STATE WATER RESOURCES CONTROL BOARD PUBLIC HEARING 1998 BAY-DELTA WATER RIGHTS HEARING HELD AT 901 P STREET SACRAMENTO, CALIFORNIA THURSDAY, JUNE 10, 1999 9:00 A.M. Reported by: MARY GALLAGHER, CSR #10749 CAPITOL REPORTERS (916) 923-5447 1 APPEARANCES ---oOo--- 2 3 BOARD MEMBERS: 4 JAMES STUBCHAER, CO-HEARING OFFICER JOHN W. BROWN, CO-HEARING OFFICER 5 MARY JANE FORSTER ARTHUR G. BAGGETT, JR. 6 7 STAFF MEMBERS: 8 THOMAS HOWARD - Supervising Engineer VICTORIA A. WHITNEY - Senior Engineer 9 DAVID G. CORNELIUS - Senior Water Resources Control 10 Engineer JIM CANADAY - Environmental Specialist 11 12 COUNSEL: 13 WILLIAM R. ATTWATER - Chief Counsel WALTER PETTIT - Executive Director 14 BARBARA LEIDIGH - Senior Staff Counsel 15 ---oOo--- 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 14110 1 REPRESENTATIVES 2 PRINCETON CODORA GLENN IRRIGATION DISTRICT, et al. 3 FROST, KRUP & ATLAS 4 134 West Sycamore STreet Willows, California 95988 5 BY: J. MARK ATLAS, ESQ. 6 JOINT WATER DISTRICTS: 7 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 8 Oroville, California 95965 BY: WILLIAM H. BABER, III, ESQ. 9 CALIFORNIA SPORTFISHING PROTECTION ALLIANCE: 10 ROBERT J. BAIOCCHI 11 P.O. Box 357 Quincy, California 95971 12 BELLA VISTA WATER DISTRICT: 13 BRUCE L. BELTON, ESQ. 14 2525 Park Marina Drive, Suite 102 Redding, California 96001 15 WESTLANDS WATER DISTRICT: 16 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 17 400 Capitol Mall, 27th Floor Sacramento, California 95814 18 BY: THOMAS W. BIRMINGHAM, ESQ. JOHN RUBIN, ESQ. 19 THE BAY INSTITUTE OF SAN FRANCISCO: 20 GRAY BOBKER 21 55 Shaver Street, Suite 330 San Rafael, California 94901 22 CITY OF ANTIOCH, et al.: 23 FREDERICK BOLD, JR., ESQ. 24 1201 California Street, Suite 1303 San Francisco, California 94109 25 CAPITOL REPORTERS (916) 923-5447 14111 1 REPRESENTATIVES 2 LEAGUE OF WOMEN VOTERS: 3 ROBERTA BORGONOVO 4 2480 Union Street San Francisco, California 94123 5 UNITED STATES DEPARTMENT OF THE INTERIOR: 6 OFFICE OF THE SOLICITOR 7 2800 Cottage Way, Roon E1712 Sacramento, California 95825 8 BY: ALF W. BRANDT, ESQ. 9 CALIFORNIA URBAN WATER AGENCIES: 10 BYRON M. BUCK 455 Capitol Mall, Suite 705 11 Sacramento, California 95814 12 RANCHO MURIETA COMMUNITY SERVICES DISTRICT: 13 MCDONOUGH, HOLLAND & ALLEN 555 Capitol Mall, 9th Floor 14 Sacramento, California 95814 BY: VIRGINIA A. CAHILL, ESQ. 15 CALIFORNIA DEPARTMENT OF FISH AND GAME: 16 OFFICE OF THE ATTORNEY GENERAL 17 1300 I Street, Suite 1101 Sacramento, California 95814 18 BY: MATTHEW CAMPBELL, ESQ. 19 NATURAL RESOURCES DEFENSE COUNCIL: 20 HAMILTON CANDEE, ESQ. 71 Stevenson Street 21 San Francisco, California 94105 22 ARVIN-EDISON WATER STORAGE DISTRICT, et al.: 23 DOOLEY HERR & WILLIAMS 3500 West Mineral King Avenue, Suite C 24 Visalia, California 93191 BY: DANIEL M. DOOLEY, ESQ. 25 CAPITOL REPORTERS (916) 923-5447 14112 1 REPRESENTATIVES 2 SACRAMENTO MUNICIPAL UTILITY DISTRICT: 3 LESLIE A. DUNSWORTH, ESQ. 4 6201 S Street Sacramento, California 95817 5 SOUTH SAN JOAQUIN IRRIGATION DISTRICT, et al.: 6 BRAY, GEIGER, RUDQUIST & NUSS 7 311 East Main Street, 4th Floor Stockton, California 95202 8 BY: STEVEN P. EMRICK, ESQ. 9 EAST BAY MUNICIPAL UTILITY DISTRICT: 10 EBMUD OFFICE OF GENERAL COUNSEL 375 Eleventh Street 11 Oakland, California 94623 BY: FRED ETHERIDGE, ESQ. 12 GOLDEN GATE AUDUBON SOCIETY: 13 ARTHUR FEINSTEIN 14 2530 San Pablo Avenue, Suite G Berkeley, California 94702 15 CONAWAY CONSERVANCY GROUP: 16 UREMOVIC & FELGER 17 P.O. Box 5654 Fresno, California 93755 18 BY: WARREN P. FELGER, ESQ. 19 THOMES CREEK WATER ASSOCIATION: 20 THOMES CREEK WATERSHED ASSOCIATION P.O. Box 2365 21 Flournoy, California 96029 BY: LOIS FLYNNE 22 COURT APPOINTED REPS OF WESTLANDS WD AREA 1, et al.: 23 LAW OFFICES OF SMILAND & KHACHIGIAN 24 601 West Fifth Street, Seventh Floor Los Angeles, California 90075 25 BY: CHRISTOPHER G. FOSTER, ESQ. CAPITOL REPORTERS (916) 923-5447 14113 1 REPRESENTATIVES 2 CITY AND COUNTY OF SAN FRANCISCO: 3 OFFICE OF THE CITY ATTORNEY 4 1390 Market Street, Sixth Floor San Francisco, California 94102 5 BY: DONN W. FURMAN, ESQ. 6 CAMP FAR WEST IRRIGATION DISTRICT, et al.: 7 DANIEL F. GALLERY, ESQ. 926 J Street, Suite 505 8 Sacramento, California 95814 9 BOSTON RANCH COMPANY, et al.: 10 J.B. BOSWELL COMPANY 101 West Walnut Street 11 Pasadena, California 91103 BY: EDWARD G. GIERMANN 12 SAN JOAQUIN RIVER GROUP AUTHORITY, et al.: 13 GRIFFIN, MASUDA & GODWIN 14 517 East Olive Street Turlock, California 95381 15 BY: ARTHUR F. GODWIN, ESQ. 16 NORTHERN CALIFORNIA WATER ASSOCIATION: 17 RICHARD GOLB 455 Capitol Mall, Suite 335 18 Sacramento, California 95814 19 PLACER COUNTY WATER AGENCY, et al.: 20 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Capitol Mall, 27th Floor 21 Sacramento, California 95814 BY: JANET GOLDSMITH, ESQ. 22 ENVIRONMENTAL DEFENSE FUND: 23 THOMAS J. GRAFF, ESQ. 24 5655 College Avenue, Suite 304 Oakland, California 94618 25 CAPITOL REPORTERS (916) 923-5447 14114 1 REPRESENTATIVES 2 CALAVERAS COUNTY WATER DISTRICT: 3 SIMON GRANVILLE 4 P.O. Box 846 San Andreas, California 95249 5 CHOWCHILLA WATER DISTRICT, et al.: 6 GREEN, GREEN & RIGBY 7 P.O. Box 1019 Madera, California 93639 8 BY: DENSLOW GREEN, ESQ. 9 CALIFORNIA FARM BUREAU FEDERATION: 10 DAVID J. GUY, ESQ. 2300 River Plaza Drive 11 Sacramento, California 95833 12 SANTA CLARA VALLEY WATER DISTRICT: 13 MORRISON & FORESTER 755 Page Mill Road 14 Palo Alto, California 94303 BY: KEVIN T. HAROFF, ESQ. 15 CITY OF SHASTA LAKE: 16 ALAN N. HARVEY 17 P.O. Box 777 Shasta Lake, California 96019 18 COUNTY OF STANISLAUS: 19 MICHAEL G. HEATON, ESQ. 20 926 J Street Sacramento, California 95814 21 GORRILL LAND COMPANY: 22 GORRILL LAND COMPANY 23 P.O. Box 427 Durham, California 95938 24 BY: DON HEFFREN 25 CAPITOL REPORTERS (916) 923-5447 14115 1 REPRESENTATIVES 2 SOUTH DELTA WATER AGENCY: 3 JOHN HERRICK, ESQ. 4 3031 West March Lane, Suite 332 East Stockton, California 95267 5 COUNTY OF GLENN: 6 NORMAN Y. HERRING 7 525 West Sycamore Street Willows, California 95988 8 REGIONAL COUNCIL OF RURAL COUNTIES: 9 MICHAEL B. JACKSON 10 1020 Twelfth Street, Suite 400 Sacramento, California 95814 11 DEER CREEK WATERSHED CONSERVANCY: 12 JULIE KELLY 13 P.O. Box 307 Vina, California 96092 14 DELTA TRIBUTARY AGENCIES COMMITTEE: 15 MODESTO IRRIGATION DISTRICT 16 P.O. Box 4060 Modesto, California 95352 17 BY: BILL KETSCHER 18 SAVE THE SAN FRANCISCO BAY ASSOCIATION: 19 SAVE THE BAY 1736 Franklin Street 20 Oakland, California 94612 BY: CYNTHIA L. KOEHLER, ESQ. 21 BATTLE CREEK WATERSHED LANDOWNERS: 22 BATTLE CREEK WATERSHED CONSERVANCY 23 P.O. Box 606 Manton, California 96059 24 25 CAPITOL REPORTERS (916) 923-5447 14116 1 REPRESENTATIVES 2 BUTTE SINK WATERFOWL ASSOCIATION, et al.: 3 MARTHA H. LENNIHAN, ESQ. 4 455 Capitol Mall, Suite 300 Sacramento, California 95814 5 CITY OF YUBA CITY: 6 WILLIAM P. LEWIS 7 1201 Civic Center Drive Yuba City, California 95993 8 BROWNS VALLEY IRRIGTAION DISTRICT, et al.: 9 BARTKIEWICZ, KRONICK & SHANAHAN 10 1011 22nd Street, Suite 100 Sacramento, California 95816 11 BY: ALAN B. LILLY, ESQ. 12 CONTRA COSTA WATER DISTRICT: 13 BOLD, POLISNER, MADDOW, NELSON & JUDSON 500 Ygnacio Valley Road, Suite 325 14 Walnut Creek, California 94596 BY: ROBERT B. MADDOW, ESQ. 15 GRASSLAND WATER DISTRICT: 16 DON MARCIOCHI 17 22759 South Mercey Springs Road Los Banos, California 93635 18 SAN LUIS CANAL COMPANY: 19 FLANAGAN, MASON, ROBBINS & GNASS 20 3351 North M Street, Suite 100 Merced, California 95344 21 BY: MIICHAEL L. MASON, ESQ. 22 STONY CREEK BUSINESS AND LAND OWNERS COALITION: 23 R.W. MCCOMAS 4150 County Road K 24 Orland, California 95963 25 CAPITOL REPORTERS (916) 923-5447 14117 1 REPRESENTATIVES 2 TRI-DAM POWER AUTHORITY: 3 TUOLUMNE UTILITIES DISTRICT 4 P.O. Box 3728 Sonora, California 95730 5 BY: TIM MCCULLOUGH 6 DELANO-EARLIMART IRRIGATION DISTRICT, et al.: 7 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 8 Oroville, California 95965 BY: JEFFREY A. MEITH, ESQ. 9 HUMANE FARMING ASSOCIATION: 10 BRADLEY S. MILLER. 11 1550 California Street, Suite 6 San Francisco, California 94109 12 CORDUA IRRIGATION DISTRICT, et al.: 13 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 14 P.O. Box 1679 Oroville, California 95965 15 BY: PAUL R. MINASIAN, ESQ. 16 EL DORADO COUNTY WATER AGENCY: 17 DE CUIR & SOMACH 400 Capitol Mall, Suite 1900 18 Sacramento, California 95814 BY: DONALD B. MOONEY, ESQ. 19 GLENN COUNTY FARM BUREAU: 20 STEVE MORA 21 501 Walker Street Orland, California 95963 22 MODESTO IRRIGATION DISTRICT: 23 JOEL MOSKOWITZ 24 P.O. Box 4060 Modesto, California 95352 25 CAPITOL REPORTERS (916) 923-5447 14118 1 REPRESENTATIVES 2 PACIFIC GAS & ELECTRIC: 3 RICHARD H. MOSS, ESQ. 4 P.O. Box 7442 San Francisco, California 94120 5 CENTRAL DELTA WATER AGENCY, et al.: 6 NOMELLINI, GRILLI & MCDANIEL 7 P.O. Box 1461 Stockton, California 95201 8 BY: DANTE JOHN NOMELLINI, ESQ. and 9 DANTE JOHN NOMELLINI, JR., ESQ. 10 TULARE LAKE BASIN WATER STORAGE UNIT: 11 MICHAEL NORDSTROM 1100 Whitney Avenue 12 Corcoran, California 93212 13 AKIN RANCH, et al.: 14 DOWNEY, BRAND, SEYMOUR & ROHWER 555 Capitol Mall, 10th Floor 15 Sacramento, California 95814 BY: KEVIN M. O'BRIEN, ESQ. 16 OAKDALE IRRIGATION DISTRICT: 17 O'LAUGHLIN & PARIS 18 870 Manzanita Court, Suite B Chico, California 95926 19 BY: TIM O'LAUGHLIN, ESQ. 20 SIERRA CLUB: 21 JENNA OLSEN 85 Second Street, 2nd Floor 22 San Francisco, California 94105 23 YOLO COUNTY BOARD OF SUPERVISORS: 24 LYNNEL POLLOCK 625 Court Street 25 Woodland, California 95695 CAPITOL REPORTERS (916) 923-5447 14119 1 REPRESENTATIVES 2 PATRICK PORGENS & ASSOCIATES: 3 PATRICK PORGENS 4 P.O. Box 60940 Sacramento, California 95860 5 BROADVIEW WATER DISTRICT, et al.: 6 DIANE RATHMANN 7 P.O. Box 156 Dos Palos, California 93620 8 FRIENDS OF THE RIVER: 9 BETSY REIFSNIDER 10 128 J Street, 2nd Floor Sacramento, California 95814 11 MERCED IRRIGATION DISTRICT: 12 FLANAGAN, MASON, ROBBINS & GNASS 13 P.O. Box 2067 Merced, California 95344 14 BY: KENNETH M. ROBBINS, ESQ. 15 CENTRAL SAN JOAQUIN WATER CONSERVATION DISTRICT: 16 REID W. ROBERTS, ESQ. 311 East Main Street, Suite 202 17 Stockton, California 95202 18 METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA: 19 JAMES F. ROBERTS P.O. Box 54153 20 Los Angeles, California 90054 21 SACRAMENTO AREA WATER FORUM: 22 CITY OF SACRAMENTO 980 9th Street, 10th Floor 23 Sacramento, California 95814 BY: JOSEPH ROBINSON, ESQ. 24 25 CAPITOL REPORTERS (916) 923-5447 14120 1 REPRESENTATIVES 2 TUOLUMNE RIVER PRESERVATION TRUST: 3 NATURAL HERITAGE INSTITUTE 4 114 Sansome Street, Suite 1200 San Francisco, California 94194 5 BY: RICHARD ROOS-COLLINS, ESQ. 6 CALIFORNIA DEPARTMENT OF WATER RESOURCES: 7 DAVID A. SANDINO, ESQ. P.O. Box 942836 8 Sacramento, California 94236 9 FRIANT WATER USERS AUTHORITY: 10 GARY W. SAWYERS, ESQ. 575 East Alluvial, Suite 101 11 Fresno, California 93720 12 KERN COUNTY WATER AGENCY: 13 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Captiol Mall, 27th Floor 14 Sacramento, California 95814 BY: CLIFFORD W. SCHULZ, ESQ. 15 SAN JOAQUIN RIVER EXCHANGE CONTRACTORS: 16 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 17 P.O. Box 1679 Oroville, California 95965 18 BY: MICHAEL V. SEXTON, ESQ. 19 SAN JOAQUIN COUNTY: 20 NEUMILLER & BEARDSLEE P.O. Box 20 21 Stockton, California 95203 BY: THOMAS J. SHEPHARD, SR., ESQ. 22 CITY OF STOCKTON: 23 DE CUIR & SOMACH 24 400 Capitol Mall, Suite 1900 Sacramento, California 95814 25 BY: PAUL S. SIMMONS, ESQ. CAPITOL REPORTERS (916) 923-5447 14121 1 REPRESENTATIVES 2 ORLAND UNIT WATER USERS' ASSOCIATION: 3 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 4 Oroville, California 95965 BY: M. ANTHONY SOARES, ESQ. 5 GLENN-COLUSA IRRIGATION DISTRICT: 6 DE CUIR & SOMACH 7 400 Capitol Mall, Suite 1900 Sacramento, California 95814 8 BY: STUART L. SOMACH, ESQ. 9 NORTH SAN JOAQUIN WATER CONSERVATION DISTRICT: 10 JAMES F. SORENSEN CONSULTING CIVIL ENGINEER, INC.: 209 South Locust Street 11 Visalia, California 93279 BY: JAMES F. SORENSEN 12 PARADISE IRRIGATION DISTRICT: 13 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 14 P.O. Box 1679 Oroville, California 95965 15 BY: WILLIAM H. SPRUANCE, ESQ. 16 COUNTY OF COLUSA: 17 DONALD F. STANTON, ESQ. 1213 Market Street 18 Colusa, California 95932 19 COUNTY OF TRINITY: 20 COUNTY OF TRINITY - NATURAL RESOURCES P.O. Box 156 21 Hayfork, California 96041 BY: TOM STOKELY 22 CITY OF REDDING: 23 JEFFERY J. SWANSON, ESQ. 24 2515 Park Marina Drive, Suite 102 Redding, California 96001 25 CAPITOL REPORTERS (916) 923-5447 14122 1 REPRESENTATIVES 2 TULARE IRRIGATION DISTRICT: 3 TEHEMA COUNTY RESOURCE CONSERVATION DISTRICT 2 Sutter Street, Suite D 4 Red Bluff, California 96080 BY: ERNEST E. WHITE 5 STATE WATER CONTRACTORS: 6 BEST BEST & KREIGER 7 P.O. Box 1028 Riverside, California 92502 8 BY: ERIC GARNER, ESQ. 9 COUTNY OF TEHEMA, et al.: 10 COUNTY OF TEHEMA BOARD OF SUPERVISORS P.O. Box 250 11 Red Bluff, California 96080 BY: CHARLES H. WILLARD 12 MOUNTAIN COUNTIES WATER RESOURCES ASSOCIATION: 13 CHRISTOPHER D. WILLIAMS 14 P.O. Box 667 San Andreas, California 95249 15 JACKSON VALLEY IRRIGATION DISTRICT: 16 HENRY WILLY 17 6755 Lake Amador Drive Ione, California 95640 18 SOLANO COUNTY WATER AGENCY, et al.: 19 HERUM, CRABTREE, DYER, ZOLEZZI & TERPSTRA 20 2291 West March Lane, S.B. 100 Stockton, California 95207 21 BY: JEANNE M. ZOLEZZI, ESQ. 22 WESTLANDS ENCROACHMENT AND EXPANSION LANDOWNERS: 23 BAKER, MANOCK & JENSEN 5260 North Palm Avenue 24 Fresno, California 93704 BY: CHRISTOPHER L. CAMPBELL, ESQ. 25 CAPITOL REPORTERS (916) 923-5447 14123 1 REPRESENTATIVES 2 SAN LUIS WATER DISTRICT: 3 LINNEMAN, BURGES, TELLES, VAN ATTA 1820 Marguerite Street 4 Dos Palos, California 93620 BY: THOMAS J. KEENE, ESQ. 5 6 ---oOo--- 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 14124 1 I N D E X 2 ---oOo--- 3 4 PAGE 5 OPENING OF HEARING 14127 6 AFTERNOON SESSION 14231 7 END OF PROCEEDINGS 14341 8 DIRECT TESTIMONY OF MODESTO AND TURLOCK IRRIGATION 9 DISTRICTS: 10 PANEL: 14127 11 SCOTT T. STEFFEN WILTON B. FRYER 12 WALTER WARD 13 CROSS-EXAMINATION OF MODESTO AND TURLOCK IRRIGATION DISTRICT: 14 MR. HERRICK 14138 15 MR. O'LAUGHLIN 14174 MR. NOMELLINI 14175 16 BY THE STAFF 14209 BY THE BOARD 14210 17 REDIRECT EXAMINATION OF MODESTO AND TURLOCK IRRIGATION 18 DISTRICTS: 19 MR. GODWIN 14222 20 DIRECT TESTIMONY OF THE SAN JOAQUIN RIVER EXCHANGE CONTRACTORS: 21 PANEL: 14231 22 CHRISTOPHER L. WHITE 23 JEFF BRYANT STEVE CHEDESTER 24 ---oOo--- 25 CAPITOL REPORTERS (916) 923-5447 14125 1 I N D E X 2 ---oOo--- 3 CROSS-EXAMINATION OF THE SAN JOAQUIN RIVER EXCHANGE CONTRACTORS: 4 MR. HERRICK 14255 5 MR. BIRMINGHAM 14272 MR. NOMELLINI 14276 6 DIRECT TESTIMONY OF THE SAN JOAQUIN RIVER GROUP AUTHORITY: 7 PANEL: 8 TOM HOWARD 14323 9 ---oOo--- 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 14126 1 THURSDAY, JUNE 10, 1999, 9:00 A.M. 2 SACRAMENTO, CALIFORNIA 3 ---oOo--- 4 C.O. STUBCHAER: Good morning. Call the hearing to 5 order. 6 Mr. Godwin, good morning. 7 ---oOo--- 8 DIRECT TESTIMONY OF MODESTO AND TURLOCK 9 IRRIGATION DISTRICTS 10 BY ARTHUR GODWIN 11 MR. GODWIN: Good morning, Mr. Chairman, Members of 12 the Board. My name is Arthur Godwin. I'm here on behalf 13 of the Turlock Irrigation District. With me this morning 14 are two experts, Mr. Walt Ward from the Modesto Irrigation 15 District and Mr. Wilton Fryer from the Turlock Irrigation 16 District. 17 They'll be discussing how the two districts plan 18 to supply the water to meet the needs of the VAMP Program. 19 And also seated at the table is Mr. Scott Steffen, general 20 counsel to the Modesto Irrigation District. 21 I don't believe Mr. Fryer has been sworn in. 22 Could we do that, please? 23 C.O. STUBCHAER: All right. If there is any other 24 witness in the room who has not taken the oath, please, 25 stand. Okay. Raise your right hand. You promise to tell CAPITOL REPORTERS (916) 923-5447 14127 1 the truth in this proceeding? 2 MR. FRYER: Yes, I do. 3 C.O. STUBCHAER: Okay. Thank you. You may be 4 seated. 5 MR. HERRICK: Mr. Chairman? 6 C.O. STUBCHAER: Mr. Herrick. 7 MR. HERRICK: If I may, just for clarification, we 8 received testimony from Mr. Ward, but nothing from 9 Mr. Fryer. Is there testimony for Mr. Fryer? 10 MR. GODWIN: No, there is not. Mr. Fryer will be 11 here for cross-examination purposes if there's any 12 specific questions about the Turlock Irrigation District. 13 MR. HERRICK: Okay. 14 MR. GODWIN: Okay. Mr. Ward, could you, please, 15 state your name for the record, please. 16 MR. WARD: Walter P. Ward. 17 MR. GODWIN: And you're employed by the Modesto 18 Irrigation District? 19 MR. WARD: Yes, I am. 20 MR. GODWIN: And what is your position there? 21 MR. WARD: I'm assistant general manager for water 22 operations. 23 MR. GODWIN: All right. Is Exhibit SJRGA 107-A a 24 copy of your statement of qualifications? 25 MR. WARD: Yes, it is. CAPITOL REPORTERS (916) 923-5447 14128 1 MR. GODWIN: Did you prepare the exhibit labeled as 2 SJRGA Exhibit 107? 3 MR. WARD: Yes, I did. 4 MR. GODWIN: And is this testimony today being 5 offered on behalf of both the Modesto and Turlock 6 Irrigation Districts? 7 MR. WARD: Yes. 8 MR. GODWIN: How will Modesto and Turlock supply the 9 water for the VAMP? 10 MR. WARD: Once the identified target flow at 11 Vernalis is known, our operators will make releases from 12 the reservoir either of stored water or water -- bypassed 13 water that otherwise could have been stored in the 14 reservoir. 15 MR. GODWIN: Will there be a reduction in 16 diversions? 17 MR. WARD: No, there will not be reduction in 18 diversions. 19 MR. GODWIN: Would delivery of the water for the 20 VAMP pulse flow under the San Joaquin River Agreement 21 affect the rate or the quantity of groundwater pumped in 22 the Modesto or Turlock service areas? 23 MR. WARD: No, it will not. Implementation of VAMP 24 will have nothing to do with our historical groundwater 25 rate pumping. CAPITOL REPORTERS (916) 923-5447 14129 1 MR. GODWIN: Will Modesto and Turlock Irrigation 2 Districts increase their water conservation efforts if the 3 petition is approved and the San Joaquin River Agreement 4 is implemented? 5 MR. WARD: There are many ongoing water conservation 6 program efforts in both districts. It is not perceived 7 that these efforts would be increased as a direct 8 consequence of the limitation of the VAMP flows. 9 MR. GODWIN: All right. Besides the restrictions 10 placed on the districts' licenses, are there any -- are 11 the districts restricted by the Army Corps of Engineers as 12 to when and how much water they can store in the Don Pedro 13 Reservoir? 14 MR. WARD: Yes. And with that I would like the 15 Board to look at Exhibit 107-B. The information that was 16 used to put together this chart is taken from the flood 17 control manual prepared by the Army Corps of Engineers for 18 Don Pedro Reservoir. 19 And, essentially, what it shows is storage in 20 millions of acre-feet on the Y axis and time and months of 21 the year across the X axis. And it shows for about six 22 and a half months of the year, beginning on October 7th 23 and lasting until April 27th, Don Pedro Reservoir is not 24 allowed to operate above elevation 801.9, or storage of 25 1.69 million acre-feet, reserving the space from 801.9 up CAPITOL REPORTERS (916) 923-5447 14130 1 830 as the flood reservation space for flood control 2 purposes. 3 So another way to look at it is if you're in 4 January of the year, we are not allowed to encroach into 5 this flood space, we have to stay below it. And it isn't 6 until after April 27th that we would begin to fill the 7 reservoir. During the summer months, essentially during 8 this time period here, operate on conserved water, 9 diverting for both our -- meeting our customers' needs and 10 instream flows in the river, recognizing again that we 11 need to be at elevation 801.9 by October 7th. So, again, 12 about six and a half months of the year we are constrained 13 with how much water can be stored and held in the 14 reservoir itself. 15 MR. GODWIN: Have the districts already committed 16 substantial amounts of additional flows to improve the 17 fisheries on the Mokelumne River? 18 C.O. BROWN: Excuse me. What was that last date, I 19 missed it? June 3rd to what -- 20 C.O. STUBCHAER: Previous slide. 21 C.O. BROWN: I missed the September 8th -- 22 MR. WARD: September 8th -- the real date that we 23 have to be at that elevation is October 7th. In the Army 24 Corps' manual there are some prescribed curves that tell 25 you how you get down there, at what rates of extraction or CAPITOL REPORTERS (916) 923-5447 14131 1 rates of removal. The real dates -- the critical dates 2 are October 7th through April 27th. 3 C.O. BROWN: 27th. 4 MR. WARD: I'd like to turn the Board's attention to 5 Exhibit 107-C. And what this shows is how our Federal 6 Energy Regulatory Commission license has been changed over 7 the 25 years or so, operation of New Don Pedro. 8 And most recently in the 1995 time period we went 9 through a relicensing. And FERC, F-E-R-C, Federal 10 Regulatory Energy Commission, came out with a new instream 11 flow schedule for the Tuolumne River. Prior to the '96 12 FERC schedule, we basically had a two-step minimum flow 13 obligation. 14 For normal and below normal year types there were 15 64,040 acre-feet that was required to be released into the 16 river. That is now changed at a minimum from 64 up to 94. 17 And then these progressive stair steps up to approximately 18 142,000 for the normal type year. 19 In the pre-1996 FERC schedule this second step 20 here of 123,200 has essentially gone up to 300,923 21 acre-feet per year. Again, some smaller steps down here 22 for these average and slightly below average year types. 23 But, essentially, you can think of what was pre FERC, 24 pre-'96 FERC schedule as going from 64,000 up into this 25 new range here. And the wetter year going from 123,000 up CAPITOL REPORTERS (916) 923-5447 14132 1 to 300,000. This has been in place since July of 1996. 2 C.O. BROWN: Mr. Chairman? 3 C.O. STUBCHAER: Mr. Brown. 4 C.O. BROWN: Mr. Godwin, if I may interrupt this, 5 this is really important here. What's your -- 6 MR. GODWIN: I don't think your mic is on, 7 Mr. Brown. 8 C.O. STUBCHAER: It is on. 9 C.O. BROWN: Can you hear me now? 10 MR. WARD: Yes. 11 C.O. BROWN: This is really important here and I 12 want to make sure I'm on the right track. What you're 13 going to show us is some reoperations as a result of 14 what's being proposed. And by those reoperations are you 15 going to show us that that's an increase in yield for this 16 facility, which we could classify as real water? Is that 17 the direction you're pointed, or why are you showing us 18 this? 19 MR. GODWIN: No, that's not the direction we're 20 headed. The purpose of this is to show how much water the 21 districts are putting out under the FERC schedule -- 22 C.O. BROWN: Why? 23 MR. GODWIN: -- right now, plus -- 24 C.O. BROWN: Why are you showing us this? 25 MR. GODWIN: To show how the districts are CAPITOL REPORTERS (916) 923-5447 14133 1 reoperating the reservoir now to meet the current FERC 2 requirements. 3 C.O. BROWN: But will this have anything to do with 4 reoperation of the reservoir or increment in yield to the 5 facility -- 6 MR. GODWIN: No. 7 C.O. BROWN: -- increase? Why are you showing it to 8 us, what's the purpose? 9 MR. GODWIN: The purpose is to show how much flow 10 we're providing out of the river now for fishery purposes 11 and comparing this with the VAMP Program. 12 C.O. BROWN: Okay. 13 MR. WARD: Similarly, there has been a change in the 14 schedule, again, back to the 1996 FERC where the summer 15 flow has significantly changed and also an outmigration 16 pulse flow for the spring has been added. Prior to 1996 17 there was no requirement for a spring outmigration pulse 18 flow. Now, there is depending upon the year type. 19 Across the top here this says critical and below, 20 medium critical, intermediate critical dry, medium dry, 21 intermediate dry below normal. So they're getting wet as 22 you go across the top from left to right. 23 So now there is a required spring pulse flow 24 that's in the base for the VAMP operations that ranges 25 from 11,000 acre-feet in the very driest of years up to CAPITOL REPORTERS (916) 923-5447 14134 1 about 90,000 acre-feet in wet year types such as 1999, 2 1998, 1997. So for the last three years we've been 3 releasing this in the spring pulse. 4 The summertime flows also has been changed from 5 what was the pre-1996 FERC minimum which was roughly 3 cfs 6 which was tied to a Don Pedro inflow calculation of last 7 year to dry year minimum flows of 50 cfs progressing up to 8 250 csf in the wet years. There have been additional 9 changes through the flow schedule on the Tuolumne River as 10 a result of the FERC relicensing. And, again, this 11 becomes part of the base operation upon which the VAMP 12 flows would be on top of. 13 MR. GODWIN: You mention, Mr. Ward, that this was a 14 product of FERC relicensing, it was actually an amendment 15 to the license not a relicensing; is that correct? 16 MR. WARD: Yes. 17 MR. GODWIN: Okay. What would be the effect of the 18 petition changes on the water users within the Modesto and 19 Turlock service area? 20 MR. WARD: There will be no change to the water 21 delivered to the irrigation customers in either district 22 as a result of implementation of the VAMP. 23 MR. GODWIN: What implementation of the VAMP results 24 in a possible reduction in carryover storage? 25 MR. WARD: That is the risk that we are taking that CAPITOL REPORTERS (916) 923-5447 14135 1 in terms of the spring releases, the water that otherwise 2 could have been held in storage would put us into a lower 3 level coming into the fall. 4 C.O. BROWN: Mr. Chairman? 5 C.O. STUBCHAER: Mr. Brown. 6 C.O. BROWN: Mr. Godwin, excuse me for interrupting 7 you again -- 8 MR. GODWIN: It's all right. 9 C.O. BROWN: -- but this is important here. We have 10 a lower level going into the fall and more capacity for 11 storage. I would suspect it would have to increase your 12 yield at that facility; would it not? 13 MR. WARD: As I understand it, the ability for us to 14 divert and store water in that particular facility is 15 controlled by this Board. And we would not violate the 16 conditions of that storage license. So we would still 17 operate within the ability, within the permit confines. 18 C.O. BROWN: But you just said that you're going to 19 be going into the rainy season with a lower reservoir. 20 And with a lower reservoir it seems like you'd have to be 21 able to capture more water? 22 MR. WARD: If, in fact, the coming on winter, you 23 know, provided that condition, again, we would still be 24 able to store and not go above that floor elevation of 25 801.9. We're not really able to store more water into the CAPITOL REPORTERS (916) 923-5447 14136 1 winter because we're already controlled by that -- 2 C.O. BROWN: I understand that. I'm not talking 3 about storage. I'm talking about increasing the average 4 annual yield of storage at the facility. There's a 5 difference. If you have more storage it would appear that 6 you would be able to capture more water, right? 7 MR. WARD: Again, but not outside the boundaries of 8 our permitted storage license. 9 C.O. BROWN: I understand that. The question I'm 10 asking is: Have you run those studies to determine what 11 that is? 12 MR. WARD: No, I have not. 13 C.O. BROWN: Do you plan to? 14 MR. WARD: If I'm -- if that answer is needed to be 15 found we will make the studies and arrive at that. 16 C.O. BROWN: Thank you, Mr. Godwin. 17 MR. GODWIN: Mr. Ward, is the risk of reduced 18 carryover storage translated into a water supply impact at 19 some point in the future? 20 MR. WARD: We do not believe that it does other than 21 the fact the risk of the reduced carryover storage. 22 MR. GODWIN: Okay. In your opinion, does the 23 approval of the Modesto and Turlock petition for change in 24 place and purpose of use injure any legal user of water? 25 MR. WARD: In my opinion, it does not. CAPITOL REPORTERS (916) 923-5447 14137 1 MR. GODWIN: Okay. Mr. Fryer, is Exhibit 107-F a 2 statement of your qualifications? 3 MR. FRYER: Yes, it is. 4 MR. GODWIN: And did you help prepare the testimony 5 that Mr. Ward presented today? 6 MR. FRYER: Yes, I did. 7 MR. GODWIN: And do you concur with the testimony? 8 MR. FRYER: Yes, I do. 9 MR. GODWIN: Thank you. That's all. 10 C.O. STUBCHAER: Okay. Who wishes to cross-examine 11 this panel? Mr. O'Laughlin, Mr. Nomellini and 12 Mr. Herrick. 13 Are they shuffled already? 14 MS. WHITNEY: Sort of. 15 C.O. STUBCHAER: The order will be: Mr. Herrick, 16 Mr. O'Laughlin and Mr. Nomellini. 17 C.O. BROWN: You win again, John. 18 MR. HERRICK: I can't complain with only three. 19 ---oOo--- 20 CROSS-EXAMINATION OF MODESTO AND TURLOCK 21 IRRIGATION DISTRICTS 22 BY SOUTH DELTA WATER AGENCY 23 BY MR. HERRICK 24 MR. HERRICK: Thank you, Mr. Chairman, Board 25 Members. John Herrick for South Delta Water Agency. CAPITOL REPORTERS (916) 923-5447 14138 1 Mr. Ward, we heard certain testimony yesterday 2 and I'm not going to quiz you on that, obviously, but I 3 want to ask you questions that relate to that. 4 Were you involved in providing Mr. Steiner with 5 information as he developed the model and the model 6 results for the evaluation of the San Joaquin River 7 Agreement project? 8 MR. WARD: No, I was not. 9 MR. HERRICK: Okay. In your opinion, does the 10 application of the water -- and I'll start with the 11 Turlock Irrigation District first -- does that result in 12 any return flows or accretions to the river? 13 MR. O'LAUGHLIN: Objection. Vague and ambiguous. 14 What river? 15 MR. GODWIN: If I could -- 16 C.O. STUBCHAER: If you could define it a little bit 17 more? 18 MR. HERRICK: Sure. 19 MR. GODWIN: Did you want that question directed to 20 Mr. Fryer or Mr. Ward? I have both witnesses here. 21 Mr. Ward can answer questions, specific questions with 22 respect to Modesto Irrigation District; Mr. Fryer can 23 answer questions specific to Turlock Irrigation District. 24 MR. HERRICK: So you would prefer questions for 25 Modesto to go to Mr. Ward and for Turlock to Mr. Fryer? CAPITOL REPORTERS (916) 923-5447 14139 1 MR. GODWIN: Please. 2 MR. HERRICK: All right. Let's start with you, 3 then, Mr. Fryer, in your opinion, does the application of 4 water to the service area in Turlock Irrigation District 5 result in any surface or subsurface flows that go into the 6 Tuolumne River? 7 MR. FRYER: There are operational spills into our 8 canals as a result of our surface water deliveries that go 9 into both the Merced, the Tuolumne and the San Joaquin. 10 MR. HERRICK: And those are operational spills. Do 11 you know if any of the subsurface waters that originate 12 from the application of surface waters in the district 13 contribute to those rivers also? 14 MR. FRYER: I believe they do, but I've never done 15 any numbers on it. 16 MR. HERRICK: Okay. Do you know if the district has 17 any numbers on that? By that I mean TID. 18 MR. FRYER: There may be some information on it, but 19 I'm not aware of exactly where it would be. 20 MR. HERRICK: Okay. Mr. Ward, same question with 21 regard to Modesto Irrigation District: Do you know 22 whether or not the application of water to the district 23 lands, to the lands within the district, result in surface 24 flows that go into the Tuolumne River? 25 MR. WARD: Some of the early -- we do have CAPITOL REPORTERS (916) 923-5447 14140 1 operational spills on the end of our system as well as 2 that return some flow of the surface water back to the 3 Tuolumne River. 4 MR. HERRICK: And you'll pardon my lack of 5 geography, lack of geography, Mr. Fryer mentioned return 6 flows going to the Merced, Tuolumne and the San Joaquin. 7 Do you know whether or not your surface return flows go to 8 those three rivers, or one, or two, or a combination? 9 MR. WARD: Surface return flows as well go to the 10 San Joaquin and the Stanislaus. 11 MR. HERRICK: As well as the Tuolumne? 12 MR. WARD: As well the Tuolumne. 13 MR. HERRICK: And, again, the same question with 14 regards to subsurface flows that might enter any of those 15 rivers, do you know whether or not the waters applied to 16 the surface in the area, Modesto Irrigation District, 17 result in subsurface flows to any of the rivers that you 18 mentioned? 19 MR. WARD: I do not have direct knowledge of that. 20 MR. HERRICK: Okay. Just for clarification, you say 21 you don't have direct knowledge of that, does that mean 22 you believe it doesn't occur, or you simply don't know? 23 MR. WARD: I don't know the quantities. I believe 24 there is a return flow component of the groundwater, but I 25 don't know how much. CAPITOL REPORTERS (916) 923-5447 14141 1 MR. HERRICK: Okay. And what would be the time 2 frame that surface waters are applied to the lands within 3 Modesto Irrigation District? 4 MR. WARD: During our active irrigation season. 5 MR. HERRICK: And could you just give me the months 6 of that, generally? 7 MR. WARD: March through October, generally. 8 MR. HERRICK: And so any of the operational spills 9 or subsurface flows that you mentioned would then return 10 to those rivers somewhere in that same time frame, March 11 through October? 12 MR. WARD: Approximately, yes. 13 MR. HERRICK: And same question to you, Mr. Fryer, 14 what's the time frame during which surface waters are 15 applied to the lands within Tuolumne Irrigation 16 District -- excuse me, yeah, Turlock Irrigation District? 17 MR. FRYER: Normal irrigation season runs from mid 18 March to mid October. 19 MR. HERRICK: And would you, then, conclude that any 20 of the operational spills of the surface water, or the 21 subsurface accretions to the rivers that you mentioned 22 would occur during that same time frame? 23 MR. FRYER: Operational spills occur in that time 24 frame, yes. 25 MR. HERRICK: Let me stay with you, Mr. Fryer, you CAPITOL REPORTERS (916) 923-5447 14142 1 talk about the operational spills -- no, I'm sorry. Let 2 me move on. 3 Okay. Mr. Ward, in your testimony you go through 4 I think it's all or most of the issues set forth in the 5 notice for these proceedings; is that correct? 6 MR. WARD: Yes, I do. 7 MR. HERRICK: And under Number 1 you mention the 8 EIS/EIR prepared for -- I'll just say "generally" -- the 9 San Joaquin River Agreement project; is that correct? 10 MR. WARD: Yes. 11 MR. HERRICK: And that is San Joaquin River Group 12 Authority Exhibit 105-K; is that correct? 13 MR. WARD: I believe it is Exhibit SJRGA Exhibit 14 103-A. 15 MR. HERRICK: Okay. Are you familiar with SJRGA 16 Exhibit 105-K which is entitled "Water Transfer Project 17 Draft Environmental Impact Report"? 18 MR. WARD: Could you repeat the title again? 19 MR. HERRICK: "Water Transfer Project Draft 20 Environmental Impact Report." 21 MR. WARD: No, I'm not familiar with that document. 22 MR. HERRICK: Okay. We heard a few questions -- 23 excuse me, we had a few questions from Board Member Brown. 24 I'd like to go through the operations you anticipate in 25 order to provide the flows for the San Joaquin River CAPITOL REPORTERS (916) 923-5447 14143 1 Agreement VAMP experiment. 2 In your estimation is the water to be released, 3 is that always going to be out of storage, or is it bypass 4 of natural flows at some times? 5 MR. WARD: It could be a combination of both. It 6 really depends on the hydraulic conditions. 7 MR. HERRICK: And have you reviewed the modeling 8 done by Mr. Steiner that describes or takes into account 9 releases from the Tuolumne for that purpose? 10 MR. WARD: I'm familiar with what input assumptions 11 were made and the output. I have not reviewed the actual 12 modeling exercise. I'm not a modeler. 13 MR. HERRICK: You anticipate that in some years 14 there will be sufficient storage in order to make the 15 release for VAMP flows; is that correct? 16 MR. WARD: Yes. 17 MR. HERRICK: And in some years there may not be 18 sufficient storage in the use of bypass of natural flows? 19 MR. WARD: That's true. 20 MR. HERRICK: And in some years it could be a 21 combination of the two? 22 MR. WARD: Yes. 23 MR. HERRICK: And if it's a decrease in storage then 24 the reservoir has been, I'll say, depleted by that amount 25 of the release; is that correct? CAPITOL REPORTERS (916) 923-5447 14144 1 MR. WARD: Yes. 2 MR. HERRICK: And as per the question of Board 3 Member Brown, then that decrease in storage space -- the 4 increase of storage space would allow you to recapture 5 more of that water at some time later if that water were 6 available? 7 MR. WARD: That's true. 8 MR. HERRICK: And Board Member Brown's question 9 dealt with whether or not, perhaps, that may increase 10 yield. Do you have any opinion as to whether or not if 11 it's dry for a number of years after that and you're not 12 able to recapture that water, would that be a decrease in 13 yield? 14 MR. WARD: I don't know the terminology that well in 15 terms of yield versus the storage. My understanding of it 16 would be if it stayed dry and we're not able to recapture 17 that water, the risk to us would be just that we would 18 have less water stored in the reservoir. 19 MR. HERRICK: Now, under your understanding of the 20 modeling and projections that has been done, what happens 21 in the instance when there isn't that carryover storage, 22 it hadn't been recovered, does your district have 23 sufficient supplies from the stored water? 24 MR. WARD: We believe we do. You kind of asked two 25 questions. CAPITOL REPORTERS (916) 923-5447 14145 1 MR. HERRICK: Sorry. 2 MR. WARD: The first question would be that as there 3 are drier and drier successive years the way the river 4 agreement is put together there are smaller and smaller 5 amounts of water that would be required for the spring 6 pulse. At some point there is a successive year 7 relaxation where no additional water is made for that 8 purpose. 9 MR. HERRICK: But is it possible that the earlier 10 year, the larger amounts that were released, would have 11 been used in those subsequent years as deliveries to your 12 customers? 13 MR. WARD: Not as delivery to our customers. It 14 would come out of storage from the reservoir. We would 15 still meet the full delivery of our customers in all 16 years. 17 MR. HERRICK: What is the amount of water you need 18 to deliver to your customers on a yearly basis? 19 MR. WARD: Average annual diversion is about 300,000 20 acre-feet. 21 MR. HERRICK: And how is that 300,000 acre-feet 22 used? Is it all agricultural lands? 23 MR. WARD: It is approximately 65,000 acres 24 agricultural lands, yes. 25 MR. HERRICK: Do you know what the consumptive use CAPITOL REPORTERS (916) 923-5447 14146 1 of those 65,000 acres of agricultural land is? 2 MR. WARD: In what terms? How much water is 3 delivered to them? 4 MR. HERRICK: How much is actually consumed by them? 5 MR. WARD: I would estimate the delivered water is 6 on the order of 200,000 acre-feet, which is water for them 7 to use. 8 MR. HERRICK: Okay. Now, you say "delivered water," 9 let me back up, then. Are the deliveries each year at 10 300,000 acre-feet or 200,000 acre-feet? 11 MR. WARD: The diversions at La Grange are 300,000. 12 The actual applied water delivered to the farmers is -- 13 I'm approximating -- 200,000. 14 MR. HERRICK: Okay. Where does the other 100,000 15 acre-feet that's diverted go? 16 MR. WARD: Some of it is operational spills, some 17 deep groundwater percolation, some of it is stored in the 18 Modesto Reservoir. We also provide M&I water to the City 19 of Modesto. 20 MR. HERRICK: Is the amount of M&I water delivered, 21 is that a constant or does that change per year? 22 MR. WARD: It is billed out at a constant. 23 MR. HERRICK: Okay. And what is that constant? 24 MR. WARD: 33,700 acre-feet. 25 MR. HERRICK: And you say it's billed out, is that CAPITOL REPORTERS (916) 923-5447 14147 1 different than what's actually delivered? 2 MR. WARD: It could be. As we have brought the 3 plant on-line, they have achieved that and maintained that 4 for the last few years. 5 MR. HERRICK: Now, you say some of the 300 -- excuse 6 me. Some of the 100,000 acre-foot amount goes to deep 7 water percolation, is that what you said? 8 MR. WARD: Yes. 9 MR. HERRICK: How is that accomplished? Do you have 10 deep percolation ponds, or is that an assumption of water 11 that seeps out of the system, or how do you determine 12 that, or deliver that? 13 MR. WARD: It would be both water that returns from 14 the distribution system as well as water that would be 15 returned to the aquifer as a result of applied flood 16 irrigation. We do not operate any large retention or 17 artificial recharge basis. 18 MR. HERRICK: Okay, I want to clarify, then. You 19 said that 200,000 was actually delivered to agricultural 20 users, but 100,000 was spills, deep percolation, Modesto 21 Reservoir and M&I. 22 In describing how the percolated water occurs, 23 you mentioned from, I believe you said, flood irrigation. 24 Is that separate from the 200,000 acre-feet amount that's 25 delivered to the agricultural users? CAPITOL REPORTERS (916) 923-5447 14148 1 MR. WARD: No. 2 MR. HERRICK: Okay. For those of us who don't know 3 anything about your river system, what's the Modesto 4 Reservoir? 5 MR. WARD: Modesto Reservoir is a regulating 6 reservoir. It is an off-stream reservoir lying north of 7 the Tuolumne River, I don't have a map, approximately 18 8 miles east of Modesto. 9 MR. HERRICK: Okay. And back to the 200,000 10 acre-feet amount that's actually delivered to the 11 agricultural customers, do you know how much of that is 12 consumed by those agricultural customers? And I'm trying 13 to differentiate between consumptive use and applied 14 water. 15 C.O. BROWN: Your question is: How much is applied 16 to agricultural lands, then? 17 MR. HERRICK: No. The question is: How much is 18 consumed once the 200,000 is applied to the agricultural 19 lands? 20 C.O. BROWN: You want to know what the consumptive 21 use is -- 22 MR. HERRICK: Yes. 23 C.O. BROWN: -- of the cropping pattern? 24 MR. HERRICK: Correct. 25 MR. WARD: I don't have a real good quantification CAPITOL REPORTERS (916) 923-5447 14149 1 of that. I would estimate that 70 percent is taken up by 2 the actual crop itself or the atmosphere, roughly. 3 MR. HERRICK: That's fine, it's just an estimation, 4 I'm not trying -- well, I was going to say I'm not trying 5 to trick you, but I get in trouble when I say that. 6 C.O. STUBCHAER: Who were you looking at? He's your 7 ally. 8 MR. HERRICK: Kind of. Excuse me, for that 9 digression. 10 Mr. Ward, then, by your general estimation then 11 30 percent of that 200,000 acre-feet would then go 12 somewhere else after the water has been applied and the 13 crops or evaporation takes that water; is that correct? 14 MR. WARD: Yes. 15 MR. HERRICK: Okay. How much water does Modesto 16 Irrigation District store each year for purposes of its -- 17 well, how much water does Modesto Irrigation District 18 store each year? 19 MR. GODWIN: Objection. That's vague and ambiguous. 20 Store where? 21 C.O. STUBCHAER: Yeah, store where? 22 MR. HERRICK: In what reservoirs does Modesto 23 Irrigation District store its water, Mr. Ward? 24 MR. WARD: The primary reservoir is Don Pedro. 25 MR. HERRICK: And Modesto, then, has permits that CAPITOL REPORTERS (916) 923-5447 14150 1 allow it to store a certain amount each year? 2 MR. WARD: There is a shared permit with Turlock 3 Irrigation District that allows that. 4 MR. HERRICK: Does the permit separate out your 5 portion, or does it say a total amount for both districts? 6 MR. WARD: I believe that there's a total amount, 7 not separated. 8 MR. HERRICK: And what is that total amount? 9 MR. WARD: I don't have a direct knowledge of that. 10 I am told it's approximately 1.8 million acre-feet. 11 MR. HERRICK: Okay. And the ability to store that, 12 according to your testimony, is also limited by Corps of 13 Engineer conditions on the operation of the reservoir and 14 flash dam; is that correct? 15 MR. WARD: That's true. 16 MR. HERRICK: And are there any other deliveries or 17 obligations of Modesto Irrigation District above the 18 agricultural and municipal and industrial users that 19 you've already mentioned? 20 MR. WARD: In addition to the minimum flows in the 21 river for the fisheries, I would add that. 22 MR. HERRICK: There's no other besides those? 23 MR. WARD: That's right. 24 MR. HERRICK: How about this: What's the maximum 25 quantity of water in a year to be delivered for fishery or CAPITOL REPORTERS (916) 923-5447 14151 1 other obligations? 2 MR. WARD: Bill, if you could put up Exhibit 107-C. 3 This shows the maximum in a wet year would be on the order 4 of 300,000, 301,000 acre-feet. 5 MR. HERRICK: Are there any separate storage amounts 6 for power generation that we need to talk about now so we 7 don't miss something here? 8 MR. WARD: No. 9 MR. HERRICK: So in a maximum -- the maximum amount 10 of water that Modesto Irrigation District needs each 11 year -- and you know you can object to that form of the 12 question -- needs each year then to deliver 200,000 13 acre-feet to agricultural clients and have its portion of 14 the 300,000 -- approximately 300,000 fish and wildlife 15 downstream river flows; is that correct? 16 MR. WARD: No. The average annual diversion at La 17 Grange is 300,000 in order to make the delivery of the 18 200,000 to the farmers. So on average it is the 300,000 19 in addition to our share or component of this required 20 FERC flow. 21 MR. HERRICK: Okay. So under current operations 22 Modesto Irrigation District is -- is Modesto Irrigation 23 District storing more water each year, if it's available, 24 than it needs in those years? 25 MR. WARD: That is what storage is all about. CAPITOL REPORTERS (916) 923-5447 14152 1 MR. HERRICK: Okay. And is that water above what 2 your need may be for that year put to any use? 3 MR. WARD: It could be. 4 MR. HERRICK: Okay. But is it, or does it just 5 remain in storage for future years, or is it used in any 6 manner? 7 MR. WARD: It would be used to meet the purposes 8 that I just described. 9 MR. HERRICK: Okay. And is it your opinion that 10 Modesto Irrigation District can continue to deliver the 11 water needed by its customers, I'll say, as well as meet 12 its instream flows and store and provide water for the 13 VAMP flows? 14 MR. WARD: Absolutely, yes. 15 MR. HERRICK: Okay. 16 C.O. STUBCHAER: Mr. Herrick, may I interrupt? 17 MR. HERRICK: Certainly. 18 C.O. STUBCHAER: What's the lowest level, lowest 19 storage volume that you've ever seen in this reservoir? 20 MR. WARD: Well, it wouldn't even show up on this 21 chart. In 1977, I believe, the storage was well down 22 in -- I'm kind of guessing -- around 300,000 acre-feet. 23 Old Don Pedro had a storage capacity of I think 330,000. 24 Old Don Pedro was exposed. So the reservoir level had 25 dropped as low as .3 million acre-feet. So on this chart, CAPITOL REPORTERS (916) 923-5447 14153 1 down here somewhere. 2 C.O. STUBCHAER: Did that impair your ability to 3 deliver in that season? 4 MR. WARD: As far as applied surface water, 5 absolutely. 6 C.O. STUBCHAER: Okay. Thank you. 7 MR. HERRICK: As a follow-up to that, Mr. Ward, if 8 we had some sort of hydrology that resulted in that 9 similar minimum amount of storage, how do you anticipate 10 you would meet your requirements for both instream fishery 11 flows and to your customers? 12 MR. WARD: Through a number of drought management 13 activities. We would probably increase our groundwater 14 pumping, operate -- you know, maximize conjunctive use. 15 The obligation for the FERC flow, the minimum stream, 16 would drop off to the minimums that I had up on the 17 chart -- will you put that one back on? 18 We'd be back over on this end of the chart. So 19 the minimum flows for the FERC would be back on this side, 20 not up here -- 21 C.O. STUBCHAER: When you say "this side," for 22 purposes of the written record, to the left side. 23 MR. WARD: I'm sorry. To the left side of the chart 24 indicating the lower or the drier year flow conditions. 25 So there would be a smaller obligation to meet in addition CAPITOL REPORTERS (916) 923-5447 14154 1 to implementing demand management. 2 MR. HERRICK: Okay. Now, I may be incorrect, I 3 thought you said either in direct testimony or maybe in 4 response to a question by Board Member Brown, that you 5 would not do any increased groundwater pumping in order to 6 meet the VAMP flows? 7 MR. WARD: Well, I said that as a direct 8 implementation of VAMP we would not. Your question was 9 not -- unless I misinterpreted it -- I thought it did not 10 include the VAMP component. 11 MR. HERRICK: Okay. Would you then agree that 12 although you don't anticipate pumping groundwater to meet 13 VAMP flows as a result of implementation of the San 14 Joaquin River Agreement, under some scenarios your 15 district might have to pump groundwater to meet its needs? 16 MR. WARD: We have historically, yes. 17 MR. HERRICK: In your opinion, will that have any 18 effect on the groundwater basin in those circumstances 19 when you might need to pump additional groundwater to meet 20 your needs? 21 MR. WARD: Depends on the magnitude of the pumping. 22 MR. HERRICK: And do you know have you done any 23 analysis of what that magnitude might be? 24 MR. WARD: No. 25 MR. HERRICK: Do you know of anybody who has done CAPITOL REPORTERS (916) 923-5447 14155 1 that analysis? 2 MR. WARD: There are models that we have in-house 3 that could be used for that purpose. 4 MR. HERRICK: On Page 2 of your testimony, Mr. Ward, 5 under Number 4, which I believe equates to issue four in 6 the notice, you state that, 7 (Reading): 8 "No terms and conditions are necessary to best 9 develop, conserve and utilize in the public 10 interest the water proposed to be part of the 11 change." 12 Do you see that? 13 MR. WARD: Yes. 14 MR. HERRICK: And on part, I believe you base that 15 on your conclusions under Number 1 of your testimony where 16 you say according to analysis you don't believe there 17 will be any adverse impact -- and I'm obviously 18 generalizing what you say -- any adverse impact on water 19 quality; is that correct? 20 MR. WARD: In part, question one is related to the 21 water quality change. It's also more than that. 22 MR. HERRICK: Would you be opposed to a condition 23 that attempted to ensure that the implementation of the 24 San Joaquin River Agreement didn't result in adverse 25 changes to salinity in the San Joaquin River? CAPITOL REPORTERS (916) 923-5447 14156 1 MR. WARD: I don't know that if that gets into a 2 policy decision or not. 3 MR. HERRICK: It may be, and I'm just asking for 4 your opinion. 5 MR. WARD: Frame the question again. 6 MR. HERRICK: My question is based on your 7 conclusion that you don't need terms because analysis 8 shows there won't be an adverse impact on salinity? 9 MR. WARD: Correct. 10 MR. HERRICK: That's correct? 11 MR. WARD: In part, that's correct, yes. 12 MR. HERRICK: If that's one of the bases of your 13 conclusions that no terms are necessary, would you object 14 to a term that says implementation -- if implementation of 15 the San Joaquin River Agreement does adversely affect San 16 Joaquin River water quality to some degree -- we'd have 17 somebody choose that -- then something should happen here, 18 suspension, or change, or revisiting, or -- 19 MR. WARD: I think that raises questions in the 20 baseline and monitoring and cause and effect and relative 21 change and things like that. But if, in fact, it could be 22 demonstrated that because of implementation of VAMP it was 23 causing a harmful effect, I believe a condition like that 24 would be in place, notwithstanding all these other 25 provisions. CAPITOL REPORTERS (916) 923-5447 14157 1 MR. HERRICK: Now, I notice on Page 3 of your 2 testimony under Number 7 you quoted only part of issue 3 Number 7. The bottom part of issue seven on the notice 4 deals with, quote, "What is real water," closed quote. 5 Do you recall that, seeing that in the notice? 6 MR. WARD: I'm reading question seven right now. 7 MR. HERRICK: Let me grab my notice. 8 MR. WARD: Okay. 9 MR. HERRICK: I believe your attorney has given you 10 a copy of the supplement to revised hearing; is that 11 correct? 12 MR. WARD: Yes. 13 MR. HERRICK: Under issue seven, the last sentence 14 says, 15 (Reading): 16 "The petitioners are requested to provide 17 evidence during Phase II-B demonstrating that 18 the water to be supplied under the petition 19 changes represents a reduction in the water 20 supply otherwise available to the petitioners 21 and their customers, or in some other way is, 22 quote, 'real water'", closed quote. 23 Do you see where that sentence is? 24 MR. WARD: Yes, I do. 25 MR. HERRICK: Now, do you have an understanding as CAPITOL REPORTERS (916) 923-5447 14158 1 to what is meant by the term "real water"? 2 MR. WARD: I believe so, yes. 3 MR. HERRICK: And what would that understanding be? 4 MR. WARD: That it is an accounting adjustment, or 5 water that isn't otherwise coming from some source. 6 MR. HERRICK: Is the water to be supplied by your 7 district for the San Joaquin River Agreement flows, is 8 that going to be a decrease in any consumptive use by the 9 district? 10 MR. WARD: No. 11 MR. HERRICK: Okay. And I see from your testimony 12 on Page 3 that the district will be taking no additional 13 water conservation efforts. Is that true? 14 MR. WARD: There may be many conservation efforts 15 that the districts would take, but none are anticipated in 16 direct consequence of implementation of the VAMP flows. 17 MR. HERRICK: Okay. And I don't want to describe 18 that separately, but in other words, you're not doing 19 something additionally, specifically in order to provide 20 this flow? 21 MR. WARD: That's correct. 22 MR. HERRICK: And so would it be correct to say that 23 the water your district is going to supply is water that 24 it's able to capture but is in excess of its current 25 needs? CAPITOL REPORTERS (916) 923-5447 14159 1 MR. WARD: Say that again. 2 MR. HERRICK: Would it be correct to say that the 3 water your district is going to supply for the San Joaquin 4 River Agreement flows is water that it can capture or 5 store but in excess of its current needs? 6 MR. WARD: It could be said that way. 7 MR. HERRICK: Okay. Do you know whether or not the 8 permits that allow your district to store water have any 9 reservations in them regarding downstream rights other 10 than fishery needs? 11 MR. WARD: I do not know. 12 MR. HERRICK: Okay. Would you be agreeable to a 13 condition to the permit change you're seeking that said if 14 downstream riparians were not receiving a sufficient 15 supply to meet their needs, that the dam operator would be 16 required to pass through the natural flow? 17 MR. GODWIN: I'm going to object. Mr. Ward's 18 testimony already states no terms and conditions are 19 necessary to best develop, conserve and utilize. He's 20 already stated that that is his position. 21 MR. HERRICK: I understand that, but if I may, 22 Mr. Chairman, the witness just a few minutes ago said he 23 wouldn't be against a permit condition that said if, 24 indeed, the implementation had adverse effects in 25 salinity, then some sort of restriction might be CAPITOL REPORTERS (916) 923-5447 14160 1 agreeable. 2 The fact that he said that statement should not 3 preclude me from exploring why or what else might be 4 agreeable to. 5 C.O. STUBCHAER: Objection is overruled. 6 MR. HERRICK: Do you remember the question, 7 Mr. Ward? 8 MR. WARD: Yes. And there's nothing to indicate 9 that there would be harm to any downstream user. So in 10 that particular instance, I would object to any condition. 11 MR. HERRICK: Okay. What if the lack of water for 12 downstream riparians was not based on the San Joaquin 13 River Agreement's consequences? 14 MR. WARD: What's the question? 15 MR. HERRICK: Would you be agreeable to a permit 16 condition that said the natural flow needed to be passed 17 through if downstream riparians weren't receiving enough 18 water? 19 MR. O'LAUGHLIN: I'll object, Chairman Stubchaer. 20 That's outside the notice of the hearing and it goes to 21 the underlying water right permit terms and conditions of 22 the districts. It has nothing to do with the change 23 condition. 24 Since the question has already preferenced 25 outside the San Joaquin River Agreement, since these CAPITOL REPORTERS (916) 923-5447 14161 1 petitions are noticed to meet the flow requirements during 2 the spring pulse flow and are tied to the San Joaquin 3 River Agreement, he's asking questions that are outside 4 the scope of the hearing. 5 C.O. STUBCHAER: Mr. Herrick. 6 MR. HERRICK: My comment on that would be the water 7 available for the VAMP, San Joaquin River Agreement flows 8 is dependent on what water is there in the absence of the 9 flows. 10 And I think that under issue four, "What terms 11 and conditions will best develop, conserve and utilize in 12 the public interest the water proposed to be used as part 13 of the change," would allow questions that deal with other 14 rights and responsibilities that might effect the 15 available supply before the proposed change water is 16 provided. 17 C.O. STUBCHAER: Mr. O'Laughlin. 18 MR. O'LAUGHLIN: But hearing notice number four goes 19 specifically to the water that's proposed to be part of 20 the change petition, not other water under the water 21 rights held by the agencies. 22 So that's water -- that's talking about the 23 specific water that's part of the change petition that's 24 going to be utilized to meet the needs of the 1707. It 25 has nothing to do with their underlying water rights for CAPITOL REPORTERS (916) 923-5447 14162 1 all their other permits and licenses. 2 C.O. STUBCHAER: Mr. Nomellini. 3 MR. NOMELLINI: This is cross-examination and part 4 of the issue to be determined here is whether or not the 5 proposal would have an adverse effect on legal users of 6 water. So I think that dealing with the riparian flows 7 and how you protect riparian is relevant and, of course, 8 within the scope of a fairly broad opportunity for 9 cross-examination. 10 C.O. STUBCHAER: Mr. Godwin. 11 MR. GODWIN: Yes, but we're not here to talk about 12 how best to protect riparians and legal users of water in 13 the absence of the petition. And that goes exactly to the 14 question that Mr. Herrick raised to Mr. O'Laughlin's 15 objection. 16 C.O. STUBCHAER: The objection is sustained. 17 C.O. BROWN: Mr. Chairman? 18 C.O. STUBCHAER: Mr. Brown. 19 C.O. BROWN: While Mr. Herrick is getting his 20 thoughts here and we're interrupted a little bit, I have 21 to tell you, I've sat here for a day and almost a day and 22 a half now and I'm disappointed. The testimony that we've 23 been receiving on trying to hit the issue, I think we've 24 been here on record here several times where Mr. Nomellini 25 and Mr. Herrick and others have said that they could CAPITOL REPORTERS (916) 923-5447 14163 1 support this agreement we're discussing here if we're 2 talking about real water. 3 And this is an opportunity to do that. I've 4 heard figures and I've seen it, but I haven't heard 5 testimony as to where this water is coming from to meet 6 the VAMP requirements in the San Joaquin River Agreement. 7 I've heard for a day and a quarter now, I've 8 heard what people had thought on these issues, but I've 9 seen no real information come forward on increment of 10 yield. I'm disappointed. And I thought New Don Pedro was 11 offered an opportunity here for us to show that by some 12 reoperations we could have an increase in yield to help 13 meet these requirements that you're proposing. 14 The concern that we're all sharing here is that 15 by meeting these requirements, is there any harm that's 16 going to occur to others downstream? We need to know 17 that. And you're out there and we need help and input 18 from you folks to do this. But by giving us numbers and 19 kind of dancing around the issue doesn't do a whole lot of 20 good in what we're trying to determine here. 21 And there's opportunities for increase in yield 22 to meet these requirements. And I'm kind of interested, 23 Mr. Chairman, why we haven't been seeing these. 24 C.O. STUBCHAER: Thank you for your statement, 25 Mr. Brown. I hope that witnesses in the future may CAPITOL REPORTERS (916) 923-5447 14164 1 address that issue. 2 I don't know how, during this cross-examination, 3 you can expect Mr. Herrick -- well, Mr. Herrick is trying 4 to get at that issue, but we'll have opportunity to ask 5 more questions of these witnesses during the 6 cross-examination by the staff and the Board, too. 7 Mr. Herrick. 8 MR. HERRICK: Thank you, Mr. Chairman. 9 Let me run through the same line of questions with Mr. 10 Fryer regarding Turlock Irrigation District. 11 We heard from Mr. Ward that Modesto needed 12 300,000 acre-feet to deliver to customers each year. 13 What's the number that Turlock Irrigation District needs 14 to deliver to its customers? 15 MR. FRYER: It's approximately 650,000 acre-feet of 16 combined surface and groundwater. 17 MR. HERRICK: How much is delivered by the surface 18 water? 19 MR. FRYER: Depending on the water year, it will be 20 anywhere between 75 and 85 percent. 21 MR. HERRICK: And do you know how much of that is 22 consumed -- excuse me, let me back up. 23 Is that deliveries to all agricultural uses, or 24 does it have M&I uses also? 25 MR. FRYER: All of our M&I uses in the district are CAPITOL REPORTERS (916) 923-5447 14165 1 from groundwater, so it's all surface to ag. 2 MR. HERRICK: Surface to ag. And do you know what 3 the consumptive use of that water is by the agricultural 4 users? 5 MR. FRYER: I can generate that figure, but I don't 6 have it off the top of my head. 7 MR. HERRICK: Have the cropping patterns of the 8 agricultural users in the district changed significantly 9 over the past, say, ten years? 10 MR. FRYER: Yes, it has. 11 MR. HERRICK: And has that affected the amount of 12 surface water needed for delivery? 13 MR. FRYER: It's firmed up the requirements on 14 surface delivery. 15 MR. HERRICK: And is there any expectation that that 16 cropping pattern will change significantly in the next 12 17 years? 18 MR. FRYER: Not at this point do we anticipate a 19 significant change. 20 MR. HERRICK: Okay. What was the significant change 21 in the last ten years, was that a switch to more permanent 22 crops? 23 MR. FRYER: It was a switch from pastured lands to 24 intensely double, triple crops of row crops -- field crops 25 for the dairies. And we consider our dairies' lands to be CAPITOL REPORTERS (916) 923-5447 14166 1 as permanent crops, as trees, because we have very large 2 dairies that require these crops for feed as well as waste 3 disposal. So those lands as far as we're concerned are 4 permanent irrigation. 5 MR. HERRICK: Okay. When you say "row crops for 6 dairy," does that mean like corn, or for something else? 7 MR. FRYER: Corn, oats and grass are the principal 8 and alfalfa. 9 MR. HERRICK: Okay. So it would be feed grass and 10 grains? 11 MR. FRYER: Yes. 12 MR. HERRICK: Mr. Ward had estimations for an amount 13 of the delivered water that went to other things such as 14 spills, percolation, like that. Do you know of any amount 15 of that 650,000 acre-feet that goes to such things as 16 spills, or deep percolation? 17 MR. FRYER: Again, it depends on the water year. 18 Spills can be as low as 4 percent or they can go up to as 19 high as 15 percent, depending on the water year. 20 MR. HERRICK: And, again, I misspoke. That would be 21 4 to 15 percent of the 75 to 85 percent of that 650 -- 22 MR. FRYER: No, of the total water that I was 23 talking about, the 650,000. 24 MR. HERRICK: Okay. And that 4 to 15 percent, then, 25 is the source of the water that you mentioned when we CAPITOL REPORTERS (916) 923-5447 14167 1 began this cross-examination that may end up in the 2 surrounding rivers? 3 MR. FRYER: That was the return flow that I was 4 referring to, yes. 5 MR. HERRICK: Do you know how many of the 650,000 6 acres go to deep percolation? 7 MR. FRYER: Not off the top of my head. 8 MR. HERRICK: And we saw that there was a slightly 9 over 300,000 acre-foot maximum demand for instream fishery 10 flows. I'd like to confirm that that's a total, an amount 11 required by both Turlock and Modesto for downstream 12 releases, correct? 13 MR. FRYER: Yes, we split those flow requirements. 14 MR. HERRICK: Generally, you're kind of charging 15 half of that, right? 16 MR. FRYER: We get 68 percent of it and they get 32 17 of it. 18 MR. HERRICK: And is the water that Turlock is going 19 to provide for the San Joaquin River flows to be provided 20 in a similar manner as we understood Modesto's to be 21 provided? 22 MR. FRYER: Yes, it's intended to come out of 23 carryover storage. 24 MR. HERRICK: And it's not going to come out of, 25 say, groundwater pumping or something like that? CAPITOL REPORTERS (916) 923-5447 14168 1 MR. FRYER: We don't plan on changing our 2 operations. It will be storage. 3 MR. HERRICK: And is it correct that your district 4 will not be initiating any new -- the terms used were 5 additional water conservation measures in order to provide 6 the VAMP flows; is that correct? 7 MR. FRYER: That's correct. 8 MR. HERRICK: And so would it be fair to say that 9 the water that Turlock Irrigation District will be 10 providing for the San Joaquin River Agreement flows is 11 water that you are able to store, capture and store which 12 is in excess of your current needs? 13 MR. FRYER: I will not use the term "excess," 14 because that's carryover storage for use in future years 15 when it turns dry. So we're dipping into our bank account 16 to provide this water to the VAMP. 17 MR. HERRICK: Okay. So you're borrowing from your 18 potential future supply; is that correct? 19 MR. FRYER: That's correct. 20 MR. HERRICK: And have you done any analysis of what 21 would happen if that borrowing would not be able to be 22 replenished? 23 MR. FRYER: It will essentially be replenished under 24 the normal multiple hydrologic periods, but over an 25 extended drought it would mean we would have a decreased CAPITOL REPORTERS (916) 923-5447 14169 1 quantity of carryover storage to rely upon for our next 2 year's irrigation. 3 MR. HERRICK: And in the event that an extended 4 drought -- and this is a hypothetical -- and there wasn't 5 enough storage to meet your needs, where would the 6 district find the additional water needed? 7 MR. FRYER: We feel there would be sufficient 8 storage under our current water rights to provide it. 9 MR. HERRICK: Okay. Let me just explore that, your 10 water rights provide that. I think my question is more 11 towards: If the stream didn't provide it? In other 12 words, you weren't able to trap that much. 13 MR. FRYER: That would be an -- very odd 14 hypothetical situation given the hydrology of the 15 watershed. 16 MR. HERRICK: Okay. Mr. Ward stated that under 17 certain circumstances it would be possible that increased 18 groundwater pumping were necessary. Is that a possibility 19 for Turlock in the event that we have an extended drought? 20 MR. FRYER: The district, as I've already indicated, 21 will swing 10 percent additional groundwater pumping to 22 meet drought conditions. We do not anticipate having to 23 go over that to meet the VAMP flows. But increasing our 24 groundwater pumping under a conjunctive use program is 25 always a part of our drought plan and always has been. CAPITOL REPORTERS (916) 923-5447 14170 1 MR. HERRICK: And do you have any analysis that 2 shows how increased pumping that might be required as a 3 result of a drought period after implementation of the San 4 Joaquin River Agreement might affect the groundwater 5 basin? 6 MR. FRYER: I don't have any direct modeling on 7 that. 8 MR. HERRICK: Okay. Just a couple more. I don't 9 know what time it is. 10 Mr. Ward, one of the attachments to your 11 testimony is 107-D, could you turn to that, please. 12 MR. WARD: Okay. 13 MR. HERRICK: Did you participate in the 14 negotiations that led to the, I'll say, the agreement for 15 the new FERC flows on the Tuolumne River? 16 MR. WARD: No, I did not. 17 MR. HERRICK: Are you familiar with those 18 negotiations at all? 19 MR. WARD: Only familiar. 20 MR. HERRICK: Do you know whether or not U.S. Fish 21 and Wildlife Service or the Department of Fish and Game 22 were involved in those discussions? 23 MR. WARD: I believe they were, yes. 24 MR. HERRICK: It wasn't just the districts and FERC, 25 there were other agencies commenting or participating? CAPITOL REPORTERS (916) 923-5447 14171 1 MR. WARD: That's correct. 2 MR. HERRICK: And was it an agreement, the final 3 decision amongst parties, or was it some sort of 4 determination when an agreement wasn't reached? 5 MR. WARD: It was an agreement among the parties. 6 MR. HERRICK: And am I correct in reading that the 7 pulse flow, the third line from the bottom says, 8 "Outmigration pulse flow," do you see that? 9 MR. WARD: Yes. Yes. 10 MR. HERRICK: And it has over different year types 11 to the right of that in that column. 12 MR. WARD: Right. 13 MR. HERRICK: And in the critical and below it says 14 11,091 acre-feet; is that correct? 15 MR. WARD: Yes, it does. 16 MR. HERRICK: And then that goes up to 20,000 17 approximately and 32,6- as you get into wetter years; is 18 that correct? 19 MR. WARD: Yes. 20 MR. HERRICK: Do you know -- I'm going to test your 21 math ability -- do you know what is 11,000 -- excuse me, 22 let me back up. 23 Is that pulse flow period a 31-day pulse time 24 frame? 25 MR. WARD: Yes. It is approximately the mid CAPITOL REPORTERS (916) 923-5447 14172 1 April/mid May time frame. 2 MR. HERRICK: Do you know what the cfs of that is, 3 the 11,000 acre-feet for the critical and below years? 4 MR. WARD: I don't have the calculation in my head. 5 This is a pulse flow that would ride on top of a base. So 6 there's also a base occurring during the same time period. 7 Simple math, I don't know the cfs in my head. 8 MR. HERRICK: Maybe I'm missing something, do you 9 have any idea what the base flow would be under those 10 critical and below years, roughly? 11 MR. WARD: Through October 16th through May 31st, 12 this pulse would be riding on top of this base. 13 MR. GODWIN: Could you for the record, Mr. Ward, 14 specify what you're referring to? 15 MR. WARD: I'm sorry. I'm referring to Exhibit 16 107-D, under the heading "October 16th through May 31st." 17 For a critical and below year, it shows a minimum flow of 18 150 cfs. That is total acre-feet over that entire time 19 period, right here, 67,835. 20 For the same -- on the same chart, 107-D, 21 critical and below water year, the outmigration pulse flow 22 would be 11,091 acre-feet on top of the minimum river 23 flow. 24 MR. HERRICK: And just generally by using the 25 category below outmigration pulse flow, it says June CAPITOL REPORTERS (916) 923-5447 14173 1 through September. It shows -- I'm sorry, that's a longer 2 time frame. Never mind. Okay. Thank you very much. 3 I think I'm done, if I may have one moment, 4 please. That's all the questions I have. Thank you very 5 much, Mr. Chairman. 6 C.O. STUBCHAER: Thank you, Mr. Herrick. 7 Mr. O'Laughlin. 8 MR. O'LAUGHLIN: Good morning, Mr. Chairman, Board 9 Members. 10 C.O. STUBCHAER: Good morning. 11 ---oOo--- 12 CROSS-EXAMINATION OF THE MODESTO AND TURLOCK 13 IRRIGATION DISTRICTS 14 BY THE SAN JOAQUIN RIVER GROUP AUTHORITY 15 BY MR. O'LAUGHLIN 16 MR. O'LAUGHLIN: Mr. Ward, I want to clear up a 17 couple of questions that arose yesterday during 18 Mr. Steiner's testimony. 19 Is it true that under the division agreement that 20 Oakdale Irrigation District will make water available for 21 the San Joaquin River Agreement; is that correct? 22 MR. WARD: Yes, it is. 23 MR. O'LAUGHLIN: Now, for the pulse flow period when 24 there is a limitation on the Stanislaus River of 1500 cfs, 25 Oakdale Irrigation District has to make its water CAPITOL REPORTERS (916) 923-5447 14174 1 available through some other means to arrive at Vernalis; 2 is that correct? 3 MR. WARD: That's true. 4 MR. O'LAUGHLIN: In that situation is it your 5 understanding that OID and Modesto Irrigation District 6 have reached an agreement wherein Modesto Irrigation 7 District will release water from New Don Pedro to meet the 8 pulse flow and then be repaid by Oakdale through an 9 intertie into its system and repay Modesto for that water 10 made available during the pulse flow period? 11 MR. WARD: Yes, that is my understanding. 12 MR. O'LAUGHLIN: I have no further questions. 13 C.O. STUBCHAER: Mr. O'Laughlin. 14 Mr. Nomellini. 15 ---oOo--- 16 CROSS-EXAMINATION OF MODESTO AND TURLOCK 17 IRRIGATION DISTRICTS 18 BY THE CENTRAL DELTA PARTIES 19 BY MR. NOMELLINI 20 MR. NOMELLINI: Mr. Chairman, Members of the Board, 21 Dante John Nomellini for the Central Delta Parties. 22 Mr. Ward, in your testimony on Page 1 you 23 indicate that there are three potential groups of legal 24 users of water whose interests must be considered. Do you 25 see that in your testimony? CAPITOL REPORTERS (916) 923-5447 14175 1 MR. WARD: Yes, I do. 2 MR. NOMELLINI: The first one lists those who have 3 water rights on the San Joaquin River or its tributaries. 4 Do you see that? 5 MR. WARD: Yes. 6 MR. NOMELLINI: Would you agree that water users in 7 the Delta are part of the group of legal users of water 8 whose interests must be considered? 9 MR. WARD: My intention there was directed at to 10 Vernalis and not below Vernalis. 11 MR. NOMELLINI: Okay. So you would contend that 12 legal users of water do not exist downstream of Vernalis, 13 is that your position? 14 MR. WARD: I would not contend that, no. 15 MR. NOMELLINI: Okay. Where in your listing are the 16 legal users of water downstream of Vernalis? 17 MR. WARD: Again, my intention in this testimony was 18 to consider the changes that would occur in the 19 tributaries and in the main stem of the San Joaquin River 20 to Vernalis. 21 MR. NOMELLINI: All right. Would you agree there 22 are legal users of water downstream of Vernalis? 23 MR. WARD: I understand that there are, yes. 24 MR. NOMELLINI: Okay. And included in that group 25 would be all those who use water that is exported from the CAPITOL REPORTERS (916) 923-5447 14176 1 Delta; would that not be correct? 2 MR. WARD: I believe that's a subset of a larger 3 unit. 4 MR. NOMELLINI: Okay. And that would include the 5 people -- agriculturalists in the Westlands Water 6 District; would it not? 7 MR. WARD: Yes. 8 MR. NOMELLINI: Water users in the Metropolitan 9 Water District of Southern California? 10 MR. WARD: Yes. 11 MR. NOMELLINI: Okay. So is it your testimony that 12 you have limited your listing on Page 1 because you have 13 concluded there was no effect of the San Joaquin River 14 Agreement downstream of Vernalis? 15 MR. WARD: That was my conclusion, yes. 16 MR. NOMELLINI: All right. Now, is your conclusion 17 based on the studies performed by Mr. Steiner? 18 MR. WARD: It's my understanding of those studies, 19 yes. 20 MR. NOMELLINI: All right. Have you done any 21 independent studies to verify those conclusions? 22 MR. WARD: No, I have not. 23 MR. NOMELLINI: All right. Now, in addition, going 24 down on that same first page, you've indicated that the 25 petition changes by MID and TID to provide water for the CAPITOL REPORTERS (916) 923-5447 14177 1 VAMP pulse flow to the San Joaquin River Agreement would 2 not unreasonably affect any legal user of water on the San 3 Joaquin River or the Delta. 4 Do you see that? 5 MR. WARD: Where? 6 MR. NOMELLINI: About the middle of the page, Page 7 1. 8 MR. WARD: Yes, I do see that. I'm sorry, I was 9 looking at the wrong paragraph. 10 MR. NOMELLINI: All right. In reaching that 11 conclusion, have you considered salinity impacts in 12 critically dry years due to reduction in return flows, or 13 reduction in accretions to the river systems resulting 14 from groundwater extractions within the Modesto Irrigation 15 District? 16 MR. O'LAUGHLIN: Objection. Assumes facts not in 17 evidence. Mr. Nomellini has not posed it as a 18 hypothetical, but has stated that this would result in 19 reductions to accretions in some sources that he's 20 referenced. 21 So if he wants to make it a hypothetical, it's 22 not a problem, but other than that there's no evidence in 23 the record to support such a statement. 24 C.O. STUBCHAER: Mr. Nomellini. 25 MR. NOMELLINI: I wasn't stating anything. I was CAPITOL REPORTERS (916) 923-5447 14178 1 asking him if he considered those things. 2 MR. O'LAUGHLIN: No, that wasn't the question. It 3 wasn't a question of whether or not he considered whether 4 or not there were problems with accretions. The 5 accretions he assumed were not occurring, therefore it was 6 impacting salinity at Vernalis. So that's an entirely 7 different question. 8 MR. NOMELLINI: We're arguing over what my question 9 was now. 10 C.O. STUBCHAER: We could have the question read 11 back or you can restate it. 12 MR. NOMELLINI: I think I can read it, I had it 13 written down. 14 C.O. STUBCHAER: Okay. 15 MR. NOMELLINI: Mr. Ward, in reaching the conclusion 16 in the middle of Page 1 have you considered salinity 17 impacts in critically dry years due to reduction in return 18 flows or accretions to the rivers resulting from 19 groundwater pumping by MID? 20 MR. O'LAUGHLIN: Well, and there's my objection. 21 This assumes facts not in evidence. He says "due to 22 groundwater extractions." The testimony is they're not 23 going to do groundwater extractions. There's no 24 accretions to the -- there's no testimony in the record 25 about accretions to the river. And both witnesses have CAPITOL REPORTERS (916) 923-5447 14179 1 testified that they have no knowledge about that. 2 His question assumes those facts and then asks 3 him what the impact to salinity is. It's an improper 4 question. 5 C.O. STUBCHAER: I'm going to sustain the objection, 6 but I think you could cure it by adding two or three words 7 to qualify the assumptions. 8 MR. NOMELLINI: Well, we'll get to it anyway. 9 Mr. Ward, do you agree that use of water within 10 the Modesto Irrigation District by agriculturalists 11 results in return flows to the river system? 12 MR. WARD: No. 13 MR. NOMELLINI: Okay. Do you agree that delivery of 14 water to agricultural users in the Modesto Irrigation 15 District results in return flows to the river systems? 16 MR. WARD: In part, yes. 17 MR. NOMELLINI: And you so testified, did you not? 18 MR. WARD: Yes. 19 MR. NOMELLINI: You said there were return flows 20 going to the Stanislaus, the Tuolumne and the San Joaquin; 21 is that correct? 22 MR. WARD: I -- 23 MR. O'LAUGHLIN: Objection. That isn't what he 24 said. It wasn't return flows. His specific testimony was 25 is that they have operational spills resulting from their CAPITOL REPORTERS (916) 923-5447 14180 1 systems at the lower end due to deliveries, not to return 2 flows. 3 C.O. STUBCHAER: Mr. Herrick. 4 MR. HERRICK: Without confusing the issue, that is 5 not what the testimony was. There was testimony with 6 regard to operational spills. And then I asked questions 7 about other accretions. And although the witnesses didn't 8 know the specific amounts, they both assumed those 9 occurred. 10 MR. GODWIN: Those were subsurface accretions -- 11 C.O. STUBCHAER: Just a moment. 12 MR. GODWIN: -- not return flows. 13 C.O. STUBCHAER: Mr. Godwin, would you repeat what 14 you just said so we have a clear record. 15 MR. GODWIN: Yeah. The testimony was subsurface 16 accretions, it was not return flows. 17 C.O. STUBCHAER: Mr. Nomellini, I'm going to allow 18 your questioning to continue. I'm, obviously, hesitating, 19 but I think you could pose your question so that -- 20 eliminate the objections. 21 MR. NOMELLINI: I would agree with you there. I 22 would ask that I be allowed some leeway since this is 23 cross-examination. And, therefore, the choice of the 24 phraseology I would ask that I be allowed to do that. I 25 recognize I could ask these questions differently. CAPITOL REPORTERS (916) 923-5447 14181 1 C.O. STUBCHAER: Well, let's start over. 2 MR. NOMELLINI: Okay. All right. 3 Mr. Ward, let's start with the return flows. 4 What is your definition of "return flows"? 5 MR. WARD: Okay. I was just going to suggest maybe 6 I need to define some things. "Return flow," in my mind, 7 is I'm thinking of subsurface, not runoff, but subsurface 8 return flow to another water body. 9 MR. NOMELLINI: Okay. And "operational spill," what 10 do you consider to fall within that category? 11 MR. WARD: You know, a purposeful spill of a head of 12 water that is moving through a canal system. 13 MR. NOMELLINI: All right. 14 MR. WARD: It's a timing release. 15 MR. NOMELLINI: And the last item would be 16 "accretions to the river," what is your understanding of 17 what that term would be? 18 MR. WARD: It could be a sum of a number of factors 19 that would include return flow as defined and operational 20 spills. 21 MR. NOMELLINI: Okay. Mr. Fryer, you comfortable 22 with those definitions? 23 MR. FRYER: Reasonably comfortable. 24 MR. NOMELLINI: All right. Going back now with 25 regard to water delivered by the Modesto Irrigation CAPITOL REPORTERS (916) 923-5447 14182 1 District, does the delivery of that water result in any 2 return flows to the river systems? 3 MR. WARD: I believe some of it does, yes. 4 MR. NOMELLINI: And would deliveries of water to 5 agricultural users result in return flows to the river 6 systems? 7 MR. WARD: Yes. 8 MR. NOMELLINI: Okay. I understand that -- is it 9 correct that Modesto delivers water not only to 10 agricultural users but to urban users as well? 11 MR. WARD: To one wholesale customer, the City of 12 Modesto. 13 MR. NOMELLINI: Okay. With regard to accretions to 14 the river, do the return flows that we just addressed 15 constitute part of what you understand to be accretions to 16 river systems, those being Tuolumne, Stanislaus or San 17 Joaquin? 18 MR. WARD: In part, part of the base flow. 19 MR. NOMELLINI: Okay. Now, going back to the middle 20 of Page 1 in the statement, 21 (Reading): 22 "The petition changes by MID and TID to provide 23 water for the VAMP pulse flow under the San 24 Joaquin River Agreement would not unreasonably 25 affect any legal user of water on the San CAPITOL REPORTERS (916) 923-5447 14183 1 Joaquin River and the Delta." 2 In reaching that conclusion, have you considered 3 salinity impacts in critically dry years due to return 4 flows, reduction in return flows, or reduction in 5 accretions to the river system? 6 MR. WARD: No, because I did not consider that there 7 would be any reduction in return flow or accretions. 8 MR. NOMELLINI: Okay. 9 MR. WARD: As a result of the same applied water. 10 MR. NOMELLINI: All right. And we'll pursue that in 11 a minute. You've indicated on Page 1 of your testimony 12 that -- well, before I go there, Mr. Fryer, did you join 13 in this conclusion? You indicated that you helped write 14 the statement, but do you join in this conclusion on Page 15 1 with regard to the petition changes would not 16 unreasonably affect any legal user of water? 17 MR. FRYER: Since we're taking our water out of 18 storage and not changing our operations, we don't see any 19 operational changes, so, yes, I concur with that. 20 MR. NOMELLINI: Okay. And in reaching that 21 conclusion, did you consider salinity impacts in 22 critically dry years due to reduction in return flows or 23 accretions to the river? 24 MR. FRYER: Since they wouldn't change as a result 25 of what we're planning to do by taking water out of CAPITOL REPORTERS (916) 923-5447 14184 1 storage, no, we didn't consider it. 2 MR. NOMELLINI: Okay. All right. Mr. Ward, going 3 to the two elements of the water that would be contributed 4 to the San Joaquin River Agreement, you've testified that 5 one of the elements would be bypassing inflow; is that 6 correct? 7 MR. WARD: Yes. 8 MR. NOMELLINI: And if I heard you correct, there is 9 no storage for power production purposes involved in the 10 water rights of Modesto Irrigation District? 11 MR. WARD: That's my understanding, yes. 12 MR. NOMELLINI: Okay. And I believe you testified 13 that the bypass would take place when the reservoirs were 14 full; is that correct? 15 MR. WARD: I don't believe I did say that. 16 MR. NOMELLINI: Okay. Could you explain what it is 17 that constitutes the bypass of flow to provide the water 18 under the San Joaquin River Agreement? 19 MR. WARD: If the -- maybe I can explain it the 20 other way and the converse would come out. If the inflow 21 was less than the amount that was needed to be released 22 that would come from storage. Therefore, if the amount, 23 if we were at some -- if we were at some limit back in 24 here where the inflow would otherwise force us to encroach 25 into that flood space, we'd have to bypass that water. We CAPITOL REPORTERS (916) 923-5447 14185 1 would bypass the water, we would not store it. 2 MR. NOMELLINI: Okay. Staying right there. That 3 would be the case where the reservoir was basically filled 4 to its limit, I used the term "previously full," but 5 filled to the legally permissible limit and, therefore, 6 the water would be allowed to flow, bypass the reservoir? 7 MR. WARD: Under that wet condition, that's true. 8 MR. NOMELLINI: All right. Let's stay with that wet 9 condition. Is it your testimony that Modesto would be 10 paid under the San Joaquin River Agreement for -- 11 MR. O'LAUGHLIN: Objection. Irrelevant. We went 12 through this yesterday. I mean there is no sense going 13 into the money issue. It's entirely irrelevant to 14 anything within the notice of petition. 15 C.O. STUBCHAER: I sustained that objection 16 yesterday, Mr. Nomellini. 17 MR. NOMELLINI: You don't even want to hear argument 18 on it? 19 C.O. STUBCHAER: We're not supposed to be making 20 argument now. 21 MR. NOMELLINI: On the objection, I get to argue the 22 objection, don't I? 23 C.O. STUBCHAER: It's clear on its face. 24 MR. NOMELLINI: All right. Let's see if we can't 25 leave the word "paid" out. Water during this wet CAPITOL REPORTERS (916) 923-5447 14186 1 condition is going to go by the reservoir, because it 2 legally has to go by the reservoir, correct? 3 MR. WARD: In the scenario that you've described, 4 yes. 5 MR. NOMELLINI: Okay. Now, is it your understanding 6 that that water that was allowed to go by the reservoir 7 under wet conditions, because you legally can't store it, 8 qualifies for your contribution, MID's contribution under 9 the San Joaquin River Agreement? 10 MR. WARD: It could, not necessarily -- 11 MR. O'LAUGHLIN: I'm going to object to this line of 12 questioning. Any line of questioning in this regard on 13 this question is outside the scope of the hearing, because 14 it doesn't fall within the permissible permits or licenses 15 of MID or TID. 16 1707 and 1725, the change petitions, specifically 17 address water under the permit conditions and licenses. 18 If water is truly being bypassed from the system because 19 it cannot be stored or directly to use, then it would not 20 be covered by the change petitions. That's the law. So 21 this hypothetical question is irrelevant. 22 C.O. STUBCHAER: Mr. Nomellini, you may argue. 23 MR. NOMELLINI: To me it's simply are we dealing 24 with real water or not, which is one of the topics of the 25 hearing. And I think it's very relevant -- CAPITOL REPORTERS (916) 923-5447 14187 1 MR. O'LAUGHLIN: No, because the law is on this fact 2 that under the change petitions that have been proposed to 3 the Board under 1707 and 1725, if the reservoir were at a 4 point where it could no longer store the water, or it 5 could not directly divert the water to use, then that 6 water would not be covered under MID or TID's permits or 7 licenses. And, therefore, it would not be subject to 8 appropriation. Therefore, it would not be covered under 9 this change petition. 10 Now, whether or not that's a question of whether 11 or not real water reaches the river, that's a great 12 question. That could have been answered to in II or II-A, 13 that's not applicable to change petitions, though. 14 The change petitions only cover water covered 15 under the permits and licenses. It doesn't cover bypasses 16 or spill water. If MID is in a spill condition, there's 17 no petition that's going to cover spill water. We're not 18 asking for that. So this question is irrelevant and is 19 outside the scope of the hearing. 20 C.O. STUBCHAER: Mr. Herrick. 21 MR. HERRICK: I would submit that that's just an 22 artificial construct discussing the conditions that 23 proceed, occur during and occur afterwards. What are 24 being proposed are certainly relevant to the understanding 25 of all of the issues noticed for this hearing. CAPITOL REPORTERS (916) 923-5447 14188 1 The fact that part of the conditions that may 2 exist under any scenario deal with water that isn't part 3 of this petition, doesn't have anything to do with whether 4 or not discussing the matter is relevant to uncovering 5 this -- or finding the decision here. I think it's 6 perfectly relevant. 7 MR. NOMELLINI: My last comment would be it's kind 8 of like a chicken and an egg argument. If it's not within 9 the scope of their permit, then it's certainly not subject 10 to any transfer. It's not theirs -- 11 MR. O'LAUGHLIN: We're not transferring water. 12 MR. NOMELLINI: -- they shouldn't be able to get any 13 credit for it. If it is within their permit, then it 14 falls clearly within the scope of this, but this is 15 cross-examination again. 16 We ought to find out what it is the water -- what 17 the water is that they intend to provide under the San 18 Joaquin River Agreement and we're pursuing now. 19 O'Laughlin is answering for these people, their attorney 20 is right up here at the table, did not object as to what 21 the source of water is that they're providing under the 22 San Joaquin River Agreement. 23 MR. O'LAUGHLIN: Well, I -- 24 C.O. STUBCHAER: Just a moment. Mr. Godwin is next. 25 MR. GODWIN: Mr. Nomellini just hit the nail on the CAPITOL REPORTERS (916) 923-5447 14189 1 head. This is not water that we're storing; therefore, 2 it's not part of this hearing and it's not part of our 3 petition and should be excluded. 4 MR. NOMELLINI: It's in the testimony. 5 C.O. STUBCHAER: Just a moment. Mr. O'Laughlin. 6 MR. O'LAUGHLIN: And pursuant to the letter I sent 7 to the State Water Resource Control Board, this is not a 8 transfer of water. This is a change petition under 1707 9 and 1725. There is no transfer of water taking place 10 here. 11 So under his hypothetical, if water is spilling 12 or being bypassed, that's not transferable water. And if 13 it's being bypassed or spilled and it can't be directly 14 diverted or stored, it's not covered under the permits; 15 therefore, it's not part of this hearing. 16 That's like saying we're going to cover 17 everything -- our change petition does not cover every 18 drop of water that bypasses or goes through the New Don 19 Pedro system. It's specifically covered under our permits 20 and licenses. 21 C.O. STUBCHAER: Mr. Nomellini, last word. Then 22 we're going to take our break and we'll consider it during 23 the break. 24 MR. NOMELLINI: That's fair enough. The testimony 25 deals -- the testimony specifically deals with the CAPITOL REPORTERS (916) 923-5447 14190 1 bypassing of inflow. It's in the testimony. I should be 2 able to cross-examine on it. 3 The parties that are objecting to having it 4 included within the relevant scope of the hearing are the 5 ones that produced it. And, therefore, it's here, it's 6 relevant testimony. Nobody objected to the relevance of 7 the testimony when they submitted it, I didn't. And, 8 therefore, I ought to be able to cross-examine on it. 9 C.O. STUBCHAER: Okay. Thank you. We will take 10 this matter under advisement. We'll rule at the end of 11 the break. We're on the break now. 12 (Recess taken from 10:31 a.m. to 10:44 a.m.) 13 C.O. STUBCHAER: Come back to order. The objections 14 are overruled. 15 Please, proceed, Mr. Nomellini. 16 MR. NOMELLINI: Thank you. Would you read the 17 question back. Since it was such a sensitive issue, I 18 think I better stay with the exact phraseology. 19 (Whereupon the question was read back by the Reporter.) 20 C.O. STUBCHAER: Thank you. 21 MR. WARD: Again, trying to get back into the 22 scenario that we're talking of a wet condition, where 23 we're near the flood re-op line, it is my understanding 24 that component of the flow would be part of the VAMP 25 contribution. Is that -- CAPITOL REPORTERS (916) 923-5447 14191 1 MR. NOMELLINI: Well, the exact question was read 2 back to you and the answer that I would give you would be, 3 yes. Is that bypass flow, under those conditions, a 4 qualified contribution under the San Joaquin River 5 Agreement? 6 MR. WARD: As I started to answer before, I believe 7 it could. 8 MR. NOMELLINI: Okay. Under what circumstance could 9 that particular bypass flow qualify? 10 MR. WARD: If it were a VAMP year where there was 11 one of the controlled objectives at Vernalis was 12 achievable, it could. If the flow at Vernalis was, say, 13 at somewhere far greater than 7,000 cfs, it's outside the 14 range of the experiment. We would in flood operations and 15 it would not. 16 MR. NOMELLINI: Okay. Now, with regard to bypass 17 flows where the reservoir had space that could be legally 18 utilized, would that type of bypass reduce the carryover 19 storage of the reservoir? 20 MR. WARD: It could, yes. 21 MR. NOMELLINI: And, similarly, you indicated 22 releases of stored water, those, of course, could result 23 in a reduction of carryover storage; is that correct? 24 MR. WARD: That's correct. 25 MR. NOMELLINI: All right. Now, with regard to CAPITOL REPORTERS (916) 923-5447 14192 1 reductions in carryover storage, if the following sequence 2 of years was wet, then is it not true, that the reduction 3 in carryover storage could be made up by reason of the 4 wetness of the years? 5 MR. WARD: Yes. 6 MR. NOMELLINI: All right. And under those 7 circumstances where the reduction in carryover storage due 8 to the San Joaquin River Agreement flows was made up, then 9 there would be no loss in use of that water by the Modesto 10 Irrigation District, would there? 11 MR. WARD: No, not under the condition you 12 described. 13 MR. NOMELLINI: Okay. So under the condition I 14 described there would be no loss of use because the water 15 was made up by the wetter hydrology? 16 MR. WARD: In some future date. 17 MR. NOMELLINI: All right. Now, with regard to such 18 a provision or such a release which was, in fact, made up 19 by the hydrology, would that release still qualify as a 20 contribution from MID to the San Joaquin River Agreement 21 flows? 22 MR. WARD: It's my understanding it would. 23 MR. NOMELLINI: Okay. Now, with regard to 24 reductions in carryover storage where the following years 25 were exceptionally dry, I believe you testified that there CAPITOL REPORTERS (916) 923-5447 14193 1 would be a reduction in water available to MID; is that 2 correct? 3 MR. WARD: Yes. 4 MR. NOMELLINI: All right -- 5 MR. WARD: Well, I would qualify that, surface 6 water. 7 MR. NOMELLINI: Okay. And have you analyzed the 8 potential for such a reduction in surface water for a 9 reoccurrence of years such as 1928 through 1934? 10 MR. WARD: I believe that analysis is in the EIR/EIS 11 for the project. 12 MR. NOMELLINI: Okay. And have you analyzed the 13 potential for such an occurrence for the period of years 14 such as 1987 through 1992? 15 MR. WARD: I believe that is covered in the EIR/EIS 16 evaluation. 17 MR. NOMELLINI: Okay. And the last one would be for 18 a reoccurrence of 1976 and 1977, historic hydrology? 19 MR. WARD: I believe that is included in the 20 EIR/EIS. 21 MR. NOMELLINI: All right. Now, is it your 22 understanding that a reduction in carryover storage 23 necessary for MID to provide the VAMP -- strike that -- 24 the San Joaquin River Agreement flows, would or would not 25 result in a reduction in water available with the CAPITOL REPORTERS (916) 923-5447 14194 1 reoccurrence of the hydrology for the periods that I 2 specified? 3 MR. WARD: The results of the modeling for these 4 time periods show that there was a reduced carryover 5 storage, or a diminished water supply in Don Pedro 6 Reservoir. 7 MR. NOMELLINI: Okay. And would that be for a 8 reoccurrence of the '28 through '34 period? 9 MR. WARD: I don't know how to answer that one. 10 MR. NOMELLINI: Okay. But at least for one of those 11 periods there would be such a reduction in water 12 available; is that correct? 13 MR. WARD: That is my understanding. 14 MR. NOMELLINI: All right. Now, is it true that MID 15 would draw additional water from the underground in order 16 to make up for such a reduction in storage? 17 MR. WARD: Not as a result of implementation of the 18 VAMP flows. 19 MR. NOMELLINI: Okay. 20 MR. WARD: We would do that under drought anyway. 21 MR. NOMELLINI: All right. Let's pursue that a 22 little bit. You've testified that under certain 23 conditions the VAMP flows would be provided by a release 24 from storage that could result in a reduction in water 25 available during a reoccurrence of these dry periods that CAPITOL REPORTERS (916) 923-5447 14195 1 I referred to; is that correct? 2 MR. WARD: Yes. 3 MR. NOMELLINI: Okay. Now, could you explain why 4 the additional pumping that would occur in such a dry 5 period would not be a result of the reduction in storage 6 caused by the VAMP release? 7 MR. WARD: The VAMP release -- let me back up. 8 Historically, we have always pumped groundwater and 9 operated a conjunctive use program during a drought 10 period. The contribution of the VAMP and the reduced 11 carryover storage, by itself, would not trigger any 12 increase groundwater pumpage than we have historically 13 done during drought. 14 MR. NOMELLINI: Okay. 15 C.O. BROWN: Mr. Chairman? 16 C.O. STUBCHAER: Mr. Brown. 17 C.O. BROWN: I don't understand that statement. 18 MR. NOMELLINI: I don't either. 19 C.O. BROWN: How do you know that? 20 MR. WARD: That's the risk that we're taking, that 21 it would not do it. 22 C.O. BROWN: Well, risk, risk is different than 23 knowing. 24 MR. WARD: Based upon the -- 25 C.O. BROWN: Based upon what? CAPITOL REPORTERS (916) 923-5447 14196 1 MR. WARD: -- the modeling and the probability of 2 the return frequency of the wet and dry periods. 3 C.O. BROWN: I don't understand. 4 Go ahead and continue, Mr. Nomellini. 5 MR. NOMELLINI: Okay. I don't understand either, 6 I'm going to try to pursue it a little bit. Recognizing 7 the risk is there, are you saying that you don't blame the 8 VAMP flow for this, or are you saying the VAMP flow 9 doesn't cause the need for the pumping? 10 MR. WARD: I'm saying the former. 11 MR. NOMELLINI: Okay. Now, let's stay on the 12 latter. 13 MR. WARD: Okay. 14 MR. NOMELLINI: Recognizing that it's a burden that 15 you're contracting to assume, would you agree that because 16 of the VAMP release from storage under the scenario where 17 we have a reoccurrence of these dry years, there will be 18 some increment of additional pumping even though it's 19 expected this would be the result? 20 MR. WARD: I don't know that you could positively 21 say that. 22 MR. NOMELLINI: Okay. All right. Is it your 23 contention that under no circumstance would the MID 24 contribution of VAMP flow, and I mean San Joaquin River 25 Agreement flow, would result in the need to do any CAPITOL REPORTERS (916) 923-5447 14197 1 incremental additional groundwater pumping in a 2 reoccurrence of drought years? 3 MR. WARD: That is my position. 4 MR. NOMELLINI: Okay. Mr. Fryer -- 5 MR. FRYER: Yes. 6 MR. NOMELLINI: -- with regard to TID, do you agree 7 with Mr. Ward's testimony? 8 MR. FRYER: Our plan is to take the risk in reducing 9 our carryover storage when we look at our water supply 10 planning. 11 MR. NOMELLINI: Okay. Now, putting aside risk and 12 speaking only to the question of whether or not a 13 reduction in storage that resulted in the need -- well, 14 let's go back a minute. 15 Do you agree that none of the TID water to be 16 provided under the San Joaquin River Agreement could 17 result in the need for additional groundwater pumping by 18 TID in the event of a reoccurrence of the drought? 19 MR. FRYER: As we plan to supply the water, we do 20 not see the VAMP requirements changing our groundwater 21 pumping that would come out of storage, we would take that 22 risk. 23 MR. NOMELLINI: Is the water to be provided by TID 24 from storage water that is not needed by TID? 25 MR. FRYER: I can't agree with that statement, CAPITOL REPORTERS (916) 923-5447 14198 1 because it will be needed in the future. That's what the 2 risk is about. It may not be needed in that given year, 3 but the idea of drawing upon -- taking real water out of 4 your bank account and putting it for VAMP, is that the 5 next year you may not have that carryover storage and you 6 will have reduced supply. That's the gamble. 7 MR. NOMELLINI: Okay. Let's go back through this 8 briefly. Focusing in on subsequent years, is it your 9 testimony that the provision of water for the San Joaquin 10 River Agreement from storage could reduce the surface 11 supply available to the Turlock Irrigation District? 12 MR. FRYER: Since we're conjunctively using our 13 system, yes, there could be a reduction in surface 14 supplies. 15 MR. NOMELLINI: Okay. And would that reduction in 16 surface supply create the need to increase the pumping of 17 groundwater? 18 MR. FRYER: We have three elements that we use for 19 our water supply planning: Carryover storage, anticipated 20 runoff from the snowmelt and available groundwater 21 supplies. So when we put that mixed together for each 22 year and look at our water supply, we would not be 23 increasing our groundwater pumping as a result of the 24 reduced VAMP storage that we release -- the water that we 25 release for VAMP. CAPITOL REPORTERS (916) 923-5447 14199 1 MR. NOMELLINI: Okay. Where would you get the water 2 to make up for that reduced supply from storage? 3 MR. FRYER: Our bank account drops. Every year our 4 bank account drops. If you're looking at a sequential of 5 dry years, we would have less and less carryover storage. 6 We don't think we will run out. 7 MR. NOMELLINI: Okay. So from the bank account, 8 when you say "bank account" are you saying carryover 9 storage? 10 MR. FRYER: I am. 11 MR. NOMELLINI: Okay. So that there would be ample 12 carryover storage for Turlock Irrigation District to 13 provide the water for the VAMP flows without the necessity 14 of increasing groundwater pumping? 15 MR. FRYER: That's correct. 16 MR. NOMELLINI: All right. And is it also true that 17 there would be no need for additional diversions of 18 snowmelt? 19 MR. FRYER: I don't understand that question. 20 MR. NOMELLINI: All right. You said there were 21 three elements to your supply. 22 MR. FRYER: Right. We have a right to store water 23 that comes down the system. 24 MR. NOMELLINI: Okay. 25 MR. FRYER: That's part of our water supply planning CAPITOL REPORTERS (916) 923-5447 14200 1 every year. 2 MR. NOMELLINI: All right. And we're talking about 3 a reduction of carryover storage that could not be made up 4 from the hydrology available; is that correct? 5 MR. FRYER: In a conjunctive system like ours in dry 6 years if you can't make it up from surface supplies coming 7 into the reservoir, we will increase our pumping. 8 MR. NOMELLINI: Okay. All right. In the scenario 9 in regard to Turlock Irrigation District providing the 10 VAMP flows, is it not true, then, that the water provided 11 for the VAMP flows by Turlock Irrigation District from 12 storage is extra water? 13 MR. FRYER: I wouldn't use the term "extra." 14 MR. NOMELLINI: Okay. Surplus to the needs of the 15 district during the time of the VAMP agreement, would you 16 go along with that? 17 MR. FRYER: You're looking at it on an annual basis, 18 not a prolonged basis. 19 MR. NOMELLINI: Now, what I would like you to do is 20 to look at it as if during the 12-year period of the San 21 Joaquin River Agreement hydrology as we've experienced 22 historically during the three -- 23 MR. FRYER: Right. 24 MR. NOMELLINI: -- I'll call them drought periods, 25 would reoccur. CAPITOL REPORTERS (916) 923-5447 14201 1 MR. FRYER: Okay. 2 MR. NOMELLINI: Whether or not under that 3 circumstance the provision of water by TID for the VAMP, 4 San Joaquin River Agreement flows, would necessitate an 5 increase in groundwater pumping? 6 MR. FRYER: Not to supply the VAMP. It would come 7 out of our carryover storage. We don't feel it would have 8 to be made up by increased groundwater pumping. 9 MR. NOMELLINI: All right. 10 MR. FRYER: The VAMP portion. 11 MR. NOMELLINI: Okay. So the groundwater pumping 12 would be the same for the district, TID, with or without 13 providing the VAMP flow? 14 MR. FRYER: That's correct. 15 MR. NOMELLINI: All right. And you were not 16 comfortable with the terminology of extra -- that being 17 "extra water." How would you term that water provided by 18 VAMP if it's not needed during the next 12 years in a 19 reoccurrence of the drought? 20 MR. GODWIN: I object. Mr. Fryer said he did not 21 agree with the word that it was not needed, or that it was 22 "extra." 23 MR. NOMELLINI: Okay. 24 MR. GODWIN: And you've just put that right back at 25 him. CAPITOL REPORTERS (916) 923-5447 14202 1 MR. NOMELLINI: All right. I agree with you. 2 How would you term that water, Mr. Fryer? 3 MR. FRYER: That's part of our water supply under 4 our water rights. 5 MR. NOMELLINI: All right. Fair enough. Going back 6 to Mr. Ward, you heard Mr. Fryer's testimony and is that 7 what you were trying to tell me with regard to the 8 component of water for MID? 9 MR. WARD: Yes. 10 MR. NOMELLINI: Okay. In your testimony on Page 2 11 at the top you indicate that there would be a reduction in 12 carryover storage in the Don Pedro Reservoir; is that 13 correct? 14 MR. WARD: Yes. 15 MR. NOMELLINI: All right. And then later on you 16 conclude that there would be no significant impact to 17 fish; is that correct? 18 MR. WARD: Yes. 19 MR. NOMELLINI: All right. Do you know whether or 20 not temperature impacts associated with the reduced 21 carryover storage have been analyzed? 22 MR. WARD: No, I don't. 23 MR. NOMELLINI: All right. Do you know whether or 24 not the reduction in carryover storage impacts on 25 steelhead have been analyzed? CAPITOL REPORTERS (916) 923-5447 14203 1 MR. WARD: No, I don't. 2 MR. NOMELLINI: All right. On Page 2 of your 3 testimony under question number three you say that, 4 (Reading): 5 "Yes, the primary purpose and effect of MID and 6 TID providing water for the VAMP pulse flow 7 under the San Joaquin River Agreement is to 8 enhance the natural production and migration of 9 San Joaquin basin smolts." 10 Do you see that testimony? 11 MR. WARD: Yes. 12 MR. NOMELLINI: What do you mean by "natural"? 13 MR. WARD: The native fish. 14 MR. NOMELLINI: Does "natural" exclude hatchery 15 originated fish? 16 MR. WARD: In terms of gathering the data that would 17 be part of the 12-year experiment, it's driven toward the 18 natural production, increasing the natural production. 19 MR. NOMELLINI: Are there nonhatchery origin salmon 20 in the San Joaquin River system, to your knowledge? 21 MR. WARD: Yes. 22 MR. NOMELLINI: All right. Do you know what 23 proportion of the salmon in the San Joaquin River system 24 are nonhatchery originated fish? 25 MR. WARD: No. CAPITOL REPORTERS (916) 923-5447 14204 1 MR. NOMELLINI: Okay. Do you think there are more 2 natural production salmon than hatchery originated salmon? 3 MR. WARD: I don't know. 4 MR. NOMELLINI: Okay. And you didn't do any fishery 5 studies, did you? 6 MR. WARD: No. 7 MR. NOMELLINI: So this statement is based on your 8 understanding of what fishery people were saying? 9 MR. WARD: It's my understanding of what the 10 biologists are intending to study. 11 MR. NOMELLINI: Okay. A number of these questions 12 were covered by other people, so I'm just trying to avoid 13 repetition. 14 On page four of your testimony in your reference 15 to the FERC flow schedule -- 16 MR. WARD: Yes. 17 MR. NOMELLINI: -- do you know whether or not those 18 flows are adequate to provide protection for all fish 19 species? 20 MR. CAMPBELL: Objection. That question goes to -- 21 excuse me. Mr. Chairman, that question goes to 22 determination of what is necessary to protect public trust 23 resources instream upstream. 24 As set forth in the Board's Revised Notice of 25 Public Hearing date May 6th that issue is not properly CAPITOL REPORTERS (916) 923-5447 14205 1 before the Board in this hearing. There's been some 2 argument regarding that very issue in which the Board, 3 again, ruled in response to a motion made by Central Delta 4 Parties that, indeed, those issues are not part of this 5 hearing. So on that basis I'll object to the question on 6 the grounds of relevance. 7 C.O. STUBCHAER: Mr. Nomellini. 8 MR. NOMELLINI: In his testimony Mr. Ward includes 9 the request that, 10 (Reading): 11 "When you consider the flows committed under 12 the San Joaquin River Agreement the Board 13 should keep in mind the district's efforts to 14 improve fishery." 15 And cites the FERC flows. And I wanted to ask 16 him, I did ask him whether or not he knows if those flows 17 are adequate to protect fish. So the relevance is it's in 18 his testimony. And I'm cross-examining. I'm not creating 19 a new subject. 20 C.O. STUBCHAER: Mr. Campbell. 21 MR. CAMPBELL: I think the statement that he has 22 made within his testimony is relevant in that its 23 providing the Board with some background information as to 24 existing baseline conditions in the river. Anything 25 beyond that goes to the question that the Board has CAPITOL REPORTERS (916) 923-5447 14206 1 repeatedly ruled is irrelevant in this proceeding. 2 C.O. STUBCHAER: Mr. O'Laughlin. 3 MR. O'LAUGHLIN: One other note under the 1707 and 4 1725 petitions, it's not a question of whether or not the 5 proposed petition will adequately protect fish. It's 6 whether or not the proposed flows or change petition will 7 benefit fish. 8 So the difference in terminology is significant, 9 because his question is: Is it adequate to protect fish? 10 Whereas under the 1707 or 1725 petition it is whether or 11 not it will benefit fish. Two different questions. 12 C.O. STUBCHAER: The question is whether he knew. 13 Time-out. 14 (Off the record from 11:17 a.m. to 11:18 a.m.) 15 C.O. STUBCHAER: The objection is overruled. 16 MR. NOMELLINI: Mr. Ward, do you remember the 17 question? 18 MR. WARD: Yes, and no, I don't know. 19 MR. NOMELLINI: Okay. I didn't think you did. With 20 regard to the reduction in surface supply that would 21 result from reduced carryover storage caused by releases 22 for the San Joaquin River Agreement, do you have an 23 estimate of the maximum amount that that could possibly 24 be? 25 MR. WARD: The EIR/EIS estimates that to be 24,000 CAPITOL REPORTERS (916) 923-5447 14207 1 acre-feet. 2 MR. NOMELLINI: And would that be for both MID and 3 Turlock combined? 4 MR. WARD: That's in the river system, yes, that 5 would be. 6 MR. NOMELLINI: Okay. Mr. Fryer, do you agree with 7 that? 8 MR. FRYER: I have not read the EIR, so I could not 9 say. 10 MR. NOMELLINI: You're lucky. All right. Do you 11 agree that increasing groundwater pumping within the 12 Modesto Irrigation District -- hypothetically, if that 13 were to occur -- would reduce the amount of return flow 14 that would accrete to the river systems using Mr. Ward's 15 definitions? 16 MR. WARD: Is that an objection I heard? 17 C.O. STUBCHAER: No. 18 MR. WARD: It could. 19 MR. NOMELLINI: Okay. That's all I have. Thank 20 you. 21 C.O. STUBCHAER: Mr. Nomellini. 22 Any questions by staff? 23 MS. LEIDIGH: I don't have any questions. Do you? 24 MR. HOWARD: Just a brief question or two to Mr. 25 Fryer in order to clarify some of the testimony. CAPITOL REPORTERS (916) 923-5447 14208 1 ---oOo--- 2 CROSS-EXAMINATION OF THE MODESTO AND TURLOCK 3 IRRIGATION DISTRICTS 4 BY STAFF 5 MR. HOWARD: Your assessment that you'll be able to 6 meet all of the demands in your district without any 7 reductions as a result of implementation of the VAMP, is 8 that conclusion based on the modeling done by Mr. Steiner? 9 MR. FRYER: No. That was -- I am not familiar with 10 his modeling. I was looking at the '87 to '92 drought and 11 the amount of carryover storage that we had left in that 12 drought. And that's one of the years modeled and we would 13 have water left to meet the VAMP requirements out of that 14 carryover storage. 15 MR. HOWARD: So your conclusion is based pretty much 16 exclusively on the '87 to '92 period? 17 MR. FRYER: That's my -- yes. 18 MR. HOWARD: Looking at Mr. Steiner's modeling for 19 '87 to '92 it appears as though in almost all the years 20 there is, in fact, no VAMP flows required during that 21 period. Is that true? 22 MR. FRYER: I haven't seen the study, but if that's 23 what it says. I did not look at it in relation to whether 24 or not VAMP was required, it was if I could meet it where 25 would it come from. CAPITOL REPORTERS (916) 923-5447 14209 1 MR. HOWARD: All right. Thank you. That's all. 2 C.O. STUBCHAER: Mr. Brown? 3 C.O. BROWN: I have some, Mr. Chairman. 4 ---oOo--- 5 CROSS-EXAMINATION OF THE MODESTO AND TURLOCK 6 IRRIGATION DISTRICTS 7 BY THE BOARD 8 C.O. BROWN: As a matter of interest, Mr. Ward, 9 Mr. Fryer, thanks for being here, but I've known Mr. Fryer 10 for a good number of years since the Oakdale Irrigation 11 District days. And I remember about ten years ago Wilt 12 asked me to write a letter for him for TID, I can't 13 remember if he asked me to write the letter in favor or 14 against him, though. 15 It's nice to have you here. 16 MR. FRYER: Thanks. 17 C.O. BROWN: Let me give you a little bit of 18 background to let you know where I think we're coming 19 from. And I want to back up to get a bigger picture 20 approach what we're doing here. There is a couple things 21 we're doing. 22 One is to protect the legal users downstream and 23 also to protect the beneficial uses that's currently 24 occurring, I guess where they're apparently legal or not, 25 but with that in mind I'd like to ask you a few questions. CAPITOL REPORTERS (916) 923-5447 14210 1 And the best I remember, at least you, Mr. Fryer, you're a 2 registered agricultural engineer? 3 MR. FRYER: Yes, I am. 4 C.O. BROWN: Registered civil engineer, if I 5 remember correct? 6 MR. FRYER: That's correct. 7 C.O. BROWN: Has -- and either of you can answer 8 these questions for your districts -- have either of you 9 developed a water master plan for your districts? 10 MR. WARD: Modesto Irrigation District has what's 11 called an irrigation master plan. We also have an AB 3030 12 groundwater management plan. 13 MR. FRYER: We also have an AB 3030 plan and we are 14 in the process of taking to the Board next week and AB 15 3616 water management plan for their review. 16 C.O. BROWN: In your water master plans have you 17 developed a water balance for existing needs and projected 18 water needs? 19 MR. FRYER: Yes, for our AB 3616 plan we put 20 together a water balance. 21 C.O. BROWN: What's your long-term -- your sources 22 of supply are two. I heard you mention three or four a 23 while ago, but one is surface water and one is 24 groundwater, unless you have reclaimed water. Are you 25 using reclaimed water? CAPITOL REPORTERS (916) 923-5447 14211 1 MR. FRYER: On about 1500 acres. 2 C.O. BROWN: So you have three sources of supply, 3 then: Reclaimed water, surface water and groundwater. 4 MR. FRYER: Three, if you want to count the small 5 amount of reclaimed, yes. It's principally two. And the 6 groundwater we consider to be an extension of our surface 7 supplies, because it's a conjunctively used basin, we fill 8 it up, we take it back out. 9 MR. WARD: And same is true for Modesto, too. 10 C.O. BROWN: Have you done long-term averages of 11 supplies as you're currently using in your water master 12 plan for a water balance supply versus demand? 13 MR. FRYER: Yes, we have. 14 C.O. BROWN: What are your average supplies right 15 now for surface water, long-term average? 16 MR. FRYER: Surface water is about 550,000, 600,000 17 depending on the water year. 18 C.O. BROWN: And how much groundwater do you average 19 pumping? 20 MR. FRYER: In a wet year or a normal year it would 21 be about 50,000 acre-feet. It will go up to about 100, 22 150,000 acre-feet depending on the drought. 23 C.O. BROWN: Yeah, but long-term average about 24 50,000? 25 MR. FRYER: Closer to 75. CAPITOL REPORTERS (916) 923-5447 14212 1 C.O. BROWN: 75. So if I add those two up, assuming 2 that the reclaimed water is in the 550 -- 3 MR. FRYER: The 1500 feet, yeah. 4 C.O. BROWN: 1500 feet, so that comes out to about 5 625,000 acre-feet of total long-term average supply, 6 right? 7 MR. FRYER: Yes. 8 C.O. BROWN: What's your M&I demand for that? 9 MR. FRYER: I don't have that off the top of my 10 head. We have about 15,000 acres of M&I land. And if you 11 assume the same usage of ag it would be close. 12 C.O. BROWN: It would be about 45,000 acre-feet, 13 then? 14 MR. FRYER: I think it's closer to 35. I'm trying 15 to dig back into my mind. 16 C.O. BROWN: That's all right, just rough numbers 17 and I understand, so don't worry if we're off a little 18 bit. So that gives you about 595,000 or 600,000 acre-feet 19 for all other purposes other than M&I. 20 MR. FRYER: That's only if you look at our district 21 boundaries. We've got 60,000 acres east of us with no 22 surface supply that are sucking the groundwater out from 23 under us. 24 C.O. BROWN: No, just what you're using now, not 25 what other demands might or may be, just you. CAPITOL REPORTERS (916) 923-5447 14213 1 MR. FRYER: That would be our in-district demand, 2 yes. 3 C.O. BROWN: So if we're looking at TID, your total 4 supply, excluding groundwater or excluding M&I, is about 5 595,000 acre-feet annually? 6 MR. FRYER: Roughly. 7 C.O. BROWN: How many acres do you irrigate? 8 MR. FRYER: 150,000. 9 C.O. BROWN: How many? 10 MR. FRYER: 150,000. 11 C.O. BROWN: 150,000. So that gives you about four 12 acre-feet per acre applied water rate? 13 MR. FRYER: That's right. 14 C.O. BROWN: That's not a bad figure. 15 C.O. STUBCHAER: Mr. Brown, do the fish flows come 16 out of that total? 17 MR. FRYER: They're on top of that total. 18 C.O. BROWN: This is irrigation supply. So about 19 four acre-feet per acre. And here's my concern: That's 20 not a bad figure. What's your cropping patterns, your 21 major ones? 22 MR. FRYER: Oh, boy, you are going to test my 23 memory. Don't quote me on this, I believe about 45,000 24 acres of almonds. 25 C.O. BROWN: I just bragged about you earlier, now CAPITOL REPORTERS (916) 923-5447 14214 1 so -- 2 MR. FRYER: I don't compile these figures so -- 3 C.O. BROWN: Oh, roughly, what are your main crops? 4 MR. FRYER: Main crops, as I said, almonds is about 5 45,000 acres; other trees and vines constitute another 6 15,000. 7 C.O. BROWN: Okay. 8 MR. FRYER: About 25,000 acres of alfalfa and the 9 bulk of the rest of it would be in corn rows -- oh, and 10 20,000 acres pasture. 11 C.O. BROWN: So the average consumptive use is 12 probably around 3 acre-feet just the CU? 13 MR. FRYER: Pretty close, maybe a little higher than 14 that with some of the alfalfa. 15 C.O. BROWN: So your district has about a 75 or 80 16 percent overall average for irrigation efficiency? 17 MR. FRYER: Probably closer to 75. 18 C.O. BROWN: 75 percent and that's pretty good. Do 19 you have much furrow irrigation in your district? 20 MR. FRYER: It's almost all flood on a seal basin, 21 so if there is any loss it would be deep percolating. 22 C.O. BROWN: Those in your basin probably would not 23 be lost, you would recover? 24 MR. FRYER: We recover with the drainage pumping we 25 do. CAPITOL REPORTERS (916) 923-5447 14215 1 C.O. BROWN: All right. So with the 75-percent 2 irrigation efficiency it would appear that most of the 3 water, the surface water that you have allocated to you is 4 being put to beneficial use? 5 MR. FRYER: That's what we feel. 6 C.O. BROWN: Do you have much tailwater in the 7 district since you have flood water? 8 MR. FRYER: Very little tailwater, because our 9 requirements are closed basins so that there's, 10 essentially, no tailwater on probably 80 percent of the 11 district. And the areas where we do have tailwater, it's 12 to the east and that's recovered back into the system. 13 C.O. BROWN: Do you have much water that's lost 14 through operations? 15 MR. FRYER: Our operational spills, the end of our 16 laterals would be the biggest amount of water leaving the 17 system. 18 C.O. BROWN: But you need those to operate a gravity 19 system, so there's not much slack that you have in your 20 operational spills, I would suspect? 21 MR. FRYER: As I said earlier, they will vary from 5 22 to maybe 12 to 15 percent depending on the water year. A 23 wet year, they tend to be higher, a dry year there's more 24 pumps at the bottom end so we can regulate it better. 25 C.O. BROWN: Don't you pick those operational spills CAPITOL REPORTERS (916) 923-5447 14216 1 back up and then put them into your canal, or into OID's, 2 or something like that? 3 MR. FRYER: We pick the operational spills from two 4 of our lateral systems back up in a lower lateral we 5 cascade down, but the final ones we do have several spills 6 to the river. 7 C.O. BROWN: All right. Those spills probably would 8 not change with your gravity flow system. There's 9 probably not much you could do to those, I would suspect, 10 to decrease those spills although there might be some if 11 you put in some regulating facilities. 12 MR. FRYER: The only thing that we're looking at at 13 this point is regulating facilities. And at quite a bit 14 of expense, you would recover some of that water, but not 15 all of it. 16 C.O. BROWN: Okay. Well, if we're looking at 17 long-term averages now and you have an irrigation 18 efficiency of 75 percent and applied water rate of four 19 feet per acre, whereabouts is the additional water going 20 to come from to meet the VAMP, or the San Joaquin River 21 Agreement? Where are you going to take out of that to do 22 that, long-term average? 23 MR. FRYER: Long-term average the VAMP, in our case, 24 I believe is only 11,000 acre-feet. 25 C.O. BROWN: How much? CAPITOL REPORTERS (916) 923-5447 14217 1 MR. FRYER: I believe our share is very small. 2 C.O. BROWN: That's all right. Whatever it is. 3 MR. FRYER: That's why we designated it to come out 4 of storage. 5 C.O. BROWN: Well, wait a minute. I don't mean the 6 source, I mean the facility that it comes out of. 7 MR. FRYER: It would come out of Don Pedro. 8 C.O. BROWN: I don't mean the facility. I mean in 9 the designated use that you currently have that we just 10 discussed, the four acre-feet per acre -- 11 MR. FRYER: Right. 12 C.O. BROWN: -- where is it coming from? 13 MR. FRYER: That four acre-feet per acre is that mix 14 of surface and groundwater. The VAMP water is coming out 15 of our stored water. 16 C.O. BROWN: No. No, long-term average balance. I 17 don't want the facility. I want to know what use that 18 that water is coming from, what current use? 19 MR. FRYER: We are not changing the use in the 20 district to make up for the VAMP water. 21 C.O. BROWN: I know that. You're not changing 22 cropping patterns. 23 MR. FRYER: Right. 24 C.O. BROWN: You're not changing irrigation 25 efficiency. They remain the same. Operational spills CAPITOL REPORTERS (916) 923-5447 14218 1 remain the same. You're using 595,000 acre-feet of water, 2 long-term averages to irrigate 150,000 acres for crops. 3 MR. FRYER: Right. 4 C.O. BROWN: That's the status quo. Now, if you 5 take one acre-foot out of that 400 -- or 595,000 6 acre-feet, it's got to come off of a field somewhere, or 7 you have to fallow some land, or you've got to improve 8 irrigation efficiency, or something. So the question is 9 this: 10 Where's it coming from? 11 MR. FRYER: We're not planning on changing our 12 irrigation practices to generate, conserve water for VAMP. 13 We feel because of our operations and the hydrology and 14 the fact that we have got the storage we're going to 15 reduce storage. We're not going to depend on -- 16 C.O. BROWN: No. 17 MR. FRYER: I understand what you're doing on a 18 water balance standpoint, but that's not what we're doing 19 to generate the VAMP water. 20 C.O. BROWN: I know that and these are the answers 21 that I heard and I'm not satisfied with those. I want an 22 answer to know where that water is coming from and not 23 that it's coming out of a reservoir, or other groundwater. 24 You're using all the water that's being supplied 25 to you efficiently. You're irrigating 150,000 acres of CAPITOL REPORTERS (916) 923-5447 14219 1 crops, you've got 75 percent of irrigation efficiency and 2 that's all well and good and that's proper in my mind. 3 Now, if you take one acre-foot out of that total 4 supply of surface and groundwater that you're currently 5 using, then somewhere along the way somebody is going to 6 miss one acre-foot unless you make it up somewhere. 7 MR. FRYER: All right. I understand what you're 8 saying from a hypothetical basis. The quantity of water 9 that we're dealing with on the VAMP, from our standpoint, 10 is such a small portion of our supply that we are not 11 planning to change any activities on the land and the 12 deliveries. 13 Theoretically you're speaking, yes, something has 14 to give in a water balance, but we did not take it down to 15 that level of detail in our analysis. 16 C.O. BROWN: That's what we need to know. 17 MR. FRYER: If you look at that water scenario that 18 you just painted, there is water in the reservoir and 19 that's why we feel it would come from there. 20 C.O. BROWN: That's the source that it comes from, 21 or the facility. 22 MR. FRYER: That's right. 23 C.O. BROWN: That is not the water balance and that 24 is not the question. 25 MR. FRYER: I understand that, but I'm not in a CAPITOL REPORTERS (916) 923-5447 14220 1 position to say we're changing anything in our water 2 balance calculations as we discussed to this point to 3 generate that VAMP water. 4 C.O. BROWN: The concern is this, Mr. Fryer -- and I 5 recognize that 10- or 11,000 acre-feet in a total supply 6 of 595,000 acre-feet is not a large percentage. 7 The concern is that you have spoken about risk, 8 that you're willing to take the risk. And I haven't 9 figured out what that risk is yet. To me the risk is 10 this, and you can correct me or make it a proper 11 statement, this is not the risk. 12 The risk is: That if things do go south on you 13 in a water year and you do dedicate those waters as you're 14 speaking of, and you still have the same 150,000 acres to 15 irrigate, the risk appears that you would use more 16 groundwater to make it up. And if that's the risk, then 17 we want to know that. The other people want to know it. 18 And we're not getting that answer. 19 MR. FRYER: Let me ask a question back: If we're 20 looking at the groundwater storage and the Don Pedro 21 storage as a combined supply, whether we take it out of 22 groundwater or we take it out of our surface storage, it's 23 still stored water. 24 C.O. BROWN: That's all I have. Thank you, 25 Mr. Chairman. CAPITOL REPORTERS (916) 923-5447 14221 1 Thank you, Mr. Fryer. 2 C.O. STUBCHAER: Okay. That concludes the 3 cross-examination of this panel. 4 Mr. Godwin, do you have any redirect? 5 MR. GODWIN: Yes. Could I take a few moments before 6 I start my redirect? 7 C.O. STUBCHAER: Sure. 8 MR. GODWIN: Okay. Five minutes at the most. 9 C.O. STUBCHAER: Five minutes? 10 MR. GODWIN: Yeah, if you don't mind. 11 C.O. STUBCHAER: All right, five-minute recess. 12 (Recess taken from 11:36 a.m. to 11:44 a.m.) 13 C.O. STUBCHAER: Okay. Back on the record. 14 ---oOo--- 15 REDIRECT EXAMINATION OF MODESTO AND TURLOCK 16 IRRIGATION DISTRICTS 17 BY MR. GODWIN 18 MR. GODWIN: Mr. Ward and Mr. Fryer, both, earlier 19 you testified that subsurface accretions would return back 20 to the river during the same time frame as the 21 March/October irrigation season; is that correct? 22 MR. WARD: Not entirely. That is the time period 23 when the water is applied, but there would be potential 24 return flow, subsurface, you know, year-round as the river 25 and groundwater system interacts. CAPITOL REPORTERS (916) 923-5447 14222 1 MR. GODWIN: And aren't there depletions from the 2 river, water flows from the river into the groundwater 3 system also? 4 MR. WARD: Different reaches of the river, it can be 5 both a gaining stream or a losing stream. 6 MR. GODWIN: Okay. Mr. Ward, you agreed that, if 7 necessary, to meet water quality conditions that it would 8 be appropriate to add a term of condition to the license; 9 is that right? 10 MR. WARD: Yes, I did. 11 MR. GODWIN: Now, it's your understanding based on 12 the studies there would be no impacts of water quality as 13 a result of implementing the San Joaquin River Agreement, 14 no harmful impacts to the water quality? 15 MR. WARD: That's correct. 16 MR. GODWIN: So in actuality, then, a term or 17 condition would not be needed for the license; is that 18 right? 19 MR. WARD: Would not be appropriate, right. 20 MR. GODWIN: Mr. Ward, you testified that the 21 districts, because of their storage, can capture water in 22 excess of their needs; is that right? 23 MR. WARD: I believe I used words to that effect, 24 yes. 25 MR. GODWIN: You were referring, though, to the CAPITOL REPORTERS (916) 923-5447 14223 1 annual needs of the district? 2 MR. WARD: That's correct. During that -- 3 MR. GODWIN: In other words, there's more storage in 4 the reservoir than Modesto Irrigation District needs on an 5 annual basis? 6 MR. WARD: Yes. 7 MR. GODWIN: In fact, in reality, really the Modesto 8 Irrigation District needs storage for future years; is 9 that right? 10 MR. WARD: Yes. 11 MR. GODWIN: And among the beneficial uses for that 12 storage the districts use that water for irrigation; is 13 that right? 14 MR. WARD: Yes. 15 MR. GODWIN: Municipal and industrial uses? 16 MR. WARD: Yes. 17 MR. GODWIN: Fish and wildlife needs in the river? 18 MR. WARD: Yes. 19 MR. GODWIN: Power production? 20 MR. WARD: Yes. 21 MR. GODWIN: And recreation? 22 MR. WARD: Yes. 23 MR. GODWIN: You also testified that the district 24 does not have a license to store water for power; is that 25 correct? CAPITOL REPORTERS (916) 923-5447 14224 1 MR. WARD: I think I misunderstood the question. At 2 the time I thought the question was asking if there was a 3 division of water that was allocated for that purpose. 4 And there is not that, but there is a right to the stored 5 water for power production purposes. 6 MR. GODWIN: Okay. Thank you. Now, I'd like to 7 address some issues that Mr. Brown had raised regarding 8 real water. And I think part of the confusion is stemming 9 from some concerns about definitions and what is real 10 water and what is not real water. 11 MR. JACKSON: Excuse me? 12 C.O. STUBCHAER: Mr. Jackson. 13 MR. JACKSON: Mr. Birmingham is not here, so I'll 14 make his objection. The questions should be asked. There 15 should not be statements made. In the course of the 16 question, there are testimony. And I do believe that we 17 were just getting testimony from the attorney. 18 C.O. STUBCHAER: Mr. Godwin. 19 MR. GODWIN: This is redirect. And the Board 20 previously has asked us, when we do our redirect, to 21 reference what we're redirecting the testimony to. And 22 that's why I'm giving some background. 23 C.O. STUBCHAER: All right. The objection is 24 overruled. 25 MR. GODWIN: Thank you. If necessary the San CAPITOL REPORTERS (916) 923-5447 14225 1 Joaquin River Group will be putting on a panel in 2 rebuttal, but there's some things that I would like to 3 address with respect to Turlock and Modesto Irrigation 4 Districts. 5 I have with me a document entitled "Water 6 Transfers in California, Translating Concepts into 7 Reality." It's dated November 1993. And it was published 8 by the Department of Water Resources. 9 On Page 9 there's a definition of "new water." 10 I'm going to ask Mr. Ward to read that definition of "new 11 water." 12 MR. NOMELLINI: Could you tell us what exhibit 13 number that is? 14 MR. GODWIN: It's not an exhibit. 15 C.O. STUBCHAER: Are you going to make that an 16 exhibit, Mr. Godwin? 17 MR. GODWIN: I had not planned to, but I can if the 18 Board would like me to make it an exhibit. I don't 19 believe it's a staff exhibit. 20 C.O. STUBCHAER: Mr. Nomellini. 21 MR. NOMELLINI: Yeah, the rules of the game on 22 direct and redirect, for that matter, these exhibits are 23 supposed to be produced ahead of time so we have an 24 opportunity to review them and cross -- 25 MR. GODWIN: I'm not offering this document for CAPITOL REPORTERS (916) 923-5447 14226 1 testimony. I'm only asking Mr. Ward to read the 2 definition in the document. 3 C.O. STUBCHAER: Mr. Jackson. 4 MR. JACKSON: Well, I have the same objection. 5 We're introducing a -- by reference -- a new document to 6 do a definition that none of us have ever seen before. We 7 don't know whether this paper is just a thin piece, 8 whether it's an official position. It completely takes us 9 at a disadvantage. And in redirect, we're not going to 10 have any chance to deal with this document if we've never 11 seen it. 12 MR. GODWIN: I'm not going to have any witnesses 13 that will be able to testify. About that document itself, 14 whether or not it's an official document or what, I'm just 15 offering it so Mr. Ward can read the definitions that are 16 contained in the document. 17 MR. JACKSON: Then it's hearsay and is hearsay of 18 the worse kind, because it's going to go into the record 19 as if it was one thing and none of us are going to have 20 any opportunity to show you what it really is. 21 C.O. STUBCHAER: Mr. O'Laughlin. 22 MR. O'LAUGHLIN: No, I'm going to stay out of this 23 one. 24 C.O. STUBCHAER: All right. Mr. Godwin, we're going 25 to sustain the objection as far as redirect is concerned. CAPITOL REPORTERS (916) 923-5447 14227 1 You can probably bring it in in rebuttal time. But as far 2 as reading from this document here, the objection is 3 sustained. 4 MR. GODWIN: All right. Thank you. 5 C.O. BROWN: Mr. Chairman? 6 C.O. STUBCHAER: Mr. Brown. 7 C.O. BROWN: That does not preclude, though, 8 Mr. Godwin, if you want to ask these gentlemen what their 9 thoughts are, or definition of what "real water" is, they 10 can go ahead and give us their opinion, with your 11 concurrence, Mr. Chairman. 12 C.O. STUBCHAER: Well, should we have just read the 13 definition? 14 MR. GODWIN: This document is a public document and 15 I ask that it be incorporated by reference into the record 16 and that the State Board take official notice of this 17 document. 18 C.O. BROWN: He just ruled. 19 C.O. STUBCHAER: Ms. Leidigh. 20 MS. LEIDIGH: I think, first, we need to sort of 21 back up. There was a question that was out there that had 22 been asked and the objection was sustained. At this point 23 we don't have a question out there about anything that is 24 in this document. 25 C.O. STUBCHAER: But the request is that we take CAPITOL REPORTERS (916) 923-5447 14228 1 official notice of this document. 2 MS. LEIDIGH: Right. 3 C.O. STUBCHAER: So the question is: Is that 4 appropriate at this point in time? Do copies need to be 5 made available to the other parties or what? 6 MS. LEIDIGH: I think copies probably should be made 7 available. I do not know that it is a document that is in 8 the Board's records, or that could be referenced under the 9 rules for offering documents by reference. So I think it 10 would need to be provided to all the parties. 11 MR. NOMELLINI: Well, Mr. Chairman, for the orderly 12 process of the hearing it should be given an exhibit 13 number as well and referenced in that fashion. And I 14 think the solution to this thing is distribute it, bring 15 it back up on rebuttal and we can deal with it then. 16 But we would like to look at the document if it's going to 17 be dealt with somewhere in the process. 18 C.O. STUBCHAER: All right. 19 MR. GODWIN: The only reason I'm bringing this 20 document up is because of questions raised by Mr. Brown; 21 otherwise, this document probably wouldn't be used in 22 rebuttal. I'm responding directly to questions raised by 23 Board Member Brown. 24 C.O. STUBCHAER: But it is a new document that would 25 be relied on. It's kind of surprise evidence. CAPITOL REPORTERS (916) 923-5447 14229 1 MR. GODWIN: But we're -- 2 C.O. STUBCHAER: As Mr. Brown said, the witnesses 3 can provide their own definition of what "new water" is. 4 You used the term "real water" and "new water"; they can 5 tell us if it's synonymous or what it is. 6 MR. WARD: I'm not familiar enough with the term to 7 offer an opinion on that. 8 MR. GODWIN: I have no further questions. 9 C.O. STUBCHAER: All right. Who wishes to 10 cross-examine on redirect after lunch? No one. All 11 right. 12 Staff have any questions on the redirect? 13 MR. HOWARD: I'll ask one -- 14 C.O. STUBCHAER: Right now? 15 MR. HOWARD: No. Thank you. 16 C.O. STUBCHAER: Mr. Brown? 17 C.O. BROWN: No, sir. 18 C.O. STUBCHAER: Okay. That concludes the 19 examination of this panel. And I presume the exhibits 20 will be dealt with at the close of your case in chief? 21 MR. GODWIN: Yes, that's right. 22 C.O. STUBCHAER: All right. With that we will 23 adjourn for lunch and we'll resume at 1:00 p.m. 24 (Luncheon recess.) 25 ---oOo--- CAPITOL REPORTERS (916) 923-5447 14230 1 THURSDAY, JUNE 10, 1999, 1:00 P.M. 2 SACRAMENTO, CALIFORNIA 3 ---oOo--- 4 C.O. STUBCHAER: Come back to order. 5 Mr. Sexton, good afternoon. 6 ---oOo--- 7 DIRECT TESTIMONY OF THE SAN JOAQUIN RIVER 8 EXCHANGE CONTRACTORS 9 BY MR. SEXTON 10 MR. SEXTON: Good afternoon, Mr. Stubchaer. Michael 11 Sexton appearing on behalf of the San Joaquin River 12 Exchange Contractors, who for purposes of Phase II-B are 13 members and join in the testimony of the San Joaquin River 14 Group Authority. 15 The panel that we have put together for you today 16 will hopefully address hearing issue number seven. They 17 will be discussing with the Board: Changes in groundwater 18 pumping rates and quantities, implementation of water 19 conservation measures within the exchange contract service 20 area and deliveries of water. And will, in so doing, 21 demonstrate that the water that is being made available 22 through those projects is, essentially, real water to 23 address that hearing issue. 24 Each of the members have been sworn already. I'd 25 like to introduce the panel. We have closest to me, CAPITOL REPORTERS (916) 923-5447 14231 1 Mr. Steve Chedester who serves as the executive director 2 for the Exchange Contractors. Next to Steve is Jeff 3 Bryant, who is the manager of Firebaugh Canal Water 4 District, one of the exchange contract members. And next 5 to Jeff is Chris White who is the manager and chief 6 engineer of Central California Irrigation District, also 7 one of the exchange contractors. 8 C.O. STUBCHAER: Good afternoon, gentlemen. 9 THE PANEL: Good afternoon. 10 MR. SEXTON: I'd like to start off with 11 Mr. Chedester giving an overview of the exchange contract 12 service area and exchange contract and its water 13 allocations. 14 And I would direct the Board's attention to SJREC 15 Exhibit 8, which is the large map on the board which is 16 just a large colorized version of the map that was 17 submitted along with our testimony which was submitted to 18 you in evidence. 19 Steve, would you walk the Board through the 20 service area of the Exchange Contractors using Exhibit 8, 21 please. 22 MR. CHEDESTER: Certainly. Good afternoon, Members 23 of the Board. As Mike had mentioned, the Exchange 24 Contractors Water Authority is made up of four different 25 water agencies. The four districts are to the south. And CAPITOL REPORTERS (916) 923-5447 14232 1 on the east side of the San Joaquin River is Columbia 2 Canal Company, it's in green on this map. 3 To the west side of the San Joaquin River is 4 Firebaugh Canal Water District. It's in sort of an aqua 5 color on the map. We have CCID, which begins at Mendota 6 Dam and runs in a northerly direction all the way up to 7 Crows Landing. And then we have San Luis Canal Company, 8 which is in the blue. 9 And each of the districts are -- Columbia Canal 10 Company is about 16,000 acres; Firebaugh Canal Water 11 District is about 22,000 acres; CCID is approximately 12 145-, and 150,000 acres; San Luis Canal Company is 13 approximately 50,000 acres for a total of 225,000 14 irrigable acres. The Exchange Contractors divert most of 15 their water, if not all of it, at the Mendota Dam. Part 16 of it also is diverted at Sac Dam. And on Exhibit -- 17 MR. SEXTON: 8. 18 MR. CHEDESTER: -- 8 Sac Dam is approximately right 19 here on the San Joaquin River. Here is Mendota Dam. 20 Mendota Dam is in the southerly part of this map. And the 21 center of the map along the San Joaquin River is 22 approximately where the San Luis Canal Company diverts 23 their water. 24 Also good to bring out is that the Exchange 25 Contractors' service area completely surrounds -- this is CAPITOL REPORTERS (916) 923-5447 14233 1 the southern part of the Grasslands Water District. And 2 this is the northern part of the Grasslands Water 3 District, or resource conservation district. 4 Also, north of the north Grasslands is what's 5 called the Wildlife Refuges in the San Joaquin Valley for 6 this area. And there's a state refuge, federal refuges 7 and again more state refuges to the north of our service 8 area. 9 MR. SEXTON: And for the record, Steve was pointing 10 to the Grasslands area which on the colorized map is shown 11 in white. The most southerly of the Grasslands Water 12 District is just west of the largest portion of CCID and 13 then continues in a northerly direction. So it's on the 14 west side of the San Luis Canal Company and east of the 15 elongated portion of CCID. 16 C.O. STUBCHAER: That was some question. 17 MR. SEXTON: That wasn't a question, it was actually 18 an explanation, I hope. 19 Anyway, Steve, would you discuss, generally, for 20 the Board the exchange contract which is in evidence as 21 SJREC 6. 22 MR. CHEDESTER: The exchange contract is an 23 agreement between the San Joaquin River Exchange 24 Contractor board members and the U.S. Bureau of 25 Reclamation. The contract was first initiated or thought CAPITOL REPORTERS (916) 923-5447 14234 1 about prior to World War II. And in 1939 the exchange 2 contract was signed, the original first exchange contract. 3 The contract has specific quantities of water that we are 4 allowed to take on annual basis. 5 It also has monthly allocations. And even with 6 that, it has almost two water years within itself. There 7 is what we call "winter water," which is January, 8 February, March, November, December of any calendar year. 9 And then we have what's called winter -- "summer water" 10 which goes from April through October. The Exchange 11 Contractors also have what is called -- it's a flow 12 limitation that we can divert, an instantaneous flow. 13 MR. SEXTON: Your deliveries to the exchange -- in 14 accordance with the Exchange Contractors -- are made 15 through what facility? 16 MR. CHEDESTER: The Delta-Mendota Canal and is 17 diverted at Mendota Dam. 18 MR. SEXTON: Could you discuss with the Board the 19 conjunctive use of your surface and groundwater resources? 20 MR. CHEDESTER: As mentioned before, we do have 21 instantaneous flow limitations on our amount of water we 22 can divert from the Delta-Mendota Canal. And because of 23 that, our summer needs to supply a consumptive use in 24 those months cannot be met with just surface water alone. 25 So for the majority of the Exchange Contractors CAPITOL REPORTERS (916) 923-5447 14235 1 we are conjunctive use districts and we have to use wells 2 as peaking to make up that shortfall. 3 MR. SEXTON: What is the quantity of water that 4 you're allocated in each of the those periods you just 5 discussed a few minutes ago? 6 MR. CHEDESTER: Under a normal year under the 7 exchange contract we would get 840,000 acre-feet. Of 8 that, 121,000 acre-feet is available in, quote, the 9 five-month period that I mentioned, the winter water. And 10 during the summer months, which is April through October, 11 we get 719,000 acre-feet. 12 And in the exchange contract there is also a 13 critical year allocation. And that critical year 14 allocation all occurs in the seven-month summer period so 15 that we get cut 25 percent off the 840,000, all occurs in 16 the seven months. So that means we get 529,000 acre-feet 17 during a critical year allocation. And we still get 18 121,000 during the winter five-month period. 19 MR. SEXTON: Could you discuss the adoption of your 20 groundwater management plan? 21 MR. CHEDESTER: The Exchange Contractors, in 1997, 22 adopted an AB 3030 groundwater management plan. And 23 predominantly that is used for as a monitoring and 24 acquisition analysis on a regional basis. And we have a 25 site specific -- it's broken down within specific areas CAPITOL REPORTERS (916) 923-5447 14236 1 within the exchange contract boundaries. 2 Also, some of the regional activities include 3 water level aquifer characteristics, pumpage and 4 subsidence monitoring within our boundaries and also 5 includes some of the neighboring districts and the cities 6 within our boundaries. We have seven cities within the 7 Exchange Contractors' service area. 8 MR. SEXTON: Okay. Thank you. I forgot to ask you, 9 Steve, what was your background in coming to the Exchange 10 Contractors? 11 MR. CHEDESTER: I'm a graduate from Cal Poly, San 12 Luis Obispo in ag engineering. I worked for Broadview 13 Water District as a field engineer. And I was general 14 manager for Firebaugh Canal Water District for five years. 15 In '95 I became executive director for the Exchange 16 Contractors. 17 MR. SEXTON: Okay. Chris, would you summarize your 18 experience for the Board, please. 19 MR. WHITE: Sure. 20 MR. SEXTON: Briefly. 21 MR. WHITE: I'm a licensed civil engineer -- I'm 22 sorry, registered civil engineer in the State of 23 California, a licensed land surveyor, also. Worked out of 24 Los Banos since 1977, started there with the consulting 25 engineering firm on the field crew, worked my way up CAPITOL REPORTERS (916) 923-5447 14237 1 through the ranks there and achieved my civil engineering 2 license 1992. Was project engineer when I left there, 3 went to work for Central California Irrigation District. 4 And was the district engineer up until this year in May 5 and I'm now the general manager. 6 MR. SEXTON: I'm not sure if congratulations are in 7 order or not. Chris, would you discuss with the Board 8 CCID's water management water activities? 9 MR. WHITE: Okay. One of the questions that we 10 wanted to answer here was how this water is made available 11 for this VAMP water. And the simple answer to that is 12 through water conservation. 13 The mechanism that's used to get that water to 14 the time period when it needs to be used is our 15 groundwater, our groundwater basin. CCID intensively 16 manages our water supply. We have got various programs we 17 utilize to do that. Our water conservation plan, tiered 18 water pricing which we'll go into in a fair amount of 19 detail, our water conservation loan program, water 20 conservation projects that are accomplished by the 21 district that don't involve on-farm level participation, 22 water transfers, our AB 3030 groundwater management. We 23 intensively manage our groundwater. And we also are 24 participating in the AB 3616 effort. 25 Would you put up SJRG 17, please. CAPITOL REPORTERS (916) 923-5447 14238 1 MR. SEXTON: This didn't produce very well, so what 2 you see now is the right-hand portion of Exhibit 7-A. 3 MR. WHITE: This is a listing or tabulation of the 4 tiered water pricings that's been in place in the district 5 since 1989. Actually, the chart shows what occurred 6 before, then 1988. 7 In 1988 the charge for water in the Central 8 California Irrigation District was $5.50 an acre-foot. 9 There were no tiers in place at that time. 1989, with the 10 drought in place and pressures upon the water supply, 11 there was an institution of tiered water pricing at that 12 time. 13 There was a lot of education effort that went 14 into adopting these tiers, but I can tell you that the 15 district failed miserably in an attempt to educate the 16 growers as the work was going on. Tier one was $5.50 an 17 acre-foot. That was zero to three and a quarter feet per 18 acre. Anything above that depth was $15 an acre-foot. 19 Everything went along really good until about the 20 middle of the year and some of the growers were getting 21 into the higher tier. And, of course, the boardroom 22 started to fill up at the Board meetings. Why are we 23 doing this? What are we doing with all this additional 24 money that's coming in from income on this? 25 And this is a water conservation practice to get CAPITOL REPORTERS (916) 923-5447 14239 1 water use down in some of these -- where deep percolation 2 is excess in some of the areas and get into what we know 3 about our groundwater basins. 4 And the money that was made in excess during this 5 year, about 700,000, in excess of our budget requirements 6 was rolled into a program, our water conservation program, 7 our water conservation loan program. The idea there was 8 to take that funding, make it available to the growers at 9 3 percent interest so they could invest it on the farm to 10 get them out of these higher tiers. 11 The program continued and in 1990 you see it's 12 basically the same pricing program. '91 and '92 were 13 critical water years. And under the exchange contract 14 that means during the seven-month period that we're 15 reduced about 25 percent, during those seven months. 16 During that period of time a third tier was added 17 at $40 an acre-foot. $5.50 is basically the amount of 18 water that -- and the tier depths was 0 to 2.25 is the 19 amount of water that we could deliver to the growers in 20 the seven month period, the exchange contract entitlement. 21 The next half a foot here is the amount of water 22 that the district can pump from our own district-owned 23 wells. And the price at that time was about $16 an 24 acre-foot to provide that water. So that's where we came 25 up with tiered level and the tiered price. $40 an CAPITOL REPORTERS (916) 923-5447 14240 1 acre-foot is -- anything in excess of that the district 2 had to go out and purchase. We purchased well water for 3 private individuals. We were paying 30 and charging 40, 4 accounting for system losses. 5 Could you put the front half of that up. That 6 same tiering system occurred in 1995. Now, '95 was the 7 first normal year after those two criticals for us in the 8 exchange contract. And this "B" here represents that on 9 July 1st we eliminated the tiers. 10 And the idea there was in tracking our water 11 supply, we knew we were going to have some additional 12 water available by the end of the seven-month period. We 13 wanted to get that into the groundwater. Our groundwater 14 resource had been depleted over that drought period. We 15 lost, on average, about 10 feet of elevation in our well 16 field over the entire district. We needed to get that 17 recovered, or get it back into the ground. 18 So in July, knowing that we're going to have 19 resources left at the end of the seven-month period, we 20 relaxed the tiering. And this is something that the 21 district looks at on a yearly basis, what are the tiering 22 levels, where they should be. We look at the groundwater. 23 What is the condition of the groundwater? What's the 24 depths in the various subareas within the CCID? 25 1998, after a few normal water years and the CAPITOL REPORTERS (916) 923-5447 14241 1 groundwater aquifers having recovered significantly, we 2 instituted a six-tier system. And we didn't get a real 3 good test in 1998 of the six-tier system because of all 4 the rainfall that occurred during that year. And we're 5 still -- so we still had the same tiering this year, 1999. 6 But this works out very similarly, if you looked 7 at tier one and two, that's about the depth that we could 8 supply in the seven-month period using the exchange 9 contract entitlement. 10 The 20 to $25 water is the amount of water that 11 we can supply through our well field, district owned. And 12 anything in excess of that is water we have to go out and 13 buy. So there's still that connection there, but there 14 are more tiers. 15 This is -- this kind of a system takes a lot of 16 communication with the growers. And by that we do public 17 meetings every year at the beginning of the year, we send 18 mailers, we do it in a newsletter. We make -- we measure 19 water to every field daily. And we make that information 20 available to our growers. So they can call in the middle 21 of the summer and they find out exactly where they're at 22 relative to the tiers on a daily basis. And most of our 23 growers take advantage of that. 24 C.O. BROWN: Chris, is there a typo there, 3.5, 4.5? 25 MR. WHITE: That is correct. It is 3.5 to 4.0. CAPITOL REPORTERS (916) 923-5447 14242 1 C.O. BROWN: .0, right. 2 MR. WHITE: Yes, it is. It is a typo. 3 C.O. BROWN: Same thing on the other column? 4 MR. WHITE: That's correct. That's the magic of a 5 spreadsheet, once you make a mistake you can replicate it 6 everywhere. 7 Okay. Exhibit C, the tiered water pricing does a 8 couple things. Number one, if we adjust the tiering level 9 correctly, we can influence what the well usage is 10 throughout the rest of the district. There are 450 wells 11 in the Central California Irrigation District, 50 of those 12 are district owned, we control those. The rest of them 13 the district has no -- or the AB 3030 is more of a 14 monitoring plan as opposed to being regulatory. The only 15 way we can influence that is through economic incentives. 16 So if you set the tiers correctly you can 17 influence the amount of water that's pumped. And you see 18 that during the critical water years. When our tiering 19 was set where you jumped into a higher cost here at a 20 lower level, we saw that districtwide it was about 1.2 21 acre-feet per acre that was pumped districtwide. 22 During a normal water year, on average only about 23 97,000 acre-feet pumped districtwide, which is about 0.6. 24 So we can influence that significantly. 25 The other thing that it does, it gives economic CAPITOL REPORTERS (916) 923-5447 14243 1 incentives on-farm to stay out of the higher tiers. And 2 what this sheet represents, 7C, is our financial statement 3 relative to the low-interest water conservation loan fund. 4 And the information on here is Section A represents the 5 income into the fund and where it came from. 6 Remember we said that in 1989 about $700,000 was 7 raised in excess of budgetary needs. That was rolled into 8 this. And over the years we've increased that fund to a 9 million dollars. And it's being rotated, money is lent 10 out to the growers at 3 percent. We started out with a 11 five-year term, now under certain conditions you can get a 12 ten-year term on that loan at 3 percent, simple interest. 13 In Section B shows the number of loans and when 14 they were instituted. In 1990 all of the money that came 15 into the program was earmarked for projects. Only 38 of 16 them were completed during the year. So that's why you 17 see a little difference here, 553,000 versus 633,000 that 18 came in. But, generally, 80 to 90 percent of that money 19 is out and working at any given time. 20 C.O. BROWN: Is it mainly pipe that you're buying? 21 MR. WHITE: No, it's not. The district is involved 22 in concrete lining projects. We're involved in tailwater 23 return systems. We're involved in funding micro and drip 24 irrigation systems. Those types of programs are in this 25 program. CAPITOL REPORTERS (916) 923-5447 14244 1 And as the sheet shows, we have calculated and 2 estimated pre-project on all of these, 8,000 acre-feet per 3 year conserved since 1990. And then also here in Section 4 C shows what loans are pending. And this is -- 5 information is kind of dated. There's only four projects 6 left. As we just went through since March, quite a few 7 projects completed here. This is the end of spring, 8 everybody got to work when spring dried out a little bit, 9 so there's only four projects left in this project that 10 need to get completed and get funded. 11 We'll readvertise here in about two months for 12 next year's program. And we'll see anywhere from 15 to 30 13 applications come in. 14 C.O. BROWN: Do you have an estimate of the 15 potential water savings? 16 MR. WHITE: I don't have a potential water savings 17 districtwide and we're working towards that. One of the 18 things we really need to look at in developing that 19 potential is: Where is our groundwater going? Because a 20 lot of this stops deep percolation into the groundwater. 21 We're a conjunctive use district. 22 So to the extent that we see in the long term 23 record that the groundwater is either gaining or equal, 24 there's some potential for that type of conservation. 25 Where it's in the long-term it starts to recede and you've CAPITOL REPORTERS (916) 923-5447 14245 1 exceeded that potential. I haven't gotten to that point 2 yet. 3 C.O. BROWN: Thank you. 4 MR. SEXTON: How much money have you loaned out 5 since this program began, Chris? 6 MR. WHITE: 2.2 million. Total project costs are 7 about 3 million. We loan up to $500 an acre. So on a 8 sprinkler project, which typically costs about $1,000 an 9 acre, we're lending about half that money. 10 MR. SEXTON: Could you get into a discussion of the 11 district projects now? 12 MR. WHITE: Yes. Exhibit 7B, this is a list that we 13 present to our growers. In fact, this was presented to 14 our growers during the spring round of public meetings. 15 And there is three categories of projects here that the 16 district is working on. 17 Category one are projects that have been 18 completed. These have all been completed since 1990 and 19 there's various types of projects. There's automation 20 projects in the system. An automation project basically 21 conserves water for the district, is in potential for 22 spill reduction and also in potential for reduction in 23 deep percolation to the bottom of the canal. 24 We did an extensive study in 1990 which shows 25 that our canals are very sensitive to elevation, water CAPITOL REPORTERS (916) 923-5447 14246 1 elevation. So to the extent that you hold a constant 2 water elevation you reduce deep percolation through those 3 channels. 4 We've installed pipelines. We've done canal 5 lining, installed additional tailwater return pump 6 stations and the farm level projects that we've discussed. 7 Presently under construction are some fairly 8 major significant expenditure projects. The lower main 9 canal spill reduction project has $3.9 million earmarked 10 for it. We're about 50 percent complete with that 11 construction. Basically, it's automation of our -- the 12 lower 40 miles of our main canal, installation of a 13 regulating reservoir about midway through the system. 14 These will be put on downstream controls so that anything 15 in excess in the system will be shunted into the 16 reservoir. 17 Colony branch system spill reduction is another 18 project in the southern end of the district. And I'll 19 point to Exhibit 8. It's in the Dos Palos area. That's 20 where the colony system resides. And water from this area 21 will spill into the Grasslands wildlife areas into their 22 canals and not be consumptively used. We're going to 23 recapture that through item two. 24 The Parsons ditch extension is another spill 25 reduction project. And then category three are future CAPITOL REPORTERS (916) 923-5447 14247 1 projects that we have. We've done various levels of 2 feasibility work on them, have some of the estimated 3 costs, but it's basically some of the projects that we're 4 going to do. 5 C.O. BROWN: Do you have any lands that are tile 6 drain? 7 MR. WHITE: We do. 8 C.O. BROWN: So every acre-foot that you have in 9 irrigation efficiency goes into those subsurface drains? 10 MR. WHITE: In those areas, that's correct. There's 11 tile drains in various areas of the district, but the 12 water quality is -- in the Gustine area there are a 13 significant number of tile drains, but the water quality 14 there is very good that comes out of the tile drainage 15 system. It's not of poor quality. But to the extent, 16 yes, if you decrease deficiencies you decrease deep 17 percolation, you do reduce that amount. 18 MS. LEIDIGH: Mr. White, before you take this off, 19 could you identify this exhibit that's on the overhead? 20 MR. WHITE: It's San Joaquin River Exchange 21 Contractors' Exhibit 7B. 22 MS. LEIDIGH: Thank you. 23 MR. SEXTON: Chris, would you talk about surface 24 water transfers and how those transfers help fund some of 25 those projects that you just talked about? CAPITOL REPORTERS (916) 923-5447 14248 1 MR. WHITE: Yeah. The exhibit, Exhibit 7D here 2 shows how the funding for these in-district projects, 3 where it came from basically. And the small amount of 4 water that we've been able to transfer in excess of our 5 needs, in excess of our consumers' needs, income from 6 those sales went directly into this conservation program. 7 In fact, all of the money from those sales are 8 earmarked for this type of program. You see starting in 9 1990 through 1999 there is 2.5 million dollars into this 10 fund. There's some income to the fund from some sales of 11 some assets that the district has had. 12 We used to have a whole series of section houses 13 that we housed the canal men in. Some of those houses 14 were sold, that money went into this fund. And 15 subcategory three, when we didn't do a real good job of 16 communicating where the tiered water pricing was going, 17 that money was also rolled into the fund for a total of 18 6.8 million since 1990. And this is the expenses from 19 that fund, which include some studies that were done, some 20 feasibility work -- 21 MR. SEXTON: This is Exhibit 7E. 22 MR. WHITE: Exhibit 7E. And category five shows 23 some of the ongoing work that's being accomplished right 24 now. The spill reduction project, the Goodin canal system 25 improvements which has been completed, branches four and CAPITOL REPORTERS (916) 923-5447 14249 1 five which is also in the Colony system, have also been 2 completed. 3 MR. SEXTON: Transfers of water have a potential to 4 impact your groundwater, how do you monitor to make sure 5 that you have a handle on that? 6 MR. WHITE: The district does a lot of analysis, a 7 lot of monitoring on our groundwater. As an example, 8 there are 450 wells within the district and there is 9 another 200 or so wells that are adjacent to CCID in 10 surrounding areas. We measure pumpage from all of those 11 wells. 12 I should say, we estimate the pumpage. We 13 actually go out on a yearly basis and read the PG&E meters 14 on everything. We use the latest pump tests to estimate 15 what pumpage occurred from all those areas. We also do an 16 intensive monitoring program. 17 Three times a year we're out measuring water 18 depths, we produce spring water level maps. We want to 19 know on a sub-basin sub-basin basis whether we're gaining 20 or losing these areas, where does our tiered water pricing 21 need to be in order to either encourage deep percolation 22 or to encourage extractions during certain years. 23 So in 1997, we did an extensive study of our 24 groundwater basin specifically to look at what are the 25 sensitivities of the groundwater basin? And what do we CAPITOL REPORTERS (916) 923-5447 14250 1 need to be doing to keep it whole? 2 MR. SEXTON: Thanks, Chris. 3 Jeff, you're the manager of Firebaugh Water Canal 4 District. Could you give the Board just a short 5 background of your experience with the Exchange 6 Contractors? 7 MR. BRYANT: I've been employed in one capacity or 8 another by the Exchange Contractors member agency for 20 9 years. In 1989 I was water master in charge of all four 10 Exchange Contractors water operations. In 1995 I assumed 11 the position as general manager of Firebaugh Canal Water 12 District. 13 MR. SEXTON: Could you summarize for the Board some 14 of the things that are going on in the Firebaugh District 15 to encourage efficient irrigation practices? 16 MR. BRYANT: As we mentioned earlier, we're a 17 22,000-acre district. We're a signatory of AB 3616 MOU. 18 We also have a tiered water pricing with one acre-foot per 19 acre increment breakdowns. Source control is quite an 20 issue in the Firebaugh Canal Water District. 21 We have a high saline pool of water underneath 22 us. Some areas of the district have groundwater as high 23 as five feet in the surface, so we're having a source 24 controlled area for on-farm irrigation improvements for 25 deep percolation reductions. We have semi-annual grower CAPITOL REPORTERS (916) 923-5447 14251 1 meetings and irrigation workshops. And we provide all of 2 our growers, through the Bureau of Reclamation Water 3 Conservation Branch, both technical and educational 4 outreach programs. 5 MR. SEXTON: Can you explain for the Board your 6 participation in the Grasslands Bypass Project and how 7 that provides for reduced deep perc of some of the problem 8 water? 9 MR. BRYANT: In 1996 the Grasslands Bypass Project 10 was established. And the reason for that was to take 11 unusable, poor quality water out of Grasslands Water 12 District and reroute it through the partial reuse of the 13 San Luis drain. 14 In 1997 in order to meet both monthly and annual 15 loads instituted by the group, my board passed a no 16 tailwater policy, which prohibited the use of tailwater 17 from leaving our boundaries. Also along with that, the 18 Grasslands Bypass steering committee also passed a 19 prohibition that no tailwater enter the San Luis drain. 20 And the reasons behind that was twofold. 21 One, that the San Luis drain already had a 22 sediment load in the bottom of it from its previous use 23 and that they're not utilizing the whole drain as far as 24 volume. They only had a flow restriction of about 175 25 cubic feet per second. So, therefore, the group felt as CAPITOL REPORTERS (916) 923-5447 14252 1 though no tailwater should enter the drain. 2 Since this no tailwater policy has been in effect 3 the district has conserved quite a bit of water. We have 4 done quite well in reducing the deep percolations and 5 reductions in subsurface flows. 6 MR. SEXTON: Finally, Jeff, could you talk in 7 general terms about a few of the projects that you've been 8 involved in and that are on your drawing board? 9 MR. BRYANT: On-farm projects, the Firebaugh Water 10 District has a low-interest loan program funded through 11 the State Water Resources Control Board. This program is 12 commonly known to us as Firebaugh Field Irrigation 13 Improvement Program. 14 At this point we have loaned over 1.5 million 15 dollars, quite a bit of money for a 22,000-acre district. 16 This program consists of purchases at low interest for 17 farmers to purchase sprinklers, gated pipe and irrigation 18 equipment to help improve their irrigation methods. 19 With this grower education it has shown quite a 20 reduction of subsurface drainage flows actually within the 21 district boundaries. And it has also given the district 22 additional conserved water due to the fact that 23 conservation has taken place on the farm. 24 As far as district programs, the district has 25 completed numerous projects. And it was quite tedious for CAPITOL REPORTERS (916) 923-5447 14253 1 us when we did pass the no tailwater policy. As was 2 alluded to, the district, we're an odd-shaped district. 3 And there's not a lot of 160-acre blocks. 4 We had a lot of tile water commingled with 5 tailwater. And it was quite difficult for our growers to 6 pick the water up. What we have done is we've gone in as 7 a district and separated that tailwater, surface runoff, 8 from the tile water and utilized the large drains. We've 9 done this with a lot of pipelines and separate channels 10 and so forth. To date the district has spent, since 1997, 11 over $600,000 to complete this process. 12 We're investigating at this point canal linings, 13 and from a drainage standpoint, we're looking at possible 14 agro-forestry projects. Funding for these projects have 15 come from sale of conserved water by the district that has 16 been transferred to the Bureau of Reclamation to assist 17 them in meeting the level two and four supply obligations. 18 And we've also marketed water to the neighboring 19 federal ag contractor districts, whose federal supply has 20 suffered reductions through CVPIA and other federal 21 actions. And there is also where the district's portion 22 of the VAMP water is coming from, from higher irrigation 23 efficiencies, from conserved water. 24 MR. SEXTON: Okay. Steve, back to you, based on all 25 of the testimony that has just been submitted to the CAPITOL REPORTERS (916) 923-5447 14254 1 Board, in your view as the executive director for the 2 Exchange Contractors do you foresee any difficulty with 3 the Exchange Contractors meeting its obligations to 4 provide water under the terms of the San Joaquin River 5 Agreement? 6 MR. CHEDESTER: No, I don't. 7 MR. SEXTON: Okay. And I guess that's the end of 8 our testimony. Thank you, Mr. Stubchaer. 9 C.O. STUBCHAER: Okay. Who wishes to cross-examine 10 this panel? Mr. Birmingham, Mr. Nomellini, Mr. Herrick 11 and Mr. O'Laughlin, four. 12 First will be: Mr. Herrick, Mr. O'Laughlin, 13 Mr. Birmingham, Mr. Nomellini. 14 MR. HERRICK: I think those cards are sticking 15 together. 16 MR. SEXTON: No whining. 17 ---oOo--- 18 CROSS-EXAMINATION OF THE SAN JOAQUIN RIVER 19 EXCHANGE CONTRACTORS 20 BY THE SOUTH DELTA WATER AGENCY 21 BY MR. HERRICK 22 MR. HERRICK: Thank you, Mr. Chairman. John Herrick 23 for the South Delta Water Agency. I just have a few 24 questions. 25 Mr. Chedester, if I may, I'll start with you. Is CAPITOL REPORTERS (916) 923-5447 14255 1 that correct, the 25-percent reduction in deliveries you 2 mentioned in certain year types, critical year types 3 that's the maximum reduction in deliveries? 4 MR. CHEDESTER: Under the terms of the exchange 5 contract, as long as the exchange contract is in place, 6 yes. 7 MR. HERRICK: And it's either the 25-percent 8 reduction or no reduction; is that correct? 9 MR. CHEDESTER: That is correct. 10 MR. HERRICK: Okay. And what is the full amount of 11 the supply, the 100-percent amount, is that 840,000 12 acre-feet? 13 MR. CHEDESTER: Correct. 14 MR. HERRICK: And are there years in which the 15 district as a whole, not any one particular, the districts 16 as a whole do not use the 840,000 acre-feet that's 17 delivered? 18 MR. CHEDESTER: That is correct. 19 MR. HERRICK: And where -- how do the districts 20 handle that water that is not used in one of those years 21 we just mentioned? 22 MR. CHEDESTER: Most of the time when that occurs is 23 in the winter water that I mentioned before, which is the 24 January through March and the November/December water 25 which is usually the wet time of year. CAPITOL REPORTERS (916) 923-5447 14256 1 And that is where the majority of the water -- 2 when we don't use it -- that's where it comes from. For 3 the most part we use all of our summer water, the 719,000 4 acre-feet during every normal year, generally. And where 5 that would go is it would go back to the Bureau of 6 Reclamation should we not use that water. 7 MR. HERRICK: When you say "go back to them," does 8 that mean it's not delivered? 9 MR. CHEDESTER: It's not delivered to the Exchange 10 Contractors, therefore, we melt it back into the Bureau's 11 water supply. 12 MR. HERRICK: Okay. Is that always the case, or are 13 there some cases where it's actually delivered and then 14 not used by the districts? 15 MR. CHEDESTER: I don't understand your question. 16 MR. HERRICK: Does the water ever get delivered and 17 then some of it just released down to eventual discharge 18 somewhere? 19 MR. CHEDESTER: It did in 1999 underneath the terms 20 of the VAMP agreement, it was diverted and released. 21 MR. HERRICK: Okay. And what were the summer 22 months, the summer water year you described? 23 MR. CHEDESTER: April 1 through October 31st. 24 MR. HERRICK: So March is part of the winter? 25 MR. CHEDESTER: Correct. CAPITOL REPORTERS (916) 923-5447 14257 1 MR. HERRICK: Thank you. Do you know where the San 2 Joaquin River Exchange Contractors' share of the San 3 Joaquin River flows would be released into the San Joaquin 4 River? 5 MR. CHEDESTER: Yes. 6 MR. HERRICK: Could you describe that, please? 7 MR. CHEDESTER: May I use this? 8 C.O. STUBCHAER: Sure, just speak up loudly so 9 everybody can hear. 10 MR. CHEDESTER: Okay. I think I can speak up loud 11 enough. There are two points where the water will be 12 released from the Exchange Contractors for the VAMP 13 agreement, the San Joaquin River Agreement. 14 One is through Orestimba Creek, which enters the 15 San Joaquin River here, which is the northern end of CCID, 16 close to Crows Landing and Patterson. And at the 17 discharge point at Salt Slough at the end of San Luis 18 Canal Company's northern border, northwestern border, I 19 guess you would say, which is about the middle of Exchange 20 Contractors Exhibit 8. So here and here. 21 MR. HERRICK: Are those alternative sites, or both 22 sites will be used, or it depends? 23 MR. CHEDESTER: Both. 24 MR. HERRICK: Both, okay. And what is the facility 25 that will be doing the discharge at Orestimba Creek, is it CAPITOL REPORTERS (916) 923-5447 14258 1 a drain? 2 MR. CHEDESTER: CCID's main canal. 3 MR. HERRICK: Okay. And at that point does that 4 main canal contain water that has been -- surface water 5 deliveries that have been mixed with tailwater? 6 MR. CHEDESTER: To some extent, correct, but at that 7 time of the year there isn't a whole lot of irrigation 8 demand. 9 MR. HERRICK: Okay. And that, of course, depends on 10 the year type. Do you have increased irrigation demands, 11 say, in March if it's a dry year? 12 MR. CHEDESTER: You can. 13 MR. HERRICK: Have the Exchange Contractors done any 14 analysis of what the TDS of that water would be discharged 15 at Orestimba Creek? 16 MR. CHEDESTER: For the San Joaquin River Agreement 17 there -- as we mentioned, there isn't much demand in the 18 system in March. So you get into April and the water that 19 is being released at Orestimba Creek is mainly put there 20 directly from the Delta-Mendota Canal. So it's, 21 essentially, for the most part Delta-Mendota water. 22 MR. HERRICK: Would it be dependent upon what is two 23 days before, but currently being diverted from the Delta, 24 or would that be coming out of storage from San Luis? 25 MR. CHEDESTER: I can't answer that. It depends CAPITOL REPORTERS (916) 923-5447 14259 1 upon where the Bureau has chosen to make deliveries to us 2 from. 3 MR. HERRICK: Would be either then? 4 MR. CHEDESTER: Yeah. 5 MR. HERRICK: And how about the other discharge 6 point, which I believe you said -- I forgot what you said? 7 MR. CHEDESTER: It's basically the Salt Slough. 8 MR. HERRICK: Salt Slough. 9 MR. CHEDESTER: Northwestern part of the San Luis 10 Canal Company is Salt Slough and that also holds true for 11 Salt Slough. 12 MR. HERRICK: Again, what would be the facility that 13 makes the discharge into Salt Slough, is it a drain, is it 14 a delivery canal, or is it some other facility? 15 MR. CHEDESTER: It is the end of the -- well, it is 16 a drain which contains a lot of the end of the San Luis 17 Company's headworks -- I mean, the main delivery canal. 18 And that is a still point where they can dump water into 19 Salt Slough. So it is a drain, also. 20 MR. HERRICK: So the water that is delivered for San 21 Joaquin River Agreement purposes could be some level of 22 originally delivered surface water mixed with some other 23 level of drain water; is that correct? 24 MR. CHEDESTER: Yes. 25 MR. HERRICK: Okay. And, again, it depends on the CAPITOL REPORTERS (916) 923-5447 14260 1 year type how much drainage water might be in that 2 facility of that canal; is that correct? 3 MR. CHEDESTER: Correct. 4 MR. HERRICK: Okay. 5 MR. WHITE: And my knowledge of that is it's mostly 6 tailwater, or tailwater off the end of the fields. If 7 there are any tile flows in that system, I'm not aware of 8 any. It would be minute, but tailwater basically. 9 MR. HERRICK: Okay. Thank you. I appreciate that. 10 Has any analysis been done to estimate what the TDS of 11 that water being discharged into Salt Slough would be? 12 MR. CHEDESTER: No analysis specifically, but as 13 mentioned earlier, we believe it's real close to the 14 receiving water that we divert at the Delta-Mendota Canal. 15 MR. HERRICK: And do you know what would be the -- 16 do you know what the TDS of Salt Slough would be at the 17 time of this diversion into it? 18 MR. CHEDESTER: Again, at that point it's going to 19 be the same -- pretty much the same as what is diverted at 20 the Delta-Mendota Canal. Because, again, as Chris has 21 mentioned, there isn't really any subsurface tile water in 22 there. There is tailwater and surface water from the 23 delivery system, but we don't have an analysis, no. 24 MR. HERRICK: Maybe I misspoke. I was looking at 25 the TDS of the existing water of Salt Slough into which CAPITOL REPORTERS (916) 923-5447 14261 1 this San Joaquin River Agreement contribution was flowing. 2 MR. CHEDESTER: Upstream? Downstream? 3 MR. HERRICK: Well, at the point of discharge, I 4 guess. 5 MR. CHEDESTER: I don't mean to be argumentative, 6 but do you mean downstream of where we discharge the 7 water? 8 MR. HERRICK: What is the existing TDS of Salt 9 Slough in the area into which you're making your San 10 Joaquin River Group Authority contribution? 11 MR. CHEDESTER: It is what -- may I go up to the map 12 again? 13 MR. HERRICK: Absolutely. 14 MR. CHEDESTER: Salt Slough originates in San Luis 15 Canal Company, in this area. And it meanders through 16 here -- 17 C.O. STUBCHAER: When you say "this area in here" -- 18 MR. CHEDESTER: I'm sorry. The area in blue on San 19 Luis Canal Company on Exhibit 8 on the northwestern part 20 of the district Salt Slough originates. Therefore, it's a 21 drainage system of, natural drainage system of San Luis 22 Canal Company with the Exchange Contractors. And the 23 reason I keep saying, it's the quality of the water we get 24 at the DMC, there might be some degradation because of 25 tailwater, but it doesn't pick up salt. CAPITOL REPORTERS (916) 923-5447 14262 1 MR. HERRICK: So you're saying that the water that 2 would be existing in Salt Slough is probably the same 3 quality of this delivery, because that water is from 4 similar deliveries already? 5 MR. CHEDESTER: Yes. 6 MR. HERRICK: Okay. Thank you. Mr. Chedester, I 7 believe from the testimony given by the panel that it 8 would be correct to say that the water supply for the 9 various districts within the Exchange Contractors, the 10 water supply is from three potential sources: Deliveries 11 from the Delta-Mendota Canal, pumped groundwater, or 12 recycled drainage or something, or purchases at some 13 times; is that correct? 14 MR. CHEDESTER: I believe it's just two, unless I 15 misunderstand your question. There are -- Delta-Mendota 16 Canal water is where all of it originates. And there 17 could be a potential for the water that you mentioned, the 18 drain recycled water, or -- that's really the main ones 19 unless there is groundwater involved. 20 MR. WHITE: Mr. Herrick, there is a third source and 21 that's the San Joaquin River, flood flows from the San 22 Joaquin River. 23 MR. HERRICK: Right. Mr. White, I believe you said 24 in your testimony that one of the tiered water supplies 25 was from purchases? CAPITOL REPORTERS (916) 923-5447 14263 1 MR. WHITE: I did say that. The district at times 2 has to buy local groundwater. 3 MR. HERRICK: Okay. 4 MR. WHITE: From private individuals. 5 MR. HERRICK: Is this groundwater a separate aquifer 6 than the applied surface water would seep into? 7 MR. WHITE: No. 8 MR. HERRICK: Okay. So, Mr. Chedester, would it be 9 fair to say that the water to be supplied towards the San 10 Joaquin River Group -- San Joaquin River Agreement -- 11 excuse me. 12 Would it be correct to say that the water 13 supplied by the Exchange Contractors towards their San 14 Joaquin River Agreement allocation comes out of either 15 water that's being delivered that year, or water that's 16 subsurface to the district? 17 MR. CHEDESTER: Yes. 18 MR. HERRICK: And in order to provide that San 19 Joaquin River Agreement allocation, is the district going 20 to decrease the consumptive use of water during that year 21 or any other year? 22 MR. CHEDESTER: No. 23 MR. HERRICK: Mr. White -- 24 C.O. BROWN: Clarify that question for me, if you 25 would, please. CAPITOL REPORTERS (916) 923-5447 14264 1 MR. HERRICK: I'm sorry? 2 C.O. BROWN: If I may, Mr. Chairman? 3 C.O. STUBCHAER: Yes, what was the question, 4 Mr. Brown? 5 C.O. BROWN: The decrease in consumptive use, so 6 there's no change in consumptive use, did you mean that or 7 decrease in the applied water? 8 MR. HERRICK: I meant consumptive use. 9 C.O. BROWN: Okay. 10 MR. CHEDESTER: Can I also expand a little bit more 11 on that? 12 MR. HERRICK: Sure. 13 MR. CHEDESTER: As I mentioned earlier, we get water 14 on a monthly basis underneath the terms of the exchange 15 contract. This water is going to come out of the April 16 and the May amount. It's going to physically have to be 17 ran out the end of the system, intentionally, to make this 18 water happen for VAMP. 19 Now, what we do internally, the district managers 20 would be able to explain, is the conservation programs 21 they're doing and such is how they're making that water 22 up. So we're not reducing a consumptive use. Because 23 remember our number one goal is to keep our farmers whole. 24 And we want to keep our farmers farming as long 25 as we can. So they're going to do all they can with the CAPITOL REPORTERS (916) 923-5447 14265 1 tools they have available to them to make that water 2 available to the growers. But it will come off our 3 allocation. A way to look at this is in a normal year we 4 get 719,000. Per the terms of the San Joaquin River 5 Agreement, we now only have 708,000 available to allocate 6 to our growers. 7 MR. HERRICK: And in order to make that up, the 8 districts are doing the various projects or conservation 9 measures and, perhaps, others that have been discussed 10 here today; is that correct? 11 MR. CHEDESTER: Yes. 12 MR. HERRICK: Absent those efforts, is water 13 escaping your control? 14 MR. CHEDESTER: We are -- some water escaping our 15 boundaries, yes. 16 MR. HERRICK: And your efforts now are to limit that 17 amount of water escaping; is that correct? 18 MR. CHEDESTER: Correct. 19 MR. HERRICK: So that you can either retain it in 20 groundwater or -- so you can retain it in your groundwater 21 for a later use; is that correct? 22 MR. CHEDESTER: Correct. 23 MR. HERRICK: The water that previously escaped, was 24 that going to anyplace where it was not being beneficially 25 used by other people? CAPITOL REPORTERS (916) 923-5447 14266 1 MR. CHEDESTER: I can't answer that. 2 MR. HERRICK: Okay. And have you done any 3 investigation to see if that -- who might be using that 4 water that previously escaped your boundaries? 5 MR. CHEDESTER: I have not. 6 MR. HERRICK: Mr. Bryant, you talked about high 7 ground -- I believe you said high groundwater and high 8 salinity, high saline and high groundwater -- that's not 9 right either. Let me start over. 10 Mr. Bryant, I believe you said that in the 11 Gustine area there was a high groundwater level problem; 12 is that correct? 13 MR. BRYANT: No, I didn't say that. 14 MR. HERRICK: Okay. 15 MR. BRYANT: Mr. White referred to the Gustine area. 16 MR. HERRICK: I'm sorry. Is that correct, Gustine 17 has a high groundwater problem? 18 MR. WHITE: They do have a high water table. 19 MR. HERRICK: Okay. And is that high water table of 20 water that's unusable or is it just worse than the 21 delivered water that you're receiving? 22 MR. WHITE: It's certainly not unusable. Probably 23 of slightly poor quality than the delivered water, not 24 significantly. 25 MR. HERRICK: Are people pumping that groundwater CAPITOL REPORTERS (916) 923-5447 14267 1 and using it, or are they blending it before they use it? 2 MR. WHITE: Both. 3 MR. HERRICK: Okay. Mr. Bryant, you were talking 4 about the Grasslands Bypass Project -- I'm sorry. Your 5 district is now operating under a no tailwater policy, is 6 that what you said? 7 MR. BRYANT: That is correct. 8 MR. HERRICK: And that means none of the surface 9 runoff from the district use are allowed or are supposed 10 to be allowed to escape the district's boundaries? 11 C.O. STUBCHAER: Excuse me. Mr. Bryant, could you 12 get the microphone in front of you, please. 13 MR. BRYANT: That's correct. 14 MR. HERRICK: Do you know if there is any subsurface 15 drainage that results from the application of surface 16 water in your district that escapes the district's 17 boundaries? 18 MR. BRYANT: Yes. 19 MR. HERRICK: And to where does that water escape? 20 MR. BRYANT: Into the Grasslands Bypass Project. 21 MR. HERRICK: Okay. When you say "Into the 22 Grasslands Bypass Project," is that into the Grasslands 23 area, or into a -- 24 MR. BRYANT: Actually, it's a separate channel -- 25 C.O. STUBCHAER: Excuse me. One at a time. CAPITOL REPORTERS (916) 923-5447 14268 1 MR. BRYANT: It's a separate channel that's been 2 constructed to keep the water out of the Grasslands Water 3 District, so the water does not commingle with their 4 supply. 5 MR. HERRICK: And where does that water go, the 6 water that's in that constructed channel? 7 MR. BRYANT: Into the San Luis drain. 8 MR. HERRICK: And from there it goes to where? 9 MR. BRYANT: Into the Salt Slough -- excuse me, Mud 10 Slough and into the San Joaquin River. 11 MR. WHITE: Mr. Herrick, you asked a question as to 12 where this -- we're trying to recapture this water that's, 13 perhaps, escaping our boundaries, there was a question 14 relative to that and we kind of left you with the 15 impression that all of our efforts are geared towards 16 that. 17 And as we described in our testimony that there 18 is a component of spill recapture as an example as part of 19 conservation projects, but a lot of them are lining 20 projects where we're intercepting flow before it reaches 21 the groundwater, that sort of thing. 22 And in some of the areas where tailwater was 23 leaving the district, significant amounts were going into 24 the ground surface and it was being utilized beneficially 25 prior to CVPIA and their water supply was being diverted CAPITOL REPORTERS (916) 923-5447 14269 1 for this. 2 There were uncontrolled releases into their 3 system. Their canal system was built at the same time as 4 ours by the same engineers, they have the same kind of a 5 loss problem that we do. When they receive uncontrolled 6 flows into the system it raises their water surfaces in 7 their canals, 20, 30 miles of system to get from the edge 8 of our district to the river. 9 Raising a tenth of water surface in our area 10 doubles the percolation rate. In essence, when you're 11 spilling water into that system, you're percolating into 12 the Grasslands area groundwater basin. And they don't use 13 it. There's no wells there. It's fairly poor quality 14 water and it's a high water table. 15 Just on the east side of the river there's a 16 significant overdraft in that area. Water from this 17 Grasslands area was migrating under the rivers, not 18 accreting to the river at all. It's going underneath the 19 river into this zone on the other side. 20 MR. HERRICK: We covered that zone earlier. That 21 zone has other users which are, at least, a part of the 22 problem with that being a depressed groundwater area; is 23 that correct? 24 MR. WHITE: I'm not familiar with all the uses on 25 those sides of the river. CAPITOL REPORTERS (916) 923-5447 14270 1 MR. HERRICK: Mr. White, on your Exhibit 7C, I just 2 have a question under the category B, loans issued. 3 MR. WHITE: Yes. 4 MR. HERRICK: I believe you said in response to a 5 question by Board Member Brown that you didn't have an 6 estimate of the savings, the water savings while you were 7 talking about that exhibit, but that exhibit says "An 8 estimation of over 8,000 acre-feet per year." 9 Again, did I misunderstand -- 10 MR. WHITE: Again, you misunderstood. My response 11 was in response to a question as to how much potential 12 there is in the future, we don't have an estimate. 13 MR. HERRICK: Okay. I have no further questions. 14 Thank you very much. 15 C.O. STUBCHAER: Mr. Herrick. 16 Mr. O'Laughlin. 17 MR. O'LAUGHLIN: I'll pass. Thank you. 18 C.O. STUBCHAER: Okay. Mr. Birmingham. 19 ---oOo--- 20 CROSS-EXAMINATION OF THE SAN JOAQUIN RIVER 21 EXCHANGE CONTRACTORS 22 BY WESTLANDS WATER DISTRICT 23 BY MR. BIRMINGHAM 24 MR. BIRMINGHAM: Mr. Chedester, Mr. Bryant, 25 Mr. White, I believe you gentlemen know who I am, but CAPITOL REPORTERS (916) 923-5447 14271 1 Mr. Bryant, I was not aware you said you'd been working 2 for the Exchange Contractors for the past 20 years? 3 MR. BRYANT: Yes. 4 MR. BIRMINGHAM: Do the child labor laws not apply 5 in the Exchange Contractors -- 6 MR. BRYANT: I hide my age quite well. 7 MR. CHEDESTER: He had a full head of hair when he 8 started the job. 9 MR. BIRMINGHAM: I have just a few questions and 10 they'll be directed primarily at you, Mr. Chedester. I 11 believe your testimony states that the Exchange 12 Contractors have pre-14 appropriative water rights? 13 MR. CHEDESTER: Correct. 14 MR. BIRMINGHAM: And in addition, some of the lands 15 that are within the Exchange Contractors' service area are 16 riparian to the San Joaquin River? 17 MR. CHEDESTER: That is correct. 18 MR. BIRMINGHAM: And those lands would have riparian 19 rights to water from the San Joaquin River? 20 MR. CHEDESTER: As I understand, that's correct. 21 MR. BIRMINGHAM: The Exchange Contractors filed a 22 petition that was originally part of the notice for this 23 phase of these water right hearings; is that correct? 24 MR. CHEDESTER: That is correct. 25 MR. BIRMINGHAM: And that was a notice -- or a CAPITOL REPORTERS (916) 923-5447 14272 1 petition, excuse me, under Water Code Section 1707 to 2 dedicate a portion of the Exchange Contractors' water 3 rights to fish and wildlife enhancement to satisfy the 4 Exchange Contractors' obligations under the San Joaquin 5 River Agreement? 6 MR. CHEDESTER: I believe that's what 1707 says. 7 MR. BIRMINGHAM: Okay. Well, you had filed the 8 petition, so a portion of your water rights would be 9 dedicated to fish and wildlife enhancement so that the 10 Exchange Contractors could satisfy their obligation under 11 the San Joaquin River Agreement? 12 MR. CHEDESTER: Correct. 13 MR. BIRMINGHAM: And then the Exchange Contractors 14 withdraw the petition? 15 MR. CHEDESTER: Correct. 16 MR. BIRMINGHAM: And the Exchange Contractors 17 withdraw the petition, because the water that will be 18 provided by the Exchange Contractors under the San Joaquin 19 River Agreement is not the Exchange Contractors' water 20 rights water? 21 MR. CHEDESTER: That is my understanding. It's the 22 Bureau's permits that we're using. 23 MR. BIRMINGHAM: So the water that will be supplied 24 by the Exchange Contractors under the San Joaquin River 25 Agreement is water which is supplied by Reclamation to the CAPITOL REPORTERS (916) 923-5447 14273 1 Exchange Contractors? 2 MR. CHEDESTER: Correct. 3 MR. BIRMINGHAM: And the Exchange Contractors' 4 rights to use the water that will be supplied under the 5 San Joaquin River Agreement are rights to use which arise 6 under the Exchange Contractors' contract with the United 7 States? 8 MR. CHEDESTER: Yes. 9 MR. BIRMINGHAM: The water which is supplied by 10 Reclamation to the Exchange Contractors is diverted from 11 the Delta via the Tracy pumping plant and the 12 Delta-Mendota Canal? 13 MR. CHEDESTER: For the most part, yes. 14 MR. BIRMINGHAM: Do the permits to appropriate 15 water, which are held by Reclamation under which water is 16 supplied to the Exchange Contractors, authorize the use of 17 water for fish and wildlife purposes? 18 MR. CHEDESTER: I don't know. 19 MR. BIRMINGHAM: If they do not authorize the 20 appropriation of water for fish and wildlife purposes it 21 will be necessary for the Exchange Contractors to file a 22 petition under Section 1707 to dedicate a portion of their 23 contract water to fish and wildlife enhancement; is that 24 correct? 25 MR. SEXTON: Calls for a legal conclusion. CAPITOL REPORTERS (916) 923-5447 14274 1 C.O. STUBCHAER: Well, if you know the answer. 2 MR. CHEDESTER: I don't. I was going to say I 3 couldn't answer that. 4 MR. BIRMINGHAM: While I was gone this morning I 5 understand that Mr. Jackson made an objection based on 6 hearsay which was sustained. And I only raise the point, 7 because if it wouldn't be a conflict I'd like to ask 8 Mr. Jackson if he could tutor me on the rules of evidence. 9 C.O. STUBCHAER: No. No. He made an objection for 10 you, because you weren't here to make that objection for 11 what you were just doing. 12 MR. BIRMINGHAM: I'm finished. Thank you very much. 13 C.O. STUBCHAER: Okay. Are you finished? 14 MR. BIRMINGHAM: Yes, I am. 15 C.O. STUBCHAER: All right. 16 Mr. Nomellini. 17 ---oOo--- 18 CROSS-EXAMINATION OF THE SAN JOAQUIN RIVER 19 EXCHANGE CONTRACTORS 20 BY THE CENTRAL DELTA PARTIES 21 BY MR. NOMELLINI 22 MR. NOMELLINI: Mr. Chairman, Members of the Board, 23 Dante John Nomellini for Central Delta Parties, members of 24 the panel. 25 First of all, I had a couple of questions. The CAPITOL REPORTERS (916) 923-5447 14275 1 Sac Dam, is it still a sac dam or what's it constructed 2 out of? 3 MR. CHEDESTER: The sacs have been converted into 4 concrete. 5 MR. NOMELLINI: Okay. Is this dam in place all the 6 time? 7 MR. CHEDESTER: Yes, it is. Actually, it's a large 8 weir structure with drop boards. 9 MR. NOMELLINI: Okay. Do fish go back and forth? 10 MR. CHEDESTER: It is not a live stream below Sac 11 Dam. 12 MR. NOMELLINI: Okay. But during wet periods can 13 fishing go by this dam? 14 MR. CHEDESTER: I guess they could. 15 MR. NOMELLINI: Last question on just the 16 geographical setting, the Mendota pool has a dam of sorts; 17 does it not? 18 MR. CHEDESTER: Yes. 19 MR. NOMELLINI: And that dam is something like a 20 weir as well, isn't it? 21 MR. WHITE: Yes, it is. 22 MR. NOMELLINI: Okay. And it has boards in it? 23 MR. WHITE: 20 bays, over 200 4-by-8 boards. And 24 they're all manually installed and removed. 25 MR. NOMELLINI: All right. Do fish pass back and CAPITOL REPORTERS (916) 923-5447 14276 1 forth? 2 MR. BIRMINGHAM: Objection on relevance. 3 MR. NOMELLINI: Setting. Background. 4 C.O. STUBCHAER: I'll allow the answer, but then 5 we'll -- 6 MR. NOMELLINI: That's my last. 7 C.O. STUBCHAER: Yeah, leave the fish. 8 MR. WHITE: They pass downstream, I know. 9 MR. NOMELLINI: Okay. Getting off the background, 10 the statement at page 2, I think this is yours, 11 Mr. Chedester, states that, 12 (Reading): 13 "The exchange water, although not as good as 14 San Joaquin River water, would meet reasonable 15 irrigation standards." 16 How do the two qualities compare, the exchange 17 water provided versus what would have been provided from 18 San Joaquin? 19 MR. BIRMINGHAM: Objection. Relevance. 20 MR. NOMELLINI: Relevance is it's cross-examination. 21 This is in the man's statement. 22 MR. BIRMINGHAM: Mr. Nomellini can certainly object 23 to the statement on grounds of relevance, I have not done 24 that, but the question is irrelevant. 25 C.O. STUBCHAER: Objection is overruled. CAPITOL REPORTERS (916) 923-5447 14277 1 MR. CHEDESTER: I believe the water quality from 2 Friant Dam would approximately be between 50 and 100 parts 3 per million. And the water quality we get from the 4 Delta-Mendota Canal varies between 250 to 500, depending 5 on the year. 6 MR. NOMELLINI: How does salinity affect the use of 7 water by the Exchange Contractors? 8 MR. BIRMINGHAM: Objection. Relevance. 9 MR. O'LAUGHLIN: Objection. Relevance. We started 10 talking about this right at the beginning of the hearing. 11 Again, this is a narrowly focused hearing. There is no 12 reason to open up Phase V again. I know Mr. Nomellini 13 would like to take another crack at it, but we're not 14 there. 15 These are change petitions narrowly confined to 16 the issue of whether or not under 1707 and 1725 we are 17 meeting certain specific issues set out by the State Water 18 Resources Control Board in the hearing notice and this 19 isn't one of those issues. 20 MR. BIRMINGHAM: There may be statements that are 21 contained in Mr. Chedester's written testimony, San 22 Joaquin River Exchange Contractors' Exhibit 7, which are 23 background, or setting as Mr. Nomellini characterizes 24 them. They may be irrelevant to the hearing, or the 25 issues that are before the Board in connection with this CAPITOL REPORTERS (916) 923-5447 14278 1 hearing. 2 When Mr. Sexton moves to admit San Joaquin River 3 Exchange Contractors' Exhibit 7, Mr. Nomellini can object 4 on the grounds of relevance. This is my only opportunity 5 to object to this question on the grounds of relevance. 6 How salinity from DMC water affects the use of 7 water in the Exchange Contractors service area does not 8 bear in any way on how the change petition will affect 9 other legal users' water. 10 C.O. STUBCHAER: Mr. Nomellini. 11 MR. NOMELLINI: First of all on the procedural 12 aspects of this objection, the testimony was submitted in 13 advance of the hearing. If Mr. Birmingham thought that 14 there was no relevancy, or Mr. O'Laughlin thought there 15 was no relevancy to this particular testimony, they could 16 have objected at the early stage before this panel was 17 presented to produce their testimony. 18 Once the panel is produced to produce the 19 testimony based on this written statement, I believe I 20 should be entitled to cross-examine on the statement. 21 Now, that's the procedural aspect of my comment. 22 The general relevancy of the impact of salinity 23 on water use goes to the issue in the hearing as to 24 impacts on legal users of water. These Exchange 25 Contractors happen to be people who receive water from the CAPITOL REPORTERS (916) 923-5447 14279 1 Delta. Water in the Delta is affected by the water 2 quality of the San Joaquin; impacts associated with water 3 quality resulting from dedication of water to San Joaquin 4 River Agreement flows from the tributaries have been shown 5 to have a water quality impact. So I believe it is 6 relevant in the general abstract sense as well. So I 7 would ask that I be allowed to pursue it. 8 C.O. STUBCHAER: Mr. O'Laughlin. 9 MR. O'LAUGHLIN: My comment on this is that if we're 10 going to get into this line of the questioning, then we're 11 not going to stop. This is going to be Phase V all over 12 again. 13 And my hope and desire was that this would be a 14 narrowly confined hearing on the change petitions. We 15 objected, for instance, to the introduction and filed a 16 motion in regards to Mr. Hildebrand's testimony. We got 17 it ahead of time and we filed a motion and said it was 18 totally irrelevant. 19 I have no qualms about what they testified to 20 here today on the Exchange Contractors. If Mr. Nomellini 21 wanted to object on the relevancy, he should have. My 22 problem here is I can object to his questions on 23 irrelevance and I don't have to object to the case in 24 chief. There's no requirement on that part. And my -- 25 especially on cross-examination. CAPITOL REPORTERS (916) 923-5447 14280 1 C.O. STUBCHAER: Mr. Emrick. 2 MR. EMRICK: I just wanted to point out that the 3 testimony in paragraph three that Mr. Nomellini has 4 pointed out is a statement of the terms of the exchange 5 contract. It's not testimony on his part as to the 6 quality of water, it's merely saying this is what the 7 contract says. 8 From that standpoint, background asserting what 9 this is, is also basically ultimately what this is. What 10 Steve says or what the contract says is also irrelevant. 11 It says what it says. Mr. Nomellini can certainly show 12 him the contract and ask him if it says that, but the 13 other cross would certainly be outside the bounds of what 14 he said in his testimony. 15 C.O. STUBCHAER: Okay. We're going to go off the 16 record for a moment -- 17 MR. NOMELLINI: My last comment. 18 C.O. STUBCHAER: You have a last comment? 19 MR. NOMELLINI: I think my due process rights to 20 pursue cross-examination within the framework of this 21 testimony falls -- 22 C.O. STUBCHAER: There is no last word -- all right. 23 Go ahead, there's no such thing. 24 C.O. STUBCHAER: Mr. Birmingham. 25 MR. BIRMINGHAM: Mr. Nomellini's due process rights CAPITOL REPORTERS (916) 923-5447 14281 1 protect his ability to cross-examine on the relevant 2 information, the relevant evidence. Relevant evidence is 3 evidence which tends to make a material fact more or less 4 likely. 5 How the salinity of water received by the 6 Exchange Contractors effects the Exchange Contractors' use 7 of the water, which is the pending question, doesn't make 8 any material fact that is at issue in this proceeding more 9 or less probable. 10 C.O. STUBCHAER: Mr. O'Laughlin, or did he say it 11 all? 12 MR. O'LAUGHLIN: Couldn't have said it better. 13 MR. HERRICK: I'll just add one footnote, if I may? 14 C.O. STUBCHAER: Mr. Herrick. 15 MR. HERRICK: It was well said, but it was wrong. 16 The use of the water and the effects of salt have a direct 17 affect on what they can and will deliver to the river and 18 the question is: Do people who use the river water, are 19 they affected by that salt? It's completely relevant to 20 one of the issues stated for this phase. 21 C.O. STUBCHAER: Mr. Sexton. 22 MR. SEXTON: Thank you, Mr. Stubchaer. I think that 23 what they're forgetting is that the testimony was that the 24 water that is made available to meet the obligations 25 imposed by the San Joaquin River Agreement is water that CAPITOL REPORTERS (916) 923-5447 14282 1 is from the DMC that is essentially run through the system 2 and released for that purpose. So -- 3 MR. BIRMINGHAM: But -- 4 MR. SEXTON: It's not water that Firebaugh is 5 releasing, it's water that's being released at CCID at 6 Orestimba or at San Luis, at Salt Slough. And the Board 7 can take, I think, judicial notice of the Rainbow Report 8 and the findings in the Rainbow Report, but the San Luis 9 Canal Company isn't even part of the drainage problem area 10 as described in that report. 11 MR. BIRMINGHAM: And I would observe, Mr. Stubchaer, 12 that the question that Mr. Herrick just described is not 13 the question that is currently pending to this witness. 14 If Mr. Nomellini wants to ask: How will the 15 change affect salinity in the San Joaquin River, that's an 16 entirely different question. But the question that is 17 before the Board is: How does the salinity in the water 18 received by the Exchange Contractors affect the Exchange 19 Contractors' use? 20 C.O. STUBCHAER: Mr. Nomellini, as the objectee, I'm 21 going to give you the last word. 22 MR. NOMELLINI: I said all I wanted to say. 23 C.O. STUBCHAER: All right. Fine. Let's take our 24 afternoon break now and we'll come back at around 2:30. 25 (Recess taken from 2:18 p.m. to 2:34 p.m.) CAPITOL REPORTERS (916) 923-5447 14283 1 C.O. STUBCHAER: Reconvene the hearing. The 2 objections are sustained. 3 MR. NOMELLINI: Okay. On Page 3 of your testimony, 4 Mr. Chedester, at the top you talk about if water was 5 not -- substitute water was not delivered from DMC or 6 other CVP facilities, water from the San Joaquin River 7 would be released at Friant to the Exchange Contractors. 8 Has that ever occurred? 9 MR. CHEDESTER: It has not occurred under the terms 10 of the exchange contract. We have received water off of 11 the San Joaquin River, but they were flood flows. But not 12 by terms of the exchange contract of which I was 13 specifying here. 14 MR. NOMELLINI: Okay. So under your agreement with 15 the Bureau, Exchange Contractors retain the right to 16 divert water from the San Joaquin River under some 17 circumstances? 18 MR. CHEDESTER: If the Bureau -- as I understand it, 19 if the Bureau cannot meet the specificities of the 20 exchange contract as far as our water flows, our water 21 amounts, then we have the right to go back off the San 22 Joaquin River and receive partial or all of our water. 23 MR. NOMELLINI: Okay. And this occasion you talked 24 about with regard to flood flows, was that for extra water 25 over and above your basic -- CAPITOL REPORTERS (916) 923-5447 14284 1 MR. CHEDESTER: No. 2 MR. NOMELLINI: -- contractual entitlement? 3 MR. CHEDESTER: Sorry. No, it was not. 4 MR. NOMELLINI: Okay. Was it in lieu of a portion 5 of the water to be received from the Delta-Mendota Canal? 6 MR. CHEDESTER: Correct. 7 MR. NOMELLINI: Okay. So by reason of being able to 8 capture some water off the San Joaquin you took less 9 deliveries from the Delta-Mendota Canal; is that correct? 10 MR. CHEDESTER: That is correct. 11 MR. NOMELLINI: All right. Do you remember in what 12 year that took place, or years? 13 MR. CHEDESTER: How far back do you want to go? 14 MR. NOMELLINI: Well, how many times has it taken 15 place that you know of? 16 MR. CHEDESTER: I can remember instances in '93, 17 1995, '96, '97 and '98. 18 MR. NOMELLINI: Okay. Thank you for that. On Page 19 3 of your testimony you talk about groundwater pumped into 20 the district's distribution systems to make up surface 21 delivery shortfalls must continue through May, June, July 22 and August. Do you see that? 23 MR. CHEDESTER: Yes. 24 MR. NOMELLINI: Is that the typical operation? 25 MR. CHEDESTER: Correct. CAPITOL REPORTERS (916) 923-5447 14285 1 MR. NOMELLINI: And what quality is the groundwater? 2 MR. CHEDESTER: I cannot answer that. 3 MR. NOMELLINI: Can you give me a range of what you 4 think it might be, anybody on the panel? 5 MR. WHITE: Groundwater ranges in quality from 250 6 TDS up to -- we will allow up to 2,000 parts water in the 7 canal under critical water conditions. 8 MR. NOMELLINI: Okay. When you say "into the 9 canal," which canal are you referring to? 10 MR. WHITE: Any of the district owned laterals. 11 MR. CHEDESTER: That's for CCID, I'd like to 12 specify. 13 MR. WHITE: During the normal water years that cap 14 is at 1,000 TDS. 15 MR. NOMELLINI: In terms of the quality of water 16 that the farmer would actually receive for application to 17 his field, could you give me the range of what that water 18 quality is? 19 MR. WHITE: It pretty much equals the range of water 20 quality that we receive from the Delta-Mendota Canal, 21 which is around from 250 to 400 part TDS. 22 MR. NOMELLINI: So if groundwater came in at 1,000, 23 was put into one of your laterals it would basically be 24 blended down in terms of water quality so that the farmer 25 actually gets the range of 250 to 400? CAPITOL REPORTERS (916) 923-5447 14286 1 MR. WHITE: It's blended very significantly. If we 2 ran all the wells at one time, we could produce about 232 3 second feet in well water. Most of the time we're between 4 150 and 170 cubic feet per second. Our inflow off the DMC 5 can reach 2,000 cubic feet per second in the middle of 6 summer. So it's blended significantly. 7 MR. NOMELLINI: All right. The panel was asked 8 questions with regard to the delivery of the water to meet 9 the San Joaquin River Agreement. And as I understood one 10 of the points at which water was released by the Exchange 11 Contractors was into a portion of Salt Slough; is that 12 correct? 13 MR. CHEDESTER: That's correct. 14 MR. NOMELLINI: And questions were asked as to the 15 water quality of Salt Slough in the area of the release 16 from the Exchange Contractor Group. And I believe the 17 testimony was that roughly because of lack of very much 18 tailwater -- or tile water, excuse me, at that time that 19 the water quality was pretty much reflective of the water 20 quality delivered through the Delta-Mendota Canal; is that 21 correct? 22 MR. CHEDESTER: Generally, yes. 23 MR. NOMELLINI: All right. Now, at the point at 24 which Salt Slough delivers the water that was released by 25 the Exchange Contractors into the San Joaquin, do you know CAPITOL REPORTERS (916) 923-5447 14287 1 what the water quality would be at that point within Salt 2 Slough? 3 MR. SEXTON: Objection. Relevance. 4 C.O. STUBCHAER: Mr. Nomellini. 5 MR. NOMELLINI: Yeah, the relevance is in terms of 6 the water being provided by the San Joaquin River 7 Agreement whether or not it has any detrimental impacts 8 associated with it in terms of quality. 9 We had testimony previously about the two kinds 10 of inputs to the model, the good quality input and then 11 the not so good. So I was trying to get an idea of what 12 that actually looks like when it hits the San Joaquin 13 River. 14 C.O. STUBCHAER: Is this the same question that 15 Mr. Herrick was asking in his dialogue about whether it 16 was upstream or downstream from where the water came in? 17 MR. NOMELLINI: No, I don't think so. I think I 18 made it clear that I'm talking about at the point where 19 Salt Slough enters the San Joaquin River. 20 C.O. STUBCHAER: With or without -- 21 MR. NOMELLINI: With the release. 22 C.O. STUBCHAER: With the VAMP water? 23 MR. NOMELLINI: With the VAMP water from the -- 24 C.O. STUBCHAER: All right. 25 MR. NOMELLINI: -- from the Exchange Contractors. CAPITOL REPORTERS (916) 923-5447 14288 1 C.O. STUBCHAER: All right. You may ask your 2 question. 3 MR. NOMELLINI: I'd like to stay on this point. 4 C.O. STUBCHAER: All right. 5 MR. CHEDESTER: Can you repeat the question, please? 6 MR. NOMELLINI: Yeah, do you know what the water 7 quality is in Salt Slough at the point adjacent to its 8 entry into the San Joaquin River during the time of the 9 release from the Exchange Contractors for the San Joaquin 10 River Agreement? 11 MR. CHEDESTER: I do not. 12 MR. NOMELLINI: Anybody else? 13 MR. WHITE: (Witness shakes head.) 14 MR. NOMELLINI: On Page 6 -- and I think that is 15 Chris White's testimony at that point. In the -- little 16 below the middle of the page it talks about during this 17 heavy period of groundwater pumping, groundwater levels 18 decreased and water quality deteriorated. 19 What is the relationship between the decrease in 20 groundwater levels and water quality? If you can explain 21 it to me how those two tie together. 22 MR. WHITE: It's -- this is misleading in that it's 23 not a blanket statement across the district, not all 24 degrade in water quality, some improve. But there were 25 some areas where pumping created head differential from CAPITOL REPORTERS (916) 923-5447 14289 1 adjoining areas and brought some poorer quality water into 2 the area. 3 MR. NOMELLINI: Okay. In terms of the location of 4 the areas from which groundwater is extracted, is that 5 generally spread throughout the Exchange Contractors' 6 water authority area, or is it localized? And maybe -- 7 MR. WHITE: Are you asking what the location of the 8 well is? 9 MR. NOMELLINI: Yeah, if you can show us -- I know 10 working with a map is difficult. But if you can explain 11 to us using the map where the usable groundwater wells are 12 located, roughly, that's what I'd like to know. 13 MR. WHITE: Within the Exchange Contractors, first 14 of all, within Central California Irrigation District 15 starting up here in Crows Landing, extreme end of the map 16 there are wells throughout the entire area all the way 17 down into the Los Banos area. 18 MR. BIRMINGHAM: May the record reflect that the 19 witness is pointing to the area immediately to the east of 20 the Delta-Mendota Canal as depicted on San Joaquin River 21 Exchange Contractors Exhibit 8? 22 C.O. STUBCHAER: Yes. 23 MR. NOMELLINI: Does that sound right to you, 24 Mr. White? 25 MR. WHITE: I meant to say that, actually. CAPITOL REPORTERS (916) 923-5447 14290 1 MR. NOMELLINI: Thank you, Tom. 2 MR. WHITE: And within the blue area, San Luis Canal 3 Company, generally, there's wells located throughout the 4 San Luis Canal Company. Throughout the southern end of 5 Central California Irrigation District there is a narrow 6 band of land between the main canal and the outside canal 7 where there are no wells located. 8 MR. NOMELLINI: Where there are no wells located? 9 MR. WHITE: There are no wells. There are wells 10 within the Columbia Canal Company. And I believe that 11 there is one operating well within Firebaugh Canal Water 12 District. 13 MR. NOMELLINI: All right. And where was the area 14 that you referenced where the heavy groundwater pumping 15 resulted in a water quality deterioration? 16 MR. WHITE: One of the areas specifically in the 17 north end of the district here along the main canal, the 18 wells in this area are combination wells. In other words, 19 they tap a higher aquifer and a lower aquifer. And we did 20 experience some degradation in the water quality in this 21 area. 22 MS. WHITNEY: For the record, that's the Central 23 California Irrigation District? 24 MR. WHITE: Within the Central California Irrigation 25 District northwest of Newman. There's some areas in the CAPITOL REPORTERS (916) 923-5447 14291 1 southern end of the district, basically there's some wells 2 in the Dos Palos area and southeast of there that 3 experience some degradation in water quality. 4 MR. NOMELLINI: Okay. Is there a difference in the 5 quality of the groundwater depending upon the depth from 6 which the well is extracting water? 7 MR. WHITE: Yes, there can be. 8 MR. NOMELLINI: In the previous testimony I think in 9 response to a question I thought I heard that the 10 groundwater wells were extracting water from the same zone 11 into which percolation from the surface water was 12 entering. Is that correct? I'm not sure who it was on 13 the panel -- 14 MR. WHITE: I answered that. Yeah, I would say 15 that's correct. 16 MR. NOMELLINI: Okay. So in terms of if I 17 characterize that as a shallow aquifer, would that be 18 accurate? 19 MR. WHITE: Without -- I don't know what the legal 20 interpretation of "shallow aquifer" is, but, yeah, it's a 21 shallow aquifer. 22 MR. NOMELLINI: All right. We have Corcoran clay in 23 this area, don't we? 24 MR. WHITE: Yes, we do. 25 MR. NOMELLINI: All right. Do we have a zone in the CAPITOL REPORTERS (916) 923-5447 14292 1 Corcoran clay that is somewhat isolated from the zone 2 below the Corcoran clay? 3 MR. WHITE: Yes. 4 MR. NOMELLINI: All right. In terms of reference to 5 the Corcoran clay layer, above or below the groundwater 6 wells that you've made reference to, Mr. White, are those 7 above or below -- do they extract water from above or 8 below the Corcoran clay? 9 MR. WHITE: I'm not sure of the exact percentage, 10 but most of them are from above the Corcoran clay. 11 MR. NOMELLINI: All right. And this is to the 12 panel: As I understand it, the Exchange Contractor group 13 has been investing in projects that have produced some 14 extra water that is available for transfer to others. 15 Is that correct? 16 Let's start over here with Mr. Chedester. You 17 nodded your head. You have to speak in order to enter the 18 record. 19 MR. CHEDESTER: I would state that the Exchange 20 Contractors have transferred water. 21 MR. NOMELLINI: Okay. You don't like the word, 22 "extra," do you? 23 MR. CHEDESTER: I guess not. 24 MR. NOMELLINI: All right. Is this water surplus to 25 the needs of the Exchange Contractors, the water that's CAPITOL REPORTERS (916) 923-5447 14293 1 being transferred? 2 MR. SEXTON: Objection. Calls for a legal 3 conclusion. 4 C.O. STUBCHAER: From the nonlegal point of view, 5 you can answer it. 6 MR. CHEDESTER: I don't feel I can answer that. 7 MR. NOMELLINI: Okay. The rest of the panel members 8 are awfully quiet here. Mr. Bryant? 9 MR. BIRMINGHAM: I'm going to object to the question 10 on the grounds it's ambiguous. Is Mr. Nomellini talking 11 about the demands of the Exchange Contractors' service 12 area before or after the implementation of the 13 conservation measures that are described in the testimony? 14 MR. NOMELLINI: After. 15 C.O. STUBCHAER: Mr. O'Laughlin. 16 MR. O'LAUGHLIN: I'm confused as well. This is a 17 question under the Water Code that the Exchange 18 Contractors made findings of surplus waters before they 19 transferred water outside of their districts pursuant to 20 the Water Code. I didn't know if it was in connection to 21 the transfer or what. 22 C.O. STUBCHAER: Can you please clarify, 23 Mr. Nomellini? 24 MR. NOMELLINI: It's too complicated for me to 25 clarify. CAPITOL REPORTERS (916) 923-5447 14294 1 C.O. STUBCHAER: I don't know about that. 2 MR. NOMELLINI: I'll try. I'm not going back to the 3 same exact question. 4 All right, for the panel, the Exchange 5 Contractors have been investing in a number of types of 6 measures that increase the availability of water; is that 7 correct? 8 MR. SEXTON: Objection. Ambiguous. 9 C.O. STUBCHAER: And I'm sorry, I distracted myself 10 during that question. 11 MR. NOMELLINI: All right. We'll do it a little 12 differently, then. Isn't it true, Mr. Chedester, that the 13 Exchange Contractors have been investing money in projects 14 that make more water available for use? 15 MR. CHEDESTER: For use, where? 16 MR. NOMELLINI: Anywhere. 17 MR. CHEDESTER: The Exchange Contractors have 18 made -- have done projects to increase the flexibility and 19 the management of the water supply that they have, that 20 means conjunctive use, that means to efficient irrigation 21 practices. And it allows the Exchange Contractors to best 22 manage on an annual basis their water supply. 23 MR. NOMELLINI: Okay. Does that make more water 24 available for use, beneficial use? 25 MR. CHEDESTER: I can't quantify -- qualify what you CAPITOL REPORTERS (916) 923-5447 14295 1 mean by "beneficial use." 2 MR. NOMELLINI: Does that make more water available 3 for agricultural use? 4 MR. SEXTON: I'm going to object based on ambiguity. 5 Again, more than what? I mean the testimony has been that 6 the Exchange Contractors have an allocation of water. And 7 I guess my question is: Is the questioner asking whether 8 the allocation is being increased? I guess I don't 9 understand. 10 C.O. STUBCHAER: I'm going to sustain the objection. 11 MR. NOMELLINI: All right. 12 C.O. STUBCHAER: But you can rephrase it. 13 MR. NOMELLINI: I'm going to work on it a little 14 differently. 15 On Page 10 of the testimony, reference is made to 16 surface water transfers. And I think the reference is to 17 CCID and other members of the Exchange Contractors Group. 18 Now, have the Exchange Contractors Group members made any 19 transfers of water? 20 MR. CHEDESTER: Yes, they have. 21 MR. NOMELLINI: And roughly what quantity of water 22 has been transferred, what's the range of the water 23 quantity that has been transferred? 24 MR. CHEDESTER: Do you have a time frame that you're 25 talking about? CAPITOL REPORTERS (916) 923-5447 14296 1 MR. NOMELLINI: Yeah, let's take the last five 2 years. 3 MR. CHEDESTER: Between 0 and 60,000 acre-feet. 4 C.O. STUBCHAER: Per year or total? 5 MR. CHEDESTER: Per year. 6 MR. NOMELLINI: All right. And if I asked you 7 year-by-year? 8 MR. CHEDESTER: I'd tell you I don't remember 9 specifically. 10 MR. NOMELLINI: Okay. Do you remember what year 11 that the largest amount transferred was? 12 MR. CHEDESTER: This year, 1999. 13 MR. NOMELLINI: Okay. Was any of the water 14 transferred needed for water use in the exchange 15 contractor area? 16 MR. CHEDESTER: Can you restate that, please? 17 MR. NOMELLINI: All right. What was the source of 18 the water transferred in 1999? 19 MR. CHEDESTER: The physical water that was 20 transferred in '99, which isn't completed yet, is and will 21 be reduced diversions to the Exchange Contractors. And 22 that water will then be transferred to the receiving 23 agency, the physical way it happens. 24 MR. NOMELLINI: Okay. With regard to these reduced 25 diversions to the exchange contractor users, did that CAPITOL REPORTERS (916) 923-5447 14297 1 reduce the amount of acreage being farmed? 2 MR. CHEDESTER: No. 3 MR. NOMELLINI: Did it reduce the amount of water 4 being consumed? 5 MR. SEXTON: You're referring to this year, 1999? 6 MR. NOMELLINI: Yes, this year? 7 MR. CHEDESTER: This year isn't completed yet, so -- 8 MR. NOMELLINI: Well, to the extent it's occurred. 9 MR. CHEDESTER: No. 10 MR. NOMELLINI: Did not reduce any consumptive use? 11 MR. CHEDESTER: No. 12 MR. NOMELLINI: Will the Exchange Contractor users 13 receive all the water that they require this year? 14 MR. CHEDESTER: What do you mean by "require"? And 15 what do you mean "will they receive all"? From where? I 16 guess I shouldn't ask questions. 17 MR. NOMELLINI: Let's break it down. Will the 18 Exchange Contractor users receive all the water they 19 request from the various districts this year? 20 MR. CHEDESTER: By physical limitations or contract 21 limitations, yes. 22 MR. NOMELLINI: All right. Is it fair to state, 23 then that the water being transferred this year is extra 24 water? 25 MR. CHEDESTER: I don't understand your definition CAPITOL REPORTERS (916) 923-5447 14298 1 of "extra water." 2 MR. NOMELLINI: All right. Let's define extra as 3 over and above the needs of water users within the 4 exchange contractor area. 5 MR. CHEDESTER: I don't follow that logic. 6 MR. NOMELLINI: Okay. Would you agree that your 7 exchange contractor users don't need the water being 8 transferred this year? 9 MR. CHEDESTER: I would not agree to that. 10 MR. NOMELLINI: Okay. You did answer, did you not, 11 that they're getting all the water that they requested? 12 MR. CHEDESTER: That is correct. But for the 13 transfer they would take -- they're also not receiving 14 60,000 acre-feet that's being transferred. If the 15 transfer didn't take place, they would receive that 60,000 16 acre-feet and it would be diverted into their system. 17 MR. NOMELLINI: Okay. All right. Then is it your 18 testimony that the farmers have agreed to transfer a 19 portion of their water and, therefore, have not requested 20 that portion that they agreed to transfer? Is that what 21 you're trying to tell me? 22 MR. CHEDESTER: No. The districts operate 23 underneath the direction of the Board of Directors. And 24 through these management things explained in their 25 conservation projects have -- they will be able to meet CAPITOL REPORTERS (916) 923-5447 14299 1 the demands of their growers with the transfer still 2 taking place. The growers will not be shorted by doing 3 this. 4 MR. NOMELLINI: How would you describe that in 5 terms? Is this an easy term to characterize that such as 6 surplus or extra? 7 MR. CHEDESTER: Flexible management of their water 8 supply. 9 MR. NOMELLINI: All right. So flexible management 10 of the water supply has made water available for transfer; 11 is that correct? 12 MR. CHEDESTER: Yes. 13 MR. NOMELLINI: Mr. White? 14 MR. WHITE: My answer to the question is, very 15 simply, it is water in excess of our consumers' needs. 16 Otherwise, there would be a noose around my neck and I'd 17 be hanging in the boardroom. 18 MR. NOMELLINI: Okay. So it's excess to your 19 consumers' needs and it is excess because the districts 20 have invested in particular improvements and projects -- 21 MR. WHITE: We've invested in water conservation 22 projects. 23 MR. NOMELLINI: Okay. That make that water -- 24 MR. WHITE: Available. 25 MR. NOMELLINI: -- available, okay. CAPITOL REPORTERS (916) 923-5447 14300 1 C.O. STUBCHAER: Mr. Nomellini, I'd like to ask a 2 question. 3 MR. NOMELLINI: Yeah. 4 C.O. STUBCHAER: Is the availability of this water a 5 function of the hydrology, the rainfall at all, or is it 6 completely independent of that? 7 MR. WHITE: It is not completely independent of 8 that. There are -- there is a significant recharge 9 component, as an example, in our area that occurs from the 10 creek system that runs through us. And when there is 11 heavy rainfall and release is made from the Los Banos 12 detention then we do see a greater recharge during that 13 time. 14 C.O. STUBCHAER: Thanks. 15 MR. NOMELLINI: Okay. Looking at the 12-year period 16 of the San Joaquin River Agreement, will the hydrology 17 that occurs during that period create the situation where 18 the water being provided is not excess water, but rather 19 water that will result in reduced deliveries to the 20 farmers in the exchange contractor area? 21 MR. BIRMINGHAM: May I ask that that question be 22 reread? 23 C.O. STUBCHAER: Is it still on the screen? 24 THE COURT REPORTER: Yes. 25 C.O. STUBCHAER: Yeah, you may. CAPITOL REPORTERS (916) 923-5447 14301 1 (Whereupon the question was read back by the Reporter.) 2 MR. BIRMINGHAM: Thank you, I've heard enough. This 3 is a classic question that calls for speculation. If any 4 one of these witnesses can look into the crystal ball that 5 they have in their briefcase and tell us what the 6 hydrology is going to be in the next 12 years, I would 7 like them to advise me on what the stock market is going 8 to be. 9 C.O. STUBCHAER: Or the Lotto. 10 MR. NOMELLINI: Well, we do it all the time. We're 11 always projecting ahead, looking at what the hydrology is 12 expected to be and perhaps I'll change the phraseology. 13 C.O. STUBCHAER: I'd like to ask you a question, 14 Mr. Nomellini. 15 MR. NOMELLINI: Yes, sir. 16 C.O. STUBCHAER: For our staff planning, how much 17 longer do you think you'll require for your 18 cross-examination? 19 MR. NOMELLINI: I think ten minutes. 20 C.O. STUBCHAER: Ten minutes. 21 MR. NOMELLINI: But you have to strike out the 22 objections and the argument. 23 C.O. STUBCHAER: We do that. Go ahead. 24 MR. NOMELLINI: All right. Going back to the 25 12-year period of the San Joaquin River Agreement, what is CAPITOL REPORTERS (916) 923-5447 14302 1 projected to be the source of water provided by the 2 Exchange Contractors? 3 MR. WHITE: For CCID it's the program that we 4 delineated in the testimony. 5 MR. NOMELLINI: All right. And how sensitive are 6 those programs to the actual hydrology that might occur 7 during the next 12 years? 8 MR. WHITE: There's some sensitivity. 9 MR. NOMELLINI: All right. If we had a reoccurrence 10 of the 1987 through 1992 hydrology, a reoccurrence of 11 that, what would the source of water be for CCID's share 12 of the San Joaquin River? 13 MR. WHITE: It would be the same programs that we 14 discussed. 15 MR. NOMELLINI: So it would still be excess water; 16 is that correct? 17 MR. WHITE: It would be conserved water as 18 described. It would be conserved water together with the 19 groundwater management components that we talked about. 20 MR. NOMELLINI: All right. Would it still be excess 21 to the needs of your users? 22 MR. WHITE: Yes. 23 C.O. STUBCHAER: Mr. Nomellini, I'm sorry, another 24 question; this won't count -- we're not timing. 25 MR. NOMELLINI: That's okay. CAPITOL REPORTERS (916) 923-5447 14303 1 C.O. STUBCHAER: During the repeat of that drought 2 period, would water be required to be contributed every 3 year, if you know? 4 MR. CHEDESTER: I think there's a provision in the 5 agreement that if something on the 60/20/20 San Joaquin 6 River index is four or less then we would not have to 7 contribute anything. And I can't recall if that would 8 take place during the recent drought. 9 C.O. STUBCHAER: Okay. 10 MR. NOMELLINI: And you would agree, would you not, 11 that the impact of providing water to the San Joaquin 12 River Agreement under one year could be in a following 13 year, because you're extracting water out of water stored 14 in the groundwater basin as well as from the Delta-Mendota 15 Canal? 16 MR. WHITE: That's a possibility. The whole basis 17 of this is that if we -- going into a year, year type and 18 we know how the hydrology, how it started and we have a 19 projection as to how much water needs to be released, the 20 district knows how much work we need to do to produce this 21 water. 22 MR. NOMELLINI: Okay. 23 MR. WHITE: It's not something that happens by the 24 self of luck that we make the water available. 25 MR. NOMELLINI: Right. CAPITOL REPORTERS (916) 923-5447 14304 1 MR. WHITE: It could be capturing tailwater flows 2 that occur during other parts of the year and redirecting 3 that water towards this specific release or conservation 4 of projects. And as I say, all the items that we spelled 5 out earlier. 6 MR. NOMELLINI: All right. Is that agreeable, that 7 testimony consistent for the other members of the panel? 8 MR. CHEDESTER: I believe so. I just want to make 9 it clear the water that would be released, physically 10 released for the San Joaquin River Agreement is going to 11 be DMC water. The water -- how we keep, as Chris 12 mentioned earlier, Mr. White mentioned earlier, how we 13 keep our growers whole is through these projects that he 14 just mentioned. 15 MR. NOMELLINI: Okay. Anything you want to add to 16 that, Mr. Bryant? 17 MR. BRYANT: Nothing. Thank you. 18 MR. NOMELLINI: Now, will there be as a result of 19 the measures contemplated to make the San Joaquin River 20 Agreement water available, any actions that will reduce 21 the flow that would otherwise be -- the quantity of flow 22 that would otherwise be in the San Joaquin River? 23 MR. SEXTON: You talking about at the time of the 24 release? 25 MR. NOMELLINI: Yeah. In other words, are we going CAPITOL REPORTERS (916) 923-5447 14305 1 to reduce flows in the San Joaquin River, for example, 2 during the summer months in order to make these 3 projections work to provide water that would otherwise be 4 available in the spring, Mr. White? 5 MR. WHITE: I guess I'm going to ask you for another 6 definition. What are -- 7 MR. NOMELLINI: Are we just moving water around or 8 are we actually able to increase the yields of the system 9 to produce the water that you people are making available 10 to the San Joaquin River Agreement? 11 MR. WHITE: You must be referring to tailwater 12 recapture as a component. 13 MR. NOMELLINI: I would be concerned about it. If 14 we had good tailwater going into the San Joaquin River and 15 you put a project into place that captures that so that it 16 no longer goes into the San Joaquin River, let's say in 17 June, and that enables you to make this delivery under the 18 spring pulse flow in May or April, then that's what I 19 would be concerned about. 20 MR. WHITE: There is a component of this water 21 that's made available through tailwater recapture. As we 22 discussed earlier, where we're recapturing this water is 23 in areas that historically went to the grasslands 24 downstream of us. 25 At one time that water was used beneficially by CAPITOL REPORTERS (916) 923-5447 14306 1 the wildlife areas, but now with their consistent water 2 supply, the recapturing of this water doesn't affect their 3 usages. And we feel, through our studies, that the 4 drainage water that -- the uncontrolled flows that went 5 into Grasslands, we don't think there was a significant 6 flow of that into the river. 7 C.O. BROWN: How much is that? 8 MR. WHITE: The tailwater recaptured for 9 conservation versus what historically has been picked up 10 in the area is about 20,000 acre-feet. 11 C.O. STUBCHAER: 20? 12 MR. WHITE: 20, over a year. 13 MR. NOMELLINI: And what's the quantity that the 14 Exchange Contractors have agreed to provide under the San 15 Joaquin River Agreement? 16 MR. CHEDESTER: 11,000, on the worse case; average 17 about 4-. 18 MR. NOMELLINI: So in the worse light you reduce the 19 flow in the San Joaquin River by 20,000 acre-feet in the 20 year and put back 11,000 through the San Joaquin River 21 Agreement? 22 MR. SEXTON: Objection. Misstates the testimony. 23 C.O. STUBCHAER: No. 24 C.O. BROWN: That's not it at all. 25 MR. NOMELLINI: All right. I misunderstood the CAPITOL REPORTERS (916) 923-5447 14307 1 testimony. 2 MR. WHITE: Yes, you did. 3 MR. NOMELLINI: Okay. Why don't you set me 4 straight, Mr. White, I may not have heard exactly, when 5 you talked about the tailwater that was being recovered 6 that would otherwise go into the river. 7 MR. WHITE: Can I go up to the map? 8 MR. NOMELLINI: Yes, please. 9 MR. WHITE: The area that we're talking about is 10 reducing tailwater flows that went into the Grasslands 11 area. Here's the south Grasslands. And I'm pointing to 12 an area on Exhibit 8 just southeast of Los Banos. 13 Some of the tailwater recaptured is water that 14 would have gone into the Grasslands in this area. And the 15 other significant area is tailwater recaptured that went 16 into the Grasslands area northwest of Los Banos, that's 17 the northbound of the Grasslands. 18 As we mentioned earlier in our testimony, the 19 channels that distribute water within the Grasslands Water 20 District are the same basic design of the channels that we 21 have in our district. They were built at the same time by 22 Miller and Lux, Incorporated. In fact, this was all 23 controlled at one time by the same organization, it was 24 split out to various entities. 25 When this water gets into -- say, the south CAPITOL REPORTERS (916) 923-5447 14308 1 Grasslands area, there is literally 20 to 30 miles of 2 channel that it has to get through to get to the river. 3 This water -- we know that through our studies, due to, 4 number one, the high groundwater that's adjacent to those 5 channels and, number two, the silt deposition which occurs 6 at the bottom of these channels, as you raise the water 7 surface in them the percolation increases very 8 significantly, very quickly. 9 It's -- and we feel that the water that went into 10 these channels basically percolated into the groundwater 11 in this area as opposed to making it to the river. And 12 that is what is testified to. 13 MR. NOMELLINI: Okay. 14 C.O. BROWN: Mr. Chairman? 15 C.O. STUBCHAER: Mr. Brown. 16 C.O. BROWN: And this is a question, but as I 17 remember, much of that groundwater in the Grasslands area 18 is not suitable for irrigation. 19 MR. WHITE: It's fairly poor quality. Yes, it is 20 very poor quality water. 21 C.O. BROWN: This is an important point, is that 22 tailwater recovery, then, would keep water from going into 23 an area where percolation into an unsuitable groundwater 24 basin is involved; is that right? 25 MR. WHITE: That's correct. CAPITOL REPORTERS (916) 923-5447 14309 1 C.O. BROWN: And that's about 20,000 acre-feet? 2 MR. WHITE: I would say 20,000 average. 3 C.O. BROWN: Some might call it "real water" then; 4 is that correct? 5 MR. WHITE: We think it is. 6 MR. NOMELLINI: Sounds to me like real water, too. 7 C.O. BROWN: That's what we're looking for. 8 MR. NOMELLINI: Is there -- do the Exchange 9 Contractors have more of this -- I'm going to use the term 10 "real water" -- available that could be used for meeting 11 the pulse flow requirements if somebody so requested? 12 MR. BIRMINGHAM: I'm going to object to the question 13 on grounds of relevance. 14 C.O. STUBCHAER: No. 15 C.O. BROWN: It's a good question. 16 C.O. STUBCHAER: I think it's relevant. I don't 17 know -- well, you said "requested," requested or required? 18 MR. NOMELLINI: I said if somebody requested it. 19 C.O. STUBCHAER: Requested, yeah. 20 MR. NOMELLINI: If asked is there more water 21 available -- 22 C.O. STUBCHAER: Right. 23 MR. NOMELLINI: -- from these people? 24 C.O. STUBCHAER: Mr. Godwin. 25 MR. GODWIN: Yeah, I'm going to continue CAPITOL REPORTERS (916) 923-5447 14310 1 Mr. Birmingham's objection. Again, this phase of the 2 hearing is for the petition change of the place of use and 3 purpose of use to implement the VAMP. 4 The Exchange Contractors have already testified 5 that their maximum amount pursuant to the San Joaquin 6 River Agreement is less than 1,000 acre-feet. Now, why do 7 we have to go into this line of questioning about whether 8 or not they can provide more is really irrelevant to this 9 hearing, because they testified that 11,000 is the max. 10 MR. NOMELLINI: Well -- 11 MR. HERRICK: I would just comment that other 12 testimony suggests that the current division of -- the 13 current allocations of the San Joaquin River flows can be 14 changed among the parties. So I would say it was 15 perfectly relevant to see if they are able to and may in 16 some circumstances provide more. 17 C.O. STUBCHAER: Mr. Jackson. 18 MR. JACKSON: I would agree with what Mr. Herrick 19 said and also point out that the evidence before us so far 20 is that other parties may not be contributing "real 21 water." And so it is important to find out where we could 22 get "real water" in order to effectuate the VAMP. 23 C.O. STUBCHAER: Mr. O'Laughlin. 24 MR. O'LAUGHLIN: I appreciate the editorial 25 comments, but leaving that aside, that's not covered under CAPITOL REPORTERS (916) 923-5447 14311 1 the change petitions. The change petitions don't cover 2 the San Joaquin River Exchange Contractors. They're out. 3 So they're providing testimony here about how their water 4 is being made available. 5 Whether or not they can make more water available 6 or less water available is not an issue in front of the 7 Board. So they came here today to testify in regard to 8 hearing issue number seven, to allow the Board and the 9 parties an opportunity to understand how that water was 10 being made available. Whether or not they can make more 11 water available or less water available is irrelevant. 12 C.O. STUBCHAER: Okay. We're going off the record 13 for a moment. 14 (Off the record from 3:17 p.m. to 3:18 p.m.) 15 C.O. STUBCHAER: Back on the record. The objections 16 are overruled. 17 MR. CHEDESTER: There could be more water available. 18 MR. NOMELLINI: How much more? 19 MR. O'LAUGHLIN: Objection. Just so the record is 20 clear, I'm going to object to all this line of questions 21 as irrelevant. So rather than get up each time that a 22 question is asked in this vein, if the Chair would allow 23 me to have a standing objection along that line, I'd 24 appreciate it. 25 C.O. STUBCHAER: Yes, your objection is, CAPITOL REPORTERS (916) 923-5447 14312 1 Mr. O'Laughlin, and yours, too, Mr. Birmingham. 2 MR. BIRMINGHAM: Well, actually, I was going to 3 withdraw my objection. I learned a long time ago that 4 when somebody is acting as the judge or quasi judge says, 5 "That's a good question," I'm not going to argue. 6 C.O. STUBCHAER: Okay. Strike my last comment. 7 Let's go ahead and see if we can wind this up. 8 Mr. Nomellini. 9 MR. CHEDESTER: Is the question: How much more? 10 MR. NOMELLINI: Yes. How much more in terms of 11 acre-feet per year might be available? 12 MR. CHEDESTER: For the San Joaquin River Agreement? 13 MR. NOMELLINI: For a pulse flow. 14 MR. CHEDESTER: Okay. There's -- I don't mean to be 15 dodging the issue, but there is physical capacity to even 16 make -- to deliver the water from the exchange, in other 17 words, they can limit how much. 18 MR. NOMELLINI: All right. 19 MR. CHEDESTER: And there is -- 20 MR. NOMELLINI: Let's start first with the quantity 21 available, regardless of the means of delivery. 22 MR. CHEDESTER: I don't have a number in my head, 23 but as CCID mentioned, they have 20,000 and we're probably 24 in the 40,000 acre-foot range, plus or minus. 25 MR. NOMELLINI: All right. And in terms of the CAPITOL REPORTERS (916) 923-5447 14313 1 delivery restraints, what delivery restraints did you have 2 in mind? 3 MR. WHITE: There are capacity restraints within the 4 system to deliver the water to the river. As an example, 5 the -- sorry, I was talking too fast. The north end of 6 the main channel, the maximum capacity at that point is 7 300 second feet. We had assigned 200 second feet for the 8 delivery. And so that's the constraint. 9 MR. NOMELLINI: All right. And in terms of that 10 particular constraint, is it impractical to think in terms 11 of enlarging the delivery facility? 12 MR. WHITE: Yes. 13 MR. NOMELLINI: It is because of cost? 14 MR. WHITE: Yes. 15 MR. NOMELLINI: Okay. Last area of questions. 16 C.O. STUBCHAER: "Area," oh. 17 MR. NOMELLINI: I've got to be careful, because if I 18 said last question, you guys would drag me out of here and 19 beat me up. 20 MR. JACKSON: No, we wouldn't. 21 MR. NOMELLINI: How sensitive are the water 22 conservation -- and I'm using the term "conservation," I 23 think as you used it -- measures to the quality of water 24 delivered through the Delta-Mendota Canal if at all? 25 Mr. White, let's start with you. CAPITOL REPORTERS (916) 923-5447 14314 1 MR. WHITE: You need to clarify the question. 2 MR. NOMELLINI: Yeah. Are these conservation 3 measures which I gather include more efficient water use, 4 integration of tailwater in with the irrigation water, 5 those types of things, which I would crudely characterize 6 as involving some reuse of water, how sensitive are those 7 to the quality of the water delivered through the 8 Delta-Mendota Canal, if there's any sensitivity at all? 9 MR. WHITE: I don't know of any sensitivity to the 10 water based on the water quality that we've received. 11 MR. NOMELLINI: Okay. 12 MR. WHITE: Historically. 13 MR. NOMELLINI: Is that the same for all of you on 14 the panel? 15 MR. BRYANT: Yeah. I just feel as though that if 16 the Delta-Mendota Canal quality was extremely high it 17 would inhibit some of the blending that goes on from the 18 tailwater return. So I guess that would be the only 19 sensitivity. Having said that and tracking the numbers in 20 the Delta-Mendota Canal for a lot of years, I don't see a 21 problem. 22 MR. NOMELLINI: Okay. 23 MR. BRYANT: Historic problem. 24 MR. NOMELLINI: So there's no problem with the range 25 that you've experienced in the past? CAPITOL REPORTERS (916) 923-5447 14315 1 MR. BRYANT: No. 2 MR. NOMELLINI: But would you agree that a lower 3 quantity of salt would allow a greater degree of blending, 4 Mr. Bryant? 5 MR. BRYANT: I would agree with that. 6 MR. NOMELLINI: Mr. Chedester? Simple question. 7 C.O. STUBCHAER: No, it isn't simple. 8 MR. NOMELLINI: No. Okay, complicated question. 9 MR. CHEDESTER: What are you trying -- compared to 10 what? 11 MR. NOMELLINI: Does less salty water allow for more 12 blending? 13 C.O. STUBCHAER: Assuming that water is available 14 for blending. 15 MR. NOMELLINI: Sure, in the hypothetical, 16 assuming -- 17 C.O. STUBCHAER: In other words, is the blending 18 ever limited by the quality of the -- 19 MR. NOMELLINI: Well, not really. I wasn't reaching 20 for limited, but can you do more blending if you have 21 better quality water? That's what I was trying to get at. 22 C.O. STUBCHAER: Sorry for interrupting. 23 MR. CHEDESTER: I think as both Jeff and Mr. White 24 testified, right now the projects aren't sensitive to the 25 existing water quality that they are receiving. So I go CAPITOL REPORTERS (916) 923-5447 14316 1 back to: Better than what? I don't believe what's 2 limiting them to their projects right now is water 3 quality. 4 MR. NOMELLINI: Okay. So let me stay right with 5 you, Mr. Chedester. So you don't care if the water 6 quality that you get deteriorates? 7 MR. CHEDESTER: I didn't say that. 8 MR. NOMELLINI: Okay. Now, why do you care, if you 9 do? Do you care if the water quality that you get from 10 Delta-Mendota Canal has more salt in it? 11 MR. CHEDESTER: Of course, we do. 12 MR. NOMELLINI: Okay. And why do you care? 13 MR. O'LAUGHLIN: I'm going to object to this line of 14 questioning. What -- what amount of water they get -- 15 C.O. STUBCHAER: It's sustained. 16 MR. O'LAUGHLIN: Thank you. 17 MR. NOMELLINI: All right. Thank you very much. 18 C.O. STUBCHAER: Okay. Thank you, Mr. Nomellini. 19 Staff have any questions of this panel? 20 MR. HOWARD: No. 21 MS. LEIDIGH: No. 22 C.O. STUBCHAER: Mr. Brown? 23 C.O. BROWN: I don't have a question. I think you 24 have one or two. 25 C.O. STUBCHAER: No, I don't have any questions. CAPITOL REPORTERS (916) 923-5447 14317 1 C.O. BROWN: Maybe just a comment that I'm somewhat 2 encouraged that maybe we have found some "real water." I 3 didn't see Mr. Nomellini blink too hard on that 4 possibility. 5 MR. NOMELLINI: Good observation, Mr. Brown. 6 C.O. BROWN: So I'm encouraged. And I think the 7 conservation practices demonstrated here can go a long 8 ways towards helping us solving our goals to having more 9 water to do more things. So from that standpoint I thank 10 you. 11 C.O. STUBCHAER: Any redirect, Mr. Sexton? 12 MR. SEXTON: No, I don't, Mr. Stubchaer. At this 13 time I'd like to offer Exchange Contractors' 7 -- 14 MR. BIRMINGHAM: Excuse me, could I have a moment to 15 confer with Mr. Sexton? 16 C.O. STUBCHAER: Regarding the exhibits, I thought 17 we were going to hold those -- this is just Exchange 18 Contractors as separate from the San Joaquin River Group? 19 MR. SEXTON: Yes, Mr. Stubchaer. We're part of the 20 San Joaquin River Group, but we submitted the testimony 21 and the exhibits separately, individually. 22 C.O. STUBCHAER: All right. 23 MR. SEXTON: May I have just a moment, sir? 24 C.O. STUBCHAER: Yeah, how about 35 seconds. 25 MR. SEXTON: Thank you. CAPITOL REPORTERS (916) 923-5447 14318 1 (Off the record from 3:29 p.m. to 3:30 p.m.) 2 C.O. STUBCHAER: Mr. Sexton. 3 MR. SEXTON: Thank you, Mr. Stubchaer. I'd like to 4 offer into evidence Exchange Contractors' Exhibit 7, 7A 5 through 7E and 8. 6 C.O. STUBCHAER: Any objections? Seeing no 7 objections, they are accepted into the record. 8 Thank you, gentlemen, for your participation and 9 Mr. Sexton. 10 MR. WHITE: Thank you. 11 MR. CHEDESTER: Thank you. 12 MR. BRYANT: Thank you. 13 C.O. STUBCHAER: All right. 14 Mr. O'Laughlin. 15 MR. O'LAUGHLIN: As we -- the San Joaquin River 16 Group Authority is prepared to call Mr. Howard and Mr. 17 Johns. We can start that case right now at 3:30 and begin 18 the questioning of Mr. Howard and then continue it on the 19 15th and have Mr. Johns come down and finish the line of 20 questioning for both of them on Tuesday, if the Board so 21 desires. 22 C.O. STUBCHAER: I like to make use of every half 23 hour that we have available to us so if you're ready to 24 start today. 25 Mr. Howard, are you ready? Mr. Frink, counsel CAPITOL REPORTERS (916) 923-5447 14319 1 for Mr. Howard, is here. 2 MR. O'LAUGHLIN: I don't know if Mr. Howard has been 3 sworn in yet. 4 MR. HOWARD: No, I haven't, but I was going to say 5 that. 6 MR. O'LAUGHLIN: Okay. Great. 7 C.O. STUBCHAER: Mr. Howard, you promise to tell the 8 truth in these proceedings? 9 MR. HOWARD: I do. 10 C.O. STUBCHAER: Thank you. You may proceed. 11 MR. GODWIN: Is Mr. John available this afternoon? 12 C.O. STUBCHAER: He wasn't requested by 13 Mr. O'Laughlin. 14 MR. O'LAUGHLIN: You can just have him come up on 15 Tuesday morning, or do you want to do him right now? 16 MR. GODWIN: Well -- 17 MR. O'LAUGHLIN: Is Mr. Johns going to be 18 represented by the same counsel? 19 MS. LEIDIGH: Yes. 20 MR. O'LAUGHLIN: Okay. If he's available, it might 21 expedite things. 22 MR. GODWIN: Sorry for the misunderstanding. 23 C.O. STUBCHAER: All right. While we're during this 24 pause, to make use of the time, I just received a letter 25 from Assemblyman Machado that he request be considered as CAPITOL REPORTERS (916) 923-5447 14320 1 a policy statement for Phase II-B. And I will read this 2 letter into the record and we'll make copies available for 3 everyone. 4 (Reading): 5 "I respectfully request that this letter be 6 received as a policy statement relative to 7 the Phase II-B hearing which began yesterday. 8 I reviewed and fully concurred with the policy 9 statement which Robert Cabral, Chairman of the 10 San Joaquin County Board of Supervisors, made 11 to you on Wednesday, June 9th. 12 In particular I believe that a comprehensive 13 solution to the San Joaquin River can and will 14 be a reality. Efforts are already being 15 undertaken to begin this process. 16 For instance, the Central Valley Regional 17 Water Quality Control Board has currently 18 established a total maximum daily flow for 19 dissolved oxygen on the river. 20 Moreover, the San Joaquin River dissolved 21 oxygen TMDL steering committee, an organization 22 of stakeholders who rely heavily on the San 23 Joaquin River water, has submitted a grant 24 proposal to the CalFed to fund the scientific 25 studies that would further define the TMDL. CAPITOL REPORTERS (916) 923-5447 14321 1 Continued deterioration of water quality in the 2 San Joaquin River is a complexed problem that 3 requires a well coordinated long-term solution. 4 Any proposal must ensure that all of the 5 stakeholders' viewpoints are equally addressed 6 and that no particular interest is unfairly 7 penalized or rewarded. 8 It would be most unfortunate if at this point a 9 piecemeal solution were adopted, which in turn 10 would interfere with the implementation of the 11 comprehensive San Joaquin River solution. 12 I hope that you will keep this in mind as the 13 Phase II-B hearing progresses. Sincerely, 14 Michael J. Machado, Chair Assembly of Water 15 Parks Committee." 16 So that is in the record. All right. What about 17 Mr. Johns? 18 MS. LEIDIGH: Mr. Johns is not available. He's in a 19 meeting right now that he is running. 20 C.O. STUBCHAER: All right. 21 Mr. Godwin, can you begin? 22 MR. GODWIN: Yes, I can begin. 23 C.O. STUBCHAER: All right. 24 // 25 // CAPITOL REPORTERS (916) 923-5447 14322 1 ---oOo--- 2 DIRECT TESTIMONY OF THE SAN JOAQUIN RIVER GROUP AUTHORITY 3 OF MR. HOWARD 4 BY MR. GODWIN 5 MR. GODWIN: Did you take the oath already? 6 MR. HOWARD: Yes, I did. 7 MR. GODWIN: Okay. I forgot, Mr. Howard, what is 8 your title and position? 9 MR. HOWARD: Assistant Division Chief, Division of 10 Water Rights. 11 MR. GODWIN: With the State's Water Rights Control 12 Board? 13 MR. HOWARD: Yes. 14 MR. GODWIN: Did you participate in the preparation 15 of the Draft EIR for the implementation of 1995 Bay-Delta 16 Water Quality Control plan dated November 1997, Volume IV 17 of the Draft EIR dated May 1998? 18 MR. HOWARD: Yes. 19 MR. GODWIN: And are you familiar with those two 20 documents? 21 MR. HOWARD: Yes. 22 MR. GODWIN: Did you also participate in the 23 development of the flow alternatives that were prepared 24 for that Draft EIR? 25 MR. HOWARD: Yes. CAPITOL REPORTERS (916) 923-5447 14323 1 MR. GODWIN: And are you particularly familiar with 2 the flow Alternatives 2, 3, 5 and 8? 3 MR. HOWARD: Yes. 4 MR. GODWIN: As I understand it the flow 5 alternatives were designed to implement the flow 6 objectives in the Water Quality Control Plan; is that 7 correct? 8 MR. HOWARD: Yes. 9 MR. GODWIN: Do you know what those flow objectives 10 were? 11 MR. HOWARD: Yes. 12 MR. GODWIN: Could you tell us, please. 13 MR. HOWARD: Well, the flow objectives extended from 14 February through June. I don't have the specific numbers 15 in mind, but there was one flow objective depending on 16 whether or not the X2 was upstream or downstream of Chipps 17 Island from February through April 15th and then a pulse 18 flow from April 15th to May 15th. And then the same 19 objective in the earlier period, again, from May 15th to 20 June 30th. And, generally, the objectives ranged from 21 around 3,000 to 8,000 cfs. 22 MR. GODWIN: Okay. You're describing the flow 23 objectives for the San Joaquin River at Vernalis; is that 24 correct? 25 MR. HOWARD: That is true. CAPITOL REPORTERS (916) 923-5447 14324 1 MR. GODWIN: Weren't there other flow objectives -- 2 MR. HOWARD: Yes, there were. 3 MR. GODWIN: -- in the Water Quality Control Plan? 4 MR. HOWARD: Yes. 5 MR. GODWIN: And do you know who those were? 6 MR. HOWARD: There were Delta outflow objectives. 7 There was an X2, referred to as an X2 standard, which 8 could be characterized as either a salinity or an outflow 9 objective. That extended, again, from February through 10 June. 11 There were also outflow objectives for all of the 12 rest of the months in those cases not related to the X2 13 position. And they change by year type and by month, of 14 course. 15 MR. GODWIN: The flow objectives in the flow 16 alternative -- actually, let me back up. 17 The flow alternatives then were not intended to 18 meet, for instance, the Suisun Marsh salinity objective, 19 were they? 20 MR. HOWARD: No. 21 MR. GODWIN: And they weren't intended to meet the 22 narrative objective for brackish tile marshes in Suisun 23 Bay, were they? 24 MR. HOWARD: No. 25 MR. GODWIN: The flow objectives were not intended CAPITOL REPORTERS (916) 923-5447 14325 1 to meet the narrative objective for salmon protection, 2 were they? 3 MR. HOWARD: No. 4 MR. GODWIN: And the flow objectives were not 5 intended to meet the dissolved oxygen objective in the San 6 Joaquin River? 7 MR. HOWARD: No. 8 MR. GODWIN: Okay. Now, I want to jump over to some 9 issues regarding real water and new water, since that term 10 has been thrown about quite a bit. And I'd like to get, 11 from your perspective, the Board's interpretation of that 12 term. 13 I'm going to read a definition and I want to see 14 if you concur with that definition. 15 (Reading): 16 "Real water is water for transfer that is not 17 derived at the expense of any other lawful 18 water user." 19 Would you agree with that definition? 20 MR. HOWARD: It doesn't have to be water for 21 transfer, but in general, yes. 22 MR. GODWIN: Okay. Would you agree that stored 23 water released, that would not otherwise be released, is 24 an example of real water? 25 MR. HOWARD: It could be, but not necessarily. CAPITOL REPORTERS (916) 923-5447 14326 1 MR. GODWIN: Would you agree that real water is not 2 necessarily new water? 3 MR. HOWARD: Yeah, I would agree with that, yes. 4 MR. GODWIN: Maybe we ought to go over a definition 5 of new water first before I ask you that question. I'm 6 going to define new water as water not previously 7 available in the system created by reducing irrecoverable 8 losses or flow to an unusable water body such as the ocean 9 or a subsink, or an unusable water basin. 10 Would you agree with that definition? 11 MR. HOWARD: Yes. 12 MR. GODWIN: As an example of new water, would you 13 agree that water stored when a reservoir captured runoff 14 that would otherwise flow to the ocean during the periods 15 of excess outflow could be considered as new water? 16 MR. FRINK: Mr. Chairman, excuse me. I'm Dan Frink. 17 I'm an attorney with the Water Resources Control Board and 18 in this instance I'll be appearing as counsel for Mr. 19 Howard. 20 I would object to the question on the basis that 21 it's calling for Mr. Howard's interpretation of the issues 22 that are going to come before this Board. And Mr. Howard 23 may well be involved in the deliberative process that goes 24 to resolution of those issues. 25 In looking over the subpoena, it seems to call CAPITOL REPORTERS (916) 923-5447 14327 1 for information from Mr. Howard regarding the Draft 2 Environmental Impact Report related matters. But I'm not 3 sure interpretation of Mr. Howard on these issues, other 4 than if the question is: How was the term used in the 5 Draft Environmental Impact Report, is relevant or proper 6 in view of the fact that he is working as -- in the 7 capacity of staff of the Board. 8 C.O. STUBCHAER: Mr. Godwin. 9 MR. GODWIN: You want to take it, Tim? 10 MR. O'LAUGHLIN: Yeah, I'll take it first. 11 In regards to this, the line of questioning is 12 setting up the definitions for an understanding of how the 13 Draft EIR was formulated, the alternatives that were 14 formulated and how the staff addressed the issues of 15 impacts coming out from those alternatives. 16 So all Mr. Godwin is doing is laying a basic 17 understanding of the definition of the terms that will be 18 used throughout this examination of Mr. Howard and 19 Mr. Johns as to what those terms are so that when we use 20 those terms it's understood what is meant by those terms. 21 C.O. STUBCHAER: Mr. Nomellini. 22 MR. O'LAUGHLIN: There's no deliberation involved in 23 this. 24 C.O. STUBCHAER: Mr. Nomellini. 25 MR. NOMELLINI: Unless the terms are in the CAPITOL REPORTERS (916) 923-5447 14328 1 environmental document and they want to know what 2 Mr. Howard's understanding is of the term as used in the 3 document, I think it is over in an area -- I've never been 4 a great fan of the deliberative privilege -- I think that 5 is what the concern of the Attorney General is. And since 6 it's been applied to me, I just as soon see it applied to 7 Mr. Godwin equally. 8 Secondly, if they want to pursue the 9 environmental document they ought to ask questions about 10 the document and I don't think it's necessary to go over 11 into this area and it's outside the scope of this hearing. 12 C.O. STUBCHAER: Mr. Jackson. 13 MR. JACKSON: Yes, I would like to use the scope 14 argument that was made earlier by the other side. In the 15 first three minutes here we seem to have been dealing with 16 flow objectives in Alternatives 2, 3, 5 and 8, which are 17 totally outside the notice of the hearing. And will be 18 issues -- I think, were issues in Phase V, which we're 19 trying not to get back to, I understand -- will be the 20 issues in Phase VIII. 21 And we're also dealing with questions that are 22 clearly legal conclusions that are going to be dealt with 23 in your deliberative process. So I would object to the 24 question -- to the line of questions that I've just heard 25 as outside the scope of this hearing. CAPITOL REPORTERS (916) 923-5447 14329 1 C.O. STUBCHAER: Mr. Campbell. 2 MR. CAMPBELL: Two points of clarification. First, 3 with regard to Mr. Nomellini's statements, I'd like to 4 point out that counsel for Mr. Howard in this proceeding, 5 Mr. Frink is not from the Attorney General's Office, but 6 as he stated earlier is part of counsel's office for the 7 State Water Resources Control Board. 8 Second, I would like to point out that it may be 9 helpful for the Board to clarify that the statements made 10 by Mr. Howard are not -- do not bind the Board and do not 11 amount to any prejudgment by the Board as to the ultimate 12 issues that the Board will decide in this proceeding. 13 MR. O'LAUGHLIN: Mr. Stubchaer? 14 C.O. STUBCHAER: Mr. O'Laughlin. 15 MR. O'LAUGHLIN: I find it ironic that 16 Mr. Nomellini, the person who asked for the broadest scope 17 in regards to examination of witnesses, is now wanting to 18 confine it. But leaving that aside, what we're trying to 19 point out here is hearing notice number seven asked for an 20 inquiry into the question of real water being made 21 available. 22 Now, the San Joaquin River Agreement, the flows 23 that are being made available for the San Joaquin River 24 Agreement are set forth in Alternative Number 8. They're 25 an alternative to the State Water Resources Control Board. CAPITOL REPORTERS (916) 923-5447 14330 1 Granted, they are part of the petition that we're 2 presenting in front of the Board under 1707 and 1725. 3 What we wanted to do in the cross-examine -- in 4 the testimony of Mr. Howard and Mr. Johns is juxtapose the 5 flows being made available under the San Joaquin River 6 Agreement with the flows being made available under the 7 other alternatives to highlight this question of real 8 water being made available under the other alternatives 9 and under the San Joaquin River Agreement to get a handle 10 on what is understood about the nature and the scope and 11 the extent of the water being made available. 12 That is the purpose of the testimony that we hope 13 to elicit from Mr. Howard and Mr. Johns. We do not want 14 to go into the deliberative process of the Board. We 15 believe that our inquiry is very narrow and it only goes 16 to the scope and extent of the analysis that was done for 17 the Draft Environmental Impact Report. 18 C.O. STUBCHAER: Mr. Nomellini. 19 MR. NOMELLINI: That could simply be asked by asking 20 Mr. Howard what they assume to be the source of the water 21 for the analysis in the environmental impact statement. 22 MR. O'LAUGHLIN: But it can't be -- I'm sorry to 23 jump up so quick. But we have to have an understanding. 24 And I think what Mr. Godwin is trying to do here -- and we 25 worked on this for two or three weeks to try to get these CAPITOL REPORTERS (916) 923-5447 14331 1 questions very narrow and very confined -- is to allow in 2 the questioning to have Mr. Howard and the questioner 3 understand the definitions that are going to be used. 4 Otherwise, as we have seen in the past with the 5 definitions of return flow, real water, new water, 6 incremental water, the definitions all go to the Board. 7 So we want to have a very succinct understanding from 8 Mr. Howard as we're moving forward with this testimony as 9 to those definitions so that when we highlighted those 10 differences through the other alternatives with 11 Alternative Number 8 it would be better explain the 12 concept of what water is being made available. 13 C.O. STUBCHAER: Mr. Jackson. 14 MR. JACKSON: Yes. There is more than one thing 15 happening here, but it seems to me that the comparison of 16 the alternatives is not noticed in this hearing. The idea 17 that we're going to be comparing alternatives without the 18 environmentalists here, without the Bureau here, without 19 the United States Fish and Wildlife Service here, there 20 would be no reason for them to be here given this notice 21 on this issue. 22 And it seems to me that the question of 23 definition of "real water" probably is within the scope, 24 but the rest of this comparison is certainly outside it. 25 And I would ask that all such questions be ruled beyond CAPITOL REPORTERS (916) 923-5447 14332 1 the scope. 2 C.O. STUBCHAER: Mr. Frink. 3 MR. FRINK: Yes, Mr. Stubchaer. I would simply ask 4 that the questions be within the scope of what was listed 5 in the subpoena, quite apart from the deliberative process 6 privilege. 7 Obviously, since Mr. Howard is with Board staff 8 he could not prepare and submit a written statement on 9 behalf of the given party. And he is subject to subpoena. 10 And he's willing to testify regarding the subjects listed 11 in the subpoena, but I think that should be the scope of 12 his testimony. 13 C.O. STUBCHAER: Mr. Birmingham. 14 MR. BIRMINGHAM: I wonder if the concern that 15 Mr. Frink has expressed, which I believe is a legitimate 16 concern, and the needs of the San Joaquin River Group, 17 which are legitimate needs, could be accommodated by 18 rather than examining Mr. Howard on these issues examining 19 the EIR consultant who prepared the document. 20 That way it would reduce the risk of getting into 21 the deliberative process of the Board and it would simply 22 require issuing another subpoena for the appropriate 23 witness from Jones and Stokes and having that technical 24 person appear and respond to these questions. 25 C.O. STUBCHAER: Was the term "real water" even used CAPITOL REPORTERS (916) 923-5447 14333 1 in the EIR? 2 MR. BIRMINGHAM: Well, even if it were not used in 3 the EIR, we have never limited the scope of examination to 4 the description of testimony in subpoenas. I think 5 Mr. Frink is trying to limit the scope in this situation 6 because Mr. Howard is a member of the State Board staff 7 who's participating in these proceedings. 8 C.O. STUBCHAER: Understood. 9 MR. BIRMINGHAM: But we could avoid that risk if 10 rather than examining Mr. Howard we were to examine the 11 EIR consultant. 12 C.O. STUBCHAER: If the term "real water" isn't used 13 in the EIR, how would the consultant who prepared that 14 document have a definition of real water in mind? 15 MR. BIRMINGHAM: I think Mr. Godwin has provided the 16 definition. 17 MR. FRINK: Excuse me, Mr. Stubchaer. 18 C.O. STUBCHAER: Mr. Frink. 19 MR. FRINK: It's my understanding that there was not 20 a consultant in the normal sense that prepared the EIR in 21 this instance. It was primarily a product of Board staff 22 and that differs from other instances. 23 MR. GODWIN: And I'd like to add too that I have not 24 had an opportunity to talk to Mr. Howard or Mr. Johns in 25 advance. And, previously, the practice of the Board has CAPITOL REPORTERS (916) 923-5447 14334 1 been to allow a little bit more flexibility when we're 2 seeking and interviewing witnesses that we've not had an 3 opportunity to talk to in advance. 4 If I may be allowed to continue, as pointed out 5 by Mr. O'Laughlin and others, what I'm trying to do here 6 is lay a foundation so we can then discuss the 7 alternatives and whether or not the analysis included real 8 water in those alternatives. I think it would relevant -- 9 C.O. STUBCHAER: You take -- 10 MR. GODWIN: Excuse me. It's very relevant to this 11 phase, but you're asking whether or not real water is 12 being provided by the member agencies that are 13 participating in the San Joaquin River Agreement. 14 C.O. STUBCHAER: Do you take Mr. Howard's answers as 15 his viewpoint, or as the Board's viewpoint, or as the 16 Board's staff viewpoint? And also not having these 17 questions in advance, he hasn't had an opportunity to 18 prepare for them or review them. So it's kind of surprise 19 questions as opposed to surprise testimony. 20 Do you have a response to that? 21 MR. O'LAUGHLIN: Yeah -- 22 C.O. STUBCHAER: I was asking Mr. Godwin. 23 MR. GODWIN: I was asking these questions of 24 Mr. Howard as a member of the Board staff and how the 25 Board staff interprets these terms and what the staff did CAPITOL REPORTERS (916) 923-5447 14335 1 with respect to the EIR. I'm not asking him for how the 2 Board is going to interpret these. 3 MR. O'LAUGHLIN: And -- 4 C.O. STUBCHAER: Now, Mr. O'Laughlin. 5 MR. O'LAUGHLIN: Thank you. In response to that 6 second part of that question, the reason that we did not 7 submit anything ahead of time was staff counsel told us we 8 were not allowed to talk with the witness or to meet with 9 the witness or to submit questions ahead of time. So, 10 therefore, pursuant to a staff direction, we did not do 11 that. 12 C.O. STUBCHAER: Right. 13 MR. O'LAUGHLIN: I realize it's a surprise to 14 Mr. Howard. 15 C.O. STUBCHAER: Right. 16 MR. O'LAUGHLIN: But we did what we were told to do 17 by your staff counsel. 18 C.O. STUBCHAER: That's true the ex-parte rules have 19 a bearing here. 20 MR. NOMELLINI: Mr. Chairman, that's what I wanted 21 to go on the record on. I object very strongly to any 22 party talking to the staff involved in this hearing on any 23 substantive matter without notice to all the other parties 24 to be present. The proper format for that would have been 25 a deposition duly noticed to all the other parties or at CAPITOL REPORTERS (916) 923-5447 14336 1 the public hearing. 2 C.O. STUBCHAER: It did not occur. 3 MR. NOMELLINI: I know, I just want to make sure it 4 doesn't. 5 C.O. STUBCHAER: Right. 6 MR. O'LAUGHLIN: The other point that I'd like to 7 address is that all the other parties have been given 8 notice, because we sent out the subpoenas for Mr. Howard 9 and Mr. Johns and served them on all the parties to the 10 proceedings. So they knew that at some time in Phase II-B 11 Mr. Howard and Mr. Johns would be appearing and would be 12 testifying. 13 So that's a risk that if they didn't show up that 14 they incur, because as we note in these hearings the scope 15 of direct examination gets somewhat broad at times and it 16 isn't limited. So I think we've confined our subpoena to 17 a narrow issue. 18 We're focusing in on the Draft EIR. We're 19 focusing in on this question on Alternative Number 7. And 20 the reason it's important, if I may spend just a second on 21 this, is in understanding what impacts may occur within 22 the system, you have to understand from the base cases 23 upon which you're operating. 24 The alternatives set forth various components of 25 analyzing how they impact downstream uses, water quality CAPITOL REPORTERS (916) 923-5447 14337 1 and other factors. So we need to have some understanding 2 of the San Joaquin River Agreement and the petition flows, 3 vis-a-vis the other alternatives and the base case. And 4 that's provided for in the Draft EIR. 5 What we are looking toward is to elicit testimony 6 from staff on those questions. I do not believe the 7 deliberative privilege applies to the formation of the 8 Draft EIR. I think the deliberative privilege would 9 clearly apply to Mr. Howard's discussions with the staff 10 and the Board in regards to coming to substantive 11 conclusions regarding the petitions that have been made, 12 or other processes in the hearing. 13 But I don't think he can be a shield under the 14 CEQA process, because there's no deliberation that 15 occurred in the construct of the formation of the Draft 16 EIR. 17 C.O. STUBCHAER: Okay. You have the last word, 18 Mr. Frink. 19 MR. FRINK: Just one last word, I did not object to 20 asking Mr. Howard about the contents of the EIR. 21 C.O. STUBCHAER: All right. We're going to take 22 this under advisement. We'll go off the record for a 23 moment. 24 (Off the record from 3:52 p.m. to 3:55 p.m.) 25 C.O. STUBCHAER: The objection is sustained. You CAPITOL REPORTERS (916) 923-5447 14338 1 may ask Mr. Howard, among other things, what is in the EIR 2 and what assumptions were involved going into the EIR. 3 I want to state that to the extent that 4 Mr. Howard has already answered questions on the 5 definitions that you've given to him, we view those as 6 Mr. Howard's answers, not necessarily the complete staff's 7 answers and certainly not necessarily the Board's answers. 8 It's not to diminish what he has said, but we just don't 9 want to have the false impression of the standing of those 10 responses on the record. 11 C.O. BROWN: Mr. Chairman? 12 C.O. STUBCHAER: Mr. Brown, please. 13 C.O. BROWN: I'd like to add something to that. 14 We're hopeful that you folks will come to us with what you 15 believe the definition should be of "real water" and 16 present it to us. And in that framework we can have our 17 staff, like Tom, review what you said to us and gives us 18 counsel. 19 If he give us his ideas to counsel before that, 20 then we assert that process. We need him to help advise 21 us. So we're hopeful that you folks will put together 22 your ideas and try to convince us what you believe to be 23 "real water." That's the way we would like to see it 24 come. 25 We'd like to proceed if we could, please. CAPITOL REPORTERS (916) 923-5447 14339 1 MR. GODWIN: I understand that, but I want to make 2 sure we're all on the same level playing field in that if 3 our definition of "real water" is entirely different than 4 your definition, because if we come here with our 5 definition and you disagree with it then we won't have 6 solved your problem. 7 C.O. STUBCHAER: All right. 8 Mr. Godwin, how extensive is your questioning of 9 Mr. Howard going to be? 10 MR. GODWIN: Probably a half an hour. 11 C.O. STUBCHAER: All right. Should -- 12 Mr. O'Laughlin? 13 MR. O'LAUGHLIN: Can we stop for today -- 14 C.O. STUBCHAER: That's what I was going to bring 15 up. 16 MR. O'LAUGHLIN: -- given that -- 17 C.O. STUBCHAER: Mr. O'Laughlin, if you will just 18 wait a moment. Your wish may be granted. 19 MR. O'LAUGHLIN: For once. 20 C.O. STUBCHAER: All right. I was just going to ask 21 Mr. Godwin if this would be a good time to stop and then 22 you can resume your cross-examination -- or your 23 questions, not cross-examination, your questions of both, 24 perhaps, Mr. Johns and Mr. Howard at our next date. 25 MR. GODWIN: That would be fine. CAPITOL REPORTERS (916) 923-5447 14340 1 C.O. STUBCHAER: All right. And, Mr. Howard, will 2 you be available on the 15th? 3 MR. HOWARD: Yes, I will. 4 C.O. STUBCHAER: And do we know if Mr. Johns will be 5 available? 6 MR. HOWARD: Yes, he will. I already talked to him 7 about it. 8 C.O. STUBCHAER: Very good. And, Mr. Frink, will 9 you be available? 10 MR. FRINK: I will be available. 11 C.O. STUBCHAER: Very good. Is there anything else 12 to come before us before we adjourn for the day? Seeing 13 none, we are adjourned until 9:00 a.m. on Tuesday, June 14 15th. 15 (The proceedings concluded at 4:01 p.m.) 16 ---oOo--- 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 14341 1 REPORTER'S_CERTIFICATE __________ ___________ 2 3 STATE OF CALIFORNIA ) ) ss. 4 COUNTY OF SACRAMENTO ) 5 I, MARY R. GALLAGHER, certify that I was the 6 Official Court Reporter for the proceedings named herein, 7 and that as such reporter I reported in verbatim shorthand 8 writing those proceedings; that I thereafter caused my 9 shorthand writing to be reduced to typewriting, and the 10 pages numbered 14127 through 14341 herein constitute a 11 complete, true and correct record of the proceedings. 12 IN WITNESS WHEREOF, I have subscribed this 13 certificate at Sacramento, California, on this 16th day of 14 June, 1999. 15 16 ________________________________ MARY R. GALLAGHER, CSR #10749 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 14342