STATE WATER RESOURCES CONTROL BOARD PUBLIC HEARING 1998 BAY-DELTA WATER RIGHTS HEARING HELD AT 901 P STREET SACRAMENTO, CALIFORNIA THURSDAY, JUNE 24, 1999 9:00 A.M. Reported by: MARY GALLAGHER, CSR #10749 CAPITOL REPORTERS (916) 923-5447 1 APPEARANCES ---oOo--- 2 3 BOARD MEMBERS: 4 JAMES STUBCHAER, CO-HEARING OFFICER JOHN W. BROWN, CO-HEARING OFFICER 5 MARY JANE FORSTER 6 STAFF MEMBERS: 7 THOMAS HOWARD - Supervising Engineer 8 VICTORIA A. WHITNEY - Senior Engineer 9 DAVID G. CORNELIUS - Senior Water Resources Control Engineer 10 JIM CANADAY - Environmental Specialist 11 COUNSEL: 12 WILLIAM R. ATTWATER - Chief Counsel 13 WALTER PETTIT - Executive Director BARBARA LEIDIGH - Senior Staff Counsel 14 15 ---oOo--- 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 15909 1 REPRESENTATIVES 2 PRINCETON CODORA GLENN IRRIGATION DISTRICT, et al. 3 FROST, KRUP & ATLAS 4 134 West Sycamore STreet Willows, California 95988 5 BY: J. MARK ATLAS, ESQ. 6 JOINT WATER DISTRICTS: 7 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 8 Oroville, California 95965 BY: WILLIAM H. BABER, III, ESQ. 9 CALIFORNIA SPORTFISHING PROTECTION ALLIANCE: 10 ROBERT J. BAIOCCHI 11 P.O. Box 357 Quincy, California 95971 12 BELLA VISTA WATER DISTRICT: 13 BRUCE L. BELTON, ESQ. 14 2525 Park Marina Drive, Suite 102 Redding, California 96001 15 WESTLANDS WATER DISTRICT: 16 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 17 400 Capitol Mall, 27th Floor Sacramento, California 95814 18 BY: THOMAS W. BIRMINGHAM, ESQ. JOHN RUBIN, ESQ. 19 THE BAY INSTITUTE OF SAN FRANCISCO: 20 GRAY BOBKER 21 55 Shaver Street, Suite 330 San Rafael, California 94901 22 CITY OF ANTIOCH, et al.: 23 FREDERICK BOLD, JR., ESQ. 24 1201 California Street, Suite 1303 San Francisco, California 94109 25 CAPITOL REPORTERS (916) 923-5447 15910 1 REPRESENTATIVES 2 LEAGUE OF WOMEN VOTERS: 3 ROBERTA BORGONOVO 4 2480 Union Street San Francisco, California 94123 5 UNITED STATES DEPARTMENT OF THE INTERIOR: 6 OFFICE OF THE SOLICITOR 7 2800 Cottage Way, Roon E1712 Sacramento, California 95825 8 BY: ALF W. BRANDT, ESQ. 9 CALIFORNIA URBAN WATER AGENCIES: 10 BYRON M. BUCK 455 Capitol Mall, Suite 705 11 Sacramento, California 95814 12 RANCHO MURIETA COMMUNITY SERVICES DISTRICT: 13 MCDONOUGH, HOLLAND & ALLEN 555 Capitol Mall, 9th Floor 14 Sacramento, California 95814 BY: VIRGINIA A. CAHILL, ESQ. 15 CALIFORNIA DEPARTMENT OF FISH AND GAME: 16 OFFICE OF THE ATTORNEY GENERAL 17 1300 I Street, Suite 1101 Sacramento, California 95814 18 BY: MATTHEW CAMPBELL, ESQ. 19 NATURAL RESOURCES DEFENSE COUNCIL: 20 HAMILTON CANDEE, ESQ. 71 Stevenson Street 21 San Francisco, California 94105 22 ARVIN-EDISON WATER STORAGE DISTRICT, et al.: 23 DOOLEY HERR & WILLIAMS 3500 West Mineral King Avenue, Suite C 24 Visalia, California 93191 BY: DANIEL M. DOOLEY, ESQ. 25 CAPITOL REPORTERS (916) 923-5447 15911 1 REPRESENTATIVES 2 SACRAMENTO MUNICIPAL UTILITY DISTRICT: 3 LESLIE A. DUNSWORTH, ESQ. 4 6201 S Street Sacramento, California 95817 5 SOUTH SAN JOAQUIN IRRIGATION DISTRICT, et al.: 6 BRAY, GEIGER, RUDQUIST & NUSS 7 311 East Main Street, 4th Floor Stockton, California 95202 8 BY: STEVEN P. EMRICK, ESQ. 9 EAST BAY MUNICIPAL UTILITY DISTRICT: 10 EBMUD OFFICE OF GENERAL COUNSEL 375 Eleventh Street 11 Oakland, California 94623 BY: FRED ETHERIDGE, ESQ. 12 GOLDEN GATE AUDUBON SOCIETY: 13 ARTHUR FEINSTEIN 14 2530 San Pablo Avenue, Suite G Berkeley, California 94702 15 CONAWAY CONSERVANCY GROUP: 16 UREMOVIC & FELGER 17 P.O. Box 5654 Fresno, California 93755 18 BY: WARREN P. FELGER, ESQ. 19 THOMES CREEK WATER ASSOCIATION: 20 THOMES CREEK WATERSHED ASSOCIATION P.O. Box 2365 21 Flournoy, California 96029 BY: LOIS FLYNNE 22 COURT APPOINTED REPS OF WESTLANDS WD AREA 1, et al.: 23 LAW OFFICES OF SMILAND & KHACHIGIAN 24 601 West Fifth Street, Seventh Floor Los Angeles, California 90075 25 BY: CHRISTOPHER G. FOSTER, ESQ. CAPITOL REPORTERS (916) 923-5447 15912 1 REPRESENTATIVES 2 CITY AND COUNTY OF SAN FRANCISCO: 3 OFFICE OF THE CITY ATTORNEY 4 1390 Market Street, Sixth Floor San Francisco, California 94102 5 BY: DONN W. FURMAN, ESQ. 6 CAMP FAR WEST IRRIGATION DISTRICT, et al.: 7 DANIEL F. GALLERY, ESQ. 926 J Street, Suite 505 8 Sacramento, California 95814 9 BOSTON RANCH COMPANY, et al.: 10 J.B. BOSWELL COMPANY 101 West Walnut Street 11 Pasadena, California 91103 BY: EDWARD G. GIERMANN 12 SAN JOAQUIN RIVER GROUP AUTHORITY, et al.: 13 GRIFFIN, MASUDA & GODWIN 14 517 East Olive Street Turlock, California 95381 15 BY: ARTHUR F. GODWIN, ESQ. 16 NORTHERN CALIFORNIA WATER ASSOCIATION: 17 RICHARD GOLB 455 Capitol Mall, Suite 335 18 Sacramento, California 95814 19 PLACER COUNTY WATER AGENCY, et al.: 20 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Capitol Mall, 27th Floor 21 Sacramento, California 95814 BY: JANET GOLDSMITH, ESQ. 22 ENVIRONMENTAL DEFENSE FUND: 23 THOMAS J. GRAFF, ESQ. 24 5655 College Avenue, Suite 304 Oakland, California 94618 25 CAPITOL REPORTERS (916) 923-5447 15913 1 REPRESENTATIVES 2 CALAVERAS COUNTY WATER DISTRICT: 3 SIMON GRANVILLE 4 P.O. Box 846 San Andreas, California 95249 5 CHOWCHILLA WATER DISTRICT, et al.: 6 GREEN, GREEN & RIGBY 7 P.O. Box 1019 Madera, California 93639 8 BY: DENSLOW GREEN, ESQ. 9 CALIFORNIA FARM BUREAU FEDERATION: 10 DAVID J. GUY, ESQ. 2300 River Plaza Drive 11 Sacramento, California 95833 12 SANTA CLARA VALLEY WATER DISTRICT: 13 MORRISON & FORESTER 755 Page Mill Road 14 Palo Alto, California 94303 BY: KEVIN T. HAROFF, ESQ. 15 CITY OF SHASTA LAKE: 16 ALAN N. HARVEY 17 P.O. Box 777 Shasta Lake, California 96019 18 COUNTY OF STANISLAUS: 19 MICHAEL G. HEATON, ESQ. 20 926 J Street Sacramento, California 95814 21 GORRILL LAND COMPANY: 22 GORRILL LAND COMPANY 23 P.O. Box 427 Durham, California 95938 24 BY: DON HEFFREN 25 CAPITOL REPORTERS (916) 923-5447 15914 1 REPRESENTATIVES 2 SOUTH DELTA WATER AGENCY: 3 JOHN HERRICK, ESQ. 4 3031 West March Lane, Suite 332 East Stockton, California 95267 5 COUNTY OF GLENN: 6 NORMAN Y. HERRING 7 525 West Sycamore Street Willows, California 95988 8 REGIONAL COUNCIL OF RURAL COUNTIES: 9 MICHAEL B. JACKSON 10 1020 Twelfth Street, Suite 400 Sacramento, California 95814 11 DEER CREEK WATERSHED CONSERVANCY: 12 JULIE KELLY 13 P.O. Box 307 Vina, California 96092 14 DELTA TRIBUTARY AGENCIES COMMITTEE: 15 MODESTO IRRIGATION DISTRICT 16 P.O. Box 4060 Modesto, California 95352 17 BY: BILL KETSCHER 18 SAVE THE SAN FRANCISCO BAY ASSOCIATION: 19 SAVE THE BAY 1736 Franklin Street 20 Oakland, California 94612 BY: CYNTHIA L. KOEHLER, ESQ. 21 BATTLE CREEK WATERSHED LANDOWNERS: 22 BATTLE CREEK WATERSHED CONSERVANCY 23 P.O. Box 606 Manton, California 96059 24 25 CAPITOL REPORTERS (916) 923-5447 15915 1 REPRESENTATIVES 2 BUTTE SINK WATERFOWL ASSOCIATION, et al.: 3 MARTHA H. LENNIHAN, ESQ. 4 455 Capitol Mall, Suite 300 Sacramento, California 95814 5 CITY OF YUBA CITY: 6 WILLIAM P. LEWIS 7 1201 Civic Center Drive Yuba City, California 95993 8 BROWNS VALLEY IRRIGTAION DISTRICT, et al.: 9 BARTKIEWICZ, KRONICK & SHANAHAN 10 1011 22nd Street, Suite 100 Sacramento, California 95816 11 BY: ALAN B. LILLY, ESQ. 12 CONTRA COSTA WATER DISTRICT: 13 BOLD, POLISNER, MADDOW, NELSON & JUDSON 500 Ygnacio Valley Road, Suite 325 14 Walnut Creek, California 94596 BY: ROBERT B. MADDOW, ESQ. 15 GRASSLAND WATER DISTRICT: 16 DON MARCIOCHI 17 22759 South Mercey Springs Road Los Banos, California 93635 18 SAN LUIS CANAL COMPANY: 19 FLANAGAN, MASON, ROBBINS & GNASS 20 3351 North M Street, Suite 100 Merced, California 95344 21 BY: MIICHAEL L. MASON, ESQ. 22 STONY CREEK BUSINESS AND LAND OWNERS COALITION: 23 R.W. MCCOMAS 4150 County Road K 24 Orland, California 95963 25 CAPITOL REPORTERS (916) 923-5447 15916 1 REPRESENTATIVES 2 TRI-DAM POWER AUTHORITY: 3 TUOLUMNE UTILITIES DISTRICT 4 P.O. Box 3728 Sonora, California 95730 5 BY: TIM MCCULLOUGH 6 DELANO-EARLIMART IRRIGATION DISTRICT, et al.: 7 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 8 Oroville, California 95965 BY: JEFFREY A. MEITH, ESQ. 9 HUMANE FARMING ASSOCIATION: 10 BRADLEY S. MILLER. 11 1550 California Street, Suite 6 San Francisco, California 94109 12 CORDUA IRRIGATION DISTRICT, et al.: 13 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 14 P.O. Box 1679 Oroville, California 95965 15 BY: PAUL R. MINASIAN, ESQ. 16 EL DORADO COUNTY WATER AGENCY: 17 DE CUIR & SOMACH 400 Capitol Mall, Suite 1900 18 Sacramento, California 95814 BY: DONALD B. MOONEY, ESQ. 19 GLENN COUNTY FARM BUREAU: 20 STEVE MORA 21 501 Walker Street Orland, California 95963 22 MODESTO IRRIGATION DISTRICT: 23 JOEL MOSKOWITZ 24 P.O. Box 4060 Modesto, California 95352 25 CAPITOL REPORTERS (916) 923-5447 15917 1 REPRESENTATIVES 2 PACIFIC GAS & ELECTRIC: 3 RICHARD H. MOSS, ESQ. 4 P.O. Box 7442 San Francisco, California 94120 5 CENTRAL DELTA WATER AGENCY, et al.: 6 NOMELLINI, GRILLI & MCDANIEL 7 P.O. Box 1461 Stockton, California 95201 8 BY: DANTE JOHN NOMELLINI, ESQ. and 9 DANTE JOHN NOMELLINI, JR., ESQ. 10 TULARE LAKE BASIN WATER STORAGE UNIT: 11 MICHAEL NORDSTROM 1100 Whitney Avenue 12 Corcoran, California 93212 13 AKIN RANCH, et al.: 14 DOWNEY, BRAND, SEYMOUR & ROHWER 555 Capitol Mall, 10th Floor 15 Sacramento, California 95814 BY: KEVIN M. O'BRIEN, ESQ. 16 OAKDALE IRRIGATION DISTRICT: 17 O'LAUGHLIN & PARIS 18 870 Manzanita Court, Suite B Chico, California 95926 19 BY: TIM O'LAUGHLIN, ESQ. 20 SIERRA CLUB: 21 JENNA OLSEN 85 Second Street, 2nd Floor 22 San Francisco, California 94105 23 YOLO COUNTY BOARD OF SUPERVISORS: 24 LYNNEL POLLOCK 625 Court Street 25 Woodland, California 95695 CAPITOL REPORTERS (916) 923-5447 15918 1 REPRESENTATIVES 2 PATRICK PORGENS & ASSOCIATES: 3 PATRICK PORGENS 4 P.O. Box 60940 Sacramento, California 95860 5 BROADVIEW WATER DISTRICT, et al.: 6 DIANE RATHMANN 7 P.O. Box 156 Dos Palos, California 93620 8 FRIENDS OF THE RIVER: 9 BETSY REIFSNIDER 10 128 J Street, 2nd Floor Sacramento, California 95814 11 MERCED IRRIGATION DISTRICT: 12 FLANAGAN, MASON, ROBBINS & GNASS 13 P.O. Box 2067 Merced, California 95344 14 BY: KENNETH M. ROBBINS, ESQ. 15 CENTRAL SAN JOAQUIN WATER CONSERVATION DISTRICT: 16 REID W. ROBERTS, ESQ. 311 East Main Street, Suite 202 17 Stockton, California 95202 18 METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA: 19 JAMES F. ROBERTS P.O. Box 54153 20 Los Angeles, California 90054 21 SACRAMENTO AREA WATER FORUM: 22 CITY OF SACRAMENTO 980 9th Street, 10th Floor 23 Sacramento, California 95814 BY: JOSEPH ROBINSON, ESQ. 24 25 CAPITOL REPORTERS (916) 923-5447 15919 1 REPRESENTATIVES 2 TUOLUMNE RIVER PRESERVATION TRUST: 3 NATURAL HERITAGE INSTITUTE 4 114 Sansome Street, Suite 1200 San Francisco, California 94194 5 BY: RICHARD ROOS-COLLINS, ESQ. 6 CALIFORNIA DEPARTMENT OF WATER RESOURCES: 7 DAVID A. SANDINO, ESQ. P.O. Box 942836 8 Sacramento, California 94236 9 FRIANT WATER USERS AUTHORITY: 10 GARY W. SAWYERS, ESQ. 575 East Alluvial, Suite 101 11 Fresno, California 93720 12 KERN COUNTY WATER AGENCY: 13 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Captiol Mall, 27th Floor 14 Sacramento, California 95814 BY: CLIFFORD W. SCHULZ, ESQ. 15 SAN JOAQUIN RIVER EXCHANGE CONTRACTORS: 16 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 17 P.O. Box 1679 Oroville, California 95965 18 BY: MICHAEL V. SEXTON, ESQ. 19 SAN JOAQUIN COUNTY: 20 NEUMILLER & BEARDSLEE P.O. Box 20 21 Stockton, California 95203 BY: THOMAS J. SHEPHARD, SR., ESQ. 22 CITY OF STOCKTON: 23 DE CUIR & SOMACH 24 400 Capitol Mall, Suite 1900 Sacramento, California 95814 25 BY: PAUL S. SIMMONS, ESQ. CAPITOL REPORTERS (916) 923-5447 15920 1 REPRESENTATIVES 2 ORLAND UNIT WATER USERS' ASSOCIATION: 3 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 4 Oroville, California 95965 BY: M. ANTHONY SOARES, ESQ. 5 GLENN-COLUSA IRRIGATION DISTRICT: 6 DE CUIR & SOMACH 7 400 Capitol Mall, Suite 1900 Sacramento, California 95814 8 BY: STUART L. SOMACH, ESQ. 9 NORTH SAN JOAQUIN WATER CONSERVATION DISTRICT: 10 JAMES F. SORENSEN CONSULTING CIVIL ENGINEER, INC.: 209 South Locust Street 11 Visalia, California 93279 BY: JAMES F. SORENSEN 12 PARADISE IRRIGATION DISTRICT: 13 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 14 P.O. Box 1679 Oroville, California 95965 15 BY: WILLIAM H. SPRUANCE, ESQ. 16 COUNTY OF COLUSA: 17 DONALD F. STANTON, ESQ. 1213 Market Street 18 Colusa, California 95932 19 COUNTY OF TRINITY: 20 COUNTY OF TRINITY - NATURAL RESOURCES P.O. Box 156 21 Hayfork, California 96041 BY: TOM STOKELY 22 CITY OF REDDING: 23 JEFFERY J. SWANSON, ESQ. 24 2515 Park Marina Drive, Suite 102 Redding, California 96001 25 CAPITOL REPORTERS (916) 923-5447 15921 1 REPRESENTATIVES 2 TULARE IRRIGATION DISTRICT: 3 TEHEMA COUNTY RESOURCE CONSERVATION DISTRICT 2 Sutter Street, Suite D 4 Red Bluff, California 96080 BY: ERNEST E. WHITE 5 STATE WATER CONTRACTORS: 6 BEST BEST & KREIGER 7 P.O. Box 1028 Riverside, California 92502 8 BY: ERIC GARNER, ESQ. 9 COUTNY OF TEHEMA, et al.: 10 COUNTY OF TEHEMA BOARD OF SUPERVISORS P.O. Box 250 11 Red Bluff, California 96080 BY: CHARLES H. WILLARD 12 MOUNTAIN COUNTIES WATER RESOURCES ASSOCIATION: 13 CHRISTOPHER D. WILLIAMS 14 P.O. Box 667 San Andreas, California 95249 15 JACKSON VALLEY IRRIGATION DISTRICT: 16 HENRY WILLY 17 6755 Lake Amador Drive Ione, California 95640 18 SOLANO COUNTY WATER AGENCY, et al.: 19 HERUM, CRABTREE, DYER, ZOLEZZI & TERPSTRA 20 2291 West March Lane, S.B. 100 Stockton, California 95207 21 BY: JEANNE M. ZOLEZZI, ESQ. 22 WESTLANDS ENCROACHMENT AND EXPANSION LANDOWNERS: 23 BAKER, MANOCK & JENSEN 5260 North Palm Avenue 24 Fresno, California 93704 BY: CHRISTOPHER L. CAMPBELL, ESQ. 25 CAPITOL REPORTERS (916) 923-5447 15922 1 REPRESENTATIVES 2 SAN LUIS WATER DISTRICT: 3 LINNEMAN, BURGES, TELLES, VAN ATTA 1820 Marguerite Street 4 Dos Palos, California 93620 BY: THOMAS J. KEENE, ESQ. 5 6 ---oOo--- 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 15923 1 I N D E X 2 ---oOo--- 3 4 PAGE 5 OPENING OF HEARING 15925 6 AFTERNOON SESSION 16027 7 END OF PROCEEDINGS 16096 8 CROSS-EXAMINATION OF SAN JOAQUIN RIVER GROUP AUTHORITY: 9 MR. HERRICK 15925 10 BY THE BOARD 15935 11 REDIRECT EXAMINATION OF SAN JOAQUIN RIVER GROUP AUTHORITY: 12 MR. O'LAUGHLIN 15936 13 RECROSS-EXAMINATION OF THE SAN JOAQUIN RIVER GROUP AUTHORITY: 14 MR. NOMELLINI 15944 15 THE BOARD 15951 16 DIRECT EXAMINATION OF SOUTH DELTA WATER AGENCY: 17 PANEL: 18 ALEX HILDEBRAND 15989 19 CROSS-EXAMINATION OF SOUTH DELTA WATER AGENCY: 20 MR. RENNER 16010 MR. GODWIN 16013 21 MR. O'LAUGHLIN 16030 22 REDIRECT EXAMINATION OF SOUTH DELTA WATER AGENCY: 23 MR. HERRICK 16086 24 RECROSS-EXAMINATION OF SOUTH DELTA WATER AGENCY: 25 MR. GODWIN 16088 CAPITOL REPORTERS (916) 923-5447 15924 1 THURSDAY, JUNE 24, 1999, 9:00 A.M. 2 SACRAMENTO, CALIFORNIA 3 ---oOo--- 4 C.O. STUBCHAER: Good morning. We'll reconvene the 5 Bay-Delta Hearing. Good morning, Mr. Burke, Mr. Brandt. 6 Cross-examination of Mr. Burke by Mr. Herrick. 7 ---oOo--- 8 CROSS-EXAMINATION OF THE SAN JOAQUIN 9 RIVER GROUP AUTHORITY 10 BY SOUTH DELTA WATER AGENCY 11 BY MR. HERRICK 12 MR. HERRICK: Thank you, Mr. Chairman, Board 13 Members. John Herrick for the South Delta Water Agency. 14 Mr. Burke, I just want to clarify a few things. 15 On Exhibit SJRGA 115-A, which are those three colored 16 charts, on Page 2, did you say that the blue shaded 17 amounts of water on the uppermost chart, which are the 18 VAMP flows, include the 1500 cfs coming out of the 19 Stanislaus River? 20 MR. BURKE: No, it does not. The Stanislaus River 21 flows are included in the gray shaded portion. 22 MR. HERRICK: Thank you. I misunderstood that from 23 your earlier testimony. Also as clarification, I believe 24 in answer to questions by Mr. Nomellini, you talked about 25 not anticipating there being purchases in excess of CAPITOL REPORTERS (916) 923-5447 15925 1 157,000 acre-feet in a year. Do you remember that? 2 MR. BURKE: Yes.. 3 MR. HERRICK: Could you clarify that, what you meant 4 by that, is that some upper limit you surmised from the 5 potential flows under VAMP, or something different than 6 that? 7 MR. BURKE: Yes. The construction of the agreement 8 defines thresholds of flow that are -- that become target 9 flows. And the maximum potential additional water that 10 needs to be added to the existing flow in the agreement is 11 157,000 acre-feet. 12 MR. HERRICK: Okay. And let me walk you through 13 something, because I'm not sure I follow that. This year 14 existing flows were somewhere above 4,000 cfs; is that 15 correct? 16 MR. BURKE: Correct. 17 MR. HERRICK: But a double step only put the target 18 flow up to 7,000; is that correct? 19 MR. BURKE: That's correct. 20 MR. HERRICK: And, in fact, it actually took, what, 21 140,000 acre-feet approximately to go from that flow above 22 4,000 to the target flow; is that correct? 23 MR. BURKE: Correct. 24 MR. HERRICK: Now, if we go to the existing flow 25 under the San Joaquin proposal in the 2,000 cfs range, is CAPITOL REPORTERS (916) 923-5447 15926 1 it possible that you could have a double step in a year 2 when the existing flow is 2,000 feet, if you know? 3 MR. BURKE: It is possible. 4 MR. HERRICK: Okay. And if you had to go from 2,000 5 on a double step, that would put you up to 5700 cfs; isn't 6 that correct? 7 MR. BURKE: 2,000 and a double step would put you up 8 to 4000.50, I believe. 9 MR. HERRICK: Okay. Thank you. Lastly, back to 10 Page 2 of San Joaquin River Group Authority 115-A -- 11 excuse me if I'm beating a dead horse here -- but did you 12 state in earlier testimony that you did not know the 13 purpose of those releases labeled "excess flow"? 14 MR. BURKE: I believe that I answered that I did not 15 know the purpose of that portion of the release on the 16 Tuolumne River chart that begins after the 31-day pulse 17 period, that is correct. I don't know the purpose of 18 those flows. 19 MR. HERRICK: Okay. And how did you get 20 information -- or what was the information you got to 21 develop these charts that indicated there was an excess 22 flow in that time period? 23 MR. BURKE: The information included two things. 24 First of all, the measured flow at La Grange, which 25 information I got from the BDAC database. And the gray CAPITOL REPORTERS (916) 923-5447 15927 1 shaded portion of the chart was a schedule flow that I had 2 been using, I believe, for quite some time, since we first 3 developed the daily forecast of operations. And that flow 4 I believe is a minimum schedule flow that's supposed to 5 occur after the end of the 31-day pulse flow. 6 MR. HERRICK: And when you say "that flow," you're 7 referring to the gray part, not the excess flow part? 8 MR. BURKE: Yes, the gray part. 9 MR. HERRICK: So what you had was data that showed 10 flow above what you believed was the minimum amount 11 necessary for release from that dam? 12 MR. BURKE: That's correct. 13 MR. HERRICK: Now, when you label the blue parts on 14 both the Merced River and the Tuolumne River charts, you 15 labeled those "VAMP flows," correct? 16 MR. BURKE: Yes. 17 MR. HERRICK: And you told us yesterday that that 18 water comes out of storage; is that correct? 19 MR. BURKE: That's correct. 20 MR. HERRICK: And when you say "comes out of 21 storage," are you making that determination because the 22 outflow from the dam is greater than the inflow? 23 MR. BURKE: No. To clarify that, when I said that 24 it comes out of storage, it's as opposed to flows that 25 would have had to come out based on the flood control CAPITOL REPORTERS (916) 923-5447 15928 1 criteria, or flows that were simply displaced in time that 2 we would term reoperation. 3 In this case, in-year flows came out of storage. 4 When you compare the storage at the end of the year to the 5 storage that would have occurred had these flows not been 6 made, it shows up as a differential equal to the amount of 7 the shaded blue area. 8 MR. HERRICK: And when you say "at the end of the 9 year," is that September 31st that you're referring to? 10 MR. BURKE: End of September, yes. 11 MR. HERRICK: So it's your testimony that the VAMP 12 water -- excuse me. Let me back up. 13 So it's your testimony that the two reservoirs, 14 the one on the Merced and the one on Tuolumne, at the end 15 of the year they are -- the VAMP flow amounts lower than 16 what they're required to have for flood control purposes? 17 MR. BURKE: Actually, the VAMP -- the blue shaded 18 area, the volume associated with that blue shaded area is 19 the differential in storage that will have occurred at the 20 end of this year. Not necessarily the difference between 21 the flood control criteria and the actual storage, but the 22 difference between the actual storage and a theoretical 23 amount of storage that would exist had these flows not 24 been released. 25 MR. HERRICK: Okay. I don't follow that CAPITOL REPORTERS (916) 923-5447 15929 1 necessarily. Let me ask a different question. Is it 2 your -- or do you know whether or not this storage, in 3 either of these reservoirs, would have been at the maximum 4 allowed amount in light of flood control requirements? 5 MR. BURKE: The answer to that is, no, they would 6 not have been. My understanding is that they would not 7 have been at the maximum amount at any time after the 8 pulse flows had been made. 9 MR. HERRICK: Okay. And you don't know whether or 10 not, turning to the Tuolumne chart there, the excess flow 11 you have shown between April 1st and April, approximately, 12 14th or 13th, you don't know the purpose of that excess 13 flow? 14 MR. BURKE: I do know the purpose of that excess 15 flow. In that case, a portion of that excess flow was 16 released under the flood control criteria. However, an 17 additional question, the increased rate of release that 18 occurred in early April was an early release of excess 19 flows in order to provide a slight cushion of storage 20 below the defined flood control threshold for the purpose 21 of increasing the likelihood that scheduled flows that 22 were to occur during the 31-day pulse would actually be 23 able to be maintained. 24 In other words, some extra space was provided in 25 the reservoir in order to avoid the risk that a very CAPITOL REPORTERS (916) 923-5447 15930 1 slight increase in inflow would have to be passed through 2 downstream at a time when it would create a need to modify 3 a scheduled flow threshold. 4 MR. HERRICK: So on the Tuolumne is the reservoir 5 gaining or losing water during the event of the pulse 6 flow? 7 MR. BURKE: I don't have that information. 8 MR. HERRICK: Okay. Let's go back to the 9 hypothetical that was discussed yesterday, and that is: 10 You have a reservoir and you evacuated 100,000 acre-feet 11 during the pulse flow period. Do you recall that? 12 MR. BURKE: Yes. 13 MR. HERRICK: And there was various discussions and 14 provisions of what could and couldn't happen. One of the 15 possibilities is that that extra reservoir space is 16 refilled in a flood year; is that correct? 17 MR. BURKE: Correct. 18 MR. HERRICK: Would you agree that another 19 possibility is a portion of that space is refilled in 20 nonflood years? 21 MR. BURKE: I would acknowledge that that's a 22 possibility, but I don't believe I could describe a 23 mechanism by which that could happen. 24 MR. HERRICK: Well, if that dam operator would have 25 kept 100,000 acre-feet in the dam and then you have a CAPITOL REPORTERS (916) 923-5447 15931 1 normal year in flow releases for consumptive use, wouldn't 2 he be able to -- excuse me, in the absence of the 3 evacuation of that 100,000 acre-feet, he would be letting 4 flow pass through because he can't store it anymore; 5 wouldn't that be correct? 6 MR. BURKE: Yes. 7 MR. HERRICK: Okay. And if you do take out that 8 100,000 acre-feet in that same year then you could be 9 refilling part of that in that year with the water that 10 would have gone downstream in the absence of that 11 evacuation; is that correct? 12 MR. BURKE: That's correct. 13 MR. HERRICK: Now, in that circumstance, there would 14 have been some time during the year when that flow would 15 have gone down river rather than be applied to recover 16 part of that evacuated 100,000 acre-feet; is that correct? 17 MR. BURKE: That's correct. 18 MR. HERRICK: Now, one of the possibilities is in 19 that situation that that water that is no longer flowing 20 downstream would have contributed to such things as X2 or 21 Delta outflow; is that correct? 22 MR. BURKE: It's possible, yes. 23 MR. HERRICK: And it could have also contributed to 24 the meeting of a salinity standard somewhere downstream; 25 is that correct? CAPITOL REPORTERS (916) 923-5447 15932 1 MR. BURKE: That's correct. 2 MR. HERRICK: Whether or not those are required 3 releases, it could have contributed to those purposes; is 4 that correct? 5 MR. BURKE: Agree. 6 MR. HERRICK: And one of those purposes could have 7 been to provide transport flow for outmigrating smolts in 8 times other than the pulse flow period; is that correct? 9 MR. BURKE: Yes, that's possible. 10 MR. HERRICK: And if other reservoirs try to make up 11 for this decrease in flow, if they had to and that's an 12 assumption, those reservoirs would then have a decrease in 13 the amount of water they had available for other uses; 14 would that be correct? 15 MR. BURKE: That's possible. 16 MR. HERRICK: Okay. And so by evacuating 100,000 17 acre-feet, although under some circumstances it may be 18 possible to recoup that without hurting somebody, it's 19 also possible that the recoup of that water actually harms 20 some other reservoir or its delivered capacity; is that 21 correct? 22 MR. BURKE: That's correct. 23 MR. HERRICK: Mr. Burke, in the absence -- well, let 24 me put it this way: Mr. Burke, until a year of flood flow 25 occurs is there any increased risk to users of the water CAPITOL REPORTERS (916) 923-5447 15933 1 stored behind that hypothetical dam? 2 MR. BURKE: Because of the fact that you decrease 3 the storage, until you refill that storage, I would say 4 that there is some margin of increased risk to water 5 supply. 6 MR. HERRICK: And would you agree because of the 7 potential effects that we just discussed previous to that 8 question, that you also may be increasing the risk on 9 users in other reservoirs? 10 MR. BURKE: Given the system that we have, it is 11 possible. 12 MR. HERRICK: So it's actually possible that if that 13 water had contributed -- in the absence of the previous 14 evacuation, if that water had contributed to, say, X2, 15 actually, some system pretty far away might have to make 16 that up; is that correct? 17 MR. BURKE: It's possible. 18 MR. HERRICK: So the users from that system would 19 have some degree of increased risk in the event of 100,000 20 acre-foot evacuation of the dam we were talking about? 21 MR. BURKE: It is possible. 22 MR. HERRICK: I have no further questions. Thank 23 you very much. 24 C.O. STUBCHAER: Mr. Herrick. 25 Staff have any questions? CAPITOL REPORTERS (916) 923-5447 15934 1 MR. HOWARD: No. 2 MS. LEIDIGH: No questions. 3 C.O. STUBCHAER: Mr. Brown? 4 ---oOo--- 5 CROSS-EXAMINATION OF THE SAN JOAQUIN RIVER GROUP AUTHORITY 6 BY THE BOARD 7 C.O. BROWN: Just a general one, Mr. Burke. You're 8 familiar with storage versus yield curves, dams? 9 MR. BURKE: Yes. 10 C.O. BROWN: And cost versus yield? 11 MR. BURKE: Yes. 12 C.O. BROWN: I guess the bottom line what we're 13 talking about here is: Do the larger reservoirs under 14 normal design standards conserve more water per yield, 15 safe yield, than do smaller ones? 16 MR. BURKE: In general, yes. 17 C.O. BROWN: That's all, Mr. Chairman. 18 C.O. STUBCHAER: Mr. Burke, regarding reservoir 19 yield, risks, things like that, have you done reservoir 20 yield studies? 21 MR. BURKE: No, I haven't. 22 C.O. STUBCHAER: All right. Well, it's my 23 understanding that for a given size reservoir with given 24 hydrology -- and this is a simple reservoir not a 25 particular one, but just a simple reservoir -- the draft CAPITOL REPORTERS (916) 923-5447 15935 1 on the reservoir is adjusted until at the end of a 2 critical drought period the minimum pool is reached. 3 Would that make sense to you? 4 MR. BURKE: Yes. 5 C.O. STUBCHAER: And if the draft on the reservoir 6 is increased above safe yield, the average yield may 7 increase but there's the risk that was just discussed by 8 Mr. Herrick at the end of the critical drought period that 9 there would not be water to make the normal delivery. 10 Would that make sense? 11 MR. BURKE: I would agree with that. 12 C.O. STUBCHAER: So by taking more than the safe 13 yield of a reservoir, you can increase the average yield 14 which could be considered new water above the safe yield 15 at a price and that price is the risk, would that make 16 sense? 17 MR. BURKE: Yes. 18 C.O. STUBCHAER: Okay. Thank you. Let's see, is 19 there any redirect of Mr. Burke? 20 MR. O'LAUGHLIN: Yes. 21 ---oOo--- 22 REDIRECT EXAMINATION OF THE SAN JOAQUIN 23 RIVER GROUP AUTHORITY 24 BY MR. O'LAUGHLIN 25 MR. O'LAUGHLIN: Mr. Burke, you were asked several CAPITOL REPORTERS (916) 923-5447 15936 1 questions by Mr. Nomellini yesterday in regards to other 2 contributions of flow from CVP facilities on the San 3 Joaquin River. 4 If the total VAMP contribution from the Exchange 5 Contractors, Merced Irrigation District, Modesto 6 Irrigation District and Turlock Irrigation District was 7 140,000 acre-feet and let's say that that amount of water 8 was not made available by those entities but was made 9 available by the Friant Unit, do you have any idea how 10 much total water would have to be released from the Friant 11 Unit in order to make 140,000 acre-feet of water available 12 at Vernalis? 13 MR. BURKE: I hesitate to speculate an exact 14 quantity, but an amount much greater than 140,000 15 acre-feet, because of the very high and significant losses 16 that would be experienced en route. 17 MR. O'LAUGHLIN: Now, one of the problems you've 18 identified in 1999 in regards to operations with trying to 19 meet a flow requirement and maintain it at Vernalis was 20 that your accretions were changing on a daily basis; is 21 that correct? 22 MR. BURKE: Correct. 23 MR. O'LAUGHLIN: Now, what is the lag time if water 24 is released from the Friant Unit to Vernalis on the San 25 Joaquin River? CAPITOL REPORTERS (916) 923-5447 15937 1 MR. BURKE: During high flow periods it's probably 2 seven or eight days; under lower flow conditions it is 3 going to be even longer than that. 4 MR. O'LAUGHLIN: All right. So if you have a 5 change -- and looking at this chart 115-A -- and you 6 wanted to try and reach a target flow of 7,000 cfs and 7 there was a change of 500 or 700 csf in accretions, it's 8 going to take seven or eight days of lag time, minimum, to 9 get water from the Friant Unit to Vernalis to make up that 10 deficit and meet a target flow; is that correct? 11 MR. BURKE: That's correct. 12 MR. O'LAUGHLIN: Okay. Do you feel fairly 13 comfortable changing cfs into acre-feet, Mr. Burke? 14 MR. BURKE: Yes. 15 MR. O'LAUGHLIN: And we don't have to do it 16 precisely, I always use two as a good round number. 17 During this 31-day pulse flow period 140,000 acre-feet of 18 water were made available by the entities within the San 19 Joaquin River Group Authority on average, on average, what 20 does that realize in total cfs? 21 MR. BURKE: It's about 2300 cfs. 22 MR. O'LAUGHLIN: Now, let's pick a day. Well, let's 23 pick a day where -- well, let me ask you some other 24 questions, some foundational questions first. Sorry. 25 If water is pumped into the Delta-Mendota Canal CAPITOL REPORTERS (916) 923-5447 15938 1 and is moved down the Delta-Mendota Canal and then it's 2 deposited into the Newman Wasteway and then is to appear 3 at Vernalis, do you have any idea how long that time 4 period would take for that body of water to move through 5 the DMC, be pumped, move through the DMC, down the Newman 6 Wasteway and get to Vernalis? 7 MR. BURKE: Probably three or four days. 8 MR. O'LAUGHLIN: Okay. Now, in regards to questions 9 by Mr. Nomellini in regards to using the DMC as a facility 10 to make water available for the Vernalis pulse flow, if -- 11 and we can look at your chart here -- if we picked a day, 12 let's pick -- April 17th looks like a good day, April 16th 13 or 17th. It appears that we have about 5,000 -- roughly 14 5,000 cfs of base flow in the river; is that correct? 15 MR. BRANDT: I'm sorry. Which chart is this? 16 MR. O'LAUGHLIN: 115-A, the front page. And I'm 17 going to use April 17th. It looks roughly to be about 18 5,000 cfs in the river. Okay. 19 Now, in order to get to the 7,000, then, on that 20 day, there would have had to be approximately 2,000 cfs 21 additional flow coming out of the DMC, down the Newman 22 Wasteway in order to make that up; is that correct, to get 23 to 7,000? 24 MR. BURKE: Agreed. 25 MR. O'LAUGHLIN: Okay. Now, if the pumping rates, CAPITOL REPORTERS (916) 923-5447 15939 1 which you've shown on your third sheet of 115-A, are 2 approximately on April 17th at or about -- they roughly 3 average about 3500 over that time period; is that correct? 4 MR. BURKE: They average about 3350, I believe. 5 MR. O'LAUGHLIN: So on this day if we were to try to 6 get 2,000 csf through the DMC, plus the 3500 of pumping 7 that is occurring at both facilities, would the Delta 8 smelt biological opinion be met in your opinion? 9 If you're pumping 2,000 cfs for running water 10 down the DMC plus an additional 3500 cfs to meet these 11 requirements, would you meet the Delta smelt biological 12 opinion? 13 MR. BURKE: Without changing the total pumping, the 14 combined pumping at Tracy and Clifton Court, without 15 changing the split of the pumping at Tracy and Clifton 16 Court it would be virtually impossible to meet that. 17 MR. O'LAUGHLIN: Okay. So in order to meet the 18 Delta smelt biological opinion if we were to run water 19 down the DMC and make it available at Vernalis, the 20 pumping that occurred this year of 3500 cfs would have to 21 be reduced by approximately, on average, 2,300 csf on 22 average, in order to make the pumping go through the DMC, 23 back down the San Joaquin River, pick it up and still meet 24 the Delta smelt biological opinion; is that correct? 25 MR. BURKE: That's correct. CAPITOL REPORTERS (916) 923-5447 15940 1 MR. O'LAUGHLIN: So, then, if we could, we could 2 probably identify an impact to CVP contractors this year 3 of a loss between the CVP and SWP of basically 140,000 4 acre-feet of water that otherwise was made available by 5 Merced, Turlock, Modesto and the San Joaquin River 6 Exchange Contractors; is that correct? 7 MR. BURKE: I agree. That's the case this year. 8 Clearly that would have been a loss. 9 MR. O'LAUGHLIN: I want to focus briefly on the 10 second page of 115-A and clear up one thing on the 11 Tuolumne River. Isn't it true to say that the excess 12 flows that we see there at the beginning of the chart, 13 from April 1st to April 15th, were done, in part, in order 14 to ensure that releases were made from the upstream dam so 15 that if a hydrologic event occurred that we would not have 16 excess water entering the stream in order to install the 17 Head of Old River Barrier? 18 MR. BURKE: That's correct. 19 MR. O'LAUGHLIN: So, actually, since the Head of Old 20 River Barrier wasn't installed, we could probably say that 21 those excess flows that were released really were even 22 additive to the 140,000 acre-feet of water that was made 23 available by the San Joaquin River Group Authority this 24 year; is that correct? 25 MR. BURKE: In what sense? CAPITOL REPORTERS (916) 923-5447 15941 1 MR. O'LAUGHLIN: I.e., they probably would not have 2 been released but for the fact in order to provide an 3 insurance net to make sure that the Head of Old River 4 Barrier would go in, if you know? 5 MR. BURKE: I would have to calculate, again, 6 whether those inflows could have been stored. I don't 7 believe I can answer that. 8 MR. O'LAUGHLIN: Okay. 9 MR. BURKE: Not with the information I have. 10 MR. O'LAUGHLIN: The last questions came from both 11 Mr. Nomellini and Herrick as to whether or not water above 12 the 150,000 acre-feet would likely be purchased in the 13 future. It's correct to say that this was a double bump 14 year, correct? 15 MR. BURKE: Yes. 16 MR. O'LAUGHLIN: That 7,020 cfs is the highest 17 number VAMP target flow; is that correct? 18 MR. BURKE: 7,000 cubic feet per second. 19 MR. O'LAUGHLIN: So in a worst-case scenario, New 20 Melones in a double bump year since we've had two 21 consecutive wet years, back-to-back, probably would be 22 releasing 1500 cfs under the Interim Ops Plan, correct? 23 MR. BURKE: Correct. 24 MR. O'LAUGHLIN: Okay. And since it's two wet 25 back-to-back years, you would expect to see the same FERC CAPITOL REPORTERS (916) 923-5447 15942 1 flows that we saw this year on the Tuolumne River; is that 2 correct, which totalled approximately 89,000 acre-feet? 3 MR. BURKE: Yes. 4 MR. O'LAUGHLIN: And that's roughly -- I know it's 5 ballpark number -- which is another 1500 cfs, correct? 6 MR. BURKE: Correct. 7 MR. O'LAUGHLIN: Okay. So if we subtract those two 8 from 7,000, that's 7,000 minus 1500 minus 1500 that gets 9 us down to 4,000 cfs and includes no contributions from 10 accretions and no contributions by the Merced River; is 11 that correct? 12 MR. BURKE: That's correct. 13 MR. O'LAUGHLIN: While it's mathematically possible 14 that flows may be needed above 157,000 acre-feet in this 15 type of year, it's not probable that that is going to 16 occur; is that correct? 17 MR. BURKE: I would agree, it's very improbable. 18 MR. O'LAUGHLIN: Thank you very much, Mr. Burke. I 19 have no further questions. 20 C.O. STUBCHAER: Thank you. Who wishes to recross 21 Mr. Burke? Mr. Nomellini only. 22 Please, come forward. 23 // 24 // 25 // CAPITOL REPORTERS (916) 923-5447 15943 1 ---oOo--- 2 RECROSS-EXAMINATION OF THE SAN JOAQUIN 3 RIVER GROUP AUTHORITY 4 BY THE CENTRAL DELTA PARTIES 5 BY MR. NOMELLINI 6 MR. NOMELLINI: Mr. Chairman, Members of the Board, 7 Dante John Nomellini for Central Delta Parties. 8 Mr. Burke, do you know how long it takes for 9 water from the Exchange Contractors under the San Joaquin 10 River Agreement to get to Vernalis? 11 MR. BURKE: In our accounting we assumed that from 12 the release points that were used it took three days. 13 MR. NOMELLINI: Okay. And in terms of sources of 14 water that could have been available to provide a pulse 15 flow, was water stored in San Luis Reservoir in the 16 account of the Bureau of Reclamation during the period of 17 April the 10th of 1999 through, roughly, May 15th of 1999? 18 MR. BURKE: During that time, water was generally 19 being withdrawn from storage in San Luis, federal share. 20 MR. NOMELLINI: All right. Do you know how much the 21 federal share of San Luis was on April 10th of 1999? 22 MR. BURKE: In an approximate sense it was near 23 full, which would be about 90 to 65,000 acre-feet. 24 MR. NOMELLINI: And, roughly, do you know what the 25 amount was on May 15th of 1999? CAPITOL REPORTERS (916) 923-5447 15944 1 MR. BURKE: I don't know, but I would say that it 2 was at that time significantly less than full. 3 MR. NOMELLINI: All right. But more than 140,000 4 cubic feet per second -- I mean acre-feet? 5 MR. BURKE: I can't answer that. 6 MR. NOMELLINI: In terms of your testimony as to 7 greater amounts needed to be released from Friant, if, in 8 fact, Friant water was used to meet the pulse flow, you 9 replied that substantially more than 140,000 would have to 10 be released; is that correct? 11 MR. BURKE: Yes. 12 MR. NOMELLINI: And you testified that there are 13 losses in the transport of water from Friant to Vernalis; 14 is that correct? 15 MR. BURKE: Yes. 16 MR. NOMELLINI: Do you know if those losses are to 17 usable groundwater supplies, or usable -- do they meet 18 beneficial needs? 19 MR. O'LAUGHLIN: Objection. Outside the scope of 20 the redirect. 21 MR. NOMELLINI: Well -- 22 C.O. STUBCHAER: Yes. 23 MR. NOMELLINI: Well, the redirect was -- may I 24 address that, Mr. Chairman? 25 C.O. STUBCHAER: Yes, certainly. CAPITOL REPORTERS (916) 923-5447 15945 1 MR. NOMELLINI: The redirect asked about the losses 2 in the transport of water from Friant to Vernalis. And 3 I'm crossing on that redirect. And I'm not going to spend 4 a lot of time. 5 C.O. STUBCHAER: Yes. 6 MR. NOMELLINI: I just wanted to know if this 7 witness considers that a loss to the system, or if it goes 8 to some other uses. 9 C.O. STUBCHAER: All right. The objection is 10 overruled. 11 MR. NOMELLINI: Can you answer that question? 12 MR. BURKE: Could you repeat it, please? 13 MR. NOMELLINI: Yeah. Do you know if the losses 14 that would be experienced in moving water from Friant to 15 Vernalis for the pulse flow are losses that would be to a 16 source of water for somebody else's beneficial use? 17 MR. BURKE: I would assume that in part, yes, it 18 could be for beneficial use. 19 MR. NOMELLINI: Okay. Would that be losses to 20 underground water supply, or underground basin that was 21 being utilized by farmers? 22 MR. BURKE: My understanding of the losses between 23 Friant and the Lower San Joaquin River is such that, yes, 24 I believe that there could be some beneficial use in terms 25 of groundwater storage en route. CAPITOL REPORTERS (916) 923-5447 15946 1 MR. NOMELLINI: Okay. If water was provided from 2 San Luis Reservoir to the San Joaquin River for the 3 purpose of a pulse flow in the period of roughly April 4 15th to May 15th, would that necessitate an increase in 5 pumping at the Delta Tracy pumping plant during that same 6 period? 7 MR. BURKE: The criteria by which we operated this 8 spring would not have permitted an increase in pumping 9 during that time. The answer to that is that if the 10 source of water were to have been water pumped from the 11 Delta, that could only have done -- been done this year by 12 either increasing the Delta pumping and compromising the 13 objective export, or by withdrawing additional water from 14 San Luis. 15 MR. NOMELLINI: All right. Let's assume we withdraw 16 the water from San Luis. You would agree, that would not 17 require additional pumping during the April 15th through 18 May 15th period of this year? 19 MR. BURKE: Yes. 20 MR. NOMELLINI: Okay. And the question then would 21 be: Whether or not a water contractor of the Bureau would 22 be deprived of a supply of water because of that 23 extraction, is that what you were saying in response to 24 Mr. O'Laughlin? 25 MR. BURKE: Yes. My answer was that this year there CAPITOL REPORTERS (916) 923-5447 15947 1 would have been an affect on water supplies available for 2 delivery. 3 MR. NOMELLINI: All right. And water supplies 4 available for delivery, does that include water supplies 5 for refuges as well as contractors of the CVP? 6 MR. BURKE: Yes. I would lump all of the recipients 7 of Central Valley Project water that use water diverted 8 from the Delta together in that. 9 MR. NOMELLINI: All right. If contractors agreed to 10 sell their contractual entitlement and were, in fact, paid 11 for that water, wouldn't that be similar to what's going 12 on with the San Joaquin River Agreement, more water is 13 acquired from the tributaries from willing sellers? 14 MR. BURKE: It bears some similarity, but I think at 15 least a difference in the source and the method by which 16 the water supply is developed makes it different. 17 MR. NOMELLINI: Okay. Are you familiar with the 18 Exchange Contractors? 19 MR. BURKE: Yes. 20 MR. NOMELLINI: Okay. And they receive federal 21 water, do they not? 22 MR. BURKE: Yes. 23 MR. NOMELLINI: And they are, in fact, selling water 24 under the San Joaquin River Agreement for the purpose of 25 the spring pulse flow; are they not? CAPITOL REPORTERS (916) 923-5447 15948 1 MR. BURKE: Yes. 2 MR. NOMELLINI: All right. And how are they 3 different than from some other federal contractor who 4 might be willing to sell his water to the Bureau for the 5 same purpose? 6 MR. BURKE: I would say they're different in terms 7 of priority that their water supplies receive versus the 8 priority that other federal water contractors receiving 9 water from the Delta have. 10 MR. NOMELLINI: Okay. Given that their priority for 11 receipt of water is different, how would that affect 12 delivery of water for the pulse flow in a year like 1999? 13 MR. BURKE: The Exchange Contractors in 1999 were at 14 no risk of receiving anything less than their normal full 15 water supply from the CVP. Whereas, the remainder of the 16 agricultural contractors receiving water from the CVP were 17 at some risk of having some incremental effects due to any 18 changes in the water supply. 19 MR. NOMELLINI: Okay. Let's take a hypothetical now 20 and then I'm almost ready to wrap up. Let's take a 21 regular CVP contractor on the west side of the San Joaquin 22 Valley who might be receiving 75-percent supply, could he 23 not sell that 75-percent supply for the purpose of 24 providing the pulse flow? 25 MR. BRANDT: Objection. Calls for a legal CAPITOL REPORTERS (916) 923-5447 15949 1 conclusion. 2 MR. NOMELLINI: Well, from a physical standpoint. 3 MR. BURKE: It's out of my area of expertise. 4 MR. NOMELLINI: Okay. But that would be the 5 distinction you're talking about is that this person has a 6 75-percent supply, an exchange contractor who's involved 7 in the sale under the San Joaquin Agreement would in this 8 year be getting 100-percent supply? 9 MR. BURKE: That was the only distinction. 10 MR. NOMELLINI: Okay. And that's the only 11 distinction that you cited as to why we might not go out 12 and buy water from the federal contractor that has the 13 75-percent supply; is that correct? 14 MR. BURKE: That's the only distinction that I'm 15 able to make. 16 MR. NOMELLINI: Okay. All right. Thank you. 17 C.O. STUBCHAER: Thank you, Mr. Nomellini. 18 Staff have any cross? 19 MR. HOWARD: No. 20 MS. LEIDIGH: No. 21 C.O. STUBCHAER: Board Members? Mr. Brown. 22 // 23 // 24 // 25 // CAPITOL REPORTERS (916) 923-5447 15950 1 ---oOo--- 2 RECROSS-EXAMINATION OF THE SAN JOAQUIN 3 RIVER GROUP AUTHORITY 4 BY THE BOARD 5 C.O. BROWN: Yes. The Exchange Contractors, when 6 they market their water to the Bureau, do they have to 7 fallow any land, or does everything still stay in 8 production and consumptive use remains the same? 9 MR. BURKE: The Exchange Contractors have to abide 10 by a number of restrictions on the delivery of that water. 11 And those restrictions include annual, seasonal, monthly 12 and instantaneous rates of delivery. And beyond that, I'm 13 not aware of any other additional requirements that are 14 placed on them. 15 C.O. BROWN: Okay. I didn't mean a requirement, I 16 just meant from a source standpoint. You made inference 17 that a west side contractor would receive 75 percent of 18 their water requirement. And the difference being that 19 the Exchange Contractors get 100 percent of their water 20 requirement, because of their water rights, I suspect. 21 So if a CVP contractor, other than Exchange, sold 22 a portion of their water and they're in a questionable 23 groundwater supply area, they may have to fallow their 24 land in order to make that deal, or pump more groundwater 25 of questionable quality. That's the situation, is it not? CAPITOL REPORTERS (916) 923-5447 15951 1 MR. BURKE: Hypothetically, yes. 2 C.O. BROWN: Or a better question: That's the 3 situation you were referring to, isn't it? 4 MR. BURKE: Yes. 5 C.O. BROWN: Okay. All right. So that's the 6 situation with one contractor supplying water is that they 7 may or may not be able to farm their land. Where the 8 situation with the Exchange Contractors and the favored 9 water rights that they have they could probably go ahead 10 and still farm 100 percent of their land. 11 MR. BURKE: I would assume so. 12 C.O. BROWN: Does the Bureau use the California 13 Aqueduct to wheel water to the San Luis Reservoir? 14 MR. BURKE: At times. 15 C.O. BROWN: The capacity of the DMC is, what, 4600 16 cfs? 17 MR. BURKE: Correct. 18 C.O. BROWN: It runs full all the time, does it not? 19 MR. BURKE: No. At many times it does not run full. 20 C.O. BROWN: Oh, really. So there is capacity in 21 the DMC, but the restriction is within the pumping? 22 MR. BURKE: Correct. At times, especially in the 23 last five years, there's been capacity in the DMC, but 24 it's been criteria having to do with diversions at the 25 Delta that result in the capacity being available. CAPITOL REPORTERS (916) 923-5447 15952 1 C.O. BROWN: What about the California Aqueduct, 2 does it run at capacity all the time? 3 MR. BURKE: No. 4 C.O. BROWN: Are those restrictions due to pumping, 5 or to just the needs of the system? 6 MR. BURKE: Both, at times. 7 C.O. BROWN: So there's times when the California 8 Aqueduct has pumping capacity and has wheeling capacity? 9 MR. BURKE: Yes. 10 C.O. BROWN: Would it make more sense if the Bureau 11 is trying to provide water in the San Joaquin at Newman 12 Wasteway, or the Mendota Pool, or anywhere in between, 13 would it make more sense to use the California Aqueduct 14 than it would to use the DMC? 15 MR. BURKE: I don't think, in general, that it 16 necessarily -- 17 C.O. BROWN: Let me change the question to make it a 18 little easier. Would there be times when it might make 19 more sense to use the California Aqueduct than the DMC? 20 MR. BURKE: When you say "would there be times," are 21 you referring to would there be times for the purpose of 22 the delivery of water for the VAMP flow requirements? 23 C.O. BROWN: No, hydrologically within the system. 24 MR. BURKE: Well, there are times and, yes, we do 25 use the California Aqueduct for that purpose. CAPITOL REPORTERS (916) 923-5447 15953 1 C.O. BROWN: So the answer to the question is "yes"? 2 MR. BURKE: The answer to the question is, yes. 3 It's a customary part of our operations planning to look 4 at the availability of capacity and to try to use it to 5 the extent that we can to assist in increasing the 6 delivery capability of the CVP. 7 C.O. BROWN: Well, one of the alternatives we are 8 considering, Mr. Burke, and getting information on is 9 Alternative 6, which provides for a recirculation program. 10 We're trying to determine if that makes some sense. 11 So the answer to your question is that the 12 California Aqueduct may, at times, be more suitable for 13 consideration to supply water to the San Joaquin to meet 14 some of the requirements at Vernalis than may be the DMC? 15 I think that's been asked and answered, but I want to ask 16 it again to make sure. 17 MR. BRANDT: Are you checking your own question? 18 MR. BURKE: I'm trying to be careful in answering 19 you, because I want to acknowledge that -- 20 C.O. BROWN: It's the time to be very careful, 21 Mr. Burke. 22 MR. BURKE: I want to acknowledge that the use of 23 the California Aqueduct by the Central Valley Project is 24 certainly something that has and will continue to be part 25 of our operations planning. But what limits the diversion CAPITOL REPORTERS (916) 923-5447 15954 1 capacity at Tracy often limits the diversion capacity at 2 the State facilities simultaneously. So I hesitate to 3 make a general statement about at times it would be more 4 appropriate to use the State's facilities. 5 C.O. BROWN: Are those times when those restrictions 6 at the two pumping stations differ from each other? 7 MR. BURKE: Yes, it's possible. 8 C.O. BROWN: So one could favor one over the other? 9 MR. BURKE: It is possible. And one of those 10 situations exists today. 11 C.O. BROWN: Has it in the past? 12 MR. BURKE: At times, yes. 13 C.O. BROWN: Would it make more sense to take water 14 out of storage if you could replace it? 15 MR. BURKE: Under some conditions, yes. 16 C.O. BROWN: So there could be some conditions, 17 maybe not all conditions, but there might be some 18 conditions when it could make sense? 19 MR. BURKE: Yes. 20 C.O. BROWN: Thank you, Mr. Burke. 21 C.O. STUBCHAER: All right. That concludes the 22 recross-examination of Mr. Burke. Is there anything else 23 for this witness? 24 MR. RUBIN: Yes. I have a request that the Board 25 accept Westlands Water District Exhibit 129 and 130 for CAPITOL REPORTERS (916) 923-5447 15955 1 admission. 2 MS. LEIDIGH: Yes. 3 C.O. STUBCHAER: All right. We've been deferring 4 the exhibits on Mr. O'Laughlin's direct, but on 5 cross-examination it would be appropriate to consider it 6 at this time. Those were the drawing and -- 7 MR. RUBIN: Yes. 8 C.O. STUBCHAER: Any objection to those being 9 received into evidence? All right. Seeing none, we will 10 accept them. Thank you. Anything else? Okay. 11 Well, thank you, Mr. Burke, for your appearance. 12 MR. BURKE: Thank you. 13 C.O. STUBCHAER: All right. Mr. O'Laughlin, is this 14 when you wanted to get into the motions that you had made? 15 MR. O'LAUGHLIN: If the Chair would like, yes. 16 C.O. STUBCHAER: Well, let's see. I'm at sea a 17 little bit as to what the next order of business would be. 18 We had Mr. Hildebrand pending. And we had your motions. 19 And I thought you suggested yesterday that you would like 20 to argue your motions. 21 MR. O'LAUGHLIN: Previous, yes. 22 C.O. STUBCHAER: Now, is Mr. Hildebrand appearing 23 today as case in chief or as an adverse witness? 24 MR. HERRICK: He's a case in chief appearing today 25 in consideration for the San Joaquin River Group Authority CAPITOL REPORTERS (916) 923-5447 15956 1 wanting to approve his testimony. 2 C.O. STUBCHAER: He's appearing as, what, in 3 consideration? 4 MR. HERRICK: As a consideration to the San Joaquin 5 River Group Authority, because they don't have enough 6 people to fill the block. The people who are trying to 7 exclude him asked him to be here today, because they 8 couldn't fill the block. 9 C.O. STUBCHAER: All right, I understand. 10 MR. HERRICK: It was an inappropriate comment on my 11 part. 12 C.O. STUBCHAER: No, it helped clarify things a 13 little bit. 14 All right. Mr. O'Laughlin. 15 MR. O'LAUGHLIN: The first motion I'd like to take 16 up this morning is since Mr. Hildebrand is here and ready 17 to testify, is our motion to strike designated portions of 18 the evidence -- of his deposition -- I mean his testimony 19 that he submitted. 20 And we titled it, "Objections to Irrelevant 21 Evidence Presented by South Delta Water Agency in Phase 22 II-B." The point of this is that much of Mr. Hildebrand's 23 testimony that he submitted as South Delta Water Agency 24 Exhibit 60-C, Page 1 of 8, has to do with things that are 25 outside the scope of the hearing. CAPITOL REPORTERS (916) 923-5447 15957 1 And rather than go through with Mr. Hildebrand, 2 all of the things that we have done in Phases II, V and 3 II-A, I think we need to bring this testimony back to the 4 hearing notice. 5 Off the bat, Mr. Hildebrand talks about injuries 6 to Mr. Robinson. Well, that's hearsay. If Mr. Robinson 7 wanted to come and testify as a legal user of water about 8 his injury, he could come to testify before the Board and 9 do so. We should not have to rely on hearsay evidence 10 from Mr. Hildebrand. 11 The next one is, once again, the New Melones 12 Interim Operations Plan. I sometimes get the feeling in 13 the hearings that this hearing is more about the Interim 14 Operations Plan than it is about the implementation of the 15 1995 Water Quality Control Plan. 16 The operations of New Melones in the Interim Ops 17 Plan has nothing to do with the change petitions filed by 18 the parties to change the place of use and the purpose of 19 use for water released from their reservoirs downstream 20 into their tributaries and then to the mainstream of the 21 San Joaquin River and into Vernalis. 22 The next part is, again, it having nothing to do 23 with this hearing notice. Starting at Page 5 and running 24 to Page 7, Mr. Hildebrand talks at length about all the 25 bad things the Bureau is doing in operating New Melones. CAPITOL REPORTERS (916) 923-5447 15958 1 In the Bureau were operating New Melones in compliance 2 with its permits, it begins there and rehashes much of 3 what we've heard in previous testimony. How the Bureau 4 operates New Melones is irrelevant to these change 5 petitions. 6 If South Delta Water Agency has a problem with 7 the way the Bureau is operating New Melones, then they 8 should file a protest with the State Water Resources 9 Control Board and have that protest resolved in another 10 forum. But their protest against the Bureau is not our 11 change petitions. The Bureau has no change petitions in 12 front of the Board at this time upon which the Board will 13 take action, and the hearing notice that was sent out 14 recognizes that. 15 The next one that we get to is the discussions of 16 CalFed -- well, in the next one it's kind of an 17 interesting one. It's quasi. And I don't feel as 18 strongly about this section as I do about the other ones. 19 Mr. Hildebrand's testimony in regards to fish and 20 wildlife, he makes certain statements within his testimony 21 on Page 6 of 8, talking about how these changes can affect 22 fish and wildlife and cites back to testimony by Save the 23 Bay. 24 I have no problem with testimony going to impacts 25 to fisheries, because that's been part of the hearing CAPITOL REPORTERS (916) 923-5447 15959 1 notice. However, if Mr. Hildebrand's testimony is only a 2 rehash of Save the Bay, then it should cite, as the 3 hearing notice said, to the relevant evidence of the prior 4 witnesses. Because the hearing notice that went out said 5 if you're going to rely on prior evidence submitted in 6 prior phases then you were to cite to that evidence. 7 In this section, it's a paraphrase of 8 Mr. Hildebrand of prior testimony that was done by Save 9 the Bay rather than a citation to the actual record. I'm 10 not going to spend a lot of time on this one. I think 11 it -- we can probably clean this up in cross-examination 12 but it is irrelevant and should be stricken. 13 Finally, the last one -- and I don't know where 14 we go with this one, because this truly opens up a can of 15 worms in our eyes -- we look on Page 7 of 8, we begin a 16 discussion of CalFed, the DAT Group, the No-Name Group. 17 What CalFed, the DAT Group and the No-Name Group have to 18 do with our change petition is beyond me. 19 Clearly those organizations operate in the 20 business of water decisions and water development and 21 water questions and issues. But the change petition and 22 the questions that were asked in the change petitions in 23 no way link up to any testimony regarding CalFed, DAT or 24 the No-Name Group, or how those groups operate, or what 25 they will or will not do especially in light of testimony CAPITOL REPORTERS (916) 923-5447 15960 1 concerning what barriers were put in or weren't put in and 2 why South Delta Water Agency isn't happy with what those 3 barriers were. 4 Granted, that may be a problem for South Delta 5 Water Agency, because they're not happy with what CalFed 6 is doing. But what their unhappiness with CalFed and why 7 they only got two barriers instead of three has to do with 8 the change petition for changing the place and purpose of 9 use of water from these agencies to include their 10 tributaries in the main stem of the San Joaquin River to 11 Vernalis, I can find no logical or plausible link, nor can 12 I find any connection that would lead us to any other 13 relevant evidence. 14 I mean it would be one thing to bring CalFed in 15 and say that by bringing this evidence in I'm going to 16 show you other evidence that is relevant. Based on this 17 testimony here, there's no link up. There's no link up 18 between what CalFed will or will not do, or the No-Name 19 Group will do, that that in any way bears on any possible 20 relevant evidence for our change petitions. 21 So we have made a specific motion. We have cited 22 to the specific pages, the specific paragraphs of 23 Mr. Hildebrand's testimony that we would like stricken as 24 irrelevant. If those paragraphs are stricken, I believe 25 that the testimony will be much more focused and will CAPITOL REPORTERS (916) 923-5447 15961 1 focus on the proper hearing notice questions, which are 2 alleged harms to legal users of water and may be in 3 regards to this fish and wildlife question we'll get into 4 questions of impacts to public trust resources. But other 5 than that, the rest of the testimony should be stricken. 6 C.O. STUBCHAER: Mr. O'Laughlin. 7 Mr. Brandt. 8 MR. BRANDT: I'd like to join in Mr. O'Laughlin's 9 motion particularly relating to CalFed issues as well as 10 the Bureau's Interim Operations Plan, we see those as 11 completely irrelevant. 12 C.O. STUBCHAER: All right. Anyone else? 13 Mr. Herrick. 14 MR. HERRICK: Well, you know you're dealing with 15 lawyers when the issue of whether or not they talk about 16 facts comes up. With regard to the motion, I think our 17 reply brief covers most of the points, but I would like to 18 go over them a little bit. 19 The fact that a portion of Mr. Hildebrand's 20 testimony refers to topics that were covered in Phases II, 21 V -- excuse me II, V and II-A occurred doesn't mean that 22 it's outside the scope. It means that he's trying to rely 23 on previously submitted testimony and/or evidence in 24 support of his argument in this phase. 25 References to prior evidence as quoted by CAPITOL REPORTERS (916) 923-5447 15962 1 Mr. O'Laughlin are one of the things that the Board asked 2 for for this hearing. To say that Mr. Hildebrand's 3 discussion of Jerry's Robinson's position in the South 4 Delta is hearsay, may or may not be true in some 5 instances. 6 But as you recall Jerry Robinson was a witness in 7 Phase I and gave much of the same testimony. And the 8 additional information, if any, that Mr. Hildebrand is 9 presenting here can certainly be tested on 10 cross-examination to see whether he just made it up, 11 talked to somebody, or actually knows. And that's the 12 purpose of cross-examination. 13 And the Board has, from day one, not excluded 14 anything that may be hearsay, but given it the proper 15 weight once it's been established whether or not it is 16 unreliable or not. 17 It's not an argument to say you can't talk about 18 the Bureau in this phase, because if you do not like what 19 they're doing you can file a protest. For the past six 20 years the Board, with the participation of half of the 21 State of California, has investigated and developed 22 standards and then investigated how to implement those. 23 That's why we're here. It is certainly a prerogative of 24 any party to these proceedings to decide how best to spend 25 their money. CAPITOL REPORTERS (916) 923-5447 15963 1 If the South Delta Water Agency, as part of its 2 overall decision, is hoping that the Board protects it by 3 maintaining -- instituting a program which maintains the 4 water quality control statute, there's nothing wrong with 5 that. The fact that they didn't protest earlier problems, 6 or don't like what the Bureau is doing, doesn't mean they 7 shouldn't be able to discuss those issues here, especially 8 when those issues are relevant. 9 Mr. O'Laughlin cites the failure of South Delta, 10 or Alex Hildebrand's testimony, to give a cite for a Save 11 the Bay reference. Guilty as charged. If that makes 12 something strikeable, then the Board should strike that. 13 However, in our reply brief we corrected what was 14 a typo and gave you the cite of the page. If you want to 15 strike something because we didn't look it up originally, 16 that's fine, but every party has the cite now. And, 17 again, that can be explored on cross-examination. 18 Information regarding CalFed, the DAT Group and 19 the No-Name Committee is directly relevant, because the 20 argument that follows from Mr. Hildebrand's testimony is 21 that the alleged adverse effects from the granting of the 22 petitions are either exacerbated, or some thresholds 23 reached by what happens in the base case, that is what's 24 outside the petitions. 25 The petitions' measurement -- the measurement of CAPITOL REPORTERS (916) 923-5447 15964 1 harm resulting from the petitions is based upon outside 2 activities. If somebody were releasing enough water for 3 everybody down the river, it wouldn't matter what changes 4 the petitions caused. And that's why we're here to see 5 what happens when the petitions are granted. 6 Now, if other things are occurring which either 7 exacerbate, cause or anticipate additional harm to the 8 South Delta, then it's certainly relevant to discuss or 9 cross-examine issues of whether or not those changes now, 10 when compounded with alleged adverse affects resulting 11 from the petitions being grand, cause harm, cause 12 substantial harm, cause undue or unreasonable effects. 13 It's certainly relevant information in our 14 opinion. And the important thing to note here is that the 15 information helps the Board in more than just one issue. 16 The opposition likes to stress this legal user issue and 17 then say, well, you don't fit into that. But the Board's 18 notice contains numerous issues which include the question 19 of "real water," include the question of what conditions 20 might be made on the petitions in order to grant them. 21 Well, let's deal with the real water issue. If 22 there's an effect, however slight, resulting from the 23 petitions, which -- let's say it increases the water in 24 the stream at some time, but something going on outside 25 the proceeding, changes in the barrier program, changes in CAPITOL REPORTERS (916) 923-5447 15965 1 the export operation, if those changes take away that 2 increase flow, then the net result is not that there's 3 more water in the river. The net result might be that 4 that there's less water in the river. 5 So it's perfectly relevant to investigate to see 6 if that's true. It's not real water if somebody else 7 takes it instead of the people who are entitled to it. 8 The other issues of conditions, which I mentioned one of 9 the noticed issues, is what conditions might be put on the 10 permits. 11 Now, that's the subject of endless debate and we 12 had witnesses yesterday talk about that. It's certainly 13 relevant to hear people's testimony that recommends things 14 that might be done, or conditions that might be made in 15 order to allow the petitions to proceed forward. 16 And so if there are outside activities that may 17 or may not exacerbate a problem, it's certainly relevant 18 to hear testimony that may talk about whether or not the 19 petition should be allowed if, in other words, if the 20 Bureau didn't suck all the water out of the South Delta, 21 it may not matter what happens outside of this. 22 If the Bureau didn't cause high elevated salts, 23 saltwater to enter in the river, it may be okay to do the 24 petitions. So all of that has to do with whether or not 25 you can create a condition or not in order to allow the CAPITOL REPORTERS (916) 923-5447 15966 1 petitions to proceed forward. 2 Finally, I'd like to say that virtually every 3 area or topic that the Department of the Interior and the 4 San Joaquin River Group Authority wants to exclude has 5 been talked about by previous witnesses. 6 As we know, the Board's own staff were witnesses 7 and asked numerous questions about Alternative 8 and the 8 base case and from that numerous questions about Interim 9 Operations Plan, Bureau operations, what were the 10 assumptions? I fail to see how at this point South 11 Delta's witness should not be allowed to talk about topics 12 that other witnesses have already talked about in this 13 phase. 14 I think it's important -- and I don't mean to be 15 petty about this -- but I think it's important to note 16 that the only people who are alleging that there's harm 17 from these petitions, Central Delta and South Delta, are 18 the subject of motions that exclude their participation 19 and exclude their testimony. I think that speaks volumes 20 and that's all I have. Thank you. 21 C.O. STUBCHAER: Thank you, Mr. Herrick. 22 Anyone else? Mr. Nomellini. 23 MR. NOMELLINI: Mr. Chairman, Members of the Board, 24 Dante John Nomellini with the Central Delta Parties. 25 I rise to oppose the motion by the San Joaquin CAPITOL REPORTERS (916) 923-5447 15967 1 River Group Authority and would like to simply emphasize a 2 couple of aspects of the argument. I agree with what 3 Mr. Herrick has set forth. 4 I believe that the task of the State Board is to 5 understand what the adverse impacts are of the proposed 6 transfers. And I know the Board does not want to rehash 7 all the prior testimony involving the Interim Operations 8 Plan for New Melones. 9 And I didn't make too big of an issue of it on 10 one of the motions objecting to a question of mine, but 11 the modeling presented by Mr. Steiner for the San Joaquin 12 River Group Authority based on the Interim Operations Plan 13 for New Melones, the agreement itself requires that the 14 Bureau operate according to the Interim Operations Plan. 15 And the testimony of Mr. Ploss has been 16 inconsistent on what the Interim Operations Plan actually 17 is in terms of the modeling. The record will speak for 18 itself in terms of the testimony yesterday versus the 19 testimony in an earlier phase. 20 The importance of the Interim Operations Plan, 21 though, is to understand how the changes that would come 22 about through the operations on the various tributaries 23 will affect water users downstream. So we have to 24 understand what that base operation at New Melones is in 25 order to understand what the consequences of the changes CAPITOL REPORTERS (916) 923-5447 15968 1 in the tributaries might be. 2 So it is important, I think, to understand what 3 that is. And we're all using information from models that 4 project and forecast in the future what these results 5 might be. So understanding what it is I think is very 6 relevant to this proceeding. And I understand there 7 shouldn't be a great deal of repetition. And I don't 8 think there would be. 9 In terms of the consequences of decisions with 10 regard to barrier operations in the South Delta, I think 11 that, too, is relevant, because it impacts on what the 12 effects are of the changes in the river flows. 13 If, for example, we have the barriers pushing 14 water up into South Delta areas from the Central Delta, 15 then the impact on the flow in the San Joaquin would not 16 be quite as significant. 17 The San Joaquin River Agreement, of course, 18 integrates the Head of Old River Barrier. We heard 19 testimony about whether or not that barrier operation 20 should be changed: Mr. Burke's exhibits, you know, with 21 regard to the meeting that they had talked about extending 22 the barrier -- Head of Old River Barrier operation. 23 So I think South Delta Water Agency's testimony 24 is very relevant and is important to the Board's 25 understanding of what the consequences of the proposed CAPITOL REPORTERS (916) 923-5447 15969 1 transfers would be. And I think cross-examination and 2 rebuttal could test the weight to which you should give 3 any particular testimony. 4 Alex Hildebrand is very knowledgeable of the 5 water conditions that exist along the properties of 6 Mr. Robinson. Many of us have lived in that area for many 7 years and Alex might very well be the percipient witness 8 rather than relying on any hearsay. 9 To the extent that he might rely on hearsay, then 10 I would suggest it's a question of the weight to be given 11 to the evidence. And, therefore, cross-examination would 12 be the appropriate way to test what the weight should be 13 given to that evidence. 14 And I don't know what we'd do with the rest of 15 the day if we didn't have Mr. Hildebrand's testimony. And 16 Mr. O'Laughlin's principal case in chief has been 17 deferred. So many of us have accommodated him to fill in 18 on the schedule rather than put him in a bind where he has 19 to put his case in chief in the order as specified by the 20 Board. 21 So I would think we would be a little more 22 lenient in terms of considering what the impact is of 23 running all these lawyers down here for a hearing and then 24 not having the hearing. Thank you. 25 C.O. STUBCHAER: Thank you, Mr. Nomellini. CAPITOL REPORTERS (916) 923-5447 15970 1 Anyone else? We're going to take our morning 2 break now. I will ask the parties to leave the room, 3 please, not staff. It will be a little longer break than 4 usual. You can count on 15 minutes. Anyway, if it's 5 longer than that we'll let you know. 6 (Recess taken from 10:11 a.m. to 10:36 a.m.) 7 C.O. STUBCHAER: Back on the record. Consideration 8 of the motion by the San Joaquin River Group Authority to 9 strike the motion is denied with the exception of the last 10 request, which is to strike testimony on Page 7 of 8, 11 starting with the third full paragraph which begins with 12 the words, "Lastly, the Board needs to be made aware," 13 from there to the end of the testimony the motion to 14 strike is granted. 15 With regard to the other testimony, the Board 16 will give consideration to the weight it gives to the 17 evidence in reaching its decision. And as mentioned 18 earlier, some of the weight will be based upon evidence 19 brought out during the cross-examination process. 20 MR. O'LAUGHLIN: Thank you. The next motion that we 21 had on, Mr. Stubchaer -- and I don't know how we are going 22 to handle this -- originally we made a motion for lack of 23 standing by South Delta Water Agency and Central Delta 24 Water Agency to present evidence in Phase II-B. 25 My understanding from Board staff was that Board CAPITOL REPORTERS (916) 923-5447 15971 1 staff had not yet received Mr. Herrick's papers. As you 2 remember last week, Mr. Nomellini rose and asked a 3 question and I objected to it for lack of standing. That 4 motion was overruled by the Board. 5 I would like to, if possible, spend a few minutes 6 and ask the Board for reconsideration of that motion to 7 overrule the lack of standing of Central Delta Water 8 Agency. And also address, at the same time, since the 9 motion only went to Central Delta Water Agency, address 10 our motion for lack of standing in regards to South Delta 11 Water Agency to present evidence in Phase II-B. 12 C.O. STUBCHAER: Mr. Jackson. 13 MR. JACKSON: Yes, Mr. Stubchaer. I would object to 14 any motion for reconsideration in this regard based upon 15 the ground that the Board has a process for 16 reconsideration if a party believes that there's been a 17 legal error. And that motion for reconsideration takes 18 place after a ruling. And it seems to me inappropriate to 19 bring a motion for reconsideration of a ruling under the 20 Board's rules outside of that process. 21 C.O. STUBCHAER: Mr. Nomellini. 22 MR. NOMELLINI: Yeah. I just want to make sure you 23 understand I oppose the motion. I think it's already been 24 decided. We hashed it out. I presented my case in chief 25 and the standing issue was ruled on. I don't know what CAPITOL REPORTERS (916) 923-5447 15972 1 new information is being presented that was different than 2 the prior ruling time that would merit a reconsideration. 3 I haven't heard anything new, even suggested. Unless 4 there's new evidence, I don't know think that even a 5 reconsideration request is appropriate. 6 C.O. STUBCHAER: Mr. O'Laughlin. 7 MR. O'LAUGHLIN: The only reason I bring up the 8 reconsideration issue in regards to Central Delta Water 9 Agency, I disagreed with Mr. Jackson. There is a 10 procedure in the State Water Resource Control Board for 11 the State Water Resource Control Board to reconsider its 12 rulings on matters. 13 However, those are final orders for rulings and 14 are not rulings on evidentiary issues within the hearing. 15 Because if you think about it, a motion for 16 reconsideration, if we followed the procedural guidelines, 17 Phase II-B would be done. And then I'd be making motions 18 for reconsideration and reconvening if the motion were 19 granted to hear further evidence, or to strike certain 20 testimony. 21 So I think the timing is proper for the motion 22 for reconsideration. And I think under the rules and 23 regulations for the State Water Resources Control Board 24 and for this hearing allow the Hearing Officer the 25 latitude to entertain the motion on evidentiary questions CAPITOL REPORTERS (916) 923-5447 15973 1 and reconsider the motion. 2 The only reason I bring up Central Delta Water 3 Agency at this time as a motion for reconsideration is 4 that we will now begin discussing harm to legal users of 5 water. If Mr. Nomellini is going to stipulate that South 6 Delta -- Central Delta Water Agency is not asserting any 7 harm to any legal user of water, I would go along with 8 that. But my understanding is they are. And if they are 9 going to assert that now and in the future or on rebuttal, 10 I want to make it clear that they have no standing on 11 which to make such an argument or to present evidence on 12 such an argument. 13 C.O. STUBCHAER: Let's hear the arguments. 14 MR. O'LAUGHLIN: The argument is fairly 15 straightforward, neither Central Delta Water Agency or 16 South Delta Water Agency are legal users of water. Nor 17 are they one -- the Board has defined legal user of water 18 as, "A legal user of water who could be injured would 19 include any party who has an existing legally protectable 20 water right." 21 In our moving papers we set forth in response to 22 questions that were asked of Mr. Hildebrand, he agrees 23 that as we've discussed before our agency itself does not 24 have water rights. We act on behalf of our landowners who 25 do hold the water rights. CAPITOL REPORTERS (916) 923-5447 15974 1 What's fascinating about that statement, however, 2 is when you go to South Delta Water Agency's authorizing 3 legislation contained within the code, within the Water 4 Code it specifically says under 116-4-5, Water Rights 5 Section 4.5, 6 (Reading): 7 "The agency shall have no authority or power to 8 effect, bind, prejudice, impair, restrict or 9 limit water rights within the agency." 10 There's been no evidence proffered by anyone from 11 South Delta Water Agency that they do have any rights or 12 any rights assigned to them in order to protect. That 13 language is also within Central Delta Water Agency's 14 Article IV section; talking about its powers under 117-4.4 15 it says -- wait, wrong one. 16 It's 117-4.2, Vested Water Rights, Section 4.2, 17 this is for Central Delta Water Agency, 18 (Reading): 19 "The agency shall have no authority or power to 20 effect, bind, prejudice, impair, restrict or 21 limit vested water rights within the agency." 22 So given that -- and then there's one other point 23 I'd like to point out. And, in fact, it was in a response 24 by South Delta Water Agency in opposition to our motion to 25 strike portions of their Phase II-B testimony. CAPITOL REPORTERS (916) 923-5447 15975 1 They assert on Page 2 of that document that they 2 are not alleging that the agency is being harmed, rather 3 that it is the various members within their agency are 4 being harmed. 5 This Board has been dealing with this question 6 for quite some time. In fact, in Water Right Order 89-8 7 this Board dealt with the question of the Delta Water 8 Users Association and South Delta Water Agency filing 9 protests on various changes of places of use, purpose of 10 use on appropriative water rights on both the Sacramento 11 and San Joaquin Rivers. 12 And in regards to that the Board stated that, 13 (Reading): 14 "Protestants argue that precise compliance with 15 this section before the cases are ready for 16 an evidentiary hearing is unnecessary and 17 unreasonable. Protestants allege that hundreds 18 of water rights are being exercised in their 19 area and that their current papers are 20 sufficient to allege their multiple 21 long-standing water rights and their interest 22 in the water that is being proposed to being 23 diverted; thereby, satisfying the purposes of 24 Section 745(b)." 25 We disagree. Section 745(b) contains the legal CAPITOL REPORTERS (916) 923-5447 15976 1 requirements and all protestants are bound to comply with 2 them. Protestants herein are not exempt from these legal 3 requirements. Now, I realize that in the hearing notice, 4 the hearing notice set forth that parties, any party, 5 could come and make -- I believe it's on Page 2 of 5 of 6 the hearing notice -- that any party could participate in 7 the process and participation may involve, as the 8 participant deem appropriate, the presentation of a policy 9 statement by a nonparty, or the making of legal 10 argumentation and presentation of evidence by a party. 11 And this is very similar to what the Board did in regards 12 to the change petitions under Phases VI and VII. 13 However, in regards to the hearing notice that 14 was sent out on Page 3 of 5, it specifically sets forth -- 15 and I'm quoting, "If a petitioner -- 16 (Reading): 17 "If the petitioners make such a showing, 18 however, and a party objects to the petition 19 changes based on injury to an existing water 20 right, the party claiming injury must present 21 evidence demonstrating the specific injury to 22 the existing water right that would result from 23 approval of the changes proposed by the 24 petition. 25 "In addition the party claiming injury must CAPITOL REPORTERS (916) 923-5447 15977 1 present evidence that describes the basis of 2 the alleged injured party claim of water right, 3 the date the water use began, the quantity of 4 water used during each relevant period of the 5 year, the purpose of use and the specific place 6 of use." 7 Our argument, we're not moving to strike that 8 Central Delta and South Delta Water Agency shouldn't be 9 allowed to present evidence, legal arguments, or opinions 10 on a wide variety of things in regards to the change 11 petitions. 12 However, in regards to this specific subsection, 13 which has to do with injury to legal user of water, we do 14 not believe that they have standing to assert any injury, 15 because they have no water right. They have no proxy from 16 anybody within their organization to set forth in front of 17 the Board. They presented no evidence in their moving 18 papers of any water right, contractual, legal or 19 otherwise. And, in fact, their statute specifically says 20 they have no right to do that. 21 So what I would like is a ruling from the Board 22 that the Central Delta and South Delta Water Agencies are 23 not legal users of water and cannot be a protestant under 24 subsection -- under hearing notice issue one, in regards 25 to injury to any legal user of water. CAPITOL REPORTERS (916) 923-5447 15978 1 C.O. STUBCHAER: Thank you. 2 Mr. Herrick, I didn't see your hand up, but I 3 presume you wanted to respond. 4 MR. HERRICK: I have a comment. 5 C.O. STUBCHAER: And we have your response brief, 6 also. 7 MR. HERRICK: Thank you. South Delta, obviously, 8 opposes the motion regarding standing. And our opposition 9 papers set forth the various reasons and I'll just 10 highlight a few things. 11 The Board already ruled on this with regard to 12 Central Delta and so I think the point is moot for these 13 proceedings. If that ruling is wrong and litigation 14 ensues after this, a higher power can decide whether or 15 not that was wrong. It certainly wouldn't be appropriate 16 for the Board to rule that South Delta doesn't have 17 standing when it ruled that Central Delta does. 18 Mr. O'Laughlin's quote of a 1989 Water Right 19 Order deals with a protest of a decision. And that's not 20 what's happening here. The Board sent out a notice which 21 said any party that wants to participate has to do this. 22 Now, subsequent to that, the moving party wants 23 to analyze the language as best they can in order to make 24 it seem like South Delta can't appear. But in true fact 25 the notice just says if you want to show up and CAPITOL REPORTERS (916) 923-5447 15979 1 participate in these proceedings that's all you have to 2 do. 3 We're a listed party. We can certainly put on 4 evidence of harm to somebody, which we're doing with their 5 authorization obviously. It's our job to do that. 6 Mr. O'Laughlin quoted one section of the statutes which 7 created the South and Central Delta Agency, but he failed 8 to quote another one which says, 9 (Reading): 10 "To do any and every lawful act necessary in 11 order that a sufficient in-channel water supply 12 may be available for any present or future 13 beneficial use, or uses of the lands within the 14 agency." 15 Now, that declaration, or that statement in the 16 statute doesn't necessarily get us into court if we're 17 trying to argue some point, but that's not what's going on 18 here. The Board has asked people to come forward and 19 explain whether or not they believe there's going to be 20 injury resulting from the petitions. And that's what 21 we've done. 22 The users of water in the South Delta Agency have 23 elected a Board of Directors, which has decided to 24 proceed. The Board could say that it wants, you know, all 25 10,000 water right holders in the South Delta to show up CAPITOL REPORTERS (916) 923-5447 15980 1 here and argue their point, but I think the State 2 Legislature already answered that when they created the 3 South and Central and Northern Delta Agencies. It was 4 created so that those people would have a voice in 5 hearings just like this. And that's why we're here. 6 And much is made of the fact of prior rulings 7 about whether or not somebody, other than the agency, is a 8 legal user of water. As we said in various objections 9 that have happened in prior phases on the same thing, the 10 agencies' constituents are legal users, because of the 11 Delta Protection Act which requires the Federal Government 12 not only to provide water for beneficial uses, but also to 13 coordinate its releases to maximize those beneficial uses 14 in the Delta. 15 That's what this petition is doing. The Bureau 16 is giving somebody money to make releases at a certain 17 time and we submit that the Delta Protection Act requires 18 them to do that so it doesn't harm us. That's why we're 19 here. 20 There's other issues. The Bureau stores water 21 for water quality. To say that the people who are 22 protected by that water quality standard are not legal 23 users, is facetious. We're riparians; up upstream dam 24 operators who are trying to change their operations would 25 have you think that in years when riparians don't have any CAPITOL REPORTERS (916) 923-5447 15981 1 water that they don't have to pass through the natural 2 flow. 3 And there's plenty more. There's San Joaquin 4 River Improvement Act. There's plenty of issues that 5 should be addressed, that will be addressed as to legal 6 users of water in the South Delta. 7 Now, it would be ironic, at best, if the Board 8 decided that the South Delta Water Agency could not 9 participate in these hearings, when prior to these 10 hearings the South Delta Water Agency filed an action in 11 court to address this very issue. And the State Board's 12 counsel said, no, you have to wait until a specific 13 instance comes up and then we'll proceed and then you can 14 sue whether you're a legal user. 15 That was a result of our attempt to resolve this 16 issue before these hearings. Let me say, the State 17 Board's position prevailed and we were told to await this 18 instance. Now the instance arises and somebody is asking 19 you to don't let us participate in something. That's 20 truly remarkable. 21 The bottom line is if for some reason the Board 22 were inclined to grant this, which we would strenuously 23 oppose, there's a cure if you want it. Alex Hildebrand 24 has participated in all but one phase as a witness. He's 25 given direct testimony in I believe all but one phase. CAPITOL REPORTERS (916) 923-5447 15982 1 His testimony had been provided to all parties in 2 all phases and it's been provided in this phase. And if 3 the Board thinks that we need to have a water right holder 4 instead of the agency, then we should just add 5 Mr. Hildebrand as a party, individually. 6 The procedure was to name those parties when this 7 phase's documents were due, but there's no damage to 8 anybody. There's no harm. There's no prejudice if you do 9 that at this date, because his testimony was submitted to 10 everybody. Nobody is out there thinking I didn't think 11 Alex Hildebrand would be allowed to participate and, 12 therefore, I didn't show up, or I'm not ready to 13 cross-examine him. 14 So if the worst case goes forward which is the 15 Board thinks that South Delta Water Agency constituted by 16 the Legislature to represent the water users in the South 17 Delta should not be allowed to participate, then the cure 18 is very easy: Mr. Hildebrand is here and can be added as 19 a party and there's no prejudice to anybody. 20 Again, I would like to say that the only people 21 before you who are claiming injury, claiming the injury 22 will result from the petition changes are being sought by 23 the petitioners to be excluded from the proceeding. 24 Regardless of everything else, that's not right. 25 Thank you very much. CAPITOL REPORTERS (916) 923-5447 15983 1 C.O. STUBCHAER: Mr. Herrick. 2 Mr. Nomellini. 3 MR. NOMELLINI: Dante John Nomellini for Central 4 Delta Parties. Of course, on the standing issue, I 5 thought that was decided before. What I understand 6 Mr. O'Laughlin's attempt here is to get a preliminary 7 determination that would preclude further presentation of 8 evidence and participation on the evidentiary phase as to 9 whether or not Central Delta Parties are legal users, or 10 have made the showing under, number one, as to the 11 substantial injury to a legal user. 12 Central Delta Parties are not only the Central 13 Delta Water Agency, but I have as a matter of practice 14 always involved a couple other clients. In this case R.C. 15 Farms, Inc., a riparian owner in the Delta, the notice did 16 not say that only people who can prove up that they are 17 legal users of water under Water Code Section 1707(b), 18 should participate in the hearing. 19 Now, I think on some aspects of your decision 20 making you're going to have to make a decision as to 21 whether or not a legal user of water within that statutory 22 designation has suffered a substantial injury. That's one 23 of the findings you're eventually going to make and that 24 will precipitate probably some interest on the part of 25 many parties as to what the legal -- whether your CAPITOL REPORTERS (916) 923-5447 15984 1 decisions are legally appropriate or not. 2 The time to make that decision is after the 3 evidence is received. I don't think it's appropriate, 4 based on your notice, to at this stage start determining 5 who a legal user of water is. There's an issue as to 6 whether or not these contractors in Westlands are legal 7 users of water. There's a big dispute there. 8 I think the solution to the problem is to 9 complete the hearing, bring the evidence in, then, to the 10 extent you may not have to even get to those issues, you 11 may get to them -- I don't know how you're going to decide 12 the case -- and if you decide those issues then, you know, 13 they're going to be the subject of briefing anyway. And 14 then you make a decision on those. 15 There may or may not be a necessity to even deal 16 with that issue. I think it's premature to try and 17 address whether or not somebody is a legal user of water 18 before you receive the evidence in the case based on this 19 notice. 20 Thank you. 21 C.O. STUBCHAER: Thank you, Mr. Nomellini. 22 Mr. Jackson. 23 MR. JACKSON: This is a very important decision and 24 I rise to ask you to look at it carefully. If, in fact, 25 riparians are not legal users of water, that would be a CAPITOL REPORTERS (916) 923-5447 15985 1 remarkable decision. If, in fact, the statutory 2 legislation that set up Central Delta and South Delta does 3 not allow them to represent their members, these are 4 things that folks are going to need to know very quickly 5 before Phase VIII, because you're about to have every 6 individual farmer and every individual city and every 7 individual who diverts water required to appear here, not 8 by their agency but by their individual self. 9 They're going to have to bring their maps. 10 They're going to have to prove where they divert. They're 11 going to have to prove how long they diverted. And we're 12 about to engage on something that will take up about ten 13 years to prove up before we get to the issues. 14 Clearly, this particular motion would effect many 15 of the members of the San Joaquin River Authority. By 16 this motion no Central Valley contract holder would have 17 standing to proceed on any allegation of injury no matter 18 what decision you make. No state water contractor would 19 have standing. 20 Clearly no county would have standing. No -- so 21 we are in -- no environmental group would have standing. 22 So we're in a situation where what you're going to get is 23 thousands upon thousands of individual proof questions 24 rather than the relatively orderly process we've had so 25 far. So I would ask you to deny the motion. CAPITOL REPORTERS (916) 923-5447 15986 1 The notice made it very clear that everyone was 2 welcomed who had an interest in water in the State of 3 California. And what South Delta and Central Delta are 4 doing is representing their individual water rights 5 holders the same way that Westlands or the State Water 6 Contractors or anyone else is doing it. 7 Thank you. 8 C.O. STUBCHAER: Mr. Jackson. 9 Anyone else? 10 Mr. O'Laughlin, are we -- well -- 11 MR. O'LAUGHLIN: May I have a brief response reply 12 to the arguments that were made? 13 C.O. STUBCHAER: All right. Then we'll give the 14 other parties an opportunity to respond and then that will 15 be it. 16 MR. O'LAUGHLIN: Well, no, that's fine. We don't 17 need to go through this much longer. I think enough 18 foundation has been laid, the briefing was done to the 19 Board previously. 20 C.O. STUBCHAER: All right. The motion regarding 21 standing is denied. Whether the Central Delta and South 22 Delta Water Agencies are, themselves, are legal users of 23 water or not, they can still appear at this hearing for 24 the purpose of presenting either/or both public interest 25 evidence, or fish and wildlife evidence. However, we are CAPITOL REPORTERS (916) 923-5447 15987 1 not ruling on whether they are legal users. This issue 2 goes to the merits of the change petitions and will be 3 considered in the Board's water rights decision. 4 C.O. BROWN: Couldn't have said it better myself. 5 C.O. STUBCHAER: Let's -- 6 MR. NOMELLINI: Could have told us that in advance. 7 MR. BRANDT: Mr. Chairman, could I ask a quick 8 question? If I could have the Board's indulgence, I need 9 to leave. For cross-examination would it be too much to 10 ask if Mr. Renning could ask a couple of questions on 11 cross-examination? 12 C.O. STUBCHAER: That's not too much to ask. We've 13 allowed other non-attorneys to cross-examine. 14 MR. NOMELLINI: What happens if he does a better 15 job? 16 C.O. STUBCHAER: Well, good morning, Mr. Hildebrand. 17 MR. HILDEBRAND: Good morning, Mr. Stubchaer. 18 C.O. STUBCHAER: Mr. Herrick. 19 MR. HILDEBRAND: Despite all efforts to keep me from 20 speaking to you, I guess I'm going to be allowed to speak. 21 C.O. STUBCHAER: In part. 22 MR. HILDEBRAND: In part. 23 // 24 // 25 // CAPITOL REPORTERS (916) 923-5447 15988 1 ---oOo--- 2 DIRECT EXAMINATION OF THE SOUTH DELTA WATER AGENCY 3 OF ALEX HILDEBRAND 4 BY MR. HERRICK 5 MR. HERRICK: Good morning, Mr. Chairman and Board 6 Members. John Herrick for the South Delta Water Agency. 7 Our case in chief will be the testimony of Mr. Alex 8 Hildebrand. He has been previously sworn. I'll start out 9 with a very brief opening statement and then we can 10 proceed. I have two -- I'll say procedural corrections to 11 testimony. We'll get that out of the way after the 12 opening statement. 13 As we've started every phase so far in these 14 proceedings, we believe that a prerequisite to the 15 proceedings going forward is the Bureau of Reclamation, 16 the Department of the Interior submitting to the 17 jurisdiction of the California courts. 18 As we've said many times before, we are faced 19 with a situation if they don't like the proceeding, they 20 can allow themselves to go into court. If we don't like 21 the decision, there's an opportunity for them to avoid 22 being a participant. And, therefore, an opportunity for a 23 court to dismiss it for lack of a necessary party. That 24 is patently unfair. We don't think that should proceed as 25 it has in the past. CAPITOL REPORTERS (916) 923-5447 15989 1 The petitions before the Board are a portion of 2 the method of effectuating the San Joaquin River 3 Agreement. And they seek changes in permits to allow, not 4 the sale of the water to the Bureau and the State of 5 California, who's giving the petitioners money, but to 6 allow them to use their stored water for downstream 7 purposes. 8 We believe the testimony will and, in fact, to 9 this date has shown that what the petitioners are telling 10 everybody is that we have the ability to store more water 11 than we need for use within our service areas. That's a 12 very significant issue, not only from a legal standpoint 13 of whether or not anybody has a right to store water in 14 excess of their needs, but the issue of the ability of 15 upstream people to manipulate their operations to the 16 detriment of downstream superior right holders. 17 We believe the evidence, previous and put forth 18 in this phase, will show that there is harm to other 19 parties. We believe the evidence will show that there is 20 very little, if any, "real water" involved as the Board 21 has asked to see. 22 It is true that the evidence shows that people 23 can manipulate their operations to create the opportunity 24 to control more water, but that is significantly different 25 than creating water that is in excess to the system. CAPITOL REPORTERS (916) 923-5447 15990 1 That would require a showing that the water being 2 used for the new purpose is in addition to all the other 3 needs of the system and that there was more water in the 4 system than needed. That has certainly not been shown. 5 We believe Mr. Hildebrand's testimony will accentuate 6 that. 7 We touched upon already in the motion about legal 8 users of water, the Board needs to make that decision 9 eventually. And it may be able to construct a decision 10 that avoids addressing that issue with regard to South 11 Delta interests, but that is a very, very important issue. 12 We made the argument before and we will unfortunately have 13 to make it again. 14 But the plain language of the statute states that 15 the Board is supposed to investigate whether or not the 16 petition changes will result in harm to any legal user of 17 water. Now, a different statute under the Water Code 18 1702, I believe, talks about injury to legal users of "the 19 water." Now, whether that was a distinction that was 20 intended or not is a subject of a further argument. 21 But if the interpretation that the Board has 22 given in the past, that being that the legal user of water 23 with regard to any petition is somebody who has a right to 24 use that water that is the subject of the petition, then 25 that limits the potential protestants to the petitioners CAPITOL REPORTERS (916) 923-5447 15991 1 themselves, because there isn't any other party who has a 2 legal right to water somebody else has stored. 3 The question addressed by the statute is: 4 Whether or not changed operations under those petitions 5 affect legal users? And that interpretation which we give 6 it makes perfect sense, because it is a very complicated 7 and interrelated system whereby downstream parties and 8 upstream parties are affected by other people's 9 activities. 10 It doesn't mean that the party who's being 11 affected has a right to that person's water. It means he 12 has an interest, as a legal user, in using the 13 interconnected system. And, therefore, can somebody 14 change their operations to change that interconnected 15 system and affect this other party? 16 The distinction is not whether you have a right 17 to the water, it's the legal user of water. And by that 18 the courts -- excuse me, the Legislature has simply made a 19 distinction who can come and protest? A legal user of 20 water. Not an illegal user of water, not somebody that 21 doesn't use water, but a legal user of water. We think 22 that makes perfect sense. And I hope that issue finally 23 gets resolved through these proceeding or perhaps after. 24 Finally, we believe the evidence both from us and 25 from the other parties necessarily would require the Board CAPITOL REPORTERS (916) 923-5447 15992 1 to impose conditions if the petitions were to be granted. 2 Of course, as I said earlier, we do not believe that the 3 petition should be granted. And that gets back to what 4 should be the preferred alternative for implementing the 5 1995 Water Quality Control Plan. 6 But the evidence will show to you that, as I 7 said, there's either very little or no real water involved 8 in this. And, therefore, if the Board wants to proceed 9 with the petitions as part of a preferred alternative, the 10 Board needs to craft conditions so that those third-party 11 effects are mitigated to some degree. 12 And so, although, we've proposed a few things and 13 other parties have proposed conditions, the Board needs to 14 either question parties themselves, or itself come up with 15 those conditions so that if somebody is able to decrease 16 the flow in the tributary they control because of their 17 dam, something else might need to happen so that somebody 18 else isn't harmed. 19 As we've said before, there are plenty of 20 interests upstream of the South Delta Water Agency that 21 don't have a voice here. That means there are people with 22 pumps on the main stem, there are people that have 23 groundwater wells near the main tributaries and the San 24 Joaquin River. The Board needs to craft any decision, 25 especially in granting the petitions, so that those people CAPITOL REPORTERS (916) 923-5447 15993 1 aren't harmed. 2 That's the purpose of one of the issues you've 3 raised in your notice which is: Should there be 4 conditions? We have a difficult time coming up with 5 conditions that would allow these petitions to be granted, 6 because we believe that just requires some further 7 reallocation of the existing flows. 8 But that's the Board's job and we hope the Board 9 takes an interest in that, because we believe the evidence 10 is there for those third-party adverse affects. Thank you 11 very much. That's the end of my opening statement. 12 Two things I would like to correct: When 13 Mr. Hildebrand's testimony was originally mailed it did 14 not have an exhibit number on it. We subsequently sent 15 letters to everybody, including the Board, correcting it. 16 So Mr. Hildebrand's written testimony is now 60-C, as in 17 Charlie. 18 Since the Board has stricken part of his 19 testimony, I would just ask if the Board wants us to 20 produce written testimony without that to be substituted, 21 or whether somebody drawing a line through it is 22 sufficient? 23 C.O. STUBCHAER: Ms. Leidigh. 24 MS. LEIDIGH: We don't need to have it redone. 25 C.O. STUBCHAER: Right. CAPITOL REPORTERS (916) 923-5447 15994 1 MR. HERRICK: Thank you. And the final thing which 2 was brought up in San Joaquin River Group Authority's 3 motions was a reference in the testimony to the testimony 4 of one of the Save the Bay witnesses. And there was a 5 typo in there and we'd like to correct that, as other 6 people have. 7 In that we refer to a quote by Dr. Keir of the 8 degree -- the temperature, excuse me, of the water which 9 was -- the temperature of the water as it related to 10 steelhead survival. We said 57, in Mr. Hildebrand's 11 testimony. The number is 68. And in my opposition to the 12 motion I gave the reference to a transcript which shows 13 that. So when Mr. Hildebrand gets to that, perhaps, we'll 14 highlight that, but it was not 57 it was 68. 15 C.O. STUBCHAER: Can you just give us a page? I 16 know it's in your motion, but I already filed that away. 17 MR. O'LAUGHLIN: It was in the Reporter's 18 transcript. 19 MR. HERRICK: Sorry. The reference to 68 degrees is 20 found in the Reporter's transcript, Page 9451, Line 18. 21 And, of course, that's the line that has the number, the 22 lines before and after are part of his answer to the 23 question. 24 C.O. STUBCHAER: Okay. Thank you. 25 MR. HERRICK: With that, Mr. Hildebrand has been CAPITOL REPORTERS (916) 923-5447 15995 1 sworn in. I'll ask him to summarize his testimony. It 2 was rather lengthy, so he's made an attempt to edit it a 3 little bit and present it to you. 4 Thank you very much. 5 MR. HILDEBRAND: For the record, my name is Alex 6 Hildebrand. I'm secretary of the South Delta Water 7 Agency, the President of the Delta Water Users 8 Association, a member of the BDAC, a farmer in the South 9 Delta and an engineer. I have previously given testimony 10 in these hearings as has been acknowledged and have 11 previously submitted my qualifications. 12 I currently reside at 23443 South Hays Road in 13 Manteca, California. My property abuts the San Joaquin 14 River. The land has always been contiguous to the river 15 and so it's considered riparian under California law. 16 There's been a reference to my also discussing 17 Mr. Robinson's land. I'm familiar with that land. If 18 you'd rather hear it from him, we can get him up here, but 19 he, too, is a riparian water user. And I've been using 20 water under my riparian rights since about 1962. 21 Mr. Robinson has used it under -- or his family under 22 those rights since before that. And our predecessor 23 owners also used it. 24 My operations do not include a metering system. 25 Most of us who are individual diverters don't meter all CAPITOL REPORTERS (916) 923-5447 15996 1 our water. However, I've irrigated in almost every April 2 through September time frame and often in March and 3 October and sometimes in February and November. 4 The DWR and U.C. Extension Service have extensive 5 data on consumptive use of water by various crops. We 6 have records, of course, of the crops we have raised in 7 various years. Unconsumed water that we apply to crops 8 serves to avoid the accumulation in our soils of the salt 9 in the irrigation water. And that salt, I might add, is 10 there primarily because of the activities of the CVP. 11 The unconsumed water then accretes then back to the 12 channels. 13 I believe the evidence presented to date in these 14 hearings clearly shows that granting the petitions for 15 changes to the permits and licenses would adversely affect 16 me and most other South Delta diverters. 17 SDWA's -- I went on to discuss the Water Code 18 1707 and 1702 and the difference between those, but Mr. 19 Herrick has already covered that, so I'll skip over that. 20 In previous hearings wherein SDWA and other users 21 argued that changes to permits would adversely affect 22 downstream users, the Board staff incorrectly described 23 our opposition arguments as being SDWA was seeking to 24 force an upstream diverter to release legally stored water 25 for SDWA's benefit and at times demanded by SDWA. CAPITOL REPORTERS (916) 923-5447 15997 1 This is and was never the case. As SDWA has said 2 numerous times, is not attempting to force those upstream 3 diverters to make such releases. Rather it is asking that 4 the Board deny permit change which would result in a 5 change in operations by a permit holder. 6 Again, as we have stated numerous times, if a 7 diverter wishes to change its operations within its 8 existing permit terms and conditions, it may do so. 9 However, the 1707 statute clearly anticipates the changes 10 in operations that would result from permit changes must 11 not have unreasonable effects on downstream users. 12 I conclude that if the petitions are granted they 13 will adversely and unreasonably affect me and other 14 agricultural diverters. I previously explained that in 15 most years there is no surplus water in the San Joaquin 16 River system. It's easy to forget that when we've just 17 had a series of very wet years. 18 In those years, then, any allocation of water to 19 improve an April/May pulse flow necessarily decreases 20 flows at other times either in the current year or in some 21 subsequent years. Since the USBR is not in the past and 22 is currently not operating to consistently meet the 23 Vernalis water quality standard, the shift in flow that 24 will result from the shift in the petitions will result in 25 significant increases in water quality violations. CAPITOL REPORTERS (916) 923-5447 15998 1 To evidence this I will compare the data provided 2 by the SJRGA and the Department of Interior in the ongoing 3 hearings. This examination includes the effects of the 4 New Melones Interim Operations Plan on which the SJRA 5 relies as well as other data currently before the Board. 6 The Board should recognize that the petitions 7 cannot be considered in a vacuum. The requested changes 8 are only being sought as a means of implementing the SJRA. 9 And the USBR is a signatory of the SJRA. Before we 10 examine data, I'll clarify that I'm primarily looking at 11 critically dry and below normal years. These are the 12 years of concern and the greatest risk to the water 13 quality standard at Vernalis. 14 Since there are rarely any violations of that 15 standard in above normal and wet years, the effect of the 16 petitions on those years is less important to the 17 examination of whether or not they cause unreasonable 18 effects or harm. 19 Pursuant to the data previously submitted, 20 changes in the salinity of irrigation water are known to 21 adversely affect the crop yield at given soil 22 permeabilities. In normal farming operations there's no 23 way to compare any particular year's yield with any other 24 year's yield and then calculate the effect caused by the 25 salinity differences in the applied water. CAPITOL REPORTERS (916) 923-5447 15999 1 This is because there are many other variables 2 and the effect of each cannot separately be determined in 3 field conditions. Each year differences such as 4 temperature, time of planting, leach ratios, chemical and 5 fertilizer use and a myriad of other things affect the 6 yield. 7 Since we can't measure, quantify and then relate 8 each variable to crop yield, we rely on previous 9 scientific studies which did hold variables constant and 10 made findings as to how changes in salinity affect yield. 11 Those studies evidenced by SDWA 42 and 47 allow us to 12 estimate the effect a change in salinity has on any 13 particular crop. 14 Depending on the crop and the soil permeability 15 which controls the ability to leach salts, once a certain 16 threshold of the soil moisture salinity is reached, there 17 is a linear relationship between increases in the 18 salinities of the applied water and decreases in the crop 19 yield. It is important to note that depending on the 20 slope of the line describing that linear relationship, the 21 yield decreases can be dramatic. 22 And we went over all of this back in previous 23 hearings. And it was the information on that submitted by 24 us, by the U.S. Salinity Laboratory, the United Nation's 25 Food and Agricultural Organization and by the other CAPITOL REPORTERS (916) 923-5447 16000 1 parties that the basis that the Board used and established 2 the salinity standard, actually, we felt at the time that 3 the salinity standard was not quite adequate to actually 4 take care of that risk for some crops and some soils, but 5 that's what the Board decided. 6 Mr. Daniel Steiner represented testimony and 7 modeling that results on behalf of the SJRGA. His 8 modeling indicated that with the SJRA in place, in the 9 months of June through September, there are more than 50 10 months during the period of analysis in which water 11 quality at Vernalis is made worse by that program over and 12 above the USBR's proposed violations. 13 Now, I understand that later on he suggested that 14 those figures where the result of noise in the modeling, 15 which kind of proves our point. The modeling isn't very 16 good for this purpose. His model uses a salinity flow 17 relationship at Vernalis, which is not constant, if you 18 change the operations as proposed by the SJRA -- 19 MR. O'LAUGHLIN: Objection. I'd like to object to 20 this testimony. 21 C.O. STUBCHAER: Mr. O'Laughlin. 22 MR. O'LAUGHLIN: Yes. The witness is commenting on 23 testimony by Mr. Steiner that was produced in this phase 24 of the hearing. That testimony is nowhere in 25 Mr. Hildebrand's direct testimony. I'm looking on Pages 4 CAPITOL REPORTERS (916) 923-5447 16001 1 of 8 and on Page 5 of 8. So I would ask that he stick to 2 his testimony, if possible. 3 C.O. STUBCHAER: Well, there is references at the 4 top of Page 4 as to -- 5 MR. O'LAUGHLIN: Yeah, but the problem is that that 6 is in regards to Mr. Steiner's modeling results that were 7 presented earlier, that's not in regards to what 8 Mr. Hildebrand was just talking about, which were the 9 exhibits that were presented on redirect to Mr. Steiner 10 just last week. That's not in his testimony. It couldn't 11 have been, because it hadn't been produced yet. 12 C.O. STUBCHAER: All right. 13 MR. HILDEBRAND: I was commenting on my 14 understanding of responses that Mr. Steiner made on this 15 point in cross-examination. If it's not relevant, then I 16 can leave it out. 17 C.O. STUBCHAER: I understand, Mr. Hildebrand. 18 Please, try and stay within the scope of the written 19 testimony. 20 MR. HILDEBRAND: All right. 21 C.O. STUBCHAER: Proceed. 22 MR. HILDEBRAND: Ms. Peggy Manza of DOI provided 23 additional information on these differences. Her data 24 looked at contract years and water years. Under contract 25 years, the average exceedance for the Vernalis standard in CAPITOL REPORTERS (916) 923-5447 16002 1 July under the hypothetical base case is 179 parts per 2 million TDS; while under the SJRA is 198 parts per 3 million. Numbers for June are 27 parts per million for 4 the base case and 62 parts per million for the SJRA. 5 It's important to note that the April through 6 August standard is 455 parts per million TDS, which means 7 that on average the violations exceed the standard by 8 about 40 percent. For water years, Ms. Manza had similar 9 results. 10 This data clearly indicates that the effects of 11 the SJRA are significant. The proponents of that plan and 12 the petitioners have attempted to combine all the data to 13 present dampened results. However, the increase number 14 and magnitude of violations in the summer months is 15 necessarily a significant adverse and unreasonable effect 16 on agriculture. 17 These effects would result from the petitions 18 being granted. The petitioners point to the fact that the 19 SJRA results in fewer violations in October. And 20 improvement in water quality in October does not offset 21 worse water quality in the summer. October, although 22 important, is a less critical time for agriculture; there 23 is less irrigation than in the summer. The crops are less 24 vulnerable to salinity at this stage of development. 25 It's important to remember that the above data CAPITOL REPORTERS (916) 923-5447 16003 1 show an impact by the SJRA even when compared to a 2 hypothetical base case, which includes the New Melones 3 Interim Operations Plan. That interim plan itself results 4 in water quality violations in 52 percent of the years. 5 In critical years, the Interim Operations Plan results in 6 violations in two or more summer months in all 15 of the 7 15 critical years. 8 In dry years, there are violations in at least 9 two summer months in nine out of ten dry years. Ms. Manza 10 admitted that if we excluded the wetter years in which 11 there are rarely water quality problems, the IOP results 12 in violations in about 70 percent of the other years. 13 All of these projected violations are much worse 14 than the historic violations. Hence, we see that the SJRA 15 uses as its basis an operation program by one of its 16 signatories that causes extreme harm to those that depend 17 on the Vernalis standard. The SJRA plan then causes 18 additional harm during peak irrigation months. The SJRA 19 makes the outrageous assumption that this Board will 20 condone this level of deliberate violation. 21 With regard to the quantity of water available to 22 downstream riparians the effects are similar. SDWA 23 previously submitted Exhibit 22, which sets forth the 24 amount of Vernalis flow necessary to supply channel 25 depletion needs in the South Delta. CAPITOL REPORTERS (916) 923-5447 16004 1 Mr. Steiner's testimony shows that under both the 2 SJRA and the New Melones Interim Operations Plan in 3 critical years the average Vernalis flow in July, August, 4 September is insufficient to meet the channel depletion 5 needs in the South Delta. The range of flows from which 6 the averages are determined are set forth in the data 7 attached to Mr. Steiner's testimony. 8 If the Bureau were operating New Melones in 9 compliance with its permits, it would be releasing 10 additional water to meet the Vernalis standard in critical 11 years in the months of July, August and September. Hence, 12 since the SJRA worsens the water quality in the summer it 13 also exacerbates the insufficiency of the quantity of 14 water needed and it makes the already insufficient amount 15 less usable. 16 I conclude, therefore, that approval of the 17 petition would result in additional unreasonable harm to 18 South Delta riparians. Finally, the above referenced data 19 understates the problem. SDWA showed that under the 20 petitioner's plan it will reallocate 15,000 acre-feet of 21 Oakdale Irrigation District water to USBR storage. 22 Rather than this reallocation helping to improve 23 Vernalis water quality, as alleged by Mr. Steiner, South 24 Delta Water Agency showed in earlier testimony that the 25 reallocation actually results in less water in the CAPITOL REPORTERS (916) 923-5447 16005 1 channel. This then exacerbates the quality and quantity 2 problems in years of need. 3 The Board should also remember that Mr. Steiner's 4 analysis did not examine the impacts to future flows that 5 result when petitioners refill their reservoir storage 6 space vacated by the increased fishery releases. It is 7 beyond dispute that without surface flood flows, such a 8 recovery of loss reservoir storage will decrease 9 downstream flows between the time of recovery. 10 Other users depend on those nonflood flows to 11 supply their beneficial uses. Similarly, Mr. Steiner 12 admitted that for the purposes of his modeling it was 13 assumed that OID and the South San Joaquin Irrigation 14 District, in the absence of the SJRA, would take and apply 15 within their districts their full 600,000 acre-feet of 16 contractual amount. As we've already seen in previous 17 testimony that is not the case. 18 Each of these two false assumptions by 19 Mr. Steiner result in an understatement of the adverse 20 effects of the SJRA on downstream flows and water quality 21 that would result in granting this petition. In addition, 22 Mr. Steiner admitted that additional purchases on the 23 tributaries would exacerbate the problems of water quality 24 and quantity. 25 This year alone, the USBR has sought additional CAPITOL REPORTERS (916) 923-5447 16006 1 tributary purchases, the first of 47,000 acre-feet and 2 then recently another 50,000 acre-feet over and above the 3 SJRA. 4 Furthermore, the districts are seeking to sell 5 30,000 acre-feet to Stockton East Water District. Such 6 shifts in flow patterns exacerbate the situation by 7 further decreasing summer flows and worsening water 8 quality as explained by Dr. Orlob's previous testimony. 9 These changes can also adversely affect fish and 10 wildlife. And as per prior testimony by the panel of 11 biologists presented by the SJRGA, 35 percent of the 12 outmigrating salmon smolts come down the river at times 13 other than during the pulse flow. 14 By reallocating water to the pulse flow, these 15 smolts would be at greater risk by now having less 16 sufficient transport flows to get past the export pumps. 17 And those smolts travel mostly at times when exports are 18 maximized and tidal barriers are not permitted to operate. 19 In addition, we heard testimony from Save the 20 Bay, which we referred to before which has to do with the 21 water temperature problem. Section 1707(b)(1) requires 22 the Board to examine whether or not the petitioners will 23 increase or decrease the amount of water they use. 24 In this case, the evidence is clear. All of the 25 testimony to date that shows that although the petitioners CAPITOL REPORTERS (916) 923-5447 16007 1 talk about possible water conservation measures, these 2 measures are neither quantified nor assured. Furthermore, 3 no proposed activities by them will reduce their 4 consumptive use. And, therefore, they are simply 5 reallocating the water they do not consume. 6 Put it another way, they will be continuing their 7 current consumptive uses and also making additional 8 releases of water in April and May for fishery purposes. 9 This can only be done by reducing releases at some other 10 time. If releases of water for fishery purposes during 11 the pulse are made from storage, then more water is 12 diverted to storage at a later time to make up for those 13 releases. 14 Hence, the petitioner will be storing more water 15 in years of refill than was their previous practice. If 16 the water was not being used for refill, it would be 17 released for uses that contribute to downstream flow. If 18 they use groundwater instead of storage and continue to 19 store the same amount, again, they are still consuming the 20 same amount of water, but changing when the water they 21 don't use comes down the river. 22 In fact, what the petitioners are telling the 23 Board is that they have the ability to store water in 24 excess of the needs of their service area. It's my 25 understanding under current California law, all permits CAPITOL REPORTERS (916) 923-5447 16008 1 and licenses to appropriate water are limited to the 2 amount of water that is actually beneficially used by the 3 permit or license holder. This is the same as for 4 riparian diverters. 5 C.O. STUBCHAER: One minute. 6 MR. HILDEBRAND: They should have no right to water 7 in excess of their beneficial needs. Absent a decrease in 8 consumptive use, the petitioners are seeking the ability 9 to provide water for an additional use outside their 10 districts without decreasing their current use. 11 I do not believe the Board can condition the 12 approval of the petitions to mitigate the predicted harm 13 without requiring the Bureau or the petitioners to add 14 water to the San Joaquin River system. Anything less than 15 this will simply cause another reallocation of water which 16 will further deplete flows. 17 If you allow me one more minute, I think I can 18 make it. We could have brought in a parade of witnesses, 19 too, but we didn't. As we have stated before, all 20 upstream dam operators should be required to pass through 21 the natural flow at any time the South Delta superior 22 channel depletion needs are not being met. This would 23 also assist in meeting the water quality standard. 24 In addition, the Board should require the USBR to 25 comply with its permit conditions to meet water quality as CAPITOL REPORTERS (916) 923-5447 16009 1 well as its agreement with the Department of Fish and Game 2 which was implemented by its permits. 3 That agreement only allows the Bureau to make 4 fishery releases in excess of 98,000 acre-feet after it 5 meets the water quality standard at Vernalis. The 6 Bureau's previous statements that additional releases from 7 New Melones are mandated by CVPIA is incorrect. That 8 statute also requires the Bureau to first meet water 9 quality obligations before budgeting. This is clear in 10 Section 3406(b) and (b)(2) of the CVPIA. 11 Thank you. 12 C.O. STUBCHAER: Thank you, Mr. Hildebrand. 13 Who wishes to cross? Godwin, Mr. Renner, 14 O'Laughlin. Who else? 15 C.O. BROWN: Just three. 16 C.O. STUBCHAER: Just three. 17 MS. LEIDIGH: Mr. Renning. 18 C.O. STUBCHAER: Renning, I'm sorry. Sorry. 19 ---oOo--- 20 CROSS-EXAMINATION OF SOUTH DELTA WATER AGENCY 21 BY THE DEPARTMENT OF THE INTERIOR 22 BY MR. RENNING 23 MR. RENNING: Thank you, Mr. Chairman. 24 Mr. Hildebrand, in your testimony you have used the 25 term "unreasonable" in a number of places. CAPITOL REPORTERS (916) 923-5447 16010 1 MR. HILDEBRAND: Yes. 2 MR. RENNING: It appears that the context of this 3 use relates primarily to water quality; is that right? 4 MR. HILDEBRAND: I would say both water quality and 5 water quantity. 6 MR. RENNING: Okay. With respect to water quality, 7 do you have any evidence or opinion as to what constitutes 8 an unreasonable water quality effect? 9 MR. HILDEBRAND: Yes, we went over that, as I 10 mentioned in great detail in earlier hearings, to 11 establish the damage that's caused to our crops with our 12 soils when the salinity of the water gets above certain 13 levels. And it was on the basis of that testimony that 14 the Board established the salinity standards. 15 We could go back over that. And you can take a 16 given year. For example, on one of my fields if I, say, 17 raise beans and I had water quality that was above the 18 standard, you could calculate how much yield loss I 19 probably lost in that year from that cause. 20 Now, there's also the quantity problem. There 21 have been times when the flow of river was so low -- and 22 particularly when we don't have barriers to hold up water 23 levels to prevent the drawdown of the CVP pumps during low 24 tide -- that, then, we couldn't irrigate in a timely 25 manner. And so I've lost crops due to just a lack of CAPITOL REPORTERS (916) 923-5447 16011 1 water. 2 You know, if you need -- it's hot and you need to 3 drink something on Monday it doesn't do to say you're 4 going to get something on Friday. And that's the kind of 5 situation we're put in. 6 MR. RENNING: Well, with respect to water quality, 7 then you've relied mainly on the technical evidence that 8 was presented in the earlier phases of this hearing? 9 MR. HILDEBRAND: Well, to quantify it, yes. 10 However, it's quite visible the effect of these things. 11 And there's been times that we've had salinity damage to 12 crops in various places in the South Delta and we've had 13 the county experts come out to look at it and verify that 14 it was, indeed, salt damage. 15 MR. RENNING: Okay. Concerning crop yields and the 16 effect of water quality on South Delta lands, your 17 testimony suggests that you keep records of crops on your 18 land; is that correct? 19 MR. HILDEBRAND: Oh, yes. I can tell you what crops 20 I had in any given year. 21 MR. RENNING: Are such records kept by others in the 22 South Delta Water Agency? 23 MR. HILDEBRAND: Well, most farmers have records, of 24 course, some are very complete, some are not so complete. 25 But generally speaking, I really can't say how many of CAPITOL REPORTERS (916) 923-5447 16012 1 them would or wouldn't have that kind of record. In my 2 case, for example, I keep a daily log of what I've planted 3 and when I irrigated it and all that. 4 MR. RENNING: Are these records compiled anywhere 5 and are they available for examination? 6 MR. HILDEBRAND: Well, they aren't compiled. 7 They're just in my yearly calendars in my case. I was 8 deposed by the proponents of this permit thing recently 9 and did submit some examples of that. 10 MR. RENNING: That's all I have. Thank you. 11 C.O. STUBCHAER: Okay. Thank you, Mr. Renning. 12 Mr. Godwin. 13 ---oOo--- 14 CROSS-EXAMINATION OF SOUTH DELTA WATER AGENCY 15 BY TURLOCK IRRIGATION DISTRICT 16 BY MR. GODWIN 17 MR. GODWIN: Good morning, Mr. Hildebrand. 18 MR. HILDEBRAND: Good morning. 19 MR. GODWIN: Arthur Godwin for the Turlock 20 Irrigation District. I had some questions for you 21 concerning your knowledge of the lands owned by Jerry 22 Robinson and Jerry Robinson's water rights. You testified 23 earlier that you have knowledge of those lands and the 24 water rights. 25 First of all, you have an Exhibit 60-B to your CAPITOL REPORTERS (916) 923-5447 16013 1 testimony, which is an assessor's parcel map showing a 2 portion of Union Island in Section 10, 11, 12, 13, 14, 15, 3 23 and 24. Is Mr. Robinson's land within this entire map 4 here, or does he just have a portion of this? 5 MR. HILDEBRAND: The Robinsons have various 6 properties and part of it is here and part of it isn't. 7 MR. GODWIN: Okay. That wasn't my question. I 8 asked whether or not his property was within this entire 9 assessor's parcel map, or just a portion of it. 10 MR. HILDEBRAND: I'm not sure I understand your 11 question. 12 MR. GODWIN: This assessor's parcel map has several 13 parcels, 1 through, approximately, 25 I see -- oh, there's 14 30. Do you know which parcels belong to Mr. Robinson? 15 MR. HILDEBRAND: I'm not familiar with the parcel 16 numbers, no. I've been on the property, I've seen the 17 lands, but I don't -- 18 MR. GODWIN: Do you know if he farms all of the 19 parcels on this map? 20 MR. HILDEBRAND: I don't think he owns all the 21 parcels on this map, no. 22 MR. GODWIN: Okay. Are you familiar with 23 Mr. Robinson's Rio Dos Reis Ranch? 24 MR. HILDEBRAND: Not so much. 25 MR. GODWIN: Okay. Are you familiar with CAPITOL REPORTERS (916) 923-5447 16014 1 Mr. Robinson's Honker Lake Ranch? 2 MR. HILDEBRAND: I don't know the titles of each of 3 these properties, so I really can't say. 4 MR. GODWIN: So then you're not familiar with the 5 Moran Ranch, the Myers Ranch? 6 MR. HERRICK: If I may object. Perhaps, we can 7 identify them, or describe why we're using ranch names at 8 locations; perhaps, that would help the witness. 9 MR. O'LAUGHLIN: Well, my -- 10 C.O. STUBCHAER: Mr. O'Laughlin. 11 MR. O'LAUGHLIN: Yes. Thank you, Mr. Chairman. 12 Well, as Mr. Nomellini would like to say, this is the 13 scope of the cross-examination. And what we're getting 14 at, as we stated in our motion to strike, this is hearsay 15 evidence. This goes to the understanding, as Mr. Herrick 16 said, that on cross-examination we could bring out through 17 the cross-examination of Mr. Hildebrand his understanding 18 of Mr. Robinson's farms and ranches and water rights. 19 Well, the beginning is: Where are they? What 20 are they? And what's the basis of his understanding? 21 What we can do on cross-examination, I think this is the 22 point quite well, is Mr. Hildebrand doesn't know anything 23 about Mr. Robinson's water rights. 24 MR. HILDEBRAND: Well, that's not true. 25 MR. HERRICK: If I may. Notwithstanding the emotion CAPITOL REPORTERS (916) 923-5447 16015 1 involved here for some reason, what the questions have 2 determined are whether or not Mr. Hildebrand knows the 3 specific names given to various ranches. That is not an 4 analysis of whether Mr. Hildebrand is familiar with any 5 particular ranch owned by Mr. Robinson. 6 If they want to ask those questions, fine. I was 7 just trying to help. If they could point out what ranch 8 they're talking about, Mr. Hildebrand might go, "Oh, I 9 know that, but I didn't know its name was Honker Ranch." 10 MR. GODWIN: Excuse me, I was asking if he was 11 familiar with those ranches. We can get into locations 12 and specifics. 13 C.O. STUBCHAER: The objection is overruled. 14 MR. GODWIN: So then I take it you're not familiar 15 with Mr. Robinson's Lathrop Ranch, his Bowman Ranch, or 16 his Home Ranch either? 17 MR. HILDEBRAND: I've made no presentation that I'm 18 familiar with all of his properties. What I have said is 19 that I am familiar with the fact that he owns property 20 that abuts the river and has riparian rights and that he 21 has irrigated those properties in every month of the year 22 at one time or another. 23 MR. GODWIN: Do you know approximately how many 24 acres Mr. Robinson farms? 25 MR. HILDEBRAND: No. CAPITOL REPORTERS (916) 923-5447 16016 1 MR. GODWIN: Do you know how many acres he leases? 2 MR. HILDEBRAND: I don't even know if he leases -- 3 MR. HERRICK: Excuse me, if I may. Leases out or 4 leases himself to farm? 5 MR. GODWIN: Either one. 6 MR. HILDEBRAND: Well, I don't know the acreage. I 7 know that he farms part of it himself and part of it is 8 leased to other parties on a kind of rotating basis. 9 There's certain crops that is profitable to grow on his 10 lands, but which he prefers not to farm himself. So he 11 leases lands, I believe, for example, for tomatoes in a 12 given year. And in some other year he may farm that 13 himself with some other crop. 14 MR. GODWIN: Okay. Do you know from what streams 15 and rivers Mr. Robinson diverts water from? 16 MR. HILDEBRAND: I don't know all of them, but I 17 know the ones I'm most familiar with divert from Middle 18 River. 19 MR. GODWIN: Okay. Do you know that he also has 20 diversions on the San Joaquin River? 21 MR. HILDEBRAND: I believe so, but I'm a little 22 uncertain about that. 23 MR. GODWIN: Okay. Are you familiar with the 24 Woods/Robinson/Vasquez irrigation system? 25 MR. HILDEBRAND: No. CAPITOL REPORTERS (916) 923-5447 16017 1 MR. GODWIN: Regarding Mr. Robinson's Home Ranch, 2 are you aware that he has two pumps located on Middle 3 River? 4 MR. HILDEBRAND: I wouldn't have remembered 5 specifically whether it was one or two pumps, but I know 6 that he has pumps on Middle River, yes. 7 MR. GODWIN: I don't suppose you know the horsepower 8 or gallons per minute? 9 MR. HILDEBRAND: I haven't pretended to know that 10 much detail. 11 MR. GODWIN: Do you know he also has two other pumps 12 that serve portions of his Home Ranch located on Middle 13 River? 14 MR. HILDEBRAND: I know that he has a number of 15 diversions on Middle River, yes. 16 MR. GODWIN: Do you know how many pumps he has on 17 the San Joaquin River that furnishes Bowman Ranch 18 property? 19 MR. HILDEBRAND: I don't understand the relevance of 20 this to the testimony I have given. It doesn't attest to 21 any kind of detail. 22 MR. O'LAUGHLIN: Mr. Chairman -- 23 C.O. STUBCHAER: Mr. Hildebrand, please, answer the 24 question if you can. 25 MR. HILDEBRAND: I'm just trying to tell him what I CAPITOL REPORTERS (916) 923-5447 16018 1 know and what I don't know. And I haven't pretended to 2 know the things I don't know. 3 MR. O'LAUGHLIN: Mr. Chairman, we went through this 4 previously when Mr. Hildebrand comes in. He appears to 5 want to make commentary throughout his testimony without 6 addressing the questions. And we went through this in his 7 prior testimony. 8 It would be helpful for him to answer "yes" or 9 "no" and then give an explanation. But Mr. Hildebrand 10 should not be asking -- or making statements about what is 11 or isn't a relevant question. And so I would move to 12 strike that statement by him. And I would like the Chair 13 to address him and tell him to answer questions "yes" or 14 "no," if he can, and give an explanation. 15 C.O. STUBCHAER: The record will stand as it is, but 16 I did just request of Mr. Hildebrand, please, answer the 17 question. 18 Mr. Herrick. 19 MR. HERRICK: Mr. Chairman, I appreciate that and 20 Mr. Hildebrand will attempt to reply as best he can. 21 Perhaps, we could ask, then, that the questions if they're 22 going to assert things are true, there should be a 23 foundation laid, or perhaps they should be rephrased to 24 say: Do you know whether or not something exists? 25 As asked all the questions are suggesting, if not CAPITOL REPORTERS (916) 923-5447 16019 1 asserting that something is true or not without any 2 underlying substantiation. 3 C.O. STUBCHAER: And, Mr. Herrick, of course, you 4 have the right to object and bring that up. 5 MR. HERRICK: Thank you. 6 MR. O'LAUGHLIN: Thank you. In regards to that all 7 the questions were: Do you know? And if Mr. Hildebrand 8 knows, or doesn't know, or has no basis to know, he can so 9 state. There's no assertion within the questions that 10 these facts are true or not true. It's simply a question 11 of: Do you know? 12 C.O. STUBCHAER: We have no objection pending, so 13 let's proceed. 14 MR. GODWIN: Thank you. Do you know that 15 Mr. Robinson has a pump located on Middle River that 16 furnishes water to his Myers Ranch property? 17 MR. HILDEBRAND: I don't know specifically which is 18 the Myers Ranch property. 19 MR. GODWIN: Do you know that Mr. Robinson has a 20 pump located on Middle River that furnishes water to his 21 Moran or Lafayette Ranch property? 22 MR. NOMELLINI: I'm going to object to the question. 23 Some technical issues have been raised. The question 24 assumes a fact not in evidence that there is a Moran 25 Ranch. There's no evidence that has been presented with CAPITOL REPORTERS (916) 923-5447 16020 1 regard to that. 2 Even though the question starts out with a, "Do 3 you know," it goes into a Moran Ranch, assuming that there 4 is such a Moran Ranch. I'm not one normally to debate the 5 limitations on cross-examination, but since it's been 6 raised many times, that does do the same thing that was 7 objected to previously. 8 C.O. STUBCHAER: Mr. Godwin. 9 MR. O'LAUGHLIN: If I may, because I argued this 10 motion previously in front of you. This is the very basis 11 for our objection to Mr. Hildebrand coming in and 12 testifying as to Mr. Robinson's water rights. 13 He specifically testifies -- he says in here, 14 blah, blah, blah, 15 (Reading): 16 "I have included one of the parcels of lands 17 owned by Mr. Robinson. Some of his lands 18 border Middle River as you can see from South 19 Delta Water Agency 60-C, which is a map of that 20 area. Pursuant to our investigation it, too, 21 has always been contiguous to the river and, 22 therefore, is riparian. 23 "Mr. Robinson's farming operation has regularly 24 reported its water use to DWR and copies of 25 those reports are included here with the South CAPITOL REPORTERS (916) 923-5447 16021 1 Delta Water Agency Exhibit 62." 2 The very point that we're trying to make here is 3 the underlying foundation upon which Mr. Hildebrand has 4 become an expert on Mr. Robinson's water rights. 5 And you'll remember Mr. Herrick in response to 6 our motion to strike this portion of the testimony said 7 that on cross-examination you could delve into whether or 8 not what Mr. Hildebrand does and doesn't know about 9 Mr. Robinson's water rights, that's what we're entitled to 10 do. So the questions are: Do you know? 11 Secondly, we've already taken Mr. Robinson's 12 deposition. And if the Chair would like, we will lay a 13 proper foundation, or make an offer of proof that these 14 facts are so stated in Mr. Robinson's testimony and will 15 lodge those with the State Water Resources Control Board. 16 So I think since you previously ruled against us 17 on the motion to strike, you should give us great latitude 18 on our motion for cross-examination to show that 19 Mr. Hildebrand does not have the expertise that he claims 20 he has when he drafted his statement under South Delta 21 Water Agency 60-C. 22 C.O. STUBCHAER: Mr. Nomellini. 23 MR. NOMELLINI: The "Do you know" part I think is 24 perfectly legitimate. Do you know whether or not 25 Mr. Robinson has a pump on Middle River? If the answer is CAPITOL REPORTERS (916) 923-5447 16022 1 affirmative, you pursue that. You can go through all that 2 in cross-examination. 3 This offer of proof does not mean that there's a 4 fact in evidence that there is a Moran Ranch or anything 5 else. If Mr. O'Laughlin wants to put that in the record 6 as a fact, there's a procedure to do that. And then it is 7 a fact in evidence. 8 However, be it hypertechnical, but I think that 9 that is the difference. The "Do you know" is fine in 10 pursuing if they ought to find out what Alex knows and 11 doesn't know. The reference to the Moran Ranch and these 12 kind of things, there's no evidence in the record to 13 support it. And that's what the assumption is. 14 MR. O'LAUGHLIN: But that's the problem with 15 hearsay. 16 C.O. STUBCHAER: The objection is overruled. 17 MR. GODWIN: Do you know that Mr. Robinson has two 18 30-horsepower pumps located on the San Joaquin River? 19 MR. HILDEBRAND: As I've said, I do not know these 20 details. What I do know is what I said in my testimony, 21 that he does own land which abuts the river and has 22 riparian rights. That's the extent of presentation that I 23 made. 24 I haven't alleged to know all about all his pumps 25 and his other lands. It's merely an allegation that he CAPITOL REPORTERS (916) 923-5447 16023 1 does, indeed, have riparian rights and that I am aware of 2 that. I've been there, I've seen it. I know that, but I 3 don't need to know all these details to make that 4 presentation. 5 MR. O'LAUGHLIN: Mr. Chairman, at this time, then, I 6 would like to strike the testimony in regards to 7 Mr. Robinson as being irrelevant. If the only purpose is 8 to offer Mr. Hildebrand's statement that Mr. Robinson is a 9 riparian water right holder, that has no bearing on the 10 issues in front of this court as to impacts, because 11 nowhere else in the testimony does he link up 12 Mr. Robinson's claimed rights to any harm. 13 All he says is that he knows that Mr. Robinson 14 has a water right. That's irrelevant to this proceeding 15 so I would renew my motion to strike as being irrelevant. 16 MR. HERRICK: Mr. Chairman, I don't know why we 17 can't get through this. Mr. Hildebrand has offered 18 Mr. Robinson's situation as a second situation besides his 19 own. He's not offered as an expert witness on water 20 rights or on Mr. Robinson's landholding, but that 21 Mr. Robinson has property that abuts the river and has 22 certain water rights to it. 23 Mr. Hildebrand's testimony does connect the dots. 24 First, he sets forth himself and Mr. Robinson as water 25 users in the Delta. Then he goes through when they CAPITOL REPORTERS (916) 923-5447 16024 1 started, as best he knows, and how much they use. And 2 then he says, 3 (Reading): 4 "I believe that the petitions, if granted, 5 cause adverse effects to quantity and 6 salinity." 7 And then he explains how quantity hurts people 8 and he explains how salinity, pursuant to South Delta 47, 9 harms people. So he has put them together. 10 And Mr. Robinson as well as Mr. Hildebrand as 11 riparian diverters are alleged in his testimony to be two 12 people in this specific area who are harmed by the results 13 of the petition. Now we can object to every answer and we 14 can stay here for another three days, or we can proceed as 15 professionals do and get through it. 16 C.O. STUBCHAER: The ruling to strike is denied. As 17 we've stated before, the Board will give consideration to 18 the testimony and the qualifications of the witness in 19 giving weight to the evidence. And as stated previously, 20 the cross-examination helps bring out the veracity or the 21 correctness of the testimony. 22 And how much more do you have, Mr. Godwin? 23 MR. GODWIN: Maybe about ten minutes. 24 C.O. STUBCHAER: All right. 25 MR. O'LAUGHLIN: We might as well take lunch, CAPITOL REPORTERS (916) 923-5447 16025 1 because we're going to be here this afternoon and I 2 probably have two or three hours with Mr. Hildebrand this 3 afternoon. 4 C.O. STUBCHAER: Oh, I know we're going to be here 5 this afternoon. I have a meeting from 12:00 to 1:00, so I 6 think we will take our lunch break now and reconvene at 7 1:00. 8 MR. GODWIN: Okay. 9 MR. O'LAUGHLIN: Okay. 10 C.O. STUBCHAER: We're in recess. 11 (Luncheon recess.) 12 ---oOo--- 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 16026 1 THURSDAY, JUNE 24, 1999, 1:00 P.M. 2 SACRAMENTO, CALIFORNIA 3 ---oOo--- 4 C.O. STUBCHAER: Okay. Come back to order. 5 Mr. Godwin, you may continue your 6 cross-examination. 7 MR. GODWIN: All right. I'm going to turn back for 8 a moment to SDWA Exhibit 60-B. I believe earlier you told 9 me that -- and correct me if I'm wrong, you told me that 10 you knew that Mr. Robinson owned land that was contiguous 11 to the river, yet, when I showed you this particular 12 exhibit, you couldn't identify where his ranch is on this 13 assessor's parcel map? 14 MR. HILDEBRAND: That's correct. 15 MR. GODWIN: So, for instance, he may own parcel 16 number 10, which is in the middle of this map which is not 17 contiguous to any river? 18 MR. HILDEBRAND: I don't know. I was only referring 19 to the fact that he does, indeed, have land that is 20 contiguous to the river. He, therefore, has riparian 21 rights. 22 MR. GODWIN: Okay. Now I'd like to turn to SDWA 23 Exhibit 62. And I think it's the fourth page of Exhibit 24 62 is "Report of Licensee," for the years 1994, '95 and 25 '96 for license number 3677. The owner of the license is CAPITOL REPORTERS (916) 923-5447 16027 1 I. Newton Robinson? 2 MR. HILDEBRAND: Yeah, that's Jerry's father. 3 MR. GODWIN: All right. And this was submitted with 4 your testimony as evidence of Mr. Robinson's water rights; 5 is that correct? 6 MR. HILDEBRAND: It's evidence of his use of water 7 in that year under his right. 8 MR. GODWIN: And I understand Mr. Robinson has other 9 water rights besides this. This is only an example; is 10 that correct? 11 MR. HILDEBRAND: That's right. 12 MR. GODWIN: Okay. Do you know which particular 13 ranch that this license goes with? 14 MR. HILDEBRAND: No, I can't say. 15 MR. GODWIN: Okay. Do you know of any losses that 16 Mr. Robinson has suffered as a result of having 17 insufficient water to be able to irrigate his properties 18 with? 19 MR. HILDEBRAND: Would you repeat that question? 20 MR. GODWIN: Are you aware of any losses that 21 Mr. Robinson has suffered as a result of having 22 insufficient water to irrigate his properties? 23 MR. HILDEBRAND: I'm not sure what you mean by "has 24 suffered." 25 MR. GODWIN: Has he had any losses -- CAPITOL REPORTERS (916) 923-5447 16028 1 MR. HILDEBRAND: Do you mean has he had lawsuits 2 against him or by him? 3 MR. GODWIN: Not lawsuits, losses. 4 MR. HILDEBRAND: Losses. 5 MR. GODWIN: For instance, crop losses as a result 6 of not being able to irrigate his property because of lack 7 of insufficient quantity of water? 8 MR. HILDEBRAND: It's my understanding that he has, 9 but I can't attest to any specific amounts. 10 MR. GODWIN: You don't know of any specific amounts? 11 MR. HILDEBRAND: No. 12 MR. GODWIN: Okay. Are you aware of any losses that 13 Mr. Robinson has suffered as a result of water quality in 14 Middle River, San Joaquin River affecting his crops? 15 MR. HILDEBRAND: Same answer. 16 MR. GODWIN: You're not aware of any specifics? 17 MR. HILDEBRAND: I'm not aware of specifics, but I 18 am aware that the riparians in the South Delta have 19 generally had such losses. To be a little more specific, 20 the location of his Middle River pumps at times goes 21 totally dry. 22 MR. GODWIN: His pumps go totally dry? 23 MR. HILDEBRAND: Yes. I've been down there and seen 24 that. I know that, firsthand knowledge. 25 MR. GODWIN: All right. I don't have any more CAPITOL REPORTERS (916) 923-5447 16029 1 questions. Thank you. 2 C.O. STUBCHAER: Thank you, Mr. Godwin. 3 Mr. O'Laughlin. 4 MR. O'LAUGHLIN: Give me one second to set up, if 5 you will. 6 C.O. STUBCHAER: Okay. 7 ---oOo--- 8 CROSS-EXAMINATION OF SOUTH DELTA WATER AGENCY 9 BY THE SAN JOAQUIN RIVER GROUP AUTHORITY 10 BY MR. O'LAUGHLIN 11 MR. O'LAUGHLIN: Good afternoon, Mr. Hildebrand. 12 Tim O'Laughlin representing the San Joaquin River Group 13 Authority. 14 Have you received any authorization from any 15 entity within South Delta Water Agency to come here today 16 on their behalf and protest the change petition that has 17 been filed? 18 MR. HILDEBRAND: I'm not sure I understand the 19 question. As a director and secretary of the South Delta 20 Water Agency, the South Delta Water Agency has a duty to 21 represent the water rights holders in the South Delta. 22 And I'm operating in that capacity as well as in my own 23 capacity. 24 MR. O'LAUGHLIN: Okay. Westside Irrigation District 25 is within South Delta Water Agency; is that correct? CAPITOL REPORTERS (916) 923-5447 16030 1 MR. HILDEBRAND: That's right. 2 MR. O'LAUGHLIN: And it's a water right holder; is 3 that correct? 4 MR. HILDEBRAND: That is correct. 5 MR. O'LAUGHLIN: And it has an appropriative water 6 right; is that correct? 7 MR. HILDEBRAND: That's right. 8 MR. O'LAUGHLIN: Have you received any resolution 9 from Westside Irrigation District to come here today and 10 protest the change petition that is being made by the 11 entities? 12 MR. HILDEBRAND: No district within the agency has 13 formally requested us to represent them, but we keep them 14 fully informed as to what we're doing. We listen to their 15 views, look out for their interests. 16 MR. O'LAUGHLIN: In regards to your particular water 17 rights, you state on the first page of your report -- your 18 declaration, excuse me, 19 (Reading): 20 "At the time of my purchase of this property 21 and pursuant to my investigation thereafter, my 22 land has always been contiguous to the river 23 and is so considered riparian law under 24 California law." 25 Do you see that, Mr. Hildebrand? CAPITOL REPORTERS (916) 923-5447 16031 1 MR. HILDEBRAND: Yes. 2 MR. O'LAUGHLIN: Okay. Have you done a chain of 3 title search on your property to see if, in fact, it has 4 always been contiguous to the San Joaquin River? 5 MR. HILDEBRAND: Well, in the first place, I had a 6 title search at the time I bought the property in 1944. 7 And, secondly, the agency through Attorney Herrick has 8 made a title search to verify that these lands have never 9 been severed. 10 MR. O'LAUGHLIN: What lands are those, 11 Mr. Hildebrand? 12 MR. HILDEBRAND: My lands, the relevant lands of 13 Mr. Robinson and others. 14 MR. O'LAUGHLIN: Do you know why, then, if a title 15 search has been done to prove that there's been no 16 severance of -- on your lands of any riparian rights, why 17 that testimony was not presented in regards to your 18 declaration under South Delta Water Agency 60-C? 19 MR. HILDEBRAND: I don't recall just what 60-C is. 20 MR. O'LAUGHLIN: That's your declaration, 21 Mr. Hildebrand. 22 MR. HILDEBRAND: Would you repeat the question? 23 MR. O'LAUGHLIN: Sure. If a chain and title search 24 was done for your properties, do you know why you did not 25 present that here today as part of your testimony? CAPITOL REPORTERS (916) 923-5447 16032 1 MR. HILDEBRAND: It wouldn't have occurred to me 2 that that was necessary. As I say, a title search was 3 made when I bought the property. The agency later on also 4 made a title search to verify that the properties of 5 which -- with regard to which we're giving this testimony. 6 MR. O'LAUGHLIN: Well, in regards to hearing notice 7 number one it states, "In addition" -- are you a party 8 claiming injury due to this transfer, Mr. Hildebrand? 9 MR. HILDEBRAND: Claiming what? 10 MR. O'LAUGHLIN: Injury due to this proposed change 11 of use and purpose of use? 12 MR. HILDEBRAND: Yeah. 13 MR. O'LAUGHLIN: Okay. Now, it says in the hearing 14 notice issue number one, 15 (Reading): 16 "That the party claiming injury must present 17 evidence demonstrating the specific injury to 18 the existing water right that would result from 19 the approval of the changes proposed by the 20 petition. 21 "In addition, the party claiming injury must 22 present evidence that describes the basis of 23 allegedly injured party's claim of water 24 right." 25 So what have you put in your testimony today to CAPITOL REPORTERS (916) 923-5447 16033 1 provide to the Board and the parties that you do, in fact, 2 have a water right on the San Joaquin River? 3 MR. HILDEBRAND: I think we made it pretty clear. 4 The land abuts the river, has always abutted the river 5 and, therefore, we have riparian right. 6 MR. O'LAUGHLIN: Isn't it possible, Mr. Hildebrand, 7 that a parcel abutting a river in the State of California 8 may no longer have its riparian rights? 9 MR. HILDEBRAND: If it at some point it has been 10 severed, but it has not been severed. 11 MR. O'LAUGHLIN: But is there any evidence before 12 the Board here today to prove that your property has not 13 had a severance? 14 MR. HERRICK: Mr. O'Laughlin, do you mean other than 15 his Exhibit 60-C? 16 MR. O'LAUGHLIN: Other than Exhibit 60-C. 17 MR. HILDEBRAND: I'm not aware that it's necessary 18 for every riparian right holder to provide more proof than 19 the statement that a title search has been made and it's 20 not been severed. 21 MR. O'LAUGHLIN: Well, would it be true, 22 Mr. Hildebrand, that if somebody was approximately a mile 23 away and yet could stand on a levee and see a river, would 24 you consider them riparian? 25 MR. HERRICK: I'll just object as an incomplete CAPITOL REPORTERS (916) 923-5447 16034 1 hypothetical. There's been no discussion about what land 2 was owned, or where it abutted, or anything like that. 3 C.O. STUBCHAER: Yes. Sustain. 4 MR. O'LAUGHLIN: Well, from what I understand from 5 your determination of your investigation, you basically 6 can look out your door and can see a river and, therefore, 7 you consider yourself riparian. Would that be a fair 8 description? 9 MR. HILDEBRAND: There's more to it than that. 10 There's the fact that the property has never been severed 11 from the river, which is an aspect of the riparian right. 12 MR. O'LAUGHLIN: This is 60-A? 13 MR. GODWIN: 60-A. 14 MR. O'LAUGHLIN: 60-A. We've put up an overhead of 15 South Delta Water Agency Exhibit 60-A. 16 What is this intended to show, Mr. Hildebrand? 17 MR. HILDEBRAND: You're the one that put it up. 18 MR. O'LAUGHLIN: Yeah, but why did you include it -- 19 C.O. STUBCHAER: Mr. Hildebrand, this is from your 20 testimony. 21 MR. HILDEBRAND: Oh, okay. Well, it shows the 22 property that I own. 23 MR. O'LAUGHLIN: Okay. Now, if possible I have some 24 pens here, do you own all those parcels denoted within 25 that exhibit, Mr. Hildebrand? CAPITOL REPORTERS (916) 923-5447 16035 1 MR. HILDEBRAND: No. 2 MR. O'LAUGHLIN: Why don't I hand you a red pen and 3 on this South Delta Water Agency overhead -- you know, I 4 should change this to my own exhibit. So we'll mark this. 5 We'll change this -- what's my next in order, Vicky? 6 MS. WHITNEY: 116. 7 MR. O'LAUGHLIN: For the record, we'll change this 8 to San Joaquin River Group Authority 116. And I'll write 9 that on the mylar and then I'll make appropriate copies 10 for all the parties; otherwise, when we start marking it 11 it will no longer be South Delta Water Agency 60-A. 12 Mr. Hildebrand, I'm going to hand you a red pen. 13 Can you outline for us on that where your property is, 14 please? 15 MR. HILDEBRAND: You want me to mark on the -- 16 MR. O'LAUGHLIN: Do it on the screen -- 17 C.O. STUBCHAER: Please, don't mark our screen. 18 MR. O'LAUGHLIN: On the overhead. That's an 19 overhead pen, it will mark it. 20 C.O. STUBCHAER: If you can see it. That may be 21 hard to see. 22 MR. HILDEBRAND: There's been a lot line adjustment 23 here, which doesn't show on this. My property comes a 24 little further than it shows here. 25 MR. O'LAUGHLIN: Okay. So you've checked four. On CAPITOL REPORTERS (916) 923-5447 16036 1 those checks -- you can go ahead and sit down, 2 Mr. Hildebrand. I'll just ask you some questions based on 3 that. Thank you. 4 Now, looking at that exhibit, you've placed four 5 check marks on it. How many separate parcels are there 6 within the property that you own, Mr. Hildebrand? 7 MR. HILDEBRAND: As I recall I think only two. I 8 think the island and the oxbow is one parcel and the rest 9 of it is another parcel. 10 MR. O'LAUGHLIN: So to describe that then, on the 11 exhibit, 116, there's a delineation of an old channel and 12 in that you've placed a check. And is that that oxbow 13 defining the scope and extent of that parcel, 14 Mr. Hildebrand? 15 MR. HILDEBRAND: That's right. 16 MR. O'LAUGHLIN: Then the next check that you put on 17 this, is a check on number -- it appears to be lot six. 18 And there appears to be a McMullen Rec 2075 within that. 19 There's two parallel lines within that. Is that the levee 20 that bisects your property, Mr. Hildebrand? 21 MR. HILDEBRAND: That is the levee, yes. The levee, 22 when it was originally conveyed, was conveyed as a fee 23 title. And then later on, I think it was about 1977, 24 there was a court decision where the levee title was 25 purely for the purpose of flood control. It did not CAPITOL REPORTERS (916) 923-5447 16037 1 severe the property. 2 MR. O'LAUGHLIN: Do you have a copy of that court 3 decree, Mr. Hildebrand? 4 MR. HILDEBRAND: Not with me. I think I may have it 5 at home. 6 MR. O'LAUGHLIN: Now, between the old channel and 7 McMullen 2075 you placed a separate check. Is that a 8 separate parcel, or is that still part of parcel number 9 six? 10 MR. HILDEBRAND: Well, I think that was a lot line 11 adjustment. 12 MR. O'LAUGHLIN: What do you mean by "lot line 13 adjustment"? 14 MR. HILDEBRAND: The property line between me and my 15 neighbor was moved over from the one line there to the 16 other. 17 MR. O'LAUGHLIN: Well, no. What I'm getting at is 18 there's an entire area between the McMullen Reclamation 19 District Number 2075 denoted on San Joaquin River Group 20 Authority 116, and the old channel which appears to be 21 another lot. 22 Looking in that area here, is that a separate lot 23 between those two points? 24 MR. HILDEBRAND: My recollection is everything, as I 25 said before, except the island and the oxbow is all one CAPITOL REPORTERS (916) 923-5447 16038 1 piece of property. 2 MR. O'LAUGHLIN: Okay. Now, you've placed a final 3 check, Mr. Hildebrand, which appears in the upper 4 left-hand corner of the San Joaquin River Group Authority 5 116, which appears to be contiguous to the San Joaquin 6 River. 7 Is that a separate parcel, Mr. Hildebrand? 8 MR. HILDEBRAND: No. What happened was that the 9 original levee, as you can surmise from looking at this 10 thing before the river changed course, that levee went out 11 a little bit further into what is now the channel. The 12 river cut through that and then the new levee was -- there 13 was a levee setback made. And at that time it was made 14 only as an easement and not as a fee title. And so the 15 map there shows where the setback levee is. 16 MR. O'LAUGHLIN: Okay. So looking at the map then, 17 getting back to one levee in particular, it says "McMullen 18 Reclamation District Number 2075." There's three parallel 19 lines that seem to run around the oxbow. It's denoted at 20 the bottom of the exhibit by the determination of the 21 levee. 22 Is it your understanding that at some point in 23 time that fee title was held by some other property owner 24 other than yourself to that levee? 25 MR. HILDEBRAND: No. It was held by the McMullen CAPITOL REPORTERS (916) 923-5447 16039 1 Reclamation District, not by an another individual. 2 MR. O'LAUGHLIN: Another individual other than you, 3 it was held by the Reclamation District; is that correct? 4 MR. HILDEBRAND: That's correct. 5 MR. O'LAUGHLIN: Okay. Now, in addition you denoted 6 for us in the upper left-hand corner of the exhibit by the 7 check mark by the San Joaquin River there appears to be a, 8 for lack of a better word, an upside down V. 9 Is that the old levee that you were just talking 10 about, Mr. Hildebrand? 11 MR. HILDEBRAND: Yes. The set back levee, where the 12 levee was setback after the 1952 flood, I think it was. 13 MR. O'LAUGHLIN: Now, was that levee ever held in 14 fee title other than the owner of parcel, number six? 15 MR. HILDEBRAND: Never been owned by anybody but 16 myself. 17 MR. O'LAUGHLIN: Now, on this parcel on these 18 parcels that you own, Mr. Hildebrand, you farm; is that 19 correct? 20 MR. HILDEBRAND: That's right. 21 MR. O'LAUGHLIN: Okay. Now, we've previously taken 22 your deposition so hopefully we can shortcut most of this. 23 I'm going to mark -- give you a marking pen and can you 24 mark in blue, or crosshatch in blue on the exhibit that 25 portion of the parcels that you irrigate with water from CAPITOL REPORTERS (916) 923-5447 16040 1 the San Joaquin Water Users Company? 2 MR. HILDEBRAND: All of that. 3 MR. O'LAUGHLIN: Thank you very much, 4 Mr. Hildebrand. So the record is clear, the witness has 5 marked on San Joaquin River Group Authority 116 in blue 6 the portion of his property irrigated from water from the 7 San Joaquin Water Users Company. 8 Mr. Hildebrand, you also have appropriative 9 rights that you use on these parcels; is that correct? 10 MR. HILDEBRAND: That's correct. What happened was 11 that a long time ago -- I don't recall just when -- there 12 was some talk of doing away with riparian rights. So I 13 quickly doubled up and applied for licenses on the same 14 lands on which I have riparian rights. 15 And it didn't prove to be necessary, but I do 16 have licenses. There's one license for the island and the 17 oxbow and another license for the landowner on the other 18 side of the levee. 19 MR. O'LAUGHLIN: In your testimony attached to your 20 exhibits you reported, as a licensee, some of your reports 21 to the State Water Resources Control Board, Division of 22 Water Rights; is that correct? 23 MR. HILDEBRAND: That's right. 24 MR. O'LAUGHLIN: Okay. I'm looking at the one that 25 that is report of licensee for 1992, '93 and '94 and that CAPITOL REPORTERS (916) 923-5447 16041 1 is license number 7144. 2 Do you have that, Mr. Hildebrand? 3 MR. HILDEBRAND: Yes. 4 MR. O'LAUGHLIN: Okay. On this, the license period 5 is from May 1st to November 1st. Do you see that? 6 MR. HILDEBRAND: Yes. 7 MR. O'LAUGHLIN: Okay. And, yet, when you're -- 8 when you're filling out the report, I notice in the 9 bottom, "Complete for diversion projects," in 1992 it 10 denotes that water was diverted in March and April; 1993 11 it denotes that water was diverted in April; and then in 12 1994 it denotes that water was diverted in March and 13 April. 14 Those would be outside the license permit 15 conditions, wouldn't they be, Mr. Hildebrand -- 16 MR. HILDEBRAND: It's my understanding -- 17 C.O. STUBCHAER: Excuse me. 18 MR. O'LAUGHLIN: Let me finish my question. That 19 you would be diverting outside your license if you had 20 actually diverted water in March and April for those time 21 periods? 22 MR. HERRICK: I believe there's some confusion here. 23 Perhaps, I don't have one of those copies. I believe we 24 attached to Alex's uses in '94, '95 and '96. And did I 25 miss one here for '93? Is there one for '93 that I didn't CAPITOL REPORTERS (916) 923-5447 16042 1 bring? 2 MR. O'LAUGHLIN: Well, I'll hand it to you. 3 MR. HERRICK: Thank you. 4 MR. O'LAUGHLIN: And I have extra copies if anybody 5 wants them. We'll mark these as additional exhibits. 6 What's my next one, Vicky, 117? 7 MS. WHITNEY: Yes. 8 MR. O'LAUGHLIN: We will mark for identification the 9 front pages of "License for Diversion and Use of Water for 10 Alex Hildebrand and Barbara Hildebrand," and attached to 11 that is report of licensee for '94, '95 and '96 as San 12 Joaquin River Group Authority Exhibit 117. 13 And then the next one that we'll have marked is 14 San Joaquin River Group Authority 118, "Report of Licensee 15 for 1992, '93 and '94." And we'll have that marked as San 16 Joaquin River Group Authority 118. 17 So my question is, Mr. Hildebrand, now that 18 you've had a chance to use this, if your license is for 19 May 1st to November 1st, why are you reporting water uses 20 in March and April in 1992? 21 MR. HILDEBRAND: It's my understanding that the 22 State likes us to report on our water use, on our riparian 23 rights as well as our license rights. And so I haven't 24 distinguished between the diversions made under one right 25 versus the other. And so these are the months in which we CAPITOL REPORTERS (916) 923-5447 16043 1 actually use water. 2 MR. O'LAUGHLIN: So how is there any knowledge by 3 anybody to know how much water you have appropriated 4 pursuant to your licenses in any given year? 5 MR. HILDEBRAND: Would you repeat the question, 6 please? 7 MR. O'LAUGHLIN: Well, yeah, sure. In other words, 8 how do we know the amount of water that is being used 9 pursuant to your license in any given year? 10 MR. HILDEBRAND: The State doesn't require that we 11 have a quantitative amount if we don't have a metering 12 system. Therefore, we just report the months in which we 13 divert. 14 MR. O'LAUGHLIN: How do you know if you've exceeded 15 or not the three -- on looking at Exhibit 118, how you 16 know whether or not you've exceeded the .5 cfs, cubic feet 17 per second, from April 1st to November 1st? 18 MR. HILDEBRAND: My pump doesn't pump more than 19 that. 20 MR. O'LAUGHLIN: Okay. And would that be the same 21 in regards to San Joaquin River Group Exhibit 117 where it 22 has a 3.3 cfs diversion amount? 23 MR. HILDEBRAND: I believe so. 24 MR. O'LAUGHLIN: Now, Mr. Hildebrand, in regards to 25 the acreage that you've denoted in blue on the map, you CAPITOL REPORTERS (916) 923-5447 16044 1 receive that water from the San Joaquin Water Users 2 Company; is that correct? 3 MR. HILDEBRAND: That's right. 4 MR. O'LAUGHLIN: Okay. Can you tell us who the San 5 Joaquin Water Users Company is? 6 MR. HILDEBRAND: Well, I'm president of that 7 association. It's a nonprofit company, which diverts 8 water from the San Joaquin near the upper end of our 9 district, at the upper end and distributes that water over 10 about 1400 acres within the district. 11 MR. O'LAUGHLIN: And that's pursuant to an 12 appropriative right; is that correct? 13 MR. HILDEBRAND: Yes, but the recipients of the 14 water, most of them have riparian rights. 15 MR. O'LAUGHLIN: Yeah, but the license, the 16 permit -- the application, the permit and the license is 17 founded on an appropriative right and not a riparian 18 right; is that correct? 19 MR. HILDEBRAND: That's true, but if the company 20 weren't providing that service, the riparians could just 21 put in their own pumps and do the same thing. 22 MR. O'LAUGHLIN: Well, is it your understanding, 23 then, that an appropriator could divert water to a 24 riparian parcel under its appropriative right and call it 25 riparian water? CAPITOL REPORTERS (916) 923-5447 16045 1 MR. HILDEBRAND: Well, I don't know what the 2 legalities are, but the reality is that the lands -- with 3 a minor exception, the lands that are provided with water 4 by the company system do have riparian rights and would 5 have every right to make their own diversion. It's much 6 more economical to do it this way. 7 MR. O'LAUGHLIN: Okay. And that's based on your 8 understanding of the appropriative water rights law in the 9 State of California; is that correct? 10 MR. HILDEBRAND: As I say, I'm uncertain of just 11 what the legality of this might be. If somebody would 12 make a big issue of it, you might force all those people 13 to put in their own pumps. 14 MR. O'LAUGHLIN: Okay. 15 MR. HILDEBRAND: But I don't see where that would be 16 productive. 17 MR. O'LAUGHLIN: Now, what is your position in 18 regards to the San Joaquin River Water Users Company? 19 MR. HILDEBRAND: As I said, I'm president. 20 MR. O'LAUGHLIN: Okay. Now, we've had marked as San 21 Joaquin River Group Authority 119. 22 MR. HERRICK: Thank you. 23 MR. O'LAUGHLIN: If you would look at Exhibit 119, 24 Mr. Hildebrand? 25 MR. HILDEBRAND: Yes. CAPITOL REPORTERS (916) 923-5447 16046 1 MR. O'LAUGHLIN: Now, this is the license for 2 diversion and use of water for the San Joaquin River Water 3 Users Company and attached to it are several reports of 4 licensees. 5 Do you see that? 6 MR. HILDEBRAND: Yes. 7 MR. O'LAUGHLIN: Okay. Now, if we look at this 8 document we would note that on the first right that 9 there's a period of use from January 1st to December 1st 10 of each year. Do you see that? 11 MR. HILDEBRAND: Yes. 12 MR. O'LAUGHLIN: Okay. And the maximum amount 13 diverted under this license shall not exceed 6,637 14 acre-feet per year. Do you see that? 15 MR. HILDEBRAND: Okay. 16 MR. O'LAUGHLIN: Okay. Now, I noticed in here that 17 on the first report of licensee for 1992, '93 and '94 that 18 the boxes had been checked for the time period 1992, for 19 example, from March through November of that year. 20 MR. HILDEBRAND: Yes. 21 MR. O'LAUGHLIN: Okay. Now, does the San Joaquin 22 River Water Users Company have a meter on its pump? 23 MR. HILDEBRAND: No. 24 MR. O'LAUGHLIN: All right. How does the San 25 Joaquin River Water Users Company know whether or not it CAPITOL REPORTERS (916) 923-5447 16047 1 has exceeded its maximum entitlement of 6,637 acre-feet 2 per year? 3 MR. HILDEBRAND: If you take the acreage we serve, 4 divide that into the 6,000, whatever it is, you'll find 5 that the quantity of water is quite adequate. 6 MR. O'LAUGHLIN: Yeah. But what I'm wondering is 7 how can you tell without a meter whether or not there is a 8 diversion here of up to a maximum of 2200 cfs per day. 9 And if the water users -- excuse me, not you, the San 10 Joaquin River Water Users Company starts diverting in 11 March and ends in November, they could theoretically 12 exceed the 6,637 acre-feet per year; is that correct? 13 MR. HILDEBRAND: Theoretically, yes, but what in the 14 world would we do with all that water? 15 MR. O'LAUGHLIN: Now, as in 1992 did you -- did the 16 San Joaquin River Water Users Company receive any 17 notification from the State Water Resources Control Board 18 regarding its ability to divert water in that year due to 19 the drought? 20 MR. HILDEBRAND: I believe we did as did all people 21 up and down the river system. But there was no -- it 22 didn't distinguish between superior or inferior rights. 23 And, consequently, it was really unenforceble and people 24 just continued to divert what water was available to them. 25 MR. O'LAUGHLIN: So in response to that, that was a CAPITOL REPORTERS (916) 923-5447 16048 1 general statement, would it be safe to say that it's your 2 recollection that San Joaquin River Water Users Company 3 continued to divert water in 1992? 4 MR. HILDEBRAND: Yes. But there were times when we 5 couldn't divert as much as we wanted. 6 MR. O'LAUGHLIN: Okay. Even though the State Water 7 Resources Control Board had told San Joaquin River Water 8 Company to cease their diversions? 9 MR. HILDEBRAND: I don't recall if they actually 10 said we should cease the diversion. 11 MR. O'LAUGHLIN: You said you continued to divert 12 based on your superior rights. How is it that the San 13 Joaquin River Water Users Company have a superior right to 14 anyone else within the San Joaquin River basin when they 15 have an appropriative right with a date of May 2nd of 16 1950? 17 MR. HILDEBRAND: Well, there are other appropriators 18 with rights that are inferior to that. And then there's 19 the question of this business of our people being largely 20 riparian. 21 MR. O'LAUGHLIN: Okay. So if I can understand this 22 correctly, then, your response would be that the water -- 23 the San Joaquin River Water Users Company, even though it 24 has an appropriative right, can divert water even when the 25 State Board tells it to stop diverting water pursuant to CAPITOL REPORTERS (916) 923-5447 16049 1 its appropriative right and then divert that water for 2 riparian lands? 3 MR. HILDEBRAND: Well, I can't give you a legal 4 answer to that. But so far as I know, nobody on the river 5 system stopped pumping with the kind of water right 6 situation that we have. Except, of course, when the water 7 wasn't available. 8 MR. O'LAUGHLIN: Let's mark a new one, San Joaquin 9 River Group Authority 120. Mr. Hildebrand, we've had 10 marked for identification San Joaquin River Group 11 Authority 120, "License for Diversion and Use, San Joaquin 12 Water" -- this one is "Association." In addition to that 13 it's a report for licensee for 1995, '96 and '97; 1992, 14 '93, '94; 1990, '91 and '92. 15 I'm going to go through some similar questions in 16 regards to this one, Mr. Hildebrand. It entitles the San 17 Joaquin Water Association for 4.5 cubic feet per second 18 from March 1st to November 15th of each year. 19 Do you see that? 20 MR. HILDEBRAND: I'm trying to understand just what 21 is meant here by "The Association." 22 MR. O'LAUGHLIN: Yeah, I think that's probably a 23 typo, Mr. Hildebrand, because on the next page it says 24 "San Joaquin River Water Users Company, Inc.," I think 25 that's probably a typo. You will notice the application CAPITOL REPORTERS (916) 923-5447 16050 1 license numbers are the same. 2 MR. HILDEBRAND: Okay. What was your question, 3 again? 4 MR. O'LAUGHLIN: Okay. In regards to this, these 5 are filings by the San Joaquin River Water Users, again, 6 "Reports of License"; is that correct? 7 MR. HILDEBRAND: Yes. 8 MR. O'LAUGHLIN: Who is M.K. Hildebrand? 9 MR. HILDEBRAND: My daughter. 10 MR. O'LAUGHLIN: Okay. So she filled these out and 11 she filled out, at least, the 1995, '96 and '97 report; is 12 that correct? 13 MR. HILDEBRAND: Yes. Probably the only one 14 she's -- 15 MR. O'LAUGHLIN: Now, in regards to this diversion, 16 I notice that the acreage for this diversion is less than 17 the previous diversion; is that correct, for the San 18 Joaquin River Water Users Association? 19 MR. HILDEBRAND: Well, these were very wet years. 20 And I think there were some lands that didn't take water. 21 MR. O'LAUGHLIN: My point being, Mr. Hildebrand, 22 that the total sum of acreage that can be used, that the 23 lands could be put to beneficial use are 380 acres. 24 Do you see that on the front page, description of 25 the lands, the place where the water is put to beneficial CAPITOL REPORTERS (916) 923-5447 16051 1 use? 2 MR. HILDEBRAND: I see that. I'm just pondering how 3 that happened, whether there's an error here or whether so 4 many lands were seeped, it couldn't be planted, that that 5 was all that actually got planted that year. 6 MR. O'LAUGHLIN: Well, no. This is a license for 7 diversion. The point I'm trying to make here is that the 8 place for beneficial use of water on the other license 9 entails 1,425 acres of net irrigable land within a gross 10 acreage of 1,896 acres; whereas, on this license the 11 amount of acreage is 380 acres total. 12 Do you see the difference between the two, 13 Mr. Hildebrand? 14 MR. HILDEBRAND: I see the difference. 15 MR. O'LAUGHLIN: Okay. 16 MR. HILDEBRAND: I'm at a loss to explain it at the 17 moment, because the 1400-and-some acres is the correct 18 number. 19 MR. O'LAUGHLIN: Okay. Now, is there one diversion 20 by the San Joaquin River Water Users Company, Inc., is 21 there one diversion point, Mr. Hildebrand? 22 MR. HILDEBRAND: No. 23 MR. O'LAUGHLIN: How many diversion points are 24 there? 25 MR. HILDEBRAND: We have two 40-horsepower pumps in CAPITOL REPORTERS (916) 923-5447 16052 1 the old oxbow of the river, which there are two main 2 pumps. We have another diversion further downstream of a 3 pump which may also be 40-horsepower, but I don't recall 4 for sure. 5 MR. O'LAUGHLIN: Okay. 6 MR. HILDEBRAND: And, then, we have a pump at 7 Walthall Slough to which we have a diversion right. 8 MR. O'LAUGHLIN: We'll get to that in a second. Do 9 all of these diversions divert into the same canal and 10 deliver water to the same properties? 11 MR. HILDEBRAND: They deliver into a pipe system, a 12 buried pipe, 36-inch buried pipe system, which goes 13 throughout the area and delivers to the various 14 properties, most of which have their own pipes, then, that 15 connect to that. 16 MR. O'LAUGHLIN: Okay. And how is it -- and you're 17 the president of this Board -- how is it that you 18 determine when you're delivering water, that you're 19 delivering license 7568 only to those 380 acres as opposed 20 to license 9228 which allows you to divert and supply 21 water to the 1425 acres? 22 MR. HILDEBRAND: Well, with all due respect to my 23 daughter, I think there was an error made in this report. 24 MR. O'LAUGHLIN: Isn't it true, then, though, that 25 in reality, that since you may have four delivery CAPITOL REPORTERS (916) 923-5447 16053 1 diversion points, but you have one piping system, if these 2 licenses are correct you cannot tell whether water 3 diverted under license 7568 is actually being used on the 4 lands in which it was supposed to be used and it may be 5 being used on lands for license 9228; is that correct? 6 MR. HILDEBRAND: The piping system doesn't go to any 7 lands outside the 1400-and-some odd acres. 8 MR. O'LAUGHLIN: Right. But the 380 acres may not 9 be part of the 1425 acres, so under license 7568 you may 10 be diverting 4.5 cfs and diverting it to lands outside the 11 380 acres even though it may be in the 1425; is that 12 correct, Mr. Hildebrand? 13 MR. HILDEBRAND: I cannot explain the 380 acre 14 figure. 15 MR. O'LAUGHLIN: But leaving aside that you can't 16 explain the figure, it would be correct that if you 17 diverted that water into a closed piping system and that 18 water was diverted by people outside the 380 acres, you 19 would have no way of knowing if that was done; is that 20 correct? 21 MR. HILDEBRAND: Well, since I can't identify the 22 380 acres, I can't answer your question. 23 MR. O'LAUGHLIN: Well, let me try it a different 24 way. You have one piping system that entails the entire 25 1425 acres; is that correct? CAPITOL REPORTERS (916) 923-5447 16054 1 MR. HILDEBRAND: That's right. 2 MR. O'LAUGHLIN: Okay. And within that you may have 3 380 acres that also receives water from this system; is 4 that correct? 5 MR. HILDEBRAND: Not also, but included in the 1400. 6 MR. O'LAUGHLIN: Okay. So it's within the 1400. 7 Let's call it the doughnut hole within the doughnut. 8 Wouldn't you agree that based on the way your system is 9 constructed at the San Joaquin River Water Users' Company 10 that it is possible that water diverted under license for 11 the 380 acres does not go to the 380 acres, the doughnut 12 hole, but it actually goes to the doughnut, the remaining 13 1100 acres, within the San Joaquin Water Users license? 14 MR. HILDEBRAND: Well, I don't understand your 15 question, because the license, as far as I can recall, 16 applies to the whole 1400 acres. There isn't a separate 17 license for the 380 acres. 18 MR. O'LAUGHLIN: Mr. Hildebrand, do you remember in 19 your deposition saying that in certain dry years that you 20 took water -- you went over to Walthall Slough and put in 21 a pump and began diverting water? Under what right did 22 you do that? 23 MR. HILDEBRAND: Riparian right. 24 MR. O'LAUGHLIN: Okay. Where is Walthall Slough in 25 relation to your property? And I'll give you a pen if you CAPITOL REPORTERS (916) 923-5447 16055 1 would like to mark it in green. Here you go, 2 Mr. Hildebrand. 3 MR. HILDEBRAND: I guess it's not strictly correct 4 to say that I have a riparian right on Walthall Slough. 5 But the diversion -- the branch of the Walthall Slough 6 that I was pumping out of is -- well, it's approximately 7 here. See, Walthall Slough runs down over here and then 8 it has a branch that comes through and around here. 9 MR. O'LAUGHLIN: Well, you can draw -- 10 C.O. STUBCHAER: That isn't going to -- 11 MR. O'LAUGHLIN: Go ahead, Mr. Hildebrand, you can 12 draw that on the exhibit and put it in green where 13 Walthall Slough runs in relationship to your property. 14 MR. HILDEBRAND: Well, I'll start with the branch 15 which is over here. And then the main portion of the 16 slough is over here. And that goes down and empties in 17 the San Joaquin River. It receives water from drainage 18 from the South San Joaquin Irrigation District and other 19 properties to the east, including riparian diversions, 20 diversions by the association that irrigates the upper end 21 of District 2075. 22 MR. O'LAUGHLIN: Go ahead and take a seat, 23 Mr. Hildebrand. Mr. Hildebrand has marked on San Joaquin 24 River Group Authority Exhibit 116 in green the general 25 outline of Walthall Slough. CAPITOL REPORTERS (916) 923-5447 16056 1 That slough never touches your property, does it? 2 MR. HILDEBRAND: No. I corrected myself when I said 3 I had a riparian right to it, that isn't quite correct. 4 MR. O'LAUGHLIN: Okay. So under what right did you 5 go into Walthall Slough and begin diverting water to your 6 property? 7 MR. HILDEBRAND: I guess it was the right of 8 desperation, because the water in the river had been 9 depleted to such an extent that particularly in the 10 absence of the tidal barriers, I didn't have enough water 11 to pump irrigate my land. It was all going to die. 12 So I went out and bought pipe and put in a 13 tractor-driven pump, took the water out of that, pumped it 14 over the levee, made a ditch over to the -- my neighbor's 15 property with his permission. And pumped from there into 16 the channel around the island and then I was able to pick 17 that back up, double pump it. It was very expensive, 18 caused a lot of delay in getting that water on the land. 19 I didn't run around, consult a lawyer to see whether or 20 not I was doing something wrong. 21 C.O. STUBCHAER: Ms. Whitney. 22 MS. WHITNEY: Let the record reflect that 23 Mr. Hildebrand marked the location of his diversion point 24 on Walthall Slough with a green X on the map. 25 C.O. STUBCHAER: Yes. Thank you. CAPITOL REPORTERS (916) 923-5447 16057 1 MR. O'LAUGHLIN: Going back and cleaning up some 2 prior business, we -- in regards to your license 7144 3 which is .5 cfs -- you said earlier in your testimony that 4 your diversion didn't have the capacity to divert in 5 excess of .5 cfs. 6 Do you want to correct that testimony, 7 Mr. Hildebrand? 8 MR. HILDEBRAND: Yes, I should correct that. My 9 diversion capacity ranges, depending on where I'm 10 delivering it, from about, oh, 2200 gallons per minute, to 11 about 3,000 gallons per minute. 12 MR. O'LAUGHLIN: And you would agree, in fact, that 13 at .5 cfs that's somewhere around 250 gallons per minute; 14 is that correct? 15 MR. HILDEBRAND: Yeah. At the time I got the 16 license I, perhaps, incorrectly understood that this was 17 an average rate and not a peak rate. It wouldn't be very 18 practical to irrigate at the rate of 250 gallons a minute, 19 you'd have to go night and day every day and you still 20 wouldn't get enough. 21 MR. O'LAUGHLIN: Okay. So do you know if your 22 license is a peak rate, or is it an average rate? 23 MR. HILDEBRAND: Well, I'm uncertain about that. 24 MR. O'LAUGHLIN: Okay. 25 MR. HILDEBRAND: But in any event, I have a riparian CAPITOL REPORTERS (916) 923-5447 16058 1 right to divert at whatever rate I need to. 2 MR. O'LAUGHLIN: Okay. But in regards to this 3 license, 7144, it says, 4 (Reading): 5 "The equivalent of such continuous flow 6 allowance for any 30-day period may be diverted 7 in a shorter time if there is no interference 8 with any other vested rights." 9 So are you saying that if you diverted more than 10 250 gallons per minute that you made the determination 11 that it wouldn't interfere with any other vested rights, 12 Mr. Hildebrand? 13 MR. HILDEBRAND: I'm not aware of any other vested 14 right that would be impaired by that. 15 MR. O'LAUGHLIN: Okay. So what's the purpose of 16 this license,, then, if you determine that you want to 17 divert water at any time, under any conditions and in any 18 amount, what's the purpose for the license? 19 MR. HILDEBRAND: Well, as I explained earlier -- 20 MR. HERRICK: Objection. There's no testimony that 21 Mr. Hildebrand believes that he can divert any amount at 22 any time for any purpose. 23 MR. O'LAUGHLIN: Well, under the license there is. 24 MR. HERRICK: There is no testimony, Mr. Chairman, 25 that Mr. Hildebrand said that he thought -- he believed he CAPITOL REPORTERS (916) 923-5447 16059 1 could divert any amount, at any time, at anyplace. That 2 was the basis of the question and that's not been stated 3 by the witness. 4 MR. O'LAUGHLIN: Let me withdraw that question. 5 I'll ask a different question. 6 Mr. Hildebrand, now getting back to the question 7 that I asked you earlier: How is it that you know that 8 you have not exceeded your .5 cfs from the April 1st to 9 the November time period? 10 MR. HILDEBRAND: I don't know that I haven't, but 11 I'm not worried about it because I have a riparian right 12 to make the diversions that I've made. 13 MR. O'LAUGHLIN: So if we went back in the record 14 and found that the State Water Resources Control Board had 15 actually issued cease and desist orders in 1990, '91 and 16 '92 on the San Joaquin River to the San Joaquin River -- 17 to the San Joaquin Water Users Company and, yet, your 18 reports of licenses continue to show use, your assertion 19 would be that is done under the riparian rights? 20 MR. HILDEBRAND: That's right. 21 MR. O'LAUGHLIN: Okay. On Page 1 of 8 in your 22 declaration you say, 23 (Reading): 24 "Also," comma "the State has previously taken 25 the position that all lands within the Delta CAPITOL REPORTERS (916) 923-5447 16060 1 are riparian due to the land's subsurface 2 connection with the numerous waterways of the 3 Delta." 4 Could you, please, provide me with any 5 documentation, citation, or evidence that you have for 6 that statement, Mr. Hildebrand? 7 MR. HILDEBRAND: I can't cite it at the present 8 moment, but this has been my understanding for many years. 9 MR. O'LAUGHLIN: Mr. Hildebrand, are you aware of 10 the Arkansas Act? 11 MR. HILDEBRAND: No. 12 MR. O'LAUGHLIN: Okay. Are you aware of the Swamp 13 and Overflow Act? 14 MR. HILDEBRAND: No. 15 MR. O'LAUGHLIN: On Page 2 of -- well, before I 16 leave Page 1 of 8 and 2 of 8 you talk about you and 17 Mr. Robinson as suffering harm. I had the Court Reporter 18 take down your opening testimony; unfortunately, she could 19 not get to a printer and actually transcribe it. So I 20 will read it for you. You say, 21 (Reading): 22 "I believe the evidence presented today in 23 these hearings clearly shows that granting the 24 petitions to the permits and licenses would 25 adversely effect me and most other South Delta CAPITOL REPORTERS (916) 923-5447 16061 1 diverters." 2 Do you know what South Delta diverters would not 3 be affected, Mr. Hildebrand, by the change petition? 4 MR. HILDEBRAND: I was probably being conservative. 5 Probably would affect them all, but as stated I would 6 state that with a little more thought to it. And as was 7 indicated earlier, the amount of damage we receive from 8 this tends, in part, on what else goes on, but you didn't 9 want to let us talk about that. 10 MR. O'LAUGHLIN: On Page 2 of 8, you say at the 11 bottom of the page, 12 (Reading): 13 "Again, as we have stated numerous times, if a 14 diverter wishes to change its operation within 15 its existing permit terms and conditions, it 16 may do so." 17 Do you see that testimony, Mr. Hildebrand? 18 MR. HILDEBRAND: Yes. 19 MR. O'LAUGHLIN: Have you reviewed the permits 20 and/or license for Modesto Irrigation District, Turlock 21 Irrigation District, or Merced Irrigation District? 22 MR. HILDEBRAND: No, but I'm familiar with the 23 pre-1949 provisions that apply to all such rights. 24 MR. O'LAUGHLIN: I'm just talking about any of their 25 rights, either specifically or generally, have you CAPITOL REPORTERS (916) 923-5447 16062 1 reviewed any of their water rights? 2 MR. HILDEBRAND: Not for those entities, but I have 3 on the Stanislaus. 4 MR. O'LAUGHLIN: Okay. Well, let's focus in on the 5 Merced Irrigation District first. How is it that you 6 arrive at the conclusion that they are not operating 7 within their permit terms and conditions by releasing 8 water in any year in the month of April? 9 MR. HERRICK: I would just like to object as being 10 ambiguous. The petition seeks to allow operations that 11 are different than what are allowed now. That's the 12 subject of these hearing. Mr. Hildebrand's testimony does 13 not state that he thinks that their current operations are 14 in violation of any permit. 15 MR. O'LAUGHLIN: Well -- and we should talk about 16 this point briefly, because the change petition doesn't 17 ask for a change in the operations presently existing 18 under the licenses held by the entities making them. 19 Rather it says a change in a place of use and purpose of 20 use. 21 Because technically under the licenses, these 22 entities have the ability to store water and release water 23 in the month of April. The petition seeks to gather 24 recognition that there will be an instream beneficial use 25 and to protect that water as it moves down the system from CAPITOL REPORTERS (916) 923-5447 16063 1 other appropriation. 2 So presently, even without these change 3 petitions, the entities could release this water in April 4 as they wanted to for power production or any other thing. 5 The purpose of the change petitions, however, is to 6 protect that water as it moves down the stream under 1707 7 and 1735. 8 C.O. STUBCHAER: The objection is overruled. 9 MR. HERRICK: What's the question? 10 MR. O'LAUGHLIN: The question is: Have you reviewed 11 Merced Irrigation District's permits or licenses? 12 MR. HILDEBRAND: Not reviewed that. But as I said 13 in my testimony, it's my understanding that the current 14 right of Merced is limited to storing and releasing water 15 for use within its boundaries and for the purposes covered 16 by the pre-1914 appropriative rights. 17 And if they get the change petition, they then 18 would be allowed to store water for purposes outside of 19 their boundaries and without regard to whether that change 20 would damage downstream users who now have the benefit of 21 that water. 22 So it gets back to this basic question as to 23 whether these districts have a right to store water for 24 purposes outside of their districts, which they don't now 25 have, which would be granted if the permit were provided. CAPITOL REPORTERS (916) 923-5447 16064 1 And if it is granted, then they would then have 2 the right to capture and deliver water beyond the purposes 3 of the beneficial use within their own districts, which 4 would be a significant change. 5 MR. O'LAUGHLIN: Well, Mr. Hildebrand, how do you 6 come to that conclusion when you haven't reviewed their 7 water rights, or their permits, or licenses? 8 MR. HILDEBRAND: The provisions in law as to what 9 can be in their rights is pretty clear. 10 MR. O'LAUGHLIN: Okay. But let's get back to this 11 sentence. You say, 12 (Reading): 13 "Again, as we have stated numerous times, if a 14 diverter wishes to change its operation within 15 existing permit terms and conditions, it may do 16 so." 17 You have no problem with that. What -- let me 18 ask you this: Does the Merced Irrigation District have 19 the ability to release water for power production? 20 MR. HILDEBRAND: Yes. And if they release it solely 21 for the purpose of power production, they will release it 22 in summertime when it has the highest value and it will 23 actually be helpful to us downstream. 24 If on the other hand, they're paid to shift that 25 to a different period of time, which benefits fish and CAPITOL REPORTERS (916) 923-5447 16065 1 reduces the power revenue, but they are more than offset 2 by the money they're given, then they're impacting those 3 downstream. 4 MR. O'LAUGHLIN: But, Mr. Hildebrand, in Merced 5 Irrigation District's permits and licenses it has the 6 ability to release water from its reservoirs in April, for 7 power production, in May, June, July, August and 8 September, at any time it wishes whenever it determines 9 that it's in its benefit to do so; is that correct? 10 MR. HILDEBRAND: It doesn't need a permit change to 11 do that -- 12 MR. HERRICK: Excuse me. We would just object that 13 it assumes facts not in evidence. If Mr. O'Laughlin wants 14 to introduce conditions to permits so Mr. Hildebrand can 15 review them, then he could answer the question. 16 C.O. STUBCHAER: He did make a question of it, 17 Mr. Herrick. He said "Is that correct" at the end. 18 MR. HERRICK: But I think the "is that correct" was 19 the act, not the basis of the question which were the 20 facts. 21 MR. O'LAUGHLIN: So I don't understand, 22 Mr. Hildebrand, how is it that you make this statement and 23 then, yet, you're opposed to the change petitions, because 24 if the parties already have the right to release water for 25 power production in April or May, and they wanted to do so CAPITOL REPORTERS (916) 923-5447 16066 1 and went ahead and did it and you didn't see that water 2 coming down as you've alleged in the summertime, according 3 to this statement you'd have no objection? 4 MR. HILDEBRAND: The permit to produce power, store 5 water, use it to produce water is based on a presumption 6 that that is the purpose of the permit. It's not the 7 purpose of the permit to release it at some time that is 8 less propitious from the standpoint of power in order to 9 benefit some other purpose. 10 So the permit change does, indeed, change the 11 intent of the right to produce power. Now, granted, if it 12 were beneficial for purely a power point of view to 13 release it in April rather than in July, under the 14 existing permit they could do that. But the change in the 15 permit gives them the right to make that shift to benefit, 16 and not just a power purpose. 17 MR. O'LAUGHLIN: Do you know of any permit issued by 18 the State Water Resources Control Board that has as a 19 component the production of power that says that you must 20 release water for power generation at the most 21 economically benefit time? 22 MR. HILDEBRAND: Nope, but that is the presumption 23 in granting the power permits, that it will be used in 24 that manner. And if you're going to shift that for an 25 entirely different purpose, not for power purpose, then CAPITOL REPORTERS (916) 923-5447 16067 1 you're changing the permit. 2 MR. O'LAUGHLIN: Okay. Where can I go find this 3 presumption that you've identified that power production 4 has to be at the most economically beneficial time? Where 5 would I go find that, Mr. Hildebrand? 6 MR. HERRICK: Objection. That's argumentative. 7 That could be phrased in a polite way. 8 C.O. STUBCHAER: It was all right. 9 MR. O'LAUGHLIN: I just want to know where it is. 10 MR. HERRICK: Mr. Chairman, it was certainly said 11 with a nice tone but when you ask somebody, "Where can I 12 go find this thing that you speculate on," the question is 13 more properly, "Can you cite me to someplace?" But that 14 was certainly meant as an argumentative question. 15 MR. O'LAUGHLIN: I just -- well, let me rephrase it 16 and I'm sorry if I offended you, Mr. Hildebrand. I just 17 want to know where I could go find the presumption that 18 you're talking about? 19 MR. HILDEBRAND: I don't know that the presumption 20 is in any legal document, but I think that it certainly 21 underlies the whole basis of granting the permits for 22 power. And there are other things that are not spelled 23 out in law, but which are presumptions that underlie the 24 whole framework. 25 MR. O'LAUGHLIN: Mr. Hildebrand, I want to focus on CAPITOL REPORTERS (916) 923-5447 16068 1 we've been having a lot of questions lately about these 2 critically dry periods. Did you farm from the time period 3 1987 through 1992? 4 MR. HILDEBRAND: Yes. 5 MR. O'LAUGHLIN: Did you change any of the crops 6 that you had planted from year to year based on a decrease 7 in the amount of water available to you in any of those 8 years? 9 MR. HILDEBRAND: Yes. 10 MR. O'LAUGHLIN: Oh, you did. Well, in your 11 previous testimony, in your deposition you said, "No, I 12 was so far upstream that I didn't have that problem." 13 MR. HERRICK: Excuse me. If we're going to 14 challenge a witness's statement with a deposition, then it 15 has to be introduced, he has to see it. You just can't 16 throw it out there. 17 MR. O'LAUGHLIN: Sure. 18 MR. HERRICK: It is a procedure. 19 C.O. BROWN: I missed that question. 20 C.O. STUBCHAER: Do you want it read back? 21 MR. O'LAUGHLIN: The question was: Did you change 22 any of the crops that you had planted from year to year 23 based on a decrease in the amount of water available to 24 you? And his answer here was, "No." And I'm going to 25 show him his deposition now and hopefully refresh his CAPITOL REPORTERS (916) 923-5447 16069 1 recollection. This is dated Thursday, June 25th, 1998. 2 Deposition of Alex Hildebrand, Page 62, Lines 13 through 3 17. 4 MR. HERRICK: Excuse me for interrupting. Alex, did 5 you say "no" or "yes" to his question? I thought you said 6 "yes." 7 MR. O'LAUGHLIN: Yeah. And the answer in the 8 deposition was "no." 9 MR. HERRICK: Okay. You said it in the reverse. 10 MR. HILDEBRAND: I'd have to see the context of the 11 deposition. Well, first I'm asked if I fallowed any land. 12 Not deliberately. I think what I said in the deposition 13 is correct. I don't believe that I didn't actually 14 change -- I didn't decrease the planted acreage, because 15 of the water shortage. It did influence the crops that I 16 selected to plant. 17 MR. O'LAUGHLIN: Okay. Now, did you have adequate 18 water supplies from the years 1987 for 1992 for the crops 19 that you had planted? 20 MR. HILDEBRAND: No. 21 MR. O'LAUGHLIN: No? 22 MR. HILDEBRAND: No. 23 MR. O'LAUGHLIN: Okay. You replied in your 24 deposition -- I'll read it to you, 25 // CAPITOL REPORTERS (916) 923-5447 16070 1 (Reading): 2 "So even during 1987 through 1992 drought you," 3 Mr. Alex Hildebrand, "had adequate water 4 supplies to plant the crops that you needed?" 5 Answer, "It was difficult, but yes." 6 I'll refresh your recollection, that's Page 62, 7 that's Lines 18 through 21, Thursday, June 25th, 1998, 8 deposition of Mr. Hildebrand. 9 MR. HILDEBRAND: I think you'll find that the answer 10 was qualified elsewhere in the deposition. I planted 11 these crops, but I was short of water. I did lose crop 12 yield, in some cases whole patches of crops dying out. I 13 did have to go to this extreme pumping water over the 14 levee, Walthall Slough, things of that sort in order to 15 get by. 16 MR. O'LAUGHLIN: Well, let me ask you the next 17 question: In your deposition on Page 63, then, Lines 9 18 through 15 you state -- I ask, question, 19 (Reading): 20 "What impact from 1987 through 1992 did you see 21 to the crops that you had planted? Did you 22 have poor returns, good returns, problem with 23 water or lack thereof? Did you see any 24 diminution in your income?" 25 Answer, "I don't recall that I had any loss of CAPITOL REPORTERS (916) 923-5447 16071 1 income there, except for the extra cost of 2 training to deal with the inadequate water 3 supply. In that regard, I should point out 4 that our water quality problem," dot, dot, dot. 5 MR. HILDEBRAND: I would have to go back over the 6 thing to refresh my memory. But as I recall in some of 7 those years I didn't dare plant a summer crop, I just 8 planted wheat. And we got by with a reduced water supply, 9 because I wasn't growing anything in the summer. 10 MR. O'LAUGHLIN: Further on in your deposition -- 11 and I'd like to read this into the record as well, because 12 I believe it impeaches the witness -- Page 63 of the 13 deposition, Lines 23 through 25 and Page 64, Lines 1 14 through 7. 15 (Reading): 16 Question, "So that your loss of income during 17 this time period from 1987 through 1992 was due 18 to the fact that you may have had to buy some 19 different equipment, work some different hours, 20 or hire people to work different hours in order 21 to pump the water out of the river?" 22 Answer, "Basically, that's correct." 23 Question, "Do you know how much money that was, 24 how much loss of income?" 25 Answer, "Primarily a loss of sleep and some CAPITOL REPORTERS (916) 923-5447 16072 1 extra pumping costs. I couldn't quantify it." 2 Now, Mr. Hildebrand, you had an opposition -- an 3 opportunity in your deposition to quantify for us the 4 losses that you had occurred during that time period due 5 to your crop. And, yet, you never did, that's why it 6 struck me as somewhat funny this morning when you said 7 that you had actually suffered crop damage due to a lack 8 of quantity of water in regards to Mr. Renning's 9 questions. 10 MR. HILDEBRAND: The fact that I can't quantify it 11 doesn't mean that it didn't occur. 12 MR. O'LAUGHLIN: Okay. 13 MR. HILDEBRAND: There was no incentive for me to go 14 to great lengths to try and quantify exactly how much I 15 lost, if I lost it; I lost it and was trying to get on 16 with trying to do something else. 17 So the fact that I can't -- didn't take the time 18 to endeavor to quantify it doesn't mean that I didn't have 19 a loss. And it certainly was a loss to growing wheat in 20 some years. 21 MR. O'LAUGHLIN: Okay. 22 MR. HILDEBRAND: I think that we have to distinguish 23 between the loss and the crop I planted, whether I took a 24 loss because I couldn't plant a crop that I would 25 otherwise have planted is one aspect of it. CAPITOL REPORTERS (916) 923-5447 16073 1 MR. O'LAUGHLIN: Okay. Moving on, in your testimony 2 on Page 3 of 8 you state that, 3 (Reading): 4 "Before we examine the data, I will clarify 5 that I'm primarily looking at critical dry and 6 below normal years. These are the years of 7 concern and greatest risks to the water quality 8 standard at Vernalis." 9 Do you see that statement, Mr. Hildebrand? 10 MR. HILDEBRAND: Yep. 11 MR. O'LAUGHLIN: Do you stand by that statement, 12 Mr. Hildebrand? 13 MR. HILDEBRAND: Yes. I don't rule out that there 14 can be problems in wetter years. But, for example, if you 15 have a situation where you get a whole lot of rain in the 16 fall, which may be classified it as an above normal year, 17 but then it never rains in spring, you may have a problem. 18 But, generally speaking, that is correct. 19 MR. O'LAUGHLIN: Okay. I'd like to read into the 20 record, then, Page 65 of the deposition of Mr. Alex 21 Hildebrand in Lines 15 through 25 and Page 66, Lines 1 22 through 22. 23 (Reading): 24 Question, "Now in regards to quality, generally 25 describe for me what the water quality was like CAPITOL REPORTERS (916) 923-5447 16074 1 in the San Joaquin River during the 1987 2 through 1992 drought." 3 Answer, "Our worse water quality problems don't 4 come during the very low flow years, because if 5 people down in the service area aren't getting 6 much water, they aren't draining as much and 7 the flow is low. So that amount of the water 8 coming out of New Melones required to meet the 9 Vernalis standard is it less. 10 Our biggest problem is not a below normal year, 11 particularly if it follows a dry year, because 12 then you have enough water to mobilize the salt 13 that was hanging up during the drought and 14 bring it down the river and they don't release 15 enough water out of New Melones to dilute it 16 sometimes. 17 So there have been times when the shortage of 18 releases from New Melones to maintain the 19 quality at Vernalis has been substantial." 20 Question, "Does any particular year since 1990 21 come to mind?" 22 Answer, "I could not tell you today which years 23 were particularly bad. But this is a pattern 24 of what happens: That our worst quality is not 25 in the lowest flow years and not in the wettest CAPITOL REPORTERS (916) 923-5447 16075 1 years. It's in the intermediate years." 2 Do you remember making that statement during your 3 deposition, Mr. Hildebrand? 4 MR. HILDEBRAND: Yeah. That's a correct statement. 5 MR. O'LAUGHLIN: Okay. So how are we to take that 6 statement and make it jive with the statement that you're 7 most concerned about critical and dry years -- 8 MR. HILDEBRAND: And below normal years. 9 MR. O'LAUGHLIN: -- and below normal years at 10 Vernalis? 11 MR. HILDEBRAND: Okay. I'll explain that for you. 12 What happens is that the CVP delivers water down to the 13 west side of the valley, that water carries with it as 14 much as a million tons of salt, dissolved salt which 15 originates from the bay. That's applied in the lands down 16 there. And then several hundred thousand tons a year of 17 that, on average, drain into the San Joaquin River and 18 create the salinity problems which we otherwise wouldn't 19 have. 20 Now, if you have a year when there's very small 21 deliveries to those people, you're not shipping a lot of 22 salt to them. And they aren't applying a lot of water, so 23 the salt isn't leaching into the river. Then you come 24 along and get something like a below normal year, where 25 there's enough to flush it into the river but not dilute CAPITOL REPORTERS (916) 923-5447 16076 1 it very much, consequently, it takes a lot of dilution 2 when it comes down. 3 If you have several critical years in a row, on 4 the other hand, so that the flow is low and the amount of 5 salt being flushed down is low, then it takes less release 6 from New Melones to dilute it down to meet the standard 7 than if it's a below normal year and you have larger flow. 8 So if you look at the amount of water it takes to 9 meet the Vernalis standard and the various year types, it 10 doesn't peak out in a couple critical years, it peaks out 11 in the years when we have somewhat more flow but not a 12 high flow. And so that's the pattern of what happens. 13 C.O. STUBCHAER: Mr. O'Laughlin, I noticed you 14 looking at your watch. 15 MR. O'LAUGHLIN: Yeah. Can we take a break right 16 now? 17 C.O. STUBCHAER: Before we do, you have gone 18 somewhat over the hour. And I wanted to ask you how much 19 more time you were going to need? 20 MR. O'LAUGHLIN: Can I answer that question after 21 the break, would that be fair? 22 C.O. STUBCHAER: Sure. 23 MR. O'LAUGHLIN: I want to get organized and review 24 some of my notes and stuff and come back and I could 25 probably give you a much better estimate of the time CAPITOL REPORTERS (916) 923-5447 16077 1 period. 2 C.O. STUBCHAER: All right. That would be fine. 3 Let's take our afternoon break. 4 MR. O'LAUGHLIN: Thank you very much, Mr. Chairman. 5 (Recess taken from 2:20 p.m. to 2:34 p.m.) 6 C.O. STUBCHAER: We'll reconvene. 7 Mr. O'Laughlin, have you completed your estimate? 8 MR. O'LAUGHLIN: I'm almost absolutely positive I 9 will go no longer than 3:00, almost. 10 C.O. STUBCHAER: All right. "Almost," is that an 11 offer of proof? 12 C.O. BROWN: I think I've heard that before, 13 Mr. Chairman. 14 C.O. STUBCHAER: Please, proceed. That's fine. 15 MR. O'LAUGHLIN: I will endeavor to finish by that 16 time. 17 Mr. Hildebrand, on Page 5 of 8 and running over 18 into -- I believe it's on Page 5 of 8 and 4 of 8, have you 19 actually reviewed the new work that was done by 20 Mr. Steiner and submitted last week to the State Board in 21 regards to exceedances in salinity? 22 MR. HILDEBRAND: I read some of the 23 cross-examination of Mr. Steiner. I didn't actually hear 24 the testimony, but I've just been handed the list of his 25 responses regarding 51 instances of worst salinity at CAPITOL REPORTERS (916) 923-5447 16078 1 Vernalis for the April analysis, summarized as follows. 2 MR. O'LAUGHLIN: Is that the first time you've seen 3 that document, Mr. Hildebrand? 4 MR. HILDEBRAND: I just glanced at it just before we 5 sat down this morning, but I hadn't read the whole thing. 6 MR. O'LAUGHLIN: Thank you. In regards -- on Page 5 7 of 8 of your exhibit, you said, 8 (Reading): 9 "In addition, Mr. Steiner admitted that 10 additional purchases on the tributaries would 11 exacerbate the problem of water quality and 12 quantity." 13 Do you see that? 14 MR. HILDEBRAND: Yes. 15 MR. O'LAUGHLIN: And, then, you cite to Reporter's 16 transcript, 1468, Lines 10 through 15. Do you see that? 17 MR. HILDEBRAND: Yep. 18 MR. GODWIN: Here's the page number 1460. 19 MR. O'LAUGHLIN: Okay. You cite to Reporter's 20 transcript 1460, Lines 10 through 15, stating -- and I'll 21 reemphasize this again -- 22 (Reading): 23 "Mr. Steiner admitted that additional purchases 24 on the tributaries would exacerbate the 25 problem of water quality and quantity." CAPITOL REPORTERS (916) 923-5447 16079 1 Can you point that out to me where he says that, 2 Mr. Hildebrand? 3 MR. HILDEBRAND: Not in that particular exchange. I 4 see he does acknowledge, but he took account of it. But 5 the documents you have up there doesn't actually state 6 that it would exacerbate it. 7 MR. O'LAUGHLIN: Okay. Then on Page 5 of 8 of your 8 testimony is incorrect then, Mr. Steiner did not say that 9 the additional purchases on the tributaries would 10 exacerbate the problem of water quality and quantity, 11 citing to RT 1460, Lines 10 through 15; is that correct? 12 MR. HILDEBRAND: It's my recollection that he did at 13 some point in time make that statement, but evidently it's 14 not in this reference. 15 MR. O'LAUGHLIN: Well, you put this together. I'm 16 assuming you put down the right reference. Is that 17 correct, Mr. Hildebrand? 18 MR. HILDEBRAND: Well, some of us occasionally make 19 mistakes. 20 MR. O'LAUGHLIN: Okay. Let's go to another mistake, 21 then. On Page 6 of 8 you had a typographical error; is 22 that correct, 57 instead of 68 degrees? 23 MR. HILDEBRAND: Yeah. 24 MR. O'LAUGHLIN: Okay. In that regard you cited -- 25 your attorney cited to the Reporter's transcript again; is CAPITOL REPORTERS (916) 923-5447 16080 1 that correct? 2 MR. HILDEBRAND: Yeah. 3 MR. O'LAUGHLIN: Okay. Now, in this you say that at 4 "68 degrees in summer months in order to protect steelhead 5 trout, a federally listed threatened species." Do you see 6 that, Mr. Hildebrand? 7 MR. HILDEBRAND: Yeah. 8 MR. O'LAUGHLIN: Can we put up on the board -- what 9 page number is that again, Art? 10 MR. GODWIN: It's 9451. 11 MR. O'LAUGHLIN: Thank you. 9451, the lines that 12 your attorney gave us are paragraphs 1 through 18. Can 13 you cite for me where in there it says that, "68 degrees 14 Fahrenheit in summer months in order to protect steelhead 15 trout, a federally listed threatened species"? 16 MR. HILDEBRAND: Well, the document you've put up 17 there, which is the one we referred to apparently, doesn't 18 directly address steelhead trout. So my recollection may 19 have been confused by my attendance at a meeting that was 20 held in Stockton in which the steelhead trout concerns 21 were aired by those who have made this decision on 22 steelhead trout. 23 And they indicated that you did, indeed, need to 24 have that kind of temperature. In fact, I'm not sure they 25 didn't specify a lower temperature for the trout. CAPITOL REPORTERS (916) 923-5447 16081 1 MR. O'LAUGHLIN: So your testimony is mistaken, 2 again; isn't it correct, Mr. Hildebrand? 3 MR. HILDEBRAND: Possibly the reference was confused 4 with another reference. 5 MR. O'LAUGHLIN: Okay. So now you're referring to 6 some meeting that you had at some point in time where 7 somebody may have mentioned that 68 degrees is what is 8 needed; is that correct? 9 MR. HILDEBRAND: I'm recollecting that there may 10 have been some confusion in my mind between this statement 11 and the statements that were made in this meeting at the 12 Stockton East establishment for the purpose of discussing 13 the steelhead trout problem and attended by those who had 14 actually prepared the information that led to the 15 steelhead trout being listed. 16 MR. O'LAUGHLIN: Do you know how much water it would 17 take to maintain a temperature of 68 degrees in the main 18 stem of the San Joaquin River in the months of June, July 19 or August? 20 MR. HILDEBRAND: Well, it was part of the point that 21 was discussed at this meeting, that it seems entirely 22 impossible. And, therefore, the steelhead trout, if they 23 required that temperature to migrate, must only have 24 migrated when the temperature was good, which would only 25 be in wet years. Therefore, it didn't seem to make sense CAPITOL REPORTERS (916) 923-5447 16082 1 to say that you had to have that temperature in other 2 years. 3 That they only went out if the conditions were 4 propitious. So there was quite a bit of discussion on the 5 question of whether it was reasonable to say that you had 6 to have that on a regular basis for steelhead trout if 7 historically they didn't have it. 8 C.O. STUBCHAER: Mr. Campbell. 9 MR. CAMPBELL: I'd like to object to that answer on 10 the grounds that it's providing hearsay evidence. And I 11 would like to ask the Board on the basis of that 12 objection, certainly, allow Mr. Hildebrand's statements to 13 come in, but to note that they can't form the basis of any 14 findings that can be made by the Board in these 15 proceedings. 16 C.O. STUBCHAER: The objection is noted. And as we 17 previously stated, the Board will consider these factors 18 in giving weight to the evidence. 19 MR. O'LAUGHLIN: Page 5 of 8, Mr. Hildebrand, you 20 talk about insufficient water to meet the channel 21 depletion needs of South Delta Water Agency. And I went 22 back and I specifically looked through your testimony 23 about whether or not I'd asked you these questions. And I 24 hadn't. 25 When you did the channel depletion analysis that CAPITOL REPORTERS (916) 923-5447 16083 1 you submitted as a South Delta Water Agency exhibit, was 2 that depletion, did that include the diversions by 3 Westside Irrigation District? 4 MR. HILDEBRAND: Yes, it would have included that. 5 MR. O'LAUGHLIN: And would it have included Banta 6 Carbona? 7 MR. HILDEBRAND: Yes. 8 MR. O'LAUGHLIN: Would it have included other 9 appropriate water right holders within the Delta? 10 MR. HILDEBRAND: Those are the only significant ones 11 that I'm aware of, a big mass bulk of it is riparian. 12 MR. O'LAUGHLIN: What about isn't it true that 13 almost the entire Stewart Tract diverts pursuant to 14 appropriative licenses? 15 MR. HILDEBRAND: They may have appropriative 16 licenses, but I would assume they also have riparian 17 rights. They are certainly above the channel. 18 MR. O'LAUGHLIN: Okay. But do you know if the 19 Stewart Tract diverts pursuant to a riparian right or 20 appropriative right. 21 MR. HILDEBRAND: I don't know whether they have an 22 appropriate right or -- whether they lean on that or 23 whether they rely, basically as I do, on riparian right. 24 MR. O'LAUGHLIN: And their diversions would be 25 included within your depletion analysis; is that correct? CAPITOL REPORTERS (916) 923-5447 16084 1 MR. HILDEBRAND: Yes. 2 MR. O'LAUGHLIN: Has South Delta Water Agency ever 3 made a determination, looked at some of those large tracks 4 of land on Union Island and Roberts Island that are in the 5 interior as to whether or not those are claimed riparian 6 rights or appropriative rights? 7 MR. HILDEBRAND: There are to my knowledge a few 8 minor instances where there has been property severance 9 such as they have to rely on -- their riparian right is 10 questionable. However, as we've indicated earlier, the 11 general understanding has been that all of the lands in 12 the Delta, because of their elevation, are assumed to be 13 riparian. 14 MR. O'LAUGHLIN: Do you know whether or not on Union 15 Island in the year of 1869 if that land was basically 16 purchased in one parcel? 17 MR. HILDEBRAND: I can't say. 18 MR. O'LAUGHLIN: Okay. In regards to Roberts 19 Island, do you have any knowledge as to whether or not 20 that property was purchased mainly as one parcel by one 21 owner in 1869? 22 MR. HILDEBRAND: I couldn't say. 23 MR. O'LAUGHLIN: Do you have any understanding -- 24 and since you have previously testified as a water right 25 expert -- what, if any, impact the swamp -- the Arkansas CAPITOL REPORTERS (916) 923-5447 16085 1 Act, the Swamp and Overflow Act, and Lux v. Haggin case 2 would have on claimed riparian rights in the Delta? 3 MR. HILDEBRAND: Well, I was already asked about 4 that and said I wasn't knowledgeable about those acts. 5 MR. O'LAUGHLIN: I have no further questions at this 6 time. Thank you. 7 C.O. STUBCHAER: Thank you, Mr. O'Laughlin. 8 I had no other party who wished to cross-examine. 9 Was there anyone else? Staff have questions of 10 Mr. Hildebrand? 11 MR. HOWARD: No questions. 12 C.O. STUBCHAER: Mr. Brown? 13 C.O. BROWN: No, I think it's been covered, 14 Mr. Chairman. 15 C.O. STUBCHAER: Mr. Pettit? 16 MR. PETTIT: No. 17 C.O. STUBCHAER: Okay. Mr. Herrick, you have 18 redirect? 19 MR. HERRICK: I'll just ask a couple questions, if I 20 may. Thank you. 21 ---oOo--- 22 REDIRECT EXAMINATION OF SOUTH DELTA WATER AGENCY 23 BY MR. HERRICK 24 MR. HERRICK: Mr. Hildebrand, on South Delta 60-A is 25 it your understanding that the areas that you've CAPITOL REPORTERS (916) 923-5447 16086 1 designated as your property have always been contiguous 2 with a portion of the San Joaquin River? 3 MR. HILDEBRAND: Yes. 4 MR. HERRICK: And that's notwithstanding the issue 5 that was raised about whether fee title to the McMullen 6 Reclamation District levee had ever passed? 7 MR. HILDEBRAND: Well, it's my understanding that 8 that was determined by the Court not to be a severance 9 from the riparian point of view. But even if it had been, 10 the river meander has cut off part of the original levee 11 and the setback levee, as I explained, is on a lease 12 rather than a fee title. So the riparian right would have 13 been restored. 14 MR. HERRICK: Mr. Hildebrand, do you irrigate some 15 of the land on your properties shown on Exhibit South 16 Delta Water Agency 60-A with water directly out of the San 17 Joaquin River or portions of it? 18 MR. HILDEBRAND: Yes. 19 MR. HERRICK: Do you use any water in excess of that 20 needed to irrigate the crops you grow? 21 MR. HILDEBRAND: No. 22 MR. HERRICK: Mr. Hildebrand, on San Joaquin River 23 Group Authority Exhibit 120, do you know who is referred 24 to in that permit as "San Joaquin Water Association"? 25 MR. HILDEBRAND: No, I don't. And the address it CAPITOL REPORTERS (916) 923-5447 16087 1 gives there is certainly not a current address. That's in 2 Modesto. 3 MR. HERRICK: To your knowledge, how many 4 appropriative right licenses does San Joaquin River Water 5 Users Company have? 6 MR. HILDEBRAND: It's my recollection it's just a 7 single license with more than one diversion point. 8 MR. HERRICK: That's all I have, Mr. Chairman. 9 Thank you very much. 10 C.O. STUBCHAER: Thank you. Is there any 11 recross-examination based on the redirect? 12 Mr. Godwin. 13 ---oOo--- 14 RECROSS-EXAMINATION OF SOUTH DELTA WATER AGENCY 15 BY TURLOCK IRRIGATION DISTRICT 16 BY MR. GODWIN 17 MR. GODWIN: Mr. Hildebrand, referring to San 18 Joaquin River Group Exhibit 120, you testified that you 19 don't know who the San Joaquin Water Association is; is 20 that correct? 21 MR. HILDEBRAND: I'm not familiar with that title, 22 no. 23 MR. GODWIN: Okay. But according to this license 24 for diversion and use of water issued by the State Water 25 Rights Board, license number 7568 is owned by the San CAPITOL REPORTERS (916) 923-5447 16088 1 Joaquin Water Association; is that right? 2 MR. HILDEBRAND: Well, that license number is the 3 number that is on the other exhibit here, which -- it's on 4 a report, "Report of Licensee" has that same number on it. 5 Now, whether there's a confusion in the number, 6 or in the name, or what it is, isn't clear to me. But 7 there's -- I'm not aware that there is such a thing as the 8 San Joaquin Water Association. 9 MR. GODWIN: Okay. Could it be possible that the 10 San Joaquin Water Association incorporated and changed 11 their name to the San Joaquin River Water Users Company, 12 Inc.? 13 MR. HILDEBRAND: No. No. The company was formed 14 after the flood in 1950. And I've been -- I've owned my 15 property ever since and there's never been a different 16 name. 17 MR. GODWIN: Looking at the report of licensee for 18 1990, '91 and '92 of license 7568, do you agree that the 19 license number on this "Report of Licensee" is the same 20 license number as the San Joaquin Water Association, 21 license number 7568? 22 MR. HILDEBRAND: It appears to be. 23 MR. GODWIN: And who prepared this "Report of 24 Licensee"? 25 MR. HILDEBRAND: Well, I apparently signed it CAPITOL REPORTERS (916) 923-5447 16089 1 myself. 2 MR. GODWIN: Okay. No further questions. 3 C.O. STUBCHAER: Any recross by staff? 4 MR. HOWARD: No. 5 C.O. STUBCHAER: Board Members? 6 C.O. BROWN: No. 7 C.O. STUBCHAER: Okay. That concludes -- well, 8 Mr. Herrick, do you have anything further to say? 9 MR. HERRICK: No. At this time we'd like to offer 10 into evidence -- excuse me for delaying, because I believe 11 there is -- because of what the Board struck from the 12 testimony -- we would like to offer in -- 13 MS. WHITNEY: Just a second. 14 C.O. STUBCHAER: We didn't delete any entire 15 documents. So it was just portions of the testimony. 16 MR. HERRICK: Correct. I just want to make sure 17 there wasn't something referenced in that. 18 C.O. STUBCHAER: All right. 19 MR. HERRICK: That's why I was stammering, excuse 20 me. Offer into evidence South Delta Exhibit Numbers 60-A, 21 which is one of the maps; 60-B, which was a different map; 22 60-C, which was Mr. Hildebrand's testimony; 61, which were 23 selected Reports of Licensees for Mr. Hildebrand; 62, 24 which are selected Reports for Licenses for Mr. Robinson; 25 63, were references to other water purchases and transfers CAPITOL REPORTERS (916) 923-5447 16090 1 going on; and 64 was the 1987 Department of Fish and Game 2 Agreement. 3 C.O. STUBCHAER: And I take it that 60-C was as 4 modified by the Board. 5 MR. HERRICK: Yes, certainly. Sorry. 6 C.O. STUBCHAER: All right. Are there any 7 objections? 8 Ms. Whitney. 9 MS. WHITNEY: I just wanted to point out, 62 also 10 included supplemental statements of water diversion and 11 use for Mr. Robinson, it wasn't just the license. 12 MR. HERRICK: Thank you. 13 C.O. STUBCHAER: Seeing none, they are accepted. 14 Thank you, Mr. Hildebrand. Thank you, 15 Mr. Herrick. 16 MR. HERRICK: Thank you, Mr. Chairman. 17 C.O. STUBCHAER: I'd now like to have a discussion 18 of the order of proceeding. On the schedule, which we got 19 from you, Mr. O'Laughlin, some time back, we had rebuttal 20 of MID and TID next, but that was before we had the cases 21 in chief of Merced and South San Joaquin. 22 MR. O'LAUGHLIN: What we're planning on doing now is 23 we have Merced Irrigation District coming in Monday 24 morning. And then, if necessary, South San Joaquin 25 Irrigation District that same day. And then Oakdale CAPITOL REPORTERS (916) 923-5447 16091 1 Irrigation District either later on that afternoon or 2 first thing on Tuesday morning. Then we will be completed 3 with our case in chief. 4 One thing I'd like to point out, even though my 5 exhibits were numbers with the testimony of Mr. 6 Hildebrand, I'll just offer all my exhibits at one time 7 rather than as cross-examination. So that's ours. We are 8 presently contemplating a rebuttal case and we'll be able 9 to let the Board know affirmatively on that by Monday or 10 Tuesday of next week. 11 C.O. STUBCHAER: All right. And then what about 12 South San Joaquin Irrigation District, do you have any 13 information on their case in chief? 14 MR. O'LAUGHLIN: Yes. As I said, South -- 15 C.O. STUBCHAER: I see, two days, I'm sorry. 16 MR. O'LAUGHLIN: Yeah. It depends on how long -- 17 Merced's case is fairly lengthy. They have four 18 witnesses, quite an extensive documentation. I don't know 19 how long Merced will take. 20 If we finish Merced on Monday, South San Joaquin 21 will be available to start their case that day and finish 22 it on Tuesday. And then we'll pick up Oakdale. 23 C.O. STUBCHAER: You did say that, I just didn't 24 realize they were listed under both dates. 25 C.O. STUBCHAER: Okay. Any other business to come CAPITOL REPORTERS (916) 923-5447 16092 1 before us today? 2 Mr. Nomellini? 3 MR. NOMELLINI: Do you have any idea when we might 4 be scheduling hearings for the rebuttal cases? It appears 5 fairly clear that we're not going to wrap this phase up on 6 Tuesday. 7 And I had suggested to Mr. Wilcox in the 8 cafeteria that it would be helpful if staff or Board gave 9 us a hint as to what the other hearing dates were, because 10 many of us have court dates and all kinds of things going 11 on as well. 12 C.O. STUBCHAER: Yeah. Ms. Leidigh. 13 MS. LEIDIGH: We can either send out something 14 probably tomorrow, or I could give you the tentative dates 15 right now. I have them here. 16 C.O. STUBCHAER: I have them, too, as far as I know. 17 Let's see if our dates jive. 18 MS. LEIDIGH: The tentative dates that I have are: 19 July 6th, July 7th, morning of July 8th, the afternoon of 20 July 12th, July 13th, July 14th and then 27th, the 28th 21 and the morning of the 29th. 22 C.O. STUBCHAER: Those are the same dates I have. 23 Did everyone get those? And they'll be posted on the 24 website when, tomorrow? 25 MS. LEIDIGH: We'll try and get a letter out CAPITOL REPORTERS (916) 923-5447 16093 1 tomorrow and it will also be put on the website when it 2 goes out. 3 C.O. STUBCHAER: Thank you for bringing that up, 4 Mr. Nomellini. 5 MR. NOMELLINI: The 12th happens to be a day, if we 6 can avoid that one, when a number of the parties here will 7 be in Federal Court in Fresno. 8 MR. O'LAUGHLIN: Just to -- 9 MR. GODWIN: At Mr. Nomellini's invitation. 10 MR. NOMELLINI: I was just hoping you guys would 11 wrap this thing up before then. 12 MR. O'LAUGHLIN: Just to let the Board know, yes, 13 there is a case pending in Federal District Court, Central 14 Delta Water Agency, et al., versus the United States of 15 America. The San Joaquin River Group and Authority and 16 other parties have intervened in that matter. Motions and 17 cross-motions for summary judgment are being filed and 18 Judge Wanger has set a hearing date for 9:00 a.m. I 19 believe in his chambers for a hearing on the motion for 20 summary judgment in that matter. 21 C.O. STUBCHAER: On the 12th? 22 MR. O'LAUGHLIN: On the 12th. 23 C.O. STUBCHAER: All right. Yeah. We will take 24 that off our list. 25 MR. O'LAUGHLIN: That's going to present a problem. CAPITOL REPORTERS (916) 923-5447 16094 1 C.O. STUBCHAER: I think that was afternoon only 2 anyway. 3 MS. LEIDIGH: That's correct. 4 C.O. BROWN: It was. 5 C.O. STUBCHAER: Any other comments? 6 Staff have anything? Mr. Pettit? 7 MR. PETTIT: No, nothing. 8 C.O. STUBCHAER: Okay. 9 MR. O'LAUGHLIN: Can I ask one more procedural 10 question? Is there going to be posted at any time soon an 11 update from the State Board in regards to getting 12 responses to comments out on the Draft EIR? 13 C.O. STUBCHAER: Mr. Howard, do you have any 14 response? 15 MR. HOWARD: I'm sorry. What was the question 16 again? 17 C.O. STUBCHAER: Are we going to get out any 18 responses to comments on the Draft EIR? 19 MS. LEIDIGH: I think the correct answer is that 20 staff is still working on responses to comments. And I 21 don't think there's a date right now on when that's going 22 to become available to the parties. 23 C.O. STUBCHAER: Okay. 24 MR. HOWARD: Our general intent was to release the 25 response to comments along with the final EIR CAPITOL REPORTERS (916) 923-5447 16095 1 simultaneously. 2 C.O. STUBCHAER: All right. Anything else? If not, 3 then we are adjourned until 9:00 a.m. Monday, the 28th of 4 June. 5 (The proceedings concluded at 2:59 p.m.) 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 16096 1 REPORTER'S_CERTIFICATE __________ ___________ 2 3 STATE OF CALIFORNIA ) ) ss. 4 COUNTY OF SACRAMENTO ) 5 I, MARY R. GALLAGHER, certify that I was the 6 Official Court Reporter for the proceedings named herein, 7 and that as such reporter I reported in verbatim shorthand 8 writing those proceedings; that I thereafter caused my 9 shorthand writing to be reduced to typewriting, and the 10 pages numbered 15925 through 16096 herein constitute a 11 complete, true and correct record of the proceedings. 12 IN WITNESS WHEREOF, I have subscribed this 13 certificate at Sacramento, California, on this 3rd day of 14 July, 1999. 15 16 ________________________________ MARY R. GALLAGHER, CSR #10749 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 16097