WEDNESDAY, JUNE 15, 1994, 9:30 A.M. --o0o-- MR. CAFFREY: Good morning. Welcome to the second day of the June workshop on the Bay-Delta standards. This is the third in a series of four workshops that we have scheduled on Delta standards. We have a few cards left from yesterday and we have one additional card that has been submitted. I am not going to read the opening statement again. It is in the record from yesterday. The only portion I will read is a reminder for everybody of what the subjects for today's workshop are: What practices, excluding diversions, contribute to the decline of fish and wildlife resources depend on the Bay-Delta estuary? Second, what modifications have the SWP and CVP made to their operations to protect endangered species and other species of concern; Third, what effect do upstream water projects, other than the CVP and SWP, have on the fish and wildlife resources of the Bay- Delta estuary? And fourth, what are the status and trends of biological resources in the Bay-Delta estuary? We will go directly to the cards, and there is one adjustment from yesterday. Is Dr. Russ Brown here? DR. BROWN: Yes, I am. MR. CAFFREY: Dr. Brown, I know you had a time constraint and had high hopes of being able to go yesterday afternoon, so we will do you first this morning. I will read the order again: After Dr. Brown we will have Jim Chatigny, David Guy, Kevin O'Brien, Alan Lilly and Kati Buehler. Dr. Brown, would you like to come forward and address the Board? Good morning, sir. Nice to see you again. DR. BROWN: Good morning. I think I will sit in this chair. Good morning, Board and staff. My name is Russ Brown. I work for Jones & Stokes Associates, and we serve as the consultant to the State Board and the Corps of Engineers on the proposed project in the Delta, and it is out of the analysis that we have been doing for that project that these comments and this discussion comes. That's the origin of these ideas. The subject that I am going to present would fall into the categories of items 1 and 2, what environmental factors influence the aquatic organisms in the Delta, and what types of operational changes have been made to accommodate those aquatic organisms. In a word or phrase, what I would like to present is the concept of using the historical daily data that's available from the Delta as the most reliable basis for developing an understanding of the Delta and developing standards for protecting the various uses of that water. Jones & Stokes is convinced that daily data and analytical tools that would process that data into usable information are an essential feature of understanding the Delta in developing standards. Although that is my theme, I am going to introduce a second concept because it seems to us that it may be that a slightly different approach to managing the Delta will be required to utilize this daily data on an ongoing basis, and so, I would like to digress just a second into that concept. There are, in general, three types of changes, daily changes to conditions in the Delta could be classified as hydrologic changes caused by inflows and tidal effects; there is water quality changes that occur on a daily basis due to inflowing water quality that changes with hydrographs and the salinity intrusion events that occur or can fluctuate daily, and in addition, the fishery resource itself, the migration, spawning, mortality and entrainment of fish change very dramatically at times on a daily basis. I hope everyone has the handout of my testimony. These are the five figures at the back and if we can just make it through these five figures, you can perhaps read the text that goes along at a later time. Because the use of daily information requires somebody to sort of make decisions on an ongoing basis, we are introducing just the concept here to get over the hurdle of thinking that it would be impossible to use all of the available information to make decisions for operating and protecting species. And we are introducing the concept of a Delta master and this is supposed to invoke the idea of watermasters where a person or a team, we are suggesting a three-person team, is in charge of a water resource that is sort of oversubscribed. And this concept is working, as you know, in various groundwater basins in California and stream basins in other states. Perhaps we don't have very many examples of stream watermasters in California, although there are some. Actually, the theme this morning is the center section, whether or not this makes sense to you, that there would be a new structure, management structure, there is available a wide variety of sampling and staff analysis through the Inner Agency Ecological Program, and just in general, they have two types of data resources available for them to build hypotheses and make interpretations, and eventually give advice to the managers, whoever they would be. Perhaps the Delta master concept isn't the final way. But they have a lot of historical data and then they have sort of their current information, which I am just calling the real time monitoring network, and these are their data resources. Now, below them on the chart but sort of around them in the real world, are all of the existing agencies and management structures and facilities that make up what we call the Delta, and I just have these split into three groups; the federal agencies, the Club Fed, and they have a number of perspectives and directives; then your own set of requirements, both water rights and water quality as well as an ongoing determination of what the beneficial uses are and what benefits come from those; and then, there are the existing facilities and existing management structures in the Delta, and, of course, any of these can sort of change at any moment, but these I am calling the framework for the decision making, but in my view, it is difficult for that structure as it exists to sort of integrate and make day-to- day decisions, or to have those decisions facilitated. Now, regardless of whether the Delta master concept makes total sense to you, in some sense we are looking for a way to operate the Delta that is different than what we have ever done in the past. And I offer this chart as my concept of what that parallel management would be. And I am calling it parallel management because there are at the same time water supply targets and fish population targets that are hoped of being managed for. We do a very accurate job of accounting for water availability and the moving of water down particular channels at particular times. We know to the cubic foot per second or to the acre-foot how much water moves through the Delta. What we are less able to do, or less skilled at the moment, is tracking fish habitat characteristics and the resulting fish populations for a variety of species that must be tracked, and what I am suggesting with this chart is that every time we control the Delta, closing the cross channel for fish, that immediately sends water down different channels. Closing the cross channel for flood control immediately sends fish, if they are there, down different channels, and so, it is not possible to decompose or to separate the management for water and the management for fish, and what I am suggesting is this has to be done in parallel and it ought to be done at a consistent level of accuracy. And what I am suggesting is that we have a disparity in the accuracy with which we can track water compared to that with which we can track fish habitat or the resulting populations. And I am suggesting to the water supply advocates, that accurate accounting of fish habitat and responses will provide the greatest possible water supply for a chosen level of fish protection. In other words, investing effort in accurate accounting for fish habitat and population responses is just as important now for providing water supply as keeping track of the water itself. And so, if our efforts shifted to the neglected half of this parallel management, we would be well served. I have a word picture to describe perhaps the current management as contrasted to the parallel which I am calling tandem, as in a tandem bicycle, and I would suggest that D- 1485 standard provides the frame, the water supply management is in the front seat, the fish management in the back seat, and we may even agree that in recent times the seating order has been reversed and now the fish are in the front seat and the water guys are in the back, but I suggest that even that switching of the pedaling order has not brought us to this which ought to be parallel management of both resources at an equal level of detail. Regarding standards and how they could be blended into this overall picture -- I am off a day because I was hoping to be here on June 14, but imagine we are still on June 14, we are sitting just to the right-hand side of the monitoring blind spot. We actually have almost no information of what's happened in the Delta in the last seven days. Now, that's exaggerated for effect. We have some information. We probably know our water numbers, but our fish numbers, in particular, is where we have a blind spot. We have good information of what occurred a week ago or earlier in the historic record, and then, we, of course, have very little information about what might happen in the future. We can project our water, the black line, fairly accurately. We can, perhaps from that, project our salinity meant here to be the indicator of habitat distribution. But the range of possible fish response at this point in our sort of skill is quite large, so there is a broad range of possible fish responses. Now, I am then suggesting that this is going with sort of day-to-day management of the Delta through some sort of management organization, and that there needs to be some guidelines given to this team, even if this was a highly trusted team. And so, I am suggesting that there needs to be then equal pillars of sort of absolutes. On the one hand, there would be protective flow and salinity standards. Now, these would be absolute requirements without any question or ability to change them and they are meant to be the low end of protection. At the same time, there would be conservative water supply requirements which are guaranteed in the same way that the minimum flow and salinity standards are. So, what we have here then is the extremes of possible Delta operations that are regulated by fixed monthly standards, but for the most part I am suggesting no fixed monthly standards because it will be better to allow the Delta master in my scheme to have standards and directives to guide him, but they would actually be operating under a wide range of conditional standards or flexible standards, perhaps just two names for the same thing, so that the actual hydrologic water quality and fisheries responses or conditions that are observed form the basis for the day-to-day decisions. Just as an example, the required Delta outflow might be a function of the unimpaired flow or a function of the inflow, so you come up from that which rules that instead of specifying how many cubic feet per second are possible to be exported and how much must be supplied as inflow, you would have instead percentages perhaps so that, you know, thinking of splitting the water, 50 percent of the inflow can be exported, but 50 percent has to be for outflow, so as the storm events come in, there's rules that specify how the water is allocated without actually having to specify the cubic feet per second numbers in each case. So, now, back a little more to my major theme, which is in order to do this sort of flexible operation with a watermaster team, they need to have a lot of good data to guide their decisions, and what I want to finish off my talk with is that there's a large amount of high quality data so that it would be possible to implement this sort of flexible management scheme guided by some fixed standards, but leaving a lot of the day-to-day decisions to this decision- making body, whatever it would be. I am suggesting that one of the troubles is illustrated by fish ladders. We have quite a lot of data that has been conscientiously collected. It has been carefully processed and saved somewhere, but it is not in all cases being used by all the people that could get value from it, and this is sort of a fight to make data usable information. And I want just to sort of remind you of the amount of daily data, so I am differentiating all of the data that is available from the data that is available on a fairly frequent basis so that you could on a week-to-week basis make changes in your decision. We have, of course, streamflow and pumping records on a daily basis. We have a number of tidal gages which can be used to understand what the tidal flows in the Delta are, and therefore, how the fish are moving back and forth. We have a wide variety of EC monitoring locations to give us a picture of salinity response throughout the Delta channels. We now have a whole series of ultrasonic velocity meters which actually measure the tidal flow in a number of channels that the USGS is operating. We have Banks, Tracy, and possibly PGandE's salvage records for fish that are at a frequent basis, and give you a picture of when fish are in the vicinity. Then we have quite a number of fish net sampling, for example, and larval sampling that occur at pretty high frequency. To process all of that data, we in this new scheme that I am suggesting, would need a series of analytical tools that would be able to do two things. First of all, the existing historical Delta data is our only possible source of understanding of what has actually happened in the Delta. It is a natural system. We don't have total control. So, using simply analysis tools to more accurately describe what actually happens on this daily time scale would build our understanding and that, I would say, needs to be a shared understanding between groups, not only the first person to do the analysis. He needs to, therefore, share his analysis tool. And as these tools become trusted, then they would be the basis for the second group I am calling projective. These would be the ones that in my scheme the Delta master is using to decide should he close the cross channel, should he open the Old River structure, how much pumping cutback would save the most fish over a period of time given the information that he has available on flows and salinity, and fish abundance and distribution. So, my last two points have to do with just a little more detail, again on the availability of this data and the fact that this could be implemented. This is a plan, a scheme, of operating the Delta on a day-to-day basis within some general guidelines but allowing this appointed team to have quite a bit of flexibility on a day-to-day basis. So, the goal, again, of this system of data use that I am describing here as my last slide, is to accurately account for likely fish responses to the potential Delta operations. Again, the idea is that we already accurately account for water. The ingredient that is missing in solving the Delta dilemma has to do with the fish habitat and their responses to operations. Our premise, again, is that the historical daily data is the only reliable source of information for better understanding and, therefore, building applicable standards and these rules for operating, that I am suggesting would be delegated to the Delta master. So, the proposed action, to sort of make this a reality, is simply to organize the historical daily data from the Delta, allow a wide range of agency and other assessment staff access, equal access to this data so that a number of hypotheses can be built at this accurate level of daily accuracy, build a common understanding of what really is happening in the Delta, and that then forms the basis for the pillar standards that I am suggesting, these absolute standards that you would either continue with D-1485 or something like that, a set of standards that are protective at both ends of the possible operations, and then guide the day-to-day decision making. Trying to make this in a short time a little more believable, maybe everyone is aware of Day flow, which is in my view an integrated data file because this has all of the terms that are needed for the water budget of the Delta, and you may know that this is updated and put out to a wide variety of people in the Delta analysis business by the Department of Water Resources on an annual basis. So the 1993 data has just recently become available from the Central District. That is the only file that I am aware of that comes out in this updated form that has daily information on it. What I want to end with is the suggestion that quite a few additional files similar to Day flow would be created between now and Christmas as the initial dissemination of this shared data resource to begin the process of building the analysis tools which might support, if you were to go with my ideas on creating a Delta master, the daily tide information which gives information on how the water level fluctuations can be transformed into actually providing estimates of the tidal flows and mixing that moves fish in their larval stages and moves salt and other water quality variables. All of the EC monitors from the Delta can be transformed or summarized into annual files that I am calling day salt. There are exhibits that I have attached to my testimony to try to make it seem more believable this could be done, and the day salt as a data resource has actually been created, and I have a handout that gives us the 25 years of available data where you can see the daily patterns of salt, and I have transformed that into what the salinity gradient is, the X2, which is the abbreviated form of where the salinity gradient begins in the Delta or the in the estuary. These are shown graphically for the 25 years. This is to demonstrate that this sort of daily information is available and could be disseminated to everyone in their own computer. A similar file would be day tenth which would have all the temperature records from the Delta. These are available from Freeport and Vernalis, and those inflow temperatures are actually what is used to estimate salmon mortality in the Delta, and we could do better by having actual in-Delta temperatures provided in this standardized format for everyone to use. We could do the same thing with day fish and egg and larval data, any of the data that's collected on a frequent basis could be made available on these standardized files. Once these are out there, I propose or suggest that they would actually act as a catalyst for stimulating people to get more involved in creative analysis of the data, and again, this is in contrast to just having a general regression explanation of what must have happened during a year based on long-term average flows or exports. I think that's the end of my talk then. MR. CAFFREY: All right, thank you very much, Dr. Brown. Are there questions from the Board members? Mr. Stubchaer is drawing up his mike. MR. STUBCHAER: Just a facetious question. I am a little slow but I don't get why the fish is thinking of the cow and the cow is thinking of the fish. DR. BROWN: Well, this is my second word picture. MR. DEL PIERO: Do you want to answer that question on the record? MR. CAFFREY: Mr. Stubchaer has the courage to ask that one. DR. BROWN: Well, I will give a hint. The cow is here representing the agricultural interests of California. This is the idea of parallel management. If we would ever get to the day where fish dream of cows and cows dream of fish, then I think we would be operating correctly. MR. DEL PIERO: I thought that was the reflection of the food chain there. DR. BROWN: I could go for that, too. That might work. MR. CAFFREY: Mr. Stubchaer. MR. STUBCHAER: I think on a more serious note, you have presented an interesting concept. It's not really what this workshop was about as far as I could see, and I don't know how this would tie into the staff's standards we are going to devise by December 15. I guess what your suggestion would be is that the standards be the pillars you talked about plus goals. Maybe I really don't understand how this would tie into standards. DR. BROWN: Perhaps what I am suggesting here is to consider setting the standards allowing for this other mechanism which would be a trusted vehicle for day-to-day implementation of some more general guidelines so that you would no longer have to take the full responsibility to determine precisely how many cfs or what salinity levels would provide optimum conditions in a given hydrologic setting, but would be allowed to create these extreme absolute standards that would be on the books, and then, think more of how you would like to direct this day-to-day manager to implement your general guidelines for water allocations and decisions, and attempting this parallel management that I am suggesting. So, it's perhaps a little more on a conceptual level. If you were to think of this sort of a scheme you would not be required by December to come up with every individual determination of what would be better in all possible future cases. You would be setting up a mechanism allowing some of that to be made by a group of decision makers, whatever that would be, perhaps just representatives from existing management agencies, and allowing them to share some of the burden of setting standards. MR. STUBCHAER: I think the concept has a lot of merit and the idea of a flexible management with certain guarantees for the fish and water, I think is very attractive. Thank you. MR. CAFFREY: Ms. Forster. MS. FORSTER: I would think that the Department of Water Resources would want to do this. I think this would be really useful. Have you had this presentation? MR. ANDERSON: No, I have not, but it is very interesting conceptually. Obviously, a lot of the uncertainties we are working with in the Delta are not amenable to fixed standards, so I am not sure they are amenable to decision makers at this point either. But I think the idea of getting managers is sort of where we are heading. MR. CAFFREY: Any other Board members have questions? Anything from staff? MR. HOWARD: Just a quick question. Have you given any thought to what these minimum standards might be, the ones both for the fish and for the water supply? DR. BROWN: Well, yes, I have given some thought to it and perhaps the way I sort of see the workshops laid out, July is when you finally come in with your bottom line, but just in general, it would have to do with the following sorts of things. If I could just use the proposed EPA standards, they involve a series of level of flows depending on how much water is available, which I think is the right kind of flexible concept, and if we just took their example, their analysis would suggest that the minimums that they think is allowable during the February-to-June period is a flow that provides for the salinity gradient to begin at the confluence, and I estimate that to be on the order of 7,000 cfs. So, if we took from those sorts of analyses and standard setting the absolute minimum that we think protects, the net would be the required outflow, and then, how often you can provide this extra which we know is beneficial in some sense to the estuary, but we realize has a water cost; that is, what you would allow to be determined on a year-by-year basis depending on what kind of storm events you got, and I think that is the thinking of the EPA analysis, to have it flexible by water year types, and I am suggesting even more flexibility in how you divvy out that kind of extra water. Some of the D-1485 standards, again, are based on very minimum requirements to protect agriculture or to protect water supply, for example, the 150 and 250 chloride levels. Some of those may well be continued as these absolute standards that need to be there, but then, how those are achieved or where extra water goes, so again, my idea is that these are the two extremes. You have left perhaps half the water for this day-to- day decision making. We want the water that we use for fish protection to be very effective, to provide habitat or transport results, and because that's likely to vary literally with storm events or with where the fish have spawned, I am suggesting that a lot of it ought to be left to this other management structure, the watermasters. MR. HOWARD: Okay. MR. CAFFREY: Anything else from staff? Dr. Brown, thank you for your continuing creativity. We will take to heart your comments and I noted Mr. Anderson's interest in what you proposed, and perhaps you should be talking to the operators as well. DR. BROWN: Thank you. MR. CAFFREY: Thank you very much. Jim Chatigny, good morning, sir. MR. CHATIGNY: Good morning. Chairman Caffrey and members of the Board, yesterday I would like to have wished you a happy Flag Day, but didn't quite make it, so -- MR. CAFFREY: You know, I didn't really hear anybody mention -- MR. CHATIGNY: I had it down here to do, but come four o'clock it was time to head up the mountains, so we did. MR. CAFFREY: Do it today. MR. CHATIGNY: All right, happy day the day after Flag Day. MR. CAFFREY: Thank you, sir. MR. CHATIGNY: This is kind of like the radio call-in talk shows, long-time listener, but one-time caller, so let me get started here. My name is Jim Chatigny, General Manager of the Nevada Irrigation District, and I appear before you today as Chairman of the Delta Tributary Agencies Committee. We have provided written comments for the Board in connection with the workshops and it is not my purpose to reiterate all those comments. It is about five or six pages long, but I do submit them for your review, and we look forward to participating in the development of future evidence and detailed testimony in regard to the comments we made. I would like to do one piece of housekeeping, if I may. In our submittal on page 3 under the Sacramento River Basin where we speak about the testimony of Steven Cramer, we would like to add in that paragraph a list of the agencies for that WRINT exhibit that we had and I will give this to Alice. There's some 12 or 13 agencies -- I have a lot of initials and rather than reading, if I could just give them to Alice and she could add them here. MR. CAFFREY: Certainly. (The aforementioned material reads as follows: WRINT-NDWA- SSWD-ZMWC-GCID-CCID-CCC-FCWD-SLCC-BBID-OID-SSJID-RID-WCWD- BWD-SEWD-Exhibit 1. Page 3 -- Sacramento River Basin, 4th line after the second Sacramento River.) MR. CHATIGNY: DTAC represents agencies who rely upon the area of origin and watershed of the tributaries which are serving the Delta. We emphasize that because we also rely on long-standing State policy and statutes that are intended to protect our watersheds. If I might, again, revert back to the word that we heard yesterday about adaptive management, many of us agencies in the mountains have to do that on a daily or weekly basis where we meet, we look at the water supply that we have in storage, we look at the weather conditions, and then we meet on a recurring basis to make sure that we deliver the water in a manner that will preserve it for as long as we can because the supplies are limited to us in the mountains. Now, I also heard several words yesterday. We heard the R word about reliability. I would also add to that the S word, if I may, and that would be survivability because we do not have the opportunity of water flowing uphill. We also represent another physical attribute of water resource management which we believe is highly important in connection with our deliberations, and as I said, because water does not flow uphill. Now, one of the earlier testimonies that we had when Chairman Maughan was present, we were at the Convention Center, and at that time we were talking about water supplies, and I asked the Chairman at that time, well, we will give you a supply of water if you could guarantee that you will pump some water back up to us when we are short of supply. But I got no answer, so we would want to watch that closely. We are at the headwaters and the decisions you make, to the extent that they affect those headwaters, are irretrievable and irreversible as far as we are concerned. This is particularly important when we view the host of factors that affect the resources within the Delta. This past weekend I had the unpleasant opportunity of having to attend a funeral in Phoenix, Arizona, and my wife and I boarded an airplane in Sacramento, and as we flew out over Folsom, we could see the brown ring around the reservoir. And as we flew up Highway 80, we got to Spaulding and Rollins Reservoirs, and we could see the brown ring around the reservoirs. Also, at Lake Tahoe there was a much smaller ring around there, which shows that the reservoirs were not full, that we are in this critically dry year. And then, as we left Phoenix coming home on Sunday, we had to fly into San Diego and then come up to Sacramento. As we flew into San Diego we flew over several reservoirs and there were no brown rings. And as we flew up over Los Angeles and up over Lake Perris and a few of the other reservoirs we saw no brown rings there either. Until we got back up into the Central Valley and the Melones and Don Pedro and Mokelumne, the other reservoirs, then the brown rings started to show again. So, as we got closer to Northern California we had less and less water in storage than what was available to those people down below. Even San Luis had a very small brown ring around it. And then, as we got near the Delta, my wife was sitting at the window and she wanted to ask me what is that out there, and I said, well, that looks like the Delta, and the Sacramento flowing in. She said there is plenty of water in there. There were no brown rings there either. But what I am trying to point out is in the watersheds, the areas of origin, there's a very short supply of water in many of these years when we are experiencing these droughts. But alarming to us, the only factor which continues to be singled out is trying to find ways to get additional water from agencies such as ours to provide for additional Delta flows. There have not been focused, scientific efforts to identify the causes of the problems in the Delta or the cures for these problems, a nd as a result, we are highly concerned about simplistic notions of Delta fixes focusing on simply taking ten percent of our water, five percent in dry years, but ten percent in critically dry years, as additional water to meet the needs of the Delta from the watersheds. Most evidence and information to date indicates that the cause of the problems, and indeed, potential solutions to the problems are more closely related to the environment within the Delta and the activities within the Delta than they are to our own upstream operations and the water which we require for our own personal needs and uses within our area of origin. We have our own public trust to manage. We are required as good stewards to do that. We have our own fish flows that we are required to provide. We have our storage for recreation and we also have our wetlands that we are all required to maintain in the upstream storage areas. More importantly, we think that focusing on the additional fresh water and those from whom it should be taken continues what we consider the short-sighted approach of trying to ignore all those other factors which may be more troublesome and politically dangerous. Our members diligently undertook the development of water resources necessary for our community and that is where the word survival came in, both from a consumptive standpoint as well as to provide recreational and resource protection within our areas. But when larger export projects were developed we were persuaded, as were apparently the majority of the voters of the State, that those projects would be developed in a way that would protect our rights and protect our water resources future. It would not only be unreasonable, but a gross breach of faith for the decision makers to ignore the priority of our rights, and the promise upon which all of us relied in supporting the expanded export project and the direct impact those projects had caused in favor of a reallocation concept which effectively ignores our priorities and the needs of our communities and our public trust requirements. Finally, as set forth in our detailed comments, even looking at the simplistic notion regarding increased water flows as a sole solution, we believe the data and the information supports the fact that in the 30-year window in which the declines in the Delta have been noted, our projects have not played a role and have not had a major influence. Indeed, the information available to us has become increasingly persuasive that the steps at fishery resource protection which have been undertaken within our agencies have been successful until these resources arrived in the Delta. Whatever impacts are causing this significant decline in runs of the anadromous fish are not attributable to the projects which I represent. So, with that, I thank you for your attention and look forward to participating further in your deliberations. Again, we did submit other items in writing. MR. CAFFREY: Thank you very much, Mr. Chatigny. Mr. Brown. MR. BROWN: No questions, Mr. Chairman, maybe a statement, that I have had the opportunity to work with many of the mountain county water agencies and get to know their need for the last ten plus years and the area of origin protection has come late for many of those agencies to where the resources have been exported from these areas where they are left with insufficient resources for their own needs and development, and Mr. Chatigny makes the very critical point that I think needs our best consideration in whatever we do here. Thank you, Mr. Chatigny. MR. CHATIGNY: I might add to that, that population growth is continuing in the mountain counties. It has not slowed down and we are seeing an ever-increasing reduction in the production of individual and private wells on private properties, which is going to add more and more demand upon our developed water supplies, so we are not trying to say no, no, no, but we have to say watch us. Be careful because we need the water to a certain extent, too. MR. BROWN: Once the resource is exported, there is no way to get water back up to them. MR. CAFFREY: Anything else from Board members? Staff? Thank you very much, Mr. Chatigny, we appreciate your comments. David Guy. MR. DUBOIS: You may be surprised at how much I have aged. MR. CAFFREY: David, you are getting handsomer every day. Good morning, Bill DuBois. MR. DUBOIS: My name is William DuBois. I am substituting for David Guy, who prepared this statement. I am a consultant for the California Farm Bureau, which submits the following comments in response to your notice of the public workshop for June 14. As a general matter, we commend the Board in its efforts to consider all the factors that contribute to the decline of fish and wildlife resources in the Delta and not just the diversion of water. It has been our long standing belief that many factors other than diversion of water have significantly affected the Delta and possibly even more significant at this juncture, that these other factors will make any attempts to mitigate the effects on the Delta very difficult, if not impossible. We, therefore, ask the Board to leave this workshop today with two important ideas: First, that we cannot turn back the clock and ignore the reality of the Delta today; and second, considering the present state of the Delta, any efforts to restore its fish and wildlife resources may be futile. We must all recognize that we cannot turn back the clock to a simpler and less populous time. This is not possible, nor does it make sense as a matter of policy. For example, we cannot undo the serious problems in the Delta and rivers created by mine abandonment and hydraulic mining. We must also recognize that there are over 150 introduced aquatic species of plants and animals, including over 27 different non-native fish species, which likely includes the Delta smelt, and there will undoubtedly be additional species introduced over time. Industrial and municipal discharges also contributes to pollution levels and directly affect fish and wildlife. We think the most significant impact on Delta fish and wildlife has been fishing, both legal and illegal. History has indicated that fishermen were able to eliminate the sardine fishery off the Monterey Coast without any help from inland users of water. We might refer you to Arthur F. McEvoy's book, the Fisherman's Problem, which is a good source to understand this problem. Taken as a whole, these numerous factors have dramatically altered the Delta, which has resulted in the evolution of the fish and wildlife resources over the years. The estuary is a dynamic system that changes over time, constantly reacting to all of the forces that touch upon the Delta. We do not have a stable system that lends itself to defined management actions that will result in specific changes in population of target species, and it is not realistic to restore our natural resources to untenable levels which existed during times of significantly fewer people. The Farm Bureau has advocated that throwing water at the problems in the Delta is no solution at all, but instead, comprehensive management is the only way to improve the Delta. Put differently, the Board cannot afford to implement measures in the Delta involving large financial and/or water costs without having a carefully articulated opinion that such measures can provide significant environmental benefits in the absence of measures addressing the potentially significant factors being discussed today. This simply does not make sense. Of course, Californians, including farmers and ranchers, can and should protect the environment better than we have in the past, at each increasing level of our human population. The environment will not be protected, however, if efforts aimed at protecting the environment are futile. There is a general water law doctrine that a call cannot be made upon the waters of a river if the water will not serve the purposes for which the call is made. This doctrine applies to the Delta and dictates that increased Delta outflow and restrictions in diversions cannot be required without evidence that the water will actually benefit the instream uses of the water. This means that we need to question whether there is a technical or scientific basis that any proposed water management measures can be substantially effective considering all of these other factors in the Delta, such as the competition within the entire food chain by introduced species. If this basis does not exist, then water management measures will only serve to disrupt the economic and social fabric of California. I thank you for the opportunity to provide this statement. Now we hope that in July we will have a more comprehensive statement to offer. Thank you. MR. CAFFREY: We will certainly look forward to that, Mr. DuBois. Any questions? Nothing from the Board members. Anything from staff? Thanks again, Bill. Kevin O'Brien. Good morning, Mr. O'Brien. MR. O'BRIEN: Good morning, Mr. Caffrey. Mr. Chairman and members of the Board, I did submit also some written comments, but I am going to depart from those. I think you have heard a lot of the substance of those from other speakers and I would like to focus on the comment that the Chairman made to start this workshop, which is the desire of the Board to encourage consensus among the various interest groups. I represent in this proceeding -- MR. DEL PIERO: Mr. Chairman, he represents well in excess of about 30 or 40 agencies. MR. O'BRIEN: I don't think it is quite that many. MS. LEIDIGH: Is it this one that says Sacramento Valley Diverters? MR. O'BRIEN: Correct. MS. LEIDIGH: It starts off, Comments of Llano Seco Rancho, Maxwell Irrigation District, Meridian Farms Water Company and so on. It was distributed yesterday. MR. CAFFREY: We will make sure we have copies of it. I'm sorry, Mr. O'Brien, please proceed. MR. O'BRIEN: The clients I am representing in this proceeding are all agricultural water users in the Sacramento Valley. They hold senior water rights. They irrigate approximately 300,000 acres of land. In relation to this question of building consensus, I think the good news is that people are taking that very seriously in this round of hearings. I have been involved in Bay-Delta hearings, I guess, for nine years now and I don't remember a time where the various interest groups were as engaged as they are in grappling with trying to look for consensus solutions to this, and I think that's a very positive sign. I personally have been involved in the coalition, as Mr. Berliner discussed yesterday, and I can tell you there's a serious attempt going on out there to build coalitions. The bad news is that there are still a couple of key obstacles to moving forward with that approach and I would like to discuss two of them with you today. The main obstacle to achieving any kind of consensus from my clients' viewpoint is the uncertainty that exists in the minds of some people regarding the role of water right priorities and the area of origin protections in the allocation process. I want you to know, first of all, that's not an uncertainty in my mind. I think the law is very clear on that. I don't think this is the time to argue my points on that issue, but I think the area of origin statutes were put there for a reason and I think this is exactly the reason that we are involved in this proceeding, but you have heard a lot from a lot of different parties in the last two days about the need to come up with a fair-share allocation, to ignore priorities, and come up with some other sharing formula, and although that has a nice ring to it, I think from the standpoint of people in the water rights holding community, the suspicion is that that's just another way of saying, we will take as much water as we can get for free, which brings us back to the question of building consensus. I don't think there is going to be real incentive for the export users and junior right holders to come to the table with the water right holders until it is made very clear that the water right priorities and the area of origin statutes still are very much alive and kicking. And I think, although I am not advocating that this Board, as part of the development of the water quality plan, get into specific allocation decisions, I don't think you can do that under CEQA and under due process limitations, I think you can send a signal that you will in large part enforce water right priorities and that you will follow area of origin protection principles, and I think if you do that, there are some things that can be brought together and I think, frankly, there's a deal that could be made. I think you don't have to look further than the drought water bank to see that when the chips are down agriculture will step to the plate as long as; number one, the rights are respected and protected; and number two, fair compensation is paid for the water. We are not talking about getting rich off this. We are talking about fair compensation that allows districts and farmers to continue in business. I think there's a lot of potential there, but I think as long as people have it in their minds, and I think this gets back to the Racanelli decision -- Racanelli is great because everybody kind of reads into it what they want to read. As long as that is leading people to believe that they can get water for free, this kind of consensus approach will not develop. The second obstacle to building consensus, at least in my clients' minds, is this question of fish screens. I have personally been involved in that whole issue. I have two districts that are in the process of testing sonic and electrical devices up on the Sacramento River to try to determine whether that is a viable alternative to fix screens. We don't know whether that's going to be successful yet or not. But the point is these are two districts that voluntarily stepped up and got involved in this. They are operating under a Section 7 biological opinion. They are spending hundreds of thousands of dollars of their own money. They are getting some money from the Federal Government and they are very seriously looking at this issue. A couple of things I have learned about fish screens -- number one is not all of the pumps on the river and in the Delta are taking fish, and the Board needs to understand that. I know a lot of people argue in favor of a blanket requirement that you put fish screens on every diversion in the system. I think Greg Wilkinson at the last workshop argued under Article X, Section 2, you should find that unscreened diversions are an unreasonable use of water per se. I don't think the facts support that kind of approach, and maybe more importantly, I don't think agriculture can afford that kind of approach. If you look at the cost of screening all of the pumps in the Delta and in the Valley -- I don't have a precise number for you, but I am confident it is well in excess of 200 million dollars, and for many of those districts they just flat out can't afford it. So, there's got to be a better way, a more flexible way to address the problem, and I would admit that in some instances there are problems, but not to apply a blanket kind of approach that doesn't take into account individual variations. And I guess my advice respectfully to the Board on that point is you have got a big task in front of you in putting this plan together and implementating a plan. I don't think you need to bite off the issue of fish screens as part of that process. I think the National Marine Fisheries Service is in the process of trying to decide whether to adopt a rule making on that. I think there's a lot of things going on. I think the Board can certainly be part of that, but to try to deal with that issue as part of this water quality plan process, I think would be a monumental mistake. Thank you, that's all I have. MR. CAFFREY: Thank you, Mr. O'Brien. Mr. Brown. MR. BROWN: Kevin, the same question that was asked yesterday, can the industry help decide which of those operations need to have fish screens and provide input to us on that? MR. O'BRIEN: I think they can, Mr. Brown. The problem there is there needs to be some standards about what it takes to require a fish screen. The situation you have now is that districts are very reluctant to get into the regulatory process because they are concerned that if testing is done and they take one fish, they will have a screen slapped on. If we could develop some criteria that basically say that the pumps that are taking significant fish and are significantly contributing to the problem would need to be screened. I think that's a concept that the agricultural community could live with, and frankly, it's the proposal that's been floated to NMFS, to set out a prioritization process so we can get an independent group of scientists to figure out what the numbers ought to be and everybody agree to them up front. Then we know what we are getting ourselves into. If we do that, I think it could work. MR. DEL PIERO: Mr. O'Brien, are you suggesting a de facto instead of a take permit for all the points of diversion? MR. O'BRIEN: I think there's various ways you could do it, Mr. Del Piero. I think one of the reasons that NMFS is looking at the rule-making route is that that gives them a certain amount of flexibility to carve out exceptions. I don't believe that the Endangered Species Act is so rigid that if one pump is taking one winter-run salmon in an entire irrigation season, that that mandates that that pump have a screen, and I think NMFS would agree with that, and I think where they are headed is trying to come up with some criteria to determine which pumps do need screens and which pumps don't. MR. CAFFREY: Ms. Forster. MS. FORSTER: Mr. O'Brien, I just wanted to understand a little more about this NMFS activity. I have heard it before and I just haven't been privy to studying what they are doing. What is their time frame on figuring out whether they are going to do a rule making or not? MR. O'BRIEN: They are in the process right now of making that decision and as of about a week ago, I understood they were going to be coming out with something real shortly, within a month. MS. FORSTER: And your industry and the people that you are representing today, how do they feel about all of this? Are they working in a real cooperative way? Do they like the approach NMFS is taking, or have they resigned themselves that NMFS is going to do this, so they will do the best they can. Tell me a little bit about the feelings out there about this. MR. O'BRIEN: Well, to be honest, they would just as soon not have to deal with the whole thing, but I think they recognize -- MR. DEL PIERO: I thought they were getting goose bumps waiting to participate. MR. CAFFREY: That is true, but not the kind of goose bumps you are thinking about. MR. O'BRIEN: We have proposed in a letter to NMFS a somewhat different and creative kind of process which is called Negotiated Rule Making. There's some provisions in the Administrative Procedures Act that allow for this negotiated rule making process, which would involve putting together a panel of technical experts representing a cross- section of different interests to try to deal with this question of prioritization, and I would be glad to send the Board members copies of the letter we submitted where we laid this on the table, and I think they are very seriously looking at that. So, I guess the answer to your question is, we think we have been proactive and very willing to sit down with them and work on this problem. MR. CAFFREY: Mr. Stubchaer. MR. STUBCHAER: Regarding the financing of the screens that are required, is it the concept that the owners of those diversions or pumps requiring screening would bear the whole cost, or would the cost of the screens be spread among all diverters? MR. O'BRIEN: In terms of what we are talking about? MR. STUBCHAER: Yes. MR. O'BRIEN: There certainly has been no agreement that that cost would be spread among all diverters. I guess what we are really hopeful for is that there will be continuing federal support. In the CVPIA fund there's approximately two million dollars this year; and I think more next year for screens. That's a 50 percent money, so it still requires 50 percent local contribution. So, I guess at this point the idea would be that the user would pay at least some of that. We certainly hope more money becomes available. Frankly, I think this ties into the other issue about consensus on other issues. I could see some potential for some of the M&I users who have available funds assisting ag districts in screening pumps, and maybe there's some benefits that could flow back the other way, sort of similar to what happened in Imperial Irrigation District. I think there's, you know, some real potential for those two groups to come together. The ag districts need the money, the M&I users need the water, and I think if we could clarify some of the legal issues, that that could be part of the package. MR. CAFFREY: Anything else from Board members? Thank you. Anything from staff? Thank you very much, we appreciate your comments. Alan Lilly. Good morning, Mr. Lilly. MR. LILLY: Good morning, Mr. Caffrey and members of the Board. I am Alan Lilly with Bartkiewicz, Kronick & Shanahan, appearing here on behalf of Amador County Water Agency, Browns Valley Irrigation District, Yolo County Flood Control and Water Conservation District, and Yuba County Water Agency, and I would like to just note that Mimi Mathews, long-time member of the Yuba County Board of Supervisors, Director of the Yuba County Flood Agency, and former chairman, who was here for most days of the Yuba River hearings, is also here today. Mimi, would you please stand up. MR. CAFFREY: Good morning. Welcome. MR. LILLY: She is now the Director who has been on the agency the longest and is certainly the most familiar with this Board's proceedings. I did submit written comments which looked like this. I hope you all got copies. I gave copies to Ms. Leidigh this morning and have extra copies here. Since most of the points that I am going to make have been covered, I will try to just highlight the points that have not been covered. First of all, for these Bay-Delta proceedings and prior Bay-Delta proceedings, it is understandable we all focus on the big picture on all the issues, but I think it is important to just remind the Board that what we are looking at now is adopting a water quality control plan and not the water rights decision that apparently will come later. And there is a difference, an important difference in the water quality control plan, I pulled out Porter- Cologne and looked at it again over weekend and was happy to note that there's some statutes which very clearly direct the Board to look at the big picture and to make recommendations to other agencies. I have cited those statutes in my comments, and I will just note I think some of the agencies that recommendations should be made to have been mentioned and some have not. The Regional Water Quality Control Board certainly is the obvious example for water quality matters, and this Board obviously has a direct supervisory role there; the Fish and Game Commission for regulation of inland species; the Pacific Fisheries Management Council for regulation of ocean anadromous fisheries; the Army Corps of Engineers for its programs under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act; the Reclamation Board for its jurisdiction over levees; and the Department of Fish and Game, both for controlling illegal take of species and also to control the introduction of more undesirable exotic species. And frankly, I realize it is complicated and it is difficult to know what recommendations should be made, but I submit that those recommendations are essential elements of any truly comprehensive water quality control plan. Secondly, I wholeheartedly support Mr. O'Brien's comments that the water quality control plan should not be a water rights decision. I think there are due process limitations, and, of course, the whole list of complex California water laws is going to have to be considered before a water rights decision can be issued. And, frankly, Porter-Cologne says that the implementation program is supposed to contain a description of the nature of the actions which are necessary to achieve the objectives, and that, I think, we submit as a general description, not a full water right decision. Frankly, that's exactly what the Water Board did in 1991, and we support that same approach. We agree with Mr. O'Brien's general statement reaffirming that area of origin and watershed protection statutes are appropriate and would give guidance to the parties. On point No. 3, we heard Fish and Game yesterday talk about their new action plan and suggested that the Water Board incorporate that as part of its Bay-Delta proceedings. I am sorry, but we have to strongly disagree with that. No matter how they package it an action plan has a green color, the lower Yuba River management plan had a pink color and I have forgotten what color the lower Mokelumne River plan has, but they've got the same recommendations or proposals in them, and, therefore, have the same scientific deficiencies. We went through 14 days of hearings on the lower Yuba River and demonstrated, I think, very clearly that there was no scientific support for those recommendations. The Department of Fish and Game in that proceeding totally ignored its own IFIM analysis and really simply threw forward a wish list of instream flow and water temperature requirements without substantial scientific support. We will wait for the decision from this Board from that hearing, but in any event, the upstream inflow issue should not be part of this proceeding. We went through this argument back in 1992 in the Bay-Delta hearings, and we basically told Chairman Maughan at that time if he wanted to have all that evidence come in, we would be glad to submit our responses again, but it would take a long time, and he clearly ruled that he did not want that evidence in regarding the upstream instream requirements, that the Bay- Delta was complicated enough by itself, and we are a little bit disturbed that Fish and Game is basically trying to get around that ruling now. We are also very disturbed about Fish and Game's proposal that a portion of each reservoir in the watershed be dedicated to Delta problems. We think that will clearly violate the watershed protection and area of origin statutes, and probably also be an unconstitutional taking of property without just compensation. This is not modifying a water right, this is telling a water district that we are going to operate part of your project for a different purpose, analogous to coming in and saying, well, we will just take a couple of rooms in your office building as we need them for state agency purposes. We don't think Fish and Game can do that and we don't think the Water Board should follow that approach. Regarding the impacts of the upstream water projects, I think those have been hit on fairly clearly and I would just like to say I think there is no dispute that the upstream water projects have had substantially lower and definitely very different impacts on Delta fisheries than the Central Valley Project and the State Water Project have. Obviously, they haven't had the direct losses from fish entrained in the Delta that the Central Valley Project and the State Water Project pumps have had, and they haven't caused reverse flows or changed flow patterns, and frankly, they haven't blocked most of the spawning habitat the way Shasta Dam did. It alone blocked over half of the spawning habitat, and Oroville and Folsom have blocked substantial portions of the remaining habitat. Now, there have been some impacts from upstream projects, both through entrainment of anadromous fish and blocking of access to spawning habitat, and we agree that it is appropriate for the Board to consider requirements to mitigate those impacts. Frankly, I think Mr. O'Brien said it very clearly on the fish screen issue, that NMFS really has that matter under control, but our point is if those upstream projects have impacts on the fisheries, they ought to be addressed and mitigated on a project-by-project basis because the projects have very different impacts. My clients' projects generally are high enough up in the tributary that they haven't had the entrainment problems that others have and they haven't blocked the watershed, the spawning habitat that others have. The one thing this Board should not do is simply say in the general sense upstream projects have had impacts, therefore, they have to contribute to Bay-Delta outflows and are basically required to throw some water at the Delta to help solve the problem. That is not appropriate. And, of course, the point we have always had is the upstream water projects have been there a long time. The declines are much more recent. So, I think there's analogies about the straw breaking the camel's back, and now there's a lot of straws and everyone has to contribute. I suggest the best analogy is the upstream projects were the first few straws in the camel's back and the camel was doing just fine until two 800-pound gorillas jumped on board and broke the camel's back, and those are the Central Valley Project and the State Water Project, and, therefore, it is not necessarily appropriate to have some kind of pro rata or what they euphemistically call equitable sharing of solving the problem. They caused the problem, they pushed it over the brink and they should be responsible. We have heard a lot about the watershed protection statutes. I just wanted to read -- the key provision is Section 11460 of the Water Code, which incidentally, the Legislature adopted in 1933, and it was subject to a referendum petition very similar to that that the Peripheral Canal bill was subject to. The crucial difference was this one the voters passed and it has remained on the books and has really been the foundation of California water law ever since, and it says: In the construction and operation by the Department - - that is the Department of Water Resources, and I cite it in my written submittal that there is a parallel statute that applies to the Bureau of Reclamation for operation of the federal elements of the Central Valley Project -- of any project under the provisions of this part; that is basically the part that controls all Central Valley Project elements, both State and Federal, a watershed or area wherein water originates, or an area immediately adjacent thereto which can conveniently be supplied with water therefrom, shall not be deprived by the Department directly or indirectly, and I added those underlines, of the prior right to all of the water reasonably required to adequately supply the beneficial needs of the watershed area or any of the inhabitants or property owners therein. It doesn't say shall not be deprived except for equitable and necessary forebay Delta outflow requirements to mitigate the Central Valley Project and the State Water Project impacts, and most importantly, it says directly or indirectly. And I submit directly means the Delta. The Delta is part of the Sacramento Valley for watershed protection statutes. There is no question about that. The Attorney General has made that interpretation and the Burns-Porter Act says it as well. So, the projects cannot directly deprive the Delta of water that is needed for beneficial uses therein. I am sure in 1933, they weren't thinking of fish and wildlife, but under subsequent statutes, particularly Water Code Section 1243, beneficial uses clearly include fish and wildlife purposes; and it also says indirectly and that's us. That's our clients. That means the Central Valley Project and the State Water Project cannot be operated if in doing so would require our projects, the upstream projects in the watershed of origin, to then have to contribute to Delta outflows because that would be an indirect impact on them. I also have down here on this overhead, and it's quoted in my written submittal as well, valid arguments that were made in 1959 and these were submitted by Senators Burns and Richards, Burns from Fresno County and Richards from Los Angeles County, in support of the Burns-Porter act. And this is the promise they made to Northern Californians: No area will be deprived of the water to meet the needs of another, nor will any area be asked to pay for water delivered to another. Under this act the water rights of Northern California will remain securely protected. Ladies and gentlemen, I don't think pooling an equitable share, what they view as an equitable share is securely protecting the water right. Now, we have heard, and Metropolitan submitted detailed written comments yesterday basically saying that, well, this Board has general authority under Article X, Section 2, of the California Constitution to prohibit unreasonable uses of water, and existing uses which have been reasonable for the past century can become unreasonable as the demand on water in California goes up. In other words, as they need more water in Southern California for their various purposes, whatever they are, and I won't go into those, and I could make some cynical comments about different uses, but basically now they are saying that we need more water and it is no longer reasonable for you to use the amount of water that you historically used, not that you are wasting it or causing any pollution, but it is just no longer reasonable. There is not enough to go around anymore. Well, I submit that that is a question that the Legislature has already decided in these statutes, particularly this one that is quoted, and if you read the last sentence of Article 10, Section 2 of the California Constitution, it says something to the effect that this section shall be self-executing and the Legislature may adopt statutes in furtherance thereof. This is one of the statutes that the Legislature has adopted in furtherance thereof. They have said it is reasonable for people in the area of origin to use the water they need, even if doing so will cause shortages or not leave enough water for export areas. Now, the Legislature, of course, has the power to amend this statute, but as long as it is on the books, this Board has to follow it until a specific directive from the Legislature supersedes general policy in the Constitution, and the Board does not have the authority to ignore this statute. The Forni case from the Napa River, which is frequently cited by Metropolitan and the other Southern California entities, is distinguishable just for that reason, and in that case, there was no statute. The Napa River diverters were all diverting water during the frost protection season, drying up the river, and the Board adopted a regulation to address that problem, and that was upheld by the courts. But here, the Legislature has spoken and has decided how responsibilities will be allocated and the Board does not have the discretion to ignore that. MR. CAFFREY: Mr. Lilly, just a point of clarification, because I don't want to get too far from what this workshop is scoped for. I realize that you are responding in some degree to comments that you heard yesterday, but you are also in an area which I am having some difficulty finding what we had scoped for today, unless you are under item 2, review of CVP and SWP operations for effects on ESA protected species and other species of concern. MR. LILLY: Well, excuse me, it addresses that issue, but it also addresses -- by asking the question, what are the effects of the upstream projects other than the CVP and the SWP, I think clearly by implication you are asking what contributions should be done from those, and obviously, I am responding to Metropolitan. I hope I haven't gone too far afield. I don't think I have gone any farther afield than the other speakers have on that issue. MR. CAFFREY: No, I just wanted to make sure that I understand where you are headed and where you think you are in the process here. MR. LILLY: Frankly, Mr. Caffrey, the comments were addressed to issue No. 3, because I think when you ask what the effects are of the upstream projects, I thought by implication that was asking what should the upstream projects be required to do to help solve the Bay-Delta problems. I hope I haven't gone too far. MR. DEL PIERO: How much more does he have to present? It was my sense he was getting close to the end of it. MR. LILLY: Mr. Del Piero had the advantage, he is close to my notes. So, I'm on the bottom half of the last page. MR. CAFFREY: I didn't mean to stifle you. I wanted to make sure -- we won't charge you for our questions. I just wanted to be sure we were all in the same scoped area. I can understand your applying your comments to the interpretation you have just given us on item 3, so without any further delay, I will defer to Mr. Del Piero's good advice and allow you to continue. MR. LILLY: The last point I want to make is what it really comes down to is a question of trust, and, Mr. Caffrey, we have taken seriously your admonition that we try to work with other parties, and we are talking to other parties as everyone else is, to try to develop solutions to this matter. But we have a basic problem. The first treaty that was ever made in California water was this statute in 1933, and that was to get the Central Valley Project approved. That was the deal that was made and it was affirmed in 1959 to get the State project approved and it's been affirmed by statute and multiple decisions from this Board and its predecessors along the way. It is very difficult to try to make agreements with other parties if at the same time they are asking this Board to break the prior agreements that were made, and that's what we have here. And, frankly, you know, we talk about the problem, the effects of the project and others, and the reason we have a Delta problem is the Peripheral Canal wasn't built. We all know that if it had been built, we wouldn't have reverse flows, wouldn't have entrainment at the pumps and so forth, and the reason it wasn't built is that Northern Californians and environmentalists didn't trust Southern California water users. The concern is that once that facility is in place, the water will be gone forever. And, frankly, this Board has a crucial role to honor that promise and to make it clear that prior treaties will be honored and, therefore, should provide the foundation for future treaties, and on the other hand, if the Board takes water away without just compensation, there never will be trust between north and south, between environmentalists and M&I users and agricultural users. So, we think this needs to be considered very strongly by the Board and we will certainly elaborate on it in the July workshop, and with that, I close my comments. MR. CAFFREY: Thank you very much, Mr. Lilly. Questions from Board members? It hasn't been the same without you, Mr. Lilly. We haven't seen you lately. MR. LILLY: I will be back in July. Thank you very much. MR. CAFFREY: Anything from the staff? Thank you very much. Kati Buehler, good morning. MS. BUEHLER: Good morning, Mr. Chairman and members of the Board. My name is Kati Buehler with the Rice Industry Association. We weren't planning to testify at this particular workshop, but after having attended yesterday's all-day session, I feel compelled to make some comments about the role of the rice pesticide as a factor contributing to the decline of fisheries in the Bay-Delta. Rich Golb of the Northern California Water Association did an excellent job yesterday in explaining the history and successes of the rice pesticide control program, but in comments provided by others, it became clear to us that what is now outdated information continues to surface regarding the detrimental effects of rice-field effluent. We hope the information presented today will demonstrate that rice-field discharges no longer adversely affect Delta water quality. We readily admit the rice-field runoff did contribute to water quality problems in the 1970s and 1980s. It was, in fact, in response to those problems that the rice industry agreed to cooperate with the Central Valley Water Quality Control Board, the Department of Pesticide Regulation and the Department of Fish and Game to initiate the rice pesticide control program. As Rich Golb mentioned yesterday, the Executive Officer of the Regional Board, Mr. Bill Crooks, has called this program one of the most successful water quality control programs in the United States. You heard yesterday the rice pesticide loads in the Sacramento River have been reduced by over 99 percent in the last ten years. The 1993 monitoring program revealed that rice pesticides were below detectable levels at all the locations downriver of the Sacramento I Street Bridge, the northern boundary of the Delta. And the rice industry's efforts to further reduce the remaining one percent of the rice pesticide load is ongoing. We offer these comments primarily to set the record straight regarding the continuing myth of the adverse impacts from rice-field discharges which has been perpetuated, in our opinion, through the use of outdated information, but we also offer this information to urge the Board to include in any Delta water quality control plan a mechanism which recognizes and gives credit for the past and ongoing water quality improvement efforts. The remarkable water quality improvements by rice growers have not come without a price. Rice growers paid three times more than the cost to others in irrigated agriculture for compliance with the Regional Board's basin plan. The cost exceeded 7.5 million dollars annually, or about 15 dollars an acre. Based on those figures, the rice industry has contributed over 30 million dollars in Delta water quality improvements since 1990. I want to make one other point before leaving the subject of pollutants. We wanted to make absolutely clear for the record that Diazinon, which was mentioned yesterday as a significant agricultural pollutant, is not used on rice. There was also discussion yesterday about the possibility of having another workshop to focus on pollutants. If, in fact, the Board thinks that's a good idea, we would encourage the Board to consider using that forum as an opportunity to set priorities regarding the impacts of pollutants based on the risk to people and to the environment. We would hope this exercise could then be the basis for allocating the Board's limited resources to address real problems in the most cost effective manner. Over the years rice growers have also invested millions of dollars in recirculating and closed water systems in order to conserve water. Since the early 1980s, rice growers have decreased their net water use by approximately 30 percent. This conservation effort shows that the water quality improvements are, in fact, real, not merely the result of dilution. As with efforts in water quality, we ask that the Board give credit for efforts in water conservation when deciding implementation plans for the Delta. Finally, we have some comments regarding the factor of unscreened diversions. Taking water from rivers and streams through unsafe diversions for any purpose can harm fish and in some instances does. The California rice industry has established a credible record in working with fishery groups, government agencies and environmental interests to design and implement fish-safe water delivery systems in Northern California, and I want to mention three specific examples. On the Sacramento River efforts are under way to rebuild a 40 million dollar state-of-the-art screen facility at the Glenn-Colusa Irrigation District. As you probably know, Glenn-Colusa Irrigation District is the largest agricultural water district in Northern California. This district also supplies more rice farms than any other district in California, nearly 100,000 acres. Another Northern California water agency that services a major rice-producing area is the Maxwell Irrigation District, and they voluntarily installed a multimillion dollar screen this year to protect the Sacramento River fishery. On Butte Creek, the Rice Industry Association and the Northern California Water Association are helping foster an environmental agricultural consensus on a plan to restore the spring-run salmon. Our two organizations are also participating in a CVPIA project to help draft a coordinated program for funding and building fish screens on the Sacramento River to protect the winter-run salmon and other species. As you can see from these examples, and also, from comments made by Mr. O'Brien and Mr. Lilly, there are already a lot of efforts under way to deal with the unscreened diversions. In conclusion, the rice industry is eager to participate in programs that prioritize and facilitate the screening of diversions based on biological need. All we ask for is a coordinated program with clear goals and objectives backed up with a meaningful financial commitment. And with that, thank you for the opportunity to address the Board today, and we will be incorporating the comments made here today in our final written comments which we will be submitting in July. Thank you for your time. MR. CAFFREY: Thank you, Ms. Buehler. Are there questions from the Board members? Anything from staff? I would just like to say in response to the earlier part of your presentation, this Board is not unaware of the efforts that industry is making in working with Region 5. We appreciate that very much and I know you are making a lot of progress, and industry has gone through great effort and great expense to try and alleviate the problems of which you are speaking, so they are not unknown to us, and we commend you for your effort and we are following with interest what is going on there, so thank you very much. MS. BUEHLER: Thank you for those comments, Mr. Chairman. MR. CAFFREY: Thank you. That's the last of the cards that were submitted today. Unless we have missed anybody, let me announce that we will be back for the fourth in our series of workshops on July 13. We also have the 14th, the 26th and 27 scheduled as well, so we will see how that goes. We want to thank you all very much for your input which is very valuable to us, and we hope to see you in July. Thank you very much. (The workshop was concluded.) REPORTER'S CERTIFICATE --o0o-- This is to certify that I, ALICE BOOK, a Certified Shorthand Reporter, was present during the Public Hearing of the STATE WATER RESOURCES CONTROL BOARD, STATE OF CALIFORNIA, held in Sacramento, California, on June 14 and 15, 1994; that as such I recorded in stenographic writing the proceedings therein held in the matter of Review of Water Quality Standards for the San Francisco Bay/Sacramento-San Joaquin Delta Estuary; that I thereafter caused my said stenographic writing to be transcribed into longhand typewriting and that the preceding Volumes III and IV, constitute said transcript; that the same is a true and correct transcription of my said stenographic writing for the date and subject matter hereinabove described. Dated: June 29, 1993. ___________________________________ ALICE BOOK 63