STATE WATER RESOURCES CONTROL BOARD
PUBLIC HEARING
1998 BAY-DELTA WATER RIGHTS HEARING
HELD AT:
BONDERSON BUILDING
901 P STREET
SACRAMENTO, CALIFORNIA
TUESDAY, JUNE 15, 1999
9:00 A.M.
Reported by: ESTHER F. WIATRE
CSR NO. 1564
CAPITOL REPORTERS (916) 923-5447
1 APPEARANCES
BOARD MEMBERS:
2
JAMES STUBCHAER, COHEARING OFFICER
3 JOHN W. BROWN, COHEARING OFFICER
MARY JANE FORSTER
4 ARTHUR BAGGET, JR.
5 STAFF MEMBERS:
6 WALTER PETTIT, EXECUTIVE DIRECTOR
VICTORIA WHITNEY, CHIEF BAY-DELTA UNIT
7 THOMAS HOWARD, SUPERVISING ENGINEER
8 COUNSEL:
9 WILLIAM R. ATTWATER, CHIEF COUNSEL
BARBARA LEIDIGH
10
FOR MR. HOWARD AND MR. JOHNS:
11
DANIEL, FRINK, ESQ.
12 ---oOo---
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14
15
16
17
18
19
20
21
22
23
24
25
CAPITOL REPORTERS (916) 923-5447
1 REPRESENTATIVES
2 PRINCETON CODORA GLENN IRRIGATION DISTRICT, et al.:
3 FROST, DRUP & ATLAS
134 West Sycamore Street
4 Willows, California 95988
BY: J. MARK ATLAS, ESQ.
5
JOINT WATER DISTRICTS:
6
MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON:
7 P.O. BOX 1679
Oroville, California 95965
8 BY: WILLIAM H. BABER III, ESQ.
9 CALIFORNIA SPORTFISHING PROTECTION ALLIANCE:
10 ROBERT J. BAIOCCHI
P.O. Box 357
11 Quincy, California
12 BELLA VISTA WATER DISTRICT:
13 BRUCE L. BELTON, ESQ.
2525 Park Marina Drive, Suite 102
14 Redding, California 96001
15 WESTLANDS WATER DISTRICT:
16 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD
400 Capitol Mall, 27th Floor
17 Sacramento, California 95814
BY: THOMAS W. BIRMINGHAM, ESQ.
18 and
JON ROBIN, ESQ.
19
THE BAY INSTITUTE OF SAN FRANCISCO:
20
GARY BOBKER
21 55 Shaver Street, Suite 330
San Rafael, California 94901
22
CITY OF ANTIOCH, et al.:
23
FREDERICK BOLD, JR., ESQ.
24 1201 California Street, Suite 1303
San Francisco, California 94109
25
CAPITOL REPORTERS (916) 923-5447
1 REPRESENTATIVES
2 LEAGUE OF WOMEN VOTERS:
3 ROBERTA BORGONOVO
2480 Union Street
4 San Francisco, California 94123
5 UNITED STATES DEPARTMENT OF THE INTERIOR:
6 OFFICE OF THE SOLICITOR
2800 Cottage Way, Room E1712
7 Sacramento, California 95825
BY: ALF W. BRANDT, ESQ.
8 and
JAMES TURNER, ESQ.
9
10 CALIFORNIA URBAN WATER AGENCIES:
11 BYRON M. BUCK
455 Capitol Mall, Suite 705
12 Sacramento, California 95814
13 RANCHO MURIETA COMMUNITY SERVICES DISTRICT:
14 MCDONOUGH, HOLLAND & ALLEN
555 Capitol Mall, 9th Floor
15 Sacramento, California 95814
BY: VIRGINIA A. CAHILL, ESQ.
16
CALIFORNIA DEPARTMENT OF FISH AND GAME:
17
OFFICE OF ATTORNEY GENERAL
18 1300 I Street, Suite 1101
Sacramento, California 95814
19 BY: MATTHEW CAMPBELL, ESQ.
20 NATURAL RESOURCES DEFENSE COUNCIL:
21 HAMILTON CANDEE, ESQ.
71 Stevenson Street
22 San Francisco, California 94105
23
24
25
CAPITOL REPORTERS (916) 923-5447
1 REPRESENTATIVES
2 ARVIN-EDISON WATER STORAGE DISTRICT, et al.:
3 DOOLEY HERR & WILLIAMS
3500 West Mineral King Avenue, Suite C
4 Visalia, California 93291
BY: DANIEL M. DOOLEY, ESQ.
5
SACRAMENTO MUNICIPAL UTILITY DISTRICT:
6
LESLIE A. DUNSWORTH, ESQ.
7 6201 S Street
Sacramento, California 95817
8
SOUTH SAN JOAQUIN IRRIGATION DISTRICT, et al.:
9
BRAY, GEIGER, RUDQUIST & NUSS
10 311 East Main Street, 4th Floor
Stockton, California 95202
11 BY: STEVEN P. EMRICK, ESQ.
12 EAST BAY MUNICIPAL UTILITY DISTRICT:
13 EBMUD OFFICE OF GENERAL COUNSEL
375 Eleventh Street
14 Oakland, California 94623
BY: FRED S. ETHERIDGE, ESQ.
15
GOLDEN GATE AUDUBON SOCIETY:
16
ARTHUR FEINSTEIN
17 2530 San Pablo Avenue, Suite G
Berkeley, California 94702
18
CONAWAY CONSERVANCY GROUP:
19
UREMOVIC & FELGER
20 P.O. Box 5654
Fresno, California 93755
21 BY: WARREN P. FELGER, ESQ.
22 THOMES CREEK WATER ASSOCIATION:
23 THOMES CREEK WATERSHED ASSOCIATION
P.O. Box 2365
24 Flournoy, California 96029
BY: LOIS FLYNNE
25
CAPITOL REPORTERS (916) 923-5447
1 REPRESENTATIVES
2 COURT APPOINTED REPS OF WESTLANDS WD AREA 1, et al.:
3 LAW OFFICES OF SMILAND & KHACHIGIAN
601 West Fifth Street, Seventh Floor
4 Los Angeles, California 90075
BY: CHRISTOPHER G. FOSTER, ESQ.
5
CITY AND COUNTY OF SAN FRANCISCO:
6
OFFICE OF THE CITY ATTORNEY
7 1390 Market Street, Sixth Floor
San Francisco, California 94102
8 BY: DONN W. FURMAN, ESQ.
9 CAMP FAR WEST IRRIGATION DISTRICT, et al.:
10 DANIEL F. GALLERY, ESQ.
926 J Street, Suite 505
11 Sacramento, California 95814
12 BOSTON RANCH COMPANY, et al.:
13 J.B. BOSWELL COMPANY
101 West Walnut Street
14 Pasadena, California 91103
BY: EDWARD G. GIERMANN
15
SAN JOAQUIN RIVER GROUP AUTHORITY, et al.:
16
GRIFFTH, MASUDA & GODWIN
17 517 East Olive Street
Turlock, California 95381
18 BY: ARTHUR F. GODWIN, ESQ.
19 NORTHERN CALIFORNIA WATER ASSOCIATION:
20 RICHARD GOLB
455 Capitol Mall, Suite 335
21 Sacramento, California 95814
22 PLACER COUNTY WATER AGENCY, et al.:
23 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD
400 Capitol Mall, 27th Floor
24 Sacramento, California 95814
BY: JANET GOLDSMITH, ESQ.
25
CAPITOL REPORTERS (916) 923-5447
1 REPRESENTATIVES
2 ENVIRONMENTAL DEFENSE FUND:
3 DANIEL SUYEYASU, ESQ.
and
4 THOMAS J. GRAFF, ESQ.
5655 College Avenue, Suite 304
5 Oakland, California 94618
6 CALAVERAS COUNTY WATER DISTRICT:
7 SIMON GRANVILLE
P.O. Box 846
8 San Andreas, California 95249
9 CHOWCHILLA WATER DISTRICT, et al.:
10 GREEN, GREEN & RIGBY
P.O. Box 1019
11 Madera, California 93639
BY: DENSLOW GREEN, ESQ.
12
CALIFORNIA FARM BUREAU FEDERATION:
13
DAVID J. GUY, ESQ.
14 2300 River Plaza Drive
Sacramento, California 95833
15
SANTA CLARA VALLEY WATER DISTRICT:
16
MORRISON & FORESTER
17 755 Page Mill Road
Palo Alto, California 94303
18 BY: KEVIN T. HAROFF, ESQ.
19 CITY OF SHASTA LAKE:
20 ALAN N. HARVEY
P.O. Box 777
21 Shasta Lake, California 96019
22 COUNTY OF STANISLAUS:
23 MICHAEL G. HEATON, ESQ.
926 J Street
24 Sacramento, California 95814
25
CAPITOL REPORTERS (916) 923-5447
1 REPRESENTATIVES
2 GORRILL LAND COMPANY:
3 GORRILL LAND COMPANY
P.O. Box 427
4 Durham, California 95938
BY: DON HEFFREN
5
SOUTH DELTA WATER AGENCY:
6
JOHN HERRICK, ESQ.
7 3031 West March Lane, Suite 332 East
Stockton, California 95267
8
COUNTY OF GLENN:
9
NORMAN Y. HERRING
10 525 West Sycamore Street
Willows, California 95988
11
REGIONAL COUNCIL OF RURAL COUNTIES:
12
MICHAEL B. JACKSON, ESQ.
13 1020 Twelfth Street, Suite 400
Sacramento, California 95814
14
DEER CREEK WATERSHED CONSERVANCY:
15
JULIE KELLY
16 P.O. Box 307
Vina, California 96092
17
DELTA TRIBUTARY AGENCIES COMMITTEE:
18
MODESTO IRRIGATION DISTRICT
19 P.O. Box 4060
Modesto, California 95352
20 BY: BILL KETSCHER
21 SAVE THE SAN FRANCISCO BAY ASSOCIATION:
22 SAVE THE BAY
1736 Franklin Street
23 Oakland, California 94612
BY: CYNTHIA L. KOEHLER, ESQ.
24
25
CAPITOL REPORTERS (916) 923-5447
1 REPRESENTATIVES
2 BATTLE CREEK WATERSHED LANDOWNERS:
3 BATTLE CREEK WATERSHED CONSERVANCY
P.O. Box 606
4 Manton, California 96059
5 BUTTE SINK WATERFOWL ASSOCIATION, et al.:
6 MARTHA H. LENNIHAN, ESQ.
455 Capitol Mall, Suite 300
7 Sacramento, California 95814
8 CITY OF YUBA CITY:
9 WILLIAM P. LEWIS
1201 Civic Center Drive
10 Yuba City 95993
11 BROWNS VALLEY IRRIGATION DISTRICT, et al.:
12 BARTKEWICZ, KRONICK & SHANAHAN
1011 22nd Street, Suite 100
13 Sacramento, California 95816
BY: ALAN B. LILLY, ESQ.
14
CONTRA COSTA WATER DISTRICT:
15
BOLD, POLISNER, MADDOW, NELSON & JUDSON
16 500 Ygnacio Valley Road, Suite 325
Walnut Creek, California 94596
17 BY: ROBERT B. MADDOW, ESQ.
18 GRASSLAND WATER DISTRICT:
19 DON MARCIOCHI
22759 South Mercey Springs Road
20 Los Banos, California 93635
21 SAN LUIS CANAL COMPANY:
22 FLANNIGAN, MASON, ROBBINS & GNASS
3351 North M Street, Suite 100
23 Merced, California 95344
BY: MICHAEL L. MASON, ESQ.
24
25
CAPITOL REPORTERS (916) 923-5447
1 REPRESENTATIVES
2 STONY CREEK BUSINESS AND LAND OWNERS COALITION:
3 R.W. MCCOMAS
4150 County Road K
4 Orland, California 95963
5 TRI-DAM POWER AUTHORITY:
6 TUOLUMNE UTILITIES DISTRICT
P.O. Box 3728
7 Sonora, California 95730
BY: TIM MCCULLOUGH
8
DELANO-EARLIMART IRRIGATION DISTRICT, et al.:
9
MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON
10 P.O. Box 1679
Oroville, California 95965
11 BY: JEFFREY A. MEITH, ESQ.
12 HUMANE FARMING ASSOCIATION:
13 BRADLEY S. MILLER
1550 California Street, Suite 6
14 San Francisco, California 94109
15 CORDUA IRRIGATION DISTRICT, et al.:
16 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON
P.O. Box 1679
17 Oroville, California 95965
BY: PAUL R. MINASIAN, ESQ.
18
EL DORADO COUNTY WATER AGENCY:
19
DE CUIR & SOMACH
20 400 Capitol Mall, Suite 1900
Sacramento, California 95814
21 BY: DONALD B. MOONEY, ESQ.
22 GLENN COUNTY FARM BUREAU:
23 STEVE MORA
501 Walker Street
24 Orland, California 95963
25
CAPITOL REPORTERS (916) 923-5447
1 REPRESENTATIVES
2 MODESTO IRRIGATION DISTRICT:
3 JOEL MOSKOWITZ
P.O. Box 4060
4 Modesto, California 95352
5 PACIFIC GAS & ELECTRIC:
6 RICHARD H. MOSS, ESQ.
P.O. Box 7442
7 San Francisco, California 94120
8 CENTRAL DELTA WATER AGENCY, et al.:
9 NOMELLINI, GRILLI & MCDANIEL
P.O. Box 1461
10 Stockton, California 95201
BY: DANTE JOHN NOMELLINI, ESQ.
11 and
DANTE JOHN NOMELLINI, JR., ESQ.
12
TULARE LAKE BASIN WATER STORAGE UNIT:
13
MICHAEL NORDSTROM
14 1100 Whitney Avenue
Corcoran, California 93212
15
AKIN RANCH, et al.:
16
DOWNEY, BRAND, SEYMOUR & ROHWER
17 555 Capitol Mall, 10th Floor
Sacramento, California 95814
18 BY: KEVIN M. O'BRIEN, ESQ.
19 OAKDALE IRRIGATION DISTRICT:
20 O'LAUGHLIN & PARIS
870 Manzanita Court, Suite B
21 Chico, California 95926
BY: TIM O'LAUGHLIN, ESQ.
22
SIERRA CLUB:
23
JENNA OLSEN
24 85 Second Street, 2nd Floor
San Francisco, California 94105
25
CAPITOL REPORTERS (916) 923-5447
1 REPRESENTATIVES
2 YOLO COUNTY BOARD OF SUPERVISORS:
3 LYNNEL POLLOCK
625 Court Street
4 Woodland, California 95695
5 PATRICK PORGANS AND ASSOCIATES:
6 PATRICK PORGANS
P.O. Box 60940
7 Sacramento, California 95860
8 BROADVIEW WATER DISTRICT, et al.:
9 DIANE RATHMANN
10 FRIENDS OF THE RIVER:
11 BETSY REIFSNIDER
128 J Street, 2nd Floor
12 Sacramento, California 95814
13 MERCED IRRIGATION DISTRICT:
14 FLANAGAN, MASON, ROBBINS & GNASS
P.O. Box 2067
15 Merced, California 95344
BY: KENNETH M. ROBBINS, ESQ.
16
CENTRAL SAN JOAQUIN WATER CONSERVATION DISTRICT:
17
REID W. ROBERTS, ESQ.
18 311 East Main Street, Suite 202
Stockton, California 95202
19
METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA:
20
JAMES F. ROBERTS
21 P.O. Box 54153
Los Angeles, California 90054
22
SACRAMENTO AREA WATER FORUM:
23
CITY OF SACRAMENTO
24 980 9th Street, 10th Floor
Sacramento, California 95814
25 BY: JOSEPH ROBINSON, ESQ.
CAPITOL REPORTERS (916) 923-5447
1 REPRESENTATIVES
2 TUOLUMNE RIVER PRESERVATION TRUST:
3 NATURAL HERITAGE INSTITUTE
114 Sansome Street, Suite 1200
4 San Francisco, California 94194
BY: RICHARD ROOS-COLLINS, ESQ.
5
CALIFORNIA DEPARTMENT OF WATER RESOURCES:
6
DAVID SANDINO, ESQ.
7 CATHY CROTHERS, ESQ.
P.O. Box 942836
8 Sacramento, California 94236
9 FRIANT WATER USERS AUTHORITY:
10 GARY W. SAWYERS, ESQ.
575 East Alluvial, Suite 101
11 Fresno, California 93720
12 KERN COUNTY WATER AGENCY:
13 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD
400 Capitol Mall, 27th Floor
14 Sacramento, California 95814
BY: CLIFFORD W. SCHULZ, ESQ.
15
SAN JOAQUIN RIVER EXCHANGE CONTRACTORS:
16
MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON:
17 P.O. Box 1679
Oroville, California 95965
18 BY: MICHAEL V. SEXTON, ESQ.
19 SAN JOAQUIN COUNTY:
20 NEUMILLER & BEARDSLEE
P.O. Box 20
21 Stockton, California 95203
BY: THOMAS J. SHEPHARD, SR., ESQ.
22
CITY OF STOCKTON:
23
DE CUIR & SOMACH
24 400 Capitol Mall, Suite 1900
Sacramento, California 95814
25 BY: PAUL S. SIMMONS, ESQ.
CAPITOL REPORTERS (916) 923-5447
1 REPRESENTATIVES
2 ORLAND UNIT WATER USERS' ASSOCIATION:
3 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON
P.O. Box 1679
4 Oroville, California 95965
BY: M. ANTHONY SOARES, ESQ.
5
GLENN-COLUSA IRRIGATION DISTRICT:
6
DE CUIR & SOMACH
7 400 Capitol Mall, Suite 1900
Sacramento, California 95814
8 BY: STUART L. SOMACH, ESQ.
9 NORTH SAN JOAQUIN WATER CONSERVATION DISTRICT:
10 JAMES F. SORENSEN CONSULTING CIVIL ENGINEER, INC.
209 South Locust Street
11 Visalia, California 93279
BY: JAMES F. SORENSEN
12
PARADISE IRRIGATION DISTRICT:
13
MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON
14 P.O. Box 1679
Oroville, California 95695
15 BY: WILLIAM H. SPRUANCE, ESQ.
16 COUNTY OF COLUSA:
17 DONALD F. STANTON, ESQ.
1213 Market Street
18 Colusa, California 95932
19 COUNTY OF TRINITY:
20 COUNTY OF TRINITY - NATURAL RESOURCES
P.O. Box 156
21 Hayfork, California 96041
BY: TOM STOKELY
22
CITY OF REDDING:
23
JEFFERY J. SWANSON, ESQ.
24 2515 Park Marina Drive, Suite 102
Redding, California 96001
25
CAPITOL REPORTERS (916) 923-5447
1 REPRESENTATIVES
2 TULARE IRRIGATION DISTRICT:
3 TEHAMA COUNTY RESOURCE CONSERVATION DISTRICT
2 Sutter Street, Suite D
4 Red Bluff, California 96080
BY: ERNEST E. WHITE
5
STATE WATER CONTRACTORS:
6
BEST BEST & KREIGER
7 P.O. Box 1028
Riverside, California 92502
8 BY: ERIC GARNER, ESQ.
9 COUNTY OF TEHAMA, et al.:
10 COUNTY OF TEHAMA BOARD OF SUPERVISORS:
P.O. Box 250
11 Red Bluff, California 96080
BY: CHARLES H. WILLARD
12
MOUNTAIN COUNTIES WATER RESOURCES ASSOCIATION:
13
CHRISTOPHER D. WILLIAMS
14 P.O. Box 667
San Andreas, California 95249
15
JACKSON VALLEY IRRIGATION DISTRICT:
16
HENRY WILLY
17 6755 Lake Amador Drive
Ione, California 95640
18
SOLANO COUNTY WATER AGENCY, et al.:
19
HERUM, CRABTREE, DYER, ZOLEZZI & TERPSTRA
20 2291 West March Lane, S.B.100
Stockton, California 95207
21 BY: JEANNE M. ZOLEZZI, ESQ.
22 WESTLANDS ENCROACHMENT AND EXPANSION LANDOWNERS:
23 BAKER, MANOCK & JENSEN
5260 North Palm Avenue
24 Fresno, Califonria 93704
BY: CHRISTOPHER L. CAMPBELL, ESQ.
25
CAPITOL REPORTERS (916) 923-5447
1 REPRESENTATIVES
2 SAN LUIS WATER DISTRICT:
3 LINNEMAN, BURGES, TELLES, VANATTA & VIERRA
1820 Marguerite Street
4 Dos Palos, California 93620
BY: THOMAS J. KEENE, ESQ.
5
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10
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17
18
19
20
21
22
23
24
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CAPITOL REPORTERS (916) 923-5447
1 INDEX
2 PAGE
3 RESUMPTION OF HEARING: 14360
4 AFTERNOON SESSION: 14447
5
6 SAN JOAQUIN RIVER GROUP AUTHORITY:
THOMAS HOWARD
7 GERALD JOHNS
CONTINUED EXAMINATION:
8 BY MR. GODWIN 14362
CROSS-EXAMINATION:
9 BY MR. NOMELLINI 14371
BY MR. HERRICK 14398
10 REDIRECT EXAMINATION:
BY MR. GODWIN 14409
11 DAN M. FULTS
DIRECT EXAMINATION:
12 BY MR. O'LAUGHLIN 14543
CROSS-EXAMINATION:
13 BY MR. NOMELLINI 14545
14 CENTRAL DELTA PARTIES:
OPENING STATEMENT:
15 BY MR. NOMELLINI 14419
DENNIS MCEWAN
16 DIRECT EXAMINATION:
BY MR. NOMELLINI 14429
17 CROSS-EXAMINATION:
BY MR. ROBBINS 14483
18 BY MR. JACKSON 14493
BY MR. O'LAUGHLIN 14513
19
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22
23
24
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CAPITOL REPORTERS (916) 923-5447
1 SACRAMENTO, CALIFORNIA
2 TUESDAY, JUNE 15, 1999
3 ---oOo---
4 C.O. STUBCHAER: Call the Bay-Delta Hearing to order.
5 Mr. O'Laughlin, continue with your examination of Mr.
6 Howard and Mr. Johns.
7 MR. O'LAUGHLIN: Would the Chairman allow me, I wanted
8 to bring up some scheduling issues.
9 C.O. STUBCHAER: All right.
10 MR. O'LAUGHLIN: What we have been endeavoring to do
11 over the last several weeks is to fill time slots. As you
12 know, there are several federal witnesses who have been
13 requested. We are having difficulty getting confirmation
14 dates on several of those witnesses.
15 It appears right now that the 24th may be a very
16 limited hearing date. We have one witness scheduled for
17 that day right now, Mr. Wayne White. We are trying to fill
18 up the rest of the dates by moving other parties that were
19 scheduled for the 28th and 29th onto the 24th.
20 Let me tell you what we are presently doing. We are
21 going to break up our case with your permission. We are
22 going to be scheduling today the California Department of
23 Fish and Game, which was requested by Central Delta Water
24 Agency. Mr. McEwan will testify today.
25 We will probably take Mr. Hildebrand -- they have been
CAPITOL REPORTERS (916) 923-5447 14360
1 gracious enough to make Mr. Hildebrand available on the
2 22nd. So that case in chief will go forward on the 22nd for
3 South Delta Water Agency.
4 Also, one of the federal witnesses who has been
5 requested is Mr. Lowell Ploss. He has been requested by
6 Stockton East Water District. We are trying to make him
7 available on either the 23rd or the 24th. We have
8 conflicting obligations for Mr. Ploss on that day, so we are
9 looking to try and fill one of those slots. The 24th may be
10 open. We will let you know, hopefully in a couple of
11 days.
12 I sent a note to Mr. Nick Wilcox. Hopefully that ran
13 up through your chain of command here, and advised him of
14 the scheduling changes. But I would expect that clearly by
15 the 29th of June all cases in chief will have been completed
16 by the 29th of June. Both Stockton East, Central, South
17 Delta and San Joaquin River Group Authority.
18 I will keep you and staff informed of the scheduling
19 as we go. I hope to have something shortly.
20 C.O. STUBCHAER: Thank you.
21 MR. O'LAUGHLIN: Mr. Godwin will continue with the
22 cross-examination of Mr. Howard and begin the
23 cross-examination of Mr. Johns.
24 C.O. STUBCHAER: The examination.
25 Mr. Godwin, good morning.
CAPITOL REPORTERS (916) 923-5447 14361
1 CONTINUED EXAMINATION BY SAN JOAQUIN RIVER GROUP AUTHORITY
2 BY MR. GODWIN
3 MR. GODWIN: Morning, Mr. Stubchaer and Members of the
4 Board. I will get started right away.
5 Let me ask a few questions of Mr. Johns since he was
6 not here last time.
7 Mr. Johns, what is your title and position with the
8 State Water Resources Control Board?
9 MR. JOHNS: Assistant Division Chief of the Division of
10 Water Rights.
11 MR. GODWIN: You both are here today pursuant to a
12 subpoena that was issued; is that correct?
13 MR. JOHNS: That's correct.
14 MR. GODWIN: Mr. Johns, did you participate in the
15 preparation of the Draft EIR for the implementation of the
16 1995 Water Quality Control Plan?
17 MR. JOHNS: To a limited extent.
18 MR. GODWIN: Are you familiar with the contents of the
19 Draft EIR?
20 MR. JOHNS: Generally.
21 MR. GODWIN: What was your level of participation?
22 MR. JOHNS: Mostly in the initial stages of the
23 preparation of the draft. It was reviewing the general
24 approaches that staff was going to use in developing the
25 alternatives and developing the analysis techniques.
CAPITOL REPORTERS (916) 923-5447 14362
1 MR. GODWIN: Mr. Howard, what was your involvement in
2 the preparation of the EIR, the Draft EIR?
3 MR. HOWARD: I was a participant in the selection of
4 the alternatives. In combination with Ms. Whitney, was
5 involved in deciding how to model those alternatives and how
6 to present the document and prepare the document.
7 MR. GODWIN: I am going to start off with what is called
8 Flow Alternative 3. You are familiar with that
9 alternative?
10 MR. JOHNS: Yes.
11 MR. GODWIN: That is also called the Water Rights
12 Alternative, I believe. Under this alternative, Alternative
13 Number 3, do water right holders share responsibility based
14 on priority?
15 MR. JOHNS: Yes. Well, the water rights that are
16 analyzed there. There are some water rights that are small,
17 that weren't provided for in that alternative. But the ones
18 that were analyzed, that answer is correct.
19 MR. GODWIN: I want to go over just briefly some of the
20 basic assumptions in Flow Alternative 3.
21 C.O. STUBCHAER: Excuse me, Mr. Jackson.
22 MR. JACKSON: I would like some clarification. We are
23 in Phase II-B. We are answering eight questions that are in
24 the notice, and we are now addressing Alternative 3 which is
25 a flow alternative that is not scheduled for this particular
CAPITOL REPORTERS (916) 923-5447 14363
1 time period. And so I would object to going into the
2 comparison of alternatives since they were not noticed.
3 C.O. STUBCHAER: Mr. Godwin, could you relate the issue
4 to the --
5 MR. GODWIN: The purpose of this examination is to look
6 at the alternatives that were developed in the EIR and
7 compare those with what is being proposed with the San
8 Joaquin River Agreement. As you know, Key Issue Number 7 to
9 this Phase II-B hearing notice specifically asks the
10 question of how water is to be made available and whether or
11 not real water is being made available pursuant to the San
12 Joaquin River Agreement.
13 What we would like to do is also compare that with the
14 other alternatives that are in the EIR, how water is being
15 made available pursuant to those alternatives and whether or
16 not those alternatives utilize real water or new water for
17 providing the flow objectives at Vernalis.
18 C.O. STUBCHAER: We are going to go off the record for
19 a moment.
20 (Discussion held off the record.)
21 C.O. STUBCHAER: The objection is sustained.
22 MR. GODWIN: Mr. Stubchaer, we had this objection last
23 week and at the time the objection was not sustained. We
24 are looking at comparing this alternative with the San
25 Joaquin River Agreement with the other flow alternatives
CAPITOL REPORTERS (916) 923-5447 14364
1 that have been developed in the Draft EIR. The notice
2 specifically asked questions about whether or not legal
3 users of water are harmed by our proposal, and at the same
4 time we need to have some sort of baseline to compare that
5 with.
6 We need to look at other alternatives and see if those
7 alternatives also produce any harm to legal users of water
8 so we can see, compare it with the baseline. We have no
9 baseline to compare it with right now.
10 C.O. STUBCHAER: Mr. Jackson.
11 MR. JACKSON: Yes, Mr. Stubchaer. I do understand what
12 they are attempting to do. However, we would be in exactly
13 the same position to begin to compare this to Alternative 5,
14 to the determine whether or not Alternative 5 would be real
15 water. We would essentially go back over all of the flow
16 comparisons without most of the parties knowing that we were
17 doing it.
18 MR. GODWIN: Excuse me, but this subpoena was sent to
19 all the parties. Everybody had notice of this. We aren't
20 looking -- I am not asking questions in detail about each of
21 the alternatives. I have just a very specific alternative
22 dealing with very specific questions dealing with the issue
23 of real water.
24 C.O. STUBCHAER: The reason for the ruling is that we
25 do not see the tie between that question and the issue
CAPITOL REPORTERS (916) 923-5447 14365
1 before the Board during this phase of the hearing. And if
2 you were -- I don't want to get in debate on what baselines
3 might be, but the ruling stands.
4 MR. O'LAUGHLIN: Chairman Stubchear, with that ruling
5 then, we will -- we have no further questions for either
6 witnesses. Because rather than go through a string of
7 questions with objections every time and a sustaining of the
8 objections, we will not have any further questions.
9 We believe, however, that this is a critical issue to
10 this hearing as well as to an underlying foundation to
11 support of a finding of change under 1707 and 1735 to
12 identify the baselines, to identify what the public trust
13 resources are, the uses of water and how that water is being
14 made available under various alternatives.
15 Even though this is a change petition under 1707 and
16 1735, it is an implementation tool to implement the 1995
17 Water Quality Control Plan. The tie back in, even if this
18 was a change petition in the abstract, we wouldn't be
19 dealing with these questions. However, since it does tie
20 back to the Bay-Delta proceedings and into the
21 implementation of the 1995 Water Quality Control Plan
22 standards, I think it would be helpful to elucidate the
23 differences between the various baselines that were employed
24 by staff to analyze the affects on public trust resources,
25 reservoir storage, reoperations of reservoirs and to legal
CAPITOL REPORTERS (916) 923-5447 14366
1 users of water downstream from the project.
2 Since you have sustained the objection, we will have no
3 further questions for those two witnesses. This will,
4 however, change the scheduling day, I now have to call a
5 witness and bring one in. We will probably finish early.
6 We have no other witnesses other than Mr. Fults and Mr.
7 McEwan scheduled for today. I doubt whether either of those
8 witnesses will last the entire day. Probably understanding
9 that we had expected this one to take at least a good part
10 of the morning, if not the entire morning. And based on
11 last week when the objection was made and was not answered,
12 we thought that we would be able to go forward with this
13 line of questioning today. We have a scheduling problem
14 again. So we will finish -- when we are done with these
15 two, I will make a phone call and grab our other witnesses
16 in. Mr. McEwan can start after our witness is done. We are
17 probably going to need about 10 or 15 minutes to get Mr.
18 Fults here.
19 C.O. STUBCHAER: Did you say earlier the Fish and Game
20 was going to go today?
21 MR. O'LAUGHLIN: Yes. Mr. McEwan from California
22 Department of Fish and Game is here today with Mr. Matt
23 Campbell from the Attorney General's office. And Mr. Dante
24 Nomellini from Central Delta Water Agency is present today.
25 He is agreeable to taking the testimony of Mr. McEwan today,
CAPITOL REPORTERS (916) 923-5447 14367
1 based on a subpoena that was issued by State Water Resources
2 Control Board.
3 MR. NOMELLINI: That is the Central Delta Water Agency
4 case in chief. We have agreed to be filler in Mr.
5 O'Laughlin's schedule.
6 C.O. STUBCHAER: Fine.
7 MR. O'LAUGHLIN: I need to go make a phone call right
8 now.
9 C.O. STUBCHAER: Off the record for a moment.
10 (Break taken.)
11 C.O. STUBCHAER: Back on the record.
12 MR. NOMELLINI: We have questions of these witnesses.
13 C.O. STUBCHAER: We are going to get to
14 cross-examination.
15 MR. ROBBINS: Not sure what we will cross.
16 C.O. STUBCHAER: It's going to be very limited.
17 Mr. Robbins.
18 MR. ROBBINS: Mr. Chairman, at the risk of having to
19 traipse over old ground, I just had a question to clarify
20 the record for my purposes because Merced case in chief has
21 some testimony in it to this effect. So it will effect how
22 we present.
23 Did I understand that the Board's ruling affects
24 testimony? As I understand it, one of the issues that we
25 are dealing with here today has to do with the issue of harm
CAPITOL REPORTERS (916) 923-5447 14368
1 to downstream users. In order do analyze that properly, we
2 need to have a base case against which we can compare it.
3 And I believe that it is perfectly relevant to look at other
4 alternatives posed for implementation, that might be
5 implemented as a base case against which we might compare
6 the San Joaquin River Agreement in terms of harm. I believe
7 that evidence would show that less harm downstream than
8 anything else the Board is proposing.
9 Frankly, I think, therefore, that it is perfectly
10 relevant to this proceeding. Is it that evidence that you
11 are excluding here relative to these witnesses or is it some
12 other bases for exclusion?
13 C.O. STUBCHAER: You just mentioned the need for a base
14 case. What I heard coming were several base cases, at least
15 based on each alternative, and none of them, the
16 alternatives have been selected yet.
17 MR. ROBBINS: I understand that. That would be the
18 reason --
19 C.O. STUBCHAER: I don't see how we can have several
20 base cases with comparison of the change petition against
21 all those base cases as part of this phase of the hearing.
22 MR. ROBBINS: That would be the reason for attempting
23 to compare the River Agreement against those base cases, was
24 to show potential differences and harm and, in fact, reduce
25 harmed by the River Agreement versus one of the other base
CAPITOL REPORTERS (916) 923-5447 14369
1 cases that might be implemented.
2 I grant you that it does open the door to these
3 comparisons. If they are narrowly focused, relative to the
4 issues before the Board here today, I would suggest that
5 they may be relevant. That is --
6 C.O. STUBCHAER: I understand what you have said.
7 MR. ROBBINS: Thank you.
8 C.O. BROWN: I have a comment.
9 C.O. STUBCHAER: Mr. Brown.
10 C.O. BROWN: I am not sure that I see the need of
11 establishing that base case to determine whether or not
12 there is harm incurred by a downstream water user. I am not
13 convinced that is at all the issue. I think you have
14 opportunities to determine and do help prove to us what is
15 real water and whether or not the water that is being
16 dedicated to those designated uses has, in fact, been
17 beneficially used by others downstream or not.
18 I am not going to ask the Chairman if the base case is
19 necessary to do that.
20 C.O. STUBCHAER: I would think that the base case would
21 be the existing conditions in any event.
22 Who wishes to cross-examine this panel?
23 Mr. Nomellini, Mr. Herrick.
24 Who else?
25 Heads is Mr. Nomellini. Wait a minute.
CAPITOL REPORTERS (916) 923-5447 14370
1 It is heads.
2 Mr. Herrick, you get to go last.
3 ---oOo---
4 CROSS-EXAMINATION OF SAN JOAQUIN RIVER GROUP AUTHORITY
5 BY CENTRAL DELTA PARTIES
6 BY MR. NOMELLINI
7 MR. NOMELLINI: Mr. Chairman, Members of the Board,
8 Dante John Nomellini for Central Delta Parties.
9 I had a number of questions and I am not sure I've got
10 a good feel for what is left in the scope of the cross, but
11 let me try them and see how far I get.
12 Mr. Howard, Alternative 8 in the --
13 MR. O'LAUGHLIN: I am going to object. This is
14 somewhat ludicrous. How can you have cross-examination
15 based upon no direct? I mean, literally Mr. Johns' answer
16 that he worked for State Board. Mr. Howard has answered the
17 same question. If he wants to ask them how long they've
18 been employed by the State Board, what the job titles are, I
19 think that would be perfect for cross-examination. Anything
20 else has been sustained by the Chair and we would object to
21 any further cross-examination by any party of these two
22 witnesses.
23 C.O. STUBCHAER: Mr. Godwin.
24 MR. GODWIN: Furthermore, any question having to do
25 with the Draft EIR, you've already sustained Mr. Jackson's
CAPITOL REPORTERS (916) 923-5447 14371
1 objection, and it is irrelevant to this proceeding.
2 MR. NOMELLINI: Let me try.
3 The direct elicited from Mr. Howard, his role in
4 preparation of the Draft Environmental Impact Statement. I
5 am now entitled to cross within the broad framework of
6 allowable cross of a direct case with regard to his role in
7 the preparation of the Environmental Impact Statement. So I
8 think I have a rather wide latitude.
9 The objection as I understood it was to align the
10 questioning with regard to Alternative Number 3. I intend
11 to question with regard to Alternative Number 8, which I
12 understand is the San Joaquin River Agreement, which is the
13 very subject of this Phase II-B portion of the hearing.
14 In terms of evaluating the impact, whether there is
15 harm or not, Alternative 8 is the one we have to look at and
16 I wanted to get out through cross-examination some of the
17 background, what the assumptions were in the analysis so we
18 can put the evidence that is in the Draft Environmental
19 Impact Statement in the context of the decision making
20 here.
21 I would also intend to elicit some answers with regard
22 to the base case used in the Draft Environmental Impact
23 Statement, which is Alternative Number 1. That is where I
24 would like to go.
25 C.O. STUBCHAER: Mr. O'Laughlin.
CAPITOL REPORTERS (916) 923-5447 14372
1 MR. O'LAUGHLIN: If I may, I didn't want to waste the
2 Board's time or the participants' time by going through you
3 every line of questioning that we would have for Mr. Johns
4 or Mr. Howard and having the objection sustained and having
5 the objection and having it sustained. I think it is very
6 clear by what the Chair has ruled on this objection by Mr.
7 Jackson that, really, it is irrelevant for the purposes of
8 this hearing what is contained in the EIR as far as an
9 analysis versus what is proposed in the change petitions.
10 So base case is certainly not relevant to anything we
11 are doing here, because I am assuming by the Chairman's
12 ruling that this petition will stand on its own merits
13 regardless of what base case is analyzed, and not certainly
14 the base case that was used in the Draft EIR. Furthermore,
15 Alternative 8 is irrelevant because Alternative 8 is more
16 encompassing than the proposed change petitions. The change
17 petitions, remember, do not encompass all of the water that
18 is made available under Alternative 8. So, it is
19 irrelevant, as well. The change petitions are much more
20 narrow than Alternative 8.
21 So, I would request that no party proceed on
22 cross-examination of the two witnesses. I do agree with Mr.
23 Nomellini that a very narrow window has been opened on Mr.
24 Johns and Mr. Howard, as to how long they have been employed
25 by the Board and what they did initially to set forth the
CAPITOL REPORTERS (916) 923-5447 14373
1 alternatives in the Draft EIR. After that, I think
2 everything should be sustained as being irrelevant and
3 outside the scope.
4 C.O. STUBCHAER: Mr. Nomellini.
5 MR. NOMELLINI: I think Mr. O'Laughlin has overreacted
6 to the Board's ruling on a simple, single question
7 pertaining to Alternative 3. If he wishes to change his
8 approach to these witnesses, I would have no objection. But
9 to come up and suggest that I should not be able to cross on
10 the very broad issue with regard to Mr. Howard's role and
11 what the assumptions were that were put into the Draft
12 Environmental Impact Statement with regard to the
13 Alternative 8 and how they might differ from the more
14 limited portion, if that is the way we are going to assume
15 it is in the change petition, then it is important for us to
16 get that information because it's going to shed light on
17 what the impact is of the proposed changes.
18 So, I think those are relevant and certainly within the
19 scope of the cross. Anyway, that is my last comment.
20 C.O. STUBCHAER: Okay. Off the record.
21 (Discussion held off the record.)
22 C.O. STUBCHAER: Unless the San Joaquin River Group
23 Authority wishes to withdraw the testimony and move to
24 strike the testimony of this panel, we will permit Mr.
25 Nomellini to proceed with relevant questions. That is the
CAPITOL REPORTERS (916) 923-5447 14374
1 ruling.
2 MR. O'LAUGHLIN: I need, Mr. Chairman, if you don't --
3 if I might have a second to talk to my clients about that,
4 whether or not to withdraw the testimony.
5 C.O. STUBCHAER: Yes.
6 MR. NOMELLINI: Just for the sake of discussion, if he
7 withdraws them, I am going to ask permission to call these
8 two people, who happen to be here, as adverse witnesses as
9 part of my case in chief following or proceeding Mr.
10 McEwan.
11 MR. O'LAUGHLIN: Then at that point in time, I will
12 object because the proper subpoena has not been issued or
13 served on the other parties that Central Delta Water Agency
14 will call these witnesses in their case in chief.
15 C.O. STUBCHAER: We will take a brief recess.
16 MR. O'LAUGHLIN: I can see Mr. Bagget is already
17 enjoying this.
18 C.O. STUBCHAER: Come to order for a moment, please.
19 Mr. Campbell.
20 MR. CAMPBELL: I query whether it is proper procedure
21 to allow a party to call an adverse witness, and hear
22 something perhaps in another instance, hear something that
23 they don't like, and move to have that testimony
24 stricken. I think that may not be a proper procedure.
25 C.O. STUBCHAER: Ms. Leidigh, do you have a comment?
CAPITOL REPORTERS (916) 923-5447 14375
1 MS. LEIDIGH: No, not at this point.
2 C.O. STUBCHAER: Thank you for your comments, panel.
3 We are in recess.
4 (Break taken.)
5 C.O. STUBCHAER: Back on the record.
6 Mr. O'Laughlin.
7 MR. O'LAUGHLIN: Thank you, Mr. Chairman. Thank you
8 for allowing us the time to meet and confer. As you know, I
9 have numerous clients that I am representing in San Joaquin
10 River Group Authority.
11 We do not believe that a motion to strike or a motion
12 to withdraw the testimony is proper at this time for the
13 same reasons that we opposed striking of the Trinity County
14 testimony. We believe that once the testimony is in, even
15 if it is from an adverse witness, that the testimony is part
16 of the hearing record. Therefore, we will not withdraw the
17 testimony and we will not move to strike the testimony of
18 these two witnesses. We will, however, be making the proper
19 objections as Mr. Nomellini moves forward in his scope of
20 cross-examination.
21 Thank you.
22 C.O. STUBCHAER: Thank you, Mr. O'Laughlin.
23 Mr. Nomellini.
24 MR. NOMELLINI: Thank you.
25 Mr. Howard, with regard to Alternative Number 8, is it
CAPITOL REPORTERS (916) 923-5447 14376
1 true that Alternative Number 8 in the Draft EIS is intended
2 to represent the San Joaquin River Agreement?
3 MR. HOWARD: Yes.
4 MR. NOMELLINI: And in conducting the analysis of the
5 potential impact of Alternative Number 8 in the Draft EIS,
6 did you participate in formulating the assumptions as to the
7 specific source of water to be provided by each of the
8 entities providing water under the San Joaquin River
9 Agreement?
10 MR. HOWARD: No.
11 MR. NOMELLINI: Do you know what the assumption was as
12 to the source of water for each of the entities providing
13 water under the San Joaquin River Agreement in the Draft EIS
14 analysis for Alternative 8?
15 MR. O'LAUGHLIN: EIR.
16 MR. NOMELLINI: EIR, excuse me.
17 MR. HOWARD: I don't have the specific numbers at the
18 tip of my fingers, but I do know the general methodology
19 that was employed. It was based -- in any event, the
20 modeling was based on a letter we received from Marc VanCamp
21 who described -- and I believe that letter is in the
22 record. It described how the water would be provided among
23 the signatorees of the San Joaquin River Agreement.
24 MR. NOMELLINI: Mr. Johns, do you have any knowledge as
25 to the assumption of the source of water for each of the
CAPITOL REPORTERS (916) 923-5447 14377
1 entities providing water under the San Joaquin River
2 Agreement with regard to the Alternative Number 8 analysis
3 in the Draft EIR?
4 MR. JOHNS: Tom's answer I think clarified the
5 knowledge that I have on that subject as well.
6 MR. NOMELLINI: Do you have any recollection, Mr.
7 Johns, as to what the VanCamp letter stated as to the source
8 of water for the San Joaquin River Agreement assumed for the
9 analysis in Alternative 8 of the Draft EIR?
10 MR. JOHNS: I haven't looked at that letter in some
11 time, and would have to look at it again.
12 MR. NOMELLINI: Mr. Howard, do you have any
13 recollection as to what the source was that was identified
14 in the VanCamp letter which you referred to?
15 MR. HOWARD: Yes.
16 MR. NOMELLINI: All right.
17 What was the source assumed to be for the Merced
18 Irrigation District's contribution under the San Joaquin
19 River Agreement?
20 MR. HOWARD: The letter, as I recall, specified the
21 amount of water that would be provided by each of the
22 signatorees to the San Joaquin River Agreement. I am a
23 little unclear specifically what you mean by "the source of
24 the water."
25 MR. NOMELLINI: Focusing now on Merced Irrigation
CAPITOL REPORTERS (916) 923-5447 14378
1 District and the analysis in the Draft EIR for Alternative
2 8, was the assumed source used for the analysis, dependent
3 -- Strike that.
4 Did the assumption for the Merced Irrigation District
5 source of water include water that would have been released
6 for power production purposes?
7 MR. HOWARD: As I understand the modeling that was
8 accomplished, we did not make any specific releases for
9 power production on the Merced River. The power production
10 would have been incidental to the releases made to meet
11 downstream demands.
12 MR. NOMELLINI: If, in fact, part of the source of
13 water for the Merced Irrigation District contribution under
14 the San Joaquin River Agreement was a change in the release
15 pattern for power production purposes from summer releases
16 to spring, the modeling included in Alternative 8 would not
17 reflect such a change; is that correct?
18 MR. HOWARD: That would be my understanding.
19 MR. NOMELLINI: Did the modeling with regard, and again
20 this is Alternative 8, Draft EIR, Merced Irrigation
21 District, include any analysis of the impact of providing
22 the water for the Merced Irrigation District contribution in
23 terms of return flow to the river or accretions to the
24 river?
25 MR. HOWARD: Could you repeat the question?
CAPITOL REPORTERS (916) 923-5447 14379
1 MR. NOMELLINI: Maybe -- I probably can't repeat, but
2 let me try a little different one.
3 Does the analysis in Alternative 8 in the Draft EIR
4 with regard to the Merced Irrigation District contribution
5 to the San Joaquin River Agreement flows include an analysis
6 of the impact on return flows and accretions to the various
7 rivers?
8 MR. HOWARD: The modeling showed that there was
9 adequate stored water in Lake McClure to provide the
10 necessary flows to meet their existing demands plus the new
11 demands placed on it by the San Joaquin River Agreement.
12 The result would be that there would not be any change in
13 accretions or return flows as a result of implementation of
14 the agreement as it was modeled.
15 MR. NOMELLINI: Is the model capable of reflecting
16 impact on return flows and accretions?
17 MR. HOWARD: It is capable of dealing with return
18 flows. I do not think the model we were using had any
19 routine for accretions.
20 MR. NOMELLINI: With regard to the Merced Irrigation
21 District contribution under the San Joaquin River Agreement,
22 is it correct to state that the modeling viewed the water
23 being provided as excess to the needs of the Merced
24 Irrigation District and, therefore, an addition of water to
25 the overall system?
CAPITOL REPORTERS (916) 923-5447 14380
1 MR. HOWARD: The answer is somewhat complicated. The
2 modeling that we did would have then indicated that there
3 was the capacity to increase the downstream demands on the
4 reservoir and still meet all of the reservoir demands.
5 However, we were not necessarily using the rule curve that
6 the Merced Irrigation District might feel is adequately
7 prudent to insure carryover storage under all hydrologic
8 circumstances.
9 MR. NOMELLINI: Is that because you did not agree that
10 the rule curve that you referred to would be the appropriate
11 operation for the reservoir?
12 MR. HOWARD: It's more because of the fact that we were
13 using a model that had been prepared by the Department of
14 Water Resources and they might not be using in that model
15 the same rule curve that the Merced Irrigation District
16 believes is prudent.
17 MR. NOMELLINI: If during the period of the San Joaquin
18 River Agreement for the sake of this question we will assume
19 is 12 years, there was a reoccurrence of a series of dry
20 years, such as 1987 through 1992, is it your testimony that
21 the modeling in the Draft EIR would reflect that all needs
22 could be met, including the contribution of the Merced
23 Irrigation District to the San Joaquin River Agreement
24 without any reduction in use by any of the parties?
25 MR. HOWARD: To back up just a little bit to perhaps
CAPITOL REPORTERS (916) 923-5447 14381
1 clarify, when I'm talking about the water supply impact to
2 the district, I am referring to the water supply impact in
3 relation to the base case. I don't know off the top of my
4 head -- and the base case in this instance was the
5 conditions that would apply under D1485 conditions which
6 wouldn't effect Merced Irrigation District. But I am not
7 100 percent sure that under the base case there were no
8 cutbacks. So my answer is in relation to a base case
9 operation. And in relation to a base case operation the
10 answer is that there would be no further water supply
11 impacts as a result of the implementation of the San Joaquin
12 River Agreement as we modeled the system.
13 MR. NOMELLINI: With regard to the modeling of
14 Alternative 8 and the contribution of the Merced Irrigation
15 District to the San Joaquin River Agreement, then, is it not
16 true that the water provided is assumed in the modeling to
17 be extra water?
18 MR. HOWARD: Well, with the caveats that I have
19 mentioned; that is, as we modeled it, yes.
20 MR. NOMELLINI: Let's take the contribution from the
21 Exchange Contractors under the San Joaquin River Agreement
22 and the modeling for Alternative 8 in the Draft EIR.
23 Did the modeling assume that the contribution from the
24 Exchange Contractors was extra water added to the system in
25 a manner similar to the addition of water for the Merced
CAPITOL REPORTERS (916) 923-5447 14382
1 Irrigation District contribution?
2 MR. HOWARD: The modeling for the Exchange Contractors
3 was different than for the Merced Irrigation District
4 because the Exchange Contractors did not have a reservoir
5 upon which to draw to meet their contribution. Instead, the
6 way we handled it in the modeling is that we post processed
7 the model result and assumed that the contribution from the
8 Exchange Contractors was released. I don't recall exactly
9 where, but released from their service area to the San
10 Joaquin River and flowed down the San Joaquin River to
11 Vernalis.
12 MR. NOMELLINI: Did you assume in the modeling that
13 there would be a corresponding reduction in water use within
14 the Exchange Contractor area in order to produce the release
15 under the San Joaquin River Agreement?
16 MR. HOWARD: Presently, the model provides the full
17 contractual deliveries to the Exchange Contractors of
18 840,000 acre-feet on an annual basis, except during
19 deficiency periods. And so, by post processing the model
20 and taking 11,000 acre-feet, up to 11,000 acre-feet, which
21 is the Exchange Contractor contribution, we assumed that the
22 maximum use, therefore, within the Exchange Contractor
23 boundaries would be 829,000 acre-feet.
24 MR. NOMELLINI: And did the modeling reflect any impact
25 on water quality discharges to the San Joaquin River
CAPITOL REPORTERS (916) 923-5447 14383
1 resulting from such a reduction in use?
2 MR. HOWARD: Because of the post processing nature of
3 the contribution, the affect from water quality, on water
4 quality at Vernalis would not be reflected in the model
5 output and would not have been characterized in the EIR.
6 The reason for that is that the 11,000 acre-feet is such a
7 small amount of water in relation to the amount of water in
8 the system that we didn't think it would have any
9 substantial effects on salinity at Vernalis.
10 MR. NOMELLINI: With regard to the contribution from
11 the Modesto Irrigation District to the San Joaquin River
12 Agreement flows as modeled in Alternative 8 to the Draft
13 EIR, what assumption was made as to the source of that
14 water?
15 MR. HOWARD: Reservoir release.
16 MR. NOMELLINI: Was it deemed to be extra water similar
17 to the Merced release?
18 MR. HOWARD: In the same way as in the Merced, the
19 modeling indicated that all downstream demands could still
20 be met from New Don Pedro Reservoir after implementation of
21 the San Joaquin River Agreement in comparison to our base
22 case.
23 MR. NOMELLINI: That would include any recurrence of
24 historical dry periods, would it not?
25 MR. HOWARD: Yes, insofar as we are talking about in
CAPITOL REPORTERS (916) 923-5447 14384
1 reference to a base case.
2 MR. NOMELLINI: And insofar as we are talking the time
3 period of historical information, 1922 through 1994?
4 MR. HOWARD: Yes.
5 MR. NOMELLINI: Is that correct?
6 With regard to the source of water for the TID
7 contribution to the San Joaquin River Agreement, what was
8 the assumption for the modeling in the Draft EIR for
9 Alternative 8?
10 MR. HOWARD: The assumption for TID was the same as for
11 Modesto Irrigation District.
12 MR. NOMELLINI: Would you agree that we could
13 characterize that as extra water?
14 MR. HOWARD: With the same caveats that I employed when
15 talking about Lake McClure, yes.
16 MR. NOMELLINI: With regard to the contribution from
17 Oakdale Irrigation District, what was the assumption as to
18 the source of water provided by the Oakdale Irrigation
19 District for the San Joaquin River Agreement in the modeling
20 for Alternative 8 in the Draft EIR?
21 MR. HOWARD: Well, in that instance the flows came out
22 of New Melones Reservoir. And the assumption was that
23 diversions to Oakdale Irrigation District were curtailed in
24 order to meet their flow of component during the pulse
25 flow. There were several sources of water or several
CAPITOL REPORTERS (916) 923-5447 14385
1 agreements regarding how Oakdale would provide water.
2 One of them is a sale of water in excess of their total
3 contribution -- in order to bring their total contribution
4 up to 26,000 acre-feet, if that amount isn't called for
5 under the San Joaquin River Agreement pulse flow in October
6 flow. And in that circumstance when water was sold, that
7 water was just rolled up into New Melones Reservoir.
8 MR. NOMELLINI: Let's start with that block of water.
9 Did the model reflect a reduction in return flow to the
10 river system associated with the reduction in diversion by
11 OID assumed in the model?
12 MR. HOWARD: I have to look at the model output, the
13 notes in which were return flows in order to know if there
14 was a change in return flows. I do not have that
15 information.
16 MR. NOMELLINI: Did I cut you off too soon?
17 MR. HOWARD: That's all right.
18 MR. NOMELLINI: Excuse me.
19 With regard to accretions to the river associated with
20 reductions in diversions by OID necessary to provide the
21 component which you indicated was left in New Melones for
22 the San Joaquin River releases, would your answer be the
23 same with regard to the return flow?
24 MR. HOWARD: Yes.
25 MR. NOMELLINI: That is, you don't know whether or not
CAPITOL REPORTERS (916) 923-5447 14386
1 the modeling reflected it?
2 MR. HOWARD: Yes.
3 MR. NOMELLINI: I may have missed it, but there were --
4 there are two blocks of water in the San Joaquin River
5 Agreement provided by OID; is that correct?
6 MR. HOWARD: There is a component, I think, for the
7 pulse flow, yes, and then there is a sale of water. We can
8 call it two components.
9 MR. NOMELLINI: Let's assume for the sake of these
10 questions that there are two separate components. One is
11 related to the pulse flow and the other is for unknown
12 purposes. Is that a fair assumption?
13 MR. HOWARD: Yes.
14 MR. NOMELLINI: Did the modeling assume that the
15 components that I describe for unknown purposes was being
16 applied to any particular purpose?
17 MR. HOWARD: My recollection is that we rolled the
18 water sale, that was one of the components of the water, was
19 simply rolled up into the reservoir and stored.
20 MR. NOMELLINI: Does that mean that the modeling
21 assumed it would be used for water quality purposes?
22 MR. HOWARD: It would be reallocated in subsequent
23 years according to the Interim Operation Plan.
24 MR. NOMELLINI: So that if it was, in fact, used for a
25 different purpose than contemplated in the Interim
CAPITOL REPORTERS (916) 923-5447 14387
1 Operations Plan for New Melones, the impact would be
2 expected to be different, would it not?
3 MR. HOWARD: Yes.
4 MR. NOMELLINI: With regard to the component of water
5 which I described was for unknown purposes, was the
6 assumption in the modeling that that particular component of
7 water would be provided by reduced diversions by OID?
8 C.O. STUBCHAER: Mr. O'Laughlin.
9 MR. O'LAUGHLIN: I am going to object to this line of
10 questioning. The unknown quantity of water to which Mr.
11 Nomellini was referring to was 15,000 acre-feet pursuant to
12 the San Joaquin River Agreement that is made available to
13 the United States Bureau of Reclamation at New Melones for
14 any project purposes. That quantity of water has not been
15 noticed in this change petition. It has been noticed for
16 another change, but is not subject to this hearing, and the
17 only water that is subject to this hearing was the amount of
18 water that is made available under the San Joaquin River
19 Agreement for insert flows downstream of the Stanislaus or
20 on the main stem of the San Joaquin River for the
21 contribution from OID, which is 11,000 acre-feet.
22 C.O. STUBCHAER: Mr. Nomellini.
23 MR. NOMELLINI: I didn't say it was an unknown
24 quantity. I described it as for unknown purposes. And,
25 again, in order to understand the impact reflected in the
CAPITOL REPORTERS (916) 923-5447 14388
1 Draft EIR as provided for Alternative 8, which I think we
2 have concluded is relevant to this transfer phase, I think
3 it continues to be relevant. All I am doing is breaking
4 down those components to see if the modeling reflected the
5 possible impacts from those.
6 C.O. STUBCHAER: Objection overruled.
7 MR. NOMELLINI: I forget where I was.
8 With regard to the component of water provided by OID,
9 which I described as being for unknown purposes, was the
10 modeling that was done for Alternative 8 in the Draft EIR
11 based on the assumption that there would be a reduction in
12 diversions by OID to provide that component of water?
13 MR. HOWARD: Yes.
14 MR. NOMELLINI: With regard to the component of water
15 provided by OID to the pulse flow in the San Joaquin River
16 Agreement, did the modeling for Alternative 8 in the Draft
17 EIR assume that there would be a reduction in diversions by
18 OID to provide that component of water?
19 MR. HOWARD: Yes.
20 MR. NOMELLINI: Going to South San Joaquin Irrigation
21 District and the water provided by San Joaquin River
22 Agreement under the San Joaquin -- well, that is -- let me
23 strike that.
24 With regard to South San Joaquin Irrigation District
25 provision of water under the San Joaquin River Agreement.
CAPITOL REPORTERS (916) 923-5447 14389
1 Were the assumptions the same as to the provision of water
2 by that district as they were for OID?
3 MR. HOWARD: Yes.
4 MR. NOMELLINI: Again, that assumed there would be a
5 corresponding reduction in diversions by South San Joaquin
6 Irrigation District?
7 MR. HOWARD: Yes.
8 MR. NOMELLINI: Again, you don't know if the model
9 reflected any reduction in return flows or accretions to the
10 river associated with such a reduction in diversion?
11 MR. HOWARD: Not without checking the model output.
12 MR. NOMELLINI: With regard to the modeling for
13 Alternative 8 in the Draft EIR, was there an assumption that
14 the Bureau of Reclamation would be providing an additional
15 800,000 acre-feet on top of meeting all existing
16 requirements? Did the model assume the Bureau was going to
17 add an additional 800,000 acre-feet over and above meeting
18 the existing requirements?
19 MR. HOWARD: Could you explain that question a little
20 more?
21 MR. NOMELLINI: Was any assumption made in the modeling
22 for Alternative 8 in the Draft EIR with regard to the
23 Bureau's actions under the CVPIA?
24 MR. HOWARD: There was some CVPIA actions incorporated
25 into the modeling for Alternative 8. I can't recall what
CAPITOL REPORTERS (916) 923-5447 14390
1 they were. They were upstream actions in the Sacramento
2 Basin that the Bureau had identified to us as things that
3 were likely to occur under the CVPIA. And, also, I think
4 that some of the water that is being released under the
5 Interim Operation Plan for New Melones Reservoir is counted
6 towards CVPIA releases. But what quantity of water is
7 accounted for that purpose, I don't know.
8 MR. NOMELLINI: Mr. Johns, do you want to add to that
9 answer?
10 MR. JOHNS: No.
11 MR. NOMELLINI: Mr. Johns, what is your understanding
12 as to the assumptions for the Alternative 8 analysis in the
13 Draft EIR with regard to the Bureau's provision of water
14 under the CVPIA?
15 MR. JOHNS: There may be some CVPIA actions brought
16 into the way the basin was evaluated, but not many. There
17 were some upstream activities that Tom talked about that may
18 have been grounded in the base as well.
19 MR. NOMELLINI: Are you familiar with the Interim
20 Operation Plan for New Melones?
21 MR. JOHNS: Not very. Tom is a better witness on
22 that.
23 MR. NOMELLINI: Tom, with regard to the Interim
24 Operations Plan for New Melones, it is your understanding,
25 is it not, that a component of the water provided under
CAPITOL REPORTERS (916) 923-5447 14391
1 that Interim Operations Plan is water allocated to CVPIA
2 (b)(1) or (b)(2) purposes?
3 MR. HOWARD: That is my understanding.
4 MR. NOMELLINI: Do you know what quantity and in what
5 types of years in the modeling there would be an allocation
6 to the (b)(1) or (b)(2) CVPIA purpose?
7 MR. HOWARD: I don't know the specific quantity of
8 water. I know in the base case that we used in our analysis
9 for fish releases on the Stanislaus specifically for the
10 fishery in the Stanislaus was based on 1987 Department of
11 Fish and Game Agreement and the flows range from 98- to
12 302,000 acre-feet. But in the Interim Operation Plan the
13 amount of water that is dedicated for in-stream fisheries on
14 the Stanislaus has risen to, I don't know the specific
15 numbers, but somewhere around 200,000 to 450,000
16 acre-feet. I would imagine that that increment between the
17 87 Fish and Game Agreement and what is presently in the
18 Interim Operation Plan would represent the CVPIA component.
19 MR. NOMELLINI: You would agree, would you not, that
20 the 1987 Fish and Game Agreement that you referred to
21 provides that 98,000 acre-feet per annum be provided for
22 fish and then the balance of the water would be provided to
23 meet the Vernalis water quality standard before additional
24 water would be provided for fish?
25 C.O. STUBCHAER: Mr. O'Laughlin.
CAPITOL REPORTERS (916) 923-5447 14392
1 MR. O'LAUGHLIN: I object. Irrelevant. As far as I
2 understand, the USBR permits are not an issue in the change
3 petitions. This line of questioning about what agreements
4 are in force and effect in regards to New Melones is
5 irrelevant to the petitions that are present and before the
6 Board.
7 C.O. STUBCHAER: Mr. Campbell.
8 MR. CAMPBELL: Also object on that basis and also on
9 the basis that this line of questioning is irrelevant
10 pursuant to the Board's hearing notice. The Board has
11 specifically excluded from consideration in this hearing any
12 determination of public trust needs upstream, in-stream, in
13 the tributaries to the Bay-Delta. We have gone over this
14 ground before and particularly with regard to a motion filed
15 by Central Delta Parties, which the Board ruled that those
16 questions will not be dealt with here.
17 I would like to point out that because the Board has
18 specifically excluded consideration of those issues from
19 this hearing, the Board is precluded from deciding those
20 issues as part of this hearing. Given that it cannot decide
21 those issues, it would be a waste of time for the Board to
22 entertain them now.
23 C.O. STUBCHAER: Mr. Nomellini.
24 MR. NOMELLINI: I wasn't even talking about or trying
25 to address the adequacy of these flows for the protection of
CAPITOL REPORTERS (916) 923-5447 14393
1 fish. I was trying to pursue what the modeling reflected
2 and what the assumptions were in the Alternative 8 analysis
3 included in the Draft EIR.
4 And it's in that vain and I don't think I got anywhere
5 near Mr. Campbell's concerns about the adequacy of these
6 flows for fish in the river, which I expect to get to with
7 another witness.
8 C.O. STUBCHAER: We have stated many times before, the
9 scope of cross-examination is not limited to the scope of
10 the direct, and it is fairly broad. As long as it is
11 relevant, it is permissible. And I am going to overrule the
12 objection.
13 MR. NOMELLINI: Mr. Howard, do you remember the
14 question? I will try again.
15 MR. HOWARD: I remember the question.
16 I do not know the relative priority that has been
17 established in the Fish and Game Agreement for the water
18 quality releases versus the fishery releases.
19 MR. NOMELLINI: Do you know how the model treated that?
20 MR. HOWARD: The model treated it by providing the
21 fishery releases and then providing water quality releases
22 as the lowest priority on the reservoir releases.
23 MR. NOMELLINI: And with regard to the specific
24 quantities allocated in a given year, where would that
25 information be in terms of the modeling? It is not in the
CAPITOL REPORTERS (916) 923-5447 14394
1 appendices because the result of the Alternative 8 are in
2 Volume IV; is that correct?
3 MR. HOWARD: Volume IV.
4 MR. NOMELLINI: How do we find that information?
5 MR. HOWARD: What information, specifically?
6 MR. NOMELLINI: The specific allocations assumed in the
7 modeling under the New Melones Interim Operations Agreement
8 that were incorporated in the Alternative 8 analysis for the
9 Draft EIR.
10 MR. HOWARD: I am uncertain what you mean by
11 "allocations." Do you mean how we proposed to model it, or
12 do you mean how much water was actually provided for those
13 purposes?
14 MR. NOMELLINI: How much water was actually provided
15 for those purposes in any given year in the modeling
16 sequence.
17 MR. HOWARD: You would have to look at the model output
18 to see all the information that you are asking for. There
19 is about ten megabytes of model output for each model run.
20 It is not all summarized in the Draft EIR.
21 MR. NOMELLINI: Given that it is not summarized, all
22 summarized, in the Draft EIR, is there a specific modeling
23 run that reflects the output of the modeling for Alternative
24 8 in the Draft EIR?
25 MR. HOWARD: Yes, there is. The entire model output is
CAPITOL REPORTERS (916) 923-5447 14395
1 on the web, on the DWR web page, that includes the Board's
2 modeling outputs.
3 MR. NOMELLINI: Is there a designation for this
4 particular output?
5 MR. HOWARD: Alternative 8.
6 MR. NOMELLINI: In the base case, which is Alternative
7 1 referenced in the Draft EIR, is it correct that the base
8 case assumes that there would be continued violation of the
9 Vernalis water quality standards?
10 MR. HOWARD: I believe that in the base case there was
11 violations in one or two years, minor violations. But
12 mostly all of the standards were met under our base case
13 modeling.
14 MR. NOMELLINI: Is there any reason why the assumption
15 was not made that there would be compliance with the
16 Vernalis water quality standards for the base case
17 analysis?
18 MR. HOWARD: The base case analysis assumed that all
19 the water quality releases would be made from New Melones
20 Reservoir. And so, to the extent that there was storage
21 available in New Melones Reservoir, releases were made for
22 water quality purposes. To the extent that there wasn't any
23 storage available, the standards were violated.
24 MR. NOMELLINI: So that the base case assumes that the
25 reservoir runs out of water. That reservoir being New
CAPITOL REPORTERS (916) 923-5447 14396
1 Melones; is that correct?
2 MR. HOWARD: Yes.
3 MR. NOMELLINI: And did the Draft EIR analyze the
4 impact upon fish species such as steelhead when the New
5 Melones Reservoir ran out of water?
6 MR. HOWARD: Well, I would -- the answer, to some
7 extent, is no. However, we always met the fish releases in
8 the base case. We just didn't always meet the water quality
9 releases.
10 MR. NOMELLINI: So you met the 98,000 acre-feet per
11 year fish release in all cases even when New Melones ran out
12 of water?
13 MR. HOWARD: 98,000 to 302,000. Pursuant to the 1997
14 Fish and Game Agreement.
15 MR. NOMELLINI: Was any analysis done as to whether or
16 not the minimum fish flow provided in the analysis was
17 adequate to protect steelhead?
18 MR. HOWARD: No. We relied on the Department of Fish
19 and Game Agreement.
20 MR. NOMELLINI: That is all I have.
21 Thank you, Mr. Chairman, Members of the Board and
22 panel.
23 C.O. STUBCHAER: Mr. Herrick, should we take our little
24 early break or -- how much do you have?
25 MR. HERRICK: Might be a half hour.
CAPITOL REPORTERS (916) 923-5447 14397
1 C.O. STUBCHAER: Let's take our morning break now,
2 12-minute break. We will reconvene.
3 (Break taken.)
4 C.O. STUBCHAER: We will resume the hearing.
5 Mr. Herrick, good morning.
6 ---oOo---
7 CROSS-EXAMINATION OF SAN JOAQUIN RIVER GROUP AUTHORITY
8 BY SOUTH DELTA WATER AGENCY
9 BY MR. HERRICK
10 MR. HERRICK: Thank you, Mr. Chairman, Board Members.
11 John Herrick for South Delta Water Agency.
12 I think I just have a few questions.
13 Mr. Howard, you said a few minutes ago that you
14 recalled that the base case that you modeled in the EIR had
15 few water quality violations. Is that what I heard? Is
16 that correct?
17 MR. HOWARD: Yes.
18 MR. HERRICK: Do you have available in front of you the
19 revised Chapters V, VI and XIII?
20 MR. HOWARD: Yes.
21 MR. HERRICK: Could you turn to Page VI-14?
22 I'm looking at VI-14, Mr. Howard, and I see under the
23 -- well, let me start. Figure VI-14 is the salinity at
24 Vernalis over the period of '87, '89 and then the dry years
25 and critical years following that; is that correct?
CAPITOL REPORTERS (916) 923-5447 14398
1 MR. HOWARD: My recollection is that it was the
2 critically dry '87 to '92 period.
3 MR. HERRICK: Excuse me for one minute, I think I just
4 read this morning on Page VI-8, I believe the last two
5 sentences of the first full paragraph, if maybe you could
6 review those, please.
7 MR. HOWARD: Where was that?
8 MR. HERRICK: Page VI-8, the last two sentences of the
9 first full paragraph.
10 UNIDENTIFIED VOICE: Would you read those.
11 MR. HERRICK: Just for the record the two sentences
12 read:
13 The first figure for each station shows the
14 average EC or chloride concentration for dry
15 years '87, '89 during the six-year period,
16 And the second document shows the average for
17 critically dry years '88, '90, '91, '92 for
18 Southern Delta stations with objectives
19 independent of year type. Only one figure is
20 used to represent the EC conditions for the
21 six-year simulated period. (Reading.)
22 And, Mr. Howard, my question with regard to Figure
23 VI-14, isn't that a figure showing the two dry years and the
24 four critical years averaged?
25 MR. HOWARD: It's showing the six years from '87 to
CAPITOL REPORTERS (916) 923-5447 14399
1 '92. However, they were all six critically dry. The
2 reference here on Page VI-8 deals with the 40-30-30
3 Sacramento Basin year type in which there were two dry years
4 and four critical dry years, using that hydrologic
5 classification.
6 Using the 60-20-20 San Joaquin Basin hydrologic
7 classification, which I believe applies to the San Joaquin
8 River, there were six critically dry years from 1987 to
9 1992.
10 MR. HERRICK: Thank you. I didn't understand that from
11 the text there.
12 Back to Figure VI-14. It appears Alternative 1, which
13 is the base case, averages violations in May, June, July and
14 August; is that correct?
15 MR. HOWARD: It provides average -- it has violations
16 under the averaged period in May, June, July and August;
17 that is correct.
18 MR. HERRICK: I just want to highlight that, given your
19 statement that the base case assumed or contained few
20 violations.
21 MR. HOWARD: Yes.
22 MR. HERRICK: Feel free, please, do clarify that.
23 Were you referring, then, to the violation occurring in
24 drier times or maybe you could explain your use of the word
25 "few."
CAPITOL REPORTERS (916) 923-5447 14400
1 MR. HOWARD: We modeled 73 years of hydrology. I don't
2 remember the exact number, but I don't doubt whether
3 violations occurred more than five years out of that
4 hydrology. However, in '87 to '92, that was the critical
5 period on the San Joaquin Basin, for the entire 73 years of
6 hydrology and during the latter year or two there were
7 violations in the salinity objectives. And when you average
8 that up over the six years, it will show that the average EC
9 was, over the six-year period, indicated there were
10 violations.
11 I still believe my statement was accurate.
12 MR. HERRICK: I don't mean to be picky here. Do you at
13 this time believe that the -- I think you said that
14 violations occurred in maybe five years. We had a previous
15 drought and a number of critical times, critical years in
16 the 71-year history.
17 Would your estimate be that there were violations only
18 in the base case in five years of the 71?
19 MR. HOWARD: In the area of about five years.
20 MR. HERRICK: That information would be on all the
21 model runs?
22 MR. HOWARD: Yes.
23 MR. HERRICK: Thank you.
24 You were talking about the assumptions -- you were
25 answering questions about the assumptions that went into the
CAPITOL REPORTERS (916) 923-5447 14401
1 models for operations of New Melones.
2 Do you recall that?
3 MR. HOWARD: Yes.
4 MR. HERRICK: I believe you said that water quality
5 releases would be given the lowest priority. Could you
6 clarify that, please?
7 MR. HOWARD: There were a number of releases required.
8 And when specifying how we wanted the alternative, the base
9 case alternative, modeled, it was necessary to specify the
10 priority in which the releases for various purposes would be
11 provided. And we directed the Department of Water Resources
12 to give water quality releases the lowest priority.
13 MR. HERRICK: What was the basis for deciding water
14 quality would have a lower priority than, say, fish and
15 wildlife releases, releases for fish and wildlife?
16 MR. HOWARD: Historically, our observation was that
17 water quality had generally seemed to be provided the lowest
18 priority from Bureau operations. Also, I would say that it
19 wasn't that it was an attempt on our part to make a
20 determination of which objective had the lowest priority.
21 It was simply that a hierarchy had to be established.
22 From our perspective the water quality does not
23 necessarily have the lowest priority. But if you are
24 obliged to make a decision, something has to end up on the
25 bottom.
CAPITOL REPORTERS (916) 923-5447 14402
1 MR. HERRICK: Could the modeling have been done sharing
2 the priorities between water quality and fish and wildlife
3 releases?
4 MR. HOWARD: It probably would have taken more time to
5 figure out some mechanism for doing that, but it could have
6 been done.
7 MR. HERRICK: That modeling did assume a limit of 1,500
8 cfs for releases from New Melones; is that correct?
9 MR. HOWARD: In the base case it did not.
10 MR. HERRICK: In the base case it did not?
11 MR. HOWARD: It did not.
12 MR. HERRICK: So, under the base case, did the amount
13 of water released from New Melones for the pulse flow change
14 depending on the year type?
15 MR. HOWARD: For the base case there was no pulse
16 flow.
17 MR. HERRICK: I am sorry.
18 Was there a 1,500 cfs limitation on releases under
19 Alternative 8?
20 MR. HERRICK: Yes.
21 MR. HERRICK: How did the model decide -- let me back
22 up. I apologize.
23 We have gone through before that 1,500 cfs for 31 days
24 is somewhere in the neighborhood of 93,000 acre-feet. Would
25 you go along with that? I am not trying to test your
CAPITOL REPORTERS (916) 923-5447 14403
1 knowledge.
2 MR. HOWARD: How many days was that?
3 MR. HERRICK: Thirty-one days.
4 MR. HOWARD: Yes, that is right.
5 MR. HERRICK: On what basis did the model make
6 decisions to release more -- excuse me.
7 On what basis did the model decide when to release more
8 than 93,000 acre-feet under Alternative 8?
9 MR. HOWARD: I believe that there was a limit from New
10 Melones of New Melones releases of that amount.
11 MR. HERRICK: I am talking about beyond the pulse
12 flow. If the modeling assumes, when it is available, 1,500
13 cfs under Alternative 8 for the pulse, on what basis does
14 the model decide when, what other time period, water above
15 93,000 acre-feet is released?
16 MR. HOWARD: I'd have to go back and check the model
17 output. But I believe that there wasn't a release in excess
18 of 1,500 cfs except under flood control operations.
19 MR. HERRICK: My question is: Then how does the -- I
20 believe you said earlier that the model made releases under
21 the Fish and Game Agreement of 98,000 to 302,0000 acre-feet?
22 MR. HOWARD: Yes.
23 MR. HERRICK: In some instances during those releases
24 between 98- and 302,000 acre-feet, insufficient water was
25 available for water quality because of priority given; is
CAPITOL REPORTERS (916) 923-5447 14404
1 that right?
2 MR. HOWARD: Well, the 98,000 to 302,000 was in the
3 base case. There was a different fish release in the
4 alternative that had the 1,500 restriction on it. So it
5 seems as though the question is getting a bit muddled.
6 Could you clarify?
7 MR. HERRICK: I apologize. Maybe I am not following
8 that.
9 When did the model release more than the 93,000 during
10 the pulse flow? If, indeed, the model is accounting for
11 releases between 98- and 302- in any given year?
12 MR. HOWARD: Well, first off, the 98- and 302- is an
13 annual figure. Does that clarify the question for you or --
14 MR. HERRICK: No. That kind of restates it for me. I
15 am trying to figure out when the model released the water
16 that is in excess of 93,000 acre-feet during any particular
17 year, since I believe you said that the model makes releases
18 between 98- and 302- in each year.
19 MR. HOWARD: No. What I said was for the Interim
20 Operation Plan in which the pulse flow is a component, the
21 fishery releases on the Stanislaus range from around 200- to
22 450,000 acre-feet. But a different fish release is provided
23 under Alternative 8 than under the base case. In the base
24 case we used the Fish and Game Agreement, which had a fish
25 release of 98,000 to around 302,000 acre-feet.
CAPITOL REPORTERS (916) 923-5447 14405
1 MR. HERRICK: We are not communicating somehow, and I
2 apologize somehow for that.
3 Does the modeling under Alternative 8 make releases
4 from New Melones in excess of the approximate 93,000
5 acre-feet during the pulse?
6 MR. HOWARD: I believe no.
7 MR. HERRICK: So the modeling for Alternative 8 assumes
8 in any particular year at most 93,000 acre-feet goes
9 downstream to fish and wildlife purposes?
10 MR. HOWARD: During the one-month pulse flow.
11 MR. HERRICK: During the pulse flow, right.
12 The modeling is not showing any water from New Melones
13 in times other than the pulse flow in any month?
14 MR. HOWARD: There are releases for every month for
15 fish and wildlife and for other purposes downstream
16 demands.
17 MR. HERRICK: That is what I've been trying to ask.
18 How does the model decide in those other months when and how
19 much to release?
20 MR. HOWARD: I don't have on the tip of my tongue the
21 release schedule for fish and wildlife under the Interim
22 Operation Plan. I know what the annual allocations are, but
23 not how it is distributed monthly.
24 MR. HERRICK: So the model provides water in other
25 months than the pulse if it is available and the Interim
CAPITOL REPORTERS (916) 923-5447 14406
1 Operation Plan says to release is; is that correct?
2 MR. HOWARD: Yes.
3 MR. HERRICK: Those assumptions about additional water
4 being available are not based upon what is needed for water
5 quality?
6 MR. HOWARD: Could you clarify the question?
7 MR. HERRICK: I believe you said earlier that in some
8 instances there will be releases of 98,000 or above in years
9 when there is insufficient water available for water quality
10 purposes; is that correct?
11 MR. HOWARD: In the base case that was referring to,
12 yes.
13 MR. HERRICK: What about Alternative 8?
14 MR. HOWARD: I don't understand the question.
15 MR. HERRICK: Alternative 8 assumes that fishery
16 releases are always met, that specified fishery releases are
17 always met; is that correct?
18 MR. HOWARD: Yes, but they change based on year type.
19 MR. HERRICK: But it does not meet water quality
20 releases. Alternative 8 does not meet water quality
21 releases; is that correct?
22 MR. HOWARD: Alternative 8 has a schedule for water
23 quality releases and those are always met. However, that
24 does not mean that the objective at Vernalis is always met.
25 MR. HERRICK: The basis for not applying water in
CAPITOL REPORTERS (916) 923-5447 14407
1 excess of 93,000 acre-feet, of not applying that to water
2 quality, is what the Interim Operation Plan set; is that
3 correct?
4 MR. HOWARD: I don't understand the question.
5 MR. HERRICK: When you're modeling to determine how
6 much should be provided for water quality, the reason you
7 don't take water in excess of the pulse flow and apply to
8 water quality is because the Interim Operation Plan
9 specifies how the water will be allocated?
10 MR. HOWARD: The Interim Operation Plan does specify
11 how the water will be provided.
12 MR. HERRICK: That is the basis of the model's output;
13 is that correct?
14 MR. HOWARD: Yes.
15 MR. HERRICK: I have no further questions.
16 Thank you.
17 C.O. STUBCHAER: Staff have any questions?
18 MS. LEIDIGH: No, no questions.
19 C.O. STUBCHAER: Do you have any questions of yourself,
20 Mr. Howard?
21 MR. HOWARD: No questions?
22 C.O. STUBCHAER: Board have any questions?
23 All right. That concludes the cross-examination. Is
24 there -- just a moment.
25 Do you have any redirect, Mr. Godwin and Mr.
CAPITOL REPORTERS (916) 923-5447 14408
1 O'Laughlin?
2 MR. GODWIN: Could we have a few minutes?
3 C.O. STUBCHAER: Yes. We will have a brief recess off
4 the record.
5 (Break taken.)
6 C.O. STUBCHAER: Back on the record.
7 Mr. Godwin.
8 MR. GODWIN: Thank you.
9 ---oOo---
10 REDIRECT EXAMINATION BY SAN JOAQUIN RIVER GROUP AUTHORITY
11 BY MR. GODWIN
12 MR. GODWIN: Mr. Howard, in regards to some questions
13 from Mr. Nomellini regarding the Merced Irrigation District
14 and Modesto Irrigation District and Turlock Irrigation
15 District, you testified that under Alternative 8, the
16 reservoirs, New Exchequer and New Don Pedro could make all
17 the releases to meet their downstream demand and still meet
18 the San Joaquin River Agreement; is that correct?
19 MR. HOWARD: That was what the model output from DWRSIM
20 indicated.
21 MR. GODWIN: You testified that there was extra water
22 available in order to meet all the downstream needs and
23 still meet the San Joaquin River Agreement; is that correct,
24 based on the modeling?
25 MR. HOWARD: Yes, as modeled.
CAPITOL REPORTERS (916) 923-5447 14409
1 MR. GODWIN: When you use the term "extra water," is
2 that referring to a reduction in carryover storage for
3 subsequent years?
4 MR. HOWARD: In years in which the reservoir does not
5 spill there would be a reduction in carryover storage.
6 MR. GODWIN: Thank you.
7 No more questions.
8 C.O. STUBCHAER: Any recross-examination limited to
9 scope of the redirection?
10 Seeing none, staff?
11 Board?
12 Okay. Thank you, Mr. Howard and Mr. Johns.
13 There are no exhibits here so, okay.
14 Fish and Game, Mr. O'Laughlin.
15 Mr. Campbell.
16 MR. CAMPBELL: This is Central Delta Parties' witness
17 through its case in chief obtained through subpoena.
18 C.O. STUBCHAER: Fine. Thank you.
19 Mr. O'Laughlin.
20 MR. O'LAUGHLIN: Previously we sent a letter to the
21 State Water Control Board objecting to this testimony
22 unless procedures had been followed for issuance of
23 subpoenas and service of those subpoenas on the other
24 parties. We indicated at that time that, even though we
25 would accommodate in the scheduling, that we would object to
CAPITOL REPORTERS (916) 923-5447 14410
1 the testimony unless all the parties were properly served
2 with notice of the subpoena and the witness would be
3 called.
4 To date our office, and I don't know if Mr. Nomellini
5 will attest to this, our office nor any other member of the
6 San Joaquin River Group Authority has received notice that a
7 subpoena has been issued or that this witness will be called
8 as part of the State Water Resources Control Board hearing.
9 C.O. STUBCHAER: Mr. Nomellini.
10 MR. O'LAUGHLIN: We, therefore, object to the
11 testimony.
12 MR. NOMELLINI: I filed the notice of appearance,
13 listed Mr. McEwan on the list as an adverse party, cited the
14 San Joaquin River Agreement Exhibit 43, which was already in
15 the record. And that was served on all the parties to the
16 hearing, which I believe is in compliance with the
17 requirements to call this party as a witness.
18 C.O. STUBCHAER: Mr. O'Laughlin.
19 MR. O'LAUGHLIN: I was informed by staff counsel that
20 the proper procedure for calling a witness pursuant to a
21 subpoena was the requirement that if a subpoena was issued
22 and served and the witness was called, that service of the
23 subpoena would have to be made on all the parties to the
24 proceeding. That has not been done in this case. It had
25 been done in the other one.
CAPITOL REPORTERS (916) 923-5447 14411
1 C.O. STUBCHAER: Ms. Leidigh.
2 MS. LEIDIGH: The basis of the requiring parties to
3 serve copies of the subpoenas on the other parties is to
4 insure that all documents that are provided to the Board are
5 also provided to all parties. It is not necessarily related
6 to whether or not they have said who their witnesses are.
7 But it is a requirement so far as making sure that the
8 documents are provided to everybody.
9 And that would allow all parties to see any
10 declarations that are attached to the subpoenas or the
11 details from the subpoenas that they know what is being
12 requested.
13 C.O. STUBCHAER: So what is the status of the subpoenas
14 and the notice, as far as this objection is concerned?
15 MS. LEIDIGH: So far as I know, and maybe Mr. Nomellini
16 could correct me, I don't think that the subpoenas have been
17 or this particular subpoena has been served on the parties
18 in the hearing. I don't think that a copy has been provided
19 to them. But I do believe that Mr. Nomellini has indicated
20 through his notice of intent to appear that he would call
21 this witness.
22 MR. NOMELLINI: Yeah. I did not serve copies of the
23 subpoena on the parties. In fact, I don't know that it is a
24 requirement.
25 Secondly, there was no declaration attached to the
CAPITOL REPORTERS (916) 923-5447 14412
1 subpoena since I was not calling a witness more than that
2 150 miles away from the place of the hearing, did not
3 require the production of documents. So I simply made
4 arrangements with Department of Fish and Game to provide
5 this witness as an adverse witness, and I followed the
6 procedure for getting a subpoena. And with the subpoena the
7 Department of Fish and Game agreed to provide this witness
8 for me.
9 C.O. STUBCHAER: Mr. O'Laughlin.
10 MR. O'LAUGHLIN: My understanding from your counsel,
11 though, was that when a subpoena was issued and that witness
12 was going to be called in front of the State Water Resources
13 Control Board, that the subpoena would then be issued to all
14 the parties, to give notice of the hearing.
15 We did the same thing. We put it in our notice of
16 intent to appear and everything. But I was also told that
17 other witnesses would have to be, if they were subpoenaed,
18 the subpoena mailed out and served on all the other parties,
19 because this gets to a proper service and issuance of the
20 subpoena in bringing those witnesses in front of the Board
21 and giving proper notice to the parties.
22 Even though it may be in the notice of intent to
23 appear, that doesn't necessarily mean that that witness will
24 be called. We have seen in this hearing numerous witnesses
25 that have been listed in the notice of intent to appear and
CAPITOL REPORTERS (916) 923-5447 14413
1 have not actually appeared as parties. And this is not a
2 surprise. I sent out a letter several weeks ago to all the
3 parties, to Mr. Nomellini and to the State Board, stating
4 that we would object unless the proper procedures were
5 followed for bringing witnesses in front of the State
6 Board.
7 C.O. STUBCHAER: Mr. Nomellini.
8 MR. NOMELLINI: Last comment. With regard to the
9 production of witnesses, adverse witnesses have been
10 provided without the necessity of subpoena by arrangement,
11 for example, with the Bureau of Reclamation. They provided
12 a number of witnesses to parties as adverse witnesses.
13 The requirement as a prerequisite to presenting the
14 witness that the subpoena be served on all parties, I am
15 unaware of. If there is such a requirement, then I would
16 suggest that instead of me making it convenient for Mr.
17 O'Laughlin to have this presentation today, if that is the
18 problem, I would be happy to serve a copy of the subpoena on
19 all the parties and ask to bring back this witness and
20 present my case in the normal order that we would have
21 proceeded.
22 The subpoena itself, I don't think, imparts any notice
23 to anybody. And Mr. Campbell has not lodged any objection
24 to my subpoena in providing the witness. It is his person
25 that is being provided here. So I don't -- whatever you
CAPITOL REPORTERS (916) 923-5447 14414
1 want to do.
2 C.O. STUBCHAER: Mr. O'Laughlin.
3 MR. O'LAUGHLIN: I want to make two minor technical
4 points, but I think there are important distinctions. The
5 first one is we have arrived at an arrangement with United
6 States Bureau of Reclamation, U.S. Fish and Wildlife Service
7 and the federal agencies that subpoenas would not be
8 necessary. Because that got into -- this goes back to last
9 July where the question was raised whether or not this Board
10 had subpoena power over the federal government. We avoided
11 that issue by Mr. Brandt stating to the Board that with a
12 proper letter request that he would endeavor to make
13 witnesses available. So, that is a distinction.
14 This time it is clear that the State Board has
15 jurisdiction over this state party interest, a party I mean,
16 and can, therefore, make him available. All I want to make
17 clear is certain procedures have been outlined in the
18 process. I want to make sure that all the parties follow
19 the procedures. Because, if we are going to give notice, it
20 is not clear -- I realize Mr. Nomellini thinks his notice of
21 intent to appear put parties on notice as to who is going
22 to appear. But, actually, it is the subpoena and the actual
23 subpoena that was issued that allows the party to show up as
24 to who is going to be here to testify.
25 And I realize, and I pointed this out in my letter, I
CAPITOL REPORTERS (916) 923-5447 14415
1 realize the accommodation Central Delta Water Agency is
2 making in making this witness available. When we pointed
3 this deficiency out over two weeks ago, we requested that it
4 be cured, because we told all the parties and the Board we
5 would be objecting to it. We are not sandbagging anybody
6 here. We want to make it clear.
7 MR. NOMELLINI: I am accorded the last comment, right?
8 C.O. STUBCHAER: You said the last one was our last
9 comment.
10 MR. NOMELLINI: Then there was another one after me.
11 I ask permission to address the Board further on the
12 subject.
13 C.O. STUBCHAER: Yes, Mr. Nomellini.
14 MR. NOMELLINI: Mr. O'Laughlin, when he called and
15 asked me if I was willing to accommodate him in the
16 presentation of this case by moving in as filler, I agreed
17 to do so. He did not say we are going to waste everybody's
18 time by coming up here and objecting to the presentation of
19 your witness.
20 Now, if there is any lack of notice, anybody to this
21 hearing process did not know that I was going to call Mr.
22 McEwan, then they ought to come forward and tell us. I
23 served everybody with -- the actual notice has been received
24 by everybody, and the party objecting, Mr. O'Laughlin, had
25 specific arrangements with me to bring Mr. McEwan today. So
CAPITOL REPORTERS (916) 923-5447 14416
1 if there is any possible prejudice that would be attributed
2 to this, it is certainly not to Mr. O'Laughlin and his
3 clients. And I don't know anybody that didn't know I was
4 calling this witness. So if there is a technical failure,
5 which I don't understand the regulation to require it, it
6 was a technical failure, and that is all it is with no
7 prejudice.
8 C.O. STUBCHAER: I view this as a legal question,
9 whether or not our hearing notice rules were complied with.
10 We are going to have a consultation with our counsel.
11 (Discussion held off the record.)
12 C.O. STUBCHAER: Back on the record.
13 We will ask Ms. Leidigh to give us the legalities of
14 this, of our potential ruling on this objection.
15 Ms. Leidigh.
16 MS. LEIDIGH: What I am going to point out is that
17 there are two things going on here. One is a requirement to
18 provide copies to the parties of every document that is
19 provided to the Board. It appears that that requirement has
20 not been met and that Mr. Nomellini should provide copies of
21 his subpoena to all parties.
22 The other requirement is to avoid surprise, and I think
23 that surprise has been avoided. Mr. Nomellini has made it
24 pretty clear that he was planning to call this witness, and
25 I don't see personally how there is any prejudice in this
CAPITOL REPORTERS (916) 923-5447 14417
1 particular instance so far as calling the witness is
2 concerned. So my recommendation is that the witness be
3 allowed to appear and testify today, since those are the
4 arrangements that have been made with opposing counsel and
5 everybody else, and that Mr. Nomellini be asked to provide
6 copies of his subpoena to all the parties promptly.
7 C.O. STUBCHAER: All right. That is the ruling.
8 MR. NOMELLINI: Fair enough. I will provide it, and I
9 might just and for the record I didn't file that subpoena
10 with the Board. I had a subpoena issued by one of the
11 principals, Mr. Schueller, in the water rights hierarchy and
12 I did not file the subpoena with the Board. So I have not
13 filed documents with the Board and I have not served on all
14 parties.
15 C.O. STUBCHAER: Are you arguing with the ruling?
16 MR. NOMELLINI: No. I am going to send it out. I just
17 want to make it clear on the record. I will be happy to
18 send it out.
19 C.O. STUBCHAER: That wasn't clear.
20 MR. O'LAUGHLIN: He doesn't know when he is ahead.
21 MR. NOMELLINI: Thank you very much.
22 This is the time for my case in chief. I would like to
23 make a brief opening statement.
24 C.O. STUBCHAER: Mr. Campbell.
25 MR. CAMPBELL: Mr. Chairman, I believe the witness
CAPITOL REPORTERS (916) 923-5447 14418
1 needs to take the oath.
2 (Oath administered by Chairman Stubchaer.)
3 C.O. STUBCHAER: Mr. O'Laughlin.
4 MR. O'LAUGHLIN: Are you making an opening statement?
5 MR. NOMELLINI: Yes, I was planning on it.
6 MR. O'LAUGHLIN: Then I will wait. I am sorry.
7 MR. NOMELLINI: It is permissible, Mr. Chairman, at the
8 beginning of the case in chief for us to make an opening
9 statement?
10 C.O. STUBCHAER: Yes.
11 ---oOo---
12 DIRECT EXAMINATION OF CENTRAL DELTA PARTIES
13 BY MR. NOMELLINI
14 MR. NOMELLINI: Thank you very much.
15 The Central Delta Parties have been very concerned
16 about the San Joaquin River Agreement for a number of
17 reasons. During other phases we expressed our concern about
18 a piecemeal settlement with regard to water rights, about
19 the concept of backstopping the obligations of the water
20 right holders along the tributaries and in particular Friant
21 with regard to any possible needs to provide water to
22 protect the public trust or otherwise comply with the 1995
23 Water Quality Control Plan. We also expressed concerns in
24 previous phases as to whether or not the San Joaquin River
25 Agreement Attachment A, which we loosely refer to as the
CAPITOL REPORTERS (916) 923-5447 14419
1 VAMP, because the VAMP has changed a number of times,
2 actually constitutes meeting the 1995 Water Quality Control
3 Plan. So we have stated those, and we recognize that in
4 this phase of the hearing those are not the subjects.
5 Our concern in this case phase is regard to the seven
6 issues outlined in the notice. Throughout our attempt to
7 deal with the San Joaquin River Agreement and aside from
8 these, I am going to call them, technical concerns, we have
9 suffered from the lack of understanding of what the real
10 source of water is to be provided under the San Joaquin
11 River Agreement. I remember distinctly either argument or
12 opening statement from Mr. O'Laughlin that we don't have to
13 tell you where we get the water. We are going to provide
14 the water under the San Joaquin River Agreement and where we
15 get it is not your concern.
16 Now, this phase, it's our concern and it's your
17 concern. We've got to understand where the water -- what
18 the actual source of water is going to be from a water
19 rights standpoint. There is a legitimate question included
20 in here that, would the petition changes increase the amount
21 of water each of the petitioners is entitled to use. Now,
22 if, in fact, the petitioners are using all the water that
23 they can reasonably use, and then they have extra water that
24 they are going to get paid for, are they not then using,
25 through an agency or contractual relationship, more water
CAPITOL REPORTERS (916) 923-5447 14420
1 than they are entitled to use? Is it their water, if it is
2 extra water and I have used the term "extra" a number of
3 times? If it is extra water, are they entitled to use that
4 water?
5 Now, if it is not extra water, and to me from an impact
6 on downstream users, if there is extra water up there in the
7 reservoir that just stays in there as an addition to storage
8 during the drought periods and they let it down on the
9 system, it doesn't hurt us downstream. It is not an
10 adverse impact to a legal user, because it is water that
11 would have just been sitting in the reservoir. It may have
12 a temperature impact on fish or something like that, but it
13 wouldn't hurt my clients if that water had been just sitting
14 up there and would never have been used during this period
15 of time, but for the San Joaquin River Agreement it comes
16 down as extra water.
17 Additionally, if the water is water that is made
18 available through additional conservation measures over and
19 above what was in place prior to the Agreement and there was
20 some provision to make sure return flows and accretions
21 weren't changed, then that wouldn't create a problem for us
22 because that is water that's like newly generated water. It
23 is saved water. So, therefore, we wouldn't have a big
24 problem with that either.
25 Now where we have problems is that some of this water
CAPITOL REPORTERS (916) 923-5447 14421
1 at various times has been described -- I am not talking
2 about the modeling. I don't think the modeling by any of
3 these parties has given us a good handle on what the impacts
4 are associated with this proposal.
5 But aside from the modeling, if, for example, power
6 releases that formerly had been made in July or August were
7 then shifted to this pulse flow period in May, we would have
8 a different problem in the river because we are going to be
9 minus those waters at a time when water quality is of
10 concern to my clients. So we see that as a problem, if
11 water is going to come from those power releases.
12 Whether or not the parties have a right to shift their power
13 releases from summer to the spring, is a different
14 question than what is the impact to that shift. The impact
15 to the shift, whether it is legal or not, is something that
16 we are concerned about, and I think legitimately so, and
17 even though it is legal to do.
18 If, as we have heard, for some of these people that we
19 are going to run out of storage in the reservoir when we get
20 to the dry years, if we get them, and we are going to make
21 up the water from a little extra pumping from the
22 groundwater basin, then the concern from our standpoint is
23 will the river flows be depleted either by reduction or
24 return flow or by accretion, because the lower end of this
25 tributary system is an accretion area? In other words, the
CAPITOL REPORTERS (916) 923-5447 14422
1 level of the groundwater effects the amount of flow into the
2 river.
3 So we are concerned about those proposals and we are
4 concerned that the impacts have not been analyzed. Now, we
5 are strong advocates of a comprehensive approach to the
6 river, and we blame the Bureau of Reclamation for the plight
7 of the San Joaquin River, both from a drainage standpoint,
8 the delivery of large quantities of water from the San Luis
9 Project to the west side of the valley without the provision
10 of the drain which is the salinity problem, rightfully or
11 wrongfully, whether their actions with regard to Friant have
12 deprived a major part of the river system with water. Then,
13 of course, we have a lot of heartache over the Bureau's
14 operation of New Melones.
15 So we blame the Bureau. But the question really isn't
16 one that should be focused on blame, but what should we do.
17 We think that the Bureau, being the primary player on the
18 San Joaquin River, should be the one required to come up
19 with a comprehensive plan that addresses the fish
20 requirements and at the same time the water quality
21 requirements of the San Joaquin River system.
22 Now, why do we say the Bureau? We say the Bureau,
23 first, because we blame them, but that isn't the reason.
24 They control the fate of the San Joaquin River. To have
25 them do the planning, in our view, would be the best way to
CAPITOL REPORTERS (916) 923-5447 14423
1 go forward with something that is positive, that might be
2 achieved. If we have to push this Bureau elephant up the
3 hill in a direction that it does not want to go, we are
4 going to have a lot of difficulty. Our parties have not
5 been successful in pushing the elephant. We continue to
6 lien on it and we are going to continue to do that, but I
7 cannot claim any success in pushing the elephant.
8 Now, when we have a short supply of water, does it
9 make sense, and this goes to the issues in this particular
10 phase with regard to the impacts on fish and wildlife. When
11 we have -- when the petition changes unreasonably affect
12 fish, wildlife and other in-stream beneficial uses of the
13 water, our vision is that we have a water short system. And
14 we have a choice of committing the water, the good quality
15 water from the tributaries, to a spring pulse flow or trying
16 to use, perhaps, somewhat poor quality water from farther up
17 in the system, water like from Exchange Contractors, to make
18 the pulse during the spring when water quality is not an
19 issue, thereby leaving a greater supply of water to take
20 care of other concerns for fish and wildlife and other uses,
21 but let's focus on fish and wildlife during the summer
22 months.
23 It appears to us that the focus has been on fall-run
24 salmon, and that species like steelhead that require
25 summertime water conditions have been ignored. So we see a
CAPITOL REPORTERS (916) 923-5447 14424
1 commitment of the water for spring pulse, that means there
2 won't be enough water in the dry period if we have dry years
3 following to take care of fishing species, in this
4 particular case with steelhead. We have a listed species
5 versus a nonlisted species, the fall-run chinook salmon.
6 So, those are our concerns. We don't know who looks
7 after the public trust with regard to the expenditure of
8 public funds in this case. I have loosely answered
9 questions to the effect that I don't care about the
10 expenditure of money, and perhaps I was too quick in
11 answering in that regard. I do care that somebody cares
12 about the expenditure of public funds. Are we buying real
13 water? If we are buying flood, bypass releases that would
14 come down in the river anyway, I just can't get that out of
15 my mind. I think your body, being a state agency with
16 duties with regard to the public trust, may have a
17 responsibility there. And I would ask that if you have to
18 hold your nose and look the other way to deal with this
19 thing, you shouldn't approve it. So it has got to pass the
20 smell test. If it doesn't pass it for me --
21 MR. ROBBINS: Mr. Chairman, we have been quite patient
22 with this. I would suggest that Mr. Nomellini is making a
23 closing argument rather than an opening argument here, and I
24 would suggest that you bring this to a close.
25 C.O. STUBCHAER: It does sound like a closing
CAPITOL REPORTERS (916) 923-5447 14425
1 argument.
2 MR. NOMELLINI: In summary, I think I've covered all of
3 the areas of our concerns. I have called Mr. McEwan as an
4 adverse witness, and I am ready to proceed.
5 C.O. STUBCHAER: Mr. Brown has a question for you.
6 C.O. BROWN: Mr. Nomellini, would you permit me a
7 question on your opening statement?
8 MR. NOMELLINI: I would.
9 C.O. BROWN: We have discussed real water here a number
10 of times. And I think that in our discussion that I believe
11 I have heard you say and others that if the San Joaquin
12 River Agreement was presenting real water in their proposals
13 that you could support -- let me finish.
14 I don't want to read anything into that, but I do sense
15 that you certainly would support it more if you could be
16 convinced that it was water that was not harming your
17 clients downstream, from your opening statement. The
18 question is this: It appears that we have a group of people
19 ready to move with a proposal to help us meet the
20 requirements in the Delta. And if you and us and others, as
21 appropriate, could be convinced that they're proposing real
22 water and not flood flows that you mentioned that would be
23 received anyway, if we could be convinced as appropriate,
24 that they're supplying water that does not harm your clients
25 or other beneficial users downstream, would you rather,
CAPITOL REPORTERS (916) 923-5447 14426
1 then, continue on that path, or would you rather push the
2 elephants uphill?
3 MR. NOMELLINI: Okay. First of all, in terms of a
4 water impact on my clients, I would agree that if it was
5 water, extra water, that was in storage that then came down
6 during this period, that that would not cause an adverse
7 impact, in fact, there may be some benefit to it, if, in
8 fact, the water was truly conserved by some extra effort and
9 there was some way to mitigate for any return flow or
10 accretion reduction, again, another case where we have no
11 objection to it.
12 Now early on in these hearings I expressed to you that
13 our view of the hearing approach was not to have piecemeal
14 water rights settlements, but rather to address the
15 contribution of water from others as water transfers. And
16 we suggested that the Bureau and Department belly up to the
17 bar and say, "It's our responsibilities to take care of this
18 Water Quality Control Plan for umpty-ump number of years
19 while we do these experiments, and we are doing so with the
20 understanding that we can get some extra water during this
21 period of time through water purchases and water
22 transfers." And that is what we suggested.
23 The structure of the San Joaquin River Agreement, aside
24 from the real water impact, has a problem for us
25 conceptually. The idea of piecemeal water rights
CAPITOL REPORTERS (916) 923-5447 14427
1 settlements in this proceeding, we will not go along with.
2 The idea of the Bureau backstopping in some fashion itself
3 without telling us where the water comes from, that concept
4 is not good for us.
5 The closest we've come to the San Joaquin River
6 Agreement was not opposing it. We have never gone over to
7 support it. And because of these concepts that are embedded
8 in it, we will not get in a position of support. So, I hope
9 that explains it. But the water transfer aspect in terms of
10 impact on us and impact all the way around could be quite
11 acceptable if the source of water was the right source of
12 water.
13 C.O. BROWN: I also understood, or thought I did, from
14 the testimony that was given the last time we met with the
15 Exchange Contractors and their conservation plans that they
16 had preventing deep percolation into an unusable groundwater
17 basin, that would meet with your concurrence that water that
18 could be contributed and was a real effort to providing
19 folks real water.
20 MR. NOMELLINI: Based on what we've heard to date, I
21 would agree. It sounded to me like that was an additional
22 increment. Nobody wanted to use the term "extra," but an
23 additional increment of yield generated by these groundwater
24 storage activities, kind of like generating additional water
25 to the system. It sounded to me like that was what it was.
CAPITOL REPORTERS (916) 923-5447 14428
1 C.O. BROWN: Improved irrigation efficiency of
2 irrigating the same lands that appeared to have the support
3 of the people here present. So, possibly, by the time the
4 other contractors are through they may have some similar
5 proposals. That is all.
6 Thank you.
7 MR. NOMELLINI: Mr. McEwan, what is your --
8 C.O. STUBCHAER: Mr. O'Laughlin.
9 MR. NOMELLINI: Sorry.
10 MR. O'LAUGHLIN: Now that Mr. Nomellini is done with
11 his opening statement, we have two objections to make. The
12 first one has been one that has been started since last
13 July. That is that if we are going to -- if there is going
14 to be an examination of Mr. McEwan, that it stick within the
15 hearing notice provided by the Board and that it does not go
16 into in-stream fishery needs upstream of the Bay-Delta and
17 what those requirements are. That was specifically excluded
18 under the notice.
19 The second one is we have a motion that we filed with
20 the Board that Central Delta Agency lacks standing to bring
21 arguments with regards to public trust. There is an agency
22 of limited jurisdiction and ability. We have also brought
23 that motion. So we would object to Central Delta Water
24 Agency putting on any testimony in regard to public trust
25 resources since that is not within their capability.
CAPITOL REPORTERS (916) 923-5447 14429
1 C.O. STUBCHAER: Mr. Nomellini.
2 MR. NOMELLINI: We didn't see in the Notice of Hearing
3 any prerequisite qualification of a party to participate.
4 If there is such a prerequisite, we were unaware of it. And
5 therefore, I don't know of one. The questions for the Phase
6 II-B hearing issues that we would like to address with this
7 witness are Number 2, "Would the petition changes
8 unreasonably affect fish, wildlife or other in-stream
9 beneficial uses of water?" And we think that requires that
10 we delve into the upstream areas below the dams as to the
11 impact, and possibly above but I wasn't intending to go
12 there.
13 Then, "Are the purposes of the petition changes to
14 preserve or enhance wetlands habitat, fish and wildlife
15 resources or recreation in or on the water?" And it is
16 those two very broad areas that we would expect to delve
17 into briefly with this witness. And I think Mr.
18 O'Laughlin's limitation is inappropriate given the hearing
19 notice. It is inappropriate both as to standing and as to
20 the scope of what this particular Phase II-B is.
21 C.O. STUBCHAER: Well, excuse me, Mr. Campbell.
22 MR. CAMPBELL: The Department of Fish and Game would
23 like to join in the first objection made by Mr. O'Laughlin.
24 And in support of that objection I would like to point out
25 the exact language from the May 6th, the Revised Notice of
CAPITOL REPORTERS (916) 923-5447 14430
1 Public Hearing, which states in part:
2 With respect to meeting the objectives the
3 proceeding is intended to establish water
4 right implementation requirements that would
5 meet the flow-dependent objectives within the
6 Bay-Delta, not to establish specific instream
7 flow requirements to protect fish and
8 wildlife upstream of the Delta. (Reading.)
9 Granted, as Mr. Nomellini points out, one of the key
10 issues in Phase II-B seems to end run that initial
11 requirement in the Board's hearing notice. However, in the
12 Phase II-B hearing notice it further states that:
13 The issues listed herein -- (Reading.)
14 This is on Page 3, Footnote 5.
15 The issues listed herein are intended to
16 clarify the scope of Phase II-B and do not
17 supersede the key issues in the Revised
18 Notice of Public Hearing. (Reading.)
19 So, I think it is quite clear from that that the May
20 6th hearing notice takes precedence for the conduct of the
21 Bay-Delta water rights proceeding. From the Department of
22 Fish and Game's perspective the Board's hearing notice
23 raises some due process issues, that if you expressly and
24 specifically exclude an area of inquiry from a hearing
25 pursuant to your hearing notice then the Department is
CAPITOL REPORTERS (916) 923-5447 14431
1 entitled to rely upon that exclusion. If you do not adhere
2 to that exclusion, then it is the Department's position its
3 due process rights as afforded by the hearing notice would
4 be violated.
5 This issue was addressed in the Department's response
6 to one of Mr. Nomellini's four motions. At that time, the
7 Department pointed out there is actually a case on point for
8 this type of issue. Button v. Board of Administration. I
9 do not have the exact case cite with me. I would request
10 that if you're continuing to be interested in this issue to
11 look at the Department of Fish and Game's written response
12 to Mr. Nomellini's motion on this exact issue.
13 And the basis of that case was that the administrative
14 tribunal had, as you have here, excluded an issue from
15 consideration at the hearing. Despite that exclusion, the
16 presiding officer went ahead and decided that issue. One of
17 the parties complained on the basis of due process and
18 prevailed in court. That's the basis for the Department of
19 Fish and Game's objection here.
20 That is not to say that the existing fact regarding
21 what is happening upstream in the in-stream/upstream
22 tributaries cannot and should not be discussed in this
23 proceeding as part of the baseline. We have not sought to
24 preclude those discussions at all. But what we are
25 concerned about is the unfairness of the creation of a
CAPITOL REPORTERS (916) 923-5447 14432
1 lopsided record where the Department of Fish and Game has
2 been told not to come before you and present evidence to
3 determine what in-stream flows are required upstream, yet
4 other parties are allowed to chip away at that through
5 backdoor approaches and innuendo and snip-its. That is not
6 the way to create a proper record for those very important
7 determinations.
8 C.O. STUBCHAER: Mr. Nomellini, could you outline for
9 the Board the more precise areas of inquiry?
10 MR. NOMELLINI: Yes, I can and I would like to address
11 some of the points raised by Mr. Campbell as well.
12 What I intended to do with this witness was delve into
13 the impacts of the petition changes on fish, wildlife or
14 other in-stream beneficial uses of water. I was not
15 intending to ask this Board to set some type of flow
16 standard on the river. I understand that is not the
17 objective of this part of the hearing.
18 My previous motion, I might add, was not on this
19 point. My previous motion dealt with a number of subjects.
20 One was to commence the triennial review to revisit the 1995
21 Water Quality Control Plan, including in that revisit the
22 propriety of the Vernalis flows. That is not a similar
23 subject here, at all.
24 The second thing I asked was that the Board set
25 in-stream flow standards for the various tributaries.
CAPITOL REPORTERS (916) 923-5447 14433
1 Again, unrelated to this, but related to my presentation to
2 you of how we might approach implementing the 1995 Water
3 Quality Control Plan. And what we were suggesting to you
4 people was that if we establish the in-stream flow
5 contributions, then the allocations to be remaining the job
6 of that would be very different.
7 So those motions were not in any way directed at this
8 particular hearing topic. So I don't think those are the
9 same old thing.
10 As far as snipping and sniping and those things, I do a
11 little bit of that from time to time. Rebuttal is an
12 opportunity for Fish and Game to address some of the
13 snipping and sniping that may occur in the process of
14 presentation of our case or cross-examination of other
15 witnesses.
16 And I just started to ask this witness a question. I
17 don't know if I'd gotten near a question related to anything
18 of the subjects that they are concerned about.
19 C.O. STUBCHAER: In response to my question about the
20 scope of your examination, you have basically read the part
21 of the hearing notice. I would like to know how you intend
22 to limit it to remain within the scope of Hearing 2 and 3.
23 This is not cross-examination.
24 MR. NOMELLINI: It is cross-examination because I have
25 an adverse witness.
CAPITOL REPORTERS (916) 923-5447 14434
1 C.O. STUBCHAER: As far as the scope is concerned, it
2 is not like our regular cross-examination.
3 MR. NOMELLINI: Well, I can give you all the questions
4 in advance that I was going to ask, but I would like to
5 understand, again on the record, basically what steelhead
6 are, what their requirements are for steelhead, how the
7 changes in flow on the various tributaries that would result
8 from the San Joaquin River Agreement could impact the
9 steelhead and --
10 C.O. STUBCHAER: In each tributary?
11 MR. NOMELLINI: In each of the subject tributaries, the
12 Stanislaus and Tuolumne and the Merced, that would be
13 affected by the water deliveries by the various parties.
14 We have evidence in the record showing changes in the
15 flow, depending on which models you want to look at, in the
16 various river systems resulting from the provision of water
17 by the San Joaquin River Agreement. And the easiest one
18 that jumps out, in my mind, was a reduction in flow in the
19 Merced that was made up with a contribution of water from
20 the Stanislaus. So we have that in the record.
21 We also have, I think, an admission or explanation, I
22 should say, by Mr. Howard that the Draft EIR did not attempt
23 to address steelhead except to the extent that the 1987 Fish
24 and Game Agreement may have addressed it. I think there are
25 legitimate issues here that don't require that the Board get
CAPITOL REPORTERS (916) 923-5447 14435
1 into the question of what should the flow be in each of the
2 tributaries necessary to protect all fish species, but very
3 relevant to whether or not these particular transfers could
4 have an impact on the fish that would be adverse.
5 C.O. STUBCHAER: Okay. We are going to go off the
6 record for a moment.
7 (Discussion held off the record.)
8 C.O. STUBCHAER: Back on the record.
9 The objections are overruled.
10 However, Mr. Nomellini, we are going to ask you to stay
11 strictly within the scope of the hearing notice for this
12 phase.
13 Mr. O'Laughlin.
14 MR. O'LAUGHLIN: Just to make clear, then, the
15 objection on the motion for standing was overruled?
16 C.O. STUBCHAER: Yes.
17 MR. O'LAUGHLIN: You said both, I want to make it clear.
18 C.O. STUBCHAER: Both objections.
19 MR. O'LAUGHLIN: Thank you.
20 C.O. STUBCHAER: Mr. Nomellini.
21 MR. NOMELLINI: I expected you to note I was standing
22 all the time they were talking.
23 All right. Thank you very much.
24 I will attempt to stay in the scope, and I am confident
25 if I get anywhere near the edge people will help realign my
CAPITOL REPORTERS (916) 923-5447 14436
1 question accordingly.
2 C.O. STUBCHAER: As I said the other day, I am sure the
3 Board will have lots of help, and we will look forward to
4 it.
5 I wanted to admonish everyone to turn off the cell
6 phone ringers, please. Going to start handing out
7 demerits. Not naming any names.
8 MR. NOMELLINI: That wasn't me, was it?
9 C.O. STUBCHAER: No.
10 MR. NOMELLINI: I can't hear mine.
11 Mr. McEwan, I think where I was, I was asking you what
12 your present position with the Department of Fish and Game
13 is.
14 MR. MCEWAN: Senior biologist with the Department of
15 Fish and Game, Restoration Branch.
16 C.O. STUBCHAER: Would you please have him state his
17 name?
18 MR. NOMELLINI: I did not. Thank you for that. He was
19 sworn.
20 C.O. STUBCHAER: If he doesn't state his name, he will
21 be known as Mr. Anonymous.
22 MR. NOMELLINI: Mr. Anonymous, could you tell us what
23 your name is?
24 MR. MCEWAN: My name is Dennis McEwan, M-c-E-w-a-n.
25 MR. NOMELLINI: Thank you very much. I apologize for
CAPITOL REPORTERS (916) 923-5447 14437
1 that.
2 Were you one of the authors of the Steelhead
3 Restoration and Management Plan for California that is San
4 Joaquin River Group Authority Exhibit 43? And I will just
5 show you a copy of it.
6 MR. MCEWAN: Yes, I am.
7 MR. NOMELLINI: I might note for the record that is
8 also a staff exhibit already admitted in the record. This
9 San Joaquin River Group Authority exhibit I believe was
10 already admitted in the record as well. I do not have the
11 staff exhibit number to add.
12 What I would like to do for the purpose of some order
13 to my questioning, proceed briefly through the study or the
14 plan, excuse me, and ask a couple of questions.
15 The Page 3 of the plan stated, up at the top, that:
16 The San Joaquin River below Friant is one
17 example of a river that has suffered severe
18 environmental problems because of
19 insufficient releases from reservoirs.
20 (Reading.)
21 Is that correct, Mr. McEwan?
22 MR. MCEWAN: Could you repeat that question?
23 MR. NOMELLINI: Is the San Joaquin River below Friant
24 an example of one of the rivers that suffered severe
25 environmental problems because of insufficient releases from
CAPITOL REPORTERS (916) 923-5447 14438
1 reservoirs?
2 MR. BIRMINGHAM: I am going to object to that question
3 on the grounds that in its present form it is ambiguous and
4 potentially beyond the scope of the hearing notice. Mr.
5 Nomellini is talking about the segment of the San Joaquin
6 River between Friant Dam at the Mendota Pool. That question
7 is beyond the scope of the hearing notice.
8 If he is talking about the San Joaquin River below the
9 confluence of the Merced, then I think that the question
10 would be within the scope of the hearing notice.
11 C.O. STUBCHAER: Mr. O'Laughlin.
12 MR. O'LAUGHLIN: The Bureau's permit, as far as I know,
13 in Friant Dam are not an issue in change or 1707 and 1735.
14 What goes on at Friant or what went on the historically at
15 Friant has nothing to do with how the change petitions are
16 in front of the Board or any actions from the change
17 petitions, what affects they will or will not have on
18 operations at Friant. Friant is a non sequitur in this
19 hearing.
20 MR. NOMELLINI: The relevance is that I was asking
21 about the San Joaquin River in its entirety, which extends
22 down below the Merced to Vernalis. There is a segment in
23 here that is particularly affected by how you allocate water
24 from the tributary groups; that is the segment between the
25 Exchange Contractors' release point and Vernalis. And there
CAPITOL REPORTERS (916) 923-5447 14439
1 are variations in there. I was setting a background
2 statement for that series of questions that is going to
3 follow later.
4 C.O. STUBCHAER: The objection to the question as
5 stated is sustained. If you want to narrow the reaches of
6 the San Joaquin River to the areas covered by the proposed
7 change petitions, you may.
8 MR. NOMELLINI: Okay.
9 With regard to the stretch of the San Joaquin River
10 between the confluence with the Merced and Vernalis, has
11 that stretch of river been adversely affected because of
12 insufficient releases from reservoirs? And I am talking
13 about adversity in environmental terms.
14 MR. O'LAUGHLIN: Objection. Vague and ambiguous as to
15 adverse effects, probably, also outside the scope of the
16 subpoena that was requested for Mr. McEwan. I don't -- Mr.
17 Nomellini said environmental effects. That covers a whole
18 wide range of issues that wasn't set forth in the Notice of
19 Intent to Appear. And not only that, it also goes to dams,
20 which is vague and ambiguous. It is not referring to what
21 dams he is talking about that causes impacts. That gets
22 back to the Friant questions again.
23 C.O. STUBCHAER: Mr. Nomellini.
24 MR. NOMELLINI: First of all, the subpoena was not
25 limited in any way as to scope. I subpoenaed the witness to
CAPITOL REPORTERS (916) 923-5447 14440
1 this phase without any definition of scope of my inquiry.
2 Again, I wasn't required to provide a declaration to justify
3 the production of documents, which would have such a
4 delineation in it, and I was not required to provide a
5 declaration as to good cause because this witness didn't
6 have to travel over 150 miles. So there was no such
7 limitation in the subpoena.
8 With regard to the environmental -- the use of the word
9 "environmental problems" or "environmental," Item Number 2
10 in the notice says, "Would the petition changes unreasonably
11 affect fish, wildlife or other in-stream beneficial uses of
12 water?" And in order to get at that, I wanted to set some
13 background with regard to the condition of the river, and as
14 the Board admonished focusing in on the segments that could
15 reasonably be affected by the San Joaquin River Agreement.
16 C.O. STUBCHAER: Please rephrase the question and
17 narrow it to the scope of the hearing notice and make it not
18 quite so broad.
19 MR. NOMELLINI: Mr. McEwan, are there environmental
20 problems in the stretch of the San Joaquin River between
21 Vernalis and the Merced?
22 MR. GODWIN: I am going to object, Mr. Stubchaer.
23 Again, this is outside the scope of the hearing issue.
24 Issue Number 2 is addressing whether or not there would be
25 any impact to fish and wildlife from the proposed petition.
CAPITOL REPORTERS (916) 923-5447 14441
1 What has happened in the past is all what has happened in
2 the past; it is not relevant to this hearing. I don't think
3 we need to cover this ground.
4 C.O. STUBCHAER: Mr. Nomellini.
5 MR. NOMELLINI: I just asked if there are problems. I
6 am not really talking about the past. I am talking about
7 now. But, again, in order to get at the question of,
8 "whether or not the petition changes unreasonably affect
9 fish, wildlife or other in-stream beneficial uses of water,"
10 it had occurred to me that it would be important to know
11 what the current status is. I use the word "problems." If
12 that is ambiguous to the witness, the witness can tell me or
13 whatever. I think it is important to get at what the
14 concerns are and then go beyond that and see how these
15 proposed transfers might impact that.
16 C.O. STUBCHAER: You used the phrase "environmental
17 effects." That is part of the problem. I think that is
18 overbroad.
19 MR. NOMELLINI: Let me --
20 MR. BIRMINGHAM: I wonder if Mr. Nomellini is trying to
21 get at the existing condition of steelhead in the San
22 Joaquin River between Vernalis and the confluence of the
23 Merced, why he couldn't simply ask the witness that
24 question.
25 C.O. STUBCHAER: That gets to the point of narrowing
CAPITOL REPORTERS (916) 923-5447 14442
1 the scope.
2 MR. NOMELLINI: I could ask him that question, but that
3 is more narrow than I wanted to start out with this witness
4 is all. And in terms of environmental concerns, perhaps I'm
5 misreading. This notice talks about unreasonably affect
6 fish, wildlife or other in-stream beneficial uses of water.
7 So, I assume because "environmental" was the word used in
8 that study, that is already in evidence related to the San
9 Joaquin River Agreement, that perhaps that was the right
10 term to start with. But if the Chair is ruling that that is
11 the wrong term, then I'll stay right with the phraseology in
12 the notice.
13 C.O. STUBCHAER: You could define what you mean by
14 environmental to what is in the notice and then proceed.
15 MR. NOMELLINI: Okay, that is fine.
16 Mr. McEwan, we're going to start again. I know you
17 don't remember the question. I don't even remember the
18 question.
19 With regard to the portion of the San Joaquin River
20 between Vernalis and the Merced, are there currently any
21 problems in that stretch of the river for fish, wildlife or
22 other in-stream beneficial uses?
23 MR. MCEWAN: Yes.
24 MR. NOMELLINI: What are those problems?
25 MR. MCEWAN: Well, I can probably only speak to
CAPITOL REPORTERS (916) 923-5447 14443
1 steelhead since I am the steelhead specialist for the
2 Department, but there are, to my knowledge, water quality
3 problems, problems with unscreened diversions or flowing
4 screen diversions, changes in the environment due to some of
5 these factors such as increase in predation from other
6 fish.
7 MR. NOMELLINI: Is there any problem with regard to
8 temperature?
9 MR. MCEWAN: That I would have to say I don't know. I
10 think in clarification of that statement that you referred
11 to in the steelhead plan, I was referring to the reach below
12 Friant Dam, between Friant Dam and Mendota Pool.
13 MR. BIRMINGHAM: Objection. Move to strike. It is not
14 responsive to any question. The question that was asked was
15 answered, and Mr. McEwan was volunteering a statement that
16 was related to a question which the Chair has ruled was
17 irrelevant. And I would move to strike.
18 C.O. STUBCHAER: I will get to you, Mr. Jackson.
19 In your motion to strike you talk about just the last
20 part?
21 MR. BIRMINGHAM: I am talking about just the last
22 portion of the answer that was nonresponsive to the
23 question.
24 C.O. STUBCHAER: I think the last question qualified
25 the first part of the answer and is important for the
CAPITOL REPORTERS (916) 923-5447 14444
1 record.
2 Mr. Jackson.
3 MR. JACKSON: I am still -- would like some
4 direction. I don't understand how the San Joaquin River
5 disappeared from this particular hearing. Basically, the
6 affect of lack of flow from the main stem of the San Joaquin
7 could be the reason, if we could ask these questions, for
8 the steelhead problems below the Merced. And I don't
9 understand how we can simply imagine that the San Joaquin
10 River does not start south of the Merced.
11 C.O. STUBCHAER: Mr. Jackson, this phase of the hearing
12 deals with the change petitions.
13 MR. JACKSON: Right. Whether or not the change
14 petition affects the steelhead depends upon the condition of
15 the steelhead in reality.
16 C.O. STUBCHAER: If the change petition doesn't deal
17 with the upper reach of the river, I don't see where it is
18 applicable to this phase.
19 MR. JACKSON: To Phase II-B only?
20 C.O. STUBCHAER: Right.
21 Mr. O'Laughlin.
22 MR. O'LAUGHLIN: Nothing.
23 C.O. STUBCHAER: People are getting hungry, Mr.
24 Nomellini. You wore us out.
25 MR. NOMELLINI: My stomach, also.
CAPITOL REPORTERS (916) 923-5447 14445
1 C.O. STUBCHAER: Is this a good time?
2 MR. NOMELLINI: Are you going to rule on the objection?
3 C.O. STUBCHAER: I am going to overrule that objection
4 but it does call -- we are not to lunch yet. It does call
5 into the question the answer, because the answer went beyond
6 the scope of your question and perhaps that needs to be
7 explored a little bit when we come back.
8 MR. NOMELLINI: I am not sure I understand. I didn't
9 cause the problem, and I have no objection to the witness
10 explaining his position. So I don't see any harm.
11 C.O. STUBCHAER: I don't either. Maybe that will be
12 covered in cross-examination.
13 We will adjourn until 1:00 p.m.
14 (Luncheon break taken.)
15 ---oOo---
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CAPITOL REPORTERS (916) 923-5447 14446
1 AFTERNOON SESSION
2 ---oOo---
3 C.O. STUBCHAER: Back on the record.
4 Mr. Nomellini.
5 MR. NOMELLINI: Mr. McEwan, I believe I had asked you
6 whether or not there were any problems for fish, wildlife or
7 other in-stream beneficial uses in the segment of the San
8 Joaquin River between Vernalis and the Merced, and you had
9 indicated water quality, impact of diversions and
10 predation.
11 Are there other problems that you believe exist in that
12 stretch of the river with regard to the fish, wildlife or
13 other in-stream beneficial uses?
14 MR. MCEWAN: I would have to say, yes. I would think
15 water temperature would be one that falls under water
16 quality.
17 MR. NOMELLINI: I would like to focus in on the water
18 quality.
19 What are the specific types of water quality problems
20 in that stretch of the river for fish, wildlife or other
21 in-stream beneficial uses?
22 MR. MCEWAN: I don't know that I can answer that
23 specifically. I am not that familiar.
24 MR. NOMELLINI: You indicated temperature as a part of
25 water quality. What is the nature of the temperature
CAPITOL REPORTERS (916) 923-5447 14447
1 problem in that stretch of the river?
2 MR. ROBBINS: Objection. Asked an answered. I believe
3 the witness has already testified that he did not know about
4 temperature issues, and his document that was submitted
5 indicated that temperature was in a different reach of the
6 river that he had testified about, and he was not familiar
7 with the temperature downstream from the Merced to the
8 Delta.
9 C.O. STUBCHAER: Mr. Nomellini.
10 MR. NOMELLINI: I didn't understand that to be his
11 testimony. He had added temperature and said that that was
12 a part of the water quality when I asked were there any
13 others other than what he listed, and so I didn't understand
14 that ---
15 C.O. STUBCHAER: That was after lunch. Before lunch I
16 thought a different comment on the temperature.
17 Do you remember that, Mr. McEwan?
18 MR. MCEWAN: I don't recall commenting on temperature
19 before lunch.
20 C.O. STUBCHAER: Objection overruled.
21 MR. NOMELLINI: What is the -- can you elaborate on
22 what the temperature problem is in the stretch of the San
23 Joaquin River between Vernalis and Merced?
24 MR. CAMPBELL: Objection. Asked and answered. The
25 witness in response to that question said he didn't have
CAPITOL REPORTERS (916) 923-5447 14448
1 specific knowledge.
2 C.O. STUBCHAER: Sustained.
3 MR. NOMELLINI: Do you know whether or not the
4 temperature problem in that stretch of the river is related
5 to a certain time of the year?
6 MR. MCEWAN: You're speaking about the main stem of the
7 San Joaquin River?
8 MR. NOMELLINI: Main stem of the San Joaquin between
9 Vernalis and Merced.
10 MR. MCEWAN: No, I don't.
11 MR. NOMELLINI: Is there any problem with selenium
12 concentrations in the water in the stretch of the river
13 between Vernalis and the Merced with regard to fish,
14 wildlife or other in-stream beneficial uses?
15 MR. MCEWAN: I don't know.
16 MR. NOMELLINI: With regard to the stretch of the San
17 Joaquin River from the Merced to Salt Slough, which is one
18 of the release points for water being provided under the San
19 Joaquin River Agreement by the San Joaquin River Exchange
20 Contractors, are there any problems with regard to fish,
21 wildlife or other in-stream beneficial uses?
22 MR. BIRMINGHAM: Object to the question on the ground
23 it is compound. Mr. Nomellini has asked a series of
24 questions in that question, including whether or not Salt
25 Slough is a release point for the San Joaquin River Exchange
CAPITOL REPORTERS (916) 923-5447 14449
1 Contractors under the San Joaquin River Agreement. If it is
2 not a question, he is testifying.
3 C.O. STUBCHAER: I didn't take that as a question, that
4 part of it, but laying a foundation for the question.
5 MR. BIRMINGHAM: If it is not, if Mr. Nomellini wants
6 to ask it in the form of a question, I think he should do
7 that as opposed to providing testimony.
8 C.O. STUBCHAER: Mr. Jackson.
9 MR. JACKSON: Mr. Stubchaer, it has already been
10 established that Salt Slough is one of the ones. That is
11 previous testimony.
12 C.O. STUBCHAER: Sorry?
13 MR. JACKSON: It has already been established that Salt
14 Slough is one of the points of release for the Exchange
15 Contractors.
16 MR. BIRMINGHAM: It may have been established by other
17 witnesses, I don't know whether or not that is accurate.
18 But if Mr. Nomellini wants to establish that fact through
19 this witness, then I think he needs to ask this witness that
20 question. If it is already in the record, there is no point
21 in asking the question.
22 C.O. STUBCHAER: Mr. Nomellini.
23 MR. NOMELLINI: I have this witness here as an adverse
24 witness. And as I understand it, I am allowed to proceed
25 with leading questions with regard to the questioning of
CAPITOL REPORTERS (916) 923-5447 14450
1 this particular witness.
2 I can, if the Board wants, take this in much smaller,
3 incremental smaller bites. I don't think I am required to
4 do so because this is an adverse witness, but I can. I
5 mean, Mr. Birmingham is right. I could ask these questions
6 in segmented ways. I was trying to kind of expedite my
7 questioning of this witness and at the same time I thought I
8 was within my right to lead the witness somewhat by kind of
9 setting the background in the question. So, I can do it any
10 way you want to do it.
11 C.O. STUBCHAER: Mr. Birmingham.
12 MR. NOMELLINI: Hard way or easy way.
13 MR. BIRMINGHAM: I have no objection to Mr. Nomellini
14 leading this witness. But on the other hand, when three or
15 four questions are posed in the form of one question that is
16 asked in a leading manner and the answer is yes, we don't
17 know what question is being answered.
18 Therefore, for purposes of maintaining a clear record,
19 I think it would be appropriate for Mr. Nomellini to ask his
20 leading questions one at a time.
21 C.O. STUBCHAER: I will say, I understood the question,
22 but, Mr. Nomellini, if you could break it down to half-size
23 bites, let's do that.
24 MR. NOMELLINI: Okay.
25 Let's start with a hypothetical. Let's assume that one
CAPITOL REPORTERS (916) 923-5447 14451
1 of the release points for water provided by the San Joaquin
2 River Exchange Contractors under the San Joaquin River
3 Agreement is Salt Slough.
4 It is your understanding, is it not, Mr. McEwan, that
5 Salt Slough enters the San Joaquin River upstream of the
6 Merced?
7 MR. MCEWAN: No, it is not my understanding. I am not
8 that familiar with the main stem of the San Joaquin.
9 MR. NOMELLINI: Let's restructure another
10 hypothetical. Let's assume for the sake of these questions
11 that Salt Slough does, in fact, enter the San Joaquin River
12 upstream of the Merced and that Salt Slough is one of the
13 release points for water provided by the San Joaquin River
14 Exchange Contractors under the San Joaquin River Agreement.
15 With that assumption in mind, is there a water quality
16 problem related to fish, wildlife or other instream
17 beneficial uses between the Merced and the intersection of
18 the San Joaquin River with Salt Slough?
19 MR. BIRMINGHAM: Objection. Lacks foundation. This
20 witness has testified that he is not familiar with this area
21 of the San Joaquin River. Without personal knowledge, the
22 question lacks foundation.
23 C.O. STUBCHAER: I thought it was a hypothetical.
24 MR. NOMELLINI: I don't --
25 C.O. BROWN: Mr. Chairman.
CAPITOL REPORTERS (916) 923-5447 14452
1 C.O. STUBCHAER: Mr. Brown.
2 C.O. BROWN: Mr. Nomellini has been interrupted
3 numerous times in trying to examine this witness. I suspect
4 with the attorneys we have in this room that those
5 interruptions are somewhat appropriate. But it is not
6 helping me and I don't think the other Board Members
7 understand what we need to know here.
8 MR. BIRMINGHAM: I certainly agree with Mr. Brown's
9 observation. Things would be much smoother if attorneys
10 were not continually interrupting Mr. Nomellini's questions
11 with objections. It certainly is not my purpose in
12 interrupting to be -- to obstruct the Board's process or
13 prevent Mr. Nomellini in obtaining the information from this
14 or any other witness. But this witness has testified that
15 he is not familiar with this portion of the San Joaquin
16 River. And if he lacks that information, I am not sure what
17 probative value his testimony would have for the Board on
18 what are very important issues. Perhaps the Department of
19 Fish and Game has some other witness that they could
20 identify for Mr. Nomellini that would be the appropriate
21 person to ask these questions.
22 I am not disputing they are important questions, but
23 without personal knowledge or some report that contains the
24 information, I am not sure this is the appropriate witness.
25 C.O. STUBCHAER: Mr. Godwin?
CAPITOL REPORTERS (916) 923-5447 14453
1 Mr. McEwan, did you understand the question?
2 MR. MCEWAN: I think I did. I was going to ask him to
3 restate it, however.
4 MR. NOMELLINI: I am going to try a little different
5 approach.
6 Mr. McEwan, your expertise is steelhead; is that
7 correct?
8 MR. MCEWAN: Yes.
9 MR. NOMELLINI: Do you know of any problems for
10 steelhead that relate to the San Joaquin River upstream of
11 the Merced?
12 MR. MCEWAN: Yes. Yes, I do.
13 MR. NOMELLINI: Could you tell me what problems come to
14 mind?
15 MR. MCEWAN: Blockage from historical habitat.
16 MR. NOMELLINI: What would that be, physically or
17 perceptionally?
18 MR. MCEWAN: In the form of the dam or other barriers
19 that do not allow them to get to the habitat.
20 MR. NOMELLINI: So, there are barriers in the San
21 Joaquin River upstream of the Merced that keep steelhead
22 from reaching their historical habitat; is that what your
23 testimony is?
24 MR. MCEWAN: Yes, yes.
25 MR. NOMELLINI: Do you know what those barriers are?
CAPITOL REPORTERS (916) 923-5447 14454
1 MR. MCEWAN: I would say Friant Dam would be one and
2 any of the dams to that system that do not have ladders.
3 MR. NOMELLINI: Do you know whether or not -- are you
4 familiar with the Sac dam?
5 MR. MCEWAN: No.
6 MR. NOMELLINI: Are you familiar with the Mendota Pool?
7 MR. MCEWAN: By name and location.
8 MR. NOMELLINI: Do you know if Mendota Pool has a fish
9 ladder?
10 MR. MCEWAN: No.
11 MR. NOMELLINI: Aside from the obstructions to the
12 passage of steelhead in the stretch of the river upstream of
13 Merced, are there any other problems that you know of that
14 impact steelhead?
15 MR. MCEWAN: Well, I would have to say lack of water,
16 lack of flows, lack of releases, potential temperature
17 effects as well.
18 MR. NOMELLINI: Now, when steelhead migrate upstream,
19 do they depend upon some type of olfactory sense?
20 MR. MCEWAN: To my knowledge, they do as part of it.
21 MR. NOMELLINI: Do you know if there is a problem with
22 steelhead strain upstream of the Merced on the San Joaquin
23 River due to the introduction of water from the west side of
24 the San Joaquin Valley?
25 MR. MCEWAN: No, I don't.
CAPITOL REPORTERS (916) 923-5447 14455
1 MR. NOMELLINI: Would it be fair to state that you
2 would not expect there to be any adverse impact to steelhead
3 by reason of releases of water from the San Joaquin Exchange
4 Contractors to the San Joaquin River via Salt Slough?
5 MR. MCEWAN: Could you repeat that, please?
6 MR. NOMELLINI: Would it be true that you would not
7 expect any adverse impacts to steelhead resulting from the
8 release of water by the San Joaquin River Exchange
9 Contractors to the San Joaquin River via Salt Slough, which
10 I will represent to you for hypothetical purposes as being
11 upstream of the confluence of the San Joaquin River and
12 Merced?
13 MR. MCEWAN: I don't know that I can answer that there
14 never would or won't be impacts. I can't right now identify
15 any, but I don't know if I would be comfortable in saying
16 there would not be impacts without more knowledge of the
17 situation and the issue.
18 MR. NOMELLINI: Now, let's take another segment of the
19 river system. Let's take a segment of the Merced River
20 downstream of McClure Reservoir.
21 Are you familiar with that stretch of the river?
22 MR. MCEWAN: Somewhat, fairly, yeah.
23 MR. NOMELLINI: Are there any problems that you can
24 identify with regard to fish, wildlife or other in-stream
25 beneficial uses in that segment of the river?
CAPITOL REPORTERS (916) 923-5447 14456
1 MR. MCEWAN: That is from McClure to?
2 MR. NOMELLINI: To the confluence of the San Joaquin.
3 MR. MCEWAN: Other than just, I think, general problems
4 associated with regulated rivers or rivers downstream of
5 dams. If there is not temperature provision in those
6 releases, or enough flow releases then, yes, there could be
7 problems. I am not familiar specifically with the specific
8 problems in the Merced.
9 MR. NOMELLINI: With regard to the Tuolumne below
10 LaGrange down to the confluence with the San Joaquin, are
11 you aware of any problems relating to fish, wildlife or
12 other in-stream beneficial uses in that stretch of the
13 river?
14 MR. MCEWAN: At the present time?
15 MR. NOMELLINI: Yes.
16 MR. MCEWAN: I would have to say not at the present
17 time. I am aware of problems in the past in that system.
18 MR. NOMELLINI: With regard to the Stanislaus
19 downstream of Goodwin Dam to the confluence with the San
20 Joaquin, are you aware of any problems affecting fish,
21 wildlife or other in-stream beneficial uses in that stretch
22 of the river?
23 MR. MCEWAN: From Goodwin Dam to the confluence?
24 MR. NOMELLINI: Yes.
25 MR. MCEWAN: At the present time I have to say, no.
CAPITOL REPORTERS (916) 923-5447 14457
1 MR. NOMELLINI: With regard to --
2 CHAIRMAN STUBCHAER: Can you hear in the back of the
3 room, by the way?
4 MR. NOMELLINI: I have some general questions as to
5 steelhead and the needs of steelhead.
6 How does a steelhead differ from a rainbow trout?
7 MR. MCEWAN: It doesn't. It is a rainbow trout.
8 MR. NOMELLINI: In your opinion is it just a rainbow
9 trout that goes to the ocean and then returns to the stream
10 system?
11 MR. MCEWAN: Yes. A steelhead as defined is the
12 anadromous form of rainbow trout. When I say rainbow trout
13 I am speaking of the biological species Oncorhynchus mykiss
14 and the anadromous form of that species is referred to as
15 steelhead.
16 MR. NOMELLINI: Do you know whether there are rainbow
17 trout in the Stanislaus River below Goodwin Dam?
18 MR. MCEWAN: Yes, there are.
19 MR. NOMELLINI: Do you know whether or not there are
20 rainbow trout in the Tuolumne River below LaGrange?
21 MR. MCEWAN: Yes, there are.
22 MR. NOMELLINI: Do you know whether or not there are
23 rainbow trout in the Merced below McClure?
24 MR. MCEWAN: Yes, there are.
25 MR. NOMELLINI: Now, I don't know how to phrase this
CAPITOL REPORTERS (916) 923-5447 14458
1 one.
2 Do you know whether or not there are rainbow trout in
3 the stretch of the San Joaquin River between the Merced and
4 the Mendota Pool?
5 MR. MCEWAN: In 1996 there was an adult steelhead
6 captured -- I believe it was 1996; it could have been 1995
7 -- upstream of the Hills Ferry salmon barrier. So just
8 immediately upstream of the San Joaquin River confluence.
9 That is the extent of my knowledge.
10 MR. NOMELLINI: So the answer is, yes, with regard to
11 one particular fish that you know of?
12 MR. MCEWAN: Yes.
13 MR. NOMELLINI: This salmon barrier at Hills Ferry,
14 could you describe what that is?
15 MR. MCEWAN: It's, to my knowledge -- and again I have
16 not very much familiarity on this. With that disclaimer I
17 could say that it is a barrier that is erected by the
18 Department of Fish and Game to guide salmon spawning, adult
19 spawn, into the Merced River and not up the San Joaquin
20 above the Merced River.
21 MR. NOMELLINI: Do you know what it is physically?
22 MR. MCEWAN: I believe it's an Alaska weir-type
23 barrier, but I am not positive.
24 MR. NOMELLINI: What is an Alaska --
25 MR. MCEWAN: An Alaska weir is a series of panels that
CAPITOL REPORTERS (916) 923-5447 14459
1 are put up on temporary poles or stakes, you might say, that
2 blocks migrating fish from moving up a river system. They
3 are used quite extensively in censusing, surveying, adult
4 anadromous fish. I am not positive that's what it is.
5 MR. NOMELLINI: So it is a fence of type that would
6 block the passage of fish. Would it block the flow of water?
7 MR. MCEWAN: No.
8 MR. NOMELLINI: In terms of the blockage provided by
9 this fence, would it block steelhead from passing upstream
10 of the fence?
11 MR. MCEWAN: That is the intent. However, many of
12 these types of weirs are not 100 percent fish-proof, no.
13 MR. NOMELLINI: With regard to the needs of rainbow
14 trout, do they -- first of all, do they reside in the water
15 body year-round?
16 MR. MCEWAN: Yes. There are some life stages of
17 rainbow trout or steelhead that, yeah, will occupy a water
18 body year-round.
19 MR. NOMELLINI: So you would agree that their needs are
20 required on a year-round basis, would you not?
21 MR. MCEWAN: Yes.
22 MR. NOMELLINI: Do you compare those needs to the needs
23 of fall-run chinook salmon?
24 MR. MCEWAN: Yeah. The brief answer to that question
25 is or this comparison is that fall-run chinook salmon, for
CAPITOL REPORTERS (916) 923-5447 14460
1 the most part, juveniles immigrate out of the system usually
2 May and June. And the adults do not return until September,
3 October, mostly October. So there is a period in the river
4 systems where there may not be any chinook salmon at all,
5 period, during the year.
6 With steelhead, the juvenile steelhead have a fresh
7 water-rearing requirement. In the Sacramento it is thought
8 to be two to three years. So juveniles will reside in fresh
9 water for two to three years. They are always present in a
10 stream system where they are staying.
11 MR. NOMELLINI: You would agree, would you not, if we
12 took care of the needs of fall-run chinook salmon we would
13 not necessarily take care of the needs of rainbow trout?
14 MR. MCEWAN: Yes. I think I would agree with that,
15 not necessarily.
16 MR. NOMELLINI: Are there some fall-run salmon
17 juveniles that holdover in the river system to migrate out
18 later in the year, like in September or October?
19 MR. MCEWAN: I believe that there are, yes, but again I
20 am not an expert on chinook salmon.
21 MR. NOMELLINI: Does the Department of Fish and Game
22 have a plan of restoration of steelhead on the San Joaquin
23 River system?
24 MR. MCEWAN: I would say only that which is contained
25 in the Statewide Steelhead Restoration Anadromous Plan.
CAPITOL REPORTERS (916) 923-5447 14461
1 MR. NOMELLINI: Are any specific measures planned by
2 the Department of Fish and Game to protect steelhead? I am
3 going to -- when I refer to steelhead, I am referring to
4 rainbow trout, as you described it, rainbow trout on the
5 Stanislaus River?
6 MR. MCEWAN: Repeat that, please.
7 MR. NOMELLINI: Are there any plans by the Department
8 of Fish and Game to protect steelhead on the Stanislaus
9 River?
10 MR. MCEWAN: I would have to say, yes, to that
11 question.
12 MR. NOMELLINI: What are those plans?
13 MR. MCEWAN: There is a wild trout fishery, designated
14 wild trout fishery, in the Upper Stanislaus below Goodwin
15 Dam that has protective angling regulations on it.
16 MR. NOMELLINI: Are there any water-related measures
17 planned by the Department of Fish and Game for the
18 protection of steelhead on the Stanislaus River?
19 MR. MCEWAN: I would -- I think I would have to stay I
20 am not aware of any.
21 MR. NOMELLINI: Going over to the Tuolumne, are there
22 any Department of Fish and Game plans for protection of
23 steelhead on the Tuolumne River?
24 MR. MCEWAN: Again, I am not aware of any.
25 MR. NOMELLINI: Going over to the Merced River, are
CAPITOL REPORTERS (916) 923-5447 14462
1 there any plans by the Department of Fish and Game for the
2 protection of steelhead on the Merced River?
3 MR. MCEWAN: I am not aware of any.
4 MR. NOMELLINI: Are there any plans by the Department
5 of Fish and Game for the protection of steelhead on any part
6 of the main stem of the San Joaquin River?
7 MR. MCEWAN: If I could ask about that question, are
8 you asking about specific plans for steelhead only or any
9 sort of measures?
10 MR. NOMELLINI: Well, I was asking more specific plans
11 related to steelhead, but I would add to that any plan
12 related to steelhead would be what I was seeking.
13 MR. MCEWAN: I think in all the cases that I just
14 answered, yeah, they're programs and projects within the
15 Department that I think would benefit steelhead, such as
16 insulation of fisheries on water diversions that don't have
17 them.
18 MR. NOMELLINI: We covered the Stanislaus, and you
19 indicated there were no water flow-related plans for the
20 Stanislaus.
21 Do you recall that in answer to my question?
22 MR. MCEWAN: Yes.
23 MR. NOMELLINI: Specifically with regard to water
24 flow-related plans, are there any plans by the Department of
25 Fish and Game for the Tuolumne?
CAPITOL REPORTERS (916) 923-5447 14463
1 MR. MCEWAN: I am not aware of any.
2 MR. NOMELLINI: For the Merced?
3 MR. MCEWAN: I am not aware of any.
4 MR. NOMELLINI: For the main stream of the San Joaquin?
5 MR. MCEWAN: I am not aware of any.
6 MR. NOMELLINI: On Page 5 of San Joaquin River Group
7 Authority 43, Exhibit 43, it says:
8 A hatchery program needs to be implemented if
9 restoration of steelhead is to be achieved
10 for the San Joaquin River system. (Reading.)
11 Could you explain what the hatchery program
12 contemplated in that statement consists of?
13 C.O. STUBCHAER: Mr. Birmingham.
14 MR. BIRMINGHAM: I've been sitting on my hands in light
15 of Mr. Brown's comments about interfering with Mr.
16 Nomellini's examination of this witness. But I am rising
17 now to object on the grounds of relevance. I don't
18 understand how any of the questions that have been asked for
19 the last five minutes or this question pertain to the change
20 petitions that are presently being considered by the Board.
21 So I would object on that ground.
22 C.O. STUBCHAER: Mr. O'Laughlin.
23 MR. O'LAUGHLIN: I agree. The million dollar question,
24 if Mr. Nomellini gets around to it, has this witness
25 identified or looked at what steelhead -- what is going on
CAPITOL REPORTERS (916) 923-5447 14464
1 with steelhead in the river now and what is it going to look
2 like after these change petitions are implemented, what, if
3 any, impacts are identified to steelhead. We have danced
4 all the way around those three questions. We haven't even
5 come close to them. Now we are talking about hatcheries on
6 the San Joaquin River which has nothing to do with the
7 change petitions.
8 C.O. STUBCHAER: Mr. Nomellini, could you please
9 explain the relevance of your question on the hatcheries to
10 the issues?
11 MR. NOMELLINI: I was trying to find out, first of all,
12 what problems, if any, could be identified in the river with
13 regard to any fish species or whatever. And I came back
14 around to steelhead and the normal flow, whatever. I forget
15 the exact detail of the answer. And then I wanted to know
16 whether Fish and Game had any particular programs for the
17 river or any plans.
18 The relevance of that is that Fish and Game is
19 supporting the San Joaquin River, the river agreement. If
20 they don't have any plans with regard to steelhead, is it an
21 oversight that they just ignore it? Has it been considered?
22 What are those factors?
23 I think it is all relevant in terms of evaluating the
24 impact and the weight of the testimony to be accorded to
25 Fish and Game.
CAPITOL REPORTERS (916) 923-5447 14465
1 And with regard to the hatchery, this report doesn't
2 mention a hatchery on the San Joaquin River. I tried to
3 cover all the segments of river. And so, again, I view my
4 questioning of this witness as being cross-examination
5 because he is an adverse witness. And so I was focusing on
6 the hatchery because he didn't mention there were any
7 measures. And I covered all the segments of the river,
8 except upstream of Mendota.
9 I was asking the question to further pursue if either
10 the witness forgot about the hatchery or maybe it is out of
11 the area we are talking about. I don't know the answer to
12 the question.
13 C.O. STUBCHAER: Objection is sustained.
14 MR. NOMELLINI: Okay. Forget about the hatchery.
15 On Page 9 of the same exhibit -- all these questions
16 are with regard to the exhibit -- there is a reference to
17 doubling the natural anadromous fish population by the year
18 2000.
19 Are you familiar with such a goal?
20 MR. MCEWAN: Yes, I am.
21 MR. NOMELLINI: Would that include steelhead?
22 MR. MCEWAN: Yes, it does.
23 MR. NOMELLINI: Do you know of any plan by the
24 Department of Fish and Game to double the steelhead
25 population by the year 2000?
CAPITOL REPORTERS (916) 923-5447 14466
1 MR. O'LAUGHLIN: I am sorry, Mr. Chairman. I realize
2 the Board wants to get on with this testimony. But what
3 does doubling salmon under SB2261 in the directive -- Fish
4 and Game isn't on trial here. A change petition is on
5 trial. What they have or haven't done to double anadromous
6 fish in the state has nothing to do with the question posed
7 in the hearing notice, which is: Is our change petition
8 going to have an adverse impact on the fishery resource. If
9 he wants to indict Fish and Game in some other hearing
10 process, let him go ahead and do it. I don't see why we
11 need it here today.
12 C.O. STUBCHAER: Mr. Nomellini.
13 MR. NOMELLINI: If, for example, Fish and Game desired
14 to double the population of naturally spawning steelhead and
15 if they had a plan and if that plan in any way involved the
16 waters within the scope of the San Joaquin River Agreement,
17 then it is relevant as to whether or not the San Joaquin
18 River Agreement has an adverse impact on fish, wildlife or
19 other beneficial, in-stream beneficial uses. So I think the
20 relevance is there. Whether you want to spend any time with
21 it, I wasn't going to spend a lot of time. I just had a
22 bunch of one-shot questions that I wanted to go through.
23 And if it is not of interest to the Board whether there are
24 such plans or that those plans may involve the same water,
25 those are the --
CAPITOL REPORTERS (916) 923-5447 14467
1 C.O. STUBCHAER: The objection is sustained.
2 MR. NOMELLINI: Do you know of any naturally spawning
3 anadromous fish populations on the Stanislaus River?
4 MR. MCEWAN: Yes.
5 MR. NOMELLINI: Do you know of any naturally spawning
6 anadromous fish populations on the Tuolumne?
7 MR. MCEWAN: It's the position of the Department of
8 Fish and Game that there are on the Merced as well.
9 MR. NOMELLINI: I didn't mean to interrupt you. Are
10 you through with your answer?
11 MR. MCEWAN: Yes.
12 MR. NOMELLINI: With regard to rainbow trout on the
13 Tuolumne, do they naturally spawn on the Tuolumne?
14 MR. MCEWAN: Yes.
15 MR. NOMELLINI: With regard to the rainbow trout on the
16 Stanislaus, do they naturally spawn on the Stanislaus?
17 MR. MCEWAN: On the Stanislaus?
18 MR. NOMELLINI: Yes.
19 MR. MCEWAN: Yes.
20 MR. NOMELLINI: With regard to rainbow trout do they
21 naturally spawn on the Merced?
22 MR. MCEWAN: I believe they do, yes.
23 MR. NOMELLINI: Have you made any analysis of the
24 impact of the proposed San Joaquin River Agreement on
25 rainbow trout on the Stanislaus, Tuolumne or Merced?
CAPITOL REPORTERS (916) 923-5447 14468
1 MR. O'LAUGHLIN: Objection. Compound. I thought we
2 were limiting our questions below the dams.
3 MR. NOMELLINI: I didn't agree to that, but below the
4 dam is fine with me.
5 C.O. STUBCHAER: Please restate the question.
6 MR. NOMELLINI: I am going to ask you a series of
7 questions. I am talking about below the last dam on the
8 river.
9 Let me wait a minute.
10 Thank you. Excuse me for that.
11 C.O. STUBCHAER: Back on the record.
12 MR. NOMELLINI: Have you performed any analysis of the
13 impact of the San Joaquin River Agreement on rainbow trout
14 in the Stanislaus River below Goodwin Dam?
15 MR. MCEWAN: No, I haven't.
16 MR. NOMELLINI: Have you made any analysis of the
17 impact of the San Joaquin River Agreement on rainbow trout
18 in the Tuolumne River below the LaGrange?
19 MR. MCEWAN: No.
20 MR. NOMELLINI: Have you made any analysis of the
21 impact of the San Joaquin River Agreement on rainbow trout
22 in the Merced River below McClure?
23 MR. MCEWAN: No.
24 MR. NOMELLINI: Do you know if anybody in the
25 Department of Fish and Game has made such analysis?
CAPITOL REPORTERS (916) 923-5447 14469
1 MR. MCEWAN: No. I am not aware of any.
2 MR. NOMELLINI: Were you consulted with regard to the
3 Department of Fish and Game's position on the San Joaquin
4 River Agreement?
5 MR. MCEWAN: No.
6 MR. NOMELLINI: Do you know whether or not temperature
7 has any impact on the survival of rainbow trout?
8 MR. MCEWAN: Generally speaking?
9 MR. NOMELLINI: Yes.
10 MR. MCEWAN: Yes, it has.
11 MR. NOMELLINI: What impact does temperature have on
12 the survival of rainbow trout?
13 MR. MCEWAN: Well, that is somewhat of a broad
14 question. It can have a lot of different impacts. If the
15 water temperature is high enough, it can kill the fish
16 outright. It can cause -- if it is lower than the incipient
17 lethal temperature for the fish, it can cause problems with
18 stress, slow growth, disease problems. It can cause
19 problems with the survival of the young fish as well as the
20 gametes that are carried in the adults if the adult then
21 encounters hot water. There are a whole scope of impacts
22 that can occur from water temperature being too high or too
23 low.
24 MR. NOMELLINI: With regard to temperature of the water
25 below Goodwin Dam, do you know whether or not the
CAPITOL REPORTERS (916) 923-5447 14470
1 temperature of the water in the Stanislaus River below
2 Goodwin Dam is in any way affected by the amount of
3 carryover storage in New Melones?
4 MR. MCEWAN: From -- again, from a general point of
5 view, yes. Carryover storage does effect, can effect water
6 temperatures below a reservoir. So it could, yes.
7 MR. NOMELLINI: Would your answer be the same with
8 regard to the Tuolumne River below LaGrange?
9 MR. MCEWAN: It could be, yes.
10 MR. NOMELLINI: Would your answer be the same with
11 regard to the Merced River below McClure?
12 MR. MCEWAN: Yes.
13 MR. NOMELLINI: On Page 72 of San Joaquin River Group
14 Authority Exhibit 43 there is a statement in the middle of
15 the page that says:
16 DFG needs a more effective program with
17 adequate staffing to review water rights and
18 environmental documents to determine
19 in-stream flow needs for specific streams and
20 pursue obtaining the necessary stream flows
21 through regulatory and legal means.
22 (Reading.)
23 MR. CAMPBELL: Objection. This question goes beyond
24 the scope of the hearing notice. It addresses issues that
25 Mr. Nomellini himself stated at the beginning of his inquiry
CAPITOL REPORTERS (916) 923-5447 14471
1 he would not address. Those are in-stream issues involving
2 in-stream flow needs.
3 C.O. STUBCHAER: Mr. Nomellini.
4 MR. NOMELLINI: Well, this does relate to whether or
5 not Fish and Game has performed an analysis of the impact of
6 the San Joaquin River Agreement on the rainbow trout and
7 whether or not their support of the San Joaquin River
8 Agreement has any relevance to this Board's approval of
9 either the water transfer as assumedly not impacting,
10 adversely impacting, the fish.
11 So I think it is very relevant and perhaps the rest of
12 the statement, you know, is the explanatory part.
13 MR. CAMPBELL: May I respond?
14 C.O. STUBCHAER: Yes, Mr. Campbell.
15 MR. CAMPBELL: Mr. Chairman, the Department of Fish and
16 Game's understanding that this entire proceeding is intended
17 to implement the 1995 Water Quality Control Plan, which
18 contains numerous flow-dependent objectives and objective
19 for the narrative doubling of natural production of chinook
20 salmon. It does not specifically address steelhead. So, in
21 terms of what we are doing here today in this proceeding,
22 Mr. Nomellini's line of questioning is far afield. When you
23 combine that with the limitations in the hearing notice,
24 that this hearing is -- in this hearing we are precluded
25 from determining what is needed upstream, in-stream in the
CAPITOL REPORTERS (916) 923-5447 14472
1 tributaries to protect broad -- the broad base of public
2 trust values in those areas which would include steelhead,
3 it doesn't have any place in this hearing. These are very,
4 very important issues.
5 I would also like to point out that these issues are
6 addressed in the existing, I believe they are, in the
7 existing in-stream flow requirements for the streams which
8 are, again, not a part of this hearing.
9 C.O. STUBCHAER: Mr. O'Laughlin.
10 MR. O'LAUGHLIN: I think the witness has already
11 responded to the question. The question is why the
12 Department hasn't looked at the San Joaquin River Agreement
13 and its impacts on rainbow trout, that might be a perfectly
14 good question. However, it is irrelevant as to why they
15 have or haven't done it, leaving aside Mr. Nomellini's
16 penchant for conspiracy theories. I think it is
17 irrelevant. The witness says they have done no testing,
18 and why it is irrelevant.
19 C.O. STUBCHAER: Mr. Jackson.
20 MR. JACKSON: Yes. In the course of this I may
21 confuse it a little more. In the last two days I have heard
22 that we are considering the narrative standard, and I have
23 heard that we are not considering the narrative standard.
24 And before I know which position to take on this debate I
25 would like to know whether or not Mr. Campbell's assumption
CAPITOL REPORTERS (916) 923-5447 14473
1 that we are considering the narrative standard is a correct
2 one because I heard yesterday the testimony of the Board
3 staff indicate that we weren't.
4 C.O. STUBCHAER: Mr. Campbell.
5 MR. CAMPBELL: One more comment, and I may sound rather
6 broad, but I do mean it seriously. Part of the difficulty
7 in my perception of the conduct of these hearings is one of
8 the basic principles of ecology, is everything is connected
9 to everything else. So, when you are looking at ecological
10 values, it is very difficult to draw lines.
11 However, in the conduct of serious affairs where we are
12 trying to be efficient, certain lines do have to be drawn.
13 And I believe that is what the Board sought to do in its
14 hearing notice and that is what the Board has endeavored to
15 do in responding to these objections regarding the scope of
16 the hearing.
17 In order to efficiently process this hearing, we are
18 requesting that a reasonable line be drawn in keeping with
19 the Board's own hearing notice and in keeping with the
20 intent of this hearing, which is to focus on the Bay-Delta
21 issues and not the upstream, in-stream flow needs issue.
22 C.O. STUBCHAER: Mr. Herrick.
23 MR. HERRICK: The Department of Fish and Game's
24 position is certainly understandable. However, the change
25 petitions were originally set for their own separate
CAPITOL REPORTERS (916) 923-5447 14474
1 hearing. It was the Board's decision to include them in
2 these phased hearings. And by including them in the
3 hearings, you should not deprive parties, such as Central
4 Delta, or South Delta from exploring all of the issues that
5 would have been explored had the hearings been separate.
6 If we are going to determine, as the notice says,
7 whether or not there is any adverse impacts to fish and
8 wildlife or other beneficial uses, you have to be able to
9 explore these sort of issues. I don't think we can
10 construct this argument so the original notice precludes
11 finding out the specifics contained in the statutes that
12 require the evaluation of the change.
13 C.O. STUBCHAER: Anything else?
14 MR. JACKSON: Maybe it is matter of clarification.
15 Maybe everybody else understands. I would just like it
16 confirmed again. Are the narrative standards part of this
17 hearing and if they are, can we ask questions about them?
18 C.O. STUBCHAER: Staff have a comment on that?
19 MR. HOWARD: The narrative standards are a part of the
20 1995 Bay-Delta Plan. In determining alternatives for
21 implementing the 1995 Bay-Delta Plan, staff did not propose
22 to raise the flow objectives that had been specifically
23 adopted by the Board in a numerical fashion. And instead
24 pointed out that there was insufficient evidence insofar as
25 we were aware to establish whether or not the flow
CAPITOL REPORTERS (916) 923-5447 14475
1 objectives that had been adopted in combination with the
2 actions of agencies such as CalFed and others would be
3 adequate to meet the standards.
4 So, in summary I think the position that we have taken
5 in the Draft EIR is that we don't really know whether or not
6 the objectives that were adopted, the numerical objectives,
7 will meet the narrative objective. Simultaneously, we don't
8 know what numerical objectives would meet the narrative
9 objective. So we just didn't speculate on what that might
10 be and said that would have evaluated over time.
11 C.O. STUBCHAER: Mr. Nomellini.
12 MR. NOMELLINI: On the original objection to my
13 question. With regard to DFG needs a more effective
14 program, the Department of Fish and Game's attorney has
15 argued in this hearing process that with regard to public
16 trust, protection of the public trust, that the Department
17 of Fish and Game should be accorded weight in its
18 position.
19 I had filed a motion, one of the motions referenced
20 earlier in this debate over the scope of this questioning,
21 that the Board should designate an independent panel of
22 experts to represent the public trust. I have and still
23 have a concern in that regard. And what I intended to
24 elicit with this last question, which is stated in the
25 exhibit already introduced, is that the Department of Fish
CAPITOL REPORTERS (916) 923-5447 14476
1 and Game does not have adequate staff to do its job, and I
2 think it is clear from the testimony here that Mr. McEwan,
3 the guy that wrote the book on steelhead, didn't do any
4 evaluation. He doesn't know of any evaluation done by the
5 Department of Fish and Game. So I think I should be allowed
6 to pursue that. Because that leaves the public trust
7 protection with regard to steelhead squarely in the hands of
8 the Board. And I think I am entitled to pursue that. This
9 is cross-examination.
10 I do not have a friendly witness. I have had to call
11 this man as an adverse witness. He is a part of the
12 Department of Fish and Game. Department of Fish and Game
13 has well in advance of all the analysis that has gone on in
14 the hearing committed to support the San Joaquin River
15 Agreement. So that is the nature of my inquiry and that is
16 where I was going to go without spending much time.
17 C.O. STUBCHAER: Mr. Campbell.
18 MR. CAMPBELL: The Department of Fish and Game takes
19 great exception to the comments just made by Mr. Nomellini.
20 Particularly in this context which he is rearguing a motion
21 that this Board has considered, ruled upon and ruled against
22 Mr. Nomellini's clients on that very issue. To sit here and
23 have all the parties sit here and listen to a rehash of that
24 failed motion is a waste of our time.
25 With regard to Mr. Nomellini's concerns about the
CAPITOL REPORTERS (916) 923-5447 14477
1 administration of Department of Fish and Game, that is
2 another example of just how far afield Central Delta Parties
3 inquiry has reached. His political concerns have no place
4 in this hearing. This is a hearing about facts, evidence
5 and law, and not a forum to entertain somebody's unfounded
6 political sore finger. So we take great exception to that.
7 C.O. STUBCHAER: My concern is the relevance and not a
8 lot of the other stuff. I am going to sustain the objection
9 on that basis.
10 MR. NOMELLINI: Mr. McEwan, do you agree that a major
11 problem with securing adequate flows for steelhead through
12 the water rights process is that DFG is not adequately
13 staffed to review all significant water rights applications
14 and existing projects?
15 MR. CAMPBELL: Objection. Irrelevant.
16 MR. O'LAUGHLIN: Objection. I wish the Chair would
17 admonish Mr. Nomellini. I mean it is one thing -- I don't
18 want to keep standing up objecting. This is outrageous
19 conduct. I mean, out of all the things we have had in this
20 hearing, to go in and ask these lines of questions of
21 California Department of Fish and Game. If he wants to
22 bring this up, go across the street and go to the Assembly
23 and bring these issues up or bring it up in an inquiry of
24 some other fashion.
25 This is outrageous. I move to strike that. I actually
CAPITOL REPORTERS (916) 923-5447 14478
1 renew my motion to strike all of this cross-examination of
2 this witness as being irrelevant, outside the scope of the
3 hearing and also on the basis that the Central Delta Agency
4 lacks standing to bring it.
5 C.O. STUBCHAER: Mr. Campbell.
6 MR. CAMPBELL: I join in the first part of that
7 objection, and I would also add Mr. Birmingham's previous
8 objection based on the shortness of life.
9 C.O. STUBCHAER: Mr. Jackson.
10 MR. JACKSON: Yes, I may see this a little differently.
11 It seems to me the questions are completely relevant in that
12 Mr. Nomellini is attempting to determine whether or not the
13 petitioners, who are the San Joaquin River Agreement folks
14 that include Fish and Game, have made a prima facie case
15 that there is not an unreasonable affect on fish, wildlife
16 or other in-stream beneficial uses of water.
17 C.O. STUBCHAER: Wait, excuse me.
18 MR. JACKSON: Clearly, there is no other evidence filed
19 in this thing in II-B that carries this burden. And so, if
20 in questioning Fish and Game about whether or not they have
21 evidence, Mr. Nomellini is being incredibly relevant to
22 Issues 2 and 3.
23 MR. NOMELLINI: "Restrained" is the word.
24 MR. O'LAUGHLIN: May I address that briefly now? First
25 of all, you failed to have read the petitions. The
CAPITOL REPORTERS (916) 923-5447 14479
1 petitions are not by the California Department of Fish and
2 Game. The petitions are not for the San Joaquin River
3 Agreement. The petitions are by Oakdale Irrigation
4 District, South San Joaquin Irrigation District, Modesto
5 Irrigation District, Turlock Irrigation District and Merced
6 Irrigation District.
7 Secondly, there is a body of evidence that's been
8 introduced as Exhibit 103A which is the EIR/EIS which has an
9 analysis in it of the impact from this transfer on
10 fisheries. So, if they are not happy that Fish and Game
11 hasn't done their own independent analysis and don't like
12 the questions, I think the inquiry should stop there rather
13 than a discussion about what the political ins are of the
14 Department and how they staff and fund their Department.
15 C.O. STUBCHAER: The objection is sustained on the
16 grounds of relevance.
17 MR. NOMELLINI: Okay.
18 For the record, Mr. Chairman, I would like it noted
19 that I was simply reading from San Joaquin River Group
20 Authority Exhibit Number 43, which has already been
21 introduced as relevant testimony in the record. That it is
22 a duplication of a similar exhibit that is a staff exhibit
23 in these hearings and part of the evidentiary basis. Very
24 relevant because the information is in there. I recognize
25 your --
CAPITOL REPORTERS (916) 923-5447 14480
1 C.O. STUBCHAER: Statement.
2 MR. NOMELLINI: -- and may not want to hear much of
3 this, but I'll go on.
4 C.O. STUBCHAER: Your statement is on the record, of
5 course.
6 MR. NOMELLINI: Thank you very much.
7 Does the Department of Fish and Game give any priority
8 to protection of listed species over species that are not
9 listed under the Endangered Species Act?
10 MR. MCEWAN: It's my understanding that the Department
11 does, yes.
12 MR. NOMELLINI: Is it your understanding that steelhead
13 are a listed species under the Endangered Species Acts?
14 MR. CAMPBELL: Objection. Vague and ambiguous as to
15 which Endangered Species Act.
16 MR. NOMELLINI: Any Endangered Species Act.
17 C.O. STUBCHAER: Overruled.
18 MR. NOMELLINI: As to the federal Endangered Species
19 Act?
20 MR. MCEWAN: Yes.
21 MR. NOMELLINI: Do you know whether or not fall-run
22 chinook salmon are listed under the federal Endangered
23 Species Act?
24 MR. MCEWAN: No, they are not. Not in the Central
25 Valley.
CAPITOL REPORTERS (916) 923-5447 14481
1 MR. NOMELLINI: Do you know whether or not steelhead
2 are listed under the state Endangered Species Act?
3 MR. MCEWAN: Yes, I guess, is the answer to that
4 question. I do know and, no, they are not.
5 MR. NOMELLINI: Do you know --
6 C.O. STUBCHAER: The way you ask your questions, it
7 could be either yes or no.
8 MR. NOMELLINI: I realize that now, Mr. Chairman. I
9 will try to do better with my last question.
10 C.O. STUBCHAER: You could say, "Are steelhead listed?"
11 MR. NOMELLINI: Are fall-run chinook salmon listed
12 under the state Endangered Species Act?
13 MR. MCEWAN: No, they are not, not in the Central
14 Valley.
15 MR. NOMELLINI: Thank you very much for those
16 stimulating answers, and I enjoyed the discussion with the
17 Chair and other members of the attorney group on this
18 question.
19 C.O. STUBCHAER: Very gracious, Mr. Nomellini. Thank
20 you.
21 Who wishes to cross-examine this panel?
22 Mr. Jackson, Mr. --
23 MR. BIRMINGHAM: May I have a moment?
24 C.O. STUBCHAER: Yes.
25 Jackson, Robbins, O'Laughlin.
CAPITOL REPORTERS (916) 923-5447 14482
1 Who else? We have three now.
2 C.O. BROWN: Herrick.
3 C.O. STUBCHAER: Herrick.
4 We are getting the cards.
5 Anyone else? Have four, going on five? Sold, four.
6 MR. CAMPBELL: Mr. McEwan is due to have a root canal
7 tomorrow, but I believe it started early.
8 MR. MCEWAN: Just looking forward to it. Never thought
9 I would.
10 C.O. BROWN: That will be a cakewalk.
11 MR. O'LAUGHLIN: At least more productive.
12 C.O. STUBCHAER: Off the record.
13 (Discussion held off the record.)
14 C.O. STUBCHAER: Back on the record.
15 The order is Mr. Robbins, Mr. Jackson, Mr. O'Laughlin
16 and Mr. Herrick.
17 Good afternoon, Mr. Robbins.
18 ---oOo---
19 CROSS-EXAMINATION OF CENTRAL DELTA PARTIES
20 BY MERCED IRRIGATION DISTRICT AND
21 SAN JOAQUIN RIVER GROUP AUTHORITY
22 BY MR. ROBBINS
23 MR. ROBBINS: Kenneth Robbins for Merced Irrigation
24 District and San Joaquin River Group Authority.
25 Mr. McEwan, I just have a couple follow-up questions.
CAPITOL REPORTERS (916) 923-5447 14483
1 You indicated that you were aware of a naturally
2 spawning rainbow trout population on the Merced, Tuolumne
3 and Stanislaus; is that correct?
4 MR. MCEWAN: Yes.
5 MR. ROBBINS: You know that it is naturally spawning
6 and not planted population?
7 MR. MCEWAN: Perhaps I can clarify that, that remark.
8 It is the position of the Department of Fish and Game that
9 there is a naturally spawning steelhead population on the
10 Merced River.
11 MR. ROBBINS: Do you know what that is based upon?
12 MR. MCEWAN: It is based upon mostly three factors.
13 One is they historically occurred there. There is good
14 evidence they were there. Secondly, there continues to be
15 some anecdotal, not extremely exclusive, but anecdotal
16 information of the rainbow trout seen. Thirdly, there is no
17 evidence to suggest that they are existing.
18 MR. ROBBINS: You indicated that you have some evidence
19 of a single catch of a steelhead in 1995 on the Merced?
20 MR. MCEWAN: Yes.
21 MR. ROBBINS: Was that fish taken by the Department?
22 MR. NOMELLINI: Mr. Chairman, that misstates his
23 testimony. That was upstream of the Merced past the fence.
24 C.O. STUBCHAER: Upstream on the San Joaquin past the
25 fence.
CAPITOL REPORTERS (916) 923-5447 14484
1 MR. ROBBINS: My apologies. That is actually where I
2 was headed with that. Thank you.
3 Relative -- I want to go back to natural spawning. You
4 indicated that there is some historical evidence for
5 steelhead on the Merced.
6 Can you explain what that is?
7 MR. MCEWAN: Let me think. Specifically, I think I
8 would have to go back to my records to look at that, to get
9 the specifics on that. I can't recall what that is at this
10 point. I can say that one of the lines of evidence that I
11 used to come to that conclusion is the fact that there is a
12 much better documentation of spring-run chinook salmon or
13 chinook salmon on the Merced River. Everywhere else we look
14 in California where we have naturally spawning populations
15 of chinook salmon and steelhead, wherever you find chinook
16 salmon you find steelhead as well, but not necessarily vice
17 versa.
18 The fact that chinook salmon were on the Merced River
19 lead me to conclude that steelhead were there as well. I
20 believe there is more specific documentation, historical
21 documentation, but I can't recall right now.
22 C.O. STUBCHAER: Would you move the mike over so when
23 you look at the questioner you are talking into the mike.
24 MR. ROBBINS: I wonder if I could draw your attention
25 to Page 43 of the report, which I believe you have in front
CAPITOL REPORTERS (916) 923-5447 14485
1 of you, which is San Joaquin River Group Authority Exhibit
2 Number 43, also, Page 43.
3 Do you see the third paragraph?
4 MR. MCEWAN: Yes.
5 MR. ROBBINS: I wonder if you could read the first
6 sentence of that paragraph for me.
7 MR. MCEWAN: Third paragraph on Page 43.
8 There is little historical documentation
9 regarding steelhead distribution in the San
10 Joaquin River system. (Reading.)
11 MR. ROBBINS: There is basically anecdotal evidence of
12 some sort, that I take from this?
13 MR. MCEWAN: Since this time I have done a lot more
14 looking into this issue of historical occurrence of the
15 steelhead in the San Joaquin system. I believe, but I would
16 have to see the references again, I believe there are
17 specific documented references of steelhead in the Merced,
18 but I would have to go back.
19 MR. ROBBINS: You don't recall at this point what those
20 were?
21 MR. MCEWAN: No.
22 MR. ROBBINS: When you say "steelhead," you mean
23 returning steelhead? In other words those that you could
24 identify as having been to the ocean and back?
25 MR. MCEWAN: Yeah, that come back as very large fish in
CAPITOL REPORTERS (916) 923-5447 14486
1 a bona fide run.
2 MR. ROBBINS: And who have been specifically identified
3 by some scientific scale, some scale you view as having
4 become anadromous?
5 MR. MCEWAN: In this particular -- in these historical
6 documents, no.
7 MR. ROBBINS: So, we don't know whether these are just
8 big rainbow who have been very successful predators or
9 whether they are steelheads?
10 MR. CAMPBELL: Misstates the witness' prior testimony.
11 C.O. STUBCHAER: What is the question?
12 MR. ROBBINS: The question --
13 C.O. STUBCHAER: Go ahead.
14 Please, gentlemen, you're stepping on each other just a
15 little bit, so please wait until one is completed before the
16 other speaks.
17 MR. ROBBINS: The historical evidence is anecdotal in
18 the sense that we don't have any science that identifies
19 these large rainbows, which we knew them to be as having
20 been steelhead versus large rainbow.
21 MR. MCEWAN: Yeah, that would probably be a true
22 statement. However, some of the accounts in the San Joaquin
23 system, and this was not specific to the Merced, but some of
24 the historical accounts are from ethnographic surveys from
25 some of the early ethnographers who were attempting to
CAPITOL REPORTERS (916) 923-5447 14487
1 interview the Native Americans that were living in the San
2 Joaquin Valley in the early part of this century. And in
3 one of the accounts this gentleman was stating that the
4 steelheads, as he called them, the steelheads came up the
5 river and they utilized those for food source as well.
6 So from that I gather that there was a bona fide run of
7 fish, not coming singularly, but coming in a group which
8 would indicate fish coming out of the ocean to me.
9 MR. ROBBINS: Do you know of any evidence for those
10 runs, as it were as they are described, since the
11 construction of the main dams on the tributaries in the
12 early part of the century?
13 MR. MCEWAN: I would have to say, no, not runs of
14 adults.
15 MR. ROBBINS: You indicated that you are aware of
16 naturally spawning rainbow trout population in the
17 tributaries. Do you have any information regarding the
18 health of that population?
19 MR. MCEWAN: Well, it is assumed to be very low, not
20 very healthy at all.
21 MR. ROBBINS: Is there a way to differentiate between
22 planted rainbow trout and those naturally occurring in the
23 systems?
24 MR. MCEWAN: Yes, there is.
25 MR. ROBBINS: How would you do that?
CAPITOL REPORTERS (916) 923-5447 14488
1 MR. MCEWAN: There is -- depending on the life stage of
2 the fish you are looking at, probably the best method is to
3 look at the juvenile fish. Juvenile steelhead that are
4 actively migrating downstream and on their way to the ocean
5 undergo a process called smoltification.
6 MR. ROBBINS: I am sorry, didn't mean to interrupt. I
7 was just talking about the rainbow population in the river
8 itself. I understand smoltification issue is on the way
9 downstream, but is there a way to identify? While they are
10 in the river before any have started to move, the difference
11 between a native rainbow trout and a planted rainbow trout,
12 say, from a hatchery of same sort?
13 MR. MCEWAN: A native rainbow trout and a planted
14 rainbow trout?
15 MR. ROBBINS: Any way to identify that difference?
16 MR. MCEWAN: Yes. Generally hatchery rainbow trout
17 show the effects of having been raised in a hatchery.
18 Principally, one of those effects is the abrasion that
19 occurs to the fins either in the concrete wasteways or in
20 the ponds or just being crowded. Generally the hatchery
21 rainbow trout have a very eroded dorsal fin and a very
22 rounded off raggedy, you might say, caudal fin.
23 MR. ROBBINS: Are you aware of rainbow trout planting
24 operations that occur in these various tributaries?
25 MR. MCEWAN: I assume that they occur or have
CAPITOL REPORTERS (916) 923-5447 14489
1 occurred.
2 MR. ROBBINS: Has any analysis been done, to your
3 knowledge, of the populations in these rivers that they
4 might be hatchery or wild fish?
5 MR. MCEWAN: Yes.
6 MR. ROBBINS: What have been the results of those?
7 MR. MCEWAN: The genetic analysis that was done by the
8 National Marine Fisheries Service on fish from the
9 Stanislaus River showed that those fish grew out very
10 closely or related to several other stocks that they looked
11 out in the Sacramento system. Specifically, fish from
12 Coleman National Fish Hatchery, wild fish from Mill and Deer
13 Creeks, and fish from the Feather River, I believe. All of
14 those fish grouped into a related group that, as they put
15 it, very distinct from all the other stocks that they looked
16 at, and they looked at somewhere, I believe, in the
17 neighborhood of 70 stocks from California, Oregon,
18 Washington and Idaho. This was done as part of their status
19 review for the listing purposes.
20 MR. ROBBINS: If the initiate brood stock for the
21 hatcheries, which had come from those regions, that is
22 exactly what you'd expect, would it not be?
23 MR. MCEWAN: That is what you would expect from the
24 Upper Sacramento.
25 MR. ROBBINS: I want just to spend a couple minutes
CAPITOL REPORTERS (916) 923-5447 14490
1 with temperature. You indicated, I believe, earlier you
2 were not real familiar with the temperature conditions on
3 the Merced River?
4 MR. MCEWAN: Yes, I think that is true.
5 MR. ROBBINS: That is true of the Tuolumne and the
6 Stanislaus?
7 MR. MCEWAN: Generally, I am familiar with them, but
8 nothing real specific.
9 MR. ROBBINS: As you look at river temperatures, and I
10 assume that you have done that; is that correct, to assume
11 that you have actually investigated river temperatures as it
12 relates to steelhead, or rainbow trout?
13 MR. MCEWAN: No. I haven't done any sort of
14 temperature evaluation.
15 MR. ROBBINS: You familiar with other studies --
16 C.O. STUBCHAER: Please let him finish.
17 MR. MCEWAN: I deal mainly with the literature, what
18 has been done, applying that information.
19 MR. ROBBINS: From the literature you are familiar
20 generally with the temperature issues as it relates to
21 rainbow trout or steelhead?
22 MR. MCEWAN: Yes.
23 MR. ROBBINS: Have you an opinion as to what causes
24 changes in temperature in the various rivers as it relates
25 to releases from reservoirs?
CAPITOL REPORTERS (916) 923-5447 14491
1 MR. MCEWAN: Uh-huh.
2 MR. ROBBINS: What would that be?
3 MR. MCEWAN: Well, from broadly speaking, yes, the
4 reservoir can affect the downstream temperatures.
5 MR. ROBBINS: The reservoir has an impact. Would you
6 say that the reservoir would cool water in the river or heat
7 it?
8 MR. MCEWAN: Either way; it can do both.
9 MR. ROBBINS: In the summertime when -- let's assume
10 that the ambient air temperature in the San Joaquin Valley
11 during the day is averaging 95 or 100 degrees. Would you
12 say that would have an impact on the temperature of the
13 stream below the dams on the various tributaries?
14 MR. MCEWAN: The air temperature?
15 MR. ROBBINS: The ambient air temperature.
16 MR. MCEWAN: Yes, they could have an affect.
17 MR. ROBBINS: Would you also in that -- let me give you
18 a hypothetical. Let us say that the dam at Exchequer is
19 releasing water that is 50 degrees, but that temperatures in
20 the river below the dam are higher than that.
21 Would you -- what would you conclude from that in terms
22 of ambient air temperature as it relates to the water
23 temperature?
24 MR. MCEWAN: I think I would have to know a little more
25 information.
CAPITOL REPORTERS (916) 923-5447 14492
1 MR. ROBBINS: Is it possible that, in fact, the dams as
2 they release water into the rivers actually result in cooler
3 temperatures in the summer that might otherwise be there?
4 MR. MCEWAN: Yes.
5 MR. ROBBINS: I have no further questions.
6 C.O. STUBCHAER: Thank you, Mr. Robbins.
7 Mr. Jackson.
8 ---oOo---
9 CROSS-EXAMINATION OF CENTRAL DELTA PARTIES
10 REGIONAL COUNCIL OF RURAL COUNTIES
11 BY MR. JACKSON
12 MR. JACKSON: Mr. McEwan, you indicated that -- I am
13 going to ask you a series of questions in general about the
14 Merced, the Tuolumne and Stanislaus River. Unless I specify
15 one of them, you can assume that the question is in general
16 about the three rivers.
17 MR. MCEWAN: Okay.
18 MR. JACKSON: Is that all right?
19 MR. MCEWAN: Yes.
20 MR. JACKSON: You've indicated that there are steelhead
21 in those rivers, in your opinion, all year round?
22 MR. MCEWAN: Yes.
23 MR. JACKSON: You also indicated that there are
24 spring-run chinook salmon in the San Joaquin?
25 MR. MCEWAN: No. I indicated historically there was
CAPITOL REPORTERS (916) 923-5447 14493
1 spring-run chinook salmon in the San Joaquin.
2 MR. JACKSON: Do you know whether or not there are
3 spring-run chinook salmon in the Merced River, the Tuolumne
4 River and Stanislaus River?
5 MR. MCEWAN: No, I don't know.
6 MR. JACKSON: Now, calling your attention to the
7 steelhead that are in these rivers year-round, in a state of
8 nature before the dams were built, would the steelhead have
9 used the lower river to spawn and rear?
10 MR. MCEWAN: It depends on the system. But for the
11 most part, no. There may have been some that -- there may
12 have been some spawning, rearing that was occurring. But
13 for the most part historical spawning and rearing habitat is
14 upstream of the lower most dams.
15 MR. JACKSON: The area upstream that was the historical
16 spawning habitat would on balance have colder water?
17 MR. MCEWAN: Yes.
18 MR. JACKSON: Calling our attention to conditions as
19 they exist now, is water temperature on the three rivers
20 that we have talked about a potential limiting factor in
21 reproductive success of the steelhead?
22 MR. MCEWAN: Yes; potentially, yes.
23 MR. JACKSON: How does that work? Potentially? Why is
24 the temperature a potential limiting factor?
25 MR. MCEWAN: As I indicated before in the previous
CAPITOL REPORTERS (916) 923-5447 14494
1 answer, steelhead are in the system year-round. Therefore,
2 water temperatures must be maintained year-round. It is
3 true that under natural conditions before the dams went in
4 most of these downstream reaches did not have adequate water
5 temperatures and other habitat factors that it took to
6 create those conditions year-round. That is why steelhead
7 from a natural -- from a natural standpoint, a biological
8 point, went higher into the system to spawn and rear than
9 chinook salmon. They go higher into the system, to the
10 upstream and mid elevation tributaries to spawn because that
11 is where the cold water, mostly cold water conditions and
12 habitat conditions were available to allow for a multi-year
13 rearing.
14 MR. JACKSON: So, it is the damming of the rivers and
15 the restriction of the habitat to below the river that
16 causes the need for lower water temperatures below these
17 dams that would have existed in the state of nature?
18 C.O. STUBCHAER: Mr. Birmingham.
19 MR. BIRMINGHAM: Objection. Relevance.
20 C.O. STUBCHAER: Mr. Jackson, can you explain the
21 relevance in relation to the issues in this phase of the
22 hearing?
23 MR. JACKSON: Certainly can. The transfer of water
24 from these artificially blocked streams in the summer period
25 may very well have an affect on the health of the steelhead
CAPITOL REPORTERS (916) 923-5447 14495
1 that are restricted to these sections of the stream by the
2 very dams owned by the people proposing this transfer. And
3 I want to make it very clear that they are not doing any
4 favors to these fish; they are improving the habitat and
5 they are certainly not improving it if they move summer
6 water to the spring.
7 C.O. STUBCHAER: Mr. Robbins.
8 MR. ROBBINS: I will object based upon the assumption
9 facts that are not in evidence. There is absolutely no
10 evidence here indicating these transfers will affect the
11 temperature of the lakes and subsequently the releases.
12 MR. JACKSON: We are about to get there.
13 C.O. STUBCHAER: Mr. Birmingham.
14 MR. BIRMINGHAM: Whether -- the impact of the
15 construction of dams on these rivers is not one of the
16 issues that is presently before the Board. The Board is not
17 asking itself what should be done by these projects in order
18 to mitigate impacts that they may have had on these rivers.
19 Ultimately, the Board may ask itself that question in some
20 other phase of the water rights hearing with respect to the
21 Bay-Delta.
22 In fact, it has asked itself that question in some
23 other phases. But one of the issues in this phase is the
24 impact of the change petition on legal users of water and
25 in-stream beneficial uses. And the question that is posed
CAPITOL REPORTERS (916) 923-5447 14496
1 by Mr. Jackson, the specific question that is being asked,
2 what was the impact of the construction of these dams on
3 conditions as they existed in the state of nature is not
4 relevant to the issue that is before the Board in this
5 phase.
6 C.O. STUBCHAER: Mr. Nomellini.
7 MR. NOMELLINI: It is relevant because the steelhead
8 now must survive below the dam. And the question is whether
9 the San Joaquin River Agreement impacts on the steelhead
10 surviving below the dam and how does the temperature in the
11 reservoir affect that.
12 We've already had testimony contrary to Mr. Robbins'
13 statement, that production of carryover storage could
14 increase the temperature of the water in the reservoir.
15 C.O. STUBCHAER: Mr. Birmingham.
16 MR. BIRMINGHAM: Mr. Nomellini's questions would be
17 relevant, but that is not the question that Mr. Jackson
18 asked. If there is any doubt about that, I would ask the
19 reporter to go back and reread the question. But the
20 question that was asked was: What was the impact of
21 building these dams?
22 C.O. STUBCHAER: Mr. Jackson, why don't you rephrase
23 the question and avoid this issue. The construction of the
24 dams I don't think is relevant to this phase. But the water
25 temperature and affect of water temperature by transferring
CAPITOL REPORTERS (916) 923-5447 14497
1 water is relevant. So, if you could focus in on that.
2 Proceed.
3 MR. JACKSON: Just so I understand it. It was the
4 construction of the dams that made this water temperature
5 relevant, and I need to explain that or there is no way you
6 can tell what the change in this transfer will be. I mean,
7 that is basically the problem here is that we are operating
8 in this sort of artificial world where we are not allowed to
9 mention Friant, we are not allowed to talk about dams, we
10 are not allowed to talk about particular species. And in
11 effect we are going to end up with the conclusion that there
12 is no effect yet. Everything dies.
13 C.O. STUBCHAER: Mr. Jackson, as I understand, the base
14 condition that we comparing the effects of the transfer,
15 includes the dams and that place. So the dams are kind of
16 old history now and, we -- in previous phases we have not
17 allowed the discussion on that. And I forget which phase it
18 was, but if you can really focus on the issues I just
19 mentioned, we can move ahead.
20 MR. JACKSON: In this habitat below the dams is
21 temperature critical to the spawning and rearing of
22 steelhead?
23 MR. MCEWAN: Yes; yes, it is.
24 MR. JACKSON: Does lack of flow or does the amount of
25 flow have an effect on temperature?
CAPITOL REPORTERS (916) 923-5447 14498
1 MR. MCEWAN: It can, yes.
2 MR. JACKSON: How can it?
3 MR. MCEWAN: I think it depends on not only flow, the
4 amount of water being released, but from where in the
5 reservoir it is being released from. And that brings into
6 account how much water is in the reservoir to begin with.
7 Reduction in flow can cause a lowering. In just looking at
8 flow itself, a reduction in flow can cause a lower velocity
9 of the water. It heats up faster, and you can get a higher
10 temperature in that respect, as well.
11 MR. JACKSON: If you have the same amount of water and
12 you shift the water from a higher -- the same amount of
13 water from a higher ambient temperature, say, in August and
14 September, to a time in which the ambient temperature is
15 lower, say, April to May, you may have affected the ability
16 of the steelhead to summer-over, couldn't you?
17 MR. MCEWAN: Could you repeat that?
18 MR. JACKSON: If you have the same amount of water on a
19 river system, and you shift the amount of water to lessen
20 the amount that is in the river in July and August, and you
21 move that water to a time in which the ambient air
22 temperatures are lower to, say, April and May, wouldn't you
23 have a tendency to affect the salmon rearing ability in July
24 and August?
25 MR. MCEWAN: Do you mean steelhead?
CAPITOL REPORTERS (916) 923-5447 14499
1 MR. JACKSON: Yes.
2 MR. MCEWAN: Yes, you can.
3 MR. JACKSON: Do you yourself know how much water is
4 shifted from the summer months to the spring months by the
5 San Joaquin River Agreement?
6 MR. MCEWAN: No, I don't.
7 MR. JACKSON: Do you know whether or not there is a --
8 there will be a temperature change below McClure, LaGrange
9 and Goodwin caused by the shift of some of the summer water
10 to the spring?
11 MR. CAMPBELL: Objection. Asked and answered.
12 MR. O'LAUGHLIN: Lacks foundation. The witness has no
13 understanding that there has been a shift of summer water to
14 spring water, nor has there been any evidence established in
15 the hearing that water has been shifted from the summer to
16 the spring due to the San Joaquin River Agreement release
17 petitions.
18 C.O. STUBCHAER: Mr. Campbell.
19 MR. CAMPBELL: My objection is that it is the same
20 question he just asked.
21 C.O. STUBCHAER: I was just going to say, if you could
22 pose it as a hypothetical in which it doesn't have that
23 background, that he can answer.
24 MR. JACKSON: I was trying to determine whether he
25 actually knew before I posed my hypothetical.
CAPITOL REPORTERS (916) 923-5447 14500
1 C.O. STUBCHAER: You can ask that.
2 MR. JACKSON: But I do understand why the folks behind
3 me are so nervous.
4 MR. O'LAUGHLIN: Mr. Chairman, can we -- I would move
5 to strike the editorial comments.
6 C.O. STUBCHAER: The editorialized comments have come
7 from both sides, Mr. O'Laughlin. I am not going to strike
8 any.
9 MR. JACKSON: Hypothetically, if water is shifted from
10 the summer months to the spring months, could it have a
11 potential affect to the steelhead below the dams?
12 MR. MCEWAN: If it results in a lowering of flow in the
13 summer, is that what you are asking?
14 MR. JACKSON: Yes.
15 MR. MCEWAN: Yes; potentially, yes.
16 MR. JACKSON: To your knowledge, has Fish and Game made
17 any study of whether or not temperatures below McClure,
18 LaGrange and Goodwin would be changed for the months of
19 August and September by the approval of the San Joaquin
20 River Agreement?
21 MR. MCEWAN: To my knowledge, no. I don't know if that
22 has been done.
23 MR. JACKSON: Now, you talked a little about a
24 carryover storage. Why is carryover storage important to
25 the fish?
CAPITOL REPORTERS (916) 923-5447 14501
1 MR. MCEWAN: It mainly has to do with the phenomenon
2 of stratification of a large body of water. Generally, a
3 large body of water will have three layers to it. The
4 bottom most layer is the coldest water and very similar
5 temperature throughout this layer. The uppermost layer is
6 generally the warmer water, and it would be a similar
7 temperature throughout that layer. The middle layer, the
8 thermocline is an area of transition of temperatures. So
9 looking at the three zones, really, of temperature. If you
10 release water from the lower most zone of this reservoir,
11 you will be releasing the coldest water in the reservoir.
12 MR. JACKSON: If we could sort of hypothetically call
13 those three zones the epilimnion, the thermocline and
14 hypolimnion, would you accept those words?
15 MR. MCEWAN: Yes.
16 MR. JACKSON: When carryover storage is less, do you
17 generally get the same amount of water in the epilimnion?
18 MR. MCEWAN: Well, I believe that the depletion of
19 water occurs throughout all levels. And if --
20 MR. JACKSON: The water at the bottom is colder?
21 MR. MCEWAN: Yes.
22 MR. JACKSON: If you let it lay the sun still heats the
23 water to a certain depth. So when you lower carryover
24 storage, don't you usually lower the hypolimnion or cold
25 water at the bottom?
CAPITOL REPORTERS (916) 923-5447 14502
1 MR. MCEWAN: Yes, especially if you are drawing off of
2 it.
3 MR. JACKSON: All other things equal, if you looked at
4 a typical operation, on a stream that in which the fish
5 below the dam depend on cold water out of the hypolimnion
6 and you lower carryover storage, you are essentially
7 lowering the amount of water or lessening the amount of
8 water you have in the hypolimnion; are you not?
9 MR. MCEWAN: Yes, I would say so.
10 C.O. STUBCHAER: Mr. Jackson, it is 2:30. How long do
11 you think you will go?
12 MR. JACKSON: Well, it won't be too long. It will be
13 more than 15 or 20 minutes. It probably will be no more
14 than 30.
15 C.O. STUBCHAER: Is it all right with you if we take a
16 break now?
17 MR. JACKSON: Yes.
18 C.O. STUBCHAER: Let's take our afternoon break.
19 (Break taken.)
20 C.O. STUBCHAER: Back on the record.
21 Mr. Jackson.
22 Mr. JACKSON: Mr. McEwan, calling your attention to
23 steelhead as they may exist on the Merced River in the
24 months of July, August and September, do you know whether or
25 not the steelhead on the Merced River in those months are in
CAPITOL REPORTERS (916) 923-5447 14503
1 good condition?
2 MR. MCEWAN: I would have to say that they are not.
3 MR. JACKSON: On what do you base your view that they
4 are not presently in good condition?
5 MR. MCEWAN: Very few observations. From the other --
6 from the other aspects, handful of information we have about
7 them now. They are not seen very often.
8 MR. JACKSON: Now let's discuss the situation on the
9 Merced River in the months of July, August and September.
10 Do you know what affect the movement of water that is
11 presently available below, for instance, McClure Dam, would
12 have on the temperature of the river below McClure?
13 MR. CAMPBELL: Objection. Vague and ambiguous as to
14 movement of water. I don't understand.
15 MR. JACKSON: Let me do it again. That is probably
16 right.
17 You are aware that you are here testifying because
18 there is a petition filed among others by Merced Irrigation
19 District to change the place of use of some of their water?
20 MR. MCEWAN: Yes.
21 C.O. STUBCHAER: Mr. McEwan, can you get a little
22 closer to the microphone?
23 MR. JACKSON: Assuming that I am talking about that
24 activity in the following questions, do you know whether the
25 movement -- do you know what the effect of the movement of
CAPITOL REPORTERS (916) 923-5447 14504
1 that water will be on the temperature below McClure
2 Reservoir in the months of July, August and September?
3 MR. MCEWAN: No, I don't.
4 MR. JACKSON: You have indicated that the steelhead are
5 not presently in good condition. Do you know how much
6 change would take place caused by this petition on the fish
7 that heretofore have been below McClure Dam on Merced River
8 in the months of July, August to September?
9 MR. MCEWAN: No. Again, I am not that familiar with
10 the specifics of the VAMP agreement.
11 MR. JACKSON: Is it true that less water in those
12 summer months could hypothetically harm the fish that may
13 exist below the dam?
14 MR. MCEWAN: Yes.
15 MR. BIRMINGHAM: Objection. Asked and answered.
16 C.O. STUBCHAER: He already answered it, so --
17 MR. BIRMINGHAM: For the fourth time.
18 MR. JACKSON: How then can Fish and Game come to the
19 conclusion that there will be no unreasonable affect on
20 steelhead by the granting of this petition?
21 MR. CAMPBELL: Objection. Argumentative and assumes
22 facts not in evidence.
23 C.O. STUBCHAER: Mr. Jackson.
24 MR. JACKSON: I don't think it assumes facts not in
25 evidence. I don't believe it to be argumentative. I am
CAPITOL REPORTERS (916) 923-5447 14505
1 asking him how they came to that conclusion.
2 MR. CAMPBELL: Department of Fish and Game has not
3 presented a case in chief nor have they taken a position, a
4 position one way or the other, or reached that conclusion.
5 So that is why it assumes facts not in evidence.
6 MR. JACKSON: Let me step back.
7 MR. CAMPBELL: I believe the way that it is phrased is
8 in an argumentative manner.
9 MR. JACKSON: Far be it from me to argue with the
10 Department of Fish and Game.
11 You are the Department of Fish and Game's steelhead
12 expert?
13 MR. MCEWAN: Yes, that is correct.
14 MR. JACKSON: You have done no studies as to the
15 affects of these petitions on water temperatures below
16 McClure Dam in the months of July, August, September?
17 MR. CAMPBELL: Objection. Asked and answered.
18 C.O. STUBCHAER: Sustained.
19 MR. JACKSON: I am trying to get back to the question.
20 Then, can you say that there will be no unreasonable
21 affect on steelhead from the granting of this petition?
22 MR. MCEWAN: No, I can't say that.
23 MR. JACKSON: Do you know of any study which could make
24 that conclusion?
25 MR. MCEWAN: The conclusion being?
CAPITOL REPORTERS (916) 923-5447 14506
1 MR. JACKSON: That there is no unreasonable affect on
2 steelhead from the granting of these petitions?
3 MR. MCEWAN: No. I am not aware of any studies showing
4 that.
5 MR. JACKSON: Let's look at it a little lower in the
6 river. The four petitions from Merced Irrigation District,
7 Turlock and Modesto Irrigation District and Oakdale and
8 South San Joaquin Irrigation District, and we will limit it
9 to those at the present time, proposed to add the San
10 Joaquin River upstream of Vernalis to the place of use for
11 the affected water rights for the purpose of fish and
12 wildlife enhancements on the main stem of the San Joaquin
13 River above Vernalis.
14 How would this water help fish in that stretch of the
15 river?
16 MR. MCEWAN: Are you referring to the springtime fish
17 flush?
18 MR. JACKSON: The petition says -- do you have a
19 petition in front of you?
20 MR. MCEWAN: No, I don't.
21 MR. JACKSON: Can you borrow your counsel's copy?
22 MR. CAMPBELL: The hearing notice? What page?
23 MR. JACKSON: Two. Under substance of the petition for
24 change.
25 Would you read the first sentence, please, of that
CAPITOL REPORTERS (916) 923-5447 14507
1 paragraph?
2 MR. MCEWAN: Under the petitions for long-term
3 change, the San Joaquin River upstream of
4 Vernalis would be added to the place of use
5 of the affected water rights and fish and
6 wildlife enhancement would be added as a
7 purpose of use. (Reading.)
8 MR. JACKSON: Now calling your attention to the
9 designated change area, the San Joaquin River upstream of
10 Vernalis, what fish and wildlife benefit upstream of
11 Vernalis, not downstream at Old River or upstream of
12 Vernalis, would be benefited by taking this water from the
13 summer water below the dams and adding that to the river in
14 that reach?
15 MR. MCEWAN: During?
16 MR. JACKSON: During April and May.
17 MR. MCEWAN: I suppose it would have some benefit to
18 steelhead in that the fish that are ready to migrate would
19 be facilitated. I think there would be some benefit there
20 in that.
21 MR. JACKSON: Have you quantified that benefit?
22 MR. MCEWAN: No.
23 MR. JACKSON: Do you know whether that benefit would
24 override the benefit of less water being below the dam in
25 the summer months?
CAPITOL REPORTERS (916) 923-5447 14508
1 MR. MCEWAN: No, I don't know that.
2 MR. JACKSON: Can you, then, say that you are sure that
3 the benefits on the San Joaquin River would outweigh the
4 detriment of moving the water?
5 MR. CAMPBELL: Objection.
6 MR. O'LAUGHLIN: Argumentative. Lacks foundation.
7 MR. CAMPBELL: Assumes facts not in evidence.
8 MR. JACKSON: None of those are right.
9 C.O. STUBCHAER: Rephrase the question, please.
10 MR. JACKSON: Do you have any study that would balance
11 the movement of the water from July, August and September
12 below the dam to the main stem of the river in April and May?
13 C.O. STUBCHAER: Mr. O'Laughlin.
14 MR. O'LAUGHLIN: Originally when these questions were
15 asked, they were asked as hypotheticals. The witness
16 testified that he had no knowledge of water movements in the
17 summertime on any of the particular river systems. So, in
18 taking that hypothetical, assuming that that is a fact now,
19 the witness has already said he can't testify to it. So it
20 is argumentative and mischaracterizes the witness'
21 testimony.
22 MR. CAMPBELL: And it essentially -- I would like to
23 object. It has essentially been asked and answered; this
24 witness has testified, I believe four times now, that he has
25 not conducted any specific studies along the lines of Mr.
CAPITOL REPORTERS (916) 923-5447 14509
1 Jackson's inquiry.
2 C.O. STUBCHAER: This question, I think, was any study,
3 not just his study.
4 Mr. Jackson.
5 MR. JACKSON: Yes. This has gotten more specific
6 because I am now asking about the petition and its claim
7 that it is for the purpose of fish and add wildlife upstream
8 of Vernalis. And I have been in this hearing for almost a
9 year and I've never heard one piece of evidence about
10 that. And I am just asking if there is any.
11 MR. O'LAUGHLIN: I have no problem with that question.
12 But Mr. Jackson has to lay a proper foundation that water is
13 actually being moved under these petitions from the months
14 that he has stated into the springtime so as to set up the
15 change, and no evidence has been presented. That, in fact,
16 Mr. Steiner specifically testified that that was not the
17 case that occurred.
18 MR. JACKSON: This is outrageous. Now we are
19 testifying. I will give him the benefit of the doubt and
20 say that he may just simply have blanked out. But if he
21 would like to look at San Joaquin River Group Agreement 103C
22 at page -- attachment three, Page 1 of 2, the Merced River
23 in the months of June in 1956 would be 215 less. In the
24 months of June in 1958 it would be 62,000 acre-feet less.
25 July would be 170 less.
CAPITOL REPORTERS (916) 923-5447 14510
1 I mean -- we are moving water from one time of the year
2 to another. There's no new water.
3 C.O. STUBCHAER: I think that it is not necessarily
4 from the months you stated. You could say assuming that the
5 water is moved from those months, then we can get on with it.
6 MR. JACKSON: Assuming that the water is moved from
7 those months, do you have any reason to believe that in a
8 balancing between the steelhead that are under the dam and
9 what may exist in the main stem of the river, that that
10 would be beneficial for fish and wildlife?
11 MR. BIRMINGHAM: I am going to object to the question
12 on grounds of relevance. These water right holders have
13 petitioned to change their beneficial use of water. I
14 suppose if the Board wants to ask the question, is it a
15 reasonable and beneficial use, the question that Mr. Jackson
16 is asking would be relevant.
17 But if these water right holders want to change the
18 purpose of use and the place of use, whether this witness
19 would use that water in the same manner because he has
20 conducted a balancing, is irrelevant to the question that is
21 before the Board.
22 C.O. STUBCHAER: Mr. Jackson.
23 MR. JACKSON: Mr. Stubchaer, these folks have come to
24 you and told you that they are going to improve the fish and
25 wildlife in the San Joaquin River above Vernalis and that is
CAPITOL REPORTERS (916) 923-5447 14511
1 the reason for doing the change. And in reality this is
2 simply a water transfer from them to the Bureau for which
3 they get royally paid for very little real water. I think
4 it is important to show that this petition is essentially
5 not for to the benefit of fish and wildlife.
6 C.O. STUBCHAER: I was going to rule and overrule the
7 objection, not for that reason.
8 MR. JACKSON: I will take it any way I can get it.
9 C.O. STUBCHAER: I am so tempted to make a statement
10 here that I am not supposed to do. I will say that there is
11 a big difference in the equation here, is the addition of
12 steelhead which you all have been talking about, in addition
13 to the salmon. And so there is a time of year issue, and I
14 will permit your hypothetical question to be answered.
15 MR. JACKSON: Whatever it was, would you read it back?
16 (Record read as requested.)
17 MR. MCEWAN: I don't know if I can answer that for fish
18 and wildlife.
19 MR. JACKSON: For steelhead?
20 MR. MCEWAN: I am sorry, could you read it back one
21 more time?
22 C.O. STUBCHAER: What do you mean by under the dam?
23 Could you explain that please?
24 MR. JACKSON: Sure.
25 The steelhead -- that the steelhead in the Merced
CAPITOL REPORTERS (916) 923-5447 14512
1 system, the rainbow trout in the Merced system are in the
2 river under the dam, below the dam.
3 MR. STUBCHAER: There is a difference, below the dam.
4 MR. JACKSON: Okay.
5 They are below the dam. Because of the dam they can't
6 go anywhere else. Now, you take some of the water that
7 would be there in the summer, hypothetically, and you move
8 it off in the spring down to the main stem of the river. In
9 your experience, do you have any evidence that that would be
10 in the overall benefit of the steelhead?
11 MR. MCEWAN: Based on my knowledge of steelhead and the
12 problems with steelhead in the Central Valley, I would have
13 to say that there could be problems with that, yes.
14 MR. JACKSON: Thank you.
15 I have no further questions.
16 C.O. STUBCHAER: Mr. O'Laughlin.
17 ---oOo---
18 CROSS-EXAMINATION OF CENTRAL DELTA PARTIES
19 BY SAN JOAQUIN RIVER GROUP AUTHORITY AND
20 OAKDALE IRRIGATION DISTRICT
21 BY MR. O'LAUGHLIN
22 MR. O'LAUGHLIN: Mr. McEwan, Tim O'Laughlin
23 representing Oakdale Irrigation District as well as the San
24 Joaquin River Group Authority.
25 I would like to go back, and since you have been
CAPITOL REPORTERS (916) 923-5447 14513
1 testifying at length, and understand a little more about
2 your background.
3 Did you receive a Bachelor's of Science?
4 MR. MCEWAN: Yes, I did.
5 MR. O'LAUGHLIN: Where from?
6 MR. MCEWAN: California State University, Sacramento.
7 MR. O'LAUGHLIN: What was that in?
8 MR. MCEWAN: Biological science.
9 MR. O'LAUGHLIN: Do you have a Master's?
10 MR. MCEWAN: Yes.
11 MR. O'LAUGHLIN: What is that in?
12 MR. MCEWAN: Biological science with an emphasis on
13 biological conservation.
14 MR. O'LAUGHLIN: When did you receive your Master's
15 degree?
16 MR. MCEWAN: 1990, I believe it was.
17 MR. O'LAUGHLIN: When did you begin to work for
18 California Department of Fish and Game?
19 MR. MCEWAN: 1983.
20 MR. O'LAUGHLIN: In what position were you at that time?
21 MR. MCEWAN: I was a seasonal aide, working on the wild
22 trout project.
23 MR. O'LAUGHLIN: When did you get assigned to steelhead
24 with the California Department of Fish and Game?
25 MR. MCEWAN: March of 1991.
CAPITOL REPORTERS (916) 923-5447 14514
1 MR. O'LAUGHLIN: There was a report that preceded the
2 Steelhead Restoration Management Plan for California,
3 California Department of Fish and Game, February 1996.
4 Did you write the report that came prior to this?
5 MR. MCEWAN: What was the name of the report?
6 MR. O'LAUGHLIN: Sure, I have a copy.
7 MR. MCEWAN: No, I did not.
8 MR. NOMELLINI: May we have the name of the report on
9 the record?
10 MR. O'LAUGHLIN: Just don't worry. I am getting there.
11 The name of the report is Central Valley Salmon and
12 Steelhead Restoration and Enhancement Plan, April 1990, by
13 the California Department of Fish and Game.
14 Did you write that report?
15 MR. MCEWAN: No, I did not.
16 MR. O'LAUGHLIN: Did you rely on that report of April
17 of 1990, Central Valley Salmon and Steelhead Restoration and
18 Enhancement Plan, in preparing your report in 1996?
19 MR. MCEWAN: I believe that I -- I believe it is in the
20 list of references. I probably did to a certain extent.
21 MR. O'LAUGHLIN: From the time you were hired -- what
22 was that year, again, to work on steelhead only?
23 MR. MCEWAN: 1991.
24 MR. O'LAUGHLIN: Was it your project, then, from 1991
25 through February of 1996 to get out a steelhead restoration
CAPITOL REPORTERS (916) 923-5447 14515
1 and management plan for California?
2 MR. MCEWAN: Yes, that was my main task.
3 MR. O'LAUGHLIN: When you were doing that task, do you
4 go out into the actual river systems of California and
5 conduct your own biological surveys or testing or reviews?
6 MR. MCEWAN: No, I did not. That was not the nature of
7 the project.
8 MR. O'LAUGHLIN: Why don't you describe it for us,
9 then? I am looking at this report, Steelhead Restoration
10 and Management Plan for California, Department of Fish and
11 Game, February 1996, what was the purpose of this report?
12 MR. MCEWAN: The purpose of this report was to create a
13 plan, a management plan, for the Department of Fish and Game
14 under the auspices of our SB2261 Program which was the
15 Salmon, Steelhead and Anadromous Fisheries Program for the
16 Department of Fish and Game.
17 MR. O'LAUGHLIN: Now, you mentioned earlier that
18 steelhead are not listed as an endangered species under the
19 California Endangered Species Acts; is that correct?
20 MR. MCEWAN: That is correct.
21 MR. O'LAUGHLIN: Have you worked on trying to get
22 steelhead listed under the California Endangered Species Act
23 as a listed species?
24 MR. CAMPBELL: Objection. Relevance.
25 C.O. STUBCHAER: Mr. O'Laughlin, could you explain the
CAPITOL REPORTERS (916) 923-5447 14516
1 relevance?
2 MR. O'LAUGHLIN: I'm following up on the direct
3 examination of Mr. Nomellini that was asking questions about
4 whether or not this species had been listed and the reasons
5 why. I just want to follow up on has it been listed and
6 where that process is.
7 C.O. STUBCHAER: Mr. Campbell.
8 MR. CAMPBELL: This is -- the purpose of this
9 proceeding is not to debate whether the State of California
10 should or should not list steelhead under the California
11 Endangered Species Act, what factors they should be
12 considering, what would go into that complex analysis. That
13 is way beyond the scope of this hearing and completely
14 irrelevant to the, as Mr. O'Laughlin describes it, very
15 narrow petitions that are before the Board.
16 C.O. STUBCHAER: I am going to permit this question to
17 be answered, but can see where you go from there.
18 MR. O'LAUGHLIN: Could you read back the question,
19 please?
20 (Record read as requested.)
21 MR. MCEWAN: I would have to say no to that question.
22 MR. O'LAUGHLIN: Now my understanding is that steelhead
23 have been listed under the federal Endangered Species Act;
24 is that correct?
25 MR. MCEWAN: That's correct.
CAPITOL REPORTERS (916) 923-5447 14517
1 MR. O'LAUGHLIN: Now, if you know, and some of these
2 questions are going to call for maybe something that is
3 outside of your expertise, but they are all questions if you
4 know. Now that the steelhead have been listed as an
5 endangered species and NMFS has entered the picture, does
6 NMFS' jurisdiction supersede your jurisdiction in what
7 should be done with steelhead?
8 MR. CAMPBELL: Objection. Calls for a legal
9 conclusion.
10 MR. O'LAUGHLIN: If you know.
11 MR. CAMPBELL: And irrelevant to the narrow scope of
12 the four change petitions that are before the Board today.
13 C.O. STUBCHAER: Mr. O'Laughlin, could you explain the
14 relevance.
15 MR. O'LAUGHLIN: What I wanted to get at is whether or
16 not -- the questions were asked by Mr. Nomellini concerning
17 the steelhead and restoration management plan for
18 California. My questions are going to whether or not this
19 plan has been superseded by NMFS entering the field and
20 taking jurisdiction and, therefore, making this plan no
21 longer valid.
22 C.O. STUBCHAER: Mr. Campbell.
23 MR. CAMPBELL: Mr. O'Laughlin is perfectly free to
24 argue that as a legal matter in his briefs, number one, and
25 Number 2, whether or not this plan has been superseded by
CAPITOL REPORTERS (916) 923-5447 14518
1 federal requirements is irrelevant to the change petitions.
2 C.O. STUBCHAER: I think it has to go with the weight
3 of the evidence, and that gets back to the affect on fish
4 and wildlife under the change petitions. So I will allow
5 the question to be answered.
6 MR. MCEWAN: Would you repeat it again.
7 MR. O'LAUGHLIN: Will the reporter please read back the
8 last question.
9 (Record read as requested.)
10 MR. MCEWAN: Well, I guess from a legal standpoint, it
11 is my understanding that they do. However, we are pretty
12 much in constant communication with the National Marine
13 Fisheries Service. We do consult with them and they do
14 consult with us over this issue.
15 MR. O'LAUGHLIN: Now, can you describe for me where you
16 fit in in the California Department of Fish and Game from a
17 management? Are you in the Sacramento office?
18 MR. MCEWAN: Yeah. I am in one of the Sacramento
19 offices. I work in the Watershed Restoration Branch.
20 MR. O'LAUGHLIN: If issues come up that involve
21 steelhead, are you the steelhead expert for the California
22 Department of Fish and Game?
23 MR. MCEWAN: Yes, yes, I am, yeah.
24 MR. O'LAUGHLIN: My understanding would be that if an
25 issue came up in regards to steelhead, that wherever it was
CAPITOL REPORTERS (916) 923-5447 14519
1 in the various reaches within the California Department of
2 Fish and Game, that people would contact you to get your
3 input; is that correct?
4 MR. MCEWAN: Theoretically. Yes, input is the key word
5 there.
6 MR. O'LAUGHLIN: Sometimes it may not happen that
7 people call you and things get done; is that correct?
8 MR. MCEWAN: That is correct, yes.
9 MR. O'LAUGHLIN: But the goal is to try to get as much
10 input from you as possible if a steelhead issue arise since
11 you are the steelhead expert; is that correct?
12 MR. MCEWAN: Theoretically.
13 MR. O'LAUGHLIN: When did you first become aware of the
14 San Joaquin River Agreement?
15 MR. MCEWAN: I first became aware of VAMP a year ago,
16 aware of its existence. I wasn't really familiar with the
17 specifics of it.
18 MR. O'LAUGHLIN: Has anyone from the California
19 Department of Fish and Game asked you to provide a review of
20 the San Joaquin River Agreement in regards to steelhead?
21 MR. MCEWAN: I would have to say, no.
22 MR. O'LAUGHLIN: Are you aware of a document entitled
23 Meeting Flow Objectives for the San Joaquin River Agreement
24 1999 to the year 2010, Environmental Impacts Statement and
25 Environmental Impact Report, dated January 28, 1999?
CAPITOL REPORTERS (916) 923-5447 14520
1 MR. MCEWAN: I am aware that it exists. I very
2 recently became aware that it exists, but I am not familiar
3 with the specifics of it at all. I haven't read or reviewed
4 it.
5 MR. O'LAUGHLIN: Are you aware that on Page 5.2 and
6 5.3 it lists the cooperating agencies' involvement in the
7 preparation of the EIS/EIR? Are you aware?
8 MR. CAMPBELL: Objection. Asked and answered. He said
9 he hasn't reviewed or read the document, so how could --
10 MR. O'LAUGHLIN: Let me go about it another way. I
11 would agree with that objection.
12 Are you aware of anyone from the California Department
13 of Fish and Game that was involved in the preparation of the
14 EIR/EIS for meeting flow objectives for the San Joaquin
15 River agreement?
16 MR. MCEWAN: That was involved in the preparation?
17 MR. O'LAUGHLIN: Yes.
18 MR. MCEWAN: I would have to say, no.
19 MR. O'LAUGHLIN: Do you know a person by the name of
20 Mr. Jeff Single, Environmental Services Division?
21 MR. MCEWAN: Jeff Single?
22 MR. O'LAUGHLIN: Yes.
23 MR. MCEWAN: No.
24 MR. O'LAUGHLIN: Do you know if the California
25 Department of Fish and Game prepared any comments on the
CAPITOL REPORTERS (916) 923-5447 14521
1 Draft EIR which eventually evolved into the Environmental
2 Impact Statement and Environmental Impact Report of January
3 28, 1999?
4 MR. MCEWAN: I would assume that we had, but I don't
5 know that. I have no personal knowledge of it.
6 MR. O'LAUGHLIN: If this is being handled out of
7 region, would it may be that a region would handle this
8 without specifically coming to you in Sacramento and running
9 it through your offices?
10 MR. MCEWAN: Yes, that is entirely possible.
11 MR. O'LAUGHLIN: So you have no basis as you sit here
12 today about understanding the impacts that are evaluated in
13 EIR/EIS Exhibit 103A as to steelhead; is that correct?
14 MR. MCEWAN: Specifics, that is correct.
15 MR. BIRMINGHAM: Mr. O'Laughlin in his last question
16 referred to San Joaquin River Group Authority Exhibit 103A
17 as the EIR/EIS. 103A that we have is a draft.
18 MR. O'LAUGHLIN: It should be final.
19 C.O. STUBCHAER: Ours is final.
20 MS. WHITNEY: Ours is final.
21 MR. BIRMINGHAM: Thanks, Tim. We'll get a final.
22 Thank you.
23 MR. O'LAUGHLIN: For once Westlands is behind in the
24 game. I love it. Finally got one on them.
25 MR. BRANDT: I'd object to that editorial.
CAPITOL REPORTERS (916) 923-5447 14522
1 MR. O'LAUGHLIN: If any party does not have the final
2 EIR/EIS, Exhibit 103A, if you would contact me, we will be
3 able to make those available to the parties.
4 Mr. McEwan, are you aware of when the first dam was
5 constructed on the Stanislaus River?
6 MR. MCEWAN: Generally.
7 MR. O'LAUGHLIN: What is your --
8 MR. MCEWAN: I can't give you a specific date.
9 MR. O'LAUGHLIN: What is your general understanding?
10 MR. CAMPBELL: I am going to object to this line of
11 questioning. I believe it is exactly the same line of
12 questions that Mr. Jackson offered that was objected to by
13 Mr. O'Laughlin and that objection was sustained by the Board
14 Chairman. That objection was relevance, that the dams are
15 there.
16 C.O. STUBCHAER: This was a question on the date, but I
17 don't know where you are going with it. Can you explain the
18 relevance to the last question? In any phase of the
19 hearing.
20 MR. O'LAUGHLIN: Yes, I will. The witness testified
21 earlier in regards to questions by Mr. Nomellini that there
22 was historical evidence that steelhead existed in the
23 tributaries and in the main stem of the San Joaquin River.
24 In regards to that he mentioned some testimony about some
25 interviews in regards to Indian tribes and some anecdotal
CAPITOL REPORTERS (916) 923-5447 14523
1 evidence.
2 What I am trying to do by my cross-examination of this
3 witness is to elucidate the facts of when the dams were
4 first constructed in the river that provided blockage to the
5 upstream habitat, thereby providing inference that steelhead
6 no longer existed in those rivers after that time period.
7 C.O. STUBCHAER: For the purpose of relating to his
8 prior testimony?
9 MR. O'LAUGHLIN: Yes.
10 C.O. STUBCHAER: I will permit it to proceed.
11 MR. MCEWAN: You are referring to the Stanislaus River?
12 MR. O'LAUGHLIN: Yes.
13 MR. MCEWAN: I believe that it was Goodwin Dam
14 somewhere in the 1920's.
15 MR. O'LAUGHLIN: As far as you know, there were no
16 other dams constructed on the Stanislaus River that would
17 block the upstream passage of steelhead prior to 1920; is
18 that correct?
19 MR. MCEWAN: As far as I know. I don't know. I would
20 have to go back and look through the literature again.
21 Sitting here right now, correct.
22 MR. O'LAUGHLIN: Let's focus, then, next on the
23 Tuolumne River. What is your understanding of when the
24 first dam was built that would provide blockage to steelhead
25 moving to the upstream habitat?
CAPITOL REPORTERS (916) 923-5447 14524
1 MR. MCEWAN: I believe it was LaGrange Dam, same time
2 period. Probably anywhere between 1880 and 1920.
3 MR. O'LAUGHLIN: So, as far as you know as you sit here
4 today, there were no other dams built prior to LaGrange that
5 would provide a blockage to steelhead trying to migrate up
6 to the upstream habitat?
7 MR. MCEWAN: As far as I know, yes.
8 MR. O'LAUGHLIN: Now on the Merced River?
9 MR. MCEWAN: I am not familiar enough on the Merced to
10 put forth a guess.
11 MR. O'LAUGHLIN: Now, in regards to this testimony that
12 you talked about earlier, testimony/discussion in regards to
13 the Indians.
14 Do you remember that testimony?
15 MR. MCEWAN: Yes.
16 MR. O'LAUGHLIN: I am assuming that somebody is
17 interviewing Indians in California; is that correct?
18 MR. MCEWAN: Uh-huh, yes.
19 MR. O'LAUGHLIN: You are relying on that for testimony
20 in evidence of steelhead in the San Joaquin River and its
21 tributaries; is that correct?
22 MR. MCEWAN: Yes.
23 MR. O'LAUGHLIN: Where were those interviews conducted
24 and in what time period?
25 MR. MCEWAN: It was around the 1920's by an
CAPITOL REPORTERS (916) 923-5447 14525
1 ethnographer by the last name of Latta, and I believe he was
2 in the vicinity of San Joaquin and the Kings Rivers on the
3 east side of -- in the foothills on the east side. Yokutz
4 Indian was the tribe.
5 MR. O'LAUGHLIN: Other than that instance by an
6 ethnographer -- I also have difficult with that word -- is
7 there any other testimony by Indians about historic
8 steelhead populations on either the Merced?
9 MR. MCEWAN: To my knowledge I don't know. I can't
10 answer that. Not to my knowledge.
11 MR. O'LAUGHLIN: The Tuolumne?
12 MR. MCEWAN: I can specifically about knowledge?
13 MR. O'LAUGHLIN: Ethnographer.
14 MR. MCEWAN: I am not aware of, no.
15 MR. O'LAUGHLIN: Stanislaus?
16 MR. MCEWAN: No. I don't know.
17 MR. O'LAUGHLIN: You wrote this report for the
18 California Department of Fish and Game in February of 1996;
19 is that correct?
20 MR. MCEWAN: No. I wrote it mostly in 1993. It was
21 published in 1996.
22 MR. O'LAUGHLIN: This is an approved California
23 Department of Fish and Game official publication?
24 MR. MCEWAN: Yes. To my knowledge, yes.
25 MR. O'LAUGHLIN: When you publish this within the
CAPITOL REPORTERS (916) 923-5447 14526
1 California Department of Fish and Game, you said you wrote
2 it in 1993.
3 MR. MCEWAN: Most of the writing was done in 1993.
4 MR. O'LAUGHLIN: I assume that in a publication like
5 this, this undergoes rigorous peer review within the
6 California Department of Fish and Game; is that correct?
7 MR. MCEWAN: Within the Department of Fish and Game,
8 within the resources agencies and the Governor's office.
9 MR. O'LAUGHLIN: So, this isn't just you standing out
10 there alone with your ideas and thoughts; this has gone
11 through a vigorous process of review, reiteration and
12 looking at the evidence and the conclusions in the
13 management plan; is that correct?
14 MR. MCEWAN: Yes.
15 MR. O'LAUGHLIN: On Page 21 there is a figure that is
16 put into this. It is called Historic and Present
17 Distribution of Steelhead in California.
18 Do you see that?
19 MR. MCEWAN: Yes.
20 MR. O'LAUGHLIN: I don't know if staff needs to see
21 this or the Board. There is a map of the State of
22 California and it shows historic and present. And in the
23 San Joaquin Valley, if I can characterize this correctly,
24 there is a big question mark.
25 Do you see that?
CAPITOL REPORTERS (916) 923-5447 14527
1 MR. MCEWAN: Yes.
2 MR. HERRICK: What page?
3 MR. O'LAUGHLIN: I am on Page 29, Figure 2, the
4 February 1996 report.
5 MR. HERRICK: Thank you.
6 MR. O'LAUGHLIN: Was it your understanding when you
7 drafted this report and it went through review, that at the
8 time it was your understanding that there was some question
9 as to whether or not steelhead were present in the San
10 Joaquin Valley drainage basins?
11 MR. MCEWAN: That is -- are you looking -- you are
12 referring to the present distribution?
13 MR. O'LAUGHLIN: Yes.
14 MR. MCEWAN: That is referring to the very little
15 information we had at the time.
16 MR. O'LAUGHLIN: Now you mentioned that earlier in your
17 testimony, that since this report had been written that you
18 had spent time looking for additional evidence of steelhead
19 on the San Joaquin River and its tributaries; is that
20 correct?
21 MR. MCEWAN: That's correct.
22 MR. O'LAUGHLIN: How much time would you say you have
23 spent in the last six years trying to obtain that
24 information?
25 MR. CAMPBELL: Objection. Relevance.
CAPITOL REPORTERS (916) 923-5447 14528
1 C.O. STUBCHAER: Mr. O'Laughlin.
2 MR. O'LAUGHLIN: All I am trying to establish here is
3 that the witness has made a statement in the prior testimony
4 based on the examination by Mr. Nomellini, that steelhead
5 occur in the river systems both on the Tuolumne, Merced and
6 Stanislaus River. And all I am doing is pointing out that
7 in the report that he drafted there was a question mark.
8 So that the testimony that he has given here today is
9 in conflict or may be apparent conflict with his prior
10 testimony. I am trying to elucidate the facts and evidence
11 that have changed their opinion since the report was issued
12 in 1996 to the present time where they are now of the firm
13 opinion that steelhead exist in those rivers.
14 MR. CAMPBELL: A comment. First of all, Mr.
15 O'Laughlin mischaracterizes what -- this is prior testimony;
16 it is not testimony. Second, the specific question is how
17 much time did he spend undergoing these studies. I just
18 find it to be of little probative value to the area of
19 inquiry that Mr. O'Laughlin has outlined.
20 MR. O'LAUGHLIN: I think and with any background in
21 regards to the witness testifying about the scope and
22 extent of the evidence and why there may be a change in
23 that, it is clear to understand the extent of the effort
24 undertaken to identify how they come to that change. If
25 they spent a half hour and somebody went out and looked at
CAPITOL REPORTERS (916) 923-5447 14529
1 the sky and said, "Well, we now have the opinion that
2 steelhead exist in the rivers," that would not have much
3 value. If they spent lots of time and have amassed a great
4 deal of evidence --
5 C.O. STUBCHAER: Okay.
6 MR. O'LAUGHLIN: My point is made.
7 C.O. STUBCHAER: The question may be answered. The
8 questioner may continue.
9 Will you tell us which page that was on? We just got
10 it.
11 MR. O'LAUGHLIN: The page with the chart is Page 21.
12 MR. BIRMINGHAM: Of the San Joaquin River Group
13 Authority 43.
14 MR. O'LAUGHLIN: That is correct.
15 MR. MCEWAN: Are you referring to all the evidence that
16 I used to come to this new conclusion?
17 MR. O'LAUGHLIN: Yes.
18 MR. MCEWAN: That is a difficult question to answer
19 considering it has been -- as it comes up and as I deal with
20 it, I would probably guess on the order of -- looking at
21 that particular issue I would have to say a couple of weeks,
22 off and on. That is not looking at a continuous time.
23 MR. O'LAUGHLIN: That is over time. You spend an hour
24 here and an hour there. Somebody goes and tells you
25 something, and then you go and you find a new report and you
CAPITOL REPORTERS (916) 923-5447 14530
1 review it. Understanding that.
2 Do you have within your files that you maintain a file
3 that sets forth the evidence that you said earlier that you
4 had to go back and look at your file? Do you have a file
5 within your possession at the California Department of Fish
6 and Game that sets forth this new factual basis for your
7 understanding of the presence of steelhead in the San
8 Joaquin River and its tributaries?
9 MR. MCEWAN: Yes, I have to say that I do.
10 MR. O'LAUGHLIN: What do you call that file?
11 MR. MCEWAN: Distribution. That is -- actually I have
12 several. I have -- where this evidence occurs is in a file
13 distribution that I maintain to keep these references
14 together so I can look at them when I have them. I also
15 have it in evidence of comments that the Department has
16 provided to the National Marine Fishery Service. I also
17 have a separate Stanislaus River file, box actually, and one
18 for the other tributaries on the San Joaquin.
19 MR. O'LAUGHLIN: When you look at the other
20 tributaries, do you include the San Joaquin River upstream
21 of the confluence with the Merced as a separate file, or do
22 you just look at the Stanislaus, Tuolumne and Merced?
23 MR. MCEWAN: The Stanislaus separately and the Tuolumne
24 and Merced and San Joaquin as one, as one box of
25 information.
CAPITOL REPORTERS (916) 923-5447 14531
1 MR. O'LAUGHLIN: I am just curious; why is the
2 Stanislaus separate?
3 MR. MCEWAN: I've got more information. It takes a box
4 all to itself.
5 C.O. STUBCHAER: Now I do worry about the relevance.
6 MR. O'LAUGHLIN: That was an aside question. I will
7 move on.
8 Can you -- I have always been perplexed by this as we
9 move through this process. What is the endangered species?
10 Is it a steelhead or is it a rainbow trout?
11 MR. CAMPBELL: Objection. I believe he misstates the
12 witness' earlier testimony. He testified that it was a
13 threatened species.
14 MR. O'LAUGHLIN: Threatened, excuse me. As a
15 threatened species, is it a steelhead or a rainbow trout?
16 MR. MCEWAN: My answer to that question, whenever I get
17 asked that, is always yes. Steelhead are rainbow trout.
18 However, the National Marine Fisheries Service listed only
19 anadromous forms. Only steelhead are listed.
20 MR. O'LAUGHLIN: I want to go to a question, follow-up
21 to questions that were asked previously. If I am sitting
22 there below Goodwin Dam on the Stanislaus River and I pick
23 up two rainbow trout out of the river, and let's say they
24 are five weeks old, would I be able to tell that one is
25 going to go to the ocean and one isn't?
CAPITOL REPORTERS (916) 923-5447 14532
1 MR. MCEWAN: At five weeks old.
2 MR. O'LAUGHLIN: Yes.
3 MR. MCEWAN: No. But I think the important point of
4 that question is neither does that fish.
5 MR. O'LAUGHLIN: This could only happen in California,
6 truly. It doesn't know what it is. Does it have to go to a
7 shrink -- I am sorry. Strike that question.
8 Explain to me, and I have been in a lot of meetings,
9 but now that I have the expert here, I would like to know
10 what is it that makes that fish that doesn't know what it's
11 going to be yet turn into a steelhead that migrates out to
12 the ocean?
13 MR. MCEWAN: Well, that has been the focus of studies
14 in the past ten years, mostly in Washington and Oregon:
15 What is the determining factor of whether or not this
16 juvenile rainbow trout goes to the ocean and becomes a
17 steelhead or stays in the stream and matures and becomes an
18 adult without ever going to the ocean?
19 It appears from the literature, the studies that have
20 been done, both on steelhead and rainbow trout and on
21 coastal cutthroat trout and on anadromous brown trout in
22 Europe, that the determining factor is mostly, not entirely,
23 but mostly environmental. There is a genetic component,
24 but there is also -- bigger component is environmental. And
25 it appears that it is -- the biggest factor are growth rates
CAPITOL REPORTERS (916) 923-5447 14533
1 in the early life history of the fish. If the fish are
2 feeding well, growing very fast as very young fish, those
3 fish have a tendency to stay in the river and not go to the
4 ocean. The ones that get displaced and do not feed well, do
5 not grow as fast, those are the ones that might start
6 migrating. And as they are migrating, they may migrate down
7 to another portion of the stream. They may go to the
8 estuary or all the way to the open ocean.
9 MR. O'LAUGHLIN: That was my follow-up question. You
10 could have -- is there a -- let me ask it a different way.
11 Is there a smoltification index for steelhead?
12 MR. MCEWAN: Yes, there is.
13 MR. O'LAUGHLIN: If a steelhead is moving down, let's
14 say, from Goodwin Dam down to the mouth of the Stanislaus
15 and San Joaquin River, and let's say it is halfway down that
16 stretch, and it appears to have a smolt index of four, would
17 you know if you picked that fish out of that river that it
18 was going to the ocean or that it was just moving downstream
19 and staying within the Stanislaus River?
20 MR. MCEWAN: Let me make sure I know which
21 smoltification index -- which protocol you are talking
22 about. There is one that I believe Steve Kramer &
23 Associates are using on the Stanislaus that classifies a
24 smolt as one, two or three, a juvenile fish as one, two or
25 three.
CAPITOL REPORTERS (916) 923-5447 14534
1 There is one that the IEP Steelhead Project work team
2 is using that puts them into five different categories. Do
3 you want me to go through what those are?
4 MR. O'LAUGHLIN: No, I know about them. I want to use
5 the IEP one. We have this steelhead there that is a four.
6 Do we know that that is going to go to the ocean or stay
7 within the Stanislaus River?
8 MR. MCEWAN: Indications are that it is moving to the
9 ocean.
10 MR. O'LAUGHLIN: Is there a line within the IEP
11 measurement of smoltification that you can tell at a certain
12 stage, is it two or three or four, that a steelhead that's
13 smoltified to that degree is actually going to go to the
14 ocean?
15 MR. MCEWAN: Smoltification process is preparation of
16 the fish, metabolism, for life in salt water, to be able to
17 live in a salt water environment. If it is undergoing
18 smoltification, it is changing its appearance. So the fact
19 that its appearance is changing to what is the classic
20 smolt, which is a very silvery fish, very faded marks, very
21 deciduous scales, the fact that is an outward appearance
22 that you can see is an indication that the psychological
23 change is taking place. Now, whether it does go to the
24 ocean or not, it depends on the individual fish. It may be
25 eaten before it gets down there. But it is physiologically
CAPITOL REPORTERS (916) 923-5447 14535
1 adopting to life in saltwater; it is on its way to
2 saltwater.
3 MR. O'LAUGHLIN: A couple quick questions in regards --
4 do you have a hydrology degree?
5 MR. MCEWAN: No, I don't.
6 MR. O'LAUGHLIN: Have you done any modeling of
7 reservoirs or reservoir temperatures?
8 MR. MCEWAN: No, I have not.
9 MR. O'LAUGHLIN: You had some questions earlier in
10 regards to temperature. Let me ask you this: Do you know
11 what the affect would be of carryover storage on temperature
12 of a reduction in reservoir of 2,000,000 acre-feet if there
13 was 22,000 acre-feet of less carryover on temperature
14 downstream?
15 MR. MCEWAN: Could you rephrase that again?
16 MR. O'LAUGHLIN: Take a reservoir. It has 2,000,000
17 acre-feet in it. We have reduced it by 22,000 acre-feet.
18 Can you tell me what the affect would be on temperature
19 downstream from that reservoir?
20 MR. MCEWAN: Not based on just the picture you've
21 painted, no.
22 MR. O'LAUGHLIN: You in your testimony today are not
23 taking a position vis-a-vis the San Joaquin River Agreement
24 and its effects on steelhead, are you?
25 MR. MCEWAN: No, I am not.
CAPITOL REPORTERS (916) 923-5447 14536
1 MR. O'LAUGHLIN: In fact, that is a position that is
2 taken by the California Department of Fish and Game and not
3 you as an individual biologist; is that correct?
4 MR. MCEWAN: Yes.
5 MR. O'LAUGHLIN: One final question: In regards to
6 fish screens, are those fish screens just on the San Joaquin
7 Rivers and its tributaries or are there also fish screens in
8 the Delta?
9 MR. MCEWAN: What about them?
10 MR. O'LAUGHLIN: You were talking earlier that there
11 was a problem with fish screens causing impacts to
12 steelhead. I was wondering if that is just in regards to
13 screens on the San Joaquin River and its tributaries or also
14 in the Delta.
15 MR. MCEWAN: There is a problem, yeah, with unscreened
16 diversions in the Delta as well, yes.
17 MR. O'LAUGHLIN: Thank you.
18 I have no further questions.
19 Thank you.
20 C.O. STUBCHAER: Thank you.
21 Mr. Herrick.
22 MR. HERRICK: I have no questions.
23 C.O. STUBCHAER: Staff.
24 MR. HOWARD: No questions.
25 C.O. STUBCHAER: Mr. Brown.
CAPITOL REPORTERS (916) 923-5447 14537
1 C.O. BROWN: No, sir.
2 C.O. STUBCHAER: That concludes the
3 cross-examination.
4 Let's see, do you have redirect?
5 MR. NOMELLINI: I do, brief redirect.
6 ---oOo--
7 REDIRECT BY CENTRAL DELTA PARTIES
8 BY MR. NOMELLINI
9 MR. NOMELLINI: Mr. McEwan, Mr. Robbins asked you a
10 question about steelhead on the Merced, and he referred you
11 to Page 43 of the report. And you had indicated in
12 response, I believe, that you had to -- you couldn't recall
13 the specific information and would have to look in your
14 file.
15 Do you recall that question?
16 MR. MCEWAN: Yeah. I believe the question was what is
17 its historical information.
18 MR. NOMELLINI: Right. What specific information that
19 you might have with regard to steelhead on the Merced. I
20 call your attention to Page 45 and the second paragraph from
21 the bottom, which reads:
22 Steelhead were also observed in the Tuolumne
23 River in 1983 and a few large rainbow trout
24 that appeared to be steelhead entered the
25 Merced River hatchery every year (Bill
CAPITOL REPORTERS (916) 923-5447 14538
1 Laudermilk, DFG Senior Fishery Biologist,
2 personal communication). (Reading.)
3 Do you see that?
4 MR. MCEWAN: Yes.
5 MR. NOMELLINI: Is that the information that you would
6 cite as to the evidence of steelhead on the Merced?
7 MR. MCEWAN: Yeah, that is one. I think in the
8 previous question I was -- I believe I was answering that as
9 to what is the historical information. That I could not
10 recall. Yeah, this is one. This is one of the anecdotal
11 information that I referred to.
12 MR. NOMELLINI: Mr. O'Laughlin asked you a question as
13 to whether or not you had worked to get steelhead listed
14 under the state Endangered Species Act.
15 Do you recall that question?
16 MR. MCEWAN: Yes.
17 MR. NOMELLINI: And you said you have not worked to get
18 steelhead listed under the state Endangered Species Act; is
19 that correct?
20 MR. MCEWAN: That's correct.
21 MR. NOMELLINI: Were you told -- strike that.
22 Were you instructed not to work to get steelhead listed
23 under the state Endangered Species Act?
24 MR. MCEWAN: No.
25 MR. NOMELLINI: Is there any reason why you did not
CAPITOL REPORTERS (916) 923-5447 14539
1 work to get state listing for steelhead?
2 MR. MCEWAN: I think the main reason -- well, outside
3 -- it is my understanding the normal process is for state
4 listing for a petitioner to petition the Fish and Game
5 Commission to list. I do believe, I am not positive, but I
6 believe there is a -- there is an ability to, a mechanism
7 within the state act for the Department of Fish and Game to
8 initiate that action. I am not positive, but that is the
9 case, I am pretty sure, the norm.
10 MR. NOMELLINI: Did you finish?
11 MR. MCEWAN: No. Mostly in my line of work most of
12 what I do, nearly all of what I do, deals with restoration.
13 And this question that has come up in my mind, whether or
14 not I should pursue this, and most of the time I felt that
15 it is not a worthwhile expenditure of my time to do that,
16 especially considering that there is a federal listing.
17 MR. NOMELLINI: Mr. O'Laughlin called your attention to
18 Page 21 of San Joaquin River Agreement Exhibit 43, which was
19 the page that had a map of California, one historic and one
20 had a designation as present.
21 Do you have that in front of you?
22 MR. MCEWAN: Yes, I do.
23 MR. NOMELLINI: Calling your attention to historic, is
24 the river to the south in what appears to be the Central
25 Valley the Kings River or the San Joaquin?
CAPITOL REPORTERS (916) 923-5447 14540
1 C.O. STUBCHAER: Page number, again?
2 MR. NOMELLINI: Page 21.
3 C.O. STUBCHAER: Thank you.
4 MR. MCEWAN: I believe that is meant to show the Kings
5 River. I am not positive. And, again, this is not
6 representing every single river in California. This is
7 meant to be, more or less, a range map, but I believe it was
8 the Kings River.
9 MR. NOMELLINI: That is all I had in redirect, Mr.
10 Chairman.
11 Thank you.
12 C.O. STUBCHAER: Thank you, Mr. Nomellini.
13 Recross? Anyone for recross?
14 Seeing none, Mr. Nomellini, do you have any exhibits?
15 The exhibit you have been using is already in, as I
16 understand it.
17 MR. NOMELLINI: I had no new exhibits. Everything I
18 referred to was existing and already in evidence.
19 C.O. STUBCHAER: Okay. I think that concludes the
20 examination of this witness, this panel.
21 Mr. Campbell.
22 MR. CAMPBELL: Except for his dental examination
23 tomorrow.
24 C.O. STUBCHAER: Mr. O'Laughlin, did you want to
25 discuss further the order of proceeding, order of appearance
CAPITOL REPORTERS (916) 923-5447 14541
1 I should say, and --
2 Mr. Brandt.
3 MR. BRANDT: Mr. Lecky from the National Marine Fishery
4 Service has agreed to appear for testimony on Tuesday
5 morning of next week.
6 C.O. STUBCHAER: That is the 22nd?
7 MR. BRANDT: Correct.
8 MR. O'LAUGHLIN: We will follow that up with testimony
9 by Mr. Hildebrand. There is still two pending motions that
10 we have to hear. My understanding is Mr. Burke from the
11 United States Bureau of Reclamation will be here on
12 Wednesday. Mr. Ploss will also, I have just been informed
13 by Mr. Brandt, will be here on Wednesday as well. The
14 testimony that we have for Friday is Mr. Wayne White -- I
15 mean Thursday, is Mr. Wayne White from U.S. Fish and
16 Wildlife Service.
17 We are working to try to backfill the remainder of that
18 day. We've presently contacted some witnesses who might be
19 out of the state, see if they are available.
20 If we have time right now, I would like to put on one
21 more witness today, if possible. I think his testimony will
22 be fairly short.
23 MR. NOMELLINI: Is there direct testimony that was
24 produced in written form by Mr. Fults?
25 MR. O'LAUGHLIN: Yes. It was submitted -- it is San
CAPITOL REPORTERS (916) 923-5447 14542
1 Joaquin River Group Authority Exhibit 112. It has two
2 attachments, 112A and 112B.
3 MR. NOMELLINI: If you say you sent it, we got it.
4 He needs to be sworn in.
5 (Oath administered by C.O. Stubchaer.)
6 ---oOo---
7 DIRECT EXAMINATION OF SAN JOAQUIN RIVER GROUP AUTHORITY
8 BY MR. O'LAUGHLIN
9 MR. O'LAUGHLIN: Might be easier if I do it from here.
10 Mr. Fults, could you state your name for the record.
11 MR. FULTS: Dan M. Fults.
12 MR. O'LAUGHLIN: Who are you presently employed by?
13 MR. FULTS: I am an employee of the Friant Water
14 Authority.
15 MR. O'LAUGHLIN: In front of you is a testimony that
16 has been marked San Joaquin River Group Authority Exhibit
17 112. Did you prepare that testimony, Mr. Fults?
18 MR. FULTS: Yes.
19 MR. O'LAUGHLIN: Did you attach the exhibits to that
20 testimony, Mr. Fults?
21 MR. FULTS: Yes.
22 MR. O'LAUGHLIN: In your testimony you state that as a
23 member of the Friant Water User Authority that you were the
24 project manager for the EIR/EIS for the San Joaquin River
25 Agreement, implementing the flow objectives 1999 to 2010; is
CAPITOL REPORTERS (916) 923-5447 14543
1 that correct?
2 MR. FULTS: Yes.
3 MR. O'LAUGHLIN: As part of that, attached as 112A is a
4 Notice of Determination that was filed with the Office of
5 Planning and Research; is that correct?
6 MR. FULTS: Yes.
7 MR. O'LAUGHLIN: Is that a true and correct copy of the
8 Notice of Determination that was filed?
9 MR. FULTS: Yes.
10 MR. O'LAUGHLIN: Also attached to your testimony is San
11 Joaquin River Agreement 112B, which is the resolution of the
12 San Joaquin River Group Authority adopting findings pursuant
13 to California Environmental Quality Act, et seq. Is that a
14 true and correct copy of the resolution adopted by the San
15 Joaquin River Group Authority, Mr. Fults?
16 MR. FULTS: Yes, it is.
17 MR. O'LAUGHLIN: Mr. Fults, is it correct that in the
18 preparation of the EIR/EIS that you were project manager
19 along with Mr. Mike Delamore from the United States Bureau
20 of Reclamation?
21 MR. FULTS: Yes, that is true.
22 MR. O'LAUGHLIN: As project manager, you were not
23 responsible for the technical input to the report but more
24 of the process and documentation and planning process; is
25 that correct?
CAPITOL REPORTERS (916) 923-5447 14544
1 MR. FULTS: Yes, that's true.
2 MR. O'LAUGHLIN: I have no further questions of this
3 witness.
4 C.O. STUBCHAER: Thank you.
5 Who wishes to cross-examine Mr. Fults?
6 Mr. Nomellini, Mr. Jackson, Mr. Herrick.
7 Do you have any preference as to order? I will let you
8 decide.
9 MR. JACKSON: I need 45 minutes.
10 C.O. STUBCHAER: You need 45 minutes?
11 MR. JACKSON: I think so.
12 C.O. STUBCHAER: Mr. Nomellini, how long do you need?
13 MR. NOMELLINI: I don't need very long. I can go
14 first.
15 ---oOo---
16 CROSS-EXAMINATION OF SAN JOAQUIN RIVER GROUP AUTHORITY
17 BY CENTRAL DELTA PARTIES
18 BY MR. NOMELLINI
19 MR. NOMELLINI: Mr. Fults, Dante John Nomellini for
20 Central Delta Parties.
21 Mr. Fults, do you know what analysis was made, if any,
22 of the impact of the San Joaquin River Agreement on
23 steelhead in the Merced River?
24 MR. FULTS: San Joaquin River Agreement?
25 MR. NOMELLINI: Yes.
CAPITOL REPORTERS (916) 923-5447 14545
1 As I understood your testimony, you were a coleader on
2 the preparation --
3 MR. FULTS: In the EIS?
4 MR. NOMELLINI: In the Draft EIS/EIR, yes.
5 MR. FULTS: There was -- generally, we had some
6 technical specialists look at that.
7 MR. NOMELLINI: Do you know or recall who you had look
8 at the impact of the San Joaquin River Agreement on
9 steelhead in the Merced?
10 MR. FULTS: Not specifically.
11 MR. NOMELLINI: Do you know whether or not steelhead on
12 the Tuolumne were -- strike that.
13 Do you know whether or not impact of the San Joaquin
14 River Agreement on steelhead in the Tuolumne was analyzed in
15 the EIS/EIR?
16 MR. FULTS: It was considered in the EIS/EIR on the
17 Tuolumne.
18 MR. NOMELLINI: Do you know whether or not the impact
19 was analyzed?
20 MR. FULTS: Depends on what you mean by "analyzed." It
21 was considered. It was addressed.
22 MR. NOMELLINI: Was the consideration that there were
23 no steelhead on the Tuolumne and, therefore, there was no
24 analysis of the potential impact?
25 MR. FULTS: Our technical specialist reviewed and
CAPITOL REPORTERS (916) 923-5447 14546
1 considered the steelhead and the impacts that may occur to
2 them in the document.
3 MR. NOMELLINI: Do you know whether or not it was
4 concluded that since there were no steelhead on the Tuolumne
5 that no analysis was required?
6 MR. FULTS: That is the general conclusion.
7 MR. NOMELLINI: Is that true with regard to the
8 Merced?
9 MR. FULTS: There was much more work accomplished on
10 the Merced to result in conclusions that there wouldn't be
11 impacts.
12 MR. NOMELLINI: On the Merced there was no assumption
13 that there were no steelhead and, therefore, further
14 analysis was done?
15 MR. FULTS: Further analysis in terms of discussion and
16 review of the literature.
17 MR. NOMELLINI: Now with regard to the Stanislaus, do
18 you recall whether or not the Draft EIS/EIR referred to by
19 you addressed impacts on steelhead?
20 MR. FULTS: The steelhead, again, were considered in
21 the analysis of the impacts.
22 MR. NOMELLINI: Is it correct that there was no
23 assumption that -- well, inartful question. Let me
24 withdraw.
25 C.O. STUBCHAER: It is late in the day.
CAPITOL REPORTERS (916) 923-5447 14547
1 MR. NOMELLINI: I get in that trap all the time, Mr.
2 Chairman.
3 Did the Draft EIS/EIR that you referred assume that
4 there were no steelhead on the Stanislaus?
5 MR. FULTS: The analysis and review concluded that
6 there were no steelhead.
7 MR. NOMELLINI: On the Stanislaus?
8 MR. FULTS: On the Stanislaus.
9 MR. NOMELLINI: With regard to the San Joaquin River
10 upstream of the Merced, what was the conclusion as to the
11 presence of steelhead in the reach of the river above the
12 confluence with the Merced?
13 MR. FULTS: Well, we found no substantial evidence.
14 MR. NOMELLINI: Therefore, there was no analysis of
15 impacts on steelhead?
16 MR. FULTS: We made that conclusion.
17 MR. NOMELLINI: That is all I have.
18 Thanks.
19 C.O. STUBCHAER: Mr. Herrick, how long will yours
20 take?
21 MR. HERRICK: Without pleading too much ignorance, I
22 didn't get a copy of the testimony. I have a copy of the
23 EIR, certainly, but that was not through the document
24 process. If the Board doesn't mind losing eight minutes
25 because of me, I would rather start when we come back with
CAPITOL REPORTERS (916) 923-5447 14548
1 Mr. Jackson, if you don't mind.
2 C.O. STUBCHAER: All right.
3 MR. HERRICK: My cross will not be long, anyway.
4 C.O. STUBCHAER: That is fine.
5 Mr. Fults, can you be here the next hearing day which
6 is Tuesday the 22nd?
7 MR. O'LAUGHLIN: We will have him first. No, no. Mr.
8 Lecky will be here first thing Tuesday morning. We'll have
9 to bring Mr. Fults back at a later date. I was assuming
10 that the testimony with regards to the Notice of
11 Determination in the resolution was going to be fairly
12 short. We will bring Mr. Fults back, hopefully, on the
13 afternoon of Tuesday. Mr. Lecky is an extremely busy man.
14 He is flying in from, I forget where, to testify. So we
15 have made a firm time to put him on at 9:00 a.m. on
16 Tuesday.
17 C.O. STUBCHAER: Is Mr. Hildebrand following?
18 MR. O'LAUGHLIN: We will hopefully have Mr. Fults and
19 start Mr. Hildebrand.
20 C.O. STUBCHAER: All right, fine.
21 Now, Mr. Brandt, does that satisfy?
22 MR. BRANDT: That is fine. That was my concern.
23 C.O. STUBCHAER: Any other comments or business people
24 want to discuss?
25 Staff have any comments?
CAPITOL REPORTERS (916) 923-5447 14549
1 MS. LEIDIGH: No.
2 C.O. STUBCHAER: We are adjourned until 9:00 a.m. on
3 Tuesday, June 22nd.
4 (