STATE WATER RESOURCES CONTROL BOARD PUBLIC HEARING 1998 BAY-DELTA WATER RIGHTS HEARING HELD AT: BONDERSON BUILDING 901 P STREET SACRAMENTO, CALIFORNIA TUESDAY, JULY 6, 1999 9:00 A.M. Reported by: ESTHER F. WIATRE CSR NO. 1564 CAPITOL REPORTERS (916) 923-5447 1 APPEARANCES BOARD MEMBERS: 2 JAMES STUBCHAER, COHEARING OFFICER 3 JOHN W. BROWN, COHEARING OFFICER MARY JANE FORSTER 4 ARTHUR BAGGET, JR. 5 STAFF MEMBERS: 6 WALTER PETTIT, EXECUTIVE DIRECTOR VICTORIA WHITNEY, CHIEF BAY-DELTA UNIT 7 THOMAS HOWARD, SUPERVISING ENGINEER 8 COUNSEL: 9 WILLIAM R. ATTWATER, CHIEF COUNSEL BARBARA LEIDIGH 10 FOR MR. HOWARD AND MR. JOHNS: 11 DANIEL, FRINK, ESQ. 12 ---oOo--- 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 PRINCETON CODORA GLENN IRRIGATION DISTRICT, et al.: 3 FROST, DRUP & ATLAS 134 West Sycamore Street 4 Willows, California 95988 BY: J. MARK ATLAS, ESQ. 5 JOINT WATER DISTRICTS: 6 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON: 7 P.O. BOX 1679 Oroville, California 95965 8 BY: WILLIAM H. BABER III, ESQ. 9 CALIFORNIA SPORTFISHING PROTECTION ALLIANCE: 10 ROBERT J. BAIOCCHI P.O. Box 357 11 Quincy, California 12 BELLA VISTA WATER DISTRICT: 13 BRUCE L. BELTON, ESQ. 2525 Park Marina Drive, Suite 102 14 Redding, California 96001 15 WESTLANDS WATER DISTRICT: 16 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Capitol Mall, 27th Floor 17 Sacramento, California 95814 BY: THOMAS W. BIRMINGHAM, ESQ. 18 and JON ROBIN, ESQ. 19 THE BAY INSTITUTE OF SAN FRANCISCO: 20 GARY BOBKER 21 55 Shaver Street, Suite 330 San Rafael, California 94901 22 CITY OF ANTIOCH, et al.: 23 FREDERICK BOLD, JR., ESQ. 24 1201 California Street, Suite 1303 San Francisco, California 94109 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 LEAGUE OF WOMEN VOTERS: 3 ROBERTA BORGONOVO 2480 Union Street 4 San Francisco, California 94123 5 UNITED STATES DEPARTMENT OF THE INTERIOR: 6 OFFICE OF THE SOLICITOR 2800 Cottage Way, Room E1712 7 Sacramento, California 95825 BY: ALF W. BRANDT, ESQ. 8 and JAMES TURNER, ESQ. 9 10 CALIFORNIA URBAN WATER AGENCIES: 11 BYRON M. BUCK 455 Capitol Mall, Suite 705 12 Sacramento, California 95814 13 RANCHO MURIETA COMMUNITY SERVICES DISTRICT: 14 MCDONOUGH, HOLLAND & ALLEN 555 Capitol Mall, 9th Floor 15 Sacramento, California 95814 BY: VIRGINIA A. CAHILL, ESQ. 16 CALIFORNIA DEPARTMENT OF FISH AND GAME: 17 OFFICE OF ATTORNEY GENERAL 18 1300 I Street, Suite 1101 Sacramento, California 95814 19 BY: MATTHEW CAMPBELL, ESQ. 20 NATURAL RESOURCES DEFENSE COUNCIL: 21 HAMILTON CANDEE, ESQ. 71 Stevenson Street 22 San Francisco, California 94105 23 24 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 ARVIN-EDISON WATER STORAGE DISTRICT, et al.: 3 DOOLEY HERR & WILLIAMS 3500 West Mineral King Avenue, Suite C 4 Visalia, California 93291 BY: DANIEL M. DOOLEY, ESQ. 5 SACRAMENTO MUNICIPAL UTILITY DISTRICT: 6 LESLIE A. DUNSWORTH, ESQ. 7 6201 S Street Sacramento, California 95817 8 SOUTH SAN JOAQUIN IRRIGATION DISTRICT, et al.: 9 BRAY, GEIGER, RUDQUIST & NUSS 10 311 East Main Street, 4th Floor Stockton, California 95202 11 BY: STEVEN P. EMRICK, ESQ. 12 EAST BAY MUNICIPAL UTILITY DISTRICT: 13 EBMUD OFFICE OF GENERAL COUNSEL 375 Eleventh Street 14 Oakland, California 94623 BY: FRED S. ETHERIDGE, ESQ. 15 GOLDEN GATE AUDUBON SOCIETY: 16 ARTHUR FEINSTEIN 17 2530 San Pablo Avenue, Suite G Berkeley, California 94702 18 CONAWAY CONSERVANCY GROUP: 19 UREMOVIC & FELGER 20 P.O. Box 5654 Fresno, California 93755 21 BY: WARREN P. FELGER, ESQ. 22 THOMES CREEK WATER ASSOCIATION: 23 THOMES CREEK WATERSHED ASSOCIATION P.O. Box 2365 24 Flournoy, California 96029 BY: LOIS FLYNNE 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 COURT APPOINTED REPS OF WESTLANDS WD AREA 1, et al.: 3 LAW OFFICES OF SMILAND & KHACHIGIAN 601 West Fifth Street, Seventh Floor 4 Los Angeles, California 90075 BY: CHRISTOPHER G. FOSTER, ESQ. 5 CITY AND COUNTY OF SAN FRANCISCO: 6 OFFICE OF THE CITY ATTORNEY 7 1390 Market Street, Sixth Floor San Francisco, California 94102 8 BY: DONN W. FURMAN, ESQ. 9 CAMP FAR WEST IRRIGATION DISTRICT, et al.: 10 DANIEL F. GALLERY, ESQ. 926 J Street, Suite 505 11 Sacramento, California 95814 12 BOSTON RANCH COMPANY, et al.: 13 J.B. BOSWELL COMPANY 101 West Walnut Street 14 Pasadena, California 91103 BY: EDWARD G. GIERMANN 15 SAN JOAQUIN RIVER GROUP AUTHORITY, et al.: 16 GRIFFTH, MASUDA & GODWIN 17 517 East Olive Street Turlock, California 95381 18 BY: ARTHUR F. GODWIN, ESQ. 19 NORTHERN CALIFORNIA WATER ASSOCIATION: 20 RICHARD GOLB 455 Capitol Mall, Suite 335 21 Sacramento, California 95814 22 PLACER COUNTY WATER AGENCY, et al.: 23 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Capitol Mall, 27th Floor 24 Sacramento, California 95814 BY: JANET GOLDSMITH, ESQ. 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 ENVIRONMENTAL DEFENSE FUND: 3 DANIEL SUYEYASU, ESQ. and 4 THOMAS J. GRAFF, ESQ. 5655 College Avenue, Suite 304 5 Oakland, California 94618 6 CALAVERAS COUNTY WATER DISTRICT: 7 SIMON GRANVILLE P.O. Box 846 8 San Andreas, California 95249 9 CHOWCHILLA WATER DISTRICT, et al.: 10 GREEN, GREEN & RIGBY P.O. Box 1019 11 Madera, California 93639 BY: DENSLOW GREEN, ESQ. 12 CALIFORNIA FARM BUREAU FEDERATION: 13 DAVID J. GUY, ESQ. 14 2300 River Plaza Drive Sacramento, California 95833 15 SANTA CLARA VALLEY WATER DISTRICT: 16 MORRISON & FORESTER 17 755 Page Mill Road Palo Alto, California 94303 18 BY: KEVIN T. HAROFF, ESQ. 19 CITY OF SHASTA LAKE: 20 ALAN N. HARVEY P.O. Box 777 21 Shasta Lake, California 96019 22 COUNTY OF STANISLAUS: 23 MICHAEL G. HEATON, ESQ. 926 J Street 24 Sacramento, California 95814 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 GORRILL LAND COMPANY: 3 GORRILL LAND COMPANY P.O. Box 427 4 Durham, California 95938 BY: DON HEFFREN 5 SOUTH DELTA WATER AGENCY: 6 JOHN HERRICK, ESQ. 7 3031 West March Lane, Suite 332 East Stockton, California 95267 8 COUNTY OF GLENN: 9 NORMAN Y. HERRING 10 525 West Sycamore Street Willows, California 95988 11 REGIONAL COUNCIL OF RURAL COUNTIES: 12 MICHAEL B. JACKSON, ESQ. 13 1020 Twelfth Street, Suite 400 Sacramento, California 95814 14 DEER CREEK WATERSHED CONSERVANCY: 15 JULIE KELLY 16 P.O. Box 307 Vina, California 96092 17 DELTA TRIBUTARY AGENCIES COMMITTEE: 18 MODESTO IRRIGATION DISTRICT 19 P.O. Box 4060 Modesto, California 95352 20 BY: BILL KETSCHER 21 SAVE THE SAN FRANCISCO BAY ASSOCIATION: 22 SAVE THE BAY 1736 Franklin Street 23 Oakland, California 94612 BY: CYNTHIA L. KOEHLER, ESQ. 24 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 BATTLE CREEK WATERSHED LANDOWNERS: 3 BATTLE CREEK WATERSHED CONSERVANCY P.O. Box 606 4 Manton, California 96059 5 BUTTE SINK WATERFOWL ASSOCIATION, et al.: 6 MARTHA H. LENNIHAN, ESQ. 455 Capitol Mall, Suite 300 7 Sacramento, California 95814 8 CITY OF YUBA CITY: 9 WILLIAM P. LEWIS 1201 Civic Center Drive 10 Yuba City 95993 11 BROWNS VALLEY IRRIGATION DISTRICT, et al.: 12 BARTKEWICZ, KRONICK & SHANAHAN 1011 22nd Street, Suite 100 13 Sacramento, California 95816 BY: ALAN B. LILLY, ESQ. 14 CONTRA COSTA WATER DISTRICT: 15 BOLD, POLISNER, MADDOW, NELSON & JUDSON 16 500 Ygnacio Valley Road, Suite 325 Walnut Creek, California 94596 17 BY: ROBERT B. MADDOW, ESQ. 18 GRASSLAND WATER DISTRICT: 19 DON MARCIOCHI 22759 South Mercey Springs Road 20 Los Banos, California 93635 21 SAN LUIS CANAL COMPANY: 22 FLANNIGAN, MASON, ROBBINS & GNASS 3351 North M Street, Suite 100 23 Merced, California 95344 BY: MICHAEL L. MASON, ESQ. 24 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 STONY CREEK BUSINESS AND LAND OWNERS COALITION: 3 R.W. MCCOMAS 4150 County Road K 4 Orland, California 95963 5 TRI-DAM POWER AUTHORITY: 6 TUOLUMNE UTILITIES DISTRICT P.O. Box 3728 7 Sonora, California 95730 BY: TIM MCCULLOUGH 8 DELANO-EARLIMART IRRIGATION DISTRICT, et al.: 9 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 10 P.O. Box 1679 Oroville, California 95965 11 BY: JEFFREY A. MEITH, ESQ. 12 HUMANE FARMING ASSOCIATION: 13 BRADLEY S. MILLER 1550 California Street, Suite 6 14 San Francisco, California 94109 15 CORDUA IRRIGATION DISTRICT, et al.: 16 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 17 Oroville, California 95965 BY: PAUL R. MINASIAN, ESQ. 18 EL DORADO COUNTY WATER AGENCY: 19 DE CUIR & SOMACH 20 400 Capitol Mall, Suite 1900 Sacramento, California 95814 21 BY: DONALD B. MOONEY, ESQ. 22 GLENN COUNTY FARM BUREAU: 23 STEVE MORA 501 Walker Street 24 Orland, California 95963 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 MODESTO IRRIGATION DISTRICT: 3 JOEL MOSKOWITZ P.O. Box 4060 4 Modesto, California 95352 5 PACIFIC GAS & ELECTRIC: 6 RICHARD H. MOSS, ESQ. P.O. Box 7442 7 San Francisco, California 94120 8 CENTRAL DELTA WATER AGENCY, et al.: 9 NOMELLINI, GRILLI & MCDANIEL P.O. Box 1461 10 Stockton, California 95201 BY: DANTE JOHN NOMELLINI, ESQ. 11 and DANTE JOHN NOMELLINI, JR., ESQ. 12 TULARE LAKE BASIN WATER STORAGE UNIT: 13 MICHAEL NORDSTROM 14 1100 Whitney Avenue Corcoran, California 93212 15 AKIN RANCH, et al.: 16 DOWNEY, BRAND, SEYMOUR & ROHWER 17 555 Capitol Mall, 10th Floor Sacramento, California 95814 18 BY: KEVIN M. O'BRIEN, ESQ. 19 OAKDALE IRRIGATION DISTRICT: 20 O'LAUGHLIN & PARIS 870 Manzanita Court, Suite B 21 Chico, California 95926 BY: TIM O'LAUGHLIN, ESQ. 22 SIERRA CLUB: 23 JENNA OLSEN 24 85 Second Street, 2nd Floor San Francisco, California 94105 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 YOLO COUNTY BOARD OF SUPERVISORS: 3 LYNNEL POLLOCK 625 Court Street 4 Woodland, California 95695 5 PATRICK PORGANS AND ASSOCIATES: 6 PATRICK PORGANS P.O. Box 60940 7 Sacramento, California 95860 8 BROADVIEW WATER DISTRICT, et al.: 9 DIANE RATHMANN 10 FRIENDS OF THE RIVER: 11 BETSY REIFSNIDER 128 J Street, 2nd Floor 12 Sacramento, California 95814 13 MERCED IRRIGATION DISTRICT: 14 FLANAGAN, MASON, ROBBINS & GNASS P.O. Box 2067 15 Merced, California 95344 BY: KENNETH M. ROBBINS, ESQ. 16 CENTRAL SAN JOAQUIN WATER CONSERVATION DISTRICT: 17 REID W. ROBERTS, ESQ. 18 311 East Main Street, Suite 202 Stockton, California 95202 19 METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA: 20 JAMES F. ROBERTS 21 P.O. Box 54153 Los Angeles, California 90054 22 SACRAMENTO AREA WATER FORUM: 23 CITY OF SACRAMENTO 24 980 9th Street, 10th Floor Sacramento, California 95814 25 BY: JOSEPH ROBINSON, ESQ. CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 TUOLUMNE RIVER PRESERVATION TRUST: 3 NATURAL HERITAGE INSTITUTE 114 Sansome Street, Suite 1200 4 San Francisco, California 94194 BY: RICHARD ROOS-COLLINS, ESQ. 5 CALIFORNIA DEPARTMENT OF WATER RESOURCES: 6 DAVID SANDINO, ESQ. 7 CATHY CROTHERS, ESQ. P.O. Box 942836 8 Sacramento, California 94236 9 FRIANT WATER USERS AUTHORITY: 10 GARY W. SAWYERS, ESQ. 575 East Alluvial, Suite 101 11 Fresno, California 93720 12 KERN COUNTY WATER AGENCY: 13 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Capitol Mall, 27th Floor 14 Sacramento, California 95814 BY: CLIFFORD W. SCHULZ, ESQ. 15 SAN JOAQUIN RIVER EXCHANGE CONTRACTORS: 16 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON: 17 P.O. Box 1679 Oroville, California 95965 18 BY: MICHAEL V. SEXTON, ESQ. 19 SAN JOAQUIN COUNTY: 20 NEUMILLER & BEARDSLEE P.O. Box 20 21 Stockton, California 95203 BY: THOMAS J. SHEPHARD, SR., ESQ. 22 CITY OF STOCKTON: 23 DE CUIR & SOMACH 24 400 Capitol Mall, Suite 1900 Sacramento, California 95814 25 BY: PAUL S. SIMMONS, ESQ. CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 ORLAND UNIT WATER USERS' ASSOCIATION: 3 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 4 Oroville, California 95965 BY: M. ANTHONY SOARES, ESQ. 5 GLENN-COLUSA IRRIGATION DISTRICT: 6 DE CUIR & SOMACH 7 400 Capitol Mall, Suite 1900 Sacramento, California 95814 8 BY: STUART L. SOMACH, ESQ. 9 NORTH SAN JOAQUIN WATER CONSERVATION DISTRICT: 10 JAMES F. SORENSEN CONSULTING CIVIL ENGINEER, INC. 209 South Locust Street 11 Visalia, California 93279 BY: JAMES F. SORENSEN 12 PARADISE IRRIGATION DISTRICT: 13 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 14 P.O. Box 1679 Oroville, California 95695 15 BY: WILLIAM H. SPRUANCE, ESQ. 16 COUNTY OF COLUSA: 17 DONALD F. STANTON, ESQ. 1213 Market Street 18 Colusa, California 95932 19 COUNTY OF TRINITY: 20 COUNTY OF TRINITY - NATURAL RESOURCES P.O. Box 156 21 Hayfork, California 96041 BY: TOM STOKELY 22 CITY OF REDDING: 23 JEFFERY J. SWANSON, ESQ. 24 2515 Park Marina Drive, Suite 102 Redding, California 96001 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 TULARE IRRIGATION DISTRICT: 3 TEHAMA COUNTY RESOURCE CONSERVATION DISTRICT 2 Sutter Street, Suite D 4 Red Bluff, California 96080 BY: ERNEST E. WHITE 5 STATE WATER CONTRACTORS: 6 BEST BEST & KREIGER 7 P.O. Box 1028 Riverside, California 92502 8 BY: ERIC GARNER, ESQ. 9 COUNTY OF TEHAMA, et al.: 10 COUNTY OF TEHAMA BOARD OF SUPERVISORS: P.O. Box 250 11 Red Bluff, California 96080 BY: CHARLES H. WILLARD 12 MOUNTAIN COUNTIES WATER RESOURCES ASSOCIATION: 13 CHRISTOPHER D. WILLIAMS 14 P.O. Box 667 San Andreas, California 95249 15 JACKSON VALLEY IRRIGATION DISTRICT: 16 HENRY WILLY 17 6755 Lake Amador Drive Ione, California 95640 18 SOLANO COUNTY WATER AGENCY, et al.: 19 HERUM, CRABTREE, DYER, ZOLEZZI & TERPSTRA 20 2291 West March Lane, S.B.100 Stockton, California 95207 21 BY: JEANNE M. ZOLEZZI, ESQ. 22 WESTLANDS ENCROACHMENT AND EXPANSION LANDOWNERS: 23 BAKER, MANOCK & JENSEN 5260 North Palm Avenue 24 Fresno, California 93704 BY: CHRISTOPHER L. CAMPBELL, ESQ. 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 SAN LUIS WATER DISTRICT: 3 LINNEMAN, BURGES, TELLES, VANATTA & VIERRA 1820 Marguerite Street 4 Dos Palos, California 93620 BY: THOMAS J. KEENE, ESQ. 5 6 ---oOo--- 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 1 INDEX 2 PAGE 3 RESUMPTION OF HEARING: 16396 4 SOUTH DELTA WATER AGENCY: ALEXANDER HILDEBRAND 5 DIRECT REBUTTAL EXAMINATION: BY MR. HERRICK 16396 6 CROSS-EXAMINATION: BY MR. O'LAUGHLIN 16416 7 BY BOARD MEMBERS 16422 ---oOo--- 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 1 SACRAMENTO, CALIFORNIA 2 JULY 6, 1999 3 ---oOo--- 4 C.O. STUBCHAER: Morning. Welcome back to the 5 Bay-Delta Water Rights hearing. Today we have scheduled 6 rebuttal for Phase II-B. 7 Who is going to present rebuttal today? 8 South Delta Water Agency. 9 Just South Delta Water Agency. 10 Good morning, Mr. Herrick, Mr. Hildebrand. 11 ---oOo--- 12 REBUTTAL TESTIMONY OF SOUTH DELTA WATER AGENCY 13 BY MR. HERRICK 14 MR. HERRICK: Morning. John Herrick for South Delta 15 Water Agency. 16 We just have a few topics here. I hope nobody is upset 17 if this doesn't take long. I hope I said that wrong. 18 We will just be putting on Mr. Hildebrand. I 19 anticipated one other witness, but we decided not to do 20 that. As before, I will try to link up each set of 21 questions before I ask them with the direct testimony or 22 case in chief to which it is addressing. 23 The first matter has to do with questions asked of Mr. 24 Hildebrand. Mr. Hildebrand's testimony had referred to a 25 previous study done by the State of California regarding the CAPITOL REPORTERS (916) 923-5447 16396 1 assumptions of riparian water rights in California, 2 specifically in the Delta. 3 MR. O'LAUGHLIN: I am going to object. Might as well 4 start the week off right before we get going. This isn't 5 rebuttal testimony; this is redirect. This should have been 6 brought in -- there was cross-examination of Mr. Hildebrand 7 on this. But if they wanted to clean it up then, they 8 should have done it on redirect. This truly isn't rebuttal 9 because it is not rebuttal for anything that was done in our 10 case. This is rebuttal for something that is being done in 11 their own case in chief. 12 If they wanted to provide greater documentation as to 13 what there was to support those statements in Mr. 14 Hildebrand's testimony, they should have done it originally 15 or done it on redirect. 16 C.O. STUBCHAER: Mr. Herrick. 17 MR. HERRICK: I appreciate that comment. It is my 18 understanding that rebuttal can address areas that included 19 discussions on your own case in chief and explanations, 20 rather than simply just rebuttal. Beyond that, Mr. 21 Hildebrand's testimony, it was not anticipated that anybody 22 would question that the Delta lands were riparian. I 23 thought it would be helpful to the Board to put forth the 24 information that he referenced, and that was questions on 25 cross-examination as being true or not. CAPITOL REPORTERS (916) 923-5447 16397 1 C.O. STUBCHAER: Mr. O'Laughlin. 2 MR. O'LAUGHLIN: But the whole reason to put in direct 3 testimony ahead of time, if they thought this was an issue 4 that needed to be addressed and to have the supporting 5 documentation -- remember, I asked last week on the 6 cross-examination of Mr. Hildebrand what he had to support 7 this. And the answer was, "Well, I don't know," or 8 something to that effect. 9 Well, the whole point of cross-examination based on the 10 direct is to ferret out what information is available to 11 understand it. If they had this information ahead of time 12 and that was part of Mr. Hildebrand's direct testimony, they 13 should have attached it as an exhibit or referenced it to 14 some official document or done something rather than have us 15 come back here today. And now I am sitting here and I have 16 nothing. I have seen no documents and now, all of a sudden, 17 Mr. Hildebrand is going to start talking about who's 18 riparian in the Delta. That is not the purpose of rebuttal 19 testimony. 20 C.O. STUBCHAER: Mr. Herrick, do you have any -- 21 MR. HERRICK: I just think it is the purpose of 22 rebuttal, to clarify issues that were questioned on 23 cross-examination. 24 C.O. STUBCHAER: We are going off the record. 25 (Discussion held off the record.) CAPITOL REPORTERS (916) 923-5447 16398 1 C.O. STUBCHAER: Come back to order. 2 The reason for having rebuttal testimony is to refute 3 evidence presented by others. 4 Mr. Herrick, could you explain maybe to the Board why 5 you think it is appropriate to enter into this testimony you 6 want to present now. 7 MR. HERRICK: I appreciate the concerns. It's a 8 situation where we didn't anticipate anybody would question 9 riparian use of the Delta. So the objection, I understand. 10 I am not saying it is frivolous. 11 However, in the presentation of our evidence the 12 cross-examination attempted to elicit responses that would 13 indicate that the statements by Mr. Hildebrand were 14 incorrect or not supported. I believe it was appropriate in 15 rebuttal to address that questioning and that eliciting of 16 answers, to clarify the fact. 17 If the Board does want to hear, I understand that, but 18 it is an attempt to clarify the answers elicited on 19 cross-examination. 20 C.O. STUBCHAER: Can you identify any exhibits which 21 cross-examiners produced that you would wish to rebut? 22 MR. HERRICK: The documents introduced on 23 cross-examination, as I recall, dealt with permitted use of 24 water, not riparian under licenses or permits. I am 25 thinking out loud here. CAPITOL REPORTERS (916) 923-5447 16399 1 These documents that we're setting forth do address 2 that permitted issue, also, but that was sort of incidental 3 to the purpose. I do not recall documents being introduced 4 that disputed the riparian use. 5 C.O. STUBCHAER: Given that, the objection is 6 sustained. 7 MR. HERRICK: There may be a similar objection. 8 Mr. Hildebrand, do you recall being asked questions 9 about the transfer of a levee to a reclamation district on 10 your property? 11 MR. HILDEBRAND: Yes. 12 MR. O'LAUGHLIN: Objection. 13 C.O. STUBCHAER: Mr. O'Laughlin. 14 MR. O'LAUGHLIN: This is the same issue again. This 15 was brought out in cross-examination about two levees on Mr. 16 Hildebrand's property. We asked about the nature, scope and 17 extent of those levees and title to them and how they 18 passed. 19 Mr. Hildebrand responded to those questions to the best 20 that he could. No documents were entered, either by us or 21 Mr. Hildebrand, on the question of ownership of those 22 levees. And I think it is improper at this time for South 23 Delta Water Agency to be bringing in any testimony to clear 24 up what was asked in cross-examination about the levees. 25 This is the same issue that we faced in the first CAPITOL REPORTERS (916) 923-5447 16400 1 objection. 2 There is nothing that -- if they thought that this was 3 going to be an issue about proving up certain fees or fee 4 title, they had an opportunity prior to the hearing. The 5 hearing notice requested that they bring this information. 6 They chose not to do so. Therefore, I don't think it is 7 proper to bring it up now on rebuttal. 8 C.O. STUBCHAER: Mr. Herrick. 9 MR. HERRICK: This one is different. We didn't put any 10 testimony on about the transfer of title to the levee in 11 question. That was brought out by Mr. Hildebrand. That was 12 brought by Mr. O'Laughlin on his cross-examination. And the 13 testimony from Mr. Hildebrand in response to that is 14 evidence that is, so to speak, put on by Mr. O'Laughlin. I 15 think this is a much different situation, and it is 16 certainly appropriate to provide the Board with the case 17 that Mr. Hildebrand was trying to remember on 18 cross-examination. 19 C.O. STUBCHAER: Mr. O'Laughlin. 20 MR. O'LAUGHLIN: If they have a case they want to cite 21 to in regards to ownership of property and conveyance and 22 what that does or doesn't do to the supposed riparian 23 parcel, they can cite to that in closing brief. That would 24 not be proper to ask Mr. Hildebrand those questions since he 25 wasn't proffered as an expert on riparian rights or as a CAPITOL REPORTERS (916) 923-5447 16401 1 legal expert in regards to what cases do or don't say about 2 conveyance of the property, whether riparian rights are 3 severed at different times and different places in regards 4 to those conveyances. 5 So I would object to the testimony that Mr. Hildebrand 6 is not qualified to do so. And, secondly, that it is not 7 proper for rebuttal. Remember, the notice specifically said 8 in regards to question Number 4, that if you were claiming 9 injury as a legal user of water that you would come in and 10 prove your rights, when you started to commence, under what 11 rights, so forth and so on. 12 Mr. Hildebrand said in his testimony that he was 13 riparian. If he is a riparian, he had ample opportunity to 14 bring in to the Board ahead of time all the foundational 15 material to support his right as a riparian. Our questions 16 on cross-examination were to help find out what was the 17 foundational basis for that right. We are done. That 18 wasn't introduced. That was their fault not to introduce it 19 and it's not proper for rebuttal at this time. 20 C.O. STUBCHAER: Mr. Herrick. 21 MR. HERRICK: That is incorrect. This situation is 22 clearly different. South Delta put on evidence of riparian 23 rights from some of its members. In order to prove 24 something, you don't start out by proving the negative. We 25 didn't come forward to disprove other people's complaints CAPITOL REPORTERS (916) 923-5447 16402 1 against our riparian right. We put on a prima facie case of 2 riparian use. 3 The cross-examination delved into and went over whether 4 or not something in the past had occurred which might affect 5 those riparian rights. It is clearly appropriate, we 6 believe, to address what was elicited on cross-examination 7 of an issue that we didn't bring forward; they brought it 8 forward. 9 C.O. STUBCHAER: Mr. O'Laughlin. 10 MR. O'LAUGHLIN: One final thing, Chairman Stubchaer. 11 The hearing notice says, under Phase II-B, hearing issues, 12 hearing Issue Number one: 13 If the petitioner makes such a showing, 14 however, and a party objects to the petition 15 changes based on an injury to existing water 16 rights, the party claiming injury must 17 present evidence to demonstrate the specific 18 injury to the existing water right that would 19 result from approval of the changes proposed 20 by the petition. (Reading.) 21 Here is the important sentence in regards to this 22 question: 23 In addition, the party claiming injury must 24 present evidence that describes the basis of 25 the allegedly injured party's claim of water CAPITOL REPORTERS (916) 923-5447 16403 1 right. (Reading.) 2 So, my understanding, based on the South Delta Water 3 Agency testimony, was that Mr. Hildebrand, as a riparian and 4 as an appropriator, was claiming that he was a legal user of 5 water and was describing that, based on this proposed 6 petition, he would be injured. If he was injured, then he 7 had an opportunity to present testimony ahead of time 8 proving his right under which he was describing his injury. 9 That was their call. They put it on in their direct. They 10 believed they made a prima facie case. 11 My cross-examination was only to kind of tease out some 12 questions about the foundational basis of it. I think it is 13 improper to come back and try to clean up Mr. Hildebrand's 14 testimony in rebuttal when it should have been done either 15 in redirect or done in case in chief. 16 MR. HERRICK: Excuse me, Mr. Chairman, we have now said 17 the same thing three times. Mr. Hildebrand and South 18 Delta's burden was not to anticipate any possible attack on 19 his riparian right. That attack was done on 20 cross-examination, and rebuttal is the time to address 21 that. 22 We didn't have the opportunity as these hearings go to 23 do legal research while he was on the stand. This is the 24 time to supply the information we weren't able to supply on 25 cross-examination. There is no injury to other parties CAPITOL REPORTERS (916) 923-5447 16404 1 because we didn't put it out there in the front. Somebody 2 else could question whether or not any myriad of things 3 might have affected riparian lands. That is addressed in 4 the rebuttal. That is not addressed in the case in chief. 5 The case in chief puts on information, which we did, 6 establishing a prima facie case for riparian use. We can 7 say it five more times, but that is what happened. And we 8 are rebutting the information they elicited on 9 cross-examination. It's not information we referred to on 10 direct. 11 MR. O'LAUGHLIN: One last point, Chairman, on this. I 12 find that fascinating that South Delta is taking that tact. 13 There is water right Order 89-8, which I cite in our papers 14 in regards to their coming in and testifying in regards to 15 other issues. 89-8 specifically sets forth to South Delta 16 Water Agency that when you're going to start coming in in 17 front of the State Water Resources Control Board and 18 claiming these rights, you better come and prove up your 19 rights. And the burden of proof is on you. It is not on 20 us. It is not on the petitioner. That burden is on you. 21 They had since 1989 to get their testimony together to 22 prove up their rights, bring it in front of the Board and 23 allow us to review those rights in regards to their claimed 24 injury. They failed to do so, and I don't think now is the 25 proper time on rebuttal to do it. CAPITOL REPORTERS (916) 923-5447 16405 1 MR. HERRICK: Sorry for wasting the Board's time. That 2 is just nonsense. The notice for the hearing said who had 3 to provide what. And the San Joaquin River Group Authority 4 members who put on a case in chief attempted to make their 5 prima facie case. South Delta put on their prima facie case 6 for riparian use. To think that some 1989 order required us 7 to have anticipated somebody might argue that a levee might 8 have severed a portion, not all but a portion, of Mr. 9 Hildebrand's lands that are riparian is indeed nonsense. I 10 am sorry if I am being too blunt. 11 C.O. STUBCHAER: Mr. Campbell. 12 MR. CAMPBELL: I think the bottom line is the witness 13 should not be allowed to rebut his own prior testimony 14 regardless of who's asking the question, whether it is his 15 attorney or whether another attorney or Board or staff. 16 C.O. STUBCHAER: Thank you, Mr. Campbell. 17 We are going off the record. 18 (Discussion held off the record.) 19 C.O. STUBCHAER: Back on the record. 20 The objection is overruled. 21 MR. HERRICK: Mr. Hildebrand in that cross-examination 22 you were asked about whether or not fee title to a levee 23 running across your land had passed when the levee was 24 transferred, levee lands was transferred, to Reclamation. 25 Do you recall those questions? CAPITOL REPORTERS (916) 923-5447 16406 1 MR. HILDEBRAND: I recall the questions, and I 2 indicated that there had been such a legal determination. I 3 didn't have the reference with me at the time. Mr. 4 O'Laughlin said he would like to see it. 5 The case I was referring to is Murphy Slough 6 Association, plaintiff, versus Jerry Norbert Avila, Court of 7 the Fifth District of California. 8 MR. HERRICK: Mr. Hildebrand, did that case deal 9 specifically with your land or some other situation? 10 MR. HILDEBRAND: Our land was not a party to the suit. 11 The ruling was quite general in that it indicated that when 12 the land was severed by a conveyance of fee title, but was 13 for the sole purpose of flood protection, it did not sever 14 the riparian rights. 15 MR. HERRICK: For the Board's use, the cite for that 16 case is at 27 Cal App. 3rd, 649. 17 Have you reviewed Mr. Steiner's testimony given in 18 Phase II-B? 19 MR. O'LAUGHLIN: Objection. 20 C.O. STUBCHAER: Mr. O'Laughlin. 21 MR. O'LAUGHLIN: I specifically asked Mr. Hildebrand 22 on cross-examination whether he had reviewed Mr. Steiner's 23 testimony. We went through those questions at that point in 24 time. And Mr. Hildebrand specifically put into his 25 declaration that he had reviewed Mr. Steiner's testimony in CAPITOL REPORTERS (916) 923-5447 16407 1 preparation for the hearing. And this isn't proper for 2 rebuttal, either. 3 C.O. STUBCHAER: Mr. Herrick. 4 MR. HERRICK: I am not sure I understand that. Mr. 5 Hildebrand's testimony submitted for this phase had 6 certainly reviewed prior phases' testimony, but had not 7 reviewed the exhibits and testimony provided by the San 8 Joaquin River Agreement for this phase because it hadn't 9 been received yet. 10 That is the purpose of rebuttal is for 11 Mr. Hildebrand to address evidence presented by other 12 people. 13 MR. O'LAUGHLIN: I withdraw my objection as long as it 14 is based on the testimony brought for this phase. 15 MR. HERRICK: Mr. Hildebrand, did you review Mr. 16 Steiner's testimony given in Phase II-B? 17 MR. HILDEBRAND: Yes, I did. 18 MR. HERRICK: I direct you to -- are you familiar with 19 the assumptions Mr. Steiner used in his modeling that were 20 elicited in cross-examination of Mr. Steiner in Phase II-B? 21 MR. HILDEBRAND: Yes, I am. 22 MR. HERRICK: Let me direct you to Figure 5C, which is 23 an attachment to SJRGA Exhibit 103, which is Mr. Steiner's 24 testimony. 25 Do you have 5C in front of you? CAPITOL REPORTERS (916) 923-5447 16408 1 MR. HILDEBRAND: Yes. 2 MR. HERRICK: 5C has two graphs; the upper one is the 3 Stanislaus River operations and the lower one is -- the 4 upper one is the Stanislaus River operations, New Melones 5 Reservoir storage, and the bottom one is Stanislaus River 6 operations, and it has monthly flows. 7 Do you see that? 8 MR. HILDEBRAND: That's right. 9 MR. HERRICK: Do you recall that one of the assumptions 10 that Mr. Steiner used in preparing this data was that 11 purchases of water from OID went back into the New Melones 12 carryover storage? 13 MR. HILDEBRAND: Yes. 14 MR. HERRICK: Is it your understanding that those 15 purchases can be either 15,000 acre-feet or, depending 16 whether or not some or all of OID's VAMP flows is provided, 17 that purchase of water may go up to 26,000 acre-feet? 18 MR. HILDEBRAND: That's right. 19 MR. HERRICK: Is it your understanding that Mr. 20 Steiner's modeling for both his base case and the San 21 Joaquin River Agreement run include those assumptions of 22 whether or not purchased water is placed into storage? 23 MR. HILDEBRAND: That's right. 24 MR. HERRICK: Mr. Hildebrand, are you familiar that Mr. 25 Steiner concluded that his base case -- that the San Joaquin CAPITOL REPORTERS (916) 923-5447 16409 1 River Agreement case resulted in slightly higher carryover 2 storage in New Melones; is that correct? 3 MR. HILDEBRAND: Yes. 4 MR. HERRICK: Now, Mr. Hildebrand, are you also 5 familiar with Mr. Steiner stating on cross-examination that 6 his assumption that the Bureau would put that water back 7 into storage as opposed to releasing all in any one unit was 8 not based upon any commitment that he knew about from the 9 Bureau? 10 MR. HILDEBRAND: That's right. 11 MR. HERRICK: Do you recall that that assumption was 12 not based upon any specific provision of the San Joaquin 13 River Agreement itself? 14 MR. HILDEBRAND: Yes. 15 MR. HERRICK: Mr. Hildebrand, do you have an opinion as 16 to how the modeling results might change if, rather than 17 releasing that water -- excuse me, if rather than keeping 18 that OID purchase water in storage, the Bureau released it 19 each year? 20 MR. HILDEBRAND: Then it would not be in storage. It 21 would be released for some other purpose. 22 MR. HERRICK: How would that affect the amounts of 23 water available for release from New Melones if that water 24 is not carried over as was assumed by Mr. Steiner? 25 MR. HILDEBRAND: It would not be available for release CAPITOL REPORTERS (916) 923-5447 16410 1 to meet water quality or any other purpose. 2 MR. HERRICK: Mr. Hildebrand, what would you expect if 3 the assumption was that the water was released and not 4 carried over, what would you conclude as to how the base 5 case compared to the San Joaquin River Agreement case with 6 regard to New Melones storage? 7 MR. HILDEBRAND: There would certainly be no benefit to 8 New Melones storage. 9 MR. HERRICK: Mr. Hildebrand, do you also recall that 10 Mr. Steiner made certain assumptions with regards to 11 deliveries from New Melones to OID and SSJID? 12 MR. HILDEBRAND: Yes. 13 MR. HERRICK: What was the assumption that he made with 14 regard to those deliveries? 15 MR. HILDEBRAND: He assumed that the deliveries would 16 be 600,000 every year. And we know from prior testimony 17 from the Bureau that that is not the case. They do not take 18 the entire 600,000 every year. 19 MR. HERRICK: If the entire 600,000 acre-feet was not 20 delivered each year to the two districts, by that I mean 21 Oakdale and South San Joaquin, would that have an affect on 22 the modeling results set forth in Figure 5C of Mr. Steiner's 23 testimony? 24 MR. HILDEBRAND: It certainly would. 25 MR. HERRICK: What would that affect be, if you know? CAPITOL REPORTERS (916) 923-5447 16411 1 MR. HILDEBRAND: Well, that they take less water. The 2 water then gets released for some other purpose. But 3 because of the interim operation proposal of the Bureau's, 4 it wouldn't be released for water quality. And if they did 5 take the entire amount, their consumption would be the same 6 and there would be a substantially larger return flow, 7 increasing the river, more water available downstream then 8 is the case that is under the assumption made by Mr. 9 Steiner. 10 MR. HERRICK: Are you also familiar with Mr. Steiner's 11 responses on cross-examination wherein he stated that he put 12 no value in his modeling for return flows generated by any 13 of the districts? 14 MR. HILDEBRAND: That's right. 15 MR. HERRICK: Do you believe that is a correct 16 assumption? 17 MR. HILDEBRAND: That is certainly not. If the 18 consumption remains the same and they alter the amount of 19 applied water, then that directly affects the amount of 20 return flow. 21 MR. HERRICK: If that is -- if a different assumption 22 were used which more accurately reflected what you believed 23 to be the true state of affairs with regard to return flows, 24 would that change the results of Mr. Steiner's modeling, in 25 your opinion? CAPITOL REPORTERS (916) 923-5447 16412 1 MR. HILDEBRAND: Yes. 2 MR. HERRICK: Could you give us an indication how it 3 might change those results? 4 MR. HILDEBRAND: Well, let's take an example. If the 5 South San Joaquin and OID people in a given year take, let's 6 say, 500,000 acre-feet and put a hundred thousand in their 7 so-called reserve account in the dam and then a critical 8 year comes along and they really only have 400,000 9 available from inflow, they can again take 500,000 by taking 10 that water out of the dam and applying it. And, 11 consequently, they will be applying a thousand acre-feet 12 more water to their lands, consuming the same amount and the 13 return flow then would be substantially increased in that 14 critical year. 15 MR. HERRICK: Was that sort of scenario contained in 16 any of Mr. Steiner's analysis that you know of? 17 MR. HILDEBRAND: No. 18 MR. HERRICK: Mr. Hildebrand, are you aware of whether 19 or not in any dry years in the past South San Joaquin and 20 Oakdale have had less than 600,000 available pursuant to the 21 calculation that determines their -- 22 MR. HILDEBRAND: That was very much the case during the 23 drought in the early '90s. 24 MR. HERRICK: The situation you just talked about is 25 not necessarily a hypothetical; it actually occurred in the CAPITOL REPORTERS (916) 923-5447 16413 1 past? 2 MR. HILDEBRAND: Oh, definitely. 3 MR. HERRICK: Mr. Hildebrand, we heard testimony from 4 representatives from Merced Irrigation District as well as 5 Turlock and Modesto that releases of water under the San 6 Joaquin River Agreement under certain circumstances could 7 result in decreased storage at the time of the release and, 8 therefore, the ability to recover that storage at a later 9 time of the year. 10 Do you recall that testimony? 11 MR. HILDEBRAND: Yes. 12 MR. HERRICK: Mr. Hildebrand, there were questions 13 asked about that situation, speculating whether or not that 14 would result in the potential for increase in the yield of 15 the system. 16 Remember that? 17 MR. HILDEBRAND: Yes. 18 MR. HERRICK: Do you have an opinion as to whether or 19 not that situation might result in increased yield? 20 MR. HILDEBRAND: In the event that they didn't refill 21 the reservoir until they had a flood control spill, they 22 would, in fact, increase the yield somewhat. But in any 23 other situation, including wet years when there are no 24 spills, which is frequently the case, when they refilled it, 25 they would be reducing downstream flow. CAPITOL REPORTERS (916) 923-5447 16414 1 MR. HERRICK: Mr. Hildebrand, are you familiar with the 2 San Joaquin River Agreement? 3 MR. HILDEBRAND: Pretty well, yes. 4 MR. HERRICK: Do you recall any provision in there 5 which places limitation on or requires any of the parties 6 providing flows to only refill evacuated storage during 7 flood years? 8 MR. HILDEBRAND: There is no such provision. 9 MR. HERRICK: In your experience would the refill of 10 such available space only occur in flood years? 11 MR. HILDEBRAND: I don't think they would wait for a 12 flood year to refill. They have no intention of waiting for 13 several years, if that situation prevailed, as it would have 14 in the early '90s. 15 MR. HERRICK: Mr. Hildebrand, if they did not wait 16 until the flood year to refill that space, would you expect 17 there to be any affect on downstream flows in other years? 18 MR. HILDEBRAND: Whenever they refill it without spill 19 water, they would reduce downstream flow. Even in that 20 case, they reduce it, but be no damage from the reduction. 21 MR. HERRICK: Please explain that, "no damage from the 22 reduction." 23 MR. HILDEBRAND: If you're getting flooded and they 24 reduce these flood waters a little bit, you wouldn't worry 25 too much about it. CAPITOL REPORTERS (916) 923-5447 16415 1 MR. HERRICK: You were referring to those flood events? 2 MR. HILDEBRAND: Flood events, not just an ordinary wet 3 year. These dams on the three tributaries are very large. 4 You can go for a number of years without any spillway, 5 despite recent experience. We have had very unusual series 6 of wet years recently, but that is not typical 7 statistically. So that there would be many times when there 8 would be prolonged periods with no spill. 9 MR. HERRICK: Mr. Hildebrand, is it your understanding 10 Mr. Steiner's modeling made the assumption that the 11 evacuated storage space was refilled in wet years -- excuse 12 me, in flood years, or did it assume that that space would 13 be refilled as possible? 14 MR. HILDEBRAND: No indication that it would be 15 refilled only with flood water. 16 MR. HERRICK: I have no further questions. 17 C.O. STUBCHAER: Cross-examination? 18 Mr. O'Laughlin. 19 Anyone else? 20 All right, Mr. O'Laughlin. 21 MR. O'LAUGHLIN: Could I have a couple seconds? 22 C.O. STUBCHAER: Yes. Off the record for a moment. 23 (Break taken.) 24 C.O. STUBCHAER: Back on the record. 25 Mr. O'Laughlin. CAPITOL REPORTERS (916) 923-5447 16416 1 ---oOo--- 2 CROSS-EXAMINATION OF SOUTH DELTA WATER AGENCY 3 BY SAN JOAQUIN RIVER GROUP AUTHORITY 4 BY MR. O'LAUGHLIN 5 MR. O'LAUGHLIN: Mr. Hildebrand, can you tell the Board 6 when the parcel was transferred to the Levee Reclamation 7 District 2067? 8 MR. HILDEBRAND: Are you -- did you correctly state 9 2067? I am not sure what reference you are making here. 10 Would you repeat the question? 11 MR. O'LAUGHLIN: Sure. The reclamation district, is 12 that 2067, the levee that was transferred? 13 MR. HILDEBRAND: The one in the lawsuit or the one -- 14 MR. O'LAUGHLIN: The one on your property. 15 MR. HILDEBRAND: That is 2025. 16 MR. O'LAUGHLIN: What year was that parcel transferred 17 to Reclamation District 2025? 18 MR. HILDEBRAND: You are speaking of a levee? 19 MR. O'LAUGHLIN: Yes, the levee. 20 MR. HILDEBRAND: I don't know the year. It was very, 21 very early on. 22 MR. O'LAUGHLIN: Do you have a grant deed conveying the 23 title, the fee title to Reclamation District 2025 in your 24 possession? 25 MR. HILDEBRAND: No. CAPITOL REPORTERS (916) 923-5447 16417 1 MR. O'LAUGHLIN: Have you ever reviewed that document 2 to see what, was in fact, transferred to Levee Reclamation 3 District 2025? 4 MR. HILDEBRAND: I have seen the document many years 5 ago, yes. I believe the conveyance was at the time the 6 levees was built, which was probably back in about 1928 or 7 something of that sort. 8 MR. O'LAUGHLIN: How many days, other than today and 9 last week when you were here for your direct testimony for 10 Phase II-B, how many other days of the hearing have you 11 participated in during Phase II-B or been here? 12 MR. HERRICK: Objection. Goes beyond the scope of 13 direct. 14 MR. O'LAUGHLIN: No, because, and I am going to set 15 this up. Mr. Hildebrand was asked specifically, "Do you 16 recall the testimony of," and he said that he did. So now I 17 am establishing the foundation as to whether or not Mr. 18 Hildebrand was here to actually hear the testimony that was 19 provided by the witnesses and understand how he got that 20 information. I just want to understand how that was 21 conveyed. Pretty simple foundational question. 22 C.O. STUBCHAER: Overruled. 23 MR. O'LAUGHLIN: How many days have you been here for 24 the Phase II-B hearing, other than today and last week when 25 you testified, Mr. Hildebrand? CAPITOL REPORTERS (916) 923-5447 16418 1 MR. HILDEBRAND: I can't tell you offhand. 2 MR. O'LAUGHLIN: Do you know if you were here when Mr. 3 Steiner testified? 4 MR. HILDEBRAND: I was here when he testified earlier, 5 not when he testified in II-B. 6 MR. O'LAUGHLIN: When you were responding to your 7 counsel's questions in regards to Mr. Steiner's testimony 8 and your understanding of the assumptions, how is it that 9 you came to understand Mr. Steiner's assumptions, Mr. 10 Hildebrand? 11 MR. HILDEBRAND: Partly by reading his testimony and 12 partly because I have read the record of all of that 13 cross-examination. 14 MR. O'LAUGHLIN: Mr. Hildebrand, in regards to 15 refilling, how is it under your understanding that in a 16 critically dry period on the San Joaquin River would you 17 expect that if there was these decreases in storage that had 18 been made by releases for the San Joaquin River Agreement 19 that those would be refilled in critically dry years? 20 MR. HILDEBRAND: I wouldn't expect that it would be 21 refilled under a critically dry year, no. But the amount of 22 water available in dams for release in critical dry years 23 depends on what you've done in other years. 24 MR. O'LAUGHLIN: Specifically, in a critically dry year 25 would you expect to see any refill occurring in these CAPITOL REPORTERS (916) 923-5447 16419 1 evacuated storage spaces that would impact downstream 2 riparians in critically dry years? 3 MR. HILDEBRAND: It isn't just a question of refill; it 4 is a question of -- 5 MR. O'LAUGHLIN: Let's stick to the question. We have 6 done this before. 7 In critically dry years you've stated in your testimony 8 on rebuttal that in years in which the water is made up, 9 that you are going to have a corresponding problem 10 downstream. 11 Just in regards to critically dry years, do you expect 12 those reservoirs to capture excess flows and refill those 13 holes in the reservoir? 14 MR. HILDEBRAND: Strictly talking about capturing and 15 releasing, the answer is no. 16 MR. O'LAUGHLIN: In wetter years, if the reservoirs 17 refill in the months of December through February, what 18 impacts do you see on downstream riparians in wet years? 19 MR. HILDEBRAND: If you look at the overall mass 20 balance for the year, there is a certain amount of water in 21 the system. And if that water comes down the river, you 22 have one situation. If it is used to refill the dam, you 23 have a different situation. So it reduces the downstream 24 flow on an annual basis. 25 MR. O'LAUGHLIN: I understand that it reduces CAPITOL REPORTERS (916) 923-5447 16420 1 downstream flow on an annual basis. Let's say at New Don 2 Pedro they capture 30,000 acre-feet of water in the month of 3 January that otherwise would have flowed down the Tuolumne 4 River and gone out the San Joaquin River and would have 5 reached Vernalis. 6 In that situation can you please describe for us what 7 impacts there would be to downstream riparians in that 8 situation? 9 MR. HILDEBRAND: It wouldn't necessarily -- probably 10 would not have come down, because unless it came down as a 11 flood spill, they would use it not just to refill but to 12 increase storage which would then be available later. 13 MR. O'LAUGHLIN: I want to assume, Mr. Hildebrand, 14 that under this situation that we are talking about that 15 30,000 acre-feet of water that otherwise would have reached 16 Vernalis is now sitting in New Don Pedro due to capturing 17 excess flows in the month of January. 18 What impact would there be on downstream riparians? 19 MR. HILDEBRAND: I dispute your assumption. 20 MR. O'LAUGHLIN: You don't have to dispute it; you have 21 to analyze the question. Is there an impact to downstream 22 riparians or not under that situation? 23 MR. HILDEBRAND: If you assume this fictitious case, 24 that the water would indeed be released down river at a time 25 when we didn't need it, yes, it wouldn't hurt us. But that CAPITOL REPORTERS (916) 923-5447 16421 1 is not what happened. 2 MR. O'LAUGHLIN: Are you testifying here today as a 3 consultant for South Delta Water Agency or are you 4 testifying in your individual capacity as Mr. Hildebrand? 5 MR. HILDEBRAND: Depends on the question you asked me, 6 I guess. Basically, I am -- in these proceedings I have 7 been representing the agency. 8 MR. O'LAUGHLIN: When you say "representing the 9 agency," are you representing the agency in your official 10 capacity as a board member or are you representing the 11 agency in the capacity as a consultant? 12 MR. HILDEBRAND: A mixture of the two. 13 MR. O'LAUGHLIN: I have no further questions. 14 C.O. STUBCHAER: Staff have any questions? 15 MR. HOWARD: No. 16 C.O. STUBCHAER: Board Members? 17 Mr. Brown. 18 ---oOo--- 19 CROSS-EXAMINATION OF SOUTH DELTA WATER AGENCY 20 BY BOARD MEMBERS 21 C.O. BROWN: Mr. Hildebrand, the return flows to the 22 river have a benefit to South Delta water users? 23 MR. HILDEBRAND: Definitely, yes. In fact, in dry 24 years that is about all we have is return flows. 25 C.O. BROWN: Are there times in the year when the CAPITOL REPORTERS (916) 923-5447 16422 1 return flows would be in excess of what would be needed for 2 the district and might flow on out into the district? You 3 irrigate, what, eight months out of the year? 4 MR. HILDEBRAND: There is some irrigation going on all 5 year round. The bulk of it in a dry year runs from March to 6 September. The -- I have to think a little bit about 7 answering your question. There may be times when the return 8 flow is more than needed, but it's a little difficult to 9 tell how much the return flow at a given time at Vernalis is 10 return flow and how much of it is for power generation or 11 fish flow or something else. 12 So I would be hard pressed to say whether the return 13 flow itself was ever in excess. I rather doubt it. Because 14 the return flow arises from irrigation and consequently if 15 we are not irrigating, they are not irrigating and so we 16 aren't getting a return flow at that time. 17 C.O. BROWN: Let me zero in on the question a little 18 more. There are times when there is ample flow in the 19 rivers to meet the irrigation demands of the South Delta as 20 a result of hydropower and other releases. So, again, the 21 question is during those times when there is ample flow in 22 the river to meet the needs and return flows continue on 23 throughout the irrigation season, my suspect is that there 24 is surplus water as a result of either return flows or some 25 other source. And that is a question. Is that true? CAPITOL REPORTERS (916) 923-5447 16423 1 MR. HILDEBRAND: Sometimes that is true, yes. But 2 other times it would not be true. 3 C.O. BROWN: Of course. The times that it is true, the 4 question is this, then: Of those return flows would be of 5 more benefit to the South Delta and others if they were 6 regulated? If releases then if -- let me restate the 7 question. 8 Use tailwater recovery systems as an example. The 9 return flows could all be captured for the most part from 10 irrigation. Would those be of a greater benefit to you and 11 others if their releases could be regulated instead of 12 indiscriminately released through irrigation? 13 MR. HILDEBRAND: I have to think about that for a 14 minute. I have trouble seeing a mechanism whereby that 15 would be done in a manner that was for the good of the basin 16 rather than for the good of the district. 17 C.O. STUBCHAER BROWN: The key word was "could." 18 MR. HILDEBRAND: Possibly. Even then I have to think 19 about that a bit. 20 The fact is that there are prolonged periods, frequent 21 in many years, when the inflow to the South Delta at 22 Vernalis is less than is needed to meet the channel 23 depletion requirements in the South Delta and/or is 24 insufficient dilution to meet the water quality standard. 25 So, we would have to look at under what circumstances those CAPITOL REPORTERS (916) 923-5447 16424 1 requirements provided. If there were an assurance that at 2 all times the water quality standards would be met and at 3 all times the channel depletion requirements would be met, 4 unless a drought year when there is not enough water for 5 other things, then there would be times when there was some 6 water. But absent those requirements, what happens is we 7 are at the downstream end of the system and when water gets 8 short, we are the ones that get shorted, both quality and 9 quantity. 10 So, any arrangement that doesn't give priority to doing 11 those things first, not only on a monthly basis but on a 12 multiyear basis -- 13 C.O. STUBCHAER BROWN: Again, that is not the question, 14 Mr. Hildebrand. 15 The question is and what I want to know, if there is an 16 increment of value in there that would be achieved through 17 regulation as opposed through nonregulation, and I need your 18 thoughts on that. 19 MR. HILDEBRAND: I am reluctant to give you a snap 20 answer on that. 21 C.O. BROWN: That is all I have, Mr. Chairman. 22 Thank you very much, Mr. Hildebrand and Mr. Herrick. 23 C.O. STUBCHAER: Mr. Herrick, have any redirect? 24 MR. HERRICK: No. 25 C.O. STUBCHAER: That concludes the examination of this CAPITOL REPORTERS (916) 923-5447 16425 1 panel. And are there any exhibits? 2 I guess that concludes the hearing Phase I through 3 VII. And what the Board will do now is that we will 4 probably schedule executive session to consider the evidence 5 and give direction to staff and preparation of a draft 6 decision to finish the EIR, and then the draft decision will 7 be circulated and considered by the Board in a public 8 workshop or Board meeting. And after that, the decision is 9 reached, Phase VIII could be scoped. That would probably be 10 next year, after I leave this Board. 11 And with that in mind, I just wanted to take this 12 opportunity to say how much I have been impressed by the 13 competency of the attorneys and the engineers and managers 14 involved in our water matters here in California. And in 15 the event we do not have a evidentiary hearing, I want to 16 say it has been a pleasure for me to work with you all and I 17 hope we have given you a fair hearing. With that -- 18 Mr. O'Laughlin. 19 MR. O'LAUGHLIN: That is hard to follow up on. My 20 question's fairly mundane. I was wondering what the 21 briefing schedule would be for Phase II-B. 22 C.O. STUBCHAER: Ms. Leidigh, you were going to say 23 something else before I rambled on. 24 MS. LEIDIGH: I think it was also regarding the 25 briefing schedule. Usually the Board has set about 30 days CAPITOL REPORTERS (916) 923-5447 16426 1 after the transcript is made available to all the parties, 2 for parties to prepare their briefs, for the closing 3 briefs. The Board last allowed reply briefs for the other 4 phases now, and those will be due coming up soon. 5 I assume that parties may want to have reply briefs for 6 Phase II-B as well as for the other phases. So it might be 7 30-day and 15-day time period that we could apply there, or 8 whatever time period is agreeable to the Board. 9 C.O. STUBCHAER: Let's identify some dates that sound 10 acceptable. 11 Mr. O'Laughlin. 12 MR. O'LAUGHLIN: What is the time to get the 13 transcripts? 14 (Discussion held off the record.) 15 MS. LEIDIGH: August 27th. 16 C.O. STUBCHAER: Speak up for the record. 17 MR. O'LAUGHLIN: August 27th for closing briefs, and 15 18 days thereafter for reply briefs, if the parties wish to. 19 C.O. STUBCHAER: Without objection. 20 MS. WHITNEY: That will be a Saturday. Monday the 13th 21 of September. 22 MR. O'LAUGHLIN: Thank you very much. 23 C.O. STUBCHAER: Anything else from staff, Board 24 Members before we adjourn? 25 C.O. BROWN: I have a comment, Mr. Chairman. CAPITOL REPORTERS (916) 923-5447 16427 1 C.O. STUBCHAER: Mr. Brown. 2 C.O. BROWN: I also have worked for 35 years on 3 California water resources and have never worked with a more 4 professional group of people or individuals. I thank you 5 for your professionalism and the way you handled and 6 presented your cases. 7 C.O. STUBCHAER: Thank you, Mr. Brown. 8 Ms. Forster. 9 MEMBER FORSTER: But you are not going anywhere. 10 C.O. BROWN: I will be back. 11 MEMBER FORSTER: You are going to continue to be 12 running the hearings. 13 C.O. STUBCHAER: With that we are adjourned. 14 (Hearing adjourned at 10:02 a.m.) 15 ---oOo--- 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 16428 1 REPORTER'S CERTIFICATE 2 3 4 STATE OF CALIFORNIA ) ) ss. 5 COUNTY OF SACRAMENTO ) 6 7 8 I, ESTHER F. WIATRE, certify that I was the 9 official Court Reporter for the proceedings named herein, 10 and that as such reporter, I reported in verbatim shorthand 11 writing those proceedings; 12 That I thereafter caused my shorthand writing to be 13 reduced to typewriting, and the pages numbered 16396 through 14 16428 herein constitute a complete, true and correct record 15 of the proceedings. 16 17 IN WITNESS WHEREOF, I have subscribed this certificate 18 at Sacramento, California, on this 17th day of July 1999. 19 20 21 22 23 ______________________________ ESTHER F. WIATRE 24 CSR NO. 1564 25 CAPITOL REPORTERS (916) 923-5447 16429