STATE WATER RESOURCES CONTROL BOARD PUBLIC HEARING 1998 BAY-DELTA WATER RIGHTS HEARING HELD AT: BONDERSON BUILDING 901 P STREET SACRAMENTO, CALIFORNIA TUESDAY, APRIL 20, 1999 9:00 A.M. Reported by: ESTHER F. WIATRE CSR NO. 1564 CAPITOL REPORTERS (916) 923-5447 1 APPEARANCES BOARD MEMBERS: 2 JAMES STUBCHAER, COHEARING OFFICER 3 JOHN W. BROWN, COHEARING OFFICER MARY JANE FORSTER 4 STAFF MEMBERS: 5 WALTER PETTIT, EXECUTIVE DIRECTOR 6 VICTORIA WHITNEY, CHIEF BAY-DELTA UNIT THOMAS HOWARD, SUPERVISING ENGINEER 7 JAMES CANADY, ENVIRONMENTAL SPECIALIST 8 DAVID CORNELIUS, SENIOR CONTROL ENGINEER 9 COUNSEL: 10 WILLIAM R. ATTWATER, CHIEF COUNSEL 11 BARBARA LEIDIGH 12 ---oOo--- 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 PRINCETON CODORA GLENN IRRIGATION DISTRICT, et al.: 3 FROST, DRUP & ATLAS 134 West Sycamore Street 4 Willows, California 95988 BY: J. MARK ATLAS, ESQ. 5 JOINT WATER DISTRICTS: 6 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON: 7 P.O. BOX 1679 Oroville, California 95965 8 BY: WILLIAM H. BABER III, ESQ. 9 CALIFORNIA SPORTFISHING PROTECTION ALLIANCE: 10 ROBERT J. BAIOCCHI P.O. Box 357 11 Quincy, California 12 BELLA VISTA WATER DISTRICT: 13 BRUCE L. BELTON, ESQ. 2525 Park Marina Drive, Suite 102 14 Redding, California 96001 15 WESTLANDS WATER DISTRICT: 16 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Capitol Mall, 27th Floor 17 Sacramento, California 95814 BY: THOMAS W. BIRMINGHAM, ESQ. 18 and JON ROBIN, ESQ. 19 THE BAY INSTITUTE OF SAN FRANCISCO: 20 GARY BOBKER 21 55 Shaver Street, Suite 330 San Rafael, California 94901 22 CITY OF ANTIOCH, et al.: 23 FREDERICK BOLD, JR., ESQ. 24 1201 California Street, Suite 1303 San Francisco, California 94109 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 LEAGUE OF WOMEN VOTERS: 3 ROBERTA BORGONOVO 2480 Union Street 4 San Francisco, California 94123 5 UNITED STATES DEPARTMENT OF THE INTERIOR: 6 OFFICE OF THE SOLICITOR 2800 Cottage Way, Room E1712 7 Sacramento, California 95825 BY: ALF W. BRANDT, ESQ. 8 and JAMES TURNER, ESQ. 9 10 CALIFORNIA URBAN WATER AGENCIES: 11 BYRON M. BUCK 455 Capitol Mall, Suite 705 12 Sacramento, California 95814 13 RANCHO MURIETA COMMUNITY SERVICES DISTRICT: 14 MCDONOUGH, HOLLAND & ALLEN 555 Capitol Mall, 9th Floor 15 Sacramento, California 95814 BY: VIRGINIA A. CAHILL, ESQ. 16 CALIFORNIA DEPARTMENT OF FISH AND GAME: 17 OFFICE OF ATTORNEY GENERAL 18 1300 I Street, Suite 1101 Sacramento, California 95814 19 BY: MATTHEW CAMPBELL, ESQ. 20 NATURAL RESOURCES DEFENSE COUNCIL: 21 HAMILTON CANDEE, ESQ. 71 Stevenson Street 22 San Francisco, California 94105 23 24 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 ARVIN-EDISON WATER STORAGE DISTRICT, et al.: 3 DOOLEY HERR & WILLIAMS 3500 West Mineral King Avenue, Suite C 4 Visalia, California 93291 BY: DANIEL M. DOOLEY, ESQ. 5 SACRAMENTO MUNICIPAL UTILITY DISTRICT: 6 LESLIE A. DUNSWORTH, ESQ. 7 6201 S Street Sacramento, California 95817 8 SOUTH SAN JOAQUIN IRRIGATION DISTRICT, et al.: 9 BRAY, GEIGER, RUDQUIST & NUSS 10 311 East Main Street, 4th Floor Stockton, California 95202 11 BY: STEVEN P. EMRICK, ESQ. 12 EAST BAY MUNICIPAL UTILITY DISTRICT: 13 EBMUD OFFICE OF GENERAL COUNSEL 375 Eleventh Street 14 Oakland, California 94623 BY: FRED S. ETHERIDGE, ESQ. 15 GOLDEN GATE AUDUBON SOCIETY: 16 ARTHUR FEINSTEIN 17 2530 San Pablo Avenue, Suite G Berkeley, California 94702 18 CONAWAY CONSERVANCY GROUP: 19 UREMOVIC & FELGER 20 P.O. Box 5654 Fresno, California 93755 21 BY: WARREN P. FELGER, ESQ. 22 THOMES CREEK WATER ASSOCIATION: 23 THOMES CREEK WATERSHED ASSOCIATION P.O. Box 2365 24 Flournoy, California 96029 BY: LOIS FLYNNE 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 COURT APPOINTED REPS OF WESTLANDS WD AREA 1, et al.: 3 LAW OFFICES OF SMILAND & KHACHIGIAN 601 West Fifth Street, Seventh Floor 4 Los Angeles, California 90075 BY: CHRISTOPHER G. FOSTER, ESQ. 5 CITY AND COUNTY OF SAN FRANCISCO: 6 OFFICE OF THE CITY ATTORNEY 7 1390 Market Street, Sixth Floor San Francisco, California 94102 8 BY: DONN W. FURMAN, ESQ. 9 CAMP FAR WEST IRRIGATION DISTRICT, et al.: 10 DANIEL F. GALLERY, ESQ. 926 J Street, Suite 505 11 Sacramento, California 95814 12 BOSTON RANCH COMPANY, et al.: 13 J.B. BOSWELL COMPANY 101 West Walnut Street 14 Pasadena, California 91103 BY: EDWARD G. GIERMANN 15 SAN JOAQUIN RIVER GROUP AUTHORITY, et al.: 16 GRIFFTH, MASUDA & GODWIN 17 517 East Olive Street Turlock, California 95381 18 BY: ARTHUR F. GODWIN, ESQ. 19 NORTHERN CALIFORNIA WATER ASSOCIATION: 20 RICHARD GOLB 455 Capitol Mall, Suite 335 21 Sacramento, California 95814 22 PLACER COUNTY WATER AGENCY, et al.: 23 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Capitol Mall, 27th Floor 24 Sacramento, California 95814 BY: JANET GOLDSMITH, ESQ. 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 ENVIRONMENTAL DEFENSE FUND: 3 DANIEL SUYEYASU, ESQ. and 4 THOMAS J. GRAFF, ESQ. 5655 College Avenue, Suite 304 5 Oakland, California 94618 6 CALAVERAS COUNTY WATER DISTRICT: 7 SIMON GRANVILLE P.O. Box 846 8 San Andreas, California 95249 9 CHOWCHILLA WATER DISTRICT, et al.: 10 GREEN, GREEN & RIGBY P.O. Box 1019 11 Madera, California 93639 BY: DENSLOW GREEN, ESQ. 12 CALIFORNIA FARM BUREAU FEDERATION: 13 DAVID J. GUY, ESQ. 14 2300 River Plaza Drive Sacramento, California 95833 15 SANTA CLARA VALLEY WATER DISTRICT: 16 MORRISON & FORESTER 17 755 Page Mill Road Palo Alto, California 94303 18 BY: KEVIN T. HAROFF, ESQ. 19 CITY OF SHASTA LAKE: 20 ALAN N. HARVEY P.O. Box 777 21 Shasta Lake, California 96019 22 COUNTY OF STANISLAUS: 23 MICHAEL G. HEATON, ESQ. 926 J Street 24 Sacramento, California 95814 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 GORRILL LAND COMPANY: 3 GORRILL LAND COMPANY P.O. Box 427 4 Durham, California 95938 BY: DON HEFFREN 5 SOUTH DELTA WATER AGENCY: 6 JOHN HERRICK, ESQ. 7 3031 West March Lane, Suite 332 East Stockton, California 95267 8 COUNTY OF GLENN: 9 NORMAN Y. HERRING 10 525 West Sycamore Street Willows, California 95988 11 REGIONAL COUNCIL OF RURAL COUNTIES: 12 MICHAEL B. JACKSON, ESQ. 13 1020 Twelfth Street, Suite 400 Sacramento, California 95814 14 DEER CREEK WATERSHED CONSERVANCY: 15 JULIE KELLY 16 P.O. Box 307 Vina, California 96092 17 DELTA TRIBUTARY AGENCIES COMMITTEE: 18 MODESTO IRRIGATION DISTRICT 19 P.O. Box 4060 Modesto, California 95352 20 BY: BILL KETSCHER 21 SAVE THE SAN FRANCISCO BAY ASSOCIATION: 22 SAVE THE BAY 1736 Franklin Street 23 Oakland, California 94612 BY: CYNTHIA L. KOEHLER, ESQ. 24 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 BATTLE CREEK WATERSHED LANDOWNERS: 3 BATTLE CREEK WATERSHED CONSERVANCY P.O. Box 606 4 Manton, California 96059 5 BUTTE SINK WATERFOWL ASSOCIATION, et al.: 6 MARTHA H. LENNIHAN, ESQ. 455 Capitol Mall, Suite 300 7 Sacramento, California 95814 8 CITY OF YUBA CITY: 9 WILLIAM P. LEWIS 1201 Civic Center Drive 10 Yuba City 95993 11 BROWNS VALLEY IRRIGATION DISTRICT, et al.: 12 BARTKEWICZ, KRONICK & SHANAHAN 1011 22nd Street, Suite 100 13 Sacramento, California 95816 BY: ALAN B. LILLY, ESQ. 14 CONTRA COSTA WATER DISTRICT: 15 BOLD, POLISNER, MADDOW, NELSON & JUDSON 16 500 Ygnacio Valley Road, Suite 325 Walnut Creek, California 94596 17 BY: ROBERT B. MADDOW, ESQ. 18 GRASSLAND WATER DISTRICT: 19 DON MARCIOCHI 22759 South Mercey Springs Road 20 Los Banos, California 93635 21 SAN LUIS CANAL COMPANY: 22 FLANNIGAN, MASON, ROBBINS & GNASS 3351 North M Street, Suite 100 23 Merced, California 95344 BY: MICHAEL L. MASON, ESQ. 24 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 STONY CREEK BUSINESS AND LAND OWNERS COALITION: 3 R.W. MCCOMAS 4150 County Road K 4 Orland, California 95963 5 TRI-DAM POWER AUTHORITY: 6 TUOLUMNE UTILITIES DISTRICT P.O. Box 3728 7 Sonora, California 95730 BY: TIM MCCULLOUGH 8 DELANO-EARLIMART IRRIGATION DISTRICT, et al.: 9 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 10 P.O. Box 1679 Oroville, California 95965 11 BY: JEFFREY A. MEITH, ESQ. 12 HUMANE FARMING ASSOCIATION: 13 BRADLEY S. MILLER 1550 California Street, Suite 6 14 San Francisco, California 94109 15 CORDUA IRRIGATION DISTRICT, et al.: 16 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 17 Oroville, California 95965 BY: PAUL R. MINASIAN, ESQ. 18 EL DORADO COUNTY WATER AGENCY: 19 DE CUIR & SOMACH 20 400 Capitol Mall, Suite 1900 Sacramento, California 95814 21 BY: DONALD B. MOONEY, ESQ. 22 GLENN COUNTY FARM BUREAU: 23 STEVE MORA 501 Walker Street 24 Orland, California 95963 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 MODESTO IRRIGATION DISTRICT: 3 JOEL MOSKOWITZ P.O. Box 4060 4 Modesto, California 95352 5 PACIFIC GAS & ELECTRIC: 6 RICHARD H. MOSS, ESQ. P.O. Box 7442 7 San Francisco, California 94120 8 CENTRAL DELTA WATER AGENCY, et al.: 9 NOMELLINI, GRILLI & MCDANIEL P.O. Box 1461 10 Stockton, California 95201 BY: DANTE JOHN NOMELLINI, ESQ. 11 and DANTE JOHN NOMELLINI, JR., ESQ. 12 TULARE LAKE BASIN WATER STORAGE UNIT: 13 MICHAEL NORDSTROM 14 1100 Whitney Avenue Corcoran, California 93212 15 AKIN RANCH, et al.: 16 DOWNEY, BRAND, SEYMOUR & ROHWER 17 555 Capitol Mall, 10th Floor Sacramento, California 95814 18 BY: KEVIN M. O'BRIEN, ESQ. 19 OAKDALE IRRIGATION DISTRICT: 20 O'LAUGHLIN & PARIS 870 Manzanita Court, Suite B 21 Chico, California 95926 BY: TIM O'LAUGHLIN, ESQ. 22 SIERRA CLUB: 23 JENNA OLSEN 24 85 Second Street, 2nd Floor San Francisco, California 94105 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 YOLO COUNTY BOARD OF SUPERVISORS: 3 LYNNEL POLLOCK 625 Court Street 4 Woodland, California 95695 5 PATRICK PORGANS AND ASSOCIATES: 6 PATRICK PORGANS P.O. Box 60940 7 Sacramento, California 95860 8 BROADVIEW WATER DISTRICT, et al.: 9 DIANE RATHMANN 10 FRIENDS OF THE RIVER: 11 BETSY REIFSNIDER 128 J Street, 2nd Floor 12 Sacramento, California 95814 13 MERCED IRRIGATION DISTRICT: 14 FLANAGAN, MASON, ROBBINS & GNASS P.O. Box 2067 15 Merced, California 95344 BY: KENNETH M. ROBBINS, ESQ. 16 CENTRAL SAN JOAQUIN WATER CONSERVATION DISTRICT: 17 REID W. ROBERTS, ESQ. 18 311 East Main Street, Suite 202 Stockton, California 95202 19 METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA: 20 JAMES F. ROBERTS 21 P.O. Box 54153 Los Angeles, California 90054 22 SACRAMENTO AREA WATER FORUM: 23 CITY OF SACRAMENTO 24 980 9th Street, 10th Floor Sacramento, California 95814 25 BY: JOSEPH ROBINSON, ESQ. CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 TUOLUMNE RIVER PRESERVATION TRUST: 3 NATURAL HERITAGE INSTITUTE 114 Sansome Street, Suite 1200 4 San Francisco, California 94194 BY: RICHARD ROOS-COLLINS, ESQ. 5 CALIFORNIA DEPARTMENT OF WATER RESOURCES: 6 DAVID SANDINO, ESQ. 7 CATHY CROTHERS, ESQ. P.O. Box 942836 8 Sacramento, California 94236 9 FRIANT WATER USERS AUTHORITY: 10 GARY W. SAWYERS, ESQ. 575 East Alluvial, Suite 101 11 Fresno, California 93720 12 KERN COUNTY WATER AGENCY: 13 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Capitol Mall, 27th Floor 14 Sacramento, California 95814 BY: CLIFFORD W. SCHULZ, ESQ. 15 SAN JOAQUIN RIVER EXCHANGE CONTRACTORS: 16 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON: 17 P.O. Box 1679 Oroville, California 95965 18 BY: MICHAEL V. SEXTON, ESQ. 19 SAN JOAQUIN COUNTY: 20 NEUMILLER & BEARDSLEE P.O. Box 20 21 Stockton, California 95203 BY: THOMAS J. SHEPHARD, SR., ESQ. 22 CITY OF STOCKTON: 23 DE CUIR & SOMACH 24 400 Capitol Mall, Suite 1900 Sacramento, California 95814 25 BY: PAUL S. SIMMONS, ESQ. CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 ORLAND UNIT WATER USERS' ASSOCIATION: 3 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 4 Oroville, California 95965 BY: M. ANTHONY SOARES, ESQ. 5 GLENN-COLUSA IRRIGATION DISTRICT: 6 DE CUIR & SOMACH 7 400 Capitol Mall, Suite 1900 Sacramento, California 95814 8 BY: STUART L. SOMACH, ESQ. 9 NORTH SAN JOAQUIN WATER CONSERVATION DISTRICT: 10 JAMES F. SORENSEN CONSULTING CIVIL ENGINEER, INC. 209 South Locust Street 11 Visalia, California 93279 BY: JAMES F. SORENSEN 12 PARADISE IRRIGATION DISTRICT: 13 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 14 P.O. Box 1679 Oroville, California 95695 15 BY: WILLIAM H. SPRUANCE, ESQ. 16 COUNTY OF COLUSA: 17 DONALD F. STANTON, ESQ. 1213 Market Street 18 Colusa, California 95932 19 COUNTY OF TRINITY: 20 COUNTY OF TRINITY - NATURAL RESOURCES P.O. Box 156 21 Hayfork, California 96041 BY: TOM STOKELY 22 CITY OF REDDING: 23 JEFFERY J. SWANSON, ESQ. 24 2515 Park Marina Drive, Suite 102 Redding, California 96001 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 TULARE IRRIGATION DISTRICT: 3 TEHAMA COUNTY RESOURCE CONSERVATION DISTRICT 2 Sutter Street, Suite D 4 Red Bluff, California 96080 BY: ERNEST E. WHITE 5 STATE WATER CONTRACTORS: 6 BEST BEST & KREIGER 7 P.O. Box 1028 Riverside, California 92502 8 BY: ERIC GARNER, ESQ. 9 COUNTY OF TEHAMA, et al.: 10 COUNTY OF TEHAMA BOARD OF SUPERVISORS: P.O. Box 250 11 Red Bluff, California 96080 BY: CHARLES H. WILLARD 12 MOUNTAIN COUNTIES WATER RESOURCES ASSOCIATION: 13 CHRISTOPHER D. WILLIAMS 14 P.O. Box 667 San Andreas, California 95249 15 JACKSON VALLEY IRRIGATION DISTRICT: 16 HENRY WILLY 17 6755 Lake Amador Drive Ione, California 95640 18 SOLANO COUNTY WATER AGENCY, et al.: 19 HERUM, CRABTREE, DYER, ZOLEZZI & TERPSTRA 20 2291 West March Lane, S.B.100 Stockton, California 95207 21 BY: JEANNE M. ZOLEZZI, ESQ. 22 WESTLANDS ENCROACHMENT AND EXPANSION LANDOWNERS: 23 BAKER, MANOCK & JENSEN 5260 North Palm Avenue 24 Fresno, Califonria 93704 BY: CHRISTOPHER L. CAMPBELL, ESQ. 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 SAN LUIS WATER DISTRICT: 3 LINNEMAN, BURGES, TELLES, VANATTA & VIERRA 1820 Marguerite Street 4 Dos Palos, California 93620 BY: THOMAS J. KEENE, ESQ. 5 6 ---oOo--- 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 1 INDEX 2 PAGE 3 RESUMPTION OF HEARING: 13547 4 AFTERNOON SESSION: 13634 5 6 DEPARTMENT OF THE INTERIOR: MICHAEL SEBHAT: 7 DIRECT EXAMINATION - REBUTTAL: BY MR. TURNER 13551 8 CROSS-EXAMINATION: BY MR. KEENE 13556 9 BY MR. C. CAMPBELL 13570 BY MR. HERRICK 13576 10 BY MR. MOONEY 13587 BY MR NOMELLINI 13592 11 REDIRECT EXAMINATION: BY MR. TURNER 13609 12 RECROSS-EXAMINATION: BY MR. NOMELLINI 13611 13 BY STAFF 13612 DONALD BULTEMA: 14 DIRECT EXAMINATION - REBUTTAL: BY MR. TURNER 13617 15 CROSS-EXAMINATION: BY MR. ATLAS 13634 16 BY MR. HERRICK 13675 BY MR. BIRMINGHAM 13678 17 SOUTH DELTA WATER AGENCY: 18 CHRISTOPHER H. NEUDECK: DIRECT EXAMINATION - REBUTTAL: 19 BY MR. HERRICK 13707 CROSS-EXAMINATION: 20 BY MR. ATLAS 13714 BY MR. BIRMINGHAM 13715 21 BY MR. HAROFF 13719 BY BOARD MEMBERS 13722 22 ---oOo--- 23 24 25 CAPITOL REPORTERS (916) 923-5447 1 SACRAMENTO, CALIFORNIA 2 TUESDAY, APRIL 20, 1999 3 ---oOo--- 4 C.O. STUBCHAER: Morning. We will reconvene the 5 Bay-Delta Water Rights Hearing. 6 I would like to go over some housekeeping matters 7 before we get into testimony. 8 How many parties intend to present rebuttal in this 9 case? 10 C.O. BROWN: Birmingham, Turner, Herrick and Atlas. 11 C.O. STUBCHAER: Anyone else? 12 And then, as I recall, Mr. Turner, you were bringing 13 two witnesses in today regarding the GIS system. Is my 14 memory correct? 15 MR. TURNER: I have one further witness. We will be 16 explaining how the GIS maps were, in fact, prepared, based 17 upon what Gale Heffler had testified before as to how they 18 prepared the USGS plat maps. He will pick up from there and 19 explain what was done with that to develop the GIS maps from 20 her. 21 C.O. STUBCHAER: And, then, we have a petition -- a 22 motion, not a petition, a motion for continuance in Phase 23 VII rebuttal from Mr. Conant, saying that because, 24 paraphrasing, because the maps were recently received, 25 asking for a seven-days' continuance. CAPITOL REPORTERS (916) 923-5447 13547 1 Are there any comments on this motion anyone wishes to 2 make? 3 Mr. Birmingham. 4 MR. BIRMINGHAM: Good morning. This was a motion that 5 was filed by Arvin-Edison Water Storage District, Del Puerto 6 Water District and Westlands Water District. And the basis 7 of the motion was accurately stated by the Chair. 8 We only received on Friday the maps that Mr. Herrick 9 had copied. Those, as you may recall, were maps provided by 10 the Bureau. We have yet to see the maps that were to be 11 provided by the State Water Resources Control Board and, 12 given the critical nature of the critical relationship 13 between the maps and place of use, we would like to have an 14 opportunity to actually have these maps analyzed. 15 I think each one of the parties that has looked for the 16 maps in the State Board's records will say that when they 17 looked for the maps in the Board's files they were unable to 18 locate them. I know we were unable to locate them. And we 19 would like to have an opportunity to examine the maps before 20 we present our rebuttal case. 21 MR. KEENE: The San Luis District was unaware of the 22 motion but would give it a hardy second. The only reason we 23 are not presenting a rebuttal case, we did not have the 24 opportunity to have the maps examined because, again, 25 nothing -- I don't intend anything negative on Mr. Herrick's CAPITOL REPORTERS (916) 923-5447 13548 1 part. He undertook a difficult task and ended it well, but, 2 unfortunately, the large version of the maps arrived in my 3 office yesterday. I did not have the opportunity for the 4 in-house district staff to review those documents because 5 they arrived at 3:00 in the afternoon. 6 So, I would, on behalf of the San Luis District, like 7 to add our name to that motion. 8 C.O. STUBCHAER: Anyone else? 9 Mr. Herrick. 10 MR. HERRICK: John Herrick, South Delta Water Agency. 11 I know the Chairman's concerns for time are well-taken, 12 but I would have to agree and join in the motion. We copied 13 the ones we could as quickly as we could and sent them out. 14 This is a key issue as to whether or not there is a basis 15 for a line being where it is or two miles off. And to 16 enable everybody to compare the maps that the Bureau 17 provided to us with the State ones and then try to draw 18 conclusions and make arguments and develop other information 19 is going to require a little more time. 20 I would join in with that motion. 21 Thank you. 22 MR. NOMELLINI: Better put us on that motion, in all 23 fairness. 24 Dante John Nomellini for Central Delta Water Agency. 25 I did make the effort to look through the files of the CAPITOL REPORTERS (916) 923-5447 13549 1 Board. John Herrick and Michael Jackson were with me at the 2 time. We had a hard time locating the maps. We didn't know 3 there was a map drawer. We looked in the application files; 4 that is where we were directed. 5 It is not as critical to us, but for those that are 6 most directly affected, in all fairness, they have not had 7 the opportunity. We have not seen the Board maps that came 8 out of the drawers yet ourselves. 9 I would support it in the interest of fairness the 10 additional time for all the parties. 11 Thank you. 12 C.O. STUBCHAER: Any other comments? 13 For the staff, well, to everyone, anticipating that we 14 would be through sooner than -- we had dates reserved for -- 15 we've given up some of those hearing dates. 16 What were those dates, please, from the staff, that we 17 cancelled? 18 MS. LEIDIGH: I think we cancelled the hearing dates in 19 May. 20 C.O. STUBCHAER: So if we defer to the 25th, the motion 21 is -- I am in the wrong month. If we defer to the 27th, 22 that would give us the 27th and the 28th. 23 MS. LEIDIGH: That is right. I don't know if we can 24 get back some of the May hearing dates. We might be able 25 to. CAPITOL REPORTERS (916) 923-5447 13550 1 C.O. STUBCHAER: Is there any legal affect of 2 cancelling those dates from the notice point of view? 3 MS. LEIDIGH: It hasn't been noticed yet. It's just -- 4 they were made available to be calendared for other 5 activities of the Board, but we have not sent out a notice 6 on that. There is no effect legally. 7 C.O. STUBCHAER: Seems to me the least we would do 8 today would be to hear from Mr. Sebhat, if that is your 9 witness, Mr. Turner. 10 MR. TURNER: That's correct. 11 C.O. STUBCHAER: Then we will consider the motion. 12 Mr. Turner. 13 ---oOo--- 14 REBUTTAL TESTIMONY 15 DIRECT EXAMINATION OF THE DEPARTMENT OF THE INTERIOR 16 BY MR. TURNER 17 MR. TURNER: Thank you, Mr. Chairman, James Turner on 18 behalf of the Department of the Interior. 19 I am here today to present Mike Sebhat to present 20 testimony in connection with, let's call it, the later 21 phases of the preparation of the GSI maps that have been 22 included within the Draft Environmental Impact Report. I 23 guess I should begin by saying that Mr. Sebhat has not been 24 here before, so he has not as yet been sworn in. 25 (Oath administered by C.O. Stubchaer.) CAPITOL REPORTERS (916) 923-5447 13551 1 C.O. STUBCHAER: Time-out for the reporter. 2 (Reporter reboots computer.) 3 (Discussion held off record.) 4 C.O. STUBCHAER: We are back on the record. 5 While we were off the record, copies of the State Water 6 Resources Control Board maps were made available to the 7 parties. 8 For purposes of the record, could the staff please tell 9 us what these maps were and perhaps get them an 10 identification number. 11 MR. CORNELIUS: The maps that are in front of you, 12 then, are, running down the index that was provided by the 13 Bureau, copies of the full-size maps that are referenced in 14 the water right permits. So, they are not necessarily those 15 that were actually submitted at the time the application was 16 first received, but those that are referenced in the 17 permits. And there is a total of 14 of them, and there is 18 an index on the front and an index on the back that helps 19 understand what they are. 20 C.O. STUBCHAER: Should we mark them for 21 identification? 22 MR. CORNELIUS: Yes, 183. 23 MS. LEIDIGH: SWRCB 183 is the next in order. 24 C.O. STUBCHAER: Thank you. 25 Now, Mr. Turner. CAPITOL REPORTERS (916) 923-5447 13552 1 MR. TURNER: Thank you, Mr. Chairman. 2 I would like now to call Mike Sebhat as a witness for 3 the Department of the Interior. 4 Mr. Sebhat, could you state and spell your full name 5 for the record. 6 MR. SEBHAT: My name is Michael Sebhat; M-i-c-h-a-e-l 7 S-e-b-h-a-t. 8 MR. TURNER: Mr. Sebhat, by whom are you employed? 9 MR. SEBHAT: I am employed by Anamex Corporation. 10 MR. TURNER: Does Anamex Corporation have a 11 relationship with the Bureau of Reclamation? 12 MR. SEBHAT: Yes. They are currently the firm holding 13 the contract with the GIS consultants. 14 MR. TURNER: What is it that the corporation does for 15 the Bureau? What would be the functions that the 16 corporation performs? 17 MR. SEBHAT: Myself among -- with my staff, we are 18 managing the GIS Service Center at the Bureau of 19 Reclamation. 20 MR. TURNER: What is done at the GIS Service Center? 21 Is that preparing maps? 22 MR. SEBHAT: Preparing GIS databases, maps, performing 23 analysis and doing just about anything that the Bureau might 24 need in terms of digital mapping analysis. 25 MR. TURNER: Very good. CAPITOL REPORTERS (916) 923-5447 13553 1 Could you please advise the Board, give them a quick 2 summary of your educational and work experience? 3 MR. SEBHAT: I have a degree in electrical engineering 4 from Gonzaga University. I did some graduate work at Oregon 5 State University. I have been working as a GIS consultant 6 to the Bureau of Reclamation for 15 years now. 7 MR. TURNER: I take it you were involved in the 8 preparation of the GIS maps that have been included within 9 the Draft Environmental Impact Report that was prepared in 10 connection with this phase of the hearing? 11 MR. SEBHAT: That is correct. 12 MR. TURNER: Last week, Gale Heffler on behalf of the 13 Bureau, testified about the initiation of the preparation of 14 those maps, about the enlargement of the copies of the 15 Bureau maps to try to conform the scales on them and to 16 actually plot the boundary lines on -- I understand it was 17 like a USGS plat map; is that correct, as far as you know, 18 as far as that's where it started? 19 MR. SEBHAT: My involvement in the process began with 20 the maps that were blue-lined copies of USGS copies, 1 to 21 24,000 scale, that also had other information on them: land 22 classification, soils, and there was some lines that 23 represented some boundaries. One of those lines represented 24 on those maps was called a consolidated place of use. 25 MR. TURNER: What is it that you did with these maps? CAPITOL REPORTERS (916) 923-5447 13554 1 MR. SEBHAT: We registered them on our digitizers and 2 using the 1 to 24,000 control, ground control ticks, we 3 digitized the place of use line into the GIS system. 4 MR. TURNER: Just for my information, when you mention 5 "ticks," what is it that you are actually referring to? 6 MR. SEBHAT: These are control points, a known point on 7 the earth that can be represented on the map that helps us 8 place whatever this feature is on the map, its true location 9 on the earth. 10 MR. TURNER: Is that done in any designated locations 11 or distances or is it just under -- based on the information 12 available? 13 MR. SEBHAT: Anytime you take that map to make a 14 digital into GIS you have to know what coordinate system it 15 is in. The GIS keeps track of that coordinate system from 16 then on. You have to tell the GIS system what the 17 coordinates are, where they are. 18 So, a tick or ground control tick is basically a 19 location on the map that you have certain confidence in, you 20 know, locatable on the earth. So it is a transformation 21 that occurs. 22 MR. TURNER: So, I take it you were involved, then, in 23 the preparation of all of the maps that have been included 24 in this DEIR that do, in fact, have this GIS symbol attached 25 to them. CAPITOL REPORTERS (916) 923-5447 13555 1 MR. SEBHAT: That is correct. We normally put a logo 2 on all maps we mapped. 3 MR. TURNER: I would have no further questions of, 4 unless there is anything further the Board would like me to 5 elicit. 6 C.O. STUBCHAER: Well, we'll find out what questions 7 there are. 8 Who wishes to cross-examine Mr. Sebhat? 9 Mr. Keene, Mooney, Birmingham, Nomellini, Herrick and 10 Campbell, Chris Campbell. 11 The order of the cross-examination will be Mr. Keene, 12 Mr. Campbell, Mr. Herrick, Mr. Mooney, Mr. Nomellini, Mr. 13 Birmingham. 14 Mr. Keene. 15 ---oOo--- 16 CROSS-EXAMINATION OF THE DEPARTMENT OF THE INTERIOR 17 BY SAN LUIS WATER DISTRICT 18 BY MR. KEENE 19 MR. KEENE: Good morning. 20 Mr. Sebhat, we haven't met. I am Tom Keene. I am 21 representing the San Luis Water District. 22 You mentioned in your direct testimony the term that 23 you registered on your digitizer these maps that you 24 received. How does one register something on the digitizer? 25 Those two terms I am not familiar with. CAPITOL REPORTERS (916) 923-5447 13556 1 MR. SEBHAT: Basically, a digitizer is an 2 electromagnetic grid that is attached to a computer. And 3 when you put a map down on the digitizer, you have to 4 specify a minimum of four control points. And those points 5 are coordinate reference points. And typically in our shop 6 we use a lot of section corners, 1 to 24,000 scale, which is 7 a typical USGS topograph map scale. We section corners to 8 identify a minimum of four that we are confident are section 9 corners off of USGS maps. Those points are then used to 10 register the piece of paper onto a digitizer. Then the 11 coordinate transformation occurs, whereby when the person is 12 digitizing that information, the GIS software that is in the 13 computer is actually capturing that information in that 14 geographic space. 15 MR. KEENE: You said when someone digitizes. How does 16 one digitize? 17 MR. SEBHAT: Usually, it is a puck and they have finger 18 controls on them where they are tracing a line. 19 MR. KEENE: So, basically, an individual uses this 20 device on -- 21 MR. SEBHAT: On the digitizing table, tracing over the 22 map. 23 MR. KEENE: He is moving that puck around by hand? 24 MR. SEBHAT: By hand; that's correct. 25 MR. KEENE: Does he periodically need to click it or CAPITOL REPORTERS (916) 923-5447 13557 1 something? 2 MR. SEBHAT: Oh, yes. The more he clicks, the better. 3 MR. KEENE: The accuracy then of what is transferred 4 into the computer to some extent is a product of the skill 5 of the person that is doing the digitizing? 6 MR. SEBHAT: That is correct. 7 MR. KEENE: These maps that you received that you then 8 used to digitize into the computer, the lines that were 9 drawn on them, the place of use line, do you know where that 10 came from? 11 MR. SEBHAT: I was told that they came from some maps, 12 smaller scale maps -- I am sorry, larger scale maps, meaning 13 really zoomed out. 14 MR. KEENE: Meaning a lot of land on one piece of 15 paper? 16 MR. SEBHAT: Yeah. And those are transcribed onto 1 to 17 24,000 topo maps. 18 MR. KEENE: Do you know the method by which they were 19 transcribed? 20 MR. SEBHAT: No, I do not. 21 MR. KEENE: Were they transcribed by hand? 22 MR. SEBHAT: I do not know that. 23 MR. KEENE: Now, you also had testified in your direct 24 that you were responsible, as I understood it, to some 25 extent for all of the maps in the Draft Environmental Impact CAPITOL REPORTERS (916) 923-5447 13558 1 Report that had the GIS symbol; is that correct? 2 MR. SEBHAT: That's correct. 3 MR. KEENE: I believe we have a copy of the Draft 4 Environmental Impact Report here. I would ask you to turn 5 to the map that is facing Page 3-114, which is the map of 6 the San Luis District. 7 Now, I ask you to look at the line between the light 8 color, the white on your copy, and the blue, as that 9 proceeds from the Merced County line up to the San Luis 10 Reservoir. 11 Is that line a fairly smooth line? It doesn't have any 12 sharp points to it? 13 MR. SEBHAT: That is the representation, that is how it 14 appears. The representation on this map looks smooth. 15 MR. KEENE: That map appears to have a GIS symbol on 16 the lower right-hand corner, does it not? 17 MR. SEBHAT: Yes. 18 MR. KEENE: You are responsible for the preparation of 19 that map? 20 MR. SEBHAT: Yes. 21 MR. KEENE: I ask also you to note the green that is in 22 the upper left quadrant of that page. Do you see that? 23 MR. SEBHAT: Yes. 24 MR. KEENE: Now I would ask you to hold your hand in 25 that place and look over to the front portion of the Draft CAPITOL REPORTERS (916) 923-5447 13559 1 Environmental Impact Report. And let's start with the map 2 facing Page 2-6, which is labeled The Trinity Place of 3 Use. 4 I would ask you if you could, perhaps with counsel's 5 help, locate Merced County on that map. 6 Have you located Merced County? 7 I am sorry, you will need to answer verbally. 8 MR. SEBHAT: Yes, I did. 9 MR. KEENE: Could you please trace that line with your 10 finger between the Fresno/Merced County line and San Luis 11 Reservoir? 12 MR. SEBHAT: Yes. 13 MR. KEENE: Is that line fairly smooth, regular, 14 without any corners to it? 15 MR. SEBHAT: I see some jagged edges in Madera County. 16 MR. KEENE: How about in Merced County? 17 MR. SEBHAT: I see one little one. 18 MR. KEENE: Where is that? 19 MR. SEBHAT: About a quarter inch down. 20 C.O. STUBCHAER: From? 21 MR. KEENE: You are looking at immediately adjacent to 22 the San Luis Reservoir? 23 MR. SEBHAT: Correct. 24 MR. KEENE: Between that bulge and the Fresno and 25 Merced County line, do you see any sharp edges? CAPITOL REPORTERS (916) 923-5447 13560 1 MR. SEBHAT: No. 2 MR. KEENE: So, flipping back to the map opposite 3 3-114, are those areas in green in the upper left quadrant 4 we were looking at a moment ago, do those appear inside the 5 proposed place of use as depicted on Figure 2-1. 6 MR. SEBHAT: Can you repeat your question? 7 MR. KEENE: Those green areas that are in the upper 8 left quadrant of the map opposite Page 3-114, are those 9 areas inside the proposed place of use as the proposed place 10 of use is depicted on Figure 2-1? 11 MR. SEBHAT: No, they are not. 12 MR. KEENE: Thank you. 13 C.O. STUBCHAER: Sorry, I didn't hear the answer. 14 MR. SEBHAT: No, they are not. 15 MR. KEENE: Can you tell me -- would you look for a 16 moment at Figure 2-1 that we were just looking at and 17 compare it to Figure 2-2? Is that segment of the proposed 18 place of use line in Merced County the same as the segment 19 we were just looking at between the Fresno-Merced County 20 line and the San Luis River? 21 MR. SEBHAT: Yes, it is. 22 MR. KEENE: Short of going through each of these, would 23 it surprise you to know that segment of that line is the 24 same as each of the maps in the Draft Environmental Impact 25 Report, which shows the proposed place of use on the CAPITOL REPORTERS (916) 923-5447 13561 1 statewide basis? 2 MR. SEBHAT: No. 3 MR. KEENE: Do you have any understanding of what the 4 proposed place of use boundary is supposed to include other 5 than what was on this map? I am sorry, I am assuming 6 something. Let me back up. 7 You testified as to how the existing place of use 8 boundary was entered into the computer. How -- did you also 9 have anything to do with entering the proposed place of use 10 boundary into the computer? 11 MR. SEBHAT: Yes. 12 MR. KEENE: How did you receive that information as to 13 where that line was supposed to be? 14 MR. SEBHAT: Based on the district boundaries that were 15 outside the place of use. 16 MR. KEENE: Did you receive maps from the districts or 17 did you receive some other information? 18 MR. SEBHAT: I was basically given our own maps back 19 to develop the proposed place of use. 20 MR. KEENE: When you say your own maps, were they any 21 of these maps that have been distributed in this proceeding 22 or some other maps? 23 MR. SEBHAT: Our own maps that we made. 24 Mr. KEENE: Which maps that you made? 25 MR. SEBHAT: The ones that are in the report. CAPITOL REPORTERS (916) 923-5447 13562 1 MR. KEENE: The individual maps like the one opposite 2 3-114? 3 MR. SEBHAT: Correct. 4 MR. KEENE: You were given those and -- 5 MR. SEBHAT: Basically told to create the potential. 6 MR. KEENE: Place of use map? 7 MR. SEBHAT: Place of use map. 8 MR. KEENE: Do you have any explanation as to why a 9 portion of the green on the map facing Page 3-114 did not 10 make it onto the proposed place of use boundary when that is 11 inside the San Luis Water District currently? 12 MR. SEBHAT: Do I have an explanation for that? 13 MR. KEENE: Yes, sir. 14 MR. SEBHAT: No. 15 MR. KEENE: Now, ask you for a moment to turn to the 16 back of that document, the map that is designated A20. It 17 may be opposite A19 in your set or it may be the last page 18 which it is on the black and white version. 19 Did you prepare that map? 20 MR. SEBHAT: No. 21 MR. KEENE: Who did? Do you know? 22 MR. SEBHAT: Have no idea. 23 MR. KEENE: You testified, as I understood it, that you 24 have been a consultant doing GIS work for the Bureau for 15 25 years? CAPITOL REPORTERS (916) 923-5447 13563 1 MR. SEBHAT: Yes. 2 MR. KEENE: Has all of that time been with the Bureau 3 here in Sacramento? 4 MR. SEBHAT: Yes. 5 MR. KEENE: If my math is correct, that means you 6 started with the Bureau in approximately 1984? 7 MR. SEBHAT: That's correct. 8 MR. KEENE: But you did not prepare the A20 map? 9 MR. SEBHAT: I did not prepare the A20 map. 10 MR. KEENE: And you don't know who did? 11 MR. SEBHAT: I don't know who did. 12 MR. KEENE: Let's go back for a moment, if we can -- I 13 hate to jump around. It is a little difficult -- to the 14 process for inputting into the computer the existing place 15 of use boundaries. 16 Do you have any idea why you weren't given the maps 17 that were -- or copies of the map that had been attached to 18 the petitions to the State Water Resources Control Board and 19 basically given the task of digitizing them directly into 20 the computer instead of going through these quad maps, these 21 topographical maps? 22 MR. SEBHAT: I do not. 23 C.O. STUBCHAER: Can you hear the answers in the back 24 of the room? 25 (Discussion held off record.) CAPITOL REPORTERS (916) 923-5447 13564 1 MR. KEENE: Now, have you had a chance to view the maps 2 that were attached to the petitions to the State Water Board 3 or the Bureau's copies of those maps? 4 MR. SEBHAT: I can't say I did, no. 5 MR. KEENE: I am going to show you now a copy of -- I 6 believe it is South Delta Water Agency's 39. 7 MR. HERRICK: 59. 8 MR. KEENE: 59. Showing the original of those. 9 MR. TURNER: Would you clarify for the record, Mr. 10 Keene, precisely what you are showing Mr. Sebhat? 11 MR. KEENE: I am showing him South Delta Water Agency 12 Exhibit Number 59. That is a group of maps, 13 pages, that 13 have been previously marked and, I believe, admitted into 14 evidence. And those are, as I understand it, copies -- 15 these are the originals of the documents that have been 16 produced by the Bureau of Reclamation as the maps which, as 17 I understand it, they had taken a projection off of their 18 microfilm and printed out, and that these were then used for 19 the purpose of -- I am sorry, the projections themselves had 20 been used for the purpose of preparing the quad sheets. I 21 am showing him particularly -- 22 I will ask the witness to read the number in the lower 23 right-hand corner of the map that is in front of you. 24 MR. SEBHAT: 602212166. 25 MR. KEENE: Let me point out what I understand to be CAPITOL REPORTERS (916) 923-5447 13565 1 the place of use boundary. 2 You see that place of use boundary, that segment of it 3 that I just pointed out? 4 MR. SEBHAT: Yes, I do. 5 MR. KEENE: Can you read the scale on that map? 6 MR. SEBHAT: I see the scale bar, yes. 7 MR. KEENE: Could that map be digitized in the GIS 8 system? 9 MR. SEBHAT: Yes, it can. 10 MR. KEENE: Do you have any idea as to the accuracy of 11 the map that would be produced? Let me back up. If I 12 wanted to determine -- if I were a farmer and I owned land 13 along that boundary, and I wanted to determine which of my 14 fields was inside the place of use and which of my fields 15 was outside the place of use, do you have any idea, based on 16 your expertise in the GIS system and digitizing, whether I 17 could do so from that map? 18 MR. SEBHAT: I would not recommend it. 19 MR. KEENE: Why? 20 MR. SEBHAT: This is a poor scale to determine that 21 kind of information. 22 MR. KEENE: If I were to take that map, as you see 23 there, and I were to blow it up with some sort of means of 24 projecting it onto a screen and I was to then by hand draw 25 in that boundary on a quad sheet, would that be any more CAPITOL REPORTERS (916) 923-5447 13566 1 accurate than the document that you see in front of you in 2 terms of a boundary that would allow me to differentiate 3 between my two fields? 4 MR. SEBHAT: It would add some, but it doesn't 5 necessarily resolve all the particulars. 6 MR. KEENE: How would it add something since I was 7 basing my quad map on that document instead of doing any 8 additional -- or getting any additional information? 9 MR. SEBHAT: The quad map is a better scale. 10 C.O. STUBCHAER: One at a time. 11 MR. KEENE: Please finish your answer. I didn't mean 12 to -- 13 MR. SEBHAT: The quad map is at better scale than this 14 particular document here. 15 MR. KEENE: I understand that. 16 MR. SEBHAT: Whoever was transcribing it, I would be 17 looking for known features on the 1 to 24 scale map that I 18 could trace. Where things were undefined, you'd have to use 19 other sources of information to define it better. 20 MR. KEENE: If you had no other source of information, 21 what would you do? 22 MR. SEBHAT: You would have to take your best shot at 23 it. 24 MR. KEENE: You'd basically have to guess? 25 MR. SEBHAT: I would imagine so. CAPITOL REPORTERS (916) 923-5447 13567 1 MR. KEENE: Now, the area of use boundary on that map, 2 does it have a width? Does it have a dimension? 3 MR. SEBHAT: Yeah. 4 MR. KEENE: Can you, based on your expertise in 5 mapping, give us some idea of how many, in miles or feet or 6 whatever you are comfortable with, what the approximate 7 width of that line is? 8 MR. SEBHAT: I would say that was at least less than 9 half a mile. 10 MR. KEENE: So, would it be fair to say somewhere 11 between a quarter of a mile and half a mile? 12 MR. SEBHAT: I suppose so. 13 MR. KEENE: I am asking you for your best judgment. 14 MR. SEBHAT: Yeah, I would say about a quarter of a 15 mile. 16 MR. KEENE: Thank you. 17 It could be as much as half a mile? 18 MR. SEBHAT: That's -- a quarter mile is good. 19 MR. KEENE: Now, these quad sheets that you've got that 20 were used to digitize the information into the GIS program, 21 did more -- did only one person bring you those quad sheets 22 or did a number of individuals bring quad sheets in this 23 project? 24 MR. SEBHAT: One individual, one big pile. 25 MR. KEENE: Who was that individual? CAPITOL REPORTERS (916) 923-5447 13568 1 MR. SEBHAT: Our GIS Program Manager, Chuck Johnson. 2 MR. KEENE: Do you know if Chuck Johnson is still with 3 the Bureau at the Sacramento office? 4 MR. SEBHAT: Yes, he is. 5 MR. KEENE: In this digitizing process using the puck, 6 did you do the digitizing of all of those quad sheets 7 yourself? 8 MR. SEBHAT: No. 9 MR. KEENE: Did one person working under you direction 10 do all of that digitizing? 11 MR. SEBHAT: Two. 12 MR. KEENE: Who were those individuals? 13 MR. SEBHAT: I can't recollect exactly. I have had 14 staff come and go. I can't remember that far. 15 MR. KEENE: Would it be fair to say that the different 16 staff people that you've had come and go have varying levels 17 of skill? 18 MR. SEBHAT: Yeah. I would say that. 19 MR. KEENE: So, you have no way of telling us today 20 whether the people that actually digitized this information 21 into the computer program were relatively high skilled or 22 relatively not so high skilled in performing that process? 23 MR. SEBHAT: The digitizers I had working for me were 24 very highly-skilled people. There is not one individual I 25 would say was not skilled enough to do the job. CAPITOL REPORTERS (916) 923-5447 13569 1 MR. KEENE: Let me pose a hypothetical for you. You 2 are a farmer again, and whether or not you are bankrupt 3 depends upon which side of the line your field is on. 4 Would you trust this process to determine that outcome? 5 MR. SEBHAT: No. 6 MR. KEENE: Thank you. 7 I've got no further questions. 8 C.O. STUBCHAER: Thank you, Mr. Keene. 9 Mr. Campbell, Chris Campbell. 10 ---oOo--- 11 CROSS-EXAMINATION OF THE DEPARTMENT OF THE INTERIOR 12 BY ENCROACHMENT AND EXPANSION LANDOWNERS 13 BY MR. C. CAMPBELL 14 MR. C. CAMPBELL: Morning, Mr. Sebhat. My name is 15 Chris Campbell. I represent a number of the farmers that 16 Mr. Keene was talking about who found themselves with land 17 on the wrong side of the line. Mr. Keene covered most of 18 the issues we are concerned about, so I have a couple 19 questions. 20 You testified on the map that Mr. Keene was showing you 21 from the South Delta Exhibit 59 that the line on that map 22 was approximately a quarter mile, maybe a little more, in 23 thickness? 24 MR. SEBHAT: That would be my guess today. 25 MR. C. CAMPBELL: You said that you did not work from CAPITOL REPORTERS (916) 923-5447 13570 1 this map, though, in doing the digitizing? 2 MR. SEBHAT: That's correct. 3 MR. C. CAMPBELL: You worked from 1 to 24,000 quad? 4 MR. SEBHAT: That's correct. 5 MR. C. CAMPBELL: What would you say is the approximate 6 thickness of the line that was represented on that 1 to 7 24,000 quad that you worked from? 8 MR. SEBHAT: I would say it looked about the same. 9 MR. C. CAMPBELL: About the same, so it was 10 approximately a quarter of a mile in width? 11 MR. SEBHAT: No, just in pen width. 12 MR. C. CAMPBELL: In terms -- we are talking about the 13 affect on the people on the ground and how accurate this 14 line is. So in terms of the width on the ground of the line 15 that was represented on the 1 to 24,000 quad, how wide do 16 you think that line would be? 17 MR. SEBHAT: Hard to say, really. I would have to look 18 at a 1 to 24,000 map to make a mental guess, but if it was a 19 red line across a 1 to 24,000 resolution map, it could be, 20 again, a quarter mile, easy. 21 MR. C. CAMPBELL: So it could still be a quarter mile. 22 Could you refer in the EIR to the maps that you prepared, 23 3-26? 24 MR. SEBHAT: I have no map at 3-26. 25 MR. BIRMINGHAM: I have a copy which I will provide to CAPITOL REPORTERS (916) 923-5447 13571 1 the witness. 2 MR. C. CAMPBELL: Opposite Page 3-148. 3 MR. TURNER: We were hearing 3-126 not 3-148. 4 MR. BIRMINGHAM: The plate number is 3-26 opposite 5 3-148. I apologize. 6 This is the map that was produced by people under your 7 direction in the GIS center? 8 MR. SEBHAT: Yes. 9 MR. C. CAMPBELL: On the ground what is the thickness 10 of the boundary that is shown there? 11 MR. SEBHAT: What do you mean by that question, "on the 12 ground"? 13 MR. C. CAMPBELL: Well -- 14 MR. SEBHAT: Or based on the scale of this map? 15 MR. C. CAMPBELL: We are talking about the impact of a 16 person -- well, if you can look in the center of the map 17 there, you see there the line? The line is in the shaded 18 version and then, as you go north, it pops out and there is 19 a green property that is outside the place of use? 20 MR. SEBHAT: I see it. 21 MR. C. CAMPBELL: That is -- and how far is that from 22 the line to the place of use boundary in the scale of that 23 map? 24 MR. SEBHAT: I would need a ruler to determine that. I 25 have the maps at one inch; is going to be 6.61 miles. If CAPITOL REPORTERS (916) 923-5447 13572 1 you want me to determine that, I need that ruler. From this 2 map, this scale. 3 MR. C. CAMPBELL: Can you roughly estimate? Is it a 4 quarter inch? 5 MR. SEBHAT: I would say less than a quarter of an 6 inch. 7 MR. C. CAMPBELL: If that is less than a quarter of an 8 inch and then that distance is -- that distance, those 9 properties that are outside the place of use, would be 10 covered by the width of that original line that you looked 11 at in this original exhibit, correct? 12 MR. SEBHAT: No. I would -- to tell you the exact 13 nature of this line against the other one I would need a 14 ruler on this map at this scale. 15 MR. C. CAMPBELL: Okay. 16 MR. SEBHAT: We can talk a little bit about scale 17 dependency if you like so he can clarify what that means. 18 MR. C. CAMPBELL: There is a ruler. 19 C.O. STUBCHAER: Do you need a calculator, Mr. Sebhat? 20 MR. SEBHAT: No, it is okay. I will take a guess. 21 Which line would you like me to do, any of the jagged 22 edges? 23 MR. C. CAMPBELL: Yes, any of the jagged edges there in 24 the center. 25 MR. SEBHAT: Okay. I guess about a mile, maybe. CAPITOL REPORTERS (916) 923-5447 13573 1 MR. C. CAMPBELL: So when the original -- you testified 2 that the original width of the line on the original maps 3 produced by the Bureau was probably a little more than a 4 quarter of a mile and less than that a half of a mile in 5 width, correct? 6 MR. SEBHAT: This map I am looking at here? Yeah. 7 MR. C. CAMPBELL: So -- 8 MR. BIRMINGHAM: Could the record reflect when the 9 witness said "here," he was referring to map number 10 60212166, which is part of South Delta Water Agency Exhibit 11 59. 12 MR. C. CAMPBELL: Thank you. 13 Now, you are testifying that, based on your measurement 14 with the ruler and, you know, your review with the ruler, 15 that on Figure 3-26, the GIS map in the DEIR, Staff Exhibit 16 Number 2, that there is approximately a mile -- along that 17 section of Westlands there is approximately a mile between 18 the GIS boundary and the outer boundary of the Westlands 19 Water District? 20 MR. SEBHAT: As to the specified scale of this piece of 21 paper? 22 MR. C. CAMPBELL: Right. 23 MR. SEBHAT: And that was a guess, also. 24 MR. C. CAMPBELL: So, the point being that there is 25 discretion that was exercised by your department, correct, CAPITOL REPORTERS (916) 923-5447 13574 1 that placed, took, the line from -- somewhat took the line 2 from South Delta Exhibit 59 and put it on the 24,000 quad, 3 and you said on the 24,000 quad it is -- the line still had 4 approximately a quarter of a mile width at that scale? 5 MR. SEBHAT: I can't really say a quarter mile. I have 6 to look at the 1 to 24,000 map to make that guess. What we 7 did was we digitized a line that was maybe one-sixteenth to 8 an eighth inch thick on the 1 to 24K map. Digitizing 9 practices being defining a boundary to an outside line. 10 MR. C. CAMPBELL: Did you have sufficient information 11 on those maps to make a precise determination within a mile 12 that these particular properties were inside or outside? 13 MR. SEBHAT: I don't understand your question. Repeat, 14 please. 15 MR. C. CAMPBELL: It is a bankruptcy or viability 16 decision whether these properties are inside or outside the 17 line. Do you feel that you had adequate information to make 18 a determination of that magnitude from the information you 19 were given? 20 MR. SEBHAT: If I was a farmer, I would actually say 21 no. I would need somebody to go out and measure that. 22 MR. C. CAMPBELL: Thank you very much. 23 C.O. STUBCHAER: Mr. Herrick. 24 Morning. 25 ---oOo--- CAPITOL REPORTERS (916) 923-5447 13575 1 CROSS-EXAMINATION OF THE DEPARTMENT OF THE INTERIOR 2 BY SOUTH DELTA WATER AGENCY 3 BY MR. HERRICK 4 MR. HERRICK: John Herrick, South Delta Water Agency. 5 Mr. Sebhat, a lot of the area has been covered here. I 6 want to ask a few questions. It is our understanding that 7 these maps before you, which are South Delta Exhibit 59, 8 were made from a microfiche record of original maps; is that 9 correct? 10 MR. SEBHAT: I don't know. 11 MR. HERRICK: Is there any margin of error when you go 12 from an original map, recorded it somehow and put it on, 13 say, microfiche and then come back and blow it up later to 14 get the original size? 15 MR. SEBHAT: There may be some. 16 MR. HERRICK: Again, I am just exploring this. When I 17 make copies, if I decrease on a copy machine and decrease 18 two halfs of a map the same percentage of decrease and then 19 I cut them in half, they don't match. Is that typical in, I 20 will say, in your business of going up and down in size of 21 maps? 22 MR. SEBHAT: That can be a problem, yes, if done 23 incorrectly. 24 MR. HERRICK: I believe you said somebody else, not 25 you, transcribed the place of use lines onto the topo maps; CAPITOL REPORTERS (916) 923-5447 13576 1 is that correct? 2 MR. SEBHAT: That's correct. 3 MR. HERRICK: You don't know who did that or -- 4 MR. SEBHAT: I don't know who did that. 5 MR. HERRICK: -- is that Chuck Johnson? 6 MR. SEBHAT: Mr. Chuck Johnson brought the maps to the 7 office to be processed. 8 MR. HERRICK: Again, some of this has been covered, and 9 I apologize if I am retracing this. Your department or 10 group then transferred what map to what map by using this 11 puck method of tracing the line? 12 MR. SEBHAT: We took the 1 to 24,000 blue lines that 13 had place of use lines on them and digitized it. 14 MR. HERRICK: Those lines were already on the topo map 15 provided to you? 16 MR. SEBHAT: That is correct. 17 MR. HERRICK: Continue, please. 18 MR. SEBHAT: And we digitized them quad by quad. At 19 the end we used our digitized software to put it all 20 together. 21 MR. HERRICK: So you could produce what maps? 22 MR. SEBHAT: Any of the maps that you see in the EIR. 23 MR. HERRICK: If you'll turn back to Figure 2-1, those 24 maps at the beginning, those are maps you produced? 25 MR. SEBHAT: Yes, we produced those. CAPITOL REPORTERS (916) 923-5447 13577 1 MR. HERRICK: Which came first, 2-1, 2-2, 2-3, 2-4, 2-5 2 or the maps that are spread throughout the various districts 3 in the EIR? 4 MR. SEBHAT: What do you mean by "which came first," 5 which ones did we make first? 6 MR. HERRICK: Yes. 7 MR. SEBHAT: The smaller maps. 8 MR. HERRICK: So, are the larger maps a pasting 9 together of the smaller maps to create a whole or is it a 10 separate process to create the larger map as opposed to the 11 smaller? 12 MR. SEBHAT: The smaller map used the same information 13 as the larger map. It is a digital, electronic file sitting 14 on a disk, and I can map it at any scale that I wish. When 15 somebody comes in and says, "I want an eight-and-a-half by 16 eleven," they get what it looks like at eight-and-a-half by 17 eleven. If they want it bigger, they will get it bigger. 18 It is the same data. 19 MR. HERRICK: That is what I was getting to, the same 20 data. You tell it to produce a map of the state or part of 21 the state using that information? 22 MR. SEBHAT: Yes. 23 MR. HERRICK: I believe you said in answer to another 24 question when the lines were traced using the puck, and 25 excuse our ignorance about the terms, you traced the outer CAPITOL REPORTERS (916) 923-5447 13578 1 edge of the line; is that correct? 2 MR. SEBHAT: That is the typical mapping practice. 3 MR. HERRICK: What was the size of the maps upon which 4 that puck tracing was done? 5 MR. SEBHAT: It was a standard USGS topo map size, 6 about 24 inches by 32, something like that. 7 MR. HERRICK: Now I note from these maps, which are 8 included in South Delta 59, that depending on which map you 9 look at, different service areas in the same region are 10 designated, and let me explain that. 11 The San Luis Delta-Mendota area goes part way down the 12 valley. But the Trinity service area goes all the way down 13 the valley. What method, if any, did you use to determine 14 whether or not the outer boundaries of those were the same? 15 MR. SEBHAT: We basically used the same data that we 16 had in compiling the original consolidated place of use. 17 From that we were given information to let us know at what 18 point, whether there were any break points to differentiate 19 the permits from, say, the Trinity or Folsom. 20 MR. HERRICK: Did you come up with instances where the 21 outer edge of a place of use boundary line had two different 22 data, sets of data? 23 MR. SEBHAT: No, we used same data. All we did was, 24 like, clip and cookie cut and so forth. 25 MR. HERRICK: I'm not getting to my question very CAPITOL REPORTERS (916) 923-5447 13579 1 well. 2 MR. SEBHAT: Okay. 3 MR. HERRICK: Can you tell me -- let's go to Figure 4 3-26, which is opposite Page 3-148. I am looking at the 5 left side of the place of use map. Place of use boundary 6 goes diagonally across the page? 7 MR. SEBHAT: Yes. 8 MR. HERRICK: Is that place of use boundary, can you 9 tell us whether that was determined by the maps that deal 10 with the Trinity place of use or the maps that deal with the 11 San Luis Delta-Mendota place of use or the Folsom place of 12 use, or do you know? 13 MR. SEBHAT: I can tell you where this line came from. 14 This line came from a GIS database that was originally 15 compiled from the 1 to 24 maps that we received. That is 16 it. 17 MR. HERRICK: If you received a map for those three 18 different service places, and they each went down the side 19 of the valley with a place of use, which line did you 20 choose? The outer most? The average of the three or 21 something else? 22 MR. SEBHAT: We have one line. 23 MR. HERRICK: Mr. Sebhat, was the line on the topo maps 24 that you received a consolidated line, in other words, based 25 on multiple input, or did you receive one for each of the CAPITOL REPORTERS (916) 923-5447 13580 1 various service areas? 2 MR. SEBHAT: No. Consolidated for all the permits. 3 MR. HERRICK: How was the consolidated line determined? 4 Do you know? 5 MR. SEBHAT: I do not know. 6 MR. HERRICK: Again, I want to look at -- just cover 7 three maps. Other counsel will check them. Let's turn to 8 the map opposite 3-36, Page 3-36, please, in the DEIR. 9 I can see you are on the page. It is Figure 3-3. It 10 is the map opposite Page 3-36. That is the Arvin-Edison 11 Water Storage District and it has both the district lines 12 and supposedly place of use lines. 13 Mr. Sebhat, we talked about the potential for margin of 14 error on blowing up maps and shrinking them down and 15 transferring lines. Let's take the little green corner or 16 square right in the middle of, I guess it is, township 31 17 south -- range 31 south, township 30 east. 18 MR. SEBHAT: I got it. 19 MR. HERRICK: I apologize to the legal community if I 20 have those designations wrong. That little square there, do 21 you believe that is within the margin of error of any of the 22 processes that were done to get to those maps? 23 MR. SEBHAT: It's possible. 24 MR. HERRICK: Again, if we go to the square above that, 25 which is township 30 south -- range 30 south, township 30 CAPITOL REPORTERS (916) 923-5447 13581 1 east, again, if you go to the green line, real thin line 2 across the top -- 3 MR. SEBHAT: I see it. 4 MR. HERRICK: -- is that potentially within the margin 5 of error of any of the processes that led to these maps? 6 MR. SEBHAT: Yes. 7 MR. HERRICK: Let's go to the map opposite 3-14 of the 8 DEIR. 9 MR. SEBHAT: I am there. 10 MR. HERRICK: I am not. 11 Let's go up to near the top. Let's go to range 10 12 south, township 9 east. That is, I believe, this square. 13 MR. SEBHAT: Okay. 14 MR. HERRICK: You can see in there that there is a 15 little corner that goes -- of the district line that goes 16 within, inside of the place of use boundary. Can you see 17 those little corners? 18 MR. SEBHAT: Right there. Okay. 19 MR. HERRICK: Again, do you think that is within the 20 margin of error for any of the processes used to develop 21 these maps? 22 MR. SEBHAT: Yeah. 23 MR. HERRICK: Did you have any participation -- excuse 24 me, let me start over. 25 Once the maps were finally created by your firm, was CAPITOL REPORTERS (916) 923-5447 13582 1 there any discussion regarding the potential margin of error 2 for size changes or line widths or anything like that? 3 MR. SEBHAT: Subsequently? 4 MR. HERRICK: Subsequent to the development of the 5 maps. In other words, you have the finished map, did 6 anybody sit down and say, "Okay, we have cut off little 7 teeny pieces in different places," do you have any 8 confidence to say that those are cut off or included? 9 MR. SEBHAT: Not that I am aware of. You are talking 10 about the digital product at the end? 11 MR. HERRICK: Yes. 12 MR. SEBHAT: All we did is check it against the 13 original maps and that is it. 14 MR. HERRICK: Then you forward them to somebody at the 15 Bureau? 16 MR. SEBHAT: We keep them until somebody says map 17 them. 18 MR. HERRICK: Your involvement in the preparation of 19 the DEIR is only the preparation of the maps, there is no 20 discussions or anything about what the maps meant, what they 21 might do or not do or might or might not indicate? 22 MR. SEBHAT: That is correct. 23 MR. HERRICK: Let's finally go to the map opposite Page 24 3-148. 25 Let's start with the little areas. Let's go down to CAPITOL REPORTERS (916) 923-5447 13583 1 the bottom there, range 21 south, township 16 east. Again, 2 we have some little corners or parts of triangles or some 3 squares on either side of the line. 4 Can you tell us whether or not those areas may be 5 within the margin of error of any processes used to produce 6 these final maps? 7 C.O. STUBCHAER: Mr. Birmingham. 8 MR. BIRMINGHAM: I wonder if I could ask for 9 clarification. When Mr. Herrick says "the line," does he 10 mean the place of use line as depicted on maps? 11 MR. HERRICK: Thank you. That is correct. I am 12 referring to the place of use line which has little 13 triangles or squares on either side of it, either areas 14 outside or inside place of use. 15 Thank you. 16 The question is: Do you think any of those areas might 17 be within the margin of error for any of the processes used 18 to develop these final maps? 19 MR. SEBHAT: The very small ones, yeah. 20 MR. HERRICK: As we get to the bigger ones, by that I 21 mean the other green areas on the map which are generally 22 above where we were just talking about, again, as you have 23 seen from other counsels' questions, it is very important 24 whether or not those may be within or without the area. 25 Given that the maps originally drawn, not the ones you CAPITOL REPORTERS (916) 923-5447 13584 1 traced, not the tracing but the original maps may have been 2 hand drawn themselves, do you have any confidence in saying 3 whether or not those areas are or are not within the current 4 place of use lines? 5 MR. SEBHAT: I haven't really seen the original maps. 6 MR. HERRICK: It is your understanding that the 7 original maps are line-drawn rather than a legal description 8 of where the line is; is that correct? 9 MR. SEBHAT: The originals? 10 MR. HERRICK: Yes. 11 MR. SEBHAT: I believe they are just a map with a 12 line. 13 MR. HERRICK: If you are trying to draw a line for an 14 environmental report examining whether or not something is 15 in or outside, does that make a difference to you whether 16 the original maps you are provided with have a legal 17 description for the line or just a hand-drawn line? 18 MR. SEBHAT: It would matter to me. 19 MR. HERRICK: Is that because there is a margin of 20 error in the work in transposing lines and enlarging and 21 decreasing the size of different maps? 22 MR. SEBHAT: I would imagine there is. 23 MR. HERRICK: Without taking too much time here, in 24 answer to one question you said, "if you'd like me to get 25 into scale dependency I can." What is "scale dependency"? CAPITOL REPORTERS (916) 923-5447 13585 1 MR. SEBHAT: That is basically addressing the issue of 2 when you are doing GIS maps, the quality or accuracy of 3 your map product is going to be as good as the original 4 source documents that were digitized. It is not going to 5 get any better because you zoomed down into or zoomed out. 6 However, you can map them in many different scales. So a 7 larger statewide map of the place of use would not show a 8 lot of the finer detail that you would see if you zoomed in 9 at 1 to 24,000, for example. 10 MR. HERRICK: Is that issue or problem complicated in 11 the maps you are using originally to produce a final map are 12 different scales themselves? 13 MR. SEBHAT: Very complicated. 14 MR. HERRICK: Is that what happened here, we started 15 with maps at different scales to get to the final map? 16 MR. SEBHAT: I don't know what the original scales 17 were. This kind of map, you mean, the ones that were 18 originally transcribed? 19 MR. HERRICK: Yes. 20 MR. SEBHAT: I don't know what scale they were. 21 MR. HERRICK: Do you know who might know that? 22 MR. SEBHAT: Maybe Chuck Johnson might know that. 23 MR. HERRICK: Thank you very much. 24 No further questions. 25 C.O. STUBCHAER: Thank you, Mr. Herrick. CAPITOL REPORTERS (916) 923-5447 13586 1 Mr. Mooney. 2 ---oOo--- 3 CROSS-EXAMINATION OF THE DEPARTMENT OF THE INTERIOR 4 BY EL DORADO WATER AGENCY 5 BY MR. MOONEY 6 MR. MOONEY: Morning, Mr. Chairman, Mr. Brown. 7 My name is Don Mooney. I am with the El Dorado Water 8 Agency. 9 Could you please turn to what is from the Draft EIR to 10 Table 2-2 on Page 2-6. 11 MR. TURNER: Did you say Figure 2-2? 12 MR. MOONEY: Excuse me, Table 2-2. On that table do 13 you see a column for El Dorado Irrigation District? 14 MR. SEBHAT: Yes. 15 MR. MOONEY: For the proposed project or -- do you see 16 a column for acreage outside the POU for place of use with 17 an acreage determination, with the amount of acreage listed 18 for El Dorado Irrigation District? 19 MR. SEBHAT: You are looking at the column saying, 20 "acreage outside the POU"? 21 MR. MOONEY: Yes. 22 MR. SEBHAT: I see that. 23 MR. MOONEY: What is that acreage for El Dorado 24 Irrigation District? 25 MR. SEBHAT: I am reading 23,578. CAPITOL REPORTERS (916) 923-5447 13587 1 MR.MOONEY: Next to that there is some acreage under 2 proposed project for encroachment and expansion? 3 MR. SEBHAT: I see it. 4 MR. MOONEY: What is the acreage for the encroachment? 5 MR. SEBHAT: 18,495. 6 MR. MOONEY: For the expansion? 7 MR. SEBHAT: 5,083. 8 MR. MOONEY: If you can please turn towards the back of 9 EIR. I believe in the appendices. It is the petition that 10 was filed by the Bureau of Reclamation. I think it is the 11 first appendix, A-1. Towards the back of that there is a 12 map, a fold-out map, identified as map one. 13 Have you found that? 14 MR. SEBHAT: Map one, top right corner. 15 MR. MOONEY: Yes. This map is identified as "U.S. 16 Bureau of Reclamation petition to revise the CVP place of 17 use under Permit 12721 and 18 others"? 18 MR. SEBHAT: I see it. 19 MR. MOONEY: And on that map can you tell me whether or 20 not any of El Dorado County is within this revised place of 21 use? 22 MR. SEBHAT: It is a poor quality map. I would guess 23 that a certain portion of it is. 24 MR. MOONEY: What portion, in terms of the western 25 portion or eastern portion? CAPITOL REPORTERS (916) 923-5447 13588 1 MR. SEBHAT: Western portion right around where there 2 is designation area for Folsom Lake area. 3 MR. MOONEY: So the area just east of Folsom Lake is 4 within this revised place of use in the petition? 5 MR. SEBHAT: Within this map, yeah. 6 MR. MOONEY: Thank you. 7 Now, if you could turn to Figure 3-12, which is on Page 8 3- -- opposite Page 3-18. Did you prepare this map? 9 MR. SEBHAT: Yes. 10 MR. MOONEY: Was the information given to you by the 11 Bureau of Reclamation to prepare this map? 12 MR. SEBHAT: Yes. 13 MR. MOONEY: What information was given to you to 14 prepare this map? 15 MR. SEBHAT: There were several maps that designated 16 land use areas that were mapped by CH2M Hill. I think there 17 was a Sly Park unit boundary, a Folsom service boundary 18 map. And that is all I can recollect. 19 MR. MOONEY: It is your understanding that this map 20 represents the proposed expansion of place of use for CVP 21 for El Dorado County, I should say, El Dorado Irrigation 22 District? 23 MR. SEBHAT: As per this map. 24 MR. MOONEY: Do you know the date that this map was 25 prepared? CAPITOL REPORTERS (916) 923-5447 13589 1 MR. SEBHAT: No. 2 MR. MOONEY: Approximately? 3 MR. SEBHAT: Last year sometime. 4 MR. MOONEY: Sometime in 19- -- 5 MR. SEBHAT: '98. 6 MR. MOONEY: The report is actually identified as 7 December '97. So it would be -- would that refresh your 8 memory at all? 9 MR. SEBHAT: No, it doesn't, actually. I am not sure I 10 can answer that. 11 MR. MOONEY: It was prepared within the last couple of 12 years? 13 MR. SEBHAT: Yes. During the whole project area we 14 were involved in doing this. 15 MR. MOONEY: If you could turn to what is identified as 16 Figure 2-3, which is the Folsom place of use. 17 This map shows the current permitted place of use as 18 well as the proposed place of use; is that correct? 19 MR. SEBHAT: That is correct. 20 MR. MOONEY: That is for the applications associated 21 with Folsom Reservoir? 22 MR. SEBHAT: I believe so. 23 MR. MOONEY: Can you -- now, on this map -- do you know 24 the date that this map was prepared? 25 MR. SEBHAT: No, I do not. CAPITOL REPORTERS (916) 923-5447 13590 1 MR. MOONEY: Do you have any estimation of when this 2 map was prepared? 3 MR. SEBHAT: I would have to look back at my logbooks. 4 MR. MOONEY: Do you know if this map was prepared prior 5 to the map in Figure 3-12? 6 MR. SEBHAT: That is the -- 7 MR. MOONEY: El Dorado Irrigation District, the one we 8 just looked at. 9 MR. SEBHAT: I believe this was prepared before that. 10 MR. MOONEY: Does this map, this Folsom place of use 11 map, show the expanded or the proposed place of use or 12 expansion of place of use for the CVP project in El Dorado 13 County? 14 MR. SEBHAT: No, it does not. 15 MR. MOONEY: So, would this map be in error in 16 identifying the proposed place of use for Folsom? 17 MR. SEBHAT: No, it is not in error. 18 MR. MOONEY: It is not in error? 19 MR. SEBHAT: It is the timing. 20 MR. MOONEY: So would the correct map for this Board to 21 look at in evaluating what the Bureau's proposal is for the 22 proposed place of use as to the El Dorado Irrigation 23 District be Figure 3-12? 24 MR. SEBHAT: That would be the most recent, yeah. 25 MR. MOONEY: That would be the most accurate map as to CAPITOL REPORTERS (916) 923-5447 13591 1 the Bureau of Reclamation's petition, as it applies to the 2 El Dorado Irrigation District? 3 MR. SEBHAT: Yeah, I would say so. 4 MR. MOONEY: Thank you. 5 C.O. STUBCHAER: Thank you, Mr. Mooney. 6 We'll take our morning break now, 12 minutes. 7 (Break taken.) 8 C.O. STUBCHAER: Call the meeting back to order. 9 Mr. Nomellini. 10 ---oOo--- 11 CROSS-EXAMINATION OF THE DEPARTMENT OF THE INTERIOR 12 BY CENTRAL DELTA PARTIES 13 BY MR. NOMELLINI 14 MR. NOMELLINI: Members of the Board, Dante John 15 Nomellini for Central Delta Parties. 16 Mr. Sebhat, in your testimony you indicated that you 17 were given quad sheets that had a red line on them as your 18 starting point; is that correct? 19 MR. SEBHAT: That's correct. 20 MR. NOMELLINI: And then you indicated later with 21 regard to the questioning pertaining to El Dorado County 22 that CH2M Hill had prepared maps that were provided to you. 23 Are those the same maps we are talking about? 24 MR. SEBHAT: I don't think so. These were maps 25 prepared to show what kind of land use there was. CAPITOL REPORTERS (916) 923-5447 13592 1 MR. NOMELLINI: You were given a number of different 2 inputs, at least two we have identified. You were given 3 quad sheets with red lines on them showing existing place of 4 use? 5 You have to say audibly yes. 6 MR. SEBHAT: The original consolidated place of use was 7 created from these topo maps with the red line on them, 8 period. 9 MR. NOMELLINI: Were you -- tell me again what you were 10 given as the basic information for you to do your task, 11 which I understand was inputting into the GIS system in a 12 digitized manner. 13 MR. SEBHAT: I received a set of maps of 1 to 24,000 14 scale, essentially blue-line copies of our land class maps, 15 and we digitized the red line until we completed the entire 16 polygon. 17 MR. NOMELLINI: Let's proceed slowly. 18 You were actually given blue-line copies? 19 MR. SEBHAT: Maps, yeah. 20 MR. NOMELLINI: You talked about the red line? 21 MR. SEBHAT: Yes. 22 MR. NOMELLINI: Was the red line on the blue-line 23 copies? 24 MR. SEBHAT: Yes. 25 MR. NOMELLINI: Somebody else put the red line on the CAPITOL REPORTERS (916) 923-5447 13593 1 map, not your efforts? 2 MR. SEBHAT: That is correct. 3 MR. NOMELLINI: You say those were land use or were 4 land use maps? 5 MR. SEBHAT: Land class. 6 MR. NOMELLINI: Are those maps -- when you say "land 7 class," how do they classify the land? 8 MR. SEBHAT: Basically soil irrigation suitability 9 information that the Bureau uses. 10 MR. NOMELLINI: Do you know what date the irrigation 11 suitability was that was reflected on those land class maps 12 that you used? 13 MR. SEBHAT: No. 14 MR. NOMELLINI: Do you have the set of maps that was 15 given to you? 16 MR. SEBHAT: I don't have them personally. 17 MR. NOMELLINI: Do you know where they are? 18 MR. SEBHAT: I would imagine they are at the Bureau 19 somewhere. 20 MR. NOMELLINI: Any place in particular that they might 21 be at the Bureau? 22 MR. SEBHAT: I have no idea. 23 MR. NOMELLINI: Who in the Bureau gave you the maps 24 that you used? 25 MR. SEBHAT: Mr. Chuck Johnson. CAPITOL REPORTERS (916) 923-5447 13594 1 MR. NOMELLINI: Who is that again? 2 MR. SEBHAT: Chuck Johnson. 3 MR. NOMELLINI: Chuck Johnson? 4 MR. SEBHAT: Yes. 5 MR. NOMELLINI: Is he still at the Bureau? 6 MR. SEBHAT: Yes, he is. 7 MR. NOMELLINI: What division or department is he in? 8 MR. TURNER: If I can interrupt for a moment. I was 9 interested in the basis for this questioning in light of the 10 fact -- I will admit for the record Mr. Chuck Johnson is 11 sitting in the audience, but I don't know exactly what there 12 would be -- what we would need to have him identified or 13 produced for, but we can do so. 14 MR. NOMELLINI: That is fine. Thank you. 15 C.O. STUBCHAER: Any response, Mr. Nomellini? 16 MR. NOMELLINI: We may want to call him before we are 17 through here. I just want to find out what the source of 18 the maps were. 19 Now, in turns of the CH2M Hill maps, are those 20 different than the source maps we just talked about that you 21 got from Chuck Johnson? 22 MR. SEBHAT: Yes, they are different. 23 MR. NOMELLINI: And who provided those maps to you? 24 MR. SEBHAT: CH2M Hill. 25 MR. NOMELLINI: Those maps reflected -- what did they CAPITOL REPORTERS (916) 923-5447 13595 1 reflect? 2 MR. SEBHAT: They reflected land use categories outside 3 the place of use for a given water district. 4 MR. NOMELLINI: Did they encompass all of the areas 5 shown in the Draft Environmental Impact Report that were 6 outside the place of use? 7 C.O. STUBCHAER: I have an objection. 8 Mr. Birmingham. 9 MR. BIRMINGHAM: I need to clarify something. Is Mr. 10 Sebhat being presented as a rebuttal witness? If he is, we 11 have gone way beyond the scope of his direct examination, 12 and I would object on that basis. 13 MR. TURNER: Mr. Sebhat has been presented at the 14 request of the Board and other parties to explain in more 15 detail how the maps in the DEIR were prepared. It is not 16 rebuttal; it is for further information to clarify how this 17 document was prepared. So I don't know how you would 18 categorize him. I don't think you can categorize him as a 19 rebuttal witness. 20 C.O. STUBCHAER: We appreciate your willingness to have 21 him testify. I had the similar question when we started. I 22 didn't know whether to call it rebuttal or just testimony. 23 The category we are in is rebuttal. 24 Ms. Leidigh, do you have a comment? 25 MS. LEIDIGH: I think that the purpose, as I understand CAPITOL REPORTERS (916) 923-5447 13596 1 Mr. Sebhat's testimony, was to supplement the rebuttal 2 testimony that was put on by Gale Heffler-Scott, and so I 3 think we are still doing that rebuttal. 4 MR. TURNER: If I can interrupt, Gale Heffler-Scott was 5 not presented by way of rebuttal either. It was further 6 information as to the basis for the mapping. We are not 7 rebutting anybody's evidence that has been presented in this 8 particular proceeding, not as far as I was aware. 9 C.O. STUBCHAER: Rebuttal witnesses I had noted here 10 were Connie Rupp and Frank Michny. 11 MR. TURNER: Those are the two direct witnesses and 12 presenting one witness, Don Bultema, as our rebuttal 13 witness. 14 We haven't essentially gotten to that phase yet. That was 15 coming up next. 16 C.O. STUBCHAER: It is kind of no-man's-land, I 17 guess. 18 MS. LEIDIGH: I think we have to characterize these as 19 rebuttal witnesses for purposes of this hearing because that 20 is what we are in. If somebody has an objection because 21 he's not presenting rebuttal, then I think that could be 22 looked into. But the result of them not being rebuttal 23 witnesses or responsive to something that was said in the 24 case in chief by another party is that they should not be 25 testifying. CAPITOL REPORTERS (916) 923-5447 13597 1 C.O. STUBCHAER: Well, my opinion is that, as I say, we 2 may be a little on the edges of the formal categories, but I 3 think the information presented is very important. As I 4 said before, I appreciate the Bureau's willingness to 5 present it to us. I am going to allow the questioning to 6 continue. 7 MR. NOMELLINI: I assume we were getting a further 8 direct presentation. I wasn't attempting to restrict myself 9 to some rebuttal because I don't think this rebuts anything, 10 and that was my assumption. I was just trying to find out 11 where we are. 12 MR. BIRMINGHAM: He ruled in your favor. 13 MR. NOMELLINI: I got it. 14 C.O. STUBCHAER: Mr. Atlas. 15 MR. ATLAS: This is a matter of clarification, perhaps 16 assistance to the Board. It seems to me the purpose of 17 rebuttal is respond to issues that were raised in the course 18 of cross-examination. Clearly, the issue of how these maps 19 were prepared was a matter of great deal of examination in 20 the cross-examination. I think it can be characterized as 21 necessary for purposes of the record as rebuttal and it is 22 perfectly proper. 23 C.O. STUBCHAER: And that is the category to which it 24 fits. 25 Thank you for your comments. CAPITOL REPORTERS (916) 923-5447 13598 1 Mr. Nomellini. 2 MR. NOMELLINI: Thank you. 3 MR. TURNER: If I could just add, the cross-examination 4 is limited to scope of the direct examination, correct? 5 C.O. STUBCHAER: There you go. In other words, no 6 cross-examination at all, then. We are going to provide 7 some latitude. Don't abuse the privilege. I know you 8 won't, Mr. Nomellini. 9 MR. NOMELLINI: I just want to find out what maps were 10 provided, and I understand we have got a set of 1 and 24,000 11 topo maps that were provided in a blue-line form with a red 12 line on them depicting the places, the areas within the 13 places of use; is that correct, Mr. Sebhat? 14 MR. SEBHAT: That's correct. 15 MR. NOMELLINI: We got that far. And the CH2M Hill 16 maps or something different in addition, and they reflected 17 land use categories for areas outside the areas mapped as 18 being within the place of use? 19 MR. SEBHAT: Outside place of use. 20 MR. NOMELLINI: With regard to areas outside the place 21 of use, did CH2M HillCHAER: Sustained. 18 MR. NOMELLINI: With regard to your mapping effort in 19 terms of reflecting the red line from the blue lines into 20 the GIS system, do you have any opinion as to the range of 21 accuracy of that effort in terms of miles? 22 MR. SEBHAT: Well, at 1 to 24,000 on a USGS topo map a 23 section line has the possible error of five to ten meters, 24 which amounts to 15 to 30 feet. Doesn't necessarily say 25 that they are all 30 feet. Obviously, there is that CAPITOL REPORTERS (916) 923-5447 13605 1 possibility in the publication itself. 2 Given that this Line, this red line, was a little bit 3 thicker than the section line on the same piece of paper, so 4 just kind of out of memory, guessing the felt tip-type of 5 line that was running through that map, may be a sixteenth 6 of an inch or may be an eighth of an inch. I would say 7 there was an error of anywhere from 30 to a hundred feet. 8 MR. NOMELLINI: Thirty to a hundred feet? 9 MR. KEENE: I am going to object and move to strike. 10 He indicated that that was a guess. 11 C.O. STUBCHAER: Well, his answer is on the record and 12 the qualification will be considered when we give weight to 13 the evidence. 14 MR. NOMELLINI: I think that is all I have. 15 Thank you very much. 16 C.O. STUBCHAER: Mr. Birmingham. 17 MR. BIRMINGHAM: I have no questions. 18 C.O. STUBCHAER: Staff? 19 MS. LEIDIGH: No questions. 20 C.O. STUBCHAER: Mr. Brown. 21 C.O. BROWN: I have none. 22 C.O. STUBCHAER: Mr. Sebhat, you still have that ruler? 23 MR. SEBHAT: No, it is gone. 24 C.O. STUBCHAER: Maybe a ruler and maybe just a little 25 piece of paper and a pencil on the thickness of the line on CAPITOL REPORTERS (916) 923-5447 13606 1 the large maps before you which is South Delta Water Agency 2 59, could you give an estimate using a ruler and a piece of 3 paper and a calculator and bar scale on the width of that 4 line? 5 MR. TURNER: Would you like him to use any particular 6 map? 7 C.O. STUBCHAER: The one that is on top. 8 MR. TURNER: We would be talking about the width of the 9 line on the map on 214-212-62. 10 C.O. STUBCHAER: We are talking about the line that's 11 defined as the -- called place of use on that map? 12 MR. TURNER: Correct. The large dotted line. 13 C.O. STUBCHAER: The dashed line. 14 MR. SEBHAT: The width that we're interested in? 15 C.O. STUBCHAER: Yes. 16 MR. SEBHAT: Do you have a calculator? 17 C.O. STUBCHAER: Yes. 18 THE COURT REPORTER: Mr. Turner, could I have the map 19 number again. 20 MR. TURNER: Map number 214-212-62. It is identified 21 potential service area of Delta-Mendota Canal, Application 22 Number 9368. 23 MR. SEBHAT: I am going to pick the thickest portion. 24 C.O. STUBCHAER: Average. 25 MR. SEBHAT: A quarter of a mile. CAPITOL REPORTERS (916) 923-5447 13607 1 C.O. STUBCHAER: Thank you. 2 And you mentioned that the red line was on blue-line 3 copies of quad sheets? 4 MR. SEBHAT: That's correct. 5 C.O. STUBCHAER: Is that -- are those blue lines 6 prepared by an ozalid process or a wet process or using 7 ammonia? 8 MR. SEBHAT: I can't answer that question. I don't 9 know. 10 C.O. STUBCHAER: Did you compare the dimensions of the 11 blue-line copies with the original paper copies of the USGS 12 quad sheet? 13 MR. SEBHAT: Yes. They were 1 to 24,000. 14 C.O. STUBCHAER: I meant the actual physical dimensions 15 of the map. 16 MR. SEBHAT: Yes. 17 C.O. STUBCHAER: That would be a measurement along the 18 edges, not the scale? 19 MR. SEBHAT: That's correct. 20 C.O. STUBCHAER: They were right on? 21 MR. SEBHAT: Yeah. 22 C.O. STUBCHAER: That completes the cross-examination. 23 Do you have any redirect, Mr. Turner? 24 MR. TURNER: Yes, Mr. Chairman. 25 I just have two what I hope are very quick and simple CAPITOL REPORTERS (916) 923-5447 13608 1 questions. 2 ---oOo--- 3 REDIRECT EXAMINATION OF THE DEPARTMENT OF THE INTERIOR 4 BY MR. TURNER 5 MR. TURNER: According to my notes, Mr. Stubchaer 6 [verbatim], you had responded that was presented by Mr. 7 Keene as far as the timing of the preparation of what we are 8 calling the large maps that were -- this is Figures 2.1 9 through 2.5 that are in the front of EIR showing the Trinity 10 place of use, Folsom place of use, Shasta place of use, the 11 timing of the preparation of those maps and the preparation 12 of the maps that were included in Chapter 3 that were 13 identifying the areas within each of the districts within 14 and without the place of use. 15 According to my notes you told Mr. Keene that the 16 district maps in Chapter 3 were prepared in advance or at 17 the same time as these maps in Figures 2-1 through 2-5; is 18 that correct? 19 MR. SEBHAT: That is correct. 20 MR. TURNER: But then I also had in my notes you had 21 advised Mr. Mooney in response to his questions regarding El 22 Dorado Irrigation District that the map of El Dorado 23 Irrigation District that is in here, this is in Chapter 3, 24 specifically identifying El Dorado Irrigation -- 25 MR. SEBHAT: Yeah, I know which one. CAPITOL REPORTERS (916) 923-5447 13609 1 MR. TURNER: That that one was prepared after the 2 Folsom place of use map which is Figure 2-3. So, I am 3 trying to -- 4 MR. SEBHAT: Let me clarify the smaller maps. When I 5 say the smaller maps, those are the land use maps. Those 6 maps I cannot place a specific date on all of them. Some 7 were done early on and accepted, and that was the end of 8 it. Others were done at a different time, waiting for more 9 information from CH2M Hill or trying to decipher the 10 district boundary, whatever. 11 For example, in the case of El Dorado, we were done and 12 had gone home several months, anywhere up to six months 13 before we heard from them again so that we could finish El 14 Dorado. There was a lot of dynamic time in there as to when 15 we got information and when it was mapped. So I can't say 16 map series A is fully behind map series B. They are all 17 done at different times for different reasons. 18 MR. TURNER: Thank you. 19 The final thing I want to clarify, let me just for my 20 own mind, when Mr. Nomellini was questioning you in 21 connection with the use of what we are calling the CH2M Hill 22 maps, were those maps utilized to identify the boundary 23 lines or simply the uses of the land within the boundary 24 lines that were prepared from the other sources? 25 MR. SEBHAT: The land use within. CAPITOL REPORTERS (916) 923-5447 13610 1 MR. TURNER: Just the land use within, not the actual 2 location of the boundary line? 3 MR. SEBHAT: No. 4 MR. TURNER: I would have no further questions. 5 C.O. STUBCHAER: Any recross? 6 Mr. Nomellini. 7 Anyone else? 8 Mr. Nomellini. 9 ---oOo--- 10 RECROSS-EXAMINATION OF THE DEPARTMENT OF THE INTERIOR 11 BY CENTRAL DELTA PARTIES 12 BY MR. NOMELLINI 13 MR. NOMELLINI: On CH2M Hill maps, that reflected the 14 land use, what was the basis of the information as to the 15 boundary line of the areas shown to be outside place of use? 16 MR. SEBHAT: Water district boundary. 17 MR. NOMELLINI: How was that provided to you? 18 MR. SEBHAT: We have that information on our GIS, 19 previously digitized over many years at 1 to 24,000 scale. 20 MR. NOMELLINI: So, the sources of data that you 21 utilized were the red line marks on blue-line topographic 22 maps land use maps by CH2M Hill and the already digitized 23 information within the Bureau files with regard to the 24 boundaries of the districts served by the Bureau? 25 MR. SEBHAT: Correct. CAPITOL REPORTERS (916) 923-5447 13611 1 MR. NOMELLINI: Thank you. 2 C.O. STUBCHAER: Thank you. 3 Staff? 4 Mr. Canady. 5 ---oOo--- 6 RECROSS-EXAMINATION OF THE DEPARTMENT OF THE INTERIOR 7 BY STAFF 8 MR. CANADY: Mr. Sebhat, the district boundaries that 9 are digitized in the GIS database, were they based on legal 10 descriptions? 11 MR. SEBHAT: No, they were not. 12 MR. CANADY: Thank you. 13 C.O. STUBCHAER: Mr. Brown. 14 That concludes the recross-examination. 15 Mr. Sebhat. 16 Mr. Keene. 17 MR. KEENE: Mr. Stubchaer, Mr. Turner had indicated 18 that, I am sorry, another Bureau employee had been mentioned 19 prominently in this witness's testimony, Mr. Johnson, was 20 here and might possibly be available to testify. In the 21 interest of time I would ask if we might proceed with him as 22 the next order of business. I had been the one to request 23 Mr. Sebhat. I would formally request Mr. Johnson. 24 MR. TURNER: If I -- could I ask why? What is it that 25 has not been presented that we need to get into more detail? CAPITOL REPORTERS (916) 923-5447 13612 1 I don't quite understand. 2 MR. KEENE: This witness was presented simply with quad 3 maps. Those quad maps already had drawn on them a red 4 line. The prior witnesses that had been presented by the 5 Bureau did not participate in the process and cannot answer 6 questions, nor can this witness, about the decisions that 7 were made on drawing those red lines on the quad maps. That 8 is the vital link between the maps that we have as exhibits 9 and the work that this gentleman did in regard to the GIS. 10 MR. BIRMINGHAM: Excuse me, Mr. Stubchaer. Could I 11 have a moment to confer with Mr. Keene? 12 C.O. STUBCHAER: Yes. Off the record. 13 (Discussion held off the record.) 14 MR. KEENE: I am going to -- after consultation with 15 counsel for the Westlands District and reconsidering my 16 request, I am going to withdraw my request. 17 C.O. STUBCHAER: Thank you, Mr. Keene. 18 MR. NOMELLINI: I am going to make the request, if I 19 may, Mr. Chairman. 20 C.O. STUBCHAER: And I have an answer for you. If you 21 wish to call Mr. Johnson, you can do it during our own 22 rebuttal case. 23 MR. NOMELLINI: Fair enough. 24 C.O. STUBCHAER: Are you signed up for a rebuttal 25 case? CAPITOL REPORTERS (916) 923-5447 13613 1 MR. NOMELLINI: I didn't know what I was rebutting. We 2 will coordinate with Mr. Herrick so we don't duplicate. 3 C.O. STUBCHAER: Are there any exhibits connected with 4 this? 5 MR. TURNER: No exhibits. That would complete Mr. 6 Sebhat's testimony. 7 C.O. STUBCHAER: Mr. Herrick. 8 MR. HERRICK: My exhibits, contrary to previous 9 statement, were not offered into evidence. So at the 10 appropriate time we would offer South Delta 58 and 59. 11 Fifty-eight being the list of the maps and what service area 12 they go to, and 59 the B-13 maps which is different than, 13 apparently, 14. 14 C.O. STUBCHAER: This is the appropriate time. 15 MR. HERRICK: Then I would like to offer those, please. 16 C.O. STUBCHAER: Any objections? 17 They are accepted. 18 Mr. Birmingham. 19 MR. BIRMINGHAM: I would move for the admission of 20 State Water Resources Control Board Staff Exhibit 183. 21 C.O. STUBCHAER: Those are the maps that we distributed 22 when we were off the record this morning. 23 Any objection? 24 Seeing none, they are accepted. 25 Mr. Sebhat, thank you for your appearance and CAPITOL REPORTERS (916) 923-5447 13614 1 information that you provided. And, Mr. Turner, thank you. 2 Regarding the motion, I am going to grant an extension 3 of time. Would there be anyone ready to go on Thursday, 4 which is the 22nd, the day after tomorrow, rather than 5 waiting to the 27th? 6 Mr. Birmingham. 7 MR. BIRMINGHAM: Westlands would be prepared to present 8 two witnesses on Thursday, but with the caveat if we do 9 further analysis of the maps we may want to present someone 10 later. There is testimony we can present on Thursday that 11 is unrelated to the maps. 12 C.O. STUBCHAER: I appreciate that. That was going to 13 be my next question. 14 How many parties are prepared to present their rebuttal 15 or partial portion rebuttal without relation to the maps so 16 that we could keep available days which include tomorrow, 17 not just Thursday? 18 Mr. Herrick. 19 MR. HERRICK: I have our one rebuttal witness scheduled 20 at one today. I wasn't quite sure what you were asking. 21 Are we ready for rebuttal now, or cross on the State Board 22 maps Thursday? 23 C.O. STUBCHAER: Rebuttal. 24 MR. HERRICK: Our rebuttal witness will be here at 25 1:00. CAPITOL REPORTERS (916) 923-5447 13615 1 MR. TURNER: My rebuttal witness is here available at 2 this time. 3 C.O. STUBCHAER: Mr. Birmingham, before Thursday. 4 MR. BIRMINGHAM: On evidence unrelated to the maps, 5 they could be prepared to do it tomorrow. 6 C.O. STUBCHAER: Fine, we will do that. 7 Mr. Atlas. 8 MR. ATLAS: Same is true of my rebuttal witness. If I 9 need to bring him, he cannot be here today. He could be 10 tomorrow. He would prefer being here in the afternoon 11 rather than morning, and that is unrelated to the maps. 12 C.O. STUBCHAER: Then we will make productive use of 13 the remainder of today and tomorrow and possibly Thursday. 14 Looking at the motion, could the maker of the motion 15 refine for me what's their nature of the request? 16 MR. BIRMINGHAM: Yes. We would modify the motion to 17 request that the Board provide us with an opportunity to 18 present additional rebuttal evidence based upon an analysis 19 of the maps which we received late last week and today. 20 C.O. STUBCHAER: Yes. All right. And that request is 21 granted. 22 And if you are ready Thursday, if anyone is ready to 23 present rebuttal evidence on the maps Thursday, we would 24 appreciate it. If not, we would do it on the 27th. 25 MR. BIRMINGHAM: Out of fairness, Mr. Stubchaer, I CAPITOL REPORTERS (916) 923-5447 13616 1 think appropriate to hold open the question of which parties 2 want to present a rebuttal case based upon an examination of 3 the maps. So even if Mr. Nomellini wanted to add his name 4 to the list, I think that would be appropriate. 5 C.O. STUBCHAER: I think that is a good suggestion. 6 MR. KEENE: Thank you. I was about to second that. 7 C.O. STUBCHAER: Mr. Atlas. 8 MR. ATLAS: To clarify the record, though, if the 9 motion is granted such that participation must be prepared 10 by the 27th; is that correct? 11 C.O. STUBCHAER: Yes. We proceed now with Mr. 12 Turner's rebuttal witness. Is that Mr. Bultema? 13 MR. TURNER: That's correct. 14 C.O. STUBCHAER: Morning, Mr. Bultema. 15 ---oOo-- 16 REBUTTAL TESTIMONY 17 BY THE DEPARTMENT OF THE INTERIOR 18 BY MR. TURNER 19 MR. TURNER: You were sworn in when we were here about 20 a week ago, at the last proceeding, were you not? 21 MR. BULTEMA: Yes. 22 MR. HERRICK: Excuse me, I didn't get the gentleman's 23 name. 24 MR. TURNER: Mr. Bultema, could you please state your 25 full name for the record. CAPITOL REPORTERS (916) 923-5447 13617 1 MR. BULTEMA: My name is Donald A. Bultema, spelled 2 D-o-n-a-l-d, middle initial A, last name B-u-l-t-e-m-a. 3 MR. TURNER: By whom are you employed? 4 MR. BULTEMA: I'm employed with the Bureau of 5 Reclamation. 6 MR. TURNER: What is your position? 7 MR. BULTEMA: I am a supervisor repayment specialist 8 out of the Northern California area office located in 9 Willows, California. 10 MR. TURNER: How long have you been working with the 11 Bureau? 12 MR. BULTEMA: I have been with the Bureau of 13 Reclamation since March of 1977, all in the Willows, 14 California, office. 15 MR. TURNER: You have had your current position for 16 about how long? 17 MR. BULTEMA: My current position as supervisory 18 repayment specialist for about three years. I have been 19 repayment or compliance specialist since the beginning, 20 since March 1977. 21 MR. TURNER: Again, as we have done with Mr. Sebhat, 22 since you have not been identified as one of the Department 23 of Interior witnesses when we made our original 24 presentation, could you provide a brief summary of your 25 education and work experience. CAPITOL REPORTERS (916) 923-5447 13618 1 MR. BULTEMA: Yes. I have a Bachelor of Science degree 2 in agricultural business from Chico State College. I worked 3 with the Department of Agricultural, Farmers Loan 4 Administration, for approximately seven years as a loan 5 officer/appraiser. And in March 19, '77, I went to work for 6 the Bureau of Reclamation as a compliance specialist dealing 7 mostly in acreage limitation. And from there it grew into 8 contract administration, contract negotiations. 9 MR. TURNER: Now, Mr. Bultema, I understand -- let me 10 give you a little background. I don't think you were here 11 at the time. 12 One of the parties to this proceeding is the 13 Tehama-Colusa Canal Authority in which they presented some 14 of the representatives of the various districts talking 15 about their concerns and needs for water in that particular 16 area. What I would like to do is ask you a few questions 17 about the availability of water to these particular 18 districts. 19 I would like to begin with one caveat, and that is that 20 as you may recall, Mr. Brown, Mr. Stubchaer, at the time 21 Tehama-Colusa Canal Authority, prior to them presenting 22 their evidence, I objected to the relevance of all that 23 evidence for this record. The allegations with respect to 24 applicability of county of origin, et cetera, that objection 25 was overruled. I would just like to make it clear, by CAPITOL REPORTERS (916) 923-5447 13619 1 presenting this rebuttal evidence, I am not in any way 2 intending to give the impression that I am waiving or 3 withdrawing my objection. I just feel some of the evidence 4 that was, in fact, presented by the Tehama-Colusa Canal 5 Authority is not accurate. It is not complete and it 6 misleading to be left in the record without being responded 7 to. 8 Hence, what I will be discussing with Mr. Bultema is to 9 try and present more accurate details with respect to the 10 information that was being offered on direct. 11 So, I would just like to begin, Mr. Bultema, by asking 12 you to describe for the Board, if you would, what 13 essentially has transpired. And I believe it was in 1997, 14 and which you could confirm, with respect to the possible 15 transfers of water to Tehama-Colusa Canal contractors by the 16 Corning Water District, Proberta Water District, Thomes 17 Creek Water District. 18 MR. BULTEMA: It was on January 16th, 1997, at the 19 Bureau's water users' conference in Redding, California, 20 various Reclamation staff, including myself, met with the 21 manager of Corning Water District, Winnie Jones, and I 22 believe the president of the Board of Directors of Corning 23 Water District, Barbara Patton-Sichel. 24 MR. TURNER: You want to spell that for the record, if 25 you could. CAPITOL REPORTERS (916) 923-5447 13620 1 MR. BULTEMA: I am not sure if I can spell her -- it's 2 P-a-t-t-o-n dash S-c-h-e-i-l. 3 C.O. STUBCHAER: Mr. Atlas. 4 MR. ATLAS: Just for accuracy of the record it is, 5 after the hyphen, it is S-i-c-h-e-l. 6 C.O. STUBCHAER: Thank you. 7 MR. TURNER: You can go ahead and continue. 8 MR. BULTEMA: At that meeting the discussion was 9 Corning Water District wanted to market some water, and they 10 were looking to Reclamation to facilitate possible transfer 11 of water. The discussion at that time was looking at 12 short-term transfer of water, and, I believe, the desire of 13 Corning Water District that was expressed to us was that 14 they wanted to accomplish that within the Sacramento River 15 Basin. 16 MR. TURNER: If I could interrupt you, the water they 17 wanted to transfer was this Central Valley Project water or 18 water rights water or both? 19 MR. BULTEMA: This was Central Valley Project water 20 under Corning Water District's service contract. 21 The urgency of marketing that water was presented to us 22 that -- and this was not only on behalf of Corning Water 23 District, but on behalf of Proberta Water District and 24 Thomes Creek Water District, which also have CVP water 25 service contracts that they receive water service from the CAPITOL REPORTERS (916) 923-5447 13621 1 Corning Canal, that because of the financial condition of 2 those districts, they felt if they did not find other 3 sources of revenue to help with their budget, that because 4 of the cost of CVP water, many of the water users within 5 those districts were going to be going to groundwater versus 6 taking CVP water from those districts. They indicated this 7 was a process that had been happening for a number of 8 years. 9 The rate that was proposed at that time was Corning 10 Water District and the other districts expressed to us they 11 wanted whatever rate they had to pay the United States for 12 the water plus $5 an acre-foot. The discussion we had was 13 we didn't feel that we had any market for that water or 14 places that water could be put. Discussion was transfers to 15 possibly meet refuge water demands, and that being early in 16 the year we weren't sure what those were going to be. 17 C.O. BROWN: Mr. Chairman, I have a question. 18 C.O. STUBCHAER: Mr. Brown. 19 C.O. BROWN: Mr. Turner, clarification question. 20 Was Corning going to transfer the water? Who was 21 making the transfer? 22 MR. BULTEMA: It was Corning Water District was who we 23 met with. But it was also they were looking at the 24 discussion, was Proberta, Thomes Creek would be possibly 25 involved in any transfer that could be worked out. CAPITOL REPORTERS (916) 923-5447 13622 1 C.O. BROWN: So they were talking about a transfer of 2 CVP water and then going to groundwater because it is 3 cheaper? 4 MR. BULTEMA: Many of the landholders in the district, 5 my understanding, that is what they were expressing to us, 6 was that with the cost of CVP water, many of the landholders 7 were beginning to use groundwater in lieu of surface water 8 from the Central Valley Project. 9 C.O. BROWN: Thank you. 10 MR. TURNER: Mr. Bultema, if you could pick up. You 11 were just explaining how these districts had offered the 12 water to the Bureau, and for the Bureau in effect to 13 purchase it from them, but you weren't sure the Bureau could 14 use; is that correct? 15 MR. BULTEMA: That's right. There weren't any firm 16 offers made. There was some discussion about possible other 17 users of water. What was expressed to us was that Winnie 18 Jones on behalf of the Corning Canal contractors was going 19 to meet with Glide Water District and Orland-Artois Water 20 District the following Monday. These are contractors that 21 have service contracts with Reclamation that receive water 22 from the Tehama-Colusa Canal, and she was going to offer the 23 water to them. She expressed to us that she had concerns 24 that they might not be able to afford it. And that is 25 basically the way we left the meeting. CAPITOL REPORTERS (916) 923-5447 13623 1 MR. TURNER: Do you know whether that water was, in 2 fact, marketed by any of those three districts to Glide or 3 Orland-Artois? 4 MR. BULTEMA: No, it wasn't. It wasn't until several 5 months later that I became aware of discussions that were 6 ongoing with Reclamation that that water would possibly be 7 transferred to Reclamation to be used for level four refuge 8 water supply for the Grey Lodge Wildlife Management 9 area. And later on in that year, I believe it was in 10 October, November, we reached agreement to transfer 1,600 11 acre-feet from Corning, 1,600 acre-feet from Proberta and 12 1,600 from Thomes Creek Water District. And part of that 13 agreement was that we would also continue negotiations about 14 a possible long-term acquisition or an acquisition of the 15 water, additional water, from those districts. 16 After approved, the transfer negotiations were entered 17 into with those three districts, and we, in fact, agreed to 18 purchase 2300 acre-feet from Corning Water District, 2,000 19 acre-feet from Proberta Water District and 2,000 acre-feet 20 from Thomes Creek Water District. And that water was 21 purchased with the expressed purpose of meeting level four 22 refuge water demands. 23 C.O. BROWN: Mr. Chairman. 24 C.O. STUBCHAER: Mr. Brown. 25 C.O. BROWN: Mr. Turner, excuse me again. Is the water CAPITOL REPORTERS (916) 923-5447 13624 1 that was transferred, was it made up by pumping the 2 groundwater basin there? 3 MR. BULTEMA: The concern of the districts was that 4 their landholders were going to go to groundwater, but I do 5 not know if that is what took place. 6 MR. TURNER: Does that pretty much complete your 7 explanation of what had taken place in connection with the 8 proposed transfers of water by the Corning, Proberta and 9 Thomes Creek? 10 MR. BULTEMA: The rate that -- the purchase price for 11 that was established at $700 an acre-foot, and that was 12 based upon Corning Water District's expressed need to be 13 able to pay off its noninterest-bearing and interest-bearing 14 operation and maintenance deficits that they had with 15 Reclamation. And it was expressed to us that by reducing or 16 paying those debts off, the rate that they could charge for 17 CVP water would be competitive with the rate that it would 18 cost their landholders to pump groundwater. 19 MR. TURNER: Now, the $700 per acre-foot that was paid 20 by whom? 21 MR. BULTEMA: Reclamation paid that to the districts 22 after -- the net results of that were that we paid off the 23 existing interest-bearing and noninterest-bearing operation 24 and maintenance deficits. Part of that purchase price 25 included the $60,000 we had paid for the transfer of the CAPITOL REPORTERS (916) 923-5447 13625 1 1,600 acre-feet from each of the districts. The net amount 2 was then paid directly to each of those three districts. 3 MR. TURNER: The Bureau acquired that water for what 4 term? 5 MR. BULTEMA: In perpetuity. 6 MR. TURNER: I understand that subsequent to that there 7 was another proposed transfer of water to the Tehama-Colusa 8 Canal contractors; this time simply from Elder Creek and 9 the Tehama Water districts; is that correct? 10 MR. BULTEMA: Those were not necessarily transfers. As 11 I recall, they were possibly assignments of the water supply 12 that those districts had under contract with Reclamation. 13 MR. TURNER: Were they proposing to give up -- assign 14 their entire supplies of water or just portions of it? 15 MR. BULTEMA: Both the Tehama Water District and Elder 16 Creek Water District intended to assign their entire CVP 17 water supply. Tehama Water District was a small district in 18 Tehama County that received its water supply from the 19 Tehama-Colusa Canal. They began receiving water in the mid 20 to late '80s. A small district of approximately 122 acres 21 planted to pecans. During the drought years that began, 22 late '80s, early '90s, they had to put down groundwater 23 wells because the reduced allocations they received from 24 Reclamation were not sufficient to keep their trees alive 25 and produce a crop. CAPITOL REPORTERS (916) 923-5447 13626 1 In December of '92 they wrote us a letter asking us to 2 terminate their contract because they were going to dissolve 3 the district, and they were going to rely exclusively on 4 groundwater. The reasons they gave was because of the 5 unreliability of CVP water supply, because of the fact that 6 the moss in the canal added to their operation and 7 maintenance costs and the rising costs of having to do 8 business with Reclamation, filling out forms, and so they 9 asked us to dissolve or terminate the contract. 10 MR. TURNER: These additional costs and 11 responsibilities, were they costs and responsibilities that 12 were assigned solely to these districts in the 13 Tehama-Colusa Canal service area? In other words, were they 14 the only ones facing higher prices and additional reporting 15 requirements, et cetera? 16 MR. BULTEMA: No. That was being faced by all of the 17 contractors. 18 MR. TURNER: All of the CVP contractors? 19 MR. BULTEMA: That's correct. 20 MR. TURNER: You can go ahead and proceed with what 21 took place after that. 22 MR. BULTEMA: Their request to terminate that contract, 23 we submitted that to our regional office in Sacramento. 24 There was no formal action taken on that request. Sometime 25 in April, I believe it was, of '94, Tehama Water District CAPITOL REPORTERS (916) 923-5447 13627 1 wrote us a letter, said they did not understand they could 2 possibly assign their water supply under their water service 3 contract, and they asked us if that would be possible. 4 During that period of time they entered into 5 negotiations with Glide Water District to have that water 6 supply, which amounted to a total of 400 acre-feet of CVP 7 water, assigned to Glide Water District. The conditions 8 under which Reclamation was going to allow that transfer 9 included, they had to pay Tehama Water District's 10 outstanding interest-bearing and noninterest-bearing 11 operation and maintenance deficits. Those deficits totaled 12 approximately $3,800. In addition they had to pay for 13 Tehama Water District's allocated water supply in 1993, 14 which was 260 acre-feet of water at approximately $12 an 15 acre-foot. 16 Another condition of that assignment was that Glide 17 Water District would have to waive any possible relief it 18 would receive under ability to pay on the 400 acre-feet of 19 water that was under the Tehama Water District contract. 20 MR. TURNER: If I can interrupt you for a second. 21 Could you give a brief description of waive ability to pay 22 entitlement? 23 MR. BULTEMA: I believe it was in September of 1993 the 24 Tehama-Colusa Water Users Association, which was made up of 25 the many of the water contractors on the Corning Canal and CAPITOL REPORTERS (916) 923-5447 13628 1 Tehama-Colusa Canal, requested that the Bureau of 2 Reclamation undertake an ability to pay study that is 3 allowed for under reclamation law to determine if the 4 contractors have the ability to pay the rates that were 5 being charged for Central Valley Project water. 6 MR. TURNER: If it is determined that they can't, do 7 the rates go down for those contractors? 8 MR. BULTEMA: If it was determined that there was a 9 lack of ability to pay, they can be relieved to the extent 10 of the capital component of the water rate as well as the 11 restoration fund charge that came into play, I believe it 12 was 1994, as a result of the passage of the Central Valley 13 Project Improvement Act. 14 MR. TURNER: Thank you very much. 15 Would you go on and explain what Glide's reaction was 16 to that proposed assignment. 17 MR. BULTEMA: Needless to say, they weren't happy with 18 the terms of the conditions that were placed on the 19 assignment. They fully expected to pay the deficits and the 20 1993 water costs. Waiving the ability to pay seemed to 21 upset them. And I do not recall the exact dates, but a 22 couple of months later we received a letter from Tehama 23 Water District asking us to allow them to renew their 24 contract. 25 This was during the period of time that we were CAPITOL REPORTERS (916) 923-5447 13629 1 entering into negotiations for interim renewal contracts 2 because the contracts on the Corning Canal as well as the 3 Tehama-Colusa Canal and other service areas of the CVP, 4 those contracts had expired. It was a month or two later 5 than that we checked with the district because they had 6 advised us they were going to dissolve the district, and the 7 question came up, even with the assignment or renewal, did 8 the district still exist. 9 We tried to make that determination. We checked with 10 the district and found that they had taken the legal steps 11 and officially dissolved the district in May of 1993. 12 MR. TURNER: Tehama Water District? 13 MR. BULTEMA: Tehama Water District. 14 So, we wrote to them and advised them since they had no 15 legal standing that they could not assign the contract and 16 we could not renew the contract. 17 MR. TURNER: What transpired with -- Elder Creek was 18 involved in this scenario, as well? 19 MR. BULTEMA: Elder Creek came along a little later 20 than that. During the initial stages of the interim renewal 21 contract negotiations, they expressed concern that because 22 of the rising costs of CVP water, that they felt it was to 23 their advantage, possibly, to not renew their contract and 24 pump groundwater. We tried to engage them in the interim 25 renewal contract negotiations. CAPITOL REPORTERS (916) 923-5447 13630 1 But it became evident that the feeling of the district 2 was that they did not want to renew. So, negotiations were 3 entered into between Elder Creek Water District, Glide Water 4 District and Orland-Artois Water District to assign their 5 water supply, which was 4,600 acre-feet of CVP water, and 6 assign that to Orland-Artois, the amount of 80 percent of 7 that 4,600 acre-feet and 20 percent of that 4,600 feet to 8 Glide Water District. 9 There were discussions between Reclamation and Glide 10 Water District and Orland-Artois Water District about the 11 conditions of the assignment. Elder Creek Water District 12 had a noninterest-bearing O&M deficit of approximately 13 $10,000. They had an interest-bearing deficit of $115,000. 14 The conditions under which we would agree to the assignment 15 were that the assignment would only be for three years, 16 which was the initial term of the interim renewal contracts. 17 After that there was no guarantee that Glide and 18 Orland-Artois would have that 4,600 acre-feet. 19 One of the other conditions was that in any year at 20 Reclamation's sole discretion would we only provide Glide 21 and Orland-Artois a total of 2,300 acre-feet of the 4,600 22 acre-feet. Glide and Orland-Artois had to also agree to pay 23 off the existing noninterest-bearing O&M deficit, the 24 $10,000 that accrued to Elder Creek Water District. They 25 would have to agree to pay that off in three years. CAPITOL REPORTERS (916) 923-5447 13631 1 If they did not receive the full allocation of water, 2 they would only pay a pro rata share of that. They would 3 also have to waive any relief that they would receive under 4 the ability to pay study for that portion of their water 5 supply that came from Elder Creek Water District. 6 We would have had to -- this all occurred in January of 7 '95, I believe, when we finally came out with those 8 conditions. Elder Creek Water District's contract expired 9 February 28 of '95. We did not have time to enter into 10 negotiations, so what we intended to do was have Elder Creek 11 Water District agree to renew their water service contract 12 and simultaneously execute an assignment to Glide and 13 Orland-Artois Water District. 14 But because of the conditions we placed upon it, Glide 15 and Orland-Artois chose not to go forward and Elder Creek 16 Water District elected not to renew its water service 17 contract. 18 MR. TURNER: That would pretty much complete your 19 description of the proposed transactions between Elder Creek 20 and Tehama Water Districts? 21 MR. BULTEMA: Yes. 22 MR. TURNER: We have no further evidence to produce at 23 this point, and would make Mr. Bultema available for 24 cross-examination. 25 C.O. STUBCHAER: Who wishes to cross-examine? CAPITOL REPORTERS (916) 923-5447 13632 1 Mr. Herrick, Mr. Birmingham and Mr. Atlas. 2 I think we will take our lunch break a little early and 3 begin the cross-examination at 1:00 p.m. 4 Stand in recess until 1:00 p.m. 5 (Luncheon break taken.) 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 13633 1 AFTERNOON SESSION 2 ---oOo--- 3 C.O. STUBCHAER: Afternoon. We will come back to 4 order. 5 The order of cross-examination: Mr. Atlas followed by 6 Mr. Herrick, followed by Mr. Birmingham. 7 Mr. Atlas. 8 ---oOo--- 9 CROSS-EXAMINATION OF THE DEPARTMENT OF THE INTERIOR 10 BY TEHAMA-COLUSA CANAL AUTHORITY 11 BY MR. ATLAS 12 MR. ATLAS: Good afternoon. Mark Atlas for 13 Tehama-Colusa Canal Authority. 14 I'll first give the Board, at least for ease of their 15 keeping track of what I am going to do here, a revised 16 exhibit list. I have a few number of exhibits that I may or 17 may not introduce in the course of this cross-examination. 18 I don't want to necessarily say this is an absolute list, 19 but it is close. 20 Afternoon, Mr. Bultema. 21 MR. BULTEMA: Afternoon. 22 MR. ATLAS: I have to tell you this is the first time 23 I have had the opportunity to examine somebody who has had 24 me as a guest at his kid's wedding. Maybe I haven't 25 practiced long enough or maybe I live in too small a town. CAPITOL REPORTERS (916) 923-5447 13634 1 I took a lot of notes during your direct testimony. 2 First of all, with respect to your background, Mr. 3 Bultema, you said that you started out as a compliance 4 specialist and largely your work had to do with acreage 5 limitation; is that right? 6 MR. BULTEMA: That's right. 7 MR. ATLAS: But you expanded into contract 8 administration and negotiation. Was that correct? 9 MR. BULTEMA: Yes. 10 MR. ATLAS: And you and I both know you were deeply 11 involved in the negotiations of the renewal of contracts in 12 1994 out of which came the set of interim renewal contracts 13 for TCC contractors and a number of other contractors in the 14 CVP; is that right? 15 MR. BULTEMA: That's correct. 16 MR. ATLAS: Is it fair to say you are intimately 17 familiar of details of those contracts? 18 MR. BULTEMA: Yes. 19 MR. ATLAS: In your testimony about the various 20 transfers and assignments of water, a number of times you 21 referred to the districts in the Corning Canal service area 22 having difficult financial situations, and in many cases you 23 were told that water users would turn to groundwater. I 24 want to ask you a couple questions about that. 25 If we characterize the Corning Canal service area on CAPITOL REPORTERS (916) 923-5447 13635 1 one hand versus the Tehama-Colusa Canal service area on the 2 other, is it fair to say there is more groundwater available 3 for use in the Corning service area than in the TC? 4 MR. BIRMINGHAM: Objection. Goes beyond the scope of 5 direct. 6 C.O. STUBCHAER: There was discussion about the 7 groundwater. 8 MR. ATLAS: It was a rather important factor, I 9 believe, in Mr. Bultema's testimony. 10 MR. BIRMINGHAM: There was discussion of districts 11 going from -- actually, the discussion was water users 12 within Proberta, Thomes and Corning Water Districts going to 13 groundwater. There was no testimony regarding availability 14 of groundwater to other water users in other areas of the 15 CVP. 16 MR. ATLAS: True, but I want to be sure that the Board 17 is aware that there is a distinction to be made between the 18 availability of groundwater in Corning Canal service area 19 and that in TC. I want to be sure that the Board is clear 20 that in the TC service area the groundwater -- well, I have 21 said enough. 22 C.O. STUBCHAER: Mr. Birmingham, anything else? 23 MR. BIRMINGHAM: Again, I don't think that this witness 24 in his direct examination talked about the availability of 25 groundwater even within the Corning Canal service area. He CAPITOL REPORTERS (916) 923-5447 13636 1 said that water users in those districts may go to 2 groundwater. He didn't say that -- in fact, he said he 3 didn't know if they had in response to Board Member Brown's 4 question, and he didn't talk about the availability of 5 groundwater. The Board throughout these hearings has very 6 closely adhered to the rule that cross-examination during a 7 rebuttal case, the examination is limited to the scope of 8 the direct. I think this question, even with Mr. Atlas' 9 explanation and particularly in the light of his 10 explanation, suggests this is beyond the scope of direct. 11 MR. ATLAS: I think the point of this testimony that 12 has been offered in direct is to demonstrate that Glide and 13 Orland-Artois Water Districts in particular had 14 opportunities to get water from the Corning service area, 15 and by not doing that that -- maybe I am not stating this 16 very well. That I want to be sure that it is clear that 17 these districts don't have a lot of options when it comes to 18 the water supply. That is really the point. This is 19 something of a foundational question. I will grant you 20 that. 21 C.O. STUBCHAER: All right. I will allow the question 22 to be answered, but please try to keep within the scope of 23 the rebuttal testimony. 24 MR. ATLAS: Thank you. 25 Do you remember the question? CAPITOL REPORTERS (916) 923-5447 13637 1 MR. BULTEMA: Restate it, please. 2 MR. ATLAS: As between the Corning Canal service area 3 on the one hand and the TC Canal service area on the other 4 is groundwater more available in the Corning service area 5 for those districts than in the TC service for those in the 6 TC? 7 MR. BULTEMA: I have to respond that, based upon the 8 factual reports that were written for the districts and my 9 experience, is that the Corning Canal contractors do have 10 the ability to move to groundwater more freely than some of 11 the contractors on the TC Canal. 12 MR. ATLAS: When you say some of the contractors on the 13 TC, would you include Glide and Orland-Artois? 14 MR. BULTEMA: I would include Glide Water District for 15 certain. I believe the factual reports for Orland-Artois, 16 it was indicated that there was a supplemental supply of 17 groundwater. 18 MR. ATLAS: That would serve part of Orland-Artois? 19 MR. BULTEMA: Correct. 20 MR. ATLAS: Let me ask a little bit about the 21 assignment of the water from the Corning districts, Corning, 22 Proberta and Thomes Creek, to the Unites States. The 23 consideration that the United States gave was $700 an 24 acre-foot. And you said that that was based on Corning 25 Water District's need to pay off its O&M deficits; is that CAPITOL REPORTERS (916) 923-5447 13638 1 right? 2 MR. BULTEMA: That's correct. 3 MR. ATLAS: Is it fair to say that these -- well, let 4 me ask it this way: 5 The deficit that existed are deficiencies between what 6 the district was paying the Bureau of Reclamation for its 7 water and what the actual costs the Bureau was incurring in 8 delivering that water. Is that kind of a general statement 9 of what the deficit indicates? 10 MR. BULTEMA: That is correct. 11 MR. ATLAS: Or represents, rather. 12 So in reality, if the district was entitled to buy 13 water at a particular rate but the Bureau's cost of 14 delivering to them was more, that is where the deficit 15 arose; is that right? 16 MR. BULTEMA: Yes. 17 MR. ATLAS: Those amounts had been accumulated over a 18 period of years and were reflected on the Bureau's financial 19 records; is that right? 20 MR. BULTEMA: Yes. 21 MR. ATLAS: And the cost of repaying that deficit is 22 included in the cost of each district's water under their 23 contracts? 24 MR. BULTEMA: That's correct. 25 MR. ATLAS: You also referred to the payment capacity CAPITOL REPORTERS (916) 923-5447 13639 1 study that the Tehama-Colusa Water Users Association had 2 requested on behalf of all the TC and Corning contractors in 3 September '93. That payment capacity or ability to pay 4 those terms are pretty much interchangeable, aren't they? 5 MR. BULTEMA: Yes, that's correct. 6 MR. ATLAS: They represent the same concept; is that 7 correct? 8 MR. BULTEMA: Yes. 9 MR. ATLAS: The concept is as under Reclamation law 10 users of agricultural water, irrigation water, are entitled 11 to have their ability to pay the cost of the water examined 12 according to certain formulas and guidelines that the Bureau 13 has in its regulations; is that right? 14 MR. BULTEMA: Yes. 15 MR. ATLAS: If that study demonstrates that the -- let 16 me step back. 17 What the Bureau looks at is a variety of criteria, 18 including the water supply available both from the project 19 and from other sources like groundwater; is that right? 20 MR. BULTEMA: Yes. 21 MR. ATLAS: They also look at crop patterns, soil 22 conditions, weather, all the various factors that go into 23 what it is that a district and its water users have to deal 24 with in growing their crops; is that correct? 25 MR. BULTEMA: Yes. CAPITOL REPORTERS (916) 923-5447 13640 1 MR. ATLAS: It looks at market conditions and that sort 2 of thing; is that correct? 3 MR. BULTEMA: That's correct. 4 MR. ATLAS: If the bottom line of the study is that the 5 cost of water exceeds a district's ability to pay, then who 6 pays the difference? 7 MR. BULTEMA: It is my understanding that in those 8 cases the power that share the cost goes to the power 9 users. 10 MR. ATLAS: In fact, now -- let me step back. 11 The report that was requested in September 1993, was 12 completed in the latter part of 1994; is that right? 13 MR. BULTEMA: I think the initial report was dated 14 January of 1995. I think it was essentially completed prior 15 to that time, but the published report was January '95. 16 MR. ATLAS: And the report, in fact, was prepared by an 17 economist for the Bureau of Reclamation in Sacramento; isn't 18 that right? 19 MR. BULTEMA: Yes. 20 MR. ATLAS: And the TC districts paid for that report; 21 is that correct? 22 MR. BULTEMA: It is my understanding Tehema-Colusa 23 Water Users Association, their member districts, paid for 24 that. 25 MR. ATLAS: You said the report was dated January of CAPITOL REPORTERS (916) 923-5447 13641 1 '95, but you think it was actually completed when? 2 MR. BULTEMA: I think we knew the results of that maybe 3 a month ahead of that time. But I recall that the report 4 itself was dated January of '95. 5 MR. ATLAS: In fact, wasn't there a preliminary or sort 6 of draft report released some months before, like mid 1994? 7 MR. BULTEMA: I am not sure. 8 MR. ATLAS: But the conclusion that the report came to 9 is that none of the districts in the Tehema-Colusa or 10 Corning Canal service areas have the ability to pay the cost 11 of service rate for the Bureau's water; is that correct? 12 MR. BULTEMA: I believe the initial report was that 13 there were a few districts that had some ability to pay 14 towards the restoration or capital, but there were some 15 things in that report that needed to be looked at, the 16 districts brought to Reclamation's attention, and that 17 report I think was subsequently revised and completed, I 18 believe, in August '95. And at that time it was determined 19 that, yes, none of the districts that participated in that 20 study had the ability to pay capital or restoration fund. 21 MR. ATLAS: So that the Board understands, if we could 22 establish sort of categories or charges that districts have 23 to pay in their water. There is a group of charges that 24 represent the operation and maintenance cost for facilities, 25 Central Valley Project facilities; is that right? CAPITOL REPORTERS (916) 923-5447 13642 1 MR. BULTEMA: That is correct. 2 MR. ATLAS: And then there is an element of cost that 3 represents the capital costs of construction of CVP 4 facilities; is that correct? 5 MR. BULTEMA: That's right. 6 MR. ATLAS: And then there was this charge imposed 7 under Central Valley Project Improvement Act called 8 restoration fund charge. That is another element of the 9 water rate; is that right? 10 MR. BULTEMA: Yes. 11 MR. ATLAS: When we refer to cost of service, that 12 includes operation, maintenance and capital. Does that also 13 include the restoration fund? 14 MR. BULTEMA: No, it does not. 15 MR. ATLAS: Cost of service is operation and 16 maintenance and capital. Does it include anything else? 17 MR. BULTEMA: It includes the interest-bearing and 18 noninterest-bearing operation and maintenance deficit. 19 MR. ATLAS: Let me step back for a second and ask you, 20 would you explain for the Board the difference between the 21 interest-bearing and noninterest-bearing, the concept of 22 interest-bearing versus noninterest-bearing deficit? 23 MR. BULTEMA: We talk about the deficit many of the 24 contracts for CVP water have fixed rates, and those rates 25 for many years were sufficient to -- revenues exceeded the CAPITOL REPORTERS (916) 923-5447 13643 1 expenses. But in later years those rates were insufficient 2 to cover those costs. And I believe it was in September of 3 1986 that the Coordinated Operations Agreement legislation 4 was passed. 5 Part of that Reclamation had to begin accounting on a 6 contractor-by-contractor basis on an annual basis for the 7 operation and maintenance deficit. All deficits that 8 accrued, I believe it was, prior to October 1st, 1985, were 9 considered deficits without interest. Any deficit accruing 10 after October 1st, 1985, had interest applied to it. 11 C.O. STUBCHAER: Mr. Atlas, I would like to ask a 12 question. Was that because the original contracts didn't 13 have any escalator clause for inflation? 14 MR. BULTEMA: Yes. Many of those contracts did not 15 have escalation clauses. Some had five-year ratcheting in 16 them. 17 C.O. STUBCHAER: What years did that five-year 18 ratcheting begin with, what contract signed in what years, 19 if you know? 20 MR. BULTEMA: I don't recall. I would have to go back 21 and look at those. 22 C.O. STUBCHAER: Thank you. 23 MR. ATLAS: Just to complete the picture, Mr. Bultema, 24 with respect to these deficits and fixed rates, it's true, 25 isn't it, when the Reclamation Reform Act was passed in 1982 CAPITOL REPORTERS (916) 923-5447 13644 1 that that changed the way the Bureau priced its water under 2 certain circumstances; is that right? 3 MR. BULTEMA: That's correct. 4 MR. ATLAS: Could you explain that to the Board just so 5 they have the whole picture? 6 MR. BULTEMA: What the Reclamation Reform Act did was 7 recite basically a two-track system. Contractors that had 8 CVP contracts in effect prior to enactment of that 9 legislation had the option of remaining under what is 10 referred to in that legislation as prior law, the 160-acre 11 limit. Any contracts that were amended or new contracts 12 entered into after that time became subject to the other 13 tract which was referred to as the discretionary provisions, 14 commonly referred to as new law or the 960- acre limitation. 15 Landholders within districts that chose not to renew their 16 contract that were under prior law had the ability to elect 17 to come under the discretionary provisions, gain the added 18 acreage limitation, and that was the good part for them. 19 The down side for them was that they had to agree to 20 pay at least the operation and maintenance rate or the 21 contract rate whichever was higher. 22 MR. ATLAS: Now, in 1995 all of the water service 23 contracts other than the ones you testified to that were 24 released by a couple of the districts, but all have the 25 other TC and Corning Canal contracts were renewed effective CAPITOL REPORTERS (916) 923-5447 13645 1 March 1, 1995; is that right? 2 MR. BULTEMA: That's correct. 3 MR. ATLAS: That means, just again as part of this, 4 all of those districts are required to pay the full 5 operation and maintenance costs of their water under the 6 Reclamation Reform Act provisions that you testified to? 7 MR. BULTEMA: Yes. Their contract provides that they 8 have to pay -- the contract provides they have to pay the 9 cost of service. But because of the ability to pay study, 10 they only have to pay the operation and maintenance rate. 11 MR. ATLAS: On that subject, isn't it, in fact, true 12 that the payment capacity study demonstrated that in some 13 cases at least some TC ability to pay was even less than the 14 operation and maintenance cost of their water; is that 15 correct? 16 MR. BULTEMA: For some districts that is correct. 17 MR. ATLAS: But that because of the Reclamation Reform 18 Act provisions clearly provide the charge can be no less 19 than operation and maintenance. Those districts must pay 20 the full operation and maintenance cost; is that right? 21 MR. BULTEMA: That's correct. 22 MR. ATLAS: Their capital charge is picked up by the 23 power users of the Central Valley Project; is that right? 24 MR. BULTEMA: That is my understanding. 25 MR. ATLAS: And then, the CVPIA -- in 1992 Congress CAPITOL REPORTERS (916) 923-5447 13646 1 said that districts were entitled to have a payment capacity 2 study done to determine whether they had to pay or could 3 afford to pay the restoration fund charge; is that right? 4 MR. BULTEMA: That's correct. 5 MR. ATLAS: That was actually what the TC water users 6 asked for originally, was examination of their ability to 7 pay the restoration fund charges; is that true? 8 MR. BULTEMA: I wasn't sure whether it was just for 9 relief from the restoration fund. I just knew that they had 10 paid Reclamation to do the ability to pay study. 11 MR. ATLAS: The bottom line was that those districts 12 were determined -- well, if we take the hierarchy, if you 13 will, of charges, we have O&M as kind of a base, and we know 14 that all of the TC districts must pay O&M without exception; 15 is that true? 16 MR. BULTEMA: That's correct. 17 MR. ATLAS: The next tier of charge, if you will, would 18 be the capital costs of the project; is that true? Are you 19 with me so far? 20 MR. BULTEMA: Yes. 21 MR. ATLAS: If we call the third tier restoration 22 charge, then what the payment capacity study examined and 23 determined was, first of all, they didn't have capacity to 24 pay the restoration fund charge; is that right? 25 MR. BULTEMA: Correct. CAPITOL REPORTERS (916) 923-5447 13647 1 MR. ATLAS: In addition, these districts didn't have 2 the capacity to pay the capital charge? 3 MR. BULTEMA: That's correct. 4 MR. ATLAS: In addition, some districts didn't even 5 have a capacity to pay the operation and maintenance 6 charges, but they have to under the Reclamation Reform Act? 7 MR. BIRMINGHAM: Objection. Asked and answered. 8 C.O. STUBCHAER: You may answer the question. 9 MR. ATLAS: Thank you. 10 MR. BULTEMA: Yes. 11 MR. ATLAS: The bottom line of it is the United States 12 doesn't lose anything as a result of the payment capacity 13 study, does it; it just gets the money from another source. 14 Is that right? 15 MR. BIRMINGHAM: Objection. Asked and answered twice 16 previously. 17 MR. TURNER: The further objection, what we were 18 talking about before was water supplies available to the 19 districts. Now we are talking about Bureau rates and 20 charges. I fail to see the relevance to the issue at hand. 21 MR. ATLAS: Mr. Turner opened the subject of payment 22 capacity, and I have just closed it. 23 C.O. STUBCHAER: I am going to sustain that objection 24 on the basis it has been asked and answered. 25 MR. ATLAS: I will move on. CAPITOL REPORTERS (916) 923-5447 13648 1 Let's talk a little bit about the assignments of water 2 from Corning, Proberta and Thomes Creek Water Districts. At 3 some time in the past districts had been using the water 4 that ultimately was assigned to the United States; is that 5 correct? 6 MR. BULTEMA: Yes. 7 MR. ATLAS: When they used it, that water was diverted 8 out of the Sacramento River at Red Bluff Diversion Dam; is 9 that right? 10 MR. BULTEMA: That's right. 11 MR. ATLAS: The Red Bluff Diversion Dam, in fact, 12 serves diversions both into the Corning Canal for these 13 three district and also into the Tehama-Colusa Canal for 14 those districts served by that canal; is that correct? 15 MR. BULTEMA: Yes. 16 MR. ATLAS: If the water that districts in the Corning 17 Canal had been used was later or was instead used by a 18 contractor on the TC Canal, that has no impact on uses 19 downstream of the Red Bluff Diversion Dam; is that correct? 20 MR. BULTEMA: Would you repeat the question? 21 MR. ATLAS: If water that had been diverted for a 22 Corning Canal contractor was instead diverted for a 23 Tehama-Colusa Canal contractor, that diversion, talking 24 about the same quantity of water, that diversion would have 25 no impact on users on the Sacramento River downstream of the CAPITOL REPORTERS (916) 923-5447 13649 1 Red Bluff Diversion Dam, would it? 2 MR. BULTEMA: No. 3 MR. ATLAS: I am going to show Mr. Bultema a letter I 4 have marked as TCCA Exhibit 22. Twenty copies for the 5 Board, and 15 more for others in the audience. Take a 6 moment to read it, if you would please, two pages. 7 Before I ask you about this letter, the original 8 transfer of water between the Corning districts in October 9 1997, that was 4,800 acre-feet; is that right? 10 MR. BULTEMA: That is correct. 11 MR. ATLAS: And then ultimately the long-term or the 12 permanent assignment was 6,300 acre-feet; is that right? 13 MR. BULTEMA: That's correct. 14 MR. ATLAS: Let me direct your attention to the last 15 paragraph on the first page. 16 MR. BIRMINGHAM: Objection. Relevance. Goes beyond 17 scope of direct examination. 18 C.O. STUBCHAER: Mr. Atlas, could you explain the 19 relevance? 20 MR. ATLAS: Well, I failed to -- I should have asked 21 the question first to make sure that we understand that Long 22 Hollow Water District was merged into Glide, so this, in 23 effect, is a letter from the Bureau of Reclamation to what 24 is now Glide Water District. 25 MR. BIRMINGHAM: I did not know that. I withdraw the CAPITOL REPORTERS (916) 923-5447 13650 1 objection. 2 MR. ATLAS: I apologize. 3 Mr. Bultema, for the record, this is a letter from 4 Mike, M.A. Catino, the Assistant Regional Director, to 5 Robert Feeney, the president of Long Hollow Water District. 6 But is it, in fact, true that Long Hollow Water District 7 shortly thereafter was merged with Glide Water District? 8 MR. BULTEMA: Yes. 9 MR. ATLAS: Now, directing your attention to the text 10 at the bottom of the page, the letter reads: 11 As you are aware, we are prohibited for the 12 present time from entering into any contracts 13 for water service which may have significant 14 effect on Delta water quality. We believe an 15 allocation of 7,000 acre-feet for Long Hollow 16 could not escape being labeled a significant 17 diverse, and, therefore, falls under the 18 Secretary's prohibition. If, however, the 19 Central Valley Project water supply was to 20 improve for any reason so that 7,000 21 acre-feet would no longer be considered 22 significant, we would once again entertain 23 the prospect of a contract with your 24 district. (Reading.) 25 Do you see where the letter says that? CAPITOL REPORTERS (916) 923-5447 13651 1 MR. BULTEMA: Yes. 2 MR. ATLAS: What Mr. Cation was referring to with 3 respect to the Secretary's prohibition, this was a 4 moratorium that Secretary Cecil Andrews placed on contracts 5 in the CVP about a year before; is that correct? 6 MR. BULTEMA: That's correct. 7 MR. ATLAS: In effect, that moratorium was that until 8 the United States and State of California executed what 9 ultimately became the Coordinated Operations Agreement there 10 would be no contracts signed that would have a significant 11 affect on Delta water quality? 12 MR. BULTEMA: I am not sure of the details of the 13 moratorium. I know that there was a moratorium placed on 14 entering into any new contracts. 15 MR. ATLAS: This is not a map of the Shasta place of 16 use. 17 C.O. STUBCHAER: Why are some lines quicker than 18 others? 19 MR. KEENE: It is a mapping error. 20 MR. ATLAS: I didn't cut off the Arvin-Edison service 21 area either. Mr. Bultema, this is an extract from the 22 Central Valley Project Improvement Act, specially Section 23 3408(j). Are you familiar with that or do you need time to 24 read it? 25 MR. BULTEMA: I would need to read it to familiarize CAPITOL REPORTERS (916) 923-5447 13652 1 myself again. 2 MR. ATLAS: Please do and tell me when you are done. 3 MR. BULTEMA: I'm finished. 4 MR. ATLAS: You see in particularly the language which 5 I have highlighted, as Mr. Stubchaer pointed out as thicker 6 lines. These lines are at least a quarter of a mile thick. 7 Drawn to scale, of course. 8 Did Reclamation ever offer to augment Glide Water 9 District or any TC contractors' contract with the water that 10 they obtained by assignment from the Corning districts? 11 MR. BULTEMA: No. 12 MR. ATLAS: Did the money that the United States used 13 as consideration for the Corning assignments, did that come 14 from the restoration fund? 15 MR. BULTEMA: That is my understanding. 16 MR. ATLAS: The source of that money in the restoration 17 fund is what? 18 MR. BULTEMA: These are funds that are paid in by the 19 irrigation and M&I contractors that divert CVP water. 20 MR. ATLAS: So the Bureau of Reclamation uses money, 21 the source of which was CVP water users to buy water, to 22 take it out of the TC and Corning service areas; is that 23 correct? 24 MR. BULTEMA: That's correct. 25 MR. ATLAS: Let's talk a little about the Tehama Water CAPITOL REPORTERS (916) 923-5447 13653 1 District assignment. That district had a 400 acre-foot 2 contract; is that right? 3 MR. BULTEMA: Yes. 4 MR. ATLAS: They had indicated that they didn't want to 5 renew; is that right? 6 MR. BULTEMA: That's correct. 7 MR. ATLAS: You testified in part it was because the 8 water was just too expensive, not directly but in terms of 9 the cost of dealing with RA forms and other processes 10 involved in having a district; is that correct? 11 MR. BULTEMA: Yes. 12 MR. ATLAS: Now, with respect to contracts that were a 13 part of the negotiations in 1994 for renewal, if a 14 contractor wasn't renewed by February 28, 1995, what 15 happened to that contract? 16 MR. BULTEMA: The contract expired. 17 MR. ATLAS: Isn't it true that under the provisions of 18 the CVPIA that prohibit for the time being at least any new 19 contracts, that the Bureau of Reclamation's position is that 20 such a contract that expired -- that the contractor who had 21 such a contract that expired would not be able to recover 22 that contract or have any contract until the CVPIA 23 prohibition I referred to is eliminated; is that correct? 24 MR. BULTEMA: That is my understanding. 25 MR. ATLAS: So, to put it another way, February 28, CAPITOL REPORTERS (916) 923-5447 13654 1 1995, was a drop-dead deadline, is that right, for renewal 2 of existing water service contracts? 3 MR. BULTEMA: Yes, for those that were expiring. 4 MR. ATLAS: That included Tehama Water District's 5 contract. It expired on February 28, 1995, didn't it? 6 MR. BULTEMA: That is correct. 7 MR. ATLAS: Now, during the discussions of renewal of 8 the contracts for the TC and Corning service areas, was the 9 subject of increasing water supplies for the TC contractors 10 discussed with the Bureau, to your knowledge? 11 MR. BULTEMA: Would you repeat that? 12 MR. ATLAS: During the negotiations for renewal of the 13 contract, the negotiations that went on in 1994 that 14 resulted in the March 1, 1995, interim renewal contract, 15 wasn't the subject of increasing water supplies for some TC 16 contractors discussed with the Bureau? 17 MR. BULTEMA: Yes. 18 MR. ATLAS: Didn't the Bureau say that their opinion 19 was that the CVPIA prohibited the increase in any water 20 quantities in these interim renewal contracts? 21 MR. BULTEMA: That's correct. 22 MR. ATLAS: Didn't Reclamation, in fact, suggest to 23 Glide and Orland-Artois and maybe others that their best 24 opportunity to improve their water supply circumstances for 25 the time being was to seek assignments of contracts from CAPITOL REPORTERS (916) 923-5447 13655 1 other TC districts? 2 MR. BULTEMA: Yes. 3 MR. ATLAS: In fact, isn't it Frank Dimick, who was at 4 that time Assistant Regional Director, who said that 5 specifically to Orland-Artois Water District Board of 6 Directors? 7 MR. BULTEMA: The one conversation or the one meeting 8 that I recall, it was the former area manager for the 9 Northern California area office, Paul Capener, that I 10 remember stating that to the district. 11 MR. ATLAS: This is TCCA Exhibit 23. Take your time to 12 read this, please. 13 MR. BULTEMA: I'm finished. 14 MR. ATLAS: This is a letter from Paul Capener, to whom 15 you just referred, dated May 18, 1995, to Robert Smith, the 16 president of Tehama Water District. In the center of the 17 letter, the second paragraph, if you will, it says: 18 We will consent to the assignment subject to 19 the following conditions. (Reading.) 20 And it names two conditions, Mr. Bultema, doesn't it? 21 One is that the Tehama Water District's operation and 22 maintenance deficits must be paid in full; is that correct? 23 MR. BULTEMA: Yes. 24 MR. ATLAS: The other condition and the only other 25 condition in the letter was that Tehama Water District's CAPITOL REPORTERS (916) 923-5447 13656 1 1993 water supply had to be paid for; is that correct? 2 MR. BULTEMA: Yes. 3 MR. ATLAS: Is there any mention in this letter at all 4 about a waiver of payment capacity relief? 5 MR. BULTEMA: No, there isn't. 6 MR. ATLAS: I handed you a copy of what I marked as TCC 7 Exhibit 24, a document entitled "Assignment of Contract, 8 Consent Thereto and Assumption Thereof." Take a chance to 9 review it. Let me know when you are ready. 10 MR. BULTEMA: I am ready. 11 MR. ATLAS: Have you seen this document before? 12 MR. BULTEMA: Yes. 13 MR. ATLAS: This document is an agreement by which 14 Tehama Water District and Glide Water District agreed to the 15 assignment of Tehama Water District's contract to Glide; is 16 that right? 17 MR. BULTEMA: Yes. 18 MR. ATLAS: It shows the situation of various parties 19 on behalf of those two districts, doesn't it? 20 MR. BULTEMA: Yes. 21 MR. ATLAS: On the last page there is a letter 22 addressed to Bureau of Reclamation, Northern California Area 23 Office, signed by all five directors of the water district. 24 They recite the same two conditions; isn't that correct? 25 MR. BULTEMA: Yes. CAPITOL REPORTERS (916) 923-5447 13657 1 MR. ATLAS: So, in fact, Glide Water District agreed 2 and Tehama Water District agreed this assignment would be 3 conducted with those two conditions, didn't they? 4 MR. BULTEMA: Yes. 5 MR. ATLAS: This was dated June of 1994; is that 6 correct? 7 MR. BULTEMA: That's correct. 8 MR. ATLAS: I am going to TCCA Exhibit 25. Please 9 look at that and tell me when you are ready. 10 MR. BULTEMA: I'm ready. 11 MR. ATLAS: Have you seen this letter before? 12 MR. BULTEMA: Yes. 13 MR. ATLAS: This is a letter dated August 29, 1994, 14 from Donald Parisio, president of Glide Water District, to 15 Kellye Kennedy? 16 Do you know Ms. Kennedy? 17 MR. BULTEMA: Yes. 18 MR. ATLAS: Does she still work for the Bureau of 19 Reclamation? 20 MR. BULTEMA: Yes, to my knowledge. 21 MR. ATLAS: In 1994 what was her job? 22 MR. BULTEMA: She was a repayment specialist in our 23 regional office. 24 MR. ATLAS: Let me direct your attention to the second 25 paragraph of this letter. It says: CAPITOL REPORTERS (916) 923-5447 13658 1 The Glide Water District has agreed to pay 2 all outstanding O&M deficits and water 3 charges as a condition of the assignment 4 provided that the contract is subjected to 5 interim contract renewal with Glide Water 6 District. (Reading.) 7 Do you see that? 8 MR. BULTEMA: Yes, I do. 9 MR. ATLAS: Then, the next paragraph is the one in 10 particular that I want you to play close attention to. It 11 says: 12 However, on August 25, you -- (Reading.) 13 Meaning Ms. Kennedy. 14 -- mentioned that in addition to the district 15 paying all outstanding O&M deficits and water 16 charges we must agree to waive the ability to 17 pay provision within the current rate setting 18 policy and the Central Valley Project 19 Improvement Act. (Reading.) 20 Do you see that? 21 MR. BULTEMA: Yes. 22 MR. ATLAS: What legal authority does the Bureau 23 have to take this action? This outrageous 24 action is contrary to current laws and policies. 25 Is the Bureau now moving toward a policy of CAPITOL REPORTERS (916) 923-5447 13659 1 selling water only to the highest bidders or 2 reserving it for its own? (Reading.) 3 Do you see that language? 4 MR. BULTEMA: Yes. 5 MR. ATLAS: Let me stop and step back just a moment. 6 It's true, is it not, Mr. Bultema, that the Bureau does 7 have a rate setting policy under which it sets the rates for 8 CVP irrigation water users; is that correct? 9 MR. BULTEMA: That's correct. 10 MR. ATLAS: That rate setting policy reflects the 11 existence of payment capacity relief under Reclamation law, 12 doesn't it? 13 MR. BULTEMA: I am not sure if I know that the policy 14 itself mentions that, but ability to pay is included in 15 Reclamation law. 16 MR. ATLAS: That is fine. 17 Let me ask you to turn to the last page, the last 18 paragraph says: 19 Please provide us a written response, 20 including a determination on the assignment 21 as soon as possible. (Reading.) 22 Do you see that? 23 MR. BULTEMA: Yes. 24 MR. ATLAS: To your knowledge, did the Bureau ever 25 respond to Glide Water District with respect to the Tehama CAPITOL REPORTERS (916) 923-5447 13660 1 Water District assignment after this letter? 2 MR. BULTEMA: I don't know. 3 MR. ATLAS: However, it is your testimony that the 4 assignment from Tehama to Glide Water District never did 5 occur, did it? 6 MR. BULTEMA: That's correct. 7 MR. ATLAS: None of this water that used to be used in 8 the Tehama-Colusa service area is being used by a 9 Tehama-Colusa Canal contractor, is it? 10 MR. BULTEMA: No, it is not. 11 MR. ATLAS: Did Reclamation have to pay Tehama Water 12 District anything for that 400 acre-feet? 13 MR. BULTEMA: No. 14 MR. ATLAS: Let's turn to the Elder Creek Water 15 District assignment. Elder Creek had a contract for 4,600 16 feet; is that right? 17 MR. BULTEMA: Yes. 18 MR. ATLAS: Elder Creek indicated that it was not 19 interested in renewing that contract in 1995, didn't they? 20 MR. BULTEMA: That's correct. 21 MR. ATLAS: To your knowledge, wasn't one of the 22 concerns that if they renewed their contract they would be 23 liable for their operation and maintenance deficit? 24 MR. BULTEMA: That was a concern that they expressed. 25 MR. ATLAS: Didn't they, in fact, say that they did not CAPITOL REPORTERS (916) 923-5447 13661 1 want to sign any interim renewal contract whatsoever because 2 they did not want in any way to be responsible for the 3 operation and maintenance deficit? 4 MR. BULTEMA: I believe Dennis Ward, the president of 5 Elder Creek at that time, he expressed that, yes. 6 MR. ATLAS: You said Dennis Ward, W-a-r-d, is that 7 right? For the reporter's benefit. 8 MR. BULTEMA: That's correct. 9 MR. ATLAS: But isn't it true that Glide Water District 10 and Orland-Artois Water District were willing to assume the 11 Elder Creek Water District operation and maintenance deficit 12 as a part of an assignment? 13 MR. BULTEMA: Yes. 14 MR. ATLAS: This is Tehama-Colusa Canal Authority 15 Exhibit 26. 16 Have you had a chance to read it? 17 MR. BULTEMA: Yes. 18 MR. ATLAS: This is a letter from Michael Alves, the 19 manager of Glide Water District to you, for a change. This 20 is about seven weeks after the conversation with Kellye 21 Kennedy regarding the Tehama Water District, the new 22 condition on the Tehama Water District assignment; isn't it? 23 MR. BULTEMA: That's correct. 24 MR. ATLAS: At the bottom, the last paragraph says: 25 Please provide in writing as soon as possible CAPITOL REPORTERS (916) 923-5447 13662 1 a list of requirements necessary to 2 accomplish this assignment. (Reading.) 3 Meaning the assignment from Elder Creek to Glide and 4 Orland-Artois; is that correct? 5 MR. BULTEMA: Yes. 6 MR. ATLAS: This is TCCA Exhibit 27. Also give you 7 28. 8 C.O. STUBCHAER: How many more? You can hand them all 9 at once. You can save a little more time. 10 MR. ATLAS: Actually, two more. Can I reserve them? 11 C.O. STUBCHAER: All right. 12 MR. ATLAS: Have you read those memos? 13 MR. BIRMINGHAM: Do you have a reference to those 14 memos? 15 MR. ATLAS: Have you read the documents I have handed 16 to you? 17 MR. BULTEMA: I read the October 26th. 18 MR. ATLAS: Please take your time and read the TCC 28, 19 the November 14 memorandum. 20 MR. BULTEMA: I am finished. 21 MR. ATLAS: TCCA 27 is a memorandum dated October 26th, 22 1994, to the Regional Director, Sacramento, from Paul 23 Capener, the area manager. 24 TCC 28 is a memorandum, again, to the same person from 25 the same person dated November 14, 1994; is that correct? CAPITOL REPORTERS (916) 923-5447 13663 1 MR. BULTEMA: Yes. 2 MR. ATLAS: Your name appears on the bottom left-hand 3 corner, your initial and last name. Does that mean that you 4 actually wrote these memoranda? 5 MR. BULTEMA: Yes. I drafted them. 6 MR. ATLAS: Turning your attention to TCCA 27, the 7 second paragraph -- well, first of all, it refers to the 8 Elder Creek, the proposed Elder Creek assignment to Glide 9 and Orland-Artois. The second paragraph says: 10 It is our understanding that in addition to 11 requiring payment of all outstanding 12 operation and maintenance deficits, 13 Reclamation will require Glide and 14 Orland-Artois to pay cost-of-service rates 15 and restoration fund charges for all project 16 water, including project water under existing 17 contracts. (Reading.) 18 Is that correct? 19 MR. BULTEMA: Yes. 20 MR. ATLAS: It goes on to say: 21 The districts would be waiving any relief 22 they might receive from any payment capacity 23 study which shows that the districts do not 24 have the ability to pay all or a portion of 25 these rates and charges. We have verbally CAPITOL REPORTERS (916) 923-5447 13664 1 given this information to Glide and 2 Orland-Artois, but they want a written 3 response. (Reading.) 4 Is that what the memorandum says? 5 MR. BULTEMA: Yes. 6 MR. ATLAS: In the last phrase you ask the Sacramento 7 regional office to expedite their response to you, did you 8 not? 9 MR. BULTEMA: Yes. 10 MR. ATLAS: Is it fair to say that you sent another 11 memorandum about two weeks later, obviously, dated November 12 14, 1994, and it is substantially the same as the memorandum 13 in October? You proposed the same subjects and you ask 14 again a response from Sacramento regarding conditions on the 15 assignment. 16 Is that a fair characterization of that second memo? 17 MR. BULTEMA: Yes. 18 MR. ATLAS: Almost there, Mr. Chairman. This is TCCA 19 29. It is marked 29A, but you will find, Mr. Bultema, that 20 I have attached -- it includes 29B. If you would, please 21 take a moment to review the entire thing if you need to. 22 MR. BULTEMA: I am finished. 23 MR. ATLAS: Have you seen this letter before? 24 MR. BULTEMA: Yes. 25 MR. ATLAS: For the record, this is a letter addressed CAPITOL REPORTERS (916) 923-5447 13665 1 to me, dated January 27, 1995, from Paul Capener; is that 2 correct? 3 MR. BULTEMA: Yes. 4 MR. ATLAS: Isn't this response that you were asking 5 the Sacramento -- I am sorry, let me step back. 6 Prior to sending this letter to me you, in fact, did 7 get some policy guidance from the regional office about the 8 assignment of the Elder Creek contract; is that correct? 9 MR. BULTEMA: Yes. 10 MR. ATLAS: Did you have a hand in drafting this letter 11 from Mr. Capener to me, if you recall? 12 MR. BULTEMA: Yes. I was involved in the drafting of 13 the letter. 14 MR. ATLAS: And the letter, in fact, transmits an 15 assignment agreement. In fact, the first line says: 16 Our proposed agreement to assign Elder Creek 17 Water District's interim renewal water 18 service contract to Orland-Artois Water 19 District and Glide is enclosed for your 20 review. (Reading.) 21 Is that correct? 22 MR. BULTEMA: Yes. 23 MR. ATLAS: Let me ask you to turn to Exhibit 29B and 24 ask if you recognize that as being the -- it is titled 25 "Exhibit B, Terms and Conditions on the Assignment." Is CAPITOL REPORTERS (916) 923-5447 13666 1 that an exhibit that was attached to the transmitted 2 assignment agreement? 3 MR. BULTEMA: Yes. 4 MR. ATLAS: Let me draw your attention first to 5 Condition Number 2. That says: 6 Notwithstanding Article 2(a) of the Elder 7 Creek contract, any subsequent interim 8 renewals of the Elder Creek contract or any 9 subsequent long-term renewal contracts shall 10 be at the sole discretion of the United 11 States. (Reading.) 12 Is that correct? 13 MR. BULTEMA: Yes. 14 MR. ATLAS: The next sentence says: 15 Furthermore, any statutory right of renewal 16 of the Elder Creek contract or of a long-term 17 contract which Orland-Artois and Glide may 18 have is hereby waived by each of them. 19 (Reading.) 20 Is that correct? 21 MR. BULTEMA: Yes. 22 MR. ATLAS: You were involved with the negotiations of 23 the interim renewal contracts in 1994; is that correct? 24 MR. BULTEMA: Yes. 25 MR. ATLAS: Was the issue of right of renewal of CAPITOL REPORTERS (916) 923-5447 13667 1 contracts one of the most contentious issues negotiated 2 between the CVP contractors and the Bureau of Reclamation? 3 MR. BULTEMA: I was not involved in the negotiations 4 down in Sacramento where that issue came up. I heard about 5 it secondhand and am aware of it, yes. 6 MR. ATLAS: Is the characterization I gave of the 7 contentious nature of that issue a fair characterization of 8 the reports made to you? 9 MR. BULTEMA: Yes. 10 MR. ATLAS: Every other CVP interim renewal contract 11 contains strong language about the contractor's right to 12 renew, does it not? 13 MR. BULTEMA: Yes. 14 MR. ATLAS: So, in effect, here in this condition 15 Reclamation was demanding that these two districts waive 16 that negotiated issue; isn't that correct? 17 MR. BULTEMA: Yes. 18 MR. ATLAS: Number 3 says: 19 Notwithstanding the fact that the entitlement 20 to project water, pursuant to Article 3(a) of 21 the Elder Creek contract is 4,600 acre-feet 22 during any year... (Reading.) 23 The balance of the condition in essence says that the 24 districts can only rely on receiving one half of that water 25 supply in any particular year and will receive the other CAPITOL REPORTERS (916) 923-5447 13668 1 half only if the contracting officer, reading now from Line 2 16: 3 If the contracting officer -- (Reading.) 4 That means the Bureau of Reclamation, doesn't it? 5 MR. BULTEMA: Yes. 6 MR. ATLAS: If the contracting officer determines 7 in his sole discretion that the balance of 8 the 4,600 acre-are feet is needed for other 9 authorized purposes of the Central Valley 10 Project. (Reading.) 11 To your knowledge, does any other CVP interim renewal 12 contract have such a discretion provision regarding the 13 determination of how much water a contractor receives? 14 MR. BULTEMA: Not to my knowledge. 15 MR. ATLAS: If you would, for a moment, please, turn to 16 Page 9, Condition Number 7, my favorite. That condition 17 says that: 18 There shall be no reductions in or deferrals 19 of the rates and changes, payments -- 20 (Reading.) 21 That is how it reads. 22 -- required pursuant to Paragraph 6 of this 23 Exhibit 6, or any other payments due from 24 Orland-Artois or Glide, pursuant to the 25 Elder Creek contract and this assignment CAPITOL REPORTERS (916) 923-5447 13669 1 contract, to either district having a lack of 2 present or future ability to pay under 3 federal reclamation law. (Reading.) 4 Is that correct? 5 MR. BULTEMA: Yes. 6 MR. ATLAS: So, in reality, the Bureau backed off 7 slightly from what you had verbally advised the districts, 8 and that is that the Bureau was asking these two districts 9 to waive their payment capacity with respect to the Elder 10 Creek water, but was allowing the districts to retain their 11 payment capacity relief under their own water service 12 contracts; is that correct? 13 MR. BULTEMA: Yes. 14 MR. ATLAS: To your knowledge, did any other CVP 15 renewal contract have this sort of provision in it? 16 MR. BULTEMA: Not to my knowledge. 17 MR. ATLAS: Let's go to Item Number 4 on Page 6, 18 please. 19 In reality, the affect of Item 7, if the districts had 20 agreed to it, is that Elder Creek Water District's water 21 would have been somewhat more if not significantly more 22 expensive than Glide or Orland-Artois contract water; is 23 that correct? 24 MR. BULTEMA: Yes. 25 MR. ATLAS: So, in Item Number 4 the Bureau of CAPITOL REPORTERS (916) 923-5447 13670 1 Reclamation says: 2 Project water provided to Orland-Artois and 3 Glide, pursuant to the Elder Creek contract 4 as opposed to their own separate interim 5 renewal contracts with the United States, 6 will be deemed to be the first project water 7 scheduled and used by the districts in any 8 year. Notwithstanding Article 3 of the Elder 9 Creek contract, Orland-Artois and Glide may 10 not request that this project water be 11 carried over to the next year. 12 (Reading.) 13 There are only two subjects dealt with, aren't there, 14 Mr. Bultema? The first is that the districts have to take 15 Elder Creek water, the more expensive water first; is that 16 right? 17 MR. BULTEMA: Yes. 18 MR. ATLAS: Whatever the Bureau decides what they can 19 have of it; isn't that right? 20 MR. BULTEMA: Yes. 21 MR. ATLAS: And then -- let me stop. Strike that. 22 And then, in addition, it prohibits those two 23 districts from carrying over any of the Elder Creek water; 24 is that correct? 25 MR. BULTEMA: That's correct. CAPITOL REPORTERS (916) 923-5447 13671 1 MR. ATLAS: Let me ask you, the interim renewal 2 contracts and the CVP do allow contractors to carry over 3 water under certain circumstances; isn't that right? 4 MR. BULTEMA: I am not sure how to answer that. I 5 know that we give them credit if they do not use the amount 6 of water that they have scheduled and paid for. We give 7 them credit. 8 MR. ATLAS: Let me ask it a different way. Is it your 9 understanding that this sentence, this last sentence of 10 Item Number 4 would have represented a loss of a right under 11 the Elder Creek assignment that Orland-Artois and Glide had 12 that they could exercise under their own contracts? 13 MR. BULTEMA: Yes. 14 MR. ATLAS: I am handing you TCCA Exhibit 30. For the 15 time being TCCA's last exhibit, which I know you will be 16 relieved to know. Read it? 17 MR. BULTEMA: Yes. 18 MR. ATLAS: Have you seen it before, Mr. Bultema? 19 MR. BULTEMA: I am not sure if I have. 20 MR. ATLAS: The letter, TCCA Exhibit 30, is a letter 21 dated February 23, 1995, Franklin Dimick, who was then the 22 Assistant Regional Director in Sacramento, from Michael 23 Alves, manager of Glide Water District. 24 And it is true, is it not, that in the letter the 25 district agrees to conditions Number 2, and that is as to CAPITOL REPORTERS (916) 923-5447 13672 1 Elder Creek water only, but not as to at least Glide's 2 water, Glide Water District was willing to accept the waiver 3 of any right to subsequent renewal; is that correct? 4 MR. BIRMINGHAM: Objection. Lacks foundation. The 5 witness has said he doesn't recall ever having seen this 6 letter. If he doesn't recall having seen it, there is no 7 basis for him answering the questions that are based on the 8 letter. 9 C.O. STUBCHAER: Mr. Atlas. 10 MR. ATLAS: I will withdraw the question and ask it 11 another way. 12 Mr. Bultema, is it your understanding that Glide Water 13 District was willing to accept some, but not all of the 14 conditions that the Bureau proposed in TCCA Exhibit 29B? 15 MR. BULTEMA: Yes. 16 MR. ATLAS: Specifically, Glide Water District 17 rejected the conditions that allowed the Bureau in its 18 discretion to deliver only half the water provided and they 19 rejected the condition regarding waiver of payment capacity; 20 is that correct? 21 MR. BULTEMA: Yes. 22 MR. ATLAS: Did Reclamation ever respond to this 23 letter, to your knowledge? 24 MR. BIRMINGHAM: Objection. Again, lacks foundation. 25 If the witness hasn't ever seen the letter, there isn't any CAPITOL REPORTERS (916) 923-5447 13673 1 way he can know if it was ever responded to. I think Mr. 2 Atlas could ask him, "Do you know if the Bureau ever 3 responded to the rejection" that he just asked about, but 4 not specifically to the letter. 5 C.O. STUBCHAER: Mr. Atlas. 6 MR. ATLAS: Perhaps I will ask the question that way, 7 Mr. Chairman. 8 Do you know, Mr. Bultema, if the Bureau's ever 9 responded to Glide's response on the proposed conditions to 10 the Elder Creek assignment? 11 MR. BULTEMA: I don't know. 12 MR. ATLAS: Is any of the water that was previously 13 available under the Elder Creek Water District contract 14 being used by any district in the Tehama-Colusa Canal 15 service area now? 16 MR. BULTEMA: Not to my knowledge. 17 MR. ATLAS: Did Reclamation have to pay Elder Creek 18 Water District anything for this water? 19 MR. BULTEMA: No. 20 MR. ATLAS: In reality, isn't it correct that what 21 happened is that the United States absorbed the $125,000 O&M 22 deficit which Glide and Orland-Artois Water Districts were 23 willing to pay? 24 MR. BULTEMA: I would only respond that the deficit, it 25 is my understanding, still exists. CAPITOL REPORTERS (916) 923-5447 13674 1 MR. ATLAS: Is there anybody, to your knowledge, who is 2 contractually obligated to pay that deficit to the United 3 States? 4 MR. BULTEMA: Not to my knowledge. 5 MR. ATLAS: I have no further questions. 6 C.O. STUBCHAER: Mr. Atlas. 7 Mr. Herrick. 8 ---oOo--- 9 CROSS-EXAMINATION OF THE DEPARTMENT OF THE INTERIOR 10 BY SOUTH DELTA WATER AGENCY 11 BY MR. HERRICK 12 MR. HERRICK: Afternoon, Mr. Chairman, Board Members. 13 John Herrick once again for South Delta Water Agency. 14 Mr. Bultema, you said that earlier you were in charge 15 of or handling compliance for the Bureau; is that right? 16 MR. BULTEMA: That's correct. 17 MR. HERRICK: For the area we are talking about up 18 there? 19 MR. BULTEMA: Yes. 20 MR. HERRICK: As part of that, you were familiar with 21 the various authorities that exist for the Bureau 22 delivering, transferring or purchasing water? 23 MR. BULTEMA: Yes. 24 MR. HERRICK: Is one of those authorities the CVPIA? 25 MR. BULTEMA: That is correct. CAPITOL REPORTERS (916) 923-5447 13675 1 MR. HERRICK: You talked about various transfers; one 2 of them was the Corning District; is that correct? 3 MR. BULTEMA: Yes. 4 MR. HERRICK: And although apparently there were 5 various discussions, eventually the Bureau purchased 4,800 6 acre-feet on the short-term and then 6,300 feet on the 7 long-term; is that correct? 8 MR. BULTEMA: That's correct. 9 MR. HERRICK: Is it your understanding that those 10 districts would switch from the surface water being 11 supplied, previously supplied, by CVP to groundwater? 12 MR. BULTEMA: If the demand for the additional water 13 was there, that they would have to go to groundwater, yes. 14 MR. HERRICK: Are you familiar with CVPIA's 15 restrictions on transfers? 16 MR. BULTEMA: Yes. 17 MR. HERRICK: Doesn't that statute limit transfers to 18 any water that would have been consumptively used or 19 irretrievably lost? 20 MR. BULTEMA: In certain instances. 21 MR. HERRICK: Did the Bureau establish whether or not 22 when they purchased 4,800 acre-feet of water that resulted 23 in a decrease of consumptively used water or water that 24 would have been irretrievably lost? 25 MR. BIRMINGHAM: I am going to object to the question CAPITOL REPORTERS (916) 923-5447 13676 1 on the ground of relevance. 2 C.O. STUBCHAER: Excuse me, I was guilty of being 3 diverted. It was my fault. The question, you were 4 objecting on the grounds of relevance. 5 Can you repeat the question? 6 MR. HERRICK: When the Bureau purchased 4,800 acre-feet 7 of water from the Corning District, did it determine whether 8 or not there would be a decrease in consumptive use by that 9 district or decrease in water that would have been 10 irretrievably lost? 11 C.O. STUBCHAER: The question may be answered. 12 MR. BULTEMA: The transfer was for the purpose of 13 providing level four water to the Grey Lodge Wildlife 14 Management Area, and we made the determination that that 15 refuge is operated by the Department of Fish and Game. They 16 were a CVP contractor; they did not have to meet that 17 criteria. 18 MR. HERRICK: Who didn't have to meet the criteria? 19 MR. BULTEMA: The transferors, to transfer that water 20 to Grey Lodge. Since it involved CVP to CVP contractor, 21 they did not have to meet that limitation under CVPIA. 22 MR. HERRICK: How was that determination made? 23 MR. BULTEMA: I don't know. 24 MR. HERRICK: Is it your understanding that there is 25 some provision of CVPIA that excludes from the transfer CAPITOL REPORTERS (916) 923-5447 13677 1 provisions, excludes water from CVP contractor to CVP 2 contractor? 3 MR. BULTEMA: In the transfer provision of that act it 4 specifically exempts transfers from CVP contractors to CVP 5 contractors from certain provisions, and that criteria to 6 show reduction consumptive use is one of those exemptions. 7 MR. HERRICK: What happens with the transferred water 8 in these instances that you mentioned if it doesn't all go 9 to level four use in one year? 10 MR. BULTEMA: I don't know. 11 MR. HERRICK: Is that a possibility, that it doesn't go 12 to level four? 13 MR. BULTEMA: That's a possibility. 14 MR. HERRICK: Might that water be released for eventual 15 export from the Delta in that instance? 16 MR. BULTEMA: I don't know that. 17 mr. HERRICK: I have no further questions. 18 C.O. STUBCHAER: Mr. Birmingham. 19 ---oOo--- 20 CROSS-EXAMINATION OF THE DEPARTMENT OF THE INTERIOR 21 BY WESTLANDS WATER DISTRICT 22 BY MR. BIRMINGHAM 23 MR. BIRMINGHAM: Mr. Bultema, my name is Tom 24 Birmingham. I am an attorney representing Westlands Water 25 District. I have a few questions for you. CAPITOL REPORTERS (916) 923-5447 13678 1 On direct examination by Mr. Turner you testified that 2 the Bureau was approached by Proberta, Corning and Thomes 3 Creek Water Districts in January of 1997 about a potential 4 water transfer? 5 MR. BULTEMA: That's correct. 6 MR. BIRMINGHAM: And as a result of those discussions, 7 there was a temporary transfer of 1,600 acre-feet from each 8 of the districts. 9 MR. BULTEMA: That is correct. 10 MR. BIRMINGHAM: The water that was transferred as a 11 result of those discussions was used by Reclamation for 12 level four refuge supplies? 13 MR. BULTEMA: Yes. 14 MR. BIRMINGHAM: I believe you testified in response to 15 questions by Mr. Turner and by Mr. Herrick that that water 16 was supplied to the Grey Lodge Wildlife Refuge? 17 MR. BULTEMA: That's correct. 18 MR. BIRMINGHAM: Where is the Grey Lodge Wildlife 19 Refuge? 20 MR. BULTEMA: It is located, I believe, in Butte 21 County. I guess the nearest city would be Gridley. 22 MR. BIRMINGHAM: Is Grey Lodge Wildlife Refuge in the 23 Sacramento Valley? 24 MR. BULTEMA: Yes. 25 MR. BIRMINGHAM: So, if Proberta, Corning and Thomes CAPITOL REPORTERS (916) 923-5447 13679 1 Creek Water Districts are within the area of origin of CVP 2 water supplies because they are within the Sacramento 3 Valley, then Grey Lodge Wildlife Refuge would also be in the 4 area of origin? 5 MR. BULTEMA: I don't know that. 6 MR. BIRMINGHAM: A few moments ago in response -- 7 excuse me. 8 Mr. Herrick, may I borrow your copy of the Central 9 Valley Project Improvement Act? 10 A few moments ago in response to a question by Mr. 11 Herrick you responded that the transfer from Proberta, 12 Corning and Thomes Creek Water Districts to the Bureau for 13 use by the Grey Lodge Wildlife Refuge was not subject to the 14 requirement that the transfer of water was conserved water? 15 I am paraphrasing, but was that your testimony? 16 MR. BULTEMA: Yes, they didn't have to meet that 17 limitation. 18 MR. BIRMINGHAM: Specifically, I would like to call 19 your attention to section 3405 (A)(1)(m) of the Central 20 Valley Project Improvement Act, and maybe you could take a 21 moment and read that subsection into the record for me. 22 MR. BULTEMA: Transfer between Central Valley 23 Project contractors within -- (Reading.) 24 It says countries; I believe it means -- 25 -- counties, watersheds or other areas of CAPITOL REPORTERS (916) 923-5447 13680 1 origin as those terms are utilized under 2 California law shall be deemed to meet the 3 conditions set forth in subparagraphs (A) and 4 (I) of this paragraph. (Reading.) 5 MR. BIRMINGHAM: And subparagraph (I) is the subsection 6 that states: 7 The water subject to any transfer undertaken 8 pursuant to this subjection shall be limited 9 to water that would have been consumptively 10 used or irretrievably lost to beneficial use 11 during the year or years of the transfer. 12 (Reading.) 13 Is that correct? 14 MR. BULTEMA: That is correct. 15 MR. BIRMINGHAM: Is it your understanding that the 16 Department of the Interior made a determination under 17 subsection 3405 (A)(1)(m) that the transfer from Proberta, 18 Corning and Thomes was not subject to the requirement of 19 34O5 (A)(1)(i)? 20 MR. BULTEMA: That's correct. 21 MR. BIRMINGHAM: Now the temporary transfer that was a 22 result of your 1997 discussions with Barbara Patton-Sichel 23 and Winnie Jones resulted in a transfer of 6,000 acre-feet? 24 MR. BULTEMA: The transfer was 4,800 acre-feet total. 25 MR. BIRMINGHAM: The cost of that transfer was CAPITOL REPORTERS (916) 923-5447 13681 1 $60,000? 2 MR. BULTEMA: We paid each district $60,000. 3 MR. BIRMINGHAM: You said that at the conclusion of 4 your discussion with Ms. Patton-Sichel and Winnie Jones on 5 January 16th, 1997, Ms. Jones indicated to you that she was 6 going to be meeting with Glide Water District and 7 Orland-Artois Water District to offer the water to those 8 districts; is that correct? 9 MR. BULTEMA: That is what she told us. 10 MR. BIRMINGHAM: In response to a question by Mr. 11 Turner you testified that the water was not marketed to 12 Glide Water District or Orland-Artois Water District. Do 13 you know if the water that was the subject of a temporary 14 transfer was ever offered to Glide Water District or 15 Orland-Artois Water District? 16 MR. BULTEMA: I don't know. 17 MR. BIRMINGHAM: When was the Bureau first approached 18 by Corning Canal Water District, Proberta Water District and 19 Thomes Creek Water District about the potential for a 20 long-term transfer? 21 MR. BULTEMA: It occurred after that meeting on January 22 16th, 1997, but I do not know if it was three months, four 23 months, six months afterwards. 24 MR. BIRMINGHAM: And you testified that as a result of 25 those discussions concerning a long-term transfer the Bureau CAPITOL REPORTERS (916) 923-5447 13682 1 paid to Corning Canal Water District, Proberta Water 2 District and Thomes Water District $700 per acre-foot for a 3 permanent transfer of 2,300 acre-feet, 2,000 acre-feet and 4 2,000 acre-feet respectively? 5 MR. BULTEMA: That is correct. 6 MR. BIRMINGHAM: Now, you testified that there was some 7 urgency as to the need on the part of the districts to 8 obtain the money resulting from the transfer? 9 MR. BULTEMA: That is correct. 10 MR. BIRMINGHAM: And that the $700 per acre-foot was 11 established because that was the amount that would be 12 required to pay off what you characterized as 13 noninterest-bearing and interest-bearing O&M deficits? 14 MR. BULTEMA: For Corning Water District that was the 15 stated purpose, to pay off both of those deficits. 16 MR. BIRMINGHAM: I know that Mr. Atlas asked you 17 briefly about this, but could you please explain what is an 18 O&M deficit? 19 MR. BULTEMA: Well, again, the contracts provided that 20 there were, in many cases, fixed rates or rates not subject 21 to annual renewals. And those revenues generated from the 22 payment of those water rates on water provided from the 23 Central Valley Project were not sufficient to cover the 24 actual cost of delivering the water, and so that difference 25 is deficit. And as I mentioned earlier, those deficits that CAPITOL REPORTERS (916) 923-5447 13683 1 accrued prior to October 1st, 1985, were without interest. 2 Those that accrued after October 1, 1985, accrued with 3 interest. That was a result of the Coordinated Operations 4 Agreement legislation. 5 MR. BIRMINGHAM: As a result of the Coordinated 6 Operating Agreement legislation -- was that an act of 7 Congress? 8 MR. BULTEMA: Yes. 9 MR. BIRMINGHAM: As a result of the 1985 enactment of 10 Congress, the Bureau was required to charge interest on any 11 O&M deficit that resulted from the underpayment of the 12 actual costs of operating and maintaining the project? 13 MR. BULTEMA: Yes. 14 MR. BIRMINGHAM: Was there anything else that was 15 enacted in 1985 as part of the Coordinated Operating 16 Agreement legislation that pertained to the repayment of 17 project facilities? 18 MR. ATLAS: I am going to object and ask the relevance 19 of that question. 20 C.O. STUBCHAER: Table is turned, Mr. Birmingham. 21 MR. BIRMINGHAM: Well, maybe if we get an answer -- 22 this is a foundational question. I am on cross-examination; 23 I can ask a leading question. 24 MR. ATLAS: Look behind you. 25 MR. BIRMINGHAM: I will withdraw the question. CAPITOL REPORTERS (916) 923-5447 13684 1 Isn't it correct, Mr. Bultema, that as part of the 2 legislation that related to the Coordinated Operating 3 Agreement that Congress established that the capital 4 facilities of the Central Valley Project were to be repaid 5 by the year 2030? 6 MR. ATLAS: Still object on the basis of relevance. I 7 don't see the relevance of this. 8 MR. BIRMINGHAM: Mr. Atlas asked a number of questions 9 about the obligation of these districts, these districts 10 being the districts of Corning Canal and the Tehama-Colusa 11 Canal, their obligation to pay the capital component of the 12 Bureau's rates, and Mr. Atlas is the one who opened this 13 line. 14 C.O. STUBCHAER: That is irrelevant, but -- 15 Mr. Atlas. 16 MR. ATLAS: Subject matter was how the rates were set 17 for the districts, not specifically how to calculate it, 18 but I established the tiers of O&M, capital, restoration 19 fund, and how those rates were specifically calculated. And 20 the legislation underlies those, I didn't get into that. I 21 don't think it is relevant. The number of questions I may 22 have asked doesn't make the question relevant. 23 C.O. STUBCHAER: Mr. Nomellini. 24 MR. NOMELLINI: This is rebuttal testimony, and the 25 questions are supposed to be limited to scope of the CAPITOL REPORTERS (916) 923-5447 13685 1 rebuttal, not the scope of cross-examination of the 2 rebuttal. I am quoting Mr. Birmingham. 3 MR. BIRMINGHAM: He is. 4 C.O. STUBCHAER: The thought occurred to me earlier, 5 but I can't state it. 6 Mr. Birmingham, try again. 7 MR. BIRMINGHAM: We'll get to it the long way. You 8 indicated in direct examination under Mr. Turner's questions 9 that there was a repayment study that was conducted at the 10 request of Tehama-Colusa Canal Water Users Association? 11 MR. BULTEMA: That's correct. 12 MR. BIRMINGHAM: As a result of the prepayment capacity 13 or the study that you referred to in response to Mr. 14 Turner's question, there was some relief provided to the 15 districts in the TC service area? 16 MR. BULTEMA: That is correct. 17 MR. BIRMINGHAM: What was the relief provided to the 18 districts in the TC service area? 19 MR. BULTEMA: It was relief from having to pay capital 20 component as well as the restoration fund charge. 21 MR. BIRMINGHAM: What is the capital component? 22 MR. BULTEMA: Getting beyond my knowledge of how all 23 that is calculated. I know that the rate box that we have, 24 there is a capital rate. How that is all calculated, is 25 beyond the scope of my expertise. CAPITOL REPORTERS (916) 923-5447 13686 1 MR. BIRMINGHAM: You testified earlier that you are a 2 repayment specialist? 3 MR. BULTEMA: Yes. 4 MR. BIRMINGHAM: Now, what is the capital component 5 supposed to pay? First, let me ask you this question: The 6 capital component is a component of what you referred to in 7 examination by Mr. Turner as a full cost rate? 8 MR. BULTEMA: I believe we use the term 9 "cost-of-service rate" which includes a capital component, 10 the operation and maintenance rate component and if there 11 are outstanding O&M deficits, whether they are 12 interest-bearing or noninterest-bearing. 13 MR. BIRMINGHAM: Do you know in the cost-of-service 14 rate is there a component for interest on capital costs? 15 MR. BULTEMA: It is my understanding for irrigation 16 there is no interest. 17 MR. BIRMINGHAM: What is the capital component of the 18 cost-of-service rate intended to cover? 19 MR. ATLAS: Object on the basis of relevance. This 20 doesn't have anything to do with what Mr. Bultema testified 21 to so far. 22 C.O. STUBCHAER: Mr. Birmingham. 23 MR. BIRMINGHAM: The rebuttal testimony, the direct 24 rebuttal testimony, dealt specifically with the repayment 25 analysis that was done at the request of the TC Canal or TC CAPITOL REPORTERS (916) 923-5447 13687 1 Water Users Association. Mr. Bultema testified that, as a 2 result of that analysis, there was some relief provided 3 under the federal reclamation law, and I think that my 4 asking what relief, what that relief means is certainly 5 within the scope. And it certainly is relevant because it 6 is the position of the Tehama-Colusa Canal Authority water 7 districts that they are entitled to additional water. And 8 whether or not they can afford to pay for the additional 9 water from our perspective is relevant to whether or not 10 they are entitled to receive that water. 11 MR. ATLAS: It is not relevant. Whether or not 12 Westlands believes that the districts that I represent are 13 entitled to water because they can afford it or not is not 14 relevant. 15 The fact is that under federal law Mr. Bultema's 16 testified that these districts requested the Bureau to exam 17 the districts' ability to pay for the water. The result of 18 the examination is that they cannot afford for the entire 19 cost of the water and under reclamation law that the power 20 users are paying it for them. Those two elements. What 21 goes into those elements, how much they are, never asked 22 that. It is not relevant, doesn't matter. They are 23 entitled to that relief. We get that relief. That is all 24 there is to it. 25 And the actual issue before the Board and upon which CAPITOL REPORTERS (916) 923-5447 13688 1 Mr. Bultema testified in direct and under my cross was 2 whether or not the Bureau of Reclamation demanded that those 3 districts waive that legal right that they have to payment 4 capacity relief as a condition of assignment of these 5 contracts. That's the issue. 6 MR. BIRMINGHAM: Whether or not -- what was being asked 7 by -- what the Bureau was asking them to waive is certainly 8 relevant to whether or not it was a reasonable condition 9 imposed by the Bureau. I think it is certainly relevant. 10 C.O. STUBCHAER: Besides that you previously asked the 11 witness a question about the capital cost component, and he 12 didn't know. Now you are asking him what is it intended to 13 cover. 14 MR. BIRMINGHAM: He said he wasn't sure how it was 15 calculated. That is a different question than what it is 16 intended to cover. 17 C.O. STUBCHAER: All right. I am going to permit the 18 question to be answered, if you can. 19 MR. BULTEMA: Could you repeat the question? 20 MR. BIRMINGHAM: Yes. 21 You testified that the cost-of-service rate has an O&M 22 component, a capital component, and if there is an 23 outstanding O&M deficit an O&M deficit component. Is that 24 correct? 25 MR. BULTEMA: That's correct. CAPITOL REPORTERS (916) 923-5447 13689 1 MR. BIRMINGHAM: You testified that the O&M component 2 is intended to cover the operation and maintenance costs of 3 the project? 4 MR. BULTEMA: For those facilities that apply for that 5 contractor, yes. 6 MR. BIRMINGHAM: And the operation and maintenance 7 component -- excuse me, the operation and maintenance 8 deficit component is a component of the rate intended to 9 cover the operation and maintenance deficit that you 10 previously described? 11 MR. BULTEMA: That's right. 12 MR. BIRMINGHAM: The question I asked a few moments ago 13 was: What is the capital component intended to cover? 14 MR. BULTEMA: It is my understanding from the 15 coordinated operations legislation that all CVP facilities 16 that were in place, I think including New Melones, and that 17 it established the repayment period for all of those 18 facilities. 19 MR. BIRMINGHAM: When you say the "repayment period," 20 what do you mean? 21 MR. BULTEMA: I believe the legislation said there was 22 a 50-year repayment period that began in 1980 to completion, 23 which was a completion date of New Melones. So the 24 facilities in place at that time are to be paid, repaid by 25 the year 2030. CAPITOL REPORTERS (916) 923-5447 13690 1 MR. BIRMINGHAM: As part of the Coordinated Operations 2 Agreement legislation, Congress established a period ending 3 in 2030 by which the capital facilities were to be repaid? 4 MR. BULTEMA: That were in service at that time, yes. 5 MR. BIRMINGHAM: Thank you. 6 Now, I would like to ask you specifically about some of 7 the documents -- 8 C.O. STUBCHAER: Mr. Birmingham, how long do you think 9 your examination will require? 10 MR. BIRMINGHAM: Forty-five minutes. 11 C.O. STUBCHAER: We are going to take our afternoon 12 break now. That is a good point; you are already 13 interrupted. 14 (Break taken.) 15 C.O. STUBCHAER: We are reconvened. The hearing is 16 back on the record. 17 Mr. Sandino. 18 MR. SANDINO: Mr. Stubchaer, thank you very much. I 19 would like to raise a brief procedural matter with you. I 20 would like to make a oral motion to extend the due date for 21 the Phase VI brief from, I believe it is currently set for, 22 May 3rd for two weeks to May 17th. The reason I am 23 requesting this is because of the recent change for the 24 Phase II-A brief which is also due now on May 3rd. And 25 after that I believe there is the Phase V brief which is CAPITOL REPORTERS (916) 923-5447 13691 1 due May 10th. So, it seemed to me it would be easier on the 2 parties, especially for us, to have these briefs due in a 3 staggered one-week format. 4 Our Phase VI brief is going to be one which we are 5 going to try to coordinate with all the parties that were 6 presenting: the Department of Fish and Game, Department of 7 Interior. I think we'd have a much better product if we 8 were able to have a little more time on that. 9 C.O. STUBCHAER: Mr. Campbell, on this subject? 10 MR. CAMPBELL: The Department of Fish and Game joins in 11 that request. 12 MR. TURNER: I would support that request as well on 13 behalf of the Department of the Interior. 14 C.O. STUBCHAER: Does anyone object to granting that 15 request? 16 Seeing no objection, we'll grant your request, Mr. 17 Sandino. 18 MR. SANDINO: Would you like us to do anything in terms 19 of notice to all parties? 20 C.O. STUBCHAER: Our staff will do that. 21 MS. LEIDIGH: Yes. I think we can send something out 22 to let people know, put it in on the Internet. 23 C.O. STUBCHAER: It would be posted on our website, 24 too. 25 While we are talking about website, there is a notice CAPITOL REPORTERS (916) 923-5447 13692 1 being posted today regarding Phase II-B. So, check your 2 website. The notices will be in the mail today. No 3 questions entertained at this time. I see lots of raised 4 eyebrows. People ready to jump off their seats. It's 5 self-explanatory. 6 Mr. Atlas. 7 MR. ATLAS: I promise not to ask about II-B. The due 8 date of the Phase VI brief will be May 17th; is that 9 correct? It is exactly a two-week due date? 10 MR. SANDINO: That is what I was suggesting. 11 MR. ATLAS: May 17th. 12 C.O. STUBCHAER: May 3rd plus 14 days. 13 Do you know that is the Norwegian Independence Day? 14 MR. SANDINO: Didn't know it. 15 C.O. STUBCHAER: Okay, Mr. Birmingham. 16 MR. BIRMINGHAM: Mr. Bultema, in response to questions 17 by Mr. Turner you testified that there was a long-term or 18 permanent transfer of 2,300 acre-feet of water from Corning 19 Water District that occurred in what year? 20 MR. BULTEMA: I believe we completed that assignment in 21 1998. 22 MR. BIRMINGHAM: Prior to 1998, how much water did 23 Corning Water District have under contract with the Bureau 24 of Reclamation? 25 MR. BULTEMA: 25,300 acre-feet. CAPITOL REPORTERS (916) 923-5447 13693 1 MR. BIRMINGHAM: So the long-term transfer was only a 2 portion of Corning's contract supply? 3 MR. BULTEMA: The assignment was for 2,300 acre-feet 4 with just a portion of their supply. 5 MR. BIRMINGHAM: Proberta Water District transferred 6 2,000 acre-feet of water to the Bureau of Reclamation as 7 part of the long-term transfer; is that correct? 8 MR. BULTEMA: That's correct. 9 MR. BIRMINGHAM: That occurred at the same time of the 10 transfer from Corning to the Bureau? 11 MR. BULTEMA: Yes. 12 MR. BIRMINGHAM: Prior to the transfer of 2,000 13 acre-feet from Proberta Water District to -- 14 MR. ATLAS: For the record, Mr. Bultema corrected Mr. 15 Birmingham once already. Mr. Bultema's testimony was that 16 this was a permanent assignment, not a long-term transfer. 17 C.O. STUBCHAER: Mr. Birmingham. 18 MR. BIRMINGHAM: Let me ask, if he has corrected me. 19 The 2,000, was it a long-term transfer or was it a contract 20 assignment? 21 MR. BULTEMA: It was a contract assignment, 2,000 22 acre-feet from Proberta. 23 MR. BIRMINGHAM: I beg your pardon. 24 The same thing is true with Corning Water District, 25 that was a contract assignment rather than a transfer? CAPITOL REPORTERS (916) 923-5447 13694 1 MR. BULTEMA: That's correct. 2 MR. BIRMINGHAM: Prior to the contract assignment of 3 2,000 acre-feet from Proberta Water District to the Bureau 4 of Reclamation in 1998, what was Proberta Water District's 5 contract supply? 6 MR. BULTEMA: I believe it was 5,500 acre-feet. 7 MR. BIRMINGHAM: If my math is correct, after the 8 assignment there was still 3,500 acre-feet of CVP water that 9 Proberta was entitled to use? 10 MR. BULTEMA: That is what they presently have under 11 the interim renewal contract, 3,500 acre-feet. 12 MR. BIRMINGHAM: Thomes Creek Water District, prior to 13 the contract assignment of 2,000 acre-feet from Thomes to 14 the Bureau in 1998, what was its contract supply? 15 MR. BULTEMA: I believe it was 8,400 acre-feet. 16 MR. BIRMINGHAM: Does Thomes Creek Water District have 17 an interim renewal contract? 18 MR. BULTEMA: Yes, it does. 19 MR. BIRMINGHAM: What is the amount of that 20 contract? 21 MR. BULTEMA: I believe it is 6,400 acre-feet. 22 MR. BIRMINGHAM: Prior to the 1998 assignment from 23 Corning Water District to the Bureau of Reclamation, what 24 was the maximum amount of water that Corning Water District 25 could use in any given year? CAPITOL REPORTERS (916) 923-5447 13695 1 MR. BULTEMA: I can't recall offhand, other than I do 2 know that -- I believe they used all of their contractual 3 supply, during at least the one year if not more, prior to 4 that time. 5 MR. BIRMINGHAM: Do you know what the average number of 6 acre-feet used by Corning Water District was prior to the 7 contract assignment? 8 MR. BULTEMA: I don't know that off the top of my head. 9 I would have to check our records. 10 MR. BIRMINGHAM: For Proberta Water District, do you 11 know how much water they used prior to the contract 12 assignment in 1998? 13 MR. BULTEMA: I can't recall. 14 MR. BIRMINGHAM: Would your answer be the same for 15 Thomes Creek Water District? 16 MR. BULTEMA: That is correct. I couldn't say with any 17 certainty without going back to the records. 18 MR. BIRMINGHAM: The $700 per acre-foot, was that a 19 price that was established by the Bureau of Reclamation or 20 was that a price established by the districts which were 21 making the assignment? 22 MR. BULTEMA: It was my understanding that that price 23 was established because of Corning Water District's need, 24 stated need, to retire its interest-bearing and 25 noninterest-bearing O&M deficits, which amounted to CAPITOL REPORTERS (916) 923-5447 13696 1 approximately 1.4 million. 2 MR. BIRMINGHAM: If my math is correct, there was a 3 total of 6,300 acre-feet of contract assignment to the 4 Bureau in 1998? 5 MR. BULTEMA: Correct. 6 MR. BIRMINGHAM: And the $700 acre-feet that equates 7 for $4,410,000? 8 MR. BULTEMA: It seems close. 9 MR. BIRMINGHAM: What happened to the difference 10 between the $4,410,000 and the $1.4 million that was the O&M 11 deficit of Corning Water District? 12 MR. BULTEMA: Proberta Water District and Thomes Creek 13 Water District also had interest-bearing and 14 noninterest-bearing O&M deficits. Out of their portion of 15 the proceeds their deficits were paid in fuel. Keep in 16 mind, I believe I testified to the fact, that the short-term 17 transfer of 1,600 acre-feet from each of the districts in 18 which we paid each district $60,000, that was included in 19 the overall purchase price of $700 an acre-foot. 20 MR. BIRMINGHAM: Now, in response to questions that you 21 were asked on direct examination by Mr. Turner, you 22 described the proposed assignments or transfers from Tehama 23 Water District and Elder Creek Water District; is that 24 correct? 25 MR. BULTEMA: That's correct. CAPITOL REPORTERS (916) 923-5447 13697 1 MR. BIRMINGHAM: Let's talk for a few moments about the 2 Tehama Water District. In response to a question by Mr. 3 Turner, you responded that in 1994 there was correspondence 4 between the district, Tehama Water District, and the Bureau 5 of Reclamation concerning the potential assignment of its 6 contract? 7 MR. BULTEMA: That is correct. 8 MR. BIRMINGHAM: Now, I want to make sure that I have 9 the timing down correctly because I am a little bit 10 confused. Correspondence that you received, that the Bureau 11 received from Tehama Water District was in 1994? 12 MR. BULTEMA: The first correspondence we had from 13 Tehama Water District was in December 1992 when they stated 14 that they intended to dissolve the district and to terminate 15 their contract. The next piece of correspondence that I 16 recall was, I believe, in April of 1994 when they wrote to 17 us requesting that they be allowed to assign their contract 18 to Glide Water District. 19 MR. BIRMINGHAM: In fact, Mr. Atlas produced some 20 documents in Tehama-Colusa Canal Exhibit 24 which purports 21 to be an assignment from the Tehama Water District to Glide 22 Water District in June of 1994; is that correct? 23 MR. BULTEMA: Yes. 24 MR. BIRMINGHAM: This is the reason I am confused, and 25 maybe you can explain to me my confusion. I thought you CAPITOL REPORTERS (916) 923-5447 13698 1 said on direct testimony in response to a question by Mr. 2 Turner that Tehama Water District had dissolved in 1993? 3 MR. BULTEMA: That's correct. We did not become aware 4 of the fact that they had legally taken steps to dissolve. 5 They indicated in their letter in 1992 it was their 6 intention to dissolve. When it finally got down to or we 7 went to approve assignment or allow them to renew, the 8 question was appropriately asked, "Do we know whether, in 9 fact, they did dissolve?" 10 And so we checked that. We determined that, yes, they 11 had, and they had done so in May of 1993, prior to the time 12 that they had requested the assignment. 13 MR. BIRMINGHAM: And again going back to Mr. Turner's 14 questions of you on this subject of the assignment from 15 Tehama to Glide, did the fact that Tehama had dissolved in 16 1993 affect Reclamation's decision about approving the 17 contract assignment that has been marked for identification 18 as Tehama-Colusa Canal Authority Exhibit 24? 19 MR. ATLAS: I'm going to object as asked and answered. 20 Mr. Bultema testified that Reclamation didn't become aware 21 until much later that Tehama Water District had dissolved. 22 MR. BIRMINGHAM: I don't think the question has been 23 asked and answered. I believe what Mr. Bultema testified to 24 was that they received correspondence in 1992 from Tehama 25 that said that they wanted -- they were thinking about CAPITOL REPORTERS (916) 923-5447 13699 1 dissolving. He then testified that they received subsequent 2 correspondence in 1994 about a potential assignment. And 3 before the assignment they checked to see if, in fact, Glide 4 -- excuse me, Tehama had dissolved. In checking they had 5 discovered that Tehama had dissolved in May of 1993. 6 And my question is: Did the fact that Tehama had 7 dissolved in May of 1993 affect the Bureau's decision or 8 play any part in the Bureau's decision-making process about 9 whether or not to approve the document that is marked as 10 Tehama-Colusa Canal Authority Exhibit 24? That question has 11 not been answered. 12 C.O. STUBCHAER: Mr. Atlas. 13 MR. ATLAS: I'll object also on the ground it misstates 14 the evidence. Mr. Bultema's testimony was that the Bureau 15 went through this whole process of analyzing the assignment, 16 et cetera, and it was some time later after that that the 17 Bureau discovered that what Tehama Water District requested 18 that they would then, in fact, want to renew their contract 19 for themselves, then the Bureau discovered that Tehama had 20 dissolved. 21 C.O. STUBCHAER: Objection is overruled. 22 MR. BULTEMA: Could you restate the question? 23 MR. BIRMINGHAM: Yes. 24 You testified that, and if I misstate any testimony, 25 Mr. Bultema, please correct me because I want to make sure CAPITOL REPORTERS (916) 923-5447 13700 1 that the record is accurate. You testified that in 1994 you 2 were contacted by Tehama concerning a potential assignment 3 to Glide, and that subsequently you received from Tehama, 4 Tehama-Colusa Canal Authority Exhibit 24. 5 My question to you is: Did the fact that you 6 discovered Tehama had dissolved in May of 1993 affect or 7 play any part in the Bureau's decision not to approve the 8 assignment that has been marked for identification as 9 Tehama-Colusa Canal Authority Exhibit 24? 10 MR. BULTEMA: Yes. Because after we received and 11 prepared the assignment, we subsequently received a request 12 from Tehama Water District to renew its contract and 13 subsequent to that we learned that Tehama Water District did 14 officially dissolve their district. So our response to 15 Tehama Water District was, "Since you cannot legally do so, 16 we cannot approve an assignment nor renew your contract." 17 MR. BIRMINGHAM: When the Bureau of Reclamation failed 18 to -- how much was the water supply for Tehama Water 19 District. 20 MR. BULTEMA: 400 acre-feet. 21 MR. BIRMINGHAM: When the Bureau failed to renew the 22 contract for 400 acre-feet, there wasn't any entity in 23 existence with which the Bureau could contract; is that 24 correct? 25 MR. BULTEMA: That's correct. CAPITOL REPORTERS (916) 923-5447 13701 1 MR. BIRMINGHAM: In response to questions asked of you 2 by Mr. Turner, you said that with respect to the assignment 3 from Elder Creek Water District to Glide Water District and 4 Orland-Artois Water District the Bureau imposed three 5 conditions. Do you recall testifying to that? 6 MR. BULTEMA: That is correct. 7 MR. BIRMINGHAM: Could you state for me again what 8 those conditions were? 9 MR. BULTEMA: This is for the Elder Creek assignment? 10 MR. BIRMINGHAM: Yes. 11 MR. BULTEMA: We were going to require that the 12 assignment would only be for a three-year term, that in any 13 year out of the 4,600 acre-feet we would only guarantee that 14 we would provide 2,300 acre-feet or one-half of that amount, 15 and that they would also have to pay the pro rata share of 16 the O&M deficits for Elder Creek Water District. 17 MR. BIRMINGHAM: Were there any other conditions that 18 the Bureau imposed beside those three? 19 MR. BULTEMA: There was. I am not sure when this 20 occurred, whether it was talking about this, we were going 21 to require that they waive any relief they might have under 22 the ability to pay study. 23 MR. BIRMINGHAM: I am going to ask you to look at the 24 document and see if your recollection is refreshed as to any 25 other condition that might have been imposed by the Bureau CAPITOL REPORTERS (916) 923-5447 13702 1 of Reclamation on the proposed assignment from Elder Creek 2 to districts in the Tehama-Colusa Canal Authority service 3 area. After you reviewed that document, tell me if your 4 recollection has been refreshed as to any other conditions 5 that were imposed. 6 MR. BULTEMA: It is easy to get these different 7 assignments confused. But, yes, Elder Creek in that 8 situation, we were also going to require that the water that 9 Orland-Artois received from Glide Water District would be 10 the first water scheduled and used in any year and also that 11 they had to pay the rates and charges that were applicable 12 to the Elder Creek contract. 13 MR. BIRMINGHAM: That payment of rates and charges 14 applicable to the Elder Creek contract relates to the 15 requirement that they waive any relief under ability to pay 16 study? 17 MR. BULTEMA: That is correct. 18 MR. BIRMINGHAM: Let me ask if you know why did the 19 Bureau require a condition that the assignment would be only 20 for a three-year term? 21 MR. BULTEMA: I don't know. I didn't make that 22 decision. 23 MR. BIRMINGHAM: Do you know why the Bureau decided to 24 impose as a condition that in any year at the Bureau's 25 discretion only 2,300 acre-feet would be made available? CAPITOL REPORTERS (916) 923-5447 13703 1 MR. BULTEMA: I remember discussions that because of 2 CVPIA we had other requirements to meet, and I believe that 3 was a consideration. Again, I wasn't involved in those 4 policy decisions. 5 MR. BIRMINGHAM: Do you know why the Bureau of 6 Reclamation decided to impose as a condition that Glide and 7 Orland-Artois waive any relief under ability to pay study 8 for water received as a result of the contract assignment? 9 MR. BULTEMA: I do not know that. 10 MR. BIRMINGHAM: Do you know why the Bureau imposed as 11 a condition the requirement that the first water received by 12 Glide or Orland-Artois Water District would be water that 13 was received as a result of the assignment? 14 MR. BULTEMA: Again, I have to answer I don't know 15 because I wasn't involved in that policy decision. 16 MR. BIRMINGHAM: You testified in response to a 17 question by Mr. Turner that Tehama Water District had an O&M 18 deficit prior to the expiration of its contracts. Do you 19 recall saying that in response to a question by Mr. Turner? 20 MR. BULTEMA: Yes. 21 MR. BIRMINGHAM: You also testified in response to a 22 question by Mr. Turner that, in fact, because the Tehama 23 Water District dissolved in May '93 it was unable to renew 24 its contract and, therefore, the contract expired? 25 MR. BULTEMA: That's right. CAPITOL REPORTERS (916) 923-5447 13704 1 MR. BIRMINGHAM: What happened to the O&M deficit that 2 existed for Tehama Canal Authority after the -- let me 3 restate the question. 4 What happened to the O&M deficit that had accrued for 5 water delivered to Tehama Water District after the 6 expiration of the district's water service contract? 7 MR. BULTEMA: It is my understanding the deficit goes 8 with the water. 9 MR. BIRMINGHAM: What do you mean by that, "the deficit 10 goes with the water"? 11 MR. BULTEMA: We have not asked or made efforts to 12 collect that deficit from Tehama Water District. It is my 13 understanding whoever would receive that quantity of water 14 would be required to pay that outstanding O&M deficit. 15 MR. BIRMINGHAM: In response to a question by Mr. 16 Turner you said that the capital component which the Corning 17 Canal Water Authority member agencies is no longer required 18 to pay because of the relief granted under the repayment 19 study, that that is now paid by the power users. 20 MR. BULTEMA: That is my understanding. 21 MR. BIRMINGHAM: Who are the power users? 22 MR. BULTEMA: I do not know who they are. 23 MR. BIRMINGHAM: I have no further questions. 24 C.O. STUBCHAER: Thank you, Mr. Birmingham. 25 Staff have any questions? CAPITOL REPORTERS (916) 923-5447 13705 1 MS. LEIDIGH: No questions. 2 C.O. STUBCHAER: Mr. Brown. 3 C.O. BROWN: No, sir. 4 C.O. STUBCHAER: Any redirect, Mr. Turner? 5 MR. TURNER: I have no redirect, Mr. Chairman. That 6 would just be testimony by Mr. Bultema. 7 C.O. STUBCHAER: I know we have exhibits from others, 8 but do you have any exhibits at this time? 9 MR. TURNER: No, I have no exhibits. 10 C.O. STUBCHAER: Mr. Atlas. 11 MR. ATLAS: Yes, Mr. Chairman. I move admission of 12 TCCA Exhibits 22 through 30. That includes, as I indicated, 13 there is 29A and 29B. 14 C.O. STUBCHAER: Mr. Birmingham. 15 MR. BIRMINGHAM: We would object to the admission of 16 TCCA Exhibit 30 on the ground that it lacks foundation. We 17 would, however, stipulate to the Board's taking official 18 notice of its existence. 19 C.O. STUBCHAER: Mr. Atlas. 20 MR. ATLAS: I am not sure I understand the distinction. 21 I don't need a lesson. 22 C.O. STUBCHAER: All right. 23 MR. ATLAS: I have no objection. 24 C.O. STUBCHAER: We will accept the exhibits into 25 evidence with Mr. Birmingham's comment part of the record. CAPITOL REPORTERS (916) 923-5447 13706 1 MR. ATLAS: Thank you. 2 C.O. STUBCHAER: Anything else? 3 Next we will be the -- 4 Mr. Atlas, are you ready to put on your rebuttal case? 5 MR. ATLAS: Actually, Mr. Chairman, in light of the 6 testimony today, I will withdraw the suggestion that we will 7 have a rebuttal case. 8 C.O. STUBCHAER: Incidentally, I am sorry I left you 9 hanging there, Mr. Bultema. Thank you for your 10 participation and you are excused. 11 Thank you, Mr. Turner. 12 C.O. STUBCHAER: Is Westlands ready today? 13 Mr. Herrick, I will get to you. 14 MR. BIRMINGHAM: I believe Mr. Herrick had a witness 15 that he wanted to put on this afternoon because of the 16 shortened period of time it will take. 17 C.O. STUBCHAER: All right. Mr. Herrick. 18 MR. HERRICK: We are ready and it won't take very long 19 at all. 20 ---oOo--- 21 REBUTTAL TESTIMONY 22 DIRECT EXAMINATION BY SOUTH DELTA WATER AGENCY 23 BY MR. HERRICK 24 MR. HERRICK: John Herrick, again, for South Delta 25 Water Agency. CAPITOL REPORTERS (916) 923-5447 13707 1 We have a very brief rebuttal that deals with Santa 2 Clara Water District's testimony, and it touches upon the 3 Bureau's testimony about one of the maps in the DEIR. The 4 witness is Chris Neudeck. I will ask him to state his full 5 name and spell it for the record, and he has not been sworn 6 yet. 7 MR. NEUDECK: Christopher H. Neudeck, N-e-u-d-e-c-k. 8 (Oath administered by C.O. Stubchaer.) 9 MR. HERRICK: Mr. Neudeck, who do you work for? 10 MR. NEUDECK: Engineering firm of Kjeldsen, Sinnock & 11 Neudeck out of Stockton, California. 12 MR. HERRICK: Real briefly, just as a background, can 13 you give us your education and work experience that led you 14 to your current position. 15 MR. NEUDECK: I have a Bachelor's of civil engineering 16 from the University of Santa Clara, and I am a principal 17 engineer and owner of the firm Kjeldsen, Sinnock & Neudeck. 18 I have been employed for the last 16 or so years for 19 Kjeldsen, Sinnock & Neudeck. 20 MR. HERRICK: Mr. Neudeck, a week ago or sometime last 21 week I contacted you and asked you whether or not you could 22 examine a map that was from this DEIR and see if you could 23 discern any reasonable explanation for the place of use 24 boundary on that map; is that correct? 25 MR. NEUDECK: Yes, you did. CAPITOL REPORTERS (916) 923-5447 13708 1 MR. HERRICK: The map I asked you to look at is Figure 2 3-20 from the DEIR; is that correct? 3 MR. NEUDECK: Yes. 4 MR. HERRICK: For the record it is opposite Page 5 3-120. 6 Mr. Neudeck, can you explain what you did subsequent to 7 my request of you. 8 MR. NEUDECK: Based on the request you had asked that I 9 take a look at in particular the place of use boundary and 10 see whether I could make any sense of it relative to 11 topographic features of the valley. What I did with the map 12 as shown here in Figure 3-20 was, first of all, pull up 13 digital quad maps that we have on file and from there we 14 scanned in Figure 3-20 into the computer and overlaid the 15 scan figure over the digital quads. Then we proceeded to 16 digitize the place of use boundary and corresponding county 17 lines. In order to get the scanned in figure to be the same 18 scale as the quads, we picked five points on Figure 3-20 19 and basically draped or expanded the scale of the figure to 20 meet those five points and rectified the scanned figure over 21 the digitized quads. 22 After digitizing the line work designated place of use 23 boundary and also the M&I CVP boundary, we then turned off 24 the Santa Clara Valley Water District 3-20 figure and were 25 left with the boundary lines. We then in turn produced two CAPITOL REPORTERS (916) 923-5447 13709 1 exhibits. One being presented in an 11-by-17 format with a 2 scale of one inch equals 30,000 feet and then also a larger 3 scale on a 24-by-36 map that I have here foam-mounted, which 4 is one inch equals 10,000. 5 MR. HERRICK: Mr. Chairman, for the record, we are 6 submitting the smaller one as South Delta 60. We made the 7 larger one -- we can hold it up, just if it helps. It has 8 certain color differences that help in Mr. Neudeck's 9 explanation. It is the small one that we are offering as an 10 exhibit. That is just for his ability to describe it. 11 C.O. STUBCHAER: Are the color differences significant 12 that the written record would be unclear? 13 MR. HERRICK: No. 14 Mr. Neudeck, were you able to determine whether or not 15 the place of use boundary lines on Figure 3-20 correspond to 16 any elevation lines pursuant to your work? 17 MR. NEUDECK: Generally speaking, they appear to 18 correspond to the valley floor. The elevations themselves 19 vary. For the most part they follow along the contour about 20 elevation 6- to 800 on the north side of the valley and 21 about an elevation of around 200 on the south side of the 22 valley. As you head to the northwest towards the Bay, it 23 obviously goes down to sea level. 24 That is kind of basically the contour. I did not blow 25 up and go to each contour. We sampled a number of areas CAPITOL REPORTERS (916) 923-5447 13710 1 where the line work came in contact with contour lines, and 2 that was generally the contours on those two sides. 3 MR. HERRICK: Of course, Mr. Neudeck, there is a margin 4 of error here, correct? You did not take a legal 5 description of a line and apply that to any particular 6 square or anything, did you? 7 MR. NEUDECK: Most definitely. You have to understand, 8 I am replying upon Exhibit 3-20 as it was shown in the DEIR 9 and scanned figure that came out of that. There is -- first 10 of all, that is the document that I am relying upon. The 11 digital quads themselves are produced by the United States 12 Geological Survey on a one inch equals 2,000 scale. Here I 13 really don't know what the detail is for this exhibit. But 14 I would say together with the mapping we are a thousand feet 15 or greater off in proximity. 16 MR. HERRICK: Excuse my often repeated color 17 blindness. The dark pink areas on Figure 3-20, you also 18 have them noted on South Delta Water Agency 60, the map you 19 produced; is that correct? 20 MR. NEUDECK: Yes. 21 MR. HERRICK: Could you explain how those fit into your 22 determination of whether or not the place of use line 23 actually follows some sort of elevation mark. 24 MR. NEUDECK: If you stand back and take a took at the 25 quadrangle map that this is plotted over, you can see by CAPITOL REPORTERS (916) 923-5447 13711 1 relief the green colors are the areas of the mountainous 2 areas. You can see how this, more or less, lays over the 3 improved areas of the valley, with the exception of a couple 4 areas, and those areas. In particular those areas outlined 5 in the pink. 6 Initially, when we developed this map, we had not put 7 in the M&I CVP boundary. I was wondering why there was a 8 couple areas distinctly missing from the valley floor. 9 After overlaying the M&I CVP boundaries, it seemed to match 10 those areas particularly better in some of these northern 11 area. I am not exactly certain what is going on in the west 12 area. The valley continues off into San Mateo because there 13 is just a point of bifurcation where the improved valley 14 continues but the boundary stops. 15 MR. HERRICK: Adding in those dark pink areas for the 16 municipal and industrial CVP water, you would include more 17 areas in what you describe as a boundary from 600 feet on 18 one side running down to 400 feet on the other side; is that 19 correct? 20 MR. NEUDECK: 200 feet, yeah. 21 MR. HERRICK: 200 feet, excuse me. 22 MR. NEUDECK: The one that is on the northwest corner, 23 the large area in San Mateo County, the CVP boundary is 24 actually an elevation of around 20 to 40. As you come to 25 the outer boundary of the M&I CVP boundary, it brings it CAPITOL REPORTERS (916) 923-5447 13712 1 back up to the 200 that seems to be running along the south 2 edge. 3 MR. HERRICK: Mr. Neudeck, again, given the margin of 4 error, given the limited data you had to work with, in your 5 opinion, is the line drawn for the Santa Clara Valley Water 6 District place of use, is that just some random figure drawn 7 on that within the county or does it appear to match certain 8 elevation restrictions? 9 MR. NEUDECK: It appears to match the valley floor. 10 MR. HERRICK: I don't have any questions. 11 Thank you very much. 12 C.O. STUBCHAER: Thank you, Mr. Herrick. 13 Who wants to cross-examine? 14 Mr. Birmingham, Mr. Atlas, Mr. Haroff. 15 MR. ATLAS: I volunteer to go first because I only have 16 one or two quick questions. 17 C.O. STUBCHAER: That is very gracious of you. I was 18 going to put Mr. Birmingham first. But how long do you 19 think your cross-examination will be, Mr. Birmingham? 20 MR. ATLAS: Just a couple of minutes. I just need a 21 brief clarification of a couple items. I would say five 22 minutes or less. 23 C.O. STUBCHAER: I was asking Mr. Birmingham. 24 MR. ATLAS: I beg your pardon. 25 MR. BIRMINGHAM: I don't know. CAPITOL REPORTERS (916) 923-5447 13713 1 C.O. STUBCHAER: Mr. Haroff. 2 MR. HAROFF: I don't think mine will last all that 3 long. I can see we are getting close to 4:00. I would be 4 happy to continue mine. 5 C.O. STUBCHAER: I think Mr. Herrick would like us to 6 finish today. 7 Mr. Atlas. 8 ---oOo--- 9 CROSS-EXAMINATION OF SOUTH DELTA WATER AGENCY 10 BY TEHAMA-COLUSA CANAL AUTHORITY 11 BY MR. ATLAS 12 MR. ATLAS: Mr. Neudeck, my name is Mark Atlas. I 13 represent the Tehama-Colusa Canal Authority. 14 And I would just like you to explain for me if you 15 would, and perhaps you did and I missed it, the difference 16 between the line on your map, the black and yellow lines 17 that is labeled place of use boundary and then the red or 18 dark pink sections that are labeled municipal and industrial 19 CVP. Would you tell me what the difference is? 20 MR. NEUDECK: Other than colors, I simply referred 21 directly to the Figure 3-20. I do not know what they mean. 22 I am simply just, you know, transferring the line work off 23 of Figure 3-20 to the quadrangle maps from USGS. 24 MR. ATLAS: Thank you. 25 I have no other questions. CAPITOL REPORTERS (916) 923-5447 13714 1 C.O. STUBCHAER: Thank you, Mr. Atlas. 2 Mr. Haroff. 3 MR. BIRMINGHAM: Since this testimony pertains to Santa 4 Clara and Mr. Haroff represents Santa Clara, I wonder if Mr. 5 Haroff could be afforded the privilege of going last. 6 C.O. STUBCHAER: Mr. Haroff, are you ready to go now? 7 MR. HAROFF: I'm really indifferent, Mr. Stubchaer. 8 MR. BIRMINGHAM: I am indifferent as well, Mr. 9 Stubchaer. 10 C.O. STUBCHAER: I am indifferent. 11 MR. HERRICK: I am different. 12 C.O. STUBCHAER: Ms. Forster, please draw a card. 13 Mr. Birmingham. 14 ---oOo--- 15 CROSS-EXAMINATION OF SOUTH DELTA WATER AGENCY 16 BY WESTLANDS WATER DISTRICT 17 BY MR. BIRMINGHAM 18 MR. BIRMINGHAM: Mr. Neudeck, my name is Tom 19 Birmingham. I represent Westlands Water District. 20 I just need to ask you some questions about your 21 credibility. Neudeck, are you the brother of that scoundrel 22 Randal Neudeck who works for Metropolitan Water District, 23 and who formerly worked for the Department of Water and 24 power? 25 MR. NEUDECK: I won't use the adjective, but he is my CAPITOL REPORTERS (916) 923-5447 13715 1 brother. 2 C.O. STUBCHAER: That adjective is stricken from the 3 record. 4 MR. NEUDECK: Thank you. 5 C.O. STUBCHAER: It is a noun. 6 MR. BIRMINGHAM: I have a couple questions about South 7 Delta Water Agency Exhibit 60 and the specific assignment 8 that you were given. 9 First, Mr. Herrick contacted you last week? 10 MR. NEUDECK: That's correct. 11 MR. BIRMINGHAM: As I understand it, he asked you to 12 plot the place of use boundaries from the Draft 13 Environmental Impact Report on quadrangle maps for Santa 14 Clara County? 15 MR. NEUDECK: Yes, that's correct. Basically to 16 transfer this, Exhibit 3-20, onto the quadrangle maps, yes. 17 MR. BIRMINGHAM: Looking at the quadrangle maps, there 18 are -- you noted in your direct testimony there are 19 different colors depicted as relief on the map; is that 20 correct? 21 MR. NEUDECK: That's correct. 22 MR. BIRMINGHAM: I am looking at South Delta Water 23 Agency Exhibit 60, within the place of use there is an area 24 that is depicted by a light pink, and that is a relief color 25 that appears on the original map; is that correct? CAPITOL REPORTERS (916) 923-5447 13716 1 MR. NEUDECK: You are speaking of the M&I CVP area? 2 MR. BIRMINGHAM: No. I am speaking of -- looking at 3 South Delta Water Agency Exhibit 60, there is an area within 4 the boundaries that is depicted as the place of use 5 boundary. 6 MR. NEUDECK: Correct. 7 MR. BIRMINGHAM: That is light pink. Do you see the 8 area to which I am referring? 9 MR. NEUDECK: Yes. 10 MR. BIRMINGHAM: That is a relief that is on the 11 original quad map? 12 MR. NEUDECK: That's correct. 13 MR. BIRMINGHAM: What is depicted by that relief? 14 MR. NEUDECK: Those are areas that are improved and a 15 fairly uniform elevation. 16 MR. BIRMINGHAM: When you say "Those are areas that are 17 improved," what do you mean? 18 MR. NEUDECK: Improvements from the standpoint of 19 services, streets, curbs, gutters, sidewalks, typically have 20 structures on them. 21 MR. BIRMINGHAM: So, looking at the place of use, the 22 area within the boundaries of place of use in the northern 23 part of Santa Clara Valley as depicted on South Delta Water 24 Agency Exhibit 60, we would conclude from this South Delta 25 Water Agency Exhibit 60 that the area is an urban area? CAPITOL REPORTERS (916) 923-5447 13717 1 MR. NEUDECK: That would be my impression, 2 urban/industrial commercial. 3 MR. BIRMINGHAM: Now, in making the assignment to you 4 did Mr. Herrick ask you to do any analysis of Santa Clara's 5 ability to use within its existing place of use water to 6 which is entitled under its contract with the Bureau of 7 Reclamation? 8 MR. NEUDECK: No, he did not. 9 MR. BIRMINGHAM: So, if I were to tell you that the 10 Santa Clara County Water District -- excuse me, if I were to 11 tell that you Santa Clara Valley Water District has a 12 contract for 152,500 acre-feet, 119,400 acre-feet of which 13 is designated for M&I use, you don't know if Santa Clara 14 could use all of that M&I water within the existing place of 15 use as depicted on South Delta Water Agency Exhibit 60? 16 MR. NEUDECK: No, I do not. 17 MR. BIRMINGHAM: If I were to tell you that Santa Clara 18 Valley Water District has 33,100 acre-feet of water for 19 irrigation, you couldn't tell us if that water could be used 20 within the existing place of use for irrigation purposes on 21 South Delta Water Agency Exhibit 60? 22 MR. NEUDECK: No, I could not. 23 MR. BIRMINGHAM: I have no further questions. 24 C.O. STUBCHAER: Thank you, Mr. Birmingham. 25 Mr. Haroff. CAPITOL REPORTERS (916) 923-5447 13718 1 CROSS-EXAMINATION OF SOUTH DELTA WATER AGENCY 2 BY SANTA CLARA VALLEY WATER DISTRICT 3 BY MR. HAROFF 4 MR. HAROFF: Mr. Neudeck, my name is Kevin Haroff. I 5 am with the law firm of Morrison & Forster, and I represent 6 Santa Clara Valley Water District. 7 I just have a few questions myself to kind of clarify 8 my understanding of the process that you went through to 9 prepare this map. And I was a little bit confused about the 10 color scheme that was used on the map as well. Following up 11 on some of the questions that Mr. Birmingham just asked, you 12 indicated that the kind of light pink area that is depicted 13 on this map shows an area where there has been some 14 development, installation of streets, improvements, things 15 of that sort? 16 MR. NEUDECK: That's correct. 17 MR. HAROFF: I look around the map and I see other 18 areas that are depicted in the color green. Can you explain 19 what the use of that color may symbolize? 20 MR. NEUDECK: Let me clarify something. The only thing 21 that -- the only line work that was placed on this map were 22 the following: county boundaries, place of use boundaries, 23 M&I CVP boundary and the county names. Everything else was 24 part of the digital quad that USGS puts out. So any of this 25 coloration was produced by the mapping that was prepared by CAPITOL REPORTERS (916) 923-5447 13719 1 USGS. So, the only thing we overlaid were those five or so 2 items I mentioned. 3 Now I forgot your question. 4 MR. HAROFF: My question was to try to understand what 5 your understanding is in terms of the color scheme that is 6 used on the maps, acknowledging that you weren't responsible 7 personally for the original choices of what that color 8 scheme might be. My question particularly related to your 9 understanding as to the use of green areas on this map. 10 MR. NEUDECK: Those are mountainous areas. 11 MR. HAROFF: Now, I see in certain areas there is 12 green. There appears to be some areas of some light pink 13 coloration, in particular an area that I can observe up in 14 the northeastern corner of Santa Clara County. 15 Do you see that area? 16 MR. NEUDECK: Yes. 17 MR. HAROFF: Do you have any understanding of what that 18 represents? 19 MR. NEUDECK: No, I do not. 20 MR. HAROFF: Can you please explain to me in terms of 21 the darker red colors that appear in various locations 22 outside the place of use that is shown to this map the dark 23 red areas. 24 MR. NEUDECK: Those are simply a depiction of the M&I 25 CVP boundaries that were set forth on the Figure 3-20. CAPITOL REPORTERS (916) 923-5447 13720 1 MR. HERRICK: If I may, just for the record, I referred 2 to them earlier as dark pink from the Figure 3-20. So, if 3 there is confusion, we are talking about the same thing now, 4 I believe. 5 MR. HAROFF: You have no understanding beyond just the 6 fact that those areas are derived from that map from the 7 Draft EIR about what that area would necessarily represent; 8 is that correct? 9 MR. NEUDECK: That's correct. 10 MR. HAROFF: Do you have any understanding why there 11 are no red areas within the place of use boundaries? 12 MR. NEUDECK: No, I do not. 13 MR. HAROFF: I think Mr. Birmingham asked, but I just 14 want to get clarification again. Could you please explain 15 to me what was your charge in preparing these map overlays? 16 MR. NEUDECK: Simply to clarify to the best of our 17 ability what this line would look like on a quad sheet. So 18 all my charge was was to transfer this line work to the quad 19 sheet. 20 MR. HAROFF: Did you do any independent analyses of 21 topographical relations of areas that are developed or 22 undeveloped in Santa Clara County during the course of doing 23 this work? 24 MR. NEUDECK: No, I did not. 25 MR. HAROFF: During the course of your work in CAPITOL REPORTERS (916) 923-5447 13721 1 preparing these maps, did you review any contracts or any 2 other legal documents concerning areas within Santa Clara 3 County where CVP water would be delivered? 4 MR. NEUDECK: No, I did not. 5 MR. HAROFF: Did you review any water rights permits or 6 applications in connection with your task? 7 MR. NEUDECK: No, I did not. 8 MR. HAROFF: Did you review any water supply contracts 9 in connection with your work in this task? 10 MR. NEUDECK: No, I did not. 11 MR. HAROFF: It is a nice map. 12 Thanks very much. Those are my questions. 13 C.O. STUBCHAER: Thank you, Mr. Haroff. 14 That concludes the cross-examination by parties other 15 than staff and Board Members. 16 Staff have any questions? 17 Board Members? 18 ---oOo--- 19 CROSS-EXAMINATION OF SOUTH DELTA WATER AGENCY 20 BY BOARD MEMBERS 21 C.O. STUBCHAER: Mr. Neudeck, what is the date of the 22 latest photo revision of the quad sheet you were working 23 on? 24 MR. NEUDECK: This is made up of around 24 quad sheets 25 and the version that we have, it is a compilation of 24 quad CAPITOL REPORTERS (916) 923-5447 13722 1 sheets, so it is going to vary from each quad sheet. I 2 can't answer that question directly. 3 C.O. STUBCHAER: It would be interesting to know from 4 the point of view of the organization at the time the map 5 was last revised. If you don't have that information, you 6 don't have it. 7 MR. NEUDECK: I do not. 8 C.O. STUBCHAER: Do you have it for any of the quad 9 sheets? 10 MR. NEUDECK: We could probably -- the source 11 information does exist. I can research it. But if you are 12 able to look at a large plot here you can actually see how 13 these are all assembled. I'd have to go back in the 14 software and view that. 15 C.O. STUBCHAER: Thank you. 16 Do you have any redirect, Mr. Herrick? 17 MR. HERRICK: No. I will just offer South Delta 60 18 into evidence. 19 C.O. STUBCHAER: Any objections? 20 Then the exhibit is accepted. 21 Thank you for your appearance, Mr. Neudeck. 22 Thank you, Mr. Herrick. 23 Just a second here. 24 Mr. Birmingham. 25 MR. BIRMINGHAM: We are not ready because we don't have CAPITOL REPORTERS (916) 923-5447 13723 1 our exhibits here this afternoon. May we start first thing 2 in the morning? 3 C.O. STUBCHAER: Yes. Let's check and see what other 4 business we might transact besides the rebuttal case of 5 Westlands Water District. According to my crude tally 6 keeping here, that would conclude the rebuttal cases except 7 for those rebuttal cases related to the maps which were 8 distributed this morning for which we granted a continuance 9 to the 27th. 10 Does anyone think they would be ready to put on a 11 rebuttal case on the State Board maps on Thursday? We will 12 find out tomorrow. For planning purposes, it would be nice 13 to know. 14 Nobody knows. 15 How many parties intend to have experts look at the 16 State Board maps and advise them on rebuttal testimony? 17 MR. NOMELLINI: We are going to look at them. We are 18 not going to use an independent expert. 19 MR. HAROFF: That is my question. You referred to 20 experts or in-house folks. 21 C.O. STUBCHAER: I don't know if I said "independent." 22 I meant to say experts. Presumably the attorneys who look 23 at them can't testify. Just gives me an idea. So there are 24 five parties, then. 25 Mr. Birmingham. CAPITOL REPORTERS (916) 923-5447 13724 1 MR. BIRMINGHAM: I was just going to mention, I note 2 Arvin-Edison and Del Puerto are going to have an expert look 3 at the maps as well. 4 C.O. STUBCHAER: Do you know when they would be 5 prepared? 6 MR. BIRMINGHAM: No. But it was their motion that was 7 made with Westlands for the 27th. I would presume that it 8 would be on the 27th. 9 C.O. STUBCHAER: It appears -- Mr. Nomellini. 10 MR. NOMELLINI: We, for sure, are going to have some 11 rebuttal on the maps. It might be wise to have the 12 Westlands testimony on the same day. Might save a day. 13 C.O. STUBCHAER: No. We want to get as much behind us 14 as we can as soon as we can. 15 MR. NOMELLINI: That is good. 16 C.O. STUBCHAER: All right. 17 Any other business anyone wants to bring before us? 18 Staff. 19 We are adjourned -- 20 Mr. Atlas. 21 MR. ATLAS: I am sorry, I was out of the room. I 22 apologize. Are we still -- there is a hearing tomorrow at 23 9:00 a.m.? 24 C.O. STUBCHAER: Yes. Rebuttal testimony of Westlands 25 Water District, and it appears that may be the only order of CAPITOL REPORTERS (916) 923-5447 13725 1 business for tomorrow and Thursday may be a blank day. 2 We are adjourned until 9:00 tomorrow. 3 (Hearing adjourned at 3:40 p.m.) 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 13726 1 REPORTER'S CERTIFICATE 2 3 4 STATE OF CALIFORNIA ) ) ss. 5 COUNTY OF SACRAMENTO ) 6 7 8 I, ESTHER F. WIATRE, certify that I was the 9 official Court Reporter for the proceedings named herein, 10 and that as such reporter, I reported in verbatim shorthand 11 writing those proceedings; 12 That I thereafter caused my shorthand writing to be 13 reduced to typewriting, and the pages numbered 13547 through 14 13726 herein constitute a complete, true and correct record 15 of the proceedings. 16 17 IN WITNESS WHEREOF, I have subscribed this certificate 18 at Sacramento, California, on this 30th day of April 1999. 19 20 21 22 23 ______________________________ ESTHER F. WIATRE 24 CSR NO. 1564 25 CAPITOL REPORTERS (916) 923-5447 13727