here, look, it's on 24 the floor. 25 MR. ATLAS: Mr. Chairman, I'll volunteer to go CAPITOL REPORTERS (916) 923-5447 13464 1 first. 2 C.O. STUBCHAER: It's tails, so you go first. 3 MR. ATLAS: Mr. Chairman, I offered to go first. 4 C.O. STUBCHAER: No, the person who wins goes last. 5 MR. ATLAS: I'll go first. 6 C.O. STUBCHAER: Okay. All right. Thank you, 7 Mr. Atlas. 8 MR. ATLAS: You're welcome. 9 ---oOo--- 10 RECROSS-EXAMINATION OF WESTLANDS WATER DISTRICT 11 BY TEHAMA-COLUSA CANAL WATER AUTHORITY 12 BY MR. ATLAS 13 MR. ATLAS: Just a few leading questions, 14 Mr. Ottemoeller. Let me ask you a little bit about some 15 of the last testimony that you gave. You were describing 16 a process, if I understand it, by which Westlands takes 17 the water that it's been allocated by the Bureau for a 18 particular year and makes some portion of it available to 19 Area 1 first; is that right? 20 MR. OTTEMOELLER: Yes. The 900,000 by original 21 contract and by the Barcellos judgment is required to be 22 made available first to Area 1. 23 MR. ATLAS: Okay. And did I understand is there 24 also some amount of the CVP supply that the district has 25 each year that is allocated to Area 2, or does Area 2 just CAPITOL REPORTERS (916) 923-5447 13465 1 get whatever is left over from Area 1? 2 MR. OTTEMOELLER: Okay. To clarify, this is water 3 for both every year. If, for example, there is a 4 50-percent allocation, we get 50 percent of the 900,000 5 and 50 percent of the 250,000. 6 MR. ATLAS: Okay. 7 MR. OTTEMOELLER: So the 250,000 or whatever 8 percentage we receive from the Bureau always goes to Area 9 2. 10 MR. ATLAS: But I have a mental vision of someone 11 with a green eyeshade in Westlands way in the back 12 somewhere that says, "Okay, we have this much this year 13 and this much gets to Area 1 first and this much for Area 14 2 first," and then you go through an application process, 15 right? 16 MR. OTTEMOELLER: Yes. 17 MR. ATLAS: Okay. And, essentially, then whatever 18 is left of Area 1's water that Area 1 landowners don't 19 apply for can be allocated to Area 2 and someone makes 20 these calculations each year? 21 MR. OTTEMOELLER: Well, it's not a person, it's a 22 computer, but, yes. 23 MR. ATLAS: Computer with a green eyeshade. 24 C.O. STUBCHAER: Or a green screen. 25 MR. ATLAS: But the point is that there's some CAPITOL REPORTERS (916) 923-5447 13466 1 bookkeeping involved and such? 2 MR. OTTEMOELLER: Yes. 3 MR. ATLAS: And then throughout the year to follow 4 up on the process, obviously, the amount of water that's 5 delivered through the Westlands system to each of its 6 landowners is tracked, then, and whatever has been applied 7 for and is allocated to Area 1 is accounted for and 8 likewise the water to Area 2, right? 9 MR. OTTEMOELLER: Yes. 10 MR. ATLAS: Okay. Is it fair to say that that 11 process, if you expand your view to the Central Valley 12 Project and if you were operating the CVP and if the 13 conditions on your operation of the CVP were that there 14 was a certain amount of water available to you in a 15 particular reservoir that could be used in a particular 16 area and an amount in another reservoir that could be used 17 in another area, is the bookkeeping and accounting 18 essentially analogous? I'm not saying less technical, 19 but, essentially, analogous. 20 MR. OTTEMOELLER: I'd have a hard time saying 21 "yeah." There's so many differences between projections 22 of how things are going to happen and making, you know, 23 estimates and assigning, you know, water supplies in mass 24 to large areas as opposed to a specific contractual 25 quantity of water and specific state law that says that CAPITOL REPORTERS (916) 923-5447 13467 1 water has to be allocated ratably, I mean there's -- 2 MR. ATLAS: It wouldn't be easy, is that what you're 3 saying? 4 MR. OTTEMOELLER: Well, I'm not even sure that it's 5 analogous. I mean if, in fact, you could say that at some 6 point in the year somebody says this reservoir has this 7 many acre-feet and they can go here, here and here and 8 that reservoir has that many acre-feet and they can go 9 here, here and here, then it would be analogous. But the 10 way CVP is operated, I see a big difference. 11 MR. ATLAS: Okay. 12 MR. OTTEMOELLER: Even conceptually. 13 MR. ATLAS: Okay. I'm sorry I knocked something 14 important off here. 15 C.O. STUBCHAER: We'll have to get some velcro. 16 MR. ATLAS: Or a more observant cross-examiner. 17 Now, isn't it true that the amount of water that 18 Westlands has to make this allocation each year, the 19 900 -- of the 900,000 under one contract and the 250,000 20 under the other, that's determined by what the Bureau of 21 Reclamation determines is available to Westlands each 22 year; wasn't that your testimony? 23 MR. OTTEMOELLER: Yes. 24 MR. ATLAS: Okay. And what bears on the Bureau of 25 Reclamation's determination are a number of factors, if I CAPITOL REPORTERS (916) 923-5447 13468 1 understand your testimony. Some of those factors may be 2 natural such as drought or rainfall amounts; is that 3 right? 4 MR. OTTEMOELLER: Yes. 5 MR. ATLAS: Some of those factors may be the effect 6 of legislation; is that right? 7 MR. OTTEMOELLER: Yes. 8 MR. ATLAS: And some of those factors may be terms 9 and conditions on their water right permits; is that 10 right? 11 MR. OTTEMOELLER: Yes. 12 MR. ATLAS: Okay. Let me ask you to follow a 13 hypothetical with me, if you would. Keeping in mind the 14 exhibit that's on the overhead, TCCA Exhibit 21 and the 15 depiction of the place of use there: 16 If the Bureau of Reclamation had one foot of 17 water left in Shasta, just one, and if Orland-Artois Water 18 District, which is in the Tehama-Colusa service area, 19 needed that one acre-foot and was entitled to it under its 20 contract and the only other district in that the Central 21 Valley Project needed that acre-foot and was entitled to 22 it under its contract was Westlands Water District, and to 23 go a little further -- are you still with me? 24 MR. OTTOMOELLER: Uh-huh. 25 MR. ATLAS: Okay. And if the area of Westlands that CAPITOL REPORTERS (916) 923-5447 13469 1 is inside the gray shaded place of use of Shasta had 2 already had all of its reasonable and beneficial needs met 3 by CVP water, so the area -- the only place where 4 Westlands could reasonably and beneficially use that one 5 acre-foot is outside the current place of use depicted on 6 Exhibit 21, you still with me? 7 MR. OTTEMOELLER: I think so. 8 MR. ATLAS: Okay. And if the Bureau of Reclamation 9 wanted to operate the CVP in accordance with the terms and 10 conditions of its Shasta permits, as those terms are 11 depicted with respect to place of use on Exhibit 21, 12 wouldn't the Bureau of Reclamation be obligated to deliver 13 that one acre-foot to Orland-Artois? 14 MR. OTTEMOELLER: Was that one acre-foot stored in 15 Shasta? 16 MR. ATLAS: Yes. 17 MR. OTTEMOELLER: I really don't know that I can say 18 that they are -- or agree that they would be obligated to 19 deliver that. 20 MR. ATLAS: Let me ask the question differently: 21 Would they be prohibited from delivering that acre-foot to 22 the area of Westlands outside the Shasta place of use? 23 MR. OTTEMOELLER: I guess it depends on how that 24 acre-foot was going to get from Shasta to Orland-Artois. 25 If this was a perfect system and you could say this is CAPITOL REPORTERS (916) 923-5447 13470 1 water going from here to there and it's not -- and the 2 only purpose for releasing it was to get it there, that 3 would be a logical conclusion. 4 MR. ATLAS: Okay. Thank you. I have no other 5 questions. 6 C.O. STUBCHAER: Thank you, Mr. Atlas. 7 Mr. Nomellini. 8 ---oOo--- 9 RECROSS-EXAMINATION OF WESTLANDS WATER DISTRICT 10 BY CENTRAL DELTA PARTIES 11 BY MR. NOMELLINI 12 MR. NOMELLINI: Thank you, Mr. Chairman. Dante John 13 Nomellini for Central Delta Parties. 14 There were some questions asked by Mr. Birmingham 15 concerning Water Code Section 37801, and is there a reason 16 why the West Plains Water Storage District portion of 17 Westlands cannot be served with water from the State Water 18 Project? 19 MR. BIRMINGHAM: Objection. Goes beyond the scope 20 of the redirect. 21 C.O. STUBCHAER: Sustained. 22 MR. NOMELLINI: With regard to your testimony on 23 redirect there was testimony about outlets in the 24 aqueduct. Do you recall that testimony, Mr. Turnquist? 25 MR. TURNQUIST: Outlets in the aqueduct? CAPITOL REPORTERS (916) 923-5447 13471 1 MR. NOMELLINI: Yes. 2 MR. TURNQUIST: Temporary diversions at the pumps. 3 MR. NOMELLINI: Oh, the temporary pumps? 4 MR. TURNQUIST: Yes. 5 MR. NOMELLINI: Do you recall that testimony? 6 MR. TURNQUIST: Generally. 7 MR. NOMELLINI: And you indicated that it was too 8 far to extend the delivery system from the outlets to the 9 Redfern properties? 10 MR. TURNQUIST: Yes. My conclusion because of the 11 distance that would be a reason that they would not have 12 constructed those. 13 MR. NOMELLINI: All right. Would that have been 14 state water or federal water that would have been 15 delivered through those outlets? 16 MR. TURNQUIST: That would have been Westlands 17 water, so that would have been federal water. 18 MR. NOMELLINI: All right. Mr. Ottemoeller, with 19 regard to questions concerning the integration of the 20 integrated operation of the Central Valley Project, is it 21 your contention that the Bureau of Reclamation is not now 22 properly operating its project in accordance with the 23 non-integrated permits of the State Water Resources 24 Control plan? 25 MR. OTTEMOELLER: It's my contention that some of CAPITOL REPORTERS (916) 923-5447 13472 1 the uses of CVP water for fish and wildlife enhancement 2 from some of the reservoirs is probably inconsistent with 3 the permits. 4 MR. NOMELLINI: Okay. In terms of accounting for 5 the water from the various permits, would you agree that 6 the Bureau is capable of operating in accordance with the 7 permits in a non-integrated form? 8 MR. OTTEMOELLER: Not without impacting their 9 ability to meet their contract and instream flow, a lot of 10 things. I mean it would change the way that they would 11 operate. They could probably do that, but it would be a 12 very inefficient use of water, I would expect. 13 MR. NOMELLINI: With the exception of the water 14 being used for Fish and Wildlife Service, in what other 15 ways are you aware that the Bureau is not operating in 16 accordance with its permits of the Board in terms of their 17 not being integrated? 18 MR. OTTEMOELLER: I am not aware of any others. I 19 think that their place of use and place of diversions and 20 so forth, with the exception of the fish and wildlife 21 enhancements, can all be done under their permits. 22 MR. NOMELLINI: All right. Would you agree that 23 they could properly account for the water from the 24 separately permitted projects? 25 MR. OTTEMOELLER: Theoretically that would be a CAPITOL REPORTERS (916) 923-5447 13473 1 pretty difficult task. You'd have to set up a number of 2 assumptions to deal with things that currently they kind 3 of just melted into the hydrology, so to speak, that I was 4 talking about in Sacramento Valley, for example. 5 MR. NOMELLINI: Okay. It's your understanding that 6 they're not properly accounting based on the separate 7 nature of those permits? 8 MR. OTTEMOELLER: No, I would not say they're not 9 properly accounting. I would say there's not a need to 10 account for everything separately, because they're 11 operating on a non-integrated basis. And I think that 12 they are able to do it within the context of their permits 13 as they exist. 14 MR. NOMELLINI: Then, if the Board did not grant any 15 part of the petition with regard to expansion, 16 consolidated places of use and consolidation of purposes 17 of use, it is your opinion that the Bureau could properly 18 operate in accordance with the permits as granted by the 19 Board? 20 MR. OTTEMOELLER: I guess "properly" is where you 21 have a problem. If they have some obligations under 22 CVPIA, which I wonder whether they could accomplish. 23 MR. NOMELLINI: Okay. My question was: Could 24 properly operate? 25 MR. OTTEMOELLER: If they were willing to not do CAPITOL REPORTERS (916) 923-5447 13474 1 some of the things that they are also obligated to do, 2 then they could properly operate it. 3 MR. NOMELLINI: Okay. Well, if the Westlands Water 4 District's position was carried forward, the Board would 5 not consolidate the purposes of use with regard to fish 6 and wildlife purposes; is that correct? 7 MR. OTTEMOELLER: Yes. 8 MR. NOMELLINI: So assuming the Westlands' request 9 was granted, then is it your testimony that the Bureau 10 could not operate in accordance with the separate nature 11 of the permits? 12 MR. OTTEMOELLER: Again, it's not clear to me 13 whether you're including in that "properly operate" phase 14 doing things that are stated that they're supposed to do 15 under CVPIA. 16 MR. NOMELLINI: Okay. 17 MR. OTTEMOELLER: In order to do things including 18 the actions described in CVPIA, basically they'd have to 19 find some more water to do it. 20 MR. NOMELLINI: All right. I think we can almost 21 stipulate to that. All right. Putting aside the 22 violations, or alleged violations associated with CVPIA, 23 there is no major obstacle to the Bureau accounting for 24 water and operating in accordance with existing permits as 25 they now stand granted by the State Board? CAPITOL REPORTERS (916) 923-5447 13475 1 MR. OTTEMOELLER: Can you say that again? 2 MR. NOMELLINI: Well, I don't know if I can. 3 Putting aside CVPIA, would you agree that the Bureau of 4 Reclamation could operate in accordance with the permits 5 as granted by the State Water Resources Control Board? 6 MR. OTTEMOELLER: If CVPIA did not exist, yes, I 7 think so. 8 MR. NOMELLINI: With reference to your understanding 9 of the Barcellos judgment regarding the merger of the West 10 Plains Water Storage District with Westlands Water 11 District, is there anything in that judgment that you 12 understand would exempt the Bureau of Reclamation from 13 complying with California Water Law? 14 MR. OTTEMOELLER: No. 15 MR. NOMELLINI: Last area of questions. You've 16 indicated in your testimony on redirect that expanding the 17 place of use to include lands that were encroachment lands 18 as shown on I think it's Figure 3-26 of the environmental 19 document, would not harm any other user of water. 20 MR. OTTEMOELLER: That's my testimony, yes. 21 MR. NOMELLINI: Okay. Now, would you agree that 22 elimination of a demand for water -- let's use a 23 hypothetical. Let's assume that the Redfern properties -- 24 you could plug your ears here, Mr. Turnquist -- the 25 Redfern properties, the 1200 acres, were not included CAPITOL REPORTERS (916) 923-5447 13476 1 within the place of use and there was no other feasible 2 way economically to irrigate those lands, would that not 3 make more water available to other water users? 4 MR. OTTEMOELLER: Hypothetically and theoretically 5 in Westlands, yes, nowhere else. 6 MR. NOMELLINI: Okay. Let's test that. When 7 Redferns' property was subjected to irrigation it received 8 water from Westlands as well as water transfers from other 9 areas; is that not correct? 10 MR. BIRMINGHAM: Objection. Misstates the evidence. 11 C.O. STUBCHAER: Overruled. 12 MR. BIRMINGHAM: May I address that? I believe that 13 when Mr. Turnquist said that the properties were initially 14 irrigated they were irrigated with groundwater. 15 Mr. Nomellini's question is addressing when they were 16 irrigated. 17 We can ask that the Reporter read it back. If 18 Mr. Nomellini would like to clarify his question by 19 stating "irrigated with CVP water," I would have no 20 objection, but in its present form it misstates the 21 evidence. 22 C.O. STUBCHAER: It was clear to me, but if you want 23 to clarify it for Mr. Birmingham, go ahead. 24 MR. NOMELLINI: Well, the testimony -- I was trying 25 to structure a hypothetical. The testimony as I CAPITOL REPORTERS (916) 923-5447 13477 1 understand it is that in order to irrigate those lands, 2 and I'm talking about the Redfern properties, that the 3 water needed to adequately irrigate those lands was 4 somewhere around two acre-feet per acre. About one 5 acre-foot per acre comes from Westlands and the rest comes 6 from transfers, some of which I think from Redfern 7 properties in the Central Irrigation Water District -- 8 MR. OTTEMOELLER: CCID. 9 MR. NOMELLINI: -- Central California district area, 10 so it's with regard to that that I was referring as 11 transferred water. I wasn't addressing, that I knew of, 12 the original irrigation of land. 13 C.O. STUBCHAER: Okay. That's how I understood it. 14 MR. NOMELLINI: Okay. Let's go back to the 15 hypothetical. You had answered, Mr. Ottemoeller, yes, 16 that it would be in my hypothetical, lands -- these lands 17 no longer being irrigated would result in more water 18 available to users within Westlands. 19 And I was pursuing further the breadth of your 20 thought in your answer to the extent that it would 21 eliminate the need for water transferred from other areas 22 it would also make more water available, potentially, in 23 other areas as well; would it not? 24 MR. OTTEMOELLER: I don't know what we're 25 specifically referring to those lands and the source of CAPITOL REPORTERS (916) 923-5447 13478 1 the transfer water, I don't know what would otherwise be 2 done with that water if it were not transferred. 3 Presumably given the Bureau's rules, it would have gotten 4 used somehow, because you can only transfer water that 5 would otherwise have been consumptively used. So the 6 farmer is the one making the choices. That water does not 7 become available to someone else other than that farmer. 8 MR. NOMELLINI: Okay. In a water-short situation 9 where basically shortages are being shared by various 10 water users in different forms, the reduction of demand 11 would, in general, reduce the degree of that shortage; 12 would it not? 13 MR. OTTEMOELLER: Well, I don't know that our 14 hypothetical was reducing the demands. You said that it 15 could no longer get CVP water. It still -- 16 MR. NOMELLINI: No, would no longer be irrigated. 17 MR. OTTEMOELLER: No longer be irrigated, I guess 18 I'm unclear where we are in the question. 19 MR. NOMELLINI: All right. Let's go easy. 20 C.O. STUBCHAER: Well, let's go fast. 21 MR. NOMELLINI: Fast and easy, how about that one? 22 C.O. STUBCHAER: Okay. 23 MR. NOMELLINI: And I'm not going to stay here too 24 much longer. 25 Increased demand in times of shortage impacts CAPITOL REPORTERS (916) 923-5447 13479 1 other water users adversely; would you agree? 2 MR. OTTEMOELLER: Not necessarily. It impacts the 3 decisions that other water users have available. I mean 4 my testimony is that it doesn't change the amount of water 5 that CVP would deliver to Westlands with or without that 6 lands being in production. 7 Now, if somebody else in a place that had the 8 option of either transferring that water to Redfern lands 9 which are no longer being irrigated, or using it or 10 transferring it someplace else, they have those other 11 choices with their reduced supply. But it doesn't change 12 the amount of water that the Bureau would deliver to 13 Westlands under its contract. 14 MR. NOMELLINI: But you would agree that it might 15 change the amount of water available to some other water 16 user who is otherwise short that amount of water? 17 MR. OTTEMOELLER: It might have an impact on other 18 people's decisions, but I don't think it has an impact on 19 anybody's water rights or contractual entitlements as the 20 system works in that area. 21 MR. NOMELLINI: Okay. Let's go to a water surplus 22 period. Would you agree that under an ample water 23 situation that reduced demand for CVP water in the 24 Westlands water district service area could reduce the 25 amount of water exported from the Delta? CAPITOL REPORTERS (916) 923-5447 13480 1 MR. OTTEMOELLER: No. 2 MR. NOMELLINI: Okay. That's all I have. Thanks. 3 C.O. STUBCHAER: Staff have any recross questions? 4 MS. LEIDIGH: No. 5 ---oOo--- 6 RECROSS-EXAMINATION OF WESTLANDS WATER DISTRICT 7 BY THE BOARD 8 C.O. STUBCHAER: I have a question for you, 9 Mr. Ottemoeller, it had to do with the ability -- the 10 answer you gave to Mr. Nomellini and the ability of the 11 Bureau to operate the CVP in accordance with the permits 12 in the absence of integrated operation. 13 And I'm wondering: How would you envision 14 separating the Shasta water from the Folsom water, et 15 cetera, when it came time to make the allocations? 16 MR. OTTEMOELLER: I don't know. I really do not 17 know how you would do that. You would -- you'd have to 18 set up a fairly complex set of rules as to what you 19 determined happened to water once it was released for 20 whatever purposes it was released for. And at the points 21 where they get mixed up in the Delta and rediverted, it's 22 an accounting nightmare, I'm sure. 23 C.O. STUBCHAER: I was viewing it in terms of strict 24 physical nature, not just accounting. When you account 25 for it, then it becomes, in my view, kind of like an CAPITOL REPORTERS (916) 923-5447 13481 1 integrated operation. I should ask questions, not make 2 statements. 3 Anyway, I was curious about your answer that it 4 was possible to operate in accordance with the permits and 5 I didn't understand how it would be done. 6 MR. OTTEMOELLER: Maybe I was not clear about the 7 question. I didn't intend to suggest that I thought that 8 it could -- that they could operate it in a non-integrated 9 manner, I think they can operate in an integrated manner 10 consistent with their permits. 11 C.O. STUBCHAER: By commingling the waters? 12 MR. OTTEMOELLER: Right. 13 C.O. STUBCHAER: Okay. Fine. Thank you. 14 That completes the cross-examination, the 15 recross-examination of this panel. 16 Mr. Birmingham? 17 MR. BIRMINGHAM: May I have a moment? Ms. 18 Minaberrigarai is gone and I'm already lost. 19 C.O. STUBCHAER: I'm just curious, do you have all 20 the transcripts of all these proceedings on a CD rom on 21 computer so you can do a quick search? 22 MR. BIRMINGHAM: We have them on disc, we have not 23 been able to convert them to CD rom. 24 C.O. STUBCHAER: I have. 25 MR. BIRMINGHAM: I also know the Department of Water CAPITOL REPORTERS (916) 923-5447 13482 1 Resources has. And I have yet to send somebody over to 2 look at their system, but their system is phenomenal in 3 terms of ability to search. 4 C.O. STUBCHAER: I presume you're going to give us 5 your result of your research? 6 MR. BIRMINGHAM: No, I've not completed my research 7 yet. I'm going to make a motion to introduce exhibits. 8 C.O. STUBCHAER: Good, that's what I was hoping you 9 were going to do. Okay. 10 MR. BIRMINGHAM: Westlands Water District would move 11 to admit Westlands' Exhibits 14, 15, 16, 17, 18, 19, 20, 12 21 and 22. And also I had at the conclusion of -- 13 actually, at the beginning of Phase VII, I had moved for 14 the admission of Westlands Water District Exhibit 1, the 15 statements and qualifications of Steven Ottemoeller, and 16 the Hearing Officer expressed some reservations about 17 admitting it then, because there might be some party that 18 wasn't present that could object. 19 Mr. Ottemoeller is here again today and I would 20 again move for the admission of Westlands Water District 21 Exhibit 1. 22 C.O. STUBCHAER: Does the numbering check, staff? 23 MR. CORNELIUS: Yes. 24 C.O. STUBCHAER: Yes, all right. Any objections? 25 Seeing none, they are accepted. Thank you for your CAPITOL REPORTERS (916) 923-5447 13483 1 participation. 2 MR. NOMELLINI: Is Westlands' 117 in the record? 3 MR. BIRMINGHAM: Exhibit 117 was admitted into the 4 record pursuant to stipulation during the case in chief of 5 the Department of the Interior. 6 MR. NOMELLINI: I'd like to move Central Delta Water 7 Agency 30 and 31 for the limited purpose of identification 8 of the documents for which we had questions. 9 C.O. STUBCHAER: Objections? 10 MR. BIRMINGHAM: I would object on the grounds of 11 relevance. There's been no testimony as to the document. 12 There's been no foundation laid with respect to the 13 document. And the Hearing Officer earlier ruled that 14 testimony related to the document was irrelevant. So we 15 would object to admission for any purposes on the grounds 16 of relevance. 17 MR. TURNER: I would fully concur to that objection 18 for the precise reasons of relevancy. 19 C.O. STUBCHAER: Mr. Nomellini. 20 MR. NOMELLINI: I think it's not deserving of 21 weight, but I think it needs to be included for the 22 purpose of the reference. It was handed to the witnesses, 23 had them review it and asked questions of recognition -- 24 C.O. STUBCHAER: I'd like to ask a question of the 25 staff. CAPITOL REPORTERS (916) 923-5447 13484 1 Could the document be identified but not 2 accepted? 3 MS. LEIDIGH: It could be. 4 MR. BIRMINGHAM: In fact, it has been. 5 C.O. STUBCHAER: Okay. Let's do that. All right. 6 So it's identified on the record. 7 MR. NOMELLINI: It has to be identified as part of 8 the record, but it would not have any evidentiary value. 9 C.O. STUBCHAER: It is. It is part of the record. 10 It's time for our break. Let's take our afternoon break 11 and then we'll do the Department of Interior rebuttal. 12 (Recess taken from 2:40 p.m. to 2:51 p.m.) 13 C.O. STUBCHAER: Come back to order. 14 Good afternoon, Mr. Turner. 15 ---oOo--- 16 REBUTTAL TESTIMONY OF THE DEPARTMENT OF THE INTERIOR 17 BY GALE HEFFLER-SCOTT 18 BY MR. TURNER 19 MR. TURNER: Good afternoon, Mr. Stubchaer. James 20 Turner for the Bureau of Reclamation. I am here to 21 present some testimony on behalf of two Bureau employees 22 in rebuttal some of the testimony that had previously been 23 presented by the other parties. 24 As we previously discussed, I would like to begin 25 by having Gail Heffler-Scott, one of the Bureau employees, CAPITOL REPORTERS (916) 923-5447 13485 1 explain the procedure that was, in fact, followed by the 2 Bureau in, let's say, converting the maps that we are 3 producing to reflect the places of use that were 4 identified in connection with the various applications of 5 the subject of the proceeding, converting those to the GIS 6 maps, that were, in fact, included in the Draft 7 Environmental Impact Report. 8 I would begin by asking Ms. Heffler-Scott to 9 state her full name -- 10 C.O. STUBCHAER: Mr. Turner, have your witnesses 11 been sworn? 12 MR. TURNER: No. Thank you, as a matter of fact, 13 they've not been sworn. I had forgotten about that. 14 C.O. STUBCHAER: All right. Please, stand raise 15 your right hand. 16 You promise to tell the truth in these 17 proceedings. 18 MS. HEFFLER-SCOTT: Yes. 19 MR. TURNER: Ms. Heffler-Scott, would you, please, 20 state your full name for the record. 21 MS. HEFFLER-SCOTT: Yes. It's Gale Heffler-Scott. 22 That's G-A-L-E, H-E-F-F, like in Frank, L-E-R, dash Scott. 23 MR. TURNER: And are you employed by the Bureau of 24 Reclamation. 25 MS. HEFFLER-SCOTT: Yes. CAPITOL REPORTERS (916) 923-5447 13486 1 MR. TURNER: And what is your current position? 2 MS. HEFFLER-SCOTT: I'm currently the Regional Water 3 Rights officer for the Bureau of Reclamation. 4 MR. TURNER: Are you essentially the successor for 5 Connie Rupp who appeared here and testified for us 6 earlier? 7 MS. HEFFLER-SCOTT: Yes, fortunately or 8 unfortunately. 9 MR. TURNER: Now, since you are not listed as one of 10 the original witnesses for the Bureau of Reclamation, 11 would you, please, give a brief summary of your 12 educational and professional background for the record? 13 MS. HEFFLER-SCOTT: Yes. I have worked for the 14 Bureau of Reclamation since approximately 1975. 15 Approximately 10 to 12 years of that time I have spent 16 working directly in water rights, or water rights related 17 issues. I've also spent the remainder of the time either 18 working on contract-related issues for the Bureau, or on 19 the water transfer policy for the Bureau of Reclamation. 20 MR. TURNER: And you are employed in the Bureau of 21 Reclamation Regional Office here in Sacramento; is that 22 correct? 23 MS. HEFFLER-SCOTT: Correct. 24 MR. TURNER: Now, earlier today we had produced for 25 Mr. Herrick copies of the well maps that were in the CAPITOL REPORTERS (916) 923-5447 13487 1 Bureau files. Could you explain what those maps were that 2 we produced for Mr. Herrick? 3 MS. HEFFLER-SCOTT: Yes. The maps that we produced 4 were all of the maps that were filed with the applications 5 that the Bureau of Reclamation filed with the State Water 6 Resources Control Board for the various water right 7 permits that are subject to the place of use petition. 8 MR. TURNER: And these were maps that are -- 9 extracted from Bureau of Reclamation files? 10 MS. HEFFLER-SCOTT: Correct, their from our water 11 rights records file. 12 MR. TURNER: And could you, please, briefly explain 13 this list that was prepared identifying those maps, which 14 by the way, was also presented to Mr. Herrick for 15 distribution. 16 C.O. STUBCHAER: Mr. Keene. 17 MR. KEENE: Mr. Chairman, we don't have copies of 18 that. Would it be possible that could be marked for 19 identification so we have a clear record? 20 MR. TURNER: I'd just assumed that this was going to 21 be transmitted to all the parties along with copies of 22 maps that were going to be distributed at that point. 23 That's why I didn't bring more reproductions of it, but we 24 can certainly do so if you prefer. 25 C.O. STUBCHAER: Mr. Birmingham. CAPITOL REPORTERS (916) 923-5447 13488 1 MR. BIRMINGHAM: I, unlike Mr. Keene, do not have a 2 copy of the document that Mr. Turner is referring to. 3 C.O. STUBCHAER: I'm sorry, you must have talked 4 your voice out earlier today. 5 MR. BIRMINGHAM: Never mind. 6 C.O. STUBCHAER: Mr. Herrick, were you going to say 7 you have copies? 8 MR. HERRICK: Yes. I was going to include that with 9 the exhibits with all of the maps that are distributed to 10 be everybody. 11 Anybody else need a copy there are some there. 12 MS. LEIDIGH: Staff needs a copy. 13 MR. NOMELLINI: The suggestion is a good one that we 14 give it a number now while we start talking about and then 15 number the group of maps as a subpart of the exhibit. 16 C.O. STUBCHAER: Sure. What's the next in order? 17 MR. HERRICK: How about if we make this South Delta, 18 I believe, 58 and the maps 59. 19 C.O. STUBCHAER: Mr. Cornelius, are you checking on 20 that number? 21 MR. CORNELIUS: Yes. 22 C.O. STUBCHAER: While you're checking why don't we 23 go ahead. And if it's not okay, tell us later. 24 MR. TURNER: Now, Ms. Heffler-Scott, I know you may 25 not have been available earlier, but I will just state for CAPITOL REPORTERS (916) 923-5447 13489 1 your information that there have been discussions earlier 2 during this phase of the proceeding about the maps that 3 were attached to the applications identifying the places 4 of use that were being proposed and were approved in 5 connection with those applications. 6 There was also discussions about the GIS maps 7 that were included within the Draft Environmental Impact 8 Report that was prepared in connection with this phase of 9 the proceeding. 10 Now, could you, please, explain how the maps that 11 we are making available, as South Delta Water Agency 12 Exhibit 59, relate to the GIS maps that were, in fact, 13 included in the department -- in the Draft Environmental 14 Impact Report? 15 MS. HEFFLER-SCOTT: Yes. These maps were copies 16 of -- the maps were taken off of the apature cards that 17 are on file with the Bureau of Reclamation's drawing 18 department. The maps and apature cards are copies -- are 19 the film of the maps that were submitted with the original 20 water right applications to the State Board when the 21 filings were made by the Bureau of Reclamation, and any 22 amendment that might have been done thereto. 23 The copies, hardcopies were printed off of the 24 apature cards in the same type format that they are here 25 that we brought in today. Those were then taken and blown CAPITOL REPORTERS (916) 923-5447 13490 1 up, but they're in different scales. 2 And each one of those maps was then taken and 3 blown up to a size that could be overlaid by a light table 4 on to a 1 to 24,000th scale quad map. They were, then on 5 the light table, hand drafted and eyeballed, as best they 6 could be, with any kind of identifying marks that you 7 could locate on a quad map that might relate to something 8 that was on the place of use map such as a road, a stream, 9 maybe a township. 10 But they were hand drawn onto the quad maps. And 11 so it wasn't very technical the way it was done. But that 12 was the best way we had to do it at the time. And then 13 from the quad maps it was subsequently then taken and 14 digitized into the GIS system. 15 MR. ATLAS: Pardon me. 16 C.O. STUBCHAER: Mr. Atlas. 17 MR. ATLAS: I just have -- what was the term? Was 18 it "apature card"? 19 C.O. STUBCHAER: Apature card. Is that a microfilm? 20 MS. HEFFLER-SCOTT: Correct. 21 C.O. STUBCHAER: It has an apature on it which 22 microfilm is based, is that what that is? 23 MR. BIRMINGHAM: Objection. Leading. 24 MS. HEFFLER-SCOTT: Yes. 25 C.O. STUBCHAER: Excuse me. Go ahead. CAPITOL REPORTERS (916) 923-5447 13491 1 MS. HEFFLER-SCOTT: Yes, that's exactly what it is. 2 C.O. STUBCHAER: And while we're interrupted. How 3 many quad sheets were involved then in transferring the 4 information from the apature card onto the quad sheets? 5 MS. HEFFLER-SCOTT: I don't have any knowledge 6 exactly of how many, but there were several. I mean -- 7 yeah, it took several quads, yeah. 8 C.O. STUBCHAER: Quite a few. 9 MS. HEFFLER-SCOTT: Yes, several. 10 C.O. STUBCHAER: Okay. 11 MR. TURNER: All right. Well, that would be all of 12 the testimony that is presented on behalf of 13 Ms. Heffler-Scott. 14 And I would suggest right now if there is no 15 objection, that if anybody has any questions we could 16 present those to her prior to getting into the actual 17 rebuttal testimony. I think that would be more 18 convenient. 19 C.O. STUBCHAER: All right. That's a good 20 suggestion. 21 Mr. Keene. 22 MR. KEENE: I have some questions. 23 C.O. STUBCHAER: All right. 24 MR. BIRMINGHAM: While Mr. Keene is asking his 25 questions, may I examine the maps? CAPITOL REPORTERS (916) 923-5447 13492 1 C.O. STUBCHAER: Yes. And, staff, if you wouldn't 2 mind would you hand me one of maps to look at. I don't 3 care which one, just one of them. 4 ---oOo--- 5 CROSS-EXAMINATION OF THE BUREAU OF RECLAMATION 6 DEPARTMENT OF THE INTERIOR 7 BY SAN LUIS WATER DISTRICT 8 BY MR. KEENE 9 MR. KEENE: Ms. Heffler-Scott, were you actually 10 involved in the preparation of this map that was put into 11 the GIS system that you just testified to? 12 MS. HEFFLER-SCOTT: No, I was not. 13 MR. KEENE: Okay. Who is the source of the 14 information that you just related in terms of how these 15 documents were prepared? 16 MS. HEFFLER-SCOTT: The source of the information 17 that I just related came from our GIS staffing people who 18 did the actual transposing of the quad maps into the 19 digitized GIS system. 20 MR. KEENE: Okay. Now, I noticed on several of the 21 maps which I have been looking at, I haven't looked at all 22 of them yet, but I looked at several of them, that the 23 width of the line is different on different maps. 24 Do you have any idea why? 25 MS. HEFFLER-SCOTT: Well, they were probably drawn CAPITOL REPORTERS (916) 923-5447 13493 1 at various stages and there were different techniques used 2 to draw the line. Because as I understand, it the maps 3 were originated and drawn with each filing of each various 4 application that was filed. And the applications were 5 filed over a number of years in staged sequences. So they 6 were drawn at different times by different people with 7 different mechanisms. 8 MR. KEENE: Okay. Now, as I understood your direct 9 testimony, these pieces of paper we have here, aren't 10 physically the same maps that were filed with the State 11 Board at the time of the petition, but they are, in fact, 12 duplicates that came off of some sort of microfilm 13 process? 14 MS. HEFFLER-SCOTT: They are copies of the maps that 15 were -- the original maps that were filed with the State 16 Board. 17 MR. KEENE: Do you have any idea of what the size of 18 the original maps was in any of these cases? Whether the 19 map was originally submitted on an 8 and a half by 11 as 20 opposed to a 15 -- 21 MS. HEFFLER-SCOTT: No. They were large-scale maps. 22 I don't know exactly what the size were, but I think some 23 of them might have even been submitted in a mylar format 24 and they were large maps. 25 MR. KEENE: Okay. CAPITOL REPORTERS (916) 923-5447 13494 1 MS.HEFFLER-SCOTT: Maps to that size. 2 MR. KEENE: Were they all that size? 3 MS. HEFFLER-SCOTT: I'm not sure exactly what all 4 size, but something similar to that. 5 MR. KEENE: Okay. Now, in the process of doing the 6 overlays, the lines themselves have width? 7 MS. HEFFLER-SCOTT: Yes. 8 MR. KEENE: Do you know whether there was some sort 9 of uniformed rule used as to whether it was the outside of 10 the line, the inside of the line, or the average of the 11 line? 12 MS. HEFFLER-SCOTT: There wasn't -- the party who 13 was doing the transposing simply, as I understand, used 14 their own judgment on how the lines should be -- which 15 side of the line it should go on with respect to the 16 trace, whether it was outer or inner. 17 MR. KEENE: Now, was it a single person who did all 18 of this transposing? 19 MS. HEFFLER-SCOTT: No, because -- I don't know. 20 There were people -- there was more than one person that 21 was working on doing the transposing of the maps. So it 22 wasn't all done at the same time. So there probably would 23 have been more than one person. There is one person that 24 I know that worked on them. I don't recall his name at 25 the moment, but in the same unit. CAPITOL REPORTERS (916) 923-5447 13495 1 MR. KEENE: Do you know whether or not all the 2 people that did the transposing had the same rule with 3 regard to the decision of whether they used the inside of 4 the lines as opposed to the outside of the line? 5 MS. HEFFLER-SCOTT: No, I don't. 6 MR. KEENE: Now, from examining the maps it appears 7 to me that some maps -- well, the different maps have 8 different lines as they apply to my district. I'll 9 represent that to you. 10 MS. HEFFLER-SCOTT: Okay. 11 MR. KEENE: Was the general rule to take the outer 12 most boundary line, or was it some sort of other rule in 13 terms of which one of multiple lines was used as the outer 14 line at the place of use? 15 MS. HEFFLER-SCOTT: I understand there was no rule. 16 It was simply up to the person who was doing the tracing, 17 doing the transposing. 18 MR. KEENE: Okay. Now, aside from these maps that 19 has been submitted, do you know if there was any other map 20 showing a boundary line, or place of use -- I'm sorry, let 21 me back up. 22 Aside from these maps that were submitted, do you 23 know if there was any other map of any kind that was used 24 to develop that line, that hand-drawn line that was later 25 input into the GIS system? CAPITOL REPORTERS (916) 923-5447 13496 1 MS. HEFFLER-SCOTT: Well -- 2 MR. KEENE: First of all, do you understand the 3 question? 4 MS. HEFFLER-SCOTT: I'm not sure I understand. 5 Repeat it for me. 6 MR. KEENE: Okay. There's a limited number of maps 7 here. 8 MS. HEFFLER-SCOTT: Right. 9 MR. KEENE: I haven't counted them, but I would say 10 there's somewhere between eight and ten, approximately. 11 Do you know whether any map other than these that you 12 physically delivered today was used in that process of 13 transposing a line, the overlay and transposition process 14 that you've described? 15 MS. HEFFLER-SCOTT: Not that I'm aware of. There 16 was not. 17 MR. KEENE: Okay. So if we were to repeat the 18 process, then we should not come out with any outer line 19 that wasn't consistent with at least one of those maps? 20 MS. HEFFLER-SCOTT: That's correct. 21 MR. KEENE: Okay. Now, let me go slightly beyond 22 where we are, because it's -- because it's very 23 significant for me. 24 The maps in the Environmental Impact Report 25 include both what was represented as "a then existing CAPITOL REPORTERS (916) 923-5447 13497 1 place of use line," which is as I understand your 2 testimony, it relates to how that line was developed; is 3 that correct? 4 MS. HEFFLER-SCOTT: Correct. 5 MR. KEENE: Okay. Those maps also show a "proposed 6 place of use line," that, according to the text of the 7 document, is the outer boundary of the current districts? 8 MS. HEFFLER-SCOTT: That's what I understand, yes. 9 MR. KEENE: Do you know how that line was developed? 10 MS. HEFFLER-SCOTT: Not directly, but I'm assuming 11 that we have on file, with the Bureau, copies of all of 12 our district boundary lines that we have water service 13 contracts with. So those are also maintained in the GIS 14 Department. 15 And so I'm assuming that the lines for the 16 "proposed," which is the current district boundaries came 17 from that office. And they used the files we have to 18 transpose those on to. 19 MR. KEENE: Okay. I see that you do not have in 20 front of you a copy of the Draft Environmental Impact 21 Report. I'm showing you, now, a copy of Exhibit 2 in 22 these proceedings, which is the Draft Environmental Impact 23 Report. 24 I'd ask you, first, to turn to the map that 25 has -- that is at Page 3-115 -- sorry, I'm realizing for CAPITOL REPORTERS (916) 923-5447 13498 1 the first time we have different versions of the Draft 2 Environmental Impact Report. 3 MR. NOMELLINI: No, it isn't. Mine is not colored. 4 MR. KEENE: The page numbers are different. 5 MR. TURNER: That's an earlier version. You said 6 Page 3-115? 7 MR. KEENE: Yes. Okay. Now, do you see that -- do 8 you have that map in front of you now? 9 MS. HEFFLER-SCOTT: Correct. 10 MR. KEENE: Now, I would direct your attention to 11 the areas that had been colored in in green on that map, 12 and particularly the areas that are north of the Merced 13 county line, Merced-Fresno county line and between that 14 county line and this body of water up in the upper 15 left-hand corner of the page, do you see how those stick 16 down from the more or less continuous line? 17 MS. HEFFLER-SCOTT: Yes. 18 MR. KEENE: To the edge of the gray? 19 MS. HEFFLER-SCOTT: (Witness nods.) 20 MR. KEENE: Okay. 21 C.O. STUBCHAER: Would you, please, give an audible 22 response. 23 MS. HEFFLER-SCOTT: Yes. 24 C.O. STUBCHAER: Okay. 25 MR. KEENE: Would you, please, hold that in one hand CAPITOL REPORTERS (916) 923-5447 13499 1 and flip it over to the front of the document. And I'd 2 ask you to look at, well, any one of the Figure 2 dashes. 3 Well, let's start with the Figure 2-1, let's 4 start with that one. And I direct your attention on that 5 to the area that is between the San Luis Reservoir and the 6 county line between Merced and Fresno County. 7 MS. HEFFLER-SCOTT: Yes. 8 MR. KEENE: Is that part, that edge of the 9 light-colored area more or less smooth? Does it show any 10 jagged features? 11 MS. HEFFLER-SCOTT: Of the -- 12 MR. KEENE: The light colored area -- 13 THE COURT REPORTER: I'm sorry. I need her to move 14 the mic closer. 15 C.O. STUBCHAER: Yes. 16 MR. KEENE: The light-colored area, the edge -- 17 MS. HEFFLER-SCOTT: The light gray. 18 MR. KEENE: Yes. Does that stretch of that boundary 19 show any jagged feature? 20 MS. HEFFLER-SCOTT: No. 21 MR. KEENE: Okay. I'd ask you to look at Figure 22 2.2, the next page after what you were just looking at, 23 the same area, do you see any jagged features? 24 MS. HEFFLER-SCOTT: No. 25 MR. KEENE: Do you have any idea how come part of CAPITOL REPORTERS (916) 923-5447 13500 1 the San Luis District as it appears on the map at Page 2 3-115 as being encroachment lands and, therefore, land 3 within the boundary of the district doesn't show up as 4 being within the proposed place of use on Figures 2-1 and 5 2-2? 6 MS. HEFFLER-SCOTT: No, I don't know. 7 MR. KEENE: Okay. Do you know -- I may have asked 8 this before but let me ask it again so you understand why 9 I'm asking it: 10 Do you know who, within the Bureau, is 11 responsible for drafting that line of the proposed place 12 of use? 13 MS. HEFFLER-SCOTT: For the proposed place of use? 14 MR. KEENE: Yes, ma'am. 15 MS. HEFFLER-SCOTT: I don't know, personally, but it 16 would have been someone in our GIS. Probably, I'm 17 thinking it was Mike Sabhat, who is the person who was in 18 charge of the program at that time. 19 MR. KEENE: Is he still with the Bureau? 20 MS. HEFFLER-SCOTT: Yes, he is. 21 MR. KEENE: In the Sacramento Office? 22 MS. HEFFLER-SCOTT: Yes. 23 MR. KEENE: All right. These quad sheets that you 24 mentioned in your direct testimony, I'm not familiar with 25 that term. Could you, please, explain what quad sheets CAPITOL REPORTERS (916) 923-5447 13501 1 are? 2 MS. HEFFLER-SCOTT: If I can. Quad sheets are very, 3 very large sheets that have a -- on a 1 to 24,000th scale. 4 And they have very blown up features of a map area. I'm 5 not a technical person on that, so that's about the best I 6 can give you on the description of what a quad map is. 7 C.O. STUBCHAER: Could I ask a question? 8 MR. KEENE: Please. 9 C.O. STUBCHAER: Are they US -- 10 MS. HEFFLER-SCOTT: Are they would be the USGS quad 11 maps. 12 C.O. STUBCHAER: Quadrangle maps? 13 MS. HEFFLER-SCOTT: Exactly. 14 C.O. STUBCHAER: On a 1 to 24,000th scale. 15 MS. HEFFLER-SCOTT: Exactly what they are. Thank 16 you. 17 MR. KEENE: Now, these quad maps this was transposed 18 to, were these hardcopies on plain paper, or were these 19 some sort of transparency, or film? What was the medium 20 that it was transposed to, in other words? 21 MS. HEFFLER-SCOTT: From the maps onto the quads? 22 MR. KEENE: Yes. Well, the quads themselves, were 23 the quads -- 24 MS. HEFFLER-SCOTT: They were hardcopy paper. 25 MR. KEENE: Do you know whether the quad maps that CAPITOL REPORTERS (916) 923-5447 13502 1 were used still exist? 2 MS. HEFFLER-SCOTT: Not directly, but I'm assuming 3 they probably are still within our GIS Department. We may 4 still have them on file there, which I would probably 5 think they would. 6 MR. KEENE: Okay. Once the transposition took 7 place, how was the information then taken from the quad 8 map and put into the GIS system? Was there some sort of 9 computer scanning process or a tracing process? 10 MS. HEFFLER-SCOTT: I don't know. I'm not familiar 11 with what their exact process is for transposing into the 12 GIS system. I don't know. 13 MR. KEENE: Do you know who was responsible for that 14 step? 15 MS. HEFFLER-SCOTT: Yes. It would have been the GIS 16 Department and, again, probably Mike Sabhat. 17 MR. KEENE: I would, at this point, request, 18 Mr. Chair, if it's possible with Mr. Turner, if Mr. Sabhat 19 could be produced, perhaps, later in the rebuttal time 20 period, because I would dearly love to have an opportunity 21 to cross-examine this gentleman. 22 C.O. STUBCHAER: Mr. Turner? 23 MR. TURNER: I would certainly be happy to try and 24 arrange to have him present, if the Board thinks that 25 would be helpful for the record. We could certainly CAPITOL REPORTERS (916) 923-5447 13503 1 attempt to do that. 2 C.O. STUBCHAER: Okay. We would appreciate that. 3 And we would attempt to give him the courtesy of a day 4 certain, I think. 5 MR. TURNER: Well, if we are -- would it be 6 appropriate -- I presume that we may not have completed 7 the cross-examination on the rebuttal testimony that's 8 going to be presented by Mr. Bultema. If that's the case, 9 I could try to arrange to have him here when we reconvene, 10 what, a week from Tuesday. 11 C.O. STUBCHAER: That would be fine. You'd be first 12 anyway. 13 MR. TURNER: Right. Okay. I will -- I will -- I 14 will make arrangements to have him here. If there's any 15 complications I can go ahead and advise the Board staff 16 or -- in advance to see if we can reschedule. 17 C.O. STUBCHAER: Okay. Thank you. 18 MR. KEENE: Okay. I just have a couple more 19 questions, if I may, Mr. Chairman. 20 Ms. Heffler-Scott, these hardcopy maps that you 21 produced, do you know when the originals of those maps 22 were drawn? 23 MS. HEFFLER-SCOTT: Not directly, but I think the 24 maps may have dates on them -- 25 MR. KEENE: Okay. CAPITOL REPORTERS (916) 923-5447 13504 1 MS. HEFFLER-SCOTT: -- which, I would assume, is 2 when they were drawn. 3 MR. KEENE: Okay. Now, in several situations, 4 looking now at South Delta Exhibit 58 -- yes, the maps do 5 have dates on them. 6 Looking at South Delta Exhibit 58, what I notice 7 is that we -- for example, for the Trinity place of use, 8 we have approximately six entries, but I believe in the 9 maps that you produced there are only, I think, two, 10 possibly three, Trinity maps, can you explain why that is? 11 MS. HEFFLER-SCOTT: I didn't prepare the list, but 12 I'm assuming that's because you have the same map covering 13 multiple areas. 14 MR. KEENE: Okay. 15 MS. HEFFLER-SCOTT: Like on the Trinity maps, when 16 you look at the Trinity applications they all have the 17 same map number. 18 MR. KEENE: Okay. Now, I notice that there's a 19 footnote there to that page that is specifically to the 20 Trinity map number of the second through sixth entry in 21 the chart. 22 MS. HEFFLER-SCOTT: Correct. 23 MR. KEENE: Can you explain to me what that footnote 24 means, because I've read it twice and I still don't 25 understand? CAPITOL REPORTERS (916) 923-5447 13505 1 MS. HEFFLER-SCOTT: Okay. There were, evidently, a 2 previous change in place of use order that was granted. 3 And the Trinity map numbers that are asterisked were 4 changed by the revised map number, which was identified as 5 214-208-3330 and 3331. 6 MR. KEENE: Okay. So as I interpret that, what you 7 just said, this map that of you've submitted, this 8 hardcopy map was prepared in approximately 1960, but it 9 included some information that was from a preexisting 10 permit that was modified since the 1960 action? 11 MS. HEFFLER-SCOTT: Correct. The way I read this is 12 the original maps that were filed with the original 13 Trinity applications, there was, evidently, a change order 14 that was issued by the Board in December of 1960 that 15 changed the place of use, approved place of use for the 16 Trinity maps from what was originally approved when the 17 applications were filed to what was approved in '60. And 18 there were new maps done for the '60 approved change in 19 place of use. And they should be in the maps that we 20 gave. 21 MR. KEENE: Okay. So the hardcopy maps that were 22 presented were the maps that were from the 1960 change in 23 place of use petition as opposed to the original Trinity 24 River permit applications? 25 MS. HEFFLER-SCOTT: Right. The original map numbers CAPITOL REPORTERS (916) 923-5447 13506 1 that were shown for 416-208-341 series, were the original 2 maps filed. Those maps were expanded. As I understand, 3 the place of use that was originally to cover those maps 4 was expanded in 1960. And the new maps that gave the 5 expanded place of use are the 214-208-3330 and 31. 6 MR. KEENE: Now, I notice that the -- in looking at 7 the application numbers for a moment, that the first of 8 the Trinity entries and the first of the Shasta entries -- 9 I'm sorry, no. That's not correct. 10 Was the same map submitted with more than one 11 application? 12 MS. HEFFLER-SCOTT: Yes. 13 MR. KEENE: Okay. I notice that the Shasta group -- 14 I'm sorry, is there anything you wish to add to your 15 testimony? 16 MS. HEFFLER-SCOTT: No. Mr. Turner was just 17 clarifying that the maps we have for Trinity are 4 -- 18 416-208-341 is a place of use for the Trinity Application 19 5628. And, then, the maps that are 214-208-3330 and 3331 20 are for the Trinity applications, the remaining five 21 Trinity applications. 22 You've got two places of use, in other words, for 23 the Trinity permits. The 5628 permit has one place of 24 use. Then the remaining Trinity maps have an expanded 25 place of use that goes beyond the place of use identified CAPITOL REPORTERS (916) 923-5447 13507 1 for Application 5628. 2 MR. KEENE: I understand. The Shasta permits, it 3 appears, then, that there would be -- I can expect three 4 Shasta maps, one for the first and -- and third of the 5 Shasta entries and another one for the second of the 6 Shasta entries? 7 MS. HEFFLER-SCOTT: There's two Shasta maps. You'll 8 have the same map for Shasta Application 5626 and 9364. 9 And that map number will be 602-212-78. 10 Then for the third Shasta permit, the 9363 11 application, you have map number 602-212-166. 12 MR. KEENE: Okay. Can you explain the Folsom 13 entries, why there are two map numbers listed for two 14 separate application numbers? What happened there? 15 MS. HEFFLER-SCOTT: I believe it's divided into a 16 north and south. This covers a very large area and I 17 believe it covers most of the Central Valley, both north 18 and south of the Delta. So I think they split them into 19 two maps. So there are two halves. Probably the 20 353-205-105 is the north half and then the 106 would be 21 the south half for the CVP. 22 MR. KEENE: Okay. Do you have any information with 23 regard to the dates that any of these -- of these permit 24 applications were submitted other than the one that has -- 25 the ones that have asterisks by them? CAPITOL REPORTERS (916) 923-5447 13508 1 MS. HEFFLER-SCOTT: No, not directly. I'd have to 2 look at the applications. 3 MR. KEENE: Okay. I don't believe I have any 4 further questions at this point. Thank you. 5 C.O. STUBCHAER: Let's see, Mr. Atlas, did you -- 6 MR. ATLAS: I did raise my hand, but I looked at the 7 maps and I'm satisfied they speak for themselves. I have 8 no questions. 9 C.O. STUBCHAER: Mr. Birmingham? 10 MR. BIRMINGHAM: I have some questions. 11 C.O. STUBCHAER: Okay. Mr. Herrick. 12 MR. HERRICK: Yeah, I think I missed it here since 13 we were looking at the maps. 14 C.O. STUBCHAER: You both missed it. Okay. 15 Mr. Birmingham, how much time do you think you'll 16 take? 17 MR. BIRMINGHAM: Just a few minutes. 18 C.O. STUBCHAER: All right. Define a few -- that's 19 all right. Come on up. It's late in the day. 20 MR. BIRMINGHAM: I understand under the Board's 21 regulations I have an hour; is that correct? 22 C.O. STUBCHAER: Yes, but your answer to the 23 question would determine whether you went first or last. 24 // 25 // CAPITOL REPORTERS (916) 923-5447 13509 1 ---oOo--- 2 CROSS-EXAMINATION OF THE BUREAU OF RECLAMATION 3 DEPARTMENT OF THE INTERIOR 4 BY WESTLANDS WATER DISTRICT 5 BY MR. BIRMINGHAM 6 MR. BIRMINGHAM: Ms. Heffler-Scott, my name is Tom 7 Birmingham. And I'm an attorney that represents Westlands 8 Water District. 9 I am looking at South Delta Water Agency Exhibit 10 58, which is the list of application permits and map 11 numbers that was distributed to Mr. Herrick on April 8, 12 1999; is that correct? 13 MS. HEFFLER-SCOTT: Yes. 14 MR. BIRMINGHAM: And at the bottom of South Delta 15 Water Agency Exhibit 58 there is a reference to "DMC San 16 Luis, Application Number 15764." 17 MS. HEFFLER-SCOTT: Correct. 18 MR. BIRMINGHAM: Now, Application 15764 was an 19 application that was originally filed by Westlands Water 20 District, do you know? 21 MS. HEFFLER-SCOTT: I'm not familiar with that, no. 22 MR. BIRMINGHAM: Okay. South Delta Water Agency 23 Exhibit 58 indicates that the place of use for Application 24 15764 is shown on maps 214-208-348, 214-208-349 -- 25 MR. NOMELLINI: 33. CAPITOL REPORTERS (916) 923-5447 13510 1 MR. BIRMINGHAM: 33 -- let me restate. 2 C.O. STUBCHAER: Yes. 3 MR. BIRMINGHAM: Let me restate the question. 4 South Delta Water Exhibit 58 indicates that the place of 5 use for the permit granted as a result of Application 6 15764 is depicted on maps number 214-208-3348, 7 214-208-3349 and 214-208-3350; is that correct? 8 MS. HEFFLER-SCOTT: Correct. 9 MR. BIRMINGHAM: Now, I have placed in front of you 10 map number 214-208-3349; is that correct? 11 MS. HEFFLER-SCOTT: Correct. 12 MR. BIRMINGHAM: And the legend of 208-3349 13 indicates that there is a place of use for the San Luis 14 Unit Project service area; is that correct? 15 MS. HEFFLER-SCOTT: The San Luis Unit place of use, 16 yes. 17 MR. BIRMINGHAM: Now, the San Luis Unit place of use 18 is depicted on map number 214-208-3349 was meant to depict 19 the service area of the San Luis Unit; is that right? 20 MR. TURNER: Excuse me, if I could. 21 Ms. Heffler-Scott was presented to explain the process 22 that was used to convert these maps to the maps that are 23 in the Draft Environmental Impact Report, not to testify 24 on the subject matter of these maps, the accuracy of the 25 maps. CAPITOL REPORTERS (916) 923-5447 13511 1 This is totally outside her expertise. She is 2 simply filling the Board and the parties in on the process 3 that was used to actually produce the maps that are in the 4 draft. 5 C.O. STUBCHAER: I'll -- 6 MR. BIRMINGHAM: That's fair. May I inquire -- 7 never mind. 8 Ms. Heffler, if I understand the process that you 9 described, the maps that have been produced, and are 10 identified on South Delta Water Agency Exhibit 58, are the 11 maps that were filed with the water right application 12 permits by the Bureau of Reclamation and depict the 13 proposed places of use? 14 MS. HEFFLER-SCOTT: Correct. 15 MR. BIRMINGHAM: And so if a person wanted to look 16 at the place of use for a particular permit they would 17 look at the maps produced and listed on South Delta Water 18 Agency Exhibit 58? 19 MS. HEFFLER-SCOTT: Yes. 20 MR. BIRMINGHAM: Now, if we look at the crosshatched 21 area on 214-208-3349, for the area in the vicinity of 22 Township 20 south, 16 east, which I will point out to you 23 is two townships north of the Merced county line, you see 24 the area that I'm referring to? 25 MS. HEFFLER-SCOTT: Yes, I do. CAPITOL REPORTERS (916) 923-5447 13512 1 MR. BIRMINGHAM: It appears on map 214-208-3349 that 2 there is a protrusion to the west; is that correct? 3 MS. HEFFLER-SCOTT: It appears, yes. 4 MR. BIRMINGHAM: Now, I'd ask you to compare the map 5 214-208-3349 with the map that is contained in State Water 6 Resources Control Board Exhibit 2 and identified in that 7 exhibit as Figure 3-26. 8 Now, comparing map 214-208-3349 and the 9 protrusion to the west in township 20 south, 16 east, 10 there does not appear to be a similar protrusion on Figure 11 3-26; is that correct? 12 MS. HEFFLER-SCOTT: Not that I can see, that would 13 be correct, yes. 14 MR. BIRMINGHAM: So, in fact, comparing the two maps 15 it appears that some of the lands that are identified as 16 encroachment lands on Figure 3-26 are, in fact, within the 17 place of use that is depicted on map 214-208-3349; is that 18 correct? 19 MS. HEFFLER-SCOTT: Well, from looking at the maps 20 it would appear that's correct, because I don't see the -- 21 MR. BIRMINGHAM: The protrusion? 22 MS. HEFFLER-SCOTT: -- protrusion on the map that's 23 in the DEIR. 24 MR. BIRMINGHAM: Now, going back to your direct 25 testimony in response to questions that, none of which CAPITOL REPORTERS (916) 923-5447 13513 1 were leading by Mr. Turner, you testified that the process 2 that was used to convert the place of use maps to the 3 figures that appear in the Draft Environmental Impact 4 Report, Exhibit 2, wasn't very technical the way it was 5 done. 6 Do you recall using those words? 7 MS. HEFFLER-SCOTT: Yes -- 8 MR. JACKSON: Mr. Stubchaer, I'm going to object at 9 this point to this line of questioning. We're clearly 10 outside this witness' expertise. We're going to have the 11 person that actually did this testify later. And it seems 12 to me that at this point these questions call for 13 speculation and are outside this witness' expertise. 14 C.O. STUBCHAER: Mr. Jackson, I thought the witness 15 gave a pretty good explanation how these maps were 16 prepared and I'm going to overrule the objection. 17 MR. BIRMINGHAM: Now, when you said, "That it wasn't 18 very technical, the way it was done," what did you mean by 19 that? 20 MS. HEFFLER-SCOTT: What I meant was you had someone 21 taking a map, blowing up, enlarging a certain section of 22 that map and then taking that and hand drawing it onto a 23 quadrangle map. And they hand draw -- a lot of it was 24 done by sight and by guess. So it wasn't really, I would 25 not think, very precise in the way it was done. That's CAPITOL REPORTERS (916) 923-5447 13514 1 what I meant. 2 MR. BIRMINGHAM: So the way in which the figures 3 contained in the Draft Environmental Impact Report, 4 Exhibit 2 depicting place of use, wasn't very precise? 5 MS. HEFFLER-SCOTT: It wasn't very precise in that 6 there was no legal definition or legal boundaries by which 7 it was transposed, yes. 8 MR. BIRMINGHAM: Now, I'd like to go back to the 9 examination of Ms. Rupp, or the testimony of Ms. Rupp when 10 she was testifying about the preparation of the figures in 11 the Draft Environmental Impact Report and the map -- 12 MR. JACKSON: I'm going to object again. I mean 13 we're now asking this witness to testify in regard to the 14 testimony that she didn't hear by a witness who is here -- 15 if you'd like to call her. 16 C.O. STUBCHAER: I'm going to sustain the objection. 17 MR. BIRMINGHAM: There's no question pending. 18 C.O. STUBCHAER: Okay. 19 MR. BIRMINGHAM: I don't understand, Mr. Stubchaer, 20 how there could be an objection to a nonquestion. 21 C.O. STUBCHAER: Well, the reference I guess was 22 there. 23 MR. BIRMINGHAM: Let's get to the -- 24 C.O. STUBCHAER: It appeared like it was going to be 25 outside the scope of the rebuttal, because that witness CAPITOL REPORTERS (916) 923-5447 13515 1 didn't testify. 2 Go ahead and ask the question. 3 MR. BIRMINGHAM: In fact, Ms. Rupp did testify as to 4 the way these maps were prepared. And she was not as well 5 informed as Ms. Heffler-Scott. And I understand that this 6 witness has been presented by Mr. Turner to provide 7 further detail as to how the maps were prepared, but I'll 8 ask my question. 9 C.O. STUBCHAER: Can you ask your question without 10 reference to the previous testimony? 11 MR. BIRMINGHAM: I would imagine that I can. 12 The process that was followed in -- well, let me 13 ask the question differently. 14 Was the process followed to create the figures 15 contained in State Water Resources Control Board Exhibit 2 16 a process that was intended to identify precisely the 17 areas within the service -- or the place of use 18 attached -- depicted on the maps listed on South Delta 19 Water Agency Exhibit 58? 20 MS. HEFFLER-SCOTT: I'm not sure I know what you 21 mean by "precisely." Without having any legal description 22 by which to go by, I would have to assume that it wasn't 23 precise. 24 MR. BIRMINGHAM: And do I understand the concern of 25 the Bureau of Reclamation and part of the reason that its CAPITOL REPORTERS (916) 923-5447 13516 1 filed the subject petition to conform the place of use is 2 because there is no legal description that can be used to 3 identify, with precision, lands that are within the place 4 of use and lands that are outside the place of use? 5 MR. TURNER: Again, I have to object to the scope of 6 these questions. He's talking now about the substance of 7 the maps and not the manner in which they were prepared. 8 And I fail to see where this is within the expertise of 9 this particular witness. 10 MR. BIRMINGHAM: Then, what I would like to do is 11 I'd like to ask Mr. Turner to produce this witness during 12 the rebuttal case that Westlands intends to present during 13 the later portion of this case. 14 C.O. STUBCHAER: You may make that request. 15 MR. BIRMINGHAM: I am making that request. 16 MR. JACKSON: Mr. Stubchaer, my objection is 17 slightly different and it is that the State Board has 18 these maps in their files. And they are exhibits in this 19 case. They have the originals in their files. And I 20 would object to this under the best evidence rule when we 21 already have the original maps in the files. Why are we 22 dealing with these? 23 C.O. STUBCHAER: Time-out. 24 (Off the record from 3:39 p.m. to 3:40 p.m.) 25 C.O. STUBCHAER: Back on the record. Mr. Pettit was CAPITOL REPORTERS (916) 923-5447 13517 1 just suggesting to me that we bring down the maps that 2 were filed with the permits on Tuesday, the 20th, when we 3 meet next. We'll put them up on the wall and those are 4 the maps that really count. 5 And, Mr. Pettit, did you want to add to that? 6 MR. PETTIT: No. I was just going to say I don't 7 know if it's applicable here, but there have been 8 occasions, too, when, as a result of the hearing process, 9 on applications when a place of use was changed as a 10 result of the hearing process. And the map that was 11 originally filed was not exactly the same as the final 12 permit map. 13 And my point to Mr. Stubchaer was: Regardless of 14 how these maps were transferred to reproduce them in the 15 EIR or anything, there are, upstairs, copies of what we 16 have stamped with a permit number on them. And those are 17 the actual permit maps for these applications. And it 18 seems like we're spending a lot of time without looking at 19 what I think Mr. Jackson was just alluding to, which is 20 the actual permit maps for these applications. So it 21 might be worth bringing those things down here so we can 22 look at them. 23 MR. TURNER: If I might respond. I think that 24 Mr. Pettit, obviously, has the very best suggestion. The 25 reason that these maps are being produced is because it CAPITOL REPORTERS (916) 923-5447 13518 1 was being stated by the other parties that they could not 2 get their hands-on and see the maps that were attached to 3 the permits, how are we supposed to know what they look 4 like? 5 So that's why we had offered to produce the best 6 evidence that we have in our files. To reflect, if the 7 maps are, in fact, available I would suggest that we can 8 return these to the Bureau files and just ignore them. 9 MR. PETTIT: I didn't mean to be critical of your 10 effort either. 11 MR. TURNER: No, I realize that. 12 MR. PETTIT: But there had to be some process to 13 convert these maps that we have in the files to something 14 reproduceable in the volume of the Draft EIR. But at the 15 point we've gotten to now, I think it might be worthwhile 16 to actually look at the maps that have a permit number on 17 them. 18 C.O. STUBCHAER: Mr. Herrick. 19 MR. HERRICK: I appreciate Mr. Pettit's suggestion. 20 The reason that these were important to me is it is my 21 understanding that the maps attached in the files were not 22 the ones that were used that resulted in the EIR. So if 23 there are differences, the EIR has examined the 24 difference, not the true map. 25 MR. PETTIT: That's another things that can be CAPITOL REPORTERS (916) 923-5447 13519 1 verified, because as Ms. Heffler-Scott has explain the 2 Bureau used their copy of what should be the actual maps, 3 we can compare those with the ones we have on the file 4 that are, as I say, stamped with the permit number on 5 them. 6 MR. HERRICK: If Mr. -- I forgot his name, 7 Mr. Sabhat? 8 MS. HEFFLER-SCOTT: Sabhat. 9 MR. HERRICK: Sabhat, I think my questions would be 10 better for him. I think we have an understanding of how 11 this got to where it is now. 12 C.O. STUBCHAER: Mr. Jackson. 13 MR. JACKSON: I believe that both sets of maps are 14 relevant for different reasons. I believe the State Board 15 maps are the best evidence of what the place of use is, as 16 amended by orders. And I've seen them in the files and 17 I've been relying on them. 18 What I have heard in the course of this process 19 is that the State Board's EIR was prepared from the 20 Bureau's maps. So I believe that both are relevant at 21 this point and need to be compared. 22 C.O. STUBCHAER: That would -- Mr. Nomellini, we'll 23 get to you. 24 Mr. Atlas. 25 MR. ATLAS: For clarification then, what we'll see CAPITOL REPORTERS (916) 923-5447 13520 1 on the 20th are the permit maps which will define the 2 current place of use for that area, right? 3 C.O. STUBCHAER: That's the intent, yes. 4 MR. ATLAS: Okay. Thank you. 5 C.O. STUBCHAER: Okay. 6 Now, Mr. Nomellini. 7 MR. NOMELLINI: Yeah. I'd like to support the 8 discussion and argument by Mr. Jackson that both sets of 9 maps are necessary. The official map which displays what 10 was the approved place of use should be in the control of 11 the Board. And that should be available to us. It was 12 referenced in the staff -- as a Staff Exhibit. 13 Mr. Herrick and Mr. Jackson and I went up to the 14 official files and looked, and I might alert you that if 15 there are official maps there, they're probably not in the 16 files. They may have been extracted for other purposes in 17 part. We did find a couple of maps. 18 One of the maps was a -- kind of a cut up of a 19 legal -- you know, it looked like they used the Xerox 20 machine to copy it. I doubt that that was the type of 21 machine that was available back at the time of the filing. 22 So I'm just alerting you on that. 23 I think it is necessary to deal with the maps 24 that the Bureau brought to the extent that they're the 25 maps that the environmental document was based on. Just CAPITOL REPORTERS (916) 923-5447 13521 1 bringing the maps down and posting them here, it's going 2 to be difficult for us to get a handle on these things 3 without getting copies, sitting down spending a little 4 time looking at them. 5 The size of the line alone, on some of the -- on 6 the maps the Bureau produced, in some cases, looks like -- 7 if you look at the scale -- could be as much as a quarter 8 of a mile or a tenth of a mile. In other case, it may be 9 even as much as a mile in width. 10 The environmental impact and the implications on 11 the differences just in how we treat the line could make a 12 big difference from the environmental standpoint and, of 13 course, a tremendous difference to a landowner in or out. 14 So I raise that in advance, but I don't think we're going 15 to be able to hurry through it. I think we have a little 16 struggle here on this map. 17 C.O. STUBCHAER: Thank you for your comments, all of 18 you. I think they're constructive -- 19 MR. HERRICK: Mr. Chairman, may I add one thing? 20 C.O. STUBCHAER: Yes. Go ahead. 21 MR. HERRICK: I count according to this sheet, that 22 is now South Delta 58, 13 maps. I haven't counted, were 23 there 13 maps that were produced? 24 MR. NOMELLINI: You better go through them and make 25 sure you've got them. CAPITOL REPORTERS (916) 923-5447 13522 1 C.O. STUBCHAER: Some of those, as you know, 2 Mr. Herrick, they are three rolled together. 3 MR. HERRICK: Correct. But just counting the map 4 numbers, there are 13 different map numbers. So I just 5 wanted to make sure there's copies of those 13. 6 MS. HEFFLER-SCOTT: On the list I have, what the 7 maps that were presented there are 13 maps listed. 8 MR. HERRICK: Thank you. Sorry for interrupting. 9 C.O. STUBCHAER: We'll have a brief pause. 10 MR. KEENE: Mr. Stubchaer, let me take an 11 opportunity during the brief pause to thank the Bureau for 12 their cooperation in producing the maps and in producing 13 the witnesses at my request. 14 C.O. STUBCHAER: Yes. 15 MR. KEENE: And I apologize for any upset that that 16 may have caused, but I believe it's part of the process. 17 C.O. STUBCHAER: Yes, I appreciate the efforts of 18 the Bureau, too. And it's become apparent to me in 19 looking at theses different maps, it's not the gross 20 areas, it's the margins that become important. And it can 21 make a huge differences, whether it is a mile off one way 22 or the other. 23 And so we'll have to do the best we can. And I 24 also appreciate the explanation of how the boundaries were 25 transferred, because there's a lot of steps there, the CAPITOL REPORTERS (916) 923-5447 13523 1 paper shrinks and it swells and so forth. 2 Mr. Pettit, did you gain any information? 3 MR. PETTIT: Yes. That was helpful in response to 4 Mr. Nomellini's comments. I thought that maybe this 5 process would, at least, help narrow down, or focus some 6 of the discussion so we can decide whether we're arguing 7 about the thickness of the line as opposed to whether two 8 or three counties were left out or something and maybe 9 focus in on the discussion on how much difference there is 10 and which is attributable to drafting transfers as opposed 11 to whether there was actually an attempt to include or 12 excluded big areas. 13 MR. NOMELLINI: Well, what's going to happen, in my 14 judgment, is we're going to all -- all the active 15 participants here are going to want copies of the official 16 maps. So when you locate them, wherever they are, be 17 thoughtful of the next step that's going to occur. We're 18 all going to need those, of course, when we order the 19 transcript at the end of proceeding. 20 MR. BIRMINGHAM: And I understand Mr. Nomellini's 21 comments to be a Public Records Act request, for which he 22 will pay to have them reproduced. 23 MR. NOMELLINI: I'll help pay for my share for sure. 24 MR. PETTIT: And I'll have to put a caveat on my 25 offer to bring them down here, because I have not been in CAPITOL REPORTERS (916) 923-5447 13524 1 those maps drawers in several years. 2 C.O. STUBCHAER: Mr. Canaday, did you want to say 3 something? 4 MR. CANADAY: They're there. 5 C.O. STUBCHAER: I wonder if the Bureau would loan 6 us their apature camera. 7 MR. TURNER: Do we still have one? 8 MS. HEFFLER-SCOTT: I don't think we have one 9 anymore. 10 C.O. STUBCHAER: Okay. It sounds like we're just 11 about through for the day. 12 Mr. Turner. 13 MR. TURNER: I was going to make the same 14 suggestion, Mr. Stubchaer, Don Bultema is here to present 15 the rebuttal testimony for the Bureau, but I was going to 16 suggest that even though he and I might be able to get 17 through in 15 minutes, that it would probably be better 18 for the rest of the attendees to be able to cross-examine 19 him after his direct in lieu of having to try and retain 20 it for ten days or whatever. 21 So I'll try and arrange to have Mr. Bultema back 22 on Tuesday along with Mr. Sabhat. And then we'll try to 23 proceed at that point, if that's acceptable. 24 C.O. STUBCHAER: Thank you. 25 Mr. Birmingham. CAPITOL REPORTERS (916) 923-5447 13525 1 MR. BIRMINGHAM: For purposes of planning, could I 2 request that the Board inquire as to the number of parties 3 intending on presenting a rebuttal case? 4 C.O. STUBCHAER: The parties who intend to present 5 rebuttal in this phase, please, identify themselves. 6 Let's see, one, two, three, four, -- I can't see behind 7 you, five. 8 Mr. Atlas? 9 MR. ATLAS: No. 10 C.O. STUBCHAER: All right, five. 11 MR. NOMELLINI: Mr. Herrick and I will attempt to 12 have one rebuttal case. 13 MR. BIRMINGHAM: And Mr. Conant, on behalf of Del 14 Puerto and Arvin-Edison, indicated that he would be 15 interested in presenting a rebuttal case, maybe. 16 C.O. STUBCHAER: So that gives us seven, unless 17 there's -- well, if we combine those, six. Okay. 18 MR. BIRMINGHAM: And do I understand, Mr. Stubchaer, 19 that the order of presentation will be the same as the 20 order for the cases in chief? 21 C.O. STUBCHAER: It will be the same as listed in 22 the notice, not necessarily the order in which it was 23 actually presented, because we took some out of order as 24 you recall. 25 MR. BIRMINGHAM: Yes. Thank you. CAPITOL REPORTERS (916) 923-5447 13526 1 C.O. STUBCHAER: And Ms. Leidigh. Time-out a 2 minute. 3 (Off the record from 3:52 p.m. to 3:53 p.m.) 4 C.O. STUBCHAER: Regarding the copies of the permit 5 maps, we will make copies and charge you if that meets 6 with you. And we will try and do that as soon as possible 7 and let you know, because I recognize -- thank you, 8 Ms. Leidigh, for that suggestion. 9 MR. NOMELLINI: Do you want to know how many people 10 want sets. 11 MR. ATLAS: On the record. 12 MS. LEIDIGH: Yes. 13 C.O. STUBCHAER: And I would guess that not since 14 not everyone is here, all the parties who wants sets 15 wouldn't be able to identify themselves. 16 Anyway, let's see how many people -- 17 MR. HERRICK: The important people are here. 18 MR. NOMELLINI: Yeah. 19 C.O. STUBCHAER: Let's see, one two, three, four, 20 five, six, seven -- okay. Anything else? 21 MR. ATLAS: Could we have the Reporter read back, 22 or, perhaps, the Chair has the list of rebuttal cases, 23 those who are going to offer rebuttal. 24 C.O. STUBCHAER: I just counted, we didn't identify 25 them all. CAPITOL REPORTERS (916) 923-5447 13527 1 MR. ATLAS: Thank you. 2 C.O. STUBCHAER: We will be adjourned until 3 9:00 a.m. on Tuesday, April 20th. 4 (The proceedings concluded at 3:55 p.m.) 5 ---oOo--- 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 13528 1 REPORTER'S_CERTIFICATE __________ ___________ 2 3 STATE OF CALIFORNIA ) ) ss. 4 COUNTY OF SACRAMENTO ) 5 I, MARY R. GALLAGHER, certify that I was the 6 Official Court Reporter for the proceedings named herein, 7 and that as such reporter I reported in verbatim shorthand 8 writing those proceedings; that I thereafter caused my 9 shorthand writing to be reduced to typewriting, and the 10 pages numbered 13321 through 13528 herein constitute a 11 complete, true and correct record of the proceedings. 12 IN WITNESS WHEREOF, I have subscribed this 13 certificate at Sacramento, California, on this 17th day of 14 April, 1999. 15 16 ________________________________ MARY R. GALLAGHER, CSR #10749 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 13529