STATE WATER RESOURCES CONTROL BOARD PUBLIC HEARING 1998 BAY-DELTA WATER RIGHTS HEARING HELD AT: BONDERSON BUILDING 901 P STREET SACRAMENTO, CALIFORNIA MONDAY, DECEMBER 13, 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, SUPERVISING ENGINEER 7 NICK WILCOX, CHIEF BAY-DELTA UNIT 8 COUNSEL: 9 WILLIAM R. ATTWATER, CHIEF COUNSEL BARBARA LEIDIGH 10 FOR MR. HOWARD AND MR. HUNN: 11 ANDREW H. SAWYER, 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, TURLOCK IRRIGATION 16 DISTRICT,et al.: 17 GRIFFTH, MASUDA & GODWIN 517 East Olive Street 18 Turlock, California 95381 BY: ARTHUR F. GODWIN, ESQ. 19 NORTHERN CALIFORNIA WATER ASSOCIATION: 20 RICHARD GOLB 21 455 Capitol Mall, Suite 335 Sacramento, California 95814 22 PLACER COUNTY WATER AGENCY, et al.: 23 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 24 400 Capitol Mall, 27th Floor Sacramento, California 95814 25 BY: JANET GOLDSMITH, ESQ. 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 & STANFORD VINGA RANCH IRRIGATION COMPANY: 6 MARTHA H. LENNIHAN, ESQ. 7 455 Capitol Mall, Suite 300 Sacramento, California 95814 8 CITY OF YUBA CITY: 9 WILLIAM P. LEWIS 10 1201 Civic Center Drive Yuba City 95993 11 BROWNS VALLEY IRRIGATION DISTRICT, et al.: 12 BARTKEWICZ, KRONICK & SHANAHAN 13 1011 22nd Street, Suite 100 Sacramento, California 95816 14 BY: ALAN B. LILLY, ESQ. 15 CONTRA COSTA WATER DISTRICT: 16 BOLD, POLISNER, MADDOW, NELSON & JUDSON 500 Ygnacio Valley Road, Suite 325 17 Walnut Creek, California 94596 BY: ROBERT B. MADDOW, ESQ. 18 GRASSLAND WATER DISTRICT: 19 DON MARCIOCHI 20 22759 South Mercey Springs Road Los Banos, California 93635 21 SAN LUIS CANAL COMPANY: 22 FLANNIGAN, MASON, ROBBINS & GNASS 23 3351 North M Street, Suite 100 Merced, California 95344 24 BY: MICHAEL L. MASON, ESQ. 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: ANDREW M. HITCHINGS, ESQ. 9 NORTH SAN JOAQUIN WATER CONSERVATION DISTRICT: 10 JAMES F. SORENSEN CONSULTING CIVIL ENGINEER, INC. 209 South Locust Street 11 Visalia, California 93279 BY: JAMES F. SORENSEN 12 PARADISE IRRIGATION DISTRICT: 13 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 14 P.O. Box 1679 Oroville, California 95695 15 BY: WILLIAM H. SPRUANCE, ESQ. 16 COUNTY OF COLUSA: 17 DONALD F. STANTON, ESQ. 1213 Market Street 18 Colusa, California 95932 19 COUNTY OF TRINITY: 20 COUNTY OF TRINITY - NATURAL RESOURCES P.O. Box 156 21 Hayfork, California 96041 BY: TOM STOKELY 22 CITY OF REDDING: 23 JEFFERY J. SWANSON, ESQ. 24 2515 Park Marina Drive, Suite 102 Redding, California 96001 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 TULARE IRRIGATION DISTRICT: 3 TEHAMA COUNTY RESOURCE CONSERVATION DISTRICT 2 Sutter Street, Suite D 4 Red Bluff, California 96080 BY: ERNEST E. WHITE 5 STATE WATER CONTRACTORS: 6 BEST BEST & KREIGER 7 P.O. Box 1028 Riverside, California 92502 8 BY: ERIC GARNER, ESQ. 9 COUNTY OF TEHAMA, et al.: 10 COUNTY OF TEHAMA BOARD OF SUPERVISORS: P.O. Box 250 11 Red Bluff, California 96080 BY: CHARLES H. WILLARD 12 MOUNTAIN COUNTIES WATER RESOURCES ASSOCIATION: 13 CHRISTOPHER D. WILLIAMS 14 P.O. Box 667 San Andreas, California 95249 15 JACKSON VALLEY IRRIGATION DISTRICT: 16 HENRY WILLY 17 6755 Lake Amador Drive Ione, California 95640 18 SOLANO COUNTY WATER AGENCY, et al.: 19 HERUM, CRABTREE, DYER, ZOLEZZI & TERPSTRA 20 2291 West March Lane, S.B.100 Stockton, California 95207 21 BY: JEANNE M. ZOLEZZI, ESQ. 22 WESTLANDS ENCROACHMENT AND EXPANSION LANDOWNERS: 23 BAKER, MANOCK & JENSEN 5260 North Palm Avenue 24 Fresno, Califonria 93704 BY: CHRISTOPHER L. CAMPBELL, ESQ. 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 SAN LUIS WATER DISTRICT: 3 LINNEMAN, BURGES, TELLES, VANATTA & VIERRA 1820 Marguerite Street 4 Dos Palos, California 93620 BY: THOMAS J. KEENE, ESQ. 5 6 ---oOo--- 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 1 INDEX 2 PAGE 3 RESUMPTION OF HEARING: 16447 4 AFTERNOON SESSION: 16541 5 6 STATE WATER RESOURCES CONTROL BOARD STAFF: 7 THOMAS HOWARD DIRECT EXAMINATION: 8 BY MR. SAWYER 16463 RICHARD HUNN 9 DIRECT EXAMINATION: BY MR. SAWYER 16465 10 THOMAS HOWARD ADRIAN GRIFFIN (Mr. Minasian only) 11 CROSS-EXAMINATION: BY MS. ZOLEZZI 16467 12 BY MR. BIRMINGHAM 16470 BY MR. MINASIAN 16481 13 BY MR. NOMELLINI 16522 BY MR. HERRICK 16541 14 BY DR. DENTON 16556 BY MR. SEXTON 16561 15 BY STAFF 16564 REDIRECT EXAMINATION: 16 BY MR. SAWYER 16566 RECROSS-EXAMINATION: 17 BY MR. NOMELLINI 16569 18 19 ---oOo--- 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 1 SACRAMENTO, CALIFORNIA 2 DECEMBER 13, 1999, 9:00 A.M. 3 ---oOo--- 4 C.O. STUBCHAER: Good morning. We will call the 5 hearing to order. 6 This is the time and place to commence a session of the 7 hearing by the State Water Resources Control Board on the 8 Bay-Delta water rights. In this session of the hearing the 9 Board will hear evidence and argument regarding the 10 acceptability in evidence of the final environmental 11 documents related to potential actions in this proceeding. 12 This hearing is being held in accordance with the 13 supplement to revised Notice of Hearing dated December 1st, 14 1999. 15 I am Jim Stubchaer. With me are Board Members John 16 Brown. 17 C.O. BROWN: Good morning. 18 C.O. STUBCHAER: Art Bagget. 19 MEMBER BAGGET: Good morning. 20 C.O. STUBCHAER: Executive Director Walt Pettit. 21 John Brown and I are Cohearing Officers for this 22 hearing. Assisting the Board on the staff table are Barbara 23 Leidigh, Senior Staff Counsel; Vicky Whitney, Supervising 24 Engineer; Nick Wilcox, Chief of the Bay-Delta Unit. 25 The purpose of this phase of the hearing is to afford CAPITOL REPORTERS (916) 923-5447 16447 1 the parties an opportunity to present relevant testimony and 2 exhibits which will assist in a ruling on whether to accept 3 in evidence the two Final EIRS. One is the Final EIR for 4 implementation of the 1995 Bay-Delta Water Quality Control 5 Plan; and the other is the Final EIR for the consolidated 6 and conformed place of use. These documents have been 7 designated as State Water Resources Board Exhibits 1E and 8 2A. Our staff is offering these exhibits in evidence. 9 The hearing issue for this session of the hearing is 10 listed in the supplement to revised Notice of Public Hearing 11 which I previously mentioned, dated December 1st, and is as 12 follows: 13 Should the Board accept in evidence the Final Bay-Delta 14 EIR and the Final Consolidated and Conformed Place of Use 15 EIR. The only purpose of this session of the Bay-Delta 16 water rights hearing is to allow the parties to address 17 whether the Final EIR should be accepted into evidence. The 18 Draft EIR already has been accepted into evidence, and they 19 contain much of the information that is carried into the 20 Final EIRs. 21 Therefore, this hearing session will be limited to the 22 new information in the final EIRs. The new analyses in the 23 Bay-Delta Final EIR are listed in the hearing notice for the 24 convenience of the parties. Consolidated and Conformed 25 Place of Use Final EIR contains revised maps showing the CAPITOL REPORTERS (916) 923-5447 16448 1 existing places of use, the encroached areas and areas where 2 future expansion of the Central Valley Project place of use 3 may occur. Other maps showing the existing place of use 4 were previously accepted into evidence as State Water 5 Resources Control Board Exhibit 183. 6 Some parties in their letters objecting to acceptance 7 of the Bay-Delta Final EIR raised the question whether its 8 acceptance into evidence would foreclose them from 9 presenting evidence addressing the Final Bay-Delta EIR 10 during Phase VIII. Its acceptance in evidence will not 11 foreclose presenting such evidence. If the Final EIRs are 12 accepted in evidence as a result of this session of the 13 hearing, they will be treated in Phase VIII in the same 14 manner as other previously admitted staff exhibits. In 15 other words, parties will be allowed to present relevant 16 evidence addressing the Final Bay-Delta EIR during Phase 17 VIII of this hearing, including subpoenaing Board staff 18 members to testify, if they so choose. 19 This hearing session will not address the adequacy of 20 the Final EIRs for compliance with California Environmental 21 Quality Act. 22 That issue will be the subject of a Board meeting on 23 December 28 when the Board will decide whether to certify 24 the Final EIRs under CEQA. The adequacy of the Final EIRs 25 will be determined separately from this hearing and will be CAPITOL REPORTERS (916) 923-5447 16449 1 in accordance with the procedural requirements and time 2 limits under CEQA. 3 The order of proceeding in this session of the hearing 4 will be to first take appearances of parties who intend to 5 participate in this phase of the hearing and then receive 6 oral policy statements and opening statements from those 7 who wish to present only a statement. The Board will also 8 accept written statements. The policy statement is a 9 nonevidentiary statement. It is subject to a limitation as 10 listed in the hearing notice. Presenters of policy 11 statements should fill out a blue speaker card and give it 12 to staff at the table. 13 Next we will hear from the two witnesses who will 14 testify regarding the Bay-Delta Final EIR and the 15 Consolidated and Conformed place of use Final EIR. After 16 Mr. Howard and Mr. Hunn testify, we will hear 17 cross-examination by other parties, Board staff and Board 18 Members. 19 Redirect testimony and recross-examination, limited to 20 the scope of the redirect testimony, will be permitted. 21 After they have testified and been cross-examined, the 22 parties may present rebuttal evidence addressing the 23 acceptability of the Final EIRs as evidence. 24 I encourage everyone to be efficient in presenting 25 cross-examination of rebuttal. Except where we approve a CAPITOL REPORTERS (916) 923-5447 16450 1 variation, we will follow the procedures set forward in the 2 Board's regulations and in attachment to the hearing notice 3 entitled Bay-Delta Water Rights Hearing Information 4 Concerning Appearances by Parties. 5 All requests to the Hearing Officer on behalf of a 6 party should be made at the lectern by the party's 7 representative, including request regarding order of 8 cross-examination of witnesses. All parties are requested 9 to switch cell phone ringers off while in the hearing room. 10 Regarding cross-examination: each party will be 11 allowed up to one hour to cross-examine a witness or panel 12 of witnesses. At the end of the hour the cross-examiner 13 will be given the opportunity to make an offer of proof as 14 to the additional matters which the cross-examiner wishes to 15 cover and make an estimate of the time needed to complete 16 the cross-examination. 17 If additional cross-examination is allowed after a 18 offer of proof, the cross-examiner may be requested to 19 stipulate to the amount of additional time needed to 20 complete the cross-examination. 21 We have observed that the order in which examiners are 22 called make a difference. In the interest of fairness we 23 will assign the order of cross-examination in a random 24 manner. In order to prevent late requests to cross-examine 25 parties who are not sure if they wish to cross-examine CAPITOL REPORTERS (916) 923-5447 16451 1 should identify themselves when the Hearing Officer asks 2 "Who wishes to cross-examine a panel?" They can then be 3 included in the order of cross-examination. If they later 4 determine it is not necessary to cross-examine that panel, 5 they can so state when called. 6 Unless otherwise announced, we will schedule each day 7 of hearing to begin at 9:00 a.m. and conclude at 5:00 p.m., 8 a lunch break and two 12-minute breaks during the day. We 9 will try to announce any changes in the schedule at least a 10 day in advance. 11 I would now like to invite appearances by parties who 12 have filed Notice of Intent to Appear. Will you please 13 stand and identify yourself. We will start over here. 14 MR. KEENE: I am Tom Keene appearing on behalf of San 15 Luis Water District. 16 MR. ALADJEM: Morning, Mr. Stubchaer. 17 David Aladjem, Downey, Brand, Seymour & Rohwer, 18 appearing on behalf of a number of Sacramento Valley water 19 users. 20 C.O. STUBCHAER: Thank you. 21 MS. GOLDSMITH: Janet Goldsmith, Kronick, Moskovitz, 22 Tiedemann & Girard, appearing on behalf of Placer County 23 Water Agency, City of West Sacramento and Calaveras County 24 Water District. 25 C.O. STUBCHAER: Thank you. CAPITOL REPORTERS (916) 923-5447 16452 1 MR. LILLY: Good morning, Mr. Stubchaer. 2 Alan Lilly of Bartkiewicz, Kronick & Shanahan, 3 appearing on behalf of various water districts in the 4 Sacramento Valley listed in our Notice of Intent to Appear. 5 MR. HITCHINGS: Morning, Mr. Stubchaer. 6 Andrew Hitchings from DeCuir & Somach appearing on 7 behalf of Glenn-Coluse Irrigation District. 8 C.O. STUBCHAER: You may be seated after you've 9 identified yourself. Make it easier. 10 MR. MINASIAN: I am Paul Minasian for various 11 Sacramento River water districts today. 12 MR. ROBERTS: James Roberts of the Metropolitan Water 13 District. I am here on behalf of State Water Contracts. 14 MR. SEXTON: Michael Sexton of the Minasian Law Firm. 15 C.O. STUBCHAER: Mr Sexton, I am sorry, behind you we 16 have one back in the corner. 17 MS. CROWTHERS: Kathy Crowthers on behalf of the 18 Department of Water Resources. 19 C.O. STUBCHAER: Thank you. 20 MR. SEXTON: Morning, Mr. Stubchaer. 21 Michael Sexton of the Minasian Law Firm appearing on 22 behalf of the Exchange Contractors. 23 MR. CAMPBELL: Matthew Campbell of the Attorney 24 General's Office appearing on behalf of the Department of 25 Fish and Game. CAPITOL REPORTERS (916) 923-5447 16453 1 MR. BIRMINGHAM: Tom Birmingham on behalf of Westlands 2 Water District and San Luis Delta-Mendota Water Authority. 3 MR. O'LAUGHLIN: Tim O'Laughlin appearing on behalf of 4 the San Joaquin River Group Authority. 5 MR. GODWIN: Arthur Godwin appearing on behalf of 6 Turlock Irrigation District. 7 MR. TURNER: Jim Turner appearing on behalf of the 8 Department of the Interior. 9 DR. DENTON: Richard Denton appearing on behalf of 10 Contra Costa Water District. Our attorney, Mr. Maddow, will 11 be here tomorrow. 12 MR. NOMELLINI: Dante John Nomellini on behalf of 13 Central Delta Parties. 14 MR. HERRICK: John Herrick, South Delta Water Agency. 15 MS. CAHILL: Virginia Cahill. I am appearing on behalf 16 of the City of Stockton and my cocounsel is Paul Simmons who 17 couldn't be here today. 18 MS. ZOLEZZI: Jeanne Zolezzi of Herum, Crabtree, on 19 behalf of Stockton East Water District, Solano County Water 20 Agency. 21 I would like to announce the participation of North San 22 Joaquin Water Conservation District. Their attorney will be 23 Karna Harrigfeld. She is not here today, but will be here 24 tomorrow. 25 MS. LENNIHAN: Martha Lennihan for Butte Sink Waterfowl CAPITOL REPORTERS (916) 923-5447 16454 1 Association and Stanford Vina Ranch Irrigation Company. 2 C.O. STUBCHAER: Anyone else? 3 Thank you. 4 A Court Reporter is present to prepare a transcript of 5 the proceedings. Parties wishing to have copies of the 6 transcript must make their own arrangements with the Court 7 Reporter. Copies of the transcripts will be posted on the 8 Bay-Delta webpage no sooner than 60 days after the Board 9 receives a transcript from the Court Reporter. 10 The Board staff also regularly posts updates on the 11 status of this proceeding on the webpage, and if you need 12 the webpage address you can get it from a member at the 13 staff table. 14 I will now administer the affirmation. 15 Will those persons planning to testify during this 16 session who have previously not been sworn, please stand and 17 raise your right hand. 18 (Oath administered by C.O. Stubchaer.) 19 C.O. STUBCHAER: At this time we will hear any policy 20 statements or opening statements from the parties. Is there 21 anyone who wishes to make a policy statement or opening 22 statement and not participate otherwise? 23 Mr. Lilly. 24 MR. LILLY: Mr. Stubchaer, I don't know whether this 25 is the appropriate time, and if it is not you can tell me so CAPITOL REPORTERS (916) 923-5447 16455 1 and I will wait. I just had two points of clarification 2 regarding the procedures for this hearing, and I would like 3 to just raise them either now or at some point this morning 4 with whatever the Chair deems appropriate. 5 C.O. STUBCHAER: Well, let's hear what they are. 6 MR. LILLY: I think your opening remarks may have 7 covered this briefly. The first point is just by way of 8 background. Back when this hearing started on July 1st, 9 1998, the staff offered the staff exhibits which included, 10 as you pointed out, the Draft EIR into evidence. And at 11 that time I pointed out on the record that many of the 12 documents in the staff exhibits contained hearsay evidence 13 and that the Board was subject to various statutory and 14 regulatory limitations on the use of hearsay evidence. I 15 asked for clarification at that time that the Board intended 16 to follow those rules regarding those staff exhibits. 17 Mr. Caffrey confirmed that the Board would. He said, 18 and I quote from the record, the Board always proceeds 19 according to the rules and how it should apply the weight of 20 evidence. 21 My first point of clarification is, I just request that 22 you clarify that the Board intends to follow those same 23 rules on the limitation of hearsay evidence regarding these 24 two final EIRs that are the subject of this current 25 proceeding. CAPITOL REPORTERS (916) 923-5447 16456 1 C.O. STUBCHAER: Ms. Leidigh. 2 MS. LEIDIGH: Do you want me to comment? 3 C.O. STUBCHAER: Yes, please. 4 MS. LEIDIGH: Those are the rules. And I would assume 5 that the Board would always follow them. The Board has 6 always followed them before. 7 MR. LILLY: Thank you. That is all I needed for that 8 clarification. 9 C.O. STUBCHAER: I concur with Ms. Leidigh. 10 MR. LILLY: And I am glad to hear that the Board will 11 follow the rules. 12 The second point I think you have already covered. I 13 want to confirm, will both Mr. Hunn and Mr. Howard be 14 available for further questioning if necessary during Phase 15 VIII? Obviously, we haven't even gotten a notice of 16 hearing for Phase VIII. 17 C.O. STUBCHAER: Yes. 18 MR. LILLY: Thank you. That is all I have. 19 C.O. STUBCHAER: Any opening statements or policy 20 statements? 21 Mr. Birmingham. 22 MR. BIRMINGHAM: My inquiry is similar to Mr. Lilly's, 23 and it is a procedural issue. 24 We spent the greater part of last week, and I think Ms. 25 Leidigh can confirm this, trying to obtain a copy of the CAPITOL REPORTERS (916) 923-5447 16457 1 final maps contained in the Final Environmental Impact 2 Report for the Change in Place of Use and Consolidation of 3 Purpose of Use. We were informed by the State Board staff 4 that in order to obtain a copy we should contact the 5 Department of the Interior. 6 We contacted the Department of the Interior. We were 7 told that they were unable to provide us with a copy of the 8 map because their GIS system was being moved from one 9 location within their building to another. As you may 10 recall from the earlier hearing, an examination of the maps 11 was a critical issue. Because of the size of the maps and 12 scale of the maps, a tiny change in the location of line can 13 result in the inclusion or exclusion of thousands of acres, 14 particularly in the area of the size of Westlands Water 15 District. Since we have not been able to obtain a copy of 16 the final maps that are contained in the Final EIR, I wonder 17 if we can delay cross-examination of the witnesses on that 18 issue until we have had an opportunity to obtain and examine 19 the maps? 20 C.O. STUBCHAER: Are the maps going to be ready 21 Wednesday, Mr. Turner? 22 MR. TURNER: That is my understanding, Mr. Chairman. 23 The last notification I had was that the maps for Westlands 24 and San Luis Water District could be prepared by Wednesday, 25 but no sooner because they just don't even have the outlets CAPITOL REPORTERS (916) 923-5447 16458 1 to plug all the computers in yet. They are in the middle of 2 a move. Everything is packed and stored at this time. 3 C.O. STUBCHAER: When you say "by Wednesday," does that 4 mean ready at 9:00 Wednesday morning or close of business 5 Wednesday? 6 MR. TURNER: It was my understanding they were talking 7 close of business. 8 MR. KEENE: Mr. Stubchaer. 9 C.O. STUBCHAER: Mr. Keene. 10 MR. KEENE: I would second Westlands' request, but I 11 would add one particular nuance. That is, that after the 12 last round of hearings we prevailed upon the staff of 13 Bureau to transfer computer information to the San Luis 14 District as to the location of the place of use line as it 15 appeared in the Draft Environmental Impact Report. 16 We would request that that similar information as to 17 the new location of that line as it appears in the Final 18 Environmental Impact Report also be made available to the 19 San Luis District for the purpose of the preparation of an 20 exhibit and in order to use the computer to verify the 21 acreage. 22 C.O. STUBCHAER: All right. 23 Any comments from staff? 24 Mr. Howard. 25 MR. HOWARD: I was in contact with staff of the Bureau CAPITOL REPORTERS (916) 923-5447 16459 1 of Reclamation on Friday. And the direction I gave them is 2 that they should blow up by size of 32 by 46 the maps that 3 are in the Final EIR for the Consolidated Place of Use, but 4 only two of the maps, Map 2-22 and Map 2-24. That 5 represents the maps for the San Luis Water District and for 6 the Westlands Water District. I also asked them as soon as 7 possible to apply all the official E maps for all of the 8 place of use. Those are the maps that would actually 9 represent the official place of use and would normally be 10 kept in our files. Those would be approximately -- what was 11 the size of those -- 20 by 42, something like that. 12 What I need to know is whether or not that is -- the 13 only two requests we received for blown-up maps were from 14 these two districts. And it is my hope that if anyone else 15 had a request for maps that what they really want to see are 16 the official place of use maps that would go into the Board 17 records. 18 Just as clarification, the maps in the EIR are not 19 official place of use maps and would not be used to 20 determine in our records the official place of use, the 21 authorized place of use. So, I was of the opinion that San 22 Luis Water District and Westlands Water District would 23 certainly want to see those maps, as well. That was the 24 districts I gave, and I guess I am curious if that is going 25 to be adequate for the purpose of the parties. CAPITOL REPORTERS (916) 923-5447 16460 1 C.O. STUBCHAER: We will find out. 2 MR. BIRMINGHAM: Mr. Howard, after learning of our 3 request, did contact our office concerning the availability 4 of the maps. And we expressed to Mr. Howard that we'd like 5 to examine both the map in the Final Environmental Impact 6 Report as well as the E map, which he just described. 7 In terms of it being made available or the maps being 8 made available Wednesday by close of business, that would be 9 acceptable to us if it is acceptable to the Board. My only 10 observation is that we would then need to have some 11 reasonable amount of time to examine the maps to prepare 12 cross-examination after having been provided the maps. 13 C.O. STUBCHAER: How much time? 14 MR. BIRMINGHAM: I think for our purpose one day would 15 be sufficient. 16 C.O. STUBCHAER: Mr. Keene. 17 MR. KEENE: I also would like to see both of the maps. 18 I concur that the close of business Wednesday would be 19 acceptable to us, because of the -- I am assuming that the 20 information, the computer information that I mentioned 21 earlier, would be made available at the same time. It was 22 E-mailed to us the last time. If that is, in fact, the 23 case, I believe that one day would probably be sufficient to 24 generate the map and do the computer calculations which I 25 mentioned before. CAPITOL REPORTERS (916) 923-5447 16461 1 But I am assuming then the offer would include not just 2 the map but the transmission of the computer data to the San 3 Luis computer. 4 C.O. STUBCHAER: Mr. Howard. 5 MR. HOWARD: Well, our intent was to provide the maps. 6 If the representative from San Luis Water District wants the 7 electronic version as well, if that is what the Board's 8 pleasure is, we will certainly try to arrange that with the 9 Bureau. 10 C.O. STUBCHAER: Is that easily available? 11 MR. HOWARD: My understanding is that once the maps 12 have been produced electronic data should also be available. 13 C.O. STUBCHAER: Mr. Howard, when you talk about 14 blowing up the maps, I assume you are not talking about a 15 photographic enlargement but a replotting of the data on 16 such a scale that the distinctions are more visible. 17 MR. HOWARD: Exactly. 18 MR. KEENE: Thank you, Mr. Stubchaer. 19 C.O. STUBCHAER: Time-out. 20 (Discussion held off record.) 21 C.O. STUBCHAER: Back on the record. 22 Are there any other districts or parties who have 23 similar requests regarding the maps? 24 Seeing none, we will grant the request for additional 25 time. That would be Friday of this week we will be CAPITOL REPORTERS (916) 923-5447 16462 1 cross-examining on the maps. 2 MR. BIRMINGHAM: Thank you very much. 3 MR. KEENE: Thank you. 4 C.O. STUBCHAER: Again I am going to ask if there are 5 any policy statements. We had people rise. Opening 6 statements or policy statements. 7 Seeing none, Mr. Sawyer. 8 ---oOo--- 9 DIRECT EXAMINATION OF 10 STATE WATER RESOURCES CONTROL BOARD STAFF 11 BY MR. SAWYER 12 MR. SAWYER: Andrew Sawyer, Office of Chief Counsel, 13 California State Water Resources Control Board. Office at 14 901 P Street. 15 As mentioned in the opening statement, the State Water 16 Resources Control Board will be putting on the testimony of 17 two witnesses, Thomas Howard and Richard Hunn. I would also 18 like to mention that in addition to the two exhibits 19 mentioned in the opening statement, Exhibit 1E and 2A, there 20 are three additional exhibits, Exhibits 200, 201 and 202. 21 Extra copies of which are available on the front table. My 22 initial questions will be directed to Mr. Howard. 23 Mr. Howard, can you state your name and address for the 24 record. 25 MR. HOWARD: Thomas Howard, 1123 Villa Verde Lane, CAPITOL REPORTERS (916) 923-5447 16463 1 Davis, California 95616. 2 MR. SAWYER: Have you brought with you a statement of 3 qualifications? 4 MR. HOWARD: Yes. 5 MR. SAWYER: For the record, that is Exhibit 200. 6 Is that an accurate description of your qualifications? 7 MR. HOWARD: Yes. 8 MR. SAWYER: Please describe your role in the 9 preparation of the Environmental Impact Report for 10 Implementation of the 1995 Bay-Delta Water Quality Control 11 Plan. 12 MR. HOWARD: I am the Assistant Division Chief, 13 Division of Water Rights. The EIR was prepared under my 14 direction. I was involved in planning of the EIR and its 15 preparation. I have read all of the EIR and edited all of 16 it, plus the appendices. 17 MR. SAWYER: Are you familiar with the entire contents 18 of the Final Environmental Impact Report for Implementation 19 of the 1995 Bay-Delta Water Quality Control Plan? 20 MR. HOWARD: Yes, I am. 21 MR. SAWYER: Is it accurate? 22 MR. HOWARD: Yes, it is. 23 MR. SAWYER: The rest of my questions are directed to 24 Mr. Richard Hunn. 25 Could you please state your name and address for the CAPITOL REPORTERS (916) 923-5447 16464 1 record. 2 MR. HUNN: My name is Richard Hunn. My address 4123 P 3 Street in Sacramento 95819. 4 MR. SAWYER: Have you brought with you a statement of 5 qualifications? 6 MR. HUNN: Yes, I have. 7 MR. SAWYER: For the record, that is State Water 8 Resources Control Board Exhibit 201. 9 Is it an accurate description of your qualifications? 10 MR. HUNN: Yes, it is. 11 MR. SAWYER: Please describe your role in the 12 preparation of the Environmental Impact Report for the 13 Consolidated and Conformed Place of Use. 14 MR. HUNN: I was responsible for overseeing the 15 preparation and development of all the materials in the 16 document under the supervision of the State Board staff. 17 MR. SAWYER: Are you familiar with the entire contents 18 of the Final Environmental Impact Report for the 19 Consolidated and Conformed Place of Use? 20 MR. HUNN: Yes, I am. 21 MR. SAWYER: Is it accurate? 22 MR. HUNN: It is accurate except for one exception as 23 noted in the errata sheet which we supplied this morning. 24 MR. SAWYER: That is State Water Resources Control 25 Board Exhibit 202? CAPITOL REPORTERS (916) 923-5447 16465 1 MR. HUNN: Yes. 2 MR. SAWYER: Is that accurate? 3 MR. HUNN: Yes, it is. 4 MR. SAWYER: I have no further questions. 5 C.O. STUBCHAER: Thank you, Mr. Sawyer. 6 Who wishes to cross-examine this panel? 7 Mr. Birmingham. 8 You may put your hand down after I call your name. 9 Mr. O'Laughlin, Mr. Denton, Mr. Nomellini, Mr. Herrick, 10 Ms. Zolezzi. 11 Do you think that Ms. Harrigfeld will wish to 12 cross-examine, also? 13 MS. ZOLEZZI: Yes. 14 C.O. STUBCHAER: Mr. Godwin, Mr. Minasian, Mr. Keene. 15 MS. CAHILL: It's possible Mr. Simmons may have some 16 questions. 17 C.O. STUBCHAER: Simmons. 18 Were you raising your hand for him or yourself? 19 MS. CAHILL: For him. 20 C.O. STUBCHAER: Anyone else? 21 Okay. We will prepare the cards for the drawing, for 22 the lottery, and we will be off the record until that is 23 ready. 24 (Break taken.) 25 C.O. STUBCHAER: Back on the record. CAPITOL REPORTERS (916) 923-5447 16466 1 The order of proceeding will be: Ms. Zolezzi, Mr. 2 O'Laughlin, Mr. Birmingham, Mr. Simmons, Mr. Godwin, Ms. 3 Harrigfeld, Mr. Keene, Mr. Minasian, Mr. Nomellini, Mr. 4 Herrick and Mr. Denton. 5 Ms. Zolezzi. 6 ---oOo--- 7 CROSS-EXAMINATION OF 8 STATE WATER RESOURCES CONTROL BOARD STAFF 9 BY STOCKTON EAST WATER DISTRICT 10 BY MS. ZOLEZZI 11 MS. ZOLEZZI: Thank you. Good morning. Jeanne Zolezzi 12 from Herum, Crabtree on behalf of Stockton East Water 13 District. 14 I just had two questions for the panel regarding new 15 information contained in the Final EIR that I don't see 16 support for cited. I will turn first to Page 382, and at 17 the bottom of that page, the last sentence states: 18 The region, referring to the San Joaquin 19 River region, annual water requirement for 20 in-stream flows is 1,169,000 acre-feet. 21 (Reading.) 22 My understanding is that the Draft EIR listed that 23 requirement as 331,000 acre-feet. Yet I don't see anything 24 explaining the change or where this new information for 25 in-stream flow needs was taken from. CAPITOL REPORTERS (916) 923-5447 16467 1 MR. HOWARD: I don't recall. 2 MS. ZOLEZZI: Is there someone that can provide us with 3 that information? 4 MR. HOWARD: Well, Vicky is making an offer, but I 5 don't believe she is sworn. So, if the Chairman would like 6 to swear her, she can. 7 (Oath administered by Chairman Stubchaer.) 8 C.O. STUBCHAER: Thank you. 9 Ms. Whitney. 10 MS. WHITNEY: I believe that information came from 11 Bulletin 160-98. 12 MS. ZOLEZZI: I am assuming that is included in the 13 list of bibliography? 14 MR. HOWARD: Yes, it is. 15 MR. SAWYER: Could you please state your name and title 16 for the record. 17 MS. WHITNEY: My name is Victoria Whitney. I am the 18 Program Manager for the Bay-Delta and Enforcement Section of 19 the State Water Resources Control Board. 20 MS. ZOLEZZI: Thank you. 21 And turning to Page 387, in the fourth paragraph. My 22 understanding that the third through the fifth paragraphs 23 are new, and regarding that fourth paragraph, the statement 24 is made that historically the Stanislaus River supported 25 steelhead and that the river now supports rainbow CAPITOL REPORTERS (916) 923-5447 16468 1 trouts/steelhead. 2 There is no support for that statement, and I was 3 wondering what citation would be used to support that. 4 MR. HOWARD: My recollection is that that was testified 5 to in the hearing by the Department of Fish and Game, but 6 other than that, I don't have a reference for it. 7 MS. ZOLEZZI: So the only support that you know of is 8 testimony by one party? 9 MR. HOWARD: That is my recollection. 10 MS. ZOLEZZI: Thank you. Those are all the questions 11 that I had. 12 C.O. STUBCHAER: Thank you, Ms. Zolezzi. 13 Mr. O'Laughlin. 14 MR. O'LAUGHLIN: No questions at this time. 15 C.O. STUBCHAER: Mr. Birmingham. 16 MR. BIRMINGHAM: At this time I will focus my questions 17 on Mr. Howard and defer my examination of Mr. Hunn until 18 Friday. 19 C.O. STUBCHAER: We understand. 20 ---oOo--- 21 // 22 // 23 // 24 // 25 // CAPITOL REPORTERS (916) 923-5447 16469 1 CROSS-EXAMINATION OF 2 STATE WATER RESOURCES CONTROL BOARD STAFF 3 BY WESTLANDS WATER DISTRICT & 4 SAN LUIS DELTA-MENDOTA AUTHORITY 5 BY MR. BIRMINGHAM 6 MR. BIRMINGHAM: Mr. Howard, I have some questions that 7 I would like to follow up on Mr. Sawyer's examination of 8 you. He asked you about your involvement in preparing the 9 Final Environmental Impact Report on Implementation of the 10 1995 Water Quality Control Plan. 11 Do you recall that question? 12 MR. HOWARD: Yes. 13 MR. BIRMINGHAM: You testified that you had read and 14 edited the entire document and the appendices thereto; is 15 that correct? 16 MR. HOWARD: Yes. 17 MR. BIRMINGHAM: And then he asked you a question, is 18 it accurate, and you responded "yes." 19 Do you recall saying that in response to his question, 20 is it accurate? 21 MR. HOWARD: Yes. 22 MR. BIRMINGHAM: I would like to explore that answer. 23 What documents make up the Final Environmental Impact 24 Report? 25 MR. HOWARD: There are three volumes to a Final CAPITOL REPORTERS (916) 923-5447 16470 1 Environmental Impact Report: the Environmental Impact Report 2 itself, the attached technical appendices and the response 3 to comments. 4 MR. BIRMINGHAM: And response to comments contains a 5 brief description of comments made by individuals with 6 respect to the Draft Environmental Impact Report; is that 7 correct? 8 MR. HOWARD: Yes. 9 MR. BIRMINGHAM: And contained in the comments to the 10 Draft Environmental Impact Report were numerous factual 11 statements? 12 MR. HOWARD: Yes. 13 MR. BIRMINGHAM: When you say the final impact report 14 is accurate, you don't mean to imply, do you, that all of 15 the factual statements contained in the comments on the 16 Draft are accurate comments? 17 MR. HOWARD: No. I would refer more to the responses 18 than the comments themselves. 19 MR. BIRMINGHAM: So, to your knowledge, you don't know 20 whether the factual statements contained in the comments to 21 the Draft Environmental Impact Report are accurate? 22 MR. HOWARD: To the best of our ability, if someone 23 made an inaccurate factual comment in a comment we would 24 have tried to correct it in the response. 25 MR. BIRMINGHAM: But, again, going back to my question, CAPITOL REPORTERS (916) 923-5447 16471 1 you can't say with any certainty that factual statements 2 contained in comments to the Draft Environmental Impact 3 Report are accurate? 4 MR. HOWARD: No. 5 MR. BIRMINGHAM: I, too, would like to ask you a 6 question about the comment on Page III-87 of the Final 7 Environmental Impact Report concerning the location of fish 8 in certain streams or presence of fish in certain streams. 9 A few moments ago you testified that statements were 10 included in the Final Environmental Impact Report based on 11 testimony by the Department of Fish and Game? 12 MR. HOWARD: Is that a question? 13 MR. BIRMINGHAM: Yes. 14 MR. HOWARD: Yes, that was my statement. I am not 15 exactly sure whether it was Fish and Game or National Marine 16 Fishery Service or Fish and Wildlife Service. I do recall 17 there was some testimony regarding the presence of steelhead 18 in the San Joaquin Basin. 19 MR. BIRMINGHAM: Now, a few moments ago in response to 20 Mr. Sawyer's question when you said the Final Environmental 21 Impact Report is accurate, do you know of personal knowledge 22 whether there are steelhead present in the San Joaquin 23 Basin? 24 MR. HOWARD: Well, if by "personal knowledge" do you 25 mean if I've seen steelhead, the answer would be no. CAPITOL REPORTERS (916) 923-5447 16472 1 MR. BIRMINGHAM: So the only information on which you 2 are basing the statement contained in the Final 3 Environmental Impact Report is that a party appeared before 4 the State Board and testified to the presence of steelhead 5 in the San Joaquin Basin? 6 MR. HOWARD: I believe in the past I have read in 7 several other publications discussions regarding that 8 issue. But as I said, I think there was discussion of it in 9 the hearing. But that would be the extent of my personal 10 knowledge to that issue. 11 MR. BIRMINGHAM: What I am trying to get at, Mr. 12 Howard, is, in your response to Mr. Sawyer's question, is it 13 accurate, when you said it is accurate what would you 14 characterize as being accurate? And if there is anything in 15 the three volumes of the Final Environmental Impact Report 16 that you think might be inaccurate, what are those? 17 MR. HOWARD: To me, I suppose, "accurate" means that I 18 have read the document. I have referred to my memory and 19 other sources regarding statements that are made in it. I 20 have reviewed the modeling and the responses and the 21 analysis that was involved in it and that the best of my 22 recollection among the sources I have available to me it 23 reflected my understanding of the physical situation and the 24 analyses that were done. 25 MR. BIRMINGHAM: As you sit here today, are there any CAPITOL REPORTERS (916) 923-5447 16473 1 statements that you are aware of in the three volumes of the 2 Final Environmental Impact Report that might be inaccurate? 3 MR. HOWARD: No. If I had been aware that there was an 4 inaccurate statement in the documents, I would have edited 5 it out. 6 MR. BIRMINGHAM: Would that include editing out 7 comments made to the Draft Environmental Impact Report? 8 MR. HOWARD: Yes. 9 MR. BIRMINGHAM: On Page IV-7 in the Final 10 Environmental Impact Report there is a section on CVP 11 Demands and Deficiencies. It says: 12 1995 level CVP export demands, including 13 canal losses, are assumed as follows. 14 (Reading.) 15 And then there is a reference to the CVP San Luis Unit. 16 Do you see that reference? 17 MR. HOWARD: Yes, I do. 18 MR. BIRMINGHAM: It says that -- there is a 19 corresponding figure of 1,260,000 acre-feet. 20 Is that correct? 21 MR. HOWARD: That is the figure in the final EIR. 22 MR. BIRMINGHAM: To your knowledge, is that the demand 23 within the San Luis Unit of the Central Valley Project? 24 MR. HOWARD: Well, as it says, this is CVP demands, 25 deliveries and deficiencies. Demands is rather a difficult CAPITOL REPORTERS (916) 923-5447 16474 1 thing to nail down, as you might be aware because there is 2 -- if water is available, in many cases folks will try to 3 take more of it. 4 However, my understanding is that this reasonably 5 represents the amount of water that has been historically 6 delivered to the CVP San Luis Unit. I am pretty certain 7 that if the Bureau were to offer to make more water 8 available that the CVP would -- the San Luis Unit would 9 attempt to make use of it. 10 MR. BIRMINGHAM: I would like to turn to Page 46 of the 11 response to comments on the Draft Environmental Impact 12 Report. In fact, it begins on Page 45. 13 It makes -- comments make reference to comments on the 14 Draft Environmental Impact Report concerning the assumption 15 that, when direct diversion is curtailed within the 16 Sacramento Valley, water users may contract with the CVP or 17 SWP for supplement supplies. 18 Have I accurately paraphrased the description of what 19 is stated on Page 45 under Comment 7, comment Page 17, 20 excuse me? 21 MR. HOWARD: There are several Comment Page 17s. You 22 are talking about the one that starts out on Alternatives 3 23 and 4 assumed that? 24 MR. BIRMINGHAM: Yes. 25 MR. HOWARD: The comment states that they will seek CAPITOL REPORTERS (916) 923-5447 16475 1 supplement supplies from the CVP, SWP or some other party or 2 they will pump groundwater. 3 MR. BIRMINGHAM: And among the comments that you 4 received concerning that assumption contained in the Draft 5 Environmental Impact Report was a comment to the effect that 6 water will not be available from the State Water Project and 7 the Central Valley Project to replace the water lost through 8 curtail of diversions; is that correct? 9 MR. HOWARD: That was one of the statements that were 10 made. There were a number of parties that made other 11 statements, but that was the thrust of some of the 12 comments. 13 MR. BIRMINGHAM: Then on Page 46 with respect to 14 response to Number 2, the Response to Comments states that: 15 Modeling results indicate that the SWP and 16 the CVP have sufficient water supplies 17 available to replace diversion curtailed in 18 the Sacramento Basin under Alternatives 3 19 and 4. When a Sacramento Basin water right 20 holder's diversion is curtailed, the model 21 assigns water from the yield of the CVP or 22 SWP to that diverter. The modeling results 23 show that the yield of the projects is 24 sufficient even during the critical period 25 to replace the water lost to water right CAPITOL REPORTERS (916) 923-5447 16476 1 holders in the Sacramento Basin whose 2 diversions are curtailed. (Reading.) 3 Do you see that statement, Mr. Howard? 4 MR. HOWARD: Where exactly is this? 5 MR. BIRMINGHAM: This is Page 46 under the title 6 Response to Number 2. 7 MR. HOWARD: Yes, I see the statement. 8 MR. BIRMINGHAM: What do the modeling results show 9 happen to supplies within the CVP export area if a portion 10 of the yield is used to replace water lost to water right 11 holders in the Sacramento Basin whose diversions are 12 curtailed? 13 MR. HOWARD: In doing this modeling it needs to be 14 recognized that the -- we aren't assigning any new water 15 deliveries to the Sacramento Basin water right holder. 16 According to the model, these deliveries were being made 17 before the Board adopted this alternative, and all we are 18 doing is saying that these folks are already taking water 19 because they do not have term 91 in their permit. If you 20 put term 91 in their permit, they will continue to take 21 water. The only difference would be that they reimburse the 22 project. 23 The net effect is that there is no more draw on the 24 Sacramento Basin with Alternative 3 in place than without 25 Alternative 3 in place. And so, that is the extent of the CAPITOL REPORTERS (916) 923-5447 16477 1 claim that is being made at that point, in this point. 2 MR. BIRMINGHAM: With respect to the statement that the 3 modeling results show that the yield of the projects is 4 sufficient even during the critical periods to replace the 5 water lost to water right holders in the Sacramento Basin 6 whose diversions are curtailed, by that statement do you 7 mean that there will be no additional impacts within the 8 export service area? 9 MR. HOWARD: No additional impacts beyond the existing 10 impacts that occur in a critical period. 11 MR. BIRMINGHAM: I would like to turn to Page 65 of the 12 response to comments and focus on flow Alternative 6. Flow 13 Alternative 6 involves a recirculation proposal; is that 14 correct? 15 MR. HOWARD: Yes, it does. 16 MR. BIRMINGHAM: In preparing the Final Environmental 17 Impact Report did you reach any conclusions concerning the 18 feasibility of flow Alternative 6? 19 MR. HOWARD: I don't recall that we reached any 20 conclusion regarding the feasibility of the alternative. 21 But we are aware that the plumbing exists to implement flow 22 Alternative 6. 23 I guess what my answer to it is that I don't recall us 24 saying, "We have concluded that flow Alternative 6 is 25 feasible." We wouldn't have formulated flow Alternative 6 CAPITOL REPORTERS (916) 923-5447 16478 1 if we did not believe at the outset that it was feasible. 2 MR. BIRMINGHAM: On October 5 the Department of the 3 Interior released a new decision concerning implementation 4 of Section 3406(b)(2) of the Central Valley Project 5 Improvement Act. 6 Are you familiar with that decision, Mr. Howard? 7 MR. HOWARD: In general terms, yes. 8 MR. BIRMINGHAM: Implementation of Central Valley 9 Project Improvement Act was among the projects which were 10 analyzed in the Final Environmental Impact Report under 11 cumulative impacts; is that correct? 12 MR. HOWARD: It was discussed in that section, yes. 13 MR. BIRMINGHAM: Has any of the analysis that is 14 contained in the Final Environmental Impact Report been 15 based on implementation of the October 5, 1999, Interior 16 decision on implementation of Section 3406(b)(2)? 17 MR. HOWARD: There were a couple of (b)(2) upstream 18 actions that were identified by the Bureau of Reclamation at 19 the time we were preparing this EIR, and my understanding is 20 we incorporated those into the modeling. But there were 21 many elements that were not identified at that time and, 22 therefore, were not incorporated. 23 MR. BIRMINGHAM: Do you know if the modeling analysis 24 included implementation of the October 5, 1999, Interior 25 decision on implementation of 3406(b)(2)? CAPITOL REPORTERS (916) 923-5447 16479 1 MR. HOWARD: Not specifically, no. 2 MR. BIRMINGHAM: I have no further questions. 3 C.O. STUBCHAER: Mr. Birmingham. 4 Is Mr. Simmons here? 5 MS. CAHILL: He is not here. He has no questions. 6 C.O. STUBCHAER: He has no questions? 7 MS. CAHILL: Not at this time. 8 C.O. STUBCHAER: Mr. Godwin. 9 MR. GODWIN: My questions have been taken care of. I 10 don't have any questions. 11 Thank you. 12 C.O. STUBCHAER: Is Ms. Harrigfeld here? 13 MS. ZOLEZZI: She is not here, so I don't know if she 14 would be allowed to go later or if she waives her right. 15 It's up to the Board. 16 C.O. STUBCHAER: We will reserve judgment. 17 Mr. Keene. 18 MR. KEENE: Mr. Stubchear, I only have questions for 19 Mr. Hunn. And like Mr. Birmingham, what I would like to do 20 is to defer those questions until Friday. What I would also 21 like to do, if I can, Mr. Stubchaer, at this time in the 22 interest of moving this along quickly, I have a witness 23 which I will have to put on the witness stand after I have 24 the information, so I would just as soon let him go home now 25 and not hang around and possibly be called between now and CAPITOL REPORTERS (916) 923-5447 16480 1 Friday. With the Chair's permission. 2 C.O. STUBCHAER: Yes, that is fine. 3 MR. KEENE: Thank you. 4 C.O. STUBCHAER: Mr. Minasian. 5 Good Morning. 6 MR. MINASIAN: Morning. 7 ---oOo--- 8 CROSS-EXAMINATION OF 9 STATE WATER RESOURCES CONTROL BOARD STAFF 10 BY JOINT FEATHER RIVER DISTRICTS & 11 VARIOUS SACRAMENTO VALLEY RIVER WATER DISTRICTS 12 BY MR. MINASIAN 13 MR. MINASIAN: Mr. Chairman, I attempted to organize my 14 thoughts and the portions of the Final EIR and replies 15 through an outline. I have 20 sets. My suggestion is that 16 we mark this as an exhibit for the joint Feather River 17 Districts, and I have 35 copies for members of the audience 18 and overheads. Perhaps we can just follow through in a 19 logical fashion. 20 C.O. STUBCHAER: This refers to your cross-examination 21 not -- 22 MR. MINASIAN: It does. 23 Andy, can I ask you to be my overhead man? 24 We need an exhibit, I believe that is Exhibit 2. That 25 is Richvale Irrigation District, Biggs-West Gridley, Butte CAPITOL REPORTERS (916) 923-5447 16481 1 Water District. The exhibit is solely for identification 2 and exemplification of testimony and is being submitted not 3 only on behalf of those clients, but all other Sacramento 4 River Valley clients that we made a notice of appearance of, 5 and that would, of course, exclude the Exchange Contractors. 6 MR. BIRMINGHAM: Exhibit 2. 7 MR. MINASIAN: The Joint Feather River District, which 8 perhaps you have as Richvale, Biggs-West Gridley, Butte 9 Water District -- 10 May I proceed? We will put the number on it in the 11 record at a later time. 12 C.O. STUBCHAER: That is a good idea. 13 MR. MINASIAN: I apologize for not being prepared for 14 that. 15 C.O. STUBCHAER: You are quite prepared, it looks to me. 16 MR. MINASIAN: We will see if I don't confuse myself. 17 Mr. Howard, Mr. Sawyer has been good enough to put up 18 Exhibit 1 for exemplification purposes. 19 That is the one you had on there, Andy. 20 MR. SAWYER: It says two. 21 MR. MINASIAN: Would you put 1 on, please. 22 On Page 63 of the replies do you recall that a reply 23 was entered that a change had been made in the Final EIR to 24 add on a table, Table II-8, as a party responsible under 25 Alternative 5 for making water available, a category called CAPITOL REPORTERS (916) 923-5447 16482 1 the Feather River Districts? 2 Do you recall that, Tom? 3 MR. HOWARD: Yes. 4 MR. MINASIAN: Let's go to Exhibit 2. Is this a copy 5 of Table II-8 in the Final EIR? 6 MR. HOWARD: Yes. 7 MR. MINASIAN: Do we see that the words "and Feather 8 River Districts" has been added? 9 MR. HOWARD: Yes, it has. 10 MR. MINASIAN: Could you tell us who the Feather River 11 Districts are? 12 Andy, could you put up 2.1 so we can see the previous 13 version of this in the draft? 14 Who are the Feather River Districts, Tom? 15 MR. HOWARD: Well, those are the districts in the 16 Feather River that have agreements with the Department for 17 some deliveries out of the Oroville complex as a result of 18 their preexisting water rights. I am afraid I simply don't 19 recall the names of the districts. 20 MR. MINASIAN: That is fine. That would be the Western 21 Canal Water District, Richvale Irrigation District, 22 Biggs-West Gridley Water District, Butte Water District, 23 Sutter Extension Water District, and certainly Mr. Gallery's 24 clients downstream, Tudor Mutual Water Company, Garden 25 Highway Mutual Water Company, and clients of ours, the CAPITOL REPORTERS (916) 923-5447 16483 1 Plumas Mutual Water Company. 2 Do those ring a bell? 3 MR. HOWARD: They sound familiar. 4 MR. MINASIAN: Mr. Sawyer, can you put up Exhibit 3.0, 5 which is a copy of Page II-28 of the Final EIR, and I have 6 outlined certain language on that, Mr. Howard. 7 Alternative 5 as originally proposed in the draft 8 called for parties with 100,000 acre-feet of storage for 9 consumptive use to have some portion of the responsibility 10 for meeting water releases under Alternative 5, did it not? 11 MR. HOWARD: Yes. 12 MR. MINASIAN: And the addition of Feather River 13 contractors changes the nature of Alternative 5 in the Final 14 EIR, does it not? 15 You may not understand the question, so let me just 16 focus you on the last underlined line. 17 Do you see: 18 If more than one party is responsible for 19 meeting the requirements on the tributary, 20 responsibility is shared among the parties 21 based on each party's percentage of the total 22 depletion of the tributary. This situation 23 occurs in the Yuba, Bear and Tuolumne River 24 watersheds. In these watersheds 25 responsibility is assigned among parties as CAPITOL REPORTERS (916) 923-5447 16484 1 shown in Table II-9? (Reading.) 2 Do you see that language? 3 MR. HOWARD: Yes, I do. 4 MR. MINASIAN: The Feather watershed is not mentioned 5 there, is it? 6 MR. HOWARD: No, it is not. 7 MR. MINASIAN: At other points in the description of 8 Alternative 5 in both the Draft and Final the reference was 9 to the State Water Project and CVP being responsible for 10 insuring the objectives are achieved on those tributaries 11 they control, was it not? 12 MR. HOWARD: Yes, that is true. 13 MR. MINASIAN: So do you have any knowledge of a 14 reservoir in excess of a hundred thousand acre-feet that is 15 owned and controlled by the Feather River Districts that I 16 named to you a moment ago? 17 MR. HOWARD: The basis for the addition of the Feather 18 River Districts is under the first underlined paragraph 19 where it says "if there is insufficient water in the 20 reservoirs both to achieve the flow requirements and to meet 21 all other downstream flow obligations, users of water 22 downstream of the reservoirs would receive reduced 23 deliveries," in that the Feather River Districts are 24 downstream. And in the event that there was insufficient 25 water in Oroville for the purpose of meeting the in-stream CAPITOL REPORTERS (916) 923-5447 16485 1 flows the users downstream of the reservoirs would be 2 required to receive reduced deliveries and that would 3 include the Feather River Districts. 4 MR. MINASIAN: Did anything in your modeling justify 5 the change in Table II-8? Did Oroville go dry at some point 6 under Alternative 5? 7 MR. HOWARD: Not to my recollection. 8 MR. MINASIAN: What would be the circumstance, then, in 9 which the responsibility would be allocated to Feather River 10 Districts under Alternative 5? 11 MR. HOWARD: I would imagine it would be very rare, 12 hydrology that probably has not historically occurred at 13 present. 14 MR. MINASIAN: How did this change get made? And if I 15 could ask you to put Exhibit 1.0 back on, Mr. Sawyer, if you 16 can find it. I apologize. 17 Is it correct, Mr. Howard, that the DWR asked that the 18 State Water Project contractors be added as a responsible 19 party under Alternative 5? 20 MR. HOWARD: I am quite certain the change wouldn't 21 have been made if we hadn't received that comment. 22 MR. MINASIAN: So, on the basis of everything you know 23 today, what is the factual reason that they weren't 24 mentioned in the original draft and they were mentioned in 25 the final draft? CAPITOL REPORTERS (916) 923-5447 16486 1 MR. HOWARD: I would characterize it as an oversight on 2 our part. As an analogy, we had a comment on the Stanislaus 3 River was Oakdale and South San Joaquin Irrigation District 4 where people referred to under local USBR Contractors on 5 Page II-8. Our answer at that point was, "Well, yes, they 6 are." The ones we are referring to as local USBR 7 contractors, they are, in my mind, a similar situation as 8 the Feather District parties. They are parties who are 9 preexisting water rights and signed an agreement with the 10 Bureau to receive water from New Melones to replace their 11 existing water rights, just as the Feather River Districts 12 had. And to the extent that there was insufficient water in 13 the reservoir to meet all of the demands, that is the 14 deliveries plus the in-stream flow requirements, 15 curtailments to Oakdale and the South San Joaquin River, 16 would have occurred similarly in flow Alternative 5. 17 Reductions to downstream water users on the Feather would 18 have also had to have occurred. 19 MR. MINASIAN: Let me ask you a series of questions to 20 see whether Alternative 5 has changed between the draft and 21 final. I thought Alternative 5 only imposed obligation on 22 water right holders that held 100,000 or more of the rights 23 to consumptively use stored water under water rights? 24 MR. HOWARD: No. It always had the additional 25 requirement that if there was inadequate water to meet the CAPITOL REPORTERS (916) 923-5447 16487 1 downstream needs plus the in-stream fishery requirements, 2 that downstream deliveries would have to be curtailed in 3 order to insure the provision of the in-stream flow 4 requirements. 5 MR. MINASIAN: When we look at Shasta as an example or 6 Trinity, we should have named all of the users downstream on 7 those streams on the assumption that there could have been 8 an Alternative 5 circumstance at which those parties would 9 not have had water available to them, even if they didn't 10 have a water right to storage; is that correct? 11 MR. HOWARD: No. First off, I wouldn't agree with the 12 characterization of the Trinity and that the Alternative 13 doesn't have any in-stream flow requirements on the 14 Trinity. 15 On the Sacramento, it refers to the CVP 16 contractors. There are more than sufficient CVP contractors 17 downstream, and the reference to CVP contractors would refer 18 to things like settlement contractors, folks who had 19 preexisting water rights. 20 MR. MINASIAN: In any of the modeling did you put a 21 depletion for any Feather River contractor under any 22 scenario of Alternative 5 in terms of water use? 23 MR. HOWARD: No. 24 MR. MINASIAN: In fact, you used the same modeling 25 assumption; that is, if Alternative 5 was applied, everybody CAPITOL REPORTERS (916) 923-5447 16488 1 would replace the water with groundwater or with a contract 2 from somewhere, didn't you? 3 MR. HOWARD: On the Feather River my recollection is 4 that there was never a need to decrease deliveries in the 5 Feather River Basin as a result of implementation of flow 6 Alternative 5. 7 MR. MINASIAN: Could you put Exhibit 4, which is Page 8 54 of the replies? 9 This reply was edited by you, was it not, Mr. Howard? 10 MR. HOWARD: Yes, it would have been. 11 MR. MINASIAN: If you look at the last five lines, 12 those lines indicate that the State Water Control Board is 13 not by this Final EIR purporting to examine the 14 environmental impacts from requiring additional flow 15 requirements from parties who have water priorities to the 16 State Water Project or the CVP; is it not? 17 MR. HOWARD: Could you repeat the question? 18 MR. MINASIAN: You are aware that we do have, some of 19 us hopefully have, a priority system in regard to water 20 rights in California? 21 MR. HOWARD: Yes. 22 MR. MINASIAN: This last five lines of the reply refers 23 to that water right priority system, does it not? 24 MR. HOWARD: Yes, it does. 25 MR. MINASIAN: Does the Final EIR in any way purport to CAPITOL REPORTERS (916) 923-5447 16489 1 describe the potential environmental impacts and mitigation 2 measures should the duty of Alternative 5 be applied to 3 parties with prior water rights upon the Feather River to 4 those water rights of the State Water Project at Lake 5 Oroville? 6 C.O. STUBCHAER: Excuse me just a moment, Mr. 7 Minasian. 8 Ms. Whitney. 9 MS. WHITNEY: Mr. Minasian is referring to Exhibits 1 10 through whatever they are. Our records indicate he has 11 already entered five exhibits into the record, so his 12 exhibits are incorrectly numbered since we are using a 13 continuous numbering of stuff that has been entered into the 14 record previously. I am afraid it is going to cause 15 confusion in the transcripts. 16 C.O. STUBCHAER: Why don't we try and get that 17 question answered, then straighten out numbering, while the 18 question is still fresh. 19 MR. HOWARD: Alternative 5 potentially could be -- an 20 alternative similar to Alternative 5 could potentially be 21 adopted by the Board. There are a number of nuances 22 associated with that Alternative that could be the subject 23 of discussion by the Board in its deliberations. 24 The EIR does not purport to attempt to analyze every 25 possible nuance of flow Alternative 5 nor, for that matter, CAPITOL REPORTERS (916) 923-5447 16490 1 for any of the alternatives. It is my opinion that there 2 are literally enumerable number of possible allocation 3 methodologies that the Board could develop. 4 The intent of the EIR was, to a great extent, to 5 analyze a broad range of alternatives for the purpose of 6 allowing the Board flexibility in deciding what it felt was 7 an appropriate balance of the alternatives. Your question 8 is, basically, would the particular nuance of combining the 9 in-stream flow requirements of Alternative 5 with a water 10 right priority system for each watershed, as opposed to the 11 broad water right priority alternative analyzed, your 12 question is, is that alternative specifically analyzed in 13 the EIR. And my answer would be no. My answer would also 14 be, as I said, we tried to analyze a broad range of 15 alternatives. 16 If it is the Board's and the staff's opinion, after it 17 decides on a particular allocation, that the analysis in the 18 EIR is inadequate for purposes of the particular allocation 19 that is developed, then I would imagine a supplement to the 20 draft to the Final EIR would have to be prepared. 21 Nonetheless, it was intent to look at a broad range of 22 alternatives and hopefully bracket any, the possible or 23 reasonable range of alternatives that the Board might 24 select. 25 MR. MINASIAN: Let me phrase a question in a factual CAPITOL REPORTERS (916) 923-5447 16491 1 way rather than a legal way. I am looking for a factual 2 answer to this, Mr. Howard. 3 If this Draft EIR is certified as final at the end of 4 this month, how would a water right holder on the Feather 5 River be assured that, if they would, that the Final EIR 6 would not be argued at some time to have satisfied CEQA in 7 regard to the environmental impacts from Alternative 5 as to 8 that water right holder? 9 I think it is okay to answer, "I don't know." 10 MR. HOWARD: I am trying to think about the answer, 11 rather than -- 12 MR. MINASIAN: At least half the people in that room 13 have that problem, I believe. 14 MR. HOWARD: Well, certainly any water right holder who 15 is not listed in the Board's notice or in the Draft EIR 16 would certainly have that assurance, at the outset. 17 MR. MINASIAN: That, as you know, includes a number of 18 people who hold small water rights under a certain size? 19 MR. HOWARD: Yes, and it also includes a lot of 20 pre-1914 water right holders who are not listed by the Board 21 in either its notice or in the Final EIR. 22 C.O. STUBCHAER: Ms. Leidigh. 23 MS. LEIDIGH: I just wanted to make a comment at this 24 point. It seems to me that the question Mr. Minasian asked 25 Mr. Howard really calls for a legal conclusion. I can't CAPITOL REPORTERS (916) 923-5447 16492 1 think of any way to answer that without going into statutory 2 case law with respect to CEQA. And I would respectfully 3 submit that Mr. Howard is not a lawyer, and I don't think he 4 is that much of an expert to be able to answer this 5 question. 6 C.O. STUBCHAER: Mr. Minasian. 7 MR. MINASIAN: I think it is best to leave the question 8 on the record and leave Mr. Howard's attempt to answer it. 9 Our point here by cross-examination sometimes is to educate 10 the Board. There may not be an answer to that question. 11 As to the marking and the use of the phrases 12 "exhibits," what I intend, Ms. Whitney, is to mark the whole 13 document for illustrative purposes and include it for 14 illustrative purposes. And when I refer to the exhibit I am 15 referring to a page in the document. I hope that that will 16 be clear upon the record and that will meet the approval of 17 the Board and staff as a voiding confusion. 18 The individual pages are oftentimes copies of your 19 reply or your original Draft EIR or Final EIR, and they are 20 solely for illustrative purposes. 21 C.O. STUBCHAER: I was thinking about the same 22 question, Mr. Minasian. I thought perhaps we say they are 23 subexhibits within the identified exhibits and make certain 24 that is clear on the record and, if necessary, can we go 25 back to the beginning of the testimony and state it CAPITOL REPORTERS (916) 923-5447 16493 1 there. I don't know how we do that. 2 MS. LEIDIGH: I am not sure how we do that with respect 3 to the transcript, but we can certainly do it here. We can 4 mark it so. This exhibit, the entire package, would be 5 Exhibit 6. And then we would just consider the exhibits 6 within Exhibit 6 to be subexhibits and numbered that way. 7 MR. MINASIAN: Thank you. 8 Could we go to another subject, Mr. Howard, which would 9 be the subject of the interaction between subsidence and 10 water quality and drainage impacted areas, if any. 11 Mr. Sawyer, could I ask you to put up Exhibit 5 on the 12 overhead, which is a portion of the Executive Summary, Page 13 7. 14 The Executive Summary is new to the Final EIR, is it 15 not, Mr. Howard? 16 MR. HOWARD: There was an Executive Summary in the 17 draft, but this was essentially completely rewritten, yes. 18 MR. MINASIAN: Was the purpose of the Executive Summary 19 to provide a guidance to the approach to alternatives and 20 mitigation measures in respect to groundwater impacts to the 21 reader of the Final EIR? 22 MR. HOWARD: I don't know if I would characterize it 23 that way. I think it was simply our attempt to in as 24 succinctive a fashion as possible to discuss the effects of 25 implementation of the plan and summarize the environmental CAPITOL REPORTERS (916) 923-5447 16494 1 effects and the mitigation that was proposed. 2 MR. MINASIAN: We'll come back to this, Mr. Sawyer. 3 Let's go to Exhibit 6, which is a copy of Page 256 of the 4 reply. 5 The underlined language, the last two sentences say, 6 that subsidence does not result in decreased water quality 7 or more overdraft. Likewise decreased water quality does 8 not contribute to more overdraft. 9 Do you remember this reply, Mr. Howard? 10 MR. HOWARD: Yes. 11 MR. MINASIAN: Was it in context of trying to explain 12 why the Final EIR did not examine and attempt to mitigate 13 for cumulative impacts from groundwater pumping in an area 14 which was impacted by both subsidence risk and poor water 15 quality risk as increased amounts of groundwater were pumped? 16 MR. HOWARD: Could you repeat that question, please? 17 MR. MINASIAN: Was the reply aimed at trying to explain 18 why the Final EIR did not conclude that there were 19 cumulative impacts from declining quality of groundwater and 20 from subsidence in an area where more groundwater would be 21 pumped if the project moved forward? 22 MR. HOWARD: No, I don't believe we were trying to 23 explain why the cumulative impacts were not analyzed. 24 MR. MINASIAN: Do you see the sentence beyond that, the 25 groundwater resources impacts do not have a magnifying or CAPITOL REPORTERS (916) 923-5447 16495 1 cumulative effect when taken together? 2 MR. HOWARD: Yes, I see the sentence. 3 MR. MINASIAN: In fact, the Final EIR does not consider 4 the State Board adopting regulations to prohibit pumping of 5 groundwater in areas that might, in fact, be subject to both 6 subsidence and water quality degradation, do they not? 7 MR. HOWARD: No. It doesn't anticipate the Board would 8 try to do that. 9 MR. MINASIAN: Is there, in fact, cumulative effects 10 from an area which has a subsidence risk and an area which 11 will have declining quality of groundwater if more 12 groundwater is pumped in that area because of choosing one 13 of the alternatives? 14 MR. HOWARD: Could you repeat the question again? 15 MR. MINASIAN: Yes. 16 Is there a cumulative effect -- Strike that. 17 Does the Final EIR include any discussion of the 18 cumulative impact from pumping more groundwater as a 19 response to one of the alternatives chosen by the Board upon 20 an area that has both subsidence risk and declining water 21 quality because more groundwater is being pumped in that 22 area? 23 MR. HOWARD: The Draft EIR discusses both of those 24 factors. I do not believe that it discusses them as a 25 cumulative impact. Both of those are possible impacts CAPITOL REPORTERS (916) 923-5447 16496 1 associated with increased groundwater pumping. 2 MR. MINASIAN: Does the final EIR conclude that, in 3 fact, there won't be cumulative impacts from those two 4 conditions? 5 MR. HOWARD: I don't recall us ever specifically 6 stating, other than in this point, that that constitutes a 7 cumulative impact. 8 MR. MINASIAN: Do you believe that the EIR concludes, 9 in fact, the Final EIR, that there won't be a compounding or 10 cumulative effect from those two conditions in regard to the 11 San Joaquin Valley areas which pump more groundwater as a 12 result of choosing one of the alternatives? 13 MR. HOWARD: Well, I believe the EIR discusses both 14 problems associated with the groundwater pumping. I don't 15 believe that it ever says that these two things constitute a 16 cumulative impact. 17 MR. MINASIAN: Let's look at the final two sentences. 18 And I've asked you, do you agree that if subsidence exists 19 in an area and more groundwater is pumped subsidence will, 20 in fact, increase? 21 MR. HOWARD: That is what the Draft EIR states, Final 22 EIR. 23 MR. MINASIAN: Does that reply state that subsidence 24 itself does not cause decreased water quality or more 25 overdraft? CAPITOL REPORTERS (916) 923-5447 16497 1 MR. HOWARD: Well, subsidence does not cause more 2 overdraft. And I do not believe that it ever draws a 3 conclusion that it -- that subsidence itself causes 4 decreases in water quality. 5 MR. MINASIAN: If a farmer's field subsides, it does 6 not subside at an equal rate of elevation in all corners of 7 the field, does it? 8 MR. HOWARD: Most likely not. 9 MR. MINASIAN: And if that farmer is furrow irrigating, 10 the lack of level of his property will result in greater 11 amounts of groundwater having to be pumped to irrigate the 12 crops in the field, would it not? 13 MR. HOWARD: On an individual field size I don't know 14 that those effects would occur. These are regional effects. 15 You are talking about a single field. So I simply do not 16 know whether or not the effects you are citing on a field 17 level would occur. 18 MR. MINASIAN: Would you agree that subsidence does not 19 occur on even or common rate of subsidence over a large 20 geographical area? 21 MR. HOWARD: Not over a large geographical area, no. 22 MR. MINASIAN: Would you agree that unlevel fields tend 23 to utilize more groundwater than leveled fields not subject 24 to subsidence? 25 MR. HOWARD: If they are furrow irrigated, that might CAPITOL REPORTERS (916) 923-5447 16498 1 be the case, yes. 2 MR. MINASIAN: Is there anything in the Draft or Final 3 EIR that would conclude that we should ignore the effect of 4 subsidence in causing more groundwater to be pumped in areas 5 which are subject to greater pumping because of the 6 alternative? 7 MR. HOWARD: You are going to have to repeat that one. 8 MR. MINASIAN: Let me go on to the second point. I 9 think the Board can follow this. 10 The second point is, likewise, decreased water quality 11 does not contribute to more overdraft. Do you see that 12 sentence? 13 MR. HOWARD: Yes. 14 MR. MINASIAN: When groundwater degrades in quality, 15 the farmer has to keep a greater leaching fraction on his 16 field, does he not? 17 MR. HOWARD: Well, that would depend on the quality of 18 groundwater that is being pumped. 19 MR. MINASIAN: Well, let me give you a hypothetical to 20 orient this. Where in the Final EIR would it describe what 21 the impacts are of groundwater degrades in a particular area 22 upon the actual consumptive use of water? 23 MR. HOWARD: I don't recall that that is a discussion 24 in the EIR. 25 MR. MINASIAN: Do you agree that there is, in fact, a CAPITOL REPORTERS (916) 923-5447 16499 1 greater leaching fraction needed if the water quality of 2 groundwater degrades from, say, 1,500 TDS to 2,000 TDS? 3 MR. HOWARD: As a general rule, leaching increases as 4 the quality of applied water degrades, the leaching 5 requirement increases. 6 MR. MINASIAN: The reply that we have here in Exhibit 7 6, which is Page 256, says there is no cumulative effect 8 from having to pump more groundwater upon subsidence or upon 9 overdraft, does it not? 10 MR. HOWARD: That is what it says, yes. 11 C.O. STUBCHAER: Mr. Minasian, let we know when it is a 12 good time to take a morning break. 13 MR. MINASIAN: Probably just returning to one exhibit 14 and then if we can, thank you. 15 Could you put Exhibit 5 back on, Mr. Sawyer? 16 This is Page ES-7 of the Executive Summary. 17 Does that portion of the Final EIR proposed to be 18 adopted by the Board basically say that mitigation of 19 overdraft and of subsidence can take place not by action of 20 the Board but the individual farmers and water districts 21 within the area taking mitigation measures? 22 MR. HOWARD: The principal thrust of it deals with the 23 preparation of groundwater management plans and groundwater 24 management agencies; that is, the policy in the Water Code 25 that was espoused by the Legislature. CAPITOL REPORTERS (916) 923-5447 16500 1 MR. MINASIAN: And it is not proposed in the EIR nor 2 are any alternatives looked at of the Board exerting its 3 power at this point to basically provide mitigation 4 measures? 5 MR. HOWARD: No. As I said, we -- the Legislature is 6 declared as its policy that regional groundwater management 7 agencies should be the primary agencies responsible for 8 managing groundwater resources, and that is what that 9 section meant to refer to. 10 MR. MINASIAN: Is there a factual reason why 11 alternatives of the Board determining which areas should be 12 retired and which areas should not pump any more 13 groundwater, which farmer should go out of business, is 14 there a reason why those alternatives weren't examined in 15 the Final EIR or in the reply? 16 MR. HOWARD: Is there a reason? 17 MR. MINASIAN: Yes. 18 MR. HOWARD: Well, with respect to that particular 19 statement, if that is what you are referring to, I would 20 again state my response associated with the fact that that 21 type of response is consistent with the policy espoused by 22 the Legislature. 23 MR. MINASIAN: Would you imagine for a moment that you 24 weren't doing a water project in an EIR, but you were a city 25 and you were proposing to put a quarry in the middle of a CAPITOL REPORTERS (916) 923-5447 16501 1 residential area, would it, in your view, be adequate to 2 write an EIR and say, although the city has powers in regard 3 to speed limits in the area, we will leave it to the 4 pedestrians to get out of the way of trucks? 5 MR. SAWYER: Mr. Chairman, I object. Calls for a legal 6 conclusion, and it is beyond the scope of the notice for 7 today's question. 8 C.O. STUBCHAER: Mr. Minasian. 9 MR. MINASIAN: It is a hypothetical or analogy designed 10 to exemplify the contents of the Final EIR. 11 C.O. STUBCHAER: The objection is sustained. 12 MR. MINASIAN: Good time for a break. 13 (Break taken.) 14 C.O. STUBCHAER: Call the hearing back to order. 15 We are going to resume the cross-examination of the 16 panel by Mr. Minasian. 17 MR. MINASIAN: Mr. Howard, there is an assumption in 18 the Draft EIR that is carried forward in the Final EIR that 19 the CVP and State Water Project will replace water taken 20 from any water right holder in the Sacramento Valley, 21 allowing them to, basically, continue their surface uses of 22 the ground in the same way that they would have used them 23 before. Is there not? 24 MR. HOWARD: Not exactly, no. 25 MR. MINASIAN: Would you like to basically clarify -- CAPITOL REPORTERS (916) 923-5447 16502 1 Strike that. 2 How is it that the State Water Project and CVP would 3 mechanically replace water taken away from a water right 4 holder under Alternative 5, as an example, in the Sacramento 5 Valley? 6 MR. HOWARD: The question -- I guess, first off, you 7 asked whether or not that was an assumption in the Draft 8 EIR, and maybe I need to cover that in a little more detail 9 before we address -- 10 MR. MINASIAN: Could I have Exhibit 8, Mr. Sawyer, 11 which is V-2 of the Final. 12 Do you see underlined language towards the middle of 13 the page on V-2 of the Final EIR? Talks about contracting 14 for substitute water supply. 15 MR. HOWARD: Yes, I see that. 16 MR. MINASIAN: In fact, that was the assumption made in 17 the modeling in order to determine whether there would be 18 environmental impacts in the Sacramento River Basin, was it 19 not? 20 MR. HOWARD: Only in part. 21 MR. MINASIAN: Was it also assumed in the economic 22 analysis that if a party couldn't get a contract they would 23 pump groundwater? 24 MR. HOWARD: Yes, it was. And also the groundwater 25 analysis in Chapter 6 assumed that all deficiencies would be CAPITOL REPORTERS (916) 923-5447 16503 1 made up with groundwater pumping. This particular 2 assumption was made for the purpose of developing a new 3 hydrology in the rivers in the Central Valley. 4 There were three basic assumptions that could be made 5 in order to develop a new hydrology in the Central Valley 6 rivers. One, you could assume that a contract would be 7 provided. Two, you could assume that groundwater would be 8 pumped. And, three, you could assume that the land would be 9 fallowed. 10 We didn't perceive there was necessarily a lot of 11 difference in the resulting hydrology from either of those 12 three alternatives. But the directions that we had to give 13 to the modelers had to assume one of those three assumptions 14 in order for them to model the resulting hydrology, and so, 15 that was the assumption that we made for that purpose. 16 MR. MINASIAN: Because I am limited today to new 17 matters, things that changed between the draft and the 18 final, is it a correct statement that between the draft and 19 the final and the time preparing the replies, you had not 20 been given by the State Water Project or the CVP any forms 21 of contracts which they would offer to users in the 22 Sacramento River Basin to replace water? 23 MR. HOWARD: We had not requested such information. We 24 were aware of Water Code Section 11462 that related to the 25 issue of contracting by the State Water Project. CAPITOL REPORTERS (916) 923-5447 16504 1 MR. MINASIAN: You knew that some of the our clients 2 had requested those contract forms and commitments from the 3 State Water Project and CVP immediately after receiving the 4 Draft EIR, did you not? 5 MR. HOWARD: I was aware of your request, yes. 6 MR. MINASIAN: You knew we did not get a response? 7 MR. HOWARD: You did not get a response from the 8 Central Valley Project, we got one letter that, I believe, 9 was sent to you, the State Water Project. 10 MR. MINASIAN: That letter did not include the form of 11 contract which we had asked? 12 MR. HOWARD: No. It merely said they were willing to 13 negotiate a contract, as I recall. 14 MR. MINASIAN: Now, when you prepared the Final you, 15 therefore, didn't have the actual cost figures that the 16 state or the Feds would charge to the Sacramento users for 17 replacement of water to work with, did you? 18 MR. HOWARD: No. 19 MR. MINASIAN: So, could we have Exhibit 12, which is 20 Page 349 of the reply? 21 Do you recognize this reply as one that you worked on 22 and edited, Mr. Howard? 23 MR. HOWARD: Yes. 24 MR. MINASIAN: Do you recognize that it uses an 25 assumption because applied water is four acre-feet and CAPITOL REPORTERS (916) 923-5447 16505 1 approximately 50 percent of the water would have to be 2 replaced under various alternatives by those being subject 3 to conditions that one can multiply a value of $15 per 4 acre-foot times two acre-foot and get the additional cost 5 per acre for those acres impacted by the alternative chosen 6 by the Board in Sacramento Valley? 7 MR. HOWARD: I have been reading that. I am afraid 8 you'll have to repeat that. 9 MR. MINASIAN: That's all right. 10 Do you see the value of the water placed at $15 per 11 acre-foot? 12 MR. HOWARD: Yes. 13 MR. MINASIAN: So, you're assuming that the CVP would 14 charge about $15 per acre-foot for the replacement water? 15 MR. HOWARD: Approximately. That is the figure that is 16 cited there. Of course, it is only for a portion of the 17 applied water. 18 MR. MINASIAN: That is, you're assuming that 19 approximately 50 percent of the water being utilized by a 20 water right holder would continue to be supplied by them 21 under their water rights, but 50 percent they would have to 22 purchase because an alternative was adopted by the Board? 23 MR. HOWARD: In this particular response that is the 24 assumption that is being made, yes. 25 MR. MINASIAN: Do you see that in the response you also CAPITOL REPORTERS (916) 923-5447 16506 1 use an average applied water figure of four acre-foot? 2 MR. HOWARD: Yes. 3 MR. MINASIAN: Do you have any facts that would 4 indicate to you that the DWR and the Bureau charged for 5 water on the basis of applied water rather than diverted 6 water? 7 MR. HOWARD: No. 8 MR. MINASIAN: In fact, they charge rates of diverted 9 water, do they not currently? 10 MR. HOWARD: That is my recollection, but it is a bit 11 foggy. I guess I can't swear to that. 12 MR. MINASIAN: Diverted water is approximately 20 to 25 13 percent more than applied water throughout the Sacramento 14 Valley, is it not? 15 MR. HOWARD: The figure varies, but that would not be 16 outside the realm of the normal range. 17 MR. MINASIAN: You're aware that the State Water 18 Project charge for the Delta water rate is substantially 19 greater than $15 per acre-foot, are you not? 20 MR. HOWARD: Which charge? 21 MR. MINASIAN: State Water Project water. 22 MR. HOWARD: I don't know what exactly the charge is. 23 MR. MINASIAN: Now, could we go to Exhibit 11, which is 24 the chart on Page XI-4. 25 Do you recognize this as a new chart added to the Final CAPITOL REPORTERS (916) 923-5447 16507 1 EIR? 2 MR. HOWARD: I recognize it as a chart in the Final 3 EIR. I don't recall if it was in the draft. 4 MR. MINASIAN: This is a portion of the economic 5 section, is it not? 6 MR. HOWARD: Yes, it is. 7 MR. MINASIAN: Do you see an average delivery impact 8 for Alternative 5 in the Feather River region? 9 MR. HOWARD: Yes, I do. 10 MR. MINASIAN: Is that a hundred thousand acre-feet? 11 MR. HOWARD: Yes, it is. 12 MR. MINASIAN: The Feather River region, as used in 13 this chart, would include the actual users out of the 14 Feather River, the users out of the Yuba, users out of the 15 Bear, would it not? 16 MR. HOWARD: Yes, it does. 17 MR. MINASIAN: Exhibit 10, Mr. Sawyer. 18 Let's focus for a moment on that a hundred thousand 19 average acre-feet impact in the Feather River Basin. Did 20 Table XI-3, which is on Page XI-7 of the Final EIR, like the 21 draft, conclude that the economic impact in that Feather 22 River Basin of losing on an average a hundred thousand 23 acre-feet was $3,800,000 per year? 24 MR. HOWARD: Yes. 25 MR. MINASIAN: It assumed that it could demonstrate the CAPITOL REPORTERS (916) 923-5447 16508 1 same economic loss, $3,800,000, in the circumstance where 2 additional groundwater was pumped to make up the hundred 3 thousand and in the circumstance where water was contracted 4 from the CVP and the State Water Project, did it not? 5 MR. HOWARD: The questions you are asking now are 6 coming from Chapter 11 of the Final EIR. That chapter was 7 prepared by our economic staff, Adrian Griffin. 8 UNIDENTIFIED VOICE: He said he was coming right down. 9 MR. MINASIAN: Why don't I move on, then, and try to 10 come back to this. 11 MR. HOWARD: That was going to be my suggestion. The 12 person who is most able to respond to the particulars of 13 that analysis would be Adrian Griffin who prepared this 14 particular chapter. 15 MR. MINASIAN: Okay. 16 C.O. STUBCHAER: He's here. 17 MR. MINASIAN: Shall we do this to him? 18 C.O. STUBCHAER: Mr. Griffin, you want to come up here 19 to the witness table. 20 MR. HOWARD: I am afraid you would have to start at the 21 beginning questions. 22 MR. MINASIAN: Why don't I go on to another subject 23 and Mr. Griffin get acclimated to this very high atmospheric 24 level. 25 C.O. STUBCHAER: Sure. CAPITOL REPORTERS (916) 923-5447 16509 1 MR. MINASIAN: In preparing the Final EIR did you 2 reject the alternative of attempting to specifically define 3 what the term "economic terms" would be of the State Water 4 Project and CVP making up the water that was assumed to be 5 made up under the model? 6 MR. HOWARD: We were not aware of what the particular 7 terms would be. 8 MR. MINASIAN: Did you conclude that there could be no 9 significant environmental impact from those terms in the 10 Sacramento Valley? 11 MR. HOWARD: Well, initially. Of course, CEQA doesn't 12 require us to take into account the economic impacts, but 13 the secondary impacts associated with economics are required 14 to be analyzed. It gets back, again, to the three 15 alternatives available to -- essentially four alternatives 16 available to a water right holder. 17 Again, they can seek a contract, pump groundwater, 18 fallow their land or seek for a temporary transfer then 19 contract. In doing the various sets of analyses, we looked 20 at the limiting cases involved. We did not assume that 21 everyone would seek a contract, nor necessarily did we 22 assume that everyone would successfully achieve a contract. 23 If that was not the case, the secondary assumption or 24 another assumption that was used was that groundwater would 25 be sought. We are aware that in the Valley floor CAPITOL REPORTERS (916) 923-5447 16510 1 groundwater is generally available to all parties in the 2 Sacramento Basin. All the large water users in the 3 Sacramento Basin. Therefore, we did the analysis of 4 assuming for purposes of the groundwater analysis, 5 essentially, if you want to characterize it that way, that 6 no one sought a contract, that everyone sought additional 7 groundwater supplies in lieu of a contract to replace their 8 water that had been lost. 9 MR. MINASIAN: And so the economic impacts were 10 approximately 3,800,000 no matter which alternative or 11 combinations of alternatives you choose? 12 MR. HOWARD: Again, we have -- Adrian was the one who 13 looked at the particular economics, and I would defer to 14 him. 15 MR. MINASIAN: We saw in the previous chart that the 16 average amount of water loss in the Feather River service 17 area impacted by these economic amounts was a hundred 18 thousand acre-feet, did we not? 19 MR. HOWARD: Yes, it is. 20 MR. MINASIAN: If we divide a hundred thousand into 21 3,800,000, we end up with a value of $38 per acre-feet, do 22 we not, not 15? 23 MR. HOWARD: Yes. 24 MR. MINASIAN: Do you have any explanation for that 25 difference or is that a matter of economic expertise? CAPITOL REPORTERS (916) 923-5447 16511 1 MR. HOWARD: I would defer to Adrian. I know one of 2 the things we checked on was the cost of -- the average cost 3 of groundwater pumping in the valley, and but I don't recall 4 exactly what the figure was that came out of that particular 5 search. 6 MR. MINASIAN: Could I have Exhibit 12 back on, Mr. 7 Sawyer? 8 Do you see in the next to last paragraph -- in the last 9 paragraph, that the conclusion is net revenues produced by 10 additional acre-feet of water in any area is 40 to $50? So 11 it is likely that direct diverters would choose to purchase 12 project water and continue production? 13 MR. HOWARD: Yes. 14 MR. MINASIAN: If the average cost of replacing the 15 water lost because of choosing one of the alternatives in 16 the Sacramento Valley is $38, did you examine whether or not 17 any bank would lend money for production if the economic 18 value of the production from the water was $40, or a 19 two-dollar margin? 20 MR. HOWARD: No. 21 MR. MINASIAN: Are these a class of secondary impacts 22 that weren't examined in the draft or Final EIR? 23 MR. HOWARD: Again, it gets to the question if the 24 contracting expenses were too low then the groundwater 25 supplied would have been the next thing that, I imagine, the CAPITOL REPORTERS (916) 923-5447 16512 1 parties would have looked for. 2 It is my understanding that a vast number of acres in 3 the Central Valley are irrigated with groundwater supplies, 4 apparent economically. I guess the assumption we naturally 5 made was that parties who had partial curtailments as a 6 result of the implementation of the Draft EIR would be able 7 to operate with a groundwater supply or a contract supply in 8 that many other parties in their existing operations operate 9 in that manner. 10 MR. MINASIAN: This might be appropriate time to go to 11 Adrian, and I will have no more than five minutes. 12 C.O. STUBCHAER: Sure. 13 Mr. Griffin, while you are standing, please raise your 14 right hand. 15 (Oath administered by C.O. Stubchaer.) 16 C.O. STUBCHAER: Mr. Minasian, I presume you are going 17 to give Mr. Griffin a little background? 18 MR. MINASIAN: I would be happy to. 19 Mr. Griffin, did you work on Exhibit -- which is Page 20 XI-4 of the economic section of the Final EIR? 21 MR. GRIFFIN: Let me look at that page. 22 MR. MINASIAN: Mr. Sawyer will put it up on the screen 23 for you. 24 MR. GRIFFIN: Yes, I compiled that table. 25 MR. MINASIAN: Does it conclude that basically the CAPITOL REPORTERS (916) 923-5447 16513 1 impact of Alternative 5 in the Feather River would be on an 2 average, wet and dry years, about a minus a hundred thousand 3 acre-feet? 4 MR. GRIFFIN: Yes. And I'll make a correction to what 5 I just said. These were compiled from water supplies 6 studies provided by the Bay-Delta staff. I was mistaken. I 7 thought it was looking at a table which is similar. It is 8 Table XI-3 which is the effects of these reductions in water 9 deliveries on farmers -- 10 THE COURT REPORTER: Would you put the microphone 11 closer to your mouth, please? 12 MR. MINASIAN: This is, in fact, a new chart in the 13 Final EIR; it was not included in the original Draft EIR? 14 MR. GRIFFIN: Table XI-2? 15 MR. MINASIAN: Yes. 16 MR. GRIFFIN: I really don't recall what the particular 17 tables were in which version. 18 MR. MINASIAN: Could I have Exhibit 10, Mr. Sawyer, 19 which is Table XI-3 on Page X-7I of the Final EIR. 20 Now, at the top of the two columns which are circled 21 and which contain the amount of 3,800,000 acre-feet, do you 22 see the labels, additional groundwater use on the left and 23 no additional groundwater use on the right? 24 MR. GRIFFIN: Yes. 25 MR. MINASIAN: Would you explain to us the purpose of CAPITOL REPORTERS (916) 923-5447 16514 1 juxtaposing these two hypothetical stream conditions? 2 MR. GRIFFIN: Those would be to show the limits of the 3 effects in reality when farmers are faced with cutbacks in 4 surface water. They use groundwater as a substitute. And 5 the additional groundwater use shows what the impacts on net 6 revenues would be if the farmers use additional groundwater 7 in the way indicated by the Central Valley production model 8 system. 9 MR. MINASIAN: So, do those two figures tell us that, 10 based upon the data that is included in the Final EIR, it 11 doesn't matter much whether you pump groundwater or contract 12 for groundwater from the state and federal projects, the 13 cost is going to be about the same to the net income of the 14 farmers? 15 MR. GRIFFIN: Yes, that shows that in that area, even 16 if there is no additional groundwater used, the economic 17 impacts are about the same in median delivery years and low 18 delivery years and somewhat higher in low delivery years. 19 MR. MINASIAN: Now, did you as part of the Final EIR 20 come to any conclusion in regard to whether or not an 21 additional $38 an acre-foot charged to a rice farmer for 22 half of his water in a given year would allow the rice 23 farmer to grow the rice? 24 MR. GRIFFIN: No. Where did the $38 per acre-foot come 25 from? CAPITOL REPORTERS (916) 923-5447 16515 1 MR. MINASIAN: Remember the previous chart we had an 2 impact of minus a hundred thousand acre-foot on an average 3 year and if we divide that by $3,800,000 we basically end up 4 with $38 an acre-foot, don't we? 5 MR. GRIFFIN: Yes. 6 MR. MINASIAN: Is that a correct assumption? That is 7 if you raise the farmer's cost of water, it will have to 8 come out of his net income? 9 MR. GRIFFIN: Yeah. You may be misrepresenting the way 10 these numbers were developed. I developed these numbers by 11 applying a reduction in water use to a demand function which 12 shows the amount of net revenues produced by each acre-foot 13 of water. This indicated that there was a total reduction 14 of a hundred thousand acre-feet. Then it reduces net 15 revenues by the amount shown in the table. 16 MR. MINASIAN: So, that actually assumes that they 17 didn't grow a crop and get a return on that hundred thousand 18 acre-feet of water, does it not? 19 MR. GRIFFIN: Yeah. The assumptions built into the 20 model are there is a reduction in surface water supplies, 21 there is reductions in acreage, possibly some crop shifting. 22 And under the set of assumptions given on the left-hand part 23 of the table, the ability to use groundwater at a certain 24 cost. 25 MR. MINASIAN: So, shouldn't -- Strike that. CAPITOL REPORTERS (916) 923-5447 16516 1 Do you know if there is any section that assumes that 2 if you take a hundred thousand acre-feet away and you don't 3 produce any income with that a hundred thousand acre-feet in 4 the Final EIR? 5 MR. GRIFFIN: Those are the numbers shown in the 6 table. You take away -- perhaps it is easier to explain if 7 you look at a particular year-type. If we take away the 8 95,000 acre-feet in the median delivery years, it costs the 9 growers in the area $3,600,000. That is the loss in income 10 to the growers. 11 MR. MINASIAN: That loss of income can translate into 12 additional cost of replacing the water or idling the ground; 13 is that correct? 14 MR. GRIFFIN: These -- this loss in income is the 15 result of curtailing acreage or additional costs to pump 16 groundwater. 17 MR. MINASIAN: The assumption in this analysis shown on 18 the chart is the average cost of additional groundwater use 19 under that hypothetical would be about $38 an acre-foot, 20 isn't it? 21 MR. GRIFFIN: No. The best -- these numbers can't be 22 understood as the cost of groundwater. It's the loss of 23 income reducing -- resulting from reduction in crop 24 production. 25 MR. MINASIAN: Is there anywhere in the EIR an CAPITOL REPORTERS (916) 923-5447 16517 1 examination of whether or not you can, in fact, reduce the 2 production of income of a particular farmer by this amount 3 and he can go on getting operating loans and farming the 4 property as a whole? 5 MR. GRIFFIN: No. It doesn't look at the probability 6 of the individual operations or the cash flow of individual 7 operations. All this does is look at the agriculture sector 8 in aggregate for that particular region. 9 MR. MINASIAN: Mr. Howard, you talked to us a moment 10 ago about groundwater. A substantial amount of groundwater 11 in the Sacramento River is located near the Feather and 12 Sacramento River, is it not? 13 MR. HOWARD: My understanding is there is substantial 14 groundwater within that area. 15 MR. MINASIAN: Do you know whether or not the EIR 16 attempted to define whether or not these were percolating 17 groundwater flows or they were waters flowing in defined 18 subsurface channels, and that if you pumped them they would 19 simply accelerate the amounts of water coming out of the 20 river channels themselves? 21 MR. SAWYER: I object to the question. It assumes an 22 incorrect legal analysis, that pumping -- depletion of 23 surface water necessarily causes -- indicates a nondefinite 24 channel, which is incorrect. 25 C.O. STUBCHAER: Mr. Minasian. CAPITOL REPORTERS (916) 923-5447 16518 1 MR. MINASIAN: I didn't mean to assert a legal 2 principle. Let me do it in a different way. 3 You have in mind the Yuba County Water Agency service 4 area in Yuba County and you have aligned the rice growing 5 areas of Butte County and Sutter County, do you not, Mr. 6 Howard? 7 MR. HOWARD: I am not sure what you mean by "in mind." 8 MR. MINASIAN: You can visualize them? 9 MR. HOWARD: I can try. 10 MR. MINASIAN: If they were required by an alternative 11 to switch to groundwater, you could visualize where that 12 groundwater would be pumped from and the surface area it 13 would be used upon, can you not? 14 MR. HOWARD: Approximately. 15 MR. MINASIAN: You are aware that all of those areas, 16 to a degree, are charged by the Yuba and Feather River, are 17 you not? 18 MR. HOWARD: In part. 19 MR. MINASIAN: The EIR does not include an examination 20 of the cumulative impacts of assuming that all the surface 21 uses are going to continue, they will either buy water or 22 pump groundwater, upon the flows in the river, does it? 23 MR. HOWARD: No. There is no analysis to look at the 24 impact of the additional groundwater pumping on river 25 flows. CAPITOL REPORTERS (916) 923-5447 16519 1 MR. MINASIAN: In returning to my analogy of a city 2 council dealing with a quarry in a residential area, this 3 Board could direct the CVP and the State Water Project how 4 to replace the water taken by Alternative 5 in the Feather 5 River Basin, could it not? 6 MR. HOWARD: As part of the implementation of the 7 alternative, there is some flexibility on the part of the 8 Board, obviously, in how it would implement that 9 alternative. I am not quite sure what you mean by -- 10 MR. MINASIAN: But the EIR doesn't deal with those 11 alternative mitigation measures, does it? 12 MR. HOWARD: Which alternative mitigation? 13 MR. MINASIAN: An order ordering the CVP and the State 14 Water Project, if Alternative 5 is chosen, to make water 15 available on specific contractual terms to those that it has 16 taken? 17 MR. BIRMINGHAM: Object to the question. It exceeds 18 the scope of the notice. And Mr. Minasian's question really 19 goes to the adequacy of the document, and under the 20 instructions read by the Chair at the beginning of this 21 hearing, we were told that the purpose of this hearing was 22 not to delve into its adequacy. 23 MR. MINASIAN: I think the objection is good. 24 I have nothing further. 25 C.O. STUBCHAER: Thank you, Mr. Minasian. CAPITOL REPORTERS (916) 923-5447 16520 1 Mr. Nomellini. 2 MR. SAWYER: Mr. Chair, I would like to make a 3 procedural request in the hopes that Mr. Griffin would not 4 have to stay on the ground too long. I just wanted to take 5 out of order the redirect and introduce a statement of 6 qualifications. 7 C.O. STUBCHAER: All right. 8 Do you want to see if there are more questions for Mr. 9 Griffin? 10 MR. SAWYER: I think if there are any questions for Mr. 11 Griffin it would benefit them to get a statement of 12 qualifications before them, beforehand anyway. And, yes, 13 you might ask before he is excused if there are others who 14 have questions of him. 15 C.O. STUBCHAER: Mr. Nomellini, give us a couple 16 minutes here. 17 All right, Mr. Sawyer. 18 MR. SAWYER: For the record there are additional copies 19 of Exhibit 203 on the table. 20 Mr. Griffin, can you please state your name and address 21 for the record. 22 MR. GRIFFIN: I am Adrian Griffin. My address is 37th 23 Street, Sacramento, California. 24 MR. SAWYER: Have you brought with you a statement of 25 qualifications? CAPITOL REPORTERS (916) 923-5447 16521 1 MR. GRIFFIN: I brought with me a copy of my resume. 2 MR. SAWYER: For the record, that is State Water 3 Resources Control Board 203. 4 Is it accurate? 5 MR. GRIFFIN: Yes. 6 MR. SAWYER: Thank you. 7 C.O. STUBCHAER: Thank you, Mr. Sawyer. 8 Do any of the remaining cross-examiners have questions 9 for Mr. Griffin? 10 I see none. 11 Mr. Griffin, will you be available on call if something 12 comes up? 13 MR. GRIFFIN: Certainly. 14 C.O. STUBCHAER: Mr. Sawyer, do you have any objection 15 to excusing him for the moment? 16 MR. SAWYER: No. I asked for it. 17 C.O. STUBCHAER: Thank you. 18 Mr. Griffin, you are excused for the time being. 19 All right, Mr. Nomellini. 20 ---oOo--- 21 CROSS-EXAMINATION OF 22 STATE WATER RESOURCES CONTROL BOARD STAFF 23 BY CENTRAL DELTA PARTIES 24 BY MR. NOMELLINI 25 MR. NOMELLINI: Morning, Mr. Chairman, Members of the CAPITOL REPORTERS (916) 923-5447 16522 1 Board. Dante John Nomellini for the Central Delta 2 Parties. I have a few questions. 3 First, Mr. Howard, calling your attention to Page 4 VI-127 of the Final Draft, specifically -- and I apologize 5 for not making an overhead for these. I think that is an 6 excellent way to do it. Unfortunately, I did not do it the 7 way Mr. Minasian had. 8 The Mokelumne River is shown on the chart for frequency 9 with which rivers are between or below flow thresholds. 10 Do you see that? 11 MR. HOWARD: Yes. 12 MR. NOMELLINI: And under the column that says below 13 100,000 cubic feet per second, it shows 0 percent for all 14 alternatives; is that correct? 15 MR. HOWARD: Yes. 16 MR. NOMELLINI: Does that mean that the flow in the 17 modeling is never expected to be below 100 cubic feet per 18 second? 19 MR. HOWARD: In the modeling, between May and 20 September, that would be the case. 21 MR. NOMELLINI: Is it not true that the Department of 22 Fish and Game settlement agreement on the Mokelumne River 23 allows the flows during this same period to go as low as 15 24 cubic feet per second in some parts of the Mokelumne River? 25 MR. HOWARD: In very critically, very dry periods that CAPITOL REPORTERS (916) 923-5447 16523 1 is my recollection. 2 MR. NOMELLINI: And are you familiar with the basis 3 upon which the chart at VI-127 was made? 4 MR. HOWARD: In general terms. 5 MR. NOMELLINI: Do you think it is correct? 6 MR. HOWARD: Well, now that you point it out, I think I 7 would want to have it doubled-checked. 8 MR. NOMELLINI: Call your attention to Page VI-128 9 dealing with the Stanislaus River, and do you see for the 10 period May through September 0 percent for flows below 300 11 cubic feet per second? 12 MR. HOWARD: Yes, I do. 13 MR. NOMELLINI: Do you think that is correct? 14 MR. HOWARD: That looks suspicious as well. I would 15 have to double-check. 16 MR. NOMELLINI: Let me give you one more. Let's look 17 at the Stanislaus River and flows -- this was for the upper 18 reach of May through September and the column under flows 19 below 700 cubic feet per second, all zeros. 20 Do you think that is correct, that the flow in the 21 modeling is never expected to get less than 700 cubic feet 22 per second during that period of time? 23 MR. HOWARD: I will have to check it as well. I 24 consider that to be a suspicious result, yes. 25 MR. NOMELLINI: Calling your attention to VI-141, I CAPITOL REPORTERS (916) 923-5447 16524 1 will read the paragraph, the second paragraph in the bottom, 2 says: 3 Existing problems caused by groundwater 4 pumping could be magnified if pumping 5 increases as a result of surface water 6 delivery reductions. These problems include 7 surface land subsidence and the associated 8 loss of aquifer capacity, groundwater 9 overdraft, groundwater quality deterioration, 10 increases in energy consumption and decreases 11 in agricultural productivity. 12 (Reading.) 13 Do you see that paragraph? 14 MR. HOWARD: Yes. 15 MR. NOMELLINI: Is there any reason why depletion of 16 surface water flows should not be included as a possible 17 problem associated with groundwater pumping? 18 MR. HOWARD: It is another possible consequence of 19 groundwater pumping. 20 MR. NOMELLINI: Is it true that the Final 21 Environmental -- the Final Draft Environmental Impact Report 22 does not include any modeling of the impact of groundwater 23 pumping on river flow? 24 MR. HOWARD: No, it doesn't include any analysis of 25 that. CAPITOL REPORTERS (916) 923-5447 16525 1 MR. NOMELLINI: Is there any reason why such an 2 analysis was not included? 3 MR. HOWARD: Well, I guess it was a matter of degree. 4 The quantity of water that is being allocated here is not 5 what I would characterize as an extremely substantial amount 6 of water. 300,000 acre-feet on average, which is the 7 quantity of water that we are talking about here, being 8 reallocated from existing uses to fish and wildlife on an 9 average over 73 years, in light of the overall hydrology of 10 the Central Valley, does not seem sufficiently substantial 11 to go into that level of detail in an analysis. 12 I do not believe that we would see any -- that the use 13 of a model of the groundwater surface interaction model, 14 like CVPSM, would be able to provide any substantial new 15 information for that quantity of pumping. 16 MR. NOMELLINI: Would your conclusion be the same with 17 regard to 110,000 acre-feet from the totality of the 18 Stanislaus, Tuolumne and Merced Rivers? 19 MR. BIRMINGHAM: Objection. Ambiguous. 20 C.O. STUBCHAER: Mr. Nomellini. 21 MR. NOMELLINI: I don't think it is ambiguous. 22 C.O. STUBCHAER: From the totality of? 23 MR. NOMELLINI: Of the three streams. In other words 24 the magnitude of 110,000 acre-feet versus the three stream 25 systems, is that going to have the same conclusion from Mr. CAPITOL REPORTERS (916) 923-5447 16526 1 Howard, that there is not a significant impact that could be 2 anticipated. 3 C.O. STUBCHAER: Mr. O'Laughlin. 4 MR. O'LAUGHLIN: Very briefly, that assumes that in 5 that question based on the previous questions that all the 6 water that is going to be made available that enters into 7 the stream then is going to be pumped from the groundwater 8 that would lead to reduction in stream flow. That is not 9 stated in the question, nor is there in the previous record 10 that has been submitted to the State Board to support such a 11 hypothetical. I would say that it is not only irrelevant, 12 but it is argumentative. 13 MR. NOMELLINI: I will try again. 14 What quantity of groundwater would have to be extracted 15 from the watershed of Stanislaus River in order for there to 16 be a measurable impact on the flow of the Stanislaus River? 17 MR. HOWARD: We didn't look at that issue. 18 MR. NOMELLINI: Is the same true with regard to the 19 Tuolumne River? 20 MR. HOWARD: We didn't look at the quantity of water 21 that needed to be pumped in order to generate a substantial 22 affect on the Tuolumne River. 23 MR. NOMELLINI: Would the same be true with regard to 24 the Merced River? 25 MR. HOWARD: Yes. CAPITOL REPORTERS (916) 923-5447 16527 1 MR. NOMELLINI: With regard to Page XIII-57, and in 2 particular the chart that shows the average minimum water 3 levels by period at Old River downstream of barrier, do you 4 see that? 5 MR. HOWARD: Yes. 6 MR. NOMELLINI: Do you think the average -- Strike 7 that. 8 Is it assumed that the average minimum water level 9 analysis reflects the impact on irrigators in that area? 10 MR. HOWARD: Well, I'm not quite sure what you mean by 11 -- it gives -- it certainly gives information to parties who 12 might be irrigators downstream of that area. I do not know 13 whether or not I'd characterize it as, you know, provides 14 the impact to irrigators downstream of that area. 15 MR. NOMELLINI: Fair enough. 16 Is there any reason why the minimum water level rather 17 than the average minimum water level by period was not 18 analyzed to determine the impact on irrigators in the area? 19 MR. HOWARD: I guess the answer would be that in the 20 amount of space we had available to characterize stuff, we 21 used our judgment regarding what we thought would provide 22 the most information to parties, and this particular 23 characterization seemed to be the most appropriate. 24 MR. NOMELLINI: Did you in the preparation of the Final 25 Draft Environmental Impact Report make an analysis of the CAPITOL REPORTERS (916) 923-5447 16528 1 minimum water levels by period at Old River downstream of 2 the barrier? 3 MR. HOWARD: The staff people who went over the data 4 sets and developed this would have looked at that. I in 5 particular did not look at that issue. 6 MR. NOMELLINI: Do you know whether or not such 7 information is included in the Final Draft Environmental 8 Impact Report? 9 MR. HOWARD: No, I do not believe it is. 10 MR. NOMELLINI: Does the Final, Environmental, Draft 11 Environmental Impact Report analyze the impact on navigation 12 due to water level impacts resulting from the joint points 13 of diversion alternatives downstream of the proposed barrier 14 locations? 15 MR. BIRMINGHAM: Excuse me, I am going to object. I 16 have been sitting on my hands. I didn't want to delay the 17 proceedings. But about the last six or seven questions 18 asked by Mr. Nomellini go to the adequacy of the document 19 and are beyond the scope of the notice and instructions 20 given by the Hearing Officer at the beginning of this 21 morning's session. 22 I am going to object to this question on the ground 23 that it goes to the adequacy of the document, and I would 24 ask that the Hearing Officer request of Mr. Nomellini that 25 he refrain from asking that type of question. CAPITOL REPORTERS (916) 923-5447 16529 1 C.O. STUBCHAER: Mr. Nomellini. 2 MR. NOMELLINI: I wasn't trying to reach the adequacy 3 of the document, but trying to verify the information and 4 whether or not this is the credible information on the 5 particular subject. I think we have identified some of the 6 charts that had some errors in them and that is really what 7 I am trying to pursue, is to find out where the information 8 is, if it is not here and then whether or not it is 9 correct. 10 Where the line is between that and adequacy I don't 11 know. 12 C.O. STUBCHAER: Mr. Birmingham. 13 MR. BIRMINGHAM: Mr. Nomellini obviously spent a lot of 14 time going through the document, so I am sure if the 15 information on navigability or the analysis were in the 16 document, he would be aware of it. 17 I think that the questions he is asking concerning the 18 accuracy of information in the document certainly are 19 appropriate. But then to ask him questions: Did you do 20 this analysis? If not, why not? That goes to the adequacy 21 of whether or not this document complies with CEQA. 22 C.O. STUBCHAER: Ms. Leidigh. 23 MR. NOMELLINI: And I did not ask why not. 24 MS. LEIDIGH: I think we are starting to move over into 25 the adequacy of the document rather than what is in the CAPITOL REPORTERS (916) 923-5447 16530 1 document. And so, I would recommend that Mr. Nomellini be 2 careful with the questions that he asks, try to avoid that. 3 C.O. STUBCHAER: Please be careful, Mr. Nomellini. 4 MR. NOMELLINI: I am not going to spend a lot of time 5 on this. It is just that I have not done the careful 6 analysis that I have been given credit of having done, and I 7 apologize for that. 8 However, the time in which we have had these documents 9 and been enable to react to them, I have a complaint about 10 it. And I am not quite as prepared as I should be. 11 C.O. STUBCHAER: Please proceed. 12 MR. NOMELLINI: Mr. Howard, does the Final Draft 13 Environmental Impact Report examine the impact of average 14 minimum water levels on navigation downstream of the 15 barriers? 16 MR. HOWARD: In Chapter IX we discuss navigability 17 issues, but those discussions, as I recall, are limited to 18 the navigability associated with the barriers themselves as 19 opposed to the water levels that would appear as a result of 20 the implementation of the plan. It is also important to 21 recall that the analysis that you're seeing here doesn't 22 really get to the issue of absolute water levels. It gets 23 to the issue of the change in water levels associated with 24 plan implementation. 25 MR. NOMELLINI: With regard to the Delta Cross Channel, CAPITOL REPORTERS (916) 923-5447 16531 1 is there any evaluation in the Final Draft Environmental 2 Impact Report of installation of boat locks to facilitate 3 navigation? 4 MR. HOWARD: Of the Delta Cross Channel? 5 MR. NOMELLINI: Yes. 6 MR. HOWARD: No. Instead, we simply state that the 7 closure of the Delta Cross Channel as a result of the 8 implementation of the plan objectives will have a 9 substantial effect on navigation through that area. 10 MR. NOMELLINI: My next questions are -- thank you -- 11 for Mr. Hunn. 12 MR. HUNN: Still awake. 13 MR. NOMELLINI: Mr. Hunn, I gather you are the 14 responsible party for the Draft or Final Draft Environmental 15 Impact Report for the change of place of use? 16 MR. HUNN: That's correct. 17 MR. NOMELLINI: In that final draft it is correct, is 18 it not, that some 45,000 acres of mitigation land is 19 identified as being required? 20 MR. HUNN: Yes, there is approximately 45,000 acres. 21 MR. NOMELLINI: Is it true that the final draft does 22 not specifically identify where such land would be located? 23 MR. HUNN: For mitigation purposes? 24 MR. NOMELLINI: Yes. 25 MR. HUNN: No, it does not identify where. CAPITOL REPORTERS (916) 923-5447 16532 1 MR. NOMELLINI: With regard to the mitigation 2 requirement and the way you've defined it, is it required 3 that, for example, alkali scrub would have to be placed on 4 land that is now being farmed or otherwise put to productive 5 use? 6 MR. HUNN: No, it does not. 7 MR. NOMELLINI: What are the range of possible 8 opportunities to mitigate as identified there? In other 9 words, it doesn't have to be land that is already in 10 production. What steps are contemplated for the 11 mitigation? 12 MR. HUNN: On Page II-67 of the Final EIR there are 13 three items listed that are possible but not limited to 14 obtaining the required habitat values. They include 15 acquiring lands for habitat restoration, implementing 16 management programs to enhance existing habitat or acquiring 17 development rights to control land use activity to be 18 consistent with the target species needed and habitat 19 management. 20 MR. NOMELLINI: So, there is a variety of ways 21 mitigation could be provided, and it is not specifically 22 limited in the final draft; is that correct? 23 MR. HUNN: Correct. 24 MR. NOMELLINI: With regard to impacts associated with 25 the number of years that a particular type of habitat was CAPITOL REPORTERS (916) 923-5447 16533 1 displaced, is there any analysis of that? 2 MR. HUNN: No. The length of impact to habitat was not 3 considered. 4 MR. NOMELLINI: You would agree, would you not, that 5 the impacts have taken place over a variety of a number of 6 years? 7 MR. HUNN: Yes. They vary. 8 MR. NOMELLINI: Other than the impacts to the habitat 9 types, is it correct that the Final Environmental Impact 10 Report that you prepared did not address impacts on 11 salinity of the groundwater? 12 MR. HUNN: The analysis in the final impact report does 13 address possible changes to water quality. It did not 14 identify them as a significant adverse impact. 15 MR. NOMELLINI: So there would be no required 16 mitigation because of the conclusion that they would not be 17 significant? 18 MR. HUNN: That's correct. 19 MR. NOMELLINI: Was there a conclusion drawn as to the 20 amount of water to be utilized because of the irrigation of 21 the encroachment lands? 22 MR. HUNN: Would you repeat that question, please? 23 MR. NOMELLINI: Was there an analysis of the amount of 24 water utilized as a result of irrigation of encroachment 25 lands? CAPITOL REPORTERS (916) 923-5447 16534 1 MR. HUNN: I believe we -- we did not specifically 2 identify the amount of water that was applied to the 3 encroachment lands. 4 MR. NOMELLINI: Did you identify the increase in 5 demand, if any, associated with irrigation of encroachment 6 lands? 7 MR. HUNN: Again, I don't understand your question. 8 MR. NOMELLINI: Is there any analysis of the additional 9 water use required because of the irrigation of expansion 10 lands? 11 MR. HUNN: No. All the water we recognized was that 12 amount of water which could be delivered to an individual 13 water district. 14 MR. NOMELLINI: It was assumed, was it not, that the 15 encroachment land would be irrigated regardless of the 16 delivery of surface water? 17 MR. HUNN: We are only addressing the CVP water, yes. 18 MR. NOMELLINI: Is it true that the Final Draft 19 Environmental Impact Report, as you prepared it, assumes 20 that if CVP water was not delivered that the land would 21 continue to be irrigated from some other source? 22 MR. HUNN: Only in the cases where a source is 23 available to supply those specific lands. In other cases 24 where no such source is available or any other water could 25 be transferred to those properties, we assumed those lands CAPITOL REPORTERS (916) 923-5447 16535 1 would no longer be irrigated. 2 MR. NOMELLINI: Is that analysis on the Final 3 Environmental Impact Report? Just point me in the right 4 direction. 5 MR. HUNN: Well, at the exact moment I can't define 6 that specific phrase. 7 MR. NOMELLINI: You are convinced it is in there, 8 though? 9 MR. HUNN: There is a statement addressing that. 10 MR. NOMELLINI: Let me take a quick check, and I think 11 that's got it for me. 12 Okay, that is it. 13 C.O. STUBCHAER: Thank you, Mr. Nomellini. 14 Mr. Herrick, how long do you believe your examination 15 will take? 16 MR. HERRICK: Twenty minutes. 17 C.O. STUBCHAER: Let's break for lunch. But before we 18 do, Mr. Minasian, I have two questions for you. 19 One is, am I pronouncing your name correctly, or 20 Minasian? 21 MR. MINASIAN: Yes. It is Minasian, which means son of 22 Minas. We were all slaves at one time. Don't -- 23 C.O. STUBCHAER: The other one is more substantive. 24 Do you wish to offer your exhibits that you used in 25 your examination? CAPITOL REPORTERS (916) 923-5447 16536 1 MR. MINASIAN: My understanding of what we do when we 2 use an exhibit for identification as opposed to evidentiary 3 purposes is we simply mark it so it will be part of the 4 record, and I don't think there is any need to admit it 5 because it simply is copies and my notes, and my notes 6 obviously have no evidentiary affect. 7 C.O. STUBCHAER: Ms. Leidigh. 8 MS. LEIDIGH: If it is going to be used for anything, 9 relied upon, it needs to be admitted into the record. 10 C.O. STUBCHAER: Mr. O'Laughlin. 11 MR. O'LAUGHLIN: I would object to having it admitted 12 into the record. Mr. Minasian is not going to testify about 13 the notes that are part of the exhibit. We previously 14 marked other documents in this case that are purely for 15 identificational purposes so the record is clear. He 16 doesn't need to offer it at this time. And I agree with his 17 analysis, it is absolutely correct; it should not be 18 offered. 19 C.O. STUBCHAER: Any further comment from staff? 20 MR. MINASIAN: Is it your concern, Barbara, that 21 nobody could find it 'cause it wasn't an exhibit? 22 MS. LEIDIGH: That is part of it, yes. 23 MR. MINASIAN: I thought I obviated that by referring 24 to the page of the EIR or the reply in each instance when 25 the question was asked. So it will be on the transcript we CAPITOL REPORTERS (916) 923-5447 16537 1 have. 2 MR. O'LAUGHLIN: I would assume that since Mr. Minasian 3 made that available for everyone else that he will send it 4 out as part of the notice, part of the mailing, and all the 5 parties will get it marked for identification purposes, 6 Exhibit Number 6. 7 I remember when we submitted exhibits to the San 8 Joaquin River Group Authority there were numerous exhibits 9 that were marked but never actually admitted into evidence. 10 They were sent out to all the parties so you have them. 11 That is why you keep a record of the ones that have been 12 marked and ones that have been offered for identification 13 and ones that have been accepted into evidence and haven't 14 and what if any objections were made and whether those were 15 sustained. 16 C.O. STUBCHAER: Mr. Nomellini. 17 MR. NOMELLINI: I thought we had this straightened out 18 a long time ago. Anything referred to has got to be an 19 exhibit in the record in order to make sense of the 20 testimony. Whether or not it is given evidentiary weight is 21 something else. I think they should be admitted for the 22 purpose requested and not as an evidentiary document. But 23 we've got to have them in the record in order to make sense 24 of the record. 25 MR. BIRMINGHAM: It is in the record. It was marked as CAPITOL REPORTERS (916) 923-5447 16538 1 an exhibit. It is in the record. It was marked for 2 identification. Admitting it into evidence gives it 3 evidentiary value. I would object to the admission notes 4 because he's admitted they are of no evidentiary value. 5 C.O. STUBCHAER: Okay. Ms. Leidigh. 6 MS. LEIDIGH: Well, we can put them in a different part 7 of the record than the exhibits that have been admitted in 8 evidence. But I think we do need to have them because the 9 specific areas that were underlined on those notes are not 10 really clear from the spoken record without having the 11 material available to tell what the transcript means. 12 I am not quite sure how we are going to classify this 13 or where we will put it, though. 14 C.O. STUBCHAER: We will think about that over the 15 break. 16 Mr. Sexton. 17 MR. SEXTON: Are you finished on this subject, Mr. 18 Chairman? 19 C.O. STUBCHAER: We are deferred on this subject, 20 yes. 21 MR. SEXTON: I wonder if I could ask the indulgence of 22 the Chair. In Phase V you will recall that I appeared on 23 behalf of the San Luis and Delta-Mendota Water Authority, 24 the Grassland Bypass Project drainers. There is one issue 25 that we would like to just very, very briefly touch on with CAPITOL REPORTERS (916) 923-5447 16539 1 Mr. Howard. 2 I thought Mr. Birmingham was going to do it. He 3 thought I was going to do it. Neither of us did it. So I 4 would like to make an appearance on behalf of them and be 5 added to the examination list. It would be very, very 6 brief, I assure you. 7 C.O. STUBCHAER: This isn't based on -- it is based on 8 the lack of previous cross-examination not the specific 9 questions? 10 MR. SEXTON: That is correct. It is nothing that has 11 been discussed previously. 12 C.O. STUBCHAER: All right, Mr. Sexton. In the spirit 13 of Christmas, I am adding you to the list. No objections. 14 We will break -- Mr. O'Laughlin, are you getting -- 15 MR. O'LAUGHLIN: I want to get out of here. 16 C.O. STUBCHAER: We are adjourned until 1:00 p.m. 17 (Luncheon break taken.) 18 ---oOo--- 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 16540 1 AFTERNOON SESSION 2 ---oOo--- 3 C.O. STUBCHAER: Afternoon. We will call the meeting 4 back to order. 5 Before you do your cross-examination, we are going to 6 discuss Mr. Minasian's exhibit, and we are going to append 7 it to the hearing record for today. And the reason we need 8 it in the record is because, as you know, some of your 9 questions pertain to underlined text. So that's the way it 10 will be handled unless there is an objection. 11 All right. 12 Mr. Herrick, good afternoon. 13 ---oOo--- 14 CROSS-EXAMINATION OF 15 STATE WATER RESOURCES CONTROL BOARD STAFF 16 BY SOUTH DELTA WATER AGENCY 17 BY MR. HERRICK 18 MR. HERRICK: Mr. Chairman, Board Members, John Herrick 19 for South Delta Water Agency. I don't think this will take 20 very long. I will cover a couple of areas of new 21 information. My questions are for Mr. Howard. 22 Mr. Howard, I am starting with Chapter VI, and I am 23 starting on Page 11, just as kind of a reference point. I 24 note that the new analysis of water quality effects covers a 25 16-year period instead of six years as in the draft; is that CAPITOL REPORTERS (916) 923-5447 16541 1 correct? 2 MR. HOWARD: Yes. 3 MR. HERRICK: It says at the bottom of that first 4 paragraph there, below normal years under the San Joaquin 5 hydrologic classification do not occur during the model 6 study periods; is that correct? 7 MR. HOWARD: Yes. 8 MR. HERRICK: Do you have any reason why the study 9 period, the expanded study period, did not attempt to 10 include a below normal year? 11 MR. HOWARD: We were looking for a reasonable period 12 that we felt provided a range of hydrology, '76 to '91 which 13 included the worst drought, single year drought, '77, 14 included one of the worst periods for long-term drought, the 15 '87 to '92. It included the wettest year, 1982. 16 We felt that it was reasonably -- provided a reasonable 17 range of hydrology. It happens that one of the five-year 18 types in the San Joaquin Valley were not present in that 19 period of time, though all five of the year-types in the 20 Sacramento Valley were. So, it was just an attempt to 21 develop a reasonable range. We tried to avoid doing the 22 whole 73 years of hydrology because of the time involved in 23 modeling, in doing DWR DSM studies. So we ended up with 24 that period. 25 MR. HERRICK: I would like to note that the document CAPITOL REPORTERS (916) 923-5447 16542 1 itself does recognize that salinity problems occur mainly 2 during years of mainly below runoff; is that correct? 3 MR. HOWARD: We at one point, I think somewhere in the 4 document, say that there is a load problem in below normal 5 years. I don't know that below normal years in general 6 represent the worst water quality at Vernalis. The worst 7 water quality at Vernalis is often represented by periods 8 when there is not water in New Melones, and I don't know 9 that that is particular to below normal year-types. 10 MR. HERRICK: Turning to Page VI-13, and that is just 11 to help you. I am going to read a little bit. In the 12 middle of the big paragraph in the middle it says: 13 DWRSIM makes releases from New Melones 14 Reservoir to meet salinity objectives at 15 Vernalis. When there is insufficient water 16 in New Melones Reservoir to meet all the 17 demands, salinity objectives are violated. 18 (Reading.) 19 We went through this briefly in a prior phase with 20 regard to the draft. I just want to confirm for the final 21 here, is the modeling making -- is there an assumption in 22 the modeling that limits the amount of New Melones water for 23 salinity purposes? 24 MR. HOWARD: No. Alternative 7, which is the Letter of 25 Intent, limits the amount of releases from New Melones to CAPITOL REPORTERS (916) 923-5447 16543 1 70,000 acre-feet. Flow Alternative 8 limits the releases 2 from New Melones based on the Interim Operations Plan for 3 New Melones Reservoir. 4 For the other alternatives the quantity of water 5 released from New Melones is not limited other than the 6 physical limitations in the reservoir. 7 MR. HERRICK: Again, on those alternatives other than 7 8 and 8, you said there is no limitation. I don't mean to 9 misstate. Isn't it true that those other flow alternatives 10 modeling assumes some level of fishery releases that are not 11 available for water quality? 12 MR. HOWARD: There are several other demands placed on 13 the reservoir. There are the releases for the water users 14 in the Stanislaus River Basin. There are exports or water 15 deliveries to Stockton East and Central San Joaquin Water 16 Conservation District and there are fishery releases. And 17 all of those releases are not exactly, but essentially, the 18 fishery releases are provided prior to the water quality 19 releases. 20 So, yes, there are other demands on the system. 21 MR. HERRICK: A little farther down that paragraph, I 22 won't read it specifically, it talks about the number of 23 exceedances shown in the modeling. 24 Did you -- in doing this, did you see whether or not 25 your modeling for Alternative 8 showed the same exceedances CAPITOL REPORTERS (916) 923-5447 16544 1 as the modeling done by the San Joaquin Group Authority in 2 their EIR/EIS? 3 MR. HOWARD: No, we didn't compare the two. I would 4 have -- I suspect they are different. 5 MR. HERRICK: Could you clarify whether or not the 6 exceedances referenced in the final refer to exceedances 7 resulting from plan implementation or are they total 8 exceedances? In other words, they may be due to some prior 9 condition or prior lack of one? 10 MR. HOWARD: No. The only alternative that we used the 11 Interim Operation Plans -- I am sorry, maybe I am confused. 12 Can you repeat the question. 13 MR. HERRICK: I just want to clarify the text says list 14 exceedances for the Vernalis salinity objectives. Are those 15 exceedances resulting from the implementation of the '95 16 plan or are those total exceedances? 17 MR. HOWARD: Those are total exceedances. 18 MR. HERRICK: If you can turn to Page VI-32, which is 19 the beginning of the graphs for, I will say, South Delta 20 monitoring stations. 21 Could you tell us whether or not or which alternatives 22 include the existence of South Delta tidal barriers, if 23 any? 24 MR. HOWARD: My recollection is that all of these 25 alternatives included the temporary barriers. CAPITOL REPORTERS (916) 923-5447 16545 1 MR. HERRICK: And the temporary barriers, by that do 2 you mean the three temporary barriers? 3 MR. HOWARD: No, I do not. Only the Middle River and 4 Old River Barriers. The Grant Line Barrier was not included 5 in the temporary barrier analysis. 6 MR. HERRICK: Could you explain why not? 7 MR. BIRMINGHAM: Objection. 8 C.O. STUBCHAER: Mr. Birmingham. 9 MR. BIRMINGHAM: The question goes to the adequacy of 10 the environmental document. Why an analysis wasn't included 11 in the document is something that is irrelevant as to 12 whether it should be included in the evidence. We are not 13 here to talk about the adequacy of the document. 14 C.O. STUBCHAER: Mr. Herrick. 15 MR. HERRICK: I will say I understand the objection, 16 but I don't think it is an easy line to draw. I don't think 17 questions could fairly be limited to: Is this what it says? 18 Do you believe it is true? Is this different from the 19 previous document? The idea of cross-examination is to find 20 out what and why the new information is there. 21 But the point is where is the line? I think it's 22 reasonable to ask what assumptions went into the new data he 23 produced. 24 C.O. STUBCHAER: I agree that sometimes it is a 25 difficult line to draw. I will permit this question to be CAPITOL REPORTERS (916) 923-5447 16546 1 answered, but I would appreciate it if you are aware of the 2 objection in your future questions. 3 MR. HERRICK: Certainly, Mr. Chairman. 4 Mr. Howard, do you recall the question? 5 MR. HOWARD: Yes. In 1984 when we began this process 6 of both adopting a plan and implementing a water right 7 decision, we discussed with the Department of Water 8 Resources the appropriate assumptions that should be made 9 regarding barrier operation for the South Delta area, and we 10 were interested in modeling the existing condition at 11 approximately about that time. 12 And the existing condition that they characterized to 13 us was that there were two barriers that were being put in 14 at that time and that they should be incorporated into the 15 modeling for salinity in the South Delta. And that the 16 Grant Line Barrier was not being constructed at that time, 17 and so it probably won't be appropriate to include it. 18 That was the decision that was made at that time and to 19 a great extent in moving forward with what we characterize 20 as the existing conditions we made very little changes 21 between the ER for the Bay-Delta Plan and the EIR for this 22 document because this was meant to be one part of a larger 23 project. 24 MR. HERRICK: You as a staff member for the Board, 25 though, are aware that in a number of recent years, CAPITOL REPORTERS (916) 923-5447 16547 1 including this year, the Grant Line Barrier has been 2 installed; is that correct? 3 MR. HOWARD: It's been installed, and I understand it 4 has been taken out ahead of schedule in some instances. 5 There have been some problems associated with it and 6 discussions about whether or not it is appropriate to 7 install it at all, as I understand, yes. 8 MR. HERRICK: Mr. Howard, I am taking the Vernalis 9 graph on Page VI-32, do you recall how much water was 10 budgeted under Alternative 8 for water quality from New 11 Melones but not used goes into making that graph for any 12 particular month? 13 MR. HOWARD: No. 14 MR. HERRICK: Do you recall how your modeling treated 15 any water budgeted for water quality but not used in that 16 year was treated? 17 MR. HOWARD: My recollection would be that that water 18 would be held over and then reallocated the next year in 19 compliance with the allocations among the various uses under 20 the Interim Operations Plan. 21 MR. HERRICK: If you could turn to VI-34, on Figure 22 VI-53, Brandt Bridge for above normal years. Do you see the 23 instances on that graph where some of the alternatives are 24 above the, I will call it, summer month EC standard of 6.7? 25 MR. HOWARD: Yes. CAPITOL REPORTERS (916) 923-5447 16548 1 MR. HERRICK: One of those is Alternative 6, is it not, 2 in some of the months that exceeds the standard? 3 MR. HOWARD: Yes. 4 MR. HERRICK: Alternative 6 is the proposed 5 recirculation alternative; is that correct? 6 MR. HOWARD: Yes. 7 MR. HERRICK: Can you explain to us what assumptions 8 went into the recirculation alternative which resulted in it 9 not putting sufficient amounts of water into the San Joaquin 10 River to meet the Vernalis standard -- the Brandt Bridge 11 Standard? 12 MR. HOWARD: Well, the assumption was that sufficient 13 water would be provided -- well, let me back up a bit. 14 First off, recirculation did not result in any releases 15 for water quality at Vernalis. The releases under the 16 recirculation were, one, to meet the additional flows needed 17 for the pulse flows and, two, to meet the consumptive uses 18 in South Delta as identified in the exhibit number that we 19 -- or in the reference that is referenced in the document. 20 Now, in this particular case, the Vernalis objectives 21 were always met for flow Alternative 6. However, by the 22 time you move farther down the San Joaquin River, there are 23 additional agricultural drainage inputs into the San Joaquin 24 River that tend to raise the salinity. The New Melones 25 Reservoir in this alternative is not operated to meet Brandt CAPITOL REPORTERS (916) 923-5447 16549 1 Bridge salinity. It is operated to meet Vernalis salinity. 2 And to the extent that salinity decays from Vernalis to 3 Brandt Bridge it is represented on this plot as an 4 exceedance of the objective. 5 MR. HERRICK: Was there any flow alternative, I will 6 say, operated, to use your term, such that it would provide 7 sufficient flows to meet the Brandt Bridge standard? 8 MR. HOWARD: No. New Melones was operated for the 9 purpose of meeting the Vernalis salinity. If salinity 10 downstream was exceeded, New Melones releases were not made 11 for the purpose of meeting those objectives. 12 MR. HERRICK: If you could, turn to IX-23, please. 13 I am sorry, that is not a new part. I am sorry. 14 Could you turn to XIII-53? 15 On XIII-53 there is a table, XIII-17. Do you see that, 16 Mr. Howard? 17 MR. HOWARD: Yes. 18 MR. HERRICK: It talks about under different joint 19 point alternatives whether it is temporary or permanent 20 barriers and what barrier may be operated or not; is that 21 correct? 22 MR. HOWARD: Yes. 23 MR. HERRICK: Again, I note that for joint point 24 Alternatives 1 through 6 and 9 that it shows no Grant Line 25 Canal Barrier under the temporary barriers portion; is that CAPITOL REPORTERS (916) 923-5447 16550 1 correct? 2 MR. HOWARD: Yes. 3 MR. HERRICK: Would your reason for that not being 4 included be the same as you referenced earlier about the 5 initial beginning of this process only had the two 6 barriers? 7 MR. HOWARD: Yes. 8 MR. HERRICK: Would you conclude it does make a 9 difference on water levels if the temporary Grant Line 10 Barrier is included? 11 MR. HOWARD: Yes. 12 MR. HERRICK: Would you agree -- 13 Now, from an earlier part of the document, and I am 14 looking at Page IX-20, and I am not trying to question you 15 on that. I am trying to reference that statement. IX-20 is 16 under the effects of the alternatives for addressing 17 salinity. But at the very bottom it talks about the Grant 18 Line structure, and it says: 19 The Grant Line Barrier would be located at 20 the western end of an eight mile stretch of 21 Grant Line -- (Reading.) 22 And there is a map. For Chapter XIII on water levels 23 could you tell us what location of the Grant Line Canal 24 Barrier was used in the modeling studies? 25 MR. HOWARD: Looks like the eastern end of the Grant CAPITOL REPORTERS (916) 923-5447 16551 1 Line Canal Barriers. 2 MR. HERRICK: Do you know why the eastern end was used 3 instead of the western end location? 4 MR. HOWARD: We discussed this with the Department, and 5 this was a couple of years ago, I am afraid -- 6 MR. HERRICK: By that you mean DWR. 7 MR. HOWARD: Yes, the Department of Water Resources. 8 We discussed where the barriers might be placed. It was 9 agreed at that time that we place them at the eastern end. 10 The modeling shows the advantages, in my opinion, of moving 11 that barrier to the western end of Grant Line Canal, and 12 that issue is discussed in the response to comments, as I 13 recall, of the Draft EIR and I believe might even be 14 mentioned in the Draft EIR as probably a more appropriate 15 place to place that barrier. 16 MR. HERRICK: I appreciate that. 17 On Page XIII-54, and I'm reading under the section 18 entitled Old River Barrier Site, it says: 19 Old River Barrier site at the Middle River 20 site -- (Reading.) 21 The second sentence, I'm sorry. 22 -- at that Middle River site has very little 23 affect on downstream water levels. 24 (Reading.) 25 Mr. Howard, after you or some of your staff did the CAPITOL REPORTERS (916) 923-5447 16552 1 analysis and you came up with a result that shows little 2 downstream effects based on the various alternatives, did 3 you question that at all? 4 MR. HOWARD: There are some noticeable -- as I recall, 5 there are some noticeable downstream effects on Grant Line 6 Canal, probably largely because the barrier is placed so far 7 to the west, but -- rather to the east. 8 In general, however, the modeling did show that there 9 was very little affect upstream of -- downstream of the 10 barrier, and that made some sense to me in that we were 11 tidaling pumping water to the east. And, therefore, it 12 wasn't clear, shall I say, that that would necessarily have 13 a strong affect slightly to the west of the barriers. 14 MR. HERRICK: But you would expect that with -- 15 depending on what joint point alternative is being examined, 16 there are different levels of pumping on that western side 17 of each barrier; is that correct? 18 MR. HOWARD: Yes. The closer you get to the pumps, 19 the more pronounced that affect is. 20 MR. HERRICK: The next paragraph of the heading Grant 21 Line Barrier Canal Site, and as you said you modeled the 22 barrier at the eastern end, correct? 23 MR. HOWARD: Correct. 24 MR. HERRICK: Would you have the same conclusion with 25 regards to downstream effects of different joint point CAPITOL REPORTERS (916) 923-5447 16553 1 pumpings if that barrier were at the other end, the west 2 end? 3 MR. HOWARD: We saw some affect, as I recall, of the 4 Grant Line Canal as a result of -- as we went from the two 5 locations on the Grant Line Canal and that affect would 6 disappear or at least would certainly not be -- well, the 7 water level problems that we saw at Grant Line Canal would 8 be eliminated or partially eliminated by moving that barrier 9 to the west. 10 MR. HERRICK: If you will turn the page, I will start 11 now on the graphs. 12 I don't have much more, Mr. Chairman. 13 Starting on page -- it says Page XII-56, but it is Page 14 XIII-56. 15 MR. HOWARD: We will have to get that corrected. 16 C.O. STUBCHAER: Get the errata sheet and get a gold 17 star. 18 MR. HERRICK: It was purely serendipitous. 19 Mr. Howard, I don't want to recover ground that Mr. 20 Nomellini touched upon, but I do want to clarify that the 21 water level depths that these graphs show do not take into 22 account channel depths; is that correct? 23 MR. HOWARD: That is correct. 24 MR. HERRICK: Whether or not the water level depths you 25 have presented have an adverse affect on beneficial uses CAPITOL REPORTERS (916) 923-5447 16554 1 cannot be determined unless the channel depth is known also; 2 is that correct? 3 MR. HOWARD: Well, again, we are looking for the change 4 based on implementation of the plan. So if you look at base 5 case alone, that would not give you enough information, in 6 my opinion, to ascertain whether or not those base case 7 water levels are adequate to support the use. 8 MR. HERRICK: Mr. Nomellini touched real briefly upon 9 the use of averages there. Are the actual modeling results 10 contained in appendices? I apologize for not having gone 11 through them. 12 MR. HOWARD: For these DSM studies, those are 13 enormously large outputs. 14 MR. HERRICK: Since then, averages were used. There is 15 a possibility that any average listed here was determined by 16 including instances where the water levels were higher and 17 lower; is that correct? 18 MR. HOWARD: Yes. 19 MR. HERRICK: On Figure XIII-75 we see a couple large 20 increases in water levels under Alternatives 6 and 7; is 21 that correct, in some of those months? 22 MR. HOWARD: Seven and eight. 23 MR. HERRICK: I am sorry, 7 and 8. That is because 24 those have permanent barriers in them and not just two tidal 25 barriers; is that correct? CAPITOL REPORTERS (916) 923-5447 16555 1 MR. HOWARD: That and the fact that there is a Grant 2 Line Canal. 3 MR. HERRICK: That is what I was trying to say. The 4 permanent barrier alternative includes three tidal barriers, 5 correct? 6 MR. HOWARD: Correct. 7 MR. HERRICK: That is what makes a higher water level? 8 MR. HOWARD: To a great extent, yes, there could be 9 some effects just by the use of the permanent barriers as 10 well. 11 MR. HERRICK: I am almost through, if the Chairman 12 would give me just one minute to make sure. 13 That is all I have. 14 Thank you, Mr. Chairman. 15 C.O. STUBCHAER: Thank you, Mr. Herrick. 16 Mr. Denton. 17 ---oOo--- 18 CROSS-EXAMINATION OF 19 STATE WATER RESOURCES CONTROL BOARD STAFF 20 BY CONTRA COSTA WATER DISTRICT 21 BY DR. DENTON 22 DR. DENTON: Mr. Stubchaer, Members of the Board, my 23 name is Richard Denton, Water Resources Manager to Contra 24 Costa Water District. 25 Unfortunately our attorney, Mr. Maddow, could not be CAPITOL REPORTERS (916) 923-5447 16556 1 here today, so I am filling in for him. I have just a 2 couple of questions for Mr. Howard. 3 Mr. Howard, you previously testified in response to Mr. 4 Sawyer's question that the Final EIR for the implementation 5 of 1995 Water Quality Control Plan was accurate; is that 6 correct? 7 MR. HOWARD: To the best of my knowledge. 8 DR. DENTON: With regard to Footnote 26 of the November 9 1999 Final EIR, on Page VIII, this refers to closures of the 10 Delta Cross Channel in November-January as required by the 11 1999 Water Quality Control Plan. Footnote Number 26. 12 Is that an accurate representation of the corresponding 13 requirement for November-January cross channel closures in 14 '95 Water Quality Control Plan? In the control plan it was 15 also Footnote Number 26 on Page 22 of 95-1WR. 16 MR. HOWARD: No, there is a change. 17 DR. DENTON: Could you explain that change or at least 18 describe that change? 19 MR. HOWARD: The actual plan says for the November to 20 January period close Delta Cross Channel gates for a total 21 of up to 25 days. Footnote on II-28 says for the 22 November-January period close Delta Cross Channel gates for 23 a total of 45 days. 24 DR. DENTON: Was there a particular reason for that 25 change, or do you think that is a typographical error? CAPITOL REPORTERS (916) 923-5447 16557 1 MR. HOWARD: Actually, I can't think of a reason for 2 the change. Getting back a little bit of the history, 3 though, the plan said for a total of up to 45 days. In 4 Board Order 95-6 it said for a total of up to 45 days. The 5 Board Order 98-9 it said for a total of 45 days. 6 So sometime between 95-6 and 98-9 "up to" was deleted. 7 DR. DENTON: Do you think that it may have been just 8 something that was an oversight because it was a footnote to 9 an attachment that people may not have had a chance to 10 review in enough detail? 11 MR. HOWARD: It may have been. I have no recollection 12 of any direction from the Board to change it. 13 DR. DENTON: Thank you. 14 I also notice, and this may not be that relevant, just 15 the second sentence there in the Footnote 26 it says that 16 the operations group established under the framework 17 agreement will determine the timing and duration of the gate 18 closure. 19 That is also a change from what was in Footnote 26, 20 just by way of changing the order of the phrases. The Water 21 Quality Control Plan said the timing of the gate closure 22 will be determined by the operation groups established under 23 the framework of the agreement. Again, is there any 24 particular reason for that change? 25 MR. HOWARD: My answer is the same, I have no CAPITOL REPORTERS (916) 923-5447 16558 1 recollection why that change was made. 2 DR. DENTON: Thank you. 3 Just have one other line of questioning regarding the 4 response to comments section in Volume Number 3. In the 5 response to comments on the Final EIR, on Page 197 describes 6 the comments of Contra Costa Water District, DWR, Department 7 of Fish and Game and other parties, and questioning the 8 significance of Q West, which is a measure of net reverse 9 flow, questioning the significance of Q West on fish 10 survival. 11 Do you recall that section of the EIR response to 12 comments? It is Page 197, right at the bottom. 13 In the reply that the State Board gives on Page 198, it 14 states that reverse flows as measured by Q West have been 15 found to have a significant negative relationship with the 16 abundance of survival of some Delta species. 17 Do you recall that statement? 18 MR. HOWARD: Yes. 19 DR. DENTON: Do you believe it is accurate? 20 MR. HOWARD: I can think of two regressions which I 21 have seen which refer to Q West. And I recall -- well, I 22 recall repeated speculation to that effect. I know that is 23 a statement that many parties would not agree with. 24 DR. DENTON: Do you recall that on March 23rd, 1999, as 25 part of Phase VI testimony Dr. Martin Kjelson of the U.S. CAPITOL REPORTERS (916) 923-5447 16559 1 Fish and Wildlife Service testified regarding the affect of 2 Q West on fish survival? It is in the hearing transcript at 3 Page 12108. 4 MR. HOWARD: No, I don't recall that particular 5 testimony. 6 DR. DENTON: If I said that during that testimony Dr. 7 Kjelson in response to cross-examination by Mr. Bob Maddow, 8 by Contra Costa Water District, he testified that the 9 correlation between the Sacramento smolt survival and Q West 10 had an estimated value of 0.01. 11 Do you recall that? 12 MR. HOWARD: No, but I wouldn't doubt it. 13 DR. DENTON: Do you consider that to be a significant 14 correlation? 15 MR. HOWARD: No, I do not. 16 DR. DENTON: Based on that testimony by Dr. Kjelson, 17 who is the scientist, the lead scientist doing the studies 18 of coded wire tag survival after releases from Sacramento 19 River down to Chipps Island, on the bases of that testimony 20 by Dr. Kjelson, do you, therefore, still consider that State 21 Board reply statement on Page 198 to be accurate? 22 MR. HOWARD: The latest striped bass analysis that was 23 done by State Board staff and by Department of Fish and 24 Game, included Q West as a factor in survival of striped 25 base. And I believe that that was perceived to be a CAPITOL REPORTERS (916) 923-5447 16560 1 significant term. So, that is at least one species that I 2 am told, my staff tells me, there is -- a correlation 3 exists. I understand that analysis was checked with 4 Department of Fish and Game. 5 That would be the only one I am presently aware for 6 which that statement would hold. 7 DR. DENTON: Is there somewhere in the hearing record 8 results from experimental studies using striped base 9 releases that would allow us to review those results? 10 MR. HOWARD: No. But we would provide you with those 11 because that information is contained in the Final EIR, as 12 being the result of some of the regressions with those 13 equations. 14 DR. DENTON: Thank you very much. 15 C.O. STUBCHAER: Thank you, Mr. Denton. 16 Mr. Sexton. 17 Afternoon. 18 ---oOo--- 19 CROSS-EXAMINATION OF 20 STATE WATER RESOURCES CONTROL BOARD STAFF 21 BY SAN LUIS DELTA-MENDOTA WATER AUTHORITY & 22 GRASSLAND BYPASS PROJECT FARMERS 23 BY MR. SEXTON 24 MR. SEXTON: Mr. Chairman, Members of the Board. 25 Mr. Chairman, I want to thank you for the accommodation. CAPITOL REPORTERS (916) 923-5447 16561 1 For purposes of this examination, which will be very 2 short, I am appearing on behalf of San Luis Delta-Mendota 3 Water Authority and the Grassland Bypass Project farmers. 4 Mr. Howard, could I direct your attention please, sir, 5 to the response to comments, Volume 3, Pages 314 and 315. 6 The subject starts over on Page 314, and the subject is 7 the salinity control Alternative 3, the control timing of 8 tidal drain discharges. You would agree, sir, that the 9 control timing of tile drain discharges under salinity 10 Alternative 3 would require storage of tile drainage in the 11 soil profile for a period of time? 12 MR. HOWARD: No. 13 MR. SEXTON: Could you explain your understanding of 14 what would be required by control timing of tile drain 15 discharges, then? 16 MR. HOWARD: I think we refer in the EIR to the 17 analysis of control timing as one being done for 18 illustrative purposes; that is controlling timing of tile 19 drain discharges through subsurface storage. However, we 20 also say that because it's meant to just be a general 21 programmatic-type analysis, there are other ways to control 22 timing of tile drain discharges, such as the way that is 23 done presently by Westlands Water District and I believe by 24 some of the farmers in the districts you represent. And 25 that is recycling the water and reapplying it to land would CAPITOL REPORTERS (916) 923-5447 16562 1 be a way to eliminate for short periods of time releases of 2 tile drain discharges. That is at least one. I believe 3 there might be one or two others. 4 But the purpose in the Draft EIR analyzing only one is 5 meant to be illustrative of the general approach. The 6 modeling analysis that was done, however, did not presuppose 7 any particular approach for that. 8 MR. SEXTON: That is very helpful, Mr. Howard. My 9 understanding, and please confirm this to be correct, even 10 if the Final EIR then is admitted into evidence, it would 11 not be used for the purpose of implementing salinity 12 Alternative 3 as to the Grassland Bypass Project parties 13 which would in a manner which would require the storage of 14 tile drainage in the soil profile without some additional 15 work being done. That additional work being developing a 16 real-time management protocol, additional project level 17 analysis and things along that line; is that correct? 18 MR. HOWARD: That is correct. 19 MR. SEXTON: That is all I have. 20 Thank you very much. 21 C.O. STUBCHAER: Did Ms. Harrigfeld arrive? 22 Was there anyone else who wished to cross-examine? 23 Staff have any questions? 24 ---oOo--- 25 // CAPITOL REPORTERS (916) 923-5447 16563 1 CROSS-EXAMINATION OF 2 STATE WATER RESOURCES CONTROL BOARD STAFF 3 BY STAFF 4 MS. WHITNEY: Mr. Howard, earlier Mr. Nomellini asked 5 you about Table VI-62 and the following tables regarding 6 flows on the Mokelumne River and flows on the Stanislaus 7 River. You have before you some documents that are output 8 tables from East Bay MUDSIM and also a note diagram from 9 DWRSIM. And, Andy, if you can put those up on the screen. 10 Is it correct that East Bay MUD ran their model East 11 Bay MUDSIM to determine what the impacts of the State 12 Board's flow alternatives would be on the Mokelumne River? 13 MR. HOWARD: Yes. 14 MS. WHITNEY: Is this first table, which shows 15 handwriting at the time, the output for Mokelumne River for 16 Alternative 1 in the Board's EIR? 17 MR. HOWARD: I can't tell by looking at it if this is 18 an East Bay MUDSIM output or DWRSIM output. 19 MR. O'LAUGHLIN: Mr. Chairman, has this been previously 20 marked or identified because I don't -- I am not stretching, 21 but I read the document, but I don't ever remember seeing 22 that in the FEIR. It may be a document that is the basis of 23 the FEIR, but it hasn't been marked as an exhibit yet. 24 MS. WHITNEY: Right. It hasn't been marked as an 25 exhibit. CAPITOL REPORTERS (916) 923-5447 16564 1 C.O. STUBCHAER: I can't help but wonder if this 2 shouldn't be redirect rather than cross, and I think it 3 should be. 4 MS. WHITNEY: Fine, I will stop. 5 C.O. STUBCHAER: Do you have any cross-examination 6 questions? 7 MS. WHITNEY: No. 8 C.O. STUBCHAER: Board Members. 9 Okay. That concludes cross-examination of this panel. 10 Any redirect, Mr. Sawyer? 11 MR. SAWYER: Mr. Chairman, I have no redirect for Mr. 12 Hunn. I would like before I proceed with redirect for Mr. 13 Howard to determine whether there is any rebuttal testimony 14 with respect to the conformed and consolidated place of use. 15 I would like to determine whether we can excuse Mr. Hunn 16 until we reconvene when the maps are available. 17 C.O. STUBCHAER: Does anyone have rebuttal testimony 18 for Mr. Hunn before we get the revised or the enlarged 19 maps? 20 Seeing no response, unless there is one behind you, Mr. 21 Sawyer. Okay. 22 Does anyone object to Mr. Hunn being excused until the 23 maps are available? 24 Seeing no objection, you may be excused. Thank you for 25 your patience in sitting here. CAPITOL REPORTERS (916) 923-5447 16565 1 MR. HUNN: Thank you. 2 ---oOo--- 3 REDIRECT-EXAMINATION OF 4 STATE WATER RESOURCES CONTROL BOARD STAFF 5 BY MR. SAWYER 6 MR. SAWYER: Mr. Howard, could you please elaborate on 7 what you mean when you refer to the accuracy of the Final 8 EIR with specific references to those portions of the Final 9 EIR which identify comments and either repeat those comments 10 or summarize those comments? 11 MR. HOWARD: I believe that our summary of the comments 12 we received is an accurate summary of the comments or a 13 verbatim listing of the comments. I do not state that the 14 facts that might be contained within the comments are 15 necessarily correct. 16 MR. SAWYER: You were asked this morning the source of 17 information on fish in the Stanislaus River on Page 387. Do 18 you have any additional information as to the source of that 19 information? 20 MR. HOWARD: On page -- yes. I had my staff look for 21 the references that were the basis for those statements 22 during the lunch break, and there are two references in the 23 record that refer to the issues raised in Page III-87. One 24 is a department of Fish and Game exhibit, 1993 Restoring 25 Central Valley Streams - A Plan for Action. That was State CAPITOL REPORTERS (916) 923-5447 16566 1 Water Resources Control Board Exhibit 186 and the discussion 2 regarding steelhead can be found on Pages 82 to 114, Chapter 3 VII, Pages 82 to 114. 4 The second reference is the USBR 1997 CVPIA Draft 5 Programatic EIS, Technical Appendix Volume 3, Pages II-121 6 to 123. That is State Water Resources Control Board Exhibit 7 167. 8 MR. SAWYER: Do you have any additional information or 9 clarification with respect to the Table VI-62? 10 MR. HOWARD: I would like to -- this, I believe, is 11 East Bay MUD Exhibit 4. 12 MR. SAWYER: Can we mark this as State Water Resources 13 Control Board Exhibit 204, please? 14 MR. HOWARD: This is total Camanche releases and cfs. 15 The question that was asked to me was, doesn't it seem 16 curious that there are no flows lower than a hundred cfs, 17 which is referenced in Table VI-62. The flows listed here 18 are the simulated flows from 1921 through the model period 19 of 1995. There are no flows less than a hundred cfs below 20 Camanche in the model study. It is true that there is, as I 21 recall, a minimum flow release in the settlement agreement. 22 The flows can go as low as 15 cfs. The model study seems to 23 indicate that while that might be allowed under the 24 settlement agreement, for the Joint Settlement Agreement, it 25 doesn't occur. In fact, and was the basis for the analysis CAPITOL REPORTERS (916) 923-5447 16567 1 on Table VI-62 which showed no flows below a hundred cfs. 2 We had another question dealt with on the Stanislaus. 3 Here is the -- 4 MR. SAWYER: I would like this marked as State Water 5 Resources Control Board Exhibit 205. 6 MR. HOWARD: -- the San Joaquin River system 7 simulation. In analyzing the flows there were two reaches 8 that we looked at. The upper reach was the May to September 9 period. I didn't get the Stanislaus overheads. However, 10 there are two reaches we looked at. They are represented by 11 nodes on the diagram. 12 The first node was at 670, which provided the upper 13 reach numbers, which is the second plot Stanislaus River 14 upper reach peak season, May to September. And I have 15 looked at flow tables like this, though I don't have one 16 photocopied, and flows never dropped below 700 cfs. 17 So, I interpret the model results to accurately or the 18 table to accurately reflect the model results. Similarly, 19 nodes 675 is the node that was used on the Lower Stanislaus 20 River, and that corresponds to the lower reach in the peak 21 season from May to September. The model flows never dropped 22 below 600 cfs and that, again, was the basis for our 23 interpretation that the number should always be zero on 24 Table VI-62. 25 In summary, the tables appear to accurately reflect the CAPITOL REPORTERS (916) 923-5447 16568 1 model studies. 2 MR. SAWYER: I have no further questions. 3 C.O. STUBCHAER: Thank you. 4 Anyone wish to recross-exam Mr. Howard? 5 Mr. Nomellini, Mr. Etheridge. 6 Just a moment. Anyone else? 7 Just those two. 8 Mr. Nomellini, you look anxious. You want to go 9 first? 10 MR. NOMELLINI: Sure. I will be brief. 11 ---oOo--- 12 RECROSS-EXAMINATION OF 13 STATE WATER RESOURCES CONTROL BOARD STAFF 14 BY CENTRAL DELTA PARTIES 15 BY MR. NOMELLINI 16 MR. NOMELLINI: Dante John Nomellini for Central Delta 17 Parties. 18 Tom, starting with East Bay MUD Exhibit 204, would you 19 put that up? 20 MR. HOWARD: That is East Bay MUD Exhibit 4, as I 21 recall. 22 MR. NOMELLINI: Thank you. 23 Now, you would agree that these represent releases from 24 storage at Camanche, would you not? 25 MR. HOWARD: Releases from storage or bypasses or flood CAPITOL REPORTERS (916) 923-5447 16569 1 control releases. They are simply flows below Camanche. 2 MR. NOMELLINI: Have you assumed that the release at 3 Camanche represents the flow in the river? 4 MR. HOWARD: Immediately below Camanche, yes. 5 MR. NOMELLINI: What portion of the river is 6 represented by your Exhibits VI-62, was it? 7 MS. WHITNEY: Table. 8 MR. NOMELLINI: Table VI-62. 9 MR. HOWARD: Well, it would only represent the flows 10 before the first party starts taking them. 11 MR. NOMELLINI: Thank you for that. 12 C.O. STUBCHAER: Now, Mr. Etheridge, were you here this 13 morning when we took appearances? 14 MR. ETHERIDGE: Yes, I was. 15 C.O. STUBCHAER: I missed you. We will add you to the 16 list. 17 Was there anyone else who wants to be on the list of 18 appearances that I missed this morning? 19 MR. ETHERIDGE: Mr. Stubchaer, Mr. Nomellini cleared up 20 the point that I was going to question upon, so there is no 21 need for me to question. 22 C.O. STUBCHAER: I wasn't going to give you a hard time. 23 MR. NOMELLINI: No charge to you, Fred. 24 C.O. STUBCHAER: That concludes the examination of 25 this panel, Mr. Sawyer? CAPITOL REPORTERS (916) 923-5447 16570 1 MR. SAWYER: Yes. I would like to offer into evidence 2 State Water Control Board Exhibit 1E, 200, 203, 204 and 205. 3 C.O. STUBCHAER: Any objections? 4 Mr. Birmingham. 5 MR. BIRMINGHAM: I would object to the admission of 6 State Water Resources Control Board 1E, the Final 7 Environmental Impact Report for Implementation of the 1995 8 Bay-Delta Water Quality Plan. The basis of my objection -- 9 the bases of my objection are several. 10 First, the evidence contained in the document is 11 cumulative. It doesn't appear as though the admission of 12 this document into evidence is necessary for State Water 13 Resources Control Board to reach resolution of any of the 14 issues that were identified in the notices which describe 15 the scope of the hearings that we have been involved in. 16 The other thing that I would observe, Mr. Stubchaer, is 17 that the standard for including factual statements in an 18 environmental impact report is entirely different than the 19 standard for admitting evidence into an evidentiary 20 hearing. 21 This document, 1E, was prepared to comply with 22 California Environmental Quality Act, and under the act any 23 time there is a potential that a proposed project will have 24 a significant affect on the environment it is necessary to 25 describe those potential effects in environmental review CAPITOL REPORTERS (916) 923-5447 16571 1 document, in this case an environmental impact report. 2 But because the Environmental Impact Report states that a 3 proposed project may have an effect doesn't lead inexorably 4 to the conclusion that it will have an effect. 5 In the examination of Mr. Howard this afternoon there 6 was an excellent example of the point that I am making. The 7 Final Environmental Impact Report says that there may be a 8 correlation between Q West and survival of fishery species 9 in the Delta. Mr. Howard cited one study that he is aware 10 of that shows that there may be an affect on striped bass. 11 But if this document is admitted into evidence I guarantee 12 that some point down the line someone will hold up this 13 document and say that the State Water Resources Control 14 Board found that there is a correlation between salmon 15 smolt survival and Q West. I guarantee it. Because it will 16 be in a document that ultimately will be certified by this 17 Board. And it was prepared for an entirely different 18 purpose. 19 There is lots of evidence in this record that will 20 enable the Board to make findings with respect to the issues 21 at hand. This document is not necessary to make those 22 findings. The document is, notwithstanding Mr. Howard's 23 statement, is not accurate. He has acknowledged there are 24 many factual statements contained in the comments that are 25 not accurate. But as soon as the State Board says, "This is CAPITOL REPORTERS (916) 923-5447 16572 1 a record we are going to admit in evidence," it creates the 2 appearance that the State Board -- this is a State Board 3 document -- State Board is adopting those statements of 4 fact. 5 And given the fact that it is not necessary for you to 6 admit this document into evidence, in order to certify it as 7 complying with CEQA, and in order to make your decisions on 8 Phases II through VII, I would urge you not to accept it 9 into evidence, and instead certify the document or consider 10 it certification under the standards applicable to that 11 question under CEQA. 12 C.O. STUBCHAER: Anyone else? 13 Mr. Minasian or Mr. O'Laughlin. 14 MR. O'LAUGHLIN: I have an easy one. On the handouts 15 that were given out today I would assume that based on past 16 practices once those are mailed out to all the other parties 17 and so forth, there will be no objection that they would be 18 admitted into evidence, into the record; is that correct? 19 MR. SAWYER: Yes. They will be distributed to the 20 parties. 21 C.O. STUBCHAER: Mr. Minasian was next. 22 MR. MINASIAN: Mr. Chairman, would you like us to 23 simply incorporate our written objections in the record? 24 Would you like us to briefly remind the Board Members of the 25 the objections that were filed? CAPITOL REPORTERS (916) 923-5447 16573 1 C.O. STUBCHAER: Ms. Leidigh. 2 MS. LEIDIGH: We got those objections in writing. We 3 have them. They are in our correspondence file, same as the 4 briefs. 5 C.O. STUBCHAER: We seem to be getting a little ahead 6 of the schedule I thought here, that we haven't heard the 7 rebuttal cases of anyone. 8 But the motion was made to accept this. So, if we can 9 narrow the issue to what Mr. O'Laughlin just mentioned for 10 the time being, the exhibits. 11 Mr. Sawyer, could you list the exhibits which Mr. 12 Howard relied on during his redirect? 13 MR. SAWYER: Exhibit 1E was the Final Environmental 14 Impact Report on the 1995 Plan. 15 Exhibit 200 was Mr. Howard's statement of 16 qualifications. 17 Exhibit 203 was Mr. Griffin's statement of 18 qualifications. 19 Exhibit 204 is what was sometimes referred to as East 20 Bay MUD Exhibit 4 and it's -- maybe you can more accurately 21 summarize that, Mr. Howard. 22 MR. HOWARD: Flows below Camanche Reservoir per the 23 East Bay MUDSIM model study. 24 MR. SAWYER: Exhibit 205 is a graph entitled San 25 Joaquin River Simulation. CAPITOL REPORTERS (916) 923-5447 16574 1 For all of those exhibits, except 1E, I will be mailing 2 to the parties. 1E was distributed earlier. 3 C.O. STUBCHAER: If we exclude 1E from the acceptance 4 now, are there any objections? 5 MR. O'LAUGHLIN: Just one further one, and it is really 6 a technical procedural point. When the notice went out for 7 the hearing to this matter, the witnesses that were 8 identified were Mr. Howard and Mr. Hunn. So far two other 9 witnesses have testified for the State Water Resources 10 Control Board on admission of this document. 11 How are we going to clear up that procedurally to the 12 other parties? Because technically, the economist wasn't 13 noticed in the hearing nor was Ms. Whitney in the notice to 14 testify on the document, along with the Curriculum Vitae 15 that was being offered for the economist. Just a question. 16 C.O. STUBCHAER: Mr. Campbell. 17 MR. CAMPBELL: I would like to respond in part to the 18 comments made by the Chairman. 19 I would like to note -- 20 C.O. STUBCHAER: You need to come forward, please. 21 Please don't address the comments on the EIR itself at this 22 point in time. I am trying to focus on the other exhibits. 23 MR. CAMPBELL: Not 1E? 24 C.O. STUBCHAER: Not 1E at this time. The purpose of 25 the hearing is to hear testimony, more testimony, on why CAPITOL REPORTERS (916) 923-5447 16575 1 that shouldn't be received. 2 I am just curious, is anyone intending to put on a 3 rebuttal case, in the audience? 4 None. Just the cross-examination. Okay. 5 Getting back to your question, Mr. Minasian. We do 6 allow for oral arguments. So I think the Board would be 7 hearing oral arguments. 8 And, Mr. Campbell, is your -- what you want to state in 9 the nature of an oral argument to counter Mr. Birmingham's 10 argument? 11 MR. CAMPBELL: Yes, Mr. Chairman. 12 C.O. STUBCHAER: We will take that in order, then. Not 13 right now. 14 MR. CAMPBELL: Thank you. 15 C.O. STUBCHAER: You're welcome. 16 Mr. Nomellini. 17 MR. NOMELLINI: I want to join in Mr. Birmingham's 18 motion, objection. 19 C.O. STUBCHAER: I am trying to get rid of the other 20 exhibits. Not rid of them, get them accepted so we can 21 focus on that motion. 22 Are there any objections to receiving the exhibits 23 other than 1E into evidence? 24 Seeing none, they are accepted. 25 Now we will get on to acceptance of the EIR itself. CAPITOL REPORTERS (916) 923-5447 16576 1 MR. KEENE: Mr. Stubchaer, just for a clear record, 2 you're not talking about the 2A or any of the exhibits that 3 have to do with the place and purpose of use? 4 C.O. STUBCHAER: That's correct. I am talking about 5 the exhibits which Mr. Sawyer just enumerated, which did not 6 include the place of use. 7 MR. KEENE: Thank you. 8 C.O. STUBCHAER: Mr. Sawyer. 9 MR. SAWYER: I was intending to make a conditional 10 motion on those exhibits in case we are fortunate and there 11 is no need for further hearing, but was not going to ask you 12 to rule on those three additional exhibits on the form -- 13 THE COURT REPORTER: I'm sorry, I did not get the last 14 part. 15 MR. SAWYER: What I was going to do after we deal with 16 Exhibit 1E is make a conditional motion upon Exhibits 2A, 17 201 and 202. The intent was simply to make the motion, not 18 to have it actually ruled on. If by any chance, the 19 parties conclude they don't need hearing after receiving the 20 maps, you can rule on the motion. Otherwise you would only 21 rule after the hearing. 22 MR. KEENE: I think that is wishful thinking. 23 C.O. STUBCHAER: How would we find out that the parties 24 don't want to -- 25 MR. SAWYER: There are only two requests. I assume CAPITOL REPORTERS (916) 923-5447 16577 1 they would show the courtesy of telling us if that was the 2 case. 3 C.O. STUBCHAER: I think we need to have it on the 4 record. 5 MR. SAWYER: I will not make my motion. 6 C.O. STUBCHAER: So now we are down to basically 7 arguments, oral arguments, on the acceptance into the 8 evidence of the EIR. 9 And who wishes to make oral arguments? 10 Mr. Campbell. 11 MR. CAMPBELL: Thank you, Mr. Chairman. 12 I would submit that the Board may, in fact, admit State 13 Water Resources Control Board 1E, the Final Environmental 14 Impact Report for the Bay-Delta water rights hearing, under 15 a number of bases. 16 First, I would like to point out that the evidentiary 17 standard for the admission of evidence in this type of 18 proceeding is much different than that in a court of law, 19 and it would probably be fairly described as more relaxed. 20 Unfortunately, I don't have the exact wording of that 21 standard in front of me. I believe Ms. Leidigh would. 22 As I may paraphrase it, it is something to the effect 23 that information upon which reasonable people would rely in 24 the conduct of serious affairs. I submit that a final 25 Environmental Impact Report would certainly meet that CAPITOL REPORTERS (916) 923-5447 16578 1 standard. 2 Second, evidence need not even be -- evidence of this 3 type may not even need to be admitted according to that very 4 relaxed standard. 5 The Board may also take official notice of such facts 6 as maybe judicially noticed by the courts of this state. 7 One of the bases for judicial notice in the courts is action 8 taken by an administrative agency. The final Environmental 9 Impact Report for the Implementation of the Bay-Delta Water 10 Quality Control Plan could be viewed as such an agency 11 action. 12 Third and finally, the Board may incorporate by 13 reference evidence from the public records of the Board that 14 are relevant to the subject of the hearing, including books, 15 reports and other evidence that have been prepared and 16 published by the agency. Once again, the final 17 Environmental Impact Report would fit into that basis as 18 well. 19 I would also like to note that the Department of Fish 20 and Game shares the concerns raised already by some of the 21 other parties about the use of the Final Environmental 22 Impact Report for purposes of Phase VIII, in that the 23 testimony and other evidence that is generated in the record 24 for that phase of the proceeding may further guide, 25 influence or result in changes to the Final Environmental CAPITOL REPORTERS (916) 923-5447 16579 1 Impact Report for the Bay-Delta water rights hearing for 2 purposes of Phase VIII. 3 Thank you. 4 C.O. STUBCHAER: Thank you, Mr. Campbell. 5 Mr. Minasian. 6 MR. MINASIAN: Let me not repeat what Mr. Birmingham 7 pointed out. I join in those comments. Let me focus you 8 instead upon two sections of your Code of Regulations, Title 9 23, Section 648.3, which says that you may admit into 10 evidence materials prepared and published by a public 11 agency. 12 When do you prepare and publish these materials in 13 terms of the CEQA process? And the answer is only when you 14 certify them. So you would be two weeks premature if you 15 were to try to admit them into evidence as a document 16 prepared and published by a public agency. 17 The second section that we cited to you was the ability 18 to add documents to a record and to admit them into evidence 19 if they are generally accepted technical or scientific 20 matter. That's 648.2. 21 Let's think for a moment what that means. 22 If we have a water rights issue in any Superior Court 23 of the state of California, do you want this EIR as the 24 official statement in evidence of the staff of the State 25 Water Resources Control Board? Do you want every reference CAPITOL REPORTERS (916) 923-5447 16580 1 of any matter that is sent by Superior Court to have to 2 struggle with whether or not it's consistent with this 3 particular document? I think not. 4 This is a document prepared for CEQA purposes. Courts 5 tell you they don't have to be perfect. All they have to do 6 is give you a tool to examine the alternatives and the 7 effects of your alternative decision. 8 Now, if this was a tool and it were sharp, perfectly 9 sharp, and perfectly consistent, then you might include it 10 into evidence as a document that is generally accepted 11 technical or scientific matter. But instead it is designed 12 to satisfy CEQA. Mr. Howard would, I am sure, never try to 13 suggest to you that he has perfectly described the 14 circumstances, the effects in every regard. 15 So it is a tool with a serrated edge. It is blunt in 16 some cases, probably sharp as could be in others. I suggest 17 to you, do not include this within evidence, use it as a 18 CEQA document at the time you make a decision in regard to 19 Phases I through VII. 20 And when you're doing your notice of determination, 21 please specifically carve out any of the issues that are 22 subject to Phase VIII. That will be very hard to word, but 23 you just can't keep saying we are going to allow you to put 24 in more evidence. We are going to allow you to do this and 25 that with this document and leave us in a circumstance where CAPITOL REPORTERS (916) 923-5447 16581 1 it is certified as a Final EIR for the project. We all know 2 you can't piecemeal projects. We are heading down a very 3 narrow alley, and it is getting narrower and narrower. 4 So my suggestion, our suggestion on behalf of our 5 clients, is that you don't try to put it into evidence. 6 Rely upon your authority to use the document for purposes of 7 CEQA and focus on the notice of determination. I was hoping 8 you would tell us something about what you're thinking about 9 doing that in regard at the time that you consider action on 10 Phases I through VII. We'll all be waiting with baited 11 breath to hear how you are going to keep the EIR process 12 open for Phase VIII and closed for Phases I through VII. 13 Thank you. 14 C.O. STUBCHAER: Thank you, Mr. Minasian. 15 Mr. Nomellini. 16 MR. NOMELLINI: Dante John Nomellini for Central Delta 17 parties. 18 I would like to join in the objection to the admission 19 into evidence of the environmental document. I think it 20 represents the staff's interpretation of a lot of the 21 facts. I don't understand why it has to be entered into 22 evidence with the same weight as the evidentiary 23 determinations of the Board. 24 I see its value as a CEQA document, again. I have not 25 researched the finities of the distinction, but I know there CAPITOL REPORTERS (916) 923-5447 16582 1 is a problem in the staff's interpretation of some of the 2 various evidence that has been produced. I pointed out a 3 couple today. Not that they are overly fundamental for the 4 entire process. 5 But I share a reluctance of allowing this document to 6 come in for the broad purposes in the same way that much of 7 the evidence that we spent days thrashing back and forth 8 would be brought in. So I think it represents an 9 interpretation. It is a tool. It could be a document for 10 CEQA purposes. I do not think it should be given the same 11 stature as evidence in the hearing upon which this Board 12 would render its findings as to a particular decision on the 13 merits. 14 With regard to Phase VIII, the trouble of building on 15 all these CEQA documents is that we are going to get into an 16 area of a lot of other issues. The question would come up 17 as to what weight these particular findings in this CEQA 18 document would have on that proceeding later. I would hope 19 that we do not attempt to accord this document in these 20 phases as the CEQA document for the later phase, which I 21 think it is going to have a totally different breadth. 22 C.O. STUBCHAER: Thank you, Mr. Nomellini. 23 Mr. Herrick. 24 MR. HERRICK: John Herrick for South Delta Water 25 Agency. CAPITOL REPORTERS (916) 923-5447 16583 1 I would just join in the objection of Mr. Birmingham, 2 Mr. Minasian and Mr. Nomellini. I don't think I have 3 anything else to add, but I would like to join in. 4 C.O. STUBCHAER: Anyone else beside Mr. Sawyer? 5 MR. BIRMINGHAM: You realize something must be terribly 6 wrong when earlier Mr. Herrick joined in one of my 7 objections. 8 C.O. STUBCHAER: It is the holiday spirit. 9 Mr. Sawyer. 10 MR. SAWYER: I think that the objections neatly fit 11 into four kinds of objections. One goes to the weight of 12 the evidence, not its admissibility. 13 Second goes to how this Board intends to use it, which 14 is properly before you on December 28, not today. 15 Third category of objections went to whether you could 16 consider it if you didn't hold today's hearing and could 17 have considered it under other rules, like official rules. 18 Fourth seems to be a standard of perfection that could 19 eliminate most of the administrative record evidence 20 admitted so far. 21 I don't think any of the objections are valid. You are 22 legally required to consider this document enough reason to 23 overcome cumulative objection and, therefore, I request that 24 it be admitted into evidence. 25 C.O. STUBCHAER: Mr. Birmingham. CAPITOL REPORTERS (916) 923-5447 16584 1 MR. BIRMINGHAM: May I respond to Mr. Sawyer's last 2 point? 3 C.O. STUBCHAER: Yes. 4 MR. BIRMINGHAM: Mr. Sawyer is absolutely correct that 5 the Board must consider the Final Environmental Impact 6 Report prior to adopting a decision if it determines, and 7 this is not an issue that is before the Board today, if it 8 determines that the document complies with CEQA. 9 The basis of my objection that the document is 10 cumulative is that it simply repeats a lot of the evidence 11 that is already in the record. And the question that I 12 would ask the Board is of what evidentiary, put aside the 13 CEQA question, because you can certify this document and 14 consider it when you adopt final decision on Phases II 15 through VII and ultimately Phase VIII, subject to some of 16 the comments that have been made. But ask yourself in terms 17 of evidentiary affect, what benefit is derived by taking 18 this document into evidence and considering it as evidence 19 compared to what is already in the record? 20 Again, I would repeat my statement that is in the 21 record serves as a basis for any decision that the Board 22 wants to make. I would say that the Board could reach any 23 decision on the issues, and there would be evidence in the 24 record, putting this document aside, to support the Board's 25 decision. It is a huge record. And my concern is that by CAPITOL REPORTERS (916) 923-5447 16585 1 adopting this as part of the evidentiary basis you are 2 giving -- the Board is giving it more weight than it is 3 entitled to. 4 C.O. STUBCHAER: Mr. Birmingham, I think there is a key 5 question here that you are touching on, and I don't know the 6 answer. And that is, can the Board adopt its decision 7 without having the certified EIR in the evidentiary record? 8 That, to me, seems to be the key question? 9 MR. BIRMINGHAM: That is the key question, and the 10 answer is yes. You can certify this document under CEQA and 11 then adopt a decision without this being in evidence, 12 without 1E, the Final Environmental Impact Report, being in 13 evidence. 14 There is one minor change that you would have to make 15 to the proposed decision. There are some places where the 16 proposed decision cites the Final Environmental Impact 17 Report. I don't know -- I don't want to prejudge what the 18 Board is going to do with the final decision. Ultimately, 19 if it adopts what is the proposed decision, in those places 20 where it cites the Final Environmental Impact Report you 21 would have to go back and cite other evidence which is in 22 the record. The staff could very easily find other evidence 23 in the record to support the same conclusions. But you can 24 adopt the final decision after having certified this 25 document without having admitted this document into CAPITOL REPORTERS (916) 923-5447 16586 1 evidence. 2 C.O. STUBCHAER: Mr. O'Laughlin. 3 MR. O'LAUGHLIN: I did not rise originally on the 4 request on the oral argument on behalf of the San Joaquin 5 River Group Authority. We did not supply an objection to 6 the admission of the FEIR into evidence for various 7 reasons. But in regards to your question, I think based on 8 the comments that you received by the parties objecting to 9 the FEIR, plus the statements you have heard here today, I 10 think there is near unanimous opinion that the State Water 11 Control Board can go forward and adopt an order for Phases 12 II through VII if it certifies an EIR, the FEIR. It does 13 not have to admit into evidence this FEIR in order to adopt 14 its final orders for Phases II through VII. 15 So I think the parties are pretty well in agreement 16 that this document doesn't have to go into evidence. I 17 would agree with Mr. Birmingham that almost when you read 18 the final -- when you read the draft order for Phases II 19 through VII almost all of the findings in the order, in the 20 order itself, are supported by, I think we are up to almost, 21 like, 50,000 pages in this transcript in this hearing and in 22 this record. 23 So the evidence is there. And whether or not this adds 24 to that or makes those findings and orders more conclusive, 25 I think it is something left to the Board. But I think you CAPITOL REPORTERS (916) 923-5447 16587 1 can go ahead if the Board so desires on the 28th, adopt the 2 Final EIR, certify that document, then adopt orders for 3 Phases II through VII. 4 MR. BIRMINGHAM: I rose again because I would like to 5 remind the Board what happened when the Board adopted 6 D-1631, the Mono Lake Decision. There was a very voluminous 7 Environmental Impact Report that was adopted by the Board in 8 September 1994 at the same time it adopted D-1631. And the 9 procedure that was followed was the Board certified the 10 Final Environmental Impact Report and then adopted the 11 decision without taking the Final Environmental Impact 12 Report into evidence. I am not aware of anything that would 13 require, under CEQA, that you have to admit this document 14 into your evidentiary record in order to certify and rely 15 upon that certification to adopt a final decision. 16 C.O. STUBCHAER: Mr. Campbell. 17 MR. CAMPBELL: Once again, I would like to reiterate, 18 but from another perspective. In the conduct of proceedings 19 before this Board, in general, technical objections to the 20 admission of evidence are not persuasive. Again, it is a 21 much lower standard for the admission of evidence, and it is 22 up to the Board members to determine the weight of the 23 evidence that has been admitted. 24 Throughout the course of this somewhat long proceeding 25 we have had some disputes over evidence. Nearly all of the CAPITOL REPORTERS (916) 923-5447 16588 1 time the Board has admitted that evidence with the thought 2 that it can always, in the exercise of its discretion, give 3 proper weight to all of the evidence or portions of it or 4 down to a particular word or sentence. I think the Board 5 still has that latitude with regard to the admission of the 6 Final Environmental Impact Report. 7 I would also like to point out that I am not 8 necessarily as sanguine as some of my colleagues here today 9 about the importance of getting the Final Environmental 10 Impact Report into the record. The importance to the State 11 Water Resources Control Board and to interested parties and 12 making sure that whatever decision the Board reaches is 13 defensible. But the Board will run a risk by not admitting 14 the Environmental Impact Report into evidence, that not all 15 of the bases of decision are otherwise covered in the 16 record, and that its decision would, therefore, be subject 17 to a challenge as not being supported by substantial 18 evidence. 19 Indeed, many of the crucial, important analyses 20 conducted by State Water Control Board staff appear in the 21 Final Environmental Impact Report and not necessarily within 22 the record of the proceeding that has been created to date. 23 One last thing I would like to point out in response to 24 Mr. Minasian's reference to the Section 648.2, the official 25 notice provision. He is correct that one of the s for CAPITOL REPORTERS (916) 923-5447 16589 1 official notice is official notice may be taken of any 2 generally accepted technical or scientific matter within the 3 Board's field of expertise. That's an alternative basis, 4 though, and I don't think he meant it this way. The way it 5 came across to me when he discussed it was to not address 6 the initial basis for official notice, which is that facts 7 -- such facts may be judicially noticed by the courts of 8 this state. 9 That is separate and apart from whether it is 10 technically accepted information or not. And one of the 11 very standard bases for official notice is when an agency 12 acts to -- takes an action. I would submit that even the 13 issuance of the Final Environmental Impact Report can be 14 such an action. It is also somewhat of a moot point, too, 15 that if this decision is challenged in court, if the Board's 16 proposed decision is made and then challenged in court, I 17 feel reasonably confident that a court will admit the final 18 Environmental Impact Report into evidence under the official 19 notice provision at that time. 20 So it would seem rather incongruous to me that a court 21 may have an opportunity to take official notice of the Final 22 Environmental Impact Report in reviewing your decision, but 23 your decision itself would not be premised upon that report 24 as part of your evidentiary record. 25 Thank you. CAPITOL REPORTERS (916) 923-5447 16590 1 MR. BIRMINGHAM: Excuse me, Mr. Stubchaer. I wonder 2 if Mr. Campbell can refer to the numerous citations in the 3 decision to the Final Environmental Impact Report. I 4 haven't counted them. But out of the hundred citations in 5 the proposed decision I would venture to guess, in fact I'd 6 be willing to bet there are less than ten references to the 7 Final Environmental Impact Report as an evidentiary document 8 to support the decision. And with respect to each one of 9 those, the staff could very easily go back and find other 10 evidence in the record to support the same conclusions. 11 C.O. STUBCHAER: Thank you. 12 MR. CAMPBELL: Thank you. 13 C.O. STUBCHAER: Ms. Goldsmith. 14 MS. GOLDSMITH: Good afternoon. I haven't previously 15 taken part in these proceedings today. I do rise, 16 particularly in the absence of Mr. Lilly, who on behalf of 17 my clients as well as the rest of the parties who are 18 denominated as the Sacramento Valley Water Users 19 Association, had asked at the very beginning of today's 20 session whether or not the Board intended to follow the 21 rules and Government Code Section 11513(D) concerning the 22 admission of hearsay as a basis for its decision. And we 23 were assured that you would, in fact, follow those, as we 24 accepted that you would. 25 I raise this now because of the argument that there may CAPITOL REPORTERS (916) 923-5447 16591 1 be things in the FEIR that require that it be admitted as a 2 basis of this Board's decision. The FEIR is hearsay. If it 3 is the only assertion of fact, then it is an insufficient 4 basis on which this Board can make a finding. And we as the 5 Sacramento Valley Water Users rely on that. 6 The other thing I wanted to comment on is the notion 7 that this Board could certify and adopt the FEIR and rely on 8 it as an official record for the basis of the things that 9 are stated therein. That is the most classic bootstrap I've 10 ever heard. You could convert any hearsay into an official 11 act simply by adopting it and admitting it on the basis of 12 it's an official act. That is, I think, a fairly spurious 13 basis for admitted matters that are in the FEIR into 14 evidence. 15 If you will give me a moment, I have just been handed 16 something by my colleague who is on the other side of our 17 firm. Yes. I just want to read to you the provision in 18 that Government Code Section 11513(D) which says, hearsay 19 evidence may be used for the purpose of supplementing or 20 explaining other evidence, but over timely objection, and 21 this objection was made on our behalf at Page 70 of this 22 50,000-page record, shall not be sufficient in itself to 23 support findings unless it would be admissible over 24 objection in civil actions. An objection is timely if made 25 before submission of the case or on reconsideration. CAPITOL REPORTERS (916) 923-5447 16592 1 So, I agree with Mr. Birmingham that this FEIR is not 2 necessary as part of the evidentiary record. It can be 3 certified and relied on as part of the record of the action, 4 and will go forward on any record that this Board may be 5 required to submit in the event of a challenge. But to the 6 extent that you think it is essential because there are 7 things in it that are not in the record, that is and of 8 itself is sufficient reason not to admit it. 9 Thank you. 10 C.O. STUBCHAER: I am going to call on Mr. Sawyer and 11 Ms. Leidigh, and then I will open it up for other comments. 12 This is a very important dialogue. And then we will take a 13 brief break and discuss this matter, and then announce what 14 we are going to do after that break, at least that is the 15 present plan. 16 I think we should get the views of Ms. Leidigh and Mr. 17 Sawyer before us, too, so the parties can consider those. 18 Who wants to go first? 19 Mr. Sawyer. 20 MR. SAWYER: I have already stated my responses, so I 21 will be as brief as I can. 22 C.O. STUBCHAER: You can repeat them if you wish. 23 MR. SAWYER: With respect to the hearsay. It can be 24 admitted and then determine whether there is what is called 25 a residuum. If Mr. Birmingham is correct that everything is CAPITOL REPORTERS (916) 923-5447 16593 1 supported by something else in the record, then, of course, 2 everything in the Final Environmental Impact Report is 3 properly considered. 4 As I said earlier, the comments go to the weight of the 5 evidence. There is a great deal that supports the weight of 6 the value of the information in the Final Environmental 7 Impact Report, including that the opportunity was given to 8 all parties to respond and then the staff's review of those 9 comments. That basically goes to the issue is it 10 cumulative. This is very useful evidence to have in the 11 record. In my opinion, it is legally required to be in the 12 record so that you can consider as you properly must under 13 the California Environmental Quality Act without being 14 subject to attack for considering evidence outside the 15 evidentiary record. 16 On that basis I, again, request that Exhibit 1E be 17 admitted into evidence. 18 C.O. STUBCHAER: Mr. Sawyer, what about the allegation 19 that the EIR is hearsay evidence? I presume that is because 20 it hasn't been subject to cross-examination. There have 21 been comments in response to comments that it is not as 22 vigorous a process in my view as the hearing process. 23 MR. SAWYER: I disagree. We put on witnesses for the 24 purpose of cross-examination today. 25 C.O. STUBCHAER: Just on the changes. CAPITOL REPORTERS (916) 923-5447 16594 1 MR. SAWYER: On the Final Environmental Impact Report. 2 C.O. STUBCHAER: On the changes between the draft and 3 final. 4 MR. SAWYER: My understanding is that Mr. Howard has 5 testified before. 6 C.O. STUBCHAER: The draft was already in the record. 7 Anyway, and that was accepted way back, I believe. Anyway, 8 you've responded to my question. 9 Ms. Leidigh. 10 MS. LEIDIGH: I think, first of all, it is important to 11 note that we do have two statutes here that are in play. 12 One is CEQA. And under CEQA the Board is required to 13 consider the Final EIR before making a decision. 14 If you -- if it is not considered, then there could be 15 a challenge based on CEQA. On the other hand, we have the 16 Administrative Procedure Act, and the Administrative 17 Procedure Act requires that anything that is considered be 18 admitted in evidence, be in the evidentiary record. So 19 between the two statutes if the Board is going to adopt a 20 decision it does need to have the Final EIR in evidence. 21 That is the way I read the two statutes together. 22 Now, there has been a big concern about the weight of 23 the evidence. And some people are suggesting that because 24 this is a Board document, that somehow it has more weight 25 than any other piece of evidence that the Board has ever CAPITOL REPORTERS (916) 923-5447 16595 1 seen in the proceeding. I don't agree with that. It's not 2 a document that would be adopted like a decision would be 3 adopted. It is not a finding of fact, per se, by the Board. 4 It is an EIR. 5 And as an EIR it is a piece of evidence, just like the 6 other pieces of evidence in the record. So it can be 7 accepted and given the weight of evidence. 8 And then another concern that has been raised is the 9 hearsay aspect of it. Hearsay evidence is admissible in 10 evidence. Specifically admissible under Section 11513 which 11 Ms. Goldsmith read. Some of it is hearsay, which I am not 12 conceding or saying that it is, it is still admissible. And 13 what you have to do then is to give it the weight that it is 14 due. If it is true that virtually everything that is in 15 there or maybe absolutely that is in there is also in the 16 record in some other form from some other exhibits, then we 17 don't have to worry about whether or not the final EIR is 18 proper evidence or is hearsay. Because there are at least 19 two things that can be relied on for every point that is 20 made in any decision. 21 So I think that it can admitted and, two, I think that 22 if the Board is moving forward it needs to be admitted into 23 evidence. 24 C.O. STUBCHAER: Have any comment about revising the 25 final order, assuming that the Board proceeds along the CAPITOL REPORTERS (916) 923-5447 16596 1 lines of the proposed order to delete references to the 2 Final EIR in the order itself? 3 MS. LEIDIGH: I would not recommend doing that. If the 4 Board wants to reply on something in addition to that, we 5 could add some additional references in the order. 6 C.O. STUBCHAER: Have any comment on the fear, which I 7 understand, of the certified EIR being relied on by parties 8 in the future as being gospel? 9 MS. LEIDIGH: It is not gospel. I don't think that the 10 parties should expect that it would be relied on in that 11 fashion, no more so than anything else. It is an exhibit. 12 And if parties in the future, in Phase VIII or in any other 13 part of this hearing, want to put on evidence that is 14 contradictory of the point made in the EIR, they will be 15 able to do that. And if it is substantial evidence, then 16 the statements that are in the EIR may not be treated as 17 fact, and the Board may make contrary findings in which case 18 the Board may wish to prepare a supplement if it is 19 something that is critical. But it is not reason not to 20 admit it into evidence. 21 C.O. STUBCHAER: Mr. Birmingham, you want to do this 22 before the break of after the break? Yes, do it. 23 MR. BIRMINGHAM: Ms. Leidigh has said that the Board 24 because it has to consider the Final Environmental Impact 25 Report wants it to be certified under CEQA before it acts, CAPITOL REPORTERS (916) 923-5447 16597 1 means that you have to consider it. And on the other hand 2 under the Administrative Procedure Act, the Government Code, 3 you can't consider anything that is not in the evidentiary 4 record when you adopt a decision. 5 Well, I am looking at -- she may be thinking of a 6 different code section. But Section 11425.50 of the 7 Government Code describes the requirements of decisions. 8 And it states that the decision shall be in writing and 9 shall include a statement of the factual and legal basis for 10 the decision. 11 And then it states in subparagraph (c) that the 12 statement of the factual basis for the decision shall be 13 based exclusively on the evidence of record in the 14 proceeding and on matters officially noticed in the 15 proceeding. The presiding officer's experience, technical 16 competence, specialized knowledge may be used in evaluating 17 evidence. 18 This gets back to the point I was making earlier. If 19 the proposed decision is not modified to cite evidence that 20 is already in the record, where the Final Environmental 21 Impact Report is already cited, Ms. Leidigh's point would be 22 well taken. Because if the Final Environmental Impact 23 Report is not in the record, the statement of factual basis 24 cannot include the Final Environmental Impact Report. But 25 so long as you base the factual basis for the decision on CAPITOL REPORTERS (916) 923-5447 16598 1 matters that are in the record, you're complying with this 2 provision of the law. And you can certainly comply with 3 CEQA by certifying and considering the EIR before taking an 4 action. There isn't anything in this section of the law 5 that says that you can't consider things not in the record 6 when you are adopting a decision. Just says that the record 7 has to be based on evidence in the record. And that is a 8 subtle distinction, but it is a distinction. 9 C.O. STUBCHAER: Anything else before we take a break? 10 MEMBER FORSTER: I have a question. 11 C.O. STUBCHAER: Go ahead. 12 MEMBER FORSTER: I guess this would be for Barbara. 13 Barbara, when Mr. Minasian talked about the EIR, as far as 14 Phase VIII, and he said we would have to do a notice of 15 determination, can you help me understand how we would move 16 into Phase VIII with this? 17 MS. LEIDIGH: Yes. I think that the confusion is 18 resulting from the fact that there would be two notices of 19 determination and two CEQA time periods that would pass. 20 The first one would be after the first decision the Board 21 makes. In other words, if there is a decision that is 22 adopted on the 28th of December, then there would be a time 23 period that would run within which parties could file 24 actions. 25 There would be a notice of determination filed at the CAPITOL REPORTERS (916) 923-5447 16599 1 beginning of that time period and that would be for the 2 action that the Board takes at that time. The two would 3 cover Phases I through VII. 4 That would leave out any action that might result from 5 Phase VIII. After Phase VIII and a decision is adopted, the 6 Board would again rely on the same EIR or perhaps a 7 supplemented EIR and would file another notice of 8 determination for the second action. So there would be two 9 opportunities to file litigation under CEQA if that is what 10 the parties chose to do. 11 I think that answers -- I think that responds to the 12 issue that was raised. We are not cutting people out from 13 being able to file a CEQA action by going through two 14 decision processes. 15 MEMBER FORSTER: Thank you. 16 MR. O'LAUGHLIN: You are going to take comments on 17 this discussion after the break, Chairman Stubchaer? This 18 last point was extremely important, your staff counsel's 19 response. And we haven't weighed in. The San Joaquin River 20 Group would like to have its views expressed at that point. 21 C.O. STUBCHAER: This is a very important point, 22 obviously. 23 MR. O'LAUGHLIN: Yes, it is. 24 C.O. STUBCHAER: The question running through my mind 25 is whether or not we should have it briefed, again. If we CAPITOL REPORTERS (916) 923-5447 16600 1 did decide to have it briefed, how long would it take the 2 parties to prepare their briefs? 3 I will ask you, Mr. Birmingham, Mr. O'Laughlin, Mr. 4 Minasian, how long would it take to brief this? 5 MR. BIRMINGHAM: By Monday. 6 MR. O'LAUGHLIN: By Monday of next week. We have 7 briefs into the State Water Resources Control Board and 8 serve the other parties. I will tell you quite bluntly, we 9 disagree very strongly with your staff counsel's opinion 10 about this document, the use of this document and how this 11 document will be used in Phase VIII. We are very concerned 12 about the protecting the -- if the Board adopts the draft 13 order, protecting that order as we move forward. And we 14 believe that analysis that was just even to you is, in fact, 15 the wrong analysis. 16 C.O. STUBCHAER: Mr. Sawyer. 17 MR. SAWYER: Yes. I am not sure if I understood the 18 questions or responses. It appears to me there are two 19 issues here. One is the request you have before you to 20 admit into evidence the Final Environmental Impact Report. 21 The second, which was the subject of the last conversation 22 and is really a matter before this Board at its meeting on 23 the 28th, is what use will be made of the Final 24 Environmental Impact Report after its certification. I am 25 not sure if you're suggesting briefing on both issues or CAPITOL REPORTERS (916) 923-5447 16601 1 only on the latter. But I would suggest that the 2 determination of the latter does not affect the 3 admissibility into evidence of the evidence presented 4 today. 5 C.O. STUBCHAER: Then there is another question I have. 6 When do we need to rule on the acceptance of this into 7 evidence? Does that need to be done before the 27th? Could 8 it be done just before the EIR is certified? Or decide not 9 to do it then? Or does it need to be done for some reason? 10 MR. BIRMINGHAM: It would have to be done, Mr. 11 Stubchaer, it is our view, it would have to be done at a 12 hearing. Currently the 28th is scheduled as a meeting and 13 if you want to defer on the question of admission of the 14 document to the 28th, you would have to notice that meeting 15 as a hearing. 16 C.O. STUBCHAER: We have hearings noted through 17 December 24th. We have lots of hearing dates. 18 MR. O'LAUGHLIN: You have hearing dates. You can 19 continue the hearing dates. We are here next Friday again. 20 You can send it out on Monday if the State Board wanted to 21 take this matter up on the 23rd or the 24th as a part of the 22 Bay-Delta hearing, it could. I realize the hearing date on 23 the 28th and the 29th is a Board hearing date, which is 24 different so -- 25 C.O. STUBCHAER: Board meeting. CAPITOL REPORTERS (916) 923-5447 16602 1 MR. O'LAUGHLIN: Excuse me, board meeting. 2 C.O. STUBCHAER: We are just doing a lot of exploring 3 out loud as everyone understands. Let me ask the first 4 question: Is there any reason to make a judgment today on 5 accepting this into evidence or could we wait until the 6 next day when we are hearing the consolidated place of use 7 issue? 8 MS. LEIDIGH: You don't have to accept it into evidence 9 today. That's true. You can accept it in evidence any time 10 between now and the 28th and be okay so far as CEQA and the 11 Administrative Procedures Act, this concern. I would also 12 point out that you don't have to have a hearing in order to 13 accept it in evidence. The Board accepted exhibits in 14 evidence on a number of occasions in writing by sending 15 letters to the parties and could do that again or could do 16 it in some other way that made it clear on the record that 17 it was accepting it in evidence. 18 C.O. STUBCHAER: With regard to the next hearing date, 19 not that we have noticed, but we are planning a meeting on 20 the map issue, would there be any advantage to putting that 21 over until Tuesday next week? Monday is a problem for me 22 travelwise. It would give the parties more time to see the 23 final maps, assuming that they are available. If they go 24 late, you would have the weekend to look at it. Any 25 comments on that? CAPITOL REPORTERS (916) 923-5447 16603 1 MR. KEENE: Mr. Stubchaer, you are talking about 2 Tuesday the 21st; is that correct? 3 C.O. STUBCHAER: If Tuesday is the 21st, yes. 4 MR. KEENE: The only problem I have is that that is the 5 day that my board normally has its Board meeting. We have a 6 public hearing scheduled that date. It makes it a little 7 bit difficult for us to continue that hearing date. But 8 aside from that, I will be here. 9 C.O. STUBCHAER: What time is your hearing, board 10 meeting? 11 MR. KEENE: Ten in the morning, just from ten till 12 noon, usually. 13 C.O. STUBCHAER: Any other comments about delaying this 14 until the next day that we hold the hearing? 15 Mr. Campbell. 16 MR. CAMPBELL: I support the position taken by your 17 staff counsel, the two issues be separated. I think the 18 Board has ample basis to admit the Final EIR in evidence. I 19 don't -- in my opinion, there isn't a valid objection for 20 keeping it out. Especially in light of the relaxed 21 standards for admissibility of evidence before the Board and 22 long the history of this proceeding where that standard was 23 liberally and routinely applied. 24 Also, as an aside, I would like to hypothesize if the 25 Board, for some reason without -- I don't see any clear CAPITOL REPORTERS (916) 923-5447 16604 1 basis, decided to exclude the FEIR from its record of 2 proceeding, if it is challenged, the Board is challenged on 3 its -- the Board's decision is challenged in court on CEQA 4 grounds, it would be quite interesting that the Board's 5 Final EIR would be not part of the record of the proceedings 6 and the Board may not have a sufficient defense in that 7 action without its Environmental Impact Report. 8 So, just getting back to Mr. Sawyer's point, I think 9 the Board should admit Exhibit 1E into evidence today, but I 10 do agree with the concerns expressed by Mr. O'Laughlin and 11 Mr. Minasian regarding the use of that evidence in Phase 12 VIII, and that Board should request further input and 13 provide clarification on that issue. 14 C.O. STUBCHAER: We are going to take a 12-minute break 15 now, and then we will come back. 16 (Break taken.) 17 C.O. STUBCHAER: We will come back to order. 18 We are going to request that the issue of whether or 19 not the EIR is required to be in the record before the Board 20 can adopt the decision. We request that it be briefed, and 21 I don't know how many of you want to work the weekend, we 22 can make the briefing due the close of business on Friday or 23 we can make it 8:00 a.m., Monday morning. 24 If anyone wants 8:00 a.m., Monday morning, raise your 25 hand. CAPITOL REPORTERS (916) 923-5447 16605 1 Monday morning it is. 2 Ms. Goldsmith. 3 MS. GOLDSMITH: Mr. Chairman, would you repeat the 4 issue so I can jot it down? 5 C.O. STUBCHAER: There's a key issue, but you can brief 6 other things, too. Seriously, I'm not joking. You can 7 brief the Phase VIII issue if you want, but the key issue is 8 whether or not the EIR needs to be in the evidentiary record 9 before the Board can adopt a decision. To me that is the 10 key issue. 11 Mr. Minasian. 12 MR. MINASIAN: Mr. Chairman, we can go as far or not as 13 far as you want. Would you prefer us to talk about the 14 issue of the notice of determination, the danger of 15 piecemealing, an argument that the action of the Board is 16 improper in the brief or would you like to talk about that 17 some more today? 18 C.O. STUBCHAER: I don't want to discuss any more 19 today, much more today. But you can, as I said, you can 20 brief other issues at your risk of diluting the impact on 21 the key issue that is in our mind. 22 Mr. Birmingham. 23 MR. BIRMINGHAM: You established 8:00 a.m. as the time 24 by which the briefs have to be filed. Can you say 8:30? 25 C.O. STUBCHAER: 9:00. I don't want to say anything, CAPITOL REPORTERS (916) 923-5447 16606 1 but sometimes us engineers don't come to work at nine. 2 MS. WHITNEY: That's not true of the staff. 3 MR. NOMELLINI: 9:00 a.m. we can file it by fax. 4 C.O. STUBCHAER: Fax, E-mail. 5 MS. WHITNEY: Only if you want to take the risk that 6 the fax machine isn't jammed. 7 C.O. STUBCHAER: You can call and be certain it is 8 received. So that's that. 9 Now with regard to the map issue. Mr. Sawyer is going 10 to make a motion. We understand that there is a potential 11 that after you see the maps, you will waive 12 cross-examination, in which case it will not be necessary to 13 call you all back altogether. 14 Mr. Sawyer. 15 MR. SAWYER: Yes. I would like to make a motion, not 16 request a ruling at this time, but a motion that State Water 17 Resources Control Board Exhibits 2A, 201 and 202 be admitted 18 into the record. I am not requesting a motion at this time, 19 but requesting a ruling at this time, but rather that the 20 presiding officer rule at the conclusion of the hearing or 21 if we hear from the parties after seeing the maps that they 22 do not request a hearing at that point. I would like to 23 determine at this point if there are any objections at all 24 to Exhibits 201 and 202. I understand that some of the 25 parties may have the same objections to 2A as they do to 1A, CAPITOL REPORTERS (916) 923-5447 16607 1 and we will hear from them later on that. I would like to 2 determine if there are any objections to 201 and 202. 3 C.O. STUBCHAER: Are there any objections to 201 and 4 202? Does everyone remember what they are? 5 No. 6 MR. SAWYER: 201 was the statement of qualifications of 7 Mr. Richard Hunn, and 202 was his corrections, one-page 8 exhibit which is on the table with his corrections. 9 C.O. STUBCHAER: Mr. Birmingham. 10 MR. BIRMINGHAM: Since Mr. Sawyer is not requesting a 11 ruling, it may be premature. 202 is an errata to the Final 12 Environmental Impact Report. If that document doesn't come 13 into evidence, I would suggest that the errata should not be 14 in evidence. 15 MR. KEENE: That is the point I was making too. 16 C.O. STUBCHAER: All right. 17 And the ruling on the EIR issue will be made without 18 reconvening a hearing. It is not necessary, I understand, 19 to have a hearing, but we do look forward to getting your 20 briefs, and a ruling will be made and you will be told. 21 Anything else to come before this hearing? 22 MR. SAWYER: Have we set a time for the -- 23 C.O. STUBCHAER: If we do have to get back together on 24 the map issue, we talked about Friday. That may be rushing 25 things a little bit. I know you have a problem Tuesday, Mr. CAPITOL REPORTERS (916) 923-5447 16608 1 Keene. How about Monday afternoon? 2 MR. BIRMINGHAM: I am not available Monday afternoon. 3 MR. KEENE: I am available Wednesday or Thursday of 4 next week. 5 C.O. STUBCHAER: Wednesday morning? 6 MR. BIRMINGHAM: How about Thursday? Wednesday I am 7 not available. 8 C.O. STUBCHAER: Mr. Keene, do you have a substitute? 9 MR. KEENE: Do I have a substitute for which? 10 C.O. STUBCHAER: For either issue. Surrogate. 11 MR. KEENE: For the -- yes, if absolutely necessary. 12 My main problem is that the witness that I wanted to use is 13 the general manager of the district. I don't think he has a 14 substitute. 15 MR. BIRMINGHAM: Would Wednesday be convenient, Mr. 16 Stubchaer? 17 C.O. STUBCHAER: We have some Board Member attendance 18 issues, too. 19 Let me just check. 20 Mr. Brown, can you make it Wednesday next week? 21 C.O. BROWN: Up to 3:00. 22 C.O. STUBCHAER: What day can you make it? 23 MEMBER FORSTER: Monday and Tuesday. 24 MR. KEENE: Mr. Stubchaer, I am not envisioning this as 25 taking all day long. My expectation is that this -- we are CAPITOL REPORTERS (916) 923-5447 16609 1 talking about maybe two or three hours of hearing time. And 2 what I would anticipate is that if we can start this, I 3 would say, even as late as 2:00 in the afternoon, to give us 4 an opportunity to get up here from Los Banos after our 5 hearing is -- after our Board meeting is over, that we can 6 probably proceed on Tuesday afternoon. 7 MR. SAWYER: We checked the availability of everybody 8 but the witness. Want me to just check later and get it 9 continued if the witness can't make it? 10 C.O. STUBCHAER: Tell me again, what was wrong with 11 Monday? 12 MR. BIRMINGHAM: I am not available Monday afternoon. 13 I have to be in Fresno. 14 MR. KEENE: I am available; it is just my office 15 Christmas party. 16 C.O. STUBCHAER: Let's do it Tuesday afternoon. 17 Mr. O'Laughlin. 18 MR. O'LAUGHLIN: Are you done with this one now? 19 C.O. STUBCHAER: No. 20 MR. KEENE: Tuesday afternoon at what hour? 21 C.O. STUBCHAER: What is the earliest you can make it? 22 MR. KEENE: I think two is probably about it. 23 C.O. STUBCHAER: 2:00, 2:00 p.m., Tuesday afternoon the 24 21st, in this room. If necessary, and you will advise staff 25 if you want to waive cross-examination after seeing the CAPITOL REPORTERS (916) 923-5447 16610 1 maps? 2 MR. BIRMINGHAM: We will advise Ms. Leidigh. 3 C.O. STUBCHAER: Mr. O'Laughlin. 4 MR. O'LAUGHLIN: I was unclear for the hearing -- the 5 Board meetings, excuse me, on the 28th and 29th. Are there 6 going to be kind of a procedural or outline or time limits 7 on what the Board is envisioning? I am trying to do 8 scheduling on various other matters that are kind of 9 cramming down. Are we going to have the usual five minutes 10 for each party to respond on the adequacy of the FEIR or 11 five minutes to respond on the draft order and in regards to 12 those orders that have been made or the erratas? I kind of 13 want to get a time frame so I can start figuring out other 14 scheduling conflicts that may be occurring on those days. 15 C.O. STUBCHAER: We know we are going to allow oral 16 comments. Maybe staff has thought about a time limit; I 17 have not thought about a specific time limit yet, but we 18 have a second day reserved, if necessary. 19 MR. O'LAUGHLIN: Thank you. 20 C.O. STUBCHAER: Mr. Campbell. 21 MR. CAMPBELL: No, thank you, Mr. Chairman. 22 C.O. STUBCHAER: Now my fellow Board Members would like 23 to know what is a reasonable time for comment. 24 C.O. BROWN: Tell us what you think you will need. 25 MR. O'LAUGHLIN: I would say that probably no more than CAPITOL REPORTERS (916) 923-5447 16611 1 five minutes on each because on the draft order, pursuant to 2 the notice that was sent out, written comments were to be 3 due, I believe, on December 23rd. There are no draft orders 4 on -- written comments due on the adequacy of the FEIR. 5 That should take no more than five minutes to summarize 6 those. I would envision five minutes per each because there 7 are numerous parties, and if you go much longer than that, 8 we may spill well over to the 29th, especially it there are 9 going to be erratas on the draft order between now and the 10 28th, which may come about. Because the last time we went 11 through this process various comments were made, and from 12 the time that the comments were made until the time that the 13 Board met, there were errata sheets that were made so the 14 parties are going to probably make comments on their erratas 15 as well. Five minutes on each of those. I'd give 15 16 minutes total for each party. If you do the math, it will 17 take a day, day and a half at the most if we do it that way. 18 C.O. STUBCHAER: Thank you for that input. 19 The way I envision it, we will see how many people want 20 to comment, how much time we have available and a safety 21 factor, and divvy it up. 22 Mr. Herrick. 23 MR. HERRICK: Just an input. I don't mean to drag this 24 out. We have had a year of hearings. This is a monumental 25 decision. I don't think five minutes would be enough. CAPITOL REPORTERS (916) 923-5447 16612 1 C.O. STUBCHAER: I tend to agree. I think five minutes 2 would be the very minimum, and I would envision more and 3 probably more on the proposed order than on the EIR. 4 MR. NOMELLINI: If O'Laughlin wants to give us his 5 time, we can spread it out amongst us. 6 C.O. STUBCHAER: Okay. 7 Anything else to come before this hearing today? 8 If not, we are adjourned. 9 (