STATE WATER RESOURCES CONTROL BOARD PUBLIC HEARING 1998 BAY-DELTA WATER RIGHTS HEARING HELD AT 901 P STREET SACRAMENTO, CALIFORNIA TUESDAY, DECEMBER 21, 1999 2:00 P.M. Reported by: MARY GALLAGHER, CSR #10749 CAPITOL REPORTERS (916) 923-5447 1 APPEARANCES ---oOo--- 2 3 BOARD MEMBERS: 4 JAMES STUBCHAER, COHEARING OFFICER JOHN W. BROWN, COHEARING OFFICER 5 MARY JANE FORSTER ARTHUR BAGGET, JR. 6 7 STAFF MEMBERS: 8 WALTER PETTIT - Executive Director VICTORIA A. WHITNEY - Supervising Engineer 9 NICK WILCOX - Chief Bay-Delta Unit 10 COUNSEL: 11 WILLIAM R. ATTWATER - Chief Counsel 12 BARBARA LEIDIGH - Senior Staff Counsel 13 14 ---oOo--- 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 16616 1 REPRESENTATIVES 2 PRINCETON CODORA GLENN IRRIGATION DISTRICT, et al. 3 FROST, KRUP & ATLAS 4 134 West Sycamore STreet Willows, California 95988 5 BY: J. MARK ATLAS, ESQ. 6 JOINT WATER DISTRICTS: 7 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 8 Oroville, California 95965 BY: WILLIAM H. BABER, III, ESQ. 9 CALIFORNIA SPORTFISHING PROTECTION ALLIANCE: 10 ROBERT J. BAIOCCHI 11 P.O. Box 357 Quincy, California 95971 12 BELLA VISTA WATER DISTRICT: 13 BRUCE L. BELTON, ESQ. 14 2525 Park Marina Drive, Suite 102 Redding, California 96001 15 WESTLANDS WATER DISTRICT: 16 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 17 400 Capitol Mall, 27th Floor Sacramento, California 95814 18 BY: THOMAS W. BIRMINGHAM, ESQ. JOHN RUBIN, ESQ. 19 THE BAY INSTITUTE OF SAN FRANCISCO: 20 GRAY BOBKER 21 55 Shaver Street, Suite 330 San Rafael, California 94901 22 CITY OF ANTIOCH, et al.: 23 FREDERICK BOLD, JR., ESQ. 24 1201 California Street, Suite 1303 San Francisco, California 94109 25 CAPITOL REPORTERS (916) 923-5447 16617 1 REPRESENTATIVES 2 LEAGUE OF WOMEN VOTERS: 3 ROBERTA BORGONOVO 4 2480 Union Street San Francisco, California 94123 5 UNITED STATES DEPARTMENT OF THE INTERIOR: 6 OFFICE OF THE SOLICITOR 7 2800 Cottage Way, Roon E1712 Sacramento, California 95825 8 BY: ALF W. BRANDT, ESQ. JAMES TURNER, ESQ. 9 CALIFORNIA URBAN WATER AGENCIES: 10 BYRON M. BUCK 11 455 Capitol Mall, Suite 705 Sacramento, California 95814 12 RANCHO MURIETA COMMUNITY SERVICES DISTRICT: 13 MCDONOUGH, HOLLAND & ALLEN 14 555 Capitol Mall, 9th Floor Sacramento, California 95814 15 BY: VIRGINIA A. CAHILL, ESQ. 16 CALIFORNIA DEPARTMENT OF FISH AND GAME: 17 OFFICE OF THE ATTORNEY GENERAL 1300 I Street, Suite 1101 18 Sacramento, California 95814 BY: MATTHEW CAMPBELL, ESQ. 19 NATURAL RESOURCES DEFENSE COUNCIL: 20 HAMILTON CANDEE, ESQ. 21 71 Stevenson Street San Francisco, California 94105 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 16618 1 REPRESENTATIVES 2 ARVIN-EDISON WATER STORAGE DISTRICT, et al.: 3 DOOLEY HERR & WILLIAMS 4 3500 West Mineral King Avenue, Suite C Visalia, California 93191 5 BY: DANIEL M. DOOLEY, ESQ. 6 SACRAMENTO MUNICIPAL UTILITY DISTRICT: 7 LESLIE A. DUNSWORTH, ESQ. 6201 S Street 8 Sacramento, California 95817 9 SOUTH SAN JOAQUIN IRRIGATION DISTRICT, et al.: 10 BRAY, GEIGER, RUDQUIST & NUSS 311 East Main Street, 4th Floor 11 Stockton, California 95202 BY: STEVEN P. EMRICK, ESQ. 12 EAST BAY MUNICIPAL UTILITY DISTRICT: 13 EBMUD OFFICE OF GENERAL COUNSEL 14 375 Eleventh Street Oakland, California 94623 15 BY: FRED ETHERIDGE, ESQ. 16 GOLDEN GATE AUDUBON SOCIETY: 17 ARTHUR FEINSTEIN 2530 San Pablo Avenue, Suite G 18 Berkeley, California 94702 19 CONAWAY CONSERVANCY GROUP: 20 UREMOVIC & FELGER P.O. Box 5654 21 Fresno, California 93755 BY: WARREN P. FELGER, ESQ. 22 THOMES CREEK WATER ASSOCIATION: 23 THOMES CREEK WATERSHED ASSOCIATION 24 P.O. Box 2365 Flournoy, California 96029 25 BY: LOIS FLYNNE CAPITOL REPORTERS (916) 923-5447 16619 1 REPRESENTATIVES 2 COURT APPOINTED REPS OF WESTLANDS WD AREA 1, et al.: 3 LAW OFFICES OF SMILAND & KHACHIGIAN 4 601 West Fifth Street, Seventh Floor Los Angeles, California 90075 5 BY: CHRISTOPHER G. FOSTER, ESQ. 6 CITY AND COUNTY OF SAN FRANCISCO: 7 OFFICE OF THE CITY ATTORNEY 1390 Market Street, Sixth Floor 8 San Francisco, California 94102 BY: DONN W. FURMAN, ESQ. 9 CAMP FAR WEST IRRIGATION DISTRICT, et al.: 10 DANIEL F. GALLERY, ESQ. 11 926 J Street, Suite 505 Sacramento, California 95814 12 BOSTON RANCH COMPANY, et al.: 13 J.B. BOSWELL COMPANY 14 101 West Walnut Street Pasadena, California 91103 15 BY: EDWARD G. GIERMANN 16 SAN JOAQUIN RIVER GROUP AUTHORITY, et al.: 17 GRIFFIN, 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 16620 1 REPRESENTATIVES 2 ENVIRONMENTAL DEFENSE FUND: 3 DANIEL SUYEYASU, ESQ. 4 and THOMAS J. GRAFF, ESQ. 5 5655 College Avenue, Suite 304 Oakland, California 94618 6 CALAVERAS COUNTY WATER DISTRICT: 7 SIMON GRANVILLE 8 P.O. Box 846 San Andreas, California 95249 9 CHOWCHILLA WATER DISTRICT, et al.: 10 GREEN, GREEN & RIGBY 11 P.O. Box 1019 Madera, California 93639 12 BY: DENSLOW GREEN, ESQ. 13 CALIFORNIA FARM BUREAU FEDERATION: 14 DAVID J. GUY, ESQ. 2300 River Plaza Drive 15 Sacramento, California 95833 16 SANTA CLARA VALLEY WATER DISTRICT: 17 MORRISON & FORESTER 755 Page Mill Road 18 Palo Alto, California 94303 BY: KEVIN T. HAROFF, ESQ. 19 CITY OF SHASTA LAKE: 20 ALAN N. HARVEY 21 P.O. Box 777 Shasta Lake, California 96019 22 COUNTY OF STANISLAUS: 23 MICHAEL G. HEATON, ESQ. 24 926 J Street Sacramento, California 95814 25 CAPITOL REPORTERS (916) 923-5447 16621 1 REPRESENTATIVES 2 GORRILL LAND COMPANY: 3 GORRILL LAND COMPANY 4 P.O. Box 427 Durham, California 95938 5 BY: DON HEFFREN 6 SOUTH DELTA WATER AGENCY: 7 JOHN HERRICK, ESQ. 3031 West March Lane, Suite 332 East 8 Stockton, California 95267 9 COUNTY OF GLENN: 10 NORMAN Y. HERRING 525 West Sycamore Street 11 Willows, California 95988 12 REGIONAL COUNCIL OF RURAL COUNTIES: 13 MICHAEL B. JACKSON 1020 Twelfth Street, Suite 400 14 Sacramento, California 95814 15 DEER CREEK WATERSHED CONSERVANCY: 16 JULIE KELLY P.O. Box 307 17 Vina, California 96092 18 DELTA TRIBUTARY AGENCIES COMMITTEE: 19 MODESTO IRRIGATION DISTRICT P.O. Box 4060 20 Modesto, California 95352 BY: BILL KETSCHER 21 SAVE THE SAN FRANCISCO BAY ASSOCIATION: 22 SAVE THE BAY 23 1736 Franklin Street Oakland, California 94612 24 BY: CYNTHIA L. KOEHLER, ESQ. 25 CAPITOL REPORTERS (916) 923-5447 16622 1 REPRESENTATIVES 2 BATTLE CREEK WATERSHED LANDOWNERS: 3 BATTLE CREEK WATERSHED CONSERVANCY 4 P.O. Box 606 Manton, California 96059 5 BUTTE SINK WATERFOWL ASSOCIATION, et al.: 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, California 95993 11 BROWNS VALLEY IRRIGTAION DISTRICT, et al.: 12 BARTKIEWICZ, 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 FLANAGAN, MASON, ROBBINS & GNASS 23 3351 North M Street, Suite 100 Merced, California 95344 24 BY: MIICHAEL L. MASON, ESQ. 25 CAPITOL REPORTERS (916) 923-5447 16623 1 REPRESENTATIVES 2 STONY CREEK BUSINESS AND LAND OWNERS COALITION: 3 R.W. MCCOMAS 4 4150 County Road K Orland, California 95963 5 TRI-DAM POWER AUTHORITY: 6 O'LAUGHLIN & PARIS 7 870 Manzanita Court, Suite B Chico, California 95926 8 BY: TIM O'LAUGHLIN, ESQ. 9 BRAY, GEIGER, RUDQUIST & NUSS 311 East Main Street, 4th Floor 10 Stockton, California 95202 BY: STEVEN P. EMRICK, ESQ. 11 DELANO-EARLIMART IRRIGATION DISTRICT, et al.: 12 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 13 P.O. Box 1679 Oroville, California 95965 14 BY: JEFFREY A. MEITH, ESQ. 15 HUMANE FARMING ASSOCIATION: 16 BRADLEY S. MILLER. 1550 California Street, Suite 6 17 San Francisco, California 94109 18 CORDUA IRRIGATION DISTRICT, et al.: 19 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 20 Oroville, California 95965 BY: PAUL R. MINASIAN, ESQ. 21 EL DORADO COUNTY WATER AGENCY: 22 DE CUIR & SOMACH 23 400 Capitol Mall, Suite 1900 Sacramento, California 95814 24 BY: DONALD B. MOONEY, ESQ. 25 CAPITOL REPORTERS (916) 923-5447 16624 1 REPRESENTATIVES 2 GLENN COUNTY FARM BUREAU: 3 STEVE MORA 4 501 Walker Street Orland, California 95963 5 MODESTO IRRIGATION DISTRICT: 6 JOEL MOSKOWITZ 7 P.O. Box 4060 Modesto, California 95352 8 PACIFIC GAS & ELECTRIC: 9 RICHARD H. MOSS, ESQ. 10 P.O. Box 7442 San Francisco, California 94120 11 CENTRAL DELTA WATER AGENCY, et al.: 12 NOMELLINI, GRILLI & MCDANIEL 13 P.O. Box 1461 Stockton, California 95201 14 BY: DANTE JOHN NOMELLINI, ESQ. and 15 DANTE JOHN NOMELLINI, JR., ESQ. 16 TULARE LAKE BASIN WATER STORAGE UNIT: 17 MICHAEL NORDSTROM 1100 Whitney Avenue 18 Corcoran, California 93212 19 AKIN RANCH, et al.: 20 DOWNEY, BRAND, SEYMOUR & ROHWER 555 Capitol Mall, 10th Floor 21 Sacramento, California 95814 BY: KEVIN M. O'BRIEN, ESQ. 22 OAKDALE IRRIGATION DISTRICT: 23 O'LAUGHLIN & PARIS 24 870 Manzanita Court, Suite B Chico, California 95926 25 BY: TIM O'LAUGHLIN, ESQ. CAPITOL REPORTERS (916) 923-5447 16625 1 SIERRA CLUB: 2 JENNA OLSEN 3 85 Second Street, 2nd Floor San Francisco, California 94105 4 YOLO COUNTY BOARD OF SUPERVISORS: 5 LYNNEL POLLOCK 6 625 Court Street Woodland, California 95695 7 PATRICK PORGENS & ASSOCIATES: 8 PATRICK PORGENS 9 P.O. Box 60940 Sacramento, California 95860 10 BROADVIEW WATER DISTRICT, et al.: 11 DIANE RATHMANN 12 P.O. Box 156 Dos Palos, California 93620 13 FRIENDS OF THE RIVER: 14 BETSY REIFSNIDER 15 128 J Street, 2nd Floor Sacramento, California 95814 16 MERCED IRRIGATION DISTRICT: 17 FLANAGAN, MASON, ROBBINS & GNASS 18 P.O. Box 2067 Merced, California 95344 19 BY: KENNETH M. ROBBINS, ESQ. 20 CENTRAL SAN JOAQUIN WATER CONSERVATION DISTRICT: 21 REID W. ROBERTS, ESQ. 311 East Main Street, Suite 202 22 Stockton, California 95202 23 METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA: 24 JAMES F. ROBERTS P.O. Box 54153 25 Los Angeles, California 90054 CAPITOL REPORTERS (916) 923-5447 16626 1 REPRESENTATIVES 2 SACRAMENTO AREA WATER FORUM: 3 CITY OF SACRAMENTO 4 980 9th Street, 10th Floor Sacramento, California 95814 5 BY: JOSEPH ROBINSON, ESQ. 6 TUOLUMNE RIVER PRESERVATION TRUST: 7 NATURAL HERITAGE INSTITUTE 114 Sansome Street, Suite 1200 8 San Francisco, California 94194 BY: RICHARD ROOS-COLLINS, ESQ. 9 CALIFORNIA DEPARTMENT OF WATER RESOURCES: 10 DAVID A. SANDINO, ESQ. 11 CATHY CROTHERS, ESQ. P.O. Box 942836 12 Sacramento, California 94236 13 FRIANT WATER USERS AUTHORITY: 14 GARY W. SAWYERS, ESQ. 575 East Alluvial, Suite 101 15 Fresno, California 93720 16 KERN COUNTY WATER AGENCY: 17 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Captiol Mall, 27th Floor 18 Sacramento, California 95814 BY: CLIFFORD W. SCHULZ, ESQ. 19 SAN JOAQUIN RIVER EXCHANGE CONTRACTORS: 20 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 21 P.O. Box 1679 Oroville, California 95965 22 BY: MICHAEL V. SEXTON, ESQ. 23 24 25 CAPITOL REPORTERS (916) 923-5447 16627 1 REPRESENTATIVES 2 SAN JOAQUIN COUNTY: 3 NEUMILLER & BEARDSLEE 4 P.O. Box 20 Stockton, California 95203 5 BY: THOMAS J. SHEPHARD, SR., ESQ. 6 CITY OF STOCKTON: 7 DE CUIR & SOMACH 400 Capitol Mall, Suite 1900 8 Sacramento, California 95814 BY: PAUL S. SIMMONS, ESQ. 9 ORLAND UNIT WATER USERS' ASSOCIATION: 10 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 11 P.O. Box 1679 Oroville, California 95965 12 BY: M. ANTHONY SOARES, ESQ. 13 GLENN-COLUSA IRRIGATION DISTRICT: 14 DE CUIR & SOMACH 400 Capitol Mall, Suite 1900 15 Sacramento, California 95814 BY: ANDREW M. HITCHINGS, ESQ. 16 NORTH SAN JOAQUIN WATER CONSERVATION DISTRICT: 17 JAMES F. SORENSEN CONSULTING CIVIL ENGINEER, INC.: 18 209 South Locust Street Visalia, California 93279 19 BY: JAMES F. SORENSEN 20 PARADISE IRRIGATION DISTRICT: 21 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 22 Oroville, California 95965 BY: WILLIAM H. SPRUANCE, ESQ. 23 24 25 CAPITOL REPORTERS (916) 923-5447 16628 1 REPRESENTATIVES 2 COUNTY OF COLUSA: 3 DONALD F. STANTON, ESQ. 4 1213 Market Street Colusa, California 95932 5 COUNTY OF TRINITY: 6 COUNTY OF TRINITY - NATURAL RESOURCES 7 P.O. Box 156 Hayfork, California 96041 8 BY: TOM STOKELY 9 CITY OF REDDING: 10 JEFFERY J. SWANSON, ESQ. 2515 Park Marina Drive, Suite 102 11 Redding, California 96001 12 TULARE IRRIGATION DISTRICT: 13 TEHEMA COUNTY RESOURCE CONSERVATION DISTRICT 2 Sutter Street, Suite D 14 Red Bluff, California 96080 BY: ERNEST E. WHITE 15 STATE WATER CONTRACTORS: 16 BEST BEST & KREIGER 17 P.O. Box 1028 Riverside, California 92502 18 BY: ERIC GARNER, ESQ. 19 COUTNY OF TEHEMA, et al.: 20 COUNTY OF TEHEMA BOARD OF SUPERVISORS P.O. Box 250 21 Red Bluff, California 96080 BY: CHARLES H. WILLARD 22 MOUNTAIN COUNTIES WATER RESOURCES ASSOCIATION: 23 CHRISTOPHER D. WILLIAMS 24 P.O. Box 667 San Andreas, California 95249 25 CAPITOL REPORTERS (916) 923-5447 16629 1 REPRESENTATIVES 2 JACKSON VALLEY IRRIGATION DISTRICT: 3 HENRY WILLY 4 6755 Lake Amador Drive Ione, California 95640 5 SOLANO COUNTY WATER AGENCY, et al.: 6 HERUM, CRABTREE, DYER, ZOLEZZI & TERPSTRA 7 2291 West March Lane, S.B. 100 Stockton, California 95207 8 BY: JEANNE M. ZOLEZZI, ESQ. 9 WESTLANDS ENCROACHMENT AND EXPANSION LANDOWNERS: 10 BAKER, MANOCK & JENSEN 5260 North Palm Avenue 11 Fresno, California 93704 BY: CHRISTOPHER L. CAMPBELL, ESQ. 12 SAN LUIS WATER DISTRICT: 13 LINNEMAN, BURGES, TELLES, VAN ATTA 14 1820 Marguerite Street Dos Palos, California 93620 15 BY: THOMAS J. KEENE, ESQ. 16 17 ---oOo--- 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 16630 1 I N D E X 2 ---oOo--- 3 4 PAGE 5 OPENING OF HEARING 16632 6 END OF PROCEEDINGS 16703 7 STATE WATER RESOURCES CONTROL BOARD STAFF: 8 MR. HOWARD 9 MR. HUNN 10 CROSS-EXAMINATION: 11 MR. BIRMINGHAM 16633 MR. KEENE 16648 12 BY THE STAFF 16667 BY THE BOARD 16668 13 REBUTTAL TESTIMONY BY SAN LUIS WATER DISTRICT: 14 PANEL: 15 MR. KETELHUT 16670 16 CROSS-EXAMINATION OF SAN LUIS WATER DISTRICT: 17 MR. BIRMINGHAM 16679 18 BY STAFF 16686 BY THE BOARD 16692 19 REDIRECT EXAMINATION OF SAN LUIS WATER DISTRICT: 20 MR. KEENE 16695 21 ---oOo--- 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 16631 1 TUESDAY, DECEMBER 21, 1999, 2:00 P.M. 2 SACRAMENTO, CALIFORNIA 3 ---oOo--- 4 C.O. STUBCHAER: We'll reconvene the Bay-Delta 5 Hearing. The purpose of the session this afternoon is to 6 hear cross-examination and rebuttal on the acceptance of 7 the Final Environmental Impact Report for the consolidated 8 conformed place of use. 9 There were two parties who wanted to participate 10 today, Mr. Keene and Mr. Birmingham. Is there anyone else 11 who intends to cross-examine the witnesses today? Just 12 for information, how many intend to put on rebuttal 13 evidence today? Mr. Keene. All right. 14 Mr. Birmingham, do you wish to begin the 15 cross-examination? 16 MR. BIRMINGHAM: I certainly will if that's the 17 Chair's preference. 18 C.O. STUBCHAER: The panel has been previously 19 sworn. Mr. Howard and Mr. Hunn, good afternoon. 20 MR. HUNN: Good afternoon. 21 // 22 // 23 // 24 // 25 // CAPITOL REPORTERS (916) 923-5447 16632 1 ---oOo--- 2 CROSS-EXAMINATION OF STATE WATER RESOURCES 3 CONTROL BOARD STAFF 4 BY WESTLANDS WATER DISTRICT 5 MR. BIRMINGHAM 6 MR. BIRMINGHAM: Mr. Hunn, my name is Tom Birmingham 7 and I am representing Westlands Water District in 8 connection with this phase of the proceedings. 9 First, can you, please, describe for me your 10 involvement in the preparation of the Final Environmental 11 Impact Report for the consolidated and conformed place of 12 use? 13 MR. HUNN: Yes. As I indicated in my direct 14 testimony, I was responsible for overseeing the 15 preparation of the document including all studies and 16 investigations leading to its preparation. 17 MR. BIRMINGHAM: Were you responsible for the 18 preparation of the maps that appear as figures in the 19 Final Environmental Impact Report for the consolidated and 20 conformed place of use? 21 MR. HUNN: No. Those maps were prepared by the U.S. 22 Bureau of Reclamation and provided to us. 23 MR. BIRMINGHAM: Excuse me, for purposes of the 24 record, may I ask Mr. Sawyer the exhibit number of this 25 document? CAPITOL REPORTERS (916) 923-5447 16633 1 C.O. STUBCHAER: Yes. 2 MR. SAWYER: 2-A. You referring to the Final EIR? 3 MR. BIRMINGHAM: I'm referring to the Final EIR on 4 the consolidated and conformed place -- 5 MR. SAWYER: Yes, that's Exhibit 2-A. 6 MR. BIRMINGHAM: Thank you. Have you compared the 7 maps which were contained in the Draft Environmental 8 Impact Report depicting the place of use and the maps that 9 are contained in Staff Exhibit 2-A? 10 MR. HUNN: Did I compare the exhibits -- or the 11 figures presented in the Draft Environmental Impact Report 12 with Exhibit 2-A? 13 MR. BIRMINGHAM: With the figures in 2-A? 14 MR. HUNN: Yes, I have. 15 MR. BIRMINGHAM: Can you explain to me the process 16 that was used in revising the place of use line, which is 17 depicted on Figure 2-24 in the Final Environmental Impact 18 Report, Staff Exhibit 2-A? 19 MR. HUNN: Well, I did not participate in the 20 revision of the place of use line as depicted in Exhibit 21 2-A. Appendix A of the Final EIR does contain a summary 22 of the methods used to revise the place of use boundary, 23 which was performed by the U.S. Bureau of Reclamation. 24 MR. BIRMINGHAM: Do you have a copy of Figure 2-24 25 in front of you, which is on Page 2-71 of Staff Exhibit CAPITOL REPORTERS (916) 923-5447 16634 1 2-A? 2 MR. HUNN: Figure 2-24, yes, I do. 3 MR. BIRMINGHAM: And I have additional copies of 4 this if it would be helpful to Members of the Board. 5 On Figure 2-24 there are areas within Westlands 6 Water District that are depicted as being within the 7 existing permitted place of use; is that correct? 8 MR. HUNN: That's correct. 9 MR. BIRMINGHAM: And then there are areas of 10 Westlands Water District that are outside of the currently 11 permitted place of use? 12 MR. HUNN: That's correct. 13 MR. BIRMINGHAM: And with respect to those areas 14 that are outside of the currently permitted place of use 15 within Westlands as depicted on Figure 2-24, there are 16 certain use classifications; is that correct? 17 MR. HUNN: I'm not sure what you mean by, "use 18 classifications," but there are depicted lands that appear 19 to currently receive CVP water and lands that do not 20 receive CVP water. 21 MR. BIRMINGHAM: Well, there currently -- with 22 respect to the lands within Westlands as depicted on 23 Figure 2-24 -- that are outside the place of use, the 24 Figure 2-24 depicts lands that currently receive CVP 25 water? CAPITOL REPORTERS (916) 923-5447 16635 1 MR. HUNN: That's correct. 2 MR. BIRMINGHAM: And the map depicts lands which are 3 dry land farm; is that correct? 4 MR. HUNN: Well, they're currently identified as 5 native vegetation by the color scheme used on this figure. 6 MR. BIRMINGHAM: Aren't there lands on Figure 2-24 7 that are depicted as being dry land farm? 8 MR. HUNN: Not according to this color scheme. 9 MR. BIRMINGHAM: Would you look at the color schemes 10 depicted at the bottom of 2-24? 11 MR. HUNN: Okay. 12 MR. BIRMINGHAM: Is there a yellow color scheme 13 depicted on 2-24? 14 MR. HUNN: Not that I can see at this scale of the 15 map -- oh, in the legend, yes, there is. 16 MR. BIRMINGHAM: And I want to direct your attention 17 to a small parcel of land that is in Township 17 South, 14 18 East, adjacent to the words, "Cantua Creek." Do you see 19 that small parcel of land? 20 MR. HUNN: I see a small parcel of land that's 21 surrounded by green. 22 MR. BIRMINGHAM: And is that small parcel of land 23 yellow? 24 MR. HUNN: I cannot tell in this room. 25 MR. BIRMINGHAM: Could we ask if the witness can go CAPITOL REPORTERS (916) 923-5447 16636 1 outside to see if -- 2 C.O. STUBCHAER: Anybody have a flashlight? 3 Perhaps, if we turn on the track lighting. Does that 4 help? 5 MR. HUNN: It appears to be yellow, yes. 6 MR. BIRMINGHAM: And, actually, it helped mine as 7 well. So that would indicate that within the area that is 8 currently outside the place of use, but within the 9 boundaries of Westlands, there are lands that are under 10 dry land agricultural production? 11 MR. HUNN: That's what it appears to be, yes. 12 MR. BIRMINGHAM: The Final Environmental Impact 13 Report, Staff 2-A, talks about the impacts that would 14 result from including lands within the permitted place of 15 use; is that correct? 16 MR. HUNN: It addresses the impacts of putting these 17 lands into the place of use. 18 MR. BIRMINGHAM: And among the impacts are 19 conversion of lands from native vegetation to agricultural 20 production? 21 MR. HUNN: That is correct. 22 MR. BIRMINGHAM: If lands are currently being dry 23 land farmed, would -- let me restate the question. 24 If land is currently being dry land farmed, the 25 conversion of those lands from native vegetation to CAPITOL REPORTERS (916) 923-5447 16637 1 agricultural production would already have occurred; is 2 that correct? 3 MR. HUNN: To a degree, yes. A certain number of 4 effects would have already taken place. 5 MR. BIRMINGHAM: Looking at the legend at the bottom 6 of 2-24, it indicates that -- there is classification for 7 non-CVP water service. Do you see that classification? 8 MR. HUNN: Yes, I do. 9 MR. BIRMINGHAM: And to your knowledge, are there 10 lands that are within the boundaries of Westlands Water 11 District that are outside the place of use that are 12 currently receiving non-CVP water service? 13 MR. HUNN: Based on this figure, no, there is not. 14 MR. BIRMINGHAM: Were you responsible for the 15 preparation of the response to comments that are contained 16 in Staff Exhibit 2-A? 17 MR. HUNN: Yes. 18 MR. BIRMINGHAM: And did you review the comments 19 that were made on the Draft Environmental Impact Report 20 for the consolidated and conformed place of use? 21 MR. HUNN: Yes, I did. 22 MR. BIRMINGHAM: I ask that you turn to page 23 LTR 22-5 in Staff Exhibit 2-A. 24 MR. HUNN: You say 22-5? 25 MR. BIRMINGHAM: Yes. CAPITOL REPORTERS (916) 923-5447 16638 1 MR. HUNN: Okay. 2 MR. BIRMINGHAM: Can you tell me what is depicted on 3 22-5 of Exhibit 2-A? 4 MR. HUNN: There is a table which is presented as a 5 part of a comment letter. And the title of the table is, 6 "Acreages Outside the Existing Place of Use within 7 Westlands Water District." 8 MR. BIRMINGHAM: And the comment that pertains to 9 that table is contained on Page 22-4 of 2-A; is that 10 correct, under page -- comment letter 3-31? 11 MR. HUNN: Yes. That comment does -- well, it 12 refers to a Table E-1 in Draft EIR. I don't see a 13 reference to the specific table that you're talking about. 14 MR. BIRMINGHAM: In the comment letter with respect 15 to Page 3-31, the comments state, 16 (Reading): 17 "The acreage classified as native vegetation in 18 the expansion lands of Westlands, 12,732 acres, 19 is incorrect. The following table depicts 20 corrections to Table E-1 in the Draft EIR and 21 includes information collected by Westlands 22 concerning lands that were classified 23 erroneously." 24 Do you see the statement that I just read? 25 MR. HUNN: Yes, I do. CAPITOL REPORTERS (916) 923-5447 16639 1 MR. BIRMINGHAM: So the statement that is contained 2 on Page 22-4 pertains to the table that is contained on 3 Page 22-5; is that correct? 4 MR. HUNN: I believe so, yes. 5 MR. BIRMINGHAM: And the response to the comments 6 that I just read pertaining to Page 3-31 of the Draft 7 Environmental Impact Report is also on page 22-4 of 8 Exhibit 2-A? 9 MR. HUNN: Yes, there is a response there. 10 MR. BIRMINGHAM: And the response states, 11 (Reading): 12 "The land use values presented in Table 37, 13 Page 3-31 of the Draft EIR, were calculated 14 from available land use data compiled by the 15 California Department of Water Resources and 16 selected areas outside the place of use were 17 field verified by direct observation. In 18 addition, a survey with each affected CVP 19 contractor was conducted to verify the acreage 20 of lands historically irrigated." 21 Do you see that comment? 22 MR. HUNN: Yes. 23 MR. BIRMINGHAM: Okay. Now, do you know who 24 conducted the field survey? 25 MR. HUNN: Members of the contractor staff. CAPITOL REPORTERS (916) 923-5447 16640 1 MR. BIRMINGHAM: And who would that be? 2 MR. HUNN: By name? 3 MR. BIRMINGHAM: When you say the "contractor 4 staff -- 5 MR. HUNN: CH2MHill. 6 MR. BIRMINGHAM: And the table that's contained on 7 Page 22-5 indicates that within Westlands there are 474 8 acres of land irrigated with non-CVP water outside the 9 existing permitted place of use; is that correct? 10 MR. HUNN: That's what it indicates, yes. 11 MR. BIRMINGHAM: Did anyone on your staff, or the 12 staff of CH2MHill do any kind of analysis to determine 13 whether the 474 acres which are referred to by specific 14 parcel numbers in the table on Page 22-5, whether those 15 lands were being irrigated with non-CVP water? 16 MR. HUNN: No, we did not. 17 MR. BIRMINGHAM: Now, when you say in your response 18 to the comment, "In addition, a survey with each affected 19 CVP water contractor was conducted to verify the acreage 20 of lands historically irrigated," you relied on 21 information provided to you by the contractor because, in 22 your opinion, the contractor would be in the best position 23 to provide to you reliable information? 24 MR. HUNN: That's what we believed. 25 MR. BIRMINGHAM: And in this case, the contractor CAPITOL REPORTERS (916) 923-5447 16641 1 has provided information to the effect that there are 474 2 acres of land within its boundaries that are outside the 3 permitted place of use that receive non-CVP water? 4 MR. HUNN: Yeah. 5 MR. BIRMINGHAM: Do you have any reason to dispute 6 the number 474 acres as being within Westlands' boundaries 7 and receiving non-CVP water? 8 MR. HUNN: No, I have no reason to doubt this 9 information. 10 MR. BIRMINGHAM: Okay. Can you explain for me why 11 on Figure 2-24 of the Final Environmental Impact Report 12 there are no lands shown as being irrigated with non-CVP 13 water? 14 MR. HUNN: I cannot explain why the figure does not 15 show that. 16 MR. BIRMINGHAM: Now, a few moments ago we talked 17 about the conversion of -- excuse me, let me restate the 18 question. 19 A few moments ago we talked about the affects of 20 converting native vegetation to dry land agriculture. And 21 I'd like to follow up with a similar question concerning 22 the conversion of lands from native vegetation to 23 irrigation with non-CVP water. 24 Isn't it correct, that the affects associated 25 with the conversion of native lands to agriculture will CAPITOL REPORTERS (916) 923-5447 16642 1 already have occurred if the land has already been 2 converted from native vegetation to agricultural 3 production with non-CVP water service? 4 MR. HUNN: Yes, I would agree that the prior non-CVP 5 water service would induce the impacts that would have 6 occurred. 7 MR. BIRMINGHAM: You just used the term "induced." 8 And that relates to a series of questions that I wanted to 9 ask. What does the term "CVP induced conversion" mean as 10 that term is used in the Final Environmental Impact 11 Report, 2-A? 12 MR. HUNN: That was a term that is carried through 13 in the -- began in the Draft Environmental Impact Report 14 and was used to provide the reader an indication of what 15 lands would development occur on as facilitated by the 16 presence of CVP water. 17 It did not mean to imply that the availability of 18 CVP water would cause specific impacts to occur, but those 19 impacts could be facilitated, or the development of those 20 lands could be facilitated by the availability of the CVP 21 water. 22 MR. BIRMINGHAM: Does the Final Environmental Impact 23 Report, Staff Exhibit 2-A, use the term, "CVP induced 24 conversion," to refer to lands that have previously 25 received CVP water? CAPITOL REPORTERS (916) 923-5447 16643 1 MR. HUNN: No. The term, "CVP induced conversion," 2 applies to those lands that would receive CVP water as the 3 original water source. 4 MR. BIRMINGHAM: Now, with respect -- may I have a 5 moment? Does the Final Environmental Impact Report, 2-A, 6 identify those lands within Westlands that are currently 7 receiving CVP water that received CVP water as the 8 original water source? 9 MR. HUNN: Yes. The Final Environmental Impact 10 Report on Pages 2-70 and also on Figure 2-24 identifies 11 specific lands that have been classified as, "CVP Induced 12 Agriculture." 13 MR. BIRMINGHAM: Now, Table 2-32 identifies 30,607 14 acres as CVP induced agricultural land within Westlands; 15 is that correct? 16 MR. HUNN: It does identify that, yes. 17 MR. BIRMINGHAM: And that includes all of the lands 18 in Westlands that are currently outside the permitted 19 place of use, but are receiving CVP water? 20 MR. HUNN: Could you rephrase that, please? 21 MR. BIRMINGHAM: Yes, I will. If you look at Figure 22 2-24, you've indicated that the lands that are depicted in 23 green are receiving CVP water. 24 MR. HUNN: That's correct. 25 MR. BIRMINGHAM: What is the total acreage of lands CAPITOL REPORTERS (916) 923-5447 16644 1 depicted on Figure 2-24 outside the permitted place of use 2 that are currently receiving CVP water? 3 MR. HUNN: It would be the combination of the 30,607 4 acres of CVP induced agriculture and the 111 acres of CVP 5 induced agriculture. 6 MR. BIRMINGHAM: So going back to my question, all 7 of the lands that are depicted in green outside the 8 permitted place of use on Figure 2-24 within the 9 boundaries of Westlands Water District, you have 10 classified as "CVP induced agricultural lands"? 11 MR. HUNN: In green, yes, you're correct. 12 MR. BIRMINGHAM: But which of those lands -- going 13 back to your definition of CVP induced lands, which of 14 those lands received CVP water as their original water 15 supply? 16 MR. HUNN: According to this estimate, all the lands 17 received CVP water as their original water supply. 18 MR. BIRMINGHAM: And what is the basis of that 19 estimate? 20 MR. HUNN: Again, we go back to the surveys that 21 were conducted with the individual water districts since 22 1989 and continuing correspondence, or discussions with 23 the water districts performed by the U.S. Bureau of 24 Reclamation through the preparation of this document. 25 MR. BIRMINGHAM: Are you aware of information to the CAPITOL REPORTERS (916) 923-5447 16645 1 effect that many of the lands, which are depicted in green 2 as receiving CVP water supply outside the existing 3 permitted place of use, were irrigated with groundwater 4 prior to the receipt of CVP water? 5 MR. HUNN: If that took place, we were provided no 6 information from the districts that enabled us to define 7 which specific lands were provided that water prior to the 8 CVP water becoming available. 9 MR. BIRMINGHAM: Did you do any independent analysis 10 to determine if any of these lands have been irrigated 11 with non-CVP water? 12 MR. HUNN: No. We relied on the surveys performed 13 with the participation of the individual water contractors 14 for that information. 15 MR. BIRMINGHAM: Did you want to say something? 16 MR. HUNN: No. 17 MR. BIRMINGHAM: I'm sorry, I thought you did. All 18 of the information on which you based the analysis of 19 lands that are depicted on Figure 2-24 of 2-A, Exhibit 20 2-A, was information that you were told by other people; 21 is that correct? 22 MR. HUNN: No. As part of the survey, CH2MHill, 23 actually, performed some of the surveys back in 1990 and 24 1991 with some of the contractors. We relied on an 25 original survey performed by another firm that was CAPITOL REPORTERS (916) 923-5447 16646 1 participating in separate and -- prior to our involvement. 2 MR. BIRMINGHAM: Let's look at the larger scale -- 3 or the larger version of the map that is shown as 2-24, 4 which has been placed, I believe, by the Water Board staff 5 on the easel. 6 Are you familiar with this larger version of the 7 map? 8 MR. HUNN: Yes. It looks very similar to what's 9 presented as Figure 2-24. 10 MR. BIRMINGHAM: Can you indicate on the larger 11 version of the map which lands your staff personally 12 visited to verify the information that's contained on the 13 map in Figure 2-24? 14 MR. HUNN: No, I cannot identify those specific 15 parcels or properties that were field observed. The 16 observations were done through a team of staff who went 17 through the district lands several years ago. 18 MR. BIRMINGHAM: So, in other words, the information 19 that's contained in Exhibit 2-A is information which you 20 were told by other people? 21 MR. CAMPBELL: Objection. Asked and answered. And 22 mischaracterizes the witness' answer to that question. 23 C.O. STUBCHAER: Mr. Birmingham? 24 MR. BIRMINGHAM: I'll accept the Chair's ruling on 25 it. No sense arguing about it. CAPITOL REPORTERS (916) 923-5447 16647 1 C.O. STUBCHAER: Objection is overruled. 2 MR. HUNN: Other people consisting of my staff, yes. 3 MR. BIRMINGHAM: I have no further questions. 4 C.O. STUBCHAER: Thank you, Mr. Birmingham. Time 5 out just a minute. Okay. Back on the record. 6 Mr. Keene, good afternoon. 7 MR. KEENE: Good afternoon. 8 ---oOo--- 9 CROSS-EXAMINATION OF STATE WATER RESOURCES 10 CONTROL BOARD STAFF 11 BY SAN LUIS WATER DISTRICT 12 BY MR. KEENE 13 MR. KEENE: Mr. Hunn, my name is Tom Keene. I 14 represent the San Luis Water District. I'd ask you to 15 turn, if you can, in Exhibit 2-A to comment 5-4. 16 MR. HUNN: All right. 17 MR. KEENE: I'll give you a moment to look over 18 that. Now, in that comment you referred to, "The 19 mitigation measures identified in this DEIR which have yet 20 to be defined for site specific application and 21 implementation." 22 What does that mean? 23 MR. HUNN: The mitigation program identified in the 24 Final Environmental Impact Report establishes a procedure 25 for developing site specific mitigation measures in CAPITOL REPORTERS (916) 923-5447 16648 1 response to the impacts identified in this document. 2 MR. KEENE: So the Final Environmental Impact Report 3 indicates or identifies, I believe, three types of 4 mitigation measures, but it doesn't say which measures 5 will be applied to which particular piece of ground? 6 MR. HUNN: That's correct. 7 MR. KEENE: Okay. So is there any way of 8 determining what the cost of mitigation to a particular -- 9 or for a particular piece of ground is going to be? 10 MR. HUNN: If you were to calculate the respected 11 habitat value and make a determination of what type of 12 mitigation measure would be most appropriate, you could 13 probably estimate a cost to implement mitigation. 14 MR. KEENE: But that information is not in the 15 document, is it? 16 MR. HUNN: No, it's not. 17 MR. KEENE: And, then, there's nothing in the 18 document that, in fact, tells us which one of the three 19 mitigation measures is going to be applied to a particular 20 parcel, is there? 21 MR. HUNN: No, that remains to be determined. 22 MR. KEENE: Okay. I'd ask you to turn to comment 23 25-1, if you would. 24 MR. HUNN: Okay. 25 MR. KEENE: I'll give you a moment to look at that. CAPITOL REPORTERS (916) 923-5447 16649 1 Now, I believe that your response to that -- to my 2 comment -- that's my letter that you're responding to -- 3 you're responding to the information in that letter with 4 regard to San Luis Water District, what's now marked as 5 Exhibit Number 3, which is the 1974 Environmental Impact 6 Report. 7 And you indicate there -- well, could you just 8 read that comment, or response to comment? 9 MR. HUNN: The response as presented is 25-1, 10 (Reading): 11 "Previously prepared environmental documents 12 were unavailable at the time of preparing the 13 DEIR may be relevant to the development of 14 mitigation being recommended. Such 15 documentation may reveal that mitigation for 16 past CVP water delivery impacts may not be 17 warranted to the degree currently envisioned." 18 MR. KEENE: When you say that that Environmental 19 Impact Report was not available when you prepared the 20 DEIR, do you mean -- well, let me ask you: 21 Did you ever ask the San Luis Water District for 22 a copy of any environmental document it may have prepared? 23 MR. HUNN: Well, what we meant by unavailable is we 24 were unaware of its availability or existence. 25 MR. KEENE: Well, I understand that, but did you CAPITOL REPORTERS (916) 923-5447 16650 1 ever ask the District for any environmental document which 2 it may have prepared? 3 MR. CAMPBELL: Objection. Asked and answered. 4 Argumentative. 5 MR. KEENE: I would submit it was not answered -- 6 C.O. STUBCHAER: Overruled. 7 MR. HUNN: We did not, specifically, ask the San 8 Luis Water District for an Environmental Impact Report. 9 MR. KEENE: Did you ask any of the other water 10 districts for any of their impact reports? 11 MR. HUNN: No, we did not. 12 MR. KEENE: After the hearings that were held in 13 this matter, I believe, in March and April, were you given 14 access to the exhibits that were presented and accepted in 15 evidence? 16 MR. HUNN: Yes, I was. 17 MR. KEENE: Okay. So you, now, have had access to 18 San Luis Water District Exhibit Number 3? 19 MR. HUNN: Environmental Impact Report? 20 MR. KEENE: Yes. 21 MR. HUNN: Yes, I've seen that. 22 MR. KEENE: Okay. Have you read that document? 23 MR. HUNN: I've reviewed it, yes. 24 MR. KEENE: So you reviewed the map that's contained 25 within that document? CAPITOL REPORTERS (916) 923-5447 16651 1 MR. HUNN: Yes, I did. 2 MR. KEENE: Did you review that map before the 3 preparation of the Final Environmental Impact Report? 4 MR. HUNN: Yes, when we were preparing the Final 5 Environmental Impact Report I did review that exhibit. 6 MR. KEENE: I direct you now to comment Number 7 25-13. Could you, please, read that response to comments? 8 MR. HUNN: 25-13 reads, 9 (Reading): 10 "As envisioned at this time, mitigation funds 11 would be supplied by a reclamation and 12 available funds collected from fees assigned by 13 CVPIA and other existing programs. No new 14 funds would be collected from CVP water 15 contractors to pay for mitigation 16 requirements." 17 MR. KEENE: Now, the funds that you are referring 18 to, are those what is referred to as the restoration fund? 19 MR. HUNN: Yeah, I believe that's how it's 20 characterized. 21 MR. KEENE: Now, your response, "As envisioned at 22 this time," I have no way of knowing when you prepared 23 that response. Is that still what is envisioned? 24 MR. HUNN: I'm not aware of any information to 25 change that. CAPITOL REPORTERS (916) 923-5447 16652 1 MR. KEENE: Is there anything else in the Final 2 Environmental Impact Report, or any of the comments which 3 refers to the cost of mitigation being paid out of the 4 restoration fund? 5 MR. HUNN: If not specifically, it's inferred 6 through the discussion of how this mitigation program 7 would be implemented in coordination with other Bureau and 8 CVPIA actions. 9 MR. KEENE: Okay. But that is not in any way a 10 condition that if restoration funds weren't available and 11 this Environmental Impact Report were certified, 12 mitigation would still have to be provided and paid for by 13 some other means? 14 MR. HUNN: I would conclude that, yes. 15 MR. KEENE: All right. Now, I believe that the 16 Final Environmental Impact Report incorporates the 17 discussion in the Draft Environmental Impact Report under 18 a number of topics. One of them, I believe, is economics? 19 MR. HUNN: Could you repeat that, please? 20 MR. KEENE: I believe the Final Environmental Impact 21 Report incorporates by reference certain sections of the 22 Draft Environmental Impact Report, one of those sections 23 being one entitled, "Economics"? 24 MR. HUNN: No. Actually, the Final Environmental 25 Impact Report does not provide any information that would CAPITOL REPORTERS (916) 923-5447 16653 1 refer to the Draft EIR in terms of economics. 2 MR. KEENE: I refer you to Page 2-74 of the Final 3 Environmental Impact Report Section 2-3, or 2.3. 4 MR. HUNN: Pages 2-74, yes. Okay 5 MR. KEENE: Just above this list, could you read the 6 that sentence, that partial sentence that ends with a 7 colon? 8 MR. HUNN: "The readers directed to the Draft -- 9 DEIR for the analysis addresses the following topics." 10 MR. KEENE: And could you read the next to the last 11 item in that list? 12 MR. HUNN: "Economics." 13 MR. KEENE: Okay. So let me ask again: Does the 14 Final Environmental Impact Report incorporate by reference 15 the economics section of the Draft Environmental Impact 16 Report? 17 MR. HUNN: By referring the reader to that topic, I 18 guess you could say it incorporates it by reference. 19 MR. KEENE: Okay. Are you familiar with the 20 economic discussion in the Draft Environmental Impact 21 Report? 22 MR. HUNN: Yes. 23 MR. KEENE: Are you familiar with that portion of it 24 that refers to San Luis Water District? 25 MR. HUNN: I reviewed that, yes. CAPITOL REPORTERS (916) 923-5447 16654 1 MR. KEENE: Okay. Now, does that discussion, in 2 fact, indicate the potential economic impact on the San 3 Luis Water District is 7.5 million dollars if either 4 Alternative 1 or Alternative 3 were implemented? 5 MR. HUNN: How much did you say? 6 MR. KEENE: 7.5 million. 7 MR. HUNN: I can't see a reference to 7.5 million in 8 the Draft EIR. However, this would, obviously, need to be 9 recognized. This is based on the acreages of lands that 10 were assumed in the Draft EIR purposes which have 11 subsequently changed in the Final EIR. 12 MR. KEENE: Okay. Can you tell me what the cost of 13 the mitigation would be for the 10,000 acres of land that 14 has to be mitigated -- let me start that question over 15 again. 16 I believe that the Final Environmental Impact 17 Report indicates in Section 2.2.16, starting at Page 2-5A, 18 the amount of acreage in the San Luis Water District which 19 would be subject to mitigation. And I believe that the 20 amount of that acreage was, in fact, changed by the errata 21 sheet, which is marked as SWRCB Exhibit 202 so that the 22 total amount of acreage is now 10,668 acres; is that 23 correct? 24 MR. HUNN: 10,668 acres, that's correct. 25 MR. KEENE: Could you tell me what the cost of CAPITOL REPORTERS (916) 923-5447 16655 1 mitigation of that 10,668 acres will be? 2 MR. HUNN: No, I can't. 3 MR. KEENE: Can you tell me who will pay? 4 MR. HUNN: As currently envisioned it would be paid 5 through funds collected in accordance with restoration 6 funds. 7 MR. KEENE: Who makes the determination as to what 8 the restoration funds may be used for? 9 MR. HUNN: There is a group, I believe, it's 10 composed of the U.S. Fish and Wildlife Service, the Bureau 11 of Reclamation, California Department of Fish and Game 12 that are directly responsible for allocating funds for the 13 restoration program. 14 MR. KEENE: Have those groups been contacted to 15 determine whether or not they would be willing to pay for 16 the cost of the mitigation for the 10,668 acres? 17 MR. HUNN: The Bureau of Reclamation has been 18 contacted. 19 MR. KEENE: Do you know whether or not the other 20 groups have been contacted? 21 MR. CAMPBELL: Objection. Mr. Chairman, relevance. 22 These other groups are not the permittees and aren't the 23 subject of this petition and don't require the approvals 24 necessary for the proposed action. 25 MR. KEENE: Mr. Chairman, that's exactly my point. CAPITOL REPORTERS (916) 923-5447 16656 1 The mitigation -- whether or not the mitigation is 2 reasonable, whether or not it is feasible is an element of 3 mitigation under the CEQA guidelines and is a required 4 element of an Environmental Impact Report. Certainly, 5 feasibility has something to do with who's going to pay 6 for it. 7 C.O. STUBCHAER: Objection is overruled. 8 MR. KEENE: Thank you. To your knowledge, have 9 these other groups been contacted and asked whether or not 10 they would agree that these funds may be used to pay for 11 the cost of mitigation for the 10,668 acres? 12 MR. HUNN: I have no firsthand knowledge if that was 13 done. 14 MR. KEENE: Do you have any hearsay information in 15 that regard? 16 MR. HUNN: Not specifically, no. 17 MR. KEENE: Generally? You keep qualifying it and 18 I'm trying to pin it down. 19 MR. HUNN: I'm not aware of any direct conversations 20 with these agencies to specifically allocate funds for 21 that purpose. 22 MR. KEENE: Okay. Now, I want you to assume for a 23 moment that the -- that these restoration funds are not 24 available to pay for the cost of this mitigation, do you 25 know whether or not the cost of the mitigation of the CAPITOL REPORTERS (916) 923-5447 16657 1 10,668 acres is going to be less than the 7.5 million 2 dollar impact which was identified in the Draft 3 Environmental Impact Report? 4 MR. HUNN: It could be potentially less. 5 MR. KEENE: Do you know for a fact that it will be 6 less? 7 MR. HUNN: No, I don't. 8 MR. KEENE: Could it be more? 9 MR. HUNN: Could be more. 10 MR. KEENE: Thank you. Ask you to turn now in 11 Exhibit 2-A to Page ES-2, the second page I believe of the 12 text of the document. I'd ask you to read that last 13 sentence on that page that begins with, "Encroachment 14 lands." 15 MR. HUNN: (Reading): 16 "Encroached lands that are served CVP water for 17 municipal and industrial purposes are not 18 analyzed in detail, because projects associated 19 with these land uses have already been 20 evaluated with previously prepared CEQA 21 documents." 22 MR. KEENE: Okay. I would ask you to focus your 23 attention on the map of the San Luis Water District that 24 has been put up there on the board on the left. And do 25 you know what that red spot is on that map, the only red CAPITOL REPORTERS (916) 923-5447 16658 1 spot on that map? 2 C.O. STUBCHAER: Would you identify that by exhibit 3 number? 4 MR. KEENE: I don't know what the exhibit number is. 5 I believe it's out of Exhibit 2-A. It's figure -- 6 MS. WHITNEY: It's the same as Figure 2-22 in the 7 Final EIR. 8 C.O. STUBCHAER: Thank you. 9 MR. KEENE: Do you know what that red spot is on 10 that map? 11 MR. HUNN: The red spot on that map is the lands 12 that are referred to in the errata sheet, Exhibit 202, as 13 lands that should have been identified as lands within the 14 place of use. 15 MR. KEENE: Okay. So -- but the identification of 16 that property by the red color, does that, in fact, 17 indicate that it is M&I land? 18 MR. HUNN: Yes. By the color it is designated as 19 M&I land. 20 MR. KEENE: Do you know who the lead agency for the 21 Environmental Impact Report for that particular piece of 22 ground was? 23 MR. HUNN: I am not aware who the lead agency was. 24 MR. KEENE: Would it surprise you to know that it 25 was the San Luis Water District? CAPITOL REPORTERS (916) 923-5447 16659 1 MR. HUNN: No. 2 MR. KEENE: Now, I'd like you to turn to comment 3 15-12. 4 MR. BIRMINGHAM: Excuse me? 5 C.O. STUBCHAER: Mr. Birmingham. 6 MR. BIRMINGHAM: Ms. Whitney made a comment a few 7 moments ago, which I don't believe is correct. She said 8 the map on the board is the same as 2-22 out of the Final 9 Environmental Impact Report, 2-A. I believe if a 10 comparison of the two maps is made, they are different. 11 So I would suggest the map be identified by exhibit number 12 and -- 13 MR. KEENE: I believe that's correct. I was going 14 to get to that with my rebuttal witness. I would ask 15 that -- I would say for purposes of the record up to this 16 point, that this is probably adequate. I do think that 17 the suggestion is well made, though, that that document up 18 there be given an exhibit number, because it is different 19 from the page in the book. 20 C.O. STUBCHAER: Well, then, it seems to me we ought 21 to give it a number now so the record will be as clear as 22 possible. 23 MR. KEENE: Okay. I don't know what the next number 24 might be for -- 25 MR. WILCOX: 206. CAPITOL REPORTERS (916) 923-5447 16660 1 MR. KEENE: Okay, 206. 2 C.O. STUBCHAER: And, again, for purposes of the 3 record define what "that" is. 4 MR. KEENE: Okay. 5 MR. BIRMINGHAM: I believe Exhibit 206 is a map that 6 depicts the San Luis Water District encroachment area 7 which is attached to the proposed decision of the State 8 Water Resources Control Board implementing the 1995 Water 9 Control Plan circulated November 2, 1999. 10 C.O. STUBCHAER: Do you agree, Mr. Keene? 11 MR. KEENE: That is news to me. I will take 12 Mr. Birmingham on his word. 13 MR. BIRMINGHAM: Excuse me, may I have a moment to 14 confer with Mr. Keene for a moment? 15 C.O. STUBCHAER: Yes. Off the record. 16 (Off the record at 2:49 p.m. to 2:50 p.m.) 17 C.O. STUBCHAER: Back on the record. Okay. 18 MR. KEENE: I would certainly, after having a chance 19 to confer with Mr. Birmingham, I will agree with his 20 statement as to what this exhibit is, Exhibit 206. 21 C.O. STUBCHAER: Thank you. 22 MR. KEENE: Now, Mr. Hunn, response to comment 15-12 23 could you, please, read that. 24 MR. HUNN: 15-12 reads, 25 (Reading): CAPITOL REPORTERS (916) 923-5447 16661 1 "Comment noted: The text on Page 1-3 will be 2 modified in the Final EIR to clarify that M&I 3 projects that occurred after 1970 are assumed 4 to have been reviewed through CEQA documents. 5 Projects prior to 1970 don't have such 6 documents." 7 MR. KEENE: Okay. I understand that to mean -- and 8 I want you to tell me if I'm right -- that if it was an 9 M&I project that went on-line after 1970, in the 10 preparation of the Final Environmental Impact Report your 11 assumption was that you did not have to look at the 12 mitigation in it, because there was going to be a Final 13 Environmental Impact Report prepared by another agency 14 that adequately mitigated? 15 MR. HUNN: No. I think the purpose of that comment 16 was in response to comment 15-12, which was implying that 17 CEQA documents were not necessarily available for all M&I 18 developments. And this is clarifying that those that took 19 place prior to 1970 did not have such documents available 20 to them. 21 MR. KEENE: Okay. But projects that occurred after 22 1970, doesn't your comment say that they are assumed to 23 have been reviewed through CEQA documents? 24 MR. HUNN: Yes. 25 MR. KEENE: Okay. And, in fact, prior to the CAPITOL REPORTERS (916) 923-5447 16662 1 preparation of your errata sheet, which took out this M&I 2 development out of the San Luis Water District's portion 3 of the Final Environmental Impact Report, you, in fact, 4 did not include any mitigation requirements for that M&I 5 project? 6 MR. HUNN: That's correct. 7 MR. KEENE: Okay. Now, I don't understand something 8 and, perhaps, you can clarify it for me. Why was it that 9 an Environmental Impact Report for which the San Luis 10 Water District was lead agency for an M&I development 11 after 1970 was given that kind of status; whereas the 12 Environmental Impact Report that was prepared for 13 agricultural development, which the San Luis Water 14 District was the lead agency, was not given the same 15 courtesy? 16 MR. HUNN: I don't think it was, specifically, 17 directed towards San Luis Water District. I think as a 18 general rule we acknowledge that M&I projects -- Municipal 19 and Industrial Projects -- occurring after 1970 would have 20 undergone a prior CEQA analysis by the local land 21 management agency. 22 We did not have sufficient information to make 23 that general conclusion regarding agricultural 24 developments that took place after 1970. 25 MR. KEENE: And you did not ask the water CAPITOL REPORTERS (916) 923-5447 16663 1 contractors for their Environmental Impact Reports for 2 agricultural developments that took place after 1970? 3 MR. HUNN: We did not ask -- we did not ask. 4 MR. KEENE: So I don't understand, let me ask the 5 question again: Why was the Environmental Impact Report 6 for the M&I development given such weight that you didn't 7 inquire further into it, or you didn't even ask for an 8 Environmental Impact Report for an agricultural 9 development? 10 MR. HUNN: As I indicated, we made a determination 11 that such documents were readily available for the M&I 12 developments occurring back to 1970. We were unaware of 13 any specific environmental documents that would apply to 14 agricultural development for projects after 1970. 15 MR. KEENE: And you didn't want to be aware, because 16 you didn't ask? 17 MR. HUNN: I didn't -- 18 MR. SAWYER: Objection. He's arguing with the 19 witness 20 C.O. STUBCHAER: Yes. 21 MR. KEENE: I withdraw the question. 22 C.O. STUBCHAER: Sustained. 23 MR. KEENE: Okay. Let me now refer you to page ES 24 2-58. 25 MR. HUNN: ES -- CAPITOL REPORTERS (916) 923-5447 16664 1 MR. KEENE: 2-58, the discussion of the San Luis 2 Water District. That's the beginning of the discussion of 3 the San Luis Water District. We have a whole bunch of 4 maps and things in the plan. 5 MR. HUNN: Page 2-58, okay. 6 MR. KEENE: Now, that first paragraph that appears 7 at the bottom of the page after the heading, "2.2.16 San 8 Luis Water District," I ask you to read the sentence that 9 begins with, "All of the." 10 MR. HUNN: (Reading): "All of the 12,217 acres 11 located outside the authorized POU are encroachment lands 12 that were first irrigated using CVP water in 1975." 13 MR. KEENE: Now, I recognize that your errata sheet 14 changes that 12,217 to the 10,668 figure, but with that 15 change, is that sentence true? 16 MR. HUNN: With the knowledge we had at the time we 17 wrote this, yes, it was. 18 MR. KEENE: When you wrote this you indicated that 19 you had access to the exhibits that had been presented in 20 the hearings in March and April? 21 MR. HUNN: That's correct. 22 MR. KEENE: So in those exhibits that were presented 23 in March and April, particularly San Luis Water District 24 Exhibit Number 6, that indicates that there is 160 acres 25 which was annexed to the San Luis Water District in 1983. CAPITOL REPORTERS (916) 923-5447 16665 1 are you now indicating that that land was, in fact, 2 receiving water before it was annexed to the district in 3 1983? 4 MR. HUNN: No, I would not imply that. 5 MR. KEENE: Now, that exhibit also indicated there 6 was 142 acres which was annexed to the San Luis Water 7 District in 1989. Do you have information to suggest that 8 that land was receiving water prior to its annexation to 9 the District? 10 MR. HUNN: No, I do not. 11 MR. KEENE: Was there -- now, you had indicated in 12 response I believe to questions by Mr. Birmingham, that 13 you had interviewed the water contractors -- rather the 14 organization had interviewed the water contractors prior 15 to the preparation of the Environmental Impact Report and 16 had presented them with questionnaires with regard to when 17 different lands were subject to irrigation with CVP water? 18 MR. HUNN: That's correct. 19 MR. KEENE: Was there any of this 10,668 acres of 20 land which was being irrigated prior to 1975? 21 MR. HUNN: Were there any lands receiving water 22 prior to 1975? 23 MR. KEENE: Any of this 10,668 acres which the Final 24 Environmental Impact Report as modified by this errata 25 paper? CAPITOL REPORTERS (916) 923-5447 16666 1 MR. HUNN: Not that we're aware of. In fact, on 2 Page 2-58 there's a sentence that indicates prior to 3 receiving CVP the lands were cultivated in the winter and 4 dry land agriculture -- and were used for pasture. 5 MR. KEENE: Okay. But that speaks to prior to 6 receiving CVP water. My question is: Prior to 1975 were 7 any of the lands that are within that 10,668 acres 8 receiving CVP water? 9 MR. HUNN: Not to my knowledge. 10 MR. KEENE: Thank you. I've got no further 11 questions of this witness. 12 C.O. STUBCHAER: Okay. Staff -- was there anyone 13 else who wished to cross-examine? Staff have any 14 questions for this witness? 15 Ms. Leidigh. 16 ---oOo--- 17 CROSS-EXAMINATION OF STATE WATER RESOURCES 18 CONTROL BOARD STAFF 19 BY STAFF 20 MS. LEIDIGH: I just have a couple of questions. 21 One, Mr. Hunn, in referring to the red area on the San 22 Luis Water District map, Staff Exhibit 206, does that area 23 represent an area that has been added to the place of use 24 since the change petition was filed? 25 MR. HUNN: Yes. I believe these lands were added to CAPITOL REPORTERS (916) 923-5447 16667 1 the place of use in 1997. 2 MS. LEIDIGH: Okay. And was that under a separate 3 petition? 4 MR. HUNN: Yes, it was. 5 MS. LEIDIGH: Than the one that's here? 6 MR. HUNN: And a separate action, yes. 7 MS. LEIDIGH: Okay. Thank you. The other question 8 I wanted to ask for clarification is: Is the Final EIR 9 additive to the Draft EIR? In other words, does it 10 require both of those documents in order to constitute a 11 Final EIR? 12 MR. HUNN: Yes, it does. 13 MS. LEIDIGH: Thank you. I think that's all I have. 14 C.O. STUBCHAER: Okay, Ms. Leidigh. 15 Mr. Brown. 16 ---oOo--- 17 CROSS-EXAMINATION OF THE STATE RESOURCES CONTROL 18 BOARD STAFF 19 BY THE BOARD 20 C.O. BROWN: Do you have any knowledge of any lands 21 that was previously irrigated with CVP water that is now 22 not included in the expanded place of use? 23 MR. HUNN: No, none to my knowledge. 24 C.O. BROWN: Okay. That's all, Mr. Chair. 25 C.O. STUBCHAER: Okay. That concludes the CAPITOL REPORTERS (916) 923-5447 16668 1 examination. Mr. Hunn, thank you very much. 2 MR. BIRMINGHAM: Is there any redirect? 3 C.O. STUBCHAER: No. 4 MR. SAWYER: No. No, there's not. 5 C.O. STUBCHAER: Excuse me. I thought you wanted to 6 give redirect. 7 Yes. Mr. Sawyer, do you have any redirect? 8 MR. SAWYER: I do not have any redirect. 9 C.O. STUBCHAER: Thank you, Mr. Birmingham. 10 Now, the rebuttal testimony. Mr. Keene. 11 MR. KEENE: There is new information on this map on 12 the wall. I think I'd like to see it closer. Can we take 13 a few minutes -- 14 C.O. STUBCHAER: Mr. Brown, your wish is granted. 15 We'll take a ten-minute break. 16 (Off the record from 3:01 p.m. to 3:03 p.m.) 17 C.O. STUBCHAER: Okay. Back on the record. 18 Ready with your rebuttal evidence, Mr. Keene? 19 MR. KEENE: Yes, Mr. Stubchaer. I call Mr. Brian 20 Ketelhut, who had testified as a rebuttal witness earlier 21 in the proceeding. So he's already under oath. 22 C.O. STUBCHAER: Thank you. Good afternoon. 23 MR. KETELHUT: Hello. 24 ---oOo--- 25 REBUTTAL TESTIMONY BY SAN LUIS WATER DISTRICT CAPITOL REPORTERS (916) 923-5447 16669 1 BY MR. KEENE 2 MR. KEENE: Mr. Ketelhut, for the record, I assume 3 you're still the general manager for the San Luis Water 4 District? 5 MR. KETELHUT: Yes, I am. 6 MR. KEENE: Okay. Before we go any further, the map 7 that we talked about, the paper map on the wall, Exhibit 8 2.2.16 that's on the stand, that red portion of that, do 9 you know what that is, what that land is? 10 MR. KETELHUT: Yes. That's what we refer to as the 11 Agua Fria Inclusion. 12 MR. KEENE: Who's the lead agency on the 13 Environmental Impact Report on the Agua Fria annexation? 14 MR. KETELHUT: The San Luis Water District. 15 MR. KEENE: And that's, in fact, an M&I project? 16 MR. KETELHUT: Yes. 17 MR. KEENE: Thank you. 18 C.O. STUBCHAER: Did you identify this exhibit, 19 Mr. Keene? 20 MR. KEENE: Well, the one on the projector now, no. 21 I was just talking about Exhibit 206. I haven't gotten to 22 that one yet. 23 C.O. STUBCHAER: I'm sorry. 24 MR. KEENE: I will identify that one when we get to 25 it. CAPITOL REPORTERS (916) 923-5447 16670 1 C.O. STUBCHAER: Okay. 2 MR. KEENE: Now, during the preparation of the Draft 3 Environmental Impact Report, did the State Water Resources 4 Control Board ever ask you for -- whether or not there 5 were any existing Environmental Impact Reports for 6 agricultural development within the San Luis Water 7 District? 8 MR. KETELHUT: No, they did not. 9 MR. KEENE: Thank you. Okay. Perhaps, we can get 10 the witness Exhibit 2-A, the Final Environmental Impact 11 Report. 12 MR. BIRMINGHAM: I have a copy of it, I'll be happy 13 to loan Mr. Ketelhut. 14 MR. KEENE: Mr. Ketelhut, could you, please, turn to 15 Page 2-58 which is Section 2.2.16 of Exhibit 2-A. 16 MR. KETELHUT: Yes. 17 MR. KEENE: I'll direct your attention to the same 18 sentence that I was discussing a moment ago with the State 19 Water Board's witness that begins, "All of the," and we 20 know that's 10,668 acres. Could you, please, read that 21 sentence? 22 MR. KETELHUT: (Reading): "All of the 10,668 acres 23 located outside the authorized POU, are encroachment lands 24 that were first irrigated using CVP water in 1975." 25 MR. KEENE: Is that sentence true? CAPITOL REPORTERS (916) 923-5447 16671 1 MR. KETELHUT: No, it's not. 2 MR. KEENE: Okay. I've asked you to place on the 3 overhead projector the first of the maps which has been 4 designated as San Luis Water District Exhibit 11. 5 Are you familiar with this document? 6 MR. KETELHUT: Yes, I am. 7 MR. KEENE: Could you, please, -- let me give you 8 the pointer. 9 MR. WILCOX: This says 12. 10 C.O. STUBCHAER: Yes, ours says 12. 11 MR. KEENE: I'm sorry. Okay, it's 12. I lost a 12 number somewhere. I'm not sure what 11 is. That's 12 13 then. 14 Okay. San Luis Water District Exhibit 12, could 15 you, please, tell us, Mr. Ketelhut, what is depicted by 16 the blue crosshatching, which I believe is in the far left 17 as we look at it. I believe that's the northern part of 18 the land. 19 MR. BIRMINGHAM: Excuse me. May I interrupt for a 20 moment? 21 C.O. STUBCHAER: Mr. Birmingham. 22 MR. KEENE: Okay. Anyway, could we please -- let me 23 go back to that same question. The blue area, what is 24 that area? 25 MR. KETELHUT: The blue area, which is located in CAPITOL REPORTERS (916) 923-5447 16672 1 the northern portion of the district, is -- first of all 2 let me back up. What the district has done is taken the 3 maps provided by the State Board and attempted to break 4 down the 10,668 acres into areas of significance, if you 5 will. 6 The blue area located in the far northern portion 7 of our district resides in a portion of the district that 8 we refer to as the "Direct Service Area." Meaning that 9 it's not within an improvement district. There is not a 10 district distribution system for this area. Private 11 distribution systems are used to transport water from 12 either the Delta-Mendota, or the San Luis Canal to this 13 property. 14 The blue area shown on this map has been in the 15 district for quite sometime. I can't give you the exact 16 time, but it was far before the area in green, for 17 example, which was brought in later. 18 MR. KEENE: Okay. Was the blue area within the 19 District's boundaries prior to the 1970's? 20 MR. KETELHUT: Yes, it was. 21 MR. KEENE: Okay. Now, this green area that is 22 shown on this map, can you tell me what it is? 23 MR. KETELHUT: The green area in this section and 24 also here, is our Improvement District Number 3 of the San 25 Luis Water District. CAPITOL REPORTERS (916) 923-5447 16673 1 MR. KEENE: Okay. And that portion -- well, is that 2 all of Improvement District Number 3, or is that only a 3 portion? 4 MR. KETELHUT: That's just that portion of 5 Improvement District Number 3 that's identify as 6 encroachment land. 7 MR. KEENE: And been identified in Final 8 Environmental Impact Report as encroachment land? 9 MR. KETELHUT: Yes. 10 MR. KEENE: Okay. Now, perhaps, you can move the 11 map further down so we can see this corner off to the 12 right. Could you, please, tell me what that brown square 13 is there? 14 MR. KETELHUT: The brown quarter section is also 15 within Improvement District Number 3. The significance of 16 that quarter section is that it was brought in to the 17 District in 1983 after the rest of this green area was 18 annexed to the District. 19 MR. KEENE: So was that brown quarter section 20 receiving water in 1975? 21 MR. KETELHUT: No, it was not. 22 MR. KEENE: Was it receiving water at any time prior 23 to its annexation to the District? 24 MR. KETELHUT: To not my knowledge, no. 25 MR. KEENE: Okay. Would you go on to map two, CAPITOL REPORTERS (916) 923-5447 16674 1 please. Now, this is identified as Exhibit 12, map two. 2 Could you, please, tell us what it is that we're looking 3 at? 4 MR. KETELHUT: I apologize, the legend got cut off a 5 little there. The area in green, which is wisteria on 6 this map is Improvement District Number 2. The area in 7 red is property located within Improvement District Number 8 1 of the District. That includes this area and two tiny 9 little slivers up in this portion of the district. 10 And the area in brown represents property that is 11 currently within Improvement District Number 2, but with 12 the piece that we previously looked at, these three 13 parcels were annexed to the District after the rest of the 14 improvement districts. In these three cases the year was 15 1989. 16 MR. KEENE: Okay. Now, you say that the area in 17 green and I believe the area in brown is Improvement 18 District Number 2. Does that include all of Improvement 19 District Number 2? 20 MR. KETELHUT: No, it does not. It's just that 21 portion within the area defined as encroachment lands. 22 MR. KEENE: In the Final Environmental Impact? 23 MR. KETELHUT: That's correct. 24 MR. KEENE: Now, this area in red up here, is that 25 all of Improvement District Number 1? CAPITOL REPORTERS (916) 923-5447 16675 1 MR. KETELHUT: No, it's not. 2 MR. KEENE: Is that just the portion that's in the 3 encroachment areas in the Final Environmental Impact 4 Report? 5 MR. KETELHUT: Yes. 6 MR. KEENE: Now, this area in red, was that area 7 receiving water prior to 1975? 8 MR. KETELHUT: Yes, it was. 9 MR. KEENE: Okay. And the areas that were 10 designated in brown as having been annexed in the 1980's, 11 were they receiving water -- CVP water prior to their 12 annexation to the District? 13 MR. KETELHUT: Not to my knowledge, no. 14 MR. KEENE: Okay. Do you have any reason to believe 15 that they were? 16 MR. KETELHUT: No. 17 MR. KEENE: Thank you. Could you go on to San Luis 18 Water District Exhibit 13. Would you, please, tell us 19 what this exhibit depicts? 20 MR. KETELHUT: This is a numerical breakdown of the 21 maps that we just looked at taking the 10,668 acres and 22 dividing it up into four distinct areas within the 23 District. Again, the direct service area and Improvement 24 Districts 1, 2, and 3. 25 MR. KEENE: Okay. And as I understand your prior CAPITOL REPORTERS (916) 923-5447 16676 1 testimony, the area within the direct service area and the 2 area within Improvement District Number 1 were receiving 3 water prior to 1970; is that correct? 4 MR. KETELHUT: That is correct. 5 MR. KEENE: Okay. I don't think I have any further 6 questions about that exhibit. I'd ask you to put up 7 Exhibit Number 14. Now, we have previously submitted San 8 Luis Water District Exhibit Number 7, which looks 9 curiously like this document. 10 Could you, please, tell us what this document is? 11 MR. KETELHUT: This is a revision of the previous 12 document that was submitted reflecting the fact that 13 approximately a thousand additional acres have been 14 defined as encroachment lands in the Final EIR as compared 15 to the Draft EIR. 16 MR. KEENE: Now, this thousand additional acres, 17 that's in addition to but not including this Agua Fria 18 Development, the 1500 acre M&I? 19 MR. KETELHUT: That is correct. These numbers don't 20 include the Agua Fria. 21 MR. KEENE: So the explanation that's been going 22 through in Mr. Sagouspe's testimony with regard to the 23 preparation of the San Luis Water District Exhibit 7 in 24 terms of what that depicts, I assume that same procedure 25 was used to create San Luis Water District Exhibit 14? CAPITOL REPORTERS (916) 923-5447 16677 1 MR. KETELHUT: That's correct. 2 MR. KEENE: Okay. I don't think I have any further 3 questions about that. Between 1970 and 1974, were there 4 any inclusions or exclusions to the San Luis Water 5 District? 6 MR. KETELHUT: No. 7 MR. KEENE: Okay. And so the San Luis Water 8 District Exhibit 3, which is dated 1974, does that 9 accurately depict, to your knowledge, the District 10 boundaries as they existed in 1970? 11 MR. KETELHUT: Yes, but let me clarify. There may 12 have been an inclusion in '72, but it would have affected 13 the eastern boundary of the District, which has nothing to 14 do with the matter at hand in terms of the place of use. 15 MR. KEENE: Okay. I'm sorry, I mentioned Exhibit 7, 16 but I failed to mention Exhibit 6. Exhibit 6 is also a 17 list of parcels of the District that also has some summary 18 numbers. 19 Were you able to create a new version of Exhibit 20 6 as you did for Exhibit 7 which shows the accurate 21 acreage in light of the new -- or the addition of this 22 additional 1,000 acres? 23 MR. KETELHUT: We did not recreate Exhibit 6. We 24 dealt just with the summary information in Exhibit 7. 25 MR. KEENE: And why is that that you did not create CAPITOL REPORTERS (916) 923-5447 16678 1 an Exhibit 7? 2 MR. KETELHUT: The detailed information in Exhibit 6 3 is parcel based. The maps provided by the Bureau -- 4 excuse me, by the State Board do not have parcel 5 information. So my direction to staff was to work with 6 the map provided by the State Board as the official map. 7 And we felt that trying to introduce parcel information 8 over that would not be very accurate. So we made no 9 attempt to concentrate on parcel-by-parcel data. 10 MR. KEENE: Okay. I believe I've got no further 11 questions of this witness. 12 C.O. STUBCHAER: All right. Who wishes to 13 cross-examine Mr. Ketelhut? Mr. Birmingham. 14 MR. KEENE: Aren't we going to draw cards? 15 C.O. STUBCHAER: I have a two-headed coin if that 16 would suffice. 17 ---oOo--- 18 CROSS-EXAMINATION OF SAN LUIS WATER DISTRICT 19 BY WESTLANDS WATER DISTRICT 20 BY MR. BIRMINGHAM 21 MR. BIRMINGHAM: Good afternoon, Mr. Ketelhut. I 22 have just a few questions. Can we put up map Number 1 of 23 San Luis Exhibit 12, please. 24 In response to a question by Mr. Keene, you 25 stated that the blue area that was depicted on the CAPITOL REPORTERS (916) 923-5447 16679 1 left-hand side of Map 1 of Exhibits 12, was in the 2 district prior to 1970. When I say, "district," I mean 3 San Luis Water District. Do you recall that testimony? 4 MR. KETELHUT: Yes. 5 MR. BIRMINGHAM: Did the area that's depicted in 6 blue on San Luis Water District Exhibit 12, Map 1, receive 7 water prior to 1970? 8 MR. KETELHUT: It may have. I cannot verify with 9 certainty on a parcel-by-parcel basis in that particular 10 area whether it received water. 11 MR. BIRMINGHAM: The information that is contained 12 in Exhibit 13, Exhibit 13 refers to the creation of 13 annexation of lands to San Luis Water District; is that 14 correct? 15 MR. KETELHUT: This documents the breakdown of the 16 10,668 acres among the various delivery areas in the 17 district. 18 MR. BIRMINGHAM: Well, there is a notation on San 19 Luis Water District Exhibit 13 that states, "Approximate 20 acres within I.D. 2: 2,622." Do you see that? 21 MR. KETELHUT: Yes. 22 MR. BIRMINGHAM: And underneath it there's a 23 notation, "Covered by 1974 EIR 2,480 acres." 24 Do you see that notation? 25 MR. KETELHUT: Yes. CAPITOL REPORTERS (916) 923-5447 16680 1 MR. BIRMINGHAM: Now, the 1974 EIR, that was an 2 Environmental Impact Report prepared under CEQA? 3 MR. KETELHUT: Yes. 4 MR. BIRMINGHAM: And was there any litigation 5 challenging the adequacy of the Environmental Impact 6 Report that was prepared by San Luis Water District in 7 1974 concerning the annexation of this 2,480 acres to your 8 district? 9 MR. KETELHUT: No, there's no litigation. And if I 10 could just clarify. The EIR that was prepared analyzed 11 the affects of the construction of the delivery system and 12 the delivery of water to those acres. That acreage was 13 already in the district at the time of the EIR. 14 MR. BIRMINGHAM: And you said that it analyzed the 15 affects of constructing a distribution system and 16 delivering Central Valley Project water to these lands? 17 MR. KETELHUT: That's correct. 18 MR. BIRMINGHAM: Now, under the notation on San Luis 19 Water District Exhibit 13 approximate acres within I.D. 3, 20 it makes reference to a 1974 EIR. Is that the same 21 document? 22 MR. KETELHUT: It was the same document, yes. 23 MR. BIRMINGHAM: And that document analyzed the 24 impacts of constructing a distribution system and 25 delivering Central Valley Project water to the 6,772 acres CAPITOL REPORTERS (916) 923-5447 16681 1 that were in Improvement District Number 3 at the time the 2 document was prepared? 3 MR. KETELHUT: Yes. And, again, let me clarify. 4 The environmental document covered acreages in excess of 5 the 2480 for I.D. 2 and the 6772 for I.D. 3. The 6 improvement districts were each larger than these 7 respective acres. These are just acres defined as 8 encroachment in the Final EIR. 9 MR. BIRMINGHAM: When you say the Final EIR, you're 10 talking about State Board Staff Exhibit 2? 11 MR. KETELHUT: Yes. 12 MR. KEENE: 2-A. 13 MR. BIRMINGHAM: Going back to my question about the 14 1974 EIR, Mr. Keene, what is the number of that document? 15 MR. KEENE: It is San Luis Water District Exhibit 16 003. 17 MR. BIRMINGHAM: With respect to San Luis Water 18 District 003, Mr. Ketelhut, you said there was no judicial 19 challenges to the adequacy of that document? 20 MR. KETELHUT: No. 21 MR. KEENE: For clarification as general counsel of 22 San Luis it's public record there was, in fact, a 23 validation action and nobody responded to the subject 24 matter. 25 MR. BIRMINGHAM: Let me ask the question I asked CAPITOL REPORTERS (916) 923-5447 16682 1 about litigation concerning the adequacy of the 2 environmental review document: 3 Mr. Ketelhut, do you know if there was a 4 validation action concerning the annexation of the lands 5 in Improvement District 2 and Improvement District 3? 6 C.O. STUBCHAER: Mr. Campbell. 7 MR. CAMPBELL: Mr. Chairman, I'd like to object on 8 two grounds. First, as stated in the hearing notice in 9 this portion of the hearing the adequacy of the Final EIR 10 under the California Water Quality Act is not an issue in 11 this hearing. And number two it states, 12 "Cross-examination will be limited to the new information 13 in the Final EIR's." And it states in the Board's hearing 14 notice that the only new information are the revised maps. 15 So -- 16 MR. BIRMINGHAM: I'll withdraw the question. 17 C.O. STUBCHAER: All right. 18 MR. BIRMINGHAM: Mr. Ketelhut, the maps that are in 19 the Final Environmental Impact Report, Exhibit 2-A, that 20 pertain to San Luis Water District, that would be Figure 21 2-22, do those maps analyze impacts resulting from the 22 delivery of CVP water to encroachment lands that were 23 analyzed in the 1974 Environmental Impact Report? 24 MR. KETELHUT: Yes. 25 MR. BIRMINGHAM: I'd like to draw your attention, CAPITOL REPORTERS (916) 923-5447 16683 1 Mr. Ketelhut, to State Board Exhibit 206. And after 2 you've done that, let me know. 3 MR. KETELHUT: I've already reviewed the map. 4 MR. BIRMINGHAM: Would you compare the map, State 5 Board Exhibit 206 with Figure 2-22 from Staff Exhibit 2-A? 6 MR. KETELHUT: There are two differences that I'm 7 aware of in the southern portion of the map. 8 MR. BIRMINGHAM: And what are those differences? 9 MR. KETELHUT: There is a -- appears to be a quarter 10 section area at the very southern edge of the district 11 that is not colored in. It's a white box right in the 12 Chounet Ranch. 13 MR. BIRMINGHAM: I'm going to mark with my blue pen 14 on State Board Exhibit 206, blue crosshatching in this 15 quarter section. Is the quarter section which I've just 16 marked on 206 the quarter section to which you're 17 referring? 18 MR. KETELHUT: Yes, it is. 19 MR. BIRMINGHAM: And to your knowledge, is that 20 quarter section currently served with CVP water? 21 MR. KETELHUT: There is a history of CVP water 22 deliveries to that piece of ground. 23 MR. BIRMINGHAM: So that piece of ground has 24 received CVP water? 25 MR. KETELHUT: Yes, it has. CAPITOL REPORTERS (916) 923-5447 16684 1 MR. BIRMINGHAM: You said there were two 2 differences. We just identified one. What is the other 3 difference between Exhibits 206 and Figure 2-22 in Exhibit 4 2-A? 5 MR. KETELHUT: There is a triangle piece of ground 6 north of the one that you marked and to the west that is 7 not reflected on Map 2-22. 8 MR. BIRMINGHAM: Could you step to the map, Exhibit 9 206, and point to the area to which you're referring? 10 MR. KETELHUT: (Indicating). 11 MR. BIRMINGHAM: May the record reflect that 12 Mr. Ketelhut has pointed to an area within range 14 South, 13 11 East, that is to the northwest of the area depicted in 14 green immediately to the north of the area which I just 15 depicted with blue crosshatching on State Board Exhibit 16 206? 17 C.O. STUBCHAER: Mr. Birmingham, while you're there, 18 could we ask the witness for the approximate areas of 19 those two areas you just delineated, if known? 20 MR. BIRMINGHAM: Mr. Ketelhut, what is the 21 approximate area of the land which I have placed blue 22 crosshatching on Exhibit 206? 23 MR. KETELHUT: 160 acres. 24 MR. BIRMINGHAM: And what is the approximate area of 25 the triangle to the northwest of the area which I've CAPITOL REPORTERS (916) 923-5447 16685 1 depicted in blue crosshatching on Exhibit 206? 2 MR. KETELHUT: Approximately 75 acres. 3 MR. BIRMINGHAM: Has that 75 acres received CVP 4 water? 5 MR. KETELHUT: Yes, it has. 6 MR. BIRMINGHAM: I have no further questions. 7 C.O. STUBCHAER: All right. Staff have any 8 questions of this witness? 9 Ms. Leidigh. 10 MS. LEIDIGH: Yes, I have a few questions. 11 ---oOo--- 12 CROSS-EXAMINATION OF SAN LUIS WATER DISTRICT 13 BY STAFF 14 MS. LEIDIGH: Let's do the last one first. You were 15 identifying some acreage that is not identified on Staff 16 Exhibit 206 and you said that it has a history of 17 receiving CVP water. My question is: 18 Does it currently receive CVP water? 19 MR. KETELHUT: No. 20 MS. LEIDIGH: When was it last served? 21 MR. KETELHUT: I can't state specifically. 22 MS. LEIDIGH: Within the last five years? 23 MR. KETELHUT: I believe so, yes. 24 MS. LEIDIGH: In the last two years? 25 MR. KETELHUT: I really can't say for sure, I'd have CAPITOL REPORTERS (916) 923-5447 16686 1 to check records. 2 MS. LEIDIGH: Okay. Is there a particular reason 3 why each of these parcels has not received water in the 4 last year or two? 5 MR. KETELHUT: The two parcels in question are 6 located outside of the District's boundaries. And in 7 order to deliver water in the past we've have to receive 8 permission from the Bureau of Reclamation on an annual 9 basis to deliver water. 10 So whether or not it receives water is a function 11 of whether the farmer requests water to be delivered to 12 that location. And in the event they do, the Bureau of 13 Reclamation, under the terms of our contract, approves a 14 delivery of water outside our boundaries. 15 MS. LEIDIGH: Okay. Thank you. And let's see, I 16 have a few more questions. Regarding the 1974 EIR, does 17 that EIR identify a need for approval of a change in place 18 of use by the State Water Board? 19 MR. KEENE: I'm going to object to the form of the 20 question. The document is in evidence. The document 21 speaks for itself. 22 C.O. STUBCHAER: Do you want to rephrase the 23 question? 24 MS. LEIDIGH: Was there any request for a change in 25 place of use in connection with the 1974 EIR that was CAPITOL REPORTERS (916) 923-5447 16687 1 directed to a change of the Bureau's place of use and came 2 to the State Water Board? 3 MR. KETELHUT: I don't know. 4 MS. LEIDIGH: Was the State Water Board identified 5 as the responsible agency in the 1974 EIR? 6 MR. KEENE: Same objection. The document speaks for 7 itself. 8 MR. CAMPBELL: May I -- 9 C.O. STUBCHAER: Mr. Campbell. 10 MR. CAMPBELL: -- add onto that? He was 11 specifically asked questions about the document, I think, 12 on both direct and cross-examination by Mr. Birmingham. 13 So I think that it's fair game for Ms. Leidigh to ask him 14 the same questions about his understanding of the 15 document. 16 MR. KEENE: None of the other questions had to do 17 with content of the documents other than whether or not 18 particular acreage was located within it, which involved 19 interpreting a map. 20 These questions have to do with the text of the 21 document, which is readily understandable to anybody who 22 reads it. I would also point out that among the exhibits 23 to the documents are letters to both Mr. Campbell's agency 24 and the predecessor agency, and I don't think the Water 25 Board existed in 1974, but I believe its predecessor did. CAPITOL REPORTERS (916) 923-5447 16688 1 C.O. STUBCHAER: Mr. Campbell. 2 MR. CAMPBELL: I would just like to add that 3 Counsel's description of the text of the document and the 4 maps and figures in the document is a distinction without 5 any difference. Other than that, I'll -- I have nothing 6 further to add. 7 C.O. STUBCHAER: The objection is overruled. 8 MR. KETELHUT: I don't know. 9 MS. LEIDIGH: Okay. Were you working for the 10 District in 1974? 11 MR. KETELHUT: No, I was not. 12 MS. LEIDIGH: How long have you been working for the 13 District? 14 MR. KETELHUT: I started with the District in 15 December of '91. 16 MS. LEIDIGH: Okay. And have you been general 17 manager for that full period of time? 18 MR. KETELHUT: Yes. 19 MS. LEIDIGH: Okay. You talked about an addition of 20 a thousand acres in respect to one of your exhibits. When 21 was that 1,000 acres added? 22 MR. KETELHUT: Between the previous version of the 23 EIR and the final version identified as Exhibit 2-A. 24 MS. LEIDIGH: In other words, after the Draft EIR 25 was released by the State Board and before the Board CAPITOL REPORTERS (916) 923-5447 16689 1 released the Final EIR -- 2 MR. KEENE: Objection. This line of questioning 3 mischaracterizes the testimony. The testimony -- 4 MS. LEIDIGH: -- isn't that correct? 5 MR. KEENE: The testimony was that the encroachment 6 area depicted in the Draft Environmental Impact Report and 7 the encroachment area depicted in the Final Environmental 8 Impact Report had a thousand acres difference. There was 9 no annexations or additions of a thousand acres to the 10 district. 11 C.O. STUBCHAER: Okay. 12 MS. LEIDIGH: Okay. Thank you. Let's see -- 13 C.O. STUBCHAER: Let me just, well, you're not a 14 witness, Mr. Keene, so it's hard to ask you a question. 15 But you were kind of testifying there. 16 Were those discretions in the map, Mr. Ketelhut, 17 to the best of your knowledge to conform the -- 18 MR. KETELHUT: Again, we cannot verify the precise 19 procedures used, but the maps produced by the State Board, 20 or the State Board's consultant differed between the draft 21 and the final version. 22 The map in the final version, particularly, in 23 the northern area of the district included significantly 24 more acreage than the draft version. There was some 25 reduction of acreage in the southern district. Overall, CAPITOL REPORTERS (916) 923-5447 16690 1 the approximate difference was a thousand acres 2 difference. 3 C.O. STUBCHAER: Do you object to the difference? 4 MR. KETELHUT: Yes, I do. 5 C.O. STUBCHAER: Okay. Ms. Leidigh. 6 MS. LEIDIGH: Thanks. I have one more question. 7 Coming back to this 1974 EIR, is it your understanding 8 that the 1974 EIR was prepared with a purpose that 9 included supporting a change of place of use of the 10 Central Valley Project service area of their approved 11 place of use under their water rights? 12 MR. KETELHUT: The 1974 EIR was, again, prepared for 13 the construction of distribution systems that involved a 14 loan from the Federal Bureau of Reclamation. It covered 15 the distribution of federal water to those grounds. 16 And the -- I don't believe this was tied 17 specifically to the EIR, but I'm unclear on that point. 18 The pumping plants associated with the distribution 19 systems were -- are project facilities of the CVP 20 constructed by the Federal Bureau of Reclamation. 21 So from a district's prospective, we were 22 certainly under the impression that obtaining financing 23 from the Bureau of Reclamation for the distribution system 24 and having the Federal Bureau of Reclamation constructing 25 the pumping plants to service that distribution system CAPITOL REPORTERS (916) 923-5447 16691 1 constituted approval to deliver water to those grounds. 2 MS. LEIDIGH: But from that I take it that you did 3 not have the understanding that the document was prepared 4 for the purpose of supporting a change in the Central 5 Valley Project water rights; is that correct? 6 MR. KETELHUT: I can't speak to what the specific 7 purpose may or may not -- whether the purpose included 8 that specific issue or not. 9 MS. LEIDIGH: Thank you. That's all I have. 10 C.O. STUBCHAER: Mr. Brown. 11 ---oOo--- 12 CROSS-EXAMINATION OF SAN LUIS WATER DISTRICT 13 BY THE BOARD 14 C.O. BROWN: Mr. Ketelhut, are you aware of any 15 lands within the District that have previously been 16 irrigated with CVP water that are now not included in the 17 expanded place of use? 18 MR. KETELHUT: No, I'm not. And with that answer 19 I'm assuming that you're referring to the map on the board 20 and I forget the exhibit number. 21 C.O. BROWN: No, not necessarily. Not with that 22 question. The question is: Are you aware of any lands 23 within your district that has previously been served with 24 CVP water that are not included in the expanded place of 25 use proposed? CAPITOL REPORTERS (916) 923-5447 16692 1 MR. KETELHUT: No, I'm not as long as the proposed 2 expanded place of use includes the two parcels referenced 3 earlier. 4 C.O. BROWN: Are those two parcels within the 5 district? 6 MR. KETELHUT: They're not in the district boundary. 7 C.O. BROWN: Why not? 8 MR. KETELHUT: I can't tell you for certain. Again, 9 there's a history of deliveries to the property. Because 10 of the uncertainty associated with the annual approvals, 11 the landowners of those two parcels requested that we 12 pursue a formal annexation to the district, which we 13 initiated approximately a year ago with the Bureau of 14 Reclamation. So they're not currently in the district, 15 but we submitted a request to annex that property. 16 C.O. BROWN: They requested to be annexed into your 17 district, have they? 18 MR. KETELHUT: Yes. 19 C.O. BROWN: And that's pending before the Bureau? 20 MR. KETELHUT: That's pending before the Bureau. I 21 don't know whether or not the Bureau has initiated any 22 action of the State Board at this point on that request. 23 C.O. BROWN: Have you requested them to expand the 24 place of use to include those 225 acres? 25 MR. KETELHUT: That was part of our -- as part of CAPITOL REPORTERS (916) 923-5447 16693 1 the application we stated that we understood that these 2 parcels may be outside the currently defined place of use 3 and we understood that it may require action by the State 4 Board in order for the Bureau to approve the annexation. 5 C.O. BROWN: Wouldn't it go the other way, wouldn't 6 the Bureau make the request to us? 7 MR. KETELHUT: Yes, that was the process, for 8 example, that was used on the Agua Fria Inclusion. The 9 Bureau said -- upon receiving our request said we cannot 10 process this, because it includes areas outside the 11 currently defined place of use. So we will now have to go 12 to the State Board and request a change in the place of 13 use before the Bureau can approve the annexation. 14 C.O. BROWN: How do you think this might be handled, 15 Mr. Chairman? 16 C.O. STUBCHAER: It sounds like we'll need to have 17 the Bureau request it since it's outside the district now. 18 C.O. BROWN: Have you pursued that with the Bureau 19 to have that included within the place of use in this 20 area? 21 MR. KETELHUT: We did not pursue that for this 22 hearing, based on the response that we received I believe 23 from the Bureau regarding the Agua Fria annexation. At 24 the time they were pursuing that annexation they requested 25 that property be included as part of this proceeding and CAPITOL REPORTERS (916) 923-5447 16694 1 that request was denied. 2 C.O. BROWN: Well, if I understand Mr. Stubchaer 3 correctly, the procedure would be for you to request the 4 Bureau of Reclamation to include that in the expanded 5 place of use for them to present it to this Board? 6 MR. KETELHUT: And we've done that. It's the 7 district's understanding that that would be a separate 8 proceeding and a separate action by the Board as it was 9 with the Agua Fria. We have no objections to including it 10 as part of this process, but the District pursued it with 11 the understanding that it would have to be a separate 12 action. 13 C.O. BROWN: That's all, Mr. Chairman. 14 C.O. STUBCHAER: Thank you. Any redirect, 15 Mr. Keene? 16 ---oOo--- 17 REDIRECT EXAMINATION OF SAN LUIS WATER DISTRICT 18 BY MR. KEENE 19 MR. KEENE: One item of redirect is that the 1974 20 Environmental Impact Report, San Luis Water District 003, 21 is there any pending litigation with regard to the 22 adequacy of that Environmental Impact Report? 23 MR. KETELHUT: No. 24 MR. KEENE: Are you aware of any ever having been 25 filed? CAPITOL REPORTERS (916) 923-5447 16695 1 MR. KETELHUT: No. 2 MR. KEENE: Thank you. Nothing further. 3 C.O. STUBCHAER: Any recross limited to the scope of 4 the redirect? Seeing none, okay. Thank you, 5 Mr. Ketelhut. 6 MR. KETELHUT: Thank you. 7 C.O. STUBCHAER: Thank you, Mr. Keene. 8 MR. KEENE: You're welcome. 9 C.O. STUBCHAER: I want to, before we proceed, when 10 I said good afternoon to the witness panel at the 11 beginning of this hearing, Mr. Howard was not at the table 12 and the record will show that. 13 Now, the subject of today's hearing has been 14 whether or not the EIR should be admitted into the record. 15 It was not on the adequacy of the EIR, but it's obvious 16 during the questioning and the testimony that it's 17 difficult to draw a distinction between the admissibility 18 and the adequacy. 19 The appropriate place to address the adequacy is 20 at our meeting on the 28th of December, but I'd like to 21 now give the opportunity for oral arguments regarding the 22 admissibility of this EIR, not the accuracy of it. 23 Ms. Whitney, did you want to say something? 24 MS. WHITNEY: I just wanted to remind Mr. Keene at 25 the end of the proceedings that he had entered exhibits CAPITOL REPORTERS (916) 923-5447 16696 1 into the record that he also will need to request to have 2 it accepted. 3 C.O. STUBCHAER: Thank you. 4 MR. KEENE: I request that. 5 C.O. STUBCHAER: All right. Is there any objection 6 to receiving Mr. Keene's exhibits into the record? Seeing 7 none they are accepted. Thank you, Ms. Whitney. 8 Anyway, so who would like to address the Board 9 regarding admittance, or why it should not be admitted on 10 this EIR? 11 Okay. Mr. Sawyer. 12 MR. SAWYER: Mr. Chairman, State Water Resources 13 Control Staff presented a brief on the admissibility of 14 Exhibit 1-E. I think the same arguments apply to Exhibit 15 2-A. The only reason I wanted to speak is, 16 notwithstanding your prior ruling, I do not believe 17 Exhibit 202, which was an amendment to Exhibit 2-A has, in 18 fact, been admitted into the record. I'm not sure about 19 201. But just for safety, I'd like to ask that Exhibits 20 2-A, 201, 202 and 206 be admitted into the record. 21 C.O. STUBCHAER: Could you give me those numbers, 22 again. 23 MR. SAWYER: 2-A, which is the Final -- 24 C.O. STUBCHAER: Right. 25 MR. SAWYER: 201, which was the statement of CAPITOL REPORTERS (916) 923-5447 16697 1 qualifications of Mr. Richard Hunn. There were no 2 objections, but I don't recall it was admitted. 202, 3 which was a correction to 2-A. And there were objections 4 based -- basically, it's tied to 2-A. And 206 which was 5 presented today. 6 C.O. STUBCHAER: All right. We'll not rule on that 7 until we hear from the other parties. 8 Mr. Campbell. 9 MR. CAMPBELL: Matthew Campbell, Deputy Attorney 10 General on behalf of the Department of Fish and Game. 11 Like the State Water Resources Control Board, the 12 Department of Fish and Game has submitted a brief 13 regarding acceptance into evidence of State Water 14 Resources Control Board Exhibit 1-E. 15 And in that brief we noted those arguments would 16 apply equally to the acceptance of SWRCB Staff Exhibit 17 2-A, at the conclusion of this hearing, which we've now 18 reached. And I believe that -- I don't believe there's 19 any need to restate those arguments. I will, certainly, 20 do so if that's the pleasure of the Chairman. 21 C.O. STUBCHAER: No. All the Board members read all 22 the arguments. 23 MR. CAMPBELL: And I'd just also -- 24 MR. KEENE: I have an objection, Mr. Stubchaer. San 25 Luis Water District was a party only to Phase VII. We've CAPITOL REPORTERS (916) 923-5447 16698 1 not been served with any of these briefs. 2 C.O. STUBCHAER: You will have your opportunity, 3 Mr. Keene. 4 MR. KEENE: Okay. 5 C.O. STUBCHAER: Mr. Campbell. 6 MR. CAMPBELL: I would like to note that we have 7 served San Luis Water District by mail, which is the 8 required method of service in this proceeding. I'd also 9 like to point out that the Board issued an order today 10 dated December 21st regarding the acceptance of State 11 Water Resources Control Board Staff Exhibit 1-E into 12 evidence. And I would say that the reasoning and ruling 13 of this order would apply equally to the acceptance of 14 State Water Resources Control Board's Staff Exhibit 2-A. 15 Thank you. 16 C.O. STUBCHAER: Mr. Campbell. 17 Now, Mr. Keene. 18 MR. KEENE: I would point out that the -- that while 19 Diane Rathmann is my partner and represents a number of 20 water districts and did participate in the earlier phases, 21 was served with this document. I am the attorney for San 22 Luis Water District, not Ms. Rathmann and I was never 23 served with this document and have not seen it until 24 today, because the mail that is addressed to her, goes to 25 her in my office and the mail that's addressed to me goes CAPITOL REPORTERS (916) 923-5447 16699 1 to me. 2 Now, I object to the introduction into evidence 3 of the document that's been identified as Exhibit 2-A, 4 because it's not evidence. It is summary information. To 5 the extent that it is summary information, it should not 6 be received as evidence. I know that all of this argument 7 was made on I-A, but I believe it belongs in the record of 8 Phase VII as well. 9 And that is simply because the document itself is 10 hearsay. It's not an official record of this Board unless 11 and until the Board certifies it. Once it's been 12 certified, then, at that point the document itself is part 13 of the record, but it's not an exhibit in the record. It 14 is not an assertion of the truth of the matter asserted. 15 In fact, the document contains several misstatements, some 16 of which were brought to light today. 17 There is one sentence in there in regard to the 18 San Luis Water District that is absolutely, positively not 19 true. It says that all of the 10,668 acres started 20 receiving water in 1975. None of it started receiving 21 water in 1975. A good deal of it started receiving water 22 before that date. Some of it started receiving water in 23 '76, some in '83, some in '89. 24 And the author of the document sat here and 25 testified that he did not have any other information that CAPITOL REPORTERS (916) 923-5447 16700 1 indicated that that sentence was true. In essence, he 2 admitted that it was false. It was a misunderstanding, a 3 misstatement, whatever, it's not true. 4 Additionally, the document itself -- at this 5 point this case seems to be about nothing but maps. I am 6 confused, because the map of the San Luis Water District 7 that is in that document as Exhibit 2-22 appears to be 8 inconsistent with this map over here, which is Exhibit 9 206. 10 At this point I realize that it is the E map that 11 is the going to become the official map. And I don't know 12 whether Exhibit 206, or whether the Figure 2-22 in the 13 Environmental Impact Report, the Final Environmental 14 Impact Report is, in fact, an accurate representation of 15 the E map. 16 But the basic argument that I have against the 17 presentation, or the acceptance into evidence of Exhibit 18 2-A is that, one, it has absolutely no probative value, 19 simply because it is not sworn testimony by anybody. It 20 is not an official record. It is, in essence, hearsay. 21 And insofar as it contains summaries of studies, 22 then those studies can be accepted and the Board can take 23 judicial notice of them. But it in and of itself should 24 not be accepted as an exhibit. 25 Again, I realize that I'm fighting an uphill CAPITOL REPORTERS (916) 923-5447 16701 1 battle simply because you've already ruled on the 2 Environmental Impact Report in other phrases, and I 3 recognize that you overruled those very same arguments, 4 but I still believe that they should be restated. 5 C.O. STUBCHAER: Thank you, Mr. Keene. 6 We carefully considered the arguments in the 7 previous matter and I think that the reasoning on that 8 issue also applies here. And staff just handed me a note 9 that Ms. Rathmann is the attorney of record for the San 10 Luis Water District. Anyway, be that as it may -- 11 C.O. STUBCHAER: All right. You may respond. We 12 haven't been given notice that -- 13 MR. KEENE: I have no idea why your records would 14 indicate Ms. Rathmann is the attorney for the San Luis 15 Water District. She's never represented the San Luis 16 Water District. The general counsel to the San Luis Water 17 District is Mr. Jess Telus. The Deputy General Counsel to 18 the San Luis Water District is me. Ms. Rathmann, I don't 19 believe has ever represented the San Luis Water District. 20 C.O. STUBCHAER: All right. 21 MR. CAMPBELL: It's my understanding that in our 22 circle that the Department of Fish and Game uses the 23 service list that's provided by the State Water Resources 24 Control Board. So I believe it's incumbent if that 25 service list is incorrect, I believe it's incumbent on the CAPITOL REPORTERS (916) 923-5447 16702 1 San Luis Water District to provide updated information to 2 the Board so then the Board can update its service list. 3 MR. KEENE: I was not on the service list that I was 4 just handed, but I was on the service list that everybody 5 used in Phase VII, because all of those documents were 6 addressed to me and I do appear on that list. 7 C.O. STUBCHAER: We will try to get this matter 8 resolved so you appear on the list. 9 MR. KEENE: Thank you. 10 C.O. STUBCHAER: All right. The ruling is that 11 Exhibits 2-A, 201, 202 and 206 are accepted into evidence. 12 Is there anything further to come before this 13 hearing? If not, we are adjourned. 14 (The proceedings concluded at 3:59 p.m.) 15 ---oOo--- 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 16703 1 REPORTER'S_CERTIFICATE __________ ___________ 2 3 STATE OF CALIFORNIA ) ) ss. 4 COUNTY OF SACRAMENTO ) 5 I, MARY R. GALLAGHER, certify that I was the 6 Official Court Reporter for the proceedings named herein, 7 and that as such reporter I reported in verbatim shorthand 8 writing those proceedings; that I thereafter caused my 9 shorthand writing to be reduced to typewriting, and the 10 pages numbered 16615 through 16704 herein constitute a 11 complete, true and correct record of the proceedings. 12 IN WITNESS WHEREOF, I have subscribed this 13 certificate at Sacramento, California, on this 28th day of 14 December, 1999. 15 16 ________________________________ MARY R. GALLAGHER, CSR #10749 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 16704