STATE WATER RESOURCES CONTROL BOARD PUBLIC HEARING 1998 BAY-DELTA WATER RIGHTS HEARING HELD AT 901 P STREET SACRAMENTO, CALIFORNIA THURSDAY, JUNE 22, 1999 9:00 A.M. Reported by: MARY GALLAGHER, CSR #10749 CAPITOL REPORTERS (916) 923-5447 1 APPEARANCES ---oOo--- 2 3 BOARD MEMBERS: 4 JAMES STUBCHAER, CO-HEARING OFFICER JOHN W. BROWN, CO-HEARING OFFICER 5 MARY JANE FORSTER 6 STAFF MEMBERS: 7 THOMAS HOWARD - Supervising Engineer 8 VICTORIA A. WHITNEY - Senior Engineer 9 DAVID G. CORNELIUS - Senior Water Resources Control Engineer 10 JIM CANADAY - Environmental Specialist 11 COUNSEL: 12 WILLIAM R. ATTWATER - Chief Counsel 13 WALTER PETTIT - Executive Director BARBARA LEIDIGH - Senior Staff Counsel 14 15 ---oOo--- 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 15553 1 REPRESENTATIVES 2 PRINCETON CODORA GLENN IRRIGATION DISTRICT, et al. 3 FROST, KRUP & ATLAS 4 134 West Sycamore STreet Willows, California 95988 5 BY: J. MARK ATLAS, ESQ. 6 JOINT WATER DISTRICTS: 7 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 8 Oroville, California 95965 BY: WILLIAM H. BABER, III, ESQ. 9 CALIFORNIA SPORTFISHING PROTECTION ALLIANCE: 10 ROBERT J. BAIOCCHI 11 P.O. Box 357 Quincy, California 95971 12 BELLA VISTA WATER DISTRICT: 13 BRUCE L. BELTON, ESQ. 14 2525 Park Marina Drive, Suite 102 Redding, California 96001 15 WESTLANDS WATER DISTRICT: 16 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 17 400 Capitol Mall, 27th Floor Sacramento, California 95814 18 BY: THOMAS W. BIRMINGHAM, ESQ. JOHN RUBIN, ESQ. 19 THE BAY INSTITUTE OF SAN FRANCISCO: 20 GRAY BOBKER 21 55 Shaver Street, Suite 330 San Rafael, California 94901 22 CITY OF ANTIOCH, et al.: 23 FREDERICK BOLD, JR., ESQ. 24 1201 California Street, Suite 1303 San Francisco, California 94109 25 CAPITOL REPORTERS (916) 923-5447 15554 1 REPRESENTATIVES 2 LEAGUE OF WOMEN VOTERS: 3 ROBERTA BORGONOVO 4 2480 Union Street San Francisco, California 94123 5 UNITED STATES DEPARTMENT OF THE INTERIOR: 6 OFFICE OF THE SOLICITOR 7 2800 Cottage Way, Roon E1712 Sacramento, California 95825 8 BY: ALF W. BRANDT, ESQ. 9 CALIFORNIA URBAN WATER AGENCIES: 10 BYRON M. BUCK 455 Capitol Mall, Suite 705 11 Sacramento, California 95814 12 RANCHO MURIETA COMMUNITY SERVICES DISTRICT: 13 MCDONOUGH, HOLLAND & ALLEN 555 Capitol Mall, 9th Floor 14 Sacramento, California 95814 BY: VIRGINIA A. CAHILL, ESQ. 15 CALIFORNIA DEPARTMENT OF FISH AND GAME: 16 OFFICE OF THE ATTORNEY GENERAL 17 1300 I Street, Suite 1101 Sacramento, California 95814 18 BY: MATTHEW CAMPBELL, ESQ. 19 NATURAL RESOURCES DEFENSE COUNCIL: 20 HAMILTON CANDEE, ESQ. 71 Stevenson Street 21 San Francisco, California 94105 22 ARVIN-EDISON WATER STORAGE DISTRICT, et al.: 23 DOOLEY HERR & WILLIAMS 3500 West Mineral King Avenue, Suite C 24 Visalia, California 93191 BY: DANIEL M. DOOLEY, ESQ. 25 CAPITOL REPORTERS (916) 923-5447 15555 1 REPRESENTATIVES 2 SACRAMENTO MUNICIPAL UTILITY DISTRICT: 3 LESLIE A. DUNSWORTH, ESQ. 4 6201 S Street Sacramento, California 95817 5 SOUTH SAN JOAQUIN IRRIGATION DISTRICT, et al.: 6 BRAY, GEIGER, RUDQUIST & NUSS 7 311 East Main Street, 4th Floor Stockton, California 95202 8 BY: STEVEN P. EMRICK, ESQ. 9 EAST BAY MUNICIPAL UTILITY DISTRICT: 10 EBMUD OFFICE OF GENERAL COUNSEL 375 Eleventh Street 11 Oakland, California 94623 BY: FRED ETHERIDGE, ESQ. 12 GOLDEN GATE AUDUBON SOCIETY: 13 ARTHUR FEINSTEIN 14 2530 San Pablo Avenue, Suite G Berkeley, California 94702 15 CONAWAY CONSERVANCY GROUP: 16 UREMOVIC & FELGER 17 P.O. Box 5654 Fresno, California 93755 18 BY: WARREN P. FELGER, ESQ. 19 THOMES CREEK WATER ASSOCIATION: 20 THOMES CREEK WATERSHED ASSOCIATION P.O. Box 2365 21 Flournoy, California 96029 BY: LOIS FLYNNE 22 COURT APPOINTED REPS OF WESTLANDS WD AREA 1, et al.: 23 LAW OFFICES OF SMILAND & KHACHIGIAN 24 601 West Fifth Street, Seventh Floor Los Angeles, California 90075 25 BY: CHRISTOPHER G. FOSTER, ESQ. CAPITOL REPORTERS (916) 923-5447 15556 1 REPRESENTATIVES 2 CITY AND COUNTY OF SAN FRANCISCO: 3 OFFICE OF THE CITY ATTORNEY 4 1390 Market Street, Sixth Floor San Francisco, California 94102 5 BY: DONN W. FURMAN, ESQ. 6 CAMP FAR WEST IRRIGATION DISTRICT, et al.: 7 DANIEL F. GALLERY, ESQ. 926 J Street, Suite 505 8 Sacramento, California 95814 9 BOSTON RANCH COMPANY, et al.: 10 J.B. BOSWELL COMPANY 101 West Walnut Street 11 Pasadena, California 91103 BY: EDWARD G. GIERMANN 12 SAN JOAQUIN RIVER GROUP AUTHORITY, et al.: 13 GRIFFIN, MASUDA & GODWIN 14 517 East Olive Street Turlock, California 95381 15 BY: ARTHUR F. GODWIN, ESQ. 16 NORTHERN CALIFORNIA WATER ASSOCIATION: 17 RICHARD GOLB 455 Capitol Mall, Suite 335 18 Sacramento, California 95814 19 PLACER COUNTY WATER AGENCY, et al.: 20 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Capitol Mall, 27th Floor 21 Sacramento, California 95814 BY: JANET GOLDSMITH, ESQ. 22 ENVIRONMENTAL DEFENSE FUND: 23 THOMAS J. GRAFF, ESQ. 24 5655 College Avenue, Suite 304 Oakland, California 94618 25 CAPITOL REPORTERS (916) 923-5447 15557 1 REPRESENTATIVES 2 CALAVERAS COUNTY WATER DISTRICT: 3 SIMON GRANVILLE 4 P.O. Box 846 San Andreas, California 95249 5 CHOWCHILLA WATER DISTRICT, et al.: 6 GREEN, GREEN & RIGBY 7 P.O. Box 1019 Madera, California 93639 8 BY: DENSLOW GREEN, ESQ. 9 CALIFORNIA FARM BUREAU FEDERATION: 10 DAVID J. GUY, ESQ. 2300 River Plaza Drive 11 Sacramento, California 95833 12 SANTA CLARA VALLEY WATER DISTRICT: 13 MORRISON & FORESTER 755 Page Mill Road 14 Palo Alto, California 94303 BY: KEVIN T. HAROFF, ESQ. 15 CITY OF SHASTA LAKE: 16 ALAN N. HARVEY 17 P.O. Box 777 Shasta Lake, California 96019 18 COUNTY OF STANISLAUS: 19 MICHAEL G. HEATON, ESQ. 20 926 J Street Sacramento, California 95814 21 GORRILL LAND COMPANY: 22 GORRILL LAND COMPANY 23 P.O. Box 427 Durham, California 95938 24 BY: DON HEFFREN 25 CAPITOL REPORTERS (916) 923-5447 15558 1 REPRESENTATIVES 2 SOUTH DELTA WATER AGENCY: 3 JOHN HERRICK, ESQ. 4 3031 West March Lane, Suite 332 East Stockton, California 95267 5 COUNTY OF GLENN: 6 NORMAN Y. HERRING 7 525 West Sycamore Street Willows, California 95988 8 REGIONAL COUNCIL OF RURAL COUNTIES: 9 MICHAEL B. JACKSON 10 1020 Twelfth Street, Suite 400 Sacramento, California 95814 11 DEER CREEK WATERSHED CONSERVANCY: 12 JULIE KELLY 13 P.O. Box 307 Vina, California 96092 14 DELTA TRIBUTARY AGENCIES COMMITTEE: 15 MODESTO IRRIGATION DISTRICT 16 P.O. Box 4060 Modesto, California 95352 17 BY: BILL KETSCHER 18 SAVE THE SAN FRANCISCO BAY ASSOCIATION: 19 SAVE THE BAY 1736 Franklin Street 20 Oakland, California 94612 BY: CYNTHIA L. KOEHLER, ESQ. 21 BATTLE CREEK WATERSHED LANDOWNERS: 22 BATTLE CREEK WATERSHED CONSERVANCY 23 P.O. Box 606 Manton, California 96059 24 25 CAPITOL REPORTERS (916) 923-5447 15559 1 REPRESENTATIVES 2 BUTTE SINK WATERFOWL ASSOCIATION, et al.: 3 MARTHA H. LENNIHAN, ESQ. 4 455 Capitol Mall, Suite 300 Sacramento, California 95814 5 CITY OF YUBA CITY: 6 WILLIAM P. LEWIS 7 1201 Civic Center Drive Yuba City, California 95993 8 BROWNS VALLEY IRRIGTAION DISTRICT, et al.: 9 BARTKIEWICZ, KRONICK & SHANAHAN 10 1011 22nd Street, Suite 100 Sacramento, California 95816 11 BY: ALAN B. LILLY, ESQ. 12 CONTRA COSTA WATER DISTRICT: 13 BOLD, POLISNER, MADDOW, NELSON & JUDSON 500 Ygnacio Valley Road, Suite 325 14 Walnut Creek, California 94596 BY: ROBERT B. MADDOW, ESQ. 15 GRASSLAND WATER DISTRICT: 16 DON MARCIOCHI 17 22759 South Mercey Springs Road Los Banos, California 93635 18 SAN LUIS CANAL COMPANY: 19 FLANAGAN, MASON, ROBBINS & GNASS 20 3351 North M Street, Suite 100 Merced, California 95344 21 BY: MIICHAEL L. MASON, ESQ. 22 STONY CREEK BUSINESS AND LAND OWNERS COALITION: 23 R.W. MCCOMAS 4150 County Road K 24 Orland, California 95963 25 CAPITOL REPORTERS (916) 923-5447 15560 1 REPRESENTATIVES 2 TRI-DAM POWER AUTHORITY: 3 TUOLUMNE UTILITIES DISTRICT 4 P.O. Box 3728 Sonora, California 95730 5 BY: TIM MCCULLOUGH 6 DELANO-EARLIMART IRRIGATION DISTRICT, et al.: 7 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 8 Oroville, California 95965 BY: JEFFREY A. MEITH, ESQ. 9 HUMANE FARMING ASSOCIATION: 10 BRADLEY S. MILLER. 11 1550 California Street, Suite 6 San Francisco, California 94109 12 CORDUA IRRIGATION DISTRICT, et al.: 13 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 14 P.O. Box 1679 Oroville, California 95965 15 BY: PAUL R. MINASIAN, ESQ. 16 EL DORADO COUNTY WATER AGENCY: 17 DE CUIR & SOMACH 400 Capitol Mall, Suite 1900 18 Sacramento, California 95814 BY: DONALD B. MOONEY, ESQ. 19 GLENN COUNTY FARM BUREAU: 20 STEVE MORA 21 501 Walker Street Orland, California 95963 22 MODESTO IRRIGATION DISTRICT: 23 JOEL MOSKOWITZ 24 P.O. Box 4060 Modesto, California 95352 25 CAPITOL REPORTERS (916) 923-5447 15561 1 REPRESENTATIVES 2 PACIFIC GAS & ELECTRIC: 3 RICHARD H. MOSS, ESQ. 4 P.O. Box 7442 San Francisco, California 94120 5 CENTRAL DELTA WATER AGENCY, et al.: 6 NOMELLINI, GRILLI & MCDANIEL 7 P.O. Box 1461 Stockton, California 95201 8 BY: DANTE JOHN NOMELLINI, ESQ. and 9 DANTE JOHN NOMELLINI, JR., ESQ. 10 TULARE LAKE BASIN WATER STORAGE UNIT: 11 MICHAEL NORDSTROM 1100 Whitney Avenue 12 Corcoran, California 93212 13 AKIN RANCH, et al.: 14 DOWNEY, BRAND, SEYMOUR & ROHWER 555 Capitol Mall, 10th Floor 15 Sacramento, California 95814 BY: KEVIN M. O'BRIEN, ESQ. 16 OAKDALE IRRIGATION DISTRICT: 17 O'LAUGHLIN & PARIS 18 870 Manzanita Court, Suite B Chico, California 95926 19 BY: TIM O'LAUGHLIN, ESQ. 20 SIERRA CLUB: 21 JENNA OLSEN 85 Second Street, 2nd Floor 22 San Francisco, California 94105 23 YOLO COUNTY BOARD OF SUPERVISORS: 24 LYNNEL POLLOCK 625 Court Street 25 Woodland, California 95695 CAPITOL REPORTERS (916) 923-5447 15562 1 REPRESENTATIVES 2 PATRICK PORGENS & ASSOCIATES: 3 PATRICK PORGENS 4 P.O. Box 60940 Sacramento, California 95860 5 BROADVIEW WATER DISTRICT, et al.: 6 DIANE RATHMANN 7 P.O. Box 156 Dos Palos, California 93620 8 FRIENDS OF THE RIVER: 9 BETSY REIFSNIDER 10 128 J Street, 2nd Floor Sacramento, California 95814 11 MERCED IRRIGATION DISTRICT: 12 FLANAGAN, MASON, ROBBINS & GNASS 13 P.O. Box 2067 Merced, California 95344 14 BY: KENNETH M. ROBBINS, ESQ. 15 CENTRAL SAN JOAQUIN WATER CONSERVATION DISTRICT: 16 REID W. ROBERTS, ESQ. 311 East Main Street, Suite 202 17 Stockton, California 95202 18 METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA: 19 JAMES F. ROBERTS P.O. Box 54153 20 Los Angeles, California 90054 21 SACRAMENTO AREA WATER FORUM: 22 CITY OF SACRAMENTO 980 9th Street, 10th Floor 23 Sacramento, California 95814 BY: JOSEPH ROBINSON, ESQ. 24 25 CAPITOL REPORTERS (916) 923-5447 15563 1 REPRESENTATIVES 2 TUOLUMNE RIVER PRESERVATION TRUST: 3 NATURAL HERITAGE INSTITUTE 4 114 Sansome Street, Suite 1200 San Francisco, California 94194 5 BY: RICHARD ROOS-COLLINS, ESQ. 6 CALIFORNIA DEPARTMENT OF WATER RESOURCES: 7 DAVID A. SANDINO, ESQ. P.O. Box 942836 8 Sacramento, California 94236 9 FRIANT WATER USERS AUTHORITY: 10 GARY W. SAWYERS, ESQ. 575 East Alluvial, Suite 101 11 Fresno, California 93720 12 KERN COUNTY WATER AGENCY: 13 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Captiol Mall, 27th Floor 14 Sacramento, California 95814 BY: CLIFFORD W. SCHULZ, ESQ. 15 SAN JOAQUIN RIVER EXCHANGE CONTRACTORS: 16 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 17 P.O. Box 1679 Oroville, California 95965 18 BY: MICHAEL V. SEXTON, ESQ. 19 SAN JOAQUIN COUNTY: 20 NEUMILLER & BEARDSLEE P.O. Box 20 21 Stockton, California 95203 BY: THOMAS J. SHEPHARD, SR., ESQ. 22 CITY OF STOCKTON: 23 DE CUIR & SOMACH 24 400 Capitol Mall, Suite 1900 Sacramento, California 95814 25 BY: PAUL S. SIMMONS, ESQ. CAPITOL REPORTERS (916) 923-5447 15564 1 REPRESENTATIVES 2 ORLAND UNIT WATER USERS' ASSOCIATION: 3 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 4 Oroville, California 95965 BY: M. ANTHONY SOARES, ESQ. 5 GLENN-COLUSA IRRIGATION DISTRICT: 6 DE CUIR & SOMACH 7 400 Capitol Mall, Suite 1900 Sacramento, California 95814 8 BY: STUART L. SOMACH, ESQ. 9 NORTH SAN JOAQUIN WATER CONSERVATION DISTRICT: 10 JAMES F. SORENSEN CONSULTING CIVIL ENGINEER, INC.: 209 South Locust Street 11 Visalia, California 93279 BY: JAMES F. SORENSEN 12 PARADISE IRRIGATION DISTRICT: 13 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 14 P.O. Box 1679 Oroville, California 95965 15 BY: WILLIAM H. SPRUANCE, ESQ. 16 COUNTY OF COLUSA: 17 DONALD F. STANTON, ESQ. 1213 Market Street 18 Colusa, California 95932 19 COUNTY OF TRINITY: 20 COUNTY OF TRINITY - NATURAL RESOURCES P.O. Box 156 21 Hayfork, California 96041 BY: TOM STOKELY 22 CITY OF REDDING: 23 JEFFERY J. SWANSON, ESQ. 24 2515 Park Marina Drive, Suite 102 Redding, California 96001 25 CAPITOL REPORTERS (916) 923-5447 15565 1 REPRESENTATIVES 2 TULARE IRRIGATION DISTRICT: 3 TEHEMA COUNTY RESOURCE CONSERVATION DISTRICT 2 Sutter Street, Suite D 4 Red Bluff, California 96080 BY: ERNEST E. WHITE 5 STATE WATER CONTRACTORS: 6 BEST BEST & KREIGER 7 P.O. Box 1028 Riverside, California 92502 8 BY: ERIC GARNER, ESQ. 9 COUTNY OF TEHEMA, et al.: 10 COUNTY OF TEHEMA BOARD OF SUPERVISORS P.O. Box 250 11 Red Bluff, California 96080 BY: CHARLES H. WILLARD 12 MOUNTAIN COUNTIES WATER RESOURCES ASSOCIATION: 13 CHRISTOPHER D. WILLIAMS 14 P.O. Box 667 San Andreas, California 95249 15 JACKSON VALLEY IRRIGATION DISTRICT: 16 HENRY WILLY 17 6755 Lake Amador Drive Ione, California 95640 18 SOLANO COUNTY WATER AGENCY, et al.: 19 HERUM, CRABTREE, DYER, ZOLEZZI & TERPSTRA 20 2291 West March Lane, S.B. 100 Stockton, California 95207 21 BY: JEANNE M. ZOLEZZI, ESQ. 22 WESTLANDS ENCROACHMENT AND EXPANSION LANDOWNERS: 23 BAKER, MANOCK & JENSEN 5260 North Palm Avenue 24 Fresno, California 93704 BY: CHRISTOPHER L. CAMPBELL, ESQ. 25 CAPITOL REPORTERS (916) 923-5447 15566 1 REPRESENTATIVES 2 SAN LUIS WATER DISTRICT: 3 LINNEMAN, BURGES, TELLES, VAN ATTA 1820 Marguerite Street 4 Dos Palos, California 93620 BY: THOMAS J. KEENE, ESQ. 5 6 ---oOo--- 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 15567 1 I N D E X 2 ---oOo--- 3 4 PAGE 5 OPENING OF HEARING 15569 6 AFTERNOON SESSION 15678 7 END OF PROCEEDINGS 15687 8 DIRECT EXAMINATION OF THE SAN JOAQUIN RIVER GROUP 9 AUTHORITY: 10 PANEL: 15572 11 JAMES LECKY MIKE THABAULT 12 CROSS-EXAMINATION OF THE SAN JOAQUIN RIVER GROUP 13 AUTHORITY: 14 MR. NOMELLINI 15596 MR. HERRICK 15637 15 MR. BRANDT 15655 MR. NOMELLINI 15659 16 THE BOARD 15664 17 REDIRECT EXAMINATION OF THE SAN JOAQUIN RIVER GROUP AUTHORITY: 18 MR. O'LAUGHLIN 15665 19 RECROSS-EXAMINATION OF THE SAN JOAQUIN RIVER GROUP 20 AUTHORITY: 21 MR. NOMELLINI 15674 22 CROSS-EXAMINATION OF THE SAN JOAQUIN RIVER GROUP AUTHORITY: 23 MR. HERRICK 15679 24 ---oOo--- 25 CAPITOL REPORTERS (916) 923-5447 15568 1 TUESDAY, JUNE 22, 1999, 9:00 A.M. 2 SACRAMENTO, CALIFORNIA 3 ---oOo--- 4 C.O. STUBCHAER: Good morning. 5 MR. O'LAUGHLIN: Good morning. 6 C.O. STUBCHAER: We'll open Phase II-B of our 7 Bay-Delta hearings. And, Mr. O'Laughlin, as I have notes 8 from our last session, you intend to have the examination 9 and cross-examination of this panel first thing. And then 10 we return to the cross-examination of Mr. Fults and then 11 after that we hear Mr. Hildebrand. 12 Does that comport to your understanding of the 13 schedule? 14 MR. O'LAUGHLIN: Well, let's do it in order. I'll 15 let Mr. Brandt respond to the first part about the panel 16 and the scheduling of this panel and how we will handle 17 these witnesses and then I'll talk a little bit more about 18 scheduling today and for the rest of the week in regards 19 to the rest of the witnesses. 20 C.O. STUBCHAER: Mr. Brandt. 21 MR. BRANDT: Good morning, Mr. Chairman. Alf Brandt 22 with the Department of the Interior, a couple of things. 23 We have Mr. Mike Thabault from the Fish and Wildlife 24 Service here today as a percipient witness at the request 25 of the San Joaquin River Group, who has asked him to come CAPITOL REPORTERS (916) 923-5447 15569 1 in and testified as to the consultation, what happened on 2 the consultation on the San Joaquin River Agreement. 3 In addition, I've arranged with the National 4 Marine Fisheries Service, the United States Department of 5 Commerce to provide a witness, Mr. James Lecky, who is 6 here as well as his counsel from the general counsel's 7 office of that operation, NOAA, actually, Dawn Andrews. 8 And just so you know, because of a legislative 9 hearing that's been called this morning on Delta smelt, 10 Mr. Thabault is going to need to leave. So we're going to 11 put both of them on, do them as a panel for their direct, 12 Mr. Thabault will probably have to leave in half an hour 13 or so to walk over to the Capitol and then Mr. Lecky will 14 go on with his cross and Mr. Thabault will be back later 15 to complete his cross today. 16 C.O. STUBCHAER: Okay. Thank you. 17 Mr. O'Laughlin. 18 MR. O'LAUGHLIN: One other scheduling matter -- and 19 Mr. Herrick is in the office, we exchanged letters the 20 last several days -- Mr. Hildebrand is extremely busy with 21 his farming operation and other ongoing concerns. He 22 would not be available this afternoon. We have scheduled 23 him for Thursday. 24 Mr. Ploss, as well, we were going to try to get 25 him in today, but with the B-2 issue and the Delta smelt CAPITOL REPORTERS (916) 923-5447 15570 1 issue going on, Mr. Ploss had no time. We'd already 2 scheduled him for Wednesday, we're sticking to the 3 Wednesday time frame. 4 So what we have today is Mr. Lecky, Mr. Thabault, 5 we have Mr. Fults. Coming back tomorrow we have 6 Mr. Steffani, Mr. Ploss and Mr. Burke from the United 7 States Bureau of Reclamation. Coming back on Thursday we 8 have Mr. Hildebrand. And then we'll finish up with 9 Merced, Oakdale and South San Joaquin Irrigation District; 10 all three of those districts are literally out of the 11 state right now. 12 C.O. STUBCHAER: And also on Thursday Mr. White? 13 MR. O'LAUGHLIN: No, Mr. White has been substituted 14 out. He had a family emergency and Mr. Thabault is 15 appearing on behalf of the U.S. Fish and Wildlife Service 16 on his behalf. 17 C.O. STUBCHAER: Okay. 18 MR. O'LAUGHLIN: And I sent copies to all the 19 parties of my correspondence, but I've been sending copies 20 of the scheduling to Mr. Nick Wilcox in your office to 21 keep him apprised both electronically and otherwise so 22 that everybody would have that, it can be posted on your 23 website. And we've sent that out to all the parties as 24 well in our mailers. 25 C.O. STUBCHAER: What we just went over now is a CAPITOL REPORTERS (916) 923-5447 15571 1 deviation from the latest schedule I got anyway. 2 MR. O'LAUGHLIN: Right. Yes, that's correct. 3 C.O. STUBCHAER: That's fine. 4 MR. O'LAUGHLIN: That occurred yesterday. 5 C.O. STUBCHAER: Okay. 6 MR. O'LAUGHLIN: I believe Mr. Lecky hasn't appeared 7 before you previously, so he will need to be sworn in. 8 C.O. STUBCHAER: All right. You've been here 9 before, haven't you? 10 MR. LECKY: It's been a long time. 11 C.O. STUBCHAER: Was it a part of this hearing? 12 MR. LECKY: No. 13 C.O. STUBCHAER: Okay. Do you promise to tell the 14 truth in this proceeding? 15 MR. LECKY: Yes, I do. 16 C.O. STUBCHAER: Thank you. Please be seated. 17 ---oOo--- 18 DIRECT EXAMINATION OF THE SAN JOAQUIN 19 RIVER GROUP AUTHORITY 20 BY MR. O'LAUGHLIN 21 MR. O'LAUGHLIN: Mr. Lecky, can you state your name 22 for the record, please. 23 MR. LECKY: My name is James H. Lecky, L-E-C-K-Y. 24 MR. O'LAUGHLIN: And where are you presently 25 employed? CAPITOL REPORTERS (916) 923-5447 15572 1 MR. LECKY: I'm employed at the National Marine 2 Fisheries Service, U.S. Department of Commerce. 3 MR. O'LAUGHLIN: And what is your position with 4 National Marine Fisheries? 5 MR. LECKY: I'm the assistant regional administrator 6 for protected resources. 7 MR. O'LAUGHLIN: And how long have you been with the 8 National Marine Fisheries? 9 MR. LECKY: 22 years. 10 MR. O'LAUGHLIN: Do you have a Bachelor's of Science 11 degree? 12 MR. LECKY: I have a Bachelor's degree in biology. 13 MR. O'LAUGHLIN: I'm sorry. Your staff was asking 14 if we were going to enter a resume or curriculum vitae for 15 Mr. Lecky, I don't think it's necessary. 16 I should tell the Board, Mr. Lecky is not being 17 called as an expert, you heard Mr. Brandt state this 18 earlier. Mr. Lecky is being called as his position with 19 NMFS for the San Joaquin River Group Authority as a 20 percipient witness and not as an expert witness. 21 Mr. Lecky, can you briefly describe for me your 22 job duties and your present position with National Marine 23 Fisheries? 24 MR. LECKY: Yes. I'm responsible for implementing 25 the Endangered Species Act and the Marine Mammal CAPITOL REPORTERS (916) 923-5447 15573 1 Protection Act within National Marine Fisheries Service 2 southwest region, which encompasses California, Hawaii, 3 Western Pacific and actually reaches into some 4 international fisheries issues off Central and South 5 America. 6 MR. O'LAUGHLIN: In regards to that position, when 7 actions arise in regards to a threatened or protected 8 species, such as steelhead, is it your office then 9 involved? 10 MR. LECKY: Yes. 11 MR. O'LAUGHLIN: And we had a witness on last week 12 from the California Department of Fish and Game in regards 13 to steelhead, and I want to ask this question in the 14 context of your understanding and not as a legal question: 15 Is it your understanding that the National Marine 16 Fisheries in regards to steelhead has jurisdiction over 17 issues relating to steelhead and not the California 18 Department of Fish and Game? 19 MR. LECKY: Well, I think we try and cooperate very 20 closely with the California Department of Fish and Game. 21 I think the federal statute does prevail where there are 22 conflicts. 23 MR. O'LAUGHLIN: Okay. And, actually, the witness 24 said that last week -- and I'll let you know and see if 25 you agree with this -- that they provide input, cooperate CAPITOL REPORTERS (916) 923-5447 15574 1 in consult with the National Marine Fisheries. Is that 2 your understanding? 3 MR. LECKY: Yes. 4 MR. O'LAUGHLIN: Now, in regards to consultations 5 and coordinations under the Endangered Species Act, you're 6 responsible for that as well; is that correct? 7 MR. LECKY: For species under our jurisdiction, 8 that's correct. 9 MR. O'LAUGHLIN: I'd like to show you an exhibit 10 that has been marked as 114-A. And I have copies of 11 114-A. Here's 20 copies for the Board and there's 12 additional copies over here on the table if anybody would 13 like one. Since we're doing this paperwork we might as 14 well do the 114-B statement. I'll hand you a copy of 15 114-B, Mr. Lecky. Here's 20 copies for you. 16 MS. WHITNEY: Thank you. 17 MR. O'LAUGHLIN: The first document we've had 18 marked, for the people in the audience, is a February 8th 19 letter of 1999 to Mr. James Lecky from -- I believe it's 20 from Mr. Lowell Ploss from the United States Department of 21 the Interior. 22 Mr. Lecky, did your office receive that letter 23 from Mr. Ploss? 24 MR. LECKY: Yes, we did. 25 MR. O'LAUGHLIN: And it's your understanding that CAPITOL REPORTERS (916) 923-5447 15575 1 this is a consultation or coordination under the 2 Endangered Species Act in relationship to steelhead; is 3 that correct? 4 MR. LECKY: Steelhead and winter-run, yes. 5 MR. O'LAUGHLIN: The next one is 114-B. It's a 6 letter dated April 8th, 1999, from Mr. Lowell Ploss. It's 7 from the United States Department of Commerce, National 8 Marine Fisheries Service. It's signed -- the signature is 9 James Lecky, but it's signed over William T. Hogarth, 10 Ph.D., Regional Administrator. 11 Is that your signature, Mr. Lecky? 12 MR. LECKY: Yes, it is. 13 MR. O'LAUGHLIN: Okay. Who is Mr. -- is it Hograth? 14 MR. LECKY: Hogarth. 15 MR. O'LAUGHLIN: Hogarth. 16 MR. LECKY: Dr. Hogarth was our regional 17 administrator. He has in the last month departed to 18 become the regional administer of our southeast region so 19 we are currently without a regional administrator. 20 MR. O'LAUGHLIN: And it's your understanding that 21 you had the authority to sign the letter in response to 22 Mr. Ploss's letter of February 8th; is that correct? 23 MR. LECKY: Yes. I believe on this day I was acting 24 for Mr. Hogarth as the regional administrator. 25 MR. O'LAUGHLIN: And this letter contains the CAPITOL REPORTERS (916) 923-5447 15576 1 National Marine Fisheries' official position in response 2 to Mr. Ploss's letter of February 8th of 1999; is that 3 correct? 4 MR. LECKY: That's correct. 5 MR. O'LAUGHLIN: Okay. Two other items, they've 6 been marked 114-C.1 and 114-C.2. Unfortunately, I only 7 have 20 copies of this available for the Board. I will 8 show them to the witness. 9 It's called "The Biological Assessment, Effects 10 of the Central Valley Project and State Water Project 11 Operations from October 1998 through March 2000 Steelhead 12 and Spring-run Chinook Salmon," prepared by the California 13 Department of Water Resources and the United States Bureau 14 of Reclamation, January 1999. That's Exhibit C.1. 15 Exhibit 114-C.2 is the same title, but the appendices of A 16 through I. 17 C.O. STUBCHAER: Mr. Jackson. 18 MR. JACKSON: Yes, Mr. Stubchaer. I would like to 19 object to the use of these documents at the present time. 20 This is a case in chief. This information was supposed to 21 be supplied in advance. There is -- we can't even respond 22 to the information in these documents at the present time, 23 because there are no copies for the rest of us. So I 24 would request that the Board's procedures be followed and 25 that no questions be asked on these documents. CAPITOL REPORTERS (916) 923-5447 15577 1 C.O. STUBCHAER: Mr. Nomellini. 2 MR. NOMELLINI: I would like to join on that motion 3 for the same reasons. We were told in the notice when we 4 called an adverse witness we didn't have to prepare 5 testimony, because they were an adverse witness, but 6 reference to the exhibit was supposed to be made on the 7 exhibit list and added and identified and circulated in 8 that manner. 9 MR. O'LAUGHLIN: Well -- 10 C.O. STUBCHAER: Yes, Mr. O'Laughlin. 11 MR. O'LAUGHLIN: Thank you. In response to that, 12 that's not the way it's been handled in the past with 13 adverse witnesses. I have marked these as documents. I 14 don't know if Mr. Lecky will be able to testify about them 15 or not. I've not had an opportunity to previously talk to 16 Mr. Lecky about these exhibits. 17 So I need to have them marked, identified and I 18 would submit them to Mr. Lecky and see if he can identify 19 them and talk about them. If he can't, then they have 20 been marked, but they have not been entered into evidence. 21 And there's been no requirements made on any party 22 producing an adverse witness to present documentation or 23 exhibits that they will be presenting at the time of the 24 adverse witness. 25 And you can see that in regards to the Stockton CAPITOL REPORTERS (916) 923-5447 15578 1 East testimony that will be coming up tomorrow with Lowell 2 Ploss. And that's the way it's been handled previously. 3 And the reason why is, it's the same thing that happened 4 with the California Department of Fish and Game and other 5 witnesses. 6 If you don't have a chance to talk to the witness 7 ahead of time, you don't know what documents you're going 8 to be using, then you have to mark the documents, get them 9 identified and then allow the witness to see if they can 10 testify to them. 11 We will -- if Mr. Lecky does identify this and 12 talk about this document, we will make that document 13 available, as has been done in the past, to all the other 14 parties, but until that time I have no reason to submit it 15 to the other parties. 16 C.O. STUBCHAER: Okay. Off the record for a moment. 17 (Off the record from 9:15 a.m. to 9:16 a.m.) 18 C.O. STUBCHAER: The objection is overruled. We 19 will attempt to provide copies that may have to be shared. 20 We're given you all but one of the Board's copies to be 21 shared. And if it's necessary to call these witnesses 22 back later after you've had an opportunity to review the 23 documents, we'll be willing to do that. 24 And, Mr. O'Laughlin, we want to make sure that 25 you do get copies to all the parties as soon as possible, CAPITOL REPORTERS (916) 923-5447 15579 1 with that you may proceed. 2 MR. O'LAUGHLIN: Well, in response to that, 3 Chairman, if the witness identifies it and it's relevant, 4 then we will make copies -- 5 C.O. STUBCHAER: Right. 6 MR. O'LAUGHLIN: -- available to all the parties, 7 but I don't want to preclude the fact that since I don't 8 know what the testimony is going to be, if he says he 9 doesn't know anything about it, then we can move on. 10 C.O. STUBCHAER: All right. 11 MR. O'LAUGHLIN: We may have to call another witness 12 from the federal government to identify the document. 13 C.O. STUBCHAER: Yes. 14 MR. O'LAUGHLIN: Sorry about that, Mr. Lecky. We 15 were doing procedural matters. I'd liked to now hand you 16 114-C.1 and 114-C.2. 17 Have you seen those documents before, Mr. Lecky? 18 MR. LECKY: Yes. 19 MR. O'LAUGHLIN: Do you know if in response to 20 Mr. Ploss's letter that NMFS's response was based in part 21 upon the biological assessment that was performed by the 22 United States Bureau of Reclamation and the Department of 23 Water Resources? 24 MR. LECKY: Information contained in these documents 25 was used in the assessment along with other information CAPITOL REPORTERS (916) 923-5447 15580 1 available to staff. 2 MR. O'LAUGHLIN: Thank you. And with that, 3 Mr. Chairman, then I will make copies available to all the 4 other parties on the mailing list as well as the other 5 copies that were submitted to the Board today. 6 C.O. STUBCHAER: Mr. Jackson. 7 MR. JACKSON: Mr. Stubchaer, I just glanced at one 8 page of this, this is going to be important information. 9 Is it possible, then, to reserve cross-examination until 10 after we've had a chance to review these documents? 11 C.O. STUBCHAER: Yes, we will do that. 12 MR. JACKSON: Thank you. 13 C.O. STUBCHAER: And we will also probably have 14 split examination if you have questions. 15 MR. JACKSON: Well, I don't want to get into that. 16 C.O. STUBCHAER: All right. 17 MR. JACKSON: I have no opportunity to effectively 18 cross-examine. I believe that my clients' due process 19 rights would be affected. I won't ask any 20 cross-examination questions today. 21 C.O. STUBCHAER: All right. 22 MR. JACKSON: I will reserve cross-examination for a 23 later time. Thank you. 24 C.O. BROWN: Anyone else? 25 MR. O'LAUGHLIN: Well, may I, Mr. Chairman, respond CAPITOL REPORTERS (916) 923-5447 15581 1 to this briefly? Historically in the hearing process 2 documents have been brought in on adverse witnesses on the 3 day of testimony and the witness has been allowed to 4 testify and cross-examination has not been reserved for a 5 later date. 6 Mr. Lecky, it was -- my understanding is that it 7 was extremely difficult to get him up here in this time 8 frame and in this slot. The biological assessment that is 9 in front of you has been on the street since January of 10 1999. It's not new information. It was a public document 11 that was put out by the United States Bureau of 12 Reclamation and the Department of Water Resources. 13 So if this document was that important and 14 Mr. Jackson wanted to know about it, or wanted to get it 15 into the record, they have had that opportunity as well. 16 Just because we call witnesses and they don't do their 17 homework, they shouldn't be allowed to sandbag and come 18 back later and try to call witnesses after they've had 19 time to prepare for cross-examination. 20 And this has continually arisen in this hearing 21 process, wherein we bring in witnesses that they don't 22 bring in, they think there's relevant information. Well, 23 if they think there's relevant information they have an 24 obligation on their own behalf to make their own cases. 25 I'm not here today to make a case for RCRC or CAPITOL REPORTERS (916) 923-5447 15582 1 Central Delta Water Agency. So if they want to call 2 Mr. Lecky back as a rebuttal witness or some other 3 witness, they can do that in their own cases. They don't 4 need to do it here. And they've had ample opportunity 5 with this document in the public domain to bring it in 6 front of the Board if they thought it was relevant to the 7 hearing proceedings. 8 C.O. STUBCHAER: Ms. Leidigh. 9 MS. LEIDIGH: It's my recollection that we have 10 required exhibits to be provided in advance for cases in 11 chief. I do recognize that there are some times when 12 follow-up on a question then it's been necessary to bring 13 in an exhibit that wasn't otherwise brought in, but even 14 then copies have been provided for all the parties. 15 More commonly it's on rebuttal when adverse 16 witnesses are called that new exhibits are brought in that 17 have not been provided to the other parties before. So my 18 recommendation is that the procedure that was announced be 19 followed. It appears to me that that is the most fair 20 approach so far as dealing with the needs of the other 21 parties. 22 C.O. STUBCHAER: Mr. Brandt. 23 MR. BRANDT: Mr. Chairman, I just want to clarify 24 here. You'll notice by the questions Mr. O'Laughlin 25 asked, he only asked whether the agency received it. You CAPITOL REPORTERS (916) 923-5447 15583 1 know, if you like immediately after this I can clarify and 2 ask Mr. Lecky a couple questions. 3 He's never reviewed this document. He doesn't 4 know what's in it. So it's just a question that he's seen 5 the document before and knows it's part of the record, but 6 he does not know anything about the document. So if they 7 want to ask questions and cross on this document it may 8 make more sense to put in a request for whoever prepared 9 it, or whoever's worked with this document. Mr. Lecky 10 really doesn't know and I can clarify that with some 11 questions if you would like. 12 C.O. STUBCHAER: Thank you for that clarification. 13 Mr. Nomellini. 14 MR. NOMELLINI: Yes. The rules as I understand them 15 were spelled out in the notice. And that is for cases in 16 chief we all know what we want to present in a case in 17 chief, even with an adverse witness. So the documents 18 should have been limited on the exhibit list as part of 19 the presentation of the case in chief. 20 It is true with regard to cross-examination 21 following a case in chief that we have been allowed to 22 come forward with documents that weren't already on the 23 exhibit list and introduce those. But for the cases in 24 chief, the Board has been rather consistent that you 25 should know in advance, that filing deadlines were set for CAPITOL REPORTERS (916) 923-5447 15584 1 all the exhibits for the cases in chief regardless of 2 whether or not the witness was an adverse witness or a 3 friendly witness. 4 And that was my understanding of the rules. And 5 I think that's the way it's spelled out. So this is a 6 deviation, you can satisfy our concerns by allowing us to 7 review the document and then cross-examine on it later. I 8 think that solves the problem. 9 C.O. STUBCHAER: And given Mr. Brandt's comment, 10 let's go on with the examination and see how much is 11 involved there. But the way that it stands right now is 12 the way it was outlined previously. 13 MR. NOMELLINI: Okay. Well, the witness already 14 testified that, yes, the National Marine Fisheries Service 15 performed its consultation based on the information in 16 this document and other information. 17 C.O. STUBCHAER: Yes. 18 MR. NOMELLINI: So I think that we're going to 19 cross -- we should be allowed to cross on this document 20 once we've reviewed it. 21 C.O. STUBCHAER: Mr. Jackson. 22 MR. JACKSON: Well, I'd just like to point out that 23 the fact that this document was released in January, if 24 one would check the federal register between now and back 25 to January, one would find that there was an awful lot of CAPITOL REPORTERS (916) 923-5447 15585 1 stuff done by the federal government between now and 2 January that we would have to guess about. And I'm sorry 3 if I'm sandbagging or not doing my homework, but I find 4 that to be outrageous. 5 C.O. STUBCHAER: Your comments are noted. 6 Mr. Thabault, I don't know if you'll get to say 7 anything before you have to leave. 8 MR. THABAULT: Whatever happens, happens. 9 C.O. STUBCHAER: Okay, Mr. O'Laughlin. 10 MR. O'LAUGHLIN: Mr. Lecky, have you personally 11 reviewed Exhibit 114-C.1 or C.2? 12 MR. LECKY: No, I have not. 13 MR. O'LAUGHLIN: Did you personally prepare that 14 document, 114-C.1 or C.2? 15 MR. LECKY: No. 16 MR. O'LAUGHLIN: Did anyone under your direction 17 either prepare 114-C.1 or C.2? 18 MR. LECKY: No. 19 MR. O'LAUGHLIN: Okay. Mr. Thabault, you've 20 previously testified before the Board; is that correct, in 21 these proceedings? 22 MR. THABAULT: That's correct. 23 MR. O'LAUGHLIN: And you've been previously sworn 24 in; is that correct? 25 MR. THABAULT: That's correct. CAPITOL REPORTERS (916) 923-5447 15586 1 MR. O'LAUGHLIN: You realize that even though you 2 were sworn in in a prior proceeding that that -- phase, 3 excuse me, thank you, is still applicable today; is that 4 correct? 5 MR. THABAULT: Yes, I do. 6 MR. O'LAUGHLIN: What is your present position with 7 the United States Fish and Wildlife Service? 8 MR. THABAULT: I'm the deputy assistant field 9 supervisor for endangered species and environmental 10 contaminants. 11 MR. O'LAUGHLIN: Previously entered into the record 12 is a letter from Lowell Ploss to the U.S. Fish and 13 Wildlife Services. It's been marked as DOI Exhibit 106, 14 which is a letter similar to the letter sent to the 15 National Marine Fisheries in regards to consultations 16 under the Endangered Species Act. 17 You've previously seen that letter; is that 18 correct? 19 MR. THABAULT: Yes, I have. 20 MR. O'LAUGHLIN: Now, since the hearings ended in 21 Phase II-A, prior to getting there on March 15th, 1999, a 22 letter was written to the United States Bureau of 23 Reclamation from the acting field supervisor, Sacramento 24 Fish and Wildlife Office, Sacramento, California, dated 25 March 15th, 1999. The actual signature line is CAPITOL REPORTERS (916) 923-5447 15587 1 K.C. Goude, but there's another signature on there. 2 I'd like to show you this signature first, can 3 you identify that signature? 4 MR. THABAULT: That is my signature. 5 MR. O'LAUGHLIN: I have 20 copies for the Board. 6 Okay, so in regards to an exhibit that's been marked 7 114-D, that is your signature? 8 MR. THABAULT: That is correct. 9 MR. O'LAUGHLIN: Why is it that you signed this 10 letter and not Ms. Goude? 11 MR. THABAULT: The signature authorities in the 12 office for letters like this are passed down to Kaye 13 Goude, who's the assistant field supervisor. In her 14 absence I have the authority to sign such letters for the 15 Service. 16 MR. O'LAUGHLIN: Okay. Now, this letter is in 17 response to the letter -- 18 MR. NOMELLINI: Mr. Chairman? 19 C.O. STUBCHAER: Mr. Nomellini. 20 MR. NOMELLINI: May we examine a copy of this? Was 21 this sent out previously? 22 MR. O'LAUGHLIN: No. 23 MR. JACKSON: And do you have a copy -- 24 MR. NOMELLINI: So this is another one of those 25 documents. CAPITOL REPORTERS (916) 923-5447 15588 1 C.O. STUBCHAER: Please, make copies available to 2 those who wish, to the extent we have them. If we don't 3 have enough, we'll share. 4 MR. NOMELLINI: What number are you giving this, 5 Tim? 6 MR. O'LAUGHLIN: 114-D. 7 MS. LEIDIGH: Mr. Chairman? 8 C.O. STUBCHAER: Ms. Leidigh? 9 MS. LEIDIGH: I would also request that the copies 10 that the staff provides to the members of the audience 11 today be replaced for the Board's copies and that copies 12 be provided to the parties of these documents. 13 C.O. STUBCHAER: Yes, that request is in order. 14 MR. O'LAUGHLIN: This is in response to the letter 15 dated February 1st, 1999, in regards to the San Joaquin 16 River Agreement; is that correct? 17 MR. THABAULT: That is correct. 18 MR. O'LAUGHLIN: Now, is this the formal response by 19 U.S. Fish and Wildlife to the inquiry by the United States 20 Bureau of Reclamation? 21 MR. THABAULT: Yes, it is. 22 MR. O'LAUGHLIN: Thank you. I have no further 23 questions. 24 C.O. STUBCHAER: Thank you, Mr. O'Laughlin. 25 Mr. Jackson -- given the extent of this CAPITOL REPORTERS (916) 923-5447 15589 1 knowledge -- please, go ahead. 2 MR. JACKSON: Given the time frame of this witness 3 and the fact that I haven't reviewed those letters, I 4 don't even have copies of the letters to Mr. Thabault that 5 Mr. Thabault testified about, I'd like to reserve 6 cross-examination of Mr. Thabault and let him go to his 7 smelt meeting. 8 C.O. STUBCHAER: I'd like to go off the record for a 9 moment, but before we do is there anyone who wishes to 10 make a comment? 11 Mr. Brandt, do you have anything further to say? 12 MR. BRANDT: No. 13 MR. NOMELLINI: I would like to cross-examine, so if 14 you're thinking about eliminating that right, I'll 15 announce ahead of time I'd like to cross-examine. 16 MR. JACKSON: Well, I would like to cross-examine, I 17 just don't need to do that right now if this witness needs 18 to be -- 19 C.O. STUBCHAER: Thank you. 20 MR. BRANDT: And he will be back. 21 C.O. STUBCHAER: And he will be back? 22 MR. BRANDT: Yes. 23 C.O. STUBCHAER: Mr. Thabault will be returning? 24 MR. BRANDT: Yes, Mr. Thabault will be returning. 25 Ms. Leidigh. Off the record. CAPITOL REPORTERS (916) 923-5447 15590 1 (Off the record from 9:30 a.m. to 9:33 a.m.) 2 C.O. STUBCHAER: I don't think there is any 3 question, but that these documents are appropriate for 4 cross-examination. The discussion we've been having has 5 to do with these two documents here related to the fact 6 that Mr. Lecky apparently has no personal knowledge of the 7 contents. 8 Is that a fair statement, Mr. Lecky? 9 MR. LECKY: Yes. 10 C.O. STUBCHAER: Okay. And so our deliberations had 11 to do with cross-examination of these two documents, 12 that's 114-C.2, two volumes -- these are identical. 13 MS. LEIDIGH: There's a 114-C.1 and a 114-C.2. 14 C.O. STUBCHAER: Anyway, just for identification, I 15 have two of the same, but I want to identify what I'm 16 referring to as C.1 and C.2, okay. And do any of the 17 parties have any comments on this issue? 18 MR. NOMELLINI: I do. The witness said that he was 19 aware of this document, or these documents, San Joaquin 20 River Group Authority 114-C.1 and C.2. 21 And indicated that in response to Mr. 22 O'Laughlin's question that in formulating the response to 23 Mr. Ploss's letter, that his staff considered the 24 materials in these documents, the 114-C.1 and C.2 -- if we 25 have to we can go back to the transcript -- and other CAPITOL REPORTERS (916) 923-5447 15591 1 information. 2 That what I heard him say. 3 And if I'm incorrect in that, then my attitude 4 would be different. I think we should be able to 5 cross-examine, because of his testimony with regard to his 6 staff having the contents. 7 C.O. STUBCHAER: Mr. Brandt. 8 MR. BRANDT: Couple things. One is Mr. Lecky just 9 informed me that this is a part of a group of 10 information -- a large number of information that's part 11 of an ongoing consultation as well. Generally on -- 12 MR. LECKY: It's endangered salmonid, threatened 13 listed salmonid. 14 MR. BRANDT: Okay. So this is one piece of it. And 15 I think he is correct that his staff did look at it. 16 If Mr. Nomellini wanted to ask and request that the person 17 who prepared this documentation, I think that might be 18 more fruitful and less of a waste of time for us to take 19 Mr. Lecky through this. 20 You know if he wanted to request that person, I 21 can try and figure out who that is. I do not know 22 offhand. I was not prepared to deal with these documents 23 today. So if you want to request that person, we can 24 perhaps get that person on. 25 MR. NOMELLINI: Well -- CAPITOL REPORTERS (916) 923-5447 15592 1 C.O. STUBCHAER: Mr. Nomellini. 2 MR. NOMELLINI: I think if we're not going to be 3 allowed to cross-examine Mr. Lecky on the case, the direct 4 case which was presented by Mr. O'Laughlin which includes 5 these documents, the alternative would be to strike his 6 testimony from the record. And then the issue of 7 cross-examination would go away. 8 And then it would be up to us, anybody else that 9 wants to call another witness for another purpose of some 10 kind, to do it. I don't know that Mr. Lecky has a great 11 deal of knowledge associated with this document, or the 12 contents thereof, but he was put on the stand and he 13 testified that his people reviewed -- that he was aware of 14 this, his people reviewed it and used it in formulating 15 their responses. 16 So I don't think it would at all be appropriate 17 to deny us cross-examination on this, unless we strike his 18 testimony completely from the record and then go back to 19 the zero point and then we can consult with Mr. Brandt as 20 to whether or not we want a rebuttal case, or in some 21 unyet to be presented case in chief, a federal witness. 22 C.O. STUBCHAER: Mr. Herrick. 23 MR. HERRICK: Thank you, Mr. Chairman. I apologize 24 if this is more of a discussion about whether or not the 25 document should be accepted into the evidence, but the CAPITOL REPORTERS (916) 923-5447 15593 1 issue has arisen. 2 This witness is being apprehended to identify 3 documents that supposedly supports the position that there 4 was some sort of analysis of the effects of the change 5 petitions on steelhead. The depth of his knowledge is -- 6 the depth of his knowledge on the decision of his agency 7 should certainly be allowed to be explored by people on 8 cross-examination. 9 And if they can go through points in these 10 documents and ask him if he -- it doesn't matter whether 11 he read the document, did they consider that point? Did 12 they consider it? Did they not consider some other point? 13 To me that's right on point. And I think it's important 14 to remember that we're the ones that are surprised by the 15 document. We would like to explore this information. 16 C.O. STUBCHAER: Mr. Brandt. 17 MR. BRANDT: Mr. Chairman, I do not mean to suggest 18 that we are not, you know, prepared to have 19 cross-examination of Mr. Lecky on this document. I just 20 think it's not very fruitful. I mean, frankly, I wasn't 21 as prepared to deal with this document, so we can do that 22 at some point. But we're happy to take cross-examination 23 to the extent -- 24 C.O. STUBCHAER: All right. I think that's what we 25 will do, we will allow cross-examination. CAPITOL REPORTERS (916) 923-5447 15594 1 Mr. O'Laughlin. 2 MR. O'LAUGHLIN: No, I have no comments, because I 3 think cross-examination on this document is entirely 4 appropriate. 5 C.O. STUBCHAER: All right. Very good. 6 Is anyone ready to cross-examine now on any parts 7 of this? Mr. Nomellini and Mr. Herrick. 8 MR. NOMELLINI: Yes, I'd be ready to cross-examine 9 in part. I haven't had the opportunity to review these 10 documents, so I may want to cross-examine further once 11 I've made that review. If I could use some time now. 12 C.O. STUBCHAER: Yes. 13 MR. NOMELLINI: Anybody else leaping to the 14 forefront? 15 C.O. STUBCHAER: Well, Mr. Herrick, but he doesn't 16 mind going last. 17 MR. JACKSON: And -- 18 C.O. STUBCHAER: And Mr. Jackson. 19 MR. JACKSON: And I'm going to be allowed to cross 20 later after I review this document? 21 C.O. STUBCHAER: Yes. 22 MR. JACKSON: Thank you. 23 C.O. STUBCHAER: Proceed. 24 // 25 // CAPITOL REPORTERS (916) 923-5447 15595 1 ---oOo--- 2 CROSS-EXAMINATION OF THE SAN JOAQUIN RIVER GROUP AUTHORITY 3 BY THE CENTRAL DELTA PARTIES 4 BY MR. NOMELLINI 5 MR. NOMELLINI: Dante John Nomellini for Central 6 Delta Parties. 7 Mr. Thabault, I recognize you have to leave -- or 8 you're going to come back later? 9 MR. THABAULT: I'll be back as expeditiously as 10 possible. 11 MR. NOMELLINI: Okay. Do you know when the 12 Department or the U.S. Fish and Wildlife Service first 13 indicated its endorsement of the San Joaquin River 14 Agreement? 15 MR. THABAULT: I couldn't specifically put a date on 16 it, no. 17 MR. NOMELLINI: Okay. If I told you it was 18 March 6th of 1998 that the U.S. Fish and Wildlife Service 19 signed this Statement of Support for the San Joaquin River 20 Agreement, would you know whether or not that was correct? 21 MR. THABAULT: Presumably if you provided the 22 document I could verify that, yes. 23 MR. NOMELLINI: All right. May I have a moment, 24 Mr. Chairman, to grab that document? 25 C.O. STUBCHAER: Yes. CAPITOL REPORTERS (916) 923-5447 15596 1 MR. NOMELLINI: Okay. Mr. Thabault, I want to show 2 you San Joaquin River Group Authority Exhibit Number 2 and 3 call your attention to Page 3 of that document. 4 MR. THABAULT: Okay. 5 MR. NOMELLINI: All right. And do you see a 6 signature on Page 3 on behalf of the U.S. Fish and 7 Wildlife Service? 8 MR. THABAULT: I believe that's the signature of 9 Mike Spear. 10 MR. NOMELLINI: Okay. And is there a date alongside 11 that signature? 12 MR. THABAULT: March 6th, 1998. 13 MR. NOMELLINI: Okay. Assuming for the sake of my 14 next question that that document was, in fact, signed by 15 Mr. Spear on or about March 6th of 1998, do you know what 16 studies of steelhead, if any, the U.S. Fish and Wildlife 17 Service had performed relating to the San Joaquin River 18 Agreement prior to that date? 19 MR. THABAULT: I'm unaware of any studies conducted 20 for steelhead. 21 MR. NOMELLINI: Okay. Do you know whether or not 22 the United States Fish and Wildlife Service gave any 23 consideration at all to steelhead as a part of their 24 decision making with regard to executing that Statement of 25 Support, which was San Joaquin River Group Authority CAPITOL REPORTERS (916) 923-5447 15597 1 Exhibit 2? 2 MR. THABAULT: To the best of my knowledge since 3 steelhead is a trust resource for the Department of the 4 Interior we would consider all trust resources when making 5 decisions on documents such as this. 6 MR. NOMELLINI: Okay. Did you play any part in the 7 U.S. Fish and Wildlife Service decision making with regard 8 to whether or not the U.S. Fish and Wildlife Service 9 should execute a Statement of Support for the San Joaquin 10 River Agreement? 11 MR. THABAULT: I provided technical advice and 12 information during the process, yes. 13 MR. NOMELLINI: Okay. And in what areas did you 14 provide the technical advice and information? 15 MR. THABAULT: Our primary center of interest on 16 this issue was the relationship to the Delta smelt and the 17 biological opinion of the then splittail conference 18 opinion on the joint operations of state and federal water 19 projects. 20 MR. NOMELLINI: Okay. Do you know for a fact that 21 steelhead were addressed at that time by the U.S. Fish and 22 Wildlife Service? 23 MR. THABAULT: Again, I was not involved in the 24 technical discussions on the steelhead or the anadromous 25 portions for the Fish and Wildlife Service. The study is CAPITOL REPORTERS (916) 923-5447 15598 1 for -- or the agreement is for anadromous fish and 2 Dr. Kjelson would have been the primary person who 3 provided the technical advice to our management for that, 4 for those species. 5 MR. NOMELLINI: Were you here when Dr. Kjelson 6 testified? 7 MR. THABAULT: No, I was not. 8 MR. NOMELLINI: Okay. Do you know whether or not he 9 gave any consideration to steelhead? 10 MR. THABAULT: I have not had that discussion with 11 Dr. Kjelson, no. 12 MR. NOMELLINI: All right. So you of your own 13 knowledge don't know whether or not anybody gave any 14 consideration in U.S. Fish and Wildlife Service to 15 steelhead prior to endorsing this Statement of Support for 16 the San Joaquin River Agreement, do you? 17 MR. THABAULT: Not specifically other than what I've 18 already testified to. 19 MR. NOMELLINI: All right. With regard to the San 20 Joaquin River Agreement and the species of concern in your 21 scope of involvement, which you indicated were Delta smelt 22 and splittail; is that correct? 23 MR. THABAULT: That's correct. 24 MR. NOMELLINI: All right. Did you make any 25 analysis as to the availability of water from the San CAPITOL REPORTERS (916) 923-5447 15599 1 Joaquin tributaries including the Stanislaus during a 2 reoccurrence of the 1987 through 1992 dry period? 3 MR. THABAULT: During the process we were provided 4 with a substantial amount of modeling information which 5 uses the historic hydrologic record which would have 6 encompassed those years, yes. 7 MR. NOMELLINI: Do you have any concern that by 8 depleting New Melones Reservoir to provide a spring pulse 9 flow that there may not be water available for fish in a 10 subsequent dry period? 11 MR. THABAULT: I'm unaware that the modeling showed 12 that. The Interim Operations Agreement in New Melones was 13 part of the project. I would leave that piece of the 14 analysis to the Bureau of Reclamation to provide us on 15 that. I'm not aware of the specifics on that. 16 MR. NOMELLINI: All right. So it's your 17 understanding, then, that water will be available 18 sufficient to sustain the fish species of concern to you 19 in a reoccurrence of the 1987 through '92 dry period even 20 if the pulse flows are made from New Melones as indicated 21 in the Interim Operations Plan? 22 MR. BRANDT: Objection. Vague. Are you talking 23 only about the Bureau of Reclamation? You just said 24 "available water." Are we talking about Merced, Tuolumne? 25 Objection. Vague. CAPITOL REPORTERS (916) 923-5447 15600 1 C.O. STUBCHAER: Mr. Nomellini. 2 MR. NOMELLINI: If I limited that to the Stanislaus, 3 would that help? 4 MR. THABAULT: We've reviewed the agreement and have 5 an agreement from Reclamation on how they will operate to 6 certain environmental parameters. And so to the extent 7 that they do that, that's what we've agreed to. 8 There are provisions in the biological opinion 9 under adverse hydrologic conditions and when certain 10 environmental parameters can't be met and reinitiation 11 clauses would go into effect if that was the case. 12 MR. NOMELLINI: Okay. So you don't know whether or 13 not, with regard to the Stanislaus, there would be 14 sufficient water available for fish in a reoccurrence of 15 the 1987 through '92 dry period if, in fact, the pulse 16 flows were made from New Melones as per the Interim 17 Operations Agreement? 18 MR. THABAULT: Nobody has specifically identified a 19 problem with New Melones storage to me. 20 MR. NOMELLINI: Okay. And if a problem did develop 21 then your testimony is: There would be a reconsultation; 22 is that correct? 23 MR. THABAULT: If Reclamation could not operate to 24 the project description that they put forth to us, there 25 would be a reconsultation, that is correct. CAPITOL REPORTERS (916) 923-5447 15601 1 MR. NOMELLINI: Okay. Do you think it's important 2 to know whether or not water would be available from the 3 Stanislaus in a subsequent period for the protection of 4 fish species? 5 MR. THABAULT: That would be a useful piece of 6 information, yes. 7 MR. NOMELLINI: But you didn't pursue that? 8 MR. THABAULT: That information, there was no 9 presentation given to the Service, to my knowledge, that 10 showed problems with New Melones storage over an extended 11 drought. 12 MR. NOMELLINI: Okay. Did the U.S. Fish and 13 Wildlife Service rely entirely on the Bureau of 14 Reclamation to disclose to the Service any possible 15 shortfall of water supply with regard to the San Joaquin 16 River Agreement? 17 MR. THABAULT: We rely heavily on Reclamation to 18 provide us with the operations and the planning models for 19 water supply. We do have people within the Service that 20 can review those models and identify areas of concern for 21 the Service as well. 22 MR. NOMELLINI: All right. Do you know -- 23 MR. BRANDT: He's got to go. 24 MR. NOMELLINI: Go ahead, if you want to go. Go 25 ahead. I'll pick that up later. CAPITOL REPORTERS (916) 923-5447 15602 1 C.O. STUBCHAER: All right. Thank you, 2 Mr. Thabault, we'll see you later. 3 MR. THABAULT: Thank you. 4 MR. NOMELLINI: Okay. Mr. Lecky, I do have a few 5 questions for you to fill in. All right. Starting with 6 the letter to you from Lowell Ploss -- are you adequately 7 represented without Mr. Brandt? 8 MS. ANDREWS McINTOSH: I believe he is. 9 MR. LECKY: I believe so. 10 C.O. STUBCHAER: That's a leading question. 11 MR. NOMELLINI: Well, I didn't know what the 12 procedure was here, because at times we've had other 13 counsel sitting up here, but we had the lead person 14 sitting here. 15 C.O. STUBCHAER: Okay. 16 MR. NOMELLINI: I just note for the record that 17 Mr. Lecky is adequately represented and will not claim not 18 being represented by counsel. 19 C.O. STUBCHAER: Is Central Delta adequately 20 represented? 21 MR. NOMELLINI: I think very adequately, 22 Mr. Chairman. 23 C.O. STUBCHAER: Ms. Leidigh. 24 MS. LEIDIGH: I was just going to suggest that, 25 perhaps, Mr. Lecky's counsel could identify herself. CAPITOL REPORTERS (916) 923-5447 15603 1 MR. NOMELLINI: Okay. That would be helpful. 2 MS. ANDREWS McINTOSH: My name is Dawn Andrews 3 McIntosh. I'm with the Office of General Counsel 4 representing Mr. Lecky adequately. 5 MR. NOMELLINI: Thank you. I'm sure that will be 6 the case now that I've raised the issue. 7 Mr. Lecky, calling your attention to San Joaquin 8 River Group Authority Exhibit 114-A, that was handed out 9 this morning. 10 MR. LECKY: Yes. 11 MR. NOMELLINI: You indicated you've seen that 12 letter before; is that correct? 13 MR. LECKY: That's correct. 14 MR. NOMELLINI: All right. Calling your attention 15 to the statement by Mr. Ploss on the bottom of Page 1 -- 16 and I'll read it -- it states, 17 (Reading): 18 "Relative to the steelhead, it is our 19 understanding at present that this species 20 occurs only in the Stanislaus River and the San 21 Joaquin River downstream of its confluence with 22 the Stanislaus." 23 Do you see that statement? 24 MR. LECKY: Yes. 25 MR. NOMELLINI: That statement isn't correct, is it? CAPITOL REPORTERS (916) 923-5447 15604 1 MR. LECKY: We believe that that's not entirely a 2 complete statement. 3 MR. NOMELLINI: All right. And the United States 4 Department of the Interior, Bureau of Reclamation was in 5 error in making that statement; was it not? 6 MR. O'LAUGHLIN: Objection. Argumentative. 7 C.O. STUBCHAER: Restate the question. 8 MR. NOMELLINI: Okay. Did the Bureau of Reclamation 9 prior to February 8th, 1999, the date of the San Joaquin 10 River Group Authority Exhibit 114-A, consult with you with 11 regard to steelhead on the San Joaquin River system? 12 MS. ANDREWS McINTOSH: I'd like to clarify, briefly. 13 When you say "you," do you mean him or the National Marine 14 Fisheries Service? 15 MR. NOMELLINI: Mr. Lecky. 16 MR. LECKY: Personally? 17 MR. NOMELLINI: You, personally. 18 MR. LECKY: No. 19 MR. NOMELLINI: Did you have any conversations with 20 Lowell Ploss with regard to the presence of steelhead on 21 the San Joaquin River system prior to February 8th, 1999? 22 MR. LECKY: Yes. 23 MR. NOMELLINI: All right. And what were those 24 conversations? 25 MR. LECKY: We have had conversations about the need CAPITOL REPORTERS (916) 923-5447 15605 1 to engage in and complete consultation on the impact of 2 operations of the Central Valley Project on threatened 3 Central Valley steelhead that were listed in March of 4 1998. 5 MR. NOMELLINI: All right. And did those 6 conversations involve whether or not steelhead existed on 7 the Tuolumne and Merced Rivers? 8 MR. LECKY: No. Those were very general 9 consultations about the need to consult throughout the 10 Central Valley. 11 MR. NOMELLINI: All right. Do you know when the 12 National Marine Fisheries Service's Notice of 13 Determination on the listing of steelhead was actually 14 published in the federal register? 15 MR. LECKY: I don't recall the exact date. 16 MR. NOMELLINI: All right. Let me show you Central 17 Delta Water Agency Exhibit 28, which is an exhibit in the 18 record, Mr. Chairman. 19 MR. LECKY: Yes. 20 MR. NOMELLINI: All right. And is that the Notice 21 of Determination in the federal register for the listing 22 of steelhead on the San Joaquin River system? 23 MR. LECKY: It's the notice for listing steelhead in 24 the Central Valley which includes the San Joaquin. 25 MR. NOMELLINI: Including the San Joaquin? CAPITOL REPORTERS (916) 923-5447 15606 1 MR. LECKY: Yes. 2 MR. NOMELLINI: All right. And the date of that 3 notice was March 19th, 1998; is that correct? 4 MR. LECKY: That's correct. 5 MR. NOMELLINI: All right. And you would agree that 6 March 19th, 1998, is a date prior to February 8th, 1999, 7 which is the date of Lowell Ploss's letter? 8 MR. LECKY: Yes, I would. 9 MR. NOMELLINI: All right. And do you agree that 10 the Notice of Determination -- that I referred to as 11 Central Delta Water Agency 28 -- includes the finding of 12 steelhead on the Tuolumne and Merced River? 13 MR. LECKY: Yes, it says they're present there. 14 MR. NOMELLINI: Okay. And so does the National 15 Marine Fisheries Service provide copies of their 16 determinations to the Bureau of Reclamation as a matter of 17 regular procedure? 18 MR. LECKY: The document is published in the federal 19 register. And I think we rely on that mechanism to 20 disseminate information among our sister agencies. 21 MR. NOMELLINI: Okay. In the conversations that you 22 had with Mr. Ploss prior to February 8th, 1999, with 23 regard to the need for a consultation on steelhead, was 24 any reference made to the fact that the Notice of 25 Determination had been published in the federal register? CAPITOL REPORTERS (916) 923-5447 15607 1 MR. LECKY: Yes. I believe there was discussion of 2 the fact that we had completed our listing determinations. 3 MR. NOMELLINI: Do you know whether or not Lowell 4 Ploss was aware of this Notice of Determination prior to 5 February 8th, 1999? 6 MR. LECKY: I can only assume that he was. 7 MR. NOMELLINI: Okay. But is there anything in the 8 conversations that you had with Mr. Ploss that would 9 indicate that he knew or didn't know about the Notice of 10 Determination? 11 MR. LECKY: No. 12 MR. NOMELLINI: All right. With regard to the 13 National Marine Fisheries Service's process, how does 14 your -- first of all, where is your office located? 15 MR. LECKY: My office is located in Long Beach, 16 California. 17 MR. NOMELLINI: All right. And do you know where 18 the office is that produced the Notice of Determination 19 for steelhead which was published in the federal register 20 on March 19th, 1999? 21 MS. ANDREWS McINTOSH: I'm going to say it's 22 ambiguous when you say "produced." What do you mean by 23 "produced"? 24 MR. NOMELLINI: Okay. Do you know -- 25 C.O. STUBCHAER: Please, direct your objections to CAPITOL REPORTERS (916) 923-5447 15608 1 the Chair. That's our proper procedure. 2 MS. ANDREWS McINTOSH: Sorry. 3 C.O. STUBCHAER: That's okay. 4 MR. NOMELLINI: I'll withdraw it and try and start 5 it again. 6 Do you have any involvement, Mr. Lecky, in the 7 development of the final rule, the Notice of Determination 8 for which was published in the federal register on 9 March 19, 1998, relating to steelhead in the Central 10 Valley? 11 MR. LECKY: Yes. 12 MR. NOMELLINI: And what was your involvement? 13 MR. LECKY: I reviewed the final product and 14 presented it as a recommended final decision to the 15 administrator of our agency in cooperation with our 16 northwest regional office. 17 MR. NOMELLINI: Okay. Did your Long Beach office 18 prepare the final product which you reviewed? 19 MR. LECKY: Not my Long Beach office, but staff that 20 works for me prepared parts of that document that deal 21 with California. 22 MR. NOMELLINI: Okay. And are those staff that you 23 refer to located in Oregon? 24 MR. LECKY: No. They're located in Eureka. 25 MR. NOMELLINI: And at the time of your approval of CAPITOL REPORTERS (916) 923-5447 15609 1 the final product, were you aware of the finding in the 2 document with regard to steelhead on the Tuolumne and 3 Merced? 4 MR. LECKY: Yes. 5 MR. NOMELLINI: And do you agree with that finding? 6 MR. LECKY: Yes. 7 MR. NOMELLINI: Okay. With regard to the National 8 Marine Fisheries Service consultation on steelhead, is 9 that the result of that consultation reflected in San 10 Joaquin River Group Authority Exhibit 114-B? 11 MS. ANDREWS McINTOSH: Mr. Chairman, I'm going to 12 object as to which consultation with regard to steelhead. 13 There have been many that NMFS has been involved with. 14 C.O. STUBCHAER: Okay. Would you clarify, 15 Mr. Nomellini? 16 MR. NOMELLINI: Okay. All right. How many 17 consultations have you, Mr. Lecky, been involved in with 18 regard to steelhead in the Central Valley of California? 19 MR. LECKY: I'm afraid I can't provide you with a 20 number at this point. 21 MR. NOMELLINI: Were there lots of them? 22 MR. LECKY: There were lots of them involved. 23 MR. NOMELLINI: Okay. So you've been involved in 24 numerous consultations involving Central Valley steelhead, 25 is that what your testimony is? CAPITOL REPORTERS (916) 923-5447 15610 1 MR. LECKY: Yes. 2 MR. NOMELLINI: Okay. And one of those 3 consultations involved the operations of the Bureau of 4 Reclamation on the Stanislaus River; is that correct? 5 MR. LECKY: That's correct. 6 MR. NOMELLINI: All right. And is that consultation 7 the subject of your letter -- well, yeah, you signed it on 8 behalf of Mr. Hogarth -- letter, which is San Joaquin 9 River Group Authority 114-B? 10 MR. LECKY: Yes. 11 MR. NOMELLINI: All right. Is that the only 12 consultation with regard to steelhead in the Central 13 Valley that you've had with regard to the San Joaquin 14 River Agreement? 15 MR. LECKY: Yes. 16 MR. NOMELLINI: All right. And this consultation 17 that you had, did it cover a certain period of time? 18 MR. LECKY: Yes. 19 MR. NOMELLINI: All right. And what was the period? 20 MR. LECKY: Actually, there are two species 21 addressed in this letter. One is winter-run chinook 22 salmon, which is on the Sacramento side of the system, and 23 it's covers 1999 to 2010. For steelhead it only covers 24 the 1999 operations. 25 MR. NOMELLINI: All right. For steelhead -- and CAPITOL REPORTERS (916) 923-5447 15611 1 again referring to San Joaquin River Group Authority 2 114-B -- it covers a period of time limited to 1999 3 through March of the year 2000; is that correct? 4 MR. LECKY: That's correct. 5 MR. NOMELLINI: All right. Now, do you know what 6 the term of the San Joaquin River Agreement is? 7 MR. LECKY: Yes. 8 MR. NOMELLINI: All right. And what is it? 9 MR. LECKY: It's from 1999 through 2010. 10 MR. NOMELLINI: It's a 12-year agreement; is it not? 11 MR. LECKY: That's correct. 12 MR. NOMELLINI: All right. Does the National Marine 13 Fisheries Service have any concern with regard to the 14 impact of the San Joaquin River Agreement on Central 15 Valley steelhead after March of the year 2000? 16 MR. LECKY: That's the subject of ongoing 17 consultations and discussions with the Bureau of 18 Reclamation and other water entities. 19 MR. NOMELLINI: All right. And what concerns are 20 there that will be addressed by the National Marine 21 Fisheries Service with regard to steelhead in the Central 22 Valley and the San Joaquin River Agreement for the period 23 after March of 2000? 24 MR. LECKY: As I indicated, that is the subject of 25 ongoing consultations. Our concerns are along the lines CAPITOL REPORTERS (916) 923-5447 15612 1 of whether or not there is available habitat in some of 2 the tributaries, whether or not we can sustain fish in 3 those habitats, if there is suitable habitat in the lower 4 reaches of these rivers than there are quality of habitat 5 issues related to temperature flows, quality of spawning 6 gravels, things of that nature. 7 MR. NOMELLINI: Okay. Would it be correct to state 8 that the National Marine Fisheries Service will be 9 concerned about temperature impacts in the Merced River 10 below Lake McClure? 11 MR. LECKY: Yes. 12 MR. NOMELLINI: Okay. Are those concerns with 13 regard to any -- temperature concerns -- again in the 14 Merced below Lake McClure, are those concerns with regard 15 to temperature limited to any particular period of time of 16 the year? 17 MR. LECKY: Well, first of all, our concerns are not 18 necessarily related specifically to the San Joaquin River 19 Agreement, but we are concerned and have expressed concern 20 in correspondence with the Bureau about temperature 21 problems for steelhead as well as temperature problems for 22 fall-run chinook salmon below Lake McClure. 23 MR. NOMELLINI: Okay. Focusing in on those 24 temperature problems in the Merced below Lake McClure, 25 could you describe what that temperature problem would be CAPITOL REPORTERS (916) 923-5447 15613 1 with regard to steelhead? 2 MR. LECKY: Well, it's essentially the same for both 3 species. We're concerned that summer temperatures are 4 potentially lethal in certain years. 5 MR. NOMELLINI: Okay. So summer temperatures 6 potentially lethal in certain years in the Merced below 7 Lake McClure and that concern would apply to both 8 steelhead and fall-run chinook salmon? 9 MR. LECKY: We have asked the Bureau to engage in 10 some modeling exercises to address that issue. 11 MR. NOMELLINI: All right. Now, what is the status 12 of that modeling? 13 MR. LECKY: I believe it's ongoing. 14 MR. NOMELLINI: Ongoing. Has a report been produced 15 and presented to you? 16 MR. LECKY: No. 17 MR. NOMELLINI: When do you expect that the ongoing 18 modeling would produce a report that would be available to 19 you? 20 MR. LECKY: I'm not aware of what the time frame is. 21 MR. NOMELLINI: All right. Would you agree that 22 steelhead need adequate temperature conditions on a 23 year-round basis because they reside in the river system 24 for one to as many as, perhaps, four years? 25 MR. LECKY: Yes, generally that's true. CAPITOL REPORTERS (916) 923-5447 15614 1 MR. NOMELLINI: All right. Now, with regard to the 2 fall-run salmon, what would the summertime temperature 3 concern be with regard to fall-run salmon? 4 MR. LECKY: Actually -- 5 MS. ANDREWS McINTOSH: Mr. Chairman, could I ask 6 that he clarify as to where he's talking about. 7 MR. NOMELLINI: I'm talking about -- 8 C.O. STUBCHAER: Yes, you may. 9 MR. NOMELLINI: I'm sorry. 10 C.O. STUBCHAER: Yes, you may. 11 MR. NOMELLINI: For clarification, Mr. Chairman, 12 I'll limit my question to the Merced River below Lake 13 McClure. Thank you. Sorry for that. 14 MR. LECKY: The concern is in the late fall for the 15 early arrivals and spawners that there be adequate 16 protection for the eggs that are being laid. 17 MR. NOMELLINI: Okay. Is there any concern with 18 regard to -- I'm going to call them carryover fingerlings 19 with regard to fall-run salmon? 20 MR. LECKY: For fall-run, fall-run typically 21 outmigrate in the same year that they spawn. 22 MR. NOMELLINI: Okay, they outmigrate in the same 23 year. But do some of them outmigrate during the April/May 24 period? 25 MR. LECKY: Yes, absolutely. CAPITOL REPORTERS (916) 923-5447 15615 1 MR. NOMELLINI: All right. And do some of them 2 outmigrate in September? 3 MR. LECKY: Fall-run should be out of the system 4 before summer starts. 5 MR. NOMELLINI: Do you know whether there are any 6 fall-run chinook salmon that outmigrate after the month of 7 May? 8 MR. LECKY: Yes, there probably are. 9 MR. NOMELLINI: All right. Do you know whether or 10 not there are fall-run chinook salmon that outmigrate -- 11 and again I'm talking about the Merced below Lake 12 McClure -- after June? 13 MR. LECKY: No. 14 MR. NOMELLINI: Okay. 15 MR. LECKY: No, I don't know. 16 MR. NOMELLINI: All right. With regard to the 17 temperature concerns in the Merced below Lake McClure, 18 does the National Marine Fisheries Service have a concern 19 with regard to the adequacy of water levels in Lake 20 McClure to provide the necessary temperature control? 21 MR. LECKY: Well, this is part of ongoing 22 discussions and review of information. And we haven't 23 formulated a specific opinion. 24 MR. NOMELLINI: Okay. Would you agree that changes 25 in reservoir storage could affect the temperature of the CAPITOL REPORTERS (916) 923-5447 15616 1 water released from the particular reservoir? 2 MR. LECKY: Generally, that's true in most reservoir 3 operations. 4 MR. NOMELLINI: All right. And would you agree that 5 reduction in carryover storage in Lake McClure could 6 adversely affect the temperature with regard to steelhead 7 in the river below Lake McClure? 8 MR. LECKY: It's possible. 9 MR. NOMELLINI: All right. Now, do you rely on the 10 Bureau to provide you with the analysis of project 11 operations upon which your service would base its decision 12 as to whether or not there would be an adverse impact? 13 MR. LECKY: In part, yes, we do. 14 MR. NOMELLINI: Okay. Does National Marine 15 Fisheries Service have its own hydrologist and engineers? 16 MR. LECKY: We do have hydrologists and engineers on 17 staff, yes. 18 MR. NOMELLINI: Okay. Do they routinely review the 19 operations and modeling work of the Bureau of Reclamation 20 to see whether or not it accurately represents future 21 conditions? 22 MR. LECKY: Yes. 23 MR. NOMELLINI: Okay. Who in National Marine 24 Fisheries Service is the reviewing person with regard to 25 the operations on the Merced? CAPITOL REPORTERS (916) 923-5447 15617 1 MS. ANDREWS McINTOSH: May I ask which operations to 2 clarify. 3 C.O. STUBCHAER: Yes. 4 MR. NOMELLINI: Associated with the San Joaquin 5 River Agreement. 6 MR. LECKY: My lead person is Mr. Gary Stern. There 7 are other staff that support him in that effort. 8 MR. NOMELLINI: Is Mr. Stern an engineer? 9 MR. LECKY: No, he is a biologist. 10 MR. NOMELLINI: Does he have somebody working with 11 him that is capable of analyzing the project operations 12 from an engineering standpoint? 13 MR. LECKY: We have an engineering staff in our 14 Santa Rosa office. And I'm not sure who on that staff is 15 assisting. 16 MR. NOMELLINI: Are you confident that someone is 17 assisting him with the engineering analysis? 18 MR. LECKY: Yes. 19 MR. NOMELLINI: Switching now to the Tuolumne, does 20 National Marine Fisheries Service have similar concerns 21 with regard to temperature impact on the Tuolumne on 22 steelhead and fall-run chinook salmon? 23 MR. LECKY: Yes. And those are, likewise, the 24 subject of ongoing discussions. 25 MR. NOMELLINI: Okay. Aside from -- and would the CAPITOL REPORTERS (916) 923-5447 15618 1 same be true with regard to the Stanislaus? 2 MR. LECKY: Yes. 3 MR. NOMELLINI: All right. So temperature concerns 4 exist with regard to steelhead and fall-run chinook salmon 5 in the mind of National Marine Fisheries Service on the 6 Stanislaus, Tuolumne and the Merced; is that correct? 7 MR. LECKY: That's correct. 8 MR. NOMELLINI: All right. Now, other than 9 temperature, what other concerns, if any, does the 10 National Marine Fisheries Service have with regard to 11 steelhead on the Stanislaus, Tuolumne and Merced? And I 12 realize it's a little bit compound. But if that's 13 difficult for you to deal with, in general, we'll go back 14 river by river. 15 MR. LECKY: Well, no, because I think it's probably 16 easier to answer it generally, generically. I think as 17 with most of the anadromous fish populations that are 18 declining on the West Coast and in California, a major 19 issue or factor in that decline is the loss of habitat 20 created by dams low down in these systems. 21 For steelhead we're looking at probably less than 22 five percent of their habitat remaining. On the San 23 Joaquin River side of the system, it's probably a smaller 24 number than that. 25 So the question is: Can you sustain them in that CAPITOL REPORTERS (916) 923-5447 15619 1 small remnant of habitat, or do you need to go above the 2 dam somehow? And those are all issues that are being 3 contemplated as a part of a recovery strategy that we're 4 beginning to get underway. Relative to protecting what 5 habitat is left, we're particularly concerned for 6 anadromous fish about temperatures, about quality of 7 spawning gravel, about the availability of shaded aquatic 8 habitat and other water quality factors associated with ag 9 return, urban effluents, things of that nature. 10 MR. NOMELLINI: All right. Would you agree that the 11 needs of steelhead in the river system are similar to the 12 needs for rainbow trout? 13 MR. LECKY: Yes, I would expect that they're 14 comparable. 15 MR. NOMELLINI: All right. Do you agree that a 16 steelhead is an ocean-going rainbow trout? 17 MR. LECKY: Yes. 18 MR. NOMELLINI: All right. With regard to diversity 19 of habitat -- that's going to be a bad question. 20 Does it make any difference -- I've got to look 21 up there every once in a while to collect my thoughts. 22 C.O. STUBCHAER: We're going to put a sign up there 23 for you. 24 MR. NOMELLINI: I got a hat that I was going to 25 wear, but I decided against it. CAPITOL REPORTERS (916) 923-5447 15620 1 Is it important to restoration of steelhead that 2 each of the river systems that historically had steelhead 3 be included in a recovery plan? 4 MR. LECKY: That's actually a question that the 5 recovery team will evaluate. 6 MR. NOMELLINI: All right. How important is the 7 diversity of spawning habitat to the recovery of 8 steelhead, recognizing that the decision is going to be 9 made in the future? 10 MR. LECKY: Generally, for all the anadromous 11 species that we have listed, we are looking for 12 maintaining healthy populations across many different 13 areas. 14 MR. NOMELLINI: All right. Now, are you aware of 15 steelhead upstream of the Merced River and in the main 16 stem of the San Joaquin? 17 MR. LECKY: I'm aware -- 18 MR. NOMELLINI: I know you're aware of one. 19 MR. LECKY: I'm aware of a report of one being 20 captured there and released in the Merced River, yes. 21 MR. NOMELLINI: Okay. Are you aware of any other? 22 MR. LECKY: No, I'm not. 23 MR. NOMELLINI: Are there any trout in the San 24 Joaquin River upstream of the Merced? 25 MR. LECKY: Actually, I don't know that. CAPITOL REPORTERS (916) 923-5447 15621 1 MR. NOMELLINI: Okay. Do you know whether or not 2 there are trout -- well, you answered the question. 3 All right. You understand the San Joaquin River 4 goes all the way to Friant Dam? 5 MR. LECKY: Yes. 6 MR. NOMELLINI: Okay. 7 MR. LECKY: And beyond. 8 MR. NOMELLINI: And you don't know if there are any 9 trout downstream of Friant Dam in the San Joaquin River; 10 is that your testimony? 11 MR. LECKY: Right. 12 MR. NOMELLINI: Okay. Does the National Marine 13 Fisheries Service have any concern with regard to release 14 of water from the Exchange Contractors to the San Joaquin 15 River upstream of the Merced with regard to its impact on 16 steelhead? 17 MR. LECKY: I'm sorry, I didn't quite follow that. 18 MR. NOMELLINI: All right. 19 C.O. STUBCHAER: Mr. Nomellini, while you're 20 pondering that question, should we take our morning break? 21 MR. NOMELLINI: Sure. 22 C.O. STUBCHAER: Okay. We'll take our morning 23 break. 24 (Recess taken from 10:24 a.m. to 10:39 a.m.) 25 C.O. STUBCHAER: Come back to order, please. CAPITOL REPORTERS (916) 923-5447 15622 1 All right, Mr. Nomellini. 2 MR. NOMELLINI: I believe we left off with a 3 question about concerns with regard to impact on steelhead 4 because of releases from the Exchange Contractors to the 5 San Joaquin River under the San Joaquin River Agreement. 6 Mr. Lecky, do you know what the National Marine 7 Fisheries Service's concerns are, if any, with regard to 8 the impact of those flows on steelhead? 9 MR. LECKY: The releases associated with the San 10 Joaquin River Agreement probably will provide some benefit 11 to outmigrant juvenile steelhead. To the extent that 12 there are concerns related to temperatures in those 13 systems, we don't believe the San Joaquin River Agreement 14 precludes our ability to work with water districts and 15 other entities under the Endangered Species Act to address 16 those. 17 MR. NOMELLINI: Okay. Is there any concern for 18 imprinting steelhead, for example, from the Merced with 19 water that might be introduced from the Exchange 20 Contractors? 21 MR. BRANDT: Objection. Vague. 22 MR. NOMELLINI: Yeah, it is vague. 23 C.O. STUBCHAER: Okay. Objection sustained. 24 MR. NOMELLINI: All right. You would agree, would 25 you not, that the San Joaquin River Agreement contemplates CAPITOL REPORTERS (916) 923-5447 15623 1 that the Exchange Contractors would provide water to the 2 San Joaquin River from the Delta-Mendota Canal; would you 3 not? 4 MR. LECKY: Actually, I'm not real familiar with the 5 mix of that. 6 MR. NOMELLINI: Okay. Let me give you a 7 hypothetical. Let's assume that the San Joaquin River 8 Agreement provides for releases to the San Joaquin River 9 for the spring pulse flow that originate from the 10 Delta-Mendota Canal and are introduced to the river 11 upstream of the Merced. 12 You got that hypothetical? 13 MR. LECKY: Yes. 14 MR. NOMELLINI: All right. Is there any problem 15 that you know of with regard to imprinting outmigrant 16 salmon smolt with the Delta-Mendota Canal water under that 17 hypothetical? 18 MR. LECKY: Actually, I would have to rely on my 19 staff biologist to advise me on that. 20 MR. NOMELLINI: All right. And would your testimony 21 be the same with regard to steelhead? 22 MR. LECKY: Yes. 23 MR. NOMELLINI: Do you know whether or not there has 24 been any analysis of the impact of the San Joaquin River 25 Agreement on reduction of river flows in the Stanislaus, CAPITOL REPORTERS (916) 923-5447 15624 1 Tuolumne or Merced? 2 MR. LECKY: Well, I know that there's been modeling 3 exercises that staff have participated in review of, but I 4 have not participated in any of those. 5 MR. NOMELLINI: All right. Are reductions in river 6 flows during the summer months detrimental to steelhead on 7 the Stanislaus, Tuolumne or Merced? 8 MR. O'LAUGHLIN: Objection. Vague and ambiguous. 9 Assumes some type of baseline that's not defined. 10 Reduction from what? 11 C.O. STUBCHAER: Mr. Nomellini. 12 MR. NOMELLINI: Yeah, I think the witness could 13 qualify that. I don't think the question is ambiguous. 14 It's fairly general. 15 MR. O'LAUGHLIN: Well, no, it's not general -- if 16 it's general, then it assumes facts not in evidence. It 17 assumes that there is some type of reduction in river 18 flows in the summertime. Under what situation? Under 19 what conditions? Under what year types? Under what type 20 of operations? 21 Are we going to compare interim operations plans 22 versus what was happening back in 1975 or 1985? Are we 23 going to look at dry year criteria? What is the baseline 24 that Mr. Nomellini's question is operating on? 25 MR. NOMELLINI: Well, Mr. O'Laughlin is quite able CAPITOL REPORTERS (916) 923-5447 15625 1 to answer the question and set up the concerns and 2 parameters involved in that impact. My question was to 3 Mr. Lecky. But let me go back here now. 4 Mr. Lecky, is flow important to the restoration 5 of steelhead, flow in the river systems such as the 6 Stanislaus, Tuolumne and Merced, important to the 7 restoration of steelhead? 8 MR. O'LAUGHLIN: Objection. Compound. 9 MR. NOMELLINI: Okay. I'll break it down if 10 that's -- 11 C.O. STUBCHAER: All right. 12 MR. NOMELLINI: We'll consume a little more time. 13 C.O. STUBCHAER: Mr. Lecky, did you understand the 14 question? 15 MR. LECKY: Yes. 16 C.O. STUBCHAER: All right. Go ahead and answer the 17 question. 18 MR. NOMELLINI: Do you want to take all three of 19 them? 20 MR. LECKY: I would just say fish need water. 21 MR. NOMELLINI: Okay. Very good. And they need 22 water year-round, don't they? 23 MR. LECKY: Absolutely. 24 MR. NOMELLINI: And they need water in the summer 25 months as well; is that correct? CAPITOL REPORTERS (916) 923-5447 15626 1 MR. O'LAUGHLIN: Objection. Vague and ambiguous as 2 to "they." What type of fish are we talking about? 3 MR. NOMELLINI: We know we're talking about the 4 steelhead. 5 MR. O'LAUGHLIN: No. No. 6 C.O. STUBCHAER: Mr. O'Laughlin, all fish need 7 water. He said "fish." 8 MR. O'LAUGHLIN: Yeah, but there's two questions 9 that are going on here. First of all, Mr. Nomellini, you 10 said -- and it makes my point very well -- you said "all 11 fish," Mr. Nomellini has referred to steelhead only. 12 I think if the question is going to be asked, it 13 should be specific as to species. Mr. Lecky is here 14 testifying about specific species upon which the National 15 Marine Fisheries has jurisdiction. He is not testifying 16 about fish, generally. So if the question is "they," I 17 would like the question specific as to fish species so the 18 record is clear. 19 C.O. STUBCHAER: The questions need to be specific 20 when you get down to specifics, but he said "fish need 21 water in the summertime," but anyway, please, go ahead. 22 MR. NOMELLINI: Yeah, I mean for the sake of the -- 23 C.O. STUBCHAER: Let's not debate. 24 MR. NOMELLINI: The witness testified in "fish in 25 general," and then I used the word "they" with reference CAPITOL REPORTERS (916) 923-5447 15627 1 to his answer to the previous question. My real concern 2 is with regard to steelhead. 3 C.O. STUBCHAER: All right. Please, proceed and be 4 specific. 5 MR. NOMELLINI: Okay. Mr. O'Laughlin might need a 6 longer break. 7 C.O. STUBCHAER: No editorial comments. 8 MR. NOMELLINI: All right. I withdraw. I will stay 9 here. 10 Let's focus on river flow in the Merced and the 11 impact of flow on restoration of steelhead. What aspects 12 of river flow are important to the restoration of 13 steelhead on the Merced? 14 MR. LECKY: I don't believe that we have determined 15 what we need to see on the Merced at this point. 16 MR. NOMELLINI: Okay. You indicated that fish need 17 water; did you not? 18 MR. LECKY: Yes, I did. 19 MR. NOMELLINI: Okay. Your testimony is how much 20 water, you don't know? 21 MR. LECKY: Right. 22 MR. NOMELLINI: Okay. Does a reduction in 23 summertime flow on the Merced River raise a concern that 24 needs to be analyzed with regard to steelhead? 25 MR. O'LAUGHLIN: Well, before he answers the CAPITOL REPORTERS (916) 923-5447 15628 1 question, I will object again. 2 C.O. STUBCHAER: Sustained. 3 MR. O'LAUGHLIN: Thank you. 4 MR. NOMELLINI: Assuming that there was a reduction 5 in flow of 100 cubic feet per second in the month of 6 August on the Merced River, would that raise a concern to 7 National Marine Fisheries Service with regard to impacts 8 on the steelhead? 9 C.O. STUBCHAER: Mr. O'Laughlin. 10 MR. O'LAUGHLIN: Objection. It's an incomplete 11 hypothetical. It doesn't provide the witness enough 12 information upon which to base any statement. 13 C.O. STUBCHAER: Sustained. 14 MR. O'LAUGHLIN: Thank you. 15 MR. NOMELLINI: Will somebody explain that to me? 16 C.O. STUBCHAER: Yes. Say the flow was 80 cfs and 17 then they had a reduction of 100, so it was an incomplete 18 question. 19 MR. NOMELLINI: Well, would the National Marine 20 Fisheries Service be concerned about any reduction in flow 21 on the Merced during the summertime with regard to 22 possible impacts on steelhead? 23 MS. ANDREWS McINTOSH: I'm going to object, 24 Mr. Chairman. It all depends on the water year. It 25 depends on a lot of factors. I would say he has to be CAPITOL REPORTERS (916) 923-5447 15629 1 more specific, or it's going to be a speculative answer. 2 C.O. STUBCHAER: Sustained. 3 MR. NOMELLINI: Assuming for the sake of a 4 hypothetical, that we have a river flow of 200 cubic feet 5 per second in the Merced in August; and assuming also for 6 the sake of this hypothetical, that it were to be reduced 7 to 100 cubic feet per second. 8 Would that reduction raise a concern to the 9 National Marine Fisheries Service that the impact on 10 steelhead would have to be analyzed? 11 MR. LECKY: We would look at what the impact of that 12 reduction would be on available habitat and habitat 13 characteristics. 14 MR. NOMELLINI: All right. And would you not look 15 at any significant reduction in inflow of the Merced River 16 in the summertime with regard to its impact on steelhead? 17 MR. O'LAUGHLIN: Objection. Vague and ambiguous. 18 "Significant reduction" hasn't been defined. 19 MR. NOMELLINI: We're going to pursue that. 20 C.O. STUBCHAER: Please, rephrase the question. 21 MR. NOMELLINI: Could you describe what a 22 significant reduction in flow would be with regard to 23 impacts on steelhead in the Merced? 24 MR. LECKY: The importance of the Merced River to 25 the restoration of steelhead in the Central Valley is an CAPITOL REPORTERS (916) 923-5447 15630 1 issue that will be analyzed by the recovery team in a 2 recovery process. In the interim, we're engaged in 3 discussions to look at what we think can be accomplished 4 down there. 5 But at this point the Fisheries Service has not 6 made a definitive statement on what it can achieve and 7 what it needs to achieve in the Merced River with regard 8 to the recovery of steelhead. 9 MR. NOMELLINI: All right. And with regard to the 10 importance of flow in the summertime, are the concerns 11 similar for the Stanislaus and Tuolumne as they are for 12 the Merced? 13 MR. LECKY: Yes. The issue of flow in these rivers 14 is the subject of ongoing consultations. 15 MR. NOMELLINI: Okay. Focusing on flow and its 16 relationship to steelhead, is flow a factor to be 17 considered with regard to maintenance of adequate 18 temperature? 19 MR. LECKY: It may be. 20 MR. NOMELLINI: All right. And with regard to other 21 factors affecting steelhead with flow, you had indicated 22 earlier in answer to questions that a general concern was 23 habitat and temperature was one aspect of the habitat. 24 Do you recall that? 25 MR. LECKY: Yes. CAPITOL REPORTERS (916) 923-5447 15631 1 MR. NOMELLINI: All right. What other aspects for 2 steelhead habitat are effected by flow? 3 MR. LECKY: Well, velocity, dissolved oxygen, things 4 of those nature. 5 MR. NOMELLINI: All right. And how about the amount 6 of coverage of the river bottom that would go along with 7 any particular flow? 8 MR. LECKY: More wetted area, yes. 9 MR. NOMELLINI: And what about contact with 10 predatory species, is that affected by flow? 11 MR. LECKY: It can be. 12 MR. NOMELLINI: Okay. And you've indicated this 13 analysis is ongoing; is that correct, with regard to 14 steelhead and the San Joaquin River Agreement? 15 MR. LECKY: Yes. 16 MR. NOMELLINI: Do you know whether or not there's 17 been any analysis with regard to impacts on flows 18 important to steelhead of changes in return flows to the 19 river, or accretions to the river? 20 MR. LECKY: I don't have any personal knowledge of 21 that. 22 MR. NOMELLINI: All right. Does the National Marine 23 Fisheries Service have any concern with regard to impacts 24 of the San Joaquin River Agreement on other tributaries to 25 the San Joaquin River such as Little John's Creek, Lone CAPITOL REPORTERS (916) 923-5447 15632 1 Tree Creek and Bear Creek? 2 MR. LECKY: I believe that no determination has been 3 made relative to those. 4 MR. NOMELLINI: All right. Are you aware that there 5 are minor -- I'm going to use the term "minor" -- 6 tributaries to the San Joaquin River that contain fish 7 life? 8 MR. LECKY: Fish life, generally, yes. 9 MR. NOMELLINI: Are you aware of Little John's 10 Creek? 11 MR. LECKY: No, I'm not. 12 MR. NOMELLINI: Okay. How about Lone Tree Creek? 13 MR. LECKY: No, I'm not. 14 MR. NOMELLINI: Bear Creek? 15 MR. LECKY: No, not personally. 16 MR. NOMELLINI: All right. In reaching your 17 conclusion that, at least to the end of March 2000 as 18 indicated in your -- well, San Joaquin River Agreement -- 19 San Joaquin River Group Authority Exhibit 114-B, do you 20 know what assumptions were made by your staff as to the 21 source of water to be provided by the contributing 22 agencies to the San Joaquin River Agreement? 23 MR. O'LAUGHLIN: Well, I'm going to object. Vague 24 and ambiguous as to "source of water." 25 C.O. STUBCHAER: Mr. Lecky, do you understand the CAPITOL REPORTERS (916) 923-5447 15633 1 question? 2 MR. LECKY: I believe I do. 3 C.O. STUBCHAER: All right. Please, proceed. 4 MR. LECKY: And I don't know the answer. 5 MR. NOMELLINI: Okay. In other words, you don't 6 know what assumptions were made as to what the source of 7 the water being provided would be under the San Joaquin 8 River Agreement, is that your testimony? 9 MR. LECKY: That's correct. 10 MR. NOMELLINI: Do you know whether or not anybody 11 in your staff knows the source of the water to be 12 provided? 13 MR. LECKY: No, I don't know. 14 MR. NOMELLINI: Okay. With regard to San Joaquin 15 River Group Authority 114-B, you include a statement that 16 says, 17 (Reading): 18 "I concur with your determination that 19 implementation of the flow objectives in the 20 SJRA," which is San Joaquin River Agreement, 21 "is not likely to adversely affect the 22 endangered winter-run chinook salmon." 23 Do you see that statement? 24 MR. LECKY: Yes. 25 MR. NOMELLINI: Are you aware that the San Joaquin CAPITOL REPORTERS (916) 923-5447 15634 1 River Agreement includes a provision with regard to 2 installation of the Head of Old River Barrier? 3 MR. LECKY: Yes. 4 MR. NOMELLINI: All right. Does this statement 5 include the impacts of the Head of Old River Barrier on 6 winter-run chinook salmon? 7 MR. LECKY: Yes. 8 MR. NOMELLINI: Okay. And, then, is it correct that 9 the National Marine Fisheries Service has determined that 10 installation of a Head of Old River Barrier would not 11 induce more winter-run salmon to be taken at the export 12 pumping facilities of the CVP and SWP? 13 MR. LECKY: I believe we think that the Head of Old 14 River Barrier -- I'm sorry, would you ask your question 15 one more time? 16 MR. NOMELLINI: All right. Maybe I can break it 17 down. Does the National Marine Fisheries Service have any 18 concern with regard to the installation of the Head of Old 19 River Barrier causing greater flows to the export pumps 20 from the central and western Delta? 21 MR. LECKY: No. 22 MR. NOMELLINI: You're not aware of any concern like 23 that? 24 MR. LECKY: Right. 25 MR. NOMELLINI: Okay. And is it true, then, that CAPITOL REPORTERS (916) 923-5447 15635 1 the National Marine Fisheries Service does not see a 2 problem with the Head of Old River Barrier in terms of 3 greater numbers of winter-run salmon being taken by the 4 SWP and CVP export pumps? 5 MR. LECKY: I don't believe we anticipate an 6 increased take of winter-run as a result of the 7 installation of the Head of Old River Barrier. 8 C.O. STUBCHAER: Mr. Nomellini, your hour is up. 9 How much more? 10 MR. NOMELLINI: That's perfect timing, Mr. Chairman, 11 because I've completed my cross-examination. 12 C.O. STUBCHAER: You have? I don't want to cut you 13 off. 14 MR. NOMELLINI: With regard to these green binders, 15 I ask to be allowed to review these and if I determine 16 that I have further questions that Mr. Lecky be produced 17 upon my request for examination with regard to those 18 documents. 19 C.O. STUBCHAER: Mr. Brandt. 20 MR. BRANDT: Mr. Chairman, I'd ask, then, that I be 21 given an opportunity at the end of this to do a short 22 cross-examination on his knowledge of those, I think that 23 for a number of reasons, he comes from Long Beach. It's 24 kind of outside, beyond the scope of subpoena unless you 25 want to move the hearing down there. And just his CAPITOL REPORTERS (916) 923-5447 15636 1 knowledge. I just think we need to talk about this at the 2 end. I think we probably should hear what Mr. Jackson has 3 to say. 4 C.O. STUBCHAER: All right. Mr. Herrick is next, 5 but, yes, we will give you that opportunity. 6 MR. BRANDT: Thank you. 7 C.O. STUBCHAER: Good morning, Mr. Herrick. 8 ---oOo--- 9 CROSS-EXAMINATION OF THE SAN JOAQUIN RIVER GROUP AUTHORITY 10 BY SOUTH DELTA WATER AGENCY 11 BY MR. HERRICK 12 MR. HERRICK: Thank you, Mr. Chairman, Board 13 Members. John Herrick for the South Delta Water Agency. 14 Mr. Lecky, do you have San Joaquin River Group 15 Authority Exhibit 114-B in front of you? And that's the 16 April 8th letter; is that correct? 17 MR. LECKY: Yes. 18 MR. HERRICK: On Page 2 of that letter I believe as 19 Mr. Nomellini touched upon, is it correct to say that NMFS 20 concluded that CVP operations through March of 2000 do not 21 threaten the steelhead; is that correct? 22 MR. LECKY: That's correct. 23 MR. HERRICK: Now, it talks -- the letter talks 24 about the proposed -- I'm quoting there on the top 25 paragraph -- CAPITOL REPORTERS (916) 923-5447 15637 1 (Reading): 2 "The proposed SJRA flow objectives for '99 3 through 2000 have been incorporated into this 4 short-term CVP consultation for steelhead." 5 Do you see where it says that on the fifth line 6 down? 7 MR. LECKY: Right. 8 MR. HERRICK: Now, as I read that, that says that 9 the San Joaquin River Agreement flow objectives were 10 considered in NMFS's conclusion that there was no, I'll 11 say, threat to steelhead for that time frame; is that 12 correct? 13 MR. LECKY: That's correct. 14 MR. HERRICK: And what is your understanding of what 15 the San Joaquin Agreement flow objectives are? 16 MR. LECKY: I can't recite. It's the objectives 17 that are identified in the document. 18 MR. HERRICK: And by that would it be correct to say 19 that's talking about the different proposed flows at 20 Vernalis during a pulse flow period in the spring? 21 MR. LECKY: Yes, I believe so. 22 MR. HERRICK: Okay. And do you have an 23 understanding as to whether or not the proposed flow 24 objectives include any sort of distribution of flows 25 upstream which constitute that flow at Vernalis? CAPITOL REPORTERS (916) 923-5447 15638 1 MR. LECKY: No, I don't. 2 MR. HERRICK: So in NMFS's evaluation of the effects 3 of the CVP upon steelhead for '99 through 2000, NMFS did 4 no investigation with regard to flows upstream of 5 Vernalis; is that correct? 6 MR. LECKY: Actually, I'm not sure. To the extent 7 staff might have done some investigation of those issues, 8 I'm just not aware of it. 9 MR. HERRICK: Okay. All right. Then the next 10 question is for the proposed, or I guess, ongoing 11 consultation for the remainder of the term of the San 12 Joaquin River Agreement, and the question would be: 13 Is the -- let me ask this: Is there an ongoing 14 analysis of the effects on steelhead during the term of 15 the San Joaquin River Agreement? 16 MR. LECKY: Yes. 17 MR. HERRICK: And is that analysis looking at CVP 18 operations during that time frame, or -- is it only 19 looking at CVP operations during that time frame? 20 MR. LECKY: It's looking at operations that are 21 conducted, funded and authorized by the Bureau of 22 Reclamation. 23 MR. HERRICK: Okay. And does that include payments 24 by the Bureau to San Joaquin River Group Authority members 25 for them to provide portions of the spring pulse flow? CAPITOL REPORTERS (916) 923-5447 15639 1 MR. LECKY: Yes. 2 MR. HERRICK: And just for the record, there has 3 been no completion of NMFS's analysis of CVP operations 4 through the term of the San Joaquin River Agreement on 5 steelhead; is that correct? 6 MR. LECKY: That's correct. 7 MR. HERRICK: Mr. Lecky, do you have San Joaquin 8 River Group Authority Exhibit 114-A, which is the other 9 letter, the February 8th letter? 10 MR. LECKY: Yes. 11 MR. HERRICK: I don't recall, this was addressed to 12 you. Did you actually receive it and read it? 13 MR. LECKY: Yes. 14 MR. HERRICK: I notice that there's no signature 15 page, signature. Is there a page missing from this 16 letter, do you know? 17 MR. LECKY: I'm sorry, the February 8th letter? 18 MR. HERRICK: The February 8th letter. 19 MR. LECKY: My copy has a signature on it. 20 MR. HERRICK: Okay. Maybe I could look at your 21 copy. 22 MR. BRANDT: Mr. Chairman, may I apologize. I'll 23 take responsibility. I copied it quickly last night, so I 24 did not check to make sure -- apparently, the signature 25 page is missing. CAPITOL REPORTERS (916) 923-5447 15640 1 C.O. STUBCHAER: Thank you, Mr. Brandt. 2 MR. NOMELLINI: I didn't know there was a second 3 page. May I look at somebody's copy that has a second 4 page? 5 C.O. STUBCHAER: Yes. 6 MR. NOMELLINI: All right. Thank you. 7 MR. HERRICK: Thank you. Mr. Lecky, I believe in 8 Mr. Nomellini's questions he touched upon the factors that 9 affect steelhead. Would you agree that two of those 10 factors are flow in any river or habitat and the 11 temperature of the water, would you agree with those? 12 MR. LECKY: Yes, I would. 13 MR. HERRICK: Let me make you a hypothetical here 14 and I'm using San Joaquin River Group Authority 103-C, 15 which I'll hand to you in a minute. And it's got some 16 years -- some of the modeled results for some of the years 17 that have been done for the San Joaquin River Agreement. 18 And let me just start at the beginning and I'll 19 hand this to you in a second. And the hypothetical is: 20 Using the San Joaquin River Group Authority's base case in 21 their modeling, they show a flow during September of 1922 22 of 186 cfs in the Merced River. Again, I'll hand this to 23 you in a second. I apologize. 24 According to their post-modeling results -- and 25 the post includes implementation of the San Joaquin River CAPITOL REPORTERS (916) 923-5447 15641 1 Agreement -- it shows that in September of 1922 the flow 2 in the Merced River increases to 127 cfs. And they mark 3 that as a difference of 59 cfs. That's the top row there. 4 Do you see that? 5 MR. LECKY: Yes. 6 MR. HERRICK: Now, I'll represent to you, or make it 7 a hypothetical, that that year is a wet year. Does the 8 fact that it's a wet year suggest to you anything about 9 the temperature of the water that's being released from 10 the Merced? 11 MR. O'LAUGHLIN: Objection. Calls for speculation. 12 I don't think a proper foundation has been laid and that 13 the witness would know what the water year type or 14 conditions were in 1922. But if he does, then it's a 15 proper question. 16 MR. BRANDT: I would add on this witness is a 17 percipient witness. I'm not sure he has laid any basis 18 that he would know how hydrology effects this kind of 19 issue. 20 MR. HERRICK: I believe I made it a hypothetical. I 21 told him to assume that it was a wet year. And I asked 22 him if the information that he had suggested to him if he 23 could make any representation or conclusion about the 24 temperature of the water. I don't think that's 25 speculative or imprecise. CAPITOL REPORTERS (916) 923-5447 15642 1 C.O. STUBCHAER: You did make it a hypothetical. 2 And as usually, the witness can answer, he can so state. 3 MR. LECKY: Well, I'm not familiar with the 4 hydrology of the system and so I really don't have any 5 personal knowledge or understanding of the 6 flow/temperature relationship. 7 MR. HERRICK: In an analysis by NMFS of the possible 8 effects on steelhead resulting from the implementation of 9 the San Joaquin River Agreement, would that sort of 10 knowledge be important to NMFS's decision, that knowledge 11 being how that particular flow might affect the 12 temperature at that time of the year under that hydrology? 13 MR. LECKY: Yes, we would consider this kind of 14 information. 15 MR. HERRICK: And also would you consider 16 information such as the amount that's modeled to decrease 17 in that flow? 18 MR. LECKY: What we would do in a review of this 19 kind of information is -- and I think we have asked the 20 Bureau to help us with modeling on the temperature flow 21 relationship so that we can engage in those kinds of 22 analyses to look at what the relative impacts are. 23 MR. HERRICK: And to date that sort of analysis has 24 not been done; is that correct? 25 MR. LECKY: That's correct. CAPITOL REPORTERS (916) 923-5447 15643 1 MR. HERRICK: And to be clear on that, analysis has 2 not been done with regard to the Merced River? 3 MR. LECKY: That's correct. 4 MR. HERRICK: And has that analysis been done with 5 regard to the Tuolumne River? 6 MR. LECKY: I'm not aware that it has. 7 MR. HERRICK: And has that analysis been done by 8 NMFS with regard to the Stanislaus River? 9 MR. LECKY: No, I don't believe so. 10 MR. HERRICK: Now, Mr. Lecky, if you had a decrease 11 in flow such as we describe in the hypothetical there for 12 the modeling results for 1922, can that decrease in flow 13 affect the rate of change of the water in the river? And 14 by that I mean, if you have water flowing down the river I 15 think we can -- do you assume that that water slowly heats 16 up depending on the ambient temperature? 17 MS. ANDREWS McINTOSH: I'd like to object. I mean 18 it seems very ambiguous. It completely depends on the 19 type of system you have and a lot of other factors. 20 MR. HERRICK: That's fine. I can restate it. 21 C.O. STUBCHAER: Yes. And you said rate of change, 22 but you didn't say rate of change of what in your initial 23 part of your question so -- 24 MR. HERRICK: Mr. Lecky, are some of the things that 25 NMFS looks at when it's analyzing the potential effects of CAPITOL REPORTERS (916) 923-5447 15644 1 flow changes on steelhead, do those include such things as 2 what the ambient temperature might be for the river 3 system? 4 MR. LECKY: That kind of information is included in 5 the analysis, yes. 6 MR. HERRICK: And that would include looking at what 7 the potential, say, summer temperatures might be and how 8 they might affect the water that's in the river; is that 9 correct? 10 MR. LECKY: Right. 11 MR. HERRICK: And is one of the things that NMFS 12 would look at in investigating these potential effects 13 whether or not a decreased flow would have any change 14 on -- any potential change on the temperature of the water 15 in the river? 16 MR. LECKY: Yes. 17 MR. HERRICK: Okay. Could I have that back? 18 MR. LECKY: Sure. 19 MR. HERRICK: Thank you. Mr. Lecky, if under some 20 other hydrologic conditions a preproject flow in the 21 Merced River were 1020 cfs and the post-project modeling 22 results would show that the flow would be 252 cfs, which 23 is a decrease of 768 cfs, would that be the type of thing 24 that you would investigate to see whether or not that 25 would have an effect on steelhead populations? CAPITOL REPORTERS (916) 923-5447 15645 1 MR. LECKY: I'm not sure what project you're 2 referring to there. 3 MR. HERRICK: The San Joaquin River Agreement. 4 MR. LECKY: We anticipate reviewing the impacts of 5 that agreement in our longer-term consultation. Yes, we 6 will consider all the impacts to the habitat. 7 MR. HERRICK: Mr. Lecky, I'm going to switch gears 8 here. Do you know whether or not NMFS has reviewed the 9 final EIR/EIS produced by the Bureau and the San Joaquin 10 River Agreement on the -- San Joaquin River Group 11 Authority for the San Joaquin River Agreement? 12 MR. LECKY: I don't know for certain. 13 MR. HERRICK: Okay. Here's a copy of San Joaquin 14 River Group Authority 103-A, which is that EIR/EIS. Maybe 15 if you could just look at it to refresh your memory if 16 possible. 17 MR. LECKY: I recognize it. 18 MR. HERRICK: And have you reviewed it personally? 19 MR. LECKY: No, I haven't. 20 MR. HERRICK: Do you know whether your staff has 21 reviewed it? 22 MR. LECKY: I don't know if we reviewed the final. 23 MR. HERRICK: Okay. Do you know whether your office 24 has received a copy of the final? 25 MR. LECKY: Yes, we have. CAPITOL REPORTERS (916) 923-5447 15646 1 MR. HERRICK: Do you recall whether or not a 2 Mr. Jim Bybee of the organization sent comments to the 3 draft document? 4 MR. LECKY: Yes, he did. 5 MR. HERRICK: Did you review those comments? 6 MR. LECKY: Yes, I did. 7 MR. HERRICK: Again, I just have this one copy but 8 I'll hand this to you in a second. In the executive 9 summary I'll show you page ES-11, which is executive 10 summary dash 11, and it's part of the table ES-1 under 11 steelhead it -- I'll hand this to you in a second, I'm 12 sorry. The document states, 13 (Reading): 14 "Steelhead found only in the Stanislaus River 15 flows increased during most months in all water 16 year types." 17 Would you disagree with the statement that 18 steelhead are found only in the Stanislaus River? 19 MR. LECKY: Yes. 20 MR. HERRICK: Do you know whether or not this 21 document did any analysis on the effects of the 22 implementation of the San Joaquin River Agreement on 23 steelhead in the Tuolumne River? 24 MR. LECKY: No, I don't. 25 MR. HERRICK: Okay. Is that the kind of thing that CAPITOL REPORTERS (916) 923-5447 15647 1 your staff would have covered in their analysis? 2 MR. LECKY: In our -- again, I'm not sure if our 3 staff reviewed the final. But in our draft, we did raise 4 concerns about the question -- or the statement that 5 steelhead are only found in the Stanislaus and presented 6 some qualitative information that, at least, there's 7 evidence they're in the Merced and Tuolumne as well. 8 MR. HERRICK: And as you say -- excuse me, your 9 office commented on the draft and brought up that very 10 issue? Here, I'll show you page -- well, it's a document 11 following Page H2 of San Joaquin River Group Authority 12 Number 103-A? 13 MR. LECKY: Actually, I have a copy. If you can 14 give me a minute to look at it. 15 MR. HERRICK: Sure. 16 MR. LECKY: Okay. 17 MR. HERRICK: I didn't mean to test your memory. On 18 the first page of that letter -- and again it's following 19 Page H-2 of San Joaquin River Group Authority 103-A -- and 20 it's a letter to Mr. Mike Delamore from Mr. Bybee, 21 B-Y-B-E-E, of NMFS. Let me read part of first paragraph 22 under the heading of "General Comments." The second 23 sentence starts out with, 24 (Reading): 25 "However, NMFS has met with the Bureau of CAPITOL REPORTERS (916) 923-5447 15648 1 Reclamation and the San Joaquin River Group and 2 requested additional information regarding 3 flows and temperatures in the tributaries. 4 This additional information is needed by NMFS 5 to evaluate potential upstream impacts to 6 fall-run chinook spawning, incubation, 7 rearing and immigration habits and life history 8 stages. 9 "We are anticipating this information soon and 10 may provide additional comments to you 11 following our review. Furthermore, we 12 understand the document will describe the 13 assessment methodology used to determine the 14 significance of impacts. This information 15 needs to be evaluated by NMFS before a final 16 environmental impact statement is released." 17 Mr. Lecky, did you receive that additional 18 information before this final EIR was released? 19 MR. LECKY: We haven't received all of it. I'm not 20 sure what we've received. 21 MR. HERRICK: And the next paragraph, I won't read 22 it, talks about the same sort -- correct me if I'm wrong, 23 it talks about the same sort of information being needed 24 regarding steelhead; is that correct? 25 MR. LECKY: That's correct. CAPITOL REPORTERS (916) 923-5447 15649 1 MR. HERRICK: And was that information received by 2 you prior to the issuance of this document? 3 MR. LECKY: No, not all of it. 4 MR. HERRICK: Okay. On the next page of the letter 5 from Mr. Bybee, two paragraphs from the bottom -- the 6 second paragraph from the bottom, excuse me, it says, 7 (Reading): 8 "In the Merced River reduction in flow 9 associated with the proposed action may be 10 significant and adverse to spawning fall-run 11 chinook, incubating eggs and fry due to 12 elevated temperatures, stranding and red 13 dewatering. 14 "In fact, according to CalFed's ERPP, spawning 15 and rearing flows are too low to meet spawning 16 and rearing needs. And stream temperature 17 often exceed temperature tolerances for 18 salmon spawning and egg incubation." 19 Do you see where that says that? 20 MR. LECKY: Yes. 21 MR. HERRICK: Has NMFS received any information 22 satisfying the concerns expressed in that paragraph? 23 MR. LECKY: We have asked for additional modeling 24 and it's underway. 25 MR. HERRICK: Are those same sort of concerns in CAPITOL REPORTERS (916) 923-5447 15650 1 existence with regards to the steelhead on the Merced 2 River? 3 MR. LECKY: Generally, yes. 4 MR. HERRICK: And by -- to clarify, if there are 5 reductions in flows resulting from the San Joaquin River 6 Group -- San Joaquin River Agreement, NMFS wants to 7 investigate those to see whether or not those potential 8 reductions may have an adverse effect on steelhead 9 population; is that correct? 10 MR. LECKY: Yes. But, again, we are planning to 11 convene our recovery team to evaluate the relevant 12 importance on the Merced River. 13 MR. HERRICK: Okay. But that has not been completed 14 yet; is that correct? 15 MR. LECKY: That's correct. 16 MR. HERRICK: Would you recommend that the San 17 Joaquin River Group -- would you recommend that the San 18 Joaquin River Agreement be implemented for a 12-year 19 period before you have done that, completed your analysis? 20 MR. LECKY: I believe we've already made that 21 recommendation. 22 MR. HERRICK: Mr. Chairman, I would also like to 23 reserve the right to do some more cross on SJRGA Exhibit 24 114-C.1 and C.2, just because we haven't had time to 25 review it. But I would like to ask a couple general CAPITOL REPORTERS (916) 923-5447 15651 1 questions and, obviously, if they're not relevant, we'll 2 move on. 3 C.O. STUBCHAER: And will you have questions for 4 Mr. Thabault when he returns? 5 MR. HERRICK: Yes, but not too many. 6 C.O. STUBCHAER: Okay. 7 MR. LECKY: I would like to clarify one answer I 8 gave you relative to the temperature issue. 9 MR. HERRICK: Sure. 10 MR. LECKY: We did request the Bureau include 11 provisions for additional modeling. I believe they did 12 include reference to that in their record of decision. 13 MR. HERRICK: Okay. Mr. Lecky, I believe you said 14 that your department considered, among other things, the 15 two documents that have been marked as SJRGA Exhibits 16 114-C.1 and C.2. 17 And its -- and by "its" I mean NMFS's evaluation 18 of the effects of the CVP on steelhead for the time period 19 1999 through 2000; is that correct? 20 MR. LECKY: Yes. I said staff provided -- in part 21 relied in part on information contained in this document. 22 MR. HERRICK: Now, you didn't rely on these 23 documents yourself, but you believe that your staff 24 members had access to them; is that correct? 25 MR. LECKY: Yes. CAPITOL REPORTERS (916) 923-5447 15652 1 MR. HERRICK: Did your staff in its evaluation 2 investigate potential changes in flows on rivers -- excuse 3 me, on the Tuolumne River? 4 MR. LECKY: No. I'm not sure how much of that they 5 looked into. 6 MR. HERRICK: Okay. Again, let me just show you the 7 index of 114-C.1. 8 MR. BRANDT: The table of contents. 9 MR. HERRICK: Excuse me, the table of contents. And 10 it says Chapter 9, it says talks about project impacts. 11 And by "project" you understand that to mean CVP 12 operations? 13 MR. LECKY: Yes. 14 MR. HERRICK: And do you include in CVP operations 15 actions it takes to either purchase or pay money for the 16 releases of water on tributaries to the San Joaquin River? 17 MR. LECKY: Yes. 18 MR. HERRICK: Now, as you can see from the table of 19 contents it lists various areas or rivers, do you see 20 that? 21 MR. LECKY: Yes. 22 MR. HERRICK: Would you agree that the listing does 23 not include the Merced or the Tuolumne River? 24 MR. BRANDT: Objection. Document speaks for itself. 25 MR. HERRICK: Just foundational for the next CAPITOL REPORTERS (916) 923-5447 15653 1 question. 2 C.O. STUBCHAER: I'll allow the question to be 3 answered. 4 MR. HERRICK: Thank you. 5 MR. LECKY: Yes, I would agree with that. 6 MR. HERRICK: Do you know what information -- excuse 7 me, do you know if your staff looked at whether or not CVP 8 operations including payments of money for releases of 9 water in tributaries had any effect on the Tuolumne River? 10 MR. LECKY: We have completed an informal 11 consultation with the Bureau on the San Joaquin River 12 Agreement for 1999 and through March of 2000. We have 13 indicated to the Bureau of Reclamation that we would 14 review the remainder of the term of that agreement as part 15 of our ongoing consultation on the entirety of the Central 16 Valley Project. 17 This document was prepared by the Bureau and DWR 18 as a foundation document for our overall consultation on 19 the entirety of the Central Valley Project and its 20 operation in conjunction with the State Water Project. So 21 those analyses, I think, are underway. 22 MR. HERRICK: Okay. Is it your understanding that 23 the operations of the CVP do not have an effect on flows 24 in the Tuolumne River? 25 MR. LECKY: In the content of the Bureau providing CAPITOL REPORTERS (916) 923-5447 15654 1 resources to purchase water, then operations of the CVP as 2 defined in the scope of the consultation, yes, it could. 3 MR. HERRICK: And same question with regard to the 4 Merced River, would your answer be the same? 5 MR. LECKY: Yes. 6 MR. HERRICK: That's all I have. Again, 7 Mr. Chairman, I would like to reserve the right to delve 8 more deeply into these exhibits once we've had a chance to 9 review them. Thank you very much. 10 C.O. STUBCHAER: And when Mr. Thabault returns also. 11 MR. HERRICK: Yes. 12 C.O. STUBCHAER: Okay. Anyone else who wishes to 13 cross-examine at this time? Okay. None. 14 Mr. Brandt. 15 ---oOo--- 16 CROSS-EXAMINATION OF THE SAN JOAQUIN RIVER GROUP AUTHORITY 17 BY THE UNITED STATES DEPARTMENT OF THE INTERIOR 18 BY MR. BRANDT 19 MR. BRANDT: Mr. Lecky, I have just a few questions 20 about San Joaquin River Group Authority Exhibit 114-C.1 21 and C.2 as well. I'm going to refer to this as the 22 biological assessment. 23 MR. LECKY: Okay. 24 MR. BRANDT: Have you reviewed the biological 25 assessment? CAPITOL REPORTERS (916) 923-5447 15655 1 MR. LECKY: No, I have not. 2 MR. BRANDT: Have you, other than what was just 3 shown to you, have you done any further examination or 4 consideration of that document before today? 5 MR. LECKY: No. 6 MR. BRANDT: Do you know what the biological 7 assessment says about the San Joaquin River Agreement? 8 MR. LECKY: No, I don't. 9 MR. BRANDT: Now, I think you just explained, this 10 biological assessment is not specifically for the San 11 Joaquin River Agreement; is that correct? 12 MR. LECKY: That's correct. 13 MR. BRANDT: And has the analysis of that biological 14 assessment, for its intended purpose, been completed? 15 MR. LECKY: No. 16 MR. BRANDT: Okay. So can you tell me anything 17 about what's in that document, what's in the biological 18 assessment that relates to the San Joaquin River 19 Agreement? 20 MR. LECKY: Not specifically, no. 21 MR. BRANDT: Okay. That's the end of my questions. 22 C.O. STUBCHAER: Okay. 23 MR. BRANDT: Mr. Chairman, do you want to deal with 24 this issue now, or -- 25 C.O. STUBCHAER: Go ahead and bring it up. CAPITOL REPORTERS (916) 923-5447 15656 1 MR. BRANDT: I would just like to urge the Board to 2 release this witness at the end of completion of his 3 testimony today. 4 If there is someone that would like to go into 5 this document -- he has testified as to what he knows. 6 Basically, he's seen the cover, he knows that it was part 7 of the decision -- or he knows his staff has taken a look 8 at it, but he has not taken a look at it. 9 So if at this point if someone would like to have 10 someone who is knowledgeable about this document to 11 cross-examine, we would be happy to entertain that 12 request. But at this point I think he would really 13 provide very little additional information. And I think 14 any subpoena would be one we would probably challenge or 15 question particularly as a federal witness provided on 16 this one, that this would not be -- this would not be the 17 witness that we would provide. 18 As you know, we've provided throughout these 19 hearings, we've responded to requests based on topics that 20 have been identified and provided witnesses. Often they 21 have been witnesses that the parties have identified. And 22 other times we've said, no, this is the witness. And that 23 is something we continue to reserve the right to do that. 24 If someone identified this document as someone -- 25 to provide a witness on this document, Mr. Lecky would not CAPITOL REPORTERS (916) 923-5447 15657 1 be the witness that we would provide. So that's why I 2 would request any cross-examination would be made of -- 3 that their request be made of someone else who would have 4 some knowledge of this document. 5 C.O. STUBCHAER: Mr. Jackson. 6 MR. JACKSON: Mr. Stubchaer, I would certainly be 7 willing to address my questions to the most knowledgeable 8 person in the National Marine Fisheries Service on the 9 facts and analysis within that document. 10 I do not need Mr. Lecky, himself, if there's 11 someone else more knowledgeable about what's in the 12 document. And I do believe that if we can just have a 13 moment we can work out who that would be. And if that 14 person could be available some time in the hearing dates 15 that we have scheduled, I would be glad to substitute the 16 witness. 17 C.O. STUBCHAER: Thank you, Mr. Jackson. 18 Mr. Nomellini. 19 MR. NOMELLINI: I would be agreeable to that, too, 20 but I think the one exception to that would be the earlier 21 testimony in the record about Mr. Lecky's conclusion that 22 the information in this biological assessment and other 23 information was utilized to formulate the basis for the 24 consultation which was represented by the letter. 25 So if I could be allowed to cross-examine a CAPITOL REPORTERS (916) 923-5447 15658 1 little bit more on that, I may conclude as well that 2 Mr. Lecky wouldn't have to be called back. But without 3 pursuing that, I'm not completely satisfied. 4 C.O. STUBCHAER: You're talking about right now? 5 MR. NOMELLINI: Yeah, right now. 6 C.O. STUBCHAER: Okay. And before we do that, 7 Mr. Herrick, you have any comments on Mr. Jackson's 8 statement? 9 MR. HERRICK: No. I would join in Mr. Jackson's 10 statement. 11 C.O. STUBCHAER: Okay. Thank you. 12 All right, Mr. Nomellini. 13 ---oOo--- 14 FURTHER CROSS-EXAMINATION OF THE SAN JOAQUIN 15 RIVER GROUP AUTHORITY 16 BY CENTRAL DELTA PARTIES 17 BY MR. NOMELLINI 18 MR. NOMELLINI: Mr. Lecky, in the interest of 19 releasing you of the further burden of coming back before 20 us, you recall the earlier testimony in response to a 21 question from Mr. O'Laughlin you indicated that your staff 22 had utilized the information in the biological assessment 23 as well as other information in your office to formulate 24 the letter back to Lowell Ploss, which we referred to as 25 an informal consultation? CAPITOL REPORTERS (916) 923-5447 15659 1 MR. LECKY: Yes. 2 MR. NOMELLINI: All right. How do you know that 3 your staff utilized this biological assessment in 4 formulating that letter back to Lowell Ploss? 5 MR. LECKY: My staff typically relies on all of the 6 information that's available to them to conduct these 7 analyses. So they relied on this document, they relied on 8 the EIS. They relied on current information on water 9 conditions and expected operations projected by the State 10 and Federal Water Projects through March of 2000. 11 MR. NOMELLINI: Okay. So you knew that prior to 12 February, I think, 8th, 1999, that the document references 13 San Joaquin River Group Authority Exhibit 114-C.1 and 14 114-C.2 was in the possession of the National Marine 15 Fisheries Service? 16 MR. LECKY: Yes. 17 MR. NOMELLINI: Okay. Other than that, do you 18 know -- do you have any information as to the specifics of 19 this document that were reviewed by your staff? 20 MR. LECKY: No, I don't. 21 MR. NOMELLINI: Okay. So it's based on the fact 22 that you knew it was in the office and then it would be 23 correct, then, that it is an assumption that your staff 24 would have utilized this as well as all the other 25 documents; is that correct? CAPITOL REPORTERS (916) 923-5447 15660 1 MR. LECKY: Yes. That's correct. 2 MR. NOMELLINI: All right. That's all I have. I 3 would be willing to forego my reservation with regard to 4 examination on this document, but I would object to any 5 introduction of this without the ability to examine a more 6 knowledgeable person on the subject. 7 C.O. STUBCHAER: I think the parties can consult 8 during the break and make arrangements for producing 9 additional witnesses -- the appropriate witness as 10 Mr. Brandt offered. 11 MR. O'LAUGHLIN: Well, I would object to that 12 because the appropriate foundation for the introduction 13 for this document at the end of the San Joaquin River 14 Group Authority's case in chief has been laid. 15 If the other parties want to take this on in 16 rebuttal, or put it in their cases in chief, I have no 17 objection to that, but that's -- the burden is on them. 18 The San Joaquin River Group Authority is not going to make 19 any other effort to bring any other witnesses in front of 20 the Board to testify regarding this document. And we 21 believe that a proper foundation has been laid for its 22 admission into evidence. 23 C.O. STUBCHAER: Mr. Brandt. 24 MR. BRANDT: I would just add that I'm kind of the 25 coordinator on behalf of the Federal Government for making CAPITOL REPORTERS (916) 923-5447 15661 1 this happen. I can't actually speak for the National 2 Marine Fisheries Service. So I think I will leave that to 3 Ms. Andrews -- McIntosh, I'm sorry, about that. She just 4 got married last week. 5 C.O. STUBCHAER: That's why its written on your 6 card. Congratulations. 7 MS. ANDREWS McINTOSH: Thank you. 8 MR. BRANDT: Ms. McIntosh would be better able to 9 respond to those kinds of questions about the witness for 10 National Marine Fisheries Service. 11 C.O. STUBCHAER: I just want to say I took your 12 offer at face value, Mr. Brandt. I didn't view that as 13 burdening Mr. O'Laughlin with making arrangements to 14 provide the appropriate witness, if needed. 15 Mr. Jackson. 16 MR. JACKSON: Yes. But I would request that this be 17 cross-examination on this document. Certainly the idea 18 that it would go into evidence prior to the 19 cross-examination, it may -- you may find that you don't 20 want it to go into evidence for whatever reason. It has 21 been authenticated, I would stipulate to that. 22 C.O. STUBCHAER: Ms. McIntosh. 23 MS. ANDREWS McINTOSH: I'd just like to clarify that 24 if we are talking about producing another witness to talk 25 about this document, that that witness would only be CAPITOL REPORTERS (916) 923-5447 15662 1 produced for the limited purpose of talking about this 2 document. 3 C.O. STUBCHAER: Is that understood and agreed to by 4 everyone? 5 MR. NOMELLINI: That's fine. I would just point out 6 that until I review it, I don't know that I'm going to 7 request it, but I thought the offer was made by 8 Mr. Brandt -- perhaps he's the wrong one -- that they 9 would produce the witness other than Mr. Lecky as the best 10 one available, and I don't know that I'm going to make the 11 request. 12 C.O. STUBCHAER: Okay. 13 MR. JACKSON: Well, I am going to make the request, 14 because I have had a chance to skim this document in a 15 very narrow fashion, but there is a lot of data that's 16 applicable to this case. 17 C.O. STUBCHAER: Mr. Brandt, will you coordinate 18 directly with the parties? 19 MR. BRANDT: Yes. I will look forward to the 20 request from Mr. Jackson. And I would appreciate the 21 specification, which I think he just did which was 22 National Marine Fisheries Service, because I believe that 23 there's probably people within the Bureau as well that 24 could do it. If you want someone from the National Marine 25 Fisheries Service, specify that. CAPITOL REPORTERS (916) 923-5447 15663 1 MR. JACKSON: It's about fish, I would just assume 2 it be from NMFS rather than the Bureau. 3 C.O. STUBCHAER: Okay. Does staff have any 4 questions of Mr. Lecky? 5 MR. HOWARD: No questions. 6 C.O. STUBCHAER: Board Members? 7 ---oOo--- 8 CROSS-EXAMINATION OF THE SAN JOAQUIN RIVER GROUP AUTHORITY 9 BY THE BOARD 10 C.O. STUBCHAER: Mr. Lecky, as a general question: 11 When you have two species that need environmental aspects, 12 different times of the year, how do you go about 13 coordinating between the needs of the different species? 14 That's a very general question and I know people 15 could object, but, yeah, if you could comment on that. 16 MR. LECKY: Well, the general comment is we try and 17 look at -- try and quantify, I suppose, what the needs of 18 those species are in terms of what's the environment that 19 we want to create for them. And then we look at what are 20 the human factors that are affecting that environment? 21 Are they contributing to the degradation of that 22 environment for those species? 23 We try and avoid trading one species' interests 24 off against another one and try -- and we look at trying 25 to deal with them jointly. CAPITOL REPORTERS (916) 923-5447 15664 1 C.O. STUBCHAER: Has it ever happened that you have 2 to tradeoff because of the extent of the available 3 resources? I'm not talking about the issue at hand here, 4 but just in general. 5 MR. LECKY: Well, I can think of some times where, 6 in fact, that has happened. And we try to do the best job 7 we can in balancing the needs. 8 C.O. STUBCHAER: Thank you. Any redirect, 9 Mr. O'Laughlin? 10 MR. O'LAUGHLIN: Yes, sir. 11 ---oOo--- 12 REDIRECT EXAMINATION OF THE SAN JOAQUIN 13 RIVER GROUP AUTHORITY 14 BY MR. O'LAUGHLIN 15 MR. O'LAUGHLIN: Mr. Lecky, when Mr. Nomellini asked 16 you about the source of water for the San Joaquin River 17 Agreement, what is your understanding of what he meant by 18 "source of water"? 19 MR. LECKY: I assumed he was asking how much water 20 would be coming from which tributaries. 21 MR. O'LAUGHLIN: Okay. Is it your understanding in 22 regards to Exhibit 103-A, the San Joaquin River Group 23 Authority meeting the flow objectives for the San Joaquin 24 River Agreement 1999 to the year 2010, did the National 25 Marine Fisheries Service participate in the consultation CAPITOL REPORTERS (916) 923-5447 15665 1 and coordination in regards to the preparation of that 2 document? 3 MR. LECKY: I don't believe we played a significant 4 role. I'm not sure how much staff would have had 5 interaction with the people who were actually working on 6 the document. 7 MR. O'LAUGHLIN: Okay. So you don't know on Page 8 5.3 of the document under "Cooperating Agency Involvement" 9 lists the National Marine Fisheries Service and it lists 10 Laura Hamilton, Protected Resources Division, and a 11 Mr. Dennis E. Smith, Protected Resources Division, are 12 those people under your management? 13 MR. LECKY: Yes, they are. 14 MR. O'LAUGHLIN: What is Mr. Dennis Smith's title? 15 MR. LECKY: Both those people are just staff 16 biologists. 17 MR. O'LAUGHLIN: Now, my understanding of -- would a 18 fair summary of your testimony be that there's an ongoing 19 discussion between National Marine Fisheries Service and 20 other parties as to whether or not steelhead are in the 21 Tuolumne and Merced River? 22 MR. LECKY: The discussion really is along the lines 23 that there is qualitative information that steelhead have 24 been found in the Tuolumne and Merced Rivers. The 25 question is: Is there a sustainable population in those CAPITOL REPORTERS (916) 923-5447 15666 1 river systems and do we need to rely on building a 2 sustainable population in those river systems in order to 3 achieve recovery? And those ongoing discussions will be 4 addressed in part by our recovery planning that we are 5 initiating. 6 MR. O'LAUGHLIN: Okay. In regards to that in 7 Mr. Bybee's comments to the EIR/EIS, which are starting at 8 H-2, he says under Section 3.5.32, it says "Steelhead, 9 Rainbow Trout," Page 3-86, 10 (Reading): 11 "In addition to the rewording of the paragraph 12 on steelhead agreed to at the October 15th 13 meeting, NMFS recommends the preparation and 14 implementation of an adequate presence/absence 15 abundance and distribution monitoring program." 16 So that fits in with your comment, does it not, 17 as to the question of whether or not there is a 18 sustainable steelhead population in the Tuolumne and 19 Merced Rivers; is that correct? 20 MR. LECKY: That's correct. 21 MR. O'LAUGHLIN: Now, in regards to that, the 22 response back for the responsible agencies for EIR/EIS was 23 Section H.4, response number 10, 24 (Reading): 25 "The text in Section 3.5.32 has been revised CAPITOL REPORTERS (916) 923-5447 15667 1 to include the following changes resulting in 2 rewriting of paragraph five to read." 3 And then it has "reading" after that. Does that 4 refer back to the comment under Section Number 10, 5 (Reading): 6 "In addition to the rewording of the paragraph 7 on steelhead agreed to at the October 15th 8 meeting"? 9 MR. LECKY: I don't know what language was agreed to 10 at the October 15th meeting. 11 MR. O'LAUGHLIN: Okay. Do you know if your staff 12 was present at the October 15th meeting wherein the 13 language was agreed to in regards to steelhead? 14 MR. LECKY: No, I don't know. 15 MR. O'LAUGHLIN: Okay. As you sit here today, let 16 me read this paragraph under Section 3.5.32 which was 17 revised based on the comments by National Marine 18 Fisheries. 19 (Reading): 20 "Historically, winter-run steelhead are the 21 only race found in the Central Valley and are 22 native to the Sacramento and San Joaquin River 23 basins. In the San Joaquin River basin, 24 steelhead populations have been reduced to 25 remnant levels. CAPITOL REPORTERS (916) 923-5447 15668 1 "However, there is some evidence of a distinct 2 anadromous run of steelhead in the Stanislaus 3 River. Large rainbow trout are present in the 4 upper reaches and juvenile rainbow trout 5 showing signs of smolting are trapped in the 6 lower reach during studies designed to sample 7 emigration of salmon smolts. 8 "Genetic studies are underway to determine 9 whether these fishes are part of a reproducing 10 steelhead population within the Stanislaus 11 River strays from another basin or resident 12 rainbow trout. 13 "Past monitoring efforts have been inconclusive 14 in determining the presence or absence of 15 steelhead populations in the Tuolumne and 16 Merced Rivers, or the San Joaquin River 17 upstream of the Stanislaus River. 18 Recently Central Valley steelhead were listed 19 by the Federal Government as a threatened 20 species," parens, "Fish and Wildlife Service, 21 1998," end of parens, end of quotations. 22 Then it says, 23 (Reading): 24 "Comments were noted regarding NMFS's 25 recommendation of monitoring plan for CAPITOL REPORTERS (916) 923-5447 15669 1 steelhead. Ongoing salmon programs will 2 continue and genetic studies are needed to 3 evaluate presence or absence of steelhead." 4 Would you say that's a fair summary of your 5 testimony here today, Mr. Lecky? 6 MR. LECKY: It does omit the information of 7 steelhead returning to the Merced hatchery, but, 8 generally, it covers most of my testimony, yes. 9 MR. O'LAUGHLIN: One other question,, in regards to 10 the recovery team's analysis for steelhead, are they 11 taking into consideration other alternatives proposed to 12 the State Water Resources Control Board as part of the 13 State Water Resources Control Board's Draft EIR as part of 14 the recovery analysis, or are they only looking at the San 15 Joaquin River Agreement? 16 MR. LECKY: Well, we have only recently decided to 17 engage on a recovery planning effort and we have not yet 18 initiated it. We're adding staff to coordinate that this 19 year. So their instructions will be a comprehensive 20 review. 21 MR. O'LAUGHLIN: Okay. Do you know if the National 22 Marine Fisheries has provided comments to the State Water 23 Resources Control Board regarding the State Water 24 Resources Control Board Draft EIR? 25 MR. LECKY: No, I don't. CAPITOL REPORTERS (916) 923-5447 15670 1 MR. O'LAUGHLIN: Okay. Another question a follow-up 2 on Mr. Nomellini's hypothetical. He was talking about a 3 change from 200 cfs to 100 cfs in the Merced River and 4 what effect that would have on steelhead populations. 5 If the water temperature at 200 cfs was 75 6 degrees or above, would it be your opinion that a change 7 to 100 cfs would have any impact on the steelhead fishery 8 in the Merced River? 9 MR. LECKY: Probably not. 10 MR. O'LAUGHLIN: Another follow-up question to 11 several questions from Mr. Nomellini, he asked about 12 carryover storage, the impact on carryover storage. And 13 you responded in a very general fashion that impacts in 14 carryover storage may impact water temperatures. 15 Do you remember that? 16 MR. LECKY: Yes. 17 MR. O'LAUGHLIN: Okay. But in reality it's really 18 not just the -- it's an amount of carryover storage that 19 has been impacted, not just that there's been a change, 20 would you agree? 21 In other words, if you have a reservoir that has 22 2.5 million acre-feet of storage and you reduce carryover 23 storage by 5,000 acre-feet in any given year, you'd agree 24 that that would probably have little or no impact on 25 temperatures in the stream the next year; is that correct? CAPITOL REPORTERS (916) 923-5447 15671 1 MR. LECKY: Yeah, I don't know. That's the reason 2 we have asked for modeling to understand the relationship 3 between carryover storage and temperatures. 4 MR. O'LAUGHLIN: Absolutely. And that would go into 5 effect as well as to change in storage from year to year 6 that hopefully the modeling that you're having done would 7 show that what changes in carryover storage may have an 8 impact on river temperatures in the following year; is 9 that correct? 10 MR. LECKY: That's our expectation. 11 MR. O'LAUGHLIN: Right. So when you were answering 12 those questions, you were making comments of a general 13 note and not comments specifically on any given aspect of 14 changes in storage on any particular river system; is that 15 correct? 16 MR. LECKY: That's correct. 17 MR. O'LAUGHLIN: I have no further redirect for this 18 witness. Thank you, Mr. Chairman. 19 C.O. STUBCHAER: Thank you, Mr. O'Laughlin. 20 Who has recross, if any? Mr. Nomellini. 21 Mr. Nomellini only. I'm looking at the clock, how long, 22 Mr. Nomellini, do you think? 23 MR. NOMELLINI: I could probably make it by noon. 24 C.O. STUBCHAER: Okay. Let's go. 25 MR. NOMELLINI: Just in case he has to leave. CAPITOL REPORTERS (916) 923-5447 15672 1 ---oOo--- 2 RECROSS-EXAMINATION OF THE SAN JOAQUIN 3 RIVER GROUP AUTHORITY 4 BY THE CENTRAL DELTA PARTIES 5 BY MR. NOMELLINI 6 MR. NOMELLINI: Dante John Nomellini for Central 7 Delta Parties. 8 Mr. Lecky, you've indicated that the ongoing 9 studies with regard to the Tuolumne and the Merced 10 includes consideration of whether or not there's a 11 sustainable population of the steelhead to build on for 12 recovery; is that correct? 13 MR. LECKY: That's an assignment we will hand our 14 recovery team to give us an answer to. 15 MR. NOMELLINI: Okay. Now, how long do you expect 16 this process to take, determining whether or not there's a 17 sustainable population? 18 MR. LECKY: I don't know. 19 MR. NOMELLINI: Okay. Would it be correct to state 20 that the National Marine Fisheries Service would not want 21 to cause or allow any adverse conditions that impact 22 steelhead during the period of determining whether or not 23 there was anything there that would be sustainable? 24 MR. LECKY: Well, we are working with the Bureau of 25 Reclamation in our long-term consultation to avoid adverse CAPITOL REPORTERS (916) 923-5447 15673 1 impacts. 2 MR. NOMELLINI: Okay. During the interim period, 3 while there's a determination underway as to whether or 4 not sustainable populations of steelhead which could be 5 built on for recovery exist in the Tuolumne and the 6 Merced, National Marine Fisheries Service would request 7 that there would be no adverse impact to the species 8 during the period of evaluation; is that correct? 9 MR. LECKY: No. We, actually, our standard under 10 Section 7 consultation would be to avoid jeopardy. And so 11 we will be -- we have determined for 1999 there's not 12 likely to be an adverse impact. But for the long term, we 13 may analyze an adverse impact and decide that that's an 14 acceptable level of impact. 15 MR. NOMELLINI: Okay. Is the National Marine 16 Fisheries Service depending upon the Bureau being able to 17 cancel the San Joaquin River Agreement in the event 18 analysis for the period after March of 2000 indicates an 19 action that would cause jeopardy? 20 MR. LECKY: I don't believe. 21 MR. NOMELLINI: How would you expect your 22 determination of jeopardy to be addressed if there was one 23 on the Tuolumne or the Merced? 24 MR. LECKY: Well, my understanding of the agreement 25 is that it's on a willing seller/willing buyer basis. And CAPITOL REPORTERS (916) 923-5447 15674 1 that if there is need for additional flows for steelhead 2 based on a jeopardy determination, that that would 3 probably impact what water is available for that type of 4 transaction. 5 MR. NOMELLINI: Is it your testimony that you expect 6 that the Bureau will be able to buy additional water on 7 the Tuolumne and the Merced over and above that included 8 in the San Joaquin River Agreement if it becomes necessary 9 to avoid jeopardy to steelhead? 10 MR. O'LAUGHLIN: Objection. Calls for speculation. 11 We're two to three years out. We're speculating about 12 water conditions, pricing options, what the status of the 13 fisheries are, what their status is in regards to the 14 opinion on the steelhead, it's entirely speculative for 15 Mr. Lecky to answer that question. 16 C.O. STUBCHAER: Mr. Lecky, do you feel you can 17 answer the question? 18 MR. LECKY: I would agree, it's speculative. 19 C.O. STUBCHAER: All right. Sustained. 20 MR. NOMELLINI: Then, you don't know whether or not 21 the Bureau would be able to purchase sufficient additional 22 water on the Tuolumne and the Merced in order to avoid 23 jeopardy to steelhead in the future if such jeopardy 24 occurred; is that correct? 25 MR. LECKY: That's correct. CAPITOL REPORTERS (916) 923-5447 15675 1 MR. NOMELLINI: All right. Now, one last question, 2 in the hypothetical that Mr. O'Laughlin gave you with 3 regard to the Merced which built on my hypothetical of 200 4 cubic feet per second and a reduction of 100 cubic feet 5 per second, he added in a 75-degree temperature definition 6 to the hypothetical. 7 Do you recall that? 8 MR. LECKY: Yes, I do. 9 MR. NOMELLINI: Is it your conclusion that it 10 wouldn't make any difference based on the assumption that 11 steelhead would not survive in the Merced River if the 12 water temperature was 75 degrees? 13 MR. LECKY: My answer was based on 75 degrees as an 14 awful high temperature for steelhead, yes. 15 MR. NOMELLINI: Okay. But I mean is it your 16 conclusion that no steelhead would survive if the water 17 temperature in the Merced were 75 degrees? 18 MR. LECKY: No, that's not my testimony. 19 MR. NOMELLINI: In fact, it's quite possible that 20 some steelhead would survive; would it not? 21 MR. LECKY: Yes, that's true. 22 MR. NOMELLINI: All right. That's all. 23 C.O. STUBCHAER: Thank you, Mr. Nomellini. Okay. 24 Staff, any recross? 25 MR. HOWARD: No. CAPITOL REPORTERS (916) 923-5447 15676 1 C.O. STUBCHAER: Board Members? I understand that 2 concludes the examination of Mr. Lecky, then. And I 3 understand we're not going to try to do the exhibits today 4 until after the cross-examination is complete so thank you 5 for your participation, Mr. Lecky. 6 MR. LECKY: You're welcome. 7 C.O. STUBCHAER: And Ms. McIntosh -- Mrs. McIntosh. 8 MS. ANDREWS McINTOSH: Thank you. 9 C.O. STUBCHAER: And with that we'll take a break 10 until 1:00 p.m. for lunch. 11 (Luncheon recess.) 12 ---oOo--- 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 15677 1 TUESDAY, JUNE 22, 1999, 1:08 P.M. 2 SACRAMENTO, CALIFORNIA 3 ---oOo--- 4 C.O. STUBCHAER: We'll reconvene the hearing. 5 Mr. O'Laughlin. 6 MR. O'LAUGHLIN: Thank you. Mr. Chairman, I 7 received a phone call at about 5 to 1:00 from Mr. Roger 8 Guinee. He has informed me that Mr. Thabault has been 9 requested to stay at the hearing in order to respond to 10 questions in regards to Delta smelt and export pumping. 11 That's the hearing of Assemblyman Machado and 12 Senator Costa that's being held today. He expects to be 13 back at 2:30 or 3:00 this afternoon, hopefully, but there 14 is an indefinite time period on the hearing and it's 15 running somewhat longer than people anticipated. 16 The second thing is we have Mr. Fults. Mr. Fults 17 is also in that hearing. We've sent one of our attorneys 18 over to pull Mr. Fults out of that hearing and make him 19 available. So, hopefully, Mr. Fults will be here by 1:30 20 and we can start the cross-examination of Mr. Fults and 21 proceed with him. Then, hopefully Mr. Thabault will be 22 done later on this afternoon and will be back for his 23 cross-examination. 24 C.O. STUBCHAER: Okay. Thank you, Mr. O'Laughlin. 25 Mr. Brandt. CAPITOL REPORTERS (916) 923-5447 15678 1 MR. BRANDT: I just want to apologize, these things 2 happen. And I need to go over and find out what happened. 3 C.O. STUBCHAER: It's not within any of our controls 4 and we hereby give permission to turn on the cell phones 5 in case they want to reach you. So we'll just go off the 6 record. 7 MR. O'LAUGHLIN: Mr. Fults is getting a drink of 8 water and everything else. 9 C.O. STUBCHAER: Okay. We'll just go back on the 10 record when he comes in. 11 (Off the record from 1:11 p.m. to 1:15 p.m.) 12 C.O. STUBCHAER: Okay. Back on the record. We're 13 continuing cross-examination of Mr. Fults. According to 14 my notes from last week, Mr. Nomellini had completed his 15 cross. And Mr. Jackson was next and then Mr. Herrick. 16 And I had no one else wishing to cross. 17 Mr. Jackson? 18 MR. JACKSON: I'll waive cross. 19 C.O. STUBCHAER: You'll waive. All right. 20 Mr. Herrick. 21 ---oOo--- 22 CROSS-EXAMINATION OF THE SAN JOAQUIN RIVER GROUP AUTHORITY 23 BY SOUTH DELTA WATER AGENCY 24 BY MR. HERRICK 25 MR. HERRICK: Thank you, Mr. Chairman. John CAPITOL REPORTERS (916) 923-5447 15679 1 Herrick, South Delta Water Agency. 2 Good afternoon, Mr. Fults, how are you? 3 MR. FULTS: Good. 4 MR. HERRICK: Excuse me for getting ready here. 5 Mr. Fults, it's my recollection that the EIR/EIS for the 6 San Joaquin River Agreement was introduced on your direct 7 examination; is that correct? 8 MR. FULTS: Yes. 9 MR. HERRICK: And for I.D. purposes it's marked 10 SJRGA 103-A. Were you involved in the preparation of that 11 document? 12 MR. O'LAUGHLIN: Can I make a clarification. 103-A 13 was submitted with Mr. Steiner's testimony. It was made 14 part of that and it was an appendix to his testimony. So 15 Mr. Fults' testimony was submitted to the record of the 16 resolution by the San Joaquin River Group Authority in the 17 Notice of Determination. 18 MR. HERRICK: Okay. 19 C.O. STUBCHAER: And we will need audible responses 20 if you are able. 21 MR. O'LAUGHLIN: Yes. 22 MR. HERRICK: Okay. If the Board feels I'm getting 23 far afield then I'll stop, but, Mr. Fults, you were one of 24 the parties to whom people addressed their comments to the 25 Draft EIR/EIS; were you not? CAPITOL REPORTERS (916) 923-5447 15680 1 MR. FULTS: I was one of the recipients of the 2 comments on behalf of the San Joaquin River Group and that 3 was part of my job as a manager of the process. 4 MR. HERRICK: Okay. Were you involved to any other 5 degree in the preparation of the EIR/EIS? 6 MR. FULTS: Well, I was -- as stated in earlier 7 testimony -- I was the comanager of the process for 8 preparing the document. 9 MR. HERRICK: Okay. Are you familiar with the 10 comments contained in the various letters attached in 11 Appendix H to the document? 12 MR. FULTS: I know they're in there. I am not that 13 familiar with them at this time. 14 MR. HERRICK: Did you participate in any of the 15 responses to the comment -- in the preparation of any 16 responses to those comments? 17 MR. FULTS: No. 18 MR. HERRICK: Well, let me see if I can jog your 19 memory, maybe you don't have anything to do with this. Do 20 you recall that one of the comments made by the Fish and 21 Wildlife Service -- and that begins on Page H-11, or 22 following Page H-11 -- one of their comments dealt with 23 whether or not the additional water purchased from OID was 24 required to be released for fishery purposes or not. 25 MR. FULTS: I'm not familiar with that. CAPITOL REPORTERS (916) 923-5447 15681 1 MR. HERRICK: Okay. Well, this isn't going to take 2 very long, then, I'm sorry. 3 C.O. STUBCHAER: We have lots of time available. 4 MR. HERRICK: I know a couple of stories -- no. 5 Where's the hat? 6 Mr. Fults, do you know the EIR/EIS examined 7 potential effects from the project, and by that I mean the 8 San Joaquin River Agreement, potential effects on amounts 9 of water available for riparians to the San Joaquin River 10 system? 11 MR. FULTS: For what? 12 MR. HERRICK: For the amounts of water available to 13 riparians. 14 MR. FULTS: Riparians? 15 MR. HERRICK: Riparians. 16 MR. FULTS: I believe the document addressed 17 riparians and there's a riparian section in the document. 18 And that's about as much as I recall about that. 19 MR. HERRICK: Okay. Mr. Fults, do you recall 20 whether or not the base case against which the project -- 21 and by that I mean the San Joaquin River Agreement -- was 22 compared assumed the New Melones Interim Operation Plan 23 was in existence? 24 MR. FULTS: In the base? 25 MR. HERRICK: In the base case. CAPITOL REPORTERS (916) 923-5447 15682 1 MR. FULTS: I would assume it is in the base. I 2 would not be able to answer you directly, that, we would 3 have to look at in the document. 4 MR. HERRICK: Okay. No offense -- 5 C.O. STUBCHAER: All right. 6 MR. HERRICK: I'm sorry. 7 MR. O'LAUGHLIN: None taken. 8 MR. HERRICK: I have no further questions. Thank 9 you. 10 C.O. STUBCHAER: Thank you, Mr. Herrick. 11 Anyone else? Staff have any questions of 12 Mr. Fults? 13 MR. HOWARD: No. 14 C.O. STUBCHAER: Mr. Brown? 15 C.O. BROWN: No. 16 C.O. STUBCHAER: Did we have any exhibits pending, 17 Mr. O'Laughlin? 18 MR. O'LAUGHLIN: No, because we're going to wait 19 until the cases in chief are all entirely in and we'll 20 submit them at that time as has been the practice 21 previously. 22 C.O. STUBCHAER: All right. I guess that concludes 23 the -- 24 MR. O'LAUGHLIN: I have no redirect either. 25 C.O. STUBCHAER: Thank you. Thank you, Mr. Fults. CAPITOL REPORTERS (916) 923-5447 15683 1 You going to go back to the Legislature now? 2 MR. FULTS: Yes. 3 C.O. STUBCHAER: Okay. Good luck. And is there any 4 business anyone wants to bring up, any discussion before 5 we take a recess pending the arrival of Mr. Thabault? 6 MR. O'LAUGHLIN: There were -- there's pending in 7 front of the Board -- and at some point in time before 8 Mr. Hildebrand testifies -- we will have to discuss the 9 San Joaquin River Authority's motion to strike as well as 10 we're in the process of formulating a motion for 11 reconsideration on the Chair's motion last week on our 12 motion and your ruling in regards to the standing of 13 Central Delta and South Delta Water Agency. So we're 14 going to have those two motions to discuss. 15 One other motion that we will probably be 16 bringing here at the conclusion and bringing it either 17 tomorrow or on Friday, is the shifting of the burden of 18 proof under 1707 and 1735. Now that the prima facie case 19 has been made, we believe of no impact to any legal user 20 of water and no impact to fishery resources, we believe 21 the impact burden has been shifted to those protesting to 22 make a case of impact. 23 So we will be bringing that motion as well. So 24 there's motions to be dealt with, especially before 25 Mr. Hildebrand testifies, in regards to the motion to CAPITOL REPORTERS (916) 923-5447 15684 1 strike. 2 C.O. STUBCHAER: Thank you, Mr. O'Laughlin. What 3 was the time estimate for Mr. Thabault, did you say 3:30? 4 MR. O'LAUGHLIN: Mr. Thabault left -- Mr. Guinee 5 left me a message that said Mr. Thabault believed he could 6 be available at 2:30 or 3:00. That's when they expected 7 the hearing to be done. 8 However, Mr. Fults has just informed me that they 9 have just completed one panel at this point in time of 10 Mr. Rogers, Mr. Spear, Mr. Snow and I forget the fourth 11 party. So there's other parties that will be testifying 12 still. So I don't know how long Mr. Thabault will be 13 there. 14 Hopefully the Chairman of that committee or 15 Chairmen of that special committee will see fit to release 16 him so we can get him here, but 2:30 or 3:00 was the 17 expected time. 18 C.O. STUBCHAER: Well, we're inclined to just 19 adjourn for the day, but I'm open to discussion. 20 MR. JACKSON: That would be great. 21 C.O. STUBCHAER: We got a fare from one of the 22 attorneys. 23 MR. JACKSON: The idea is that that long a break -- 24 C.O. STUBCHAER: Right, what do we do with the time? 25 C.O. STUBCHAER: All right. Any other comments? CAPITOL REPORTERS (916) 923-5447 15685 1 C.O. BROWN: That makes two of us, Mr. Jackson. 2 MR. JACKSON: I want to go to the hearing. 3 C.O. STUBCHAER: All right. Probably would be 4 ex-parte for us. Okay. We'll be adjourned until 9:00 5 tomorrow morning. 6 MR. O'LAUGHLIN: Can I make one statement before we 7 go, then? So the parties understand this, I don't know if 8 Mr. Thabault will be able to be back at 9:00 o'clock 9 tomorrow morning, but we will endeavor to have him here 10 because we had scheduled him for today. 11 Mr. Brandt made him available today and said that 12 was the day that he could be here. It's been very 13 difficult scheduling these federal witnesses tomorrow. 14 Tomorrow Mr. Steffani, Mr. Ploss and Mr. Burke are 15 scheduled. So I would prefer, unless there's some other 16 feeling, that we go ahead with those three witnesses, 17 they're scheduled, they've set aside the time. We get 18 them done and get them out. And then bring Mr. Thabault 19 back as needed either late Wednesday afternoon or on 20 Friday -- I mean Thursday, I keep saying Friday. I've got 21 a hang-up on Friday. 22 C.O. STUBCHAER: Well, let's see, who has questions 23 for Mr. Thabault? This is not a commitment. Do you 24 expect them to be extensive? 25 MR. NOMELLINI: Half hour at the most for me, CAPITOL REPORTERS (916) 923-5447 15686 1 Mr. Chairman. 2 C.O. STUBCHAER: Half hour at the most. 3 MR. HERRICK: I don't. 4 MR. JACKSON: 20 minutes if they don't ask any 5 questions, 30 minutes if they do. 6 C.O. STUBCHAER: All right. Mr. O'Laughlin, it 7 seems to me that if Mr. Thabault is available in the 8 morning we just -- 9 MR. O'LAUGHLIN: Just assume he be back. Fine, 10 we'll bring him back and finish him tomorrow morning and 11 I'll let Ms. Zolezzi know the change in time. All right. 12 Thank you. 13 C.O. STUBCHAER: All right. Anything else? Okay. 14 Now, for good, we're adjourned until tomorrow. 15 (The proceedings concluded at 1:26 p.m.) 16 ---oOo--- 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 15687 1 REPORTER'S_CERTIFICATE __________ ___________ 2 3 STATE OF CALIFORNIA ) ) ss. 4 COUNTY OF SACRAMENTO ) 5 I, MARY R. GALLAGHER, certify that I was the 6 Official Court Reporter for the proceedings named herein, 7 and that as such reporter I reported in verbatim shorthand 8 writing those proceedings; that I thereafter caused my 9 shorthand writing to be reduced to typewriting, and the 10 pages numbered 15556 through 15687 herein constitute a 11 complete, true and correct record of the proceedings. 12 IN WITNESS WHEREOF, I have subscribed this 13 certificate at Sacramento, California, on this 5th day of 14 July, 1999. 15 16 ________________________________ MARY R. GALLAGHER, CSR #10749 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 15688