STATE WATER RESOURCES CONTROL BOARD PUBLIC HEARING 1998 BAY-DELTA WATER RIGHTS HEARING HELD AT: BONDERSON BUILDING 901 P STREET SACRAMENTO, CALIFORNIA TUESDAY, APRIL 27, 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: 13803 4 5 SAN LUIS WATER DISTRICT: BRIAN KETELHUT: 6 DIRECT EXAMINATION - REBUTTAL TESTIMONY: BY MR. KEENE 13806 7 CROSS-EXAMINATION: BY MR. NOMELLINI 13809 8 BY MR. BIRMINGHAM 13818 BY STAFF 13821 9 10 ARVIN-EDISON WATER STORAGE DISTRICT: 11 STEVE COLLUP - REBUTTAL TESTIMONY: DIRECT EXAMINATION: 12 BY MR. CONANT 13824 BY STAFF 13831 13 WESTLANDS WATER DISTRICT: 14 FRANK MORROW - REBUTTAL TESTIMONY: 15 DIRECT EXAMINATION - REBUTTAL TESTIMONY: BY MR. BIRMINGHAM 13832 16 CROSS-EXAMINATION: BY MR. NOMELLINI 13840 17 BY MR. KEENE 13845 BY STAFF 13848 18 19 ---oOo--- 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 1 SACRAMENTO, CALIFORNIA 2 April 27, 1999 3 ---oOo--- 4 C.O. STUBCHAER: Morning. We will call the Bay-Delta 5 Water Rights hearing to order. 6 As you know, we are still in Phase VII. The one 7 remaining aspect of VII to be conducted today and tomorrow, 8 if necessary, is rebuttal testimony pertaining to the place 9 of use maps specified in the water right permits on file 10 with this Board. 11 Who wishes to present rebuttal testimony limited to 12 this aspect? 13 Mr. Keene, Mr. Birmingham, Mr. Conant. 14 MR. NOMELLINI: I have a qualified interest in this. 15 And I -- 16 Dante John Nomellini for Central Delta Parties. 17 I think, technically, it may not be rebuttal but the 18 Bureau does have the person that put the red line on the map 19 that was the in-between map between the place of use maps 20 and the GIS work. That gap seems, to me, to be relevant. I 21 don't know if it is rebuttal because it is not rebutting 22 anything that is previously there. I would be willing to 23 call the Bureau witness. 24 Mr. Turner indicated he wasn't going to put it on. If 25 it is appropriate, I would be willing to do that. The CAPITOL REPORTERS (916) 923-5447 13803 1 witness has one of the red line maps to explain how he did 2 the red line off of the place of use maps from which the GIS 3 work was done. If there is any objection to it, I will go 4 back and I will sit down over there and I will forget. But 5 I am willing to do that for the benefit of the record. 6 C.O. STUBCHAER: Any comment? 7 MR. TURNER: Mr. Chairman, Jim Turner for the 8 Department of the Interior. 9 I can understand Mr. Nomellini, I suppose, wanting to 10 complete, allegedly complete the record. The testimony that 11 has, in fact, been presented on two or three occasions, both 12 by Gale Heffler and by the GIS individual that was here last 13 week, fully explaining how the maps were prepared. I made 14 them available to Mr. Nomellini so he could eyeball exactly 15 what a red line looks like on the map. And it is plain 16 enough to see a red line on a map. It was fully explained 17 how it was developed. 18 I just question whether it really was serving any 19 purpose to be redundant to have that presented again. But I 20 would leave it up to the discretion of the Board. Mr. 21 Johnson is here if you want to go ahead and say, "Here is 22 what a red line looks like." Well, we can do that, but I 23 don't know what it really accomplishes. 24 C.O. STUBCHAER: Any other comments? 25 MR. NOMELLINI: I would just like to add what I would CAPITOL REPORTERS (916) 923-5447 13804 1 attempt to show with this witness, and that is that we had 2 testimony by the person that prepared the GIS mapping, that 3 he worked to the outside of the red line. And I believe the 4 red line, you can see the width on the one map, it is a 5 fairly wide line which I understand was done to indicate 6 uncertainty and that the red line worked to the outside of 7 the place of use map line. So, the ultimate line on the GIS 8 is to the outside. 9 C.O. STUBCHAER: This is testimony? 10 MR. NOMELLINI: This is an offer of proof. It is not 11 testimony. 12 But I would show that it worked to the outside of the 13 line so the place of use is conservatively expansive. The 14 degree to which I don't know, but it is relevant in terms of 15 determining the environmental impact. Again, that is my 16 offer, which I didn't think strictly met your definition, 17 but that is what I would be willing to do. 18 C.O. STUBCHAER: You're correct, it doesn't meet the 19 definition. We had some time last week, if we remember. It 20 was a week before last, whenever we last met to -- there was 21 unused rebuttal and we continued it today for the sole 22 purpose of reviewing the place of use maps and receiving 23 rebuttal testimony of the place of use maps testified water 24 right permits. We are going to limit it to that. 25 Now the order -- we have Westlands, Del Puerto and San CAPITOL REPORTERS (916) 923-5447 13805 1 Luis. The order will be as specified in the order for 2 proceedings for this phase, so, let's see who is first. It 3 will be San Luis, Mr. Keene. 4 ---oOo--- 5 REBUTTAL TESTIMONY 6 DIRECT EXAMINATION OF SAN LUIS WATER DISTRICT 7 BY MR. KEENE 8 MR. KEENE: Thank you, Mr. Chairman. We have an 9 additional exhibit and a revised exhibit identification 10 index. 11 The large map that we have just put up will be the one 12 that is offered as San Luis Water District Number 10. There 13 are, I think it is, 11-by-17 copies of that that are being 14 distributed, and we also will be giving the staff the 15 appropriate number. 16 We would like to now call Brian Ketelhut, who is the 17 district manager. He has not been previously sworn. 18 (Oath administered by C.O. Stubchaer.) 19 MR. KEENE: Mr. Ketelhut, because you haven't testified 20 before, let me ask you generally what your educational 21 background is? 22 MR. KETELHUT: I've got a Bachelor's and a Master's 23 degree in agricultural engineering. 24 MR. KEENE: What is your present occupation? 25 MR. KETELHUT: I am the general manager at San Luis CAPITOL REPORTERS (916) 923-5447 13806 1 Water District. 2 MR. KEENE: In your capacity as general manager of the 3 San Luis Water District have you had the opportunity to 4 review the place of use maps that have been provided by the 5 State Water Resources Control Board and compare those maps 6 to the maps that are in the Draft Environmental Impact 7 Report? 8 MR. KETELHUT: Yes. A staff member has performed most 9 of the actual work, but I have reviewed the maps and been 10 aware of the process he used. 11 MR. KEENE: Can you please explain for us what San Luis 12 Water District Exhibit Number 10 is. 13 MR. KETELHUT: What we attempted to do in looking at 14 the State Board maps which we just received last week, we 15 kind of do a macroanalysis. We were looking for obvious 16 errors. We weren't going to try, we didn't have the time 17 nor the expertise to try and get very specific. But we 18 analyzed the maps to see if there were obvious errors where 19 the place of use line on any one of the State Board permits 20 exceeded the place of use line as identified by the Bureau. 21 This is an instance where we found a difference. The 22 map that you are looking at on the board, the dark black 23 line represents the place of use as identified for the San 24 Luis Canal service area, on the map attached to the State 25 Board permit. CAPITOL REPORTERS (916) 923-5447 13807 1 The dotted line that you see there is the place of use 2 as identified by the Bureau in the Draft EIR. You can see 3 there are a number of instances where the place of use line 4 for the San Luis Canal service area extends farther west 5 than the line that is identified in the Bureau's document. 6 In our calculation, that there is approximately 1,500 7 acres in our district that have currently been classified by 8 the Bureau as encroachment lands that are within the place 9 of use line as identified for the San Luis Canal permit. 10 MR. KEENE: Now the map that has been offered as an 11 exhibit shows only the southern portion of the district. 12 Were there also discrepancies in the northern portion of the 13 district? 14 MR. KETELHUT: Not obvious enough for us to feel 15 comfortable trying to testify. The lines were proximate 16 and, again, they weren't significant enough for us to be 17 able to identify them with any precision. 18 MR. KEENE: Thank you. 19 I have no further questions. 20 C.O. STUBCHAER: Thank you, Mr. Keene. 21 Who wishes to cross-examine? 22 Mr. Birmingham. 23 MR. JOHNSTON: Is there an exhibit number? 24 C.O. STUBCHAER: Number 10. 25 MR. KEENE: San Luis District Number 10. CAPITOL REPORTERS (916) 923-5447 13808 1 C.O. STUBCHAER: Mr. Nomellini, Mr. Birmingham. 2 Anyone else? 3 Heads is Mr. B first, tails. 4 Mr. Nomellini. 5 ---oOo--- 6 CROSS-EXAMINATION OF SAN LUIS WATER DISTRICT 7 BY CENTRAL DELTA PARTIES 8 BY MR. NOMELLINI 9 MR. NOMELLINI: Dante John Nomellini for Central Delta 10 Parties. 11 With regard to the Exhibit 10, you indicated that the 12 place of use boundary shown in the DEIR was by that dashed 13 line; is that correct? 14 MR. KETELHUT: I believe I referred to the dotted line 15 as shown on the legend there in the lower left corner. 16 MR. NOMELLINI: Dotted line. 17 How did you establish that location on this particular 18 map? 19 MR. KETELHUT: The Bureau sent us a map. I believe in 20 March of '96. That was of result of their GIS effort, a 21 relatively larger scale map of the district showing the 22 place of use line. We have our district map on a CAD 23 system, and we reproduced this line on our CAD system, and 24 then overlaid it on a light table so that we could reproduce 25 this line as exactly as we could to what the Bureau showed CAPITOL REPORTERS (916) 923-5447 13809 1 in their report. 2 MR. NOMELLINI: Did you compare that to the maps in 3 the DEIR? 4 MR. KETELHUT: We compared it to the map that was 5 mailed to the district in March of '96. 6 MR. NOMELLINI: Did you compare it to the maps in the 7 DEIR? 8 MR. KETELHUT: No. 9 MR. NOMELLINI: So we don't know whether that map 10 reflects exactly what the map shows in the DEIR; is that 11 correct? 12 MR. KETELHUT: That is correct. 13 MR. NOMELLINI: With regard to the establishment of the 14 original place of use line, did you make any attempt to 15 establish the location of that line from the maps that were 16 submitted with the application to the State Water Resources 17 Control Board? 18 MR. KETELHUT: Yes. 19 MR. NOMELLINI: How is that reflected on San Luis 10? 20 MR. KETELHUT: That is the solid dark line that you 21 see. 22 MR. NOMELLINI: What process did you go through in 23 establishing that line? 24 MR. KETELHUT: We took the map that was attached to the 25 permit for the San Luis Canal service area, focused on that CAPITOL REPORTERS (916) 923-5447 13810 1 portion of the map that applied to the district, enlarged 2 the scale of that map with a photocopy machine, and then 3 used a similar process as I explained previously. We scaled 4 our CAD map accordingly until we could get an overlay. 5 MR. NOMELLINI: You put it on a light table and you 6 tried to get a fit? 7 MR. KETELHUT: Yes. 8 MR. NOMELLINI: If you look at San Luis District 10, 9 wouldn't you get a better fit by pushing the dark line 10 farther to the north? 11 MR. KETELHUT: If you wanted to move the lines around, 12 but that is not what they showed from the map. 13 MR. NOMELLINI: If we are trying to get a fit off a 14 light table of the enlarged scale of the place of use map -- 15 let's look at the right-hand side of the map. We see the 16 dashed line or the dotted -- series of dots going 17 completely, it looks like it, runs to the northeast, and if 18 we took the solid dark line and pushed it to the north, we 19 could align those two, and at the same time we would get, if 20 you start going up the left-hand side of the seesaw line, we 21 would then match the solid line to the dotted line better in 22 the sawtooth area, do we not? 23 MR. KEENE: I object to the question; it is 24 argumentative. 25 MR. NOMELLINI: Okay. CAPITOL REPORTERS (916) 923-5447 13811 1 What criteria did you use to determine whether or not 2 you had the best fit for the placement of the solid line 3 versus the dotted line? 4 MR. BIRMINGHAM: I am going to object. It misstates 5 the evidence. 6 MR. KEENE: I object. 7 C.O. STUBCHAER: One at a time. Mr. Birmingham. 8 MR. BIRMINGHAM: May I ask the question be reread. 9 C.O. STUBCHAER: Please reread the question. 10 (Record read as requested.) 11 C.O. STUBCHAER: Mr. Birmingham. 12 MR. BIRMINGHAM: I believe the question misstates the 13 evidence. I don't believe Mr. Ketelhut said that he tried 14 to create a best fit using any criteria. I think what Mr. 15 Ketelhut said was his staff placed the district boundary and 16 the place of use boundary as depicted on the map on San Luis 17 Delta-Mendota Exhibit -- San Luis Water District Exhibit 18 10, and there wasn't any effort to make a best fit. 19 C.O. STUBCHAER: Mr. Nomellini. 20 MR. NOMELLINI: I am not sure he used the word "best." 21 As I understand his testimony, that he enlarged the place of 22 use map and put it on a light table and attempted to get a 23 fit to establish where on this map that line would be. 24 C.O. STUBCHAER: I am going to sustain the objection on 25 the basis of the word "best." CAPITOL REPORTERS (916) 923-5447 13812 1 MR. NOMELLINI: Let's withdraw the word "best." 2 What criteria did you use, if any, to determine the fit 3 of the place of use solid line versus the dotted line which 4 you testified to was taken off the Bureau's GIS map that was 5 provided to you? 6 MR. KETELHUT: I think there may be some 7 misunderstanding on the process we used. If I could clarify? 8 MR. NOMELLINI: Please do. 9 MR. KETELHUT: There were two distinct processes used 10 to draw these lines. The first involved the dotted line on 11 the map, the existing place of use. In that instance the 12 district attempted to duplicate, as accurately as we could, 13 the place of use line as identified by the Bureau on the 14 large scale map that they provided for us in March of 1996. 15 So we were attempting to reproduce the line that they 16 had created. We weren't verifying the accuracy of the line. 17 We simply said, "This is the line they have shown as place 18 of use." That is how we developed the dotted line. That 19 used a process of a light table, our district CAD map, 20 scaling up and down, overlaying them to reproduce the 21 Bureau's line. 22 The process of the solid dark line was to match up the 23 physical area of the district using sections, overlay that 24 to the place of use map for the San Luis Canal service 25 area, and then draw in the solid line as it is shown on the CAPITOL REPORTERS (916) 923-5447 13813 1 place of use map for the San Luis Canal service area. 2 There is no attempt to fit this solid dark line to 3 anything other than to reproduce it from the place of use 4 map. We simply took an existing line that was on the 5 Bureau's place of use and an existing line on that map with 6 the State Board permit and reproduced those on this map. 7 MR. NOMELLINI: Let's go back to the solid line. You 8 indicated that that line was an overlay on the district 9 boundary map? 10 MR. KETELHUT: That was a result of overlaying the 11 place of use map for the San Luis Canal service area with 12 the district's map. 13 MR. NOMELLINI: What was the physical process in doing 14 that particular overlay? 15 MR. KETELHUT: We took the map that was filed with the 16 permit, took that portion of the map because it is 17 approximately a two-foot-by-three-foot map that represents 18 the entire Central Valley, very small scale. We enlarged 19 that portion of the map that pertain to San Luis Water 20 District so we could work on a larger scale. We then took 21 the district CAD map and scaled it down proportionately to 22 meet the same scale. Did an overlay on a light table and 23 reproduced the line. 24 MR. NOMELLINI: Now, what criteria did you use to 25 determine whether or not you had the best fit? If you CAPITOL REPORTERS (916) 923-5447 13814 1 didn't do it, fine. Of the two lines. 2 MR. BIRMINGHAM: I wonder if Mr. Nomellini could 3 clarify his question. By "best fit" does he mean what 4 criteria were used to make sure that the lines were placed 5 in the proper location? 6 MR. NOMELLINI: I don't know what "proper" means, but 7 that is a good question. 8 C.O. STUBCHAER: Or accurate. 9 MR. NOMELLINI: Most accurate. 10 MR. KEENE: Is the question a fit relating to the 11 district's boundary line? I am not sure I understand the 12 question. 13 MR. BIRMINGHAM: Which is why I am asking for the 14 clarification. 15 C.O. STUBCHAER: I think it is a good point, so please 16 clarify, Mr. Nomellini. 17 MR. NOMELLINI: How did you determine, if at all, that 18 you had achieved an accurate fit of the two lines? 19 MR. KETELHUT: Of which two lines? 20 MR. NOMELLINI: Talking about the solid line and the 21 district service area line. 22 MR. KETELHUT: There is no district service line on the 23 map. 24 MR. NOMELLINI: Let's go back again. 25 In determining the place of use line from the original CAPITOL REPORTERS (916) 923-5447 13815 1 maps submitted with the applications to the State Water 2 Resources Control Board, you indicated that you had enlarged 3 the scale so that those maps could be overlaid on a light 4 table over the tops of a reduced scale from your CAD system 5 of the San Luis Canal service area; is that correct? 6 MR. KETELHUT: No. The CAD map is of the district 7 boundaries, the district map. That is what we have on CAD. 8 MR. NOMELLINI: With regard to the district boundary 9 and the place of use line from the maps submitted with the 10 applications to the State Water Resources Control Board, did 11 you utilize any criteria to determine the accuracy of the 12 fit of those two lines in the overlain process that you went 13 through? 14 MR. BIRMINGHAM: Object to the question. It is 15 ambiguous. I don't understand and I am not sure that anyone 16 other than Mr. Nomellini could understand what he means by 17 the word "fit." 18 C.O. STUBCHAER: I don't understand them either, Mr. 19 Nomellini. I think you're getting at the accuracy of the 20 overlay, the accuracy of the maps. 21 MR. NOMELLINI: Let me try and explain. We have two 22 maps. We are going to overlay one on the other. Is there 23 any criteria that was being used to determine whether or not 24 the overlain process was an accurate positioning of the two 25 maps? CAPITOL REPORTERS (916) 923-5447 13816 1 MR. KETELHUT: Yes. That is the whole purpose of a 2 light table. 3 MR. NOMELLINI: What criteria did you use to determine 4 that it was done accurately? 5 MR. KETELHUT: I am not sure I understand. We overlaid 6 one over the other and matched it up as best as we could 7 could physically get it. 8 MR. NOMELLINI: Okay. Now we've used the term "best." 9 What do you mean by best matched up? We are getting there, 10 and I am almost through. We are making a lot of progress. 11 MR. KETELHUT: If you say so. I don't know where we 12 are heading. 13 We overlaid the two maps and concentrated on this 14 particular section of the district and created as an exact 15 overlay as we could. 16 MR. NOMELLINI: As we could. Was there any -- 17 MR. BIRMINGHAM: Would you reflect when Mr. Ketelhut 18 said "this section of the district," he is referring to the 19 section of the district depicted on San Luis Water District 20 Exhibit 10? 21 C.O. STUBCHAER: The record so reflects. 22 MR. NOMELLINI: I am assuming for all these questions 23 we are dealing with San Luis 10. That was your assumption, 24 too, I presume? 25 MR. KETELHUT: Yes. CAPITOL REPORTERS (916) 923-5447 13817 1 MR. NOMELLINI: In determining whether or not you had 2 achieved the best overlay of the two maps, did you use any 3 criteria to determine that? For example, lineal footage of 4 lines that matched in any particular overlay? 5 MR. KETELHUT: No. 6 MR. NOMELLINI: Was there anything other than just a 7 judgment utilized by you? 8 MR. KETELHUT: No. There is no -- the level of 9 accuracy on both the district's map, the Bureau's map and 10 the map with the State Board application does no warrant 11 that level of detail to use lineal footage. 12 MR. NOMELLINI: Last question: Did you yourself do 13 this work overlaying? 14 MR. KETELHUT: No. I supervised the work. 15 C.O. STUBCHAER: Mr. Birmingham. 16 ---oOo--- 17 CROSS-EXAMINATION OF SAN LUIS WATER DISTRICT 18 BY WESTLANDS WATER DISTRICT 19 BY MR. BIRMINGHAM 20 MR. BIRMINGHAM: Good morning, Mr. Ketelhut. My name 21 is Tom Birmingham, and I am an attorney that represents 22 Westlands Water District. 23 In answer to questions by Mr. Keene, you stated that in 24 preparing San Luis and Delta-Mendota Water [verbatim] 25 Exhibit 10 you compared the State Board's place of use maps, CAPITOL REPORTERS (916) 923-5447 13818 1 State Board Exhibit 183, with the Bureau's document. When 2 you use the word "Bureau's document," were you referring to 3 the place of use map that was provided to the district by 4 the Bureau of Reclamation that was subsequently included in 5 the Draft EIR? 6 MR. KETELHUT: That is correct. The Bureau's map is 7 referenced to my March 5th cover letter that was used to 8 transmit that map to the district. 9 MR. BIRMINGHAM: I would like to show to you Figure 10 3-19, which is opposite Page 3-114 in State Water Resources 11 Control Board Exhibit 2. Mine is a color version, so let me 12 show it to you, if I may. 13 Is Figure 3-19 from State Water Control Board Staff 14 Exhibit 2 a smaller version of the map that was presented to 15 you by the Bureau of Reclamation in March of 1996? 16 MR. KETELHUT: Yes. 17 MR. BIRMINGHAM: In your direct examination by Mr. 18 Keene you made reference to overlaying the place of use map 19 on the district's reduced boundary map which was produced as 20 a result of a CAD process? 21 MR. KETELHUT: Yes. 22 MR. BIRMINGHAM: When you overlaid those maps or your 23 staff overlaid those maps, were there any attempts to match 24 the corner of townships and range lines as depicted on both 25 maps? CAPITOL REPORTERS (916) 923-5447 13819 1 MR. KETELHUT: Yes. Again, there were two overlay 2 processes. The first, and I just want to make sure we are 3 clear, when we say "place of use," we are dealing with two 4 places of use. There is the place of use as defined in the 5 Draft EIR and the place of use as defined in the San Luis 6 Canal service area. 7 For the place of use for the Draft EIR the map provided 8 by the Bureau was relatively large scale. So, it was very 9 easy to perform that overlay. You could go with actual 10 quarter sections and section lines, and it was large enough 11 scale to make the overlay relatively easy, given the limits 12 of the accuracy that are inherent in this type of process. 13 The overlay for the San Luis Canal service area was 14 more difficult, simply because of the scales involved. We 15 had to increase the scale of those. But the same basic 16 process was used in both cases. Get it to a workable scale 17 and try and match up section lines, township lines, et 18 cetera, county line for example, as many points of reference 19 we could get to create as exact an overlay as we could. It 20 was not by any means exact. 21 MR. BIRMINGHAM: I have no questions. 22 C.O. STUBCHAER: Staff. 23 Mr. Canady, Mr. Cornelius. 24 ---oOo--- 25 // CAPITOL REPORTERS (916) 923-5447 13820 1 CROSS-EXAMINATION OF SAN LUIS WATER DISTRICT 2 BY STAFF 3 MR. CORNELIUS: I was interested in where within the 4 San Luis service area have you serviced the lands with your 5 water. 6 MR. KETELHUT: Within the San Luis service area? 7 MR. CORNELIUS: You have drawn the dark line as the San 8 Luis water area. Do you serve water in that entire area? 9 MR. KEENE: Excuse me, that line is the -- I believe 10 that the testimony was that that is the San Luis District 11 boundaries rather than the service area. 12 MR. KETELHUT: We served water within our boundary line 13 in this area. I believe earlier testimony in this 14 proceeding indicated since '77. 15 MR. CORNELIUS: For the entire area? 16 MR. KETELHUT: For the entire area. The dark line 17 doesn't represent anything to do with whether or not water 18 has been delivered. That is simply -- 19 MR. CORNELIUS: I realize -- that is one of the things 20 we are looking at in the Draft EIR as far as the changes 21 one, two and three. 22 MR. KETELHUT: Yes. But the entire area has been 23 receiving water;in the very southern portion of our district 24 that ground has been receiving water since '59. Most of the 25 rest of the lands identified as encroachment lands have been CAPITOL REPORTERS (916) 923-5447 13821 1 receiving water since '77, with the exception of a couple 2 inclusions that I believe, again, were referenced in earlier 3 testimony, that were brought into service '82 and '89, 4 sometime in that time frame. 5 C.O. STUBCHAER: Mr. Canady. 6 MR. CANADY: Mr. Ketelhut, referring to San Luis Water 7 District 10, your map and the line that is represented as 8 the district boundary. You say that was generated by your 9 CAD system that you have? 10 MR. KETELHUT: That's correct. 11 MR. CANADY: Is that the boundary line in the CAD 12 system, is based on legal descriptions? 13 MR. KETELHUT: No, it is not. 14 MR. CANADY: How is that line generated by the district? 15 MR. KETELHUT: When we went to a CAD system several 16 years ago, we used as one of the reference documents a prior 17 map of the district boundaries that had been produced by our 18 district engineer. I can't tell you whether that prior map 19 was created using a legal description or not. We use that 20 as a visual guide and went through a process of digitizing 21 and overlaying those maps and reproducing this map on the 22 CAD system. 23 MR. CANADY: If we were to try to interpret this map, 24 we have the district boundary. We have the San Luis Canal 25 service area boundary line. If I were to look at this map CAPITOL REPORTERS (916) 923-5447 13822 1 and then look at your district boundary and then the 2 darkest line, which represents the San Luis Canal service 3 area, there are acreages or portions of land that are 4 outside of that particular boundary; is that correct? 5 MR. KETELHUT: That's correct. 6 MR. CANADY: If I were to interpret these, then, I 7 would interpret these to be as encroachment lands based on 8 the definition in the Draft EIR? 9 MR. KETELHUT: That is correct. 10 MR. CANADY: Thank you. 11 C.O. STUBCHAER: Mr. Brown? 12 C.O. BROWN: I have nothing. 13 C.O. STUBCHAER: Mr. Keene, do you have any redirect? 14 MR. KEENE: No, I do not. 15 C.O. STUBCHAER: Your exhibits. 16 MR. KEENE: Yes. We would offer into evidence San Luis 17 Water District Exhibit 10. That would be the large piece of 18 paper that is attached to the board over here. 19 C.O. STUBCHAER: Any objections? 20 Seeing none, it is accepted. 21 MR. KEENE: Thank you. 22 C.O. STUBCHAER: Thank you, Mr. Ketelhut. 23 MR. KEENE: We have no further witnesses on rebuttal. 24 C.O. STUBCHAER: Next here is the rebuttal of the Del 25 Puerto Water District and Arvin-Edison Water Storage CAPITOL REPORTERS (916) 923-5447 13823 1 District. 2 Mr. Conant. 3 ---oOo--- 4 REBUTTAL TESTIMONY 5 DIRECT EXAMINATION OF ARVIN-EDISON WATER STORAGE DISTRICT 6 BY MR. CONANT 7 MR. CONANT: Morning, Mr. Chairman. The additional 8 information we are going to present today is on behalf of 9 Arvin-Edison Water Storage District. We will not be 10 presenting additional information on behalf of Del Puerto, 11 although I think some of the points being made by Mr. Collup 12 and others today probably apply to a lot of different 13 districts around the CVP. 14 You recall that Mr. Collup testified several weeks ago. 15 He is engineer-manager of Arvin-Edison Water Storage 16 District. He is a civil engineer. 17 Based on the introduction of the maps that were 18 attached to the permits, this caused us to reevaluate the 19 testimony that was previously presented, and we have some 20 supplemental information to share with you this morning. 21 We are going to ask that three additional exhibits for 22 Arvin-Edison be presented. I apologize. I don't have 23 enough copies right now, but we will get additional copies 24 along with the index sheet. 25 I am going to ask Mr. Collup to speak to these exhibits CAPITOL REPORTERS (916) 923-5447 13824 1 in a moment, but they will be Arvin-Edison Exhibit 7, which 2 is a portion of a map that I understand is contained within 3 State Board Staff Exhibit 183, that series of maps. I 4 believe it is 183; is that correct? And specifically it's 5 as identified on the exhibit, it's map Number 214-208-3349. 6 That will be Exhibit Number 7. 7 Exhibit Number 8 is an enlargement of that same map for 8 that portion of the map covering Arvin-Edison Water Storage 9 District. 10 And Exhibit 9 is an order of a state engineer ordering 11 formation of Arvin-Edison Water Storage District dated 12 January 23, 1942, which includes a legal description of 13 meets and bounds. That will be Exhibit Number 9. 14 With respect to these additional exhibits, Mr. Collup, 15 did you prepare or supervise the preparation of Exhibits 16 Number 7 and 8? 17 MR. COLLUP: I helped prepare, but mostly supervised. 18 MR. CONANT: With respect to Exhibit 9, is that a true 19 copy of a document taken from Arvin-Edison's records? 20 MR. COLLUP: Yes. It has also been recorded, I 21 believe. 22 MR. CONANT: So, at this point, Mr. Collup, could you 23 explain these additional exhibits and your supplemental 24 findings. 25 C.O. STUBCHAER: Do you of a laser pointer? CAPITOL REPORTERS (916) 923-5447 13825 1 MR. COLLUP: Yes. First, we'd like to comment on what 2 we have called our Exhibit 7. It is a portion of the place 3 of use maps attached to the permit. Of all those maps 4 attached, only one includes the area around Arvin-Edison, 5 which is near Bakersfield. This is the sole map that 6 depicts the place of use boundary with regards to those 7 permits. 8 The first thing I would like to point out is the scale 9 of the map. The scale is one inch equals eight miles. And 10 what that means, and keep that in perspective, when you see 11 these huge graphics up on the wall, is that all 131,000 12 acres of Arvin-Edison Water Storage District is depicted in 13 such a small scale that it would fit on the back of a 14 playing card. So that is the portion of the map that we are 15 talking about. 16 The next thing I would point out is that the smallest 17 unit on the map with which to measure or to orient 18 yourselves or to draw, say, a boundary line is not a single 19 parcel of land. It is not a city block. It is not even a 20 full section or 640 acres, but the smallest uniform division 21 is a full township of 36 square miles. It's difficult to 22 see on this map, but the corners of the township are these 23 little dots. You have four of them, and that would 24 represent a township, and we will see that in a little more 25 detail. CAPITOL REPORTERS (916) 923-5447 13826 1 C.O. STUBCHAER: Time out for just a moment. 2 (Discussion held off record.) 3 C.O. STUBCHAER: What we are discussing is the 4 unavailability of copies for the participants during this 5 time. 6 Does anyone in the audience, any participants, have the 7 need to have these maps during this discussion? 8 Seeing none -- you will provide copies later? 9 MR. CONANT: Yes. 10 C.O. STUBCHAER: Ms. Leidigh. 11 MS. LEIDIGH: I just wanted to point out for 12 clarification that the Board needs 20 of every exhibit and 13 every party needs a copy of every exhibit. 14 MR. CONANT: Right. 15 C.O. STUBCHAER: All right. Excuse the interruption. 16 MR. COLLUP: That is okay. I apologize for that. 17 Again, the point we wish to make with this is this is 18 an actual copy of the original place of use. Map, again all 19 of Arvin-Edison falls within the size of a playing card. 20 That is what we are having to work with, one inch equals 21 eight miles. The nearest scale to organize yourself, the 22 smallest unit is a full township, 36 square miles, which is 23 approximately 23,000 acres. 24 Let's put the next map on. 25 In order to view the original map at the same size as CAPITOL REPORTERS (916) 923-5447 13827 1 used in the Draft EIR, and in the Draft EIR the map was, I 2 believe, Exhibit 3-3, this again is a scanned version of the 3 original place of use map. We adjusted the scale to match 4 that of the one used in the Draft EIR, which is labeled in 5 the Draft EIR as one inch equals 2.19 miles. So, we had to 6 enlarge it nearly three times. 7 Again, don't be misled by the size of this projection. 8 Remember, the entire area of the district will fit on the 9 back of a playing card. What you can see, in this you can 10 see those corners that represent the corners of a 11 township. I have drawn the boundary lines in connecting the 12 corners just for clarification. 13 What I would like you to notice, though, is the 14 thickness of the boundary line when blown up to the scale 15 used in the Draft EIR. The line is about a quarter of a 16 mile wide. In fact, each linear, as you measure around the 17 boundary on the original map, covers about 1,300 acres of 18 lands underneath it, just within the thickness of the line. 19 You will recall from previous testimony that it is 20 Arvin's opinion that the findings in the Draft EIR, that is 21 that some of the Arvin-Edison lands are outside the 22 permitted place of use, and to determine those lands to the 23 nearest acre is what they did in the Draft EIR, that that 24 flies in the face of logic and reason and does so by 25 attempting to delineate lands far beyond the accuracy and CAPITOL REPORTERS (916) 923-5447 13828 1 resolution of the original map. 2 Back to Exhibit 8, I would like to point out that while 3 I did clarify the size of the township on that map, it 4 occurred to me when reviewing this map at this size, 5 matching that of the Draft EIR, that I wondered what it 6 would like look if the original draftsman had misdrawn or 7 misplaced the place of use line by only one or two pencil 8 widths. And that is represented by the yellow line on that 9 map. That is about one and one-half pencil widths. 10 If you place this exhibit at the same scale as Exhibit 11 3-3 in the Draft EIR, which is also Arvin-Edison Exhibit 3, 12 it appears now that you include all of the Arvin-Edison 13 boundary. In other words, if you assume that the accuracy 14 of the original map is within one or two line widths of the 15 draftsman's pen, then all the issues raised in the Draft EIR 16 regarding Arvin become moot. 17 It is our understanding that it was the intention of 18 the Bureau to incorporate within the place of use the lands 19 within the boundaries of districts that had contracted for 20 federal water supplies. Subsequent examination of the 21 original place of use map confirms that generally. They 22 intended to include the entire district. It is, we believe, 23 inappropriate to take this general map, apply new 24 technologies and attempt to extract additional resolution 25 beyond that used in the originals. CAPITOL REPORTERS (916) 923-5447 13829 1 If you couple that fact with the legal description of 2 Arvin-Edison's boundary recorded in 1942 and submitted as 3 Exhibit 9, and that has remained unchanged from then to now, 4 it is obvious to me that the original place of use map does 5 include all of Arvin-Edison Water Storage District. 6 MR. CONANT: One follow-up question, Mr. Collup. If I 7 were looking to purchase some land in Arvin-Edison, let's 8 say for example -- 9 MR. KEENE: Could that exhibit be identified? 10 C.O. STUBCHAER: We are going to get there. You can't 11 see it from where you are sitting. It says Exhibit 4. 12 MR. CONANT: This is Arvin-Edison Exhibit 4 from Mr. 13 Collup's testimony a couple weeks ago. 14 If I were purchaser of land within Arvin-Edison and 15 came to you as a civil engineer and I was purchasing, say, 16 the north half of section 6, township 30 south, range 30 17 east, I was purchasing, say, the north half of the north 18 half of that section, and I asked you to tell me, based on 19 the place of use map on file with the State Board which is a 20 portion of which is shown on Arvin-Edison Exhibit 7 -- 21 C.O. STUBCHAER: Would you move the mike for purposes 22 of recording closer to you? 23 MR. CONANT: If I asked you to advise me whether you, 24 as a civil engineer, whether the north half of the north 25 half of section 8, township 30 south, range 30 east was CAPITOL REPORTERS (916) 923-5447 13830 1 within the place of use, and you examined the map on file 2 with the State Board, would you conclude that it is outside 3 the place of use? 4 MR. COLLUP: Not only can you not make that 5 determination from the accuracy of the map, you can't even 6 determine if the entire section is within or outside the 7 place of use map. 8 MR. CONANT: That is all we have. 9 C.O. STUBCHAER: Thank you. 10 Cross-examine. Anyone wish to cross-examine? 11 No one wishes to cross-examine. 12 MR. CONANT: Mr. Chairman, I move to introduce 13 Arvin-Edison Exhibits -- 14 C.O. STUBCHAER: Excuse me again. The second time I 15 have forgotten the staff. 16 Mr. Cornelius. 17 ---oOo--- 18 CROSS-EXAMINATION OF ARVIN-EDISON WATER STORAGE DISTRICT 19 BY STAFF 20 MR. CORNELIUS: Is Bureau water being serviced in this 21 area that you most recently identified? 22 MR. COLLUP: Which area are we speaking of? 23 MR. CORNELIUS: The north half of -- 24 MR. COLLUP: Yes, sir. 25 MR. CORNELIUS: Bureau water has been served in that CAPITOL REPORTERS (916) 923-5447 13831 1 area? 2 MR. COLLUP: Yes. 3 MR. CORNELIUS: The concern is the distinction the EIR 4 makes between areas that have been served and have been 5 served as either encroachment or expansion. 6 MR. COLLUP: Yes, I understand. 7 C.O. STUBCHAER: Anything else? 8 Mr. Brown. 9 Now, do you have any redirect? 10 MR. CONANT: No redirect. 11 Would move to introduce exhibits, Arvin-Edison Exhibits 12 7, 8 and 9. 13 C.O. STUBCHAER: Any objections? 14 Seeing none, they are accepted. 15 MR. CONANT: Thank you. 16 C.O. STUBCHAER: Thank you. 17 ---oOo--- 18 REBUTTAL TESTIMONY 19 DIRECT EXAMINATION OF WESTLANDS WATER DISTRICT 20 BY MR. BIRMINGHAM 21 MR. BIRMINGHAM: Westlands Water District would like to 22 call Mr. Frank Morrow. 23 C.O. STUBCHAER: Morning, Mr. Morrow. 24 MR. MORROW: Morning. 25 MR. BIRMINGHAM: Mr. Morrow, would you please state CAPITOL REPORTERS (916) 923-5447 13832 1 your full name and spell your last name for the benefit of 2 the Court Reporter. 3 MR. MORROW: My full name is Frank Allen Morrow, Jr. 4 THE COURT REPORTER: Spell Allen. 5 MR. MORROW: A-l-l-e-n. 6 MR. BIRMINGHAM: Morrow is M-o-r-r-o-w? 7 MR. MORROW: Correct. 8 MR. BIRMINGHAM: Mr. Morrow, what is your profession? 9 MR. MORROW: A licensed land surveyor. 10 MR. BIRMINGHAM: How long have you been a licensed land 11 surveyor? 12 MR. MORROW: Since 1965. 13 MR. BIRMINGHAM: I would like to show to you a document 14 that has been marked for identification as Westlands Water 15 District Exhibit 128. 16 Is Westlands Water District Exhibit 128 a statement of 17 your qualifications? 18 MR. MORROW: Yes, it is. 19 MR. BIRMINGHAM: Mr. Morrow, have you previously 20 appeared as an expert witness in judicial proceedings 21 concerning boundary disputes? 22 MR. MORROW: Yes, I have. 23 MR. BIRMINGHAM: Have you had an opportunity to examine 24 sheet two of three of Map 214-208-3349 which is in evidence 25 as State Water Resources Control Board Exhibit 183? CAPITOL REPORTERS (916) 923-5447 13833 1 MR. MORROW: Yes, I have. 2 MR. BIRMINGHAM: Mr. Morrow, on map 214-208-3349 there 3 are a number of squares, large squares, that are 4 approximately on the original map one inch by one inch. 5 What is depicted by those large squares? 6 MR. MORROW: They represent townships. 7 MR. BIRMINGHAM: What is a township? 8 MR. MORROW: A township is a collection of 36 sections, 9 arrangement of 36 sections. 10 MR. BIRMINGHAM: How large is a township? 11 MR. MORROW: Thirty-six square miles, approximately. 12 MR. BIRMINGHAM: Can you discern from map Number 13 214-208-3349, which is in evidence as State Water Resources 14 Control Board Staff Exhibit 183, how accurately the 15 townships that are depicted on the map are plotted? 16 MR. MORROW: No, I can't. 17 MR. BIRMINGHAM: Would the accuracy of the plotting of 18 townships affect the location of lands depicted on the map? 19 MR. MORROW: Yes. 20 MR. BIRMINGHAM: In earlier testimony this morning 21 we've heard reference to large-scale maps and small-scale 22 maps. In your judgment how would you characterize map 23 number 214-208-3349, which is in evidence as part of State 24 Water Resources Control Board Exhibit 183? 25 MR. MORROW: The scale is very small in that I mean CAPITOL REPORTERS (916) 923-5447 13834 1 that a very large piece of land is represented at a very 2 small scale, about the size of my thumbnail, representing 36 3 square miles. 4 MR. BIRMINGHAM: Would the scale of a map affect its 5 usefulness in determining the location of a specific piece 6 of property -- 7 MR. MORROW: Yes. 8 MR. BIRMINGHAM: -- depicted on a map? 9 MR. MORROW: Yes. 10 MR. BIRMINGHAM: Have you had an opportunity to examine 11 a map showing the boundaries of Westlands Water District? 12 MR. MORROW: Yes. 13 MR. BIRMINGHAM: I would like to ask you a series of 14 questions about pieces of land that are depicted on map 15 number 214-208-3349 in evidence as part of State Water 16 Resources Control Board Exhibit 183. Looking at the map 17 that I just identified with respect to section 34, township 18 14 south range, 12 east, can you determine whether or not 19 that piece of property is in the area depicted by 20 crosshatching and identified as the place of use on the 21 map? 22 MR. MORROW: No. 23 MR. BIRMINGHAM: Looking at section 10, township 15 24 south, range 12 east, can you determine whether or not that 25 section of land is in the crosshatched area depicted on map CAPITOL REPORTERS (916) 923-5447 13835 1 number 214-208-3349 in evidence as State Water Resources 2 Control Board 183? 3 MR. MORROW: Section 10? 4 MR. BIRMINGHAM: Yes. 5 MR. MORROW: No. 6 MR. BIRMINGHAM: Section 33, township 16 south, range 7 14 east, can you determine from looking at map number 8 214-208-3349 whether or not that piece of land is in the 9 area depicted by crosshatching on the map? 10 MR. MORROW: Can you repeat that section? 11 MR. BIRMINGHAM: Section 33, township 16 south, range 12 14 east. 13 MR. MORROW: Not accurately I couldn't say. 14 MR. BIRMINGHAM: Section 11, township 17 south, range 15 14 east, is that piece of land depicted on the crosshatched 16 area on the map that we have been talking about? 17 MR. MORROW: 17 south, 14 east? 18 MR. BIRMINGHAM: Section 11. 19 MR. MORROW: No, I couldn't determine that either. 20 MR. BIRMINGHAM: Mr. Morrow, have you calculated the 21 width of the boundary line that is depicted on map 22 214-208-3349 in evidence as part of State Water Resources 23 Control Board Staff Exhibit 183? 24 MR. MORROW: Well, it varies in width. 25 C.O. STUBCHAER: Mr. Atlas. CAPITOL REPORTERS (916) 923-5447 13836 1 MR. ATLAS: For clarification. What boundary line are 2 you asking about his calculation? 3 MR. BIRMINGHAM: Thank you. 4 We are asking the western boundary shown on the 5 crosshatched area in the approximate middle of the map. 6 MR. MORROW: It varies in the width. 7 MR. BIRMINGHAM: At its narrowest point, Mr. Morrow, 8 approximately how wide in terms of distance is the boundary 9 on the map showing the western boundary of the crosshatched 10 area in the middle of the map we have been discussing? 11 MR. MORROW: Approximately a quarter of a mile. 12 MR. BIRMINGHAM: How did you calculate that? 13 MR. MORROW: This map is a scale of one inch equals 14 eight miles, and the narrowest line is approximately 15 one-thirty-second of an inch, which calculates out to about 16 a quarter of a mile. 17 MR. BIRMINGHAM: Mr. Morrow, for many of the areas that 18 are near or on the western boundary of Westlands Water 19 District, would it be possible to determine from an 20 examination of map 214-208-3349 in evidence as part of State 21 Water Resources Control Board Staff Exhibit 183 whether the 22 lands are inside or outside the crosshatched area depicted 23 on the map? 24 MR. MORROW: For many of them it would be very 25 difficult or impossible. CAPITOL REPORTERS (916) 923-5447 13837 1 MR. BIRMINGHAM: Mr. Morrow, I would like to show you 2 what has been introduced into evidence as San Luis Water 3 District Exhibit 10. I would ask you to take a moment. I 4 know you haven't seen it before. Would you take a moment 5 and examine San Luis Water District 10. 6 Comparing San Luis Water Exhibit 10 to map number 7 214-208-3349, is it correct that the area depicted on San 8 Luis Water District Exhibit 10 is shown within the 9 crosshatched area on map number 214-208-3349 in evidence as 10 part of the State Water Resources Control Board Staff 11 Exhibit 183? 12 MR. MORROW: Yes, there is. 13 MR. BIRMINGHAM: Looking at the boundary, the western 14 boundary, of the district service area on San Luis Water 15 District Exhibit 11, it appears that, say, if we look at the 16 area which is immediately to the west of section 18 -- I am 17 sorry, section 16, township 15 south, range -- 18 MR. MORROW: 13 south, range 11 east. 19 MR. BIRMINGHAM: Thank you for clarifying that. 20 There appears to be a very small piece of land that is 21 outside the bold black line as depicted on San Luis Water 22 District Exhibit 10? 23 MR. MORROW: Yes. 24 MR. BIRMINGHAM: Let me ask the question differently. 25 Would it be possible to take the area which is depicted CAPITOL REPORTERS (916) 923-5447 13838 1 by the crosshatched area on map Number 214-208-3349 and 2 transfer it to a larger scale map with enough accuracy to 3 determine that the western portion of section -- 4 MR. MORROW: Sixteen. 5 MR. BIRMINGHAM: Would this be 16? This is section 17. 6 MR. MORROW: This is section -- these are sections. 7 This scale is entirely different. 8 MR. BIRMINGHAM: I beg your pardon. I am looking at 9 the western portion of section -- it would be on the western 10 half of the southwest quarter of section 16 -- 11 MR. MORROW: That's true. 12 MR. BIRMINGHAM: -- township 13 south, range 11 east. 13 MR. MORROW: Right. 14 MR. BIRMINGHAM: Looking at that piece of section 16, 15 could the crosshatched area on map Number 214-208-3349 be 16 transferred to a larger scale map with enough accuracy to 17 determine if that piece of section 16 is either inside or 18 outside the crosshatched area? 19 MR. MORROW: No. The scale is so much smaller than 20 this, even that shown on this map. That is a very small 21 piece of property. You transfer it over to this scale, the 22 line -- the line is wider than the area. 23 MR. BIRMINGHAM: When you say "the line is wider than 24 the area," you mean that the boundary line is wider than the 25 area that is shown outside as being outside the place of use CAPITOL REPORTERS (916) 923-5447 13839 1 in section 16 on San Luis Water District 10? 2 MR. MORROW: Yes. 3 MR. BIRMINGHAM: I have no further questions. 4 C.O. STUBCHAER: Who wishes to cross-examine? 5 Mr. Nomellini, Mr. Keene and staff. 6 Heads says Mr. Nomellini first. It's heads. 7 ---oOo--- 8 CROSS-EXAMINATION OF WESTLANDS WATER DISTRICT 9 BY CENTRAL DELTA PARTIES 10 BY MR. NOMELLINI 11 MR. NOMELLINI: Dante John Nomellini for Central Delta 12 Parties. 13 Mr. Morrow, if we had to work with a place of use map 14 referenced by Mr. Birmingham as 214-208-3349, which I 15 believe you have in front of you -- 16 MR. MORROW: Yes. 17 MR. NOMELLINI: -- and we were to attempt to make the 18 lines on the place of use map correspond to actual areas on 19 the ground, would it be reasonable to enlarge the scale of 20 the map, attempt to isolate instances that appear on the 21 line shown on the map to coincide with the township corners 22 and then work to the outside of the line to determine 23 whether or not particular parcels were in or out of the 24 place of use map? 25 MR. MORROW: If you had a description of the use line CAPITOL REPORTERS (916) 923-5447 13840 1 and had a description of the property, you could accurately. 2 MR. NOMELLINI: Let's assume we don't have a 3 description of the particular property, but we do have the 4 map that is in front of you, 214-208-3349, and you were 5 given the task to determine whether or not a particular 6 parcel of land was within or without the place of use, how 7 would you proceed? 8 MR. MORROW: Well, if you could -- here is a good 9 example right here. The difference between -- 10 MR. NOMELLINI: When you say San Luis Water District 10? 11 MR. MORROW: The way this line is plotted at that scale 12 you can make a much more accurate determination of what is 13 in and out than you can on this map because of the scale. 14 C.O. STUBCHAER: This one was -- 15 MR. NOMELLINI: This one was -- 16 MR. MORROW: One more. 17 MR. NOMELLINI: It was comparing San Luis Water 18 District 10 to map 214-208-3349? 19 MR. MORROW: That is correct. 20 MR. NOMELLINI: So you would agree, would you not, that 21 if you were given the task that I outlined of working with 22 the place of use map that you have in front of you as 23 214-208-3349, and your job was to determine whether or not a 24 particular parcel was within the boundary of that place of 25 use, that it would be reasonable to enlarge the scale as a CAPITOL REPORTERS (916) 923-5447 13841 1 first step? 2 MR. MORROW: Yes. 3 MR. KEENE: Object to the form of the question. The 4 term "enlarge the scale" is vague and ambiguous in this 5 context. If counsel is addressing the possibility of 6 projecting it on a wall or is he addressing the possibility 7 of a new map that has a different scale? 8 C.O. STUBCHAER: Mr. Nomellini. 9 MR. NOMELLINI: Let me rephrase. 10 If we gave you the job of working with this place of 11 use map that you have in front of you and determining as 12 best you could whether or not a parcel fell within the line 13 shown on that map, what steps would you go through to 14 accomplish that task? 15 MR. MORROW: The first thing I would do I'd plot up the 16 area that you're requesting information on at a much larger 17 scale. Instead of a township being that size, I would -- 18 MR. NOMELLINI: That size being a thumbnail? 19 MR. MORROW: Size of my thumb, I'd plot it on something 20 the size of this sheet. 21 MR. NOMELLINI: How would you do that physically? 22 MR. MORROW: Get the government quad sheet and take the 23 information off the government quad sheet, and then getting 24 the description of the use line. 25 MR. NOMELLINI: Let's assume we don't have a legal CAPITOL REPORTERS (916) 923-5447 13842 1 meets and bounds description of the use you have to work 2 with this particular map that is in front of you, map 3 214-208-3349. I am going to call it the big map. 4 MR. MORROW: I don't know how you would do that. You 5 are taking a map that is at this scale and blowing it up, 6 and then you are really getting a distorted picture. 7 MR. NOMELLINI: In order to be conservative you could 8 work to the outside of the lines on the blown-up portion of 9 the big map. Is that correct? 10 MR. MORROW: You would -- I'm still saying you have a 11 distorted, very distorted line, to work with. What I would 12 ask is what establishes that line? 13 MR. NOMELLINI: That is a good question. 14 MR. MORROW: If you can tell me what establishes this 15 line, why, then I could plot and I may be able to plot 16 that. 17 MR. NOMELLINI: You are Mr. Birmingham's witness. You 18 are supposed to tell us that. 19 All right. Given the task, and I am going to give this 20 up in a minute, if you had to do it -- I gather you wouldn't 21 want to do this job. But if you had to do the job, given 22 that big map, and again the job is to determine whether or 23 not a parcel is inside that line, you indicated you would 24 create a larger sized map? 25 MR. MORROW: Something that I could plot. I could plot CAPITOL REPORTERS (916) 923-5447 13843 1 a section and township, but I can't plot that line. 2 MR. NOMELLINI: You can blow that map up, can't you, 3 that large map? 4 MR. MORROW: Blow it up and you have a very distorted, 5 as I say, a distorted -- 6 MR. NOMELLINI: You would have a very fuzzy line? 7 MR. MORROW: Right. 8 MR. NOMELLINI: And it would be fairly large, depending 9 on how much we enlarged it, correct? 10 MR. MORROW: Correct. 11 MR. NOMELLINI: If we want to be conservative, we could 12 work to the outside edge of that line, could we not? 13 MR. KEENE: Object. Asked and answered. He asked the 14 same question the third time. 15 C.O. STUBCHAER: Asked and answered. 16 MR. NOMELLINI: The witness shook his head. 17 You were indicating negative? 18 MR. KEENE: Objection, Mr. Chairman. 19 C.O. BROWN: That is a good effort. 20 MR. NOMELLINI: You're assuming the answer. He didn't 21 say anything. 22 MR. KEENE: The objection is sustained. 23 MR. NOMELLINI: Very good. That is all I have. 24 C.O. STUBCHAER: Thank you, Mr. Birmingham. 25 MR. BIRMINGHAM: Excuse me, that was Mr. Nomellini. I CAPITOL REPORTERS (916) 923-5447 13844 1 haven't been this insulted in a long time. 2 MR. NOMELLINI: Is within the width of a line. 3 MR. KEENE: After a while, we all look alike. 4 C.O. STUBCHAER: I am having a bad day. 5 I got your name right, Mr. Keene? 6 MR. KEENE: Yes, you did. You are on the winning 7 curve, I guess. 8 ---oOo--- 9 CROSS-EXAMINATION OF WESTLANDS WATER DISTRICT 10 BY SAN LUIS WATER DISTRICT 11 BY MR. KEENE 12 MR. KEENE: Mr. Morrow, we haven't met before. I am 13 Tom Keene, and I represent the San Luis Water District. I 14 am going to ask, make the beginner's mistake, and ask a 15 question I know the answer to. 16 On that portion of this map, by this map I mean what 17 Mr. Nomellini called the big map, which is Number 18 214-206-3349, and I am going to ask if you can tell whether 19 in the San Luis District area section 30, township 11 south, 20 range 10 east, is inside or outside of the crosshatched area. 21 MR. MORROW: Section 30? 22 MR. KEENE: Yes, sir. 23 MR. MORROW: Absolutely outside of the crosshatched 24 area. 25 MR. KEENE: How about the section 20 -- let me do this CAPITOL REPORTERS (916) 923-5447 13845 1 backwards. Township 14 south, range 12 east, section 20. 2 Is that inside or outside? 3 MR. MORROW: I can't determine. It's too close. 4 MR. KEENE: So, do you have any opinion, based on your 5 area of expertise, as to what the range of accuracy is on 6 this map? That is to say is it accurate within a township? 7 Is it accurate within a section? 8 MR. MORROW: I don't know how this map was plotted, 9 but I would guess that it was accurate within a township, 10 certainly. 11 MR. KEENE: Okay. So, basically, you can tell if some 12 things are clearly in and you can tell if some things are 13 clearly out, but there is a gray area? 14 MR. MORROW: That is correct. 15 MR. KEENE: How wide is the gray area? 16 MR. MORROW: I would say at least a section wide. 17 MR. KEENE: Any more than a section? 18 MR. MORROW: Probably not. 19 MR. KEENE: Would it surprise you if I told you that 20 the last section that I gave you appears on the area of use 21 boundary to be two and a half sections outside of the place 22 of use on the GIS map that was included as -- I am sorry, 23 that was government Exhibit 13? 24 MR. BIRMINGHAM: I am going to object to the question, 25 inasmuch as it is argumentative and misstates the evidence. CAPITOL REPORTERS (916) 923-5447 13846 1 Mr. Morrow examined the map which is in evidence as part of 2 State Water Resources Control Board Exhibit 153, map Number 3 214-206-3349, and the GIS map, which was the subject of Mr. 4 Keene's testimony, is a different map and there is no 5 foundation to establish that this witness has examined that 6 map. 7 MR. KEENE: I will withdraw that question and ask it 8 differently. 9 I now show you San Luis Water District Number 10, which 10 you have examined at least in part because you answered some 11 questions from Mr. Birmingham about it. And I would ask you 12 whether, according to that map, section 20 of township 14 13 south, range 12 east is inside or outside the permitted 14 place of use? 15 MR. BIRMINGHAM: As depicted by which line? 16 MR. KEENE: As depicted by either one of the two lines 17 on that map. 18 MR. MORROW: 14 south, 12 east, section 20? 19 MR. KEENE: Yes. 20 MR. MORROW: And this dark line is the use line you are 21 talking about? 22 MR. KEENE: Either the dark line or the dotted line. 23 First let's ask about the dark line. Is it outside the dark 24 line? 25 MR. MORROW: It is outside of the dark line and it is CAPITOL REPORTERS (916) 923-5447 13847 1 inside of the -- 2 MR. KEENE: Inside the dashed line. Is it outside of 3 the dotted line? 4 MR. MORROW: Yes, it is. 5 MR. KEENE: Is that within one section of either one of 6 those boundaries? 7 MR. MORROW: Yes. 8 MR. KEENE: Which one? 9 MR. MORROW: It is within, just barely within, one 10 section of the dark line. 11 MR. KEENE: I have no further questions. 12 C.O. STUBCHAER: Okay. 13 Staff have any questions? 14 MR. CANADY: Yes. 15 C.O. STUBCHAER: Mr. Canady. 16 ---oOo--- 17 CROSS-EXAMINATION OF WESTLANDS WATER DISTRICT 18 BY STAFF 19 MR. CANADY: Mr. Morrow, under your direct examination 20 by Mr. Birmingham he referred you to Staff Exhibit 183 which 21 is the large map, 214-208-3349, and he asked you a series of 22 questions, whether you could determine whether various 23 sections of land were within that map; is that correct? 24 MR. MORROW: That is correct. 25 MR. CANADY: You testified to at least some of those CAPITOL REPORTERS (916) 923-5447 13848 1 questions that you couldn't tell whether a section of land 2 was within that map; is that correct? 3 MR. MORROW: That's correct. 4 MR. CANADY: How many acres are within a section? 5 MR. MORROW: 640 acres. 6 MR. CANADY: In Westlands Exhibit 128, which is a 7 statement of your qualifications, you are a registered land 8 surveyor in California; is that correct? 9 MR. MORROW: Yes. 10 MR. CANADY: Therefore, you are asked at times to 11 determine boundary lines on pieces of land; is that correct? 12 MR. MORROW: That's correct. 13 MR. CANADY: What do you use to determine legally the 14 boundary lines? In other words, what do you develop that 15 establishes the boundary lines? 16 MR. MORROW: Well, first thing I do is I research the 17 record information, county recorder's office, and get 18 anything of record. Say I am working in a particular 19 section, get any recorded document in that section and go 20 out with that information and go out on the land and look 21 for monuments that show up on these records, maps. And 22 using the basis, the record of maps and the monumentation 23 that I found, I determine the boundary lines. 24 MR. CANADY: That boundary line is represented by what 25 is called a legal description? CAPITOL REPORTERS (916) 923-5447 13849 1 MR. MORROW: That is correct. 2 MR. CANADY: Would it be your opinion that a way to 3 resolve the dispute of the accuracy of the maps would be to 4 generate new maps based on legal descriptions? 5 MR. MORROW: Yes. 6 MR. CANADY: Based on those legal descriptions, then, 7 could you tell whether a section of land or a plot of land 8 of various acreages was either inside or outside a 9 particular legal description of place of use; is that 10 correct? 11 MR. MORROW: Yes. 12 C.O. STUBCHAER: Mr. Cornelius? 13 MR. CORNELIUS: No. 14 C.O. STUBCHAER: Mr. Brown? 15 C.O. BROWN: I have nothing. 16 C.O. STUBCHAER: That concludes the cross-examination 17 of this witness. 18 Have any redirect, Mr. Birmingham? 19 MR. BIRMINGHAM: I have no redirect, and I would move 20 the introduction of Westlands Water District 128. 21 C.O. STUBCHAER: Any objections? 22 Seeing none, it is accepted. 23 Thank you, Mr. Morrow, for your participation. 24 Are you going to speak, Mr. Birmingham? 25 MR. BIRMINGHAM: No. CAPITOL REPORTERS (916) 923-5447 13850 1 C.O. STUBCHAER: That concludes the rebuttal testimony 2 on the state maps. 3 Is there any other business to come before this hearing 4 before we adjourn to Phase II-B? 5 Ms. Leidigh, did you want to say something? 6 MS. LEIDIGH: I think Mr. Atlas has some clarification 7 about some exhibit. 8 MR. ATLAS: Mr. Chairman, as a result of admission of 9 South Delta Water Agency Exhibit 58, which was the table 10 that listed the various applications, permit numbers and 11 maps, there is a reference at the bottom to an Order Number 12 38 issued in December of 1960 and then map numbers 13 214-208-330 and 331. I asked Mr. Canady if he would find me 14 Order Number 38, which he did. He also very kindly provided 15 copies of the documents that led up to it. And order 38 is, 16 in fact, an order that was issued in connection with 17 application Number, or at least it appears in file, 18 Application Number 15374, which is one of the six 19 applications, I guess, that the Bureau of Reclamation holds 20 for the Trinity project. All I would like to do is to ask 21 that there be a State Board staff exhibit next in order, 22 which would be Order Number 38, and then the -- I actually 23 have a list that I can provide staff, somewhat in the format 24 of how they have done other exhibits. It would be the 25 Amended Petition for Change in Point of Diversion dated CAPITOL REPORTERS (916) 923-5447 13851 1 March 4, 1960; and Amended Petition for Change in Place of 2 Use dated February 29, 1960. 3 Pardon me, I also have a few copies of these things. 4 Notice of petition to change points of diversions dated 5 April 22, 1960; Notice of Hearing dated September 23, 1960; 6 Amended Notice of Hearing dated October 19, 1960; the change 7 order, Number 38, that is referred to on that Exhibit 58; 8 and an order, a document entitled "Order," dated December 9 30, 1960, and actual title is "Order Allowing Change in 10 Points of Rediversion and Change in Place of Use." 11 I think that since it is referred to in South Delta 12 Number 58, it would help for the record to reflect that. I 13 looked through that list of staff exhibits already placed 14 into the record and I didn't see any reference to these 15 older applications and such. It has to do with the 16 original, one of the original applications the Bureau made 17 to change the place of use and point of diversion for the 18 Trinity permit. 19 So, for purpose of the record, I would appreciate it if 20 we could mark these items as Staff Exhibit next in order, I 21 guess 184, and have them made a part of the record. 22 MR. BIRMINGHAM: Before the Board entertains Mr. Atlas' 23 motion, I wonder if the parties can be given an opportunity 24 to review the document? 25 C.O. STUBCHAER: Yes, I think that would be CAPITOL REPORTERS (916) 923-5447 13852 1 appropriate. I think we will take a morning break and then 2 come back and discuss Mr. Atlas' request. I need a break to 3 look at that. 4 MR. ATLAS: Thank you. 5 (Break taken.) 6 C.O. STUBCHAER: Reconvene the hearing. 7 Ms. Leidigh or staff, do you have any comments of Mr. 8 Atlas' request? 9 MS. LEIDIGH: Yes. I reviewed the list of documents 10 that Mr. Atlas provided, and it appears to me that they are 11 all in Staff Exhibit 4. It refers to the application files, 12 all correspondence in the application files for the permits 13 of the Bureau to consolidate and conform the place of use 14 for 16 of the Central Valley Project's water rights. And it 15 is obvious from the short list of examples of things that 16 are in that file, that it includes petitions and it would 17 include other materials as well that would be in that file. 18 So, I believe that all this material from applications 19 filed, 153748, are already in the record as part of Staff 20 Exhibit 4. 21 And in addition, parts of that, the change orders and 22 the -- well, Change Order 38 and the order dated December 3, 23 1960, are in Staff Exhibit 6. That exhibit includes 24 application permits, licenses, water rights decisions, water 25 right orders, in addition it reports the permits or licenses CAPITOL REPORTERS (916) 923-5447 13853 1 from 1980 to present for all of the applications and 2 statements listed in Enclosure 2 of the hearing notice. 3 So, I interpret this as including all of the documents 4 that Mr. Atlas was concerned about. 5 C.O. STUBCHAER: Mr. Atlas. 6 MR. ATLAS: I am satisfied with that, then. If I 7 misinterpreted the list of staff exhibits, I apologize. I 8 read number four -- well, I should say the examples, I 9 guess, that followed number four as being more exclusive 10 than inclusive. And number six, I apologize. I read it as 11 referring to applications, permits, licenses, et cetera, 12 from 1980 to present. But I think from 1980 to present, 13 what Ms. Leidigh is saying that modifies the report or 14 permit or license. 15 MS. LEIDIGH: That is intended to only to refer to the 16 permits or licenses; otherwise we have a whole lot of 17 applications that are not in the record that were listed in 18 the notice. 19 MR. ATLAS: As long as these documents that referred to 20 before the break are a part of the record, I withdraw my 21 motion, and thank you for your consideration. 22 C.O. STUBCHAER: Thank you for the clarification, Ms. 23 Leidigh. 24 Anything else before I read a statement? 25 Mr. Nomellini. CAPITOL REPORTERS (916) 923-5447 13854 1 MR. NOMELLINI: With regard to the staff produced maps, 2 I would ask that we get on the record a representation as to 3 what the source is. These maps appear to me to be the 4 attachments submitted in July of 1986 rather than the maps 5 extracted from the application files themselves. I don't 6 know if there are differences or not, but I think for the 7 record we ought to clearly indicate what they are. And 8 then, of course, when we get to the end of the line here, we 9 are going to order a transcript. We are going to have all 10 those application files and we are going to have this one in 11 addition. 12 I just noted that on map 416-208-341 the copies that 13 were produced by the Bureau had a more complete legend with 14 regard to application references than the ones produced by 15 the Board. So I just think if we can get it clearly on 16 record what this is, and I think this was Staff Exhibit 183, 17 then that will help us later. 18 Thanks. 19 C.O. STUBCHAER: Staff have any response? 20 MR. CORNELIUS: Staff 183, if that is the number, I 21 don't recall-- 22 MS LEIDIGH: It is. 23 MR. CORNELIUS: -- is a cover sheet map to help show 24 where the various facilities are. That was a part of the 25 original petition before it was amended. Then following CAPITOL REPORTERS (916) 923-5447 13855 1 that, are 13 maps that were identified in Central [verbatim] 2 Delta Water Agency Exhibit 58. And those are the original 3 maps, as best I could find in our files, that are referenced 4 in the individual water right permits. Now some of them 5 have been amended by orders, in which case the currently 6 applicable one was included in the set. 7 Does that help clarify? 8 C.O. STUBCHAER: Mr. Nomellini. 9 MR. NOMELLINI: That is fine. 10 C.O. STUBCHAER: Thank you, Mr. Cornelius. 11 Time-out. 12 (Discussion held off record.) 13 C.O. STUBCHAER: Okay. I am going to read a brief 14 statement regarding how the Board intends to proceed to 15 complete the Draft EIR for Phase VII of this proceeding. 16 Unlike the other phases of this proceeding, the Board 17 staff did not prepare the Draft EIR for Phase VII. Instead, 18 CH2M Hill prepared the Draft EIR under the direction of 19 State Board staff. The Bureau of Reclamation paid for the 20 preparation of the document and aided CH2M Hill by providing 21 place of use maps. 22 The Board will be meeting in closed session to discuss 23 the evidence presented in Phase VII as well as other phases. 24 As a result of these discussions, instructions will be 25 provided to CH2M Hill regarding the completion of the EIR. CAPITOL REPORTERS (916) 923-5447 13856 1 However, CH2M Hill will be directed not to divulge these 2 instructions to the Bureau or to any other party unless 3 specifically authorized. 4 Because the Bureau is a participant in the Bay-Delta 5 hearing, any direction given directly or indirectly to the 6 Bureau regarding completion of the EIR by the Board or its 7 staff will be distributed to all parties. 8 Now that Phase VII is complete, the Board will give 9 preliminarily direction regarding the next step needed to 10 complete the EIR. New maps will have to be prepared to 11 complete the EIR. Board staff will direct its contractor, 12 CH2M Hill, to work with the Bureau to prepare expeditiously 13 a set of maps that includes the existing places of use of 14 the USBR permits, the boundaries of all districts that have 15 a water service contract with the Bureau and the places 16 currently being served outside the existing places of use. 17 This concludes Phase VII. 18 MR. KEENE: Mr. Chairman. 19 C.O. STUBCHAER: Mr. Keene. 20 MR. KEENE: It strikes me that the intent of the Board 21 expressed in the statement should be the subject of legal 22 argument. The San Luis Water District's position is that 23 the Environmental Impact Report should not be concluded, 24 that it should not be certified. That, in fact, this should 25 -- this falls under categorical exemption. And I believe CAPITOL REPORTERS (916) 923-5447 13857 1 that the opportunity to argue that should be granted before 2 this kind of action is taken unless the Board wishes to 3 proceed with the preparation of that document and then give 4 us the opportunity for argument. 5 But I am a little reluctant, there is a railroad train 6 coming down the road and all I'm going to have is the choice 7 of getting out of the way. 8 C.O. STUBCHAER: I don't think you -- there are other 9 steps in the process, as you know. The Board is very 10 desirous of bringing this proceeding to a conclusion as soon 11 as possible. 12 MR. KEENE: As are we all. 13 C.O. STUBCHAER: The Board will consider the evidence, 14 and you raise a good point on the legal argument. We are 15 going to consider the argument regarding maps, make a 16 determination on, very broadly speaking, the boundary 17 issues, and ask that the contractor revise the maps if 18 necessary. 19 Regarding the legal argument, you do have a point 20 there. What is the date for receiving arguments, Ms. 21 Leidigh? 22 MS. LEIDIGH: The Board has oftentimes been giving 23 people about 30 days after the date when the transcript, the 24 last transcript, is received to file the briefs. That would 25 probably be about six weeks from now. CAPITOL REPORTERS (916) 923-5447 13858 1 C.O. STUBCHAER: We will be meeting in closed session, 2 as I stated, to give these directions. Perhaps we are 3 getting it out a lit bit ahead. We want to keep the train 4 rolling, as you say, not to run anyone down, just to reach 5 the destination. 6 MR. KEENE: Thank you. I appreciate it, Mr. Chairman. 7 C.O. STUBCHAER: Mr. Turner. 8 MR. TURNER: May I ask just one question for some 9 clarification, if I could? I heard you state, Mr. Chairman, 10 that you were going to be giving directions to CH2M Hill 11 with respect to the completion of the DEIR. Then you 12 mentioned that you were going to be directing them to revise 13 the maps in discussion with the Bureau. 14 Did I misunderstand? I heard you mention the Bureau 15 being involved in the new mapping, and I am not exactly 16 clear. 17 C.O. STUBCHAER: It says to work with the Bureau. It 18 does say that in the statement. 19 MR. TURNER: All I am trying to figure out is what the 20 role of the Bureau is supposed to be when I heard you 21 originally say there was not going to be any independent 22 consultation among any of the parties and CH2M Hill. I am 23 confused. 24 C.O. STUBCHAER: I understand the confusion. I may be 25 a little confused, too. I could see a differentiation CAPITOL REPORTERS (916) 923-5447 13859 1 between the technical part of doing the maps and decision 2 making on what the maps should address. 3 Ms. Leidigh. 4 MS. LEIDIGH: Still, I think what was meant there was 5 that if there is any direction that involves the Bureau, the 6 parties will also be advised of any communication of that 7 type, so that they are not excluded from that. 8 C.O. STUBCHAER: Those two statements are not mutually 9 exclusive; they are tied together. 10 Mr. Birmingham. 11 MR. BIRMINGHAM: I can't, sitting here, think of any 12 objection to the preparation of new maps. But I think it is 13 important that the Board provide the parties with an 14 opportunity to comment on the accuracy of the new maps that 15 are created. 16 We know from looking at San Luis Water District Exhibit 17 10 that there are some inaccuracies between the place of use 18 map that was filed for the Delta-Mendota Canal service area 19 and what was created for the Draft EIR by CH2M Hill or by 20 the process that was described for the preparation of GIS 21 maps. 22 Westlands submitted a similar exhibit showing that 23 there is a difference in the place of use as depicted in the 24 Draft EIR for Westlands and the place of use as depicted in 25 one of the maps, 214-208-3 -- CAPITOL REPORTERS (916) 923-5447 13860 1 C.O. STUBCHAER: The big map. 2 MR. BIRMINGHAM: The big map. But if new maps are 3 created, essentially that will be new evidence. And if 4 there is a substantial change in the Draft EIR because of 5 the new information that is contained in the document, that 6 may necessitate the need to recirculate the document, and it 7 may -- there may be objections by parties to the 8 consideration of these new maps by the Board in its 9 deliberative process when reaching a conclusion because they 10 are exhibits which the parties have not had an opportunity 11 to cross-examine on. 12 So, I wonder if the Board has considered the potential 13 for giving the parties an opportunity to comment on the 14 accuracy of the maps once they have redrawn. 15 C.O. STUBCHAER: I will call on you, Ms. Leidigh. I 16 have a question myself, and that is in responding to 17 comments and finalizing the EIR, is it necessary to 18 recirculate the EIR because of the response to comments and 19 could the adjustments, if any, made to the boundaries be 20 viewed as response to comments? 21 Staff. 22 MS. LEIDIGH: In some cases they could be viewed as a 23 response to comments. It did not involve something that was 24 significant enough to require recirculation. I don't know 25 whether that is going to be the situation here or not. We CAPITOL REPORTERS (916) 923-5447 13861 1 will have to take a look at it and see where we come out. 2 I think that the Board should certainly take into 3 account all the concerns that are being expressed and will 4 be expressed also, I am sure, in the briefs that the parties 5 file before it decides what to do with the EIR and with the 6 maps. 7 C.O. STUBCHAER: That is true. 8 MR. BIRMINGHAM: I think Ms. Leidigh's comments are 9 right. Whether the boundaries can be changed in response to 10 comments without recirculating really is going to depend 11 upon an analysis conducted after the new maps are prepared. 12 My only -- the only point in making these comments was to 13 make sure that the Board was aware of the potential need to 14 provide an opportunity for that. And I wonder if these new 15 maps are going to be prepared before the closing briefs are 16 due. 17 C.O. STUBCHAER: They won't be finalized before the 18 closing briefs are due. 19 MS. LEIDIGH: I think that is right. 20 MR. BIRMINGHAM: Thank you. 21 MR. KEENE: I have one other question. I don't mean to 22 delay this unnecessarily. 23 Again, in the interest of keeping this moving, in 24 response to some of the comments that -- some of the 25 questions that staff had asked some of the witnesses, CAPITOL REPORTERS (916) 923-5447 13862 1 particularly today, and some of the recommendations that I 2 know my district had, would it be appropriate to have, at 3 the same time that maps are ordered, to request the 4 districts to submit a legal description of the boundaries or 5 the outer boundaries of the district as they exist today or 6 at some point in time? 7 C.O. STUBCHAER: I would say, yes, if the legal 8 descriptions of the district are all already not on hand. I 9 think some of them are on file, but -- 10 MR. KEENE: For example, I believe that by order of 11 this body there was an addition to the San Luis Water 12 District boundaries and the permitted place of use while 13 this action has been pending, so I am not quite sure. 14 C.O. STUBCHAER: I think that any legal descriptions 15 that exist ought to be supplied to us. 16 MR. BIRMINGHAM: So that there isn't any question as to 17 the authenticity, perhaps each district secretary could be 18 asked to submit a certified copy of the description of the 19 boundaries of the district, and then the Board could take 20 official notice of those boundaries. 21 C.O. STUBCHAER: Mr. Haroff, then you, Mr. Nomellini. 22 MR. HAROFF: I just would like to request some 23 clarification. You mentioned the final maps would not be 24 made available prior to the time that briefs would be 25 submitted. CAPITOL REPORTERS (916) 923-5447 13863 1 Will there be proposed maps available prior to briefs? 2 C.O. STUBCHAER: I doubt it. 3 MR. HAROFF: We will be called upon to prepare and 4 submit briefs without the benefit of maps or drafts in final 5 form? 6 C.O. STUBCHAER: You have the maps that are in the 7 Draft EIR now. You won't have the revised maps, if they are 8 revisions. 9 MR. HAROFF: Thank you. 10 C.O. STUBCHAER: Mr. Nomellini. 11 MR. NOMELLINI: With regard to this extra hearing 12 submission of evidence as to the boundaries of the 13 district, I think that is acceptance of evidence outside the 14 record. 15 I would request that if we are going to go through that 16 process that the descriptions be submitted, the dates they 17 were prepared. Because in the relevance of what is going to 18 be determined here, a description of a boundary that existed 19 at the time of an application back in 1952 might be 20 relevant. Whereas, the boundaries of the district today 21 would not be. 22 And we should have the opportunity, if that is going to 23 be -- everybody could have presented that evidence already 24 in this hearing record. There was no restriction and many 25 of these maps came in where they didn't use legal CAPITOL REPORTERS (916) 923-5447 13864 1 descriptions for the boundaries of the districts. I 2 consider that to be a reopening of the hearing, and I think 3 we ought to follow the process to insure that all the 4 parties are afforded due process with regard to this 5 evidence. 6 So, I would object to the receipt of the Board of these 7 descriptions outside of the hearing process. If you want to 8 consider to take that in, that we set the deadline, have it 9 produced by a certain date, come back with the witnesses to 10 authenticate what they're producing and give us the 11 opportunity to cross-examine. It will take a little more. 12 But if you need that information, I think it ought to come 13 in in that fashion. 14 C.O. STUBCHAER: We will have some more discussion. I 15 understand your point. 16 Mr. Herrick. 17 MR. HERRICK: I would just like to voice my concerns 18 that it appears that I am supposed to write a legal brief 19 arguing either technically or legally why a certain area 20 should or should not be added to the place of use when I 21 don't know what the final line is and what the variance 22 is. I don't see how I can argue any particular portion 23 should or should not be in place of use until I know if the 24 new maps put it inside the place of use or outside the place 25 of use. I don't know how I can do that. CAPITOL REPORTERS (916) 923-5447 13865 1 C.O. STUBCHAER: I would think the argument has to be 2 based on the existing maps, and the Board will consider that 3 in its closed sessions, the arguments in making any 4 adjustment, if any, in the final maps. 5 MR. HERRICK: I understand, Mr. Chairman. If the new 6 map now includes areas that I am arguing that there is no -- 7 C.O. STUBCHAER: If the new map now included? 8 MR. HERRICK: If the new map includes more land, that I 9 have no argument before -- 10 C.O. STUBCHAER: Ms. Leidigh. 11 MS. LEIDIGH: I think maybe for clarification, the 12 existing place of use is the existing place of use in Staff 13 Exhibit 183. I think it was 183, the last number. I don't 14 think that that is something that really changes. 15 Yes, it is correct, 183. 16 The value of the briefs is going to be to assist the 17 Board in making any further interpretation of that existing 18 place of use which, of course, we can't change place of use 19 -- it is what it is -- and to make any further 20 interpretations of the places where water is currently being 21 used. 22 So I think it really is necessary to have the briefs 23 before those maps are finalized because it will affect how 24 the Board judges where the boundary lines are. 25 C.O. STUBCHAER: The problem with the existing map, of CAPITOL REPORTERS (916) 923-5447 13866 1 course, is that it is not really precise. The Board is 2 going to have to come up with a precise boundary. That is 3 where the interpretation of the Board decision will be. 4 Mr. Herrick. 5 MR. HERRICK: That is my point. The place of use isn't 6 the place of use. Nobody knows where it is right now. If 7 the map is redrawn after I have written my brief, I am 8 addressing areas that don't need to be addressed or I am 9 arguing issues that don't need to be argued. I am not sure 10 that is the proper way to handle it. 11 C.O. STUBCHAER: Mr. Birmingham. 12 MR. BIRMINGHAM: Any party can make an application to 13 the Board to reopen the hearing at any time prior to 14 decision, final decision by the Board. So if the Board 15 produces maps that are substantially different than the maps 16 that are already in the record, a party can, and I expect 17 will, file an application to reopen the hearing based upon 18 the new information. And Mr. Herrick would be, like any 19 other party, would have an opportunity to address the need 20 for a new hearing or reopening the hearing based on the maps 21 at that time. 22 C.O. STUBCHAER: Getting back to Mr. Nomellini's point 23 about legal descriptions being new evidence, I have a couple 24 questions for staff on that. 25 Do we have many legal descriptions on file now or any CAPITOL REPORTERS (916) 923-5447 13867 1 legal descriptions of the districts? 2 MR. CANADY: I believe we have some descriptions in the 3 record, but I am not sure whether they are complete nor 4 current. So I can't give you a yes that we do have all that 5 the staff would need. 6 C.O. STUBCHAER: The point was made that maybe current 7 isn't the issue, what they were some time ago. 8 Another question, if these legal descriptions are 9 recorded, can they be recognized as public documents, or do 10 they have to be introduced? Would they have to be 11 introduced as evidence in this proceeding? 12 Ms. Leidigh. 13 MS. LEIDIGH: Well, they might become evidence, per se, 14 but they could be available without the need for 15 cross-examination. In other words, they could be introduced 16 subject to a certification, just as being a public document, 17 or they could be officially noticed. That is something that 18 I would -- I don't have the materials with me right now. I 19 would take a look at exactly what kind of documents could be 20 taken into the record without further examination. 21 C.O. STUBCHAER: I think that you should do that, and 22 we won't make a ruling on the legal descriptions today. But 23 we will mail it out and post it on the website. 24 Mr. Nomellini. 25 Mr. Mooney, in the back. CAPITOL REPORTERS (916) 923-5447 13868 1 MR. MOONEY: I would just -- my concern with the legal 2 description of the districts is that for El Dorado 3 Irrigation District not all of the district is going to be 4 within the place of use, just the western portion. So we 5 could give you a legal description of El Dorado Irrigation 6 District, but that -- for you to take judicial notice. That 7 wouldn't do any good for these proceedings. 8 If you are going to allow legal descriptions to come 9 in, I would like the opportunity to at least consult with my 10 clients, the county water agency and the El Dorado 11 Irrigation District to see if we have one legal description 12 for the place of use area or service area that is being 13 served by Folsom. And if we do, to be able to submit that 14 even though it is not a district boundary or to have the 15 opportunity to have a legal survey or legal description 16 produced that would identify that service area. 17 C.O. STUBCHAER: Mr. Birmingham. 18 MR. BIRMINGHAM: I was going to note that the 19 regulations under which the Board conducts hearings do 20 provide for official notice. Section 11515 of the 21 Government Code states that: 22 In reaching a decision official notice may be 23 taken either before or after submission of 24 the case for decision of any generally 25 accepted technical or scientific matter CAPITOL REPORTERS (916) 923-5447 13869 1 within the agency's special field and of any 2 fact which may be judicially noticed by the 3 courts of this state. (Reading.) 4 The boundaries of a public agency are facts that are 5 not subject to reasonable dispute and are readily available 6 to members of the public and could be judicially noticed in 7 a proceeding. And I think that a party can request that the 8 Board take judicial notice of the boundaries of a public 9 agency at any time prior to -- well, actually prior to 10 decision. It says before or after submission of the case. 11 C.O. STUBCHAER: Mr. Nomellini. 12 MR. NOMELLINI: I would ask from a due process 13 standpoint, since the descriptions of the boundaries of 14 these districts are going to be essential to the decision or 15 could be essential to the decision-making process, that 16 there be an identification of what it is that is being 17 judicially noticed so that we know the basis of the decision 18 and can react accordingly. 19 I don't know that there is any basis for argument that 20 recorded description of a district is the recorded 21 description of the district on record as of such and such a 22 date. But whether or not that is being used by the Board to 23 formulate its position on the place of use, what the date of 24 it is and what the specific reference is that is being 25 judicially noticed, I think is critical to affording us due CAPITOL REPORTERS (916) 923-5447 13870 1 process in this hearing. 2 MR. BIRMINGHAM: The regulations that provide for 3 official notice also provide for an opportunity for parties 4 to comment on the document that is being officially 5 noticed. It says: 6 Any such party shall be given reasonable 7 opportunity on request to refute the 8 officially noticed matters by evidence or by 9 written or oral presentation of authority. 10 (Reading.) 11 So if Mr. Nomellini has any doubt as to the accuracy of 12 the legal descriptions submitted, say, for Westlands Water 13 District, he can submit a statement to that effect and 14 request an opportunity to submit evidence. And that would 15 fully protect his due process rights or the due process 16 rights of his clients. 17 C.O. STUBCHAER: Well, Mr. Nomellini, Mr. Sandino 18 wanted to say something. 19 Mr. Sandino. 20 MR. SANDINO: No, it was already said. Thank you. 21 C.O. STUBCHAER: Mr. Nomellini. 22 MR. NOMELLINI: My point is I want specific -- I am 23 requesting specific identification of what it is that you 24 expect to judicially notice so that I can make that 25 determination, rather than just a general, generic request CAPITOL REPORTERS (916) 923-5447 13871 1 or judicial notice. I think we need specific reference to 2 what it is that you are requesting. 3 C.O. STUBCHAER: We are going to go off the record for 4 a few minutes and have a consultation, and then we will 5 reconvene when we are finished. 6 (Discussion held off the record.) 7 C.O. STUBCHAER: Come back to order. 8 Is Mr. Birmingham here? 9 MR. RUBIN: He's on his way in. 10 C.O. STUBCHAER: You can tell him what we said. 11 We will be sending a letter to the parties regarding 12 the boundary issue with what additional information, if any, 13 we will need and the basis for that information. 14 Anything else from staff or Mr. Brown before we 15 adjourn? 16 C.O. BROWN: No, sir. 17 C.O. STUBCHAER: We are going to adjourn this hearing 18 to Phase 11-B at 9:00 a.m., Wednesday, June 9th in this 19 room. 20 (Hearing adjourned at 11:20 a.m.) 21 ---oOo--- 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 13872 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 13803 through 14 13872 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 4th day of April 1999. 19 20 21 22 23 ______________________________ ESTHER F. WIATRE 24 CSR NO. 1564 25