STATE WATER RESOURCES CONTROL BOARD SECRETARY OF STATE ARCHIVES COMPLEX FIRST FLOOR AUDITORIUM SACRAMENTO, CALIFORNIA DECEMBER 28, 1999 REPORTED BY: ESTHER F. WIATRE CSR NO. 1564 CAPITOL REPORTERS (916) 923-5447 1 APPEARANCES 2 BOARD: 3 JAMES M. STUBCHAER, CHAIRMAN MARY JANE FORSTER 4 JOHN W. BROWN ARTHUR G. BAGGET, JR. 5 STAFF: 6 WALT PETIT 7 THOMAS HOWARD VICTORIA WHITNEY 8 COUNSEL: 9 WILLIAM ATTWATER, ESQ. 10 BARBARA LEIDIGH, ESQ. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 1 AUDIENCE 2 PAGE GREG ZLOTNICK ..................................... 22 3 THOMAS BIRMINGHAM ................................. 25 STEVEN CHAPPELL ................................... 36 4 JANET GOLDSMITH ................................... 38 LANELL LITTLE ..................................... 42 5 MARK EMMERSON ..................................... 48 SANFORD KOZLEW .................................... 50 6 GREG SAWYERS ...................................... 51 CHRISTOPHER CAMPBELL .............................. 55 7 PATRICK PORGANS ................................... 60 GREG WILKINSON .................................... 67 8 JEANNE ZOLEZZI .................................... 75 GREG THOMAS ....................................... 86 9 ALAN LILLY ........................................ 89 JOHN HERRICK ...................................... 96 10 AFTERNOON SESSION 11 DANTE JOHN NOMELLINI ............................. 107 12 THOMAS SHEPHARD .................................. 116 TIMOTHY O'LAUGHLIN ............................... 121 13 DAVE ANDERSON .................................... 125 DAN GALLERY ...................................... 133 14 MICHAEL JACKSON .................................. 134 MATTHEW CAMPBELL ................................. 139 15 PAUL SIMMONS ..................................... 151 VIRGINIA CAHILL .................................. 153 16 PAUL MINASIAN .................................... 158 CLIFFORD SCHULZ .................................. 162 17 ERNEST CONANT .................................... 168 ROBERT MADDOW .................................... 172 18 DAN SUYEYASU ..................................... 179 FRED ETHERIDGE ................................... 184 19 ALF BRANDT ....................................... 188 THOMAS KEENE ..................................... 199 20 KENNETH ROBBINS .................................. 206 ARTHUR GODWIN .................................... 209 21 DAVID ALADJEM .................................... 210 MICHAEL SEXTON ................................... 212 22 23 ---oOo--- 24 25 CAPITOL REPORTERS (916) 923-5447 3 1 SACRAMENTO, CALIFORNIA 2 TUESDAY, DECEMBER 28, 1999, 9:00 A.M. 3 ---oOo--- 4 CHAIRMAN STUBCHAER: Good morning. Welcome to the 5 December 28th meeting of the State Water Resources Control 6 Board. 7 I am Jim Stubchaer. To my right is Board Member John 8 Brown. 9 MEMBER BROWN: Good morning. 10 CHAIRMAN STUBCHAER: To my left is Vice Chair Mary Jane 11 Forster. 12 MEMBER FORSTER: Morning. 13 CHAIRMAN STUBCHAER: And Board Member Art Bagget. 14 The Board will be assisted by its executive staff at 15 the staff table. Walt Pettit, Executive Director. Tom 16 Howard. Vickie Whitney from the Bay Delta unit. Barbara 17 Leidigh and Bill Attwater from the Chief Counsel's Office 18 and the Chief Counsel. 19 If you wish to address the Board this morning, please 20 fill out a blue card. Many of you have done this already. 21 They are available at the table by the entryway and at the 22 staff table, too. 23 We do have a quorum present. 24 The first item on the agenda is the public forum. Any 25 member of the public may address the Board and ask questions CAPITOL REPORTERS (916) 923-5447 4 1 of the Board relating to any matter in the Board's 2 jurisdiction, providing the matter is not in the Board's 3 agenda or pending before the Board or the Regional Board. 4 I have no cards for the public forum. 5 Is there anyone who wishes to address the Board in the 6 public forum? 7 Seeing none, we will go on to Item Agenda Number 1: 8 Proposed water right order regarding Natomas Central Mutual 9 Water Company's petition for a temporary water transfer. 10 This matter was continued from the December 15th 11 meeting to allow the Board Members to consider comments. It 12 is on agenda today for Board discussion and vote only. As 13 previously announced, no further public input will be 14 allowed. 15 Do Board Members have any discussion? 16 Is there a motion? 17 MEMBER BROWN: I will make a motion we adopt the item, 18 Mr. Chairman. 19 MEMBER FORSTER: Second. 20 CHAIRMAN STUBCHAER: It's been moved and seconded to 21 adopt the order with the errata sheet as amended. 22 Does any Board Member wish to have detail on the errata 23 sheets? 24 All right. All in favor of the motion, say aye. 25 Opposed. CAPITOL REPORTERS (916) 923-5447 5 1 The motion is carried unanimously. The Board order is 2 adopted. 3 We will move on to Agenda Items 2 and 3. Today the 4 Board will consider whether to certify the Final 5 Environmental Impact Report for Implementation of the Water 6 Quality Control Plan for the San Francisco 7 Bay/Sacramento-San Joaquin Delta Estuary and the Final 8 Environmental Impact Report for Consolidated and Conformed 9 Places of Use and whether to adopt the proposed Decision 10 which implements the water quality objectives for the San 11 Francisco Bay/Sacramento-San Joaquin Delta Estuary; approves 12 a petition to change points of diversion for the Central 13 Valley Project and the State Water Project in the Southern 14 Delta; approves a petition to change places of use and 15 purposes of use for the Central Valley Project. 16 The proposed Decision will be circulated on December 17 2nd. Written comments were due on December 23rd. Board 18 comments were received and read by the Board and staff. 19 They were analyzed in executive session yesterday and an 20 errata sheet has been prepared to address many of the 21 comments received. Errata sheets are on the table at the 22 entryway. 23 Each party who submitted a blue card will be allowed 24 ten minutes to make their presentation. We will use a timer 25 as usual, and the yellow light will come on the rostrum when CAPITOL REPORTERS (916) 923-5447 6 1 one minute is remaining. 2 Before we proceed to the staff presentation, do any 3 Board Members wish to make any comments at this time? 4 Mr. Howard. 5 Morning. 6 MR. HOWARD: Morning, Mr. Chairman, Members of the 7 Board. My name is Tom Howard. I am the Assistant Division 8 Chief of the Division of Water Rights. 9 There are two items before the Board today for 10 consideration. The first one is a consideration of a 11 resolution certifying two EIRs. The first EIR was prepared 12 to implement the Bay-Delta Plan and to authorize the joint 13 point of diversion. And the second EIR was for the 14 consolidated place of use. The drafts of these EIRs were 15 both released in December of 1997. The finals were prepared 16 and sent to all the parties on November 15th of this year. 17 The second item before the Board is consideration of 18 adoption of a water right decision. The water right 19 decision would implement the water quality objectives in the 20 Bay-Delta Plan. Largely they do that by accepting 21 agreements that have been offered to the Board in Phases I 22 through VII in the Bay-Delta hearing and by assigning 23 interim responsibility to meet the objectives to the State 24 Water Project and Central Valley Project. 25 The Draft Decision was released on December 2nd of this CAPITOL REPORTERS (916) 923-5447 7 1 year. Comments were due on December 23rd. The Board 2 received 40 comments. The staff has spent the last few days 3 reviewing them. As you indicated, we prepared an errata, 4 and I would like to briefly discuss the major issues that 5 are addressed in the errata. What I am going to do is go 6 through here and just highlight the issues that I feel 7 warrants that. A lot of the issues in the errata are 8 actually typos and oversights that were added. And I don't 9 think that they are of any significance, and it is not 10 important to go over every one of them. I would like to 11 talk about some of the main policy issues that have been 12 addressed in the errata. 13 So, starting on the first page, what we have done on 14 the second bullet, we discuss the attachments that we have 15 provided. 16 We have an Attachment 1, which basically does two 17 things. It changes all of the draft citations in the record 18 to the Draft EIR to citations to the Final EIR in that that 19 has been accepted into the record and is the more 20 appropriate citation to provide. And, secondly, it expands 21 on the data sources we have for the analysis that was done, 22 largely -- in many cases we only cited the record for the 23 EIR which provided analysis, and we decided that it was 24 probably appropriate to cite the fundamental data sources 25 underlying those analyses. So, essentially that errata has CAPITOL REPORTERS (916) 923-5447 8 1 no effect on any of the text, but it is provided to provide 2 better citations for the record. 3 The next bullet deals with a change we made regarding 4 the expiration date of the San Joaquin River Agreement. In 5 the order we had said 2010. We were told by the San Joaquin 6 River Agreement parties that the right date was actually 7 2011. We went ahead and made that change. 8 The next change I would like to briefly mention occurs 9 on Page 52. We are still on Page 1 of the errata. This 10 deals with a number of comments we received regarding Friant 11 Reservoir. We have a lot of parties who were concerned that 12 they felt the order might be construed as directing the 13 Bureau of Reclamation to make releases from Friant 14 Reservoir. We want to clarify that that wasn't the intent 15 at all of the order, that what we were trying to do is in 16 the decision itself we have made a number of findings. 17 Those findings have basically said that the CVP had a 18 responsibility to mitigate the effects both in the San 19 Joaquin Basin and in the Delta for some of the impacts that 20 they had. And in order to mitigate that responsibility all 21 the CVP permits should be mentioned in the order, basically 22 sharing the responsibility for -- not sharing responsibility 23 for providing water, but these permits were the ones that 24 were involved in the project that was the cause of the 25 problem and that all of the permits should be listed. So CAPITOL REPORTERS (916) 923-5447 9 1 that is what we did. 2 It wasn't our intent that that meant that all the 3 projects were necessarily -- all the individual projects 4 were meant to release water. So the clarification here 5 makes it clear that the intent, while we recommend leaving 6 the Friant permits mentioned, that the Board does not intend 7 for this to be a direction that water should be released 8 from Friant. 9 I would like to mention briefly on Page 58 I have an 10 errata to the errata. On Page 58 there is a footnote, and 11 the footnote presently reads and it deals with the Suisun 12 Marsh Preservation Agreement. It presently reads in the 13 Draft that the biological opinion is expected to be released 14 in mid February -- in mid December 1999. It should read the 15 draft biological opinion is expected to be released in mid 16 February 2000. And all we did was change the word 17 "February." That is a nonsubstantial change, in my opinion. 18 It was a slight mistake we made in preparing the errata. 19 On Page 94, still on Page 1 of the errata, on Page 94 20 we have made the same change again to clarify that Friant 21 permits are not necessarily supposed to be -- that Friant is 22 not supposed to be used necessarily by the Bureau to make 23 releases for downstream uses. 24 I am now going to move to Page 2. The next comment I 25 would like to deal with comes on Page 129. We had a number CAPITOL REPORTERS (916) 923-5447 10 1 of changes on Page 129. The first one was added because we 2 had some comments that the Westlands landowners felt that 3 there was some uncertainty in our order, whether the 4 expansion areas require further State Water Board approval 5 for CVP deliveries subject only to site-specific EIRs. 6 We are trying to clarify that, no, in fact, they would 7 have to come back to the Water Board in order to get an 8 expansion of the place of use, and that the Draft Decision 9 does not provide approval for that expansion subject only to 10 site-specific EIRs. So, that should clarify that point 11 there. 12 We also have rather a long discussion on Page 129 13 regarding the claims made by the San Luis Water District. 14 The Board accepts the 1994 Environmental Impact Report that 15 they prepared and that they felt was adequate for the Board 16 to approve the expanded -- the encroachment lands for CVP 17 deliveries. And we have had a chance to take a look at the 18 exhibit that they cited, the 1974 EIR. Had some concerns 19 about determining that the 10,000 acres that are required to 20 be mitigated in the order from the San Luis Water District 21 are actually already provided for under the 1974 EIR. 22 The main concerns we had were that the project 23 described in the EIS covers a different, albeit slightly 24 overlapping area. That it describes a different project, 25 namely a distribution system, that it doesn't identify the CAPITOL REPORTERS (916) 923-5447 11 1 Water Board as a responsible agency whose approval is 2 required, and that the document wasn't prepared for the 3 purposes of supporting a change in place of use under the 4 Bureau's permits. 5 We are at least tentatively recommending that this 6 paragraph be added to address the testimony that was 7 presented by San Luis Water District and basically say that 8 we feel that the mitigation that was recommended for San 9 Luis Water District 10,000 acres, at least with the present 10 level of knowledge that we have, is appropriate. 11 I am moving now to Page 3. On Page 130 to 137 we had a 12 discussion of legal water user of water that attracted quite 13 a bit of comments from many parties. Section 1702 of the 14 Water Code is the basis for this discussion. And this 15 section of the Water Code deals with changes and places of 16 use, points of diversion and purposes of use. 17 We have a legal description on Pages 130 to 137. In 18 summary, our concerns regarding the comments that were made, 19 and they are largely being made by water contractors, and 20 the water contractors seem to believe that they should be 21 considered legal users of water that were covered by Section 22 1702, and that they -- it was the Board's responsibility to 23 ensure that they were not injured by changes in place of 24 use, points of diversion or purposes of use by water right 25 holders who would suggest such changes. CAPITOL REPORTERS (916) 923-5447 12 1 The concern we have is that if we were to extend that 2 to water contractors, that kind of protection under that 3 code section, basically, everyone in the state would fall 4 under the category of a legal user of water and would 5 potentially be subject to protection under that code 6 section. 7 Just as an example, if a large water user were to 8 decide that they wanted to add fish and wildlife to their 9 purpose of use and make claims and make that change, under 10 the argument that is being presented by the water 11 contractors, the Board would be -- the water contractors, 12 the water contractor board, this large water user, would be 13 able to claim that they were potentially being injured by 14 that change because, after all, they might receive less 15 water. 16 The Board would find itself now in the process of 17 trying to mediate between disputes between contractors and 18 water users. It is our opinion that this code section is 19 meant to apply to legal users of water as per two water 20 diverters on a water body and not necessarily for all of the 21 parties who are actually using water, which is not to say 22 that they are not using the water legally. It is merely to 23 say that they are not necessarily meant to receive the 24 protections under Water Code Section 1702. 25 They can, however, still, and trying to clarify as well CAPITOL REPORTERS (916) 923-5447 13 1 here, they are still able to receive or, rather, they are 2 still able to protest the changes that are proposed under 3 Code Section 1702. But if they do so, they have to do so 4 under public interest grounds, public trust grounds or 5 environmental consideration, not because they fall under the 6 category of legal users of water. 7 Like I said, we have a long discussion in the order and 8 we propose to make a couple of changes to clarify our intent 9 here, but that fundamentally we feel that the arguments are 10 sound. 11 On Page 140, still on Page 3, we received a lot of 12 concerns from parties regarding the use of the EIR in Phase 13 VIII. The parties seem to largely feel that the EIR was 14 adequate for purposes of adoption of Phases I through VII, 15 which is what is the subject of today's proceeding. But 16 that for Phase VIII there might be some inadequacies in the 17 EIR, and they were also concerned about their ability to 18 file suits if the Board were to adopt, certify the EIR today 19 and yet wait a year or a year and a half for the Phase VIII 20 decision. They thought they might be obliged to file suit 21 now, even though they didn't know what the Board's Phase 22 VIII decision might be and they might not disagree with the 23 decision. 24 They want us to make clear that if the Board adopts a 25 subsequent decision using this EIR that the CEQA clock would CAPITOL REPORTERS (916) 923-5447 14 1 start clicking again at that point. And the purpose of the 2 changes here is to make that clear. We have even clarified 3 that we will file a new notice of determination under CEQA 4 when the Phase VIII decision is made, and any party who 5 disagrees with the adequacy of the EIR at that time can 6 address the issue then instead of having to worry about it 7 now. 8 On Page 143, a second errata to the errata. I wanted 9 to take out the word "establishes" there. That was meant to 10 be deleted and was inappropriately left in. 11 The purpose of the changes that we have here on Page 12 143 and 147 are to address two concerns that people had 13 regarding the consolidated place of use. 14 First, the parties claim that -- a lot of the parties 15 claimed that in the consolidated place of use we identify 16 about 48,000 acres of mitigation. They felt they should be 17 exempt from that for one of two reasons. 18 One, they felt that the lands that they encroached upon 19 prior to 1970 when CEQA began and, secondly, they felt that 20 there had been an EIR that adequately described the changes 21 and that these weren't noticed by the Board and that there 22 should be a process in which they can come forward and have 23 the mitigation requirements that are imposed in the 24 consolidated place of use removed from them. 25 So what we have done is set up a process in order to CAPITOL REPORTERS (916) 923-5447 15 1 make sure that that happens, that the Bureau would justify 2 an exemption. And if the Bureau can justify an exemption 3 and have it approved by the Division Chief, then the 4 exemption would be granted and the mitigation would be 5 reduced accordingly. 6 The second part was that some parties felt that the 7 findings itself read in such a way that the Bureau would 8 grant the exemption. Our intent was only that the Bureau 9 would have to be required to justify an exemption. It would 10 have to come back to the Water Board for approval. So we 11 made some language changes there that clarify that the 12 Bureau's purpose is to justify the exemption and to provide 13 it to us and not to actually provide the exemption itself. 14 I think that is all I had on the findings. 15 Now, that brings me to the order itself on Page 153, 16 Page 4 of the errata. We had a number of concerns regarding 17 the Conditions 1 and 2 in the Draft Order. 18 Parties felt that, first off, Condition 2 was provided 19 on an interim basis only. Condition 2 dealt with outflow 20 requirements to the CVP and SWP. 21 Condition 1, however, talks to the M&I and the ag 22 standards. And that was not listed as an interim standard. 23 A lot of parties felt that that was inappropriate that the 24 M&I and ag standards were not things that had been noticed 25 by the Board in Phases I through VII and, therefore, there CAPITOL REPORTERS (916) 923-5447 16 1 should be -- that also should be on an interim basis. 2 That was actually an oversight on our part, Condition 1 3 was meant to be only on an interim basis until the Board had 4 an opportunity to address Phase VIII issues, and so that 5 correction has been made. 6 I would also like to point out an errata under both 7 Condition 1 and 2, rather in the errata to the errata, this 8 was the third and final of these that I have today. I would 9 like under Condition 1, it says Condition 1 is amended by 10 adding at the end on an interim basis -- it should now read, 11 "on an interim basis, not to exceed two years, until the 12 Board adopts a final decision in Bay-Delta Water Rights 13 Hearing assigning responsibility." 14 That same clause, "not to exceed two years," should 15 also be added to Condition 2. Notwithstanding our oversight 16 in taking out -- in leaving out under Number 1 the term 17 "interim," we did get comments from, I believe, the 18 Department and State Water Contractors that seemed to 19 indicate that Condition 1 and 2 shouldn't be added to the 20 permits at all, even on an interim basis. 21 Briefly, I would like to point out, dealing first with 22 Condition 1, Condition 1 is right out of D-1485. The 23 projects have been responsible for meeting the terms of 24 Condition 1 since 1978. And it seems that even if the Board 25 didn't act here and didn't remove D-1485 that the projects CAPITOL REPORTERS (916) 923-5447 17 1 would continue to be responsible. So I see that as complete 2 continuation of the status quo and not necessarily something 3 of great controversy. 4 Condition 2, however, is new. It makes the project 5 responsible on an interim basis for meeting Delta outflow 6 and for meeting Rio Vista flows. In Decision 95-6 in 98-90 7 the Board did not assign that responsibility even on an 8 interim basis to the project. The projects were already 9 meeting that responsibility voluntarily under the Principles 10 Agreement and through biological opinions no jeopardy 11 opinions that they had. 12 We felt that there was an advantage at this point to 13 eliminate all the provisions of D-1485 and to on a temporary 14 basis at least fully implement the Bay-Delta Plan. Now, the 15 argument's made that there was inadequate notice that that 16 might be the Board's intent. We feel that the Phase I 17 issues that were identified and are identified here on Page 18 7 in the findings, the first two adequately notified people 19 that the Board might make changes of that nature. So we 20 feel the argument that there was inadequate notice is not 21 necessarily valid. 22 In any event, those are the changes we propose on those 23 first two conditions. 24 On Page 167, I am on Page 5 now, we have added a 25 footnote and, actually, I guess the same footnote was added CAPITOL REPORTERS (916) 923-5447 18 1 on Page 153 to clarify -- well, anyway it is added on 167. 2 That this footnote is added again to address the Friant 3 issue. While I talked about -- while we've made some 4 footnotes in the findings, we also wanted to make clear in 5 the order itself that the projects are not responsible. 6 Just because a permit is listed there it is not necessarily 7 responsible for making releases from the facility covered by 8 that permit. So we wanted to add that footnote. 9 On Page 168 we're making clear that San Joaquin River 10 Agreement is an interim agreement and that is the purpose 11 for the noted change there. 12 We got a lot of comments on Page 169 and 173 that we 13 had mischaracterized the method for taking a double step 14 under the San Joaquin River Agreement. That was just an 15 oversight. It was right in the findings. It was wrong in 16 the order. We are correcting it here by removing the word 17 "two." 18 Let's see. On Page 171 we received a request from the 19 Bureau to provide more flexibility in meeting their 20 mitigation requirements that were identified under the 21 consolidated place of use. We even had called in the order 22 to in-kind compensation. They wanted equivalent 23 compensation. We feel that does provide more flexibility 24 and it is an appropriate change. 25 And we also, and this is also -- the location at which CAPITOL REPORTERS (916) 923-5447 19 1 we clarified that there are two ways to reduce the 2 mitigation requirements under the circumstances where the 3 encroachment occurred pre-CEQA or is covered by an existing 4 EIR. 5 Getting close to the end; I am on the last page. I'm 6 on Page 6, Page 183. Woodbridge Irrigation District was in 7 the Draft Order, asked to or directed that they would have 8 to bypass the expected flows below Woodbridge Diversion Dam 9 that were identified in the Joint Settlement Agreement. In 10 their letter they clarified that what they had suggested to 11 the Board was not that they would make those releases as 12 bypasses under any circumstance, but would make those 13 bypasses as long as they were meeting their base supply. We 14 were aware of that; that was always our intent. 15 Unfortunately, we inadvertently left that term off, and so 16 that is being added back in. 17 On Page 193, we received a lot of comments dealing with 18 Delta Cross Channel gates and some changes in the plan that 19 occurred between the plan and 98-9 and the Draft Decision, 20 and we're clarifying that the gate closures were meant to be 21 for a period of up to 45 days, not an inflexible 45-day 22 closure. We feel that is a more balanced approach to 23 maintaining both salinity in the Central Delta and 24 protecting the fishery. 25 I think some of the experiences that occurred this year CAPITOL REPORTERS (916) 923-5447 20 1 shows a need for a balanced approach there. 2 That was actually all I had that I wanted to briefly 3 mention on the errata. 4 One other point that I would like to quickly point out. 5 We did get a couple comments where people asked us to delete 6 the last two sentences of the term on Page 155 of the order 7 dealing with ESA compliance. They felt that this put the 8 Board in a position of enforcing the Endangered Species 9 Act. That is not our intent. 10 For the last two years this term that you see here has 11 been added to all water right permits that the Board issued 12 and all amendments to water right permits that the Board has 13 issued. The reason being that there has been a couple of 14 recent court cases in which regulatory agencies have been 15 held responsible for take that occurs under permitted 16 activities, that occurs as a result of permits issued by 17 that regulatory agency. That term has been added for the 18 purpose of clarifying that that is not the Board's intent or 19 this regulatory agency's intent to allow any take to occur 20 and to enter any permit that it issues. 21 That covers all the points I wanted to make. 22 Does the Board have any questions? 23 CHAIRMAN STUBCHAER: Questions of Mr. Howard? 24 Thank you, Mr. Howard. 25 We will now move on to the speaker cards. First will CAPITOL REPORTERS (916) 923-5447 21 1 be Greg Zlotnick, followed by Tom Birmingham. 2 MR. BIRMINGHAM: My comments pertain only to Agenda 3 Item 3. Are you going to address them together? 4 CHAIRMAN STUBCHAER: Yes, the comments are combined. 5 Morning, Mr. Zlotnick. 6 MR. ZLOTNICK: Morning. Mr. Chairman, Members of the 7 Board, good morning. I'm Greg Zlotnick, Vice Chairman of 8 the Board at Santa Clara Water District. 9 We are water wholesaler for the 1.7 million people of 10 Santa Clara County and thus the supplier to Silicon Valley 11 as well. I apologize if the errata addressed my comments, 12 as to make them moot, which would be nice. But just in case 13 they don't, I will move forward. 14 My statement this morning supplements written comments 15 submitted on the district's behalf by our counsel, and I 16 will be brief. The proposed December 2nd Draft Decision is 17 particularly troublesome to us on the issue of authorized 18 places of use of Central Valley Project water. We object to 19 the modification of water rights permits held by the Bureau 20 of Reclamation for the CVP from which we contract a 21 significant portion of our water supply which would 22 unreasonably and unrealistically limit our service area for 23 federal water. 24 Condition 2 at Page 170 of the Draft Decision and the 25 map at Page 215 pertain to application of that condition to CAPITOL REPORTERS (916) 923-5447 22 1 us would in effect define the place of use of our CVP 2 supplies in a manner that would be unwarranted and 3 inappropriate. Specifically, as proposed, the place of use 4 would not be the same as our total service area. Simply 5 stated, this would present an untenable situation and would 6 be bad public policy. Our district, which was created by 7 legislative act prior to our contract with the Bureau, 8 consists of all the territory of Santa Clara County. 9 Consequently, consistency and coherence would reasonably 10 suggest that appropriate place of use of our CVP supplies 11 would likewise be the entire county. 12 Notably, our contract with the Bureau nowhere limits 13 the places where water may be delivered. Illustrating the 14 impracticality of the proposed map as a limit is the fact 15 that from a water supply management and infrastructure 16 standpoint and attempt to separate out CVP supplies from 17 our other various sources of supplies and have CVP water 18 molecules used in only designated portions of the county 19 frankly doesn't even pass a straight face test. 20 Secondly, the ramifications of the proposal would be 21 that anytime there was a local desire to deliver CVP water, 22 accepting for the moment that it can somehow be separated 23 out -- 24 CHAIRMAN STUBCHAER: That is not your time. 25 MR. ZLOTNICK: -- outside the Draft Decision's proposed CAPITOL REPORTERS (916) 923-5447 23 1 place of use, but within our current service area, the 2 Bureau would have to seek modifications to its CVP permits 3 from this Board, resulting in great uncertainty for 4 municipal development, our conjunctive use program and 5 overall supply reliability and ultimately placing the 6 continued economic viability of Silicon Valley at risk. 7 We ask that you revise the Draft Decision and include 8 the entire Santa Clara County or, in other words, our total 9 service area as authorized place of use for the Bureau's CVP 10 permits, as is the case in permits held by the Department of 11 Water Resources supporting delivery of State Water Project 12 water to Santa Clara County. 13 With this addition we join in the comments submitted 14 separately by the State Water Contractors. With respect to 15 the contractors' comments, I will only strongly echo our 16 grave concern that the proposed Conditions 1 and 2 at Page 17 153 that would obligate the projects to assume total 18 responsibility for meeting water quality objectives and 19 other requirements in the 1985 Bay-Delta Water Quality 20 Control Plan at worst represents a complete disregard of 21 Judge Racanelli's admonition to take a global perspective 22 and at best is simply premature, coming prior to Phase VIII. 23 We respectfully request that Conditions 1 and 2 be 24 deleted from the Draft Decision. Thank you for your 25 consideration. Joan Maher from our staff and I would be CAPITOL REPORTERS (916) 923-5447 24 1 happy to answer any questions that you may have. 2 CHAIRMAN STUBCHAER: Thank you, Mr. Zlotnick. 3 Any questions? 4 MR. ZLOTNICK: Thank you. 5 CHAIRMAN STUBCHAER: Tom Birmingham to be followed by 6 Steven Chappell. 7 Morning. 8 MR. BIRMINGHAM: Good morning, Mr. Chairman, Members of 9 the Board. I am appearing this morning on behalf of 10 Westlands Water District and the San Luis-Delta Mendota 11 Water Authority. 12 As the Board Members will recall, Westlands and the 13 Authority were active participants in virtually every phase 14 of the hearing up to this point with perhaps the exception 15 of the phase pertaining to the Suisun Marsh standards. But 16 this morning I am going to restrict my comments to one 17 subject, and that is whether or not Westlands Water District 18 and other contractors are legal users of water within the 19 meaning Section 1702. 20 The reason I am going to restrict my comments to that 21 subject, it is my hope that by doing so I will convey to the 22 Board the importance of this issue. 23 As the Board knows, it is Westlands' contention that 24 Water Code Section 1702 precludes approval of the petition 25 to consolidate the purposes of use to include fish and CAPITOL REPORTERS (916) 923-5447 25 1 wildlife enhancement as a permitted use in each of the 2 Bureau's permits. Such approval would result in an injury 3 to a legal user of water. 4 The Draft Decision, for reasons explained by Mr. 5 Howard, rejects Westlands' contention but the reasons are 6 not explicitly stated. The Draft Decision states on Page 7 137, and I would like to quote from it: 8 In view of the foregoing discussion, the 9 State Water Board finds that water service 10 contractors are not injured legal users of 11 water within the meaning of Water Code 12 Section 1792, and consequently are not 13 entitled to protection of Water Code Section 14 1702. (Reading.) 15 From this statement it is not clear whether the Water 16 Board has concluded that Westlands and other contractors 17 will not be injured if the change petition is granted or 18 whether the Water Board has concluded that Westlands and 19 other contractors are not legal users of the water 20 involved. It appears that the rejection is based on both 21 conclusions. 22 I am hopeful that I will be able to convince the Board 23 this morning that these two implicit conclusions are 24 factually and legally wrong. 25 The Draft Decision begins its analysis of this issue by CAPITOL REPORTERS (916) 923-5447 26 1 stating, changing the purposes of use petition would have 2 the effect of making permits consistent with the USBR's 3 current operation, which the USBR operates the CVP as an 4 integrated project. It would allow the USBR to deliver 5 water for irrigation for example under four permits to 6 appropriate water from the American River, Sacramento and 7 Trinity Rivers and from Rock Slough in the Delta. It would 8 allow the USBR to deliver water from municipal use from 9 these sources under nine of the 16 permits subject to the 10 change petition. It would also allow the USBR to maintain 11 control over water it releases into a river for fish and 12 wildlife enhancement as is the case of the releases to be 13 made for the VAMP experiment discussed in part six of this 14 decision. 15 This statement implies approving the petition is some 16 benign act to which no one could reasonably object, but the 17 statement is misleading. First, Reclamation's permits 18 already authorize the appropriation of water for irrigation 19 from the American, Sacramento, Trinity Rivers and from Rock 20 Slough in the Delta. In addition, there is nothing in the 21 record to suggest that water appropriated under permits 22 currently authorizing municipal and industrial use are 23 inadequate to meet current and projected M&I demands of 24 Reclamation's contracts. 25 Indeed, water appropriated by virtually every CAPITOL REPORTERS (916) 923-5447 27 1 Reclamation facility can be used for M&I purposes and 2 approval of a petition would not be required for release of 3 water to conduct VAMP, the VAMP experiment, if the Water 4 Board staff had decided to consider Section 1707 petition 5 filed by the Exchange Contractors in conjunction with the 6 1707 petitions filed by other San Joaquin River Authority 7 members. 8 The most telling portion of the quote is the statement 9 that it approving the change would also allow the USBR to 10 maintain control over water it releases into the river for 11 fish and wildlife enhancement. Only one of the permits 12 subject to change petition permits to the Trinity River 13 currently authorize the use of water for fish and wildlife 14 enhancement. But Reclamation has consistently used water 15 appropriated under other permits since 1992 for fish and 16 wildlife enhancement in violation of its water right 17 permits. 18 Before the State Water Board can conclude approving the 19 change petition is a benign act, it must perform an 20 analysis under Section 1702. It must conclude that the 21 change will not operate to injury of any legal user of the 22 water involved. A finding that Westlands would not be 23 injured by approval of change petition could not be 24 supported by evidence in the record. Westlands receives 25 water diverted by the Shasta facilities, American River CAPITOL REPORTERS (916) 923-5447 28 1 Facilities, Delta facilities and the San Luis Unit 2 facilities. None of Reclamations' permits for the operation 3 of these facilities authorizes the use of appropriated water 4 for fish and wildlife enhancement. 5 Therefore, if the change is granted and Reclamation 6 uses an acre-foot of water that otherwise would have been 7 delivered to Westlands for fish and wildlife enhancement, 8 Westlands will have been injured. In fact, the 9 uncontroverted evidence in the record is that since 1992, 10 when Reclamation began using project water for fish and 11 wildlife enhancement, Westlands' water supply has been 12 reduced by as much as 65 percent. The Draft Decision is 13 correct, nothing in Reclamation's permits requires 14 appropriation of water for Westlands and other 15 contractors. And Reclamation could decide that for the 16 benefit of fish and wildlife it will bypass water flowing 17 into storage facilities. However, once Reclamation 18 exercises control over water flowing into store facilities 19 pursuant to its water right permits, both state and federal 20 law required that the water be used in a manner consistent 21 with the terms and conditions of those permits. 22 By its argument Westlands is not suggesting that 23 Reclamation can avoid its obligation to comply with the 24 Endangered Species Act. The Draft Decision observed that 25 Westlands' argument ignored the preemptive effect of the CAPITOL REPORTERS (916) 923-5447 29 1 Federal Endangered Species Act. There is a simple reason 2 for that. The Federal Endangered Species Act does preempt 3 state water law to the extent there is conflict between the 4 two. However, operating facilities in a manner consistent 5 with reasonable and prudent alternatives and biological 6 opinion is a far cry from saying that notwithstanding 7 criteria imposed by state law, Reclamation will be 8 authorized to use all its facilities for fish and wildlife 9 enhancements. Moreover, there is a distinction between 10 operating facilities in a manner consistent with the 11 biological opinion and using water for fish and wildlife 12 enhancement. 13 For instance, if diversions at the Tracy pumping plant 14 are reduced because of the take limit in the incidental take 15 statement of the biological opinion exceeded, water supply 16 reductions may result but water is not being used for fish 17 and wildlife enhancement, or the cross channel gates are 18 closed to protect outmigrating salmon smolt and there is a 19 concurrent reduction in diversions from the Delta to protect 20 water quality, water supply reductions may result but water 21 is not being used for fish and wildlife enhancement. 22 Therefore, there is no evidence in the record to support the 23 Draft Decision statement that the Federal Endangered Species 24 Act "has played a major role in USBR's increased use of 25 water for fish and wildlife purposes." CAPITOL REPORTERS (916) 923-5447 30 1 Moreover, the Draft Decision's analysis of 2 Reclamation's ability to bypass flows has absolutely no 3 application to the San Luis Reservoir. The San Luis 4 Reservoir is an off-stream facility to which water is 5 conveyed from the Delta via the Delta-Mendota Canal. From 6 the canal water is lifted into storage and is subsequently 7 released in the San Luis Canal for delivery to San Luis 8 contractors, including Westlands. Application 15764, Permit 9 No. 12680 which authorizes the use of the Tracy pumping 10 plant, the DMC, the San Luis Reservoir and the San Luis 11 Canal for this purpose does not authorize the use of water 12 for fish and wildlife enhancement. Amending Permit No. 13 12860 to authorize the use of these facilities for this 14 purpose will have a direct and immediate impact on Westlands 15 water supplies. 16 Again, the evidence is uncontroverted. Approving the 17 change petition to include fish and wildlife enhancement is 18 permitted, as a permitted purpose of use, in each of 19 Reclamation's permits will injure Westlands. 20 The green light has gone off. I observe that -- does 21 that mean I have one additional minute? 22 CHAIRMAN STUBCHAER: Yes. 23 MR. BIRMINGHAM: My comments will take an additional 24 approximately seven or eight minutes. I request that I be 25 given that additional time. CAPITOL REPORTERS (916) 923-5447 31 1 CHAIRMAN STUBCHAER: I will give you three additional 2 minutes. 3 MR. BIRMINGHAM: That means I have a total of four, Mr. 4 Stubchaer? 5 CHAIRMAN STUBCHAER: 3.37, yes, go ahead. 6 MR. BIRMINGHAM: Reclamation did not even try to rebut 7 the evidence presented by Westlands on the subject of 8 injury. The point I was making is that the Bureau did not 9 attempt to rebut the evidence presented by Westlands on 10 injury. Rather, it argued approval of the petition will not 11 involve an actual change of Reclamation's operations. 12 Because since enactment of the CVP, it's been using water 13 for fish and wildlife enhancement and that under its 14 contracts with Westlands Reclamation can reduce Westlands' 15 water supply when required to do so to comply with federal 16 law. 17 The first argument is comical. What Reclamation is 18 saying is since we've already done it, there isn't going to 19 be a change. The second argument -- with respect to the 20 second argument the Water Board's Draft Decision is correct. 21 The Water Board has no jurisdiction over the rights and 22 obligations of parties to Reclamation's contract. 23 Therefore, the question is whether or not this change will 24 injure legal users of water. 25 That leads directly to the point Mr. Howard was CAPITOL REPORTERS (916) 923-5447 32 1 making. Is Westlands a legal user? It seems 2 incomprehensible to us that anybody can legally be using 3 water but is not a legal user. Think that. We are legally 4 using water, but we are not a legal user. It is understood 5 by every lawyer in this room that the person of statutory 6 construction is that statute must be interpreted to affect 7 the intent of the Legislature, and that in order to glean 8 that intent you must examine the ordinary meaning of the 9 word. Given the ordinary meaning of the words of Water Code 10 Section 1702, the only reasonable conclusion is that 11 Westlands and other contractors are legal users. 12 According to Webster's, legal means conforming to or 13 permitted by law. User means enjoyment of the right to 14 use. No one can dispute that Westlands and other 15 contractors had a right to use the water appropriated under 16 permits that are subject to Reclamation's petition, and no 17 one can dispute the right conforms to and arises and is 18 permitted by law. 19 Assuming for the purposes of argument that the right to 20 use arose only out of contract, it would nonetheless be a 21 right to use conforming to and permitted by law. 22 The suggestion that Westlands is not a legal user of 23 water is not even supported by this Board's own decision. 24 In Water Rights Decision 95-6 the Board interpreted legal 25 user of water to mean any party who had an existing legally CAPITOL REPORTERS (916) 923-5447 33 1 protected right to use water. There is ample authority that 2 contractors have a legally protected right to use water. 3 In Water Rights Order 95-9 an issue arose as to whether 4 or not the meaning of legal user includes fish and wildlife 5 where no person or entity has a form of water right for the 6 fish and wildlife use of the water. The Water Board 7 concluded in that case that such an interpretation would be 8 consistent with existing case law that interprets Water Code 9 to provide -- by standing for the protection of public trust 10 uses. The words in Section 1702 cannot have one meaning 11 when the question involves the use of water by fish where no 12 one holds a water right and an entirely different meaning 13 when the question involves farmers who are not the holders 14 of the water right. In both situations a standing under 15 Section 1702 is determined by whether there is a right of 16 use which exists under or is permitted. 17 Finally, I would like to address the point that Mr. 18 Howard made with respect to the logical -- the results of 19 Westlands' arguments. 20 What he said was taken to its logical end Westlands' 21 arguments that the end users of water or the water right 22 holders would mean that instead of having relatively few 23 water purveyors subject to the state regulatory authority, 24 by the Water Board, there would be millions of water right 25 holders. Instead of regulating the purveyors of water, CAPITOL REPORTERS (916) 923-5447 34 1 Water Board would regulate the use of water at the ends of 2 pipes, canals and in individual homes, businesses and farms. 3 That statement is not correct. First, the question is 4 not who will be subject to statewide regulatory authority 5 of the Water Board. The question is who is protected by 6 Section 1702. As a practical matter, the Water Board will 7 not find itself confronted by millions of parties objecting 8 to change petitions. Rather, it will be, purveyors such as 9 Westlands, who will appear at hearings such as this to 10 oppose change petitions if it is likely the change will 11 adversely affect the purveyors, the end user of the water 12 involved. 13 This is a matter of great, great importance to many 14 contractors. If the Water Board is not persuaded that the 15 rationalization contained in the Draft Decision is wrong and 16 the Draft Decision should be changed, I would ask the Water 17 Board to change it for a very practical reason. If the 18 Water Board adopts this Decision, there is substantial 19 chance that Westlands and other contractors would not be 20 able to challenge the decision because the United States 21 would be determined to be an indispensable party in 22 litigation in state court. Therefore, this issue would 23 never be resolved by a court. Given the importance of the 24 issue, what I would urge the Water Board to do is to deny 25 the petition. CAPITOL REPORTERS (916) 923-5447 35 1 If the petition is denied, the United States 2 undoubtedly will challenge that denial on the grounds of 3 preemption, if nothing else, under CVPIA. Then this 4 question of who is a legal user of water protected by Water 5 Code Section 1702 can be decided by a court rather than by 6 this Decision. 7 If the Board has any questions, I would be happy to try 8 to answer. 9 CHAIRMAN STUBCHAER: Any questions? 10 In the interest of fairness, everybody gets 15 minutes 11 now instead of ten. 12 MR. BIRMINGHAM: And I appreciate the Board's 13 indulgence. Thank you very much. 14 CHAIRMAN STUBCHAER: Steven Chappell, followed by Jan 15 Goldsmith. 16 MR. CHAPPELL: Morning, Mr. Chairman, Members of the 17 Board. I appreciate the opportunity to speak today. I am 18 Steve Chappell, the Executive Director of the Suisun 19 Resource Conservation District. 20 I will keep my comments brief. But in regards to the 21 Suisun Resource Conservation District objection to the water 22 rights Draft Decision to delete the requirements of DWR and 23 Bureau of Reclamation to meet salinity objectives at S97, 24 S35 of the Suisun Marsh. In August 5th of 1995, the 25 Department of Water Resources, Department of Fish and Game CAPITOL REPORTERS (916) 923-5447 36 1 and the Suisun Resource Conservation District testified 2 before you, stating that Phase III of the Bay-Delta water 3 rights hearing and concerns -- what its concern over the -- 4 at the water rights hearing that the Suisun Marsh 5 Preservation Agreement, including the provisions to relieve 6 DWR and the Bureau of Reclamation of the responsibility to 7 meet compliance obligations at S97, S35 were an integral 8 part of the package of activities for the Suisun Marsh 9 Preservation Agreement. 10 In your draft opinion or Draft Decision today you have 11 stated that they would be relieved of those obligations 12 without amendment three activities going forward. The 13 amendment three activities were comprised of 11 actions, 14 which include numerous physical wetland management 15 activities to assist landowners in the effective use of 16 available water into the managed wetlands. Without the 17 concurrent implementation of all amendment three, Suisun 18 Marsh Preservation Agreement activities and the conversion 19 of S97 and S35 to compliance stations equivalent federal 20 protection cannot be achieved for illustrative Suisun Marsh 21 areas, and it's anticipated negative effects will occur to 22 these managed wetlands. 23 The Suisun Resource Conservation District requests that 24 you reconsider your Draft Decision on Phase III of Bay-Delta 25 water rights hearing and postpone your decision pertaining CAPITOL REPORTERS (916) 923-5447 37 1 to S97 and S35 until the entire Suisun Marsh Preservation 2 Agreement amendment three can be implemented, signed and go 3 on concurrently. 4 If you have any questions, that concludes my comments. 5 CHAIRMAN STUBCHAER: Any questions of Mr. Chappell? 6 Seeing none, thank you. 7 MR. CHAPPELL: Thank you. 8 CHAIRMAN STUBCHAER: Next will be Jan Goldsmith 9 followed by Gary Sawyer. 10 MS. GOLDSMITH: Thank you. 11 I will take that nod as an editorial comment. My name 12 is Janet Goldsmith from Kronick, Moskovitz, Tiedemann & 13 Girard. I am appearing here today on behalf of Carmichael 14 Water District. With me, and I think we will coordinate our 15 presentation, is LaNell Little who is the manager of 16 Carmichael Water District, Mark Emmerson who is the Board 17 President of Carmichael Water District and Sanford Kozlew 18 who is a member of the Board of Directors of Carmichael. 19 CHAIRMAN STUBCHAER: We will change the order so they 20 will follow you. 21 MS. GOLDSMITH: Thank you. I think we will still only 22 probably need the 15 minutes. 23 By their presence here today I think you can see how 24 important the issue of water supply and the issue of how 25 this Board considers the water supplies for Carmichael CAPITOL REPORTERS (916) 923-5447 38 1 Irrigation District to be. 2 Carmichael made significant comments to the Draft EIR. 3 We submitted written comments concerning the Final EIR 4 which, as you probably know since you reviewed them, we 5 consider them to be inadequate for Phase VIII. Carmichael 6 also joins in the comments of the Sacramento Valley Water 7 Users concerning the scope of this Board's decision. 8 And I am not quite sure exactly how you should approach 9 it, but we believe that the FEIR as it stands is completely 10 inadequate for a decision on Phase VIII that modify the 11 water rights that are held by Carmichael Irrigation 12 District. 13 Carmichael Irrigation District is a municipal supplier 14 of a population of 37,000 in Sacramento County. It supports 15 businesses and Ancil Hoffman Park, a popular regional park 16 within the county. It has, as you know and as the FEIR 17 authors know, limited access to groundwater in an aquifer 18 that is in overdraft and continues in overdraft. It is a 19 participant in the Sacramento Regional Water Forum, a 20 regional attempt to address groundwater overdraft problems. 21 I think these comments will be amplified by Ms. Little 22 and Mr. Emmerson. I want to say that we appreciate the 23 clarification of the Board's intent to issue a second notice 24 of determination concerning Phase VIII. We are not 25 completely comfortable that that provides the same judicial CAPITOL REPORTERS (916) 923-5447 39 1 review that we would have in a challenge at this point. 2 The reason is that there is ambiguity in the case law 3 as to the scope of judicial review after a supplement has 4 been adopted. The ambiguity is whether or not you can still 5 go back and challenge matters that were in the underlying 6 Final Environmental Impact Report or only matters in the 7 supplement. So we continue to have some concerns and for 8 that reason our comments today will be probably more 9 detailed than you want to hear and more detailed than many 10 in the room want to hear, and maybe more detailed than are 11 necessary. 12 However, to the extent that your actions in adopting 13 the second NOD preserve judicial review, you can simply 14 consider our comments on the current FEIR as advisory, as to 15 how you go about those duties when you get around to looking 16 at Phase VIII and your CEQA compliance for that phase. 17 The two points that we -- two major points that we 18 complained about and continue to complain about is the 19 presumption that appears in the FEIR that municipal 20 suppliers in Sacramento County or in Carmichael in general 21 can simply turn to groundwater, can obtain water transfer as 22 replacement water for supplies that are lost due to this 23 Board's potential actions in Alternative 3 and Alternative 24 4, or that water conservation will mitigate any significant 25 impacts of an Alternative 3 or Alternative 4 decision. CAPITOL REPORTERS (916) 923-5447 40 1 With regard to water conservation, I would like to say 2 there is a difference in kind between water conservation 3 that is practiced year-round and the kind of water 4 conservation that you would have to do to make up for lost 5 summertime supplies. It is just a different animal, and 6 Carmichael is already engaged in substantial water 7 conservation. If the supplies aren't available, there will 8 be a significant impact. 9 The second comment on the FEIR, generally, that I have, 10 and this may be apparent from Ms. Little's comments that the 11 approach the FEIR took, which was a regional approach, is 12 not adequate under CEQA for actions by this Board to affect 13 specific water rights, and that is what you are about. You 14 are not making broad legislative policy although, in fact, 15 you are in part doing that. You are also affecting specific 16 water rights that have specific impacts in individual areas, 17 and you need to be informed as to what in each of those 18 areas the impacts would be. 19 I don't think that you can rely on a general 20 description of the entire Sacramento groundwater, for 21 example, to determine that there are no significant impacts 22 to the environment when, in fact, there will be differences 23 between different jurisdictions relying on that 24 groundwater. 25 I would like to turn it over now to Ms. Little for CAPITOL REPORTERS (916) 923-5447 41 1 additional comments. 2 CHAIRMAN STUBCHAER: Morning, Ms. Little. 3 MS. LITTLE: Thank you very much, Mr. Chairman and 4 Members of the Board. As Ms. Goldsmith already explained to 5 you, we do serve a population of approximately 37,000 6 residents in northeastern Sacramento County, about ten miles 7 east of the city of Sacramento. And Carmichael Water 8 District has exercised rights on the American River. We 9 were actually the first post 1914 water right holder on the 10 American River. 11 And we in our letter dated July 13, 1998, provided 12 detailed information to the Board staff concerning the 13 impact of surface water curtailment on the district and its 14 users. The Draft EIR's assumption that surface water 15 supplies could be easily replaced was not correct, and 16 described the environmental impact of the loss of its 17 American River supply in our comments. 18 Flow Alternatives 3 and 4 would result in Carmichael 19 being prohibited from exercising its permitted and licensed 20 water rights for up to three of the summer months in most 21 years. Carmichael does not have an alternative supply to 22 meet summer water demands without relying upon its 23 historical American River rights. If precluded from 24 diverting under its permits and licenses, Carmichael would 25 have to ban all outdoor water use during summer months or CAPITOL REPORTERS (916) 923-5447 42 1 experience consistent system pressure collapses, lack of 2 fire flow and consequential public health and safety issues 3 raises that are unacceptable to any California community. 4 We had recent historical experiences that form the basis 5 of those comments. In 1997 we had severe damage to our 6 surface water supply facilities due to the flood on the 7 American River. Those repairs extended into the spring of 8 1997, and, during that period, we were using all of our 9 available well supply plus two interties with other 10 districts, and we were failing in an attempt to maintain 11 system pressure as summer approached. Pressure dropped 12 below accessible minimums repeatedly during this period, 13 generating customer complaints and increasing concern with 14 Carmichael fire protection and health. 15 We were forced to restrict outdoor watering to two days 16 a week until the American River supply could be brought back 17 into operation. That occurred in June of 1997. Had repairs 18 extended later into the hot season, the demands would have 19 exceeded the capabilities of our wells to provide and supply 20 at least 38 percent on a summer day and peak hour demands 21 would have exceeded well supplies by 52 percent. So we have 22 experienced that kind of a minimum water usage situation, 23 and I can tell you it is a very difficult thing to go 24 through. 25 In responding to our comments, the Final EIR simply CAPITOL REPORTERS (916) 923-5447 43 1 ignored the information that was provided by Carmichael and 2 continue to assume that we would replace lost surface water 3 supplies with groundwater, even acknowledging that to do so 4 would worsen groundwater overdraft in the region. While 5 acknowledging that Sacramento County portion of the 6 groundwater draft basin is already overdrafted, and despite 7 its assumption that groundwater would be the replacement 8 source for Carmichael, the final EIR nevertheless concludes, 9 and I quote: Significant surface water delivery reductions 10 are not expected in this area as a result of implementing 11 the flow objectives. Thus, the overdraft problem should not 12 be affected by the implementation of the objectives. 13 Mitigation measures in the Final EIR for addressing 14 groundwater overdraft problems include adoption of local 15 groundwater management plans, establishment of groundwater 16 management agency by statute, development of conjunctive use 17 plans, conservation of water supplies by lower consumptive 18 use and water transfers. 19 I can tell you that as a participant in the Sacramento 20 North Area Groundwater Management Authority, which has 21 recently been set up in Sacramento County, we are 22 contributing to a regional water management authority. 23 Conjunctive use is a reality within the Sacramento North 24 Area Groundwater Management area, and we have coordinated 25 agreements to shift from surface water to groundwater in dry CAPITOL REPORTERS (916) 923-5447 44 1 years. 2 Forcing Carmichael to rely entirely on groundwater in 3 summer months, as assumed in the Final EIR, would have the 4 effect of undermining the very conjunctive use and good 5 water management that it proposes as mitigation. 6 Furthermore, I have participated in the water forum process 7 in Sacramento which is a very well-known and, in fact, is 8 becoming nationally recognized as a process for mediating 9 these kinds of issues. The environmental groups, water 10 purveyors, we have been in negotiations for six years, and 11 in that negotiation I can tell you that Carmichael Water 12 District was very heavily scrutinized as for ways to not use 13 the American River at times during the years, and that group 14 could find no way for that to be reality. In fact, we are 15 the only forum water purveyor allowed to continue surface 16 water diversions during dry years. 17 By contrast, the Final Environmental Impact Report 18 currently concludes, without specific analysis or 19 substantial evidence, that water conservation, groundwater 20 pumping and water transfers will obviate any significant 21 surface area impacts. And by assuming that alternate 22 supplies are available to affected suppliers, the Final EIR 23 avoids having to come to grips with water supply impacts of 24 Alternatives 3 and 4 and fails to adequately describe the 25 real environmental impacts that will occur within the CAPITOL REPORTERS (916) 923-5447 45 1 surface areas of the purveyors. Impacts within the service 2 area of Carmichael, which Carmichael described in its 3 comments, were simply ignored or dismissed with the 4 assumption that water conservation measures would mitigate 5 them to insignificance. 6 However, the EIR failed to provide any substantial 7 evidence to support these conclusions. It did not 8 acknowledge that Carmichael's existing water conservation 9 efforts already include implementation of the MOUs and BMPs. 10 The Final EIR's conclusion that no significant environmental 11 impacts would result in water rationing described by 12 Carmichael because of the availability of water conservation 13 measures did not even give any credibility at all to the 14 consideration of Carmichael's comments. 15 As we pointed out in our comments, we did experience 16 reduceage of water in both 1991, which we reduced by 28 17 percent working with the regional effort during your drought 18 period. We currently are metering all of our new 19 residential construction within the jurisdiction. We have, 20 at the time the EIR comments went in, we had installed meter 21 setters in over 13 percent of our existing residential 22 services. We are now going back and actually installing 23 meters to those residential services. By July of this year, 24 we will have metered all of your parks, schools and 25 commercial properties in the district, another 1300 meters. CAPITOL REPORTERS (916) 923-5447 46 1 Our Board is committed to a very aggressive metering 2 approach for a district that is not -- that actually does 3 not have a Bureau contract with water rights, but we are 4 still moving forward with metering. That was one of our 5 agreements in the water forum process, that we were going to 6 do that and we are carrying that out. 7 The other thing I would like to mention to the Board is 8 currently we have under construction the second largest 9 membrane filtration plant in the United States. And that 10 plant is scheduled to come on line before November of 2001, 11 and it will be there to treat surface water. Presently we 12 are under a noncompliance notice from the State of 13 California, and we have to notify our customers every four 14 months that we are not in compliance. Our rates have been 15 increased tremendously to bring this plant on line and to go 16 forward into this process with the threat that we would not 17 be able to use that facility for three months out of the 18 year is very significant to myself, to Board Members who are 19 here today. 20 So, I just wanted to bring that to your attention. We 21 appreciate the Board's consideration of our comments and 22 what we would look forward to is a substantial 23 supplementation of the final EIR. 24 Thank you. 25 CHAIRMAN STUBCHAER: Thank you. CAPITOL REPORTERS (916) 923-5447 47 1 Mr. Emmerson. 2 Good morning. 3 MR. EMMERSON: Good morning. Thank you very much for 4 allowing me to speak. 5 Everything has been said. Again, I come to you as the 6 President of the Carmichael Water District Board. I am also 7 an employee of the State of California for 20 years. I know 8 a little bit how the state works. I work for the Department 9 of Health Services, but I am not here in that capacity 10 today. But I am familiar with the compliance order that we 11 are under. 12 We are under a mandate from the State to go with 13 alternate sources. The alternate source that we chose, the 14 decision we made, was to construct this thing, this 15 22,000,000 gallon per day membrane filtration plant that 16 will be on line at an expense of $25,000,000. We decided 17 way back, years back, to increase our rates accordingly and 18 to put in a water treatment plant that would provide clean, 19 safe and reliable water for our district users. 20 In the face of what is being proposed now with the 21 curtailment of our water rights, especially during the 22 summer months, that particular $25,000,000 investment will 23 just cease to function, and we will not have the available 24 water through the existing interties to be able to supply 25 our users. We have no well capacity that will be able to go CAPITOL REPORTERS (916) 923-5447 48 1 ahead and meet our peak demand. We will be in 2 trouble. And, again, we have historical fact to show that 3 we will be in trouble if indeed the water rights or our 4 ability to go ahead and pull from the river and as suggested 5 in, I believe three and four, with the flow restrictions. 6 I ask you to -- I am very disappointed that the 7 analysis that was done by the Board did not include the 8 comments or address the comments, the last comments that we 9 had, in dealing with what our needs are as an individual 10 user, something that you are looking at I know on a 11 regional basis. But, again, your decision will affect us 12 specifically and affect us negatively. 13 I would hope that the staff would go back and 14 reconsider this. I would hope that you postpone or at least 15 reconsider what our needs are on an individual basis and 16 make the best decision that you can accordingly. 17 Again, I thank you very much for your time. 18 CHAIRMAN STUBCHAER: I want to thank you, Mr. Emmerson. 19 Questions of Mr. Emerson? 20 MR. KOZLEW: Excuse me, sir. I had one additional 21 comment. My name is Kozlew, and I am on the Board for the 22 water district and I am also on the Board for the Sacramento 23 Metropolitan Water Authority and the Sacramento North Area 24 Groundwater Management Agency. 25 CHAIRMAN STUBCHAER: Did you submit a card? CAPITOL REPORTERS (916) 923-5447 49 1 MS. GOLDSMITH: Since Mr. Kozlew was with us, I thought 2 you could accept one late. 3 CHAIRMAN STUBCHAER: All right. You have already used 4 about 20 minutes on this item. 5 So how much time do you need, Mr. Kozlew? 6 MR. KOZLEW: About two minutes. 7 CHAIRMAN STUBCHAER: All right, go ahead. 8 MR. KOZLEW: I appreciate your taking a moment. My 9 concern, sitting on both of the regional authorities, the 10 Groundwater Management Agency and the Metropolitan Water 11 Authority, is the lack of clarity on the availability of 12 water from the American River. 13 Right now I am looking at a review from a board meeting 14 of the Metropolitan Water Authority at which Jim Carson from 15 the Southern California Water Conference said in which the 16 State estimates that as the Aerojet plume expands -- we've 17 got toxic plumes that are from Aerojet and Mather and 18 McDonald Douglas have all joined, and they are approaching 19 the one from McClellan, that the alternate condition will be 20 reduction in groundwater production of 100,000 acre-feet per 21 year and that the problem will involve many of the purveyors 22 in our basin. 23 So, we are facing immediate loss of groundwater 24 production due to the expansion of these plumes. The irony 25 of it is with the finding in the Rancho Cordova area they CAPITOL REPORTERS (916) 923-5447 50 1 have turned off eight of their 23 wells, which leaves 2 material in the ground migrating right at Carmichael. We 3 are the next ones down the line from those plumes. So we 4 are in an immediate risk within the next several years, 5 based on migration rates, of loss of our groundwater. That 6 is why we went ahead and built the plant. 7 So, should we lose the surface water and you lose the 8 groundwater, there is a major problem. 9 The problem with the toxic plumes in the American River 10 basins has not been properly recognized. There are two 11 major cones of depression, one north and south of the 12 river. And the presumption that water can be drawn from the 13 users within the river also is not being properly 14 recognized. 15 We ask that in this process that you do look at the 16 process here, what is going on in the basin, and take a 17 better look at it. The basin is a part of the Sacramento 18 region, but it has exceptional circumstances. 19 And I thank you. 20 CHAIRMAN STUBCHAER: Thank you, Mr. Kozlew. 21 Gary Sawyers, to be followed by Christopher Campbell. 22 Morning. 23 MR. SAWYERS: Good morning, Mr. Chairman and Members of 24 the Board. I am Gary Sawyers. I am the general counsel for 25 Friant Water User Authority. CAPITOL REPORTERS (916) 923-5447 51 1 Like many others in the room, the Friant Authority 2 truly appreciates all the hard work of the Board and the 3 staff. We generally support the work that has been done in 4 the Draft Decision and the Draft Order. We do remain, 5 however, concerned about the order's treatment of Friant 6 Water. We appreciate the intent expressed in the errata 7 sheet. But, unfortunately, we are fearful that that doesn't 8 go far enough. 9 The inappropriateness and inefficiencies of using 10 Friant releases for Bay-Delta purposes I think has been 11 impliedly and expressly acknowledged by the Board a number 12 of ways before, and I won't go into that here. The real 13 concern that we have is that the San Joaquin River Agreement 14 in a number of places and a number of ways makes it clear 15 that Friant water was not to be utilized as part of San 16 Joaquin River Agreement that has been adopted in the Draft 17 Decision. That was explained to you, I think in great 18 detail, in the comments that were submitted in writing from 19 the San Joaquin River Group and I won't recite all the 20 contract provisions listed there. 21 But it is very clear, I think, that no Friant water was 22 to be used in connection with the San Joaquin River 23 Agreement or in connection with the obligations undertaken 24 under the San Joaquin River Agreement by the Bureau of 25 Reclamation. All the signatories to the San Joaquin River CAPITOL REPORTERS (916) 923-5447 52 1 Agreement understood that, even included a section in the 2 agreement that gives the Friant Water Users Authority the 3 sort of unique right to unilaterally terminate, without 4 mediation or further proceedings, the San Joaquin River 5 Agreement in the event Friant water is released of meeting 6 the requirements under the Water Quality Control Plan or 7 under the San Joaquin River Agreement. 8 Now, the errata sheet expresses a very helpful intent. 9 Again, we appreciate that, but unfortunately unless the 10 conditions that are imposed on Friant permits and water 11 rights are removed, it leaves uncertainty that the Friant 12 Water Users Authority was very anxious to not have it in 13 place. Removing that uncertainty was one of the main reasons 14 the Friant Water Users Authority participated in the San 15 Joaquin River Agreement in the first place. That 16 uncertainty creates a number of problems. 17 First of all, it leaves open the possibility that the 18 Friant water may still be used. That has a destabilizing 19 effect both on the River Agreement, but also on a number of 20 other important activities that are now going on. Not the 21 least of which is the consensus-based restoration efforts 22 that are now ongoing between the Friant water users on the 23 one hand and the environmental community lead by the Natural 24 Resources Defense Council on the other. 25 But perhaps most importantly by leaving open the CAPITOL REPORTERS (916) 923-5447 53 1 potential for Friant releases, Friant Water Users Authority 2 is deprived of the benefit of the bargain it negotiated for 3 with all of the parties to the San Joaquin River Agreement. 4 And the concern there is not only that Friant didn't get 5 what it negotiated for, but also that it sends a signal that 6 when other agreements are brought to the Board that parties 7 to those agreements cannot necessarily count on receiving 8 the benefit of the bargain they negotiated for. 9 We would like to urge the Board to take the simple step 10 of simply removing the conditions that are imposed on Friant 11 water rights in the Draft Order, confirm what the intent -- 12 confirm the intent that has been expressed in the errata 13 sheet today and remove the uncertainty that still lingers 14 even with the errata sheet as it is currently written. We 15 think that does no harm to the intent of the Board. We 16 think that does no harm to the Draft Decision. And we think 17 it sends the right message both in this particular agreement 18 and generally with other settlement agreements that might be 19 brought before you. 20 I will limit my comments to that, but will be happy to 21 answer any questions. 22 CHAIRMAN STUBCHAER: Any questions of Mr. Sawyers? 23 Thank you very much. 24 This seems to be a good time to take our morning 25 recess, so we will be adjourned for -- in recess for 12 CAPITOL REPORTERS (916) 923-5447 54 1 minutes. 2 (Break taken.) 3 CHAIRMAN STUBCHAER: I will call the meeting back to 4 order. I have been asked to read the cards in the order 5 they will appear, and I will do that: 6 Christopher Campbell, Patrick Porgans, Greg Wilkinson, 7 Jeanne Zolezzi -- we have three cards here -- Greg Thomas, 8 Alan Lilly, John Herrick, Dante John Nomellini, Tom 9 Shephard, Tim O'Laughlin, Dave Anderson, Dan Gallery, 10 Michael Jackson, Matthew Campbell, Paul Simmons, Virginia 11 Cahill, Paul Minasian, Cliff Schulz, Ernest Conant, Robert 12 Maddow, Dan Suyeyasu, Fred Etheridge, Alf Brandt, Tom Keene, 13 Ken Robbins, Arthur Godwin, David Aladjem. 14 Mr. Campbell. 15 MR. C. CAMPBELL: Thank you, Mr. Chair. Mr. Chair, 16 Board Members, my name is Christopher Campbell. I am from 17 Baker, Manock & Jensen in Fresno. I am appearing this 18 morning representing individual landowners who own 19 encroachment and expansion lands within Westlands Water 20 District and San Luis Water District. 21 We submitted extensive comments on the Final EIR and on 22 the Draft Decision, and we appreciate all the hard work done 23 by the staff during the holidays to respond to those. I do 24 have a couple of comments on the errata as it relates 25 specifically to staff's responses to our comments, however. CAPITOL REPORTERS (916) 923-5447 55 1 First on Page 129, a comment clarifying the treatment 2 of the expansion areas. It was somewhat unclear whether the 3 expansion areas were inside the place of use or outside the 4 place of use and what sort of work would be required to 5 bring those into production. We did get a clarification in 6 the errata that unfortunately was the wrong answer, but we 7 do appreciate the clarification. But apparently the 8 decision is treating them as outside the place of use and 9 requiring a site-specific place of use change to put those 10 in the place of use. 11 With all due respect to the Board, that essentially 12 makes it impossible to bring individual parcels into 13 production on the west side of Westlands in San Luis Water 14 District that are outside the place of use. It's possible 15 that landowners working with the districts and with the 16 Bureau and with Department of Fish and Game would be able to 17 afford to pay for mitigation plans to, say, develop 18 pistachios or other high value orchard crops or vegetable 19 crops on property that they own in the expansion area. But 20 adding the additional process of having to go through a 21 place of use change petition before this Board essentially 22 makes it impossible to get through all the hurdles on an 23 economic basis. 24 Certainly, if the Board wants to make the decision that 25 the expansion lands are essentially denied coming into place CAPITOL REPORTERS (916) 923-5447 56 1 of use at all, that's a decision that you make. But we 2 would appreciate that it be explicit so that we can go to 3 judicial review of that decision rather than leaving the 4 status vague, as it is essentially holding out the carrot. 5 There is a process that you can get in when in reality it's 6 not really feasible. We think it would be much more 7 ostensible since the mitigation plans are set out to leave 8 the expansion lands within the place of use and allow the 9 landowners to go through the process of site-specific 10 mitigation with Fish and Game, Fish and Wildlife and with 11 the Bureau or the water districts as lead agency. So this 12 Board wouldn't have to bother itself with individual 13 site-specific review of 40, 80, 160, 640 acres. 14 Second, on Page 147 and 171, the staff dealt with the 15 mitigation for encroachment lands. Once again, we do 16 appreciate the clarification of the intent of the decision 17 there, and it is very helpful to us in treating that 18 mitigation encroachment land, setting out the 19 procedure. 20 There is one element that would help further, though. 21 As we all know, the statute of limitations under CEQA is 22 very short. As I read the decisions as clarified, it states 23 that the decision is that mitigation is required for all 24 49,000 acres of land unless the landowners, working with the 25 Bureau, approve otherwise. Because of the short statute of CAPITOL REPORTERS (916) 923-5447 57 1 limitations under CEQA, it is very unlikely we could go 2 through the site-specific process of establishing which 3 lands require mitigation and which lands don't before the 4 time that we would have to file for judicial review under 5 CEQA, essentially just to preserve the landowners' rights 6 before we knew how this came out. It may be possible that 7 the Board could direct the staff to put in the type of 8 language that was included in the errata concerning Page 140 9 concerning the responsibilities for the Bay-Delta water 10 quality that the CEQA time to review those responsibilities, 11 specific responsibilities, would run from the time that that 12 decision was made. 13 A similar type of treatment of the mitigation 14 responsibilities could defer those CEQA time limits so that 15 we wouldn't have to have our clients running into court to 16 file just to preserve the statutes before they were able to 17 get a resolution with the Bureau and the Board as to which 18 encroachment lands were subject to mitigation requirements, 19 whether the Bureau is going to pay for that or try to impose 20 it on the landowners, and which lands are exempted from 21 mitigation requirements entirely. So, we'd appreciate it if 22 you would consider that, that modification, just to provide 23 a process that minimizes the expense of getting the review 24 of that issue. 25 Finally, I do want to point out that the landowners CAPITOL REPORTERS (916) 923-5447 58 1 that I represent are essentially innocent victims of this 2 process. Not to criticize the Board for the process, but 3 that the landowners relied on the Bureau. They relied on 4 the water district. They relied on the best information 5 they could get, and they did things in buying this property 6 and developing the property that were not only allowed but 7 essentially encouraged by federal crop subsidies, by water 8 subsidies. 9 This Decision goes a long way to protect the other Mr. 10 Campbell's clients, the folks who -- the creatures who 11 relied on habitat that was converted to farmland, the fish 12 that rely on the water, but really does nothing to protect 13 my landowner clients who were just as innocent in the 14 process. They were doing what they were told to do, what 15 they understood was appropriate, and we'd appreciate some 16 language in the Decision that acknowledges that there was no 17 wrongdoing on the part of the landowners to the extent that 18 there was any problems with water being delivered outside 19 the authorized place of use of the problem with the 20 permittee and it should be the permittee's problem to solve 21 that, not become a problem visited on the individual 22 landowner. 23 Thank you very much. 24 CHAIRMAN STUBCHAER: Thank you, Mr. Campbell. 25 Patrick Porgans, followed by Greg Wilkinson. CAPITOL REPORTERS (916) 923-5447 59 1 Morning, Mr. Porgans. 2 MR. PORGANS: Morning, Mr. Chairperson and Members of 3 the Board. Is it appropriate to put up an overhead, or is 4 it not? 5 CHAIRMAN STUBCHAER: Sure. 6 MR. PORGANS: Thank you very much. 7 CHAIRMAN STUBCHAER: You are going to need to use a 8 mike. 9 MR. PORGANS: No. I am just going to leave that up 10 there. It is part of the record. 11 Thank you, Mr. Chair. 12 I had to go down the stairs because I don't have the 13 spring in my legs I used to have. 14 At any rate, thank you for the opportunity, Mr. 15 Chairperson and the Board, to be here today and to share 16 these thoughts with you. I do want to acknowledge, first, 17 that the staff's commitment and the amount of work they have 18 done on this, and as you know I have been involved to some 19 degree over the last umpteen decades. 20 At any rate, to begin with, P&A is here not 21 representing any landowners. We are de facto public trustee 22 representatives. And with that thought in mind, we suggest 23 that the Board not adopt the proposed resolution and 24 decision referred to in Agenda Items 2 and 3. And without 25 getting into all the details as to why we make that CAPITOL REPORTERS (916) 923-5447 60 1 recommendation, we are going to highlight just a few of 2 them, and we are taking into account some of the erratas 3 that were made recognizing that they did deal with some 4 minor issues that we were concerned about, but not the 5 underlying issues. 6 During the hearing process, P&A stated its concerns 7 regarding the inherent deficiencies and flaws contained in 8 the Draft Environmental Impact Report for the Water Quality 9 Control Plan for the Bay-Delta Estuary. In particular we 10 were concerned -- one of the primary concerns we raised was 11 the objection over the use of the 7,000,000 acre-feet base 12 case for Delta water exports, demands assumed by the Board 13 and water purveyors, i.e., DWR and the Bureau. 14 It has been P&A's position that the base case is 15 overinflated by about a million acre-feet of water. And the 16 Board needs to keep in mind that we're using DWR data and 17 Bureau data when we came up with those numbers. We did 18 submit that as part of the handout we gave to you as Figure 19 1, and we also submitted it during the hearing process. 20 The 7,000,000 acre-feet is a very important assumption 21 because it establishes the boundaries of the existing 22 conditions, the base case. P&A continues to challenge the 23 validity and the reasonableness of the Board's decision to 24 hold firm to this number. The base case does not appear to 25 reflect the real existing conditions pertinent to Delta CAPITOL REPORTERS (916) 923-5447 61 1 historical exports. CEQA specifically requires that an 2 environmental impact describe the existing environmental 3 settings for a local and regional perspective, from that 4 perspective. When a proposed project is compared to an 5 adopted plan, the analysis must examine existing physical 6 conditions. I give you the citations and the case law 7 relative to that statement. It is inclusive. 8 The model views in the EIR is not based on reality. 9 That is not to say most models are. That is where I was 10 confused; I thought there was some reality there. But 11 forgive me. 12 Between -- we looked at the historical exports and 13 between '67 and '78 the average Delta exports, based on 14 CEDC data, average around 3.2 million acre-feet of water 15 with a high of about 4.9. Between '84 and '92, the average 16 exports were 4.9 million acre-feet with a high of 6.1. P&A 17 provided this information to the Board during the hearing 18 process. 19 The allegation that the CVP and SWP contractors may 20 lose up to 1,000,000 acre-feet of water using real numbers 21 does not hold water. To the contrary, under certain 22 conditions provided for under the plan, Delta water exports 23 could actually increase by an additional 1,000,000 acre-feet 24 of water under certain hydrological conditions. Therefore, 25 the only water that appears to be lost is paper water. More CAPITOL REPORTERS (916) 923-5447 62 1 important, the historical records and Delta water exports 2 does not support the 7,000,000 acre-feet level demand even 3 if one attempts to use project use and/or land use. 4 Government records attest to the fact that tens of 5 thousands of acres of land, agricultural land, will be taken 6 out of production in the San Joaquin Valley for drainage and 7 nondrainage purposes. Whereas, the Board's staff may 8 attempt to rebut these statements, the record will attest to 9 the fact that their rebuttal will be purely semantic. 10 This map is up there for one reason and one reason 11 only. I think about this map when I go to sleep, when I 12 wake up. I don't talk to my wife about it anymore or 13 anybody else. And by the way, she is out of town, that is 14 why I am here. 15 Looking at that San Joaquin Basin, down at the bottom 16 there on the map if you look at the lower portion of 17 California, you see that as a very deep purple color, and I 18 am sorry that everybody won't be able to see it as clearly 19 as it is, if you look up close at it, but it is for all 20 intents and purpose the single, largest contiguous area that 21 has a designation. And, you know, EPA can only come up with 22 this designation. Let me give you the quote on what it is. 23 It is the most -- more serious water quality problem, high 24 vulnerability. 25 CHAIRMAN STUBCHAER: Mr. Porgans, let the record show CAPITOL REPORTERS (916) 923-5447 63 1 that this is a color version of a map that you attached to 2 your written comments. 3 MR. PORGANS: That is correct. This is an EPA document 4 that came out in 1979 September, an index of water 5 indicators. 6 Thank you, Mr. Chairperson. 7 The second concern that we have here, the second 8 contention, point of content, P&A remains opposed to the 9 change of the point of diversion and the approval of the 10 petition of change of place of use and purpose of use, 11 regardless. For many years the Bureau has been making 12 illegal water deliveries beyond the authorized place of use. 13 A fact that the Department of the Interior confirmed. 14 Nevertheless, no enforcement actions have been taken. 15 Although P&A's objections are part of the record, 16 repeating one of the primary objections relative to this 17 concern is important. Nondrainage problem areas within the 18 respected service area which have and continue to contribute 19 to the degradation of the waters of this state, the 20 destruction of public trust resources, and I might add at 21 the expense of taxpayers. 22 I want to take a moment here to quote Mr. Manasian, who 23 represents some of the water contractors, and his argument 24 in Phase V, and I am going to take this out of context, but 25 there was comments before and after this: without a drain CAPITOL REPORTERS (916) 923-5447 64 1 there is no system to use the water best beneficially or 2 reasonably within the San Luis Unit. 3 You know that I'm totally opposed to completion of the 4 drain. I hope that is understood. But nevertheless I have 5 always been trying to deal with the issue of unreasonable 6 use as it pertains to the exportation of water into that 7 valley from day one. Now the issue here has to do with the 8 fact that there is a salt imbalance problem down there, and 9 that came out in Phase V. And I refer everyone to the 10 October 1998 transcripts, and we know where the problem is 11 coming from, imports and then reuse of the water within the 12 basin. 13 And I want to compliment the Executive Director, Mr. 14 Pettit, on his comment in the September-October edition of 15 Western Water where, quote, he states: 16 Salinity in the Central Valley and Southern 17 California is probably the biggest water 18 problem in the state that isn't being 19 adequately addressed. (Reading.) 20 I can't go into the amount of money that we are 21 talking about that has been spent on the drainage problem, 22 but I have submitted that information to you, and it is in 23 excess of a quarter of a billion dollars of taxpayer 24 dollars. Just under the Clean Water Act, the 303 (H) funds 25 since 1990 there has been $55,000,000 in grants expended on CAPITOL REPORTERS (916) 923-5447 65 1 drainage and drainage nonpoint source issues. That concerns 2 me also. 3 I think in closing what I would like to say is the 4 third point, is that if this Board goes ahead and approves 5 this as this particular decision and resolution, it is only 6 going to further reaffirm my concerns about my ability to 7 get a fair and impartial hearing before the Board. 8 Now, you understand I don't mean anything against this 9 Board. I've gotten to like all you people over the years, 10 but I am not here because I am trying to win a personal 11 contest. I don't know if that comes through. I am here for 12 one reason only. I am here because I truly believe that 13 there is a reason for me to bring this information to you. 14 I am not the purveyor of truth. God knows that I am going 15 to do everything that I possibly can to give you the 16 information as accurately as I can give it to you. 17 With that said, I would think that if we go ahead, and 18 I realize everybody has their little bit of concerns here 19 and there, and what is the alternative? You want to 20 postpone it for more years? No. We have a drainage problem 21 down there. I brought the 3000-year Mesopotamia Sumeria 22 scenario to you. I said we have a hundred years. We found 23 that a hundred years ago we had the drainage problem here. 24 We are no closer to resolving that drainage problem than we 25 were years ago. CAPITOL REPORTERS (916) 923-5447 66 1 The concern here is that the only hope that I had is 2 there were a few -- excuse me, each one of the Board Members 3 said they are concerned about the drainage issue. I'm 4 optimistically looking forward, as God is my witness, that 5 somewhere in the next millenium we are going to resolve 6 it. And with that thought, I wish all of you the very best 7 in the year. 8 CHAIRMAN STUBCHAER: Thank you, Mr. Porgans. We concur 9 with your hope. 10 MR. PORGANS: Thank you very much. I appreciate that. 11 CHAIRMAN STUBCHAER: Greg Wilkinson, followed by 12 Jeanne Zolezzi. 13 Morning. 14 MR. WILKINSON: Morning, Mr. Chairman, Members of the 15 Board. 16 I am here today representing the State Water 17 Contractors for two purposes, really. The first is to 18 express support for the considerable amount of the proposed 19 order and the proposed decision. I think the fact is, and 20 we would all recognize, you and your staff have dealt with 21 an enormous volume of material and in many, many respects 22 have gotten it right. 23 Unfortunately, with the time limits that I have on me I 24 am not going to be able to pat you on your back for specific 25 things. In general, I think you can rest assured that most CAPITOL REPORTERS (916) 923-5447 67 1 of us, you got a good deal of this correct. I am here also, 2 though, to express real concerns on behalf of state 3 contractors about several parts of the Draft Decision and 4 Order that we consider to be particularly important and to 5 express our views that in at least three or four respects 6 you didn't get it right and that the decision and order 7 improperly attempt to impose burdens on the State Water 8 Project that are not warranted. 9 I am going to move right to those. The first thing 10 that we are really concerned about are Paragraphs 1 and 2 of 11 the proposed order. These are the paragraphs on Page 123 12 that Mr. Howard referred to in his discussion of the errata 13 sheet earlier this morning. What those paragraphs attempt 14 to do is to make the CVP and the SWP solely responsible now 15 on an interim basis for implementing the Delta M&I and ag 16 standards as well as the outflow objectives of the 1995 17 Water Quality Control Plan. We don't believe that it is 18 appropriate at this phase of the hearings to do that. 19 And, frankly, I want to be very clear about this, our 20 concerns with regards to Paragraphs 1 and 2 of the proposed 21 order are not ameliorated by the fact Paragraph 1 is now 22 going to be on an interim basis rather than a permanent 23 basis and that there is sunset provision of two years to 24 both of those paragraphs. 25 What those paragraphs attempt to do is to allocate the CAPITOL REPORTERS (916) 923-5447 68 1 implementation responsibility for flow-dependent objectives 2 before the Board has received any evidence on the issue. 3 You did not notice this issue for hearing during Phases II 4 through VII. Apparently there is a general statement in the 5 notices about noticing what requirements for implementing 6 flow-dependent objectives in the 1995 plan should be adopted 7 in a water right decision. That is why you carved out Phase 8 VIII. That's what is going to be considered by the Board in 9 Phase VIII. I don't believe there was any notice that that 10 issue was before the Board in Phases II through VII. We 11 don't believe there was any opportunity to present evidence 12 on that issue in Phases II through VII and, perhaps most 13 importantly, we don't believe there was any evidence 14 presented on those issues of implementation of 15 flow-dependent objectives in Phases II through VII. 16 We think your record is deficient in terms of 17 attempting to impose those burdens on the state and federal 18 projects, even on an interim basis. You simply don't have 19 the evidence to support it. 20 I think it is equally important to note that there is 21 really no reason for the Draft Order to attempt to impose 22 these requirements through amendments of project permits on 23 an interim basis. Since December of 1994, both projects 24 have been managed by the operators of the projects to 25 implement the 1995 Plan. They have been doing that CAPITOL REPORTERS (916) 923-5447 69 1 voluntarily. They have been doing that with the 2 concurrence of others, my clients, the State Water 3 Contractors. 4 In addition, the State Project and Central Valley 5 Project also continue to be operated in compliance with the 6 provisions of D-1485 as Mr. Howard mentioned to you this 7 morning. With Phase VIII about to begin, with D-1485 still 8 in place, and with the projects voluntarily implementing the 9 conditions and terms of the 1995 Plan, it mystifies us, 10 frankly, why the proposed decision and order would lead to 11 this conclusion of attempting to impose these requirements 12 on the projects. In effect what they are doing is 13 preemptively adopting Alternative 2 of the seven or eight 14 alternatives that you have on an interim basis; and, again, 15 you simply have no evidence before you to support that kind 16 of preemptive decision to take that alternative and put it 17 in place. 18 We strongly believe that what the Board should do is to 19 delete Paragraphs 1 and 2 from the proposed order. You 20 don't need them. You have D-1485 in place. If you delete 21 Paragraphs 1 and 2, you will also need to take a look 22 at the condition of Paragraph 8, which is on Page 155 that 23 attempts to rescind certain paragraphs of D-1485. There is 24 no reason to do that now. If you are going to rescind 25 D-1485, do it at the conclusion of Phase VIII. Don't do it CAPITOL REPORTERS (916) 923-5447 70 1 now at the beginning of Phase VIII. 2 The second area that I would like to touch on this 3 morning relates to the implementation of South Delta 4 salinity objectives. We also believe that you need to amend 5 the Draft Order to delete SWP implementation of the Southern 6 Delta salinity objectives that are set forth in Table 2 of 7 the proposed order. We understand that, at least we think 8 we understand your purpose here, which is to try to 9 encourage the development of implementation of permanent 10 operable barriers in the South Delta. We support that as 11 well. We think that is where your order is headed. 12 The problem that we have is that, as you know, DWR is 13 currently able to install only temporary barriers in the 14 South Delta, and it is unable to do that in all months. 15 Moreover, even with the barriers in place on a temporary 16 basis the uncontradicted testimony is that the State Water 17 Project is unable to physically influence salinity in the 18 South Delta at all times. 19 What we fear is that by amending the State Project 20 permits to impose an implementation requirement on the 21 project with regard to the South Delta salinity objective 22 at this time, in advance of the development and installation 23 of permanent operable barriers, that what you are doing is 24 in effect setting the project up to fail. Because the 25 evidence is the project cannot, and undoubtedly will not, CAPITOL REPORTERS (916) 923-5447 71 1 at certain times will be able to influence South Delta 2 salinity in a manner that causes it to implement fully the 3 objectives that are set forth in Table 2. 4 Rather than do that, what we believe you should do is 5 the Draft Decision and Order should be amended, first, to 6 delete State Project compliance with the salinity standards 7 that are set forth for the South Delta in Table 2, and 8 instead of doing that, as you have already provided for in 9 Footnote 5 of the order, on Page 188, the Board ought to 10 review the South Delta salinity objectives following the 11 construction of permanent barriers and following the 12 acquisition of dependable operational data that results when 13 those barriers are in place. Then you will have a much more 14 intelligent ability to determine to what extent the State 15 Project should be responsible for implementing the South 16 Delta salinity objectives. 17 At this point you simply have no evidence that the 18 State Project can influence South Delta salinity will be 19 able to install barriers even on a temporary basis and, in 20 fact, the evidence is uncontradicted in the other direction, 21 indicating the project does not have the ability to 22 influence South Delta salinity. 23 I want to touch, also, finally on the legal user of 24 water issue that was raised by Mr. Birmingham. We share the 25 view that the Draft Decision is overbroad in regards to this CAPITOL REPORTERS (916) 923-5447 72 1 legal issue, legal use of water issue. And our real concern 2 here is that leads to unintended consequences, I suspect you 3 or your staff have perhaps thought of. 4 As you know, we have appeared, State Water Contractors 5 have appeared, in State Board hearings on water transfers 6 when those transfers seem to involve paper water and would 7 violate the no-injury rule of Section 1702. We did so on 8 the basis that we were legal users of water. We believe 9 that the opportunity to appear in those kinds of proceedings 10 should not be dependent upon raising public interest or 11 public trust issues. The contracts for the delivery of 12 State Water Project water have been validated by a decision 13 of the California Supreme Court, the Metropolitan Water 14 District versus Marquardt decision. That decision 15 established those contracts as valid and enforceable legal 16 agreements. 17 And as a consequence, we think that the State Water 18 Contractors at least are most assuredly legal users of water 19 in the sense that that term is used in Water Code Section 20 1702. Now, in our written comments we identified what we 21 think is the possible rationale of your staff that went into 22 the Draft Decision and that your staff intended to rely on 23 in writing the decision. It's set forth in the July 1999 24 Guide to Water Transfers that you have produced, and it 25 notes that disputes between contracting entities of a water CAPITOL REPORTERS (916) 923-5447 73 1 right holder are best resolved within that group and not 2 through the water rights process. 3 We don't disagree with that. What we do suggest, 4 though, is that if that is the theory on which your staff 5 and you intend to rely in resolving the issue that has been 6 raised by Westlands and other federal contractors, that you 7 need to clarify the Decision to say that. At the same time 8 the Decision, we think, ought to clarify that SWP and CVP 9 contractors are, in fact, legal users of water in the sense 10 that that term is used in Section 1702. 11 Let me mention one other unintended consequence of your 12 decision or perhaps intended consequence. As you may know, 13 the state and federal contractors have been very much 14 involved in, among other things, trying to keep agencies in 15 the federal government honest in their administration of the 16 law. (b)(2) litigation is one example, and another is the 17 recent listing of the splittail. Inevitably in those kinds 18 of cases the federal government at some point or another in 19 the litigation raises the issue of standard. Your decision 20 that state and federal project contractors are not legal 21 users of water isn't going to be necessarily fatal to 22 establishing standing for purposes of trying to keep the 23 feds, or if need be the state, honest in its administration 24 of the law. It certainly makes it more difficult. 25 Tom mentioned the indispensable party issue. The CAPITOL REPORTERS (916) 923-5447 74 1 standing question is also going to be raised in light of 2 this decision. Again, while your decision isn't going to be 3 fatal to our showing standing, it doesn't help it. For that 4 reason we think you have a better rationale than what's been 5 used to resolve the issues that have been raised. 6 We urge you to take that rationale as set forth in our 7 comments rather than to say that the project contractors are 8 not legal users of water. We don't think you need to go 9 that far. At least unintended consequences and comments 10 suggested may lead to anomalous results with fish considered 11 as legal users of water and the water contractors not. 12 Thank you. If you have any questions, I will try to 13 answer them. 14 CHAIRMAN STUBCHAER: Thank you, Mr. Wilkinson. 15 Any questions for Mr. Wilkinson at this time? 16 Jeanne Zolezzi, to be followed by Jeanne Zolezzi, to 17 be followed by Jeanne Zolezzi. 18 MS. ZOLEZZI: I am glad I am in such good company. 19 Good morning, Board Members. Jeanne Zolezzi of Herum, 20 Crabtree and representing at the moment Stockton East Water 21 District. 22 And Stockton East Water District is both disappointed 23 with and amazed by the Draft Decision. Our oral comments 24 this morning will focus on two parts of the decision that we 25 were particularly concerned with, the San Joaquin River CAPITOL REPORTERS (916) 923-5447 75 1 Agreement and South Delta salinity requirements. 2 In prior phases of this hearing Stockton East made very 3 clear that its approval of the San Joaquin River Agreement 4 was conditioned upon two very specific items. Those were 5 that implementation of the agreement not adversely affect 6 allocation of water to Stockton East under its CVP contract. 7 And there was the permits for the New Melones Project not be 8 amended. As you know, the Draft Decision adopts the San 9 Joaquin River Agreement and violates those two conditions. 10 The Draft Decision accepts the settlement presented by 11 the parties to the San Joaquin River Agreement and then it 12 thanks the state and federal projects for volunteering to 13 provide backstop commitments so that the Board did not have 14 to determine the responsibility of other parties. But what 15 this Board has to realize is that by making the backstop 16 provisions permit conditions on the New Melones Project, 17 this Board did, in fact, determine the responsibility of 18 parties. It determined that the CVP contractors from New 19 Melones Reservoir would be responsible for providing the 20 backstop flows without making a finding that that 21 responsibility was properly theirs. In fact, there was no 22 evidence received that the New Melones Project had specific 23 responsibilities for meeting those San Joaquin River 24 flows. 25 And this action is particularly disappointing because CAPITOL REPORTERS (916) 923-5447 76 1 conditions of the New Melones permits is not required to 2 adopt the San Joaquin River Agreement. As Mr. Wilkinson 3 just mentioned, these requirements have been voluntarily 4 complied with for the past five years. They can be 5 voluntarily complied with for the next 11 or 12 in the same 6 manner. 7 It is inappropriate to impose it as a permit condition 8 when there were no findings made that that permit condition 9 was warranted. Most importantly, in making it a permit 10 condition this Board is transforming a voluntary commitment 11 into a legal obligation, and that is very important for the 12 New Melones Project and drastically effects Stockton East 13 Water District. 14 By doing that, the State Board is inserting itself in 15 the ongoing contractual dispute between Stockton East Water 16 District and the Bureau of Reclamation. By imposing a legal 17 obligation on the Bureau under state law to release water 18 from New Melones Reservoir, the State Board itself is 19 contributing to the harm that will befall those CVP 20 contractors. And this Board in the past again and again has 21 told Stockton East Water District that it cannot involve 22 itself in the disputes between Stockton East and the United 23 States. Many orders have said that, and we disagree with 24 you. 25 But let's assume that you want to consistently apply CAPITOL REPORTERS (916) 923-5447 77 1 that approach that you have taken to stay out of this 2 dispute and not mediate how the Bureau should be using its 3 water. In this Draft Decision you totally go against that. 4 Here you are stepping in where you don't need to, and you 5 are telling the United States to affirmatively take water 6 from New Melones Reservoir and release it to meet the San 7 Joaquin River flow and Delta outflow requirements. You 8 don't need to do that. And you are affirmatively taking 9 sides and you may be destroying one of the arguments that 10 Stockton East has against the Bureau of Reclamation that it 11 cannot voluntarily reallocate our water. You're making them 12 do so under state law. 13 We would say that it is relatively easy to correct the 14 other deficiency in the document, the San Joaquin River 15 Agreement, which is it currently can injure the Stockton 16 East Water District because of its very implementation 17 without the new permit condition being imposed. The Draft 18 Decision, in fact, acknowledges that allocation from New 19 Melones could adversely impact the contractors, both in the 20 short term and long term, and that impact could vary from 21 zero to 31,000 acre-feet of water in a year, depending on 22 the hydrology. 23 Yet the Draft Decision imposes no conditions to 24 protects against that adverse impact. And those contractors 25 are entitled to that protection regardless of where you fall CAPITOL REPORTERS (916) 923-5447 78 1 on the dispute of whether the CVP contractor is a legal user 2 of water. We would fall on the side that they are, of 3 course, and we wholly join in the comments that were made 4 earlier. But even if you don't, the simple fact is you are 5 adopting a settlement agreement. You have not made findings 6 as to whether or not the CVP contractor is responsible for 7 any allocation of water or that the Bureau is responsible 8 for any allocation of water in the San Joaquin River. Yet 9 you are making a finding by adopting the San Joaquin River 10 Agreement, a settlement document, these parties can be 11 injured, and you are not protecting them. 12 Public interest would require that you would not allow 13 this to happen when you are adopting a settlement document 14 and not fully litigating the responsibility of the parties. 15 With regard to the South Delta salinity standard, we 16 applaud the finding in that decision that the actions of CVP 17 are the principal cause of the salinity concentrations 18 exceeding the objective at Vernalis. But then we are 19 confused that after making that finding the Draft Decision 20 doesn't go further and doesn't require any action whatsoever 21 by any party that would address that problem or would take 22 the burden of eliminating that problem off of the New 23 Melones Reservoir. Despite the acknowledgement that 24 regulation of controllable factors can attain the water 25 quality objections, the Draft Decision takes no action to CAPITOL REPORTERS (916) 923-5447 79 1 control South Delta salinity, other than the continued 2 releases from New Melones Reservoir. And we believe this is 3 a failure to adopt your own Water Quality Control Plan. 4 The Draft Decision must require that the Regional Board 5 impose waste discharge requirements on dischargers. The 6 Draft Decision must require the Regional Board adopt water 7 quality requirements for the San Joaquin River. While the 8 Draft Decision acknowledges that this Board many years ago 9 directed the Regional Board to do that, it fails to 10 acknowledge that the Regional Board is currently not doing 11 anything in that regard. It has missed every deadline that 12 this Board has given it. It was supposed to have final 13 draft water quality objectives ready in September of this 14 year, but it has not yet even begun the process of 15 developing those standards, and is over six months behind 16 schedule in doing so. 17 Most egregiously the Draft Decision simply fails to 18 order the Regional Board to adopt water quality objectives 19 upstream of Vernalis. This action is within the power of 20 this Board. It is the duty of this Board to do so to 21 implement the Water Quality Control Plan. 22 Finally, New Melones is not the CVP facility that 23 should be required to provide dilution flows if they are 24 determined to be reasonable, which we question. We believe 25 that only those permits for CVP projects causing the South CAPITOL REPORTERS (916) 923-5447 80 1 Delta salinity problem should be conditioned to remedy that 2 problem. And further there is no legal justification -- if 3 you are going to impose conditions upon all CVP projects, 4 there is no justification for imposing different terms on 5 the projects. And I assume you are aware that the Draft 6 Decision imposes requirements on permits for CVP projects 7 other than New Melones Reservoir, that they're conditioned 8 upon implementation of water quality objectives for 9 agricultural beneficial uses in the Southern Delta, 10 specifically including the Vernalis objective. That is all 11 it says. 12 With regard to the New Melones Project, however, 13 permittee shall release water from New Melones Reservoir to 14 maintain Vernalis agricultural salinity objectives and no 15 diversion is authorized for consumptive uses unless that 16 standard is met. These are very different requirements, and 17 they impose unequal obligations on different projects of the 18 CVP who you have concluded is wholly responsible for the 19 problem. 20 And we were very impressed this morning when Mr. Howard 21 could stand before you with a straight face and explain how 22 this was justified in the Draft Decision, and even made more 23 egregious by the proposed errata sheet. What Mr. Howard 24 said was that the Draft Decision concludes that the CVP is 25 responsible for salinity and that we should note that CAPITOL REPORTERS (916) 923-5447 81 1 responsibility in all the permits, but that we certainly 2 didn't mean that anyone other than New Melones would have to 3 release water to remedy that situation. And that is exactly 4 what these conditions and what the errata sheet makes sure 5 will happen. It makes sure that no releases will be made 6 from Friant. It infers that no releases have to be made 7 from any other reservoir, but it specifically requires 8 releases from New Melones Reservoir. This admission just 9 absolutely illustrates the disparity that this Board has 10 created between one project of the CVP and the rest, which 11 there is no justification for. 12 We agree that releases from Friant are no better an 13 idea than releases from New Melones Reservoir. They are 14 both unwarranted. However, we ask you to take one simple 15 step and that is to make these permit terms for all CVP 16 projects consistent. If you are going to include in the 17 errata sheet that releases do not need to be made 18 particularly from Friant Reservoir, then include New Melones 19 Reservoir in that errata statement, or else require that all 20 CVP projects include a permit condition similar to New 21 Melones, that water is required to be released. There is no 22 justification for different treatment between New Melones 23 and the other projects. 24 But what this Draft Decision does is not only create a 25 disparity between New Melones and other CVP projects for CAPITOL REPORTERS (916) 923-5447 82 1 South Delta salinity, it imposes upon New Melones the 2 affirmative obligation to release water for all San Joaquin 3 River objectives by making them responsible for backstopping 4 the San Joaquin River Agreement, and, adding insult to 5 injury, you also impose new conditions on New Melones for 6 meeting Sacramento standards and broad Delta outflows. So 7 now what we are finding out is New Melones is responsible 8 for meeting all of the requirements of the Water Quality 9 Control Plan. Even more so than the State Water Project and 10 even more so than any other very Central Valley Project 11 facility. 12 And what I would bring to your attention is that the 13 Draft Decision acknowledges at Page 131 what the Racanelli 14 Court required, that the State Board has authority to apply 15 public interest considerations to its decisions. In the 16 Draft Decision, however, we would respectfully state that 17 the State Board has completely failed to do so with regard 18 to the New Melones Project. 19 Turning to the second sheet or blue card that I've 20 submitted, I am also here this morning because other parties 21 could not be available. On behalf of the North San Joaquin 22 Water Conservation District, their special counsel for 23 Bay-Delta purposes is Karna Harrigfeld, who I am very sad to 24 say is in Hawaii rather enjoying this day with us here, and 25 Ed Steffani, the general manager of North San Joaquin is ill CAPITOL REPORTERS (916) 923-5447 83 1 today. He was going to be making this presentation, but I 2 will be making it on his behalf. 3 North San Joaquin Water Conservation District opposes 4 adoption of the East Bay Mokelumne Settlement Agreement in 5 its current form. First, the Draft Decision adversely 6 impacts nonsettling parties of which North San Joaquin is 7 one. Evidence submitted in the Bay-Delta hearings shows 8 additional water made available from the Mokelumne River for 9 fish will result in a loss of water to North San Joaquin 10 because its surplus water supply will take the first 11 deficiency before any impact whatsoever to East Bay MUD, 12 the party volunteering the water. 13 Because this is not a legal application of 14 responsibility, again, the East Bay MUD agreement is a 15 settlement agreement, the Board must protect under the 16 public interest those nonsettling parties. The settlement 17 perpetuates the fundamental unfairness of past decisions of 18 this Board on the Mokelumne River. When this Board 19 allocated water rights on the river in 1976, it granted East 20 Bay Mud priority, even though North San Joaquin's water 21 right application had been filed before East Bay MUD's water 22 right application. The underlying premise for reversing 23 priority and giving East Bay MUD preference was that North 24 San Joaquin could be more easily served from the Folsom 25 South Canal, and we all know where that has led us. CAPITOL REPORTERS (916) 923-5447 84 1 As you know, neither the Folsom South Canal nor a 2 contract with the Bureau has materialized for North San 3 Joaquin. Instead, the district lies within a water rich 4 area, but is effectively foreclosed from being able to tap 5 into the water that runs by its front door. 6 The Draft Decision should not perpetuate this 7 injustice. The consequence to the district of 8 implementation of Mokelumne River Settlement Agreement will 9 be an increased reliance on groundwater which would 10 exacerbate the overdrafting of an already critically 11 overdrafted basin. 12 The State Board still has an opportunity to cure the 13 fatal flaws in the Draft Decision and the district believes 14 this could be accomplished in one of two ways. First, this 15 Board could adopt the East Bay MUD Mokelumne Settlement 16 Agreement with a reverse in priority. So that once again 17 North San Joaquin's water right application, 12842, would 18 have priority over East Bay MUD's water supply application 19 on the Mokelumne River. Therefore, East Bay MUD's water 20 would go first under the settlement agreement. 21 Another alternative which would accomplish the same 22 purpose is that the State Board could condition the water 23 rights settlement agreement and the permits of East Bay MUD 24 on the Mokelumne River to require a reduction in exports 25 instead of permitting East Bay MUD to dedicate North San CAPITOL REPORTERS (916) 923-5447 85 1 Joaquin's water supply to the fish as proposed in the 2 settlement agreement. Either one of the options reserves to 3 North San Joaquin Water Conservation District, an in-basin 4 user, an acceptable amount of water to which it is entitled, 5 and fundamental fairness would dictate no less. 6 Mr. Chairman, on the third card, Solano County Water 7 Agency, we don't believe there will be any opposition to the 8 Putah Creek Settlement Agreement, which we support. If 9 there is, we might want an opportunity later to make 10 comments on that agreement. 11 Thank you. 12 CHAIRMAN STUBCHAER: Thank you, Ms. Zolezzi. 13 Next will be Greg Thomas, followed by Alan Lilly. 14 Morning, Mr. Thomas. 15 MR. THOMAS: Morning, Mr. Chairman and Members of the 16 Board. Thank you for this opportunity to address you on the 17 proposed water rights order. I am appearing here also for 18 the Bay Institute of San Francisco, and I apologize for my 19 raspy voice. I seem to have the company cold today. 20 Well, I also congratulate the Board on the long trek 21 that you began in 1987, and I have been along for the entire 22 ride. But I have to say that I don't think you're yet at 23 the finish line. The Board issued an injunction to the 24 parties to work together to propose negotiated settlements, 25 arrangements for this water right order. And in the case of CAPITOL REPORTERS (916) 923-5447 86 1 the San Joaquin River Agreement, many parties, including the 2 two environmental parties that I represent today, spent a 3 year and a half going through some 24 drafts in arriving at 4 a proposal that we laid before you. 5 The State Board, however, has treated this proposal in 6 a highly selective fashion. The terms of the agreement are 7 quite plain, that the obligations of the parties come into 8 play if, but only if, the State Board satisfied five 9 preconditions. Of those five preconditions to the agreement 10 coming into effect, the State Board actually declined to 11 adopt three of them. The Board declined to make a finding 12 of protective equivalency. You will find this, by the way, 13 in Paragraph 10 of the San Joaquin River Agreement. The 14 Board declined to make a finding of protective equivalency, 15 as was required by that paragraph. 16 Perhaps, equally important, the State Board failed to 17 convert the obligations, the negotiated obligations, of 18 state and federal water projects into permit terms and 19 conditions that would be enforceable. Now, that is a 20 problem because one of the benefits of the bargain 21 negotiated on behalf of the environmental interests in this 22 agreement were export limitations that are found in 23 Paragraphs 6.4 that are not included in the terms of water 24 right order. What the State Board in sum essentially did 25 was to codify the Vernalis flow features of the San Joaquin CAPITOL REPORTERS (916) 923-5447 87 1 River Agreement, but then fail to make the findings and take 2 the actions that it gives legal vitality to the rest of the 3 agreement. 4 Now, as one of the environmental negotiators, I can 5 tell you quite plainly that the benefit of the bargain that 6 we thought we were getting in negotiating this agreement 7 were those export limitations which are more protective of 8 the fishery resources than either the Water Quality Control 9 Plan would have been, or is, or the biological opinions. So 10 this is a matter of some particular concern to us. We think 11 also to the Fish and Wildlife Service and we assume to the 12 California Department of Fish and Game. 13 Now, to be sure these export limitations were set up in 14 a highly fragile fashion in this heavily negotiated 15 agreement, that is to say any party can on a yearly basis 16 object to the operating plan, the annual operating plan, 17 containing these export limitations. But make no mistake, 18 while fragile, these obligations were meant to be mandatory. 19 As you will see looking at the agreement, mandatory language 20 is used. To paraphrase, the state and federal projects must 21 impose the export limitations unless the right reserved by 22 all parties to object is imposed. 23 So what shall we do about this? The parties to the San 24 Joaquin River Agreement agreed among themselves, as one of 25 the terms of this agreement, to reconvene and reconsider CAPITOL REPORTERS (916) 923-5447 88 1 this delicately balanced agreement in the event the State 2 Board did not make the findings and take the actions that 3 are preconditions to its coming into legal force and 4 effect. Because of the importance of the fishery protection 5 measures, which were not picked up in the State Board order, 6 it is the intention of the environmental party, we think we 7 are joined in this by the Department of the Interior, to 8 invoke that provision, to ask the parties to reconvene and 9 further propose to the State Board provisions to include in 10 the final review of water right order or in the alternative 11 to agree among ourselves how to address, resurrect these 12 features of the San Joaquin River Agreement. 13 So my request to the Board is to give us the 14 opportunity to do that before finalizing this order, and 15 that is my statement today. 16 CHAIRMAN STUBCHAER: Thank you, Mr. Thomas. 17 Any questions of Mr. Thomas? 18 Next we will hear from Alan Lilly, followed by John 19 Herrick. We don't know if we will make that before lunch, 20 Mr. Herrick, or not. We will get to you. 21 MR. LILLY: Probably will. 22 CHAIRMAN STUBCHAER: How are you, Mr. Lilly? 23 MR. LILLY: Morning, Mr. Stubchaer, Members of the 24 Board. My name is Alan Lilly with the law firm of 25 Bartkiewicz, Kronick & Shanahan. CAPITOL REPORTERS (916) 923-5447 89 1 I am appearing here today on behalf of Sacramento 2 Valley Water Users. Which is a group of many districts in 3 the Sacramento Valley that has been working together in this 4 matter. We submitted a letter through Andy Hitchings of 5 DeCuir & Somach, dated December 23, 1999. There was also 6 comments submitted by David Aladjem from Downey, Brand on 7 that same date. 8 Also, Yuba County Water Agency did file separate 9 written comments on the EIR itself. 10 I just wanted to -- first of all, by way of background, 11 the Sacramento Valley Water Users did not participate in 12 detail in Phases I through VII because their water rights 13 were not directly implicated by those phases. Obviously, we 14 do intend to participate in detail in Phase VIII because 15 there are serious potential impacts on our water rights. 16 The one exception was the Yolo County Flood District did 17 participate in Phase IV. We don't have any comments on the 18 aspect of the Draft Decision today. 19 Three quick comments is all I would like to make today. 20 These track the comments in Mr. Hitchings' letter. First of 21 all, the backstop by the Bureau of Reclamation and DWR of 22 the San Joaquin River Agreement, the decision and findings 23 on Page 28 make clear that this backstop is an integral part 24 of agreement, and obviously that was the intent. And there 25 was testimony from Bureau representatives during the hearing CAPITOL REPORTERS (916) 923-5447 90 1 that there would be no carryover impact or transferred 2 impact on the Sacramento Valley water users from the 3 decision. We had proposed that there be some specific 4 language added to the order at Page 153, and that is not 5 included in the errata, and we simply request that the 6 following two sentences be added as an additional term and 7 an additional term on Page 153. And I will just quote real 8 quickly from Mr. Hitchings' letter. The sentences are, this 9 would be a permit condition: 10 USBR and DWR shall insure that their actions 11 to backstop the SJRA, including any increase 12 in their flow contributions from the 13 Sacramento River system to make up any 14 shortfall of San Joaquin contributions and 15 Delta outflow, shall not cause reductions in 16 water diversions and supplies for water right 17 holders in the Sacramento River Basin. 18 (Reading.) 19 The second sentence really tracks the reporting 20 requirements that are elsewhere, several points in the 21 decision, and it reads as follows: 22 The USBR and the DWR shall file annual 23 reports with the Chief of the Division of 24 Water Rights by December 31 of each year, 25 describing the accounting of their actions to CAPITOL REPORTERS (916) 923-5447 91 1 backstop the SJRA, including any resulting 2 increase in flow contributions from the 3 Sacramento River system and confirming that 4 there have not been any resulting reductions 5 in water diversions and supplies for water 6 right holders in the Sacramento River Basin. 7 (Reading.) 8 Again, we think the findings in the decision are there, 9 but it certainly would be helpful for all of us if that 10 would be added to the order just to clarify and specifically 11 and explicitly require the Bureau and DWR to do that. 12 The second point also is, I think, no dispute, and that 13 is very simply that the Board is not doing anything in this 14 decision to prejudge the Phase VIII issues. I know other 15 commenters have expressed a concern that the Board seems to 16 be prematurely implementing or adopting or favoring parts of 17 flow Alternative 2. We have concerns about language being 18 misconstrued to show a preference or preadoption for flow 19 Alternatives 3 or 4. And very simply, one sentence, which 20 we propose to be added to Page 139, would take care of 21 this. It would say: "Of course, this decision does not and 22 is not intended to express a preference for any specific 23 flow alternative or method that the SWRCB may select for 24 implementation of the water quality objectives for Delta 25 outflow and Sacramento River flows from Rio Vista for fish CAPITOL REPORTERS (916) 923-5447 92 1 and wildlife beneficial uses following the conclusion of 2 Phase VIII of the Bay-Delta water rights hearing." 3 That might need slight amended space on the errata 4 sheet that we received this morning regarding terms one and 5 two. It is basically for any of the water quality 6 objectives now that those are going to be put on an only 7 interim basis with the amendment to term one. 8 Again, we think a one-sentence clarification would give 9 the parties a lot of comfort as to what the Board is not 10 doing in this water right decision. 11 And, finally, our third comment concerns CEQA, 12 California Environmental Quality Act. And we had proposed 13 some language just to again clarify that this water right 14 decision is not going to be prejudging or even adopting for 15 CEQA purposes any findings regarding the Phase VIII issues. 16 The errata sheet we received this morning largely addresses 17 our concerns. However, we have, I think, five or six words 18 which we would request be changed in that, and I will just 19 read those into the record right now, and I will read them 20 slowly so that staff can take notes. 21 On Page 3 of the errata sheet, the third bullet 22 references Page 140. And if we go down to the 12th line, 23 actually the sentence starts on the 11th line and carries 24 over to the 12th line. The sentence begins "With respect to 25 the actions taken in the future, in any future SWRCB CAPITOL REPORTERS (916) 923-5447 93 1 decision using the Bay-Delta EIR" and here it says a new 2 period, and we would suggest that the word "a" be deleted 3 and that "limitation" be added between "new" and "period." 4 So, it reads "new limitation periods," adding an "s" to 5 "period." Adding the word "limitation" just to clarify what 6 we are talking about because the period has never previously 7 been defined there. Secondly, there may be different 8 periods for the reconsideration and judicial review that are 9 referred later in the sentence. 10 That phrase would simply read, "new limitation 11 periods," and the next line would remain the same, "will 12 commence at the time of the future decision for parties to 13 request reconsideration by the SWRCB and to seek judicial 14 review based on," and we would insert "any" before "causes." 15 So it would read, "any causes under," and then replace the 16 word "both" with the word "either." So it would read, 17 "either CEQA," and then replace "and under" with "or." So 18 it would read, "Either seek CEQA or provisions governing 19 petitions for writ of mandate. At that time the SWRCB 20 intends to file a new notice of determination under CEQA." 21 So I will just read the sentence as amended one more 22 time, if the Board will bear with me. Then I am done. 23 "With respect to the actions taken in any future SWRCB 24 decision, use of the Bay-Delta EIR new limitation periods 25 will commence at the time of the future decision for parties CAPITOL REPORTERS (916) 923-5447 94 1 to request reconsideration by the SWRCB and to seek judicial 2 review based on any causes under either CEQA or provisions 3 governing petitions for writ of mandate." 4 And, again, we just request the clarification for 5 efficiency purposes. We think it can significantly narrow 6 any potential court actions involving CEQA, which is both in 7 our interest and the Board's interest from an efficiency 8 point of view. Just stated simply, if there is going to be 9 legal challenges for CEQA, they should concern the issues 10 that were addressed in this water right decision and not 11 issues that may be addressed after Phase VIII. We don't 12 even know what the final project is going to be for Phase 13 VIII. That is not a criticism of the Board, but just a 14 meaning that we don't want to get into judicial review 15 before the Board has even acted. Frankly, it is possible 16 after the Board has issued its Phase VIII decision, we may 17 all be happy with that and not need to file any challenges. 18 We wouldn't want to be filing challenges earlier if we 19 didn't have to. 20 With that I will be glad to answer any questions from 21 the Board. 22 CHAIRMAN STUBCHAER: Any questions? 23 I guess not. 24 Thank you, Mr. Lilly. 25 MR. LILLY: Thank you. CAPITOL REPORTERS (916) 923-5447 95 1 CHAIRMAN STUBCHAER: Mr. Herrick. 2 Good morning. 3 MR. HERRICK: Good morning. Thank you Mr. Chairman, 4 Board Members. John Herrick on behalf of the South Delta 5 Water Agency. 6 As others have said, we want to compliment the Board 7 and its staff on the huge task that is mostly through now. 8 We do appreciate the Board's obvious attempts to address 9 the issues raised by South Delta as well as other agencies. 10 We don't want our comments or criticisms to take away from 11 that. Again, I just want to say that again, there is a 12 large appreciation in our area for the efforts that have 13 been made to address our concerns. 14 I would also like to just incorporate prior comments on 15 both this Draft Decision as well as other phases throughout 16 these hearings, and then move on to our concerns. 17 Our main concern, as we stated, with the Draft Decision 18 is with regard to the potential effect of the quote that 19 first appears on Page 167, and it is a condition potentially 20 upon the obligation to meet water quality objectives. And I 21 will read in the middle of the page, although it occurs in 22 other places, too. 23 The Draft Decision says: 24 If within five years licensee/permittee is 25 unable to comply with the above requirement CAPITOL REPORTERS (916) 923-5447 96 1 to meet the water quality objectives for 2 agricultural beneficial uses at Vernalis... 3 (Reading.) 4 Then it goes on licensee will report to the Chief of 5 Water Rights. Then Chief of Water Rights will decide 6 whether or not something has to be done. When you put that 7 caveat below an obligation to meet salinity standard, there 8 is a tremendous question as to what the effect of the 9 salinity standard is now. As we have said all through these 10 hearings, we are concerned that if you adopt an alternative 11 that doesn't anticipate meeting the salinity standard, what 12 do we do when the salinity standard is not met? 13 With this additional language, we can bet that if there 14 is a salinity standard violation of import to us and South 15 Delta challenges that, most of us will be together in the 16 same room and the Bureau of Reclamation will be saying, 17 "Well, we knew we weren't going to meet it all the time. 18 This is within that five-year period, that if we can't do 19 it, we are going to report and the Chief of Water Rights 20 will decide if there is something that needs to be done." 21 That leaves us without a remedy. The reason that is 22 important to this case is, although you are doing a 23 staged-implementation of fish and wildlife objectives, 24 appropriately so probably, there doesn't seem to be any 25 purpose in having contingent salinity requirements. D-1422, CAPITOL REPORTERS (916) 923-5447 97 1 way back when, has been 15, 20 years. We have a 500 TDS 2 standard. It doesn't seem at this point in the water 3 disputes that there should be any conditional obligation to 4 meet the salinity standard. In fact, the Board finds in the 5 decision that we know the reason why there is a problem: it 6 is the operation of the CVP. 7 We are very concerned with that language. We suggested 8 additional language. And I don't want to be prophetic, but 9 if it is left as is, then it's a sure bet that South Delta 10 has no remedy when the water quality standard is violated in 11 the future. 12 The other issue which is related to that deals with the 13 errata regarding the use of Friant water. Now South Delta's 14 never stood before you and demanded Friant water. But we 15 said it shouldn't be out of mix and everything should be 16 reasonably evaluated. Again, I don't know what the effect 17 is of having a permit condition which says all of these 18 permits have conditions that state the water quality 19 objectives in the Delta shall be met, but we are not 20 ordering them to do with their water. 21 Again, what happens when there is a challenge? Does 22 South Delta challenge all the permits? Is there no remedy 23 against any particular permit? What is the basis of a 24 permit condition unless it is enforceable or mandatory? So 25 we have a little question about the changes in the errata. CAPITOL REPORTERS (916) 923-5447 98 1 We think the original document was more clear on that. 2 If the CVP wants to enjoy the benefits of all of its 3 projects, it should abide by the permit terms and conditions 4 on those projects, not ignore the harm that some of those 5 projects cause. And the Board directly concluded, as also 6 stated in the 1980 report we submitted as evidence, that the 7 CVP operations cause the salinity problem at Vernalis and 8 further downstream due to decreased flows and increased 9 salt. 10 At various places in the Decision it states that we 11 want to make sure that decision does not result in less 12 water or more violations or that we want to make sure that 13 the users are not deprived of water. That is a very clear 14 and precise description of making sure that this decision 15 doesn't add harm. But the problem is the existing harm. 16 The additional harm caused by this decision, if any, when it 17 occurs, will be somewhere significantly less than the 18 existing harm. So given the language of the decision, the 19 result is going to be South Delta complains there is less 20 water in the channel, and the defense is well there is this 21 much less, a large amount less because of preexisting 22 conditions, and this decision only added this much 23 difference, so there is no harm. 24 So, the decision doesn't go far enough to protecting us 25 because the additional harm that may result from the CAPITOL REPORTERS (916) 923-5447 99 1 decision will be subsumed into existing harm. 2 We thought it was very interesting, I don't want to 3 waste time with superfluous stuff, but the Draft Decision 4 recommended that South Delta seek a contract with the 5 Bureau. And as I said in my written comments, I would like 6 to remind the Board that we tried that to no avail. And, by 7 the way, that draft contract that was produced included 8 releases of water from the Newman Wasteway. But beyond 9 that, the USBR told everybody at the hearings they are not 10 entertaining new contracts. They don't have any extra water 11 to supply to anybody. So that doesn't answer anything. 12 That leads into the area of origin issue. We agree with 13 Central Delta and Stockton East in their arguments along 14 those lines. The area of origin statutes we believe are 15 incorrectly interpreted and applied. For those protections 16 to mean anything there needs to be requirements now that the 17 people and users in the areas of origin will receive some 18 sort of benefit. And if the Bureau's position that only 19 existing contracts only to existing amounts are the 20 application or area of origin statutes, those statutes don't 21 mean anything. 22 Moving on, the recirculation idea, again we appreciate 23 that. We join in Stockton East's concerns that although the 24 Draft Decision recognizes the cause of this San Joaquin 25 salinity problem, it then doesn't mandate any particular CAPITOL REPORTERS (916) 923-5447 100 1 actions to address that. It does increase the number of 2 permits that are required to be needed. It doesn't say to 3 the Bureau, "You do this." "You do this." "Get this 4 done." We think that is a shortcoming. We also would like 5 the recirculation proposal to include the ability to help 6 meet other objectives, not just fishery flow objectives. 7 We have concerns that don't deal with your order, that 8 if the Bureau is developing a recirculation proposal, it 9 will probably crash and burn before it goes onto the 10 runway. But you did state the we are supposed to be a part 11 of that so we appreciate that. We also appreciate receiving 12 the Interior Delta Standards being implemented to a certain 13 degree. We do believe there should be an affirmative duty 14 on the part of the USBR and to a lesser degree on the part 15 of DWR to mitigate the existing harm; and that existing harm 16 is evidenced by the Interior Delta standards -- Southern 17 Delta standards, excuse me. 18 We do take exception to the statement in the Draft 19 Order that says South Delta could implement water manager 20 practices to help meet Southern Delta salinity 21 requirements. That doesn't quite work, in our opinion, if 22 the water traveling past Vernalis is at the standard. Then, 23 that means there can be no consumptive use of consumptive 24 use of water in the South Delta because all consumptive uses 25 decreases the amount of water, thus concentrates the salts. CAPITOL REPORTERS (916) 923-5447 101 1 It doesn't make sense to say the salt coming down the 2 channel must be regulated by the people at the end of the 3 channel. We know you are not going to change that. We just 4 want to put that on the record. We think that was sort of a 5 misstatement. 6 The next area I want to talk about is the Delta 7 Protection Act. We disagree again with staff's 8 interpretation of that. That statute is pretty clear, those 9 statutes, and they must mean something. This Board should 10 be the body to implement those. And although the Board does 11 say that, notwithstanding its arguments on legal users of 12 water and the Delta Protection Act, it finds -- it has found 13 that the South Delta agricultural uses need to be protected. 14 But then it doesn't require to implement those protections. 15 It goes into the backstopping as a method or potential 16 contract. But as has been stated already, the backstopping 17 is a promise by the Bureau that the already insufficient 18 supplies at New Melones can be used to meet the objectives 19 that they can't meet anyway. 20 So that is kind of a circular argument. It doesn't 21 work. It doesn't give us any protection. We think the 22 Delta Protection Act is very clear. The caveat carve out by 23 staff regarding a supply of water instead of the water 24 released for water quality is burdened by the area of origin 25 statutes. You can't say a statute that says there should be CAPITOL REPORTERS (916) 923-5447 102 1 no extra cost for supplying the water is subsumed in other 2 statutes that say you have to pay for the water. 3 Finally, with regard to the joint point of diversion, 4 we are not sure why the response plan required by the Bureau 5 and DWR does not require our approval. That may sound 6 presumptuous on our part, but the past history of the 7 existing response plan is, shall we say, insufficient 8 modeling or modeling of not all of the required parts, 9 arguments. We think it is necessary that there be a 10 critical oversight to the development of this response plan, 11 not just agreement by the state and federal governments and 12 submit it to the Board. We think that is an important 13 matter. 14 As we have seen also in existing joint point requests, 15 what happens is if it doesn't quite fit in the joint point 16 criteria, whether it's the response plan or the plan of 17 operations which will be developed supposedly, then a 18 request for an emergency permit change is submitted, and 19 then there aren't any rules. And the past practice has 20 shown protection of South Delta water levels is less 21 important than the emergency needs to fill San Luis. So by 22 giving those parties the ability to do this, I think you are 23 again letting them escape out the back door. 24 The CALFED Ops Plan for operation of the joint point, I 25 think it is important to notice, as referred to earlier, it CAPITOL REPORTERS (916) 923-5447 103 1 is very questionable how CALFED is actually helping 2 anybody. We've let the Board know through other processes 3 that during the 45-day closure of the cross channel gate 4 that the South Delta -- certain South Delta areas, 5 especially Middle River, went dry everyday. When I say dry, 6 there was a trickle down the middle. But that was 45 days 7 of no water at the low tide. That makes a big deal. We had 8 an individual who was trying too irrigate 40 acres; it took 9 him three weeks instead of three days. So saying that 10 CALFED Ops and listing the state and federal agencies that 11 participated in that will develop an operations plan and 12 that will constitute no harm to third parties is deficient. 13 We don't believe that is enough. 14 Let me just quickly turn to the EIR. We would like to 15 note that the Draft Decision states on Page 37 that there 16 has been no modeling done and the effects of this project on 17 return flows. That right there makes it -- that there 18 sounds -- sorry. That should make the document deficient in 19 and of itself. Not only did the SJRA EIR assign a value of 20 zero to the effects on return flows, but the existing EIR 21 didn't do any further analysis of that. That gets back, 22 again, to the backstopping issue. You can't say that the 23 Bureau will be required to make up those differences if 24 there is no identified extra source of water, which there 25 certainly isn't. CAPITOL REPORTERS (916) 923-5447 104 1 I am trying to hurry. I am approaching the end here. 2 We think the joint point approval, especially for the 3 unlimited stage three pumping, certainly should come before 4 the Board. Equivalency of protection of South Delta 5 barriers, for the South Delta barriers, is a very, very 6 tough standard for us to enforce. We are right now fighting 7 with CALFED over what will protect us. That sort of 8 significant change in levels of export should require a new 9 hearing and consideration by the Board so that we have some 10 valid opportunity to affect the result as it is now, to put 11 it nicely, CALFED's operation screw. They don't care much 12 for South Delta's input. Anybody who has participated in 13 the No Name Group's discussions knows when either Alex or I 14 say something there is pause and then they say, "Let's move 15 on." So that -- the limited joint point should certainly 16 come back before the Board. 17 In conclusion, I would just like to say, as we have 18 said at every phase, we think that the Bureau of Reclamation 19 should be required to submit to the jurisdiction of 20 California courts and I think it would be appropriate at 21 this point for the Board to ask the Bureau to specifically 22 do that before it approves this Decision. 23 I would like to join in the comments of Central 24 Stockton East as those do not differ from ours. Sorry I 25 missed wishing you a Merry Christmas, but Happy New Year, CAPITOL REPORTERS (916) 923-5447 105 1 and again thank you very much for the effort. 2 CHAIRMAN STUBCHAER: Thank you, Mr. Herrick. 3 Questions for Mr. Herrick? 4 We will take lunch recess now and we will reconvene 5 here at 1:00 p.m. 6 (Luncheon break taken.) 7 ---oOo--- 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 106 1 AFTERNOON SESSION 2 ---oOo--- 3 CHAIRMAN STUBCHAER: Call the meeting back to order. 4 Mr. Nomellini, good afternoon. 5 MR. NOMELLINI: Good afternoon, Mr. Chairman and 6 Members of the Board. Dante John Nomellini for Central 7 Delta Parties. 8 I have been warned not to be unkind, and I have been 9 warned not to be too friendly because our enemies will see 10 that as a sign that there is something good in the decision 11 and, therefore, they will try and change the good things to 12 bad. 13 In any event, to start on a positive note, I think, 14 like John Herrick indicated to you, we do see recognition by 15 the Board and staff in the Draft Decision of many of the 16 concerns that we voiced. We appreciate that very much. 17 However, the practical aspect of trying to get effective 18 relief when dealing with the government of the State of 19 California and the government of the United States has 20 always been very difficult. And words like "we urge you to 21 do this" or "we urge you to do that" have not in the past 22 proven to be mandates conducive to them changing their 23 course of action. 24 So enough of the good stuff. Now let's talk about some 25 of the problems. We see in the decision the analysis of the CAPITOL REPORTERS (916) 923-5447 107 1 Delta Protection Act and the Watershed Protection Act as 2 particularly deficient. And unfortunately or fortunately I 3 spent a number of years -- the years just seem to go by. I 4 look around the room and everyone seems a little younger 5 than I am, and it makes me realize that maybe some of these 6 people weren't here 30 years ago. The fundamental 7 underpinnings of the State of California control over the 8 Bureau of Reclamation in early days was in great part in the 9 Delta Protection Act and the need to provide salinity 10 control and adequate supply of water in the Delta. The 11 Watershed Protection Act was always a given. Northern 12 California, when you guys need the water, you got it. We 13 are just going to export surplus water and Northern 14 Californians were comforted that they had first call on the 15 water. And the exporters were comforted by the proposition 16 that water development would continue to proceed so that as 17 demands built up, new water development projects would come 18 on line and there would be sufficient water for everybody. 19 Those were the underpinnings. There wasn't a big fight 20 over the idea that people in the areas of origin and the 21 Delta should have a full supply. As we viewed it, it was a 22 legislatively mandated physical solution which facilitated 23 the capture of vast amounts of spring flow, some winter 24 flow, but redistributed so we got water, good quality, in 25 the summer, where we didn't have it maybe under conditions, CAPITOL REPORTERS (916) 923-5447 108 1 natural conditions; and at the same time the projects were 2 able to capitalize and efficiently store water for the 3 overall good of the state. 4 Now along with the -- I don't know if you want to call 5 the environmental movement, but there was an environmental 6 sensitivity that developed during the course that I have 7 been in practice in the water field, and it reflected itself 8 in elimination of proposed development of north coast 9 rivers. The idea capturing of surplus flows out of a whole 10 bunch of water systems in the north was the plan. And that 11 was going to provide the extra water to allow exporters not 12 to suffer great shortages. And I don't think there was an 13 idea that we would just constantly try and take more and 14 more water out of the Delta watersheds. I think we are 15 seeing a reflection of the difficulty of taking so much 16 water out of the system with the endangered species and the 17 recognition that many of these species cannot be maintained 18 under these regulated flows. 19 So I think that the greatest shortcoming in this 20 decision is the incorrect analysis of the Delta Protection 21 Act and the Watershed Protection Act. Let me just highlight 22 a couple of aspects. This is legal mumbo jumbo that we are 23 going to fight over, I am sure. 24 It has been assumed that because 11462 of the Watershed 25 Protection Act was not incorporated in 11128 that the Bureau CAPITOL REPORTERS (916) 923-5447 109 1 of Reclamation is not obligated to recognize priorities to 2 area of origin contractors when they allocate shortages. We 3 think there is no legal basis for that conclusion. We 4 think it is a gross error on the part of the State of 5 California and particularly this Board to lose the 6 opportunity to lead the Bureau to do the right thing, to 7 honor the promises of the past. We think that is a mistake. 8 We think it is a mistake for the State Water Contractors and 9 also for the Board. 10 As a policy matter, it has always made sense, and your 11 previous Boards have recognized even without 11460 of the 12 Water Code, the logic of making sure that we supply the 13 needs of a given watershed before we export water out of 14 it. It makes sense in the long-term development of this 15 state. Why should we deplete one area to develop another? 16 What we have to do is figure out how to stay whole and move 17 ahead. So we shouldn't lightly destroy the protective 18 mechanisms that were put in place by people long before us 19 to try and protect the areas of origin. It is not good 20 planning. 21 Now, if we can't develop reservoirs, we are going to 22 have to develop water supplies in another fashion. That is 23 beyond this decision, I know. But our thought is that we 24 may have to go to desalting. We may have to accelerate in 25 the coastal regions a water treatment or water recycling and CAPITOL REPORTERS (916) 923-5447 110 1 those kinds of things. We have to develop more supply. But 2 it is wrong to go in and drop the underpinnings out of the 3 policies. It will lead us to greater chaos in the future 4 than we already have upon us. And I would urge that that be 5 rethought. 6 And I am disappointed in the way the staff reacted. 7 Perhaps it is reaction to some of the stuff we did in 8 litigation. As lawyers we all get up, work in the heat of 9 the battle, and no matter what you want to win, and I think 10 we are losing ground from sound policy standpoint. 11 In terms of water rights, a part that to me has been 12 fundamental in decision-making over the years has been the 13 physical solution. Again, we have run head-on with your 14 lawyers on this issue, and they have taken very narrow 15 position which we hope will not ultimately become the law, 16 because it will create an inflexible situation where a 17 downstream riparian says, "You can't take any of the natural 18 flow. You have to let it come down." Rather than courts 19 saying, "We are going to give you a little water later than 20 you would have otherwise, but we are taking care of your 21 needs. So what? Let's develop this water and put it to 22 beneficial use." That is the more reasonable policy that we 23 think is implicit in decisions involving riparian rights. 24 With regards to the Decision, we are troubled with the 25 -- basically your decision says, "Go ahead. You can pump to CAPITOL REPORTERS (916) 923-5447 111 1 the maximum physical capacity of the pumps, subject to two 2 conditions. One, you work up a plan to take care of fish so 3 there is no adverse impact, and you have to work that out 4 with the Department of Fish and Game and the U.S. Fish and 5 Wildlife Service." And that plan gets submitted to the 6 Chief of the Division of Water Rights who is going to be our 7 new God. A very difficult task. 8 The other one is in regard to water levels, you consult 9 with the South Delta Water Agency and come up with a 10 recovery plan and then South Delta doesn't have to agree and 11 the recovery plan goes to the Chief of the Division of Water 12 Rights. 13 These problems are tough problems to resolve. And if 14 you'll look at the Bureau's comments, you should be 15 enlightened that they think that they ought to be able to 16 deplete the water level over in the South Delta regardless. 17 And they have said, "You haven't supported the basis for 18 asking us to protect water levels in the South Delta." That 19 is the kind of thing that we have to confront. 20 We would prefer that the matter come back to the Board, 21 that you not allow at this phase, at this stage, increased 22 pumping under the joint points of diversion. You keep it at 23 the present level until demonstrated that there are plans to 24 recover and react. Short of that if you are determined, and 25 I recognize that at this late stage in the game, the chance CAPITOL REPORTERS (916) 923-5447 112 1 of you making material changes in this draft is pretty 2 small. But we would think a better process would be to 3 mandate that the state and federal projects negotiate in 4 good faith with all interested parties. And at the request 5 of any party the Chief of the Division of Water Rights would 6 be brought in as a mediator to facilitate that negotiation. 7 The hope is that with some pressure on the parties that 8 agreement could be reached, not maybe permanent agreements 9 but you work your way through a couple of years, whatever it 10 is. And that barring agreement the matter would be brought 11 back to the Board. We do not think that the current 12 proposal, even though the Chief of the Division of Water 13 Rights has been substituted for Walt, the Executive 14 Director, that the process is any better because of the 15 difficulty involved. And it hasn't been demonstrated to 16 work before. You tried that in one of your previous 17 decisions. We still end with these low water levels, and we 18 need you to put the heavy hand on the Bureau, in 19 particular. 20 On the question of whether or not the State Water 21 Project ought to play a part, nothing happens in water in 22 California without the State Water Project and the Central 23 Valley Project. These are the people that run this thing. 24 State Water Project is not innocent when it comes to 25 salinity in the San Joaquin River. They have been wheeling CAPITOL REPORTERS (916) 923-5447 113 1 the water for the federal government for some years that 2 facilitates their deliveries of salt into the Valley which 3 must be wrestled with in terms of salt balance. Without 4 their cooperation there would be far less salinity in the 5 San Joaquin River, in our opinion. And even if there was 6 not that culpability in that association, and we've called 7 it a joint venture, they said, no, just cooperating 8 agreement, if you want to get something done you have to 9 keep them in the middle of the mix. 10 We have asked you to ask the Bureau to come up with a 11 plan. You haven't done that. The Bureau hasn't shown any 12 enthusiasm for coming up with a plan. They want somebody 13 else to come up with a plan. The Department, maybe if you 14 drag them in deep enough, the State Water Project, with all 15 their enthusiasm and support, they may come up with a plan 16 that maybe the Bureau would buy into. They certainly have 17 more influence with the Bureau than we would, and I think 18 they have culpability. 19 Now San Joaquin River Agreement, and again I don't want 20 to appear ungrateful because I think you have tried to make 21 it a real water situation and we appreciate it. There are 22 two things that you've imposed in here as condition. One is 23 that they can't make up for the water by pumping from the 24 eastern San Joaquin Basin or from the groundwater in the 25 Merced, but you allow Oakdale to pump from the groundwater CAPITOL REPORTERS (916) 923-5447 114 1 in the Modesto area. 2 The Modesto area, the evidence shows that the City of 3 Modesto is going to switch from groundwater to surface 4 water. And the environmental analysis and the evidence that 5 was submitted did not analyze the impact of that switch. So 6 we don't think you should allow any pumping of groundwater 7 to make up for the water. In fact, these people told us it 8 was all real water and all this and that. Of course, we 9 told you that unless we can see reduction in consumptive 10 use, we have difficulty understanding how this is going to 11 be done. They all admitted they don't have any extra water. 12 They are not going to reduce consumptive use. They are 13 going to make up for it in some other way that is going to 14 affect us. We think the groundwater pumping restriction 15 ought to be right across the Board. 16 Secondly, you have provided that there be no refilling 17 of the reservoirs by the San Joaquin River Agreement 18 tributary contractors during the time that New Melones is 19 releasing water for salinity control at Vernalis or during 20 the time when salinity is violated. 21 You are going to give me a one-minute warning? 22 CHAIRMAN STUBCHAER: The yellow light didn't go on. 23 MR. NOMELLINI: Am I through? 24 CHAIRMAN STUBCHAER: I will give you another minute and 25 a half. CAPITOL REPORTERS (916) 923-5447 115 1 MR. NOMELLINI: In any event, we think it is important 2 that that restriction be expanded to cover when you predict 3 that the water will be needed from New Melones for salinity 4 at Vernalis. Otherwise you have artificially limited. And 5 we have suggested, and I again suggest, that in below 6 normal, dry and critical years that you require that these 7 people bypass the natural flow so there is no infringement 8 on the downstream situation or switch of impact to New 9 Melones. 10 Again, thank you for your long, hard effort and long 11 hearing, and Happy New Year to you. 12 CHAIRMAN STUBCHAER: Thank you. Same to you, Mr. 13 Nomellini. 14 Next will be Tom Shephard, followed by Tim O'Laughlin. 15 MR. SHEPHARD: Good afternoon. I am Tom Shephard. I 16 am the attorney for San Joaquin County and the San Joaquin 17 County Flood Control and Water Conservation District. In 18 this proceeding I am accompanied by DeeAnne Watkins who will 19 not be a speaker today, but who is a Deputy County Counsel 20 and she and I worked together representing the County. 21 First of all, I would like to say that I adopt and we 22 adopt, San Joaquin County adopt, the oral comments of 23 Stockton East, North San Joaquin Water Conservation District, 24 the South Delta and Central Delta. San Joaquin County 25 interests that are here today are united in terms of our CAPITOL REPORTERS (916) 923-5447 116 1 position. 2 We have presented to you with probably some 3 unpardonable repetition the concerns of San Joaquin County. 4 They basically boil down to the overdraft in the eastern San 5 Joaquin groundwater basin, the deteriorated and condition of 6 the San Joaquin River and the problems of the South Delta in 7 meeting both water quality and water quantity. 8 The proposed decision and order, and it actually 9 recognizes all those problems and we are pleased at that, 10 that at least there is recognition for the problems that we 11 have. However, the order fails to implement solutions to 12 those problems. We recognize the Board lacks authority to, 13 for example, build South Delta barriers. It lacks authority 14 to build a drain. We recognize that. On the other hand, 15 you can place conditions and requirements on your permit 16 holders, and we would urge you to reconsider before adopting 17 this order to do that. We think that is quite important. 18 You have very direct authority over the Central Valley 19 Regional Water Quality Control Board who has failed for 20 interminable years. I, like Dan, am getting old. I am even 21 older than Dan. I have been watching this process for a 22 long time. There has been a struggle to deal with the 23 problem, but the problem is not dealt with. You can impose 24 requirements to deal with the salinity problem on the 25 Central Valley Board to exercise its authority and to CAPITOL REPORTERS (916) 923-5447 117 1 provide the resources that it needs to exercise its 2 authority. 3 We're also disappointed that the order fails to and the 4 decision fails to implement the protections of the area of 5 origin, watershed protection and Delta protection statutes. 6 We believe that you can implement the statutes in your 7 order, which you do not do, and you can require permit 8 holders to do so, which again you do not do. We feel you 9 not only can do that but you must do that in carrying out 10 the law of California. 11 We are pleased, very pleased, that you have recognized 12 the overdraft conditions of the eastern San Joaquin County 13 groundwater basin. You do this, among other things, by 14 prohibiting pumping to make up the target flows and 15 possible sales to the Bureau north of the Stanislaus River, 16 and we commend you for that. 17 However, there is a much bigger hole, and that is that 18 by the use of, continued use, which Ms. Zolezzi has spoken 19 of at length, there is a continued use of New Melones water 20 for dilution. That use and reliance and, in fact, in one 21 point in the findings it says, "We anticipate that the 22 Bureau will use New Melones water to meet the salinity 23 requirement." That very chore of meeting the Vernalis 24 requirement primarily by New Melones dilution results in 25 Stockton East and Central San Joaquin not being able to CAPITOL REPORTERS (916) 923-5447 118 1 exercise the amount of water that would be under their 2 contracts and would be under their contracts for many years, 3 would be available to them, which in turn is a much greater 4 hit on the eastern San Joaquin County groundwater basin. It 5 just speeds up the decline in that basin. 6 The valley drain is a good example of what I am talking 7 about when I speak of putting conditions on your 8 permittees. The valley drain has been talked about for 30 9 years. I remember when the legislation was adopted that 10 made it mandatory that there be a valley drain. I remember 11 the discussions prior to the adoption of the legislation as 12 to the fact that if irrigation occurred in the massive 13 quantities contemplated by the projects then underway, the 14 Westlands irrigation, that there would be a need, an 15 absolute need, for a drain or the San Joaquin River would go 16 to pieces. 17 Well, it went to pieces. For 30 years or more than 30 18 years we have been waiting for a drain to be constructed. I 19 think everyone recognizes that keeping the salinity in the 20 valley is not a solution. You can stand on one foot or the 21 other and juggle where you are going to put the salinity, 22 but all you will do is reduce the productivity of the land 23 in the valley by doing that. And in addition to that, no 24 matter what you do, somehow that water has to get out 25 eventually and it comes down the San Joaquin River, CAPITOL REPORTERS (916) 923-5447 119 1 degrading the San Joaquin River for the people downstream in 2 the San Joaquin River and then affecting the requirement 3 that New Melones dilution water be used in massive 4 quantities. 5 You can, I believe, and you should put specific 6 conditions that your permittees must move toward the 7 construction of a valley drain. It is ordered by a court, 8 and I think you can do the same thing. 9 I am also concerned with the delegation to the Chief of 10 the Water Rights Division. Now at the end of the 20th 11 century I fully recognize that governmental bodies such as 12 yours can delegate, but there is a limit on your delegation, 13 and that is that there must be standards as to how that 14 delegation is carried out. As we point out in written 15 material, we don't believe there are adequate standards for 16 how that delegation will be carried out. 17 Finally, I would like to just briefly speak on the 18 North San Joaquin situation and the Mokelumne and the fact 19 that the Mokelumne River is called upon to meet certain 20 requirements and that East Bay in turn has entered into an 21 agreement to meet those requirements. What that does, the 22 first and foremost effect of that, is on the North San 23 Joaquin Water Conservation District. And again I sat 24 through hearings in which the North San Joaquin Water 25 Conservation District was denied permits it sought from the CAPITOL REPORTERS (916) 923-5447 120 1 Mokelumne. The Mokelumne flows right through North San 2 Joaquin. It divides North San Joaquin into two equal, about 3 equal, sections. 4 The reason for the denial was that the Folsom South 5 Canal was coming. Well, that was a long time ago, and 6 Folsom South Canal didn't come. And I don't expect to see 7 the Folsom South come during my lifetime. Meanwhile, you 8 have an area that must rely entirely on groundwater and 9 increasingly on groundwater. And having in mind again that 10 all of San Joaquin County is fully developed and whether you 11 pump water for houses or pump water for orchards or 12 vineyards, the same quantity of water is required. And the 13 groundwater basin simply goes down and down and down. 14 And meanwhile an agency that is divided by a major 15 river gets no water from that source. That has always 16 bothered me deeply. 17 With that, I would conclude unless there are any 18 questions. 19 CHAIRMAN STUBCHAER: Any questions of Mr. Shephard? 20 We thank you, Mr. Shephard. 21 Next we will hear from Tim O'Laughlin, followed by Dave 22 Anderson. 23 Afternoon. 24 MR. O'LAUGHLIN: Afternoon, Board Members, staff 25 members. CAPITOL REPORTERS (916) 923-5447 121 1 On behalf of the San Joaquin River Group Authority I 2 think it would be no surprise to anyone in the audience that 3 we are extremely pleased with the Board's decision. We 4 believe moving forward now into the year 2000 and 5 implementing the San Joaquin River Agreement to the year 6 2011 will provide great benefits, not only to the San 7 Joaquin Valley Basin but to the State of California as a 8 whole. 9 We submitted our comments on the Draft Order and Draft 10 Decision. We had two main points that we want to make. 11 You've heard from Mr. Sawyerss already in regards to the 12 Friant issue. I would like to just briefly touch on that 13 for a minute in regards to that. 14 Mr. Herrick raised an interesting point in his comments 15 about what is the implication of having that permit 16 condition among the Friant's permits and licenses? I am not 17 so much concerned about what United States Bureau of 18 Reclamation will do or the parties to the San Joaquin River 19 Agreement will do or what this State Board will do in 20 regards to releases of water from Friant. What I am 21 concerned about is other parties that will challenge a lack 22 of flow at Vernalis to meet salinity. 23 And the way that this would come about is whether or 24 not a third party sees that there is a lack of flow at 25 Vernalis to meet salinity. They would bring an action in CAPITOL REPORTERS (916) 923-5447 122 1 federal court to demand that the United States Bureau of 2 Reclamation release water from Friant. We would have a 3 federal court then opining upon what it is the State Board 4 meant by putting that permit condition in as to whether or 5 not water should be released from Friant to meet that 6 requirement. 7 I don't think -- we don't need that. The uncertainty 8 that resolves that it creates doesn't lead to a very good 9 start for the San Joaquin River Agreement as far as going 10 forward and understanding the risk of assumptions that the 11 parties have taken. We would request again that the permit 12 conditions for meeting the Vernalis salinity requirement and 13 the interior Delta salinity standards be deleted for the 14 Friant unit. 15 The other area is the refill criteria that is addressed 16 in Merced, Turlock and Modesto Irrigation District. I am 17 not going to touch on that. Mr. Robbins has a card in. He 18 is much more familiar with that subject than I, and he will 19 discuss his concerns with that issue. 20 One thing I would like to bring up is in regards to the 21 comments made by Mr. Greg Thomas. Our belief in reading the 22 Draft Order is that all of the conditions that were 23 preconditions in the San Joaquin River Agreement have been 24 met by the Draft Decision and the Draft Order. We believe 25 that the Board adopts that Draft Decision and Draft Order as CAPITOL REPORTERS (916) 923-5447 123 1 it is now, that we will look forward to implementing the 2 San Joaquin River Agreement in the year 2000. We impress 3 upon the Board that we would like to see an order as quickly 4 as possible. We see no reason for delay on this issue. I 5 know some parties have suggested that we wait 60 days or 6 that we will come back in 60 days. Presently the San 7 Joaquin River Agreement, the San Joaquin River Group 8 Authority is not planning to come back at all. We will see 9 you in the year, hopefully, 2012 after we have amassed the 10 information that we think is scientifically sound and 11 present to you what we believe are the scientific bases for 12 establishing standards on the San Joaquin River. 13 With those comments, the last one I think is a minor 14 technical cleanup matter and it has to do -- we suggested 15 language in regards to, on Page 175 and on 176. It was 16 ordered that the following conditions shall expire on 17 December 31st, 2010. We suggested language that would track 18 to conditions established on Page 172 which would expire on 19 December 31st, 2011, or at such time as the San Joaquin 20 River Agreement is terminated, whichever occurs first. 21 We understand that there might be some reason for the 22 variation in regards to the refill criteria for Merced, the 23 ability not to pump groundwater from eastern San Joaquin 24 County groundwater basin for Oakdale and to the refill 25 requirements for Modesto and Turlock to be to December 31st, CAPITOL REPORTERS (916) 923-5447 124 1 2010, because those conditions, if the agreement terminates, 2 would not come into force and effect because no water would 3 be made available and no water would then be refilled or 4 bypassed or pumped from groundwater. 5 We think to make the order consistent and clear to 6 everyone that those permit conditions are only until the 7 agreement is terminated or until the year 2011. Whichever 8 occurs first. I think that is a minor change. 9 With that I have no other comments. I would be happy 10 to take questions from the Board. 11 CHAIRMAN STUBCHAER: Any questions? 12 Thank you, Mr. O'Laughlin. 13 MR. O'LAUGHLIN: Thank you. 14 CHAIRMAN STUBCHAER: Mr. Anderson, and you will be 15 followed by Dan Gallery. 16 MR. ANDERSON: Good afternoon. My name is David 17 Anderson. I am representing the Department of Water 18 Resources here today. 19 I also would like to start by saying that the 20 Department generally supports this Draft Decision. We 21 believe it is a good and intelligent and sensitive job, 22 having been done on a very difficult and very complex set of 23 issues, and we agree with the vast part of the Decision. I 24 think your staff ought to be complimented for the excellent 25 job they did and great understanding that they achieved. CAPITOL REPORTERS (916) 923-5447 125 1 In passing I would like to just note for the Board on 2 the errata -- there is a substantial amount of errata, and 3 perhaps the Board should give thought to some manner in 4 which we might have the opportunity to look at this at some 5 length and get back to the Board on it. We just have not 6 had the opportunity to do it as we review it today. 7 As I said, we do support the Decision and you should 8 bear that in mind as I go forth with these comments. I 9 guess in a proceeding such as this you hear a lot of the 10 negative stuff and not so much the good stuff. The good 11 stuff we don't feel we need to comment on. We do like the 12 Decision. We think a good job on the Suisun Marsh. You did 13 a good job on the San Joaquin River Agreement, on the other 14 negotiated settlements, and in all the other areas I think 15 there is good and helpful discussions. 16 We did indicate in our comments, however, substantial 17 problems with Conditions 1 and 2. Even though they are 18 being imposed on a temporary basis, we simply -- these 19 issues simply have not been before the Board. The notice 20 clearly indicates that you are going to do a phased 21 proceeding. The material that Tom read I believe was to be 22 incorporated into Phase VIII. We are not at Phase VIII yet. 23 This is Phase I through 7. I can't understand, looking at 24 the description of the phases, where either these general 25 outflow standards or the interior M&I ag standards for the CAPITOL REPORTERS (916) 923-5447 126 1 Delta would have been heard in any of those study phases. I 2 think you have substantial notice of a due process problem 3 here. 4 The thing is, I think substantively on the bottom line 5 we are, I think, not in any substantial disagreement with 6 the Board. I think the bottom line is, as someone 7 indicated, is perhaps similar to status quo. Yes, we are 8 complying with the Decision 1485 and would continue to do 9 that. We do have problems, however, with the Board 10 republishing a judicially discredited decision and a 11 decision which is truly at odds with the proceedings here, 12 and 1485 is based upon an allocation of responsibility of 13 exclusively against the two projects. These proceedings are 14 to determine an equitable allocation of responsibility. 15 Especially Condition 2, these are the outflow standards, 16 I guess the Rio Vista flow standard which the projects are 17 voluntarily meeting under the Principles For Agreement 1994. 18 A number of things issued from the Principles For Agreement, 19 a number of understandings, actions to be taken by a variety 20 of governmental agencies, the thing that the projects were 21 to do were to voluntarily comport their operations with the 22 standards of the Principles For Agreement. Upon that basis 23 and consistent with their jurisdiction, the ESA agencies 24 would issue no-jeopardy opinions for the Delta operations 25 portions of it. The Board was to, if it could and CAPITOL REPORTERS (916) 923-5447 127 1 consistent with its jurisdiction, see if those could be 2 turned into objectives in the Water Quality Plan and 3 implement those objectives. So, we are all doing 4 these pieces. So even though we agree with the bottom line, 5 the substantive bottom line, this is very much about 6 process. It's very much about doing right as well as being 7 right, and process is extremely important. I want to urge 8 you folks not to underestimate that. This process is 9 important to people as it relates to the CALFED process. It 10 has its own, obviously its own, merits and needs. We can't 11 ignore that context. 12 In that context, in that process, jumping the gun, not 13 waiting until Phase VIII is important. We think legally you 14 shouldn't be doing it. But as I say, we would be doing it 15 anyhow, so what is the difference? Well, the difference is 16 the prudent amount of process and how this process, the 17 Board's process, fits into the CALFED process and the 18 expectations the stakeholder, agencies and parties have with 19 respect to those due processes as they fit together. 20 I do also have some comments. The other main area of 21 our comments were on South Delta. Again, I think that the 22 Draft represents a very intelligent and mature discussion of 23 the issues in South Delta. They are difficult issues. I 24 happen to think they go back to the fact that we have 25 objectives that you really can't meet. We are not here to CAPITOL REPORTERS (916) 923-5447 128 1 discuss or dispute or change the objectives. We are here to 2 do the best we can do implementing them. And I think that 3 is consistent with the approach in the Racanelli case which 4 expressly recognized that implementation need not be 5 impressed, would not be the sole province of the Board. 6 Other agencies might be called upon to implement objectives. 7 Might even require legislative action. 8 So, full implementation by this Board is not required. 9 What the Board has done is to recognize the material that we 10 have submitted over the years and discussions we have had 11 with the Board and Board staff in a variety of times about, 12 one, the inability of the projects with the resources that 13 they have. I am talking about the interior South Delta 14 objects now, not talking about Vernalis. But for a given 15 flow at Vernalis to meet the objectives in the South Delta 16 because of flow conditions and discharge patterns and so 17 forth that exist there, channel configurations and so forth. 18 We discussed this, and the Board's document recognizes 19 this. 20 And the second thing is, even with the best solution 21 that we've heard before, been able to come up with one or at 22 least one we've been working with, which is barriers, even 23 with those we can't meet then. So, what the Board has 24 proposed for five years, we, the two projects, would have 25 exclusive responsibility for meeting the 1.0 EC standard in CAPITOL REPORTERS (916) 923-5447 129 1 the South Delta standards, the interior South Delta, not 2 Vernalis. I am not talking about that. 3 That is not meetable either. I think the evidence in 4 the record shows that. You are saying in the document that 5 projects can have adverse influence on salinity, and that is 6 true. But what is also true is that the major salinity 7 problems in the Delta are not the cause or responsibility 8 of, certainly, the pumping operations of the State Water 9 Project. Yet, the Decision assigns responsibility to us. 10 The other thing that is not said in this is even if we 11 do at times have impact on salinity, we cannot with our 12 operations, join with the expert operations of the Bureau, 13 make it right or make the salinity right. Not things that 14 we caused. We didn't cause it, but achieve the standards 15 that the Board would be imposing. It can't be met. I think 16 they are unreasonable. It is arbitrary for the Board to do 17 that. 18 Mr. Herrick said he didn't like the condition or 19 contingent standards, and I think his discussion was very 20 apt, very correct. I look at how can we have some 21 conditional standards that would recognize this? I am 22 thinking the Board in its document and in its order 23 substantially recognized that there will be exceedances. It 24 tried to acknowledge that and allow for that, make us feel 25 better about it, but I see ourselves two or three years down CAPITOL REPORTERS (916) 923-5447 130 1 the road exceeding standards in the South Delta and these 2 niceties and this discussion in this document are forgotten 3 because we are the ones that exceed the standards in the 4 South Delta. We can't do it. We can't assure it. 5 The Board says in its own document that the only way 6 that these standards can be met consistently, this .7 and 7 the 1.0, is with what it says are deficient dilution or 8 treatment. That's -- we are not involved -- we, the State 9 Water Project, are not involved in either of those. So I 10 don't know how there can be a reasonable expectation that we 11 can do what the Board is asking us to do. We would ask that 12 that that portion of the order also be changed. 13 One last note here, that has to do with this issue -- I 14 think it is a difficult issue for the Board. I appreciate 15 the circumstances you find yourself in from time to time 16 with the statement that certain permittee shall comply with 17 the Federal Endangered Species Act laws. It is true if the 18 Board didn't say it. We would have to comply with those 19 laws, and I appreciate the sensitivity to questions of 20 liability. I am wondering if there is not a different 21 articulation you can make to also protect yourself, to put a 22 permittee on notice or to say, "And remember there may be 23 Endangered Species Act issues which would let you off the 24 hook if it becomes a problem for you, but which would not 25 mandate, provide, effectuate a state mandate for federal law CAPITOL REPORTERS (916) 923-5447 131 1 compliance." 2 I give you an example of a problem we have. In your 3 document, it is Condition 7 on Page 55. I believe that is 4 where it exists. We must comply with Endangered Species 5 Act, and then you say we shall secure an all take permit. 6 Are you saying that if we did incidental take protection by 7 Section 7 that is not adequate; we must also get a Section 7 8 take permit? You are venturing into somebody else's 9 jurisdiction. And, I think these kinds of conflicts and 10 contradictions are invited by that. 11 So, with that I think that will end my time. I 12 appreciate the opportunity to speak. 13 Do you have any questions? 14 CHAIRMAN STUBCHAER: Mr. Anderson, could you be a 15 little more explicit about the relationship between 16 Paragraphs 1 and 2 and CALFED issues that you touched on? 17 MR. ANDERSON: Yes. Frankly, I think that the CALFED 18 process is the third prong of the third leg, if you will, of 19 the framer of the agreement. The frame of the agreement 20 provided for setting up Delta standards, the CALFED Ops 21 Program, and, of course, the long-term CALFED process which 22 itself has taken the name CALFED now. I think these two 23 processes, you're finishing the last part of the standard 24 setting process and CALFED, what we call CALFED now, is 25 doing the longer-term process. They're certainly mindful of CAPITOL REPORTERS (916) 923-5447 132 1 each other and the commitments and obligations being created 2 in each forum. 3 As we stand here today, the projects do not have, are 4 not obliged to meet the outflow objectives executed and so 5 forth that we are adopting hereforth. That is to be the end 6 of the process, Phase VIII of your process. We want the 7 opportunity to go in there with a -- with a level playing 8 field, with clean slate, to make whatever case we wish to 9 make about the question of allocation. That is very 10 important. That plays into the questions that are being 11 decided by this larger CALFED process, as they look to 12 allocation responsibility. I think that is a fundamental 13 way that it ties in. 14 CHAIRMAN STUBCHAER: Thank you. 15 Any other questions? 16 Thank you. 17 MR. ANDERSON: Thank you very much. 18 CHAIRMAN STUBCHAER: Dan Gallery, followed by Michael 19 Jackson. 20 MR. GALLERY: Mr. Chairman -- 21 THE COURT REPORTER: I'm sorry, please come forward. 22 CHAIRMAN STUBCHAER: She can't hear, Mr. Gallery. The 23 acoustics are bad in here. 24 MR. GALLERY: Woodridge Irrigation District was taken 25 care of by the errata corrections that were announced this CAPITOL REPORTERS (916) 923-5447 133 1 morning. So we have no comment. 2 CHAIRMAN STUBCHAER: Thank you, Mr. Gallery. 3 Mr. Jackson will be followed by Matthew Campbell. 4 Good afternoon. 5 MR. JACKSON: Good afternoon, Mr. Stubchaer, Members of 6 the Board. 7 I am going to save the good things I can say about the 8 document to the end. That way if I lose any time, it will 9 come out of that. 10 Basically, the EIR is a lot better than the Decision. 11 That is not unusual. This Decision is, the way it is framed 12 right now, I guess there is no other way to describe it than 13 a marking of time, worse in effect than the D-1485. It is a 14 complete abdication of state responsibility and a complete 15 abdication of your responsibility for the people of 16 California and for the public interests of California. 17 It is wrong on the law in a number of situations. 18 Those have been indicated to you before. It is wrong about 19 the watershed of origin. It is wrong about the Delta 20 Protection Act. And the discussion at Page 105 to 107 in 21 regard to effects on Sacramento River water users and other 22 folks upstream is the most egregious misinterpretation of 23 the law of California than has ever been my personal 24 misfortune to read. 25 I don't know how you got that far off. I don't know CAPITOL REPORTERS (916) 923-5447 134 1 why you got that far off. But basically if, in fact, this 2 is the interpretation of the area of origin, the war between 3 the North and South should break out immediately because it 4 is in the interest of everyone in California to get this 5 resolved before we go any farther in CALFED or anywhere 6 else. 7 It is also not necessary to this decision and that 8 whole section should be deleted beginning with your area of 9 origin comments because it is not necessary to reach this 10 decision or any other in Phases I through VII. 11 The only good thing that I found in the Decision, the 12 only thing that seemed to be supported by the facts was 13 Condition 1 and 2. And now I hear people in front of you 14 arguing that Condition 1 and 2 should go away because it is 15 premature. Basically, the parties making that argument know 16 from a review of the Environmental Impact Report and the 17 flow study that there are no problems on the Sacramento side 18 of the Delta, and there will be no requirement on the 19 Sacramento side for additional water. It is very clear from 20 a review of your document. It is very clear from the last 21 20 years of information. 22 There are some problems in the tributaries because of 23 the dams that block the spawning areas, but there is no 24 indication, and there will be no indication, that there is 25 adequate water to meet X2. In fact, your flow decision CAPITOL REPORTERS (916) 923-5447 135 1 makes it very clear there is no difference in terms of X2 in 2 terms of the environmental effects on any of these -- on any 3 of these alternatives. 4 It is also true that if you want brackish water habitat 5 in Suisun Bay you can't have more water coming down the 6 Sacramento River. So the idea that we are going to leave 7 all these decisions to Phase VIII will go a glimmering when 8 we start Phase VIII. The problems are and always have been 9 at the export facilities and the salt circle that Alex 10 Hildebrand has so endlessly described. 11 Basically, the main failure with this document is that 12 the Environmental Impact Report tells you with crystal clear 13 analysis that it is either more water down the river on the 14 San Joaquin side, down the San Joaquin main stem, or it's 15 less salt coming off the land that the Bureau serves on the 16 west side. And that has been the problem for 25 years, and 17 we all know it. And the Board does nothing about it, not 18 even to order the Regional Board to do something about it, 19 and I am very disappointed by that. Because it essentially 20 means we have all wasted our time here. 21 There are certain problems with the question of a 22 settlement on the San Joaquin River Agreement. It is clear 23 that the San Joaquin River Agreement can't be found 24 equivalent because it's the least amount of water and the 25 most amount of salt. It is possible. And I do acknowledge CAPITOL REPORTERS (916) 923-5447 136 1 that staff has found that you probably can't make a decision 2 at the present time that would do anything about that 3 problem because you don't have the will to do it. 4 It seems that staff wrote this Decision, I guess, after 5 talking to you in closed session from the assumption that 6 you really don't want to do anything to solve this problem. 7 There is not going to be any less salt. You can say that 8 the Bureau is supposed to build a drain. We all know that 9 the Bureau isn't going to build a drain, and you are not 10 going to order them to do it. That is just watching the 11 problem go. You can say there ought to be some treatment, 12 but we all know that the grasslands thing, which is 13 described to you, isn't going to solve the problem long 14 term. And yet you are being asked not to make any 15 decisions, don't put any conditions on the water rights. 16 The Bureau did it, no question about it. And we thank staff 17 for that. But there is nothing in here to force the Bureau 18 to do anything different than they are doing right now. 19 If you read the Bureau's comments or read the 20 Department of Interior's comments, they are asking you 21 essentially to give them even more fishery requirements. I 22 guess that is the work of United States Fish and Wildlife 23 Service, but don't condition their permits. 24 They obviously can't deliver to everybody they are 25 delivering to now, but you shouldn't get involved in telling CAPITOL REPORTERS (916) 923-5447 137 1 them who that ought to be, what those effects ought to be. 2 So let them decide. Let the federal government run 3 California some more, even though they are identified as the 4 only people possible. 5 I am just going to make one point and then sit down. 6 If I have some time left, I will point out a couple nice 7 things in the document. 8 This argument that it wasn't noticed for an expansion 9 of the conditions in regard to Conditions 1 and 2, they 10 didn't have any opportunity to talk about that. If you will 11 go back to the phasing of the hearing from your notice, and 12 thank you very much, Mr. Lilly, Phase I was an extension of 13 Order WR-95-6 or equivalent temporary compliance with the 14 1995 Bay-Delta Plan. That is exactly what Conditions 1 and 15 2 do. They are temporary compliance with the orders. They 16 leave in effect what's been true for 25 years. The Bureau 17 and DWR should always be the only people responsible because 18 it's their projects, their upstream activities and their 19 dams that caused this problem. No one else's. And so, the 20 temporary extension of Order 95-6 or equivalent extension, 21 which I find to be true in Conditions 1 and 2 was noticed, 22 is appropriate and would be the only thing that this Board 23 could point to that you can at least say we did as well as 24 D-1485, because there is nothing in here better than 25 D-1485. CAPITOL REPORTERS (916) 923-5447 138 1 Thanks for the effort. I assume that this decision 2 will be made and we will start in Phase VIII. What we have 3 essentially agreed to do by accepting the agreement, and 4 you've heard this ad nauseam, we have decided that the night 5 crew will deal with the Delta. We can call it CALFED. We 6 can call the State Board in the year 2011, but we had our 7 generation's opportunity and we struck out. 8 CHAIRMAN STUBCHAER: Thank you, Mr. Jackson. 9 Matthew Campbell, followed by Paul Simmons, et al. 10 Good afternoon. 11 MR. CAMPBELL: Good afternoon, Mr. Chairman, Board 12 Members Brown, Forster, Bagget, members of the Board staff. 13 Deputy Attorney General Matthew Campbell for the State of 14 California Department of Fish and Game. 15 DF&G&G recognizes and respects the State Board's 16 efforts, diligence and acumen in reaching the Draft Decision 17 for Phases I through VII of the Bay-Delta water rights 18 hearing. DF&G&G generally supports the Draft Decision, 19 subject to some requests for clarification or changes as I 20 will discuss in a moment. DF&G&G's elaboration of the 21 conditions under which it supports the Draft Decision is 22 supported by DF&G&G's comments on the Draft Environmental 23 Impact Reports, its exhibits, testimony and other evidence 24 and its opening arguments and closing briefs presented 25 during Phases I through VII of the Bay-Delta water rights CAPITOL REPORTERS (916) 923-5447 139 1 hearing. 2 First, I would like to take a moment to discuss the 3 unique role of the Department of Fish and Game in this 4 proceeding and all proceedings that involve the protection 5 of public trust resources and threatened and endangered 6 species. It is based on this role that the Department of 7 Fish and Game has participated in these proceedings and 8 further presents these comments. 9 DF&G&G is the state's trustee agency for public trust 10 resources as designated by the Legislature. A trustee 11 agency is a state agency having jurisdiction by law over the 12 natural resources effected by the project which are held in 13 trust for the people of the State of California. And a 14 quote from the statute -- I will not provide -- to save time 15 I won't provide citations. They are in the written 16 comments. 17 To quote from state law: 18 DF&G&G has jurisdiction over the 19 conservation, protection and management of 20 fish, wildlife, native plants and habitat 21 necessary for biologically sustainable 22 populations of those species. DF&G&G, as 23 trustee for fish and wildlife resources, 24 shall consult with lead and responsible 25 agencies and shall provide as available the CAPITOL REPORTERS (916) 923-5447 140 1 requisite biological expertise to review and 2 comment upon environmental documents and 3 impacts arising from project activities, as 4 those terms are used in California 5 Environmental Quality Act. 6 (Reading.) 7 That is the end of the quote. Accordingly, courts have 8 affirmed that DF&G&G's recommendations in water rights 9 proceedings regarding protection of fish and wildlife are 10 entitled to great weight. To quote from one court, the 11 California Court of Appeals decision: 12 Charged with statutory obligations Fish and 13 Game is the guardian and custodian of the 14 public's deep and continuing interest in the 15 fish and game resources of this state. It 16 has the collective experience and expertise 17 to make essential determinations in the 18 technical areas of water flows and fish 19 maintenance. (Reading.) 20 In recognition of DF&G&G's public trust expertise and 21 jurisdiction, the State Board must give great weight to 22 DF&G&G's recommendation. Moreover, the weight and 23 importance of DF&G&G's recommendations is increased whereas 24 here they involve conservation and protection of threatened 25 and endangered species. CAPITOL REPORTERS (916) 923-5447 141 1 I will proceed to the Department of Fish and Game's 2 comments. The first are general comments that pertain to 3 the body of the Decision rather than to specific aspects of 4 the Decision. 5 First, DF&G&G is concerned that the Draft Decision does 6 not clearly reflect the State Board's consideration of the 7 key hearing issues as set forth in the Revised Notice of 8 Public Hearing, dated May 6th, 1998. For example, the 9 Draft Decision does not clearly articulate how it will 10 appropriately protect fish and wildlife and public trust 11 uses and what evidence supports the Board's exercising its 12 jurisdiction in taking action regarding effective water 13 rights for the purpose of insuring that water originating 14 within the watersheds of the Bay-Delta estuary is diverted 15 and used within the constraints of the Public Trust 16 Doctrine. 17 Instead, the Draft Decision appears to focus primarily 18 on the lesser standard for review of proposed water 19 transfers. For example, whether the proposed action would 20 have an unreasonable effect on fish and wildlife. 21 Accordingly, DF&G&G requests the Board providing more 22 thorough explanation of its public trust authority and 23 responsibility and how the Draft Decision exercises that 24 authority and fulfills that responsibility. 25 DF&G&G agrees with the findings in the Draft Decision CAPITOL REPORTERS (916) 923-5447 142 1 and Orders that, and I won't read the whole quote, the first 2 sentence says: 3 This order does not authorize any act which 4 results in the taking of a threatened or 5 endangered species or any act which is now 6 prohibited or becomes prohibited in the 7 future under the California Endangered 8 Species Act or the Federal Endangered Species 9 Act. (Reading.) 10 For example, DF&G&G's participation in the San Joaquin 11 River Agreement and Vernalis Adaptive Management Plan does 12 not provide or imply any authorization to take threatened or 13 endangered species. All existing biological opinions remain 14 in full force and effect or will be changed or new opinions 15 will be developed as appropriate. 16 In addition, DF&G&G requests the Draft Decision 17 reference and address the State Board's duty to comply with 18 the following state policies and requirements for the 19 conservation of threatened and endangered species as 20 discussed in DF&G&G's closing briefs for Phases VI and VII. 21 I won't reread all of those provisions right now. I will 22 just quote from one of them, and this is Section 2055 of the 23 Fish and Game Code, which states: 24 The Legislature further finds and declares 25 that it is the policy of this state that all CAPITOL REPORTERS (916) 923-5447 143 1 state agencies, boards and commissions shall 2 seek to conserve endangered species and 3 threatened species, and shall utilize their 4 authority in the furtherance of the purposes 5 of the California Endangered Species Act. 6 (Reading.) 7 Just to elaborate, conserve as used in that statute 8 means to the use of all methods and procedures which are 9 necessary to bring any endangered species or threatened 10 species to the point at which the measures provided pursuant 11 to the California Endangered Species Act are no longer 12 necessary. 13 One last general commenter. In several instances the 14 Draft Decision indicates that the State Board will 15 subsequently determine permanent allocations of 16 responsibility for meeting the flow-dependent objectives. 17 DF&G&G requests that the Board omit this phraseology from 18 the Draft Decision. It contravenes and is inconsistent with 19 the state's continuing authority to protect public trust 20 resources and public interests and to revisit prior water 21 rights decisions for that purpose. In addition, the state 22 has continuing authority to revise water quality objectives 23 pursuant to the Clean Water Act and Porter-Cologne Water 24 Quality Control Act. 25 The State's continuing authority over water rights CAPITOL REPORTERS (916) 923-5447 144 1 allocation for the purposes of implementing the 1995 2 Bay-Delta Plan are discussed in DF&G&G's closing brief for 3 Phase II and IIA. Comments on specific sections, and I will 4 try to move very quickly. The first pertains to the San 5 Joaquin River Agreement and the Vernalis Adaptive Management 6 Plan. DF&G&G generally agrees with the Board's adoption of 7 the San Joaquin River Agreement and VAMP. 8 DF&G&G does, however, request that the Board clarify 9 the conditions in its Draft Decision to insure timely 10 completion of all required studies and to monitor the 11 progress of VAMP through your requirement of a detailed 12 annual status report to the Board by date certain each year. 13 The report should include a summary and details of 14 compliance with the flow and export objectives. The annual 15 report should also include information which defines the 16 extent to which equivalent protection is provided. 17 DF&G&G agrees, I would like to emphasize this point, 18 DF&G&G fully agrees with the Board's determination that a 19 finding of equivalent protection would be premature at this 20 time. That based on the testimony and exhibits provided by 21 DF&G&G biologists Bill Laudermilk and U.S. Fish and Wildlife 22 Service's Dr. Martin Kjelson. DF&G&G agrees with the 23 factors listed by the Board preventing a prediction that the 24 San Joaquin River Agreement will provide equivalent 25 protection to the Vernalis flow objectives. CAPITOL REPORTERS (916) 923-5447 145 1 DF&G&G requests that the Board add two factors to the 2 list as supported by the testimony and exhibits presented by 3 DF&G&G biologist Bill Laudermilk. First, concerns regarding 4 the availability of smolts necessary to complete the VAMP 5 studies and, second, the necessity of integrating the VAMP 6 studies with existing required fishery studies in the 7 tributaries. 8 The Draft Decision should reflect the evidence 9 demonstrating the limited availability of chinook salmon 10 smolts for study purposes. The Merced River Hatchery is the 11 only hatchery producing chinook salmon in the San Joaquin 12 Valley. Adding the additional demand for 450,000 smolts of 13 a specific size in the 31-day VAMP study period will 14 exacerbate the shortfall supply of study fish in the San 15 Joaquin River Basin. 16 DF&G&G fully expects that existing required tributaries 17 studies listed in DF&G&G Exhibit will be completed and 18 integrated with VAMP studies. DF&G&G requests that the 19 Board reference in the Draft Decision and Orders necessity 20 to integrate and complete those studies. It would help to 21 insure that flow and smolt survival information for the 22 tributaries to the Delta is available in timely manner, and 23 that the benefit of increased flows in the Delta is not 24 offset by new impacts to the tributaries from water 25 regulation to meet the VAMP flow objectives. CAPITOL REPORTERS (916) 923-5447 146 1 DF&G&G fully agrees with the state retention of 2 continuing authority over the changes authorized to the 3 Draft Decision and Orders to protect public trust resources. 4 Pursuant to the public trust doctrine, the state cannot 5 relinquish that ongoing authority. 6 DF&G&G shares the Board's concerns regarding the 7 difference in flow targets between VAMP and the San Joaquin 8 River Agreement. The difference in the San Joaquin River 9 Agreement and the VAMP flow requirements, 2000 cfs versus 10 3,200 cfs, amounts to approximately 73,879 acre-feet less 11 water in dry or critical water years. The hearing record 12 indicates that this is precisely when San Joaquin River 13 chinook salmon need improved in-stream flows. Yet in the 14 Draft Decision the Board urges the Bureau to supplement the 15 flows provided under the San Joaquin River as needed to 16 insure that the experiment is completed. Similarly, the 17 Board merely urges DWR and USBR to insure that export rates 18 are held at the rates specified in VAMP. DF&G&G requests 19 that the Board require the Bureau to provide VAMP flows and 20 require the Bureau and DWR to hold exports to the rates 21 specified in VAMP. 22 In the alternative, DF&G&G requests that the Board 23 state in the Draft Decision and Orders that failure to 24 provide the VAMP flows and VAMP export rates may trigger the 25 Board's exercise of its continuing authority to protect CAPITOL REPORTERS (916) 923-5447 147 1 public trust resources and may result in further actions by 2 the Board to implement the narrative objective in the 1995 3 Bay-Delta Plan for the doubling of the natural production of 4 chinook salmon. 5 DF&G&G further requests that the Draft Decision explain 6 how it will affect compliance with the 1995 Bay-Delta plan 7 narrative objective of doubling the natural production of 8 chinook salmon in the San Joaquin Basin. DF&G&G believes 9 that the Board should use that objective as one yard stick 10 for measuring the adequacy of the Draft Decision for 11 purposes of protecting public trust resources. 12 DF&G&G is concerned with the conclusion in the Draft 13 Decision that under Water Code Section 1342 water quality 14 objectives may be implemented in stages over time. 15 Indeterminate delay in full implementation of the objectives 16 may result in further degradation of the beneficial uses. 17 For example, protection of fish and wildlife, if the 18 objectives are intended to achieve. 19 DF&G&G also notes that VAMP is intended to be adapted. 20 As supported by data obtained through VAMP, further changes 21 may be made for purposes of implementing the 1995 Bay-Delta 22 Plan objectives. 23 In the interest in time I am going to move ahead. 24 DF&G&G agrees that VAMP should provide valuable 25 fisheries data that will provide basis for reevaluation of CAPITOL REPORTERS (916) 923-5447 148 1 Vernalis flow objective as part of the Board's periodic 2 review of the 1995 Bay-Delta Plan, but only if VAMP is 3 successfully implemented. I would like to emphasize that 4 point as well for the Department of Fish and Game. Only if 5 successfully implemented, and that was the testimony of 6 DF&G&G's biologist, Bill Laudermilk. 7 DF&G&G requests that the State Water Resources Control 8 Board change this portion of the Draft Decision to include 9 the clarifying condition. Similarly. The Draft Decision 10 incorrectly asserts that fishery experts, including DF&G&G, 11 expect VAMP to provide protection for San Joaquin River 12 fall-run chinook salmon equivalent to the 1995 Bay-Delta 13 plan. They were not so sweeping in their conclusions. It 14 was, again, conditional. DF&G&G testimony was conditional. 15 DF&G&G expects VAMP to provide equivalent protection only if 16 successfully implemented consistent with some of the points 17 that I have just discussed in our -- more fully set forth in 18 the written comments. The Draft Decision should include 19 this clarification. 20 I would also like to note that the Department of Fish 21 and Game supports the request made by Mr. Thomas of the 22 Natural Heritage Institute to provide the parties with some 23 additional time to work on what appears to be a disconnect 24 between the Board's order and what the parties agreed to in 25 the San Joaquin River Agreement. The Department wholly CAPITOL REPORTERS (916) 923-5447 149 1 supports NHI's request. 2 Comments on the Suisun -- on responsibility for 3 meeting the Suisun Marsh objectives: DF&G&G continues to 4 support SMPA3 and agrees with the Board's conclusion, that 5 if it is executed in its current form, substantial -- 6 CHAIRMAN STUBCHAER: Thirty seconds. 7 MR. CAMPBELL: I will skip to the end. 8 DF&G&G appreciates that you have reviewed these 9 comments, and I am sorry that we couldn't go through them 10 all here today, but we are glad for the opportunity to 11 provide them. Again, DF&G&G submitted their comments in the 12 exercise of its jurisdiction over and based on its expertise 13 in protection of the state's public trust resources and 14 threatened and endangered species effected by the Draft 15 Decision and Orders. DF&G&G respectfully submits these 16 comments for the purpose of assisting the Board in reaching 17 a sound, accurate and defensible decision for Phases I 18 through VII of the Bay-Delta water rights hearing, a 19 decision that protects the state's import public trust 20 resources and conserves threatened and endangered species in 21 furtherance of the California Endangered Species Act. 22 Thank you. 23 Do you have any questions? 24 CHAIRMAN STUBCHAER: Any questions? 25 Thank you. CAPITOL REPORTERS (916) 923-5447 150 1 Paul Simmons and Virginia Cahill. I think that is a 2 team. 3 Good afternoon. 4 MR. SIMMONS: Good afternoon, Mr. Chairman and Members 5 of the Board. My name is Paul Simmons. Initially I am 6 representing today the Glenn Colusa Irrigation District, 7 also filling in for Mr. Hitchings. 8 I'd just simply like to say that GCID has submitted its 9 comments in writing and joins with the Sacramento Valley 10 Water Users' comments that you heard already. 11 With respect to the City of Stockton, who I am also 12 representing with Ms. Cahill, I will speak just very briefly 13 and very specifically to Agenda Item 2, which is the 14 certification of the Final EIR, or the decision on the Water 15 Quality Control Plan, and Ms. Cahill will speak to Issue 16 Number 3, which is the water rights decision itself. And my 17 comments are going to be very brief and very focused. 18 I want to underscore for the Board that the City has 19 submitted some recommendations with respect to the Final EIR 20 which we believe are appropriate to make it more correct, 21 more current and more applicable to the decision that you 22 presumably are going to make later. We provided suggested 23 specific language that would achieve those results. 24 There are really two topics that those specifics 25 cover. One is that we believe it is important in the EIR CAPITOL REPORTERS (916) 923-5447 151 1 itself to recognize the TMDL process for dissolved oxygen, 2 which is ongoing under the auspices of the Regional Board. 3 That is something that you recognized in your proposed 4 decision. The Board has endorsed it elsewhere in another 5 proceeding, in another forum. There is a lot of action 6 going on there. I think about a million and a half of 7 public money have been committed to that TMDL process. We 8 just think that there is sort of a gap there that would be 9 appropriate to give that some recognize in the Final EIR and 10 help to tie more directly to the water right decision 11 itself. 12 The second item is, there is really a sort of outdated 13 description of some activities in the city with respect to 14 facilities planning. It is not inaccurate. It was probably 15 accurate as of the time of the Draft EIR, but the City 16 provided testimony to sort of bring everyone up to date. We 17 believe it would be appropriate for the Final EIR to reflect 18 that. It doesn't reflect to the legal adequacy of the EIR. 19 It's just that simply these things tend to have a life of 20 their own. EIRs are relied on by others, and we believe it 21 will be appropriate to make those two corrections as we go. 22 So the recommendation with respect to the EIR is that 23 should the Board adopt the resolution certifying the EIR, 24 that it incorporate into that resolution the specific 25 revisions which are included as Attachment A to the City's CAPITOL REPORTERS (916) 923-5447 152 1 comment letter on the Final EIR in terms of the substantive 2 resolution, the issue on DOs, the City supports the 3 substance of the proposed order. 4 Thank you. 5 CHAIRMAN STUBCHAER: Thank you, Mr. Simmons. 6 Afternoon, Ms. Cahill. 7 MS. CAHILL: Good afternoon. I know you introduced 8 Paul Simmons, et al. I guess that means that I am et al. I 9 am also known as Virginia Cahill. I am also representing 10 the City of Stockton. 11 I am going to focus my comments this afternoon on those 12 portions of the Order which address the conditions for the 13 New Melones permits. Let me start with Condition 2 on Page 14 168. 15 We are pleased to see that the errata makes it clear 16 that Condition 2 is an interim condition only. That really 17 doesn't go far enough. We don't believe it is appropriate 18 to put in the New Melones condition -- in the New Melones 19 permits alone a condition that is really an obligation of 20 the Bureau or the CVP as a whole. 21 The responsibility for meeting the Vernalis flow 22 objectives, and Condition 2 is aimed at Vernalis flow 23 objectives for fish and wildlife beneficial uses. The 24 responsibility for meeting the Vernalis flow objective 25 should be the responsibility of the USBR and not a CAPITOL REPORTERS (916) 923-5447 153 1 requirement of its New Melones permits only. 2 The San Joaquin River Agreement provides, quote, the 3 USBR shall assume responsibility for the term of this 4 agreement for the San Joaquin River portion of the 19 Water 5 Quality Control Plan objectives that can reasonably be met 6 through flow measures. The San Joaquin River Agreement does 7 not require that the water be provided from New Melones. On 8 the contrary, in Paragraph 12.1 of the SJRA, quote, the 9 Bureau specifically provides assurance that they will pursue 10 acquisition of additional water to comply with the San 11 Joaquin River portion of the 1995 WQCP, unquote. 12 The Bureau could meet those requirements in a number of 13 ways, including purchases and possibly recirculation if that 14 proves feasible. The Bureau has specifically represented to 15 the Water Board that it will assume responsibility for the 16 term of SJRA for the San Joaquin River portion of the 1995 17 Control Plan objectives that can reasonably be met through 18 flow measures. That is in the SJRA at Paragraph 10.1.1. 19 And the Bureau represents that it will backstop the pulse 20 flow requirements if the SJRA is terminated prior to 21 expiration. It did not tie its obligation to the New 22 Melones permit to the New Melones Project and neither should 23 the Water Board. 24 Interestingly, in the text part of the Decision, on 25 Page 139, the Board says that the Decision requires USBR to CAPITOL REPORTERS (916) 923-5447 154 1 meet the flow objectives at Vernalis except for April/May 2 pulse flows which are addressed elsewhere. That is an 3 obligation of the USBR as a whole, the CVP as a whole, not 4 just New Melones. And yet when we get the ordering part of 5 the Decision we find that condition only in the New Melones 6 permits. 7 We believe that ideally because the Bureau has 8 contractually obligated itself to meet those standards and 9 has represented to the Board that it will do so that you 10 should allow it to do so and continue to do so on a 11 voluntary basis. Or we would like you to at least eliminate 12 Condition 2, starting on Page 168, and have just an ordering 13 paragraph that orders the Bureau to meet those standards as 14 it has promised. If you don't do that, then if you don't 15 delete Condition 2 on Page 168, then those conditions should 16 also be inserted in other CVP permits for the delivery of 17 water in the San Joaquin Basin as well, because the USBR, 18 the responsible party that took on that responsibility, is 19 the permittee on those permits as well. 20 We strongly urge you, first, to delete them. If you 21 don't, then to at least extend them to the other CVP 22 permits. As a bear minimum, and I hate to even suggest it 23 because I feel like people think that you are not serious 24 about your first recommendation if you give them a bear 25 minimum, but as a bear minimum the footnote that you're CAPITOL REPORTERS (916) 923-5447 155 1 proposing to add at the top of Page 167 should be inserted 2 here too; that is the footnote on Page 5 of your errata, 3 third bullet down. Says, "This condition does not mandate 4 that the licensee/permittee use water under this license 5 permit to meet this condition, if it uses other sources of 6 water or other means to meet this condition." 7 At a bear minimum that should be inserted in the 8 conditions dealing with New Melones. Otherwise, it is to 9 suggest purchases and recirculation and other steps the 10 Bureau might take, it will just look to New Melones. It 11 wouldn't have the same motivation to explore those other 12 methods. I believe that same footnote should be inserted 13 also on Condition 1 just as it is for the salinity 14 conditions in the other CVP permits. 15 Generally, with regard to salinity, we agree with the 16 comments made by Ms. Zolezzi on behalf of Stockton East 17 Water District. 18 With regard to salinity, again, we don't believe it is 19 enough to condition permits. We believe you have to order 20 the Regional Water Quality Control Board to take action and 21 to take action by a date certain. We understand that the 22 Regional Board has undertaken the setting of salinity 23 objectives upstream of Vernalis; that effort is 24 delayed. There is no guarantee it will happen by any time 25 certain. We believe this Board has got to order the CAPITOL REPORTERS (916) 923-5447 156 1 Regional Board to do that by a certain time. 2 The salinity problem is just too serious to not be 3 using a multi-prong approach. While we are waiting, perhaps 4 for a drain, the San Joaquin River is in effect serving as a 5 drain and 130 miles of it are water quality impaired for 6 salinity. 7 There is just one little point I would like to have you 8 clarify. On Pages 160 to 161, when you talk about 9 recirculation we were very pleased to see on Page 161F that 10 one of the topics of the recirculation study was to study 11 the potential for improvements in water quality in the San 12 Joaquin River as a result of recirculation. We think that 13 is very important and we are happy to see it there. 14 Unfortunately, it is a little inconsistent with the 15 paragraph that started on Page 160 and went over onto 161 16 that says the purpose of the plan will be to determine the 17 feasibility of recirculation for meeting the April/May 18 Vernalis pulse flow. I think that is too narrow. I think 19 you definitely do want to look at water quality as well. 20 Finally, I would just like to say that I do believe you 21 have it wrong on the watershed of origin, Delta Protection 22 legal analysis, and I would adopt and incorporate the 23 careful and good comments made by the Contra Costa Water 24 District on that topic. 25 With that, I wish you a Happy New Year. Thank you. CAPITOL REPORTERS (916) 923-5447 157 1 CHAIRMAN STUBCHAER: Thank you, Ms. Cahill. 2 Next will be Paul Minasian, followed by Cliff 3 Schulz. 4 Afternoon. 5 MR. MINASIAN: Afternoon. You're all looking a little 6 sphinx-like. We all know what a mess the Nile became. So 7 let me try to approach this in a slightly different way. 8 Let me imagine for a moment that I was a Board Member. That 9 is hard to imagine. Because you put up with a lot, and we 10 appreciate it, all of us in this room. 11 But, first of all, DWR and apparently the Bureau were 12 asking you to exclude your Conditions 1 and 2. It is like a 13 racer; you have been at this so long. You're so close to 14 going across a finish line, perhaps not the ultimate finish 15 line, that you let down your guard. You offer in the errata 16 to put in the word "interim." Somehow that made it 17 better. There has been talk today of two years. Somehow 18 that made it better. 19 In fact, what it does it infects your action in such a 20 way that it can be challenged under CEQA. Think about it 21 for a moment as a Board Member. Would you not rather say, 22 "This is our decision. Every decision we make can be 23 changed, can be altered, can be amended, can put a general 24 paragraph in, affirm you can change your decision. You put 25 the word "interim" in there and that telegraphs to a court CAPITOL REPORTERS (916) 923-5447 158 1 that you did an EIR, and you certified the EIR, but then you 2 decided to just go so far. 3 And what happens is the court senses that. We don't 4 want challenges. We don't want litigation in regard to your 5 decisions because I am thinking like a Board Member. But 6 what happens, what is happening here, I suspect, is that we 7 are starting to give a little bit to make people feel a 8 little better. As Dave Anderson says, "Give a little bit of 9 weight to the process rather than legal requirements," 10 which, of course, is the problem here. Is that we do need 11 decisions. We need rules. 12 Now the second way that infects you to put the word 13 "interim" and to suggest it can give just a little bit here 14 and not just rely upon your general power to change, and 15 make them feel better because they didn't know this was 16 coming. How in the world do you approve East Bay MUD with 17 all the affirmations by Dwight and Dave Sandino with regard 18 to the backstopping. You are going to put in front of each 19 East Bay MUD orders and language, "This is just interim"? 20 Now, I didn't hear anything about that being a 21 short-term promise on the part of DWR. And so they come 22 before us today as a Board Member and we must have spent, 23 aggregate, a couple days as Board Members hearing about all 24 this talk about settlement. Do you have any idea today as a 25 Board Member why they weren't settled? These guys are CAPITOL REPORTERS (916) 923-5447 159 1 slippery. And the bottom line of it is that you've got to 2 put in the word the state and federal contractors and 3 projects are obligated to Condition 1 and 2, take the word 4 "interim" out, you can always change it, and stop talking 5 about this two years. 'Cause if it isn't two years, what if 6 it is one and a half or what if it is three, is this 7 automatically going to terminate? 8 Second area. The Sacramento Valley comments I join 9 in. But if I am thinking like a Board Member, I want to go 10 a step farther. Just think about what you are saying. You 11 are saying to somebody in a black robe, "We kept the statute 12 of limitations open when we came back and we tried to use 13 this EIR. But we accept the possibility that there is going 14 to be litigation regarding the sufficiency of the EIR in 15 regard to our decision on Phases I through VII." And a 16 Superior Court may find that EIR totally sufficient, make a 17 finding. And these people from Phase VIII, which includes 18 all the San Joaquin water right holders and all the 19 Sacramento people may not even be there. And then you're 20 going to put in language that says, "We assure you that when 21 we try to use the very same document later on for the, 22 quote, final decision regarding Phase VIII that you will be 23 able to litigate all these issues, all these things will be 24 open." Now, the danger here is piecemealing. As a 25 Board Member, I suspect that is something you spent a lot of CAPITOL REPORTERS (916) 923-5447 160 1 time talking to your staff about. I would suggest to you, 2 as a Board Member, that you might think a little bit about 3 the real risk here. Is that somebody in a black robe senses 4 that when you use these sort of phrases and you try to keep 5 open some of the arguments, the limitation argument, that 6 you are really infecting your document. Wouldn't you be 7 better off to admit that this is our decision; CEQA's ended 8 regarding this decision? When we come to do some other 9 action we are going to reinitiate CEQA. It may be we just 10 take the title page off and just renumber the pages, but 11 there is going to be a new CEQA process. 12 Now in lot of respects, as if I were a Board member, I 13 would think that would make your case much better for a 14 valid, unchallengable decision. Obviously, for those of us 15 in the Sacramento Valley and those with water rights in the 16 San Joaquin River, we think that it will make a much sounder 17 record in Phase VIII. We won't have to worry about whether 18 or not this stipulation applies just to the base document or 19 to a supplement or to a recirculated document. And, 20 remember, you're not controlling all the arguments that are 21 made in court. There are real parties in interest. There 22 are other people who can assert statute of limitation and 23 other conditions. 24 Finally, as a Board Member, I am sure that -- I 25 shouldn't say you never found Westlands to be a nuisance. I CAPITOL REPORTERS (916) 923-5447 161 1 know. But as somebody on the outside I find them to be a 2 nuisance at times. But, please, sometimes people that are 3 nuisances we try to take them out of play by calling them 4 not a legal user of water, we have unintended effects. And 5 they're on the right side of this issue. We have 6 contractors, you have granted water rights to the state and 7 federal project. You have included our contracts as a 8 condition of those water rights. We received the water 9 through the operations of the state and federal facilities. 10 Think about the Exchange Contractors and Feather River 11 Contractors. Each of them are in that category. Are you 12 saying to us we are not legal users of water for the purpose 13 of standing participation? 14 Please don't let your concern about cutting down the 15 burden of your procedures to allow you to adopt a ruling 16 that causes us to inherit the wind. This Board has great 17 credibility and its Members have great credibility. That 18 portion of this Decision is much, much too broad. 19 Thank you and thank you for your courtesies during the 20 hearing. 21 CHAIRMAN STUBCHAER: Thank you, Mr. Minasian. 22 Mr. Cliff Schulz, followed by Ernest Conant. 23 Afternoon, Mr. Schulz. 24 MR. SCHULZ: Good afternoon. Cliff Schulz for the Kern 25 County Water Agency. CAPITOL REPORTERS (916) 923-5447 162 1 Try to keep this brief. Support the comments of the 2 State Water Contractors. There are three areas that I 3 wanted to briefly discuss. Start with the Endangered 4 Species Act issue and add a point to what was made by 5 others. 6 What we are requesting in, I think it is on Page 155 of 7 the Decision and a couple of other places, the last two 8 sentences of Condition 70 deleted. Let me add just one 9 thing to what other people have said. 10 I am very confused by the last sentence that says 11 permittee/licensee shall be responsible for meeting all 12 requirements of the applicable Endangered Species Act for 13 the project authorized under this permit/license. 14 It almost sounds like to me when you are making a water 15 rights permittee responsible for all requirements for the 16 project. I am not sure about the project. I am not sure 17 what all the requirements are. It almost sounds like it 18 could be that they would be responsible for a landowner who 19 is putting new land into production, mitigation 20 responsibility, which is I don't think what you meant. 21 I think what you have, even though this apparently is a 22 standard permit term, you need to go back and reexamine 23 that. You had all that you need in the first sentence of 24 that provision, and the last two sentences don't add 25 anything. Create confusion. You have the state essentially CAPITOL REPORTERS (916) 923-5447 163 1 saying thou shall comply with all federal laws, applicable 2 federal laws; except you don't say that. You say only 3 Endangered Species Act. What about all the other ones? What 4 about 404, and what about the Clean Water Act? 5 I don't know why those last few sentences are in there, 6 but they create confusion. They create almost state action 7 in another way in terms of respect to those federal laws. 8 And I would strongly recommend those last two sentences be 9 deleted, and you stick with just the first sentence, which 10 should do the trick. 11 The second point I wanted to talk about was Conditions 12 1 and 2. And Tom Howard, in making his presentation 13 earlier, pointed to Page 7 of the Draft Decision and where 14 it is contained a recitation of the key issues that came out 15 in 1998. In condition B -- excuse me, Issue B is what 16 requirements for implementing the flow-dependent objectives 17 in the 1995 Bay-Delta Plan should be adopted in a water 18 rights decision. But at the time you put that out as a key 19 issue you also divided this proceeding into phases. In 20 Phase I was the extension of 95-6, and Phase VIII was what 21 was to deal with key Issue B. 22 I ask you this rhetorical question: Where in Phases II 23 through VII would you have expected the parties to put on 24 evidence as to the public interest of issuing Condition 1 25 and 2, even on an interim basis? There wasn't any. There CAPITOL REPORTERS (916) 923-5447 164 1 was no opportunity to put on evidence in those phases with 2 respect to the public interest question. And I can promise 3 you almost as an offer of proof that we as the state 4 contractors in Kern would have put on evidence that it was 5 not in the public interest to in effect, even in the 6 interim, adopt condition or Alternative 2. We might have 7 gotten up and argued that we shouldn't in the interim 8 impose Alternative 3. But more likely we would have said, 9 "We've got to remember that the voluntary compliance aspect 10 came out of the framework agreement, came out of the Accord 11 and came out of a very carefully crafted total process of 12 which this Board should be aware. 13 Whereby in exchange for a voluntary compliance we 14 received from the federal agencies protection against water 15 supply impacts of new listings. But including this, even on 16 an interim basis, you are upsetting a rather delicate piece 17 of negotiation that took a long time to put together. As 18 Dave Anderson said, it isn't something that is necessary. 19 You have D-1485 for Condition 1, and you have the voluntary 20 compliance from the court and framework for Condition 2. 21 And we did not receive notice or have any opportunity to put 22 on public interest testimony with respect this issue. 23 So we join in the request that has been deleted from 24 the Decision. 25 One final point on that. Some people pointed to the CAPITOL REPORTERS (916) 923-5447 165 1 notice for Phase I. Phase I is done. Phase I, a decision 2 was issued. And it wasn't in that decision or we would have 3 raised the point at that time. We're dealing with a 4 decision on Phases II through VII. So, I ask my question 5 again: Where in the notice for Phases II through VII and 6 where in the process for Phases II through VII was there an 7 opportunity to introduce the necessary public interest 8 testimony? It is not there. 9 Finally, I do want to talk about the changes that were 10 made in the errata with respect to legal user of water. And 11 the Board in effect and in the errata has really sort of 12 tied it down. Has made use of the term "legal user of 13 water" equivalent to the holder of a water right, and 14 limited in that fashion. And I go back to something that 15 Tom Birmingham said, "The Legislature would have known how 16 to say there shall be no injury to holders of water rights." 17 They said legal users of water. It's a much broader term 18 which appears in other places in the Water Code. I don't 19 think you should make this equivalence finding. 20 I am not going to take a position on the question of 21 whether or not the Board should get involved in disputes 22 between the State Water Contractors and DWR as to how DWR -- 23 how we should relate with our contracts. But as all of you 24 know I was fairly deeply involved in the Natomas hearing, 25 and the contractors were there, believing that we had a CAPITOL REPORTERS (916) 923-5447 166 1 right to be there as legal users of water. It so happens 2 that DWR was there also. 3 When DWR comes to a hearing like the Natomas hearing or 4 water transfer or change petition hearing, they are there 5 because my clients are the ones that get injured. DWR 6 doesn't get injured. They get their money whether they lose 7 the water or not. That is the way our contracts read. It 8 is our water supply that is gone, if something happens under 9 the no-injury rule. 10 If DWR decides for any number of reasons, not because 11 they oppose our position, but because they have staff 12 committed to other things, not to protest one of those, we 13 do. You suddenly change the entire dynamic when you say 14 that we are simply making our protest on public interest 15 grounds and not on legal injury grounds, on injury to legal 16 user grounds. 17 So we are there before you in a different context and 18 apparently what your staff is saying is you can't make a 19 finding that we are a legal user of water who would be 20 injured by the change. You can make the determination for 21 us on public interest grounds. That is, again, an 22 unintended consequence. We want you to be very, very 23 careful, and ask you to be careful in the way you phrase 24 this issue that is now before you. 25 Again, I am not here particularly concerned about the CAPITOL REPORTERS (916) 923-5447 167 1 disputes between ourselves and DWR as to how our contracts 2 should be interpreted. But I am very, very concerned about 3 our loss of standing and our loss of rights when we come in 4 and challenge a change which could impact our contract water 5 supply and ask you to reconsider that issue. 6 Thank you. 7 CHAIRMAN STUBCHAER: Thank you, Mr. Schulz. 8 Any questions of Mr. Schulz? 9 I think this is a good time to take our 12-minute 10 afternoon break. We will be in recess for 12 minutes. 11 (Break taken.) 12 CHAIRMAN STUBCHAER: Call the meeting back to order. 13 Mr. Conant. You will be followed by Robert Maddow. 14 Good afternoon. 15 MR. CONANT: Good afternoon, Mr. Chairman and Board 16 Members. Ernest Conant appearing on behalf of Arvin-Edison 17 Water Storage District and Del Puerto Water District 18 regarding place of use issues. 19 First of all, as many other speakers have indicated, we 20 would like to commend the Board and staff for your efforts 21 in trying to deal with this very complex subject in a very 22 comprehensive manner. We did appreciate your efforts in 23 working through that holiday season working on this 24 project. 25 I'm just going to highlight a few points that were made CAPITOL REPORTERS (916) 923-5447 168 1 in my letter that was filed on the 23rd with respect to 2 place of use issue. Arvin-Edison boundaries haven't changed 3 since the 1942 and Del Puerto Water District, their 4 boundaries haven't change since mid '50s when they entered 5 the contracts with the Bureau. Yet through this process 6 it's indicated that some of their lands were outside the 7 place of use. Obviously, the Bureau or the staff or the 8 Board 30 or 40 years ago made a mistake. And we think in 9 large part their issue has been dealt with or at least a 10 process to deal with it through the change in the errata on 11 Page 171, which provides a process for exempting preCEQA 12 encroachments from mitigation requirements. 13 So, hopefully that will take care of it, but I do want 14 to mention, if for some reason it doesn't, a couple things 15 that are set forth in my letter. 16 You recall last summer when we were going through this 17 and looking at all the maps, we had a lot of testimony about 18 the inaccuracy or the scale of the maps from which those 19 place of use maps were drawn. And you heard testimony that, 20 for instance, the line itself on the map was a quarter to 21 half a mile wide. These lands in question within 22 Arvin-Edison and Del Puerto for the most part are within a 23 half mile. So, they are within the realm of the inaccuracy 24 of the maps themselves. 25 So, we think from the beginning they probably shouldn't CAPITOL REPORTERS (916) 923-5447 169 1 have been labeled as being outside the place of use, but 2 again, hopefully, this process will work and they will be 3 exempted from any mitigation requirements. 4 Also, I wanted to note something that is kind of a 5 mystery to us. In the Draft EIR most of their lands were 6 indicated to be nonCVP-induced. And then in the Final EIR 7 for some reason they are CVP-induced. There is no testimony 8 indicating they should be CVP-induced is a puzzle to us. 9 Evidence we presented during those hearings would have 10 indicated that those lands were developed for the CVP. Or 11 at least some of them were. So, we're puzzled by that and 12 would ask that staff clarify that. Possibly there was a 13 mistake made in preparing the Final EIR but it is unclear to 14 us. There is no indication how they came to that 15 conclusion. 16 Also, I want to comment, as others have before me, that 17 we're troubled by the discussion at Page 130 to 137 of the 18 draft regarding the legal user of water. And my comment 19 letter I set forth at length why we think that certain 20 statements made are not a correct statement of the law and 21 why it is overly broad. And I would join in comments of 22 others, Mr. Schulz, Mr. Birmingham, Wilkinson, Paul 23 Minasian, that that section needs to be revised or deleted. 24 So that concludes my comments on behalf of Arvin-Edison 25 and Del Puerto. On the place of use we appreciate your CAPITOL REPORTERS (916) 923-5447 170 1 efforts, and we are still troubled by, confused by this 2 process and how they were ever determined to be outside the 3 place of use. But assuming that is the case, it appears 4 that there is a process to deal with it now. 5 The last comment I want to make on behalf of other 6 clients, Dan Dooley and myself represented Cross Valley 7 Canal Contractors in Phase VI. The only comment we had with 8 respect to the Draft Decision is that the footnote on Page, 9 I think it is, 97 identifying who the Cross Valley 10 Contractors are is in error. There has been some confusion 11 on this. But to correct it, that footnote should be 12 modified to delete Tea Pot Dome Water District and Sausalito 13 Water District and insert in place of those two districts 14 Hills Valley Irrigation District, the County of Fresno and 15 the County of Tulare. And with that substitution that 16 footnote would be correct. Those eight entities, six 17 districts and two counties, are the entities that have 18 contracts with the Bureau of Reclamation and State of 19 California. 20 That completes my comments. 21 Any questions? 22 CHAIRMAN STUBCHAER: Questions of Mr. Conant? 23 Thank you, Mr. Conant. 24 MR. CONANT: Thank you. 25 CHAIRMAN STUBCHAER: Robert Maddow, followed by Dan CAPITOL REPORTERS (916) 923-5447 171 1 Suyeyasu. 2 Afternoon. 3 MR. MADDOW: Good afternoon, Mr. Chairman, Members of 4 the Board. Robert Maddow appearing on behalf of Contra 5 Costa Water District. 6 I was noticing when we came in -- it's the first time I 7 have been in this room, first time I appeared before this 8 Board in this forum. And at first I wasn't sure I was 9 walking into a Scout Jamboree or political convention or 10 just what have you. 11 CHAIRMAN STUBCHAER: We have all this fun thing and all 12 this festive -- up here it is an icebox. 13 MR. MADDOW: I will join with others to commend the 14 Board and staff for the hard work on this monumental task, 15 and you've come a long way. I don't think you are done yet. 16 You recognize that as well. But I will just join with the 17 many others because words of praise, I think they are, in 18 fact, due. 19 I have a couple of comments about the Final EIR and 20 three comments about the Decision itself. First with regard 21 to the EIR. Contra Costa Water District has commented on 22 numerous occasions that to look at Delta water quality 23 issues by using long-term averages -- long-term averages is 24 a troublesome way to do it. We have argued and we have 25 suggested at many different forums and a number of different CAPITOL REPORTERS (916) 923-5447 172 1 sets of comments, et cetera, that by doing so you don't look 2 at bad months. 3 And we have pointed out that at Contra Costa if you 4 don't look at bad months you can see that the bad times are 5 magnified. One of the things we talked about over time was 6 that if water quality is degraded in months of December and 7 January, even at a time when overall water quality is in 8 pretty good shape, those degraded months in December and 9 January could be magnified because the way in which Contra 10 Costa's Los Vaqueros project works, there are, of course, 11 periods of time in the spring when there is otherwise good 12 water available that in order to protect fish Contra Costa 13 can't take. When Contra Costa doesn't take water, it 14 provides a significant benefit to the Central Valley 15 Project, a significant benefit in terms of available water 16 from the standpoint of what has to happen to protect fish 17 during those springtimes. Contra Costa can't refill Los 18 Vaqueros during those times. 19 The unfortunate thing is that we have learned here in 20 1999 that Contra Costa's comments were right. Starting 21 November 26th water quality in the Central Delta went very 22 high on salinity, higher than it has seen since 1977. In 23 fact, Contra Costa's communicated with this Board about what 24 it believes is a violation of standards that has resulted 25 during a period of time when we are here at the end of, what CAPITOL REPORTERS (916) 923-5447 173 1 is it, five or six, at least five consecutive wet years when 2 there should be good quality water in the Delta and there 3 wasn't. 4 Our point with regard to the EIR is that if you are 5 going -- if the analysis is being done based on long-term 6 averages, you don't get the whole story. You need to look 7 on a monthly analysis basis and there may, in fact, need to 8 be mitigation for water quality degradation on a monthly 9 basis. That is not the way it was done. We are saying for 10 a long time that is the way it should have been done. We 11 think that the results that we have seen here in 1999 just 12 prove that fact. 13 With regard to the Decision itself, first, we 14 appreciate a couple of things that we saw in the errata 15 today. A change that was made to include both of Contra 16 Costa's diversion rights. Only one had been in the Draft 17 Decision. The errata corrected that. We also appreciate 18 the correction to the footnote on Page 193 regarding the 19 period for closure of the cross channel gates and the 20 process for deciding on that closure. We believe you did 21 that in response to comments by Contra Costa and others, and 22 we appreciate it. 23 We noted one other thing in the errata, however, which 24 we found to be troublesome. On Page 115 there had been a 25 provision in the Draft Decision that said that the operation CAPITOL REPORTERS (916) 923-5447 174 1 pursuant to the joint point of diversion petition would not 2 adversely affect water quality at Rock Slough or Old River, 3 the two Contra Costa diversion locations, or two of the 4 three diversion locations. And we said, "Wait a minute. 5 There is a problem." We have shown that through evidence we 6 have presented. 7 The errata acknowledges there will be adverse impacts 8 to Contra Costa. But then it does so by putting in the word 9 "significant." In other words, yes, you are going to get 10 water quality degradation at your points of diversion as a 11 result of this decision. But they won't be significant. You 12 just have to take it. 13 Well, Contra Costa's point of view is that such impacts 14 are supposed to be mitigated. We have suggested a number of 15 alternatives. In our letter of December 23rd we have an 16 alternative in the form of a term that could be added to 17 water rights permits. That is one way to cope with that 18 degradation that is going to occur. The other we suggested 19 that you consider doing it is by use of a response plan 20 which would be similar procedurally and conceptually to a 21 response plan that you've already included in the Draft 22 Decision at Page 157, where you were dealing with water 23 rights in the South Delta. 24 We would suggest take another look at that by changing 25 the Decision to specifically acknowledge that water quality CAPITOL REPORTERS (916) 923-5447 175 1 at Contra Costa's M&I points of diversion is going to be 2 degraded. We think that the Board perhaps made it a little 3 worse than better for that particular errata. We think 4 mitigation is required. 5 I want to talk for a moment about a second issue in the 6 Decision, and that is the joint settlement agreement on 7 Mokelumne. Earlier today in one of her presentations Ms. 8 Zolezzi talked about how the decision, not going to be able 9 to quote her, but I think in essence she said that the 10 decision was almost the Board thanking the United States and 11 the state for their agreement to backstop the San Joaquin 12 River Agreement. Well, the Mokelumne settlement is 13 different as we attempted to point out during the 14 proceedings in that you don't have a fully backstopped 15 agreement. Because the United States not only refused to 16 sign that joint settlement agreement, but the Department of 17 the Interior came in and opposed it. 18 The decision now says that the CVP in practice will 19 provide those flows. Somebody commented on the company 20 cold; I also suffer from that plight. 21 We believe that the way in which the proposed decision 22 deals with the Mokelumne River Settlement Agreement is to in 23 essence to force the United States against its will to make 24 up the difference between what would otherwise be assigned 25 to the Mokelumne River water rights holders and the flows CAPITOL REPORTERS (916) 923-5447 176 1 that will be required under whatever alternative you adopt. 2 The decision shows that if you were to adopt Alternative 3 3 in a dry year, it's 34,000 acre-feet. Now, that is a fairly 4 substantial amount of water. When you're looking at it from 5 the standpoint of the Central Valley Project, it's already 6 having a terrible time supplying the water that is needed by 7 its contractors. 8 Those of us who are engaged in contract negotiations 9 for future or renewals of our water supply contracts on 10 water surface contracts with the United States are very 11 concerned in particular in issues related to the 12 availability of water supply to meet urban needs. The same 13 kind of urban needs that you took into account in looking at 14 whether or not you should approve the joint settlement 15 agreement as it was presented to you. 16 Our concern is that by forcing or compelling the United 17 States to make up the difference, as this decision does, 18 water supply contractors who buy water from the United 19 States are going to find that their shortages are going to 20 be more frequent, shortages are going to be more severe. We 21 think there are a number of other ways you could have 22 approached the Mokelumne River Water Supply Agreement. We 23 commented on those in our comment letter. 24 Finally, I want to talk just a moment about the Delta 25 Protection Act. Someone referred earlier to our comments CAPITOL REPORTERS (916) 923-5447 177 1 today. I am not going to reiterate everything we said in 2 our letter. We did make extensive comments with regard to 3 the Board's interpretation of the Delta Protection Act. 4 Frankly, we think it is wrong. We think it is narrow, 5 unrealistic, almost a hypertechnical interpretation of how 6 the Delta Protection Act applies to United States Bureau of 7 Reclamation. 8 We also think, however, that it is really dictum in 9 this decision. We don't think that you have to reach the 10 point that the Board's staff is recommending that you go to 11 on Page 37 in particular with regard to the Delta Protection 12 Act in order to make this decision. And, frankly, we think 13 that the suggested language on Page 37 is going to result in 14 a fight. You heard that from a number of entities who have 15 been represented here today. We just don't think that fight 16 is necessary. Ultimately there is going to have to be a 17 fight over the Delta Protection Act. There hasn't been one 18 yet with regard to the provision of an adequate water supply 19 of that statute. 20 We don't think that fight necessarily has to be fought 21 over this phase, Phase I through VII decision in this 22 proceeding. And we suggest to you that since it is dictum, 23 we believe it is dictum and that you perhaps don't have to 24 make a decision that will spawn that fight at this time. If 25 you are going to leave that decision in, I would join in the CAPITOL REPORTERS (916) 923-5447 178 1 comments of others who have said today that we believe that 2 what is suggested is contrary to years of efforts to the 3 State of California to get its arms around the United States 4 and the Delta Protection Act was one way in which it was 5 attempting to do that. Here is your staff coming back and 6 saying, "Well, it doesn't apply to the United States." 7 We are sorely troubled by that and join in the comments 8 by others. 9 As I say, we have made an extensive -- we have 10 submitted an extensive comment letter with both legal and 11 technical comments about the proposed decision. I will not 12 reiterate everything that is in that decision. Richard 13 Denton, Contra Costa's Water Resources Manager is here to 14 help me respond to questions if there are any. Again, my 15 congratulations to the Board and staff for a job well done. 16 It has a long way to go and we hope you will take our 17 comments into consideration before you act. 18 CHAIRMAN STUBCHAER: Any questions for Mr. Maddow? 19 We will take all comments into serious consideration, 20 Mr. Maddow. 21 MR. MADDOW: Thank you. 22 CHAIRMAN STUBCHAER: Dan Suyeyasu, followed by Fred 23 Etheridge. 24 Afternoon. 25 MR. SUYEYASU: Good afternoon. Mr. Stubchaer, Members CAPITOL REPORTERS (916) 923-5447 179 1 of the Board, Dan Suyeyasu on behalf of the Environmental 2 Defense Fund. 3 As the Board probably suspects, the Environmental 4 Defense Fund has some significant concerns with the Board's 5 Draft Decision on implementing the 1995 Water Quality 6 Control Plan. Our first and primary concern is that the 7 Board has decided that it need not implement the 1995 Water 8 Quality Control Plan. 9 We were quite pleased to read in your Draft Decision 10 that you found that you were unable to make a finding of 11 equivalent protection under the San Joaquin River Agreement 12 at this time. Despite your inability to find equivalent 13 protection, you still decided to approve the San Joaquin 14 River Agreement, which surprised us quite a bit. You did 15 this by deciding instead to delay implementation of the 16 pulse flow objective under the 1995 Water Quality Control 17 Plan. 18 This decision to delay implementation of Water Quality 19 Control Plan was based upon your interpretation of Water 20 Code Section 13242. We must disagree with your 21 interpretation of that section. Water Code Section 13242 22 states that the program of implementation for achieving 23 water quality objectives shall include, one of the things 24 is, a time schedule for actions to be taken. That appears 25 to be where you're understanding that you may implement CAPITOL REPORTERS (916) 923-5447 180 1 these measures over time through staged implementation. 2 But if you look to Water Code Section 13050 (j), it 3 defines a Water Quality Control Plan as including a program 4 of implementation. It should be clear that Water Code 5 Section 13242, describing the program of implementation, is 6 referring to that program that is part of the Water Quality 7 Control Plan. Now, luckily the 1995 Water Quality Control 8 Plan right here complied with those provisions of the law, 9 and it included a program of implementation that has a 10 schedule for implementing the various standards within that 11 plan. 12 If I might quote from this real quickly, it says: 13 The State Water Resources Control Board will 14 initiate a water rights proceeding following 15 adoption of this Water Quality Control Plan. 16 The water rights proceeding will address the 17 water supply-related objectives in this plan 18 through the amendment of water rights under 19 the authority of the State Water Resources 20 Control Board. The water supply-related 21 objectives include those for Delta outflow 22 and river flows which would include the 23 Delta pulse flow objective. (Reading.) 24 This program of implementation also says that the water 25 rights decision, which is anticipated before June of 1998, CAPITOL REPORTERS (916) 923-5447 181 1 understand it is complicated because we haven't met that 2 date, will allocate responsibility for meeting the 3 objectives among water right holders in the Bay-Delta 4 Estuary watershed. It says assign responsibility for 5 meeting objectives. 6 Now, another part of the Water Quality Control Plan 7 states that the terms of this Water Quality Control Plan are 8 intended to be consistent with the principles of the 9 agreement, otherwise known as the Bay-Delta Accord, which 10 was the basis for this Water Quality Control Plan. 11 If you look at the Bay-Delta Accord, it also calls upon 12 the Board to implement within three years of adopting its 13 Water Quality Control Plan, that would be in 1998 at this 14 point, fully implement the pulse flow objectives listed 15 under Attachment B of the Bay-Delta Accord. Those are the 16 same April/May pulse flow objectives that can be found in 17 the Water Quality Control Plan. 18 So, it should be clear that the Board's already 19 complied with Section 13242 of the Water Code and has 20 adopted a schedule of implementation for the pulse flow 21 standard, and that schedule of implementation called upon 22 the Board to fully implement those pulse flow standards in 23 these hearings. If the Board wishes to now invoke Section 24 13422 to amend that schedule, it must go back and amend the 25 Water Quality Control Plan. However, this hearing is not CAPITOL REPORTERS (916) 923-5447 182 1 about amending the Water Quality Control Plan. It is about 2 implementing it, and it has not been noticed as a hearing to 3 amend the program of implementation. 4 We would also like to note that your decision to delay 5 implementation of the pulse flow objectives is something 6 that appears to still be supported by the state and federal 7 governments. State and federal government made commitments 8 to the Environmental Defense Fund in the Bay-Delta Accord to 9 which we are signatory that they would see to it, or at 10 least advocate that the Board fully implement the pulse flow 11 objectives in this hearing. 12 It appears that they are supportive of the Board's 13 decision to not implement the pulse flow objectives at this 14 time. We consider that a breach of their commitment under 15 the Accord and hope that they will soon change their minds 16 and honor the commitments that they made to us almost five 17 years ago, or just a little over five years ago. 18 We would just like to quickly note our other main 19 concern with the Draft Decision, that is the Board's 20 recommendation that the Bureau of Reclamation proceed with 21 the completion of the San Luis drain. This recommendation 22 was a bit surprising to us considering that the Draft 23 Decision did not discuss at all the potential environmental 24 impacts of completing the San Luis Drain, let alone analyze 25 those impacts. As you know, the discharge of selenium as CAPITOL REPORTERS (916) 923-5447 183 1 well as other agricultural contaminants into the Bay-Delta 2 can have potential disastrous effects on the ecosystem. 3 It was not so surprising that your Draft Decision did 4 not discuss the impacts considering that the Final EIR as 5 well as the Draft EIR did not even discuss the completion of 6 the San Luis Drain as an alternative for meeting the 7 salinity objectives. Considering that the completion of the 8 San Luis Drain was not considered as an alternative, the 9 Board should not in any way mention or recommend that it be 10 completed to meet those standards. Consequently, any 11 mention of the San Luis Drain should be removed from the 12 Draft Decision at this time. 13 That is a brief summary of our comments. We had some 14 other concerns about the Draft Decision, but I will leave 15 those for you to read in our written comments. 16 Do you have any questions? 17 CHAIRMAN STUBCHAER: Any questions? 18 Thank you. 19 Afternoon, Mr. Etheridge. You will be followed by Alf 20 Brandt. 21 MR. ETHERIDGE: Good afternoon, Mr. Stubchaer, 22 Members of the Board and State Board staff. I am Fred 23 Etheridge for the Office of General Counsel of East Bay 24 Municipal Utility District. 25 We also appreciate the extensive effort of district CAPITOL REPORTERS (916) 923-5447 184 1 staff. I know that you got approximately 40-odd comments at 2 the end of the day last Thursday. I suspect the district 3 staff worked over the holiday weekend to put together the 4 errata sheet. I think we all appreciate that tremendous 5 effort on the part of staff. 6 The district had over only three minor recommended 7 changes to the Draft Decision. Those have been made in the 8 errata, and we agree with the way the errata captured our 9 recommended changes. More importantly, the district 10 believes that the provisions of the Draft Decision as to 11 EBMUD and the Mokelumne River are reasonable and should be 12 adopted by the Board. 13 As you know probably better than most of us, the 14 hearing record in this proceeding is extensive. You had 15 approximately 80 days of hearing and over 16,000 pages of 16 transcript now. I am a reader. I like books, but 16,000 17 pages is one significant book. And I think that simply 18 reflects the complexities of the issues and number of 19 parties in this proceeding. But that transcript, together 20 with the evidence, gives the State Board substantial 21 evidence to support the Draft Decision as to the Mokelumne 22 River that you have issued. 23 Specifically as to the Mokelumne, the district in its 24 specific evidence on its fishery efforts on the Mokelumne 25 River, the additional Bay-Delta flows represented by our CAPITOL REPORTERS (916) 923-5447 185 1 settlement flows and also an explanation of the tradeoffs 2 between different reservoir levels and the consequential 3 reservoir temperatures, recreation and fishery impacts as 4 well as customer impact. And review of the Draft Decision 5 shows that the State Board did review the record. It is not 6 simply that you accepted documents and testimony into the 7 record. You looked at it. 8 For example, the Draft Decision recognizes the 9 connection between fishery releases at one time potentially 10 resulting in adverse temperatures for fishery at later 11 times. And that is a technical issue, but it is clear from 12 your Draft Decision that you looked at the record and picked 13 up on those important pieces of evidence. 14 In short, an extensive record exists here and you have 15 reviewed and weighed that record in making your 16 determinations in the Draft Decision. We think that 17 decision represents a reasonable balance of the competing 18 ecosystem and water supply needs on the Mokelumne River and 19 its relationship to the Bay-Delta. And we also think that 20 that decision adequately addresses the comments of the 21 various parties that have commented upon the Mokelumne 22 Settlement. 23 Just briefly, you heard earlier today from the North 24 San Joaquin Water Conservation District and I think their 25 comments were essentially a restatement of their case in CAPITOL REPORTERS (916) 923-5447 186 1 chief in Phase IV, which you already heard. Not that you 2 heard it, but the Draft Decision deals with it. The Draft 3 Decision notes that additional flow releases, over and above 4 East Bay MUD proposed settlement flows, would "exacerbate" 5 shortages for the North San Joaquin Water Conservation 6 District. That is on Page 68 of the Draft Decision. 7 So the Board has heard that argument before and 8 addressed it in the Draft Decision. I think, similarly, 9 with the comments of U.S. Fish and Wildlife Service and for 10 the Department of Interior in the written comments you 11 recommend Alternative 5. We already did that. We did that 12 in Phase IV. Your Draft Decision acknowledges that and 13 deals with it, acknowledging the tradeoffs between higher 14 releases of Alternative 5 and potential later fishery 15 impacts. 16 So, also then closing with the comments on backstopping 17 of Contra Costa Water District, which Mr. Maddow just made. 18 Those were the gist of the cross-examination of questions of 19 the Contra Costa Water District in Phase IV. So all those 20 comments of the parties you have heard and dealt with in 21 your Draft Decision. So we, consequently, would 22 respectfully request the State Board to adopt its Draft 23 Decision provisions as to the district and Mokelumne River 24 as its final decision. 25 And that concludes my comments. I would be happy to CAPITOL REPORTERS (916) 923-5447 187 1 answer any questions you may have. 2 CHAIRMAN STUBCHAER: Questions of Mr. Etheridge? 3 Thank you, Mr. Etheridge. I will just note if you 4 reformatted the hearing record in single-spaced, ten point 5 Roman two columns, you can get it under 5,000 pages. 6 MR. ETHERIDGE: That is still a very significant book. 7 CHAIRMAN STUBCHAER: Next we will hear from Mr. Brandt, 8 followed by Tom Keene. 9 Good afternoon, Mr. Brandt. 10 MR. BRANDT: Good afternoon. My name is Alf Brandt, 11 and I represent the United States Department of the 12 Interior. 13 This probably is one of the last times I will appear 14 before this Board, at least in a lawyer role. I am on 15 assignment today, and I am no longer with the Solicitor's 16 office. So I will have a replacement. Ed Gee [phonetic] 17 will be taking over for me in Phase VIII. But perhaps I 18 will have another opportunity to appear before the Board in 19 another role. 20 CHAIRMAN STUBCHAER: Tell us what you are. 21 MR. BRANDT: I am now in what is called the Club FED 22 Coordinator. Coordinate all the federal agencies involved 23 in CALFED. Club FED, it's kind of a cute name, but don't 24 ask me. 25 CHAIRMAN STUBCHAER: Enemy or friend? CAPITOL REPORTERS (916) 923-5447 188 1 MR. BRANDT: We are all in the same club. You know we 2 are all working together here. 3 On that note I guess I sort of -- 4 CHAIRMAN STUBCHAER: Mr. Brandt, I just have to say I 5 remember you appeared before us early on in the Bay-Delta 6 hearings, and you basically told us to take it or leave it 7 issue. And I responded to you, "You will leave it, but I 8 don't know if we will take it." I look forward to hearing 9 your comments. 10 MR. BRANDT: Well, on that note, let's see how do I 11 start. I was going to start with, and I guess I still will, 12 if I had to sort of sum it all up as far as how the 13 Department of the Interior views what this order has done, I 14 guess I frankly have to use the word "disappointment." And, 15 you know, we are a little disappointed. It focuses on 16 fault. It puts the focus there and primarily on the 17 projects, both DWR's State Water Project and the Bureau's 18 Central Valley Project. It's not much so -- it kind of 19 moves the focus away from how do we resolve these problems, 20 but what is the problem. 21 Perhaps that is the cost of focusing on water rights, 22 that we are in a water rights hearing, that is where you 23 have to focus your attention. Perhaps that is the cost. It 24 is disappointing nonetheless, but that is where it goes. 25 You know, I can just see you're probably wondering, wait a CAPITOL REPORTERS (916) 923-5447 189 1 minute. We are approving the San Joaquin River Agreement, 2 which is what you want. We are approving, for the most 3 part, joint point. How can you be disappointed? And you're 4 probably surprised that that would be the word that we would 5 use. 6 I have to say we do appreciate it. We are very 7 thankful and supportive of a lot of comments you made and 8 conclusions you reached as far as the San Joaquin River 9 Agreement, as far as joint point, as far as number of the 10 other pieces. But I guess it is just a couple of other 11 pieces that you put in there as well that has made us, 12 disappointed us. That is where the attention has gone. 13 One of them is -- one piece of that seems like you are 14 sending us down some tunnel that we don't see any light down 15 there at the end of the tunnel. And in looking for the 16 ultimate physical solution, that that is the answer. And 17 the two examples are often -- the one I point to is 18 recirculation and the San Luis Drain issue. The other piece 19 is kind of imposing responsibilities on the Central Valley 20 Project with in some cases little evidence, in other cases 21 with little or no effect. It doesn't change the situation. 22 So, those are the reasons that we kind of are disappointed. 23 On recirculation, as you recall, we presented some 24 received as to what the problems were. We have not put a 25 lot of attention into it, not put a lot of money or effort, CAPITOL REPORTERS (916) 923-5447 190 1 but timing into that. Although that is in the process we 2 are doing a little of that with DWR now, doing a study of 3 recirculation. We will follow up on the requirements that 4 you have. We are disappointed that we are going down that 5 road, spending a lot of time, particularly because of -- in 6 light of the recent times of the difficulty we are having 7 just getting water south of the Delta. With fisheries 8 issues and a number of other management issues, it is 9 difficult for us to get water south of the Delta. For us to 10 get it there and take away from contractors, put it back 11 down and keep on going, it causes us to question. 12 On the other piece, on San Luis Drain, as you know 13 there is ongoing litigation. There is, as we put in our 14 comments, the state has a role here to play. The state and 15 the federal government have in recent years during this 16 decade focused its attention on other ways to resolve the 17 drainage problem. Doesn't mean we are ignoring it. It 18 means that we are looking at other places. The San Luis 19 Drain is not the answer. And many of -- the reasons that 20 Mr. Suyeyasu just identified for you. There are so many 21 environmental questions that go into it. With our history 22 at Kesterson and a number of other things, we have just not 23 been focused there, and we have been focused in other ways 24 to deal with the drainage. 25 The other piece of this is that, how do I say this, is CAPITOL REPORTERS (916) 923-5447 191 1 putting out responsibility without effect. It is kind of 2 responsibility without real effect. One piece of this is 3 Friant. We appreciate in the comments the change in the 4 errata on that it is not meant to draw water from Friant. 5 But as Mr. O'Laughlin pointed out, that doesn't mean that 6 there may be others who may go to court and say, "What this 7 really means, even though they didn't intend it, you have to 8 draw from Friant." That would be a hindrance to the San 9 Joaquin River Agreement and to all our other 10 responsibilities. 11 You know how complex it is down there, the 12 interrelationships among exchange contractors, the former 13 water right holders along the stream, Friant, the litigation 14 that has been going on for years, the complexity of that 15 situation down there and the hopefulness of what is 16 happening right now to put this -- to make a change like 17 this and put all the responsibility on Friant and every 18 other part of the CVP really raises a lot of questions and 19 makes it that much more difficult to get to some resolution 20 down in that area. 21 The other piece is putting responsibility on Interior 22 or on the Bureau of Reclamation's Central Valley Project for 23 Interior Delta Standards that were not -- I think we agree 24 with some of the earlier comments today. They were not 25 noticed. We were not on notice that we were going to be CAPITOL REPORTERS (916) 923-5447 192 1 addressing those, even as an interim that those were going 2 to be put on as an interim. The problem with doing them as 3 an interim, all these things, even the drain and 4 recirculation, it creates this presumption that that is the 5 answer. It creates the presumption that the drain is the 6 answer. It creates the presumption that recirculation is 7 the answer or that the project's taking all the 8 responsibility for these standards is the answer. Even 9 though you say you are not going to do it, deal with this 10 and it will be readdressed in two years, it creates a 11 presumption that that is really the way it should be going. 12 That does concern us. 13 We don't have a luxury of just throwing up our hands. 14 We are going forward with a number of drainage issues. We 15 will continue to work with the Regional Board. We will 16 continue to do that. We support any efforts that you would 17 have to encourage them to continue moving on with that. We 18 are working with CALFED on various projects to deal with 19 drainage management down in that area to deal with the 20 salinity issue. We are working with DWR with the 21 recirculation issue. We are supportive of what is going on 22 between our contractors and the environmental community down 23 in the Friant area. We are working on all these issues. 24 But coming to some conclusion at this point as we have does 25 concern us, that that may get in the way of some ultimate CAPITOL REPORTERS (916) 923-5447 193 1 resolution. 2 So, you may ask, "What would you change?" "What would 3 you do better?" "What would make this better?" 4 Let me start with one, saying the Mokelumne River 5 Agreement which was just discussed, we did oppose it, but it 6 is a start. It is a start of spreading of that 7 responsibility, that we think that broad spreading of that 8 responsibility. We think that that broad spreading of 9 responsibility and all sharing and cooperating is going to 10 make the situation better is the way to go. It is a start, 11 not as far as we go, but we acknowledge that is your 12 judgment call to make. Of course, whatever that judgment 13 call is may at some point fit into the negotiations that are 14 going on to renegotiate that contract for East Bay MUD on 15 the American River as was discussed during the hearing. I 16 don't know where that would go. 17 But then also we would suggest eliminating those 18 presumptions, eliminate us as the interior standards. We 19 are continuing to meet those standards. We have been 20 meeting those standards, but is it necessary to put those 21 responsibilities and put that presumption in place? That we 22 are going to continue to meet it even though it is interim 23 for now. Get rid of the San Luis Drain discussion, 24 recirculation. Take the responsibility off the Friant 25 permit. Those are not necessary and create presumptions CAPITOL REPORTERS (916) 923-5447 194 1 that really are not helping us make a difference in the 2 Delta. 3 We'd also like to see you clearly adopt the San Joaquin 4 River Agreement. We appreciate the language that says we 5 approve the San Joaquin River Agreement for purpose of 6 VAMP. But there is more in the San Joaquin River Agreement 7 than just the VAMP. There is a number of other purchases, a 8 number of pieces of it in addition to the flows at 9 Vernalis. We really appreciate some language clearly 10 adopting the entire San Joaquin River Agreement. Because it 11 is all those pieces together that make that environmental 12 equivalent, whether it's the exports, the export reductions. 13 Or whether it is the purchases at other times of year to 14 deal with standards, issues and problems other times of the 15 year. All those things together are what makes the 16 difference to create that environmental -- the equivalent 17 protection. 18 If not, we would just ask that you provide us some time 19 to come back to you for reconsideration, 60 days is what we 20 requested, to come back and just -- if we will need to 21 discuss some of these things as you acknowledged in your 22 order, you did not accept all conditions, so it does not 23 take effect. We need to go back and discuss some of those 24 things. I can't tell you whether we will definitely need to 25 come back, but we will definitely need to go back with all CAPITOL REPORTERS (916) 923-5447 195 1 the parties and discuss the issues that still need to be 2 resolved. 3 What else? We've got -- we would encourage you to 4 adopt some implementation plans for dozens of salmon which 5 is the narrative standard that you have, even if that is 6 just adopting the action that the Department of Interior has 7 already taken or others saying that is part of our plan, 8 too. Anything along those lines, but we did think it is 9 important to give a narrative standard as well as the other 10 lines. We would also urge you to retain some CALFED Ops 11 Group leadership, allow them to continue to play a key role 12 in a lot of these things. We found it is a key place to 13 bring both stakeholder and the agencies operating projects 14 and fisheries together to talk about these things. It is a 15 key part that is working. We are sorry to see some of that 16 shift from whether the CALFED Ops Group or someone else. 17 And then one thing I do want to clarify is on the Cross 18 Valley Provision or use of joint point with the Cross Valley 19 Contractors. I just want to make clear that we are assuming 20 that that language on Page 158 of the order allows for it to 21 happen. For those -- use of joint point for those 22 contractors to happen without going to CALFED Ops and doing 23 all those things that are in the following subparagraph or 24 the following paragraph, we are assuming that that is just 25 as we have been doing for decades now, just provide the CAPITOL REPORTERS (916) 923-5447 196 1 joint point water for the Cross Valley Contractors. 2 I guess with that, I would leave you that we would hope 3 that we would see continuing spreading of that 4 responsibility and promoting that cooperative spirit that is 5 making things, to the extent that they are working, some of 6 the things that are working are that cooperative spirit 7 among all the agencies that are playing a key role in the 8 Delta and we continue to see that. We would hope that your 9 order would reflect that kind of and promote that kind of 10 cooperation in spreading of responsibility among all parties 11 that play a real role through the Delta, throughout the 12 Delta watershed. 13 CHAIRMAN STUBCHAER: Mr. Brandt, I have a question for 14 clarification for your position on the recirculation 15 alternative. It is my understanding that the order just 16 requires a feasibility study, not implementation. Does the 17 Bureau oppose the study of recirculation? 18 MR. BRANDT: We are not opposed to the study. Assuming 19 that DWR is going forward with a study, we are cooperating 20 with them. That satisfies that requirement, then, yes, that 21 would be fine. But we are working with them in CalFed to 22 look at recirculation. That study will take into 23 consideration the things that you have required in there. We 24 are not opposed to it, just disappointed it is there. 25 CHAIRMAN STUBCHAER: Feasibility study is required? CAPITOL REPORTERS (916) 923-5447 197 1 MR. BRANDT: Right. 2 CHAIRMAN STUBCHAER: Thank you. 3 Ms. Forster. 4 MEMBER FORSTER: Why are we listening all day? Now we 5 are getting at the end of the day. Your part about being at 6 the end. 7 You said what would we do differently? What would we 8 propose? Who do you think were going to meet the standards 9 for 98- -- over on Friday when the process was begun was 10 promised the administration at EPA that the standards would 11 be met until we finished the process. So, I am a little 12 surprised that it wasn't anticipated that the standards 13 would have to be continued to be met when we are not done. 14 And so when did you think this issue was going to come up 15 and who was going to meet them? 16 MR. BRANDT: Well, I think it was a continuation of the 17 situation that has been there for several years. We have 18 not had standards in our permits. We have been in voluntary 19 compliance with the standards and provide them; and we have 20 gone through our biological opinions. Most of the standards 21 are consistent with the biological opinions that we have to 22 meet, anyway. It is just a question of whether to put them 23 on, particularly in the Friant situation, where there is 24 ongoing litigation about what that really means, what the 25 responsibility up there is. It would be better to wait at CAPITOL REPORTERS (916) 923-5447 198 1 least until we can litigate that, whether it is there or 2 whether that working in front of the Board on particular 3 issue at some later time. Or for the case of the other 4 standards out of the Sacramento River that would be in Phase 5 VIII where we would be discussing and moving on that. So I 6 would encourage you to keep it as it is, which is we 7 continue to voluntarily comply and do what is needed to get 8 done. 9 MEMBER FORSTER: I am not -- 10 MR. BRANDT: Putting in permits doesn't make a 11 difference ultimately for the interim period. 12 Thank you. 13 CHAIRMAN STUBCHAER: Tom Keene, who will be followed by 14 Kenneth Robbins. 15 Afternoon, Mr. Keene. 16 MR. KEENE: Afternoon, Mr. Stubchaer and Members of the 17 Board. 18 First, I would like to address the errata. I certainly 19 agree with my friend, Ernest Conant, that we were very happy 20 to see the errata on Page 5 where you have the addition to 21 Page 171. There is now a process at least for claiming an 22 exemption from CEQA, because of either prior CEQA compliance 23 or because the application of water to the land prior to the 24 effective date of CEQA. 25 However, I was then disappointed to see on Page 129 CAPITOL REPORTERS (916) 923-5447 199 1 that where the errata on Page 2, the addition to Page 129, 2 where you then go through an entire discussion of San Luis 3 Water District's Environmental Impact Report that seems to 4 basically prejudge that case. And I would very much 5 appreciate it if that errata were not adopted on Page 2. 6 Simply because in essence it tells the Bureau of Reclamation 7 to treat the San Luis District's Environmental Impact Report 8 differently than the other Environmental Impact Reports 9 because it reaches some conclusions of law with regard to 10 the contents of that Environmental Impact Report, 11 conclusions which we do not agree with, by the way. It is 12 unfortunate that this information did not appear until 13 today. Because it doesn't give us much of an opportunity to 14 respond to it with regard to our environmental impact 15 report. 16 It is says, for example, that the area covered by the 17 Environmental Impact Report is only slightly overlapping 18 with the encroachment areas. According to our figures, it 19 is 10,300 acres out of 10,668 acres of claimed encroachment. 20 So we don't understand where that slightly overlapping comes 21 from. 22 Yes, the Environmental Impact Report was as to the 23 distribution system, but it was as to the distribution 24 system of the CVP water, and it said explicitly that it was 25 taken out of the San Luis Canal. So, I don't know how you CAPITOL REPORTERS (916) 923-5447 200 1 could possibly have read that and not said, "Well, gee, 2 somehow or another this must involve the expansion of the 3 area." Certainly to the same extent that your Environmental 4 Impact Report addresses the application to the land, this 5 Environmental Impact Report addresses application of water 6 to the land. 7 Notice was given in 1974 to the State Clearing House. 8 Effectively notice was given to all state agencies. 9 Frankly, I do not know whether the EIR guidelines or CEQA 10 guidelines in 1974 required special notice to be given to 11 responsible agencies. I haven't had the opportunity to 12 research that. I have been here all day, and this issue 13 didn't come up until this morning. 14 So, the most effective way of dealing with these issues 15 is simply to not adopt that paragraph of the errata and 16 leave it to the process that you have already set up over on 17 the errata on Page 5, and let us go through that process. 18 Now, with regard to the other two, see if I can go back 19 to my prepared statement. One of the concerns that we have 20 had about the environmental documents, and it also applies 21 to the proposed decision, is that even though both 22 documents, both the Final Environmental Impact Report and 23 the proposed decision identified three mitigation measures. 24 They indicate that the mitigation plan itself, the 25 monitoring plan, is not going to be written for possibly as CAPITOL REPORTERS (916) 923-5447 201 1 much as 18 months from now. By then, of course, the statute 2 of limitations as to the CEQA compliance would have long 3 since run, which basically is telling us and other districts 4 like us, "We are issuing you a blank check in your name, but 5 don't worry about it. It is going to have to be 6 countersigned by Fish and Game or U.S. Fish and Wildlife 7 Service before the Bureau of Reclamation can cash the 8 check." We are a little bit reluctant to do that. 9 What we would very much like to have seen would have 10 been an Environmental Impact Report that included a 11 mitigation plan or at least something that would address the 12 cost of mitigation. When I cross-examined Mr. Hunn last 13 week, he, as the author of the Final Environmental Impact 14 Report, indicated he had no idea what the cost of mitigation 15 was going to be. He didn't know whether it was going to 16 cost more to mitigate it than the $7.5 million a year that 17 is in the Environmental Impact Report than it would have 18 cost if you had simply denied the petition in the first 19 place. That is a very substantive issue, in our opinion, 20 and should not be left to be worked out some way in the 21 future. 22 As to encroachment lands, our understanding is that 23 this is the final environmental document and, in our 24 opinion, under CEQA you cannot make the appropriate findings 25 as to the mitigation of what has been identified as CAPITOL REPORTERS (916) 923-5447 202 1 substantial impacts without being able to determine that 2 there are feasible mitigation measures there. And you can't 3 determine if -- I don't see how you can determine whether a 4 mitigation measure is feasible unless you can at least tell 5 how much it is going to cost or who is going to pay for it, 6 and at this point nobody knows, including the author of the 7 document. And we don't think that should be acceptable. 8 We would join in Chris Campbell's argument with regard 9 to the detrimental reliance of some of our landowners. A 10 number of them bought their land on the understanding that 11 it was within the service area. They had every assurance 12 from everybody that they could contact reasonably, even if 13 they had come down here and looked at the map. Frankly, I 14 think the hearing showed that the maps are on such a large 15 scale that to be able to determine whether one particular 16 field is inside or outside the place of use boundaries is 17 impossible. It is impossible for the head of Bureau's own 18 GIS system who prepared the maps, indicated that he would 19 not be willing to rely on the maps for that kind of a 20 purpose. The scale is just too small. 21 So, I don't think that that problem has gone away. The 22 process of simply having all of the maps redigitized as you 23 did I know for the preparation of maps in the Final 24 Environmental Impact Report does not make the end product 25 any more accurate than what you started with. CAPITOL REPORTERS (916) 923-5447 203 1 MEMBER BROWN: Mr. Keene. 2 MR. KEENE: Yes, Mr. Brown. 3 MEMBER BROWN: Are you talking about lands that are 4 outside of the district or lands that are inside of the 5 district? 6 MR. KEENE: I am talking about lands that are inside 7 the district but have been designated as outside of the 8 place of use. 9 MEMBER BROWN: They are included in the place of use 10 now? 11 MR. KEENE: They are included in the place of use now, 12 but they have been identified as encroachment lands based on 13 maps that are much too large of a scale to make a 14 determination on any reasonable basis. And redigitizing the 15 maps, which is the only process that you have gone through 16 since the hearings on this back in April, does not make the 17 map any more accurate. 18 MEMBER BROWN: Are you concerned that these lands would 19 not be eligible for water? 20 MR. KEENE: My concern -- now, I will realize you are 21 placing them inside the place of use, now making them the 22 subject of having to pay for mitigation. Now whether the 23 Bureau is going to pay for that mitigation or whether it is 24 going to come out of restoration fund or come out of the 25 hide of the landowner -- CAPITOL REPORTERS (916) 923-5447 204 1 MEMBER BROWN: Are these 1975 -- 2 MR. KEENE: These are the lands that for the most part 3 were annexed under Environmental Impact Report in 1974. 4 They are post 1970, which is the effective date of CEQA, but 5 they are under this Environmental Impact Report, that this 6 draft errata sheet tries to rip to shreds. So it is land 7 that we are obligated now to pay mitigation. Somebody is 8 obligated to pay for. We don't know who. 9 CHAIRMAN BROWN: I understand your problem. 10 MR. KEENE: The other problem with or another problem 11 with the Environmental Impact Report, again, is the -- well, 12 the economic impact. That is both the cost of who pays for 13 it and if the possible cost is in excess of the seven and a 14 half million dollars which was the maximum amount that was 15 considered applicable to San Luis District in the Draft 16 Environmental Impact Report, then that effect has not been 17 studied and implies that you are required under CEQA to at 18 least study that, and that has not been studied. That 19 basically was admitted to by Mr. Hunn when he admitted that 20 the cost of exceedance of seven and a half million. 21 At this point I still feel that this draft or this 22 Final Environmental Impact Report should not be certified. I 23 believe that you're down the wrong road. You are way down 24 the wrong road. I think what you should seriously consider 25 doing is backing up and going through and adopting the CAPITOL REPORTERS (916) 923-5447 205 1 necessary paperwork to establish that this is categorically 2 exempt. The application of water was prior to the effective 3 date of CEQA. Insofar as CEQA applied, we have an 4 Environmental Impact Report that covered the matter. And at 5 least at this stage, in my opinion at least, the so-called 6 encroachment lands in the San Luis Water District should not 7 be subject to this Environmental Impact Report or the 8 mitigation that it calls for that you have before you and 9 that you are about to adopt by resolution. We believe it is 10 inappropriate. We believe that it does an injustice to the 11 San Luis Water District and to the property owners within. 12 Thank you. 13 CHAIRMAN STUBCHAER: Thank you, Mr. Keene. 14 Kenneth Robbins, followed by Arthur Godwin. 15 Good afternoon. 16 MR. ROBBINS: Good afternoon. Drawing to a close, I 17 hope. Kenneth Robbins -- 18 CHAIRMAN STUBCHAER: As with the first witness person 19 this morning, we don't want you to rush. 20 MR. ROBBINS: Well, the matter is not. I think my 21 remarks are fairly brief. I want to join Tim O'Laughlin in 22 suggesting that not only the River Authority but its members 23 are very much supportive of the order the Board has 24 drafted. We have a tendency to sometimes try to deal with 25 minutia. I am going to try to do the same thing as well. CAPITOL REPORTERS (916) 923-5447 206 1 But we are nevertheless cognizant of the fact that we 2 need to take the bitter with the sweet from time to time. 3 One of the things that puzzles us was the notion that we had 4 a negotiated agreement which we thought was fully crafted 5 and balanced as being mugged by some extent. One example of 6 that is the negotiation with the Bureau of Reclamation to 7 provide backstop to the agreement. And because of a couple 8 of terms that the Board is implementing we may be deprived 9 of a portion of that backstop. 10 Additionally, one would consider, I think, much more 11 closely how agreements are crafted in the future if indeed 12 they will be subjected to Board modification for the 13 mitigation purposes. Nevertheless, specific comments have 14 to do with the refill requirements that the Board has placed 15 in the order on Exchequer Reservoir and New Don Pedro, 16 suggesting that during certain circumstances when the Bureau 17 of Reclamation is releasing water from New Melones to meet 18 water quality requirements that Exchequer and Don Pedro 19 cease storage activities. 20 Although we would rather you delete that provision in 21 its entirety, our Board has agreed to go forward with this 22 under a couple of conditions. That term we believe has a 23 possible impact on those reservoirs, but having run the 24 hydrology very quickly over the holidays, and your staff 25 wasn't the only one working through the holidays, I might CAPITOL REPORTERS (916) 923-5447 207 1 add, we have come to the conclusion that although it does 2 pose additional risk to both Merced and to Modesto/Turlock, 3 particularly to Merced, we believe it is a risk we can live 4 with provided that kind of water losses that could occur as 5 a result of implementation of this additional condition are 6 not greater than those that were anticipated under the 7 River agreement to begin with. 8 A good example of that would be in wet years when the 9 Bureau is releasing water to meet water quality standards, 10 there are certain circumstances in the month of June in 11 which in wet years, believe it or not, we must have water 12 end flow in order to make standards happen or to meet the 13 salinity requirements of the Delta, which is a kind of odd 14 turn of events, don't you think? The east side fresh water 15 reservoirs meeting salinity standards. Nevertheless, we are 16 prepared to do so. 17 However, one clarification I do think we do need. 18 Although the text of the document certainly indicates that 19 the releases from New Melones that you are referring to are 20 stored water releases, they don't explicitly say that. I 21 would suggest to you that on Page 44 in Section 6.3.4.5, 22 Line 10, the word "storage" should be inserted so that it is 23 very clear that the Bureau release the stored water that 24 triggers this condition. I believe the context of the 25 provision dictates, and we would just appreciate it being CAPITOL REPORTERS (916) 923-5447 208 1 clarified. 2 I think, also, it would be appropriate to change 3 ordering Paragraph 3 on Page 175 to also insert the same 4 term, to indicate when the Bureau is releasing stored 5 water. There are conditions in which reoperations or 6 bypasses of water can occur that would generically be 7 referred to as releases, and I don't think that is what you 8 are referring to. If it is, in fact, returned water, it is 9 upside-down, and I don't believe that is what you had in 10 mind here. 11 All in all we congratulate you on coming to a rather 12 good conclusion. We appreciate the opportunity to implement 13 this agreement and we look forward to producing the data 14 that we will need to once and for all determine just exactly 15 what the flows in the San Joaquin should be. 16 Thank you. 17 Any questions? 18 CHAIRMAN STUBCHAER: Thank you, Mr. Robbins. 19 Mr. Godwin who will be followed by David Aladjem. 20 Afternoon. 21 MR. GODWIN: Good afternoon, Chairman Stubchaer and 22 Members of the Board. Arthur Godwin for Turlock Irrigation 23 District. We submitted written comments along with the San 24 Joaquin River Group Authority, and I would just like to 25 reiterate Mr. Robbins' comments with respect to the refill. CAPITOL REPORTERS (916) 923-5447 209 1 We have the same concerns on behalf of Turlock Irrigation 2 District, and those characterized in written comments to the 3 Board under the heading of San Joaquin River Agreement or 4 San Joaquin River Group Authority. 5 That is all I have. 6 Thank you. 7 CHAIRMAN STUBCHAER: Thank you, Mr. Godwin. 8 Mr. Aledjem, who will be followed by Michael Sexton who 9 is the last card that I have. 10 Afternoon. 11 MR. ALADJEM: Good afternoon, Mr. Stubchaer, Members of 12 the Board. I am David Aledjem of Downey, Brand appearing 13 for a number of valley water users and I join the comments 14 of my colleague, Alan Lilly, this morning on behalf of a 15 larger group of Sacramento Valley water users. 16 I, too, want to compliment you and your staff for the 17 very expeditious and professional way in which you turned 18 around these comments. Responding to the voluminous comment 19 letters you got last week was a major chore, and we very 20 much appreciate your efforts. I also want to say I 21 appreciate your efforts this afternoon and the very careful 22 attention you have been paying throughout the proceedings 23 is appreciated on behalf of all of us who appear before 24 you. 25 I have some very brief comments this afternoon, really CAPITOL REPORTERS (916) 923-5447 210 1 focusing on CEQA issues which have been raised and touched 2 upon in a number of places today. As you have heard Mr. 3 Lilly discuss this morning, we are very gratified by the 4 errata sheet, Page 3, and comments on Page 140. We believe 5 that that is an effort on the part of your staff to respond 6 to some very serious comments that were raised by a number 7 of us, and we think it is a good start. As we understand, 8 the intent of that is to allow the parties to make their 9 objections to the Final EIR and/or any other environmental 10 documents that you may determine at the end of Phase VIII 11 that you actually need with a new statute of limitation at 12 the end of Phase VIII, and that is the appropriate 13 resolution. None of us want to be sitting here commencing 14 litigation on Phase VIII issues use before the Board has a 15 chance to go through and actually pull Phase VIII. A very 16 sensible solution coming up with it. 17 Effectively, what your staff has done is to say that 18 there are going to be two projects for purposes of CEQA with 19 two NODs. And that is the correct solution to this problem. 20 It has been approved by the Third District Court of Appeals 21 in the El Dorado High School case, and I can provide the 22 citation to your staff if they are interested. I am sure 23 they already read that case. 24 There has been, however, some concern voiced in some 25 documents about whether your Board would be piecemealing its CAPITOL REPORTERS (916) 923-5447 211 1 decisions and whether that would constitute a violation of 2 CEQA. As you're well aware, CEQA forbids piecemealing 3 because the intent is to ensure that you don't take a large 4 project and cut it up into small pieces and thereby don't 5 analyze the overall impacts of doing all those little 6 projects. Now you have heard Sacramento Valley water users 7 and my client's comments on the Final EIR, but this is not a 8 concern that you need to be worried about. The cumulative 9 impact analysis that you did or your staff did in the Final 10 EIR addresses the potential impacts of all of Phases I 11 through VII, Phases I through VII decision and the Phase 12 VIII decision. 13 That analysis is exactly what CEQA requires. It is not 14 piecemealing. It is, as your staff said, staged 15 implementation, staged decision. That is permitted by CEQA 16 and it is something that you should actually take as an 17 opportunity to address issues in a sequential, orderly and 18 logical fashion. 19 So to close, we would urge you to do on the CEQA issues 20 is to adopt the errata with the suggestions made by Mr. 21 Lilly this morning. We believe that is defensible and that 22 approach is defensible in terms of CEQA. And I would be 23 glad to answer any questions that you have. 24 CHAIRMAN STUBCHAER: Any questions of Mr. Aladjem? 25 Thank you for your comments. CAPITOL REPORTERS (916) 923-5447 212 1 Mr. Sexton. 2 MR. SEXTON: Afternoon, Mr. Chairman, Members of the 3 Board. 4 The Exchange Contractors have asked me to convey the 5 compliments to the Board and staff for their work on the 6 order and their thanks for the order which proposes to 7 implement the San Joaquin River Agreement and the VAMP 8 experiment. 9 There is one issue that I wanted to discuss with you 10 very briefly. I try to put myself sometimes in the role of 11 those who I am speaking to. I am just wondering what it 12 would be like sitting as a Board Member right now having 13 heard this mass of comments all day long after working so 14 hard on the order. And it occurs to me that you'd probably 15 be saying, "Sit down. Shut up. We want to get out of 16 here." So I am going to try to do that. 17 If I could refer you very briefly to Page 91 of the 18 Draft Order and your errata Page 1 which addresses comments 19 on that Page 91 of the order. And it is to do with the 20 issue of drainage and the provision of drainage service to 21 the area on the west side. The order makes a recognition 22 that the San Luis Act as public law 86488 requires that the 23 San Luis Drain be constructed. It talks in general terms 24 about lawsuits that were filed and the fact that nothing has 25 really been very successful. It talks about the Bureau CAPITOL REPORTERS (916) 923-5447 213 1 assurances that a drain will be completed. It talks about 2 continuation of the Bureau's delays in making progress in an 3 out-of-valley drain. It makes a recognition that a Bureau 4 witness testifies that the Bureau had no specific plans to 5 improve quality upstream of Vernalis, and that is still the 6 same today. 7 The Bureau's been directed by a court to initiate 8 activities to resolve the drainage problems of the San 9 Joaquin Valley. That's true also, and there hasn't been a 10 lot that the Bureau has done. In fact, very recently the 11 Bureau is starting to get the message from its litigation 12 staff, the Department of Justice, that perhaps they ought to 13 do a little something more or they have a certain judge that 14 sits on the District Court in Fresno that might hold them in 15 contempt, individually as well as an agency. So perhaps we 16 are going to see something more. 17 But if I were sitting up there as a Board right now, I 18 am wondering to myself given the history of this drainage 19 problem, given all the recognitions and testimony that you 20 have had before then, would I truly believe that if I 21 include a statement that said, "It should proceed to do so 22 promptly," in other words the Bureau should initiate 23 activities to resolve the drainage problem and it should 24 proceed to do so, or as the errata has amended that, it 25 should proceed promptly to initiate such activities and file CAPITOL REPORTERS (916) 923-5447 214 1 any necessary applications, if I was sitting as a Board 2 Member, do I really have a real warm, fuzzy feeling as I sit 3 here at the end of 1999 that the Bureau is going to do 4 anything different? I am afraid that I probably wouldn't 5 have that warm, fuzzy feeling. 6 So I am asking the Board at the end of 1999, as we 7 enter a new millenium, to consider using your -- not only 8 your regulatory, your adjudicatory, but also your quasi 9 judicial authority and perhaps consider a statement amending 10 this errata that says, "Bureau of Reclamation, you will, you 11 shall. You shall do something. And we are ordering you to 12 do it. We are ordering you to take actions to address and 13 provide drainage service to the west side." 14 Thank you very much. 15 CHAIRMAN STUBCHAER: Thank you, Mr. Sexton. 16 We want to thank everyone for your comments. 17 What I propose that we do is to give the comments due 18 consideration, is to ask the staff to consider the comments, 19 make recommendations to the Board, prepare a revised errata 20 sheet, if necessary, and bring it back to us in this room at 21 9:00 a.m. tomorrow morning with no further public scrutiny, 22 because this is an iterative process and you can go forever. 23 But we are not going to go forever. So, that is my 24 suggestion. 25 Do my fellow Board Members have any comments on that? CAPITOL REPORTERS (916) 923-5447 215 1 MEMBER BROWN: Yes, sir, I do, Mr. Chairman. 2 CHAIRMAN STUBCHAER: Mr. Brown. 3 MEMBER BROWN: I think you should make it more than a 4 suggestion as Mr. Sexton says. I think it should be an 5 order. 6 MEMBER FORSTER: To the staff? 7 MEMBER BROWN: Stop there. 8 MEMBER BAGGET: I will agree. 9 MEMBER BROWN: Except I will say that with our staff, 10 Mr. Sexton, we haven't had to make those orders. They have 11 done it willingly and on their own and, indeed, they have 12 spent many, many hours, weekends and holidays. We much 13 appreciate that, also. 14 MEMBER FORSTER: So have we. 15 CHAIRMAN STUBCHAER: All right. That will be what we 16 will do. And I will leave it to you as to whether or not 17 you want to be here to see the results. As I say, there 18 will be no public input or comment on this errata. So we 19 are adjourned for the day. 20 (Hearing adjourned at 4:05 p.m.) 21 ---oOo--- 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 216 1 REPORTER'S CERTIFICATE 2 3 4 STATE OF CALIFORNIA ) ) ss. 5 COUNTY OF SACRAMENTO ) 6 7 8 I, ESTHER F. WIATRE, certify that I was the 9 official Court Reporter for the proceedings named herein, 10 and that as such reporter, I reported in verbatim shorthand 11 writing those proceedings; 12 That I thereafter caused my shorthand writing to be 13 reduced to typewriting, and the pages numbered 4 through 216 14 herein constitute a complete, true and correct record of the 15 proceedings. 16 17 IN WITNESS WHEREOF, I have subscribed this certificate 18 at Sacramento, California, on this 7th day of January 2000. 19 20 21 22 23 ______________________________ ESTHER F. WIATRE 24 CSR NO. 1564 25