STATE WATER RESOURCES CONTROL BOARD PUBLIC HEARING 1998 BAY-DELTA WATER RIGHTS HEARING HELD AT 901 P STREET SACRAMENTO, CALIFORNIA WEDNESDAY, APRIL 21, 1999 9:00 A.M. Reported by: MARY GALLAGHER, CSR #10749 CAPITOL REPORTERS (916) 923-5447 1 APPEARANCES ---oOo--- 2 3 BOARD MEMBERS: 4 JAMES STUBCHAER, CO-HEARING OFFICER JOHN W. BROWN, CO-HEARING OFFICER 5 MARY JANE FORSTER 6 STAFF MEMBERS: 7 THOMAS HOWARD - Supervising Engineer 8 VICTORIA A. WHITNEY - Senior Engineer 9 DAVID G. CORNELIUS - Senior Water Resources Control Engineer 10 JIM CANADAY - Environmental Specialist 11 COUNSEL: 12 WILLIAM R. ATTWATER - Chief Counsel 13 WALTER PETTIT - Executive Director BARBARA LEIDIGH - Senior Staff Counsel 14 15 ---oOo--- 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 13728 1 REPRESENTATIVES 2 PRINCETON CODORA GLENN IRRIGATION DISTRICT, et al. 3 FROST, DRUP & ATLAS 4 134 West Sycamore STreet Willows, California 95988 5 BY: J. MARK ATLAS, ESQ. 6 JOINT WATER DISTRICTS: 7 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 8 Oroville, California 95965 BY: WILLIAM H. BABER, III, ESQ. 9 CALIFORNIA SPORTFISHING PROTECTION ALLIANCE: 10 ROBERT J. BAIOCCHI 11 P.O. Box 357 Quincy, California 95971 12 BELLA VISTA WATER DISTRICT: 13 BRUCE L. BELTON, ESQ. 14 2525 Park Marina Drive, Suite 102 Redding, California 96001 15 WESTLANDS WATER DISTRICT: 16 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 17 400 Capitol Mall, 27th Floor Sacramento, California 95814 18 BY: THOMAS W. BIRMINGHAM, ESQ. JOHN RUBIN, ESQ. 19 THE BAY INSTITUTE OF SAN FRANCISCO: 20 GRAY BOBKER 21 55 Shaver Street, Suite 330 San Rafael, California 94901 22 CITY OF ANTIOCH, et al.: 23 FREDERICK BOLD, JR., ESQ. 24 1201 California Street, Suite 1303 San Francisco, California 94109 25 CAPITOL REPORTERS (916) 923-5447 13729 1 REPRESENTATIVES 2 LEAGUE OF WOMEN VOTERS: 3 ROBERTA BORGONOVO 4 2480 Union Street San Francisco, California 94123 5 UNITED STATES DEPARTMENT OF THE INTERIOR: 6 OFFICE OF THE SOLICITOR 7 2800 Cottage Way, Roon E1712 Sacramento, California 95825 8 BY: ALF W. BRANDT, ESQ. 9 CALIFORNIA URBAN WATER AGENCIES: 10 BYRON M. BUCK 455 Capitol Mall, Suite 705 11 Sacramento, California 95814 12 RANCHO MURIETA COMMUNITY SERVICES DISTRICT: 13 MCDONOUGH, HOLLAND & ALLEN 555 Capitol Mall, 9th Floor 14 Sacramento, California 95814 BY: VIRGINIA A. CAHILL, ESQ. 15 CALIFORNIA DEPARTMENT OF FISH AND GAME: 16 OFFICE OF THE ATTORNEY GENERAL 17 1300 I Street, Suite 1101 Sacramento, California 95814 18 BY: MATTHEW CAMPBELL, ESQ. 19 NATURAL RESOURCES DEFENSE COUNCIL: 20 HAMILTON CANDEE, ESQ. 71 Stevenson Street 21 San Francisco, California 94105 22 ARVIN-EDISON WATER STORAGE DISTRICT, et al.: 23 DOOLEY HERR & WILLIAMS 3500 West Mineral King Avenue, Suite C 24 Visalia, California 93191 BY: DANIEL M. DOOLEY, ESQ. 25 CAPITOL REPORTERS (916) 923-5447 13730 1 REPRESENTATIVES 2 SACRAMENTO MUNICIPAL UTILITY DISTRICT: 3 LESLIE A. DUNSWORTH, ESQ. 4 6201 S Street Sacramento, California 95817 5 SOUTH SAN JOAQUIN IRRIGATION DISTRICT, et al.: 6 BRAY, GEIGER, RUDQUIST & NUSS 7 311 East Main Street, 4th Floor Stockton, California 95202 8 BY: STEVEN P. EMRICK, ESQ. 9 EAST BAY MUNICIPAL UTILITY DISTRICT: 10 EBMUD OFFICE OF GENERAL COUNSEL 375 Eleventh Street 11 Oakland, California 94623 BY: FRED ETHERIDGE, ESQ. 12 GOLDEN GATE AUDUBON SOCIETY: 13 ARTHUR FEINSTEIN 14 2530 San Pablo Avenue, Suite G Berkeley, California 94702 15 CONAWAY CONSERVANCY GROUP: 16 UREMOVIC & FELGER 17 P.O. Box 5654 Fresno, California 93755 18 BY: WARREN P. FELGER, ESQ. 19 THOMES CREEK WATER ASSOCIATION: 20 THOMES CREEK WATERSHED ASSOCIATION P.O. Box 2365 21 Flournoy, California 96029 BY: LOIS FLYNNE 22 COURT APPOINTED REPS OF WESTLANDS WD AREA 1, et al.: 23 LAW OFFICES OF SMILAND & KHACHIGIAN 24 601 West Fifth Street, Seventh Floor Los Angeles, California 90075 25 BY: CHRISTOPHER G. FOSTER, ESQ. CAPITOL REPORTERS (916) 923-5447 13731 1 REPRESENTATIVES 2 CITY AND COUNTY OF SAN FRANCISCO: 3 OFFICE OF THE CITY ATTORNEY 4 1390 Market Street, Sixth Floor San Francisco, California 94102 5 BY: DONN W. FURMAN, ESQ. 6 CAMP FAR WEST IRRIGATION DISTRICT, et al.: 7 DANIEL F. GALLERY, ESQ. 926 J Street, Suite 505 8 Sacramento, California 95814 9 BOSTON RANCH COMPANY, et al.: 10 J.B. BOSWELL COMPANY 101 West Walnut Street 11 Pasadena, California 91103 BY: EDWARD G. GIERMANN 12 SAN JOAQUIN RIVER GROUP AUTHORITY, et al.: 13 GRIFFIN, MASUDA & GODWIN 14 517 East Olive Street Turlock, California 95381 15 BY: ARTHUR F. GODWIN, ESQ. 16 NORTHERN CALIFORNIA WATER ASSOCIATION: 17 RICHARD GOLB 455 Capitol Mall, Suite 335 18 Sacramento, California 95814 19 PLACER COUNTY WATER AGENCY, et al.: 20 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Capitol Mall, 27th Floor 21 Sacramento, California 95814 BY: JANET GOLDSMITH, ESQ. 22 ENVIRONMENTAL DEFENSE FUND: 23 THOMAS J. GRAFF, ESQ. 24 5655 College Avenue, Suite 304 Oakland, California 94618 25 CAPITOL REPORTERS (916) 923-5447 13732 1 REPRESENTATIVES 2 CALAVERAS COUNTY WATER DISTRICT: 3 SIMON GRANVILLE 4 P.O. Box 846 San Andreas, California 95249 5 CHOWCHILLA WATER DISTRICT, et al.: 6 GREEN, GREEN & RIGBY 7 P.O. Box 1019 Madera, California 93639 8 BY: DENSLOW GREEN, ESQ. 9 CALIFORNIA FARM BUREAU FEDERATION: 10 DAVID J. GUY, ESQ. 2300 River Plaza Drive 11 Sacramento, California 95833 12 SANTA CLARA VALLEY WATER DISTRICT: 13 MORRISON & FORESTER 755 Page Mill Road 14 Palo Alto, California 94303 BY: KEVIN T. HAROFF, ESQ. 15 CITY OF SHASTA LAKE: 16 ALAN N. HARVEY 17 P.O. Box 777 Shasta Lake, California 96019 18 COUNTY OF STANISLAUS: 19 MICHAEL G. HEATON, ESQ. 20 926 J Street Sacramento, California 95814 21 GORRILL LAND COMPANY: 22 GORRILL LAND COMPANY 23 P.O. Box 427 Durham, California 95938 24 BY: DON HEFFREN 25 CAPITOL REPORTERS (916) 923-5447 13733 1 REPRESENTATIVES 2 SOUTH DELTA WATER AGENCY: 3 JOHN HERRICK, ESQ. 4 3031 West March Lane, Suite 332 East Stockton, California 95267 5 COUNTY OF GLENN: 6 NORMAN Y. HERRING 7 525 West Sycamore Street Willows, California 95988 8 REGIONAL COUNCIL OF RURAL COUNTIES: 9 MICHAEL B. JACKSON 10 1020 Twelfth Street, Suite 400 Sacramento, California 95814 11 DEER CREEK WATERSHED CONSERVANCY: 12 JULIE KELLY 13 P.O. Box 307 Vina, California 96092 14 DELTA TRIBUTARY AGENCIES COMMITTEE: 15 MODESTO IRRIGATION DISTRICT 16 P.O. Box 4060 Modesto, California 95352 17 BY: BILL KETSCHER 18 SAVE THE SAN FRANCISCO BAY ASSOCIATION: 19 SAVE THE BAY 1736 Franklin Street 20 Oakland, California 94612 BY: CYNTHIA L. KOEHLER, ESQ. 21 BATTLE CREEK WATERSHED LANDOWNERS: 22 BATTLE CREEK WATERSHED CONSERVANCY 23 P.O. Box 606 Manton, California 96059 24 25 CAPITOL REPORTERS (916) 923-5447 13734 1 REPRESENTATIVES 2 BUTTE SINK WATERFOWL ASSOCIATION, et al.: 3 MARTHA H. LENNIHAN, ESQ. 4 455 Capitol Mall, Suite 300 Sacramento, California 95814 5 CITY OF YUBA CITY: 6 WILLIAM P. LEWIS 7 1201 Civic Center Drive Yuba City, California 95993 8 BROWNS VALLEY IRRIGTAION DISTRICT, et al.: 9 BARTKIEWICZ, KRONICK & SHANAHAN 10 1011 22nd Street, Suite 100 Sacramento, California 95816 11 BY: ALAN B. LILLY, ESQ. 12 CONTRA COSTA WATER DISTRICT: 13 BOLD, POLISNER, MADDOW, NELSON & JUDSON 500 Ygnacio Valley Road, Suite 325 14 Walnut Creek, California 94596 BY: ROBERT B. MADDOW, ESQ. 15 GRASSLAND WATER DISTRICT: 16 DON MARCIOCHI 17 22759 South Mercey Springs Road Los Banos, California 93635 18 SAN LUIS CANAL COMPANY: 19 FLANAGAN, MASON, ROBBINS & GNASS 20 3351 North M Street, Suite 100 Merced, California 95344 21 BY: MIICHAEL L. MASON, ESQ. 22 STONY CREEK BUSINESS AND LAND OWNERS COALITION: 23 R.W. MCCOMAS 4150 County Road K 24 Orland, California 95963 25 CAPITOL REPORTERS (916) 923-5447 13735 1 REPRESENTATIVES 2 TRI-DAM POWER AUTHORITY: 3 TUOLUMNE UTILITIES DISTRICT 4 P.O. Box 3728 Sonora, California 95730 5 BY: TIM MCCULLOUGH 6 DELANO-EARLIMART IRRIGATION DISTRICT, et al.: 7 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 8 Oroville, California 95965 BY: JEFFREY A. MEITH, ESQ. 9 HUMANE FARMING ASSOCIATION: 10 BRADLEY S. MILLER. 11 1550 California Street, Suite 6 San Francisco, California 94109 12 CORDUA IRRIGATION DISTRICT, et al.: 13 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 14 P.O. Box 1679 Oroville, California 95965 15 BY: PAUL R. MINASIAN, ESQ. 16 EL DORADO COUNTY WATER AGENCY: 17 DE CUIR & SOMACH 400 Capitol Mall, Suite 1900 18 Sacramento, California 95814 BY: DONALD B. MOONEY, ESQ. 19 GLENN COUNTY FARM BUREAU: 20 STEVE MORA 21 501 Walker Street Orland, California 95963 22 MODESTO IRRIGATION DISTRICT: 23 JOEL MOSKOWITZ 24 P.O. Box 4060 Modesto, California 95352 25 CAPITOL REPORTERS (916) 923-5447 13736 1 REPRESENTATIVES 2 PACIFIC GAS & ELECTRIC: 3 RICHARD H. MOSS, ESQ. 4 P.O. Box 7442 San Francisco, California 94120 5 CENTRAL DELTA WATER AGENCY, et al.: 6 NOMELLINI, GRILLI & MCDANIEL 7 P.O. Box 1461 Stockton, California 95201 8 BY: DANTE JOHN NOMELLINI, ESQ. and 9 DANTE JOHN NOMELLINI, JR., ESQ. 10 TULARE LAKE BASIN WATER STORAGE UNIT: 11 MICHAEL NORDSTROM 1100 Whitney Avenue 12 Corcoran, California 93212 13 AKIN RANCH, et al.: 14 DOWNEY, BRAND, SEYMOUR & ROHWER 555 Capitol Mall, 10th Floor 15 Sacramento, California 95814 BY: KEVIN M. O'BRIEN, ESQ. 16 OAKDALE IRRIGATION DISTRICT: 17 O'LAUGHLIN & PARIS 18 870 Manzanita Court, Suite B Chico, California 95926 19 BY: TIM O'LAUGHLIN, ESQ. 20 SIERRA CLUB: 21 JENNA OLSEN 85 Second Street, 2nd Floor 22 San Francisco, California 94105 23 YOLO COUNTY BOARD OF SUPERVISORS: 24 LYNNEL POLLOCK 625 Court Street 25 Woodland, California 95695 CAPITOL REPORTERS (916) 923-5447 13737 1 REPRESENTATIVES 2 PATRICK PORGENS & ASSOCIATES: 3 PATRICK PORGENS 4 P.O. Box 60940 Sacramento, California 95860 5 BROADVIEW WATER DISTRICT, et al.: 6 DIANE RATHMANN 7 P.O. Box 156 Dos Palos, California 93620 8 FRIENDS OF THE RIVER: 9 BETSY REIFSNIDER 10 128 J Street, 2nd Floor Sacramento, California 95814 11 MERCED IRRIGATION DISTRICT: 12 FLANAGAN, MASON, ROBBINS & GNASS 13 P.O. Box 2067 Merced, California 95344 14 BY: KENNETH M. ROBBINS, ESQ. 15 CENTRAL SAN JOAQUIN WATER CONSERVATION DISTRICT: 16 REID W. ROBERTS, ESQ. 311 East Main Street, Suite 202 17 Stockton, California 95202 18 METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA: 19 JAMES F. ROBERTS P.O. Box 54153 20 Los Angeles, California 90054 21 SACRAMENTO AREA WATER FORUM: 22 CITY OF SACRAMENTO 980 9th Street, 10th Floor 23 Sacramento, California 95814 BY: JOSEPH ROBINSON, ESQ. 24 25 CAPITOL REPORTERS (916) 923-5447 13738 1 REPRESENTATIVES 2 TUOLUMNE RIVER PRESERVATION TRUST: 3 NATURAL HERITAGE INSTITUTE 4 114 Sansome Street, Suite 1200 San Francisco, California 94194 5 BY: RICHARD ROOS-COLLINS, ESQ. 6 CALIFORNIA DEPARTMENT OF WATER RESOURCES: 7 DAVID A. SANDINO, ESQ. P.O. Box 942836 8 Sacramento, California 94236 9 FRIANT WATER USERS AUTHORITY: 10 GARY W. SAWYERS, ESQ. 575 East Alluvial, Suite 101 11 Fresno, California 93720 12 KERN COUNTY WATER AGENCY: 13 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Captiol Mall, 27th Floor 14 Sacramento, California 95814 BY: CLIFFORD W. SCHULZ, ESQ. 15 SAN JOAQUIN RIVER EXCHANGE CONTRACTORS: 16 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 17 P.O. Box 1679 Oroville, California 95965 18 BY: MICHAEL V. SEXTON, ESQ. 19 SAN JOAQUIN COUNTY: 20 NEUMILLER & BEARDSLEE P.O. Box 20 21 Stockton, California 95203 BY: THOMAS J. SHEPHARD, SR., ESQ. 22 CITY OF STOCKTON: 23 DE CUIR & SOMACH 24 400 Capitol Mall, Suite 1900 Sacramento, California 95814 25 BY: PAUL S. SIMMONS, ESQ. CAPITOL REPORTERS (916) 923-5447 13739 1 REPRESENTATIVES 2 ORLAND UNIT WATER USERS' ASSOCIATION: 3 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 4 Oroville, California 95965 BY: M. ANTHONY SOARES, ESQ. 5 GLENN-COLUSA IRRIGATION DISTRICT: 6 DE CUIR & SOMACH 7 400 Capitol Mall, Suite 1900 Sacramento, California 95814 8 BY: STUART L. SOMACH, ESQ. 9 NORTH SAN JOAQUIN WATER CONSERVATION DISTRICT: 10 JAMES F. SORENSEN CONSULTING CIVIL ENGINEER, INC.: 209 South Locust Street 11 Visalia, California 93279 BY: JAMES F. SORENSEN 12 PARADISE IRRIGATION DISTRICT: 13 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 14 P.O. Box 1679 Oroville, California 95965 15 BY: WILLIAM H. SPRUANCE, ESQ. 16 COUNTY OF COLUSA: 17 DONALD F. STANTON, ESQ. 1213 Market Street 18 Colusa, California 95932 19 COUNTY OF TRINITY: 20 COUNTY OF TRINITY - NATURAL RESOURCES P.O. Box 156 21 Hayfork, California 96041 BY: TOM STOKELY 22 CITY OF REDDING: 23 JEFFERY J. SWANSON, ESQ. 24 2515 Park Marina Drive, Suite 102 Redding, California 96001 25 CAPITOL REPORTERS (916) 923-5447 13740 1 REPRESENTATIVES 2 TULARE IRRIGATION DISTRICT: 3 TEHEMA COUNTY RESOURCE CONSERVATION DISTRICT 2 Sutter Street, Suite D 4 Red Bluff, California 96080 BY: ERNEST E. WHITE 5 STATE WATER CONTRACTORS: 6 BEST BEST & KREIGER 7 P.O. Box 1028 Riverside, California 92502 8 BY: ERIC GARNER, ESQ. 9 COUTNY OF TEHEMA, et al.: 10 COUNTY OF TEHEMA BOARD OF SUPERVISORS P.O. Box 250 11 Red Bluff, California 96080 BY: CHARLES H. WILLARD 12 MOUNTAIN COUNTIES WATER RESOURCES ASSOCIATION: 13 CHRISTOPHER D. WILLIAMS 14 P.O. Box 667 San Andreas, California 95249 15 JACKSON VALLEY IRRIGATION DISTRICT: 16 HENRY WILLY 17 6755 Lake Amador Drive Ione, California 95640 18 SOLANO COUNTY WATER AGENCY, et al.: 19 HERUM, CRABTREE, DYER, ZOLEZZI & TERPSTRA 20 2291 West March Lane, S.B. 100 Stockton, California 95207 21 BY: JEANNE M. ZOLEZZI, ESQ. 22 WESTLANDS ENCROACHMENT AND EXPANSION LANDOWNERS: 23 BAKER, MANOCK & JENSEN 5260 North Palm Avenue 24 Fresno, California 93704 BY: CHRISTOPHER L. CAMPBELL, ESQ. 25 CAPITOL REPORTERS (916) 923-5447 13741 1 REPRESENTATIVES 2 SAN LUIS WATER DISTRICT: 3 LINNEMAN, BURGES, TELLES, VAN ATTA 1820 Marguerite Street 4 Dos Palos, California 93620 BY: THOMAS J. KEENE, ESQ. 5 6 ---oOo--- 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 13742 1 I N D E X 2 ---oOo--- 3 4 PAGE 5 OPENING OF HEARING 13744 6 END OF PROCEEDINGS 13784 7 REBUTTAL TESTIMONY OF WESTLANDS WATER DISTRICT: 8 PANEL: 13744 9 WILLIAM JOHNSTON 10 A.C. DINGLE 11 CROSS-EXAMINATION OF WESTLANDS WATER DISTRICT: 12 MR. HERRICK 13770 MR. KEENE 13773 13 BY BOARD 13775 14 REDIRECT EXAMINATION OF WESTLANDS WATER DISTRICT: 15 MR. BIRMINGHAM 13776 16 RECROSS-EXAMINATION OF WESTLANDS WATER DISTRICT: 17 THE BOARD 13780 18 REDIRECT EXAMINATION OF WESTLANDS WATER DISTRICT: 19 MR. BIRMINGHAM 13782 20 RECROSS-EXAMINATION OF WESTLANDS WATER DISTRICT: 21 THE BOARD 13783 22 ---oOo--- 23 24 25 CAPITOL REPORTERS (916) 923-5447 13743 1 WEDNESDAY, APRIL 21, 1999, 9:00 A.M. 2 SACRAMENTO, CALIFORNIA 3 ---oOo--- 4 C.O. STUBCHAER: Good morning. We will call the 5 Bay-Delta Water Rights Hearing to order. 6 Mr. Birmingham, you ready with your rebuttal 7 testimony today? 8 MR. BIRMINGHAM: Yes. Westlands Water District 9 would like to call Mr. William Johnston and 10 Mr. C.A. Dingle. And Mr. Johnston has previously 11 appeared, Mr. Dingle has not been sworn. 12 C.O. STUBCHAER: Okay. Good morning, Mr. Dingle. 13 MR. DINGLE: Good morning. 14 C.O. STUBCHAER: Please raise your right hand. 15 You promise to tell the truth in this proceeding? 16 MR. DINGLE: I do. 17 C.O. STUBCHAER: Thank you. You may be seated. 18 ---oOo--- 19 REBUTTAL TESTIMONY OF WESTLANDS WATER DISTRICT 20 OF C. A. DINGLE AND WILLIAM JONHSTON 21 BY MR. BIRMINGHAM 22 MR. BIRMINGHAM: Mr. Johnston, when did you begin 23 working for Westlands Water District? 24 MR. JOHNSTON: In 1965. 25 MR. BIRMINGHAM: Was that at the approximate time of CAPITOL REPORTERS (916) 923-5447 13744 1 the merger of Westlands Water District with the former 2 West Plains Water Storage District? 3 MR. JOHNSTON: Yes, it was just before the merger 4 took place. 5 MR. BIRMINGHAM: And after the merger of Westlands 6 and West Plains were there negotiations between Westlands 7 and the Bureau of Reclamation for an additional water 8 service contract? 9 MR. JOHNSTON: Yes. 10 MR. BIRMINGHAM: Were you involved in those 11 negotiations on behalf of Westlands? 12 MR. JOHNSTON: Yes, I was. 13 MR. BIRMINGHAM: During the negotiations with the 14 Bureau, did the Bureau ever state that a portion of 15 Westlands was outside the place of use described in its 16 water right permits? 17 MR. JOHNSTON: No. 18 MR. BIRMINGHAM: Mr. Johnston, I've just handed to 19 you Westlands Water District Exhibit 126. Are you 20 familiar with Westlands Water District 126? 21 MR. JOHNSTON: Yes, I am. 22 MR. BIRMINGHAM: And what is depicted by Westlands 23 Water District 126? 24 MR. JOHNSTON: Westlands 126 is a map of the design 25 service area of the constructed distribution system within CAPITOL REPORTERS (916) 923-5447 13745 1 Westlands Water District. 2 MR. BIRMINGHAM: There are two colored lines that 3 are depicted on Westlands Water District 126. One is a 4 red line and, unfortunately, the copies didn't come out 5 well, another is a green line; is that correct? 6 MR. JOHNSTON: That's correct. 7 MR. BIRMINGHAM: And would you, please, tell us what 8 is depicted by the two colored lines on Westlands Water 9 District 126? 10 MR. JOHNSTON: The red line is a line that is found 11 on Figures 3-26 in the Environmental Impact Report of the 12 consolidated and conformed place of use, Staff Exhibit 2, 13 I believe. 14 MR. BIRMINGHAM: And what is represented by the 15 green line? 16 MR. JOHNSTON: The green line is the line shown on 17 the Department of the Interior, Bureau Reclamation map of 18 the proposed service area of the Federal Central Valley 19 Project, map number 214-208-3349. 20 MR. BIRMINGHAM: Were you responsible for placing 21 the colored lines, the red line and green line, on 22 Westlands' Water District Exhibit 126? 23 MR. JOHNSTON: Yes, I was. 24 MR. BIRMINGHAM: Would you please describe the 25 process you followed in placing the colored lines on CAPITOL REPORTERS (916) 923-5447 13746 1 Westlands' Water District 126? 2 MR. JOHNSTON: Well, I looked at the two maps at the 3 same time and I transferred section by section the 4 location of the two lines to the Westlands map. 5 MR. BIRMINGHAM: And have you estimated the area 6 that is depicted as being inside the place of use as shown 7 on Department of Interior map number 214-208-3349 that is 8 shown to be outside the place of use on Figure 3-26 from 9 State Water Resources Control Board Exhibit 2? 10 MR. JOHNSTON: Yes. The area between the two lines, 11 that is the area west of the red line and east of the 12 green line on the Westlands' Exhibit 126, is approximately 13 9500 acres. 14 MR. BIRMINGHAM: Mr. Johnston, could you, please, 15 tell us on Westlands Water District 126, what is depicted 16 by the gray shaded area that occupies sections depicted on 17 the map? 18 MR. JOHNSTON: The gray area on exhibit Westlands' 19 126 is the area for which the distribution system is 20 constructed and designed to serve. However, water has 21 been delivered from the distribution system to areas that 22 are also shown in white. In other words, most of the 23 district has received project water even though the 24 distribution system has not been completed. 25 MR. BIRMINGHAM: So the gray shaded area is the area CAPITOL REPORTERS (916) 923-5447 13747 1 in which the designed distribution system has been 2 constructed? 3 MR. JOHNSTON: That's correct. 4 MR. BIRMINGHAM: And the white area that is depicted 5 within the boundaries of Westlands Water District on 6 Westlands' 126 is an area for which the designed 7 distribution system has not been constructed? 8 MR. JOHNSTON: Right. The distribution system has 9 been designed for those other areas, but it has not been 10 constructed yet. 11 MR. BIRMINGHAM: Who was responsible for the 12 construction of the distribution system in the area 13 depicted on Westlands' 126? 14 MR. JOHNSTON: The United States Bureau of 15 Reclamation. 16 MR. BIRMINGHAM: Now, you testified that although 17 the distribution system was not constructed for the white 18 area, project water has been delivered to those lands from 19 the constructed distribution system? 20 MR. JOHNSTON: To much of that land, yes. 21 MR. BIRMINGHAM: How is that accomplished? 22 MR. JOHNSTON: Two ways, in the south end of the 23 district you can see that the alternate laterals were 24 constructed and water has been conveyed from the 25 constructed laterals into the areas where the laterals CAPITOL REPORTERS (916) 923-5447 13748 1 haven't been constructed. And also by temporary diversion 2 facilities that have been constructed by the landowners. 3 Ryan and Larry Turnquist testified to the construction of 4 those temporary diversion facilities when they were here. 5 MR. BIRMINGHAM: Why didn't the United States 6 construct a distribution system to the white colored areas 7 depicted on Westlands' Water District 126? 8 MR. JOHNSTON: Because the funds that were 9 appropriated for construction of the distribution system 10 were fully used. 11 MR. BIRMINGHAM: So the United States, essentially, 12 ran out of money? 13 MR. JOHNSTON: Yes, that's correct. 14 MR. BIRMINGHAM: Mr. Dingle, what is your 15 relationship with Westlands Water District? 16 MR. DINGLE: I'm president of the Board. 17 MR. BIRMINGHAM: President of the Board of the 18 directors of the district? 19 MR. DINGLE: Yes. 20 MR. BIRMINGHAM: And by whom are you employed, 21 Mr. Dingle. 22 MR. DINGLE: I'm employed by Wolf Enterprises 23 MR. BIRMINGHAM: And are you a landowner in 24 Westlands Water District? 25 MR. DINGLE: Yes, I am. CAPITOL REPORTERS (916) 923-5447 13749 1 MR. BIRMINGHAM: Does Wolf Enterprises operate a 2 farm in Westlands Water District? 3 MR. DINGLE: Wolf Enterprises is a custom farming 4 operation that operates farms that belong to the Wolf 5 family. 6 MR. BIRMINGHAM: How long have you been involved in 7 farming in Westlands Water District? 8 MR. DINGLE: Initially from 1960 for a brief period 9 of time and then continuously since 1967. 10 MR. BIRMINGHAM: You testified that you were 11 president in the -- excuse me, that you were farming in 12 the district for a short period in 1960 and then you 13 return to the district in 1967? 14 MR. DINGLE: That's correct. 15 MR. BIRMINGHAM: When you returned to Westlands in 16 1967, had the District begun to receive water from the 17 Central Valley Project? 18 MR. DINGLE: Yes, they had. 19 MR. BIRMINGHAM: And in what area of the district 20 was Westlands receiving water from the Central Valley 21 Project when you returned to the district in 1967? 22 MR. DINGLE: There was a lateral constructed from 23 the Mendota Pool along the alignment of Adams Avenue, 24 primarily constructed to provide subsidence testing along 25 the San Luis Canal right-of-way. And there also was CAPITOL REPORTERS (916) 923-5447 13750 1 deliveries that were available off of that lateral during 2 that period. 3 MR. BIRMINGHAM: Now, as a result of these 4 proceeding, you've become familiar with the place of use 5 as it's described in the Draft Environmental Impact 6 Report, State Water Resources Control Board Exhibit 2 and 7 as shown on Department of the Interior map 214-208-3349? 8 MR. DINGLE: Yes, I am. 9 MR. BIRMINGHAM: When you returned to Westlands in 10 1967 and water was being delivered off the Adams Avenue 11 lateral, was that water being used within the place of use 12 as depicted on Westlands' 126? 13 MR. DINGLE: Yes, it was. 14 MR. BIRMINGHAM: Are you familiar with the lands 15 that are within Westlands' boundaries but outside the 16 place of use? 17 MR. DINGLE: Yes, I am. 18 MR. BIRMINGHAM: And how are you familiar with those 19 lands? 20 MR. DINGLE: Some of those lands are farmed by Wolf 21 Enterprises. I have personally been on those lands and 22 have a personal familiarity with them. 23 MR. BIRMINGHAM: Do you have a familiarity of lands 24 that are within Westlands' boundaries but outside the 25 place of use as depicted 126 that are operated by other CAPITOL REPORTERS (916) 923-5447 13751 1 landowners or other farmers within Westlands? 2 MR. DINGLE: Yes. 3 MR. BIRMINGHAM: Were you present in the district 4 when CVP water deliveries began to the area outside the 5 place of use? 6 MR. DINGLE: Yes. 7 MR. BIRMINGHAM: Approximately when did the delivery 8 of CVP water to areas within the District boundaries but 9 outside the place of use begin? 10 MR. DINGLE: To my recollection it would be in the 11 late '60s or early '70s. 12 MR. BIRMINGHAM: At the time those deliveries began 13 did the District know the lands were outside the permitted 14 place of use? 15 MR. DINGLE: No. 16 MR. BIRMINGHAM: Mr. Johnston, were you in a 17 position at the District that you would have been aware if 18 the District had known that CVP water was being delivered 19 outside the place of use in the late '60s or early '70s? 20 MR. JOHNSTON: Yes. 21 MR. BIRMINGHAM: In the late '60s or early '70s when 22 water deliveries began to the District lands that are 23 outside the place of use, did the District know that those 24 lands were outside the place of use? 25 MR. JOHNSTON: No. CAPITOL REPORTERS (916) 923-5447 13752 1 MR. BIRMINGHAM: Mr. Dingle, would you briefly 2 describe the procedure that a landowner had to go through 3 in order to obtain his initial allocation of CVP water for 4 lands within Westlands? 5 MR. DINGLE: First of all, the -- it had to be 6 ascertained as to whether or not his land -- if he was -- 7 if he were farming crops such as cotton or grain, crops 8 that were supported by the United States and declared in 9 surplus, it had to be ascertained whether or not these 10 lands had received irrigation prior to receiving project 11 water. That determination had to be made. 12 It also had to be determined as to whether or not 13 the land in ownership -- at that time the ownership 14 limitation was 160 acres per individual and the individual 15 had to be qualified as not owning more than 160 acres. If 16 they did, they could receive water by executing a 17 recordable contract with the United States. 18 C.O. STUBCHAER: Excuse me, Mr. Dingle, signs from 19 the back of the room, they're having a hard time hearing 20 you. 21 MR. DINGLE: Is the mic on? 22 C.O. STUBCHAER: Maybe get the mic a little closer. 23 MR. DINGLE: It wasn't on. 24 C.O. STUBCHAER: No wonder. 25 MR. BIRMINGHAM: Mr. Dingle, for the benefit of the CAPITOL REPORTERS (916) 923-5447 13753 1 people in the back you were describing the process by 2 which a landowner had to demonstrate if surplus crops were 3 being grown on his lands, that the land had been irrigated 4 before receipt of the CVP water. And I believe you also 5 testified that if lands were held in excess of 160 acres, 6 the landowner had to sign a recordable contract before the 7 receipt of project water; is that correct? 8 MR. DINGLE: That's correct. 9 MR. BIRMINGHAM: You mentioned "surplus crops," were 10 any surplus crops grown in Westlands prior to the receipt 11 of project water? 12 MR. DINGLE: Yes, there were. 13 MR. BIRMINGHAM: What were the surplus crops that 14 were grown in Westlands prior to the receipt of project 15 water? 16 MR. DINGLE: Primarily cotton, wheat and barley. 17 MR. BIRMINGHAM: In the late '60s or early '70s what 18 was the predominant crop grown on District lands that are 19 outside the place of use? 20 MR. DINGLE: Cotton, wheat and barley. 21 MR. BIRMINGHAM: Mr. Johnston, to obtain a CVP water 22 supply was a landowner required to grant a right-of-way to 23 the District? 24 MR. JOHNSTON: No, not in order to receive a water 25 supply, but in order to construct the distribution system CAPITOL REPORTERS (916) 923-5447 13754 1 the landowners were required to -- or -- to have a 2 right-of-way on their land placed in the name of the 3 United States. 4 Actually, the District took the right-of-way and 5 then transferred the right-of-way to the United States 6 before the Bureau would construct the distribution system, 7 or even go to bid on the construction of the contract. In 8 all of the distribution system that was constructed, all 9 but one or two parcels throughout the entire district were 10 donated by the landowners. 11 In other words, the landowners were anxious to 12 get the distribution system constructed, so they donated 13 the right-of-way to the District and the District then 14 transferred it to the United States, which it's still 15 under United States ownership. 16 MR. BIRMINGHAM: Mr. Dingle, a few moments ago you 17 mentioned "recordable contract" in response to one of my 18 questions. I'm handing to you a document that's been 19 marked for identification as Westlands Water District 20 Exhibit 123. Are you familiar with Westlands' Water 21 District Exhibit 123? 22 MR. DINGLE: Yes, I am. 23 MR. BIRMINGHAM: What is Westlands' Water District 24 Exhibit 123? 25 MR. DINGLE: This is letter from the United States CAPITOL REPORTERS (916) 923-5447 13755 1 Department of the Interior, Bureau of Reclamation Mid 2 Pacific Region to Westlands Water District. And it 3 states, 4 (Reading): 5 "Enclosed for your files is a copy of the 6 following list of recordable contracts signed." 7 In this case by John and Bernice Wolf that list 8 the contract number, the date signed, which is May 9th, 9 1983, and the number of acres that this contract covered. 10 MR. BIRMINGHAM: Now, attached to the letter is 11 another document. What is the document that is attached 12 to the letter marked as Westlands' Water District Exhibit 13 123? 14 MR. DINGLE: This is a copy of the recordable 15 contract which is recorded in the County of Fresno. 16 MR. BIRMINGHAM: Now, the letter that's been marked 17 for identification as Westlands' Water District 123 makes 18 a reference to 672 acres; is that correct? 19 MR. DINGLE: That's right. 20 MR. BIRMINGHAM: Are you aware of the location 21 within the District of the 672 acres which is the subject 22 of Westlands' Water District Exhibit 123? 23 MR. DINGLE: Yes, I am. 24 MR. BIRMINGHAM: Where is the 672 acres which is the 25 subject of Westlands' Water District Exhibit 123 located? CAPITOL REPORTERS (916) 923-5447 13756 1 MR. DINGLE: There are three parcels. The first one 2 is located in section 14, township 17, south range 14 east 3 Mount Diable Basin Meridian. The second parcel in located 4 section 6, township 18 south, range 15 east, Mount Diable 5 Basin Meridian. And the third parcel is in section 8, 6 township 18 south, range 15 east, Mount Diable Basin 7 Meridian. 8 MR. BIRMINGHAM: Are those lands within or outside 9 the place of use as depicted on Westlands' Water District 10 Exhibit 126? 11 MR. DINGLE: They're outside. 12 MR. BIRMINGHAM: Looking at the letter that's 13 contained, or that's marked for identification as 14 Westlands' Water District 123, at the conclusion of the 15 first paragraph there is a sentence that says, 16 (Reading): 17 "By copy of this letter with enclosure of the 18 contract, the landowner is being notified that 19 the land is eligible to receive project water." 20 Did I accurately read that? 21 MR. DINGLE: That's correct. 22 C.O. STUBCHAER: Actually, you put in a "the" that 23 wasn't there. 24 MR. BIRMINGHAM: Did I? 25 C.O. STUBCHAER: Yes. CAPITOL REPORTERS (916) 923-5447 13757 1 MR. BIRMINGHAM: Maybe I better read it again. 2 (Reading): 3 By copy of this letter with enclosure of 4 contract, the landowner is being notified that 5 the land is eligible to receive project water." 6 C.O. BROWN: Are you reading that on 123? 7 MR. BIRMINGHAM: 123, yes. 8 MR. DINGLE: That is correct. 9 MR. BIRMINGHAM: May I approach, Mr. Brown? 10 C.O. STUBCHAER: We got it. 11 C.O. BROWN: Got it. 12 MR. BIRMINGHAM: Now, have you seen other letters, 13 Mr. Dingle, from the Bureau of Reclamation to Westlands 14 Water District that transmitted recordable contracts? 15 MR. DINGLE: Yes, I have. 16 MR. BIRMINGHAM: And are they of a form similar to 17 Westlands' Water District 123? 18 MR. DINGLE: Yes, they are. 19 MR. BIRMINGHAM: And did the other letters that 20 you've seen transmitting recordable contracts contain the 21 statement, 22 (Reading): 23 "By copy of this letter with enclosure of 24 contract, the landowner is being notified that 25 the land is eligible to receive project water"? CAPITOL REPORTERS (916) 923-5447 13758 1 MR. DINGLE: Yes. 2 MR. BIRMINGHAM: Mr. Dingle, I'm handing to you a 3 document that has been marked for identification as 4 Westlands' Exhibit 125. Are you familiar with Westlands' 5 Exhibit 125? 6 MR. DINGLE: Yes, I am. 7 MR. BIRMINGHAM: What is Westlands' Water District 8 Exhibit 125? 9 MR. DINGLE: This is letter from United States 10 Department of the Interior, Bureau of Reclamation 11 addressed to myself at Wolf Enterprises. The subject is 12 Westlands Water District approval of sale number F95-010 13 Chevron U.S., Wolf Family Trust Number 1. 14 MR. BIRMINGHAM: And the letter is dated February 15 29, 1996? 16 MR. DINGLE: That is correct. 17 MR. BIRMINGHAM: What was the purpose of Westlands' 18 Exhibit 125, if you know? 19 MR. DINGLE: This was to advise the purchaser of 20 lands that the price that the lands had been purchased for 21 had been approved by the United States Bureau of 22 Reclamation at a price that did not reflect project 23 benefit. 24 MR. BIRMINGHAM: Okay. Have you seen other letters 25 approving -- let me restate the question. CAPITOL REPORTERS (916) 923-5447 13759 1 Have you seen other letters from the Department 2 of the Interior, Bureau of Reclamation to landowners 3 indicating approval of the sales price for excess lands? 4 MR. DINGLE: Yes. 5 MR. BIRMINGHAM: And were the other letters that you 6 have seen similar in form to Westlands' 125? 7 MR. DINGLE: Yes. 8 MR. BIRMINGHAM: Looking at the second paragraph of 9 Westlands' Water District 125 there is a statement that 10 says, 11 (Reading): 12 "Therefore, the subject sale is approved and 13 the non-class 6 land in the parcels described 14 below is eligible to receive irrigation water 15 from Reclamation project facilities as 16 nonexcess land in the ownership of the trust." 17 Do you see that sentence? 18 MR. DINGLE: Yes, I do. 19 MR. BIRMINGHAM: Now, the other letters that you 20 have seen that are similar in form to 125 which are 21 notifying a land purchaser of price approval, did those 22 letters contain a statement to the effect that the land is 23 eligible to receive irrigation water from Reclamation? 24 MR. DINGLE: That's correct. 25 MR. BIRMINGHAM: Reclamation facilities as nonexcess CAPITOL REPORTERS (916) 923-5447 13760 1 land? 2 MR. DINGLE: Yes. 3 MR. BIRMINGHAM: Now, going on in Westlands' Water 4 District Exhibit 125, there is a sentence that is 5 immediately following the sentence I just read that 6 states, 7 (Reading): 8 "However, please, note, that any of the sale 9 property that has not been cultivated in the 10 past three years cannot receive project water 11 until it has been proven to this office that 12 the property is not currently, nor has possible 13 habitat potential for threatened or endangered 14 species." 15 Do you see that sentence? 16 MR. DINGLE: Yes. 17 MR. BIRMINGHAM: Are you aware of the purpose of the 18 requirement that the landowner demonstrate to the 19 Department of Interior that the land had been cultivated 20 within the last three years? 21 MR. DINGLE: Ask it again, please. 22 MR. BIRMINGHAM: Are you aware of the purpose of the 23 requirement that the landowner demonstrate to the 24 Department of the Interior that the land -- in order to 25 receive project water that the land had been cultivated CAPITOL REPORTERS (916) 923-5447 13761 1 within the last three years? 2 MR. DINGLE: Yes. 3 MR. BIRMINGHAM: What is the purpose of that 4 requirement? 5 MR. DINGLE: It's my understanding that the 6 Department of the Interior was concerned about property 7 that had become habitat for endangered species. And, 8 therefore, if it had not been cultivated within the past 9 three years, project water could not be delivered. 10 MR. BIRMINGHAM: Now, the lands that are the subject 11 of Westlands' Water District 125, where are those lands 12 located? 13 MR. DINGLE: Most of them are along the I-5 14 corridor, some of which lay outside the permitted place of 15 use. 16 MR. BIRMINGHAM: Mr. Dingle, I'm handing you a 17 document that is marked for identification as Westlands' 18 Water District Exhibit 124. Are you familiar with 19 Westlands' Water District 124? 20 MR. DINGLE: Yes. 21 MR. BIRMINGHAM: What is Westlands' Water District 22 Exhibit 124? 23 MR. DINGLE: This is a letter from the United States 24 Department of the Interior, Bureau of Reclamation to Larry 25 W. Johns, Chevron U.S., Incorporated. Subject is CAPITOL REPORTERS (916) 923-5447 13762 1 Westlands Water District recordable contract that was 2 being executed by Chevron U.S.A. 3 MR. BIRMINGHAM: And what is the date of Westlands' 4 Water District 124? 5 MR. DINGLE: June 26, 1996. 6 C.O. STUBCHAER: Mr. Herrick? 7 MR. HERRICK: Excuse me for interrupting. I wonder 8 if we can connect this to something in rebuttal, I'm not 9 sure what this is rebutting. 10 C.O. STUBCHAER: Mr. Birmingham? 11 MR. BIRMINGHAM: I'd be happy to do that. During 12 the course of examination of a number of witnesses not 13 only from Westlands but from other water districts, it was 14 brought out that some of the lands which are outside the 15 place of use came into ownership within the last couple of 16 years. 17 And there were questions about why did the 18 landowners take the land and start taking project water on 19 those lands that were outside the place of use in light of 20 common knowledge that the lands were outside the place of 21 use. 22 This letter, which is dated June 26, 1996, is 23 intended to show that as recently as June 26th, 1996, the 24 Bureau of Reclamation was advising landowners that lands 25 were outside -- that were outside the place of use were CAPITOL REPORTERS (916) 923-5447 13763 1 eligible to receive project water. 2 C.O. STUBCHAER: All right. Thank you. 3 Go ahead. 4 MR. BIRMINGHAM: Mr. Dingle, under -- I'm not sure I 5 have asked you this question: Did you receive a copy of 6 Westlands' Water District Exhibit 124? 7 MR. DINGLE: Yes, I did. 8 MR. BIRMINGHAM: Under what circumstances did you 9 receive a copy of Westlands' Water District Exhibit 124? 10 MR. DINGLE: Some of the lands that were subject of 11 this recordable contract are leased by the Wolf Family 12 Trust. 13 MR. BIRMINGHAM: And are the lands that were leased 14 by the Wolf Family Trust and the subject of Westlands' 15 Water District 124 outside the place of use? 16 MR. DINGLE: Some of them are, yes. 17 MR. BIRMINGHAM: Now, looking at Westlands' Water 18 District Exhibit 124, which we have indicated is dated 19 June 26, 1996, there is a statement at the end of the 20 first paragraph that says, 21 (Reading): 22 "The 6,551 acres of excess land owned by 23 Chevron as described in the contract are now 24 eligible to receive irrigation water from 25 Reclamation project facilities under the terms CAPITOL REPORTERS (916) 923-5447 13764 1 of the contract until March 15, 2001." 2 Is that correct? 3 MR. DINGLE: That's correct. 4 MR. BIRMINGHAM: So as late as January 1996 the 5 Bureau was still entering into recordable contracts for 6 lands that are outside the place of use? 7 MR. DINGLE: That's correct. 8 MR. BIRMINGHAM: And as late 1996 the Bureau of 9 Reclamation was advising landowners, or water users that 10 the lands that were the subject of the recordable 11 contracts and outside the place of use were eligible to 12 receive Central Valley Project water? 13 MR. DINGLE: That's correct. 14 MR. BIRMINGHAM: Earlier in your testimony, 15 Mr. Dingle, you referred to a provision of Reclamation Law 16 that limited landholdings to 160 acres unless lands that 17 were excess were placed in the recordable contract. 18 Do you recall testifying to that? 19 MR. DINGLE: Yes. 20 MR. BIRMINGHAM: Now, has that requirement 21 subsequently been modified? 22 MR. DINGLE: Yes, it has. 23 MR. BIRMINGHAM: What modified the limitation on 24 land ownership? 25 MR. DINGLE: The Reclamation Reform Act. CAPITOL REPORTERS (916) 923-5447 13765 1 MR. BIRMINGHAM: Is that the Reclamation Reform Act 2 of 1982? 3 MR. DINGLE: That's correct. 4 MR. BIRMINGHAM: And did the Reclamation Reform Act 5 affect the number of acres that an individual could own 6 and still be eligible to and still receive project water? 7 MR. DINGLE: Yes, it did. There was also kind of a 8 change in the definition of the landholder itself, but it 9 increased the acreage limitation from 160 acres to 960 10 acres. 11 MR. BIRMINGHAM: Was there a procedure that 12 landowners had to go through to become eligible to own up 13 960 acres after the enactment of the Reclamation Reform 14 Act? 15 MR. DINGLE: Yes. A landowner had the option of 16 making irrevocable election under the Reclamation Reform 17 Act to comply with the provisions of the Act and thereby 18 be entitled to 960 acre entitlement. 19 MR. BIRMINGHAM: I'm handing to you, Mr. Dingle, a 20 document that's been marked for identification as 21 Westlands' Water District Exhibit 122. Are you familiar 22 with Westlands' Water District Exhibit 122? 23 MR. DINGLE: Yes, I am. 24 MR. BIRMINGHAM: What is Westlands' Water District 25 Exhibit 122? CAPITOL REPORTERS (916) 923-5447 13766 1 MR. DINGLE: This is a letter from the United States 2 Department of the Interior, the Bureau of Reclamation Mid 3 Pacific Region dated June 10th, 1987, to Westlands Water 4 District advising the District that an irrevocable 5 election by qualified or limited recipient under 6 Reclamation Reform Act of 1982 had been executed by 7 various entities. 8 MR. BIRMINGHAM: Now, it shows that you received a 9 copy of Westlands' Water District 122. 10 MR. DINGLE: That's correct. 11 MR. BIRMINGHAM: The entities that are listed on 12 Westlands' Water District 122, were any of those entities 13 outside the existing place of use as depicted on 14 Westlands' Water District Exhibit 126? 15 MR. DINGLE: Yes. 16 MR. BIRMINGHAM: Which of those entities are outside 17 the place of use? 18 MR. DINGLE: Lansing Farming Company. 19 MR. BIRMINGHAM: There is a sentence about halfway 20 down the page on Westlands' Water District 122, that says 21 that, 22 (Reading): 23 "The owned land as described on the certificate 24 of landholdings is now eligible to receive 25 irrigation water from Reclamation project CAPITOL REPORTERS (916) 923-5447 13767 1 facilities as nonexcess land." 2 Do you see that sentence? 3 MR. DINGLE: Yes. 4 MR. BIRMINGHAM: Now, have you seen other letters 5 from the Department of the Interior, Bureau of Reclamation 6 transmitting to Westlands Water District or other district 7 irrevocable elections signed by landowners? 8 MR. DINGLE: Yes. 9 MR. BIRMINGHAM: Were they a form similar to 10 Westlands' Water District Exhibit 122? 11 MR. DINGLE: Yes. 12 MR. BIRMINGHAM: And did those other letters that 13 were transmitting irrevocable elections contain a 14 statement that the own lands as described on the 15 certificate of landholdings is now eligible to receive 16 irrigation water from Reclamation project facilities as 17 nonexcess land? 18 MR. DINGLE: Yes. 19 MR. BIRMINGHAM: Mr. Dingle, I'm handing to you a 20 colored map that has been marked for identification as 21 Westlands' Water District 127. And I'll also note that 22 the original of Westlands' Water District 127 has been 23 placed on the board, if anyone has any questions about 24 this map. And, also, we would lodge this with the Board 25 as the original 127. CAPITOL REPORTERS (916) 923-5447 13768 1 Are you familiar with Westlands' Water District 2 127, Mr. Dingle? 3 MR. DINGLE: Yes. 4 MR. BIRMINGHAM: What is Westlands' Water District 5 127? 6 MR. DINGLE: This is a land classification map 7 prepared by the Bureau of Reclamation. 8 MR. BIRMINGHAM: And when was this map prepared by 9 the Bureau of Reclamation, Mr. Dingle? 10 MR. DINGLE: I believe the date on the map, if I'm 11 not mistaken, is 1998. 12 MR. BIRMINGHAM: Now, on the copies that have been 13 distributed, the date has been cut off; is that correct? 14 MR. DINGLE: That's correct. 15 MR. BIRMINGHAM: But on the original it says the 16 date of the map is 28th of February 1998; is that correct? 17 MR. DINGLE: That's correct. 18 MR. BIRMINGHAM: Now, Mr. Dingle, what class of 19 lands is ineligible to receive project water? 20 MR. DINGLE: Class 6. 21 MR. BIRMINGHAM: And, Mr. Dingle, do you know when 22 the land classification survey on which Westlands' 127 is 23 based was conducted by the Bureau of Reclamation? 24 MR. DINGLE: I'm not exactly sure. I think it was 25 in the last three or four years. CAPITOL REPORTERS (916) 923-5447 13769 1 MR. BIRMINGHAM: Was Westlands' Water District 2 Exhibit 127 taken from the record of Westlands Water 3 District? 4 MR. DINGLE: Yes. 5 MR. BIRMINGHAM: I have no further questions. 6 C.O. STUBCHAER: Thank you, Mr. Birmingham. 7 Cross-examination? Mr. Herrick, Mr. Keene. 8 Anyone else? 9 Mr. Herrick. 10 ---oOo--- 11 CROSS-EXAMINATION OF WESTLANDS WATER DISTRICT 12 BY SOUTH DELTA WATER AGENCY 13 BY MR. HERRICK 14 MR. HERRICK: Thank you, Mr. Chairman, Board 15 Members. John Herrick for the South Delta Water Agency. 16 I just have a few questions. 17 Mr. Dingle, is correct to say that some of the 18 lands that are proposed to be -- to now be included within 19 the place of use are Class 6 lands? 20 MR. DINGLE: That's correct. 21 MR. HERRICK: And those are lands that are not 22 allowed to receive CVP water? 23 MR. DINGLE: That's correct. 24 MR. HERRICK: Mr. Johnston, on Westlands' Exhibit 25 126 I believe you stated that you plotted the green and CAPITOL REPORTERS (916) 923-5447 13770 1 red lines; is that correct? 2 MR. JOHNSTON: Yes. 3 MR. HERRICK: And the red line comes from map 4 214-208-3349; is that correct? 5 MR. JOHNSTON: The green line comes from map 6 214-208-3349. 7 MR. HERRICK: That's right. Now, 33 -- excuse me, 8 I'll just use the last numbers of that map -- but map 3349 9 is one of the maps for the DMC San Luis service area; is 10 that correct? 11 MR. JOHNSTON: Yes. 12 MR. HERRICK: Did you plot any of the other boundary 13 lines for other service area maps that might include 14 Westlands Water District? 15 MR. JOHNSTON: No. 16 MR. HERRICK: Do you know whether or not the 17 boundary lines for the Folsom service area as it pertains 18 to Westlands would be inside or outside of the lines you 19 have plotted? 20 MR. JOHNSTON: No. 21 MR. HERRICK: How about for the Trinity maps? 22 MR. JOHNSTON: No. 23 MR. HERRICK: Now, excuse me if I didn't hear, you 24 calculated the acreage that's between those lines? 25 MR. JOHNSTON: I estimated the acreage between the CAPITOL REPORTERS (916) 923-5447 13771 1 lines. 2 MR. HERRICK: Sorry. And then did you make some 3 sort of adjustments? It appears to me that the lines 4 cross a couple of times. 5 MR. JOHNSTON: Yes. 6 MR. HERRICK: So there was a plus and then a minus 7 in the calculation? 8 MR. JOHNSTON: I did not take into consideration the 9 small area between the green and red lines where the green 10 line is east of the red line. 11 MR. HERRICK: Okay. So you're -- okay. Thank you. 12 Mr. Dingle, on the sales under recordable 13 contracts that you discussed under direct examination. 14 Generally, what year did those take place? I believe one 15 of them references '96. I just don't want to state it 16 incorrectly. 17 MR. DINGLE: The sale that I -- that's the subject 18 of Westlands' Exhibit 125 was a letter dated 19 February 29th, 1996. 20 MR. HERRICK: And what was your -- did you have any 21 position with Westlands Water District in 1985 or 1986? 22 MR. DINGLE: No. 23 MR. HERRICK: Mr. Johnston, did you have any 24 position with Westlands Water District in 1985 or 1986? 25 MR. JOHNSTON: Yes. CAPITOL REPORTERS (916) 923-5447 13772 1 MR. HERRICK: And were you aware in 1985 or 1986 2 that the Bureau had filed a petition similar to the one 3 before the Board now, but slightly different? 4 MR. JOHNSTON: I don't recall any discussion about 5 such a filing, no. 6 MR. HERRICK: Do you recall other people at the 7 district discussing it? 8 MR. JOHNSTON: No. 9 MR. HERRICK: That's all I have. Thank you very 10 much. 11 C.O. STUBCHAER: Okay. Mr. Keene. 12 ---oOo--- 13 CROSS-EXAMINATION OF WESTLANDS WATER DISTRICT 14 BY SAN LUIS WATER DISTRICT 15 BY MR. KEENE 16 MR. KEENE: Very briefly. Mr. Dingle, are you 17 familiar with the general location of the San Luis Water 18 District? 19 MR. DINGLE: Yes, I am. 20 MR. KEENE: That's immediately adjacent but to the 21 northwest of the Westlands' District? 22 MR. DINGLE: Yes. 23 MR. KEENE: Now, you had testified on direct 24 examination about there having been a requirement for the 25 Westlands District that the land had to be irrigated, or CAPITOL REPORTERS (916) 923-5447 13773 1 had to have already been irrigated before it could receive 2 CVP water? 3 MR. DINGLE: If it was land that was growing crops 4 that had been declared surplus, yes, it had to be 5 irrigated prior to receiving Central Project Water. 6 MR. KEENE: Could you explain to me what surplus 7 crops are? 8 MR. DINGLE: There are, under the Agricultural 9 Stabilization Act, there were certain crops that were 10 supported by the Federal Government. And if the Secretary 11 of Agriculture declared any of those crops in surplus to 12 the needs of the United States those would be subject to 13 having to be irrigated prior to receiving project water. 14 MR. KEENE: Okay. So that requirement with regard 15 to having to have been irrigated prior to receiving to the 16 project water would have been equally applicable to the 17 San Luis District as well as to the Westlands District? 18 MR. DINGLE: I don't know that. 19 MR. KEENE: Thank you. I have nothing else. 20 C.O. STUBCHAER: Staff, any questions? 21 MS. LEIDIGH: No. 22 C.O. STUBCHAER: Board Members? 23 Mr. Brown. 24 // 25 // CAPITOL REPORTERS (916) 923-5447 13774 1 ---oOo--- 2 CROSS-EXAMINATION OF WESTLANDS WATER DISTRICT 3 BY THE BOARD 4 C.O. BROWN: On the 9500 acres between the green and 5 red line, is there any groundwater available in that area 6 to service those lands? 7 MR. JOHNSTON: Very, very little if any. 8 C.O. BROWN: The quality is poor? 9 MR. JOHNSTON: The quality would be poor if there's 10 any groundwater. You're getting quite a ways west, close 11 to the foothills and there's very little groundwater in 12 that area. 13 C.O. BROWN: And the pumping would not go very deep? 14 MR. JOHNSTON: Well, Mr. Dingle could probably tell 15 you the depth of the groundwater, if there is any there. 16 MR. DINGLE: You asking me, Mr. Brown? 17 C.O. BROWN: Sure, Mr. Dingle. 18 MR. DINGLE: Yes. The groundwater pumping levels on 19 the lands that I'm familiar with in that area are as much 20 as a thousand foot lift. 21 C.O. BROWN: So, in essence, there is no alternative 22 source of water other than CVP water on these lands? 23 MR. JOHNSTON: In much of that area, that's correct. 24 C.O. BROWN: What is the value of lands with water 25 as opposed to those lands without water in that area? CAPITOL REPORTERS (916) 923-5447 13775 1 MR. DINGLE: Typically I would say that you're 2 looking at grazing land value as opposed to farmland 3 value. And the difference is probably somewhere in the 4 1,000 to $1200 an acre range. 5 C.O. BROWN: So the grazing land would be worth, 6 maybe, a thousand? 7 MR. DINGLE: Grazing land is probably 300 to 350 an 8 acre and land with water could be 1500 an acre. 9 C.O. BROWN: Thank you. 10 C.O. STUBCHAER: Is that it, Mr. Brown? 11 C.O. BROWN: Yes, sir. 12 C.O. STUBCHAER: Okay. That concludes 13 cross-examination of this panel. 14 Do you have any redirect, Mr. Birmingham? 15 ---oOo--- 16 REDIRECT EXAMINATION OF WESTLANDS 17 BY MR. BIRMINGHAM 18 MR. BIRMINGHAM: Following up, Mr. Dingle, on 19 Mr. Brown's questions about the value of the lands with 20 and without water, are any of the lands that are outside 21 the place of use within Westlands that have received 22 project water, are any of those lands used for permanent 23 crops? 24 MR. DINGLE: Yes. 25 MR. BIRMINGHAM: What would be the approximate value CAPITOL REPORTERS (916) 923-5447 13776 1 of the land with permanent crops with water, with CVP 2 water supply? 3 MR. DINGLE: Well, obviously, depending on the type 4 of crop it is, my familiarity is primarily with almonds 5 and pistachios. We have -- or the Lansing Farming 6 Company, which is one of the Wolf family partnerships, has 7 approximately a thousand acre of a pistachios outside the 8 place of use. Appraisals on that property have been in 9 the neighborhood of $12,000 an acre. 10 MR. BIRMINGHAM: And without a CVP water supply, 11 what would those lands be worth? 12 MR. DINGLE: Grazing land value. 13 MR. BIRMINGHAM: So $300? 14 MR. DINGLE: Yes. 15 MR. BIRMINGHAM: So for those lands that have 16 pistachios the difference in value is as much as $11,500? 17 MR. DINGLE: That's correct. 18 MR. BIRMINGHAM: Now, Mr. Herrick asked you 19 questions about when sales have occurred under recordable 20 contracts. And you responded by making reference to a 21 specific sale. 22 Are you familiar or aware of other sales that 23 have occurred under recordable contracts within the 24 District? 25 MR. DINGLE: Yes. CAPITOL REPORTERS (916) 923-5447 13777 1 MR. BIRMINGHAM: Over what period of time have sales 2 within Westlands occurred as a result of recordable 3 contracts? 4 MR. DINGLE: Well, I'm guessing, you can probably go 5 back to the time that project water was first received in 6 the district and find sales that were made subject to 7 recordables. Keeping in mind that at that time recordable 8 contracts were periods of ten years, but it didn't mean 9 you had to wait ten years to sell it. There were some 10 sales that took place very shortly after contracts were 11 executed. 12 MR. BIRMINGHAM: Mr. Johnston, are you familiar with 13 sales under recordable contracts within the District? 14 MR. JOHNSTON: Yes. 15 MR. BIRMINGHAM: And over what period of time have 16 sales of land under recordable contracts occurred within 17 the District? 18 MR. JOHNSTON: Well, recordable contracts were 19 signed as early as 1964/'65. So if the contracts went to 20 their maturity, we're talking about 1974 and 1975. 21 And as Mr. Dingle pointed out, some of the sales 22 occurred prior to the maturity of the contract. So around 23 1970 or late '60s would have been the time, those were the 24 first sales under price approval under the recordable 25 contract. CAPITOL REPORTERS (916) 923-5447 13778 1 MR. BIRMINGHAM: So would I be correct that sales of 2 land under recordable contract within Westlands having 3 going on, essentially, continuously from approximately 4 1970 through the present? 5 MR. JOHNSTON: Yes. 6 MR. BIRMINGHAM: Now, Mr. Herrick asked you about 7 whether you were aware in 1985 or 1986 that lands within 8 the District were outside the permitted place of use and 9 that a petition similar to the petition now being 10 considered by the Board had been filed. 11 Do you recall that question? 12 MR. JOHNSTON: Yes. I think he asked me if I was 13 aware of the petition. He didn't ask me about being aware 14 of the land. 15 MR. BIRMINGHAM: In 1986, what was your position 16 with Westlands Water District? 17 MR. JOHNSTON: I was assistant general manager. 18 MR. BIRMINGHAM: And so if there were discussions 19 that were going on within the District about a petition 20 having been filed by the Bureau of Reclamation, you would 21 have been aware of those discussions? 22 MR. JOHNSTON: I should have been, yes. 23 MR. BIRMINGHAM: I have no further questions. 24 C.O. STUBCHAER: Thank you. 25 Any recross examination? Staff? CAPITOL REPORTERS (916) 923-5447 13779 1 MS. LEIDIGH: No. 2 C.O. STUBCHAER: Ms. Forster? 3 ---oOo--- 4 CROSS-EXAMINATION OF WESTLANDS WATER DISTRICT 5 BY THE BOARD 6 MEMBER FORSTER: I have a question, I'm sorry it 7 might have been covered when I was out of the room, I was 8 helping with our budget. 9 In one of the letters it had a date with a 10 renewal contract, let's see, I think it's -- 11 MR. BIRMINGHAM: 124. 12 MEMBER FORSTER: 124, yes, thank you. Are most of 13 the contracts up at the same time, or do they all go 14 according to so many years? Is this a time when, 15 March 15th, 2001, several of the contracts will be up or 16 is that just for this property? 17 MR. DINGLE: It is this property. Recordable 18 contracts are -- have a period -- original contracts under 19 prior law, prior to the Reclamation Reform Act ran for ten 20 years from the date they were executed. This particular 21 contract was signed after the Reclamation Reform Act was 22 passed which shortened the period to five years. 23 MEMBER FORSTER: So everybody has that time limit? 24 I know it's not consecutive, everybody isn't at the same 25 time. Does everybody have five-year permits? CAPITOL REPORTERS (916) 923-5447 13780 1 MR. DINGLE: Well, the contract term, which allows 2 you to receive project water on excess land, the terms of 3 the contract require that you sell the land within that 4 five-year term at a price approved by the United States 5 Government which does not reflect the project benefit. 6 Typically, that price is about half of market price. 7 MEMBER FORSTER: Thank you. 8 MR. BIRMINGHAM: Excuse me, in as much as 9 Ms. Forster question did not relate to my redirect, but 10 instead related to the presentation of my direct, I wonder 11 if I might move to redirect. 12 MEMBER FORSTER: Do you want me to strike it? 13 MR. BIRMINGHAM: No, I don't want you to strike it. 14 I just need to ask one question of Mr. Dingle. 15 C.O. STUBCHAER: All right. Go ahead, then we'll 16 have the opportunity for additional recross. 17 C.O. BROWN: Mr. Chairman? 18 C.O. STUBCHAER: Mr. Brown. 19 C.O. BROWN: I think probably everyone is familiar 20 with Reclamation Law, it might be well to just lay a 21 little foundation for that, make sure everybody 22 understands it. 23 // 24 // 25 // CAPITOL REPORTERS (916) 923-5447 13781 1 ---oOo--- 2 REDIRECT EXAMINATION OF WESTLANDS WATER DISTRICT 3 BY MR. BIRMINGHAM 4 MR. BIRMINGHAM: Mr. Dingle, could you explain for 5 the Board why the recordable contract imposed a ten-year 6 period and then a five-year period under RRA during which 7 the land had to be sold at a price approved by the 8 Secretary? 9 MR. DINGLE: Yes. As a condition of receiving 10 project -- let me back up for a second. In Westlands 11 Water District, at least, there were many landholdings 12 that were in excess of 160 acres and owned by a single 13 individual at the time project water became available. 14 And under Reclamation Law as a condition of 15 receiving project water that excess landowner would have 16 to execute a contract with the United States which was 17 recorded in the county where the lands were located that 18 imposed a requirement that the lands be sold within a 19 ten-year period at a price that was approved by the 20 Secretary of Interior as not reflecting the benefit of the 21 project. 22 MR. BIRMINGHAM: And the purpose of the requirement 23 that the land be sold under the Reclamation Law was to 24 break up the large landholdings into smaller landholdings 25 to create under Reclamation law what is sometimes referred CAPITOL REPORTERS (916) 923-5447 13782 1 to as small-family farms? 2 MR. DINGLE: That's correct. 3 MR. BIRMINGHAM: Now, I'll get to the question I was 4 going to ask: 5 After the expiration of the recordable contract 6 and the sale of the land under the recordable contract as 7 you described it for Board Member Forster, was the land 8 still eligible to receive project water? 9 MR. DINGLE: Yes. Once it was sold at an approved 10 price it then continued to be eligible to receive project 11 water. 12 MR. BIRMINGHAM: Thank you. 13 C.O. STUBCHAER: Any recross? Staff? Board? 14 ---oOo--- 15 CROSS-EXAMINATION OF WESTLANDS WATER DISTRICT 16 BY THE BOARD 17 C.O. BROWN: Clarification: The land had to be sold 18 to an entity that had less than 160 acres total of the 19 water supplied within a federal service area? 20 MR. BIRMINGHAM: Since the question, Board Member 21 Brown is asking is a legal question, I would feel 22 comfortable in responding that the person who bought the 23 land could not hold it in excess. 24 So under the prior law if it were in excess of 25 160 acres it could not be sold to that individual. Under CAPITOL REPORTERS (916) 923-5447 13783 1 current law, if the sale would result in a landholding in 2 excess of 960 acres that sale could not occur to that 3 individual. So Board Member Brown his understanding of 4 the law is consistent with mine. 5 Westlands Water District would move to admit 6 Westlands' Water District Exhibit 122, 123, 124, 125, 126 7 and 127. 8 C.O. STUBCHAER: Any objections? Seeing none, they 9 are accepted. 10 MR. BIRMINGHAM: Thank you. That concludes our 11 rebuttal case. 12 C.O. STUBCHAER: Okay. Thank you, gentlemen, for 13 your participation. 14 Board Members, staff, any other business to come 15 before us today? 16 MS. LEIDIGH: I don't think so. 17 C.O. STUBCHAER: Anyone, anything they want to bring 18 up until we adjourn until Tuesday the 27th with rebuttal 19 regarding the State Water Resources Control Board maps? 20 Seeing none, then we are adjourned until April 27th at 21 9:00 a.m. in this room. 22 (The proceedings concluded at 10:10 a.m.) 23 ---oOo--- 24 25 CAPITOL REPORTERS (916) 923-5447 13784 1 REPORTER'S_CERTIFICATE __________ ___________ 2 3 STATE OF CALIFORNIA ) ) ss. 4 COUNTY OF SACRAMENTO ) 5 I, MARY R. GALLAGHER, certify that I was the 6 Official Court Reporter for the proceedings named herein, 7 and that as such reporter I reported in verbatim shorthand 8 writing those proceedings; that I thereafter caused my 9 shorthand writing to be reduced to typewriting, and the 10 pages numbered 13744 through 13784 herein constitute a 11 complete, true and correct record of the proceedings. 12 IN WITNESS WHEREOF, I have subscribed this 13 certificate at Sacramento, California, on this 26th day of 14 April, 1999. 15 16 ________________________________ MARY R. GALLAGHER, CSR #10749 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 13785