STATE WATER RESOURCES CONTROL BOARD PUBLIC HEARING 1998 BAY-DELTA WATER RIGHTS HEARING HELD AT: BONDERSON BUILDING 901 P STREET SACRAMENTO, CALIFORNIA WEDNESDAY, JUNE 23, 1999 9:00 A.M. Reported by: ESTHER F. WIATRE CSR NO. 1564 CAPITOL REPORTERS (916) 923-5447 1 APPEARANCES BOARD MEMBERS: 2 JAMES STUBCHAER, COHEARING OFFICER 3 JOHN W. BROWN, COHEARING OFFICER MARY JANE FORSTER 4 ARTHUR BAGGET, JR. 5 STAFF MEMBERS: 6 WALTER PETTIT, EXECUTIVE DIRECTOR VICTORIA WHITNEY, CHIEF BAY-DELTA UNIT 7 THOMAS HOWARD, SUPERVISING ENGINEER 8 COUNSEL: 9 WILLIAM R. ATTWATER, CHIEF COUNSEL BARBARA LEIDIGH 10 FOR MR. HOWARD AND MR. JOHNS: 11 DANIEL, FRINK, ESQ. 12 ---oOo--- 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 PRINCETON CODORA GLENN IRRIGATION DISTRICT, et al.: 3 FROST, DRUP & ATLAS 134 West Sycamore Street 4 Willows, California 95988 BY: J. MARK ATLAS, ESQ. 5 JOINT WATER DISTRICTS: 6 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON: 7 P.O. BOX 1679 Oroville, California 95965 8 BY: WILLIAM H. BABER III, ESQ. 9 CALIFORNIA SPORTFISHING PROTECTION ALLIANCE: 10 ROBERT J. BAIOCCHI P.O. Box 357 11 Quincy, California 12 BELLA VISTA WATER DISTRICT: 13 BRUCE L. BELTON, ESQ. 2525 Park Marina Drive, Suite 102 14 Redding, California 96001 15 WESTLANDS WATER DISTRICT: 16 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Capitol Mall, 27th Floor 17 Sacramento, California 95814 BY: THOMAS W. BIRMINGHAM, ESQ. 18 and JON ROBIN, ESQ. 19 THE BAY INSTITUTE OF SAN FRANCISCO: 20 GARY BOBKER 21 55 Shaver Street, Suite 330 San Rafael, California 94901 22 CITY OF ANTIOCH, et al.: 23 FREDERICK BOLD, JR., ESQ. 24 1201 California Street, Suite 1303 San Francisco, California 94109 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 LEAGUE OF WOMEN VOTERS: 3 ROBERTA BORGONOVO 2480 Union Street 4 San Francisco, California 94123 5 UNITED STATES DEPARTMENT OF THE INTERIOR: 6 OFFICE OF THE SOLICITOR 2800 Cottage Way, Room E1712 7 Sacramento, California 95825 BY: ALF W. BRANDT, ESQ. 8 and JAMES TURNER, ESQ. 9 10 CALIFORNIA URBAN WATER AGENCIES: 11 BYRON M. BUCK 455 Capitol Mall, Suite 705 12 Sacramento, California 95814 13 RANCHO MURIETA COMMUNITY SERVICES DISTRICT: 14 MCDONOUGH, HOLLAND & ALLEN 555 Capitol Mall, 9th Floor 15 Sacramento, California 95814 BY: VIRGINIA A. CAHILL, ESQ. 16 CALIFORNIA DEPARTMENT OF FISH AND GAME: 17 OFFICE OF ATTORNEY GENERAL 18 1300 I Street, Suite 1101 Sacramento, California 95814 19 BY: MATTHEW CAMPBELL, ESQ. 20 NATURAL RESOURCES DEFENSE COUNCIL: 21 HAMILTON CANDEE, ESQ. 71 Stevenson Street 22 San Francisco, California 94105 23 24 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 ARVIN-EDISON WATER STORAGE DISTRICT, et al.: 3 DOOLEY HERR & WILLIAMS 3500 West Mineral King Avenue, Suite C 4 Visalia, California 93291 BY: DANIEL M. DOOLEY, ESQ. 5 SACRAMENTO MUNICIPAL UTILITY DISTRICT: 6 LESLIE A. DUNSWORTH, ESQ. 7 6201 S Street Sacramento, California 95817 8 SOUTH SAN JOAQUIN IRRIGATION DISTRICT, et al.: 9 BRAY, GEIGER, RUDQUIST & NUSS 10 311 East Main Street, 4th Floor Stockton, California 95202 11 BY: STEVEN P. EMRICK, ESQ. 12 EAST BAY MUNICIPAL UTILITY DISTRICT: 13 EBMUD OFFICE OF GENERAL COUNSEL 375 Eleventh Street 14 Oakland, California 94623 BY: FRED S. ETHERIDGE, ESQ. 15 GOLDEN GATE AUDUBON SOCIETY: 16 ARTHUR FEINSTEIN 17 2530 San Pablo Avenue, Suite G Berkeley, California 94702 18 CONAWAY CONSERVANCY GROUP: 19 UREMOVIC & FELGER 20 P.O. Box 5654 Fresno, California 93755 21 BY: WARREN P. FELGER, ESQ. 22 THOMES CREEK WATER ASSOCIATION: 23 THOMES CREEK WATERSHED ASSOCIATION P.O. Box 2365 24 Flournoy, California 96029 BY: LOIS FLYNNE 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 COURT APPOINTED REPS OF WESTLANDS WD AREA 1, et al.: 3 LAW OFFICES OF SMILAND & KHACHIGIAN 601 West Fifth Street, Seventh Floor 4 Los Angeles, California 90075 BY: CHRISTOPHER G. FOSTER, ESQ. 5 CITY AND COUNTY OF SAN FRANCISCO: 6 OFFICE OF THE CITY ATTORNEY 7 1390 Market Street, Sixth Floor San Francisco, California 94102 8 BY: DONN W. FURMAN, ESQ. 9 CAMP FAR WEST IRRIGATION DISTRICT, et al.: 10 DANIEL F. GALLERY, ESQ. 926 J Street, Suite 505 11 Sacramento, California 95814 12 BOSTON RANCH COMPANY, et al.: 13 J.B. BOSWELL COMPANY 101 West Walnut Street 14 Pasadena, California 91103 BY: EDWARD G. GIERMANN 15 SAN JOAQUIN RIVER GROUP AUTHORITY, et al.: 16 GRIFFTH, MASUDA & GODWIN 17 517 East Olive Street Turlock, California 95381 18 BY: ARTHUR F. GODWIN, ESQ. 19 NORTHERN CALIFORNIA WATER ASSOCIATION: 20 RICHARD GOLB 455 Capitol Mall, Suite 335 21 Sacramento, California 95814 22 PLACER COUNTY WATER AGENCY, et al.: 23 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Capitol Mall, 27th Floor 24 Sacramento, California 95814 BY: JANET GOLDSMITH, ESQ. 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 ENVIRONMENTAL DEFENSE FUND: 3 DANIEL SUYEYASU, ESQ. and 4 THOMAS J. GRAFF, ESQ. 5655 College Avenue, Suite 304 5 Oakland, California 94618 6 CALAVERAS COUNTY WATER DISTRICT: 7 SIMON GRANVILLE P.O. Box 846 8 San Andreas, California 95249 9 CHOWCHILLA WATER DISTRICT, et al.: 10 GREEN, GREEN & RIGBY P.O. Box 1019 11 Madera, California 93639 BY: DENSLOW GREEN, ESQ. 12 CALIFORNIA FARM BUREAU FEDERATION: 13 DAVID J. GUY, ESQ. 14 2300 River Plaza Drive Sacramento, California 95833 15 SANTA CLARA VALLEY WATER DISTRICT: 16 MORRISON & FORESTER 17 755 Page Mill Road Palo Alto, California 94303 18 BY: KEVIN T. HAROFF, ESQ. 19 CITY OF SHASTA LAKE: 20 ALAN N. HARVEY P.O. Box 777 21 Shasta Lake, California 96019 22 COUNTY OF STANISLAUS: 23 MICHAEL G. HEATON, ESQ. 926 J Street 24 Sacramento, California 95814 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 GORRILL LAND COMPANY: 3 GORRILL LAND COMPANY P.O. Box 427 4 Durham, California 95938 BY: DON HEFFREN 5 SOUTH DELTA WATER AGENCY: 6 JOHN HERRICK, ESQ. 7 3031 West March Lane, Suite 332 East Stockton, California 95267 8 COUNTY OF GLENN: 9 NORMAN Y. HERRING 10 525 West Sycamore Street Willows, California 95988 11 REGIONAL COUNCIL OF RURAL COUNTIES: 12 MICHAEL B. JACKSON, ESQ. 13 1020 Twelfth Street, Suite 400 Sacramento, California 95814 14 DEER CREEK WATERSHED CONSERVANCY: 15 JULIE KELLY 16 P.O. Box 307 Vina, California 96092 17 DELTA TRIBUTARY AGENCIES COMMITTEE: 18 MODESTO IRRIGATION DISTRICT 19 P.O. Box 4060 Modesto, California 95352 20 BY: BILL KETSCHER 21 SAVE THE SAN FRANCISCO BAY ASSOCIATION: 22 SAVE THE BAY 1736 Franklin Street 23 Oakland, California 94612 BY: CYNTHIA L. KOEHLER, ESQ. 24 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 BATTLE CREEK WATERSHED LANDOWNERS: 3 BATTLE CREEK WATERSHED CONSERVANCY P.O. Box 606 4 Manton, California 96059 5 BUTTE SINK WATERFOWL ASSOCIATION, et al.: 6 MARTHA H. LENNIHAN, ESQ. 455 Capitol Mall, Suite 300 7 Sacramento, California 95814 8 CITY OF YUBA CITY: 9 WILLIAM P. LEWIS 1201 Civic Center Drive 10 Yuba City 95993 11 BROWNS VALLEY IRRIGATION DISTRICT, et al.: 12 BARTKEWICZ, KRONICK & SHANAHAN 1011 22nd Street, Suite 100 13 Sacramento, California 95816 BY: ALAN B. LILLY, ESQ. 14 CONTRA COSTA WATER DISTRICT: 15 BOLD, POLISNER, MADDOW, NELSON & JUDSON 16 500 Ygnacio Valley Road, Suite 325 Walnut Creek, California 94596 17 BY: ROBERT B. MADDOW, ESQ. 18 GRASSLAND WATER DISTRICT: 19 DON MARCIOCHI 22759 South Mercey Springs Road 20 Los Banos, California 93635 21 SAN LUIS CANAL COMPANY: 22 FLANNIGAN, MASON, ROBBINS & GNASS 3351 North M Street, Suite 100 23 Merced, California 95344 BY: MICHAEL L. MASON, ESQ. 24 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 STONY CREEK BUSINESS AND LAND OWNERS COALITION: 3 R.W. MCCOMAS 4150 County Road K 4 Orland, California 95963 5 TRI-DAM POWER AUTHORITY: 6 TUOLUMNE UTILITIES DISTRICT P.O. Box 3728 7 Sonora, California 95730 BY: TIM MCCULLOUGH 8 DELANO-EARLIMART IRRIGATION DISTRICT, et al.: 9 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 10 P.O. Box 1679 Oroville, California 95965 11 BY: JEFFREY A. MEITH, ESQ. 12 HUMANE FARMING ASSOCIATION: 13 BRADLEY S. MILLER 1550 California Street, Suite 6 14 San Francisco, California 94109 15 CORDUA IRRIGATION DISTRICT, et al.: 16 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 17 Oroville, California 95965 BY: PAUL R. MINASIAN, ESQ. 18 EL DORADO COUNTY WATER AGENCY: 19 DE CUIR & SOMACH 20 400 Capitol Mall, Suite 1900 Sacramento, California 95814 21 BY: DONALD B. MOONEY, ESQ. 22 GLENN COUNTY FARM BUREAU: 23 STEVE MORA 501 Walker Street 24 Orland, California 95963 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 MODESTO IRRIGATION DISTRICT: 3 JOEL MOSKOWITZ P.O. Box 4060 4 Modesto, California 95352 5 PACIFIC GAS & ELECTRIC: 6 RICHARD H. MOSS, ESQ. P.O. Box 7442 7 San Francisco, California 94120 8 CENTRAL DELTA WATER AGENCY, et al.: 9 NOMELLINI, GRILLI & MCDANIEL P.O. Box 1461 10 Stockton, California 95201 BY: DANTE JOHN NOMELLINI, ESQ. 11 and DANTE JOHN NOMELLINI, JR., ESQ. 12 TULARE LAKE BASIN WATER STORAGE UNIT: 13 MICHAEL NORDSTROM 14 1100 Whitney Avenue Corcoran, California 93212 15 AKIN RANCH, et al.: 16 DOWNEY, BRAND, SEYMOUR & ROHWER 17 555 Capitol Mall, 10th Floor Sacramento, California 95814 18 BY: KEVIN M. O'BRIEN, ESQ. 19 OAKDALE IRRIGATION DISTRICT: 20 O'LAUGHLIN & PARIS 870 Manzanita Court, Suite B 21 Chico, California 95926 BY: TIM O'LAUGHLIN, ESQ. 22 SIERRA CLUB: 23 JENNA OLSEN 24 85 Second Street, 2nd Floor San Francisco, California 94105 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 YOLO COUNTY BOARD OF SUPERVISORS: 3 LYNNEL POLLOCK 625 Court Street 4 Woodland, California 95695 5 PATRICK PORGANS AND ASSOCIATES: 6 PATRICK PORGANS P.O. Box 60940 7 Sacramento, California 95860 8 BROADVIEW WATER DISTRICT, et al.: 9 DIANE RATHMANN 10 FRIENDS OF THE RIVER: 11 BETSY REIFSNIDER 128 J Street, 2nd Floor 12 Sacramento, California 95814 13 MERCED IRRIGATION DISTRICT: 14 FLANAGAN, MASON, ROBBINS & GNASS P.O. Box 2067 15 Merced, California 95344 BY: KENNETH M. ROBBINS, ESQ. 16 CENTRAL SAN JOAQUIN WATER CONSERVATION DISTRICT: 17 REID W. ROBERTS, ESQ. 18 311 East Main Street, Suite 202 Stockton, California 95202 19 METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA: 20 JAMES F. ROBERTS 21 P.O. Box 54153 Los Angeles, California 90054 22 SACRAMENTO AREA WATER FORUM: 23 CITY OF SACRAMENTO 24 980 9th Street, 10th Floor Sacramento, California 95814 25 BY: JOSEPH ROBINSON, ESQ. CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 TUOLUMNE RIVER PRESERVATION TRUST: 3 NATURAL HERITAGE INSTITUTE 114 Sansome Street, Suite 1200 4 San Francisco, California 94194 BY: RICHARD ROOS-COLLINS, ESQ. 5 CALIFORNIA DEPARTMENT OF WATER RESOURCES: 6 DAVID SANDINO, ESQ. 7 CATHY CROTHERS, ESQ. P.O. Box 942836 8 Sacramento, California 94236 9 FRIANT WATER USERS AUTHORITY: 10 GARY W. SAWYERS, ESQ. 575 East Alluvial, Suite 101 11 Fresno, California 93720 12 KERN COUNTY WATER AGENCY: 13 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Capitol Mall, 27th Floor 14 Sacramento, California 95814 BY: CLIFFORD W. SCHULZ, ESQ. 15 SAN JOAQUIN RIVER EXCHANGE CONTRACTORS: 16 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON: 17 P.O. Box 1679 Oroville, California 95965 18 BY: MICHAEL V. SEXTON, ESQ. 19 SAN JOAQUIN COUNTY: 20 NEUMILLER & BEARDSLEE P.O. Box 20 21 Stockton, California 95203 BY: THOMAS J. SHEPHARD, SR., ESQ. 22 CITY OF STOCKTON: 23 DE CUIR & SOMACH 24 400 Capitol Mall, Suite 1900 Sacramento, California 95814 25 BY: PAUL S. SIMMONS, ESQ. CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 ORLAND UNIT WATER USERS' ASSOCIATION: 3 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 4 Oroville, California 95965 BY: M. ANTHONY SOARES, ESQ. 5 GLENN-COLUSA IRRIGATION DISTRICT: 6 DE CUIR & SOMACH 7 400 Capitol Mall, Suite 1900 Sacramento, California 95814 8 BY: STUART L. SOMACH, ESQ. 9 NORTH SAN JOAQUIN WATER CONSERVATION DISTRICT: 10 JAMES F. SORENSEN CONSULTING CIVIL ENGINEER, INC. 209 South Locust Street 11 Visalia, California 93279 BY: JAMES F. SORENSEN 12 PARADISE IRRIGATION DISTRICT: 13 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 14 P.O. Box 1679 Oroville, California 95695 15 BY: WILLIAM H. SPRUANCE, ESQ. 16 COUNTY OF COLUSA: 17 DONALD F. STANTON, ESQ. 1213 Market Street 18 Colusa, California 95932 19 COUNTY OF TRINITY: 20 COUNTY OF TRINITY - NATURAL RESOURCES P.O. Box 156 21 Hayfork, California 96041 BY: TOM STOKELY 22 CITY OF REDDING: 23 JEFFERY J. SWANSON, ESQ. 24 2515 Park Marina Drive, Suite 102 Redding, California 96001 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 TULARE IRRIGATION DISTRICT: 3 TEHAMA COUNTY RESOURCE CONSERVATION DISTRICT 2 Sutter Street, Suite D 4 Red Bluff, California 96080 BY: ERNEST E. WHITE 5 STATE WATER CONTRACTORS: 6 BEST BEST & KREIGER 7 P.O. Box 1028 Riverside, California 92502 8 BY: ERIC GARNER, ESQ. 9 COUNTY OF TEHAMA, et al.: 10 COUNTY OF TEHAMA BOARD OF SUPERVISORS: P.O. Box 250 11 Red Bluff, California 96080 BY: CHARLES H. WILLARD 12 MOUNTAIN COUNTIES WATER RESOURCES ASSOCIATION: 13 CHRISTOPHER D. WILLIAMS 14 P.O. Box 667 San Andreas, California 95249 15 JACKSON VALLEY IRRIGATION DISTRICT: 16 HENRY WILLY 17 6755 Lake Amador Drive Ione, California 95640 18 SOLANO COUNTY WATER AGENCY, et al.: 19 HERUM, CRABTREE, DYER, ZOLEZZI & TERPSTRA 20 2291 West March Lane, S.B.100 Stockton, California 95207 21 BY: JEANNE M. ZOLEZZI, ESQ. 22 WESTLANDS ENCROACHMENT AND EXPANSION LANDOWNERS: 23 BAKER, MANOCK & JENSEN 5260 North Palm Avenue 24 Fresno, Califonria 93704 BY: CHRISTOPHER L. CAMPBELL, ESQ. 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 SAN LUIS WATER DISTRICT: 3 LINNEMAN, BURGES, TELLES, VANATTA & VIERRA 1820 Marguerite Street 4 Dos Palos, California 93620 BY: THOMAS J. KEENE, ESQ. 5 6 ---oOo--- 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 1 INDEX 2 PAGE 3 RESUMPTION OF HEARING: 15706 4 AFTERNOON SESSION: 15810 5 SAN JOAQUIN RIVER GROUP AUTHORITY: MICHAEL THABAULT 6 CONTINUED CROSS-EXAMINATION: BY MR. NOMELLINI 15706 7 CROSS-EXAMINATION BY MR. HERRICK 15739 8 JOHN BURKE DIRECT EXAMINATION: 9 BY MR. O'LAUGHLIN 15833 CROSS-EXAMINATION: 10 BY MR. BIRMINGHAM 15862 BY MR. NOMELLINI 15871 11 BY MR. GODWIN 15900 12 STOCKTON EAST WATER DISTRICT: OPENING STATEMENT: 13 BY MS. ZOLEZZI 15765 EDWARD STEFFANI 14 DIRECT EXAMINATION: BY MS. ZOLEZZI 15777 15 CROSS-EXAMINATION: BY MR. HERRICK 15780 16 BY MR. O'LAUGHLIN 15786 BY BOARD MEMBERS 15795 17 LOWELL PLOSS DIRECTION EXAMINATION: 18 BY MS. ZOLEZZI 15802 CROSS-EXAMINATION: 19 BY MR. NOMELLINI 15813 BY MR. HERRICK 15816 20 BY MR. O'LAUGHLIN 15822 BY BOARD MEMBERS 15828 21 BY STAFF 15829 22 ---oOo--- 23 24 25 CAPITOL REPORTERS (916) 923-5447 1 SACRAMENTO, CALIFORNIA 2 JUNE 23, 1999 3 ---oOo--- 4 C.O. STUBCHAER: We will reconvene the Bay-Delta 5 hearing. 6 This morning the first item will be the 7 cross-examination of Mr. Thabault and first will be Mr. 8 Nomellini followed by Mr. Herrick. 9 Morning, Mr. Nomellini. 10 ---oOo--- 11 CONTINUED CROSS-EXAMINATION OF 12 SAN JOAQUIN RIVER GROUP AUTHORITY 13 BY CENTRAL DELTA PARTIES 14 BY MR. NOMELLINI 15 MR. NOMELLINI: Thank you, Mr. Chairman, Members of the 16 Board. Dante John Nomellini for Central Delta Parties. 17 Mr. Thabault, we left off your cross-examination at the 18 prior -- I guess, yesterday. I think we can maybe pick up 19 with a few general questions, first. 20 Your expertise is in the area of longfin smelt and 21 Delta smelt; is that correct? 22 MR. THABAULT: Fisheries in general, yeah. 23 MR. NOMELLINI: Would that include the longfin and 24 Delta smelt? 25 MR. THABAULT: Yes. CAPITOL REPORTERS (916) 923-5447 15706 1 MR. NOMELLINI: And would that include fall-run chinook 2 salmon? 3 MR. THABAULT: To some extent, yes. 4 MR. NOMELLINI: In the actions taken by the U.S. Fish 5 and Wildlife Service with regard to protection of fish 6 species, is there any priority for protection of fish listed 7 under the federal Endangered Species Act versus unlisted 8 fish species? 9 MR. THABAULT: There is a higher level of authority to 10 protect the listed species above the nonlisted species. 11 MR. NOMELLINI: Is there any effort to prioritize 12 actions so that they would protect listed species versus 13 unlisted species? 14 MR. THABAULT: What we do is, when we evaluate an 15 action we definitely focus on the listed species while 16 keeping in mind not to transfer any or to minimize the 17 adverse impacts on nonlisted species. 18 MR. NOMELLINI: With regard to the San Joaquin River 19 Agreement, could you tell me what Fish and Wildlife 20 Service's view is of the spring pulse flow in terms of 21 species to be protected? 22 MR. THABAULT: The spring pulse flow has, in the 23 Service's opinion, two benefits. One is to assist in the 24 out-migration of juvenile fall-run chinook salmon out of the 25 San Joaquin basin. An additional component is to provide CAPITOL REPORTERS (916) 923-5447 15707 1 for improved habitat and transport flows for Delta smelt and 2 other Delta native fishes in the Delta. 3 MR. NOMELLINI: You had indicated that, I believe in 4 the answer to an earlier question, that the spring pulse 5 flows in the VAMP were flows required in a particular 6 biological opinion; is that correct? 7 MR. THABAULT: No, that is not entirely accurate. 8 MR. NOMELLINI: Let's see if we can break that down to 9 get it accurately on the record. 10 Does the Delta Smelt Biological Opinion contain 11 requirements for a spring pulse flow? 12 MR. THABAULT: Yes, it does. 13 MR. NOMELLINI: Are those requirements the same as the 14 pulse flow requirements in the State Water Resources Control 15 Board 1995 Water Quality Control Plan? 16 MR. THABAULT: There are some slight differences 17 between the two flow patterns. 18 MR. NOMELLINI: Could you tell us what the differences 19 are? 20 MR. THABAULT: The flows that are in the Biological 21 Opinion are the flows that have been identified in the Water 22 Quality Control Plan for the Delta. The flow patterns in 23 the San Joaquin River Agreement are very close to those, but 24 were designed for experimental design to better evaluate the 25 affects of exports versus flows on salmon. So there are CAPITOL REPORTERS (916) 923-5447 15708 1 some subtle differences in certain year types between what 2 might be required in the opinion and what might be provided 3 under the San Joaquin Agreement. Without having the two in 4 front of me I can't give you the two specific numbers. 5 MR. NOMELLINI: Going back to my question with regard 6 to the differences between the pulse flow requirements in 7 the Biological Opinion for smelt and the 1995 Water Quality 8 Control Plan, is it correct that you testified there were 9 subtle differences? 10 MR. THABAULT: Yes. In some years the flows are better 11 and in some years the flows are slightly less. 12 MR. NOMELLINI: Which one is better? 13 MR. THABAULT: In some years the San Joaquin River 14 flows are better, in some years they are slightly less. 15 MR. NOMELLINI: I may be confusing you. I was asking 16 -- if you are incorrect or if you misstated it, maybe that 17 is what is happening here. But I thought you testified that 18 the Biological Opinion for smelt contained pulse flow 19 requirements different than the 1995 Water Quality Control 20 Plan. 21 Did you misspeak? 22 MR. THABAULT: No. The water quality -- the pulse flow 23 in the Water Quality Control Plan are the same flows that 24 are in the Biological Opinion. 25 MR. NOMELLINI: So the San Joaquin River Agreement, CAPITOL REPORTERS (916) 923-5447 15709 1 VAMP or Appendix A, is different than the 1995 Water Quality 2 Control Plan pulse flow? 3 MR. THABAULT: Yes, there are slight differences 4 between the two. 5 C.O. STUBCHAER: One at a time, please. 6 MR. NOMELLINI: Excuse me. 7 It is also different than the Biological Opinion for 8 smelt? 9 MR. THABAULT: Yes. 10 MR. NOMELLINI: The U.S. Fish and Wildlife Service 11 expects that the Biological Opinion for smelt flows during 12 the pulse flow period would be met regardless of the San 13 Joaquin River Agreement; is that correct? 14 MR. THABAULT: Could you repeat the question, Mr. 15 Nomellini? 16 MR. NOMELLINI: Does the U.S. Fish and Wildlife Service 17 expect the Bureau of Reclamation to meet the Biological 18 Opinion, I am talking about the smelt Biological Opinion, 19 pulse flows regardless of the differences in flows contained 20 in the San Joaquin River Agreement? 21 MR. THABAULT: What we have agreed to in the San 22 Joaquin River Agreement is that that agreement would be 23 implemented as described. If for any reason the flows in 24 the San Joaquin River Agreement could not be implemented, 25 then the obligation would fall back to Reclamation to CAPITOL REPORTERS (916) 923-5447 15710 1 implement the letter of the Biological Opinion. 2 MR. NOMELLINI: As long as the flows in the Appendix A 3 of the San Joaquin River Agreement were being met, then the 4 Biological Opinion for smelt would be superseded by those 5 requirements; is that true? 6 MR. THABAULT: In essence, that is correct. There is 7 one flow in the critical dry year which there is an 8 obligation on the San Joaquin River Group, which is somewhat 9 different, but the obligation of Reclamation would be to 10 meet the Biological Opinion flow in that certain 11 circumstance. 12 MR. NOMELLINI: That is 2,000 cubic feet per second 13 versus the 3,500 cubic feet per second? 14 MR. THABAULT: I believe 3,200 cfs required flow. 15 MR. NOMELLINI: With regard to the 3,200 cubic feet per 16 second flow in the Biological Opinion, is that a minimum 17 flow requirement for the pulse? 18 MR. THABAULT: That is the pulse flow for that 19 particular hydrologic condition, yes. 20 MR. THABAULT: You do not agree that it is the minimum 21 required flow? 22 MR. THABAULT: It would be the minimum required flow, 23 yes. 24 MR. NOMELLINI: You would agree, would you not, that 25 the San Joaquin River Agreement substitutes a 2,000 cubic CAPITOL REPORTERS (916) 923-5447 15711 1 foot per second minimum for the minimum 3,200 cubic feet per 2 second in the Biological Opinion? 3 MR. THABAULT: I would not agree with that. 4 MR. NOMELLINI: What do you expect the minimum flow to 5 be? I mean, you, the U.S. Fish and Wildlife Service, 6 expects to be under the San Joaquin River Agreement during 7 the pulse flow period? 8 MR. THABAULT: In that certain circumstance in a 9 critical dry year, I believe they are back-to-back years, 10 there is an obligation on the San Joaquin River Group 11 Authority to provide 2,000 cfs. We would expect Reclamation 12 to provide the additional flow in that certain circumstance 13 to get to the 3,200. 14 MR. NOMELLINI: Do you know where that additional flow 15 would be obtained by the Bureau? 16 MR. THABAULT: We were not specific in where 17 Reclamation would be obtaining such flow. 18 MR. NOMELLINI: Does it make any difference in terms of 19 impact to fish species as to what the source of water would 20 be for the incremental amount above 2,000 cubic feet per 21 second? 22 MR. O'LAUGHLIN: Objection. Vague and ambiguous as to 23 source. We have been through this throughout this hearing. 24 Mr. Nomellini has used two definitions of source. One is 25 from what tributary the water comes from, and the other CAPITOL REPORTERS (916) 923-5447 15712 1 question is how that water is developed and put into the 2 river as source. 3 We went through this problem yesterday with source in 4 regards to Mr. Lecky, who, when I came back on redirect, 5 thought source meant from what tributary when Mr. Nomellini 6 was talking about where it came from within the districts. 7 C.O. STUBCHAER: There was another source; that was the 8 canal. 9 MR. O'LAUGHLIN: The Exchange Contractors. 10 C.O. STUBCHAER: I don't think I tried to define course 11 source. I tried to use it as a word of understanding for 12 the individual to respond to and then explain in specifics. 13 Mr. Thabault, do you understand the question? 14 MR. THABAULT: It would be helpful if he was more 15 specific because there is different implications for 16 different sources. 17 MR. NOMELLINI: Does the U.S. Fish and Wildlife Service 18 -- let's go back. 19 Speaking to the incremental addition of water over and 20 above the 2,000 cubic feet per second in the San Joaquin 21 River Agreement. You testified that the understanding that 22 U.S. Fish and Wildlife Service has is that the Bureau would 23 acquire the additional water so as to provide the minimum 24 3,200 cubic feet per second as provided in the Biological 25 Opinion for smelt. Is that correct? CAPITOL REPORTERS (916) 923-5447 15713 1 MR. THABAULT: They were deemed to obtain the flows, 2 not necessarily through my acquisition. That certainly is 3 one option. 4 MR. NOMELLINI: So the Bureau would provide those 5 additional flows? 6 MR. THABAULT: Correct. 7 MR. NOMELLINI: With reference to the additional 8 increment above the 2,000 cubic feet per second, would it 9 make any difference in terms of impact to fish species if 10 the water came from one particular river system or another? 11 MR. THABAULT: Potentially. 12 MR. NOMELLINI: Has the U.S. Fish and Wildlife Service 13 analyzed those potential impacts? 14 MR. NOMELLINI: No, because Reclamation is not provided 15 us a specific plan to do that in a specific instance. 16 MR. NOMELLINI: Do you have a time table as to when 17 such a plan would be made available? 18 MR. THABAULT: oaquin River Group Authority that the Board would actually 16 implement the 1995 Water Quality Control Plan. So, whether 17 or not the San Joaquin River Agreement goes forward or not 18 is irrelevant because the Board will adopt the -- has 19 already adopted the standards and will implement those 20 standards. 21 As Mr. Thabault's already testified, the Delta Smelt 22 Biological Opinion is already in place and that governs what 23 needs to be done on the San Joaquin River in regards to 24 flows. So, there is going to be a pulse flow there. I know 25 Central Delta and South Delta don't like that pulse flow -- CAPITOL REPORTERS (916) 923-5447 15726 1 MR. NOMELLINI: That is argumentative. 2 MR. O'LAUGHLIN: It is in response to the question. 3 That is a fixture. It is a given. It is not relevant in 4 this phase of the hearings. We are focused on the change 5 petitions and how those change petitions may impact certain 6 legal users of water for environmental uses. That is the 7 sole inquiry here, otherwise we are going back to the 8 beginning again. 9 C.O. STUBCHAER: Mr. Jackson. 10 MR. JACKSON: If the San Joaquin River Group are 11 willing to stipulate that the Board is going to enforce the 12 1995 flow-dependent objectives of the Water Quality Control 13 Plan, whether there is a San Joaquin River Agreement or not, 14 then, Mr. Nomellini -- I think that is great and I hope that 15 happens. But Mr. Nomellini certainly then ought to be able 16 to examine whether or not there are enhancements from the 17 San Joaquin River Agreement over and above the Water Quality 18 Control Plan and its flow-dependent objectives and whether 19 or not the agreed lessening of the flow in the 1995 plan 20 that is integral to the San Joaquin River Agreement is 21 detrimental during some time period to fish and wildlife 22 species in the river and the Delta. 23 C.O. STUBCHAER: All right. 24 MR. NOMELLINI: I want the last word. 25 C.O. STUBCHAER: You want to speak last. I get the CAPITOL REPORTERS (916) 923-5447 15727 1 last word. 2 MR. NOMELLINI: You are going to have the last one. 3 Right before you, can I have the last comment? 4 C.O. STUBCHAER: Yes. 5 MR. NOMELLINI: I don't think the issue is whether or 6 not the standards are going to be met in the abstract of the 7 San Joaquin River Agreement. I think there is a substantial 8 difference in the impact of where you get the water to meet 9 the pulse flow. And that's the area I would like to 10 pursue. It makes a difference. 11 If freshness of the water happens to be a problem 12 because it attracts at a certain degree of freshness Delta 13 smelt, then maybe the Delta smelt pulse flow ought to be 14 provided from water that doesn't create that. The San 15 Joaquin River Agreement talks about the sources of water. 16 We have identified them at Exchange Contractors, Merced 17 Irrigation District, Modesto Irrigation District, TID, 18 Oakdale, South San Joaquin. Those are different sources of 19 water. There is substantial difference in quality between 20 the water provided by the Exchange Contractors and those 21 agencies and the tributaries. 22 So I think it is perfectly relevant without facing the 23 question of whether or not the pulse flow would be met 24 because this specific -- these petitions we have -- I think 25 we have three petitions here, involve different sources of CAPITOL REPORTERS (916) 923-5447 15728 1 water. We may conclude that the water from the Exchange 2 Contractors is fine and that ought to be blessed, but that 3 the water from Oakdale is not because it causes a detriment 4 in this process. 5 The pulse is provided in any event so that the Delta 6 smelt, to the extent they need a pulse, they are happy. But 7 it is the quality that is the difference. 8 C.O. STUBCHAER: I think it is appropriate to assume 9 that the pulse flow will be met, not necessarily by the 10 agreement, but it will be met. The purpose of this overall 11 water rights hearing is to decide how that water quality 12 plan should be met. 13 With regard to the objections on the pending question, 14 I don't recall that the quality issue was included in the 15 pending question. You addressed that earlier. 16 So I am going to sustain the pending question, if you 17 want to get back to the quality issues. 18 MR. NOMELLINI: I don't remember what the pending 19 question was. Let me try again. 20 (Discussion held off the record.) 21 C.O. STUBCHAER: Okay. You may proceed, Mr. 22 Nomellini. 23 MR. NOMELLINI: We are going to proceed. 24 How does water quality affect spawning of Delta smelt? 25 MR. THABAULT: What particular water quality parameter CAPITOL REPORTERS (916) 923-5447 15729 1 are you talking about? 2 MR. NOMELLINI: Would water quality of the pulse flow 3 during April 15th to May 15 -- just a second. 4 Could water quality of the pulse flow during April 15th 5 to May 15th affect Delta smelt spawning? 6 MR. THABAULT: It may, but how would be pure 7 speculation on my part right now. 8 MR. NOMELLINI: So you don't know whether the quality 9 of water during the April 15th to May 15th pulse flow would, 10 in fact, affect Delta smelt spawning? 11 MR. THABAULT: We have determined that a pulse flow 12 during that period will benefit Delta smelt. There are many 13 aspects to water quality which are very broad which I cannot 14 address unless you be more specific. 15 MR. NOMELLINI: Does the salinity of the water during 16 the April 15th through May 15th pulse flow affect Delta 17 smelt spawning? 18 MR. THABAULT: To the extent that there is any 19 spawning, which is at the end of the spawning period for 20 Delta smelt, salinity could potentially have some affect on 21 where they would spawn. 22 MR. NOMELLINI: Is there any difference in salinity 23 between the water to be provided under the San Joaquin River 24 Agreement by Oakdale Irrigation District as opposed to water 25 being provided by the Exchange Contractors? CAPITOL REPORTERS (916) 923-5447 15730 1 MR. THABAULT: I have no idea. 2 MR. NOMELLINI: Do you believe that the water in the 3 Delta-Mendota Canal is equal in equipment with regard to 4 salinity to the water flowing down the Stanislaus River? 5 MR. THABAULT: Since I have no specific information on 6 the water quality necessarily in either one of those two 7 locations at any particular time, I have no opinion on 8 that. 9 MR. NOMELLINI: Would that be true with a comparison of 10 water quality for the Delta-Mendota Canal versus water from 11 the Tuolumne River system? 12 MR. THABAULT: Since I have no specific information on 13 the water quality, I can't offer an opinion. 14 MR. NOMELLINI: Would that also be true with regard to 15 comparison of the water quality in the Delta-Mendota Canal 16 with water from the Merced River? 17 MR. THABAULT: That would also be true. 18 MR. NOMELLINI: In the San Joaquin River Agreement it 19 is contemplated that a Head of Old River Barrier would be 20 installed, is it not? 21 MR. THABAULT: Yes, it is. 22 MR. NOMELLINI: And does the Fish and Wildlife Service 23 have any concern with regard to adverse impacts on fish 24 species due to installation of the Head of Old River Barrier 25 as contemplated in the San Joaquin River Agreement? CAPITOL REPORTERS (916) 923-5447 15731 1 MR. THABAULT: There could be adverse impacts from a 2 Head of Old River Barrier depending on how the rest of the 3 system is operated. 4 MR. NOMELLINI: What are those adverse impacts that 5 could occur? 6 MR. THABAULT: Depending on in-flow tides and export 7 rates, it could affect the local hydrodynamics within the 8 South and Central Delta. 9 MR. NOMELLINI: How does that affect fish species? 10 MR. THABAULT: Could you be specific as to which fish 11 species? 12 MR. NOMELLINI: Let's start with Delta smelt. 13 MR. THABAULT: Delta smelt, juveniles or larva, are not 14 particularly good swimmers at certain times of the year and 15 are more subject to shifts in hydrology and their migratory 16 pattern or dispersal of that particular life stage of that 17 particular fish could be affected by changes in hydrology. 18 MR. NOMELLINI: Does that -- with regard to Delta 19 smelt, then, the installation of the Head of Old River 20 Barrier, would that -- strike that. 21 What changes in the hydrodynamics that affect Delta 22 smelt do you expect from the installation of Head of Old 23 River Barrier? 24 MR. THABAULT: Would you be specific, under what 25 circumstances? CAPITOL REPORTERS (916) 923-5447 15732 1 MR. NOMELLINI: Under any circumstances. 2 MR. THABAULT: The affects are different under 3 different circumstances. 4 MR. NOMELLINI: Focusing on those that would adversely 5 affect Delta smelt. 6 MR. THABAULT: It causes me to make some assumptions 7 that I am not sure where you are going, so until you can 8 provide me a particular circumstance, it forces me to make 9 assumptions that I am not willing to go to. 10 MR. NOMELLINI: Does the Head of Old River Barrier 11 cause more water to be drawn by the pumps from the central 12 portion of the Delta? 13 MR. O'LAUGHLIN: Objection. 14 C.O. STUBCHAER: Mr. O'Laughlin. 15 MR. O'LAUGHLIN: Irrelevant. The Head of Old River 16 Barrier was nowhere noticed in this change petition, is 17 outside the scope of this hearing. This was handled in 18 Phases II, II-B -- II, II-A and in V. And I don't think we 19 need to go through another day of testifying about the Head 20 of Old River Barrier. 21 C.O. STUBCHAER: Mr. Campbell. 22 MR. CAMPBELL: I will join in the objection to the 23 extent that this line of questioning is cumulative and 24 unduly repetitive of evidence that has been elicited 25 previously in this hearing. All these questions were asked CAPITOL REPORTERS (916) 923-5447 15733 1 of prior a witness provided by U.S. Fish and Wildlife 2 Service. I believe Mr. Vandenberg. We are just going over 3 the same ground. 4 Department of Fish and Game's objection is based on 5 grounds of cumulativeness and unduly repetitive. 6 C.O. STUBCHAER: Mr. Nomellini. 7 MR. BRANDT: I join in those objections, by the way. 8 MR. NOMELLINI: The San Joaquin River Group Authority 9 brought forward this witness for the purpose of presenting 10 to you San Joaquin River Group Authority Exhibit 114D. 114D 11 is the memorandum to the operations manager of the Bureau 12 signed by Cay Goude. 13 That agreement -- that letter references the entire San 14 Joaquin River Agreement. It does not separate the flows. 15 It says the affect of the San Joaquin River Agreement is to 16 provide an institutional framework to which the operations 17 of Reclamation could be more reliable. Da, da, da. 18 Adverse affects that are likely to occur from any 19 agreement and interrelated and interdependent actions have 20 already been addressed in the OCAP Biological Opinion. 21 Thus, it is likely that the level of incidental take that 22 would occur with the implementation of the San Joaquin River 23 Agreement would not exceed that which would occur from the 24 original proposal. 25 Now, San Joaquin River Group Authority brought this CAPITOL REPORTERS (916) 923-5447 15734 1 broad data before you and brought this witness for that 2 purpose. They didn't narrow the scope down just to flows 3 provided under the San Joaquin River Agreement. This is 4 very broad as to the balance of the whole agreement in terms 5 of incidental take. They have opened that subject, and now 6 on cross-examination they want to narrow it down. 7 They broadened it, not me, by their testimony that 8 they brought forward. If they only want to talk about flow, 9 they should have brought this witness and asked him 10 questions about flow. 11 What is the relevance of the San Joaquin River 12 Agreement 114D in all these other aspects? So I think I am 13 entitled to pursue it. 14 C.O. STUBCHAER: Off the record. 15 (Discussion held off record.) 16 C.O. STUBCHAER: Back on the record. 17 The objection on the cumulative nature of the evidence 18 in questions has merit. However, the letter that you are 19 referring to is new since the previous phases, and this was 20 discussed. I am going to allow you to continue, Mr. 21 Nomellini, but ask that you try, one, to stick with the 22 issues noticed for this phase of the hearing and, two, do 23 not go back into evidence that was gathered in the previous 24 phases. 25 MR. NOMELLINI: Does that mean you don't want me to CAPITOL REPORTERS (916) 923-5447 15735 1 quiz the witness about the Head of Old River Barrier? That 2 is where I was. 3 C.O. STUBCHAER: Unless you can identify in this new 4 information, new information regarding Head of Old River 5 Barrier. The answer to the question is yes. 6 MR. NOMELLINI: I can't specifically identify that 7 separate and apart from the reference to the San Joaquin 8 River Agreement as a whole, and I know that the Head of Old 9 River Barrier has been established to be a part of the San 10 Joaquin River Agreement. 11 So if you are looking for the words "Head of Old River 12 Barrier" in here as a precondition to my questioning, I 13 cannot give that to you, if that is what you're ruling. 14 That is your ruling? 15 C.O. STUBCHAER: Yes. 16 MR. NOMELLINI: Mr. Thabault, has the U.S. Fish and 17 Wildlife Service analyzed the impact of the San Joaquin 18 River Agreement on flows in minor tributaries to the San 19 Joaquin River such as Little Johns Creek, Lone Tree Creek 20 and Bear Creek? 21 MR. THABAULT: To my knowledge, there has been no 22 specific data provided to me that flows from those 23 particular tributaries would or would not be contributing to 24 the agreement. 25 MR. NOMELLINI: Have you seen any evidence that would CAPITOL REPORTERS (916) 923-5447 15736 1 indicate that flows in those tributaries would be reduced by 2 way of the provision of water under the San Joaquin River 3 Agreement? 4 MR. THABAULT: As I said, I have not been provided any 5 evidence that those flows would go up or down. 6 MR. NOMELLINI: With regard -- do you know where Bear 7 Creek is? 8 MR. THABAULT: Vaguely. 9 MR. NOMELLINI: South of the Merced River, is that 10 where you think it is? 11 C.O. STUBCHAER: Mr. Nomellini, which Bear Creek? 12 MR. NOMELLINI: The one south of the Merced. Are you 13 aware of another Bear Creek that is tributary to the San 14 Joaquin? 15 MR. THABAULT: I couldn't say. 16 MR. NOMELLINI: Maybe the Chairman could help you. 17 MR. THABAULT: I couldn't put it on a map, Mr. 18 Nomellini. 19 MR. NOMELLINI: Do you know whether or not there are 20 anadromous fish in Bear Creek? 21 MR. THABAULT: I am unaware of the presence of 22 anadromous fish in the creek. 23 MR. NOMELLINI: Do you know whether or not there are 24 anadromous fish in Little Johns Creek? 25 MR. THABAULT: I do not know if there have been CAPITOL REPORTERS (916) 923-5447 15737 1 anadromous fish detected on Little Johns Creek. 2 C.O. STUBCHAER: Protected? 3 MR. THABAULT: Detected. 4 MR. NOMELLINI: With regard to Lone Tree Creek, do you 5 know whether or not? 6 MR. THABAULT: But the pending question, Mr. 11 Stubchaer, is: What's the government's policy under CVPIA? 12 How that is relevant to anything that has been addressed by 13 any of the dialogue here escapes me. 14 C.O. STUBCHAER: Mr. O'Laughlin. 15 MR. O'LAUGHLIN: We keep missing the point here. The 16 change petitions aren't to implement the San Joaquin River 17 Agreement. The change petitions are to provide protection 18 for water moving down from these various parties to Vernalis 19 during the spring pulse flow period. That is what they 20 are. 21 Now, they are connected to San Joaquin River Agreement, 22 but if the change -- I mean, the difficulty I am having here 23 is that the petitions are part of the San Joaquin River 24 Agreement. They have been included within the Bay-Delta 25 proceedings. But if you looked at these just separate and CAPITOL REPORTERS (916) 923-5447 15744 1 apart, if there was no Bay-Delta proceedings, no San Joaquin 2 River Agreement, the very limited questions are set forth in 3 the hearing notice. 4 What continually is happening here is we keep going 5 back and reopening other issues that we've previously 6 addressed. The other thing is, it was very clear, we filed 7 another supplement change petition on this for the 15,000 8 acre-feet of water. Because that water is not included 9 within these change petitions. 10 Finally, whether or not money is paid from the CVPIA 11 restoration fund or some other source of funds from the 12 federal government in order to acquire that water from OID 13 is irrelevant to these change petitions because that is a 14 funding and policy question which has nothing to do with how 15 it is going to impact the fish or any legal user of water 16 downstream. 17 C.O. STUBCHAER: Mr. Nomellini. 18 MR. NOMELLINI: The noticed petition clearly says: 19 The purpose of the four petitions is to 20 supply water to carry out of the Vernalis 21 Adaptive Management Plan (VAMP) experiments 22 proposed pursuant to the San Joaquin River 23 Agreement (SJRA). (Reading.) 24 So clearly it is noticed to be contrary to what Mr. 25 O'Laughlin just stated. It is much broader. I think the CAPITOL REPORTERS (916) 923-5447 15745 1 question is very relevant as to whether or not there is, in 2 fact, an impact determined by Fish and Wildlife Service with 3 regard to whether the water that would otherwise be made 4 available by Oakdale has some beneficial purpose to fish and 5 wildlife, or is it additive water. And I think that this is 6 cross-examination. And the letter presented by the San 7 Joaquin River Agreement, as well as the environmental 8 document, was brought forward by them. So our right to 9 cross-examination without the necessity of being repetitive 10 or way off the mark is to cross-examine with regard to these 11 petitions. 12 MR. HERRICK: Just as a final, I would like to address 13 two things. 14 The reason CVPIA has come up is that the witness 15 answered he wasn't familiar with the Bureau's policy with 16 regard to SJRA. So, I tried to back up and lay foundation 17 to see if he was familiar with other policies that would 18 affect the use of this water. So, the fact that I am the 19 first person to use the term "CVPIA" doesn't affect whether 20 it is relevant or not. 21 Secondly, this is not rehashing old issues. The 22 parties who bring that up are the ones that told us "we're 23 also providing extra water in New Melones which will help 24 other things such as water quality." Well, Fish and 25 Wildlife's comment letter speaks for itself, and that is CAPITOL REPORTERS (916) 923-5447 15746 1 what I am exploring with Mr. Thabault. It specifically 2 takes the opposite position, that it shouldn't go back into 3 the pot for other purposes. It should only be used. I 4 think that is very relevant to explore. 5 C.O. STUBCHAER: Off the record. 6 (Discussion held off the record.) 7 C.O. STUBCHAER: It is true that 15,000 acre-feet is 8 not subject to this petition before us, but they are linked 9 to the other amounts of water before us. I am going to 10 allow the questioning to continue. 11 Mr. Herrick, I am going to ask that you try and focus 12 in on the subject of this petition and not revisit the 13 broader aspect of the San Joaquin River Agreement. 14 MR. HERRICK: I will endeavor to do that. 15 Thank you, Mr. Chairman. 16 Mr. Thabault, let me try again, then. Are you familiar 17 with the Service's position on how water purchased under 18 CVPIA must be used? 19 MR. THABAULT: I have a general understanding of the 20 Service's policy of that issue. 21 MR. HERRICK: What would that policy be? 22 MR. THABAULT: My understanding of that policy is if 23 moneys are expended out of the restoration fund to acquire 24 water, that the primary purpose of that water is to be for 25 fish. I am unaware of any constraints on that water once CAPITOL REPORTERS (916) 923-5447 15747 1 the primary purpose of its purchase is met. 2 MR. HERRICK: You read those sections I showed you of 3 the comment letter from the Service. Would you agree or is 4 it also your understanding with regard to the Service's 5 policy that in order for the water purchased under CVPIA to 6 be used for purposes other than fish and wildlife there 7 needs to be a finding by the Secretary of the Interior that 8 it is not needed for those purposes? 9 MR. THABAULT: CAPITOL REPORTERS (916) 923-5447 15761 1 MR. THABAULT: I think between the data that went into 2 the original opinion and analysis that was provided during 3 the time of the development of the agreement, we have 4 determined that the 2,000 cfs would not be sufficient to 5 achieve its intended purposes for Delta smelt and, 6 therefore, have determined that the Biological Opinion 7 should prevail in that particular instance. 8 MR. HERRICK: Under a hypothetical where the Bureau was 9 not able to acquire that additional -- to secure that 10 additional flow, it is the Service's opinion that the 11 Biological Opinion would control and require that any way; 12 is that correct? 13 MR. THABAULT: To the extent that Reclamation can 14 provide those flows to meet the pulse flows, that is the 15 intended operations. If they cannot meet the 3,200, then we 16 would look at potentially reinitiating and looking at the 17 constraints on the project to see what they could do. 18 MR. HERRICK: That results in other inquiries. We 19 don't necessarily know what actions might be required? 20 MR. THABAULT: Very case specific. 21 MR. HERRICK: Thank you. 22 I believe the letter, which is marked as SJRG 114D, 23 concludes that Service believes since the Bureau has only 24 one source of water that this is a way of firming up meeting 25 the various pulse flows over a longer period of time? Is CAPITOL REPORTERS (916) 923-5447 15762 1 that a fair summation? 2 MR. THABAULT: cross-examination while we are waiting for Mr. Ploss. 12 C.O. STUBCHAER: Who wishes to cross-examine Mr. 13 Steffani? 14 Mr. Herrick, Mr. O'Laughlin. 15 Anyone else? 16 Mr. Herrick is tails. 17 MR. HERRICK: I resent that. 18 C.O. STUBCHAER: It is tails. 19 C.O. BROWN: Think there was something to that, Mr. 20 Herrick? 21 MR. HERRICK: No. 22 ---oOo--- 23 // 24 // 25 // CAPITOL REPORTERS (916) 923-5447 15779 1 CROSS-EXAMINATION OF STOCKTON EAST WATER DISTRICT 2 BY SOUTH DELTA WATER DISTRICT 3 BY MR. HERRICK 4 MR. HERRICK: John Herrick for South Delta Water 5 Agency. 6 Mr. Steffani, you have attached or referenced in your 7 testimony three other exhibits: Stockton East 41, 42 and 44. 8 Is that correct? 9 MR. STEFFANI: Yes. 10 MR. HERRICK: Those include summaries of the No-Name 11 conference calls and CalFed OPS group meetings; is that 12 correct? 13 MR. STEFFANI: Yes. 14 MR. HERRICK: One of them is a document entitled 15 "Effects on Vernalis Flow and Quality by Implementing the 16 San Joaquin River Agreement during 1999"; is that correct? 17 MR. STEFFANI: Yes. 18 MR. HERRICK: Who produced that document I just 19 referenced? Do you know? 20 MR. STEFFANI: I don't know without going through it. 21 MR. HERRICK: That was presented at a CalFed OPS 22 meeting or some other meeting? 23 MR. STEFFANI: I believe presented at a CalFed OPS 24 meeting. 25 MR. HERRICK: Do you have that, Stockton East 41 in CAPITOL REPORTERS (916) 923-5447 15780 1 front of you, please? 2 MR. STEFFANI: Yes. 3 MR. HERRICK: Could you turn to Page 2, please? 4 MR. STEFFANI: Yes. 5 MR. HERRICK: At the bottom of the page, there are, I 6 will call them, little charts? One says "90 Percent 7 Exceedance Projection"; is that correct? 8 MR. STEFFANI: Yes. 9 MR. HERRICK: Is it correct to state that that deals 10 with conditions this year or conditions subsequent to this 11 year? Can you clarify that? 12 MR. STEFFANI: Subsequent to this year. 13 MR. HERRICK: At the top of that chart it says "VAMP 14 water up to 157,000 acre-feet"; is that correct? 15 MR. STEFFANI: Yes. 16 MR. HERRICK: Was the 157,000 acre-feet at one time 17 proposed for release this year, 1999? 18 MR. STEFFANI: I don't know. 19 MR. HERRICK: And it is your testimony that as a result 20 of the modeling shown that implementation of the San Joaquin 21 River Agreement could result in more water being released 22 from New Melones for water quality purposes than in the 23 absence of the San Joaquin River Agreement being implemented? 24 MR. STEFFANI: Yes. 25 MR. HERRICK: Your testimony talks about that CAPITOL REPORTERS (916) 923-5447 15781 1 decreasing carryover storage and, therefore, decreasing 2 allotments to Stockton East; is that correct? 3 MR. STEFFANI: Yes. 4 MR. HERRICK: Does that same principle hold true for 5 the allocations to other purposes, to other users of New 6 Melones water? 7 MR. STEFFANI: I think so. If we start out with the 8 less storage, then it's bound to reduce water available for 9 others, yes. 10 MR. HERRICK: And that is because the Interim Operation 11 Plan allocates water for various purposes depending on 12 inflow and storage? 13 MR. STEFFANI: Yes, that is correct. 14 MR. HERRICK: One of those other uses is water quality; 15 is that correct? 16 MR. STEFFANI: Yes. 17 MR. HERRICK: And one of those other users is Oakdale 18 and South San Joaquin? 19 MR. STEFFANI: Yes. 20 MR. HERRICK: So, if we just assume some horrible 21 drought period for a couple of years, all of those users, 22 all or some of those users may have less water because of 23 the San Joaquin River Agreement? 24 MR. STEFFANI: Yes. 25 MR. HERRICK: I don't know what page it is -- excuse CAPITOL REPORTERS (916) 923-5447 15782 1 me. 2 Could you turn to the seventh page of Stockton East 41, 3 please? 4 MR. STEFFANI: That is the table? 5 MR. HERRICK: It says Table 3 at the right, and to the 6 left it says -- the first chart says "Simulated New Melones 7 Reservoir Storage"? 8 MR. STEFFANI: I have it. 9 C.O. STUBCHAER: Could you please repeat the exhibit 10 and page? 11 MR. HERRICK: I am in Stockton East Exhibit 41 on the 12 seventh page, which is an attached chart and at the top it 13 says "Table 3." 14 C.O. STUBCHAER: Thank you. 15 MR. HERRICK: At the left top it says "Simulated New 16 Melones Reservoir Storage TAF" for thousand acre-feet? 17 MR. STEFFANI: Yes. 18 MR. HERRICK: Mr. Steffani, if we go to the second 19 column or actually the third column where it says "Width 20 SJRA 90 Percent Forecast." Do you see that? 21 MR. STEFFANI: Yes. 22 MR. HERRICK: And under that there is a Flow Division A 23 and a Flow Division B? 24 MR. STEFFANI: Yes. 25 MR. HERRICK: Those are two different possible flow CAPITOL REPORTERS (916) 923-5447 15783 1 scheduled releases under the San Joaquin River Agreement's 2 implementation; is that correct? 3 MR. STEFFANI: Yes. 4 MR. HERRICK: If we go down to the bottom, which is the 5 end of the modeling shown in that table, so we are in the 6 year 2000 under the month September? 7 MR. STEFFANI: Yes. 8 MR. HERRICK: Under flow division A, simulated New 9 Melones Reservoir storage is 1,436,900 -- 10 MR. STEFFANI: Yes. 11 MR. HERRICK: -- acre-feet; is that correct? 12 MR. STEFFANI: Yes. 13 MR. HERRICK: Is that the condition under which the 14 least amount of water is allocated for various purposes 15 under the Interim Operation Plan? 16 MR. STEFFANI: Yes. 17 MR. HERRICK: And absent the San Joaquin River 18 Agreement's implementation, would that amount be greater, 19 that carryover amount? 20 MR. STEFFANI: Yes. 21 MR. HERRICK: And just to highlight, under the next 22 table, Table 4, immediately below that, does that table show 23 that under the San Joaquin River Agreement in certain months 24 there is more water being released from New Melones than 25 without the San Joaquin River Agreement? CAPITOL REPORTERS (916) 923-5447 15784 1 MR. STEFFANI: Yes. 2 MR. HERRICK: Mr. Steffani, in Stockton East Exhibit 3 44, which is the summary of discussions at the California 4 CalFed OPS group meeting, you see there on the fourth 5 paragraph and fifth paragraph it talks about concerns 6 expressed by Alex Hildebrand; is that correct? 7 MR. STEFFANI: Yes. 8 MR. HERRICK: Would you agree that Mr. Hildebrand's 9 concerns dealt with long-term effects of the implementation 10 of the San Joaquin River Agreement? 11 MR. BIRMINGHAM: Objection. Lacks foundation. 12 C.O. STUBCHAER: Mr. Herrick. 13 MR. HERRICK: Maybe I should rephrase it. I am going 14 over what the document says. I will start again. 15 Let me read to you the fifth paragraph -- excuse me, 16 fourth paragraph. It says: 17 Although conceding that this year's pulse 18 flow would not produce significant impacts 19 next year, Alex Hildebrand, SDWA, was 20 adamantly against its implementation. His 21 concern regards a cumulative impact resulting 22 from implementing the pulse flow for the 23 12-year period. He is convinced flows in the 24 San Joaquin will eventually be lower during 25 the summer and early fall, producing degraded CAPITOL REPORTERS (916) 923-5447 15785 1 water quality in the river. (Reading.) 2 Do you see that? 3 MR. STEFFANI: I do. 4 MR. HERRICK: To your knowledge, was any long-term 5 modeling done that covered the implementation of the San 6 Joaquin River Agreement with additional purposes in 1999? 7 MR. STEFFANI: I haven't seen such work. 8 MR. HERRICK: That is all I have. 9 C.O. STUBCHAER: Thank you. 10 Mr. O'Laughlin. 11 ---oOo--- 12 CROSS-EXAMINATION OF STOCKTON EAST WATER DISTRICT 13 BY SAN JOAQUIN RIVER GROUP AUTHORITY 14 BY MR. O'LAUGHLIN 15 MR. O'LAUGHLIN: Good morning, Mr. Steffani. Tim 16 O'Laughlin representing the San Joaquin River Group 17 Authority. 18 Did you prepare your testimony? 19 MR. STEFFANI: Did I write it? 20 MR. O'LAUGHLIN: Yes. 21 MR. STEFFANI: No. 22 MR. O'LAUGHLIN: Did somebody else write it for you? 23 MR. STEFFANI: Yes. 24 MR. O'LAUGHLIN: You have been through what has been 25 written for you and have approved it and believe that, to CAPITOL REPORTERS (916) 923-5447 15786 1 the best of your knowledge, this is true and correct? 2 MR. STEFFANI: Yes, I do. 3 MR. O'LAUGHLIN: On Page 8 of 9, what I want to focus 4 in on is how you propose to implement this provision. 5 You say in here that: 6 Rather, we are looking simply to compare 7 model runs, such as was done by the San 8 Joaquin River Group Authority this year, to 9 anticipate operations and impacts. 10 (Reading.) 11 So, are we to understand that what you are proposing is 12 a computer model run prior to the April/May pulse flow 13 period versus a base case? And based solely on the computer 14 runs ascertain whether or not there has been an impact to 15 Stockton East Water District? 16 MR. STEFFANI: I don't think I am saying that. I am 17 saying just as Table 3, that we were discussing earlier, 18 projects storage levels, we could determine what those 19 storage levels would be, the end of February storage levels, 20 with and without the San Joaquin River Agreement on a real 21 time basis. We should be able to do that very easily. 22 MR. O'LAUGHLIN: So then it is based purely on 23 modeling, not on actual amounts that are held in storage at 24 the end of the year? 25 MR. STEFFANI: No. I think it is a combination of CAPITOL REPORTERS (916) 923-5447 15787 1 modeling and the actual storage. 2 MR. O'LAUGHLIN: Let me ask you a question. Looking at 3 Table Number 3, these are computer models that simulate what 4 will happen with or without the San Joaquin River Agreement 5 in regards to storage at New Melones, correct? 6 MR. STEFFANI: Correct. 7 MR. O'LAUGHLIN: Let's take an example and we would get 8 down to a period where the storage without the San Joaquin 9 River agreement -- let's see, base case of 90 percent 10 forecast. Do you mind the 90 percent or do you want to use 11 the 50 percent? 12 MR. STEFFANI: Ninety is fine. 13 MR. O'LAUGHLIN: We get to the period here in October 14 of 1570.8 in the base case. That is based on a computer 15 simulation, correct? 16 MR. STEFFANI: Correct. 17 MR. O'LAUGHLIN: What happens under your proposal if we 18 actually get to October now and the amount of water in 19 storage is above 1570.8? 20 MR. STEFFANI: What happens to it? 21 MR. O'LAUGHLIN: Yes. Are you going to require -- even 22 though more water has been released from New Melones than 23 what you believe should have been released, but storage is 24 still actually higher, are you going to ask for a permit 25 condition at that time to the Bureau? CAPITOL REPORTERS (916) 923-5447 15788 1 MR. STEFFANI: No, I don't think so. What we are 2 worried about is storage, the end of February storage. 3 MR. O'LAUGHLIN: Let's -- 4 C.O. STUBCHAER: Let him finish. 5 MR. O'LAUGHLIN: Excuse me, Chairman, and excuse me, 6 Mr. Steffani. 7 MR. STEFFANI: You go ahead. You heard, I think we 8 should like at February. You ask the questions. 9 MR. O'LAUGHLIN: Let's look at February. Let's say, 10 this year my understanding of what this testimony is all 11 about, is that when the San Joaquin River Agreement was 12 being done this year that it identified impacts of up to 13 about 25,000 acre-feet or 30,000 acre-feet of additional 14 water or water being released from New Melones into the 15 summertime in order to meet water quality. Correct? 16 MR. STEFFANI: Correct. 17 MR. O'LAUGHLIN: Based on that, Stockton East is 18 concerned that since there is 30,000 acre-feet -- let's just 19 use 30,000 if that is okay with you. Since there is 30,000 20 acre-feet of less water in storage, that that would have an 21 impact on the CVP contractors next year under the Interim 22 Operation Plan allocation? 23 MR. STEFFANI: Could have. 24 MR. O'LAUGHLIN: Could have. If it rains and the 25 reservoir fills to 1.9, then there is no impact, correct? CAPITOL REPORTERS (916) 923-5447 15789 1 MR. STEFFANI: Right. 2 MR. O'LAUGHLIN: What I am driving at here is that that 3 impact of 30,000 acre-feet was based on modeling assumptions 4 that are included and embedded within the modeling. It may 5 not be actually based on reality that occurs out in the 6 field; is that correct? 7 MR. STEFFANI: Correct. 8 MR. O'LAUGHLIN: What I am asking is, in regards to 9 your testimony on Page 8, are we solely to look at modeling 10 runs to identify impacts to the Stockton East or are we to 11 go back into the field and verify whether or not those 12 modeling runs have any relationship to reality? 13 MR. STEFFANI: We go back into the field. Definitely. 14 MR. O'LAUGHLIN: In this year, give you an example, the 15 modeling runs assume allocations to Oakdale and South San 16 Joaquin of 600,000 acre-feet of water this year. In those 17 two districts do not use their 600,000 acre-feet, let's say 18 they use 500,000 acre-feet, there would actually be 100,000 19 acre-feet left up to storage, correct? 20 MR. STEFFANI: Uh-huh. 21 MR. O'LAUGHLIN: You have to answer audibly. 22 MR. STEFFANI: Yes. 23 MR. O'LAUGHLIN: If that was the case, then there would 24 be more -- actually, even if more water were released from 25 New Melones, there would be -- we would be above any of the CAPITOL REPORTERS (916) 923-5447 15790 1 base cases that are identified in the computer modeling 2 runs; is that correct? 3 MR. STEFFANI: Correct. 4 MR. O'LAUGHLIN: Now, the other thing I would like to 5 identify is, clearly, if New Melones -- if there is an 6 impact, let's say 30,000 acre-feet of additional water is 7 released and the reservoir then fills sometime between 8 September and February to the 1.9 million acre-feet, then 9 there would be no impact to Stockton East; is that correct? 10 MR. STEFFANI: Correct. 11 MR. O'LAUGHLIN: What baseline is Stockton East 12 proposing as this measurement of the with and without the 13 San Joaquin River Group Authority? 14 MR. STEFFANI: Our baseline? 15 MR. O'LAUGHLIN: Yes. Are you proposing that the San 16 Joaquin River Group Authority be compared to New Melones 17 operation solely under Interim OPS or the New Melones 18 operation with the Delta Smelt Biological Opinion? 19 MR. STEFFANI: I am not sure I can answer that. I 20 think in Interim OP. 21 MR. O'LAUGHLIN: Now, my understanding, based on your 22 testimony here, is that the real concern, one of the real 23 concerns, is that under the Interim Operation Plan, and this 24 is set forth on Page 7 of 9 of your testimony. The real 25 concern is that if you get to a cutoff of, I think it is CAPITOL REPORTERS (916) 923-5447 15791 1 around, 2.4 million acre-feet of combined storage in inflow, 2 that at that point in time there is no longer a gradation in 3 the allocation of water to Stockton East Water District. 4 There is an absolute cliff that you fall off and you go to 5 zero; is that correct? 6 MR. STEFFANI: Correct. 7 MR. O'LAUGHLIN: You don't want to be sitting on the 8 border between 2.4 million and have 20,000 acre-feet less in 9 storage and all of a sudden go to a zero allocation; is that 10 correct? 11 MR. STEFFANI: You got it right. 12 MR. O'LAUGHLIN: Do you think it's possible that rather 13 than permit term condition, that what may be a better result 14 would be to have the Bureau go back into the Interim 15 Operation Plan and have a graduation in scale for Stockton 16 East for an allocation from zero to the first increment, 17 rather than a step from 0 to 50,000? 18 MR. STEFFANI: That would be much better, yes. 19 MR. O'LAUGHLIN: Have you started discussions with the 20 Bureau at all in regards to going back and looking at the 21 Interim Operation Plan to see if it would be possible to get 22 that incremental change done within the plan? 23 MR. STEFFANI: We have discussed that many times at the 24 Stanislaus stakeholders, but so far nothing has happened. 25 MR. O'LAUGHLIN: Now, realizing that in 1995 your CAPITOL REPORTERS (916) 923-5447 15792 1 statement sets forth that additional water was released from 2 New Melones because of what happened at operations on the 3 Merced River, are the releases that are planned to be made 4 from New Melones to meet that additional water quality 5 component, do you know whether or not they are within the 6 guidelines set forth under Interim Operation Plan? 7 MR. STEFFANI: I don't know. 8 MR. O'LAUGHLIN: So, it may be under a scenario that 9 under the Interim Operation Plan there may have been 150,000 10 acre-feet of water allocated to water quality under the with 11 and without scenario, the without scenario would have a 12 hundred thousand acre-feet of water being used for water 13 quality. Now that we have the San Joaquin River Agreement, 14 30,000 acre-feet of additional water would have gone down 15 the river for water quality, but it still may be within the 16 allocation of water quality of up to 150,000 acre-feet? 17 MR. STEFFANI: That could be. 18 MR. O'LAUGHLIN: Now when you are looking at these 19 impacts to CVP contractors at New Melones, how do you factor 20 into your analysis any benefits received to CVP contractors 21 at New Melones by additional water going up to New Melones? 22 MR. STEFFANI: I don't understand your question, Tim. 23 Ask it again. 24 MR. O'LAUGHLIN: Are you going to, under the proposal 25 -- in 1999 we say there is a 30,000 acre-feet impact. Let's CAPITOL REPORTERS (916) 923-5447 15793 1 say next year that there is a 10,000 acre-feet benefit to 2 New Melones. There is additional water in storage. 3 Do you propose to keep a running average or do you 4 propose to look at it in a year-by-year basis? 5 MR. STEFFANI: We propose to look at it on a 6 year-by-year basis. 7 MR. O'LAUGHLIN: Do you know whether or not Stockton 8 East received a copy of the EA FONSI that was done for the 9 supplemental purchases for 1999 by the United States Bureau 10 of Reclamation to implement the pulse flow during the 11 April/May time period? 12 MR. STEFFANI: We received it, but I didn't read it. 13 MR. O'LAUGHLIN: Did you give that to your counsel to 14 comment on? 15 MR. STEFFANI: Yes. 16 MR. O'LAUGHLIN: Thank you. 17 I have no further questions. 18 Thank you, Mr. Chairman. 19 Thank you, Mr. Steffani. Have a very nice retirement. 20 MR. STEFFANI: I wondered why you were so nice to me. 21 C.O. STUBCHAER: Thank you, Mr. O'Laughlin. 22 Mr. Steffani, when is your retirement? 23 MR. STEFFANI: I am no longer general manager June 30, 24 but I am going to be on board for the month of July to break 25 the new guy in. CAPITOL REPORTERS (916) 923-5447 15794 1 C.O. STUBCHAER: Best wishes and happy retirement. 2 MR. STEFFANI: Thank you. 3 But you are not going to get rid of me completely. I 4 am going to work a day a week for the neighboring water 5 district to the north of Stockton East called North San 6 Joaquin Water Conservation District. You may see me in here 7 with a different hat. 8 C.O. STUBCHAER: Do staff have any questions for Mr. 9 Steffani? 10 MR. HOWARD: No. 11 C.O. STUBCHAER: Board Members? 12 Mr. Brown. 13 --oOo--- 14 CROSS-EXAMINATION OF STOCKTON EAST WATER DISTRICT 15 BY BOARD MEMBERS 16 C.O. BROWN: Mr. Steffani, your basic concern is that 17 with the increase of additional use of water out of New 18 Melones, as proposed by the San Joaquin River Group 19 Authority, is that increase in use out of New Melones would 20 will distract from the potential contract water that 21 Stockton East may receive? 22 MR. STEFFANI: It is not so much the water that would 23 be extra water that would be released from New Melones. 24 It's water that might be -- might have to be released from 25 New Melones to make up for water that now is being released CAPITOL REPORTERS (916) 923-5447 15795 1 on the Merced. So the water that is being released, the 2 Oakdale/South San Joaquin water that is being released for 3 the pulse flow, that does not impact Stockton East and 4 Central because that is Oakdale and South San Joaquin water 5 that they could use normally, anyway. 6 It's the need, the possible need, for New Melones to 7 meet water quality demands in the San Joaquin River that 8 would be met from the Merced without the agreement. 9 C.O. BROWN: Why does that concern you? 10 MR. STEFFANI: Why does that concern us? 11 C.O. BROWN: Yes. 12 MR. STEFFANI: If extra water has to be released from 13 New Melones in the fall months to meet water quality 14 demands, then there will be less water in New Melones, less 15 storage in New Melones the following spring, the following 16 winter, and our allocation is determined by how much water 17 there is in storage on the last day of February plus the 18 projected inflow. 19 C.O. BROWN: That backs up to my question. Your 20 concerns for these diversions relate directly to the 21 potential of water that you may receive through contract, 22 CVP contract? 23 MR. STEFFANI: Yes, that is correct. 24 C.O. BROWN: What year did you construct that canal? 25 When was it completed? CAPITOL REPORTERS (916) 923-5447 15796 1 MR. STEFFANI: I guess at this time it is time for me 2 to retire. I have a hard time remembering dates. 3 I think we were complete in '92, '93. 4 C.O. BROWN: That takes water out of Goodwin and 5 diverts it to Stockton East Water District facility? 6 MR. STEFFANI: Yes. 7 C.O. BROWN: '92, '93. How much water since then, do 8 you remember, have you contracted for and taken from 9 Goodwin? 10 MR. STEFFANI: Yes. This year we're taking 60,000. 11 The previous two years we took 50,000, and the year prior to 12 those two years we took probably 15. I remember we asked 13 for water in '93; that was the first year that we were ready 14 and asked for water and were denied water because of the 15 CVPIA. 16 C.O. BROWN: I understand that from your testimony and 17 your written testimony is that your modeling -- your 18 analysis indicates that you are going to lose part of that 19 contract if everything stays status quo with the other two 20 districts, South San Joaquin and Oakdale, that your belief 21 is that the Stockton East Water District and possibly South 22 San Joaquin and possibly Central San Joaquin could lose 23 contract water? 24 MR. STEFFANI: We could lose contract water, yes. 25 C.O. BROWN: You have been in that area a long time. CAPITOL REPORTERS (916) 923-5447 15797 1 You're an agricultural engineer, aren't you? 2 MR. STEFFANI: I am a civil engineer. 3 C.O. BROWN: With ag background. Are there 4 opportunities for water conservation reclamation in that 5 area that haven't -- in your opinion? 6 MR. STEFFANI: Conservation of groundwater, yes. But 7 not so much conservation of surface water because we see the 8 use of surface water as a recharge element. 9 C.O. BROWN: Have you heard the term "real water" used 10 in this hearing before? 11 MR. STEFFANI: The term what, John? 12 C.O. BROWN: Real water. 13 MR. STEFFANI: Yes. 14 C.O. BROWN: What's your understanding of what real 15 water is? 16 MR. STEFFANI: Real as opposed to paper? 17 C.O. BROWN: Yes. 18 MR. STEFFANI: Well, I am not sure how other people 19 define the terms, but I define them as real water is water 20 that is actually there. That is actually in storage or 21 projected inflow. 22 C.O. BROWN: Real water that is conserved. I think 23 there was testimony by the Exchange Contractors to where 24 they were improving the irrigation efficiency and in their 25 area, which was percolating down to a saline first water CAPITOL REPORTERS (916) 923-5447 15798 1 table, and the concurrence here generally was that that is 2 real water saved as opposed to water that could percolate to 3 a reusable groundwater basin is not real water saved. 4 Would you agree with that? 5 MR. STEFFANI: If water is lost to a saline basin; that 6 is not real water, then. 7 C.O. BROWN: So that would be real water saved if they 8 went through improved irrigation efficiency? 9 MR. STEFFANI: Yes, exactly. 10 C.O. BROWN: That was the point. 11 MR. STEFFANI: Right. 12 C.O. BROWN: Are there opportunities to reduce the 13 consumptive use of crops, obviously, that is real water 14 saved, is it not? 15 MR. STEFFANI: Yes. 16 C.O. BROWN: If you change the cropping pattern? 17 MR. STEFFANI: Right. If you plant grapes where you 18 had sugar beets or alfalfa, yeah, that is a saving. 19 C.O. BROWN: The point I am working up here is: If 20 these folks were proposing to supply real water to meet 21 these things, would you then object to the agreement? 22 MR. STEFFANI: No. I don't think so. Who are those 23 folks? 24 C.O. BROWN: Well, the people that we are talking about 25 here are the San Joaquin -- CAPITOL REPORTERS (916) 923-5447 15799 1 MR. STEFFANI: The River Group Authority? 2 C.O. BROWN: The River Group Authority. 3 MR. STEFFANI: Yeah. 4 C.O. BROWN: Could you support the program if they were 5 proposing that? 6 MR. STEFFANI: Well, yes. We do not oppose the San 7 Joaquin River Agreement. We have made that position very 8 clear from the beginning. All we are asking is that our 9 allocation not be reduced as a result of the implementation 10 of the agreement. 11 C.O. BROWN: If they were proposing real water, do you 12 believe your allocation would be reduced? 13 MR. STEFFANI: No, it wouldn't. 14 MR. BROWN: If they were to take water out of New 15 Melones, as a for instance, to meet the requirements here, 16 then they'd make more storage capacity available the 17 following year? 18 MR. STEFFANI: Correct. 19 C.O. BROWN: Well, with more storage capacity, that has 20 the potential to increase yield, also, doesn't it? 21 MR. STEFFANI: Yes. 22 C.O. BROWN: Well, in part, then, does the -- operation 23 in itself could be a contributor to some of the real water? 24 MR. STEFFANI: It could. 25 C.O. BROWN: Certainly not all, but some of it. CAPITOL REPORTERS (916) 923-5447 15800 1 That is all I have, Mr. Chairman, and thank you. 2 C.O. STUBCHAER: Ms. Forster? 3 Okay. Do you have any redirect, Ms. Zolezzi? 4 MS. ZOLEZZI: No. 5 C.O. STUBCHAER: That concludes the examination and 6 case in chief. 7 Do you have any exhibits? 8 MS. ZOLEZZI: We have one more witness. 9 C.O. STUBCHAER: Is that Cathy Kelly? 10 MS. ZOLEZZI: No. It is Mr. Ploss, Lowell Ploss, 11 Bureau of Reclamation. 12 C.O. STUBCHAER: He is your witness. I have a note 13 you subpoenaed Cathy Kelly. Are you going to use her? 14 MS. ZOLEZZI: We have decided at this time not to use 15 her unless it is needed in rebuttal. 16 C.O. STUBCHAER: So case in chief we can strike that. 17 I saw Mr. Ploss come into the room. 18 Good morning. 19 Ms. Zolezzi, how long do you think your examination of 20 Mr. Ploss will be? 21 MS. ZOLEZZI: My examination, I have numerous 22 questions. The answers are relatively simple. It will take 23 longer than that 10 or 15 minutes that we have left. 24 C.O. STUBCHAER: Mr. Brandt, were you going to say 25 something? CAPITOL REPORTERS (916) 923-5447 15801 1 MR. BRANDT: Five or ten minutes? Could we get done by 2 five or ten after? I would like to get started just because 3 I have some other commitments, as well. 4 MS. ZOLEZZI: I have no objection. 5 C.O. STUBCHAER: I presume we are going to have 6 cross-examination. 7 MR. BRANDT: That is true. We can get it moving, and 8 that is 20 minutes more we get done. 9 C.O. STUBCHAER: Thank you, Mr. Steffani, thank you for 10 your appearance. 11 ---oOo--- 12 FURTHER DIRECT EXAMINATION OF STOCKTON EAST WATER DISTRICT 13 BY MS. ZOLEZZI 14 MS. ZOLEZZI: Mr. Ploss, you have been sworn and given 15 your qualifications for the record, have you not? 16 MR. PLOSS: Yes, I have. 17 MR. BRANDT: By the way, could I just state, Mr. Ploss 18 is being provided at the request of Stockton East Water 19 District as a percipient witness. 20 MS. ZOLEZZI: And he has been subpoenaed and the 21 parties were notified of that fact. 22 Mr. Ploss, you participated in negotiations of the San 23 Joaquin River Agreement, did you not? 24 MR. PLOSS: Yes, I did. 25 MS. ZOLEZZI: Petitions that are the subject of the CAPITOL REPORTERS (916) 923-5447 15802 1 hearing today were contemplated by Section 10.2 of the San 2 Joaquin River Agreement? 3 MR. PLOSS: Yes. 4 MS. ZOLEZZI: You testified in these proceedings that 5 the San Joaquin River Agreement, and I quote, will not 6 affect the two CVP New Melones contractors, unqote. 7 Was that your testimony? 8 MR. PLOSS: I believe so, yes. 9 MS. ZOLEZZI: Did you participate in a conference call 10 of the No-Name Group on March 18, 1999? 11 MR. PLOSS: I believe I did. There were several. 12 MS. ZOLEZZI: Stockton East Water District Exhibit 42, 13 which I will show you, is a copy of the minutes from that 14 March 18th conference call in which you participated? 15 MR. PLOSS: Yes, it is. 16 MS. ZOLEZZI: Was one of topics of that conference call 17 to discuss implementation of the San Joaquin River Agreement 18 flows and exports for water year 1999? 19 MR. PLOSS: Yes, it was. 20 MS. ZOLEZZI: The minutes for that conference call, 21 which is Stockton East Water District 42, the statement is 22 made that in the median forecast New Melones may release 23 40,000 acre-feet for water quality control to offset a 24 reduction in discretionary summer releases by the 25 tributaries. CAPITOL REPORTERS (916) 923-5447 15803 1 Was it your understanding that this fact was based upon 2 the draft modeling of effects on Vernalis flow and water 3 quality by implementing the San Joaquin River Agreement 4 during 1999 as contained in Stockton East Water District 5 Exhibit 41, prepared by Mr. Steiner? 6 MR. PLOSS: I believe that is the case, yes. 7 MS. ZOLEZZI: Now, Mr. Steiner testified under 8 cross-examination in these proceedings that in his modeling 9 he assumed that the 15,000 acre-feet of water that would be 10 purchased each year by the Bureau from Oakdale Irrigation 11 District under the San Joaquin River Agreement would be 12 retained in storage and allocated in the following year 13 under the Interim Operation Plan. 14 Has the Bureau made may commitment to follow that 15 procedure of retaining the 15,000 acre-feet of purchased 16 water in storage? 17 MR. PLOSS: No. 18 MS. ZOLEZZI: Isn't it true that in Section 8.5 of the 19 San Joaquin River Agreement it provides that that purchased 20 water that we have been referring to may be used for any 21 authorized purpose of the New Melones project? 22 MR. PLOSS: That's correct. 23 MS. ZOLEZZI: So, as a result the Bureau could release 24 that additional water every year for fishery purposes and 25 not carry it over? CAPITOL REPORTERS (916) 923-5447 15804 1 MR. PLOSS: That's correct. 2 MS. ZOLEZZI: Are you familiar with the March 30th 3 document entitled "Draft Additional Water Acquistion for 4 Meeting VAMP Flow Objectives, 1999 Environmental Assessment 5 and Initial Study," which is Stockton East Water District 6 Exhibit 43? 7 MR. PLOSS: Yes. 8 MR. BRANDT: Could I ask you to show him the document? 9 He is testifying -- so we know he is identifying that as the 10 document, and 41, as well. 11 MS. ZOLEZZI: Turning back to Stockton East Water 12 District Exhibit 43, is it true that at Page 316 of that 13 exhibit evidences that in 1999 VAMP operations would require 14 an additional 43,500 acre-feet to be released from New 15 Melones Reservoir, and that is achieved from AN addition of 16 the -- additional water needed, 28,500 acre-feet in addition 17 to the extra 15,000 acre-feet purchased? 18 MR. PLOSS: I am not certain if it was intended. That 19 will come from New Melones, yes. That is correct. 20 MS. ZOLEZZI: If we can have the overhead which is 21 Stockton East Water District Exhibit 46. This is Table 22 3.1-2 of the document that we are looking at, Stockton East 23 Water District 43. Looking at that table, could you tell me 24 the end of February, storage plus inflow for the year 2000 25 under the 50 percent forecast, the without VAMP? CAPITOL REPORTERS (916) 923-5447 15805 1 MR. PLOSS: Yes. 2 MS. ZOLEZZI: Is that the 1951 number? 3 MR. PLOSS: The 1951.6 under the 50 percent forecast. 4 MS. ZOLEZZI: Looking at the same overhead, could you 5 tell us what the end of February storage plus inflow for 6 2000 under the 50 percent forecast is with VAMP? 7 MR. PLOSS: With the VAMP would be 19,029.9. 8 MS. ZOLEZZI: That would be a -- 9 MR. BRANDT: One minute. 1,000,929.9. 10 MS. ZOLEZZI: That would be a 24,700 acre-foot 11 difference in the end of February storage comparing New 12 Melones operations without implementation of VAMP and with 13 implementation of VAMP? 14 MR. PLOSS: That is correct. 15 MS. ZOLEZZI: Again, Mr. Steiner also testified that 16 this modeled 24,700 acre-foot reduction assumed retention in 17 storage of the 15,000 acre-feet of water purchased from 18 Oakdale. Do you agree that if the 15,000 acre-feet of 19 purchased water were released, that the difference in end of 20 February storage as a result of VAMP operations would be 21 greater? 22 MR. PLOSS: It would be greater if everything else in 23 the study stayed constant, yes. 24 MS. ZOLEZZI: If we can look to Stockton East Water 25 District 47, which is another overhead. I will provide you CAPITOL REPORTERS (916) 923-5447 15806 1 a copy of the spreadsheet from Mr. Steiner's model, SJRA 2 M1WK4, which is from the San Joaquin River Group Exhibit 3 11.7. If I could direct your attention to the year 1979 in 4 that spreadsheet, could you tell me the end of February 5 storage plus inflow from 1979 on that spreadsheet? 6 C.O. STUBCHAER: Mr. Godwin. 7 MR. GODWIN: Mr. Chairman, we went over the same issue 8 yesterday about bringing in evidence without notifying the 9 other parties. I realize this is an adverse witness that 10 has been called by Jeanne Zolezzi. She hasn't had a chance 11 or opportunity to talk to him in advance. We went round and 12 round with the same issue yesterday. 13 MS. ZOLEZZI: We are following the same procedures that 14 were followed in previous phases when dealing with 15 subpoenaed witness, which is we are submitting copies of the 16 overheads and any new exhibits to the Board as well as to 17 the parties here. 18 C.O. STUBCHAER: Were you here yesterday? 19 MS. ZOLEZZI: No, I was not. 20 C.O. STUBCHAER: We had discussion about the unfairness 21 of surprise exhibits and the ability to cross-examine on 22 them and be granted extension of time to cross-examine 23 necessary so the people can go over the exhibits. 24 MS. ZOLEZZI: So we are changing the procedure from 25 Phase V? CAPITOL REPORTERS (916) 923-5447 15807 1 C.O. STUBCHAER: I don't know if we are changing from 2 Phase V. This is what we discussed yesterday. 3 Mr. Herrick. 4 MR. HERRICK: I believe Ms. Zolezzi is referring to 5 documents that were attached to previously submitted and 6 accepted evidence. It is slightly different. It is not a 7 new document. 8 MR. GODWIN: There are portions of documents that were 9 submitted by reference. 10 MS. ZOLEZZI: No. These are excerpts from your Exhibit 11 11.7 to which Mr. Steiner testified at the beginning of 12 this phase. 13 MR. GODWIN: These are? 14 MS. ZOLEZZI: Yes. 15 MR. GODWIN: What about the previous document? 16 MS. ZOLEZZI: The previous document was simply a page 17 from your exhibit that was sent out to the parties weeks 18 ago. 19 MR. GODWIN: That was one of the ones that was 20 referenced, was it not, Exhibit 43? 21 MR. ZOLEZZI: That same information is also contained 22 in another document which the parties have which was sent 23 out. 24 I find this objection rather strange coming from the 25 party whose document this is. Whatever the procedure is we CAPITOL REPORTERS (916) 923-5447 15808 1 will follow it. 2 MR. GODWIN: It is not necessarily in the way of an 3 objection. We need to have some clarification because, like 4 I said, we ran into the same problem yesterday, and I don't 5 want to have to keep doing it every time we have another 6 witness. 7 C.O. STUBCHAER: Mr. Godwin, the difference between 8 these exhibits and yesterday's exhibits have been pointed 9 out. These are largely, not entirely, from exhibits that 10 are already in the record, and that does make a difference, 11 I think. 12 MR. BRANDT: Can I also just clarify for the record? 13 Mr. Ploss is not here under subpoena. He is here 14 voluntarily at the request of the Stockton East. 15 MS. ZOLEZZI: I did not mean to infer that there was no 16 cooperation. I apologize. There has been tremendous 17 cooperation. 18 C.O. STUBCHAER: Mr. Brandt, it is noon now. We are 19 victims of stomach politics. 20 Ms. Zolezzi, would this be all right? 21 MS. ZOLEZZI: Yes. We are about halfway done. 22 C.O. STUBCHAER: Let's break for lunch and come back 23 at one. 24 (Luncheon break taken.) 25 ---oOo--- CAPITOL REPORTERS (916) 923-5447 15809 1 AFTERNOON SESSION 2 ---oOo--- 3 C.O. STUBCHAER: Ms. Zolezzi. 4 MS. ZOLEZZI: Thank you. 5 Moving back to, we were just finishing up Stockton East 6 Water District overhead 46, which is Table 3.1-2. I don't 7 think we need to show it again. 8 Of Stockton East Water District 43. Just to refresh 9 everybody's recollection, Mr. Ploss, you acknowledged that 10 that showed a modeled 24,000 reduction in end of February 11 storage in the year 2000? 12 MR. PLOSS: Yes. 13 MS. ZOLEZZI: You acknowledged that the model assumed 14 retention in storage of 15,000 acre-feet of water purchased 15 from Oakdale Irrigation District; is that correct? 16 MR. PLOSS: That is the way the model is run, yes. 17 MS. ZOLEZZI: Has the Bureau of Reclamation made any 18 determination of how it would use the 15,000 acre-feet 19 purchased every year? 20 MR. PLOSS: No. 21 MS. ZOLEZZI: Will that be a year-to-year 22 determination? 23 MR. PLOSS: I can't say for certain how that will be 24 determined. I would anticipate that it would be 25 year-by-year determination after discussions with other CAPITOL REPORTERS (916) 923-5447 15810 1 stakeholders on the Stanislaus River. 2 MS. ZOLEZZI: Could that 15,000 acre-feet or any 3 portion of it be used for allocation to CVP contractors from 4 New Melones? 5 MR. PLOSS: There is a possibility of that. That water 6 is being purchased through the authority of the Central 7 Valley Project Improvement Act, what was termed as (b)(3) 8 water. And so the first priority water would be for 9 purposes of that act. But if it is determined it is not 10 needed, it certainly may be available for other purposes of 11 the project. 12 MS. ZOLEZZI: When you say purposes of that act, what 13 would that include? 14 MR. PLOSS: That would be for fish and wildlife or 15 water quality for endangered species. 16 MS. ZOLEZZI: Because of those purposes, it is more 17 than likely that water would be released rather than 18 retained? 19 MR. PLOSS: That is hard to say. Based on the fish 20 needs I think you need to talk to one of the fishery 21 biologists on how that water may be used. 22 MS. ZOLEZZI: So we have seen that, at least the 23 modeling for the year 2000 impacts of implementation of the 24 VAMP, that there is a potential reduction in New Melones 25 carryover storage, which in turn through IOP affect CAPITOL REPORTERS (916) 923-5447 15811 1 contractual allocations. 2 Is it still your opinion that the San Joaquin Agreement 3 would not affect the two CVP New Melones contractors? 4 MR. PLOSS: That is correct. 5 MS. ZOLEZZI: Is that the case under any circumstance 6 in a particular take year? 7 MR. PLOSS: I think if you assume that the Interim 8 Operation Plan stays in place for the entire period for the 9 San Joaquin River Agreement, if the hydrology reflects the 10 studies, if the needs for acquisitions reflects what is in 11 the study, there is a potential that there could be some 12 years where there would be impacts to contractors. But that 13 can't be given any certainty. 14 MS. ZOLEZZI: Thank you for that clarification. 15 Now, Stockton East Water District Exhibit 43 is the 16 two-year model analysis undertaken under the draft 17 additional acquisition for meeting VAMP flow objectives, 18 environmental assessment and initial study. This analysis 19 evaluated the two-year anticipated impact of VAMP 20 implementation compared to non Vamp operations; is that 21 correct? 22 MR. PLOSS: It was actually a one-year, for one-year 23 acquisition. 24 MS. ZOLEZZI: But it included an analysis of the impact 25 of that one-year acquisition through 2000? CAPITOL REPORTERS (916) 923-5447 15812 1 MR. PLOSS: I believe it did, yes. 2 MS. ZOLEZZI: Would you agree that it is a relatively 3 easy modeling exercise to prepare this type of two-year 4 comparison to model anticipated VAMP impacts upon New 5 Melones CVP contractor allocations? 6 MR. PLOSS: It is relatively easy to do. If you have 7 agreement on all the assumptions, it is just a matter of 8 running the study. It is fairly easy. 9 MS. ZOLEZZI: Thank you. 10 Those are all the questions that I have. 11 C.O. STUBCHAER: Who wishes to cross-examine Mr. 12 Ploss? 13 Mr. O'Laughlin, Mr. Nomellini, Mr. Herrick. 14 Mr. Nomellini. 15 ---oOo--- 16 CROSS-EXAMINATION OF STOCKTON EAST WATER DISTRICT 17 BY CENTRAL DELTA PARTIES 18 BY MR. NOMELLINI 19 MR. NOMELLINI: Dante John Nomellini for Central Delta 20 Parties. 21 Mr. Ploss, with regard to the Interim Operation Plan 22 for New Melones, is it contemplated that in a recurrence of 23 the 1987 through 1992 hydrology that the New Melones could 24 meet all of the projected demands? 25 MR. BIRMINGHAM: Objection. Asked and answered. CAPITOL REPORTERS (916) 923-5447 15813 1 C.O. STUBCHAER: Mr. Nomellini, did you hear the 2 objection? 3 MR. NOMELLINI: Yes. I didn't remember it being asked 4 and answered. 5 MR. BIRMINGHAM: I think Mr. Nomellini asked Mr. Ploss 6 this very question at least twice in the two other phases. 7 MR. CAMPBELL: I would join in that objection, and also 8 add an objection based on cumulativeness and unduly 9 repetitive. We plowed this ground. 10 C.O. STUBCHAER: Mr. Nomellini, I am going to sustain 11 the objection. 12 MR. NOMELLINI: Mr. Ploss, what are the priorities for 13 the operation of New Melones? 14 MR. O'LAUGHLIN: Objection. We have been through this 15 before. We did this in Phases V and II-A. Specifically we 16 went through all the priorities for New Melones with Mr. 17 Ploss several times. We don't need to do it again; it's 18 already in the record. 19 C.O. STUBCHAER: Mr. Campbell. 20 MR. CAMPBELL: I join in that objection on the basis of 21 asked and answered, cumulative and unduly repetitive. 22 C.O. STUBCHAER: Mr. Nomellini. 23 MR. NOMELLINI: Well, I will let the Chair rule, and 24 I'll go on to another question. 25 C.O. STUBCHAER: Mr. Herrick. CAPITOL REPORTERS (916) 923-5447 15814 1 MR. HERRICK: I was just going to say these objections 2 should have been made at the presentation of direct on each 3 of these topics that this question has touched on. I know 4 there was an objection, but it was overruled. So somebody 5 should be able to cross on it. 6 C.O. STUBCHAER: Mr. Campbell. 7 MR. CAMPBELL: I was listening carefully during direct 8 examination conduct by Ms. Zolezzi. She was entering into 9 new ground. She was asking about some new modeling studies, 10 some new potentialities, none of which had been addressed in 11 previous phases of the hearing. 12 This exact question has been asked and answered, and we 13 had it up on the screen there and went through it for about 14 two days. 15 C.O. STUBCHAER: Objection. Sustained. 16 MR. NOMELLINI: Mr. Ploss, with regard to Stockton East 17 Water District Exhibit Number 43 and the studies therein, 18 what priorities were assumed in those studies with regard to 19 the application of New Melones water? 20 MR. PLOSS: My recollection is that the same priorities 21 were used that we used in Interim Operation Plan. 22 MR. NOMELLINI: What were those? 23 MR. PLOSS: Priorities to meet the permit conditions, 24 then the in-stream flows under CVPIA and then the deliveries 25 to the contractors. CAPITOL REPORTERS (916) 923-5447 15815 1 MR. NOMELLINI: When you said "permit conditions," what 2 are you referring to? 3 MR. PLOSS: We have prior water right holders. They're 4 entitled to water from New Melones. Then we have the water 5 quality. We have contractor deliveries that are part of the 6 calculation for the 1987 Fish and Game Agreement. 7 MR. NOMELLINI: Okay. That is all I have. 8 Thank you. 9 C.O. STUBCHAER: Mr. Herrick. 10 ----oOo--- 11 CROSS-EXAMINATION OF STOCKTON EAST WATER DISTRICT 12 BY SOUTH DELTA WATER AGENCY 13 BY MR. HERRICK 14 MR. HERRICK: Mr. Ploss, on direct you referenced 15 potential limitation on the use of 15,000 acre-foot 16 purchase. I believe you mentioned it dealt with CVPIA 17 conditions. 18 Is that true? 19 MR. PLOSS: That's true. 20 MR. HERRICK: Is there some official act on the part of 21 the Secretary of Interior that has to take place before that 22 water can be used for something other than fish and wildlife 23 purposes? 24 MR. PLOSS: Since the water is purchased as a what we 25 call (b)(3) purchase, Section 3406 (b)(3) of the Central CAPITOL REPORTERS (916) 923-5447 15816 1 Valley Project Improvement Act, it is purchased for the 2 purposes of that act. The Secretary would have to make a 3 determination if that water was not needed for those 4 purposes before it could be available for other uses. 5 MR. HERRICK: Would that determination about whether or 6 not it is needed, is that limited to the year of the 7 purchase or for future years? 8 MR. PLOSS: I would frankly say we've never dealt with 9 that situation on a water acquisition. Since 1992 when the 10 act was passed, we've been acquiring water for use in the 11 current year, and we would expect that is how the water 12 would be used. 13 It may be -- there may be cases where, because it is 14 acquired water, it could be carried in storage. There are 15 some benefits of having water in storage and carrying it 16 over and I would have to leave that to the fishery 17 biologists to give you a clear answer to that. 18 MR. HERRICK: Is it possible that the water is carried 19 over but still reserved for fish and wildlife uses? 20 MR. PLOSS: As purchased water, yes. 21 MR. HERRICK: In that event, is the calculation of 22 available water for various uses under the Interim Operation 23 Plan different in that is that amount excluded from 24 carryover because it is not being shared? 25 MR. PLOSS: We have not addressed that. Currently we CAPITOL REPORTERS (916) 923-5447 15817 1 do not have a banking policy on carrying over acquired water 2 in our reservoirs. Other than if water is carried over, it 3 would be the first water spilled. 4 In the case of New Melones and using the Interim 5 Operation Plan, we haven't really addressed how we would 6 calculate the budgeting or allocation of water with having 7 to carry over in the reservoir. 8 MR. HERRICK: Is that one of the possibilities without 9 getting too far afield, that the Bureau might decide it is 10 carried over for that specific purpose and, therefore, is 11 not part of the calculation of carryover inflow for the 12 following year or years? 13 MR. PLOSS: I can't say how ultimately that would be 14 decided. The Interim Operation Plan, as you know, is part 15 of a stakeholder process, and any changes to that plan, how 16 that interim plan may be modified, would be subject to 17 discussion among the stakeholders. 18 MR. HERRICK: Ms. Zolezzi asked you about the analysis 19 of the water purchase contemplated in Stockton East Number 20 43. Do you recall that? 21 MR. PLOSS: Yes. 22 MR. HERRICK: Could you tell us how much water the 23 Bureau did -- first, how much water did the Bureau seek to 24 purchase in addition to the 110,000 acre-feet supplied by 25 the San Joaquin River Group Authorities this year? CAPITOL REPORTERS (916) 923-5447 15818 1 MR. PLOSS: I believe what we are looking for is up to, 2 if I can recall, 47,000 acre-feet total. 3 MR. HERRICK: What was the water year classification 4 for this year? Just a wet year? Above normal? 5 MR. PLOSS: I believe on the San Joaquin it is above 6 normal. 7 MR. HERRICK: The analysis for that purchase looked 8 through the following year; is that correct? 9 MR. PLOSS: Correct. 10 MR. HERRICK: That following year did not assume 11 additional purchases; is that correct? 12 MR. PLOSS: It was a one-year acquisition with looking 13 ahead to the second year. 14 MR. HERRICK: Is there a reason why there was no 15 analysis assuming some additional level of purchase in the 16 following year? 17 MR. PLOSS: We looked at that this was a one-year 18 acquisition. We could make a broad range of assumptions on 19 how much water would be acquired in a second year, if there 20 was going to be a need for water. It is contemplated that 21 we were trying to analyze this one-year purchase by itself, 22 and so we did not analyze the accumulation of additional 23 purchases. 24 MR. HERRICK: Is there a reason why you did not analyze 25 the affects of that one-year purpose over the 12-year, CAPITOL REPORTERS (916) 923-5447 15819 1 proposed 12-year life of San Joaquin River Agreement? 2 MR. PLOSS: Simply it was a one-year acquisition and 3 that is all we were looking at is the effects of the first 4 year of purchase and the second year. 5 MR. HERRICK: Does the Bureau anticipate that it will 6 be making additional purchases in some years under the San 7 Joaquin River Agreement? 8 MR. PLOSS: Under the San Joaquin River Agreement there 9 are a number of years that the potential exists that 10 additional water will need to be purchased. There is no 11 certainty that any of those circumstances will occur in the 12 next 12 years. But when we did the 71-year analysis, there 13 was certainly instances where additional water would be 14 needed. 15 MR. HERRICK: I understand your statements about there 16 are a lot of factors in how much, wherever you get it. But 17 to your knowledge, has any analysis been done of the effects 18 of implementing the San Joaquin River Agreement including 19 purchases above the 110,000 acre-feet? 20 MR. PLOSS: The agreement's been analyzed for 110,000, 21 which is the base operation. It is acknowledged that if 22 additional supplemental water is purchased by a year-by-year 23 basis from willing sellers that there will be additional 24 environmental analysis done. 25 MR. HERRICK: Do you anticipate that analysis will be CAPITOL REPORTERS (916) 923-5447 15820 1 similar to the one done in Stockton East 43, and that is 2 just that purchased over a year two-time frame, or do you 3 anticipate the analysis will cover 12 years or the remaining 4 life span of the San Joaquin River Agreement? 5 MR. PLOSS: I'd have to admit that that's beyond my 6 scope of knowing how future analysis will be completed. 7 MR. HERRICK: Is it still anticipated that additional 8 releases from New Melones will be made this year to offset 9 decreased flows on the Merced River? 10 MR. PLOSS: Could you be a little more specific? 11 MR. HERRICK: I believe the modeling contained in 12 Stockton East 43, as well as the exhibits presented by Mr. 13 Steiner in San Joaquin River Group Authority's case in 14 chief, indicate that under some circumstances implementation 15 of the San Joaquin River Agreement results in decreases in 16 flows on the Merced River during some summer months and 17 resulting increases in releases from New Melones to offset 18 the effects of those decreases on water quality. 19 Is that your understanding, too? 20 MR. PLOSS: Yes. And as circumstances require, we 21 would make those releases to meet the water quality 22 requirements. 23 MR. HERRICK: Is it anticipated by the Bureau that 24 those additional releases from New Melones will be made this 25 year? CAPITOL REPORTERS (916) 923-5447 15821 1 MR. PLOSS: If there are circumstances this year that 2 require it, yes. 3 MR. HERRICK: Has any modeling been done on the effects 4 over the 12-year period of the San Joaquin River Agreement 5 resulting from those additional increases from New Melones 6 this year? 7 MR. PLOSS: No. 8 MR. HERRICK: I have no further questions. 9 Thank you very much. 10 C.O. STUBCHAER: Thank you, Mr. Herrick. 11 Mr. O'Laughlin. 12 ---oOo--- 13 CROSS-EXAMINATION OF STOCKTON EAST WATER DISTRICT 14 BY SAN JOAQUIN RIVER GROUP AUTHORITY 15 BY MR. O'LAUGHLIN 16 MR. O'LAUGHLIN: Good afternoon, Mr. Ploss. Tim 17 O'Laughlin representing the San Joaquin River Group 18 Authority. 19 I want to focus in on Stockton East Exhibit 41 and what 20 was transpired in the year 1999. 21 Was water made available by the San Joaquin River 22 Exchange Contractors, Merced Irrigation District, Modesto 23 Irrigation District and Turlock Irrigation District in order 24 to try to meet the pulse flow requirements for April/May 25 time period in 1999? CAPITOL REPORTERS (916) 923-5447 15822 1 MR. PLOSS: I don't have Exhibit 41 here. Could you 2 tell me what it is? 3 MR. O'LAUGHLIN: Is "The Effects of Vernalis Flow and 4 Quality by Implementing the San Joaquin River Agreement 5 during 1999." 6 Do you know if water was actually made available by 7 those entities in 1999? 8 MR. PLOSS: Yes. 9 MR. O'LAUGHLIN: Is it your understanding that 10 presently at New Melones it's -- New Melones is operating 11 pursuant to its permits as well as State Water Resources 12 Control Board Order 98-09? 13 MR. PLOSS: Yes. Yes, it is. 14 MR. O'LAUGHLIN: And 98-09 is a one-year extension for 15 the United States Bureau of Reclamation to meet the flow 16 requirements at Vernalis; is that correct? 17 MR. PLOSS: In part, yes. 18 MR. O'LAUGHLIN: It has other components. I am just 19 going to focus on the San Joaquin River. 20 Now, if in 1999 water had not been made available by 21 the Merced Irrigation District, the San Joaquin River 22 Exchange Contractors, Modesto Irrigation District and 23 Turlock Irrigation District, do you know whether or not the 24 Bureau would have been able to meet the April/May pulse flow 25 requirement under the State Water Resources Control Board CAPITOL REPORTERS (916) 923-5447 15823 1 1995 Water Quality Control Plan? 2 MR. HERRICK: Mr. Chairman, if I may object. Just for 3 clarity, I believe he is asking the witness if 98-9 made the 4 Bureau responsible for the flows of the '95 Water Quality 5 Control Plan and that is not correct. Made them responsible 6 for changes in water quality requirements, but the flows 7 were not a requirement of that order, the flows for fish 8 pulse flows. 9 C.O. STUBCHAER: Mr. O'Laughlin. 10 MR. O'LAUGHLIN: Let me -- I will rephrase the 11 question. That may be Mr. Herrick's interpretation, but I 12 will ask another question. 13 Is it your understanding, Mr. Ploss, that pursuant to 14 State Water Resources Control Board orders that the United 15 States Bureau of Reclamation is required to meet the pulse 16 flow requirements for the San Joaquin River in the April/May 17 time period? 18 MR. PLOSS: I believe I will have to stand corrected. 19 It is not a requirement of the projects. It is a 20 willingness of the project to attempt to do so, and 98-9 21 clarified any conflicts in permit requirements, thus 22 allowing us to do so. 23 MR. O'LAUGHLIN: So let's look at 1999. If water had 24 not been made available by Merced Irrigation District, the 25 San Joaquin River Exchange Contractors, Modesto Irrigation CAPITOL REPORTERS (916) 923-5447 15824 1 District and Turlock Irrigation District, would the Bureau 2 have been able to meet the pulse flow requirements in the 3 April/May time period in 1999? 4 MR. PLOSS: Not through that operation of our own 5 facilities. We would, as we have in past years, attempted 6 to do so through water acquisitions from willing sellers. 7 MR. O'LAUGHLIN: Now, if those entities had not made 8 water available, what would be the maximum release of water 9 from New Melones in the April/May time period in 1999 in 10 order to implement the 1995 Water Quality Control Plan pulse 11 flow during April/May time period? 12 MR. PLOSS: We would have made a release of 1,500 cfs. 13 MR. O'LAUGHLIN: Do you know, based on your 14 understanding of the 1995 Water Quality Control Plan, what 15 were the pulse flow requirements for the April/May time 16 period in 1999? 17 MR. PLOSS: I believe it was 7,020 cfs. 18 MR. O'LAUGHLIN: So, then if the Bureau was releasing 19 1,500 cfs from New Melones during the April/May time period, 20 roughly it would have had to acquire an additional 5,500 cfs 21 of water or relied on accretions to the river of 5500 cfs; 22 is that correct? 23 C.O. STUBCHAER: Mr. Herrick. 24 MR. HERRICK: I have no objection. 25 C.O. STUBCHAER: Excuse me. CAPITOL REPORTERS (916) 923-5447 15825 1 MR. PLOSS: That is true. There was accretions in the 2 river. 3 MR. O'LAUGHLIN: Do you know whether, during the 4 April/May pulse flow period, what the amount of accretions 5 were to the San Joaquin River from April 15th to May 15th? 6 MR. PLOSS: I don't know the precise number, but I 7 believe it was about 3,500 to 4,000 cfs. 8 MR. O'LAUGHLIN: Did that number decline from April 9 15th through May 15th? 10 MR. PLOSS: Yes, it did. 11 MR. O'LAUGHLIN: Now, Mr. Burke, in your office, is the 12 person who has been tracking what water was in the San 13 Joaquin River during the April/May pulse flow period in 14 1999; is that correct? 15 MR. PLOSS: That's correct. 16 MR. O'LAUGHLIN: So, let's hypothesize that there is 17 3,500 cfs of accretions to the river. That would have given 18 you 5,000 cfs total in the river with a target of 7,000 cfs; 19 is that correct? 20 MR. PLOSS: That's correct. 21 MR. O'LAUGHLIN: At that point would the Bureau then 22 release an additional 2,000 cfs from New Melones in order to 23 meet the 1995 Water Quality Control Plan pulse flow 24 requirements? 25 MR. PLOSS: No. CAPITOL REPORTERS (916) 923-5447 15826 1 MR. O'LAUGHLIN: So, is it your opinion, then, that in 2 1999, during the April/May pulse flow period, that the water 3 made available by the San Joaquin River Exchange 4 Contractors, Modesto Irrigation District, Turlock Irrigation 5 District and Merced Irrigation District was real water at 6 Vernalis? 7 MR. PLOSS: Would you define real water? 8 MR. O'LAUGHLIN: No. I am not going to touch that 9 one. I don't think anyone in this room would like my 10 definition. 11 In other words, the water that was at Vernalis was 12 actually wet water in order to meet the 1995 Water Quality 13 Control Plan standards? 14 MR. NOMELLINI: We would object as the question is 15 ambiguous because he has not defined -- the questioner has 16 not defined -- 17 C.O. STUBCHAER: Define what? 18 MR. NOMELLINI: Wet water or real water. I believe 19 that objection from I think the -- 20 C.O. STUBCHAER: Please rephrase the question, Mr. 21 O'Laughlin. 22 MR. O'LAUGHLIN: Well, in the absence of the water 23 being provided by Merced Irrigation District, the San 24 Joaquin River Exchange Contractors, Turlock Irrigation 25 District and Modesto Irrigation District, there would have CAPITOL REPORTERS (916) 923-5447 15827 1 been a shortfall in the amount of water arriving at Vernalis 2 in order to meet the 1995 Water Quality Control Plan; is 3 that correct? 4 MR. PLOSS: That's correct. 5 MR. O'LAUGHLIN: I have no further questions of the 6 witness. 7 C.O. STUBCHAER: Thank you, Mr. O'Laughlin. 8 Staff have any questions? 9 MS. LEIDIGH: No. 10 C.O. STUBCHAER: Mr. Brown. 11 C.O. BROWN: I have a question. 12 ---oOo--- 13 CROSS-EXAMINATION OF STOCKTON EAST WATER DISTRICT 14 BY BOARD MEMBERS 15 C.O. BROWN: Mr. Ploss, you were involved several years 16 ago in the Pl84-98 program for Oakdale Irrigation District, 17 were you not? 18 MR. PLOSS: Which district? 19 C.O. BROWN: Oakdale, OID? 20 MR. PLOSS: No, I was not. 21 C.O. BROWN: Okay. That is all, Mr. Chairman. 22 C.O. STUBCHAER: Mr. Pettit. 23 ---oOo--- 24 // 25 // CAPITOL REPORTERS (916) 923-5447 15828 1 CROSS-EXAMINATION OF STOCKTON EAST WATER DISTRICT 2 BY STAFF 3 MR. PETTIT: The question, Mr. Ploss, is about the 4 modeling that was done that compared the conditions with the 5 agreement as opposed to conditions without the agreement 6 this year. Was the condition without the agreement that was 7 modeled comparable to any of the alternatives in the Board's 8 EIR with the flow alternatives? 9 MR. PLOSS: Yes. We looked at no action condition 10 which assumed that the Central Valley Project and State 11 Water Project would be responsible for meeting the flow 12 requirements. 13 MR. PETTIT: Thank you. 14 MS. WHITNEY: Were the base assumptions in the study 15 that you did similar to the base assumptions in the Board's 16 alternatives which you characterize as being similar 17 studies? 18 MR. PLOSS: I am not the one that did the study, so I 19 think you would have to direct that to one of the other 20 witnesses. 21 MS. WHITNEY: Thank you. 22 C.O. STUBCHAER: Mr. Brown. 23 FURTHER CROSS-EXAMINATION OF STOCKTON EAST WATER DISTRICT 24 BY BOARD MEMBERS 25 C.O. BROWN: Let me make an attempt to see if I can CAPITOL REPORTERS (916) 923-5447 15829 1 extract from you Mr. Ploss your ideas about what real water 2 really is. 3 A few years ago there was a program implemented in one 4 of the water districts in the neighborhood to line the 5 canals, which your organization helped fund. And when they 6 lined the canals, the groundwater in the area dried up, 7 because the seepage from the canals was helping to provide 8 water for the groundwater basins to provide mining in that 9 area. So one of the questions that I asked you is that 10 would the Bureau today in the San Joaquin area, Stockton 11 area -- a few years ago you might have gone in and provided 12 funding to line those canals to improve conveyance or 13 efficiency, several million dollars to do so, on the 14 presumption that you were conserving water. I believe that 15 is what it was based on. 16 Would you do that same thing today? 17 MR. PLOSS: I can't address the exact circumstances 18 that you are describing, and I really can't say what 19 Reclamation would do. But I can tell what I believe we 20 would do, and that is in such a program there would be a 21 complete environmental analysis, and a part of that analysis 22 would be impact to groundwater. And if it shows there is a 23 negative impact to groundwater from that program, then that 24 would be a factor in the decision that would be made. 25 C.O. BROWN: You're experienced in agriculture, in CAPITOL REPORTERS (916) 923-5447 15830 1 water reclamation. If you were in the Imperial Valley, 2 where the groundwater is highly saline and unusable, and you 3 put in a similar conservation program of lining the canals 4 in order to prevent groundwater percolation, would that be 5 real water that you could save and reuse? 6 MR. PLOSS: One of the tests that we make when we look 7 at water conservation for water transfers is, is the water 8 going -- if the water is going to a irrecoverable sink or, 9 in this case, a saline basin and you could avoid that, then 10 it would be considered conserved water, yes. 11 C.O. BROWN: Do you have any idea why it appears so 12 difficult to come up with opportunities to define and 13 conserve real water in this service area that we are talking 14 about? 15 MR. PLOSS: I think it is a matter of looking at the 16 total water balance of the basin, whether it is the San 17 Joaquin or Sacramento or if you break it down to just the 18 Stanislaus or one of the others. You have to look at the 19 entire dynamics of the service and groundwater to determine 20 if you really have real water, if you are making changes in 21 the system. And it is complex and difficult. 22 C.O. BROWN: That is all. 23 C.O. STUBCHAER: Ms. Zolezzi, do you have any 24 redirect? 25 MS. ZOLEZZI: No, but I do have exhibits. CAPITOL REPORTERS (916) 923-5447 15831 1 C.O. STUBCHAER: That concludes the examination of Mr. 2 Ploss. 3 Thank you very much for your appearance, and Mr. 4 Brandt. 5 MS. ZOLEZZI: At this time Stockton East Water District 6 would like to move to introduce Exhibits 40, 41, 42, 43, 45 7 and 46. 8 C.O. STUBCHAER: Are there any objections? 9 Seeing none, they are accepted. 10 MS. ZOLEZZI: Thank you. 11 C.O. STUBCHAER: Thank you. 12 Now, is Mr. Burke here? 13 MR. O'LAUGHLIN: Yes. 14 (Break taken.) 15 C.O. STUBCHAER: Back on the record. 16 Afternoon, Mr. Burke. 17 MR. BURKE: Afternoon. 18 C.O. STUBCHAER: Were you sworn previously? 19 MR. BRANDT: Yes. 20 C.O. STUBCHAER: I should have asked you. 21 MR. BRANDT: That is fine. 22 C.O. STUBCHAER: Informality here. 23 ---oOo--- 24 DIRECT EXAMINATION OF SAN JOAQUIN RIVER GROUP AUTHORITY 25 BY MR. O'LAUGHLIN CAPITOL REPORTERS (916) 923-5447 15832 1 MR. O'LAUGHLIN: The San Joaquin River Group Authority 2 requested from the United States Bureau of Reclamation that 3 they make a witness available to talk about the April/May 4 pulse flow for 1999 and the water that was made available 5 from the entities within the San Joaquin River Group 6 Authority for 1999. 7 This is to address Hearing Issue Number 7, the question 8 of real water in the testimony. 9 Mr. Burke, you previously have been sworn; is that 10 correct? 11 MR. BURKE: That's correct. 12 MR. O'LAUGHLIN: Your qualifications have been 13 submitted to the State Water Resources Control Board under 14 previous exhibits; is that correct? 15 MR. BURKE: That's correct. 16 MR. O'LAUGHLIN: You have testified here previously; is 17 that correct? 18 MR. BURKE: Yes. 19 MR. BRANDT: Just for the record, the United States 20 Department of the Interior is providing Mr. Burke at the 21 request of the San Joaquin River Group voluntarily and not 22 subject to subpoena. 23 MR. O'LAUGHLIN: Thank you, Mr. Brandt. 24 Mr. Burke, what is your present position with the 25 United States Bureau of Reclamation? CAPITOL REPORTERS (916) 923-5447 15833 1 MR. BURKE: Hydraulic engineer with the Central Valley 2 Operations Office, Bureau of Reclamation. 3 MR. O'LAUGHLIN: Were you involved this year in the San 4 Joaquin River Group Technical Committee, hydrology subgroup? 5 C.O. STUBCHAER: Excuse me, Mr. O'Laughlin, I get signs 6 from the back that they are having a hard time hearing you. 7 MR. HERRICK: The first answer was not very audible. 8 C.O. STUBCHAER: Mr. Burke, I believe you need to get 9 the mike a little closer. 10 (Discussion held off the record.) 11 MR. O'LAUGHLIN: Mr. Burke, were you a part of the San 12 Joaquin River Group Technical Committee, hydrology subgroup? 13 MR. BURKE: Yes, I was. 14 MR. O'LAUGHLIN: Can you explain what your position was 15 with that group in 1999. 16 MR. BURKE: Yes. Just as background, under the San 17 Joaquin River Agreement there is a management level 18 committee and a technical committee. The technical 19 committee for purposes of implementing the agreement is 20 divided into two groups, the hydrology group and the biology 21 group, overseen by the technical committee. 22 The hydrology group is the group that I was primarily 23 involved with, and the hydrology group consisted of more or 24 less an open membership, but designees from each of the 25 signatory agencies to the agreement. Participation in the CAPITOL REPORTERS (916) 923-5447 15834 1 hydrology group was open to anybody who chose to 2 participate. We had a fairly broad group, including 3 representatives from some of the environmental 4 organizations, some of the resources agencies who 5 participated along with the hydrology group, especially in 6 the planning phase of this year's San Joaquin River flows. 7 MR. O'LAUGHLIN: Mr. Burke, in regards to that, you 8 have brought today a handout which is dated March 3rd, 1999. 9 We have had it marked for identification as San Joaquin 10 River Group Authority 115B. 11 Do you have a copy of that? 12 MR. BURKE: Yes, I do. 13 C.O. STUBCHAER: Mr. Nomellini. 14 MR. NOMELLINI: These are exhibits in connection with 15 the case in chief of the San Joaquin River Group Authority, 16 and they were to be furnished to all the parties in 17 advance. These were not. And I think the same stipulation 18 should be provided to allow us to proceed without any undue 19 delay. And that is, if after a review of these documents, 20 any party wants to recall this witness, that the witness 21 would be reproduced for that purpose. 22 C.O. STUBCHAER: Mr. Brandt. 23 MR. BRANDT: We will -- if there is a request, we will 24 produce this witness again, yes. 25 MR. NOMELLINI: Thank you. CAPITOL REPORTERS (916) 923-5447 15835 1 MR. O'LAUGHLIN: I agree to that stipulation. I know 2 what is going to happen here, anyway. If a witness is 3 brought in from the federal government and he brings his own 4 exhibits in order to help his testimony and make it clear, 5 there is no burden on the person who is calling him to make 6 those documents available ahead of time. That is entirely 7 in their discretion as to what they want to produce and how 8 they want to produce it in regard to our request. 9 MR. BRANDT: Yeah. 10 MR. O'LAUGHLIN: I am done. 11 C.O. STUBCHAER: Mr. Brandt. 12 MR. BRANDT: I should specify here, this was actually 13 -- these materials were chosen by the witness. We have not 14 -- he was told the topic he needed to do, and he said we 15 needed to do this and we should probably provide -- I have 16 been doing these graphs. We do that. 17 We have provided it, basically, at the request of the 18 witness. We had the topic and that is -- we will leave it 19 to you. We could not introduce these. 20 MR. O'LAUGHLIN: No. I agree to the stipulation. I am 21 just pointing out a point in regards to the federal 22 witnesses. It is very difficult to stick by the statement. 23 Because, one, the first thing is that the problem we run 24 into is talking to witnesses ahead of time. We have had 25 difficulty on certain witnesses that have been subpoenaed. CAPITOL REPORTERS (916) 923-5447 15836 1 Talking to them ahead of time. 2 Secondly, we, at times, do not know who the federal 3 government is going to call. Third, we don't know what 4 documentation they are going to bring to the table. I just 5 want to make it clear that this statement that you have to 6 produce the stuff ahead of time is really irrelevant in 7 regards to calling federal witnesses or adverse witnesses 8 where you have no control over who's being designated or 9 what they are going to bring to the table. 10 I agree with the stipulation. If Mr. Brandt wants to 11 make Mr. Burke available at a later date, I think that is 12 great. I want to make that clarification. There is no 13 reason to say anything else about this. 14 C.O. STUBCHAER: Well, I will say something, anyway. 15 I do see a distinction between documents that have been 16 specifically asked for in advance and documents that are 17 produced by a witness, that the person requesting the 18 appearance of the witness doesn't know about. 19 When did you first receive these documents? 20 MR. O'LAUGHLIN: These documents? I received these 21 documents -- the March 3rd document I received last 22 Friday, and I received the other document, the San Joaquin 23 River flows, I believe on either Friday or Saturday, in 24 draft, is when I received those. 25 C.O. STUBCHAER: Mr. Herrick. CAPITOL REPORTERS (916) 923-5447 15837 1 MR. HERRICK: Well, without delaying us too much 2 longer, if it walks like a duck and it quacks like a duck, 3 it is a duck. The proponents asked them to give testimony 4 on some topic and then plead ignorance when they bring 5 documents supporting that testimony. It is important to 6 note that the Bureau is one of the signators of the San 7 Joaquin River Group, which is looking to go get these permit 8 changes done. 9 So, it is very important that when you are anticipating 10 putting on this testimony you find out and see if there are 11 documents so that the other people have adequate time to 12 review them. 13 C.O. STUBCHAER: Mr. Nomellini. You heard that the 14 stipulation -- 15 MR. NOMELLINI: Yeah, I know. But then we heard the 16 argument on the stipulation. Whatever the rules are, they 17 ought to be the same for everybody. When I subpoenaed a 18 witness from the Department of Fish and Game they wouldn't 19 let me talk to the witness. Okay. No big deal. I should 20 have taken the deposition. 21 When we take adverse witnesses into this room, we know 22 what we are going to ask them. If it's going to deal with 23 documents, under the notice we were required to produce 24 those ahead of time as part of the case in chief. If the 25 Bureau felt that it had to present its own evidence, it CAPITOL REPORTERS (916) 923-5447 15838 1 could have done so in a case in chief, and we would have 2 seen the documents or they could bring it in rebuttal. 3 So, the need to allow surprise documents as part of a 4 case in chief is not there. But if we are going to change 5 the rule, the rule ought to universally be applied. And I 6 can live by the rule either way. My only complaint is the 7 rules have been defined and these don't conform to the 8 rules. 9 C.O. STUBCHAER: Well, the stipulation or agreement 10 that was made stands. I would request that copies be made 11 available to the parties as soon as possible. 12 MR. O'LAUGHLIN: Thank you, Mr. Chairman. We will make 13 the documents available, and Mr. Brandt has agreed to make 14 the witness available at a later time if the parties so 15 request that Mr. Burke be available at a later time. 16 Mr. Burke, is this meeting notes from your March 3rd 17 meeting of the San Joaquin River technical meeting, 18 hydrology subgroup? 19 MR. BURKE: Yes. 20 MR. O'LAUGHLIN: What was the purpose of San Joaquin 21 River Technical Committee, hydrology subgroup meeting in 22 March of 1999? 23 MR. BURKE: It was part of a series of meetings that 24 actually began about a month earlier in February in 25 preparation for determining what the flows and what the CAPITOL REPORTERS (916) 923-5447 15839 1 mechanisms concerning providing those flows would be in 2 1999. As part of our customary operations planning process, 3 we need to forecast the contributions of the San Joaquin 4 River. 5 So, in one sense this effort was a part of our 6 customary operation as planning. But in another sense there 7 were some very specific functions that the hydrology 8 subgroup needed to perform in the area of coordination and 9 forecasting that have to do with implementing the provisions 10 of the San Joaquin River Agreement. 11 MR. O'LAUGHLIN: Now within this document, it sets 12 forth some assumptions that are being done in March 3rd of 13 1999 about what the Vernalis base flow, forecasted Vernalis 14 base flow would be under certain conditions; is that 15 correct? 16 MR. BURKE: That is correct. One of the requirements 17 of the San Joaquin River Agreement that needs to be provided 18 by a hydrology subgroup is a forecast of the San Joaquin 19 River existing flow. 20 MR. O'LAUGHLIN: Where is that shown in the exhibit? 21 MR. BURKE: There is a table on the exhibit entitled 22 "USBR's 1999 VAMP Forecasted Flows and Exports, Revised 23 3/2/99," that has a forecast of Vernalis so-called base flow 24 -- I just got finished calling it existing flow. I think 25 those two terms are used interchangeably sometimes -- for CAPITOL REPORTERS (916) 923-5447 15840 1 periods April 1 through 14 and April 15 through 30 and then 2 May 1st through 15th. That approximate two-week period was 3 the level of resolution that we were applying to our 4 forecast at that point in time. 5 MR. O'LAUGHLIN: In looking at these numbers, let's 6 take the forecasted Vernalis base flow in cfs for April 1st 7 through 14th. In the first column over, it says, "Using 8 February 23rd DWR update forecast the 90 percent 9 exceedance." It says 6,900. 10 Do you see that number? 11 MR. BURKE: Yes. 12 MR. O'LAUGHLIN: Is that the amount of water that's 13 forecasted to be in the river due to releases and accretions 14 in the river without any water being made available under 15 the San Joaquin River Agreement? 16 MR. BURKE: That is correct. 17 MR. O'LAUGHLIN: If we look at the numbers, 6,900, the 18 next time period is April 15th to April 30, it would be 19 5,800 of base flow in the river. Is that correct? 20 MR. BURKE: That's right. 21 MR. O'LAUGHLIN: For May 1st through May 15th it would 22 be 4,800; is that correct? 23 MR. BURKE: Correct. 24 MR. O'LAUGHLIN: In this time in March it appears under 25 the April 1st through April 14th at the 50-percent CAPITOL REPORTERS (916) 923-5447 15841 1 exceedance it was forecasted that there would be 8,000 cfs; 2 is that correct? 3 MR. BURKE: That's correct. 4 MR. O'LAUGHLIN: Why don't you, if you can, briefly 5 describe for us how you got from this March 3rd meeting in 6 1999 to the actual determination of how much water was 7 needed and how that water was made available in 1999 for 8 April/May pulse flow period. 9 MR. BURKE: As I said, the March 3rd meeting was one of 10 a series of meetings for the purpose of bringing together 11 individual forecasts of the various water projects on the 12 San Joaquin River that contribute to the flow. And the 13 whole process became one of updating and refining over time 14 as the calendar got closer to the dates where actual 15 decisions needed to be made about implementing the various 16 facets of the San Joaquin River Agreement and the VAMP 17 experiment. 18 At this date, as I said, we were still working with 19 seasonal forecasts, and not trying to resolve flows to a 20 level of detail that would go so far as to predict daily 21 flows. But the agreement suggests that around mid March 22 that the hydrology group take its first cut at doing that 23 resolution to a daily forecast of operations. So the 24 subsequent step beyond this forecast as presented here came 25 as a result of yet another round of coordination and CAPITOL REPORTERS (916) 923-5447 15842 1 forecasting and discussions about operations and was the 2 initial daily operations plan for the pulse flow period. 3 I should say, daily operations plan, which really 4 extended from the midpoint in March through the month of May 5 including the periods up to and then for the two weeks 6 beyond the actual pulse flow period. 7 MR. O'LAUGHLIN: Very quickly, did you prepare what has 8 been identified as San Joaquin River Group Authority 115B, 9 which are the meeting notes? 10 MR. BURKE: Yes. 11 MR. O'LAUGHLIN: In addition, I am assuming that 12 meetings held throughout the months were open to the public; 13 is that correct? 14 MR. BURKE: They were open to anyone. Let me explain 15 the process. The meeting notices were put out to a group of 16 interested parties as determined by me. That list expanded 17 over the course of time to include, I would say, probably 40 18 to 50 people. We did not, other than word of mouth or 19 E-mail, publish notices of the meetings, but I think by just 20 those mechanisms that eventually notice of these meetings 21 spread. 22 And although many people attended, many people did not 23 attend. But I think over the course of a couple of months 24 when we were in the planning process I received a number of 25 requests to stay informed via these meeting notes as to what CAPITOL REPORTERS (916) 923-5447 15843 1 we were planning and what stage of the planning process that 2 we were in. 3 MR. O'LAUGHLIN: Then, at some point in time a 4 determination was made as to the amount of water necessary, 5 and actual operations commenced in 1999 for the spring pulse 6 flow; is that correct? 7 MR. BURKE: That's correct. 8 MR. O'LAUGHLIN: Can you explain to us or identify how 9 water made available from the San Joaquin River Exchange 10 Contractors, Merced Irrigation District, Modesto Irrigation 11 District and Turlock Irrigation District was implemented 12 within your forecasting and operation plan to meet the 1995 13 Water Quality Control Plan pulse flow? 14 MR. BURKE: Let me start with enumerating the providers 15 this year. Insofar as it was significant to operations 16 decisions the sources of water were coming from, I'll say, 17 five specific locations. One, the Stanislaus River with the 18 last discharge point at Goodwin Dam. The Tuolumne River 19 that discharges at LaGrange. The Merced River discharges 20 near Snelling with measurement of the flows further 21 downstream at Cressey. And in the Exchange Contractors' 22 domain the releases that they provided came eventually at 23 two separate locations: one via a wasteway to Oristimba 24 Creek, and one via Salt Slough, I believe. 25 So there were five separate sources of water that CAPITOL REPORTERS (916) 923-5447 15844 1 actually were providing specific quantities for the purpose 2 of meeting the target flows. In addition to those, many, 3 many other sources and elements that go into making up the 4 flow at Vernalis. But for our purpose we lumped those into 5 one lump sum which we termed accretions. Those, by and 6 large, were outside the control of the participants and they 7 were an element that we were very interested in. Because of 8 that fact, they were outside the control of the 9 participants. They would respond to natural weather changes 10 and other stimuli that would affect the flows on the San 11 Joaquin River. And so in turn we, as a group interested in 12 controlling the flows, would have to respond to that 13 uncertainty and make adjustments in our planned releases. 14 Let me go on from there to say that we -- as I said, 15 mid March devised our first cut at who provides what water 16 when. And that estimate had to conform not only to our 17 objective to meet the pulse flow, but also had to conform in 18 what is termed the division agreement that details the 19 proportions of the contributions to the flow that are 20 provided by each of the participating parties. 21 So we had a more or less dual objective going. We want 22 to meet the target flow. We need to keep forecasting what 23 it would take to meet the target flow. We also want to meet 24 the provisions of the division agreement so when the project 25 is finished that the supplies are provided in accordance CAPITOL REPORTERS (916) 923-5447 15845 1 with those predetermined proportions. 2 At the early stages of April it appeared as though the 3 amount of contributions by the parties in total would amount 4 to about 90 acre-feet, in keeping with our target flow which 5 was determined to be 7,000. As we went through the 31 days 6 of the operations, we encountered conditions that eventually 7 resulted in a significant increase in the flows that were 8 provided, and finally those flows totaled 140,000. 9 Am I permitted to put that up. 10 MR. O'LAUGHLIN: Yes. You want an overhead? 11 MR. BURKE: Would you put this one on. 12 I call your attention to the top. 13 MR. O'LAUGHLIN: Wait a second. 14 This has been identified as San Joaquin River Group 15 Authority 115A, dated 6/16/99. 16 Go ahead, Mr. Burke. 17 MR. BURKE: This chart is intended to just illustrate a 18 trace of the total flow at Vernalis beginning April 1st and 19 extended through May 31st. The two different areas on the 20 chart indicate, first, existing flow, which is colored gray, 21 and then the so-called VAMP flow, which is the quantities of 22 water that were measured -- I should say not measured at 23 Vernalis, but estimated to be at Vernalis that contributed 24 to the overall target flow. The target flow was intended to 25 be in place for a 31-day period, beginning April 17th and CAPITOL REPORTERS (916) 923-5447 15846 1 extending through May 17th. 2 So you can see that at various times you were below or 3 above the target flow. I think this sawtooth effect 4 illustrates some of the operational difficulties that 5 existed in trying to meet such a target with flow 6 contributions coming from the many and, in some cases, 7 distant sources of the water. But in total the red line 8 indicates the rate at which the contributions were provided 9 and ultimately totaling 140,000 acre-feet. 10 MR. O'LAUGHLIN: Let's focus on this chart for just a 11 little bit. In the existing flow it appears that starting 12 on or about April 13th or 14th or 15th, it is hard to tell, 13 that the existing base flow starts to decline from about a 14 little over 6,000 cfs to below somewhere just a little bit 15 below 5,000 cfs. 16 Do you see that on the chart, Mr. Burke? 17 MR. BURKE: Yes. 18 MR. O'LAUGHLIN: Is that a function of the amount of 19 rainfall in the system? Is that a function of people 20 turning on their pumps in the San Joaquin River and 21 diverting water? Is that a function of accretions flowing 22 down to the river? Can you break it out and quantify why 23 that water in the base flow declines so precipitously in 24 that several-day period? 25 MR. BURKE: Let's go back to April 1st, and I will kind CAPITOL REPORTERS (916) 923-5447 15847 1 of step through my recollection of the events that were 2 going on around that time. 3 Around the beginning of April we had contemplated need 4 to have the flow in the San Joaquin River at Vernalis 5 somewhere in the vicinity of 5,000 cfs or perhaps less in 6 order to construct the barrier at the Head of Old River. 7 That was a target that we had throughout the planning period 8 for this year's operations. There was certainly an element 9 of uncertainty associated with whether we would actually 10 have flows at that level or whether there would be any 11 capability to adjust flows to insure that they would be at 12 that level. 13 When the time came, I think my assessment would be 14 what I would call an element of control somewhere around the 15 margins, not a great deal of control, but perhaps the 16 capability to make flows at or below the 5,000 target. 17 You will see a brief period there in early April where 18 the flows were actually below 5,000. At about that same 19 time it became evident that there was not going to be the 20 necessary agreement amongst all the parties to permit the 21 construction of the barrier to proceed. And so this 22 construction threshold became irrelevant after that point, 23 and for the next week there were some operational spills 24 that were added to the flows in the system coming from the 25 Tuolumne River primarily, I believe, and continuing to come CAPITOL REPORTERS (916) 923-5447 15848 1 from the Stanislaus River. That explains why the flows went 2 up during the second week in April. 3 During the period throughout most of the month of 4 April, especially on the Tuolumne River, Don Pedro is still 5 subject to its flood control rules. It has to provide 6 sufficient amount of space. And going into this period 7 there was very little margin of space available in Don 8 Pedro. That operational spill, I think, was intended to 9 insure there would be an element of control and certainty 10 that could be provided with the flows that was scheduled to 11 occur in the 31-day pulse period. 12 When you get to approximately the 16th of April, the 13 flows that are defined by the gray area, the existing flows, 14 no longer include any operation spills. They were based on 15 fish flows coordinated, I think, under the FERC objectives 16 for flows during the April/May period. 17 MR. O'LAUGHLIN: That base flow that we are looking at, 18 April 16th through the 28th, would that include releases 19 from New Melones by the United States Bureau of 20 Reclamation? 21 MR. BURKE: Yes, it does. 22 MR. O'LAUGHLIN: Now what I am driving at here is the 23 base flow appears within a two-week period to go from 6,000 24 to about 3,000. You've explained why the flow is at 6,000. 25 Do you have an explanation that given that New Melones is CAPITOL REPORTERS (916) 923-5447 15849 1 releasing 1,500 cfs of base flow, whether there is only an 2 additional 1,500 base flow in the San Joaquin River at 3 Vernalis on or about April 28th? 4 MR. BURKE: Yes. I think maybe I can illustrate that 5 best with the next chart. 6 MR. O'LAUGHLIN: Why don't you start with the top, 7 John, and we will work our way down. 8 This is still San Joaquin River Group Authority 115A 9 that has been put on, and this is a set of three graphs 10 depicting the San Joaquin River flows at Vernalis, the 11 Merced River and the Tuolumne River. 12 MR. BURKE: The top part of this chart is exactly the 13 same as the chart that we just had up on the screen. It is 14 intended to show in total the existing flow and the VAMP 15 flows. 16 Underneath this chart is two charts following along the 17 same period of time that show the contributions of flows 18 from the Merced and Tuolumne River. I don't have the 19 contribution of flows from the Stanislaus River, but they 20 were by and large a constant input during the 31-day period 21 of pulse flow with some very slight variation. They were 22 provided at a rate of 1,500 cubic feet per second on the 23 Stanislaus. 24 But the variation in the existing flow comes primarily 25 as a result of two things, really. And one of them is the CAPITOL REPORTERS (916) 923-5447 15850 1 schedule of FERC flows on the Tuolumne River. And I have 2 illustrated that schedule by the gray area on the chart that 3 is entitled "Tuolumne River - LaGrange." That chart 4 illustrates a period of excess flows early in the month of 5 April. And beginning about the 15th of April the scheduled 6 pulse portion of FERC flows began at the same time as the 7 scheduled VAMP flows. 8 Together those two components of flow made up the total 9 release on the Tuolumne River at LaGrange which is, if you 10 go along the trace at the top of the blue portion of that 11 chart, you would have total release at LaGrange, made up of 12 those two components. The blue part being the VAMP 13 contribution under the San Joaquin River Agreement and the 14 gray portion being the contribution that was scheduled as 15 part of the FERC flows. 16 Over on the right-hand side of the chart, the 17 cumulative amount of flow that was provided by those two 18 components of flows as described. 19 MR. O'LAUGHLIN: So looking at the Tuolumne River, 20 then, would it be safe to say that starting at some time in 21 the May time period it appears that after the initial pulse 22 of water is made available under the FERC requirements, that 23 the additional blue water that is being made available is 24 water that actually would have gone into storage rather than 25 being released for FERC water or excess flows? CAPITOL REPORTERS (916) 923-5447 15851 1 MR. BURKE: That's right. 2 MR. O'LAUGHLIN: Is that same true for the Merced 3 River, that the water made available in that chart is above 4 water that would be made available for either their FERC 5 flows and/or excess releases to get them within their 6 requirements for their Corps permits? 7 MR. BURKE: That's right. In case of the Merced River 8 you have a trace that illustrates a very brief period of 9 operational excess flows and a minimum flow that was agreed 10 that would represent the contributions that would be made 11 absent the San Joaquin River Agreement. 12 MR. O'LAUGHLIN: Mr. Renning, would you mind going back 13 to the top of that exhibit rather than turning back the 14 page? 15 Mr. Burke, previously Mr. Ploss was in here and I asked 16 him some questions about 1999. Looking at April 28th, if 17 the amount of water in the San Joaquin River is 35 -- 18 approximately, about, looks like about almost 3,000 cfs, 19 give or take a few hundred cfs. Within that 3,000 cfs is a 20 1,500 cfs flow contribution from the United States Bureau of 21 Reclamation from New Melones. 22 What is your understanding if the Exchange Contractors, 23 Modesto, Turlock and Merced do not make water available, how 24 would the Bureau have made up the difference between the 25 3,000 cfs and the requirement to reach a pulse flow of 7,020 CAPITOL REPORTERS (916) 923-5447 15852 1 cfs? 2 MR. HERRICK: Calls for speculation. 3 C.O. STUBCHAER: Overruled. 4 MR. BURKE: I will answer to the best of my ability. I 5 think the answer is that we could not have made up the 6 difference in flow. We have a practical maximum flow on the 7 Stanislaus River that occurs absent flood control operations 8 of 1,5000 cubic feet per second. That was the flow we are 9 providing at that time. There were no other sources of flow 10 that we would have had control over that we would have used 11 to provide any more flow. 12 MR. O'LAUGHLIN: Attached to your exhibit is two other 13 graphs: a 1999 Vernalis Flow and Delta Exports in 1999 14 Observed Vernalis Flow. 15 Can you tell us why you brought these two graphs with 16 you and what they represent? 17 C.O. STUBCHAER: Mr. O'Laughlin, Mr. Brown had a 18 question on the previous exhibit. 19 C.O. BROWN: Clarification question, if you back up. 20 Mr. Burke, are you telling us that the difference in these 21 curves here will result in an incremental yield of the 22 reservoir facility? Is that what you are working up for us? 23 MR. BURKE: No. I think my intent was just to really 24 identify that portion of the flows that were provided that 25 contributed under the provisions of the agreement that CAPITOL REPORTERS (916) 923-5447 15853 1 contributed to the Vernalis flow. There was a question 2 regarding it being storage that was released. I think under 3 this year's conditions that was the case. It was storage. 4 C.O. BROWN: It resulted in the incremental yield to 5 reoperation? 6 MR. BURKE: No, I don't believe. I don't -- if I 7 understand your question correctly, what will result is a 8 reduced amount of storage at the end of the year, at the end 9 of this year, and the beginning of the next water year. 10 Beyond that, depends on subsequent hydrologic conditions as 11 to whether it is extinguished by inflows or whether it 12 carries over and affects the operations in subsequent 13 years. 14 C.O. BROWN: If you have additional storage, would that 15 provide the opportunity for increase in yield? 16 MR. BURKE: Additional storage space in the reservoir? 17 C.O. BROWN: Yes. 18 MR. BURKE: I don't see how it could in this case. You 19 have less storage in the reservoir is what -- 20 MR. O'LAUGHLIN: Let me help. You haven't been here 21 for the last two weeks. 22 If the storage is less going into the next year's water 23 year, then the storage at Merced and at Tuolumne River have 24 the ability to capture more water if it is available than it 25 otherwise would have if it made the flows available; is that CAPITOL REPORTERS (916) 923-5447 15854 1 correct? 2 MR. BURKE: That's correct. 3 MR. O'LAUGHLIN: There may be on the margin some 4 incremental increase in yield for those specific reservoirs 5 in that time period because otherwise water made available 6 the next year would have been spilled down the river and out 7 to the ocean, correct? 8 MR. BURKE: That's correct. 9 C.O. BROWN: My question: Did you in your hydrology 10 efforts, did you calculate that? 11 MR. BURKE: No, we didn't. 12 C.O. BROWN: Thank you, Mr. O'Laughlin. 13 MR. O'LAUGHLIN: Thank you. 14 Turning to the last two charts that you made available 15 and getting back to my previous question, you brought these 16 charts with you. What is your -- why did you bring these 17 charts and what do they represent or show? Let's do the top 18 one first. This is still San Joaquin River Group Authority 19 Exhibit 115A, and this is a series of graphs. The top one 20 being 1999 Vernalis Flow and Delta Exports, March 1st 21 through May 31st, 1999. 22 MR. BURKE: The point of this chart, again, is to put 23 the trace of Vernalis flow alongside some of the other 24 significant parameters that were certainly part of our 25 consideration or part of our concerns during the planning CAPITOL REPORTERS (916) 923-5447 15855 1 and implementation of this year's flow. 2 The top chart shows for purposes of attracting 3 attention to the scale, both the flow and export side of the 4 VAMP program. The blue line being the trace of the flow and 5 the red and pink bars illustrating the CVP and State Water 6 Project export pumping during this time. 7 And it's clear from this that there is a significant 8 reduction in the export pumping coincidental with the 9 beginning of the 31-day VAMP period beginning April 17th. 10 MR. O'LAUGHLIN: In fact, it appears that the 11 relationship is almost a two-to-one relationship of flow in 12 the San Joaquin River to Delta export pumps? 13 MR. BURKE: That is correct. That reminds me that 14 that, in fact, was our objective at the outset of this 15 year's program. That was in essence that the VAMP flow 16 export pair that was called for this year would have been a 17 7,000 flow and 3,000 cfs export. 18 In fact, when it came time to implement the program, we 19 were at the time instead operating -- implementing the 20 provisions of the Biological Opinion for that Fish and 21 Wildlife Service issue in 1995 covering our operations as 22 pertaining to the Delta smelt. And its objective was to 23 provide that two-to-one ratio of flow to export across the 24 7,000 flow was partnered with approximately a 3,500 cfs 25 export for the first 27 days of the 31-day period. CAPITOL REPORTERS (916) 923-5447 15856 1 Thereafter, as a result of other judicial processes we began 2 to implement the VAMP itself and reduce the exports to 3,000 3 during the last four days of a period. And that is 4 illustrated there during the period May 14th through 17th. 5 C.O. STUBCHAER: Mr. O'Laughlin. 6 Mr. Burke, did you say what BBID was? I missed it, if 7 you did. 8 C.O. BROWN: Thank you, Mr. Chairman. 9 MR. BURKE: Byron Bethany Irrigation District. And 10 that is an adjustment to the total inflow. My 11 quantification of the State's exports at Clifton Court was 12 the daily flow into Clifton Court less the Byron Bethany 13 diversions. So, a slight adjustment. 14 MR. O'LAUGHLIN: The next chart is under 115A, San 15 Joaquin River Group Authority 115A, is the 1999 Observed 16 Vernalis Flow with Lagged Contributions from Major 17 Tributaries. 18 Can you tell us what you intend to show by this chart, 19 Mr. Burke? 20 MR. BURKE: What I hope to expose here is the 21 proportions of the contributions to the Vernalis flow during 22 this -- prior to and during the pulse flow period and after, 23 during the two weeks after the pulse flow period. Again, 24 the same time trace beginning March 1st, extending through 25 May 31st. CAPITOL REPORTERS (916) 923-5447 15857 1 And you can see that the flows began in excess of 2 11,000 cfs on March 1st and generally trended downward right 3 through the month of March and into the month of April. And 4 what you see in terms of the contributions illustrates the 5 excess of flows that were being discharged from the 6 reservoir during that time. 7 One thing I'd really like to point out here is that I 8 think helps illustrate one of our major operation concerns 9 during this time, there is more or less a blank space at the 10 -- underneath the blue line, and as I mentioned before, this 11 term accretion in the San Joaquin River system, that was a 12 lumped number representing everything that we couldn't 13 measure that was being contributed by the parties to the San 14 Joaquin River Agreement. In this accretion number is 15 represented by the gray area that is not hatched underneath 16 the blue line. 17 The thing I would like to point out that became quite 18 an operational concern during the 31 days is that the 19 calculated accretion, and it is a calculated number based on 20 measured flows, was virtually constant during this March and 21 early April period. When you get to the beginning of the 22 31-day pulse period, you see a narrowing of that margin; and 23 that what represents is a diminishment of the accretion in 24 the system. And I think what is fairly clear is that this 25 trend continued for several weeks and eventually kind of CAPITOL REPORTERS (916) 923-5447 15858 1 leveled off during the last couple of weeks during the 2 31-day period. That phenomenon resulted in a significant 3 increase in the flows that had to be provided from the 4 sources that were contributed to the target flows. 5 When I said earlier that at the outset of the 31-day 6 period our working estimate was approximately 90,000 7 acre-feet of contribution, that phenomenon of the changing 8 accretions, for the very many reasons that it changed, 9 resulted in the flow providers having to provide an 10 additional 50,000 acre-feet to meet that 7,000 target flow. 11 In addition to that, provided some difficulty in that 12 we didn't reach the target flow as soon as we hoped, and we 13 had to have a series of unscheduled changes in the scheduled 14 flows that were provided by the people on the tributaries, 15 primarily the Merced and the Tuolumne. That did result in 16 some unexpected flow changes to those streams. 17 C.O. BROWN: Question. 18 C.O. STUBCHAER: Mr. Brown. 19 C.O. BROWN: Those accretions make the return flows, 20 tailwater, what do you think they are? 21 MR. BURKE: They are return flows. They are 22 diversions. They are groundwater contributions that are 23 going on at various rates all the time. They are rainfall 24 runoff, although there wasn't any -- there was virtually no 25 rainfall runoff during this year's pulse flow period. CAPITOL REPORTERS (916) 923-5447 15859 1 They're changes in diversions. It is really many, many 2 elements. 3 I think part of what happened this year had to do with 4 the fact that the timing of the 31-day period, if you think 5 back to time period, you may or may not remember, we were 6 hit with some pretty hot weather during the period. I 7 believe that was a factor. Just the time of the year some 8 of the -- probably the normal irrigation practices that are 9 going on at that time coupled with dry, hot weather -- this 10 is just my theory -- which probably simulated some changes 11 in the diversions. 12 C.O. BROWN: Thank you, Mr. Chairman. 13 MR. O'LAUGHLIN: In regards to this, during the 14 April/May pulse flow period did you try to keep track of 15 water quality at Vernalis? 16 MR. BURKE: Yes, we did. We did -- actually, I am 17 going to confess. I really -- in my mind the Vernalis water 18 quality was pretty much at a background level. It was good 19 to start with, and, like I say, good. It continued to be 20 good throughout the time period. In addition to -- when I 21 say "water quality," I am talking about electrical 22 conductivity. We have that and we also have temperature. 23 Temperature was something that I watched more closely during 24 that time because we did have some periods of rapidly 25 changing temperatures. CAPITOL REPORTERS (916) 923-5447 15860 1 MR. O'LAUGHLIN: In regards to EC, do you know if the 2 1995 Water Quality Control Plan requirements for EC at 3 Vernalis during the April/May time period were met this year? 4 MR. BURKE: Yes, they were. 5 MR. O'LAUGHLIN: So, this contribution that we see on 6 the chart where it says, "Exchange Contractors," so that 7 water that they put into the system did not cause the 8 Vernalis standards for EC to be violated during that time 9 period; is that correct? 10 MR. BURKE: No, they didn't. 11 MR. O'LAUGHLIN: You performed another analysis and it 12 is not here within the records, but I remember seeing it on 13 your webpage. There was a comparison done of EC actual 14 versus EC projected under SJRIO model; is that correct? 15 MR. BURKE: Yes, there was. 16 MR. O'LAUGHLIN: Can you tell us whether or not the 17 SJRIO did a very good job tracking what occurred out in the 18 real world? 19 MR. BURKE: I don't recall. I am not able to tell 20 you. I don't recall specifically whether it did or not. 21 MR. O'LAUGHLIN: I have no further questions for Mr. 22 Burke at this time. 23 Thank you very much, Mr. Burke. 24 C.O. STUBCHAER: Who wishes to cross-examine? 25 Get the cards out, Ms. Whitney. CAPITOL REPORTERS (916) 923-5447 15861 1 Mr. Godwin, Mr. Birmingham, Mr. Nomellini, Mr. 2 Herrick. 3 Did I miss anyone? 4 MR. O'LAUGHLIN: After the order is announced, can we 5 take our afternoon break? 6 C.O. STUBCHAER: Good eye on the clock, I must say. 7 Good clock watcher. 8 MR. O'LAUGHLIN: Comes from years of billing. 9 C.O. STUBCHAER: Here is the order: Mr. Birmingham, Mr. 10 Nomellini, Mr. Godwin and Mr. Herrick. 11 With that, we will take our afternoon break. 12 (Break taken.) 13 C.O. STUBCHAER: Back on the record. 14 ---oOo--- 15 CROSS-EXAMINATION OF SAN JOAQUIN RIVER GROUP AUTHORITY 16 BY WESTLANDS WATER DISTRICT AND 17 SAN LUIS AND DELTA-MENDOTA WATER AUTHORITY 18 BY MR. BIRMINGHAM 19 MR. BIRMINGHAM: Good afternoon, Mr. Burke. I am Tom 20 Birmingham. I am an attorney who represents Westlands Water 21 District and the San Joaquin River Group -- excuse me. I 22 represent Westlands Water District and the San Luis and 23 Delta-Mendota Water Authority. Excuse me. 24 I have a few questions of you, Mr. Burke. First, what 25 is your position with the Bureau of Reclamation? CAPITOL REPORTERS (916) 923-5447 15862 1 MR. BURKE: Hydraulic engineer in the Central Valley 2 Operations. 3 MR. BIRMINGHAM: Do you have a degree in engineering? 4 MR. BURKE: Yes. 5 MR. BIRMINGHAM: In what branch of engineering? 6 MR. BURKE: Civil engineering. 7 MR. BIRMINGHAM: Are you a registered engineer? 8 MR. BURKE: No, I am not. 9 MR. BIRMINGHAM: Mr. Burke, are you familiar with the 10 concept of project yield? 11 MR. BURKE: Yes. 12 MR. BIRMINGHAM: Central Valley Project yield is a term 13 which is defined by the Central Valley Project Improvement 14 Act; is that correct? 15 MR. BURKE: I would not agree that is well-defined. 16 MR. BIRMINGHAM: Thank you. I would certainly concur 17 it is not well-defined. I don't want to use the term 18 "yield" in my examination of you because it is a subject of 19 litigation in which I am involved adverse to the Department 20 of the Interior. So, my questions, instead of using the 21 term "yield," I am going to talk about the delivery 22 capability. 23 Are you familiar with that concept from an engineering 24 perspective? 25 MR. BURKE: I'll say that I am familiar with it and I CAPITOL REPORTERS (916) 923-5447 15863 1 think I understand what you are -- the difference that you 2 are -- the distinction that you are trying to draw. 3 MR. BIRMINGHAM: When a reservoir is being designed, 4 there is a calculation which is made for the delivery 5 capability of that reservoir; is that correct? 6 MR. BURKE: Yes. 7 MR. BIRMINGHAM: And frequently when engineers are 8 doing an analysis, the engineers will look at the delivery 9 capability of a reservoir over a particular period of time? 10 MR. BURKE: Correct. 11 MR. BIRMINGHAM: I am going to ask you a series of 12 hypothetical questions, Mr. Burke, and to do that I am going 13 to use an overhead which I have prepared. 14 C.O. STUBCHAER: Is this the stork overhead again? 15 MR. BIRMINGHAM: No. 16 MR. NOMELLINI: We are going to have another hat. I 17 can see it. 18 MR. BIRMINGHAM: Mr. Burke, I have placed on the 19 overhead Westlands Water District 129, which is a very rough 20 diagram or schematic of a reservoir, and the reservoir is 21 represented by the triangle on Westlands Water District 129. 22 Is that acceptable? 23 MR. BURKE: Yes. 24 MR. BIRMINGHAM: Also on Westlands Water District 25 Exhibit 129 there is a blue line, I am going to ask that you CAPITOL REPORTERS (916) 923-5447 15864 1 accept that the blue line represents the storage in the 2 reservoir on April 15 of year one. 3 Do you understand that assumption? 4 MR. BURKE: Yes. 5 C.O. STUBCHAER: They're two blue lines. 6 MR. BIRMINGHAM: The blue line -- 7 MR. NOMELLINI: I think the tepee is a dam and not a 8 reservoir. Perhaps, for whoever is going to have to read 9 this, maybe we ought to get that clarified. 10 MR. BIRMINGHAM: Thank you, Mr. Nomellini. 11 The dam, which is represented by three black lines, is 12 a triangle and the blue line, Mr. Burke, represents the 13 amount of water in storage on April 15th of year one. 14 Do you understand those assumptions? 15 MR. BURKE: I am with you. 16 MR. BIRMINGHAM: I am a lawyer, not an engineer. I 17 have to apologize. 18 I am going to ask you to assume that the operator of 19 the reservoir, represented by Westlands Water District 20 Exhibit 129, agrees to release 100,000 acre-feet of water 21 for a downstream use during the period April 15 through May 22 15. 23 Do you understand that assumption? 24 MR. BURKE: Yes. 25 MR. BIRMINGHAM: I am also going to ask you to assume CAPITOL REPORTERS (916) 923-5447 15865 1 that under the prior operating criteria that were applicable 2 to the reservoir represented by Westlands Water District 129 3 that 100,000 acre-feet would have been either released later 4 in the year for downstream use or it would have been carried 5 over in storage. 6 Do you understand those assumptions? 7 MR. BURKE: Yes. 8 MR. BIRMINGHAM: For purposes of representing the 9 100,000 acre-feet released during the April 15th through May 10 15th year-one period, I am going to represent that with a 11 dotted blue line, which is below the solid blue line on 12 Westlands Water District 129. 13 Now, the release of 100,000 acre-feet during the April 14 15/May 15 year-one period has created a hole in the storage 15 of this reservoir; is that correct? 16 MR. BURKE: That's right. 17 MR. BIRMINGHAM: I am going to represent that by some 18 squiggly red lines on Westlands Water District 129. 19 Now, Mr. Burke, if the operator of the reservoir, 20 represented by Westlands Water District 129, replaces the 21 100,000 acre-feet or fills the hole with water that flows 22 into the reservoir during year one, essentially what the 23 operator of that reservoir has done has shifted flows from a 24 later period in the year to the April 15 through May 15 25 period; is that correct? When I say shifted flows, I am CAPITOL REPORTERS (916) 923-5447 15866 1 talking about flows downstream of the dam. 2 MR. BURKE: Correct. The amount withdrawn is restored 3 by modification of flows later in the year. I agree if that 4 is what your construct was. 5 MR. BIRMINGHAM: Because the hole in the reservoir has 6 been filled with flows later in the year, water flowing into 7 the reservoir, what you have done is you have shifted 8 downstream flows from one period of the year to the April 15 9 to May 15 period? 10 MR. BURKE: Agreed. 11 MR. BIRMINGHAM: But let's assume that rather than 12 filling the reservoir, the hole in the reservoir created by 13 the 100,000 acre-feet release during year one, the operator 14 of the reservoir waits until year two to fill the reservoir. 15 And in year two the operator fills the reservoir with water, 16 fills the hole with water that otherwise would have bypassed 17 the dam, flowed downstream without being used and gone to 18 the ocean. 19 Now if that circumstance isn't it correct, Mr. Burke, 20 that the delivery capability of the reservoir represented by 21 Westlands Water District Exhibit 129 for the period year 22 one/year two has been increased? 23 MR. BURKE: Potentially. 24 MR. BIRMINGHAM: Let's assume that year two is a dry 25 year, and year three is a dry year and year four is a dry CAPITOL REPORTERS (916) 923-5447 15867 1 year. 2 Do you understand those assumptions? 3 MR. BURKE: Yes. 4 MR. BIRMINGHAM: Now, if the 100,000 acre-feet hole as 5 represented by the squiggly red lines on Westlands Water 6 District 129 is refilled during either year two, year three, 7 or year four, what the reservoir operator has done is 8 shifting flows from year two, three or four to year one; is 9 that correct? 10 MR. BURKE: Yes. 11 MR. BIRMINGHAM: But let's make another assumption. 12 Rather than assuming the reservoir is filled in year two, 13 three and four, which are dry, let's assume that year five 14 is a gully wash. And that in year five the 100,000 15 acre-feet hole is filed with water which otherwise would 16 have gone out to the ocean. Now, the release of the 100,000 17 acre-feet during April 15 through May 15 period of year one, 18 under these circumstances, would have increased the delivery 19 capability of this reservoir during the period year one 20 through year five; is that correct, Mr. Burke? 21 MR. BURKE: Let me just review to make sure I know the 22 assumptions. Years two, three and four are dry, and flow 23 spills occur. 24 MR. BIRMINGHAM: Correct. 25 MR. BURKE: And then the hole in storage is refilled in CAPITOL REPORTERS (916) 923-5447 15868 1 year five. 2 MR. BIRMINGHAM: In year five, it is an extremely wet 3 year and there are significant excess flows in the stream on 4 which this reservoir, depicted by Westlands Water District 5 129, is located, and in year five the hole in the reservoir 6 is filled with water which, but for the release in year one 7 between April 15 and May 15, would have gone out to the 8 ocean as flood flows. 9 Now under the circumstances that I have just described, 10 the delivery capability of this reservoir for the period 11 year one through year five has been increased by 100,000 12 acre-feet; isn't that correct, Mr. Burke? 13 MR. BURKE: I apologize, but I think I have to 14 disagree. If I may explain where I am at the end of year 15 five? 16 MR. BIRMINGHAM: Please. 17 MR. BURKE: At the end of year five you have a full 18 reservoir. And prior to year five you've had identical 19 operations in years two, three, four and in year one you had 20 100,000 acre-feet. 21 What you've ended up with is an increase in release of 22 100,000 acre-feet in year one. So in that sense, if that is 23 where you're leading me with this, then I concur that is 24 where you are. You have increased your deliveries 100,000. 25 MR. BIRMINGHAM: I want to make sure the record on this CAPITOL REPORTERS (916) 923-5447 15869 1 is clear, Mr. Burke. I don't want there to be any 2 confusion. I don't want you to think that I am trying to 3 lead you someplace. I want to make sure that I understand 4 this concept of delivery capability. 5 In year one we have released a hundred thousand 6 acre-feet during the April 15 through May 15th period. And 7 typically that water would have been released later in the 8 year or carried over. Let's say carried over in storage. 9 And because of the release, there is a hole in that 10 reservoir. 11 Now when we get out to year five, that hole is filled 12 with flood flows; is that correct? 13 MR. BURKE: Correct. 14 MR. BIRMINGHAM: During the period from year one to 15 year five in the circumstances that we described, 16 considering the entire period, we have increased the 17 delivery capability of that reservoir by 100,000 acre-feet; 18 isn't that correct? 19 MR. BURKE: You have. I agree. 20 C.O. STUBCHAER: Mr. Burke, Mr. Pettit has a question. 21 MR. PETTIT: Could I ask for clarification of your 22 assumption, Mr. Birmingham. 23 In years two, three and four are you assuming that the 24 demands are met without deficiencies? 25 MR. BIRMINGHAM: Yes, I am. I am making that CAPITOL REPORTERS (916) 923-5447 15870 1 assumption as well. 2 MR. PETTIT: Thank you. 3 MR. BIRMINGHAM: The question that Mr. Pettit just 4 asked goes to what is sometimes called a classic yield 5 analysis; is that correct? 6 MR. BURKE: Correct. And I would like to mention that 7 I would assume the same thing, that there was no 8 diminishment in the deliveries during that same time. 9 MR. BIRMINGHAM: I have no further questions. 10 C.O. STUBCHAER: Thank you, Mr. Birmingham. 11 Mr. Nomellini. 12 ---oOo--- 13 CROSS-EXAMINATION OF SAN JOAQUIN RIVER GROUP AUTHORITY 14 BY CENTRAL DELTA PARTIES 15 BY MR. NOMELLINI 16 MR. NOMELLINI: I think I need that tepee line up there 17 on with Westlands exhibit since it was so well prepared. 18 MR. NOMELLINI: Mr. Burke, I am going to use the term 19 yield, but let's pretend like it is disassociated with the 20 CVPIA. In determining what the yield capability of a 21 reservoir would be, you would have to take into 22 consideration the historical and prospective hydrology of 23 the areas that contributes to flow into the reservoir, would 24 you not? 25 MR. BURKE: Yes, you would. CAPITOL REPORTERS (916) 923-5447 15871 1 MR. NOMELLINI: You would make a determination of the 2 frequency, the probable frequency, of occurrence of wet and 3 dry years and the variation of demand on a particular 4 reservoir, would you not? 5 MR. BURKE: Yes. Either statistical or historical data 6 would be used. 7 MR. NOMELLINI: If a reservoir was extraordinarily 8 large for a particular contributing watershed, then it might 9 be quite improbable that there would be a wet year event 10 that would refill the reservoir to return it to its original 11 capacity, having the assumption that it was diminished by 12 100,000 acre-feet at some point; is that correct? 13 MR. BURKE: Depending upon the relationship between the 14 inflow and the size of the reservoir and the relative 15 proportion, the 100,000 acre-feet, it could be improbable 16 that it would refill. 17 MR. NOMELLINI: It takes quite an effort and a lot of 18 detailed study to determine whether or not vacating an extra 19 hundred thousand feet out of reservoir in the period of 20 April 15th through May 15th would, in fact, increase or 21 decrease the yield of the project; is that correct? 22 MR. BURKE: I agree. It could be very complicated. 23 MR. NOMELLINI: Getting off of Westlands Water District 24 129. You had indicated that with regard to San Joaquin 25 River Agreement 115A that forecasting was done in order to CAPITOL REPORTERS (916) 923-5447 15872 1 determine the gray area, I believe, on the Vernalis chart; 2 is that a correct interpretation of your testimony? 3 MR. BURKE: That's correct. That area being what we 4 call the existing flow or the base flow, even term. 5 MR. NOMELLINI: Did that forecasting involve projecting 6 what precipitation might occur out into the future? 7 MR. BURKE: It involves assumptions about that that are 8 inherent in the Department of Water Resources' water supply 9 forecast which formed the basis of our hydrologic 10 forecasts. 11 MR. NOMELLINI: So that did include or do you know 12 whether or not the projection for the period in question 13 reflected on San Joaquin River Agreement 115A included an 14 expectation or possibility that precipitation would occur 15 between April 16th and May 16th? 16 MR. BURKE: Yes, it did. It assumed there was an 17 expectation associated with those forecasts. 18 MR. NOMELLINI: You testified that very little 19 precipitation, in fact, occurred? 20 MR. BURKE: That's correct. 21 MR. NOMELLINI: And that statement applies to the 22 watersheds contributing to the three stream systems being 23 Stanislaus, Tuolumne and Merced? 24 MR. BURKE: That is correct. The assumption on the 25 precipitation is in essence an assumption that extends to CAPITOL REPORTERS (916) 923-5447 15873 1 the rest of the season in question. But as you said, part 2 of that season, the April 17th through May 17th, was 3 particularly dry. 4 MR. NOMELLINI: So in terms of forecasting for the 5 period in question, and again all these questions are going 6 to relate to San Joaquin River Agreement 115A, the 7 expectation was that the flow, existing flow, would have 8 been higher than it actually turned out; is that correct? 9 MR. BURKE: Yes, that is correct. 10 MR. NOMELLINI: At least with regard to precipitation. 11 MR. BURKE: Yes. With regard to precipitation and 12 really other factors, too, that affected it. 13 MR. NOMELLINI: With regard to the forecasting of 14 accretions to the river, how did you determine what the 15 forecast should be with regard to accretions to the river? 16 MR. BURKE: This year, as part of our planning efforts, 17 we put together some data with calculated accretions for 18 years extending back to, I believe, sometime in the '60s, 19 with the objective in mind of developing, if possible, some 20 sort of system that would assist us in forecasting 21 accretions or at least to pick up on a trend. 22 But after doing that what we concluded was that it 23 doesn't seem to be any real significant trend that would 24 assist us in that respect. And that the best indicator of 25 what the accretions will be during that 31-day period is CAPITOL REPORTERS (916) 923-5447 15874 1 what they are at the beginning of the period. 2 MR. NOMELLINI: Do you know whether or not any of the 3 modeling was used to assist in this particular prediction 4 for San Joaquin River Agreement 115A? 5 MR. BURKE: We did do modeling, and we did make 6 forecasts of the accretions that were -- up until the time 7 that we made a transition to doing daily operations planning 8 our forecasts were based on hydrologic data derived from the 9 database used from the Bureau of Reclamation's SANJASM model 10 and the index of the relative wetness of the accretions was 11 assumed to be tied to the same index of wetness that we term 12 as 60-20-20 San Joaquin River Index. 13 There has been a tendency in history that those two 14 quantities are well-correlated. And in the absence of any 15 other specific information about what they would be at the 16 beginning of the pulse flow period, we relied on this 17 historical correlation and the accretions were -- therefore, 18 they were derived from the current value of the 60-20-20 19 hydrologic index for the San Joaquin River. 20 MR. NOMELLINI: That -- did that turn out to be 21 incorrect for the period covered by San Joaquin River 22 Agreement 115A? 23 MR. BURKE: It did turn out to be incorrect to a 24 degree. I think you could -- because of the fact that we 25 assigned a certain statistical level to our forecasts, in CAPITOL REPORTERS (916) 923-5447 15875 1 other words, we tried to look at a range of conditions from 2 very dry to very wet future assumptions, I think you can say 3 that on the one hand, on the very low end of the spectrum, 4 that that method might have resulted in fairly accurate 5 predictions of the accretions. But the forecast that we 6 actually had adopted as our best estimate was definitely an 7 overestimate of the accretions at that time. 8 MR. NOMELLINI: Going to Page 2 of San Joaquin River 9 Group Authority 115A, I believe you indicated that the 10 Vernalis chart is at the top of that Page 2? 11 MR. BURKE: Correct. 12 MR. NOMELLINI: And that charts for the Merced and the 13 Tuolumne are included below that? 14 MR. BURKE: Correct. 15 MR. NOMELLINI: Is it correct that the Vernalis chart 16 includes the numerical figures that are shown on the Merced 17 River and Tuolumne River charts? 18 MR. BURKE: Yes. Those are -- you could say that those 19 are a component of the Vernalis chart. I illustrated, but 20 they are behind it. 21 MR. NOMELLINI: I missed that last comment. They are 22 illustrated, but behind it? 23 MR. BURKE: They are a part of those flows, but they 24 are not illustrated on the chart, on this particular chart. 25 MR. NOMELLINI: Vernalis chart is not a compilation CAPITOL REPORTERS (916) 923-5447 15876 1 including the Merced and Tuolumne chart on a day-to-day 2 basis, but there is some time delay in the water represented 3 on the Merced River and Tuolumne River charts in terms of 4 reflecting itself on the Vernalis chart? 5 MR. BURKE: Right. I think it could be said that the 6 blue areas on the Merced and Tuolumne charts are a part of 7 the blue area on the Vernalis chart. Time delays have to be 8 considered. And likewise, the gray areas on the Merced and 9 the Tuolumme charts are a part of the gray area on the 10 Vernalis chart. 11 MR. NOMELLINI: Are there other adjustments, other than 12 time, made to the flows shown on the Merced River chart in 13 terms of a reflection in the Vernalis chart? 14 MR. BURKE: No. Only the scale is a little bit 15 different. 16 MR. NOMELLINI: There are no river losses assumed 17 between the Merced River and measuring point Cressey and 18 Vernalis? 19 MR. BURKE: No. In fact the flows on the Merced are at 20 Cressey. And as far as losses go, there would be -- there 21 is no assumption about that that would be visible on these 22 charts. 23 MR. NOMELLINI: Are you familiar with the San Joaquin 24 River Agreement? 25 MR. BURKE: Yes. CAPITOL REPORTERS (916) 923-5447 15877 1 MR. NOMELLINI: And the existing flow definition? 2 MR. BURKE: Yes. 3 MR. NOMELLINI: Is that existing flow definition 4 applied at Vernalis? 5 MR. BURKE: Yes. 6 MR. NOMELLINI: So the Merced River contribution would 7 be measured at Vernalis under the San Joaquin River 8 Agreement? 9 MR. BURKE: That's right. 10 MR. NOMELLINI: So, these charts, to the extent they 11 are reflected on 115A, would not reflect the same definition 12 for existing flow for the Merced River and Tuolumne River as 13 to a contribution from those two sources under the San 14 Joaquin River Agreement? 15 MR. BURKE: Could you please rephrase the question? 16 MR. NOMELLINI: It was -- it had that awkward feeling 17 when it came out. 18 If we were to try and determine whether or not the 19 Merced Irrigation District met its required contribution 20 under the San Joaquin River Agreement, would the chart for 21 the Merced River or something like that be what we use to 22 make that determination? 23 MR. BURKE: Yes. In doing that, we have made the 24 assumption that is where the contributions will be measured, 25 at Merced River and Cressey. CAPITOL REPORTERS (916) 923-5447 15878 1 MR. NOMELLINI: Then are you clarifying or changing 2 your answer to my question with regard to the existing flow 3 determination in the San Joaquin River Agreement? 4 MR. BURKE: I think we have gone one step beyond in 5 terms of actually taking the existing flow at Vernalis and 6 identifying the components of the contributions and how we 7 are going to measure them. That step is that we've got 8 existing flow at Vernalis and the contributions to the 9 existing flow are being measured at upstream gauges. 10 MR. NOMELLINI: Is that what you expect to be the same 11 approach to be used under the San Joaquin River Agreement, 12 what you have done here? 13 MR. BURKE: Yes, I would. 14 MR. NOMELLINI: Let's focus in on the Merced River 15 chart, and you have an area shown to constitute excess flow 16 going up roughly till about, looks like, the 14th of April. 17 You see that? 18 MR. BURKE: That is on the Merced River? 19 MR. NOMELLINI: Yes. On mine it's kind of a cream 20 color. 21 MR. BURKE: I see that. 22 MR. NOMELLINI: You see that area? 23 MR. BURKE: Yes. 24 MR. NOMELLINI: You have identified that as excess flow? 25 MR. BURKE: Right. CAPITOL REPORTERS (916) 923-5447 15879 1 MR. NOMELLINI: That excess flow appears to end with a 2 very steep drop in the line right around the 14th of April? 3 MR. BURKE: Correct. 4 MR. NOMELLINI: Is that intended to show that there was 5 no excess flow during the period of April 14th to May 14th? 6 MR. BURKE: That is correct. 7 MR. NOMELLINI: It was not, then, simply an agreement 8 that it would be assumed that everything over the minimum 9 flow was, in fact, a contribution on the Merced? 10 MR. BURKE: In this case everything over the minimum 11 flow was a contribution, but only during a defined 31-day 12 period, beginning April 4th and ending May 14th. 13 MR. NOMELLINI: In actuality, was there no excess flow 14 during that period on the Merced River? 15 MR. BURKE: That is correct. There was no excess flow 16 because, in terms of the agreement, the objective was to 17 meet the target Vernalis flow and, therefore, all of the 18 flows less the existing flow component were accounted as 19 contributing to that target. 20 MR. NOMELLINI: Absent the San Joaquin River Agreement 21 and looking at the actual flows on the Merced River, would 22 this chart, which is up on the screen, look any different 23 with regard to the excess flow lines? 24 MR. BURKE: I would theorize that some of the buildup 25 and ramp down portion would be absent, and that they'll CAPITOL REPORTERS (916) 923-5447 15880 1 probably be a very slight operational excess similar to what 2 you see at the very beginning and ends of the trace that 3 starts April 1st and ends May 31st, and that the rest of the 4 releases that were made would have stayed in storage. 5 MR. NOMELLINI: Is the Merced River watershed affected 6 in any way by snowmelt? 7 MR. BURKE: Yes, it is. 8 MR. NOMELLINI: Is there any particular time of the 9 year when you would expect snowmelt to be greatest? 10 MR. BURKE: April through July. 11 MR. NOMELLINI: If there were to be excess flows on the 12 Merced River, absent the Sacramento/San Joaquin River 13 Agreement formula, you would expect them to reflect 14 themselves during this very period, April 14th through May 15 14th? 16 MR. O'LAUGHLIN: Objection. Lacks foundation, calls 17 for speculation, and mixes the hypothetical with an actual 18 amount of flow in the river. What he has done, gone from a 19 general question saying snowmelt occurs from April through 20 July, now put it in here as excess flow. 21 Well, we don't know if it is excess flow in this time 22 period because we don't know what the inflow to the 23 reservoir was. We know actually what occurred in 1999 with 24 inflow in the Merced system. I don't see how -- 25 He's taking two separate things. One is an orange and CAPITOL REPORTERS (916) 923-5447 15881 1 one is an apple and mixing them together. It doesn't make 2 any sense. 3 C.O. STUBCHAER: The reservoir storage component is 4 missing. When you said the excess flow, it wasn't defined, 5 whether above the reservoir or below the reservoir or going 6 in storage. I know we are talking about the Merced River at 7 Cressey from the exhibit. 8 Please restate the question; address the issue. 9 MR. NOMELLINI: I was focusing on the Merced River at 10 Cressey and whether or not this chart would reflect excess 11 flow from snowmelt absent the San Joaquin River Agreement. 12 MR. O'LAUGHLIN: Asked and answered. He's already 13 testified twice on that very question in response to Mr. 14 Nomellini's questions. That chart shows that this water is 15 coming out storage. I don't know that he doesn't like to 16 hear the response. That's it. So, if it is coming out of 17 storage, it is by definition not excess. 18 C.O. STUBCHAER: The witness did state that most of the 19 flow would come out of storage. That is true. That was 20 asked and answered. 21 MR. NOMELLINI: The witness also said that there would 22 be an additional increment of excess flow. And the witness 23 is here to clarify. 24 During that period of time as shown on this chart, and 25 I was trying to determine whether or not that excess flow CAPITOL REPORTERS (916) 923-5447 15882 1 came from snowmelt on this chart, if he knew, absent the San 2 Joaquin River. 3 MR. O'LAUGHLIN: Excuse me, Mr. Chairman. That is not 4 what the witness said. The witness said there would be 5 slight operational excess flows, and he specifically defined 6 them as beginning of the time period April 1st through April 7 14th. And at the end of the chart, from May 15th through 8 May 31st as operational excess. 9 So, whether that is a problem with Merced ramping up or 10 ramping down has nothing to do with the time period 11 identified as April 15th and May 15th. 12 To take the testimony and twist it that way -- 13 C.O. STUBCHAER: Let's avoid the characterization. 14 MR. NOMELLINI: I don't want to try and twist it. I 15 want to try and understand it. 16 C.O. STUBCHAER: From my perspective, the question is 17 incomplete because it doesn't address the other option for 18 what might happen to the snowmelt. 19 MR. NOMELLINI: Let me try another shot at it. 20 Mr. Burke, if you would go up to that screen and 21 roughly show us, and then we will try and describe it, what 22 you think the excess flow element on the Merced River would 23 look like absent the San Joaquin River Agreement. Do you 24 think you can do that? 25 MR. BURKE: I will try. CAPITOL REPORTERS (916) 923-5447 15883 1 C.O. STUBCHAER: Mr. Nomellini, are you talking about 2 this specific real-time period or assuming that the 3 reservoir is full or reservoir not full? 4 MR. NOMELLINI: I am talking about this real-time 5 period, April through May of 1999 and this particular 6 chart. Absent the formula in the San Joaquin River 7 Agreement. 8 MS. WHITNEY: Mr. Stubchaer, rather than point out with 9 a laser pointer, perhaps it would be better if he drew on 10 the overhead so we can put it in evidence. 11 MR. O'LAUGHLIN: I would object to that. This is an 12 exhibit that's already been marked and identified. If Mr. 13 Nomellini wants to make an overhead and do it for 14 clarification, I don't think we need to tamper with the 15 exhibit as entered. 16 C.O. STUBCHAER: Well, do the best you can with the 17 laser pointer and we'll see if we need to have an exhibit 18 marked for the record. Perhaps -- let me put it this way: 19 Perhaps you can take one of the Board Member's copy and mark 20 on that what you outline on the overhead. That way we will 21 have at least an exhibit. 22 MR. BIRMINGHAM: Excuse me, Mr. Stubchaer. I have 23 another piece of Mylar. Perhaps he can overlay that Mylar 24 on this piece of Mylar. 25 C.O. STUBCHAER: Do you have any nontoxic marking pens? CAPITOL REPORTERS (916) 923-5447 15884 1 MR. BIRMINGHAM: No, I don't, but I know that the Chair 2 does. 3 C.O. STUBCHAER: I don't know that I do. I think they 4 are back in the Phase V box. 5 MR. BIRMINGHAM: I have toxic -- my reputation would be 6 ruined if I used anything that is nontoxic. 7 MR. O'LAUGHLIN: We should mark this document as an 8 exhibit for -- I don't care if you mark it Central Delta 9 Water Agency or mark it for San Joaquin River Group 10 Authority next in line. 11 MR. HERRICK: Mr. Chairman, we should also make some 12 marks on the edge of the new Mylar sheet so it matches. 13 C.O. STUBCHAER: We need tick marks in the two corners. 14 MR. BURKE: Can I first preface what I am going to 15 draw by saying that what I am going to draw assumes that I 16 know what amounts of excess flow would have occurred absent 17 the San Joaquin River Agreement this year. And I want to 18 preface that by saying that I don't feel entirely 19 comfortable because I am not an expert on the operations of 20 Exchequer. But I do have some information about the size 21 and the magnitude of the snowmelt runoff this year. And 22 because of that information, I have concluded that they 23 would have been able to store all of the snowmelt runoff 24 this year even had they not made the releases during the 25 April/May period. CAPITOL REPORTERS (916) 923-5447 15885 1 C.O. STUBCHAER: Mr. Birmingham is next. 2 MR. BIRMINGHAM: I will defer. 3 C.O. STUBCHAER: Mr. O'Laughlin. 4 MR. O'LAUGHLIN: With that explanation by the witness, 5 there is no reason to mark up the exhibit. Basically his 6 testimony is very clear, that there is little or no excess 7 flows from the time period of April 15th through -- April 8 14th through May 14th because the reservoir would have 9 stored all of the snowmelt and run in and had sufficient 10 capacity to do so. So I see no reason to mark up the 11 exhibit. 12 C.O. STUBCHAER: Mr. Nomellini, do you have a response? 13 MR. NOMELLINI: We are not going to ruin his exhibit. 14 We are going to mark another exhibit, and the witness ought 15 to reflect that. I understood his testimony to be slightly 16 different from the characterization of Mr. O'Laughlin, and I 17 think we ought to have the witness's best testimony. My 18 recollection was that in each end there would be some 19 ramping and that overall there would be some. But whatever 20 the testimony is. 21 C.O. STUBCHAER: Mr. Nomellini, the witness just stated 22 without being prompted that there was enough reservoir 23 capacity to capture all the snowmelt. 24 MR. NOMELLINI: Could I follow-up with the witness? 25 C.O. STUBCHAER: Yes. CAPITOL REPORTERS (916) 923-5447 15886 1 MR. NOMELLINI: Does that mean, Mr. Burke, there would 2 be no difference that you would expect on the chart for the 3 Merced River shown on the screen, which is 115 -- second 4 page of 115A? 5 MR. BURKE: The amount of operational excess that I had 6 referred to is, I think that would occur for the entire 7 period absent the VAMP flows, is similar to what is 8 illustrated during the first ten days and the last 9 approximately 12 days on that chart. 10 I will be happy to draw my -- 11 MR. NOMELLINI: I would like him to, just to get it 12 clear on the record. 13 MR. O'LAUGHLIN: I am going to object again. The 14 witness testified in the time period from April 13th to 14th 15 he said that that was operational excess. So he doesn't 16 know if that is because of the ramping up in order to get to 17 the flow requirement for the San Joaquin River Agreement. 18 And, conversely, on May 14th when the ramping down, if that 19 operational is operational excess because they're ramping 20 down to get within their criteria. 21 So by defining it as excess in that constraint as he 22 did previously, that doesn't meet with Mr. Nomellini's, 23 i.e., that is excess to storage capability within 24 Exchequer. 25 C.O. STUBCHAER: I think that is a valid point. You CAPITOL REPORTERS (916) 923-5447 15887 1 want to pursue that with the witness? 2 MR. NOMELLINI: Well, maybe I missed it. But what I 3 wanted the witness to do is just show us on the chart, 4 absent the San Joaquin River Agreement, what the excess flow 5 would be using the same definitions as used in the 6 preparation of that chart, on the chart. That is all. 7 C.O. STUBCHAER: I don't see any harm. I think it may 8 turn out to be unnecessary. Mr. Burke. 9 MR. BURKE: My intention is to leave a very small 10 increment release above the gray area, similar to the amount 11 that is portrayed as operational excess at the beginning and 12 ends of that two-month period. 13 C.O. STUBCHAER: Would you put tick marks at the 14 opposite corners of the shaded area of the graph, please, 15 making sure when you put those on there that the position of 16 the line is where you want it. 17 Just draw a line around the corner so we can register 18 the overlaying. You don't need to go all the way. Now the 19 other corner. 20 MR. O'LAUGHLIN: Do the opposite corner. 21 MR. BIRMINGHAM: Can we mark this as Westlands Water 22 District Exhibit 130? And let the record reflect that the 23 witness has drawn a curve on the Westlands Water District 24 130 and has drawn tick marks on the exhibit to indicate 25 where it was placed over San Joaquin River Group Authority CAPITOL REPORTERS (916) 923-5447 15888 1 Exhibit 115 A, Page 2? 2 C.O. STUBCHAER: Yes, the record may reflect that. 3 MR. NOMELLINI: Thank you, Mr. Burke. 4 In preparing 115A -- that is not the overlay. We are 5 going back to your chart -- have you made the assumption 6 that the reservoir operators are entitled to store all of 7 the flow from the contributing watershed reaching the 8 reservoir? 9 MR. BURKE: No. I have attempted to incorporate the 10 flood control criteria that limit the amount that they can 11 store. 12 MR. NOMELLINI: And other than the flood control 13 criteria, have you assumed that the reservoir operators have 14 the right to store all of the flow from the watershed 15 flowing into the reservoir? 16 MR. BURKE: No. I have assumed that they have some 17 requirement to release water and that is incorporated into 18 the existing flow assumption. 19 MR. NOMELLINI: The minimum flow shown on the chart 20 reflects the quantity required for bypass by the reservoir 21 operator; is that correct? 22 MR. BURKE: I don't know if it can be translated as a 23 requirement, but it was a best estimate for operational 24 purposes. 25 MR. NOMELLINI: The two elements of deduction from the CAPITOL REPORTERS (916) 923-5447 15889 1 water flowing from the watershed were the flood control 2 restraints and whatever this is that is the minimum flow as 3 shown on the chart? 4 MR. BURKE: I agree. 5 MR. NOMELLINI: Let's go to the Tuolumne. And with 6 regard to the Tuolumne River chart shown on 115A, what would 7 your estimate be of the excess flow for the same period 8 without the San Joaquin River Agreement? 9 C.O. STUBCHAER: Mr. O'Laughlin. 10 MR. O'LAUGHLIN: Once again, the witness has previously 11 testified. So this has been asked and answered, that the 12 reservoir within the system had the capability to capture 13 inflows. Therefore, pursuant to Mr. Nomellini's definition 14 of excess flow, there would be no excess flow on the 15 Tuolumne River. This has been asked and answered. 16 MR. NOMELLINI: I asked about the Merced. 17 C.O. STUBCHAER: I didn't take it that plural 18 reservoirs in the system. I understood it to be just the 19 Merced Reservoir. Perhaps the witness could clarify that. 20 MR. NOMELLINI: I would like the answer. I don't 21 presuppose what it is. 22 C.O. STUBCHAER: I would like an answer, too. But if 23 it could have stored it all, I see no necessity of drawing 24 lines again. 25 MR. NOMELLINI: If that is the witness' testimony is, CAPITOL REPORTERS (916) 923-5447 15890 1 that's fine. There was a line through here on the previous 2 chart above the gray line. 3 MR. BURKE: My answer is that on the Tuolumne River, 4 absent the releases that were provided to meet the San 5 Joaquin River flow objective, that during the 31 days, in 6 this case beginning April 15th then and extended to May 7 15th, there would have been virtually a zero excess flow. 8 For these reasons my understanding and my knowledge about 9 the inflow and storage criteria would cause me to reach the 10 conclusion that they could have stored all the inflow at 11 that time. And in this case, different than the Merced 12 River, the flows of LaGrange are much closer to the Merced 13 discharge point. My understanding is that they can meet the 14 release targets that are represented by the FERC schedule 15 flows, that those release targets can be met fairly 16 accurately. 17 So my assumption would be that there would be, on the 18 scale of my chart as presented, virtually no excess flow 19 during that 31-day period. 20 MR. NOMELLINI: With regard to the determination of the 21 right to store, have you made the same assumptions on the 22 Tuolumne that you did on the Merced, that absent the -- 23 other than the FERC schedule and other than the flood 24 control restraint, there are no other restraints on the 25 right to store? CAPITOL REPORTERS (916) 923-5447 15891 1 MR. BURKE: I made that assumption, yes. 2 MR. NOMELLINI: I agree there is no need to do a 3 drawing. 4 In terms of assumptions as to whether or not water 5 would have been released from storage for power production 6 purposes during the period shown on the chart for the Merced 7 River, were any assumptions made in that regard? 8 MR. BURKE: The assumption was there would have been no 9 releases above the existing flows made for power purposes. 10 MR. NOMELLINI: Is the same true with regard to the 11 Tuolumne? 12 MR. BURKE: That is correct. 13 MR. NOMELLINI: Now, with regard to the Stanislaus you 14 indicated that other than what is reflected on Page 3 of 15 that same exhibit, you didn't make a separate chart? 16 MR. BURKE: No. The flows on the Stanislaus are 17 represented on Page 3 of the exhibit. 18 MR. NOMELLINI: Did you make any assumption as to the 19 chart on Page 3 as to what the course of water was for the 20 blue area shown there to be from the Stanislaus? 21 MR. O'LAUGHLIN: Objection. Vague and ambiguous. We 22 went through the source of water, and Mr. Nomellini has 23 several sources of water. And I think it would be helpful 24 to define it for the witness what he means by "source of 25 water." CAPITOL REPORTERS (916) 923-5447 15892 1 C.O. STUBCHAER: Please rephrase the question. 2 MR. NOMELLINI: Did you assume that the blue area shown 3 on San Joaquin River Group Authority 115A for the Stanislaus 4 was a release from New Melones Reservoir? 5 MR. BURKE: Yes, it was. 6 MR. NOMELLINI: Did you make any assumption as to 7 whether or not that contribution came from the water 8 allocated to OID and South San Joaquin in New Melones? 9 MR. BURKE: No, it did not come from that water. In 10 1999 the amount that was released was from the amount 11 allocated to fish flows. 12 MR. NOMELLINI: So, for 1999 there was no contribution 13 during this period of time from OID or South San Joaquin 14 Irrigation District; is that correct? 15 MR. BURKE: My understanding is that the contributions 16 from OID and South San Joaquin were shifted to the Tuolumne 17 and Merced Rivers, respectively. Their contributions, which 18 totaled 11,000 acre-feet each, were made by the operators on 19 the Tuolumne and Merced because of limitations on the total 20 amount of discharge that we can have on the Stanislaus at 21 that time of year. 22 MR. NOMELLINI: There was a question asked of you on 23 direct as to how the Bureau would have provided the VAMP 24 flow were it not for the San Joaquin River Agreement. 25 Do you recall that question? CAPITOL REPORTERS (916) 923-5447 15893 1 MR. BURKE: Yes. 2 MR. NOMELLINI: Your answer was they would not have 3 been able to provide it; is that correct? 4 MR. BURKE: That's correct. 5 MR. NOMELLINI: You stated -- offered as a reason that 6 the only facility that the Bureau has to make that release 7 was New Melones? 8 MR. BURKE: That's correct. 9 MR. NOMELLINI: Does the Bureau have any water stored 10 in Friant? 11 MR. BURKE: Yes. 12 MR. NOMELLINI: Is there any reason why the Bureau 13 could not allocate that water to make the release? 14 MR. BURKE: Water is not an efficient source for 15 providing contributions to target flows at Vernalis. 16 However, I don't know if there is any prohibition on the 17 Bureau of Reclamation's allocating water for that purpose. 18 MR. NOMELLINI: Other than New Melones and Friant, does 19 the Bureau have any other source of water that they could -- 20 that physically could be used to provide the VAMP flow? 21 MR. BURKE: The only other source of water would be the 22 water that we divert at Tracy pumping plant into the 23 Delta-Mendota Canal. 24 MR. NOMELLINI: Would that include water stored in San 25 Luis? CAPITOL REPORTERS (916) 923-5447 15894 1 MR. BURKE: It could. 2 MR. NOMELLINI: Do you know whether or not there is a 3 prohibition on the use of that water for meeting the VAMP 4 flow? 5 MR. BURKE: I don't. 6 MR. NOMELLINI: With regard to the amount of water 7 required to meet the VAMP flows in the period indicated on 8 the exhibit, I believe your testimony was that the total 9 amount of water required was 140,000 acre-feet; is that 10 correct? 11 MR. BURKE: Correct. 12 MR. NOMELLINI: Of the 140,000 acre-feet do you know 13 how much, based on this forecasting, was attributed to the 14 parties to the San Joaquin River Agreement? 15 MR. BURKE: All of it was attributed to the parties of 16 the San Joaquin River Agreement. 17 MR. NOMELLINI: Even the Stanislaus River flow out of 18 New Melones was attributed as having come from the San 19 Joaquin River Agreement parties; is that correct? 20 MR. O'LAUGHLIN: Objection. Misstates the testimony. 21 C.O. STUBCHAER: Mr. O'Laughlin. 22 MR. O'LAUGHLIN: He testified previous that neither OID 23 or SSJID made a contribution on the Stanislaus River. In 24 fact, his testimony is that Bureau provided 1,500 cfs, and 25 that was included in the existing flow. CAPITOL REPORTERS (916) 923-5447 15895 1 C.O. STUBCHAER: I am going to allow the question to be 2 answered for clarification. 3 MR. NOMELLINI: Clarification would be helpful if I 4 misstated. 5 MR. BURKE: The Stanislaus River flow in 1999 was 6 considered all part of the existing flow. 7 MR. NOMELLINI: So that 140,000 was attributed to San 8 Joaquin River Agreement parties other than those on the 9 Stanislaus; is that correct? 10 MR. BURKE: The source of the water was from parties 11 other than those on the Stanislaus. I don't want to expand 12 my answer to say that it wasn't attributed to them because 13 that would require me to take interpretation of the division 14 agreement, I think, and I don't feel qualified to do that. 15 MR. NOMELLINI: Did the Bureau's forecast that we are 16 dealing with here anticipate at the forecast stage, which I 17 think was over in 115B, that 140,000 acre-feet would be 18 required in a year type such as we have actually experienced 19 during the April 14th to May 14th period? 20 MR. BURKE: At that time we forecasted it would be less 21 than that. 22 MR. NOMELLINI: What was the forecast? 23 MR. BURKE: We had -- we were using two forecasts. One 24 a 90 percent probability of exceedance. That forecast 25 projected a requirement of 103,000 acre-feet. This was as CAPITOL REPORTERS (916) 923-5447 15896 1 of May 2nd. And using a 50 percent probability of 2 exceedance, our forecasted requirement was 35,000 3 acre-feet. 4 MR. NOMELLINI: 140,000 was actually required? 5 MR. BURKE: Correct. 6 MR. NOMELLINI: Based on your experience with the year 7 1999, is it contemplated that greater amounts of water will 8 have to be acquired by the Bureau in order to meet the VAMP 9 flows under the San Joaquin River Agreement? 10 MR. O'LAUGHLIN: Objection. Lacks foundation. Assumes 11 facts not in evidence. He is saying greater amounts of 12 water acquired, and he hasn't established a baseline to what 13 amount is actually being acquired. 14 C.O. STUBCHAER: Sustained. 15 MR. NOMELLINI: Greater amounts than anticipated in 16 that the San Joaquin River Agreement. 17 MR. O'LAUGHLIN: That is also incomplete because the 18 agreement says that anywhere from 0 to 110,000 acre-feet of 19 water will be made available by the agreement, and then also 20 provides supplement water will be made available up to 21 157,000 acre-feet. If he's talking about amounts greater 22 than 157,000 acre-feet, I think that is a logical question. 23 MR. NOMELLINI: That is fair. 24 Based on your experience with 1999, do you expect that 25 it will be necessary for the Bureau in any year to acquire CAPITOL REPORTERS (916) 923-5447 15897 1 an amount greater than 157,000 acre-feet in order to meet 2 the VAMP flows in Attachment A to the San Joaquin River 3 Agreement? 4 MR. BURKE: I would have to say no because -- let me 5 qualify that. I was going to say that it is almost a 6 mathematical impossibility that you would have to exceed 7 that because of the way that the thresholds are defined. 8 But in a year such as 1999, which was what we call a 9 double-step target year, you have the possibility that you 10 may have to increase the flow two steps, which may be a 11 maximum of 157,000 acre-feet. 12 In the event that you badly forecast the existing flow 13 to the extent that it actually turned out to be less than an 14 amount so much less than what you forecast, that to meet the 15 target that you had to increase flows by more than two 16 steps, I guess it would be mathematically possible to have 17 to provide more than 157,000 acre-feet to meet your target 18 know. That would simply translate to a misforecast of the 19 existing flow, and I don't think that it translates to any 20 requirement or need to necessarily acquire more water to do 21 that. 22 I only bring that up because of the fact that 1999 was 23 a double step target year, and it did present the 24 possibility that that maximum amount of flow of 157,000 25 acre-feet would have to be used to meet the target. CAPITOL REPORTERS (916) 923-5447 15898 1 MR. NOMELLINI: With regard to the overestimated 2 forecast of accretions to the river experienced in 1999, is 3 there some adjustment that the Bureau intends to make to its 4 forecasting as to water needs for meeting the VAMP flows? 5 MR. BURKE: No. Other than, I think there is probably 6 always never -- I should say there is never quite enough 7 information available to the person who has to make that 8 kind of forecast, and it's always useful to have more good 9 information to help. I don't think that there is anything 10 procedurally that I would contemplate doing, perhaps, except 11 for looking for better intelligence to assist you with 12 building up your information base that goes into the 13 estimate of that quantity of accretion. I don't view what 14 happened this year as necessarily representative of a trend 15 that will continue in the future, if that was the point that 16 you were trying to make. 17 MR. NOMELLINI: Exactly the point I was trying to 18 understand rather than make. 19 The experience of '99 is not such that it would alter, 20 in your opinion, the forecasting that has already been 21 concluded in the San Joaquin River Agreement? 22 MR. BURKE: No. 23 C.O. STUBCHAER: Mr. Nomellini, it's exactly an hour 24 now. How much more time are you going to require? 25 MR. NOMELLINI: I think I have covered it, but I wanted CAPITOL REPORTERS (916) 923-5447 15899 1 to check my notes. Briefly check my notes. 2 C.O. STUBCHAER: Sure. 3 MR. NOMELLINI: I think I have covered it. So I think 4 that can wrap me up, Mr. Chairman. 5 Thank you. 6 C.O. STUBCHAER: Thank you, Mr. Nomellini. That is 7 twice when I've interrupted you just when you were through. 8 It's happenstance. 9 Mr. Godwin, how long do you think your 10 cross-examination of this witness will take? 11 MR. GODWIN: Probably about seven minutes. 12 C.O. STUBCHAER: What a coincidence. 13 Mr. Burke, are you available tomorrow? 14 MR. BURKE: Yes. 15 C.O. STUBCHAER: What is your usual quitting time? 16 MR. BURKE: I usually go a lot later than this. 17 ---oOo--- 18 CROSS-EXAMINATION OF SAN JOAQUIN RIVER GROUP AUTHORITY 19 BY TURLOCK IRRIGATION DISTRICT 20 BY MR. GODWIN 21 MR. GODWIN: Mr. Burke, I am Arthur Godwin here for the 22 Turlock Irrigation District. 23 First question I have is clarification. I believe you 24 testified that the parties to the San Joaquin River 25 Agreement this year had to provide an additional 50,000 CAPITOL REPORTERS (916) 923-5447 15900 1 acre-feet. You were referring to the additional 50,000 2 acre-feet on top of your initial forecast of 90,000 3 acre-feet; is that right? 4 MR. BURKE: That's correct. 5 MR. GODWIN: In reality, the parties actually 6 contributed an additional 30,000 acre-feet this year; is 7 that right? 8 MR. BURKE: That's right. 9 MR. GODWIN: Are you familiar with the Delta Smelt 10 Biological Opinion? 11 MR. BURKE: Yes. 12 MR. GODWIN: Does that opinion require that the Bureau 13 of Reclamation each year make a calculation of or a forecast 14 of the existing flow at Vernalis? 15 MR. BURKE: Yes, it is. I believe in essence defined 16 pretty much the same way it is in the San Joaquin River 17 Agreement. Yes, it does require that we forecast conditions 18 in the San Joaquin River prior to April 1st. 19 MR. GODWIN: I was going to ask, essentially the same 20 process that you went through for this. I think you 21 answered that it is? 22 MR. BURKE: Yes, it is. 23 MR. GODWIN: As part of your providing information to 24 parties this year, you had a VAMP website on the Bureau of 25 Reclamation home page this year, did you not? CAPITOL REPORTERS (916) 923-5447 15901 1 MR. BURKE: Yes, we did. 2 MR. GODWIN: And on that you had charts very similar to 3 what we saw today? 4 MR. BURKE: Yes. 5 MR. GODWIN: In addition you had a table that showed 6 existing flows and contributions from each of the 7 tributaries? 8 MR. BURKE: Yes. 9 MR. GODWIN: That is updated on a daily basis? 10 MR. BURKE: It was updated not quite every day. About 11 on the same frequency that we had our operations conference 12 calls, which was three times a week. 13 MR. GODWIN: I was going to ask also, in addition to 14 the meetings that you talked about, you also had conference 15 calls with the operators throughout the VAMP pulse flow 16 period? 17 MR. BURKE: That's right. Beginning on April 12th and 18 extending till, I believe, May 14th. During that five-week 19 period we had conference calls Monday, Wednesday and Friday 20 mornings. 21 MR. GODWIN: That was at 6:30 in the morning? 22 MR. BURKE: 6:30 in the morning, yes. 23 MR. GODWIN: Turning to San Joaquin River Group Exhibit 24 115A, Page 2, the figure showing the Tuolumne River. There 25 is an excess flow amount at the end of the pulse flow period CAPITOL REPORTERS (916) 923-5447 15902 1 beginning about April or, rather, May 18th and extending 2 through the end of the month. 3 Do you know what excess flow is? 4 MR. BURKE: I don't, actually. I could only speculate 5 what it is. 6 MR. GODWIN: Okay. That is fine. 7 While we are on this, the cumulative totals for VAMP 8 where the Merced River shows 77,000 acre-feet. As I recall 9 the division agreement provided that Merced ID would provide 10 55,000 acre-feet. Why the difference? 11 MR. BURKE: The -- yes, the division agreement within 12 the 110,000 acre-feet proportion is 55,000 to be released on 13 the Merced. And this year an additional 11,000, I believe, 14 would have been released on behalf of South San Joaquin, and 15 another approximately 11,000 was released under a separate 16 -- an additional contract that was developed this year for 17 the purchase of additional water to go beyond the 110,000 18 acre-foot requirement. 19 MR. GODWIN: Looking at Tuolumne River, it slows a VAMP 20 cumulative total of 52,000 acre-feet. And under the 21 division agreement I believe that total for Modesto and 22 Turlock Irrigation District is 22,000 acre-feet. 23 Why the difference? 24 MR. BURKE: The 22,000 is their proportion within the 25 110-, and there was another 11,000 acre-feet released on CAPITOL REPORTERS (916) 923-5447 15903 1 behalf of Oakdale. And then a total of approximately 19,000 2 acre-feet that was released I believe equally by Modesto and 3 Turlock under this contract for the supplemental water to go 4 beyond 110,000 acre-feet up to a maximum of 157,000 5 acre-feet. 6 MR. GODWIN: You also show on that same chart for the 7 Tuolumne River a FERC equal of 89,000 acre-feet. Is it your 8 understanding that is total FERC pulse flow for the time 9 period? 10 MR. BURKE: That is the pulse part of the pulse 11 flow. I would just like to point out that there is an 12 amount represented by the line that is approximately 300 cfs 13 that continues simultaneously with that FERC pulse flow 14 amount. 15 MR. GODWIN: I would like to turn to Page 3 of Exhibit 16 115A, and looking at the chart on the bottom, the 1999 17 Observed Vernalis Flow, there is a dark blue amount there 18 which represents the contribution from the Exchange 19 Contractors; is that right? 20 MR. BURKE: That's right. 21 MR. GODWIN: That looks like a pretty small amount in 22 relation to the other contributions; is that right? 23 MR. BURKE: That's correct. The total is 11,000 24 acre-feet. 25 MR. GODWIN: Do you know what the cfs amount is during CAPITOL REPORTERS (916) 923-5447 15904 1 that time period? 2 MR. BURKE: It ranged from, I believe, approximately a 3 hundred cfs to approximately 300 cfs. 4 MR. GODWIN: Assuming that the contribution from the 5 Exchange Contractors -- let me back up. 6 Assuming that the water quality from the Exchange 7 Contractors during this period was equivalent to the water 8 quality in the Delta-Mendota Canal, do you think this 9 contribution from the Exchange Contractors would have much 10 of an affect on the water quality at Vernalis during this 11 time period? 12 MR. BURKE: A minor affect. 13 MR. GODWIN: That is all the questions I have. 14 C.O. STUBCHAER: Thank you, Mr. Godwin. Right on 15 time. 16 We have Mr. Herrick left to cross-examine Mr. Burke 17 tomorrow. 18 Is there any business to come before us before we 19 adjourn for the day? 20 Mr. Birmingham. 21 MR. BIRMINGHAM: Apparently somebody has infiltrated my 22 office because Mr. Rubin tells me that these pens are 23 nontoxic. 24 C.O. STUBCHAER: They are. Good. Your reputation is 25 ruined, I guess. CAPITOL REPORTERS (916) 923-5447 15905 1 Mr. O'Laughlin. 2 MR. O'LAUGHLIN: One point. Mr. Burke will be back 3 tomorrow morning and then Mr. Hildebrand will be testifying 4 tomorrow. We would like to argue the motion to strike Mr. 5 Hildebrand's testimony after Mr. Burke is done and before 6 Mr. Hildebrand testifies. It's been briefed by both parties 7 and documents have been submitted to the State Board. 8 C.O. STUBCHAER: All right. 9 Is there anything else? 10 Staff? 11 We are adjourned till 9:00 a.m. tomorrow. 12 (Hearing adjourned at 4:00 p.m.) 13 -