STATE WATER RESOURCES CONTROL BOARD BOARD MEETING ---oOo--- SECRETARY OF STATE ARCHIVES BUILDING FIRST FLOOR AUDITORIUM SACRAMENTO, CALIFORNIA DECEMBER 29, 1999, 9:17 A.M. REPORTER BY: MARY R. GALLAGHER, CSR #10749 CAPITOL REPORTERS (916) 923-5447 APPEARANCES ---oOo--- BOARD: JAMES M. STUBCHAER, CHAIRMAN MARY JANE FORSTER, VICE-CHAIR JOHN W. BROWN ARTHUR G. BAGGET, JR. STAFF: WALT PETTIT TOM HOWARD VICTORIA WHITNEY COUNSEL: W. R. ATTWATER BARBARA LEIDIGH ---oOo--- CAPITOL REPORTERS (916) 923-5447 1 WEDNESDAY, DECEMBER 29, 1999, 9:17 A.M. 2 SACRAMENTO, CALIFORNIA 3 ---oOo--- 4 C.O. STUBCHAER: Good morning. We'll reconvene the 5 meeting of the State Water Resources Control Board. We 6 have the same Board Members and same staff that we had 7 yesterday, so I'm not going to reintroduce us all. 8 And the purpose of today's meeting is to consider 9 Items II and III of the agenda of yesterday's, that's 10 certifying Environmental Impact Reports and considering a 11 proposed decision on the Bay-Delta associated matters. 12 And as we said yesterday, we considered the 13 comments that we received and prepared a revised errata 14 sheet. We will not hear comments on the revised errata 15 sheet today, but Mr. Howard will summarize, or present the 16 items on the revised errata sheet. 17 Mr. Howard. 18 MR. HOWARD: Good morning, Mr. Chairman, Board 19 Members. I'm still trying to get use to these new 20 glasses. Let's see if I can -- I can't read it down here 21 and I can't read it right here. 22 All right. Well, we did listen to the comments 23 that were received. And staff has prepared an addendum to 24 the errata. I'd like to run quickly through the changes 25 that we're recommending that the Board consider prior to CAPITOL REPORTERS (916) 923-5447 220 1 evaluating whether or not it should adopt the resolution 2 and the decision. 3 First, there were some concerns expressed 4 regarding the delegation to the Chief of the Division of 5 Water Rights. That has been amended to make the 6 delegations to the Executive Director of the Water Board. 7 The second errata is, actually, just putting in 8 the change that I mentioned yesterday. It was a footnote 9 change. I don't believe it was substantive. 10 The third errata is on Page 90. We received some 11 comments that they felt there should be some stronger 12 direction to the Regional Water Quality Control Board 13 regarding its plan to develop and adopt salinity 14 objectives and a program of implementation on the main 15 stem of the San Joaquin River upstream of Vernalis. And 16 that has been incorporated into the findings of the order 17 on Page 90. 18 On Page 97 we have a factual correction that was 19 brought to us telling us that the Cross Valley Contractors 20 listing we had was inaccurate in a footnote. And that's 21 been corrected. 22 On Page 129, there's several changes there. The 23 first change talks about a clarification that the 24 expansion areas require for -- approval of the expansion 25 areas require further State Water Board approval. That's CAPITOL REPORTERS (916) 923-5447 221 1 exactly the same as in the original errata, but we're just 2 carrying it along here, because these are all the changes 3 on Page 129. 4 The next change on that page deals with 5 consolidated place of use. We're making clear at this 6 point in the order the conditions that are necessary in 7 order to get exemption from the mitigation requirements. 8 First, the Bureau needs to justify the exemption. 9 And there are two grounds for that justification. One, is 10 that the lands were developed pre-CEQA. And the second is 11 that the impacts were already mitigated. 12 That change was, actually, already incorporated 13 in some other parts of the previous errata, but now we've 14 made it clear at this location as well. 15 The third change on Page 129, we heard from Tom 16 Keene from the San Luis Water District who was concerned 17 about the discussion there that was very specific 18 regarding some concerns the staff had regarding the EIR 19 that had been prepared in 1974. That EIR had been 20 prepared for construction of a delivery system. And he 21 felt that that EIR should be applied to the exemption that 22 is mentioned in the previous section of this addendum. 23 And we had provided some concerns we had about 24 that. The concerns are still expressed to some extent 25 here, but they are expressed only generically as being CAPITOL REPORTERS (916) 923-5447 222 1 these are the general concerns that one necessarily has to 2 address in receiving an exemption. 3 They are not necessarily specific to the San Luis 4 Water District. So I don't think that necessarily handles 5 all his concerns, but we tried to avoid making negative 6 comments, if you will, about the EIR. And I think it's 7 still -- if they want, Mr. Keene can come forward and make 8 his claim through the process that's set up under the 9 exemption criteria. And that would have to be evaluated, 10 then, by the Executive Director. 11 On Page 137, we've got some further clarification 12 regarding legal user of water. We start out by pointing 13 out that the decision is not precluding water service 14 contractors from protesting changes. However, those 15 should generally be filed on public interest grounds, or 16 on environmental and public trust grounds. 17 We also say that water service contractors may 18 file protest based on injury to water right holder on whom 19 they rely for deliveries under their water service 20 contracts. But we further point out that where a water 21 right holder proposes or agrees to a change, we don't feel 22 there can be any injury to that water right holder. 23 That gets to the case of where if a contractor 24 doesn't like a proposal that their water supplier is 25 making, we don't feel that the conditions of legal user of CAPITOL REPORTERS (916) 923-5447 223 1 water, under Section 1702 and the no injury rule should 2 apply, since they're basically claiming that the water 3 diverter is injured, or a project that they are themselves 4 proposing, that doesn't seem to be a logical situation. 5 On Page 140, this gets to the issue -- and, 6 basically, this is the same errata that we had before. 7 The purpose of errata is to clarify that the Board will 8 file a new notice of determination when we complete the 9 Phase VIII of our proceeding. And that the CEQA clock 10 will start ticking, again, for people who might feel 11 compelled to file suit. 12 However, one change we did make was the 13 recommendation by Mr. Wilig to just clarify one sentence 14 in there. I don't think it was a substantive change from 15 the original errata, at least, it was not anything 16 different than what was intended in the original errata. 17 This last one on page -- on the second page, Page 18 143. This is one that I mentioned before and it was just 19 a mistake. We had put in -- had forgotten to remove the 20 word "establishes" in the previous errata, and I mentioned 21 that yesterday, orally. 22 The last page I'm now on, let's see, Page 153. 23 This gets to the rather lengthy sets of discussions we had 24 regarding conditions 1 and 2 on Page 153. Just for the 25 Board's benefit, I'd like to narrow that discussion a tiny CAPITOL REPORTERS (916) 923-5447 224 1 bit. 2 Condition 1 dealt with the municipal and 3 agricultural objectives. The agricultural objectives only 4 in the Western and Central Delta. Those conditions have 5 been a part of the Bureau's permits since 1978. Those 6 were not changed in the 1995 Bay-Delta Plan. If the Board 7 did not adopt condition 1, it would be very likely -- 8 well, certainly, staff would recommend that D-1485 remain 9 in effect and so those exact requirements would apply. 10 In condition 2 there's two standards that are 11 involved: Delta outflow and Rio Vista flow. And just for 12 your own information as sort of a historical note, the Rio 13 Vista standard is kind of interesting standard. 14 It was developed in 1978. It sets a relatively 15 low flow standard at Rio Vista, which is in the lower San 16 Joaquin -- lower Sacramento River. And the reason it was 17 adopted was because at the time that D-1485 was adopted 18 there was a concern that the peripheral canal was going to 19 be constructed in a short while. And that in the fall the 20 peripheral canal would divert so much water that the Lower 21 Sacramento would be largely dewatered. And that the 22 fall-run chinook salmon, trying to migrate up the river, 23 would not have enough flow to find the river and so there 24 minimum flow standards put at Rio Vista for that purpose. 25 And under the new plan, my understanding is that CAPITOL REPORTERS (916) 923-5447 225 1 it never controls project operations. So really all we're 2 left with here that's different is the Delta outflow 3 standard. So we start with a number of standards that are 4 expressed as concerns in condition 1 and 2. 5 The only one that makes any difference -- and I 6 think the sole issue here in front of the Board is the 7 Delta outflow standard. As was pointed out, the Delta 8 outflow standard is, in fact, going to be met. The 9 projects claim that they will continue to voluntarily meet 10 it, even if the Board doesn't require it. 11 The reason that I gather that the projects are 12 concerned about the Board adopting condition 1 and 2 is 13 that they feel it sets a precedence that somehow it 14 becomes status quo that the projects are responsible for 15 this. And then it becomes easier during Phase VIII for 16 the Board to just say: Well, this is the status quo and 17 why don't we just go ahead and continue that and hold the 18 projects exclusively responsible. 19 For what it's worth, I'm sure not it's any 20 comfort to folks who are concerned about it, it certainly 21 doesn't constitute a precedent in the staff's mind. And 22 I'm certain it doesn't in the Board Members' either, but 23 we still feel it is appropriate to adopt it. We'd like to 24 see D-1485, which has been largely irrelevant recently put 25 to rest, which this allows us to do. CAPITOL REPORTERS (916) 923-5447 226 1 We also feel that there was notice of this. That 2 this order is meant to cover Phases I through VII. This 3 was an issue, in our mind, in Phase I: How do we go about 4 putting D-1485 to rest? The reason the staff has not 5 recommend in the past that these standards be incorporated 6 into the projects' permits in 95-6 and 98-9 is we didn't 7 have an up-to-date EIR with which to analyze that 8 alternative. 9 And if the Board certifies this, we have an EIR 10 that we believe covers this action. And, therefore, we 11 would recommend that you go ahead and adopt condition 1 12 and 2 the way its drafted. 13 We have, however, made it an interim basis for 14 two years. It's certainly our intent to try to move 15 forward with the Phase VIII and get that done well before 16 the two-year period. But we're -- to provide some degree 17 of comfort, if you will, we felt that an expiration date 18 would probably be useful. 19 Let's see, that brings me to the next one. We 20 had many concerns about this issue of the Endangered 21 Species Act requirement, which as I indicated to you 22 before, is a requirement that has been added into all the 23 permits for the last two years that have been issued by 24 the Division of Water Rights. 25 We have made a minor change based on some CAPITOL REPORTERS (916) 923-5447 227 1 confusion that seemed to have been expressed regarding the 2 difference between a Section 7 authorization and a Section 3 10 take permit. To remove that confusion, we made -- we 4 recommended this change here and we would probably make 5 that change in all of the future water right permits that 6 are being issued by the Division of Water Rights. 7 From Page 155, this one is new -- well, I think 8 this is the way it was already. I must be looking at the 9 previous version, excuse me. I'm sorry, I'm looking at 10 the previous version of our errata. Now, I have the 11 up-to-date version. 12 The next one is on Page 167. We had a concern 13 expressed that we had put in to some of the permits a 14 condition that said, well, you know, just because we've 15 listed the water right permit here, that doesn't mean you 16 have to make water releases from this location. 17 And one of the parties had said, well, if you're 18 going to say that, we've also expressed a lot of concern 19 that there are a lot of demands on New Melones Reservoir 20 and that the projects might want to use some other source 21 other than New Melones Reservoir. 22 This particular term is meant to address that 23 issue, because it only applies to the New Melones 24 Reservoir permits. And it, basically, says just because 25 New Melones assigned responsibility for the salinity CAPITOL REPORTERS (916) 923-5447 228 1 objective and for meeting the San Joaquin River Agreement 2 flows after the water that's been added by the other 3 parties, by the San Joaquin River Agreement, that the 4 Bureau could find other sources of water if they feel it's 5 appropriate even though it's only the New Melones permits 6 that are listed there. 7 The next change is on Page 167, 168 and 170. 8 There was concern expressed that the three South Delta 9 stations for agricultural objectives, that there was a 10 problem meeting those objectives in many months. 11 That even with barriers, it's possible that the 12 way the objective is drafted, they might not always be 13 met. And in any event, that there's some problems with 14 the barriers in that the other regulatory agencies, U.S. 15 Fish and Wildlife Service and others have sometimes 16 precluded construction and operation of the barriers. 17 And that under those circumstances, the State 18 Water Project and the Central Valley Project don't have 19 total control over South Delta salinity, and in some cases 20 have very little control. And so we've added that this 21 term that pretty much says, well, if you run into a 22 problem you need to report it to us. And if the report 23 indicates that you did everything that you could, but the 24 objective still wasn't met, that enforcement action won't 25 really be something that is considered, or an option. CAPITOL REPORTERS (916) 923-5447 229 1 And the last one is a change that was suggested 2 by Tim O'Laughlin. And he felt that we in a couple cases 3 we have just said, 2011. And he wanted, with respect to 4 the San Joaquin River Agreement, he also wanted us to add 5 on there that, "Or in case the San Joaquin River Agreement 6 is terminated." That was our intent. 7 So, in summary, we feel that those changes are 8 appropriate based on the comments that we heard. There 9 are two actions in front of the Board. 10 One is to certified the resolution to certifying 11 two EIR's. Staff recommends that that certification be 12 adopted by the Board. And, secondly, that the Water 13 Rights Decision in front of the Board with the errata and 14 the addendum to the errata, and we recommend that you 15 adopt that decision as well. 16 Do the Board Members have any questions? 17 C.O. STUBCHAER: Any questions for Mr. Howard? 18 Thank you, Mr. Howard. Okay. 19 Board discussion? 20 MEMBER BAGGET: May I make a motion? 21 C.O. STUBCHAER: Go ahead. 22 MEMBER BAGGET: I'd like to move resolution 23 certified and the Final Environmental Impact Report 24 recommendation of the Water Quality Control Plan for the 25 San Francisco Bay, Sacramento, San Joaquin Delta Estuary CAPITOL REPORTERS (916) 923-5447 230 1 and the Final Environmental Impact Report for 2 consolidation and conformed place of use with -- including 3 the errata as presented. 4 MR. PETTIT: Mr. Chairman, point of clarification. 5 Mr. Bagget, would that motion include the errata 6 that was submitted by the Bureau of Reclamation for the 7 place of use EIR last week? 8 MEMBER BAGGET: Yes. 9 MR. PETTIT: Thank you. 10 C.O. BROWN: I'll second it. 11 C.O. STUBCHAER: Okay. It's been moved and seconded 12 to adopt the resolution that's agenda item 2. 13 Mr. Pettit, would you please call the roll. 14 MR. PETTIT: Mr. Bagget? 15 MEMBER BAGGET: Aye. 16 MR. PETTIT: Mr. Brown? 17 C.O. BROWN: Aye. 18 MR. PETTIT: Ms. Forster? 19 MEMBER FORSTER: Aye. 20 MR. PETTIT: Mr. Stubchaer? 21 C.O. STUBCHAER: Aye. 22 MR. PETTIT: Okay. 23 C.O. STUBCHAER: The EIR's are certified. 24 Next before us is the Agenda Item 3 decision. 25 Mr. Brown. CAPITOL REPORTERS (916) 923-5447 231 1 C.O. BROWN: Mr. Chairman, I move the resolution to 2 adopt the proposed Bay-Delta Decision Draft dated December 3 2nd, 1999, for implementing full objectives for the 4 Bay-Delta Estuary, approving a petition to change points 5 of diversion for the Central Valley Project and the State 6 Water Project in the Southern Delta, and approving a 7 petition to change places of use and purpose of use of the 8 Central Valley Project and as amended with errata sheets 9 distributed December 28th and 29th. 10 C.O. STUBCHAER: Is there a second? I will second 11 the motion, though a second isn't required under our 12 rules. 13 Mr. Pettit, would you, please, call the roll. 14 MR. PETTIT: Mr. Brown? 15 C.O. BROWN: Aye. 16 MR. PETTIT: Mr. Stubchaer? 17 C.O. STUBCHAER: Aye. 18 MR. PETTIT: Ms. Forster? 19 MEMBER FORSTER: Aye. 20 MR. PETTIT: Mr. Bagget? 21 MEMBER BAGGET: Aye. 22 C.O. STUBCHAER: The decision is adopted. And that 23 concludes the items before us. 24 Anything further the Board Members have before we 25 adjourn, Mr. Pettit? CAPITOL REPORTERS (916) 923-5447 232 1 MR. PETTIT: No further business that I know of, 2 Mr. Stubchaer. 3 C.O. STUBCHAER: This meeting is adjourned. 4 (The proceedings concluded at 9:42 a.m.) 5 ---oOo--- 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 233 1 REPORTER'S_CERTIFICATE __________ ___________ 2 3 STATE OF CALIFORNIA ) ) ss. 4 COUNTY OF SACRAMENTO ) 5 I, MARY R. GALLAGHER, certify that I was the 6 Official Court Reporter for the proceedings named herein, 7 and that as such reporter I reported in verbatim shorthand 8 writing those proceedings; that I thereafter caused my 9 shorthand writing to be reduced to typewriting, and the 10 pages numbered 1 through 17 herein constitute a complete, 11 true and correct record of the proceedings. 12 IN WITNESS WHEREOF, I have subscribed this 13 certificate at Sacramento, California, on this 29th day of 14 December, 1999. 15 16 ________________________________ MARY R. GALLAGHER, CSR #10749 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 234