                                                     
   1       
   1             MONDAY, JANUARY 9, 1988, 9:00 A.M.       
   2                         ---o0o---       
   3        MR. MAUGHAN:  I would like to call our meeting to       
   4 order, please.  I welcome you all.       
   5        We know that the Board Members are anxious to hear       
   6 what you have to say today.  It seems as though there has       
   7 been a great deal of attention paid to the Bay-Delta in       
   8 recent weeks.  Some of you are really into it.  Good.       
   9        Before we get started with our workshop and the      
 10 purpose of it, I do have a few views I want to share with      
 11 you and they represent the thinking of the Board on these      
 12 Draft documents that were released on the 3rd of November.      
 13        We have felt that there have been two main feelings      
 14 about the Draft which need to be addressed.  The first is,      
 15 do the Drafts imply the Board is striving to become a      
 16 water management and operating agency?  I don't think      
 17 that's the case at all.  Recent court decisions have      
 18 lengthened the Board's regulatory arm but have not      
 19 transformed the Board into a water management or operating      
 20 agency.  The Board has regulatory responsibilities to      
 21 establish water quality objectives, but the exact      
 22 mechanisms for accomplishing those objectives should be in      
 23 the hands of those water operating agencies which have      
 24 control over the physical facilities necessary to meet      
 25 such objectives.                                                     
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  1        Now, secondly, some critics of the two documents       
  2 believe we may be discounting negotiated solutions among       
   3 competing interests.  That's not so.  Negotiated settle-       
   4 ments are excellent means to resolve issues.  Apparently       
   5 good progress has been made in recent months in negotia-       
   6 tions concerning water quality and flows for fish within       
   7 the Delta and for the South Delta problems.       
   8        We are interested in hearing more regarding the       
   9 nature of those specific negotiations.  Hopefully, mutual      
 10 agreement by parties of interest can reduce the heavy      
 11 regulatory burden that's upon the Board.      
 12        In addition, it appears that there are two aspects      
 13 of the Draft Water Quality Control Plan that need      
 14 clarification, perhaps more than that, but these two have      
 15 struck me anyway.  One is the possible ceiling on annual      
 16 exports from the Delta and the other a possible limit on      
 17 the annual amount of pumping at the Edmonston Pumping      
 18 Plant.      
 19        With regard to the first issue, the staff used 1985      
 20 export year in an analysis to determine if annual exports      
 21 of that magnitude could be fulfilled using existing export      
 22 facilities with the decrease in spring exports offset by      
 23 an increase in export during the other months of the year.      
 24        Since the Draft Report results are questioned, the      
 25 Board urges others, and I think that is principally the                                          
          
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  1 Department of Water Resources and the Bureau of       
  2 Reclamation, to provide all the parties the results of       
   3 in-depth operational studies of the regime suggested in       
   4 the Draft Report and alternative regimes and physical       
   5 works to improve the reverse flow problems in the Lower       
   6 San Joaquin River.       
   7        With the second issue, I personally simply don't       
   8 foresee such a limit based on the annual exports at       
   9 Edmonston.  It is indicated, and by the number of people      
 10 here, we know that the results of the Draft have been      
 11 highly controversial.  This sharpens the focus of the      
 12 matters needing the most attention.      
 13        Controversy can be healthy and is perhaps essential      
 14 to progress.  Through controversy we can often gain a      
 15 better perspective of society's needs and a clearer      
 16 picture of competing interests.  California's entire water      
 17 history has been wrought with controversy.  However, we      
 18 have become the largest and most economically dominant      
 19 state in the union.      
 20        Hopefully competing interests can join together to      
 21 make sure the best available facts are utilized to resolve      
 22 the issues that are before us.      
 23        Now, simply, the purpose of the workshop today is      
 24 centered around two items.  One is how much time is needed      
 25 for various parties to be prepared to start Phase 2 of the                                    
                
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  1 hearing, and the other is, do we have the proper elements       
  2 in Phase 2?  Is the scope proper under the circumstances       
   3 we now find ourselves in after a lot of review?       
   4        There are some other questions that have come up       
   5 like whether there should be cross-examination or not and       
   6 we would like your comments on that.       
   7        I do have a prepared statement here which I will       
   8 read concerning the process today.       
   9        The purpose of today's workshop is to receive      
 10 public comments regarding the appropriate process and      
 11 timing that should be utilized by the Board in obtaining      
 12 public comments on the two Draft documents that were      
 13 released for public review on November 3.  These documents      
 14 are the Draft Water Quality Control Plan for salinity for      
 15 the San Francisco Bay-San Joaquin Delta estuary and the      
 16 Draft Pollutant Policy document for that same Bay-Delta      
 17 estuary.      
 18        The process of obtaining such comments has commonly      
 19 been referred to as Phase 2.  As we all aware, the release      
 20 of these two staff Draft documents has sparked a great      
 21 deal of concern and discussion during the intervening two      
 22 months.  It has permitted the Board to gain a far clearer      
 23 realization of the specific concerns of many parties to      
 24 these proceedings.      
 25        The Board recognizes that an early determination of                                   
                 
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  1 the precise contents of the Draft Water Quality Control       
  2 Plan is essential if the Board and parties are to move       
   3 forward.  Therefore, specific comments are invited today       
   4 on the appropriate content of the Draft Plan.  The Board       
   5 is aware that the Draft specifically mentions flow and       
   6 export limits and that in the minds of some parties that       
   7 might be more appropriately part of the water rights       
   8 proceedings which will constitute the third phase of these       
   9 hearings. Specific comments on this issue is invited.      
 10        Since release of the Draft, the Board has received      
 11 numerous written submittals and various petitions.      
 12 Technical issues have been raised regarding the staff's      
 13 analysis of reasonable municipal and industrial water      
 14 conservation, reasonable agricultural water conservation      
 15 and water supply impact of the recommended alternative,      
 16 especially in the export areas.      
 17        In response to these issues, the Department of      
 18 Water Resources, the Bureau of Reclamation and others will      
 19 be conducting further in-depth review of water supply      
 20 impacts.  With regard to water conservation the Board has      
 21 been informed that our staff has held discussions with a      
 22 variety of interests regarding their analysis of water      
 23 conservation.      
 24        In addition, the Department of Water Resources has      
 25 agreed to sponsor a series of technical workshops in                                         
           
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  1 advance of the Board's Phase 2 hearings.  These workshops       
  2 will be open to all interested parties and will be held in       
   3 each of the following areas, and they are the same that I       
   4 just mentioned, water supply impacts, operational studies       
   5 and their attendant assumptions, reasonable municipal and       
   6 industrial water conservation and reasonable agricultural       
   7 conservation.       
   8        We are grateful to the Department for sponsoring       
   9 these workshops.  We feel this effort will lead to a more      
 10 focused presentation as the formal hearing process      
 11 continues.      
 12        Many commenters have stated that in reviewing the      
 13 staff's Drafts they found it difficult to identify the      
 14 evidentiary basis of some of the conclusions which have      
 15 been drawn.  Such commenters have requested that during      
 16 Phase 2 of the hearings that all parties, including the      
 17 Board staff, be subject to cross-examination.  Your      
 18 comments regarding this issue are also invited.      
 19        Having stated the purpose of today's workshop to      
 20 gather comments on the appropriate contents of the Plan      
 21 and to receive comments on the appropriate process and      
 22 timing for obtaining comments on the specifics of the two      
 23 documents, after I allow comments from the Board Members,      
 24 we will be calling on individuals to address the Board.      
 25        I will say in advance upon conclusion of this                                              
      
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  1 workshop, the Board will reflect upon the comments       
  2 received and give the staff direction on drafting specific       
   3 procedures, subject and timing to be incorporated in the       
   4 Boards Phase 2 hearing process.       
   5        The comment period will be open until five p.m. on       
   6 January 17, 1989, and we plan to outline, and I emphasize       
   7 outline, the steps for the revised process at our regular       
   8 January 19 Board meeting.       
   9        Before we then proceed, if there are other comments      
 10 to be made by Board Members, I give them the opportunity      
 11 right now.      
 12        MS. RUIZ:  Thank you, Mr. Chairman and fellow Board      
 13 Members.      
 14        If I may, I would like to take this opportunity to      
 15 also welcome you and to extend to all of you a wish for a      
 16 very productive New Year.  I hope the attorneys will      
 17 recognize that I am not wishing them a prosperous one,      
 18 only a productive one.      
 19        It is good to start the New Year's proceedings in a      
 20 room this size with the company of so many all with the      
 21 same common goal.  Of course, I am referring to a better      
 22 basin plan.      
 23        The statement by the Chair should be a very welcome      
 24 one.  Not only does it provide guidance for our      
 25 proceedings today, it represents this Board's commitment                                   
                 
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  1 prior to the opening of Phase 2, to amend the workplan in       
  2 more than just a time schedule.  It represents the       
   3 commitment of this Board to:       
   4        (1)  Establish an analytical format setting forth       
   5 the policy questions to be decided within a basin plan, as       
   6 well as a full array of alternatives to be considered.  Of       
   7 course, each policy question is and should be evaluated       
   8 against our statutory authority.       
   9        (2)  It is a commitment on our part to establish a      
 10 hearing and workshop format for full exchanges between the      
 11 public and the Board, the Board and the staff, as well as      
 12 between the Board Members, in order to give the public      
 13 full access to the decision making process.      
 14        For example, direction to staff for drafting a      
 15 final option to be considered by the Board should be done      
 16 in public meeting; and      
 17        (3)  It also represents a commitment on our part to      
 18 provide for a full separation of water quality planning      
 19 from any actual implementation such as review of water      
 20 rights.  These commitments and goals are in total keeping,      
 21 not only with the Racinelli decision requiring us to      
 22 consider all relevant factors and to demonstrate a      
 23 rational connection between these factors and the decision      
 24 made, but also, it is consistent with all our powers,      
 25 duties and strengths to make basin planning the finest                                       
             
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  1 example of public policy development through full public       
  2 participation.       
   3        I look forward to our work ahead and to your       
   4 comments and assistance in helping us attain our goals and       
   5 commitments.  Thank you.       
   6        MR. MAUGHAN:  Thank you, Vice Chair.       
   7        Would anyone else like to say anything at this       
   8 time?  We will be commenting obviously during the course       
   9 of the proceedings today.  I know that many of you may      
 10 have somewhat similar views and I would hope in the      
 11 interest of all of us, and I know you are all very busy      
 12 people, if they are almost identical to what has already      
 13 been expressed, we would be glad to hear from you, but      
 14 hopefully, you can really summarize and indicate your      
 15 concurrence with whomever has spoken prior thereto.      
 16        Also, I have many cards here.  If some of you do      
 17 want to speak and have not filled out one of these cards,      
 18 they are available at the back of the auditorium.  We      
 19 would appreciate it if you would do that.  We will give      
 20 special acknowledgement in terms of inserting them if they      
 21 are elected officials, either State or local; otherwise, I      
 22 will basically go down the cards as we receive them.      
 23        Our first person is Assemblyman Bill Jones.  He      
 24 would like to make a statement.  We appreciate your being      
 25 here, Assemblyman.                                                     
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  1        ASSEMBLYMAN JONES:  Thank you, Mr. Chairman and       
  2 Members.  Good morning and happy New Year to you.       
   3        I did come today and I do appreciate your giving me       
   4 the courtesy to speak early and excuse myself after.       
   5        I have a prepared statement, but in light of the       
   6 Chairman's comments about not being redundant on some of       
   7 the issues, I think you spoke very well, Mr. Chairman, on       
   8 some of the issues that we have had an opportunity to       
   9 discuss during the last couple of months concerning this      
 10 matter.      
 11        I think it is important, as the Vice Chair      
 12 mentioned, that the productive resources of everybody be      
 13 involved in this process, and I think the fact that there      
 14 are other entities in the state that are working and have      
 15 worked along with yourselves on this project over an      
 16 extended period of time since the original Racinelli      
 17 decision that needs to be taken into consideration in a      
 18 collective manner, as I am sure that you will.      
 19        It seems to me that the staff Report in some ways      
 20 did not reflect that enough, that cooperative effort, the      
 21 fact that other projects were taking place, some of the      
 22 issues that you raised, Mr. Chairman, in your comments,      
 23 and I think the only way that we will be successful is to      
 24 have the guiding hand of this Board from a regulatory      
 25 standpoint, but allow the flexibility and the creativity                                           
         
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  1 of the other resource agencies to participate and to have       
  2 your good help in providing some guidance in that process.       
   3        There are some specific issues that I would like to       
   4 just comment on as far as the scope, Mr. Chairman, that I       
   5 think are important.  There are some basic premises within       
   6 the staff Report that concern me.  It would seem that the       
   7 staff, realizing again that this is just a staff Report       
   8 and you are asking for comments, but it would seem to me       
   9 that the staff came at the approach here from the      
 10 standpoint that less is more.  In other words, the more      
 11 historic position often taken during the last      
 12 administration here in Sacramento that we will take the      
 13 less and we will make it more, and I just don't feel      
 14 personally that that is an acceptable policy from the      
 15 standpoint of the people of California or, I know from      
 16 talking with many of you, from a position that you folks      
 17 would advocate individually.      
 18        I think the fact that there is still during the      
 19 peak years, during the normal and heavy wet years,      
 20 oftentimes many locations where we might still store south      
 21 of the Delta, still have facilities built.  It is not      
 22 stressed enough, it is not taken into consideration.  It      
 23 seems again the less is more, that we will reserve and      
 24 distribute less water south of the Delta is stressed to      
 25 the exclusion of other alternatives and needs to be looked                                  
                  
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  1 at very specifically by the Board in their review, and I       
  2 know that the Board knows, although I am not sure how many       
   3 people in the state really understand that when it comes       
   4 to agriculture's position in this whole issue of water,       
   5 the State Project already requires during the dry years       
   6 agriculture to take a 50 percent cut if, in fact, that's       
   7 necessary, to allow the municipal districts to have       
   8 sufficient water.       
   9        And having just come out of a two-year dry cycle      
 10 and maybe a third year -- we hope not, but we know that      
 11 if, in fact, we end up with another dry year, that that 50      
 12 percent could in fact take place.      
 13        So my point here is that I think it needs a      
 14 perspective of how the State Water Project was put      
 15 together, what the driving force was behind it for      
 16 agriculture to be the pool, if you will, that collects the      
 17 excess water, but to allow that water to go to the higher      
 18 use during the dry years needs to be considered and needs      
 19 to be a premise on the basis of which that staff Report is      
 20 built.  I think, and I am well aware that you folks are      
 21 surely planning on taking into account in whatever is      
 22 done, needs to be done for the dry year.  We need to      
 23 develop whatever is done based on the dry year.      
 24        I want also to just comment that, you know, the      
 25 mitigation measures resulting from the economic and                                         
           
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  1 environmental impacts of these changes, I don't believe is       
  2 taken into account, whether it be agriculture, whether it       
   3 be Southern California, or replaces where this water would       
   4 be restricted from ongoing use, is taken into account in       
   5 this Draft Report and that's something else that needs to       
   6 be looked at.       
   7        One other point I would just like to make briefly       
   8 is the Water Quality Control Plan for salinity.  I       
   9 personally believe that, you know, the saline water needs      
 10 to be looked at as a resource.  It will be a resource in      
 11 the years to come.  If, in fact, we stress so strongly      
 12 that we are so short of water and yet, in fact, we look at      
 13 water as a renewable resource -- the technology that we      
 14 have in this country is almost there to create this as a      
 15 renewable resource, and I think the Board needs to stress      
 16 the need to move forward with that technology because in      
 17 the out years it is going to be necessary regardless.      
 18        I want to mention also about the issue of      
 19 fisheries.  I had the opportunity, as many of you did, to      
 20 visit with the Aqua meetings in Lake Tahoe during the      
 21 off-season and listen to the speakers.  I was very      
 22 impressed by Mr. Kennedy and Mr. Houston's comments      
 23 concerning the work that they had done in the fisheries      
 24 area.  I think that it's important that we have a good      
 25 conjunctive use effort with the fisheries, but I think it                                          
          
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  1 needs to be reflective of all the different entities that       
  2 are working on that, and it seems to me the staff Report       
   3 is looking at the fisheries issue as if the sole effort of       
   4 the Board has to be to serve that purpose, and I would       
   5 question that since I believe that a great deal has been       
   6 done already.       
   7        I think this issue on fisheries is very much like       
   8 the issue that the Legislature is dealing with on       
   9 contaminant levels and standard setting.  You have to set      
 10 what level is acceptable and then work toward that level.      
 11 Debate the level, settle the level, and go from there, but      
 12 to have us continually chase a level of some historic      
 13 perspective, whether it be 100 or 200 years ago or      
 14 whatever, as to what we want the fisheries, whether they      
 15 be salmon or what have you, to go back to a level that is      
 16 probably not realistic to attain again in relationship to      
 17 the other uses for this water, needs to be focused on.  So      
 18 again, having worked on that project for many years in the      
 19 Legislature, I know it is very difficult to do, but it is      
 20 a priority that I think we need to bring the resources      
 21 agencies together, the different interest groups, and      
 22 reach that consensus.      
 23        Finally, I would just like to request, to answer      
 24 your first question, Mr. Chairman, that at least a six      
 25 month period be given to allow the different individuals                                       
             
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  1 that are here that I am sure will be commenting, to       
  2 develop other thoughts in relationship to Phase 2.  I know       
   3 that your good work is going to go forward on trying to       
   4 focus on the changes that might take place in Phase 1.  I       
   5 offer my offices for whatever help they might be and look       
   6 forward to working with you toward that end.       
   7        I realize that this is, as you said, Mr. Chairman,       
   8 sometimes controversial and controversy is needed to stir       
   9 the pot and I appreciate that and I know with your past      
 10 experience and your great guidance that we will, all      
 11 working together, be able to resolve this problem to      
 12 everyone's, if not total satisfaction, at least to      
 13 satisfaction enough to move on for all the people of State      
 14 of California, and I appreciate the opportunity to be      
 15 visit with you this morning.      
 16        MR. MAUGHAN:  Thank you, Assemblyman Jones.  We      
 17 appreciate those kind words, too.      
 18        Do we have any questions of the Assemblyman?      
 19 Apparently not.      
 20        You are very clear. Thanks again.      
 21        I guess there are some here today that are not too      
 22 familiar with all of us.  We have our full Board      
 23 contingent here and we also have representatives of Region      
 24 5 and Region 2.  I will introduce them.  Going from my      
 25 right, your left, is Karen Vercruse, the Chairperson for                                        
            
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  1 Region 5 of the Regional Water Quality Control Board, and       
  2 then we have our Board Member Danny Walsh, Board Member       
   3 Ted Finster.  To my left all the way representing Region 2       
   4 is Marion Otsea and then Board Member Eliseo Samaniego and       
   5 then Vice Chair Darlene Ruiz.  We are all here and very       
   6 anxious to hear what you have to say.       
   7        I will next call on Supervisor John Flynn.       
   8        MR. FLYNN:  Thank you very much, Mr. Chairman.  My       
   9 comments will be very brief.  I will read from a letter to      
 10 the Board.      
 11        Thank you for the opportunity to express our      
 12 position on the amount of time it will take our committee      
 13 to prepare for the Phase 2 hearings.      
 14        Now I might say that I am Chairman of the Southern      
 15 California Water Committee and also a member of the Board      
 16 of Supervisors of Ventura county.      
 17        Adequate time should be allowed by your Board.  We      
 18 feel that if you would begin the hearings about July,      
 19 1989, this will allow us time to comment on a very      
 20 complicated plan and issue.      
 21        The Southern California Water Committee plans to      
 22 receive comments from all water purveyors in the eight      
 23 member counties and will have analyses developed from each      
 24 of the five sectors which compose the committee.  These      
 25 are:  Agriculture, business, city, county and water.                                             
       
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  1 These sectors will tell the impact of the Draft Plan on       
  2 each of their sectors.       
   3        In order to understand your conclusions, we request       
   4 that we be allowed to peruse the data upon which the Draft       
   5 Plan recommendations are made.  For example, we will want       
   6 to examine the data used to determine the water       
   7 conservation numbers.       
   8        I am sure that you know that from our point of view       
   9 the Draft Plan's recommendations are unworkable.  If      
 10 implemented, we are certain that the Southern California      
 11 economy, being one of the largest in the world, without a      
 12 reliable water supply will begin a rapid slip which will      
 13 uproot the social and economic structure of the entire      
 14 state.      
 15        Reliability of supply is what all other utilities      
 16 have provided and maintained.  Water is no different. We      
 17 support the Work Ethic but the Draft Plan's application is      
 18 too extreme.  More importantly, we know that California      
 19 has enough water for future needs.  It, unlike other      
 20 states, is not a water short state.  We simply need to      
 21 work on the distribution system.      
 22        Having written the above, may I emphasize that as      
 23 Chairman of the Southern California Water Committee, and I      
 24 speak for all our members, you have our full cooperation      
 25 in developing a plan that will be acceptable for the                                            
        
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  1 entire state.  We will work with you in developing that       
  2 Plan.       
   3        As far as the cross-examination issue which I have       
   4 not addressed here, we would be very willing to be       
   5 cross-examined on the materials that we present to you       
   6 when you open up the hearings.       
   7        Thank you very much, Mr. Chairman.       
   8        MR. MAUGHAN:  Thank you, Supervisor Flynn.       
   9        The next card I have is Jim Turner for the      
 10 Department of the Interior.  Mr. Turner has spent a few      
 11 hours with us in previous hearings.      
 12        MR. TURNER:  Just a few.  I can't find anything      
 13 better to do.      
 14        MR. MAUGHAN:  It is very difficult to find anything      
 15 better to do.      
 16        MR. TURNER:  Thank you, Mr. Chairman.      
 17        On December 19 I sent you a letter on behalf of the      
 18 Department of the Interior and I would just like to very      
 19 quickly summarize what we presented in that letter.      
 20        We requested two things, first, that there be      
 21 certain revisions to the Draft Salinity Control Plan      
 22 before the Phase 2 hearings begin; and secondly, that      
 23 those hearings not begin until at least six months after      
 24 the Board either revises the Plan as we have requested or      
 25 decides not to revise it and so advises the parties so we                                    
                
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  1 would have a six month period to fully prepare.       
  2        With respect to the revisions, we requested that       
   3 the export pumping restrictions be deleted as they are       
   4 implementation measures which should be addressed in Phase       
   5 3 and not as part of the Water Quality Control Plan       
   6 itself, and number two, that the Plan should be expanded       
   7 or modified to the extent that it include an explanation as       
   8 to the basis for including the flow objectives that are       
   9 not directly necessary for water quality itself but to      
 10 satisfy or enhance other beneficial uses.      
 11        With respect to the commencement of Phase 2      
 12 hearings we identified major issues which we feel have to      
 13 be studied and analyzed for the Department to prepare      
 14 itself to make the comments on the Plan and those include      
 15 the extent to which agricultural water can be conserved,      
 16 the extent to which conjunctive use of groundwater and      
 17 surface water can be achieved, the extent to which      
 18 operation of water facilities on the east side of the San      
 19 Joaquin Valley can be coordinated, the reasonableness of      
 20 the interior Delta leaching standards that are discussed      
 21 in the Plan, the reasonableness of the South Delta water      
 22 quality objectives, and there were a couple of others, but      
 23 each of these studies must address the cost of achieving      
 24 each of those objectives as well as the impact that each      
 25 would have on the operation of not only the Central Valley                                  
                  
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  1 Project, but also the other major water projects within       
  2 the state.       
   3        With respect to the Central Valley Project       
   4 primarily, we would also have to analyze the extent to       
   5 which any of those objectives or standards would impact       
   6 the Secretary's performance of the existing water service       
   7 contracts.       
   8        Now I think as Supervisor Flynn had mentioned, we       
   9 would be very interested to try and arrange to get further      
 10 information from the Board staff with respect to not only      
 11 the data that they had utilized, but the analyses that      
 12 they had done to develop the objectives and standards that      
 13 they have proposed.      
 14        I would not, I believe it was last Wednesday or      
 15 Thursday, I had finally received the packet of additional      
 16 documents and data that the staff had released in      
 17 accordance with the request at the workshops, and as I      
 18 say, this was just last week, so we are just in the      
 19 process of getting started on completing the data that we      
 20 need to complete these analyses.      
 21        Now in addition to the studies and analyses, I      
 22 mentioned earlier obviously another very very important      
 23 analysis that is going to have to be done is the extent to      
 24 which the Draft Salinity Control Plan would affect the      
 25 Central Valley Project's agricultural water service                                              
      
 21       
  1 contracts, M&I water service contracts, power generation,       
  2 recreation uses, as well as the studies or procedures and       
   3 activities that we had mentioned during Phase 1 that the       
   4 Bureau is currently pursuing to try and revise the impacts       
   5 of the Central Valley Project on the fishery resources and       
   6 to provide water for wildlife refuges.       
   7        Now we finally in our letter, and I would emphasize       
   8 here that we pointed out in order to perform these various       
   9 studies, it is going to be necessary to first of all      
 10 complete the preparation of a model of the San Joaquin      
 11 River system which, as we pointed out, is currently      
 12 scheduled to be completed in April, and it would most      
 13 likely be necessary for the Department of Water Resources      
 14 and the Bureau to sit down and revise the Sacramento      
 15 Valley model, the inner project model, that has been      
 16 utilized over the years to incorporate the new concepts      
 17 being addressed in the Draft Plan.      
 18        As a result, we had requested that the Department      
 19 be afforded at least six months in order to do these      
 20 studies and analyses.      
 21        MS. RUIZ:  Excuse me, sir.  Mr. Chair --      
 22        MR. MAUGHAN:  Yes, go ahead.      
 23        MS. RUIZ:  I have heard this and read it through a      
 24 number of the comments on the time needed to run these      
 25 various studies and models and the like.  On what do you                                  
                  
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  1 base your conclusions that the Board has to have such       
  2 detailed and in depth studies and models before you can       
   3 develop a basin plan?       
   4        MR. TURNER:  Well, Ms. Ruiz, I think it would be       
   5 more accurate to say not that the Board necessarily needs       
   6 the studies and analyses.  I think it would be extremely       
   7 helpful for your reasonable determination, but Phase 2 as       
   8 I understand it was to allow the interested parties to       
   9 submit their comments, suggestions and concerns with      
 10 respect to the Plan.      
 11        Now in order to develop those comments and concerns      
 12 and suggested modifications, it's going to be necessary to      
 13 go through these studies and analyses to determine what      
 14 the precise impacts are going to be and what the impacts      
 15 of various alternatives may be.      
 16        MS. RUIZ: I recognize you didn't have the benefit      
 17 of the Chair's guidance when you prepard your statement      
 18 today, but in light of the fact that we are in fact      
 19 separating our water quality functions from the imple-      
 20 mentation operations, are those kinds of implementation      
 21 issues in Phase 3.      
 22        How would you define the term, a reasonable      
 23 estimate, as stated within the Racinelli decision?  Do you      
 24 include the need for detailed studies and models?      
 25        MR. TURNER:  No, I think what you have done, Ms.                                  
                  
 23       
  1 Ruiz, is just anticipated the final statement that I was       
  2 going to make and that is that if in fact the Draft Plan,       
   3 the Draft Salinity Control Plan, is revised as we have       
   4 recommended to delete what we consider to be the       
   5 implementation matters from this Water Quality Plan, I       
   6 think it is fair to say that the period of time that that       
   7 Department is going to need to prepare its comments is       
   8 going to be shortened significantly.       
   9        MS. RUIZ:  Thank you.      
 10        MR. TURNER:  Well, with that, the only other thing      
 11 is I would finish by saying that there are representatives      
 12 here today that have come with me from both the Fish and      
 13 Wildlife Service and the Bureau of Reclamation and those      
 14 people would be available to respond to any questions that      
 15 any of the Board Members may have with respect to any of      
 16 these more precise details of the studies or analyses or      
 17 investigations that are going to have to be performed, and      
 18 the time frame that it would take to do each, but other      
 19 than that, I would just thank the Board for being afforded      
 20 the opportunity to make this presentation.      
 21        MR. MAUGHAN:  Thank you, Mr. Turner.      
 22        Let me ask a couple of questions.  One is, there      
 23 has been reference, and I certainly support it, that for      
 24 Phase 2 we probably need a very open process and will the      
 25 studies, to whatever depth they need be made, depending                                  
                  
 24       
  1 upon the final scoping, you will be working with the       
  2 Department and other parties to the extent that you can to       
   3 make available the findings that you arrive at from those       
   4 studies.       
   5        MR. TURNER:  That is correct, Mr. Maughan.  The       
   6 comments that would be presented as a result of these       
   7 studies obviously would be supported by the background       
   8 information which would be made available to all parties       
   9 to substantiate.      
 10        I should also point out that I know the Bureau of      
 11 Reclamation and I believe the Fish and Wildlife Service as      
 12 well, has already initiated discussions with other parties      
 13 and interested groups not only to advise the other groups      
 14 of the Bureau or Fish and Wildlife Service's reaction, but      
 15 to obtain the additional information and studies that are      
 16 going to be necessary to facilitate the presentation of      
 17 the ultimate analysis that is going to be done by the      
 18 Department.      
 19        There is a considerable amount of information that      
 20 has to be available.  For example, in running an operation      
 21 study of the Central Valley Project, obviously one of the      
 22 issues that has to be addressed is to what extent will      
 23 agricultural water conservation occur?  So before you can      
 24 actually get into a last run operation we need to know      
 25 agricultural demands and conservation.  That's being                                         
           
 25       
  1 discussed along with the Department of Water Resources and       
  2 all the rest of the parties to try to develop a model and       
   3 analyses of that underlying issue.       
   4        MR. MAUGHAN:  Well, for whatever reason it is       
   5 turned out, apparently there is a greater need than I even       
   6 foresaw, even with my long experience, of this interaction       
   7 between all of us, our staff, your staffs, and the other       
   8 parties' staffs, to understand more fully what all these       
   9 things mean to each other and I, certainly for one,      
 10 advocate that we do this prior to and during Phase 2 which      
 11 I think is uniquely set up to do that, and then we will      
 12 see what happens in Phase 3 after we try to find this      
 13 cooperation and understanding of one another during Phase      
 14 2 or in preparation for that.      
 15        MR. TURNER:  I think that would be very helpful,      
 16 Mr. Maughan.      
 17        MR. MAUGHAN:  Thank you.      
 18        Any other questions by Board Members?      
 19        Thank you.  If we need any of your compatriots we      
 20 will call on them a little later.      
 21        I will go on down through the cards right now.      
 22 Pete Chadwick.  Pete Chadwick, I think most everyone      
 23 knows, is Program Manager for the Department of Fish and      
 24 Game.      
 25        MR. CHADWICK:  Mr. Chairman and Members of the                                 
                   
 26       
  1 Board, it's a pleasure to have the opportunity to appear       
  2 before you today to present comments of the Department of       
   3 Fish and Game on your Draft Water Quality Plan for the       
   4 Bay-Delta.  Additional comments on the Plan will be       
   5 provided in Phase 2 of these hearings.       
   6        We recognize that it will be difficult to develop       
   7 consensus as to how to deal with the issuess addressed in       
   8 the Plan.  However, we believe that the Draft document       
   9 prepared by the Board staff is representative of the      
 10 issues discussed in Phase 1 of the hearings and is an      
 11 important first step toward the successful completion of      
 12 Phase 2 and Phase 3.      
 13        But while we don't pretend to have all of the      
 14 answers for this difficult task, our intent today is to      
 15 present some positive comments to assist the Board toward      
 16 an appropriate resolution of the issues.      
 17        Our comments start with some thoughts on the      
 18 planning process and fishery protection measures in the      
 19 Draft Plan.  These lead to our procedural recommendations      
 20 for accomplishing Phase 2.  We then go on to some      
 21 preliminary comments on other aspects of the Draft Plan      
 22 and close with a few comments on the Draft Pollutant      
 23 Policy document.      
 24        With regard to the planning process, your Draft      
 25 Plan presents a variety of measures for dealing with the                                     
               
27       
  1 allocation of California's water.  The furor of the last       
  2 two months obviously reflects the fact that those measures       
   3 conflict with the expectations of many people.  Yet we       
   4 have no doubt that proposed measures reflect a sincere       
   5 effort by the staff and Board to meet water needs       
   6 equitably.  The proposals need to be objectively       
   7 evaluated.  That is the purpose of Phase 2 and we believe       
   8 that purpose can be met based on the Draft Report.       
   9        The prohibition on ex parte communications have      
 10 clearly contributed to the furor of the last two months.      
 11 We urge you to seek ways to open up the process.  We      
 12 understand from your staff that you may set up task groups      
 13 to further technical evaluations of various aspects of the      
 14 Plan.  That would be constructive and all interests should      
 15 have the opportunity to participate.      
 16        A major feature of the Draft Plan is measured in      
 17 the spring to increase the protection of estuarine fishery      
 18 resources.  Spring is clearly the most critical time of      
 19 year for fishery protection, and implementation of the      
 20 proposed objectives would increase fishery resources      
 21 substantially.      
 22        On the other hand, those objectives would not      
 23 provide optimum protection, as the Draft Plan makes clear.      
 24 Hence, a thorough evaluation is in order.  It should      
 25 consider alternatives to the objectives, particularly in                                          
          
28       
  1 dry years, and secondary effects on fishery resources at       
  2 other times of the year and in areas upstream of the       
   3 estuary.  The evaluation of alternatives and secondary       
   4 consequences is important to making the Draft Plan a       
   5 satisfactory functional equivalent to an EIR.       
   6        The evaluations we describe depend partially on       
   7 operation studies to be run by the Department of Water       
   8 Resources and the Bureau of Reclamation.  As various water       
   9 entities have pointed out, operation studies are also      
 10 needed to evaluate effects of the objectives on water      
 11 project operations and consumptive uses.  The need for      
 12 more complete evaluation of those consequences is also      
 13 acknowledged in the Draft Plan and is essential to the      
 14 credibility of the process.      
 15        We urge the Board to see that the operation studies      
 16 are completed as quickly as possible and to provide for      
 17 input from the Board staff, ourselves and other parties      
 18 during the process.      
 19        Assuming that we are involved in the process, we      
 20 will be able to complete our analyses within 30 days of      
 21 the basic operation information becoming available.  Hence      
 22 no delay in the hearings beyond the time needed for the      
 23 water agencies to put the finishing touches on the      
 24 operation studies will be needed to accommodate our      
 25 analyses.                                                     
29       
  1        We urge everyone to keep in mind the Board's       
  2 description of this phase of the process as being designed       
   3 to attain a global perspective on the feasibility of       
   4 alternatives.  There will be a great temptation to explore       
   5 operational options in more detail than is essential at       
   6 this time.  The Board should keep a tight rein on the       
   7 process to avoid unnecessary delays.       
   8        Concerning procedures for Phase 2, we believe the       
   9 overall strategy should be to complete Phase 2 as quickly      
 10 as possible so we can get on to Phase 3.  Only then will      
 11 standards actually be modified and fishery problems      
 12 described in Phase 1 obviously indicate the need for      
 13 urgency.      
 14        We oppose reopening Phase 1 because:      
 15  1.  Your procedures do not require evidentiary      
 16 hearings for the water quality planning process;      
 17  2.  Most of the information appropriate for Phase   2      
 18 will not be needed in Phase 3; and      
 19   3.  The urgency of completing the process.      
 20        We see most of the evidence appropriate for Phase 2      
 21 as not being appropriate for Phase 3, as less detail is      
 22 required in Phase 2.  That is in keeping with your goal of      
 23 taking a global perspective in the water quality planning      
 24 process.      
 25        Some of the technical information, such as that on                                     
               
   30       
   1 salmon survival, will continue to evolve between Phases 2       
   2 and 3, so updates will be needed in Phase 3 anyway.  Those       
   3 updates could easily be structured to include anything       
   4 presented in Phase 2 which was essential to a water rights       
   5 decision.       
   6        We are confident that the Board can develop a       
   7 process for getting essential questions asked during Phase       
   8 2 short of a full scale cross-examination process.       
   9        We agree with the suggestion that Phase 2 be      
 10 structured by subject.      
 11        The most fundamental issue is probably the question      
 12 of whether water quality plans can properly include      
 13 objectives not directly related to pollutants or salinity      
 14 intrusion.  We believe the Water Code can be interpreted      
 15 to include such measures in procedures held pursuant to      
 16 the Porter-Cologne Act.      
 17        Certainly, the dividing line would be difficult to      
 18 define.  For example, much of what happens in the      
 19 entrapment zone to determine its suitability as fish      
 20 habitat is determined by physical processes associated      
 21 with partial salinity stratification.  Given that, would      
 22 outflow standards for striped bass be appropriate in the      
 23 water quality planning process.      
 24        If the Board decides to delete objectives not      
 25 related to salinity intrusion from the Plan, we urge that                                       
             
   31       
   1 you do so without conceding the legal issue.       
   2        If you do reach such a decision, we believe the       
   3 only valid reason for a lengthy delay before starting       
   4 Phase 2 is removed.  By that we mean that the flow and       
   5 diversion restriction objectives in the Draft Plan create       
   6 the need for additional operation studies before Phase 2.       
   7 If the operation studies are not run, we believe the       
   8 remaining material in the Draft Plan could be reviewed and       
   9 Phase 2 started relatively quickly.      
 10        MS. RUIZ:  Excuse me, in keeping with my view that      
 11 we should engage here in dialogue, I would urge you to      
 12 please weigh in your recommendations about how many other      
 13 issues beyond pollutants and salinity that we should      
 14 consider in the basin plan.  You might want to include in      
 15 that basin plan in light of the fact that these Plans must      
 16 then be approved by EPA and, you know, what are the pros      
 17 and cons of such approval and how do we ship it to EPA      
 18 conditioned on these matters which are uniquely within the      
 19 state's purview?      
 20        MR. CHADWICK:  That to a considerable degree      
 21 depends upon the legal interpretation of the Porter-      
 22 Cologne Act.      
 23        MS. RUIZ:  And what their jurisdiction is under the      
 24 Clean Water Act allegations.      
 25        MR. CHADWICK:  Turning to other sections of the                                     
               
   32       
   1 Plan itself, an important concept is the California Water       
   2 Ethic.  It is gratifying to see the explicit recognition       
   3 of fact that all needs cannot be met, and the call for the       
   4 whole State to institute measures to conserve and extend       
   5 water supply.  You have been criticized for allocating       
   6 shortages rather than providing for satisfying demands.       
   7 Such critics should recognize that the Board has been       
   8 allocating shortages for many years.       
   9        After all, it was more than 30 years ago that your      
 10 predecessor agency determined that there was not enough      
 11 water in the San Joaquin River to satisfy needs for      
 12 consumption and for salmon and decided that the salmon      
 13 should go.  There is a substantial list of other shortages      
 14 assigned to fishery resources.      
 15        While we endorse the concept of the Work Ethic, we      
 16 don't have the technical expertise to assist you in      
 17 determining the degree to which measures proposed in the      
 18 Plan are feasible.  We note, however, as with the energy      
 19 conservation issue of 15 years ago, resistance to changes      
 20 in the status quo are great.      
 21        Pressures from regulatory entities, such as      
 22 yourselves, had much to do with dramatic increases in      
 23 energy conservation, which have not had that much effect      
 24 on our quality of life.  The water industry deserves      
 25 credit for the progress they have made, but we hope you                                   
                 
   33       
   1 are willing to urge them and the people of California to       
   2 do more.  The Board's leadership is important in helping       
   3 make people aware that there is a relationship between the       
   4 amounts of water they use and the protection of other       
   5 uses, such as maintaining salmon runs in California's       
   6 rivers.       
   7        At this point we consider it necessary to take a       
   8 few moments to reiterate our position on the five-agency       
   9 salmon planning process as our perspective differs      
 10 somewhat from that described in the Draft Plan and the      
 11 reactions of some parties to the Draft.      
 12        We are committed to continuing the process as      
 13 described in our Exhibit 65 and expect to present results      
 14 during Phase 2.  We believe that process is consistent      
 15 with the subsequent passage of Senate Bill 2261 which      
 16 establishes a "policy of the State to significantly      
 17 increase the natural production of salmon and Steelhead      
 18 trout by the end of this century."      
 19        The process involves consideration of potential      
 20 measures throughout the Central Valley which could      
 21 increase the survival of juvenile salmon migrating      
 22 downstream.  That is one thing that needs to be      
 23 accomplished to achieve the overall goal of increasing the      
 24 production of naturally spawning salmon.  That in turn is      
 25 only one of our objectives in an overall salmon management                               
                     
   34       
   1 program.       
   2        We recognize a proper role for hatcheries and are       
   3 in fact actively considering two new hatcheries, one on the       
   4 Stanislaus River, primarily to support a larger base       
   5 population in the San Joaquin system, and one on the Upper       
   6 Sacramento River as a partial replacement for the       
   7 Tehama-Colusa fish facility, which has failed to attain       
   8 its objective.       
   9        From our perspective, a successful management      
 10 program will have to include measures to improve survival      
 11 in the estuary, but might include a combination of      
 12 measures in the estuary and upstream measures.  If the      
 13 upstream measures were presented as off-site mitigation      
 14 for impacts in the estuary, we would expect them to be      
 15 paid for by those causing the impacts and not by those      
 16 managing upstream areas.  Evidence that the measures will      
 17 be successful needs to be an element of the program.      
 18        We recognize that the Board cannot impose measures      
 19 upstream from the estuary on any party during the      
 20 Bay-Delta hearings.  Hence, any such component of a plan      
 21 emerging from the five-agency effort would have to be      
 22 entered into the record as a contractual commitment among      
 23 appropriate parties.      
 24        We are confident that the Board recognizes the fact      
 25 that an overall plan for salmon must involve water rights                                     
               
   35       
   1 beyond those being considered during the Bay-Delta       
   2 hearings.  One of our disappointments with the Draft Plan       
   3 is that it is silent on our recommendations as to how the       
   4 Board might deal with issues outside the estuary.  We will       
   5 cover that area again during our Phase 2 testimony.       
   6        We were also disappointed with the treatment of       
   7 recommendations concerning future water facilities in the       
   8 Draft Plan.  Substantial evidence indicates that       
   9 facilities need to be part of the solution to some      
 10 environmental problems.      
 11        While we don't believe the Board should designate      
 12 the facilities, criteria to be accomplished should be      
 13 identified and facility scheduling dealt with in the      
 14 implementation portion of the Plan.  Such a process was      
 15 used effectively for Suisun Marsh in the 1978 Plan and in      
 16 D-1485.      
 17        The fact that the water supply is insufficient to      
 18 meet all beneficial needs indicates that the existing      
 19 supply needs to be managed so water serves multiple uses      
 20 to the extent feasible.  A general principal for      
 21 facilities stemming from that is that water withdrawal      
 22 facilities should be located as far downstream as feasible      
 23 so a maximum amount of instream benefits are provided      
 24 before consumptive use takes place.  That would be a sound      
 25 criterion to place in this Plan.                                                     
   36       
   1        Obviously, it is not consistent with the recent       
   2 action concerning East Bay Municipal Water District's       
   3 proposed withdrawal of water from the American River.       
   4 Water rights for the Bureau  of Reclamation now being       
   5 revised by the Board could resolve that issue.       
   6        Going on to another subject, the Department will       
   7 comply with the request in the Draft Plan that we present       
   8 recommendations during Phase 2 concerning plants in the       
   9 Suisun Bay region pursuant to the California Endangered      
 10 Species Act.  We will carry out our responsibilities under      
 11 the Act and have assured representatives of the California      
 12 Native Plant Society that we will consult with them during      
 13 the process.      
 14            As a final observation on the Water Quality Plan's      
 15 contents, you have received many comments from the water      
 16 development side to the effect that the Plan give highest      
 17 priority to protecting fishery resources and allocate the      
 18 remaining supplies for export uses.  The relative number      
 19 of pages devoted to the two subjects tends to create this      
 20 impression, but it is an illusion.      
 21        A more objective interpretation is that reasonable      
 22 consumptive needs were defined and provided for in Chapter      
 23 6, and those determined the level of protection which      
 24 could reasonably be provided for fisheries.  Obviously, we      
 25 would prefer the priority that some water interests have                                      
                      
    37       
  1 accused you of using.       
  2       Turning briefly to the Pollutant Policy document,       
   3 we believe Phase 2 hearings could start now.  We support       
   4 the general approach proposed in the Draft, and recommend       
   5 that the Board move forward and take action on the       
   6 document.  We will have specific recommendations during       
   7 Phase 2.       
   8            Our comments will include:       
   9   1.  Data on fish catch declines and turbidity,      
 10 probably related to dredge activities in the Bay and      
 11 suggestions for methods for addressing this in the policy.      
 12   2.  Add dioxins as pollutants of concern along with      
 13 a suggestion that the Board develop an approach to deal      
 14 with these chemicals.      
 15           We will also recommend and support:      
 16  1.  Imposition of toxicity limits on discharges as      
 17 already begun by the San Francisco Bay Regional Board.      
 18  2.  Initiation of more biological monitoring      
 19 programs in the Bay-Delta, including discharge self-      
 20 monitoring programs.      
 21   3.  Establishment of water quality objectives for      
 22 pollutants of concern in the Bay-Delta area.      
 23            Thank you.      
 24            MR. MAUGHAN:  Obviously, Pete, you have taken a      
 25 great deal of time and effort to prepare your remarks.                                        
                    
   38       
   1 They are very carefully done and we appreciate them.       
   2       Do you have any questions?       
   3          Thank you, sir.       
   4           Next we have Tom Zuckerman, co-counsel for the       
   5 Central Delta Water Agency.       
   6          MR. ZUCKERMAN:  Thank you, Mr. Chairman and Members       
   7 of the Board.  I have a written statement which I have       
   8 distributed to you and I have some additional copies       
   9 which, if people need them, I will be happy to hand out to      
 10 them.      
 11          I am here today to present the comments of the      
 12 Central Delta Water Agency in response to the notice of      
 13 this workshop.      
 14          First, I want to describve for you what I believe      
 15 the scope of our participation in Phase 2 of these      
 16 hearings will be and explain to you our reasoning in      
 17 connection therewith.      
 18          The Central Delta Water Agency has consistently      
 19 taken the position in the D-1485 proceedings, the      
 20 litigation relating thereto, and in the pre-hearing      
 21 conferences and hearings comprising Phase 1 of these      
 22 proceedings, that the Board in creating a Water Quality      
 23 Control Plan for the Bay-Delta estuary should first seek      
 24 to establish water quality objectives to meet the      
 25 reasonable needs of the beneficial uses of water within                                      
                      
   39       
   1 the Bay-Delta estuary.       
   2        We see this as the Board's legal responsibility.       
   3 Whatever balancing is required of the reasonable needs of       
   4 the beneficial uses within the area of inquiry against       
   5 competing demands for that water supply outside that area       
   6 is a pure water rights issue.       
   7           In the context of these proceedings, the balancing       
   8 process is a Phase 3 issue.       
   9            It is clear in the Draft Water Quality Control Plan      
 10 that the staff has not adhered to this process.  The text      
 11 of the Plan, as well as the explanation provided by staff      
 12 during the previous workshop sessions have indicated,      
 13 contrary to the phraseology employed, that an attempt has      
 14 been made to balance the reasonable beneficial needs for      
 15 water within the Bay-Delta estuary against competing uses      
 16 of the supply in the upstream and export areas.  We see      
 17 this both as an error of law and judgment.      
 18           Let us examine how the Draft Plan has handled      
 19 agricultural uses within the Lower Delta area.  The Draft      
 20 Plan purports to set optimal levels of protection for      
 21 Lower Delta agricultural uses, but then proceeds to      
 22 describe a water quality regimen which:      
 23    1.  Stops on August 15 in the face of evidence      
 24 presented by this agency that significant irrigation      
 25 continues through the summer and fall in the Lower Delta;                                  
                                 
   40       
   1   2.  Is to be measured at insufficient interior       
   2 Delta sampling sites to insure general availability of an       
   3 appropriate water supply;       
   4   3.  And most importantly, describe water quality       
   5 for the cultivation of field corn which will eliminate the       
   6 production of field corn in any area where water of this       
   7 quality is to be supplied.       
   8 This is your staff's own conclusion as revealed by       
   9 the consultants' report prepared by Larry Dale and Michael      
 10 Hanneman which was supplied to me upon request during the      
 11 recent workshop sessions.      
 12           To reiterate, the Board's proper role in      
 13 establishing a Water Quality Control Plan is to describe      
 14 water quality which is reasonably necessary to serve      
 15 beneficial uses of the water, that is, to describe as      
 16 water quality objectives a water quality regimen that will      
 17 enable Delta farmers to continue to grow crops reasonably      
 18 suited to their lands without imposing upon them      
 19 management practices which will surely bankrupt them.      
 20       After the needs of Delta agriculture and other      
 21 beneficial uses within the Bay-Delta estuary have been      
 22 similarly established as water quality objectives, then a      
 23 water rights proceeding can be initiated to determine the      
 24 reasonableness of requiring other water rights holders,      
 25 given their respective priorities, to assist in meeting                                           
                 
   41       
   1 these objectives, whether entirely or in part.       
   2         In the Phase 2 proceedings, we will endeavor to       
   3 illustrate that the so-called "optimal levels of       
   4 protection" recommended in the Draft Plan for Delta       
   5 agriculture are instead Delta agriculture's death       
   6 sentence.  We are prepared to do that now because the       
   7 evidence is already in the record and in fact has been       
   8 confirmed in your consultants' report.       
   9        We are also prepared to show that water quality      
 10 objectives which will protect the Lower Delta agriculture      
 11 can be set which, given the more stringent needs of other      
 12 beneficial uses within the estuary, will not further      
 13 reduce the water supply otherwise available for upstream      
 14 and export uses.      
 15        At the same time we recognize that other parties      
 16 may need more time to prepare for the Phase 2 proceedings      
 17 and we do not object to a reasonable extension of the      
 18 hearing schedule to enable them to prepare themselves.      
 19        We do recommend, however, that the Board seriously      
 20 consider revision of the Water Quality Control Plan to      
 21 deal only with setting water quality objectives which are      
 22 reasonably necessaary to sustain beneficial uses of water      
 23 within the Bay-Delta estuary, reserving to the water      
 24 rights phase of these hearings the issues relating to      
 25 implementation of the water quality objectives in whole or                                   
                         
   42       
   1 in part as against the competing upstream and export       
   2 users.       
   3        I think I covered two of the three issues that you       
   4 talked about on the third.  Although you weren't present,       
   5 I did recommend during the earlier workshop sessions that       
   6 cross-examination probably should be allowed in the Phase       
   7 2 proceedings in order to avoid a confusion that you will       
   8 surely run into when you get to Phase 3.       
   9        MR. MAUGHAN:  Of all the parties, not just the      
 10 staff?      
 11        MR. ZUCKERMAN:  I think it is important for staff      
 12 because it is important to get into the record the basis      
 13 for drafting a Plan, but I'm not sure that will extend the      
 14 hearing scrope immeasurably the way you control the      
 15 hearings by allowing cross-examination of all parties; and      
 16 I think if you think it through, since most of that      
 17 evidence will probably be coming in in some form or      
 18 another in Phase 3, in the long run, I think you will be      
 19 saving time.      
 20        MS. RUIZ:  Does that mean a commitment on your part      
 21 that you won't seek any further cross-examination in Phase      
 22 3?      
 23        MR. ZUCKERMAN:  No.  I am trying to keep this      
 24 short.      
 25        MR. MAUGHAN:  Well, thank you, Mr. Zuckerman.                                    
                        
   43       
   1        MS. RUIZ:  I have a few questions of Mr. Zuckerman.       
   2 I appreciate your comments concerning where you feel the       
   3 implementation phase should go, but I think as you can       
   4 appreciate, I would like to have your views now, if you       
   5 would, on what you think should be contained within a       
   6 basin plan's program of implementation as required under       
   7 the Act?       
   8        MR. ZUCKERMAN:  Well, I am not sure I can give you       
   9 a complete answer, but what I am saying is I think the      
 10 first level of inquiry is what water quality objectives      
 11 need to be set in order to sustain beneficial uses within      
 12 the area at reasonable levels.  Then, once you have that,      
 13 you can say, okay, now, how are we going to do this, to      
 14 what extent given water rights fabric and priorities and      
 15 so forth, is it reasonable to call upon the rice growers      
 16 in the Sacramento Valley, or the City and County of San      
 17 Francisco with their Hetch-Hetchy project, or the two      
 18 major export projects, to help establish those conditions,      
 19 and to what extent is it not, and what else do we need to      
 20 do, whether it is recommend the construction of an      
 21 enlarged Shasta Dam or a Los Banos Reservoir or a Kern      
 22 County water bank or a groundwater program in Southern      
 23 California, water conservation in the cities, or whatever      
 24 it may be, what are the other things in addition to simply      
 25 the water rights aspect that we are talking about that are                                    
                        
   44       
   1 going to be necessary to see that those water quality       
   2 objectives are met.       
   3        MS. RUIZ:  But as you describe that particular       
   4 program of implementation, how do you do that evaluation       
   5 without any balancing?       
   6        MR. ZUCKERMAN:  I think you do ultimately is some       
   7 balancing, but the point that I am making here is that it       
   8 ultimately becomes a water rights issue.  A Water Quality       
   9 Control Plan in my way of thinking merely describes the      
 10 water conditions that need to prevail in order to sustain      
 11 beneficial uses.  You get to the point of whose water is      
 12 going to be used to do that, as a water rights matter.      
 13 And because of the peculiar situation that the Delta water      
 14 rights fit in, being not subject to regulation by the      
 15 Board in the same sense that the appropriative rights are,      
 16 that becomes a very important issue, it becomes a due      
 17 process issue.      
 18        MS. RUIZ: well, again I hesitate to say this early      
 19 in the situation, but I am looking at again you get      
 20 fixated only on water rights, and as long as we stay      
 21 fixated on water rights, we are not really looking at all      
 22 our other options that I'm sure our Regional Board Members      
 23 here today evaluate extensively when they go through basin      
 24 planning processes, and we shouldn't just preclude a      
 25 careful examination of those other options by again that                                     
                       
   45       
   1 overemphasis.       
   2        MR. ZUCKERMAN:  I agree with you completely.  My       
   3 criticism of the Board in the past has been in 1485       
   4 particularly, you always seem to be looking over your       
   5 shoulder and saying, well, now, if we say this, whose ox       
   6 is going to be gored, and I think you need to divorce       
   7 yourselves from that process in a non-threatening way in       
   8 the water quality control planning process with the idea       
   9 that the implementation of that may take place completely      
 10 or it may take place in stages or it may take place in      
 11 part or there may be recommendations for further      
 12 facilities or whatever the case might be sometime in the      
 13 future, but don't let the fear that, you know, women and      
 14 children are going to die from lack of water in La Habra      
 15 or something, interfere with the basic process.      
 16        MS. RUIZ:  Thank you.      
 17        MR. MAUGHAN:  Board Member Walsh.      
 18        MR. WALSH:  And conversely then through Phase 2 and      
 19 again in Phase 3 we, as unfortunately it was not as well      
 20 understood as I think it was to the Board, would also be      
 21 encouraging all the players in the audience to forward to      
 22 us all of the possibilities and opportunities, be they      
 23 programs, facilities, projects, whatever it might be, so      
 24 that we can have enough of a glossary so to speak to be      
 25 able to look at the different combinations.  Obviously,                                        
                    
   46       
   1 the greater number of opportunities, programs,       
   2 restructuring, reoperating facilities that we have, it's       
   3 going to make the very difficult decisions that Board       
   4 Member Ruiz referred to in terms of revisiting water       
   5 rights.  Hopefully we won't have to get to that point.       
   6        So by way of the initial discussion, by way of       
   7 expanding on that, it's an encouragement at least from one       
   8 Board Member that we get as many of those opportunities       
   9 out on the table because I as one Board Member am      
 10 convinced that depending on the mix and depending on the      
 11 sensitivity of all the players, some of whom have been      
 12 rather vocal in the first part of this hearing that there      
 13 are opportunities that show themselves and will unfold I      
 14 think pretty easily as we get into Phase 2.      
 15        Thanks.      
 16        MR. MAUGHAN:  All right.  Thank you, Mr. Zuckerman.      
 17        Trudy Schafer, member of the Board of Directors of      
 18 the League of Women Voters, after which we will have Mr.      
 19 Littleworth representing the State Water Contractors, and      
 20 then Mr. Holburt.      
 21        MS. SCHAFER:  Chairman Maughan and Members of the      
 22 Board, I appreciate your letting me make these comments to      
 23 you.      
 24        The League of Women Voters of California opposes      
 25 the reopening of Phase 1 of the Bay-Delta hearings, and                                    
                        
   47       
   1 urges the State Water Resources Control Board to proceed       
   2 with the Phase 2 hearings as soon as possible.       
   3        As you know, of course, the purpose of Phase 2       
   4 would be to receive evidence on the recommendations in       
   5 your two Draft documents.  We understand that testimony       
   6 given during Phase 2 will have the same weight as evidnce       
   7 received during Phase 1 and that further opportunity for       
   8 comments can be provided if the Draft documents are       
   9 substantially revised.      
 10        The league is concerned with process and with the      
 11 original policy set forth for the three phases of these      
 12 hearings.  We think the process adopted and practiced by      
 13 the Board during Phase 1 has been outstanding.  The Board      
 14 held extensive and exhaustive hearings throughout the      
 15 state in order to gather evidence representing all points      
 16 of view.      
 17        This provided for maximum public participation as      
 18 opinions were sought before any Draft documents were      
 19 written.  It is unusual, but highly commendable, for a      
 20 State agency to provide particpants with an opportunity      
 21 for such preliminary input; but it may also have meant      
 22 that the Board received an inordinate amount of      
 23 conflicting evidence, depending upon the particular      
 24 concerns of each party testifying.      
 25        A mountain of testimony was presented during Phase                                 
                           
   48       
   1 1 for evaluation by your Board and your staff.  In the       
   2 League's opinion, conflicting evidence does not provide       
   3 justification for continuing now with more Phase 1       
   4 hearings; nor does the strong disagreement held by some       
   5 with the Draft Report recommendations constitute a valid       
   6 argument for reopening this phase.       
   7        Rather, these differences should be aired openly in       
   8 the public arena as per your adopted process without undue       
   9 pressure from any faction.      
 10        The League urges that the Draft documents be      
 11 supported and accepted as written and used as a base for      
 12 further testimony.  Modification to the documents      
 13 undoubtedly will occur during the Phase 2 hearing.      
 14 However, changing your procedure now would mainly confuse      
 15 and thwart the process and delay the clarification of      
 16 issues.      
 17        The League has always supported the authority of      
 18 the Water Board to protect water quality in its water      
 19 rights decision making role.  Phase 2 hearings will lead      
 20 to final reports which reasoanbly balance all beneficial      
 21 uses in the estuary.      
 22        This is the paramount goal of the Board's process      
 23 and is especially true in Phase 2.  The Board now has the      
 24 authority for water quality planning on a broader scale      
 25 than ever before.                                                             
   49       
   1        We urge the Board to fully utilize its authority       
   2 which we think will provide for the preservation of the       
   3 estuary as well as for the reasonable balancing of demands       
   4 for water from the estuary.       
   5        The league will comment specifically on the Draft       
   6 documents during one of the Phase 2 hearings.  While we       
   7 also question some of the recommendations, we applaud the       
   8 introduction of a new Work Ethic and the Report's stress       
   9 on water conservation.      
 10        We look forward to the start of the Phase 2      
 11 hearings soon and to the continuation of your Board's open      
 12 democratic process.  We commend the Board for all the      
 13 public participation these hearings have allowed.      
 14        MR. MAUGHAN:  Thank you very much.      
 15        Any questions?      
 16        MR. WALSH:  A quick one.  I guess the use of the      
 17 word "soon" is what I react to more than anything else,      
 18 and although the Board got considerable criticism, when in      
 19 fact if you look at the last two or three years in how      
 20 this Board has dealt with other issues, whether it is      
 21 Kesterson, sources of drinking water, point of applica-      
 22 tion, whatever; in each of those areas, the Board      
 23 originally conceived of a time schedule that after getting      
 24 into the actual issues themselves, being privy to new      
 25 research and information that comes up during the course                                  
                          
   50       
   1 of the initial hearings, it was obviously necessary to       
   2 move those schedules back in order to make sure we got all       
   3 applicable information before us.  And I think honestly       
   4 that the Board took what time was needed and did a pretty       
   5 good job.       
   6        I can recall just recently sources of drinking       
   7 water, we originally planned on having one hearing which       
   8 was an important issue, particularly as it related to       
   9 agriculturally related issues and we wound up holding      
 10 three additional, two additional hearings and three      
 11 additional workshops to sort that one out.      
 12        And now presently we are into the point of      
 13 application, the second of those policies, both related to      
 14 Proposition 65, and it's pretty clear that the one or two      
 15 hearings originally conceived of are not going to be      
 16 sufficient, and we will be holding, I think, a third or      
 17 fourth sometime here in the next couple of months.      
 18        So I am saying within a reasonable range oftentimes      
 19 the subject matter and the information that comes through      
 20 the course of the initial hearings warrant a little      
 21 additional time, certainly not unreasonable delays or      
 22 times, but I mention that as kind of a historical      
 23 prospective, at least in terms of this Board Member's      
 24 opinion, that we are probably going to need some      
 25 reasonable period of time to make sure we get the                                            
                
   51       
   1 opportunity to hear the complete testimony of all the       
   2 parties.       
   3        MS. SCHAFER:  I understand your statement.  I       
   4 believe that that is not a problem with the League, but we       
   5 do feel that, as I said, objections to the Draft Plans       
   6 that have been proposed do not in and of themselves make       
   7 it necessary to revise the process and we feel that       
   8 process needs to be protected.       
   9        MR. WALSH:  I understand.      
 10        MR. MAUGHAN:  Thank you again.      
 11        Arthur Littleworth for the State Water Contractors      
 12 and then next will be Myron Holburt and then we will take      
 13 a break.      
 14        MR. LITTLEWORTH:  Thank you, Mr. Chairman and      
 15 Members of the Board.  I am representing the State Water      
 16 Contractors generally.  We also have some individual      
 17 contractors, Metropolitan and the Kern County Water Agency      
 18 and some of the agricultural contractors that will speak      
 19 briefly on some of the parts of the plan which deal      
 20 particularly with agriculture.      
 21        We filed a petition that was some 27 pages long      
 22 which I don't propose to be going through.  In that      
 23 petition we tried to outline the reasons for requesting      
 24 some additional time.  We also dealt with some of the      
 25 underlying policies that we thought undergirded the Plan                                    
                        
   52       
   1 and were in fact not appropriate.       
   2        Let me today, however, just concern myself with,       
   3 except as you may have questions, some of the more       
   4 technical procedural things that you have asked about.       
   5        So far as the timing is concerned, our petition       
   6 requests a delay of between six and twelve months.  The       
   7 petition makes it clear that that depends upon the       
   8 operational studies which both the Department of Water       
   9 Resources and the Bureau of Reclamation are intending to      
 10 make and they have both indicated that those will take in      
 11 the order of six months.  So that's the underpinning of      
 12 our minimum requirement.      
 13        Once operational studies are completed, obviously      
 14 we have to have some additional time in which to analyze      
 15 the information and make some use of it.      
 16        MR. MAUGHAN:  Mr. Littleworth, maybe you want to      
 17 comment later, but as Mr. Turner said for the Interior      
 18 Department, if there is a change in the scoping there may      
 19 be a little different situation as far as the Bureau is      
 20 concerned, so if you would comment on that a little bit      
 21 later, I would appreciate it.      
 22        MR. LITTLEWORTH:  Well, Mr. Chadwick, for instance,      
 23 said in essence if you were to really change the Plan in a      
 24 dramatic way and take out the flow and export limits, then      
 25 there wouldn't be a need for those kinds of operational                                       
                     
   53       
   1 studies.       
   2        MR. MAUGHAN:  And that would have some bearing on       
   3 what you are saying right now?       
   4        MR. LITTLEWORTH:  Let me tell you how we came to       
   5 this conclusion.  Our experts met within the first three       
   6 or four days after the Plan had come out and our modeling       
   7 people and our engineering people and people who are       
   8 familiar with the operation of the system, said this Plan       
   9 will not work.  Now at that point they didn't have studies      
 10 to show that, but that was their initial professional      
 11 reaction.      
 12        If you recall, the underpinning of the Plan is that      
 13 no water is going to be lost to cities and farms, that      
 14 water which you are precluded from taking early in the      
 15 year can in fact be recaptured at later times and there's      
 16 not going to be a loss of water, and our people think      
 17 that's not true.      
 18        Now in order to demonstrate that very fundamental      
 19 foundation of the Plan, they said, we are going to have to      
 20 do some substantial operational studies.  They have been      
 21 giving us these time limits of six months or so, so we      
 22 start with whatever it truly takes, and we can't control      
 23 that.  We do think it is absolutely essential that      
 24 appropriate operational studies be made before we go any      
 25 further to see that some of the fundamental premises, if                                     
                       
   54       
   1 the Plan is going to stay this way, that some of these       
   2 fundamental premises are in fact accurate, or if they are       
   3 not, to what extent they are not.       
   4        The Department of Water Resources has suggested       
   5 that maybe we should do this in two stages, that there       
   6 should be an additional workshop after some limited period       
   7 of time to see where the operational studies are, and how       
   8 far they have gotten along and what they have shown and       
   9 that might very well be an appropriate intermediate kind      
 10 of step.      
 11        Now let me address myself a little bit to the      
 12 nature of Phase 2 and how we ought to be proceeding from      
 13 here on out.  In our judgment we have been in a quasi-      
 14 legislative mode from the beginning.  We are developing a      
 15 Water Quality Control Plan which we think is a quasi-      
 16 legislative act.  We think that we need to keep it that      
 17 way, that in fact the underlying policies which go into      
 18 that kind of a plan can't really be divorced from the      
 19 political considerations, economics, from social impacts,      
 20 that it in fact is a policy making legislative kind of      
 21 approach where it is particularly important that the Board      
 22 direct the policies that are going to control how the plan      
 23 and how the staff ultimately develop the Plan.      
 24        Looking back on it through the use the ex parte      
 25 rule, and I don't think that was essential to have been                                        
                    
   55       
   1 installed in the beginning, and I remember that there was       
   2 considerable question about that and in fact it was       
   3 finally watered down somewhat, but the truth of the matter       
   4 is it has been very rigidly adhered to, and looking back       
   5 on that, it was probably a mistake to isolate both the       
   6 staff and the Board Members from an opportunity to discuss       
   7 necessary operational kinds of studies and considerations       
   8 with the Department of Water Resources and the Bureau, and       
   9 with others.      
 10        I don't think when the Board inserts procedural      
 11 restrictions to try to get reliable information like      
 12 taking testimony under oath, permitting questions and so      
 13 forth, I don't think that those procedural precautions,      
 14 which are really designed to try to get accurate      
 15 information on which a plan can be based, I don't think      
 16 those do convert the process to a quasi-judicial process      
 17 and I don't think you could if you wanted to.  There are      
 18 some cases which really indicate that it's the nature of      
 19 the process which controls whether it is quasi-legislative      
 20 or quasi-judicial.  It's not the procedural rules under      
 21 which the hearings are connected.  You could obviously      
 22 have hired an engineering firm to develop this Plan and      
 23 send it out and then we would be starting today from a      
 24 Plan which they would be bringing in to us.  We have gone      
 25 at this much differently, but the nature of the plan is                                          
                  
   56       
   1 still the same.  The procedures don't really change that.       
   2        So we believe that the ability to continue to be       
   3 able to take testimony under oath, at least technical       
   4 information, and to have the ability to question people,       
   5 and I think it is important, although it may have to have       
   6 different rules for staff, I think it is obviously       
   7 important that we understand what the staff had done and       
   8 how they have reached some conclusions, how they have gone       
   9 about their work.  We are finding out some of that      
 10 informally.  Maybe we will find out everything we need to      
 11 know informally, I'm not sure, but the ability to      
 12 understand what the staff has done is essential as we go      
 13 ahead.      
 14        I think that probably with the kind of information      
 15 that is really still needed, which we didn't have in Phase      
 16 1 on whether this Plan will work, the kind of operational      
 17 constraints that may exist, whether the kind of      
 18 conservation which is envisaged really is practical,      
 19 whether the kind of transfers from agriculture which make      
 20 up a major portion of Southern California's water supply      
 21 are really practical, and whether they should occur or      
 22 whether that water saved in the San Joaquin Valley should      
 23 go to offset overdraft there rather than to be going out,      
 24 and that's not the whole list, but that kind of thing is      
 25 going to take some additional technical evidence and I                                       
                     
   57       
   1 think when that is all in we probably ought to end up with       
   2 a new draft of the Plan which comes out and then after       
   3 that begin to take the usual kind of comments.       
   4        Vice Chair Ruiz asked Mr. Zuckerman about the Plan       
   5 of implementation and I think that I basically agree with       
   6 what Tom was saying.  The Plan of implementation right now       
   7 is very sketchy.  It's a page or two.  I would see in the       
   8 implementation prortion of the Plan a much greater role       
   9 for physical facilties, what is really needed, what is      
 10 incurred and this Board has really a great opportunity I      
 11 think to give the public some of the kind of physical      
 12 facilties that we have not been able to get done in the      
 13 state up to this point, and I was interested to see Pete      
 14 Chadwick make that same kind of report, that there needs      
 15 to be a greater role in the physical facilities in there.      
 16        And some of the other kinds of things, transfers,      
 17 conservation, these types of things need to be spelled out      
 18 in implementation and perhaps staged.  Maybe what we are      
 19 really looking at is if you can accomplish certain kinds      
 20 of changes through transfers, through conservation, if the      
 21 Legislature changes the plumbing code for the state, for      
 22 everybody in the state to require certain kinds of      
 23 changes, and there really are savings, then those savings      
 24 are dedicated to whatever function that the Plan sets      
 25 forth.                                                             
   58       
   1        We may very well, it seems to me, be looking at       
   2 some kind of a staged program of implementation which       
   3 depends on accomplishing certain goals, and if we       
   4 accomplish those goals, then the water is devoted to       
   5 certain kinds of purposes.       
   6        Those are the points that I think I wanted to say       
   7 in answer to your question.  I would be happy to respond       
   8 to anything further.       
   9        MS. RUIZ:  Mr. Littleworth, in your description of      
 10 the Plan of implementation, do you see that solely as the      
 11 Board's Plan of implementation?      
 12        MR. LITTLEWORTH:  Well, a Water Quality Control      
 13 Plan is supposed to have as part of it a Plan of      
 14 implementation so that in that sense it finally becomes      
 15 the Board's Plan, but no, I think that we should be giving      
 16 you our proposals and ideas so that those could go in      
 17 there and --      
 18        MS. RUIZ:  But what I am referring to, is it      
 19 possible that a good rounded Plan of implementation spells      
 20 forth what the Board is prepared to do to help reach our      
 21 objectives but also what is available under our hearings      
 22 for the parties to undertake.  If they choose not to, they      
 23 can choose to do any other thing but it arrays some of the      
 24 options available for the parties in order for them to be      
 25 able to decide what they will do to meet the standards.                                      
                      
   59       
   1        MR. LITTLEWORTH:  No, I think a program of       
   2 implementation can be broader than just what the Board       
   3 does, including the State Legislature, so I think your       
   4 program of implementation in fact needs to be looked at       
   5 broadly, what the Board can do with its own authority,       
   6 what the Regional Board can do, what the State Legislature       
   7 perhaps should be urged to do, what the parties should be       
   8 urged to do.       
   9        MR. MAUGHAN:  Mr. Samaniego.      
 10        MR. SAMANIEGO:  Mr. Littleworth, when you were      
 11 describing the time required perhaps to reflect on the      
 12 operational plans, perhaps six months to twelve months,      
 13 were you suggesting, and I trust that you weren't, that      
 14 after the operational studies are made, then you would      
 15 receive that data, reevaluate them and then make your      
 16 comments to us one way or the other as to how they affect      
 17 your interests; instead of perhaps what might be time      
 18 saving, if you would make yourselves available to be a      
 19 part of that operational review so that the assumptions      
 20 that are made or discussed that come out of there with      
 21 some form of unanimity or at least soften to a degree that      
 22 makes them plausible to more interests.      
 23        MR. LITTLEWORTH:  We are certainly prepared to work      
 24 with everyone along the way, be it the Board staff, the      
 25 Bureau people in their modeling techniques, the Department                               
                             
   60       
   1 of Water Resources.  We have worked very closely with them       
   2 all along, and we are not trying to establish the longest       
   3 time schedule possible.       
   4        Our position basically has been that we need a       
   5 reasonable period of time after operational studies are       
   6 completed, and the figure we have been getting was roughly       
   7 six months for that.  But if that can be changed in some       
   8 way, certainly we will try to cooperate and be responsive.       
   9        MR. SAMANIEGO:  Thank you.      
 10        MR. MAUGHAN:  Mr. Walsh.      
 11        MR. WALSH:  Back to the discussion on the Plan of      
 12 implementation and the role of the Legislature and I think      
 13 the word "opportunity" is probably the most important word      
 14 you used, knowing the problems in the past, particularly      
 15 in the last 20 years with the Legislature being able to      
 16 agree on any type of format based legitimately on their      
 17 constituencies, whereas you have a tremendous opportunity      
 18 on both sides of the issue through this process of trying      
 19 to work out whatever Plan of Implementation comes.  Sure      
 20 makes it a heck of a lot easier on the Legislature if in      
 21 fact we can get to some kind of general agreement.      
 22 Certainly, you know, we aren't going to knock off 100      
 23 percent, but anything above 75 or 80 percent is a lot      
 24 closer than we have been in a long time here in the state.      
 25        MR. LITTLEWORTH:  It would be a very great thing to                                
                            
   61       
   1 come out of these hearings, and I think we would all be       
   2 very pleased and proud of our efforts if we were able to       
   3 come out with something that maybe the Legislature could       
   4 pick up and perform its role and get us out of the Mexican       
   5 standoff we have been in for so long a period of time.       
   6        MR. WALSH:  And then, if in fact the agreement of       
   7 the Legislature does not come forward, certainly after       
   8 this very lengthy process, the Board still has the       
   9 opportunity to revisit water rights or do any of the bad      
 10 things that has got everyone stirred up, but if you look      
 11 at it from purely a procedural standpoint the State has      
 12 not had this opportunity ever as it relates to hopefully      
 13 making some progress on water issues, period.      
 14        And I am happy your comments stimulated this      
 15 discussion.      
 16        MR. MAUGHAN:  Board Member Finster.      
 17        MR. FINSTER:  I would like to ask one question.      
 18 Since the report has been issued there has been      
 19 considerable controversy regarding the statement in there      
 20 regarding the Edmonston Pumping Station.  I personally      
 21 confirm the statement the Chair made regarding this.  I      
 22 don't think it is going to occur.  I have some question      
 23 whether legally we can do it, but I would appreciate any      
 24 comments you may have on it.      
 25        MR. LITTLEWORTH:  I was not one that was terribly                                  
                          
   62       
   1 excited because number one, I didn't think you would do it       
   2 and number two, if you did do it, we would turn you over       
   3 in court.  So that has not been a great concern of mine,       
   4 although I was pleased to hear the Chairman's comments.  I       
   5 wrote that down and I am happy to see we have a second       
   6 vote.       
   7        Thank you.       
   8        MR. FINSTER:  I appreciate the comment.       
   9        MR. MAUGHAN:  All right, Art.  The only thing I am      
 10 not sure I am clear on concerning the time needed,      
 11 particularly for operation studies, if per chance the      
 12 scoping was done differently so that the exports and flows      
 13 were primarily in Phase 3, would you feel that you need      
 14 all these operation studies prior to entering Phase 2?      
 15        MR. LITTLEWORTH:  They would certainly be      
 16 different.  I can't answer that question, Mr. Chairman.  I      
 17 think I would have to talk with our engineering people      
 18 about that, but surely they would be different.      
 19        MR. MAUGHAN:  That is what Mr. Turner said also, I      
 20 think.      
 21        MR. LITTLEWORTH:  Yes.      
 22        MR. MAUGHAN:  Maybe Mr. Holbert can address that.      
 23        Wait a minute, I have a further question.      
 24        MS. RUIZ:  Just one further question.  Then how are      
 25 you reading the words "reasonable estimate" within the                                      
                      
   63       
   1 Racinelli decision?  Would it be safe -- do you see that       
   2 there's sufficient in the record within Phase 1 to       
   3 constitute enough material for the Board to make a       
   4 reasonable estimate?       
   5        MR. LITTLEWORTH:  I suspect there is enough in the       
   6 record for the Board to do virtually anything it wants to       
   7 do.       
   8        MS. RUIZ:  Thank you.       
   9        MR. LITTLEWORTH:  There's a tremendous amount of      
 10 evidence in there.      
 11        MS. RUIZ:  Thank you.      
 12        MR. MAUGHAN:  All right.  We will have Mr. Holbert      
 13 after which I am going to give you a 15-minute break.  For      
 14 this size audience I know 15 mintues is not very long to      
 15 get out and get back in, but I would like to go probably      
 16 to 12:30 before breaking for lunch, and come back after      
 17 that.      
 18        MR. HOLBURT:  Thank you.  I am Myron Holburt,      
 19 Assistant General Manager of Metropolitan Water District      
 20 of Southern California.  I am pleased to be here this      
 21 morning and comment on the items that you raised earlier      
 22 to the staff Draft Report, and we recognize that this is a      
 23 Draft Report and subject to change, but I don't think you      
 24 should underestimate the impacts that Report had with      
 25 respect to the area we serve.  We serve 14-1/2 million                                       
                     
   64       
   1 people and are looking forward to another 4 million people       
   2 in the next 20 yeaars.       
   3        This Report, if it were carried out even close to       
   4 the way that it is presented, it would mean that Southern       
   5 California could no longer have a reliable water supply.       
   6 This I think would apply to the other areas in the San       
   7 Francisco Bay area and the San Joaquin Valley that get       
   8 water from the State Water Project.       
   9        So we think radical changes have to be made.  I      
 10 missed your opening comments about the 1985 restriction at      
 11 Edmonston, but you would still have to change any type      
 12 restrictions indicated in this Report at the Delta, not      
 13 only at Edmonston, to have the possibility of a reliable      
 14 water supply from the State Water Project.      
 15        As far as the issues that have to be addressed, and      
 16 I am less concerned about procedure than I am about      
 17 substance.  There are some very major issues that have to      
 18 have major changes in order to be an effective program and      
 19 one that you can get some kind of consensus with within      
 20 the state and perform the functions that are necessary.      
 21        We just see this as just radically affecting      
 22 everyone's life style in this whole state and we don't see      
 23 where you have the evidence or the information to arrive      
 24 at the kind of report that you did.      
 25        With respect to the deliveries in '85, we have                                            
                
   65       
   1 covered that, but I think you also have to look very hard       
   2 at the estimates that you made on the conservation to be       
   3 expected.  That's a second major issue that has to be       
   4 addressed.  There is no evidence for the kind of radical       
   5 assumptions that were made in water conservation in       
   6 Southern California.  We are very experienced in that area       
   7 and it is a very dynamic one.  You have changes going both       
   8 ways.  You have changes that lead to additional       
   9 conservation, you have changes that show that additional      
 10 water is being used.      
 11        All you have to do is go down to your hardware      
 12 stores and see how many people are putting in automatic      
 13 sprinkling systems and we know from experience, sprinkling      
 14 systems themselves use 20 percent or more than just hand      
 15 watering and automatic sprinkling systems use another 20      
 16 percent.  So when you get in that area, people go in and      
 17 they remodel houses, they put in new dishwashers and other      
 18 water using appliances, and all those have to be factored      
 19 in.  You don't just start with something today and assume      
 20 everything is going to go in one direction. So that's      
 21 another area you are going to have to take a very hard      
 22 look at.      
 23        The issue of transfers assumes that Southern      
 24 California is going to get these transfers from Imperial      
 25 Valley and the San Joaquin Valley.  We don't even know                                   
                         
    66       
   1 what you are talking about in the San Joaquin Valley.  We       
   2 have looked there.  We don't see anything close to those       
   3 numbers.  In Imperial valley, it took us five years to get       
   4 agreement for 100,000 acre-feet a year.  We don't have       
   5 enough lifetime around here at that rate to get the kind       
   6 of water you are talking about.       
   7        The issue of water quality makes one kind of       
   8 incredulous.  You say nothing can be done with respect to       
   9 trihalomethanes, the precursors that are formed in the      
 10 Delta area and we just have to go and treat the water.      
 11 That's a radical departure from what this Board had done      
 12 in other situations.      
 13        The whole issue of April-July discharges and where      
 14 you cut back Southern California into a situation and      
 15 increase the amount of water to go into the Bay on the      
 16 assumption that it is going to improve habitat.      
 17        I was late for a plane today.  I had to wait for      
 18 about an hour and a half for some kind of equipment change      
 19 and I was thinking how lucky the world is that the State      
 20 staff wasn't around when dinosaurs were threatened because      
 21 what would they do with dinosaurs if they went through a      
 22 period where they were losing their ability to reproduce      
 23 themselves.  No one knows what the problems were, but you      
 24 just threw water at it and that would be the solution.      
 25        MR. WALSH:  Are you maintaining that more water                                    
                        
   67       
   1 would have made dinosaurs more sexually active?       
   2        MR. HOLBURT:  No, but I think there is the same       
   3 amount of evidence that throwing water to the fish       
   4 increases the fish.       
   5        So you don't want to leave me alone waiting for       
   6 planes.  I get pretty productive.       
   7        The other key element I think you have to look at       
   8 is this whole issue of ignoring the approach by the State       
   9 Water Contractors that you can get a resolution of these      
 10 issues, at least for the next 20 years, by applying      
 11 management to fisheries as we do to every other aspect of      
 12 water resource development, and your Report just threw out      
 13 that as beyond your ability to look at issues outside of      
 14 the estuary, and that's incomprehensible.      
 15        It's got to be a major feature of working out how      
 16 we use the water resources in this state.      
 17        Another item is the matter of facilities that you      
 18 were discussing somewhat with Art Littleworth a little bit      
 19 ago.  You have got to get into that.  You get into almost      
 20 every other area, but you are very silent with respect to      
 21 that, just one paragraph in the Report as I recall alluded      
 22 to additional facilities.      
 23        The only encouragement I see is that I think the      
 24 Board and the staff does seem very willing to work with      
 25 others and I think that's a very positive approach.                                              
              
   68       
  1 That's the objective we look forward to having a chance to       
   2 work with your staff and your Report and come out with a       
   3 product that's acceptable to the majority of the people in       
   4 this state and we look forward to that opportunity.       
   5        Now I think that is the essence of my remarks.       
   6        Mr. Roberts has some legal and procedural issues       
   7 that he wants to discuss and he will come up shortly.       
   8        MR. MAUGHAN:  All right.  Maybe a couple of       
   9 questions by the Vice Chair.      
 10        MS. RUIZ:  Mr. Holbert, please have patience.  Is      
 11 there another way you could rephrase the testimony so that      
 12 I could understand it?      
 13        MR. HOLBURT:  I think the thrust of my testimony is      
 14 that there are a number of major issues that have to be      
 15 addressed and I don't worry too much about the final      
 16 result, whether you do it by putting aside this Draft      
 17 Report, if it is another one, or do it by modifying the      
 18 Report, but I listed about six or seven major issues that      
 19 have to be addressed that need additional study by this      
 20 Board and testimony.  That's the essence.      
 21        I can go through and repeat those if you want, but      
 22 that's the essence of my testimony.      
 23        MS. RUIZ:  Thank you for being so patient.      
 24        MR. MAUGHAN:  Board Member Walsh.      
 25        MR. WALSH:  Myron, I think to some degree your                                      
                      
   69       
   1 concerns are consistent with a lot of the concerns we       
   2 heard from Phase 1 and that's not surprising.  I think       
   3 some of them are legitimate.  Frankly, I think the export       
   4 limitation over the Tehachapies has some legal problems       
   5 with it, but it is only a first shot and in fact you will       
   6 be, I mean through the course of this discussion today,       
   7 and when the Board sits down to deliberate as to just what       
   8 form and structure Phase 2 will have, the concerns you       
   9 raise particularly as they relate to the data and research      
 10 developed by staff, we are certainly going to have an      
 11 opportunity to be cross-examined and they would stand or      
 12 fall based on that cross-examination in defense of the      
 13 staff.      
 14        So it is not like that whole issue had been      
 15 concluded.  I mean there will be ample opportunity for      
 16 such questioning of staff.      
 17        And the only other point I wanted to mention just      
 18 very briefly, then I will let you call your other      
 19 participants, and that's dealing with, you had a concern      
 20 about the length of time it took in freeing up the first      
 21 100,000 acre-feet from Imperial, and in the future the      
 22 mechanism for transferring water if possible from the      
 23 Central Valley, now in use or outright purchaser or      
 24 whatever, don't you think there is some opportunity      
 25 through the Plan of Implementation for those issues to be                                   
                         
   70       
   1 addressed?       
   2        And the first thing that came to my mind is, yes,       
   3 water transfer, water sales with a raise two or three       
   4 years ago, but no one took any time to figure out what the       
   5 deficiencies were in the legislation and in the existing       
   6 laws.       
   7        So quite possibly that will be one of those things       
   8 offered in the mix to try to resolve just what the       
   9 problems are with these transfers and what pieces of      
 10 legislation needs to be addressed and passed in order to      
 11 fix some of those problems where your transfers, your      
 12 movements of water supplies depending upon who is willing      
 13 to sell and who is willing to buy.      
 14        So, you know, I'm not surprised, and I think your      
 15 concerns are sincere and legitimate, but there are also      
 16 opportunities coming up very soon that you are going to      
 17 have to fully explore those.      
 18        MR. SAMANIEGO:  Mr. Chairman, I have a comment.      
 19        Mr. Holbert, when you were describing your      
 20 impressions you said that you were more interested in the      
 21 outcome rather than the process, and that kind of disturbs      
 22 me a little bit.  We need the efforts of your interests      
 23 involved in the process.  The process will fail if it      
 24 doesn't get that kind of support and during that process      
 25 we need you and your interests to be there to go through                                   
                         
   71       
   1 what facilities may be available, how soon they will be       
   2 available, and to what extent they play into the       
   3 assumptions of the operations that will examine the very       
   4 outcome that you find so displeasing.  You have to turn on       
   5 to the process in order for this issue to have some       
   6 equitable resolution other than wait for some conclusion       
   7 and then stand and say that it is unacceptable.       
   8        MR. HOLBURT:  I'm sorry.  I probably misspoke       
   9 myself.  I was just saying when I was going to testify      
 10 individually I was going to focus on the issues rather      
 11 than the process.  We have others -- Art Littleworth and      
 12 Jamie Roberts were going to discuss the process.      
 13        I agree with everything you said.  We are going to      
 14 be involved in every aspect of it and it is important how      
 15 it is structured, there's no question about it.      
 16        MR. SAMANIEGO:  Thank you very much.      
 17        MR. FINSTER:  I would like to ask Myron one      
 18 question.  In your letter to the Board dated December 16,      
 19 you indicated, it is not signed by you, but it is from      
 20 your agency, you indicated a 13 month delay request.  You      
 21 heard some of the testimony but you didn't hear all of it      
 22 probably from Mr. Zuckerman and from Art indicating that      
 23 if the Plan was changed if the procedure were changed,      
 24 that this time frame would not be required.      
 25        Do you agree with that statement?                                                          
  
   72       
   1        MR. HOLBURT:  That was just a first shot at it.  I       
   2 think we will work together and we can work out some ways       
   3 of expediting it.       
   4        MR. FINSTER:  Do you agree that if nothing else has       
   5 happened the Report has brought the attention of the water       
   6 problem to the people in Southern California?       
   7        MR. HOLBURT:  Yes, not in the way we would have       
   8 liked to have seen it though, I have got to tell you that.       
   9 You know, I think one thing that Report showed to me, it      
 10 is hard to pick out one thing, but there was no      
 11 understanding as to what you need to serve a major urban      
 12 area and what you need is reliability, and it was all      
 13 based on estimates that have no basis that you can rely      
 14 upon.  You can't operate or even plan on that kind of      
 15 framework.  We don't need legislation relative to water      
 16 transfers.  We have been working on them for several      
 17 years, quite a few, other than Imperial, and in each case      
 18 it's the problems inherent in any particular one that make      
 19 it difficult.      
 20        And it is pretty hard to think of any comprehensive      
 21 legislation that does any good on this.  The issues are      
 22 different in each case and they take a lot of time and      
 23 there are many parties that are affected far beyond the      
 24 two or three parties that may be affected, and each of      
 25 those have to be addressed.                                                             
   73       
   1        We have finished with Imperial and now we are       
   2 trying to get concurrence from Palo Verde Irrigation       
   3 District, Coachella Valley Water District and the       
   4 Secretary of Interior.  We will let you know when that is       
   5 coming, but I mean there are just a lot of problems that       
   6 have nothing to do with legislation.       
   7        MR. WALSH:  Well, there are a lot of problems that       
   8 are directly dependent on legislation.       
   9        MS. RUIZ:  Mr. Holbert, in your mind is reliability      
 10 a supply equivalent to some kind of certainty of supply?      
 11        MR. HOLBURT:  Yes, you have to look forward to      
 12 certainty.  I have to qualify it, I will say the whole      
 13 water field considering what's gone on in the judicial      
 14 area, and we have a lot of uncertainty, but nevertheless      
 15 in terms of what you deliver, that's what you seek to get,      
 16 is certainty.      
 17        MS. RUIZ:  I can understand how you would expect to      
 18 get it, but then how do you read the fact that the      
 19 Racinelli court specifically stated that you have no right      
 20 to any certainty of supply.  In fact, your entire process      
 21 is foundationed upon uncertainties and that there are a      
 22 number of factors, including decision by entities such as      
 23 ours which may have impact on that so-called reliability.      
 24        MR. HOLBURT:  No, I understand that, but I think in      
 25 that Racinelli decision the understanding was that the                                        
                    
   74       
   1 Board would balance and that you would seek to satisfy the       
   2 demands that are put on to the extent that you can, and I       
   3 don't consider that when you tell Southern California to       
   4 look to the San Joaquin Valley and its unknown water       
   5 conservation effort and you make a certainty that the       
   6 water is going to be released in April to July to improve       
   7 fishery habitat on the hope that will improve fishery       
   8 habitat and on the hope that it would result in more fish       
   9 being produced.      
 10        MS. RUIZ:  Without reference to those particular      
 11 substantive issues I would urge you to be aware of the      
 12 fact that this Board in carrying out its duties must keep      
 13 in mind that no party here is entitled to a certainty or      
 14 reliable certainty of the water that you have come before      
 15 us claiming to protect.      
 16        Thank you.      
 17        MR. MAUGHAN:  All right, thank you, Mr. Holbert.      
 18        We are going to have a break and let's come back at      
 19 five minutes after eleven.      
 20        (Recess)      
 21        MR. MAUGHAN:  I think Mr. Roberts of Metropolitan      
 22 Water District is next, and then we will have Susan Trager      
 23 and George Basye after that.      
 24        MR. ROBERTS:  In light of what has been said so      
 25 far, I am going to be very very brief.                                                             
   75       
   1        With respect to the procedures to be applied in       
   2 Phase 2, we filed a written statement on December 16 of       
   3 1988 in which we urged the Board to apply the hearing       
   4 procedures used in Phase 1 to the Phase 2 hearings as       
   5 well.  We think that's necessary to assure that the Phase       
   6 2 record is as reliable as the Phase 1 record.  I won't       
   7 repeat what I said in that letter and I endorse what Art       
   8 Littleworth said about that earlier today.       
   9        MS. RUIZ:  Excuse me, Mr. Chair.  Sir, in order to      
 10 make sure the record is as reliable as it is in Phase 1,      
 11 to what end?      
 12        MR. ROBERTS:  Well, the Phase 2 and Phase 1 records      
 13 are going to be what you are going to use to develop the      
 14 Water Quality Control Plan.  In a very carefully developed      
 15 Phase 1 record, in order to give equal weight to the      
 16 evidence that comes in during Phase 2, it seems common      
 17 sense that you need to apply the same kind of evidentiary      
 18 procedures so you don't unbalance the record.      
 19        MS. RUIZ:  Why would we have to use the same      
 20 weight?      
 21        MR. ROBERTS:  Well, in your notice you indicated      
 22 that you will give the Phase 2 record the same weight, and      
 23 it's the Phase 2 record I think that is going to be quite      
 24 sizable now.  We are going to have these operation studies      
 25 which we haven't had in the Phase 1 record and it seems to                               
                             
    76       
   1 me it is going to be very important, at least the way the       
   2 plan is structured now.       
   3        MS. RUIZ:  Let's assume for a minute you don't get       
   4 the operational studies in Phase 2 and the Board does make       
   5 the statement we are going to give them equal weight       
   6 regardless of the procedures used in Phase 2, why is it       
   7 again we need to have the cross-examination?       
   8        MR. ROBERTS:  I think the questioning of witnesses       
   9 that give technical testimony, it just gives it a fuller      
 10 exposition and there may be some flaws in their points.      
 11        MS. RUIZ:  Well, I was a part of the Phase 1, and I      
 12 can remember many hours of cross-examination in some      
 13 cases, none of which touched upon the concerns I was most      
 14 interested in.  How does cross-examination cover the      
 15 things which the decision makers are most keenly aware?      
 16        MR. ROBERTS:  It may be the nature of cross-      
 17 examination that it goes too far.  Everybody wants to get      
 18 in on it.      
 19        MS. RUIZ:  Or it may not go far enough.      
 20        MR. ROBERTS:  Possibly.      
 21        MS. RUIZ:  So how does that make for greater      
 22 credibility in the record?      
 23        MR. ROBERTS:  The fact that it might not go far      
 24 enough is no argument not to do it.      
 25        MS. RUIZ:  Well, I am still looking for an argument                                     
                       
   77       
   1 to do it.       
   2        MR. ROBERTS:  Again, my only argument is that       
   3 cross-examination allows fuller exposition of the       
   4 testimony of the witness, the good parts and the bad       
   5 parts.       
   6        MS. RUIZ:  So that assumes that in the quasi-       
   7 legislative process the decision makers like the Board are       
   8 not capable of fully exploring the implications of the       
   9 testimony being presented to them?      
 10        MR. ROBERTS:  It doesn't assume that at all.  It      
 11 gives opportunity for additional parties who may have      
 12 different expertise of different points of view to also      
 13 add to the Board and the Board staff analysis.      
 14        MS. RUIZ:  Do they not do that by direct testimony?      
 15        MR. ROBERTS:  They could but they may not be      
 16 planning direct testimony on the same issues that they      
 17 would wish to cross-examine on.      
 18        MS. RUIZ:  So they want to use someone else's      
 19 witness to accomplish it?      
 20        MR. ROBERTS:  Not necessarily.  You don't know what      
 21 the other witness is going to say.  We also agree with the      
 22 Board's apparent practice of allowing access by all the      
 23 parties to the Board Members and the staff.  We think      
 24 that's consistent with the Fair Political Practice      
 25 Commission's June 1988 opinion in which they concluded                                  
                          
   78       
   1 that Metropolitan and apparently all the other parties       
   2 have to report the expenses incurred in Phases 1 and 2 as       
   3 quasi-legislative lobbying expenses.  That's based on the       
   4 recognition that the basin plan in process is a quasi-       
   5 legislative process.       
   6        The final point I would like to make is it seems to       
   7 me that a lot of legal issues have been raised in the       
   8 petitions and some legal questions raised by the Board       
   9 today.      
 10        I think it would be of quite a bit of value if the      
 11 Board utilized the time while the projects are running      
 12 through operation studies, to also establish a briefing      
 13 process on legal issues involved, before getting to the      
 14 court to find out maybe we are wrong.  The court is going      
 15 to make the ultimate determination on the legal issues,      
 16 but any legal problems that can be ironed out now, I think      
 17 it would be a good idea to do that.      
 18        MS. RUIZ:  Well, Mr. Chair --      
 19        MR. MAUGHAN:  Yes.      
 20        MS. RUIZ:  If we are going to be looking at legal      
 21 issues and you are talking about analyzing the existing      
 22 Plan against statutory authority -- is that what you      
 23 are --      
 24        MR. ROBERTS:  Yes.  If the Plan was revised that      
 25 would change or may eliminate a lot of the legal issues.                                     
                       
   79       
   1 We don't know that.       
   2        That's all I have got right now unless you have       
   3 more questions.       
   4        MR. MAUGHAN:  Well, we suggest maybe you came in       
   5 late.  Did you come in the same plane with Mr. Holbert?       
   6        MR. ROBERTS:  No.       
   7        MR. MAUGHAN:  Were you here at the first?       
   8        MR. ROBERTS:  I was.       
   9        MR. MAUGHAN:  Any other questions?      
 10        MR. WALSH:  He wanted to ask you a question about      
 11 dinosaurs, but that's moot now.      
 12        MR. MAUGHAN:  No, but I still would like to address      
 13 the point Mr. Littleworth made about what the time element      
 14 might be if a suggestion, and it is open for considera-      
 15 tion, the flow and export limits were removed, postponed      
 16 and put in Phase 3.      
 17        MR. ROBERTS:  It is quite likely that our time      
 18 estimate would go down substantially.      
 19        MR. MAUGHAN:  All right.  Thank you.      
 20        Susan Trager.      
 21        MS. TRAGER:  Thank you, Mr. Chairman and Members of      
 22 the Board.  I am Susan Trager, representing the Water      
 23 Advisory Committee of Orange County.      
 24        A Plan, even a Draft Plan, that's been issued by      
 25 your Honorable Board has quite a signal and --                                                
            
   80       
   1        MR. MAUGHAN:  Apparently so.       
   2        MS. TRAGER:  It was a signal to business people and       
   3 to legislators and to those who serve water in a wholesale       
   4 and retail capacity and who manage the groundwater basins       
   5 in Orange County to pay attention to what you have done.       
   6        I am here really to talk a little bit about       
   7 procedures WACO hopes you would adopt in the forthcoming       
   8 hearings.       
   9        In response to Ms. Ruiz's question about the      
 10 importance of whether or not testimony is presubmitted and      
 11 subject to cross-examination, it is not so much a question      
 12 of whether this Board is capable of giving the same      
 13 solemnity to cross-examined testimony as it might to      
 14 unexamined testimony.  I don't think that's the issue.  I      
 15 think the issue is protecting the record for what is      
 16 likely to be inevitable judicial review of this record and      
 17 of this Board's decision when there is a decision, and      
 18 when there is a decision.  That may be some time from now.      
 19        In any event, a reviewing court and any lawyer      
 20 advocating any of the parties' positions upon a court      
 21 review of your determination will not hesitate, and I      
 22 wouldn't either, to point out the difference in the      
 23 solemnity between tested testimony and untested testimony      
 24 and that's really what the dilemma is.      
 25        WACO in its several meeting with business and                                         
                   
   81       
   1 people and legislators and with members of the water       
   2 community talked about this and we were of a divided view       
   3 as to whether or not it would be necessary.       
   4        We understand that you have and want to preserve --       
   5 you have limited resources to continue this exhaustive       
   6 process.  We are sensitive to that.  We are sensitive to       
   7 the idea that you never really wanted it to begin with and       
   8 it is testing and it is trying and it would be easier for       
   9 you to jump in and ask the questions yourselves.      
 10        Keeping that all in mind, because we have gone      
 11 through Phase 1 with that regime and because the Plan      
 12 itself opens up a number of questions which require the      
 13 input of technical evidence in Phase 2, I think your      
 14 record would be better preserved if you continued the same      
 15 kind of evidentiary processes that were begun earlier and      
 16 preserve them so the reviewing court won't be able to say      
 17 the engineering testimony from WACO about groundwater      
 18 basin operations and the timing of those operations can't      
 19 be given as much authority as other testimony in Phase 1      
 20 that might be used in the balancing process against it.      
 21        MS. RUIZ:  I am trying to understand for whose      
 22 benefit again the cross-examination is.  Is it for the      
 23 benefit of the Board in determining how to make a decision      
 24 for basin planning or is it for the protection of the      
 25 parties' interests to sue later?                                                             
   82       
   1        MS. TRAGER:  I think you have to address both       
   2 concerns and I think because this is so much more than a       
   3 basin planning process with so many other elements and so       
   4 many other considerations in terms of costs and impact and       
   5 politics that for the benefit of not having to go through       
   6 this entire process again and for basically making it a       
   7 more judicially economical procedure, that we proceed in       
   8 the same manner as we did in Phase 1, which is having all       
   9 testimony subject to cross-examination and presubmitted.      
 10        MS. RUIZ:  You are aware, Ms. Trager, are you not,      
 11 that the finest cross-examination of a witness in Phase 1,      
 12 no matter how credible it may seem to you, that one      
 13 of the parties may have determined that yes, this was a      
 14 perfectly credible witness, but in light of other      
 15 testimony and other evidence, this Board is free to make a      
 16 decision that does not take that testimony into full      
 17 account the way you would do so?      
 18        MS. TRAGER:  That's absolutely correct.      
 19        MS. RUIZ:  And that whether it is cross-examined or      
 20 not cross-examined testimony that the Board always has      
 21 that prerogative.      
 22        MS. TRAGER:  That's true, and the reviewing court      
 23 will give weight to testimony however it seems fit.  The      
 24 important thing --      
 25        MS. RUIZ:  And will give great weight to the                                              
              
   83       
   1 determination of this Board in its quasi-legislative role.       
   2        MS. TRAGER:  We are very much aware of that which       
   3 is why I am suggesting that the best way to proceed to       
   4 preserve what's been done to date and the great resources       
   5 that have been expended toward that amount, to continue to       
   6 preserve that evidentiary process so that you don't have a       
   7 different classification of testimony in the further       
   8 technical evidence that the Plan even calls for and asks       
   9 to be submitted and have that in some way a different      
 10 classification than the evidence that has been received in      
 11 Phase 1.      
 12        You don't want two classifications of testimony.      
 13 You cannot as a Board wave the wand and view all of the      
 14 testimony with the same solemnity just because that's the      
 15 way you view it.  There is going to be upper court --      
 16        MS. RUIZ:  And you are saying we can't do it?      
 17        MS. TRAGER:  You can do it for yourselves, but you      
 18 are not going to be able to give it that blessing and that      
 19 imprimatur of propriety for a reviewing court.  It won't      
 20 work for the reviewing court.      
 21        MS. RUIZ:  But the reviewing court is not      
 22 compelling us to do it with cross-examination.  We could      
 23 have chosen not to take any of your testimony at this      
 24 stage as a previous witness has stated, and sent this      
 25 thing out to be developed by a third party, a consultant.                                     
                       
   84       
   1        MS. TRAGER:  That is right, you could have.       
   2        MS. RUIZ:  Without any input whatever based on       
   3 studies that that person would have been able to find in       
   4 literature, talking to people, doing whatever they felt       
   5 appropriate, brought that back to this Board and then       
   6 started from there.  The challenge against that proposal       
   7 or the study brought by the contractor would have not been       
   8 subject to a court review of how that was developed and       
   9 how we weighed that submittal.  It would have been done      
 10 based on the fact that this Board had sufficient evidence      
 11 on which to make a basin planning decision and that would      
 12 have been, subject to some tests, given great weight by      
 13 the court.      
 14        Now I fail to see why cross-examination suddenly      
 15 brings in some greater attribute to testimony.      
 16        MS. TRAGER:  What we are asking for is that the      
 17 attributes to the testimony be the same whether it be in      
 18 Phase 1 or Phase 2, whether it be in the initial procedure      
 19 or what in effect is the rebuttal to the proceedings,      
 20 which is really what you are calling for in Phase 2.  It's      
 21 not only rebuttal, but inextricably it will be woven into      
 22 new testimony that hasn't been presented within the      
 23 parameters of what appears to be the elements or the      
 24 skeletons of a work plan that was quite different than the      
 25 one originally announced more than a year ago and on which                             
                               
   85       
   1 the Phase 1 evidence was based and submitted.       
   2        MS. RUIZ:  Is your position the same even if we do       
   3 not have the detailed flow model submitted in Phase 2?       
   4        MS. TRAGER:  I think that there's more that needs       
   5 to be submitted in this new phase other than the flow       
   6 model.  You have had testimony now by the water       
   7 distributors and the main agencies.  The Water Advisory       
   8 Committee of Orange County, representing the groundwater       
   9 management agencies as well as the wholesalers and      
 10 retailers, have a different problem, we think, that was      
 11 raised in this Draft Plan, and if you will bear with me a      
 12 moment, I can explain how we arrived at the decision to      
 13 file the petition.      
 14        In reviewing the Draft Plan it became apparent that      
 15 the storage that was described or that would be used to      
 16 offset the proposed export limitations, would have to      
 17 occur not only in the Kern water bank but in Southern      
 18 California groundwater basins south of the Tehachapies.      
 19 This was confirmed, this assumption on our part, based on      
 20 the assumptions in the Draft Plan, was confirmed in the      
 21 fourth workshop conducted a couple of weeks ago here in      
 22 Sacramento.      
 23        It became apparent to us almost immediately it      
 24 would be difficult, if not impossible, to have the benefit      
 25 of increased exports during the months of December,                                        
                    
   86       
   1 January, February and March because those basins and the       
   2 river systems feeding them would be receiving water comig       
   3 out of the mountains, some local supplies and also taking       
   4 part in the flood control regime which we need to have       
   5 during those months which are the rainy months in Southern       
   6 California.       
   7        So there's a conflict in the use of basins and the       
   8 use of the basin facilities and there wouldn't be       
   9 sufficient additional facilities like additional spreading      
 10 grounds to accommodate this new regime that has been      
 11 proposed in the Draft Plan.      
 12        In addition to that, there are other groundwater      
 13 basins who never contemplated and had not a clue really      
 14 that these proceedings would touch upon their own      
 15 operations and these are basins on a river that's not even      
 16 tributary to the Bay or Delta or the proceedings of Phase      
 17 1, but they would be impacted both as to water quantity,      
 18 water quality, and their existing water rights.      
 19        They want to present evidence because some has been      
 20 developed on how such a regime might or would impact them      
 21 and how best that could be mitigated and we feel that this      
 22 evidence would be important in coming up with the program      
 23 of implementation, keeping in mind that WACO is comprised      
 24 of people who are used to conjunctive use, who want to      
 25 encourage it and who testified on its behalf at these                                          
                  
   87       
   1 hearings.       
   2        So this is something different than the operational       
   3 schematic that would be prepared by the Bureau of       
   4 Reclamation and the Department of Water Resources,       
   5 although many of our operations are dependent on what they       
   6 would come up with as to the timing of the water       
   7 availability.  It would be a separate operational study       
   8 that could be completed only after the Department of Water       
   9 Resources study and Metropolitan's study.  Metropolitan      
 10 does not operate groundwater basins in Southern      
 11 California, so it would be a separate study undertaken by      
 12 the agencies who now operate those basins.      
 13        That was the reason for filing the petition.  We      
 14 feel in anticipation of those who have filed objections to      
 15 the lengthening of proceedings or the reopening for      
 16 additional testimony, we filed in a way almost as an offer      
 17 of proof in the form of three declarations giving you a      
 18 reason, a legal legitimate reason for reopening the      
 19 proceedings and having additional testimony as to due      
 20 process, deficiencies in the noticing and expansion of the      
 21 scope of what you heard and what was proposed in the Draft      
 22 Plan.      
 23        MR. MAUGHAN:  All right, does that conclude your      
 24 remarks?      
 25        MS. TRAGER:  It does, and I am available to answer                                 
                           
   88       
   1 questions.       
   2        MR. MAUGHAN:  Further questions by Members?       
   3        Thank you very much, Ms. Trager.       
   4        George Basye, and Mr. Oberle after Mr. Basye.       
   5        MR. BASYE:  I am appearing today on behalf of the       
   6 North Delta Water Agencies and East Contra Costa       
   7 Irrigation District.       
   8        You have the brief written remarks, but I will try       
   9 to be even briefer in my summarization encouraged by the      
 10 Chairman's opening comments.       I am here today to      
 11 point out that the proposed Plan as submitted by the staff      
 12 would suggest that the water quality standards to be      
 13 maintained in the portions of the Delta that affect the      
 14 North Delta Water Agency and East Contra Costa Irrigation      
 15 District are different in some respects in time and in      
 16 amounts from the standards set forth in the contracts      
 17 which the North Delta Water Agency and East Contra Costa      
 18 Irrigation District have with the State of California      
 19 through the Department of Water Resources.      
 20        We have asked by letter for some additional time to      
 21 review the differences and comment upon them      
 22 appropriately.      
 23        Of more concern, however, is the implication of      
 24 those differences and that is based upon the concern that      
 25 there might be some implications from the Draft Plan that                                   
                         
   89       
   1 there was a suggestion by the Board or by the staff that       
   2 the standards set forth in the North Delta Water Agency       
   3 contract and the East Contra Costa Irrigation District       
   4 contract are not within the reasonable or beneficial use       
   5 of water.       
   6        The staff has indicated that, of course, is not the       
   7 intent at the workshop.  Chairman Maughan has indicated       
   8 the same in his comments at the time the district and the       
   9 agency made their brief presentation in Redding, that it      
 10 was not the intent of the Board to alter existing      
 11 contracts, and we encourage you to modify the Plan to make      
 12 that quite clear as the Chairman suggested this morning it      
 13 ought to be.      
 14        Certainly any Work Ethic for the State of      
 15 California must encourage the resolution of these issues,      
 16 these complicated issues by contract, by negotiated      
 17 settlements satisfactory to the parties.      
 18        The North Delta Water Agency contract and the East      
 19 Contra Costa Irrigation District contract are examples of      
 20 that.  We think you should make it quite clear that your      
 21 Plan is not intended to adversely impact their operation      
 22 or to suggest that contractual settlements will not be      
 23 respected, and we would urge you to make that      
 24 clarification prior to the time that we begin Phase 2.      
 25        MR. MAUGHAN:  Thank you, Mr. Basye.                                                  
          
   90       
   1        Mr. Oberle, General Manager of the Desert Water       
   2 Agency, after which Mr. Bill Johnston.       
   3        MR. OBERLE:  Mr. Chairman and Board Members, I am       
   4 here representing the Desert Water Agency.  All of our       
   5 concerns were included in Art Littleworth's presentation       
   6 for the State Water Contractors, and we hope and urge you       
   7 to continue the hearings and we support their endeavors.       
   8        Thank you.       
   9        MR. MAUGHAN:  Thank you, Mr. Oberle.      
 10        Mr. Johnston, after which Mr. Nelson.      
 11        MR. JOHNSTON:  Thank you, Mr. Chairman and Board      
 12 Members.  My name is William R. Johnston.  I am      
 13 representing Modesto Irrigation District and as a member      
 14 of DTAC we support the December 12, 1988 letter from Bill      
 15 Baber to Dave Berringer expressing our views.      
 16        Mr. Chairman, you have expanded your request for      
 17 comments somewhat this morning.  We still expect to      
 18 receive all of the information that was used by the staff      
 19 in developing the Plan that was not a part of the Phase 1      
 20 record.      
 21        We agree with those that have said that the Plan is      
 22 not workable, at least as proposed to the upstream water      
 23 users.      
 24        We believe that at least six months is necessary to      
 25 develop an analysis of what the staff has done in                                              
              
   91       
   1 conjunction with other users, and we support that time       
   2 frame for beginning Phase 2, and that concludes my       
   3 statement.       
   4        MR. MAUGHAN:  Any questions?  All right, Thank you.       
   5        Austin Nelson, and then Cliff Schulz after Mr.       
   6 Nelson.       
   7        MR. NELSON:  I am Austin Nelson, representing       
   8 Contra Costa Water District.       
   9        I came here this morning to address the key issues      
 10 identified in the notice, that is the time required for      
 11 the preparation for Phase 2.      
 12        Our objectives in preparing for Phase 2 are to      
 13 assist the State Water Resources Control Board by      
 14 providing better information on the 250 parts per million      
 15 chloride objective and the drinking water quality with      
 16 emphasis on the public  health aspects of that objective,      
 17 more complete evidence on the reasonableness of an      
 18 objective different from 250 parts chloride and then      
 19 finally the implications of the Draft Plan for the Los      
 20 Vaqueros project which is mentioned explicitly and in more      
 21 than once place in the text of the Draft Plan, and indeed,      
 22 it is mentioned in the standards themselves.      
 23        The major tasks that we propose to undertake to      
 24 achieve these purposes are to review our experience in      
 25 treating Delta water with respect to process modifications                                   
                         
   92       
   1 over the past several years and the relationship between       
   2 salinity and trihalomethane control, and a detailed report       
   3 on pilot tests we have made with Delta water using       
   4 granular activated carbon and preozonation.       
   5        We propose to conduct a reevaluation of the       
   6 carriage water question using recent mathematical       
   7 techniques; and then finally noting that the Draft Plan       
   8 suggests intake relocation in the construction of       
   9 reservoirs if consistent with state-wide interests.  In      
 10 our case we propose to conduct Central Valley operation      
 11 studies comparing the Draft Plan with the Decision 1485 in      
 12 terms of salinity at the Contra Costa Canal intake and      
 13 also the Los Vaqueros operation study comparing the Draft      
 14 Plan and D-1485 in terms of project configuration, project      
 15 costs and water quality performance for the facility.      
 16        We are preparing to undertake this work, including      
 17 Central Valley operation studies with our district's own      
 18 resources.  However, we, of course, would intend to seek      
 19 assistance from the Bureau and the Department as      
 20 appropriate.      
 21        I note this morning that the Department of Water      
 22 Resources is planning workshops which hopefully will      
 23 develop that information and we would look forward to      
 24 participating actively in those workshops in an effort to      
 25 expedite the process.  If we were to do the work                                               
             
   93       
   1 ourselves, our estimate is that the time required would be       
   2 approximately six months.  If we are working with others,       
   3 then the time of course is dependent upon when the       
   4 information becomes available, but due to the nature of       
   5 the work that we must do following the completion of the       
   6 operation studies, we think that that would take about       
   7 three months after we get the results of the operation       
   8 studies themselves.       
   9        MR. MAUGHAN:  Austin, would you concur that the key      
 10 in such operation studies, which are very complex in and      
 11 of themselves, but it is the basic assumptions that are      
 12 made by whomever performs those operation studies that are      
 13 very important to various parties because those      
 14 assumptions underlie results every time.      
 15        MR. NELSON:  Absolutely.      
 16        MR. MAUGHAN:  And so if there are a number of      
 17 different assumptions that are necessary or different      
 18 tries, they really need to be front ended so you really      
 19 get the ground covered properly in terms of      
 20 interpretation.      
 21        MR. NELSON:  Of course, in this kind of work you      
 22 can run into the problem of permutations of assumptions      
 23 and the trick there is usually to try and define a range      
 24 of assumptions that minimize the amount of work needed.      
 25        MR. MAUGHAN:  Did you finish?                                                            

   94       
   1        MR. NELSON:  I wanted to make --       
   2        MR. SAMANIEGO:  Mr. Chairman, on the same point,       
   3 when you said that you were prepared to do some Central       
   4 Valley studies with your own resources, it gives me a       
   5 twinge of anxiety only because I think what we don't want       
   6 is to come out with six or seven different projects all       
   7 saying different kinds of things and that may well happen       
   8 and reasonable men are going to have those kinds of       
   9 outcome, but to the extent that we can come up with some      
 10 unanimity as to what is an operational plan and how it      
 11 works and how it best works to serve multiple interests,      
 12 we need your pledge that you are going to be in there with      
 13 them.      
 14        MR. NELSON:  Mr. Samaniego, I give you that pledge      
 15 wholeheartedly.  I agree with you and I think that ought      
 16 to be done in this matter as well as in all matters of a      
 17 similar kind.      
 18        MR. SAMANIEGO:  Thank you.      
 19        MR. MAUGHAN:  Go ahead.  You had another point.      
 20        MR. NELSON:  I wanted to offer a comment on the      
 21 proposal to drop flow and export limitations from the      
 22 Draft Plan.  My view is that having raised that question      
 23 in as forceful a way as it has, the State Board is in the      
 24 position, if it tries to delete that from Phase 2, of      
 25 trying to unring a bell.                                                             
   95       
   1        MR. MAUGHAN:  Well, the possibility would be to       
   2 take it up in full force in Phase 3, not to delete it,       
   3 period.       
   4        MR. NELSON:  We would prefer to get on with it at       
   5 this time.       
   6        MR. MAUGHAN:  Okay, get it over with.       
   7        MR. NELSON:  Right.       
   8        MR. MAUGHAN:  It's like castor oil.  Thank you,       
   9 Austin.      
 10        Any other questions?  Thank you very much.      
 11        Cliff Schulz and then Gregory Thomas.      
 12        MR. SCHULTZ:  Good morning.  I am representing the      
 13 Kern County Water Agency and other valley State Water      
 14 Project contractors this morning.      
 15        Before making my brief statement, I probably ought      
 16 to put it into the context of the question that has been      
 17 asked on several occasions, if there is a change in the      
 18 scope of Phase 2 hearings to eliminate flow and export      
 19 limits would this change our view on the time required.      
 20 Obviously, I wrote my presentation before that question      
 21 came up and so it is written as if the Draft Plan was in      
 22 its present form.      
 23        I am going to continue to give it that way because      
 24 I'm not sure that I can give you a good answer to that      
 25 question without seeing what changes were made in the                                    
                        
   96       
   1 Draft Plan and what changes there were in the scope.  I       
   2 suspect it would reduce it, but I think if the Board is       
   3 going to do that, then it should strongly consider       
   4 revising the Draft Plan before the start of Phase 2, and       
   5 then after we have an opportunity to see what that change       
   6 in scope is, to ask us that question again.  It is very       
   7 hard to answer it in the abstract this morning.       
   8        So as I give my presentation, it will be based on       
   9 the assumption that we are going into Phase 2 on a Draft      
 10 Plan that looks like the one that was distributed in      
 11 November and I would just like you to keep that in mind.      
 12        Under those assumptions, we believe that Phase 2      
 13 hearings should be deferred for the time periods which      
 14 have been suggested in writing by the Department of Water      
 15 Resources, and I assume they will be talking about it more      
 16 later today.  But there's enough uncertainty about when      
 17 those operation studies will be completed that any      
 18 starting date announced as a result of this workshop      
 19 should be clearly identified as tentative.      
 20        The mid course second workshop suggested by the      
 21 Department of Water Resources in May should be held and      
 22 the final decision concerning the start of the Phase 2      
 23 hearings could then be made better I think at that time.      
 24        Secondly, the Phase 2 hearings , we definitely      
 25 feel, should not be considered quasi-judicial proceedings.                                   
                         
   97       
   1 We are in the middle today of what is a basin planning       
   2 process and we should not confuse it with Phase 3 which       
   3 will be quasi-judicial in nature.       
   4        The point I want to make here is the mere fact that       
   5 the proceeding is quasi-judicial does not preclude the       
   6 Board from allowing the parties to question witnesses on       
   7 the statements being made.  The Board has broad powers to       
   8 structure the water quality hearings in a manner designed       
   9 to best provide the testimony and evidence it needs; and      
 10 the fact that the Board allows parties the opportunity to      
 11 question witnesses does not      
 12 automatically convert the process into a quasi-judicial      
 13 proceeding.  I think that's clear in the law.      
 14        Based on this reasoning, I do recommend that that      
 15 portion of Phase 2 dealing with the technical issues      
 16 raised by the parties, allow the parties to question      
 17 witnesses.  I feel that the issues involved in this Plan      
 18 are simply too important to California's total water      
 19 future to allow them to be criticized or supported by      
 20 untested direct testimony and I would like to expand just      
 21 a little bit on a couple of comments made by Vice Chair      
 22 Ruiz.  That is, that whether it be for, I don't think it      
 23 is for judicial review purposes, and I don't really care      
 24 too much about what the Board's raw power under Racinelli      
 25 or the Water Code is.                                                             
   98       
   1        What I think is just as important in this process       
   2 is that when it is done everybody feels they have had a       
   3 maximum opportunity to participate, to criticize, to       
   4 recommend, to challenge the evidence of other parties,       
   5 because no matter what the raw power of this Board is,       
   6 it's very important that this Plan be acceptable       
   7 practically and politically, and I think it just needs a       
   8 full blown questioning process to make everybody       
   9 comfortable when it comes out that they have had maximum      
 10 opportunity to participate in the process.  I think that's      
 11 very important for the success of any decision.      
 12        I would add that to the reason why I -- I am not      
 13 going to call it cross-examination -- but by party      
 14 questioning is an important part of the total process.      
 15        My third point is that I think Phase 2 should be      
 16 broken down into two distinct parts.  The first portion      
 17 should be dedicated to the factual and technical issues      
 18 fully discussed by the parties' written submittals.  If as      
 19 we believe, this portion of Phase 2 demonstrates that the      
 20 technical underpinning of the Plan is flawed, then a new      
 21 Draft should be prepared and circulated before the Draft 2      
 22 policy sessions are held.  It would not be productive to      
 23 have policy sessions focus on the Plan that may change to      
 24 a point that the policy comments are no longer relevant.      
 25        In making this recommendation I am not suggesting                                   
                         
   99       
   1 that policy matters may not creep into that first part.       
   2 For example, the validity of the policy underlying the       
   3 California Work Ethic may be very well affected by       
   4 technical evidence concerning urban and agricultural water       
   5 conservation potential and whether or not it is legally       
   6 possible or properly that you should move San Joaquin       
   7 Valley water to Southern California because of overdraft       
   8 conditions.       
   9        Parenthetically we believe any water savings in the      
 10 valley will simply go and should go to reducing the      
 11 groundwater overdraft, not ship it to another part of the      
 12 state.      
 13        Further technical evidence concerning the latest      
 14 salmon data or the impact of the current Draft Plan on      
 15 salmon flows, their effect on upstream conditions for      
 16 salmon, might lead to alteration of the policy that out of      
 17 estuary measures should not be considered in the Plan.      
 18        In general, however, we do believe that the main      
 19 focus of the first part of Phase 2 will be technical and      
 20 should be followed then by a new Draft.      
 21        Finally, I concur with what Jamie Roberts said.      
 22 There are a number of legal issues that have arisen as a      
 23 result of the Plan and the comments of everybody.      
 24 Sometime in the process of Phase 2 I do believe it would      
 25 be helpful to have some issue briefing by the parties on                                     
                       
 100       
   1 some of those matters.       
   2        That concludes my statement.       
   3        MR. MAUGHAN:  Marion, do you have a question?       
   4        MR. OTSEA:  You said you wanted Phase 2 in two       
   5 parts and you only mentioned the technical, what would be       
   6 the second?       
   7        MR. SCHULTZ:  The second would be after a revised       
   8 document comes out, after the technical data has come in,       
   9 then hold the more classic policy presentation on the      
 10 Draft Plan which the Regional Board holds all the time,      
 11 and then lets people make their general policy      
 12 presentations.  I just don't think that those policy      
 13 presentations would be particularly relevant now until we      
 14 find out whether the technical underpinning for the Plan      
 15 is sound.      
 16        MR. OTSEA:  Thank you.      
 17        MR. MAUGHAN:  Mr. Schulz, I just have a comment,      
 18 and I don't know whether you want to respond or not.      
 19        I don't believe that our Board or any one that I      
 20 have been on tries to ramrod things through even though      
 21 unfortunate as it is in my mind, sometimes it seems to      
 22 take longer than it ought to.      
 23        I also would like everybody to put their shoulders      
 24 to the wheel as the old expression goes and move along as      
 25 quickly as we can.  But if one has to give over the other,                                    
                        
 101       
   1 I don't want to ramrod things, not anything as important       
   2 as this, and so far as I am concerned we will take it very       
   3 carefully, whatever that it is.       
   4        MR. SCHULTZ:  I would like to respond.  I don't       
   5 think this Board has ever ramrodded either, and I have       
   6 spent a lot of years appearing before this Board, but this       
   7 is an extraordinarily important piece of work to the       
   8 Board.       
   9        MR. MAUGHAN:  It is.      
 10        MR. SCHULTZ:  And this is a situation where      
 11 perception is reality.      
 12        MR. MAUGHAN:  Well, I hope we can dull that a      
 13 little bit.      
 14        MR. SCHULTZ:  I hope we can, too.  I think we need      
 15 to go every step to make people feel --      
 16        MR. MAUGHAN:  I don't quarrel with that at all.      
 17 That's why I am trying to tell the audience in general      
 18 that at times it may seem like hey, why don't you keep      
 19 pushing ahead as quickly as you can.  I do think it is an      
 20 important thing and I don't care what the party is or what      
 21 their interests are, I think they ought to be fully heard      
 22 within any kind of reason to give them any time to do      
 23 that.      
 24        MR. SCHULTZ:  Thank you.      
 25        MR. MAUGHAN:  Mr. Gregory Thomas, Sierra Club Legal                           
                                 
 102       
   1 Defense Fund, after which Bill DuBois.       
   2        MR. THOMAS:  Thank you, Mr. Chairman and Members of       
   3 the Board.  After so many presentations, I am able to be       
   4 brief.       
   5        Let me say the Sierra Legal Defense Fund is       
   6 appearing in Phase 2 as it did in Phase 1 for the       
   7 consortium of environmental organizations.  I think you       
   8 are familiar enough with them that I don't need to read       
   9 the list.  I am authorized to indicate the Bay Institute      
 10 associates themselves with my remarks today.      
 11        The first question I want to address is the one      
 12 noticed for this hearing, when should Phase 2 commence?      
 13 All of the clients that I represent believe that it ought      
 14 to be without further delay.  The point out we have been      
 15 waiting essentially since 1978 or even before that for a      
 16 complete and legally sustainable Water Quality Plan, and      
 17 as time goes on the evidence in Phase 2 we believe      
 18 indicates that the resource continues to deteriorate.  So      
 19 we believe that these proceedings should be approached      
 20 with some sense of urgency.      
 21        In any event, we believe that the Phase 1      
 22 proceedings should not be reopened.  We should begin where      
 23 the Draft document leaves us.  The complaints that have      
 24 been lodged against the staff that are ones that have to      
 25 do with the sketchiness of some of the analyses, the need                                  
                          
 103       
   1 for operational studies and feasibility studies and so       
   2 on -- we believe that that's entirely appropriate grist       
   3 for the mill of Phase 2.       
   4        In the event that a protracted proceeding is       
   5 unavoidable, the environmental parties, I believe, that       
   6 there should be interim protection standards put in place       
   7 to safeguard the environmental resources of the estuary       
   8 while the further proceedings are conducted, and a       
   9 petition to that effect will be lodged with the Board      
 10 probably before the end of this week, and it will ask for      
 11 types of protections justified by prevous protection      
 12 decisions by the Board or findings of fact regarding the      
 13 resources that have already been made by the Board.      
 14        So we urge you to take that seriously in the event      
 15 that further delays seem inevitable or unavoidable.      
 16        Second, I would like to address just briefly the      
 17 question whether flow standards have a proper place in a      
 18 Water Quality Control Plan and this is a subject the Board      
 19 may want to provide a further briefing opportunity on, but      
 20 just as an initial statement on the subject, we believe      
 21 quite clearly the Board does have authority to include      
 22 flow standards in a Water Quality Control Plan and we      
 23 point out that D-1485 contained flow standards.  The      
 24 workplan for this set of hearings contemplated flow      
 25 standards.  I think it is quite clear that the                                                        
    
 104       
   1 Porter-Cologne Act as construed by the Racinelli court       
   2 sanctions and contemplates flow standards.       
   3        Just looking at the design of the Porter-Cologne       
   4 Act, a Water Quality Plan is to have three elements, as       
   5 you know.       
   6        First of all, to designate beneficial uses, and we       
   7 think it is beyond contest that the fishery and other       
   8 environmental aspects of the estuary are beneficial uses       
   9 subject to protection.  The Board is then to set water      
 10 quality objectives, and finally is to establish a program      
 11 of implementation.      
 12        Now water quality objectives conventionally      
 13 invovlve regulation of pollutant constituents, but the      
 14 definition of water quality standards makes clear that it      
 15 also pertains to characteristics to provide reasonable      
 16 protection of the characteristics of the water itself.      
 17 These could include obviously factors such as temperature      
 18 and turbidity.  We believe they also include the hydrology      
 19 or volumetric concerns.  Perhaps the most compelling      
 20 reason for that conclusion is that salinity control should      
 21 not be regarded as a final or ultimate objective of this      
 22 whole process.  It is really just a means to protecting      
 23 beneficial uses which the Board is obliged to provide      
 24 protection for in its Water Quality Plan.  That's under      
 25 the State Code.                                                                
 105       
   1        Under the federal code which drives the State       
   2 planning, of course, the final objective is to achieve       
   3 fishable and swimmable water.  To the extent that salinity       
   4 coefficients can do that, they are obviously important.       
   5 To the extent that some other kind of water characteristic       
   6 has to be addressed in order to provide those protections,       
   7 that should be done as well.       
   8        And we believe that the evidence in Phase 1 does       
   9 demonstrate that flows are essential for protecting the      
 10 full range of beneficial uses in the estuary.  I won't say      
 11 anything further on that except that we think that the      
 12 inclusion of flow recommendations does represent important      
 13 momentum in this process and that ultimately the Board is      
 14 going to have to address flows, probably better early than      
 15 late, and if the Board entertains serious legal concerns      
 16 about the authority or right to have flows in a Water      
 17 Quality Control Plan, I would simply suggest that a      
 18 briefing opportunity on that point be provided.      
 19        So just to summarize our recommendations on Phase      
 20 2, first of all is to commence the proceedings as soon as      
 21 possible.  In any event, let's not revisit Phase 1, as      
 22 much fun as it was.  If delay is necessary interim      
 23 protection should be put in place by the Board.      
 24        On the subject of cross-examination, since other      
 25 parties have spoken, let me say that I do have some                                         
                        
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   1 sympathy for the view that if the Board is going to give       
   2 equal weight to testimony that comes in during Phase 2,       
   3 that it should provide for equivalent procedural rigor and       
   4 safeguards, and that seems to me does mean opportunity for       
   5 cross-examination.       
   6        It may well be that a way of making that more       
   7 manageable would be to have the Board examine first and       
   8 the parties second.  That might make unnecessary some of       
   9 the long winded cross-examination we experienced in Phase      
 10 1.  But I do think on balance that that is the better part      
 11 of wisdom, to permit questions by parties.      
 12        At the same time, I agree with Mr. Schulz and      
 13 others that it is also very important to provide an ample      
 14 opportunity for informal testimony and comments to be      
 15 made, comments of a non-technical and policy orientation      
 16 because certainly before you finalize the Water Quality      
 17 Plan, you are going to want to take the pulse of your      
 18 public and your constituents, and I think sometimes that      
 19 expression of public sentiment is better made without an      
 20 adjudicatory proceeding.      
 21        MS. RUIZ:  Does such testimony along the lines that      
 22 you describe get more weight, equal weight to cross-      
 23 examined testimony?      
 24        MR. THOMAS:  Well, in the end, my guess is the      
 25 Board will give whatever weight to the testimony that it                                       
                     
 107       
   1 thinks it deserves based upon its persuasiveness.  If it       
   2 is of a technical sort and has withstood cross-examination       
   3 presumably that weighs favorably.       
   4        MS. RUIZ:  But does it have to?       
   5        MR. THOMAS:  If you are asking whether as a strict       
   6 legal matter the process would be defective if you don't       
   7 have cross-examination in Phase 2, I believe that you       
   8 would have latitude not to have an adjudicatory format.       
   9        MS. RUIZ:  Well, what I propose, let's assume you      
 10 provide us a witness subject to full cross-examination      
 11 with, he withstands that cross-examination well, has      
 12 wonderful credentials and is taking a position 180 degrees      
 13 from where Mr. Littleworth's witness, who also withstands      
 14 wonderful cross-examination and all the elements of      
 15 protecting that you describe, and then a witness comes in      
 16 and takes a position consistent with your witness, just by      
 17 virtue of policy they want to.      
 18        Do you see anything in this Board that would keep      
 19 us from deciding to just accept the testimony of the      
 20 witness that was not subject to cross-examination?      
 21        MR. THOMAS:  No, my guess is the evidence is going      
 22 to fall none too neatly into two different categories.      
 23 Testimony that is primarily factual, analytical in nature,      
 24 and that's the type of testimony that I should think you      
 25 would want to have subjected to probing regarding                                            
                
 108       
   1 assumptions, inputs, analyses, recommendations and so on.       
   2 And testimony that is more an expression of public opinion       
   3 and policy suggestions to the Board, that type of       
   4 basically legislative information would be difficult to       
   5 cross-examine under any circumstances.       
   6        MS. RUIZ:  But we would give it the same weight?       
   7        MR. THOMAS:  You would give it -- well, two answers       
   8 to that.  You would give it the weight to which  you think       
   9 it is entitled.  I don't know that trying to anticipate in      
 10 advance what the scale is going to look like for the      
 11 evidence is going to be very fruitful.  Because it is a      
 12 very different kind of evidence, I think you necessarily      
 13 weigh it differently.  You don't weigh policy suggestions      
 14 against technical analyses.  Presumably you want to be      
 15 satisfied.      
 16        MS. RUIZ:  You assume then that only technical      
 17 analyses has that kind of vision and ability to guide us      
 18 separate and apart from a policy plea?      
 19        MR. THOMAS:  By no means.  I think you want to be      
 20 sure that the Water Quality Control Plan is supportable,      
 21 is correct in its factual assertions and assumptions.  You      
 22 certainly want to do that, but your role is certainly      
 23 broader as well.  You also want to make sure that once you      
 24 have the facts right, you come up with the right balance      
 25 of interests and policies and requirements.                                                       
     
 109       
   1        MS. RUIZ:  Okay, let's assume in the course of the       
   2 Phase 2 proceedings a major study comes up from EPA and       
   3 that study is not testified to by EPA and it is submitted       
   4 into the record, or the Board decides to take notice of it       
   5 on its own.  What weight should we give it in light of the       
   6 fact you haven't had the opportunity to cross-examine on       
   7 it?       
   8        MR. THOMAS:  Well, I guess my answer would be if       
   9 you want to admit it into the record and take it      
 10 seriously, you would probably do well to have it examined,      
 11 if EPA is willing to present someone that can testify      
 12 regarding it.  If not, then I think I would have to say      
 13 that that ought to matter to the Board in deciding how      
 14 much relative weight to give it.  It should be pertinent      
 15 to your decision that it hasn't been the object of      
 16 cross-examination.      
 17        MS. RUIZ:  So any previous standards established by      
 18 EPA, we should give a different weight because we have not      
 19 or others have not had an opportunity to cross-examine?      
 20        MR. THOMAS:  Not standards.  The standards are      
 21 legal material.  I am talking about factual analytical      
 22 material.      
 23        MS. RUIZ:  The same criteria, factual analytical      
 24 material criteria that you and other people engaged in our      
 25 process have not had an opportunity to cross-examine and                                 
                           
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   1 the Board chooses to admit it into the record, do we give       
   2 it lesser weight?       
   3        MR. THOMAS:  It is going to depend so much on the       
   4 character of the document and what stands behind it,       
   5 whether it has subjected to public hearings .  There are       
   6 so many variables.  I would say that the proper process       
   7 would be to ask that question at the time when it is       
   8 admitted, and let the parties address themselves to the       
   9 relative weight to be given to it.      
 10        But as an incoming set of assumptions, I think it      
 11 is not an ideal evidentiary situation to have all evidence      
 12 considered of equal weight irrespective of whether it's      
 13 been subjected to cross-examination.  I'm trying to make a      
 14 more general point, I think, than the question you are      
 15 posing.      
 16        Just one final recommendation, again supporting the      
 17 views of other parties, it would assist the environmental      
 18 groups, I believe, if the hearing session could be devoted      
 19 to specific identified topics so that we don't have to      
 20 always be here irrespective of whether we are going to      
 21 produce testimony.  It is particularly important in our      
 22 case just given the enormous  asymmetry of the sources      
 23 between the environmentalists and the water developers.      
 24        Those are my comments.      
 25        MR. MAUGHAN:  All right, Thank you, Mr. Thomas.                                   
                         
 111       
   1        Mr. DuBois, after which Mr Tom Aldrich of the       
   2 Anheuser-Busch Company.       
   3        MR. DUBOIS:  I am Bill DuBois, representing the       
   4 California Farm Bureau Federation.       
   5        I have, what I am sure is a policy statement to       
   6 make to you at this time, and I make it in case you do       
   7 offer a revised Plan, because I think it wouldn't do a       
   8 great deal of good to make this if the Plan is going to       
   9 stand like it is anyway.      
 10        There are a couple of things that puzzle me in the      
 11 Plan that have not been brought to your attention, I think      
 12 previously today.  One is that the Plan impresses me as      
 13 favoring fish and birds and San Francisco Bay and the      
 14 Delta rather than fish and birds in the San Joaquin Valley      
 15 or the Imperial valley.      
 16        Now naturally, and as you know, my concern is not      
 17 fish and birds, but my concern is that you affect this      
 18 favoring of fish and birds in the Delta and the Bay at      
 19 great expense to agriculture, and I don't see where      
 20 agriculture benefits from this favoritism that is shown      
 21 for fish and birds in one location over another.      
 22        This Plan seems to take the approach that the      
 23 proper solution for the State Board is to continue to      
 24 divide up the shortage, and this may work for a while, but      
 25 with the present population trend, it is not going to work                                     
                       
 112       
   1 forever and it seems like there would be a good       
   2 opportunity, since it can't be done any earlier, for the       
   3 Board and for the staff Plan to make some recommendations       
   4 as to the value of new facilities.       
   5        I would further ask that the amount of conservation       
   6 in agriculture that is counted on not be scheduled to a       
   7 time period which can't be implemented through the ability       
   8 to convince farmers that particular conservation methods       
   9 are going to be economic to them because we can't do it      
 10 otherwise.  It won't be reasonable to ask them to and they      
 11 couldn't anyway, and it wouldn't be of any value.      
 12        So we think it is real important to take that into      
 13 consideration when a time schedule is concerned.      
 14        And I think one other point puzzled me and that is      
 15 that I don't understand why when you are taking a global      
 16 perspective at something you don't look at the North Coast      
 17 rivers.  I didn't find a lot of reference to the      
 18 feasibility of maybe changing the law with regard to the      
 19 use of North Coast water in order to relieve somewhat the      
 20 pressure on water resources in the state.      
 21        Thank you very much.      
 22        MR. MAUGHAN:  All right, Thank you, Bill.      
 23        Mr. Aldrich and then Mr. Wallace Peck from San      
 24 Diego County Water Authority.      
 25        MR. ALDRICH:  Thank you, Mr. Chairman.  I am the                                  
                          
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   1 Vice President and corporate representative for the       
   2 Anheuser-Busch Companies in the West.  I am also a       
   3 director of the California Manufacturer's Association and       
   4 Chairman of their Executive Committee and a member of the       
   5 Board of Directors of the State Chamber.  I mention that       
   6 because I have coordinated what I have said here to a       
   7 considerable extent with members of industries throughout       
   8 the State of California, although I speak specifically for       
   9 our company.      
 10        Anheuser-Busch is deeply concerned about the      
 11 drastic impact of the proposed water reductions to cities      
 12 and industries recommended by the Draft Bay-Delta Plan.      
 13 Our company has made a substantial corporate investment      
 14 throughout California, including our breweries in      
 15 Fairfield and Los Angeles, as well as our snack plant,      
 16 bakeries, can and lid plants in cities up and down the      
 17 state.      
 18        Water is our life's blood.  It is a major component      
 19 of our beer product and is indispensible in its      
 20 manufacturing and processing.      
 21        As a responsible corporate citizen, Anheuser-Busch      
 22 long ago recognized and acted upon its obligations to      
 23 conserve water and to use it efficiently.  The company has      
 24 achieved major successes in water use efficiency, while at      
 25 the same time increasing production.  As an example, since                               
                             
 114       
   1 1971 we reduced water consumption per barrel of product at       
   2 our Los Angeles brewery by 60 pcercent.  We have improved       
   3 water use efficiency there by 11 percent since 1986 alone.       
   4 We are constantly looking for new ways to conserve, but it       
   5 must be recognized that additional savings may be       
   6 difficult and expensive, if not impossible, to achieve       
   7 with today's technology.  However, we continue to pursue       
   8 and look for these ways.       
   9        Our company's extensive investment in capital      
 10 facilities in California are based in our belief that      
 11 there is enough water in the state for all needs, if the      
 12 water is properly managed.  Urban, industrial, agri-      
 13 cultural and environmental uses must be balanced and      
 14 managed so that the water consumption of each is      
 15 reasonable in relation to the needs of all others.      
 16        The Draft Plan, however, doesn't do this.  Instead,      
 17 it requires enormous water reductions by urban and      
 18 industrial users in order to provide huge flows of water      
 19 for instream use.  It completely ignores how industry uses      
 20 water.      
 21        An increase in water use by a water efficient      
 22 company is a direct result of successful market      
 23 competition and an increase in production.  Since no waste      
 24 is involved, it can't be rationed without curtailing      
 25 production.  A cutback in our water supply means                                             
               
 115       
   1 production cutbacks, job losses and a loss of taxes and       
   2 revenues.       
   3        Anheuser-Busch is only one company, but many others       
   4 will be similarly affected by the Draft Plan.  The       
   5 cumulative impact on California's economy and business       
   6 climate will be extremely serious if the Plan is adopted       
   7 as written.       
   8        Industry can and will conserve water.  Anheuser-       
   9 Busch is proud of its record in this respect.  We believe      
 10 the constitutional requirement of reasonable use applies      
 11 to the fishery resource as well as to other industries,      
 12 and that by applying appropriate management techniques,      
 13 such as improved use of fish hatcheries and construction      
 14 of fish screens and other facilities, environmental and      
 15 wildlife resources in the Delta can be protected without      
 16 destroying California's business economy.  In fact, we      
 17 believe environmental protection requires a strong and      
 18 productive economy to make it effective.      
 19        The Draft Bay-Delta Plan is fatally flawed and      
 20 should be withdrawn as presently written.  A new Plan      
 21 should be drafted which more reasonably and realistically      
 22 meets California's total needs.      
 23        That completes my statement.      
 24        MR. MAUGHAN:  I appreciate your statement, Mr.      
 25 Aldrich, and what your company is doing in conserving                                      
                      
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   1 water.  We have had some hearings during the last year in       
   2 which I have asked this question before of somebody       
   3 representing one particular industry if they have personal       
   4 knowledge of whether the broad section of other industries       
   5 are doing equally as well percentagewise or whatever it       
   6 may be in terms of water conservation, and generally       
   7 speaking they are very familiar with themselves but not       
   8 with others.       
   9        Are you familiar with any other industry in terms      
 10 of its efforts in water conservation?      
 11        MR. ALDRICH:  No, sir, I don't speak for other      
 12 industries, even in the beer industry because we keep our      
 13 records very closed and the other companies do the same      
 14 thing, as privileged information.  I would suggest in what      
 15 you raise here, Mr. Chairman, that this would be something      
 16 that could be handled well if the types of restrictions      
 17 when water is short, the types of restrictions address      
 18 that through standards that can be established by industry      
 19 type through examinations that are made by the water      
 20 serving agency as to whether industry is properly      
 21 conserving water or not.      
 22        For example, we are served by LADWP in our brewery      
 23 in Los Angeles.  We have another facility up here, of      
 24 course, and they are pretty well familiar with how well      
 25 companies are doing in conserving water, and the                                             
               
 117       
   1 examination procedures that they go through under the       
   2 current directives in the City of Los Angeles are rather       
   3 thorough in examining what we are doing in the use of the       
   4 water that we are provided.       
   5        MR. MAUGHAN:  I concur with those statements.  I       
   6 just wanted to say though that I would personally not try       
   7 to impose upon any industry that is doing an excellent job       
   8 right now in terms of conservation any additional       
   9 conservation, but I would like to be assured by Los      
 10 Angeles Water and Power and others that all industries      
 11 which they serve in the particular capacity of whatever      
 12 they are producing, are doing a very careful job, and I      
 13 have been in this conservation field for the last ten      
 14 years rather deeply, and I do know that there's a lot of      
 15 entities out there doing a great job, but I also know      
 16 there are some improvements that could be made and done      
 17 efficiently and economically in some other areas, and      
 18 that's what we ought to address in our final analyses.      
 19        MR. ALDRICH:  We certainly agree with you on that.      
 20 We would like to see that conservation applied across the      
 21 board because when it comes to rationing it hurts those      
 22 who can't cut without cutting production.      
 23        MR. MAUGHAN:  All right, we will have this one      
 24 more, Mr. Peck, San Diego Water Authority.  While Mr. Peck      
 25 is coming up, I have approximately 20 more cards for this                                  
                          
 118       
   1 afternoon.  We will resume at 1:30 and I think we can get       
   2 through by not too late if people don't take too long a       
   3 time.       
   4        Mr. Peck.       
   5        MR. PECK:  Mr. Chairman and Members of the Board,       
   6 Thank you.  I am appearing today on behalf of San Diego       
   7 County Water Authority and the City of San Diego.       
   8        First of all, I would like to say we appreciate the       
   9 fact that the Board did schedule today's workshop and did      
 10 cancel the hearing that you had originally scheduled in      
 11 order to receive the input that you are obtaining today.      
 12        We appreciate the fact that you have been bombarded      
 13 with motions, with requests, with letters, with objections      
 14 and with very little praise for the work that you have      
 15 done so far, and I don't wish to repeat much of what has      
 16 been said today particularly by representatives of the      
 17 State Water Contractors and who you are going to hear this      
 18 afternoon from the Department of Water Resources regarding      
 19 the time that is necessary for the continuation of these      
 20 proceedings.      
 21        However, on behalf of the San Diego community, I      
 22 did want to come before you today representing the second      
 23 largest city and second largest county in the state to      
 24 express to you in the strongest possible, but nicest      
 25 terms, the shock and disappointment of the community of                                   
                         
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   1 San Diego in the Draft Report at least.       
   2        Of course, we realize it is a Draft.  We realize       
   3 you are still studying it.  We realize there will be       
   4 changes, but we felt that the approach taken by the staff       
   5 was so wide of the mark in the assumptions made in the       
   6 policy priorities that they put into the Report and in the       
   7 evidence utilized and finally in the almost, as we read       
   8 it, offhand conclusions of about how the massive shortages       
   9 that appear from the City can be solved, that it gave us      
 10 concerns about the integrity of the process and the path      
 11 upon which this Board is proceeding.      
 12        I won't go over all the evidence that was presented      
 13 as you recall in Irvine.  We did put on evidence regarding      
 14 the San Diego community and the 18 cities there and the      
 15 substantial military complex and the unique agricultural      
 16 situation where they are using water at a cost of some two      
 17 to three hundred dollars an acre-foot, and the fact that      
 18 the area is '90 percent dependent upon imported water.      
 19 There are vast areas of communities that are 100 percent      
 20 dependent upon imported water and that means only Colorado      
 21 River and the State Water Project.      
 22        You will recall that the community itself has been      
 23 heavily involved state-wise and locally to bring in      
 24 adequate water supplies.  There may be some that say, and      
 25 I have heard it said, that some people say the State Water                                 
                           
 120       
   1 Project should not have been built.  Others say that the       
   2 community in Southern California, San Diego, should never       
   3 have developed as it has, but it has.  We are living with       
   4 those facts and those are the facts I think that the Board       
   5 must live with.       
   6        I filed a petition or memorandum with this Board       
   7 pointing out some of the legal issues that I felt that the       
   8 Board or at least the staff was overlooking in making its       
   9 analyses.  I know you are all aware, I am sure you had      
 10 many meetings with your attorney where you have gone over      
 11 all of these requirements, but I thought it would help to      
 12 reemphasize those points, that it requires a way, it      
 13 requires a balancing, requires analyses of future uses in      
 14 light of the existing physical situation.  But it is our      
 15 feeling in reading the Draft Plan, in reading the Draft      
 16 prepared by the staff, most of the evidence that we      
 17 presented was ignored, or at least it was given minimal      
 18 weight.      
 19        There are words throughout the report saying we      
 20 have balanced, but it is hard to see how any real      
 21 balancing occurred when there is almost no protection for      
 22 future water uses and needs that will be coming down the      
 23 pike.      
 24        An evaluation of total values requires      
 25 consideration of political consequences, economic                                             
               
 121       
   1 consequences, social consequences, things such as the       
   2 gentleman from Anheuser-Busch was talking about.  I think       
   3 the staff in the Draft has lost sight of the admonitions       
   4 of Justice Racinelli in what you should do in carrying out       
   5 the terms of the Porter-Cologne Act.       
   6        My fear is that by establishing unrealistic goals,       
   7 but not carrying out the requirements of the Water Code to       
   8 balance, to weigh, to consider, to accommodate, the Board       
   9 will be finding itself in the same position that it was in      
 10 after the adoption of Decision 1485 where we are back in      
 11 court, we are fighting over the basis for your determine      
 12 and we don't have any semi-finality in the water world, of      
 13 course, but you are not going to get that which you are      
 14 seeking.      
 15        You are charged with planning for the future, for      
 16 1990, for the next century.  The staff Report in my mind      
 17 does not do that in coming up with unfounded conclusions      
 18 about what areas dependent upon the Delta can do by way of      
 19 conservation, by way of reclamation, by way of water      
 20 transfers.  None of that has any substantial foundation in      
 21 evidence so far.      
 22        The reason everyone is here before you today is we      
 23 have the Report, we presume you are going to use that as      
 24 the point of departure, and using it as the point of      
 25 departure all the parties need adequate time to evaluate                                    
                        
 122       
   1 what's been said and I get the impression from the Board       
   2 so far such time will be granted.       
   3        We feel that about six months would be necessry       
   4 from our point of view, not for these operational studies,       
   5 not for the studies that are going to be made on a       
   6 statewide basis, but to determine whether the conservation       
   7 projections done by the staff are workable in San Diego       
   8 County.  We have a limited data base.  We have retained       
   9 consultants and have assigned staff to start working on      
 10 this.      
 11        As you know, San Diego is a vast and varied county,      
 12 some of it highly urbanized, some agriculture, some of it      
 13 inland where the temperatures soar, others is along the      
 14 coast where the temperatures are moderate.  All of those      
 15 things have to be taken into consideration to determine if      
 16 the conservation program that has been suggested will      
 17 work.  And if it won't, we would like to come back and      
 18 tell you and show you why not.      
 19        The subject has come up several times today about      
 20 cross-examination and how you should conduct Phase 2.  As      
 21 a lawyer, my personal feeling is, and I think most      
 22 conclude cross-examination is one of the sterling      
 23 characteristics of the judicial system.  Yes, it gets      
 24 burdensome; yes, sometimes you don't want to hear it all,      
 25 but the purpose of it is to get out the truth and to get                                         
                   
 123       
   1 out the facts and whether you call your proceedings       
   2 quasi-judicial or quasi-legislative, I don't think it's       
   3 relevant.       
   4        If you start changing in mid stream now it's going       
   5 to create a lawyer's delight when we start going to court       
   6 and trying to attack or set aside what you have done.  I       
   7 think it is in your interests to allow a continuation of       
   8 cross-examination.  The Chair, as pointed out earlier       
   9 today, knows how to restrict that cross-examination if it      
 10 gets out of hand, but it is in your interest to find out      
 11 the facts before you make the ultimate policy decisions.      
 12        How much weight should be given, as Vice Chair Ruiz      
 13 has stated several times, is going to be ultimately up to      
 14 you, but if you don't have the facts before you, you can't      
 15 make those kinds of decisions, so I would urge on behalf      
 16 of San Diego that you allow adequate time for everyone to      
 17 make the studies necessary to present you with the facts,      
 18 that you allow cross-examination in order to determine      
 19 what facts are relevant and what facts are correct.      
 20        Thank you very much.      
 21        MR. MAUGHAN:  Thank you, Mr. Peck.      
 22        I guess there are no questions.      
 23        The first card I have after 1:30 would be Nat      
 24 Bingham, President of the Pacific Coast Federation.      
 25        We will reconvene at 1:30.                                                     
 124       
   1             MONDAY, JANUARY 9, 1988, 1:30 P.M.       
   2                         ---o0o---       
   3        MR. MAUGHAN:  If you would all take your seats,       
   4 please, we will resume our workshop.       
   5        As I announced before, Nat Bingham, President of       
   6 the Pacific Coast Federation is first.  After Mr. Bingham       
   7 will be Ed Huntley, Chief of the Division of Planning for       
   8 the Department of Water Resources.       
   9        MR. BINGHAM:  Good afternoon.  My name is Nat      
 10 Bingham.  I amk President of the Pacific Coast Federation      
 11 of Fishermen's Association.      
 12        I would like to thank you for the opportunity to      
 13 present testimony to you.  We represent 24 commercial      
 14 fishermen's associations on the West Coast of the United      
 15 States.  Most of our member associations are made up of      
 16 salmon fishermen and most of those fishermen depend in      
 17 turn on fish which spend part of their life in the San      
 18 Francisco Bay-Delta estuary.      
 19        We have as much at stake in these Bay-Delta      
 20 hearings as any so-called party of interest, more than      
 21 most.      
 22        The Board's November 3, 1988, Draft Water Quality      
 23 Control Plan for salinity in the San Francisco      
 24 Bay-Sacramento-San Joaquin Delta estuary, has touched off      
 25 a firestone of controversy to which we fishermen say, it's                                    
                
 125       
   1 about time.  The Plan is controversial because it is the       
   2 first official document ever to uncover a monsterous       
   3 embarrassment which California government officials have       
   4 kept hidden for too long.       
   5        The Federal and State Water Project plans laid out       
   6 50 and 30 years ago cannot be completed without destroying       
   7 the beneficial uses, particularly the fisheries of the San       
   8 Francisco Bay-Delta estuary.       
   9        The situation as we see it is not very complicated.      
 10 California's water development plans were drawn up in an      
 11 area of ignorance about streamflow needs of the San      
 12 Francisco Bay-Delta estuary.  The laws at that time were      
 13 little concerned with protection of the environment or      
 14 with the protection of those whose livings are dependent      
 15 on healthy rivers.      
 16        Since then new laws made clear the public's      
 17 determine to keep its nation's waterways productive.  The      
 18 Draft Plan before you responds to modern law.  The clash      
 19 between plans conceived in ignorance and today's knowledge      
 20 and today's laws was inevitable.  Simple though these      
 21 facts may be, the water development community's response      
 22 to the Draft Plan has been vociferous and clearly designed      
 23 to make the Board's job more complex.      
 24        On December 21, 1988, the Secretary of the Interior      
 25 stripped the U. S. Fish and Wildlife Service of its                                               
     
 126       
   1 attorney and announced the Bureau of Reclamation's lawyer       
   2 to represent fishery interests.  This ends the Fish and       
   3 Wildlife Service's assistance to these hearings without       
   4 which actual streamflow needs to the Central Valley salmon       
   5 resource would never have made it into the hearing record.       
   6        The Department of Water Resources argues now that       
   7 streamflow is not a legally proper element of the Water       
   8 Quality Control Plan.  What's going on here?  Was the       
   9 Department sleeping in 1986 when the Board, after ten      
 10 months of prehearing public discussion of the subject      
 11 adopted a workplan to develop a Draft Plan for salinity      
 12 and flow?  The Department of Water Resources wants the      
 13 improved streamflow standards torn out of the Draft Plan.      
 14 They don't want the relationship of streamflow to water      
 15 quality in the Delta discussed.      
 16        Well, they can run, but they cannot hide.  The      
 17 essential fact remains that the existing Delta outflow      
 18 fisheries protection standards won't work and they must be      
 19 fixed, just like the Fish and Wildlife Service explained      
 20 before they were gagged, just as the Draft Plan so clearly      
 21 states.      
 22        The Central Valley Project and the State Water      
 23 Project lobbyists have attacked the Draft Plan's      
 24 recommendations for water conservation and risk sharing.      
 25 Both want 100 percent system reliability no matter how                                      
              
 127       
   1 much they increase their use of water.       
   2        In the fisheries, we know all about dry year       
   3 reductions and risk taking.  Every time I untie my boat       
   4 and go fishing, I take a risk.  I don't know whether I am       
   5 going to be able to catch fish or not.       
   6        The Board's existing Delta standards which this       
   7 Draft Plan seeks to improve, provides for no salmon smolt       
   8 survival in eleven percent of the years, zero salmon crops       
   9 survival, that's zero crop for me and the folks I      
 10 represent. The best it ever gets is 38 percent.  No other      
 11 California food producer takes the water cuts or the risks      
 12 that we take.      
 13        The existing Delta standards are grotesquely      
 14 inadequate.  The Draft Plan would bring some equity into      
 15 the system.  The water lobbyists' campaign to delay the      
 16 Phase 2 hearings does not reflect a real need for more      
 17 study.  It's a thinly veiled plot to destroy the Plan and      
 18 avoids political responsibility to act responsibly to      
 19 protect the beneficial uses of the Bay-Delta estuary      
 20 through a lengthly publicly financed propaganda campaign      
 21 directed at Californians and their elected officials.      
 22        Six months from now California salmon fishermen      
 23 will be at sea struggling to earn their living, to feed      
 24 their families, to pay their mortgages, to sustain their      
 25 communities.  If you delay these hearings on the Bay-Delta                                
                    
 128       
   1 Draft Water Quality Control Plan until then, you toss       
   2 aside the hearing results that were worked out in public       
   3 hearings over two years ago.  You cast aside the civil       
   4 rights of California salmon fishermen.       
   5        I just want to add a comment there that the way we       
   6 catch salmon is by being out there on the ocean all the       
   7 time.  The salmon season runs from May 1 until September       
   8 30.  I urge you to make it possible for the salmon       
   9 fishermen to participate in these proceedings in the      
 10 public phase.  We have a right to be heard.  Our lives are      
 11 on the line.      
 12        If you play into the water lobbyists' hands and      
 13 shelve the hearings , you will literally be selling out      
 14 those who depend on the health of the San Francisco      
 15 Bay-Delta estuary which includes the many thousands of men      
 16 and women of the salmon fishing industry.      
 17        MR. MAUGHAN:  Well, I can assure you that you can      
 18 and will be heard if you appear at the Phase 2 hearings.      
 19        MR. BINGHAM:  Well, I myself will definitely      
 20 attend, but it will mean I will have to give up some of my      
 21 income to come to these proceedings.  But I believe you      
 22 should make it possible for fishermen to come by      
 23 scheduling the hearings during the off-season and I      
 24 believe that to move ahead expeditiously would accomplish      
 25 that purpose.                                                     
 129       
   1        MR. MAUGHAN:  I understand.  Any questions by any       
   2 of the Board Members?       
   3        Thank you for coming and giving us your viewpoints.       
   4        MR. BINGHAM:  Thank you.       
   5        MR. MAUGHAN:  Mr. Ed Huntley and after Mr. Huntley,       
   6 Mr. McKinney of Casitas Municipal Water District.       
   7        MR. HUNTLEY:  Good afternoon, Chairman Maughan and       
   8 Members of the Board.  I am Ed Huntley, Chief of the       
   9 Division of Planning for the Department of Water      
 10 Resources, and today I would like to go over and elaborate      
 11 on just a few of the points that were raised in our      
 12 December 19 written statement that we presented.      
 13        Before I get into those concerns, I would like to      
 14 point out that we certainly appreciate the difficulty      
 15 faced by the Board and its staff in grappling with such a      
 16 voluminous record and such complex issues under the new      
 17 and untried rules of post Racinelli water quality      
 18 planning.      
 19        I should point out also that along with the rest of      
 20 the hearing participants, we were involved in the      
 21 development of the workplan.  Maybe we were asleep, as Mr.      
 22 Bingham suggested, and we helped put that workplan      
 23 together for these proceedings, and now in retrospect, we      
 24 find that it may not be scoped properly.      
 25        As we described in our statement, we have several                                    
                
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   1 factual, legal and policy concerns with the Draft, but it       
   2 is not our intention to bring up all those issues today.       
   3 What we hope to achieve today is to identify those       
   4 problems which we believe need to be resolved in order to       
   5 determine the appropriate forum and timing of the next       
   6 Bay-Delta proceedings.       
   7        One of the major areas of concern for the       
   8 Department in reviewing the Draft Plan has been the       
   9 adequacy of the program of implementation.  Specifically,      
 10 we think that the Board needs to consider and make      
 11 provisions for including completed and ongoing      
 12 negotiations which are capable both of advancing the      
 13 Board's water quality interests and of assuring harmony      
 14 and consistency with the State's other planning programs      
 15 and objectives.      
 16        And on that note, I was glad to hear the Board's      
 17 recognition in your opening statement today of the      
 18 importance of these negotiations.  Unfortunatly, that      
 19 recognition isn't expressed too clearly in the Draft and I      
 20 did have a couple of examples where it expressly excludes      
 21 some of our negotiations that have been going on.  I won't      
 22 go into those details now about the South Delta and some      
 23 of the work that we are doing with five agencies on the      
 24 salmon management group, but whether we are talking about      
 25 the South Delta situation or the efforts of the five                                              
      
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   1 agency salmon group or the Article 7 negotiations with the       
   2 Department of Fish and Game on the State Water Project       
   3 impacts which the Bureau has recently joined in those       
   4 negotiations, or the work on Senate Bill 1086 related to       
   5 the fisheries, or the Department's other Delta planning       
   6 efforts, or a completed coordinated operating agreement,       
   7 the Suisun Marsh preservation agreement, the four pumps       
   8 mitigation agreement, we believe that the approach that's       
   9 in the Draft kind of misses the mark in dealing with these      
 10 negotiations.      
 11        MS. RUIZ:  Excuse me, Mr. Huntley.  Along those      
 12 lines I am curious, in your estimation, within the parties      
 13 to those agreements who represents the public interest?      
 14        MR. HUNTLEY:  In each individual --      
 15        MS. RUIZ:  Any of the agreements.      
 16        MR. HUNTLEY:  Well, your Board sat in on the Suisun      
 17 Marsh agreement.  I hope that they represent that.  I      
 18 think Fish and Game was involved in several of these and      
 19 they represent the public trust interest, and our      
 20 Department itself is a public trust agency.      
 21        MS. RUIZ:  So in your mind signatores to any one of      
 22 these agreements, the public interest can be signed off by      
 23 any one agency?      
 24        MR. HUNTLEY:  By any one agency.  I think the      
 25 public perspective is covered, maybe not to every detail                                     
               
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   1 that you would like, and we are not saying that these       
   2 should be to the exclusion of other authorities, but what       
   3 we are saying is these should be included in your process.       
   4        MS. RUIZ:  Oh, absolutely, no question.  I am just       
   5 anxious to try to understand, because if all people are       
   6 allowed to resolve these through negotiations, which they       
   7 should, that some allowance be made for in the course of       
   8 those negotiations wherever possible for the public       
   9 interest to also be represented.      
 10        MR. HUNTLEY:  These are all public forums.  All of      
 11 our current negotiations allow for a public forum and      
 12 there are many agencies represented that sit in and can      
 13 speak throughout the negotiations that we are currently      
 14 having with Fish and Game and the same is true of the      
 15 other negotiations that are ongoing.      
 16        MS. RUIZ:  Thank you.      
 17        MR. HUNTLEY:  The program of implementation for      
 18 this Plan to achieve or at least make progress towards the      
 19 Board's water quality planning horizon should be      
 20 inclusionary and not exclusionary and that was the point I      
 21 was trying to get to.      
 22        Beyond the fact that the Board's planning objective      
 23 should in every reasonable way be compatible with other      
 24 statewide planning objectives, the program of      
 25 implementation, as well as the structure of the water                                          
          
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   1 quality objectives, should be designed to foster, if not       
   2 to sponsor, the significant negotiations and problem       
   3 solving efforts which exist today.       
   4        And there again, I am saying we have to include       
   5 these into it and not exclude them.  Similarly, we believe       
   6 what appears to be a lack of clear demarcation between the       
   7 objective and potential implementation tools has led to a       
   8 program of implementation which provides essentially no       
   9 alternatives, no array of strategies and really no real      
 10 program.  I think others have mentioned today that it is      
 11 extremely sketchy in the program implementation.      
 12        The result is that either the proposed objectives      
 13 are drawn so as to preclude all but one means of      
 14 implementation and that is invariably through water rights      
 15 regulation or there is no indication of how they are to be      
 16 implemented, but they leave the inference again that water      
 17 rights regulation is to be the exclusive method of      
 18 implementation.      
 19        As an example, in the case of the salmon flows at      
 20 Rio Vista, the Draft suggests that temperature may have a      
 21 role in salmon smolt survival, but instead of making      
 22 temperature the water quality objective, the Draft makes      
 23 flow the objective.      
 24        What this does is eliminate any discussion of      
 25 implementation other than through flow, that is through                                      
              
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   1 water rights regulation.  And if the temperature problem       
   2 is caused by a loss of upstream riparian canopy or by       
   3 upstream drainage discharges or by general climatic       
   4 changes, the program of implementation cannot address       
   5 these because the objective is flow which necessarily       
   6 assumes implementation through water rights regulation and       
   7 precludes an assessment of implementation alternatives       
   8 which might go to these causes.       
   9        An example of the other problem which results from      
 10 the lack of a clear distinction between water quality      
 11 objectives and implementation devices is the M&I objective      
 12 proposed for Rock Slough at Contra Costa Canal intake.      
 13 Much uncontroverted evidence submitted showing the impact      
 14 of local degradation of water quality and also showing      
 15 maintenance of good quality was often beyond the control      
 16 of the upstream diverters or Delta upstream diverters, yet      
 17 there is nothing in the Draft Plan program of      
 18 implementation to addres the problem of this local      
 19 degradation.      
 20        The invited inference is that the regulation of      
 21 diverteres will be looked to in an attempt to achieve the      
 22 water quality objective at Rock Slough.  In this instance      
 23 the framing of the water quality objective for Pumping      
 24 Plant No. 1 is appropriate.  It is an objective and a      
 25 planning goal.  But the failure of the Plan either to                                             
       
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   1 discuss the role and responsibility of local dischargers       
   2 or to express the condition the implied responsibilities       
   3 of diverters to meet that objective creates an alarming       
   4 uncertainty among those users.       
   5        We believe that much of the failure of the program       
   6 of implementation to set forth an array of alternatives or       
   7 to identify a progammatic approach to those alternatives,       
   8 to be related to the idea expressed in the Draft that, and       
   9 this is a quote from page 8-5, that new objectives must be      
 10 implemented in large measure through regulation of water      
 11 rights.      
 12        We believe that the Board must also look to      
 13 alternatives not involving water rights or to alternatives      
 14 which, if they do involve water right holders, do not      
 15 necessarily entail the regulation of their rights.      
 16        A discussion of the scope of the program of      
 17 implementation and the implications which that has for      
 18 structuring the reopening of the Bay-Delta hearings lead      
 19 us to another fundamental question of scope.  We and other      
 20 parties to this proceeding have already raised with you      
 21 the question of whether flow objectives which have no      
 22 relationship to water quality are proper in a Water      
 23 Quality Control Plan.  As we already indicated to you, we      
 24 do not believe that they are.      
 25        We have no doubt that the Board can properly                                          
          
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   1 consider all aspects of fish and wildlife beneficial uses       
   2 in its water rights process.  So the question is not       
   3 whether the Board must abandon consideration of the       
   4 non-water quality aspects altogether, but rather in which       
   5 proceeding should it undertake that consideration.       
   6        I know that we have all contributed to the       
   7 confusion and misunderstanding in coming to speak of flow       
   8 and salinity as though they were separate and individual       
   9 aspects of water quality where we originally meant to      
 10 describe the salinity problems relating to sea water      
 11 intrusion versus Delta outflow, the Delta outflow dynamic.      
 12        However this may be, we are persuaded that legally      
 13 the Plan must be for water quality control.  What this      
 14 means is that before the Board can truly estimate how long      
 15 it will be before Phase 2 hearings are reconvened, it must      
 16 first rescope its planning effort.  Of course, rescoping      
 17 will induce substantial changes in the objectives and      
 18 potential implementation alternatives, as well as in the      
 19 balancing involved in setting objectives and in the      
 20 development of the program of implementation.      
 21        Just as the development of the original workplan      
 22 was a product of a public effort among the Board and the      
 23 hearing participants, so would we expect the rescoping      
 24 mechanism to include discussion and input from all the      
 25 parties.                                                     
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   1        It is, of course, difficult to say today whether       
   2 new issues will emerge from a rescoping hearing process.       
   3 If they do, the Board should probably consider holding       
   4 additional evidentiary hearings to take evidence on the       
   5 new issues.       
   6        As we indicated in our written statement, we have       
   7 already, and as Mr. Maughan spoke of this morning, we have       
   8 already begun operations analyses and some supply demand       
   9 analysis on the November 3 Draft involving the Board's      
 10 staff and outside agencies and parties.  We have projected      
 11 about six months to complete this work.      
 12        We do recognize, however, that this schedule may      
 13 well be affected by any rescoping of the water quality      
 14 planning process.  And to anticipate the question, I don't      
 15 know exactly what that might mean without seeing the      
 16 rescoping.      
 17        Some of the discussions that we have already had,      
 18 for instance the one last week that your Board was      
 19 involved with along with several other participants, dealt      
 20 with agricultural water use in the San Joaquin Valley and      
 21 the savings possibilities down there.  And at the      
 22 conclusion of that meeting they had come up with a listing      
 23 of several items that needed further study and my staff is      
 24 estimating that those particular items, that don't really      
 25 deal with an operation study, might take six months to                                       
             
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   1 resolve in themselves, so it is kind of hard until we know       
   2 how the rescoping will be, how it might change the       
   3 objectives and also how far you go into analyzing the       
   4 various alternatives for implementation, it will be       
   5 difficult to estimate beyond that how much time it might       
   6 take.       
   7        MR. MAUGHAN:  Thank you.       
   8        Any questions?       
   9        MR. SAMANIEGO:  Do you in your thinking of about      
 10 how long it would take incorporate the variables of      
 11 various parties, being a part, too, of that process,      
 12 agreeing with you at times and disagreeing with you at      
 13 times and maybe wanting to rewrite an assumption or change      
 14 it?  How do you go about evaluating that?      
 15        MR. HUNTLEY:  Well, a lot of guessing, Mr.      
 16 Samaniego.  We have tried to allow for some of that in the      
 17 six month estimate.  That's assuming that we can agree on      
 18 a lot of assumptions.  If we find that there's a lot of      
 19 disagreement, that six months may expand.      
 20        MR. SAMANIEGO:  How would you anticipate raising      
 21 those issues where an impasse arises where you can't agree      
 22 on an assumption?  What would be your --      
 23        MR. HUNTLEY:  Assuming there's not too many of      
 24 them, we would probably try to see what the effect of that      
 25 particular assumption is on the outcome of the particular                                    
                
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   1 study we are looking at; in other words, try it with and       
   2 without that particular assumption.  You have to realize       
   3 that there has to be some limit to how many studies can be       
   4 run.       
   5        MR. SAMANIEGO:  You feel comfortable that the       
   6 process will lend itself well to that debate while you are       
   7 doing these studies?       
   8        MR. HUNTLEY:  I think that we can be reasonable       
   9 about the number of scenarios that we look at.      
 10        MR. MAUGHAN:  Ed, do you have people from Fish and      
 11 Game involved in these kinds of operation studies to get      
 12 their impact, too?      
 13        MR. HUNTLEY:  Well, we are certainly inviting all      
 14 participants to get involved.  We would like to get Fish      
 15 and Game involved in the discussions early on as they      
 16 relate to assumptions.  They definitely will be involved      
 17 in looking at the results of the operation study and have      
 18 asked for that portion of it.  We haven't talked with them      
 19 directly about the assumptions phase.      
 20        MR. SAMANIEGO:  Would you be involved in the      
 21 management of that team, that effort?      
 22        MR. HUNTLEY:  Of the overall management, yes.  We      
 23 have a committee within the Department that would oversee      
 24 that.  We would have some separate chairman that would be      
 25 hearing those particular items.                                                     
 140       
   1        MR. SAMANIEGO:  A number of folks have suggested       
   2 that they are willing to do that, however that might come       
   3 about.  Are there generic type tasks that can be assigned       
   4 to various folks that don't need a lot of debate and don't       
   5 need consensus?       
   6        MR. HUNTLEY:  I think there are generic tasks that       
   7 we can give to people who should have the best information       
   8 on those particular things to give us a first cut at that       
   9 information so that then we can debate it at that point      
 10 rather than to have us all sitting down and debating right      
 11 off the bat.  I am thinking maybe of operations of      
 12 non-project reservoirs.  It would be best to get the      
 13 initial information from those operators rather than our      
 14 project people trying to sit down and decide how they      
 15 operate.      
 16        MR. SAMANIEGO:  Some of your assumptions will lead      
 17 to things that don't even exist today; is that possible?      
 18        MR. HUNTLEY:  That's possible.  We are already      
 19 reprogramming some of our models just to try to simulate      
 20 some of the objectives that were in the Draft Plan, so      
 21 there's some of these things that we have never tried and      
 22 we are not currently programmed to do.      
 23        MR. SAMANIEGO:  I would like in time to discuss      
 24 with you how this Board will be at least an auditor in      
 25 that process so that we may be aware of where the                                          
          
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   1 difficulties arise or where impasses at least are       
   2 approaching, in order to head them off, to speed the       
   3 process.       
   4        MR. HUNTLEY:  Well, your staff, of course, will be       
   5 invited and involved throughout this and as far as the       
   6 Board goes, we welcome status reports from time to time if       
   7 that would be your choosing.       
   8        MS. RUIZ:  You said something earlier in your       
   9 written statement that I think needs to be explored even      
 10 beyond how long it is going to take you to resolve      
 11 assumptions to deal with the model, and that is, do you      
 12 have to have the model run in this phase.  What      
 13 constitutes a reasonable estimate in order to do basin      
 14 planning, and I am looking forward to your input on      
 15 whether or not we already have enough information on which      
 16 to base reasonable estimates.      
 17        MR. HUNTLEY:  I don't think you do on the present      
 18 scope, but I think that depends again on if and what      
 19 rescoping might entail, and it's hard to say without      
 20 knowing where that might be.  The current Draft goes well      
 21 beyond the operational information that the staff had at      
 22 its fingers to analyze the impacts.      
 23        MR. MAUGHAN:  All right, Thank you, Ed.      
 24        Mr. McKinney of Casitas Municipal Water District,      
 25 and after Mr. McKinney, Mr. David Whitridge of the South                                   
                 
 142       
   1 Delta Agency.       
   2        MR. McKINNEY:  Thank you, Mr. Chairman and Members       
   3 of the Board.  We do have a written statement, but I would       
   4 like to just quickly summarize by making three quick       
   5 points.       
   6        The first point is perhaps to dispel a myth.  I       
   7 would say yes, Virginia, there are independent agencies       
   8 south of the Tehachapis that this Plan will impact other       
   9 than Metropolitan Water District and the Coachella Valley      
 10 Water District and Imperial Irrigation District.  One of      
 11 those agencies is the Ventura County Flood Control      
 12 District which holds a contract with the Department of      
 13 Water Resources for a 20,000 acre-foot annual delivery.      
 14 Under the terms of the contract initial deliveries were to      
 15 occur in 1980 with full entitlement to be delivered in      
 16 1990.      
 17        The contracts have been transferred for      
 18 responsibility of administration to Casitas Municipal      
 19 Water District on behalf of the City of Ventura, United      
 20 Water Conservation District, as well as Ventura County      
 21 Flood Control District.  As of this date no deliveries      
 22 have been made under that contract.      
 23        The second point I wanted to make is that we are      
 24 concerned with the water conservation goals entailed in      
 25 the Plan.  Ventura County has had a countywide water                                      
              
 143       
   1 conservation program.  It has been very active,       
   2 implemented in November of 1983.  The countywide plan was       
   3 instituted as a condition of your Board in approval of an       
   4 eight million dollar grant to Ventura County and United       
   5 Water Conservation District to construct facilities to       
   6 offset and hopefully stop the sea water intrusion under       
   7 the Oxnard Plain.       
   8        In this program we have a full-time conservation       
   9 plan coordinator that's funded by the three wholesale      
 10 districts in the county and we feel it has been very      
 11 effective and we are concerned about how much more can be      
 12 done.      
 13        The conservation program has acted both in the      
 14 urban and agricultural areas.  Agriculture is still near      
 15 the number one industry in Ventura County.  The crops are      
 16 primarily citrus and avocados which cannot take years of      
 17 rationing because of the stress on the trees.      
 18        The third concern we have, or the third point, as I      
 19 said, we have not taken any deliveries under the contract      
 20 and I realize that there is some discussion about the      
 21 diversion limitations, but literally if you limit the      
 22 diversion to 1985, we weren't taking any water, so does      
 23 that mean we don't get any water in the future, and I      
 24 think it is very unlikely that Ventura County and the four      
 25 other agencies that have not yet taken delivery will just                                      
              
 144       
   1 want to continue making payments.  So that's a concern of       
   2 ours.       
   3        The request that I had was similar to others.  We       
   4 would like to see the hearings delayed six to twelve       
   5 months.  We would agree with the conversations that that       
   6 depends upon the scope and other items that could be       
   7 changed.       
   8        MR. MAUGHAN:  All right, Thank you, sir.       
   9        Mr. Whitridge, and after Mr. Whitridge, Mr.      
 10 Fullerton, David Fullerton.      
 11        MR. WHITRIDGE:  Good afternoon Board Members.  It      
 12 is nice to see you all here again.  I will be making the      
 13 comments today on behalf of the South Delta Agency and      
 14 various agricultural water users within the Southern      
 15 Delta.      
 16        We appreciate very much the amount of work and time      
 17 and level of analyses that has gone into the Draft Plan.      
 18 We understand that there's legitimate concern over      
 19 proceeding with the Plan based in significant part on data      
 20 references and methodology that were untested in the      
 21 hearing process.  However, there is also an urgency in      
 22 concluding the establishment and implementation of a      
 23 control plan.      
 24        This urgency, in our mind, makes a whole new set of      
 25 pre-Draft Control Plan hearings objectionable.  In regard                                    
                
 145       
   1 to such hearings, since material outside the record and       
   2 untested has been used, if it is introduced, it should be       
   3 subject to the same safeguards and procedures of all Phase       
   4 1 material, that is summary of testimony presented in       
   5 advance and subject to cross-examination and rebuttal.       
   6        The only alternative we can think of would be to       
   7 withdraw the current Plan and issue a new one as soon as       
   8 possible which might avoid the use of references and data       
   9 which were not in the hearing record, include appendices      
 10 giving full explanations of the assumptions, input and      
 11 calculated methodology used in arriving at balancing      
 12 proposals, impact calculations, feasibility and meeting of      
 13 poor standards and perhaps provide explanations of bases      
 14 for accepting some substantial hearing testimony and      
 15 rejecting others.      
 16        However you proceed, our major concern with the      
 17 Draft Plan is the lack of detail in the program      
 18 implementation section of the Plan required by the Water      
 19 Code.  We would recall that your workplan for the hearing      
 20 process at page 27 discusses the release of a document      
 21 entitled "Water Right Attainment Alternatives at the End      
 22 of Phase 2 and Prior to Phase 3" which is intended to      
 23 amplify and clarify the program of implementation.      
 24        Our concern is that if we keep delaying Phase 2 it      
 25 will be some time before implementation is ever considered                                
                    
 146       
   1 or presented in detail and we will be left with a skeletal       
   2 five page general program implementation which is       
   3 insufficient to address or review or comment on in any       
   4 meaningful way.       
   5        We would suggest if Phase 2 is delayed that the       
   6 Board consider having this attainment document released       
   7 and incorporated in the final Plan so that the       
   8 implementation section can become more meaningful and       
   9 understandable.      
 10        We do have some evidence that we would want to      
 11 present in Phase 2 in regard to the current Draft Plan.      
 12 However, overall very little time would be needed to      
 13 prepare for it and we feel that the Board should proceed      
 14 expeditiously and begin moving toward implementation      
 15 rather than further delay.      
 16        I would just point out that we had very similar      
 17 South Delta objectives in the 1978 Plan but they were      
 18 never implemented and never provided us any benefit or      
 19 relief from increasing problems of salt load and water      
 20 levels that we are now facing.      
 21        As a result, we sense a need to move foward rapidly      
 22 this time rather than suffer and incur further delays.      
 23        I have two other comments in regard to things      
 24 submitted before.  One, we feel certainly that flow      
 25 objectives are proper and necessary in areas such as the                                   
                 
 147       
   1 South Delta which stagnant areas can make adequate water       
   2 quality impossible in the absence of sufficient flows.       
   3        The other point was, Chairman Maughan asked in the       
   4 morning about hearing more about the nature of the       
   5 negotiations.  We are continuing as rapidly as we can our       
   6 negotiations.  There have been no major new developments,       
   7 but part of the evidence we would present is that physical       
   8 facilities will be required to meet all the Plan's South       
   9 Delta objectives, and our negotiations are focusing on      
 10 facilities.      
 11        Mr. Littleworth and some of the other speakers this      
 12 morning, I think, mentioned greater pushing of physical      
 13 facilities.  We feel the Board could require these within      
 14 a certain timetable and oversee it as it did with the      
 15 Suisun Marsh facilities, for example, and this could be      
 16 very helpful.      
 17        Thank you.      
 18        MR. MAUGHAN:  All right, Thank you.      
 19        Any questions?      
 20        All right, Mr. Fullerton, and after Mr. Fullerton,      
 21 Stuart Somach, and Ken Kuney.      
 22        MR. FULLERTON: I am David Fullerton, Project      
 23 Coordinator for the Bay-Delta hearings, coordination of      
 24 Public Education Project which is sponsored by the      
 25 Committee for Water Policy Consensus, and I represent a                                  
                  
 148       
   1 broad coalition of Bay interests which are looking for       
   2 improved quality standards for the Bay-Delta.       
   3        We would like to request an expeditious beginning       
   4 of Phase 2 of the hearing.  We would like to move forward       
   5 as soon as possible.  We consider the requests for delay       
   6 are based primarily on issues which should be addressed in       
   7 Phase 3 of the hearings and are not even appropriate for       
   8 Phase 2.       
   9        I am referring primarily to the operational studies      
 10 which have been mentioned today.  As we see it, the main      
 11 question for Phase 2, well, basically Phase 2, but Phase 1      
 12 as well, is where should the water go.  That's what we      
 13 should be talking about right now.  Where should the water      
 14 go in California?  Where is it needed?  And that includes      
 15 all the needs, not just the Bay and Delta.      
 16        And then, as we see it, Phase 3, the appropriate      
 17 time to say where do we get that water and how do we      
 18 distribute it?  What is the operating regime needed to      
 19 make that new distribution of water?  That is to say we      
 20 would put beneficial uses prior to rather than after the      
 21 operational Plan.  We are confident that that is      
 22 appropriate.      
 23        I think that a lot of the objections that have been      
 24 made are predicated on the idea that if this particular      
 25 conservation Plan, reoperation Plan that was in the                                           
         
 149       
   1 document, if that is found to be unworkable, that the       
   2 whole thing collapses.  We don't view it that way.  We       
   3 think that there are modes of getting the water that you       
   4 need for whatever standards you desire to put in place.       
   5 And that includes things like water marketing, water       
   6 pricing increases that are going to be inevitable in your       
   7 contracts.       
   8        There's going to probably be some land retirement       
   9 due to drainage problems.  All of these things are the      
 10 kinds of things that are going to help us deal with water      
 11 problems.      
 12        We, too, are not completely happy with the      
 13 documents as they stand, but we would like to move forward      
 14 in Phase 2 and argue it out there rather than delaying it      
 15 with more studies.      
 16        We would also say that if there are capabilities      
 17 such as I have mentioned through other things like pricing      
 18 and marketing, which probably haven't been addressed as      
 19 much as we would like, if there is capability there, why      
 20 should the environment take the hit if they are not      
 21 implemented?      
 22        Finally, I would like to talk about the idea that      
 23 we should take the flow section out of Phase 2 and put it      
 24 into Phase 3.  We would not like to see that at all.  We      
 25 think flows are an intrinsic part of the protection for                                            
        
 150       
   1 the Bay and Delta.  They belong in the section of the       
   2 hearings which are talking about protection and that's       
   3 Phase 2.       
   4        I think the closer they get to the implementation       
   5 portion, the more confusion there is going to be, the more       
   6 difficult it is going to be, and I think the closer you       
   7 get to violating the sphere of the Racinelli decision       
   8 which has said. you know, fix the system first and then       
   9 find the water for it.      
 10        And just as an aside, I have been asked to tell you      
 11 that Contra Costa County and also the Committee for Water      
 12 Policy Consensus would also request that there be a delay      
 13 no longer than six months.      
 14        Thank you.      
 15        MR. MAUGHAN:  Thank you, Mr. Fullerton.      
 16        Mr. Somach, or Mr. Kuney going to come up as well?      
 17        MR. SOMACH:  No, I will just handle it as opposed      
 18 to having a duet.  We had it all planned nicely that way,      
 19 but we decided because of time constraints we would just      
 20 do it this way.      
 21        MR. MAUGHAN:  Mr. Coburn from San Francisco will be      
 22 after you.      
 23        MR. WALSH:  Did you help Myron Holbert with his      
 24 dinosaur theory?      
 25        MR. SOMACH:  Not at all.                                                     
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   1        The Central Valley Project Water Association, whom       
   2 I represent here, has filed both a petition as well as a       
   3 letter with the State Water Resources Control Board which       
   4 sets forth in some detail the positions of the Central       
   5 Valley Project Water Association on the issues that we are       
   6 dealing with here today.       
   7        So rather than repeating all of that, I just want       
   8 to summarize, if I could, the major points that I think       
   9 are of concern to us as we proceed through the next phase      
 10 of this process.      
 11        The first thing is that our petition requests that      
 12 the existing Draft Report be withdrawn, that it be      
 13 withdrawn and that a new Draft be issued which will in      
 14 turn be the subject of the Phase 2 hearings .      
 15        The basis and rationale behind that particular      
 16 request is that we believe that prior to the time that one      
 17 can move into a final opinion, there will have to be very      
 18 significant modifications made to the existing Plan and we      
 19 believe that given that document's CEQA related use that      
 20 one cannot just simply jump from the Draft Plan as it is      
 21 currently constituted into a final Plan.      
 22        Now in the time from when we initially filed our      
 23 petition there has been some discussion, indeed there has      
 24 been some discussion here about in fact issuing a separate      
 25 Draft or an additional Draft Report prior to the time that                                      
              
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   1 a final Report would be issued.  I think, of course, that       
   2 that would go a long way to remedying what we see as a       
   3 significant defect in the process.  In other words, one, I       
   4 guess, need not withdraw the Draft at this time, but could       
   5 later on issue a second Draft and still cure the defects       
   6 that we are addressing in our petition.       
   7        In that context I thought that I would highlight,       
   8 and I really only want to highlight these because I don't       
   9 want to get into the detail of these issues, what we felt      
 10 to be major defects, and some of these, of course, are      
 11 those that the Chairman has already identified as issues      
 12 that are of some concern.      
 13        The first issue deals with the flow limitations      
 14 within the Report.  They are not directly related to water      
 15 quality issues.  We do not believe that the Board is      
 16 powerless to deal with those issues and I think we have      
 17 spelled those out clearly in our petition.  We do,      
 18 however, feel there is a time and place for the Board to      
 19 deal with those issues and the water quality phase is      
 20 simply not the time to deal with those.      
 21        The second major issue is one that perhaps needs      
 22 further briefing by the parties as has been suggested by      
 23 others today and that's the question of whether or not the      
 24 Board's mission here is to protect beneficial uses of      
 25 water in the Delta or whether or not the mission is                                             
       
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   1 instead to protect all beneficial uses of Delta water.  I       
   2 think that conceptual issue is very important as to how       
   3 one proceeds in the development of a Plan.       
   4        We, of course, have taken the position and have, we       
   5 believe, supported it in our position that the Board's       
   6 mission ought to be the establishment of water quality       
   7 objectives that protect all beneficial uses of Delta       
   8 water, perhaps a broader inquiry than the one that staff       
   9 embarked upon.  We also believe that certain of the demand      
 10 scenarios that have been outlined are not realistic and      
 11 that they have operational constraints at the very least,      
 12 and maybe other constraints on their imposition, and when      
 13 I talk about operational constraints I think that not only      
 14 are we talking about the technical operational constraints      
 15 that have been somewhat of a topic of discussion here, but      
 16 also some legal operational constraints that may in some      
 17 respects relate to the federal project perhaps more than      
 18 to the State Project itself.      
 19        As has also been mentioned before, I believe that      
 20 the Draft focuses much too much on the water right      
 21 solution in the context of the implementation aspects      
 22 instead of looking at the broad range of implementation      
 23 options that are available.      
 24        At one point, one Board Member asked whether or not      
 25 that implementation could recommend to others certain                                      
              
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   1 tasks be done and I believe that Racinelli specifically       
   2 states that in fact that program of implementation, as we       
   3 move away from the water rights aspect would in fact be       
   4 limited to requests and recommendations of other entities       
   5 who are capable of carrying out some of the ideas in terms       
   6 of water quality implementation that the Board may have       
   7 derived through this process.       
   8        With respect to the question of whether or not       
   9 negotiations by other parties have been ignored, I think      
 10 that's a key issue.  I think certainly while the Board may      
 11 not intend to ignore those as it proceeds through its      
 12 phase of reviewing the reports, it appears the staff has      
 13 somewhat forgotten those aspects of testimony that were      
 14 presented during the hearings.  Representing an agency or      
 15 entity that is not one of the formal agencies that entered      
 16 into these negotiations oftentimes were called upon to      
 17 contribute and even to sign off because we are, after all,      
 18 contractors of water from the federal government, on      
 19 proposals that have been raised in these negotiated      
 20 sessions, and it's a very difficult thing to sign off on      
 21 one of those things if one has the knowledge that when      
 22 push comes to shove nothing in those agreements will be      
 23 validated by the agency or the entity, yourselves in this      
 24 case, that has the power to implement or not implement      
 25 those agreements, so it is very important to us, who are                                     
               
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   1 not directly involved in those negotiations, to understand       
   2 exactly how the Board will view these negotiations as we       
   3 are asked to comment and involve ourselves in those       
   4 situations and we feel there is great value in having the       
   5 parties sit down and negotiate, the solutions to these       
   6 problems together.       
   7        Finally, with respect to what we perceive to be       
   8 defects in the Draft documents, and that is one that's       
   9 also been talked about elsewhere here and I don't want to      
 10 go into any length about it, and that's just simply the      
 11 documents themselves don't really explain themselves.      
 12 They don't do a good job of explaining how they reached      
 13 the conclusions that they reached.      
 14        Now inquiry to Board staff in the workshops and      
 15 separately allowed us to come part of the way to      
 16 understanding how some of the conclusions were reached,      
 17 but that raises, of course, a separate and distinct issue,      
 18 and that is the reliance of the Report on analyses or      
 19 reanalysis of evidence without explanation or opportunity      
 20 to cross-examine on the reanalysis of the evidence that      
 21 was presented and also the utilization of evidence that      
 22 was wholly outside of the record that was never presented      
 23 during the Phase 1 hearings, so the parties to the      
 24 hearings simply could not understand and therefore      
 25 appropriately respond in the Phase 2 or any other types of                                 
                   
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   1 hearings that might be held in the future.       
   2        MS. RUIZ:  Mr. Somach, with regard to that, and I       
   3 think you have a legitimate concern as to how we reach a       
   4 conclusion or the staff reached a conclusion, and perhaps       
   5 some kind of explanation of how one gets from here to       
   6 there needs to be inserted in this case.  But again, how       
   7 do you see that, where is it written, what legal authority       
   8 on which do you rely that if we do not have the power as a       
   9 Board to take evidence that is not in the record for basin      
 10 planning or we do not have the ability to rely on EPA      
 11 studies or other documentary evidence that hasn't been      
 12 subjected to cross-examination?      
 13        MR. SOMACH:  Well, I think you may be misperceiving      
 14 the thrust of my comments.  The comments are intended to      
 15 be constructive in how we think the process would be      
 16 better understood and better carried on in the context of      
 17 making sure that everybody understood and everybody felt      
 18 comfortable.  As Mr. Schulz indicated earlier, it was an      
 19 open process where there was plenty of opportunity to air      
 20 concerns in the context of the give and take of      
 21 cross-examination.      
 22        MS. RUIZ:  Are you assuming that that's the only      
 23 way one can have a give and take in formulating public      
 24 policy, is by cross-examination?      
 25        MR. SOMACH:  No, I'm not saying that either.  I                                        
            
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   1 think, however, that it has been proven throughout the       
   2 history of our --       
   3        MS. RUIZ:  Judicial system as you might recall.       
   4        MR. SOMACH:  No, I understand that, but I think       
   5 what has been found is that this is an effective method       
   6 for making sure that due process is done, that people are       
   7 able to air views.  I am not saying it's the only way and       
   8 I am not saying that the Board is not entitled to take a       
   9 look at documents such as EPA, the example that you looked      
 10 at.      
 11        I think, however, in our view that that is not      
 12 proper, and when I say proper, I don't mean necessarily      
 13 legally proper, but just simply the proper and appropriate      
 14 way to proceed through something that is so significant      
 15 and so important.      
 16        It also raises incredible problems in terms of      
 17 utilization of evidence in the Phase 3 proceedings, and      
 18 unless there's some drastic alteration between what the      
 19 staff has proposed and what the Board intends to do in the      
 20 context of Phase 3 which appears to be a water rights      
 21 proceeding, and in that water rights proceeding certainly      
 22 one would concede that evidence that is not subject to      
 23 cross-examination is not admissible as it is in the water      
 24 quality, that you will create for yourselves just simply a      
 25 procedural problem that I am not sure how one will deal                                     
               
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   1 with.       
   2        MS. RUIZ:  We create a procedural problem or --       
   3 understand as an attorney as well, I am very aware of your       
   4 need to have as many bites at the apple as possible.  But       
   5 does that mean, just as I posed to Mr. Zuckerman earlier,       
   6 that you are prepared that if you had all the protections       
   7 of cross-examination in Phase 1 and Phase 2, that you       
   8 would waive cross-examination in Phase 3?       
   9        MR. SOMACH:  I don't know if the question would be      
 10 waiving, but certainly if the evidence is merely brought      
 11 in, it has already been subject to cross-examination and      
 12 it is identical evidence with no additions, modifications      
 13 or deletions, my objection one way or another might not      
 14 even be relevant.  The question was whether or not the      
 15 evidence that is being relied upon was subject to      
 16 cross-examination.      
 17        MS. RUIZ:  I would submit to you, counsel, that you      
 18 have added enough caveats that we could load a truck with      
 19 and in all candor I would suspicion that you would be the      
 20 first there representing your client's interests to demand      
 21 cross-examination in the context of water rights in order      
 22 to more appropriately protect your client's interests.      
 23        MR. SOMACH:  If it was appropriate, I would clearly      
 24 demand cross-examination.      
 25        MR. WALSH:  So what's the answer to the question,                                  
                  
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   1 Stu?       
   2        MR. SOMACH:  I am not entirely sure what the       
   3 question is, to be real candid with you.       
   4        MS. RUIZ:  I believe the question is, isn't it       
   5 correct, you want cross-examination throughout this       
   6 proceeding?       
   7        MR. SOMACH:  I think that's what I stated, yes.       
   8        MS. RUIZ:  Phase 1, Phase 2, and Phase 3, and that       
   9 it should be left to you and your clients to determine      
 10 whether or not you will waive cross-examination in Phase      
 11 3?      
 12        MR. SOMACH:  Yes, that is exactly what I intended      
 13 to communicate and evidently I did.      
 14        MR. WALSH:  You know Stuart better than I thought      
 15 you did.      
 16        MR. SOMACH:  However, I think perhaps that was      
 17 known prior to the time I even said anything.      
 18        What I would like to do is summarize very quickly      
 19 for you how we believe in the context of the notice for      
 20 this workshop we should proceed in dealing with the      
 21 issues.      
 22        First of all, we have advocated withdrawing of the      
 23 Draft Report that we are dealing with here, and the      
 24 opening of Phase 1 type evidentiary hearings.  I am not      
 25 contemplating reopening of Phase 1, but rather on those                                    
                
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   1 issues that I have cited as creating a problem because of       
   2 the way information was dealt with, to have an evidentiary       
   3 hearing like we did in Phase 1 to deal with those limited       
   4 issues.       
   5        Thereafter, what we are proposing is that a new       
   6 Draft be issued and that new Draft then be subject to       
   7 Phase 2 type hearings.  In the context of that, what we       
   8 had originally contemplated was the Department of Water       
   9 Resources and U. S. Bureau of Reclamation input with      
 10 respect to modeling which they predict to take      
 11 approximately six months to complete, would be completed      
 12 prior to the time that we enter into these Phase 1 type      
 13 evidentiary hearings.      
 14        Now, keep in mind if the Board decides to simply go      
 15 forward but in fact decides to hold an evidentiary type      
 16 hearing, then this six month period simply would be      
 17 adjusted and adopted in that context.      
 18        I would like the Board to also keep in mind that in      
 19 addition to the six months that the agencies have      
 20 utilized, that there ought to be an increment of time to      
 21 allow those who are going to have to look at those      
 22 operational studies and other things to assimilate and to      
 23 understand those documents.      
 24        If we have a separate Phase 1 evidentiary hearing      
 25 and then a Phase 2 evidentiary hearing after a new Draft                                   
                 
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   1 is issued, I do not anticipate needing a whole lot of       
   2 time, but rather just simply the reasonable time that was       
   3 originally anticipated between the issuance of a new Draft       
   4 and a Phase 2 hearing on the new Draft.       
   5        With respect to the Phase 2 hearings themselves, we       
   6 are advocating a two tiered noticing type of procedure       
   7 that would allow the Board to state that certain locations       
   8 would be utilized to secure information on certain topics,       
   9 but that in each of those locations there would also be      
 10 time provided for general comments on all of the Plans.      
 11 That way I think the Board could accommodate both the      
 12 needs of those of us who are participating along the broad      
 13 array of issues and those that have a smaller and a lesser      
 14 amount of policy comments as opposed to the technical and      
 15 factual comments that some of us have.      
 16        In the analyses what we do believe is necessary is      
 17 that at least one more set of drafts is issued by the      
 18 Board prior to the time that a final report is issued,      
 19 that there be allowed in either a Phase 1 type hearing or      
 20 during Phase 2, the cross-examination or evidentiary type      
 21 of admission of evidence; and finally, although I know      
 22 that you are aware of it, part of the problem and the part      
 23 of the interaction in terms of procedure is perhaps due to      
 24 the existing workplan which lays out specific guidelines      
 25 as to how we are to proceed through this process and of                                    
                
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   1 course the Board in the context of deciding how it wants       
   2 to proceed will need to amend that workplan to allow what       
   3 needs to be allowed and to be done.       
   4        MS. RUIZ:  One other question.  Mr. Somach, you       
   5 were present during the formulation of the first workplan;       
   6 isn't that right?       
   7        MR. SOMACH:  Yes.       
   8        MS. RUIZ:  In the course of that it was made public       
   9 that in fact Phase 2 was anticipated to be without      
 10 cross-examination; isn't that correct?      
 11        MR. SOMACH:  Yes, it was.      
 12        MS. RUIZ:  At that time did you make a request or      
 13 did you raise objection to make sure that cross-      
 14 examination would be offered you and your clients in Phase      
 15 2?      
 16        MR. SOMACH:  I think that we in fact did write a      
 17 letter commenting on it and felt that cross-examination      
 18 would be appropriate during all phases.  What we did not      
 19 contemplate in terms of doing anything else with that      
 20 suggestion, if you remember there was a series of      
 21 workshops --      
 22        MS. RUIZ:  Well, back to the letter you reference,      
 23 if I could, I am most anxious to find a copy of that,      
 24 please.      
 25        MR. SOMACH:  I will return to my files.  I guess in                                     
               
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   1 terms of the point though, it is that at that time I don't       
   2 think anyone contemplated that the Report when it came out       
   3 would refer to evidence that had not been introduced       
   4 during the Phase 1 hearings, so as a consequence the       
   5 necessity for cross-examination as it were of that type of       
   6 information wasn't quite as focused because it was our       
   7 understanding that after coming through a Phase 1       
   8 evidentiary hearing, that everything that was derived from       
   9 that would somehow be based upon information that was      
 10 introduced under oath and subject to cross-examination      
 11 which of course was not the case.      
 12        MS. RUIZ:  Well, in which case I would also like,      
 13 if you could, just a brief summary of what it is within      
 14 the workplan that would lead you to believe that the Board      
 15 would not look outside the record.      
 16        MR. SOMACH:  If you like, I can go back and try to      
 17 reconstruct that.      
 18        MS. RUIZ:  I would appreciate that.      
 19        MR. SAMANIEGO:  You mentioned in your discussion      
 20 that you would need some time post operational study or      
 21 technical workshop to assimilate and to process the data.      
 22 That does not suggest that you would not be a part of      
 23 those workshops and part of those operational studies?      
 24        MR. SOMACH:  No, indeed, quite the contrary.  We      
 25 intend to be very much involved so that we understand what                               
                     
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   1 is going on as it is occurring throughout this entire       
   2 process.       
   3        All I am suggesting is that there still may be some       
   4 time after the final operational studies are done, and       
   5 here I am talking about maybe 30 days or so, to assimilate       
   6 and put together the types of comments that would be       
   7 appropriate to present to the Board in light of all of the       
   8 work that has been done.       
   9        MR. SAMANIEGO:  Can you be prepared to elevate      
 10 those issues quickly so that they could be resolved or at      
 11 least recognized where you do have differences or you      
 12 reach difficult assumptions that need more work?      
 13        MR. SOMACH:  Throughout the workshop and work      
 14 process that's been discussed here earlier today, yes      
 15 indeed.      
 16        MR. SAMANIEGO:  Thank you.      
 17        MR. MAUGHAN:  Thank you, Mr. Somach.      
 18        Mr. Coburn and after Mr. Coburn, Mr. Dick Schafer.      
 19        MR. COBURN:  Thank you, Mr. Chairman.  My name is      
 20 Robert Coburn.  I am here today representing the Bay Area      
 21 Discahrgers, and for the record, let me say I am not a      
 22 lawyer, I am an engineer.      
 23        We in responding to your Draft announcement looked      
 24 at the document that we were interested in which is one      
 25 that hasn't been mentioned today too much and that's the                                  
                  
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   1 Pollutant Policy document.  We will be ready about the end       
   2 of may to respond to that because we are looking right now       
   3 at the question of the mass emission limitations and their       
   4 impact and that's probably as serious from our perspective       
   5 as a discharger, as the water allocation outflow issues       
   6 are for water agencies.       
   7        We have a few other comments to be made       
   8 procedurally.  A simple one, which I think is evidenced by       
   9 the fact that mainly the only person who has spoken here      
 10 and spoken to this document would be to separate your      
 11 hearings by documents, so that we would not have to spend      
 12 time and staff energy attending a lot of the hearings.  We      
 13 could attend a very few and effectively help.      
 14        We have a couple of other requests, one of which is      
 15 that we would like the staff to provide information or a      
 16 listing of all the information that was used in developing      
 17 the Pollutant Policy document that was not part of the      
 18 introduced evidence so that we might look at it and avail      
 19 ourselves of it prior to making our presentation.      
 20        We would also like, and I think the barn door has      
 21 been left open and the horse is out, to ask that the      
 22 Regional Board not implement any provisions of the      
 23 Pollutant Policy prior to the adoption of it, and I      
 24 understand we are caught between portions of the Clean      
 25 Water Act which require designated water bodies that are                                   
                 
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   1 impaired to have mass emission limitations put on them, so       
   2 that in the South Bay we are now in the process of some of       
   3 our member agencies having their NPDES permits amended       
   4 with mass emission limitations on them which may put you       
   5 in the awkward position at some point of working on both       
   6 the Pollutant Policy document and perhaps an appeal of an       
   7 NPDES permit over the same provision.       
   8        Another request we have is that the staff provide       
   9 some assessment of the attainability and social and      
 10 economic impacts of the policy.  This is normally done as      
 11 part of the basin plan amendments.  This is sort of the      
 12 pseudo CEQA analyses.      
 13        But if we are going to be in the position of      
 14 adopting these things and NPDES permits without this      
 15 information, it puts the burden on the discharger to try      
 16 to evaluate the real impact of some of these types of      
 17 limits.  Mass emission limits basically can result in no      
 18 gross type of imposition on the dischargers which is kind      
 19 of similar to not having water and some of the arguments I      
 20 heard this morning.      
 21        Our last comment is that we are finding ourselves      
 22 at a loss on certain elements within the Pollutant Policy      
 23 document to understand what they mean and what we would      
 24 like to do is have an opportunity for all the people      
 25 reviewing it to submit their list of questions to you for                                         
           
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   1 response by staff so that we can all be coming from a       
   2 common basis, and the example we use is that mass emission       
   3 strategy comes into play when you find elevated       
   4 concentrations of constituents in tissue or sediments.       
   5 What does "elevated" mean, or at least, you know, some       
   6 idea of what is meant by it so we can have some idea what       
   7 impact that would be.       
   8        I would be pleased to respond to any questions if I       
   9 might.      
 10        MS. RUIZ:  Yes.  Mr. Coburn, you have been      
 11 experienced in dealing with the Regional Boards in the      
 12 development of past basin plans; have you not?      
 13        MR. COBURN:  Yes.      
 14        MS. RUIZ:  And in the course of that experience,      
 15 have you ever known the Regional Board to do it with      
 16 cross-examination?      
 17        MR. COBURN:  No, not to my knowledge.  As a matter      
 18 of fact, I am a proponent more of peer review and getting      
 19 everything out on the table and letting reasonable people      
 20 make their own decisions.  But that's because I am an      
 21 engineer and not a lawyer.      
 22        MR. MAUGHAN:  Any other questions?  Thank you.      
 23        Mr. Schafer, and then Mr. Dan Chapin.      
 24        MR. SCHAFER:  Mr. Chairman and Members of the Board      
 25 and staff, my name is Dick Schafer.  I am here                                                 
   
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   1 representing the Central Valley Contractors and the Mid       
   2 Valley Water Authority.       
   3        First, I want to commend the Board and the staff       
   4 for their open attitude about comments, in-depth review,       
   5 the approach of the technical workshop.  We believe that's       
   6 an absolute necessity and I will give you a few technical       
   7 comments why we believe so and why we support a redraft.       
   8        First of all on pages 4-66 to 4-69, we talk about       
   9 agriculture.  On Table 4.9.2-2, which deals with      
 10 agricultural water exports by the Central Valley Project      
 11 units for the 1985 water year -- the data set forth in      
 12 that tabulation is incorrect.  It is a misinterpretation      
 13 of our testimony and we suggest that it requires      
 14 correction to be factual.      
 15        Secondly, on the next page, Table 4.9.2-3, which      
 16 covers major crops grown in the Central Valley Project      
 17 export area by acreage and gross cash value, again that      
 18 data is incorrect.      
 19        The reason I do not know, because the data was      
 20 provided, but it is incorrect, and it needs to be      
 21 corrected.      
 22        With respect to reasonable consumptive agricultural      
 23 needs, I am addressing pages 6-3 through 6-6.  There's      
 24 four more pages on export agriculture, a total of 8 out of      
 25 332 and we believe we have embarked upon an understanding                           
                         
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   1 of the data on water conservation.  We are most       
   2 appreciative of the staff's willingness to meet and we had       
   3 a meeting last Thursday to identify the issues with the       
   4 data.  We spent most of the day and as was discussed       
   5 earlier by Mr. Huntley, we identified 12 issues requiring       
   6 additional review and understanding between the staff and       
   7 the technical group.       
   8        I think those issues are items that I might just       
   9 summarize very quickly.  The base data, the existing      
 10 irrigation efficiency numbers that were used in the      
 11 determine by staff of increase conservation and      
 12 agriculture, the irrigated agricultural area as of 1985,      
 13 and then that's projected to 2010, those numbers need to      
 14 be agreed upon; the evapotranspiration rates and the      
 15 cropping patterns of 2010; the applied water for the      
 16 cropping pattern, base level of '85 and that which is      
 17 projected for 2010; the irrigation efficiencies, what is      
 18 reasonable, do we need a range in that regard; and the      
 19 leaching fraction of five percent as just included, is      
 20 that adequate; distribution uniformity for the application      
 21 of irrigation, what is reasonable; the extent of the      
 22 shallow groundwater area that basically makes up the      
 23 potential conservation; and the depth to groundwater in      
 24 that area, can it be utilized at a depth greater than five      
 25 feet; the area of the salt sink and the detailed analysis                                       
             
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   1 unit 216, the costs for implementation of additional       
   2 conservation, and can you apply an individual field       
   3 efficiency to an entire basin or detailed analyses unit --       
   4 all of those issues came before us and we believe that in       
   5 order to properly agree upon them, a period of six to nine       
   6 months would be needed.       
   7        The subject of cross-examination, unless we can       
   8 agree through these technical workshops, how else can we       
   9 evaluate the information that is being prepared by either      
 10 the staff or those of us who provide such testimony.      
 11        And again, in support of reworking and developing a      
 12 new Plan, I don't see any other way when there is so much      
 13 of the data that was misinterpreted and needs to be      
 14 corrected, other than by issuing a new Draft Plan with the      
 15 corrected data included.      
 16        In further support of the workshops, the technical      
 17 workshops, I offer to you with respect to the restriction      
 18 on export pumping, as I read the figures during the      
 19 April-July period, the proposal would be to reduce the      
 20 export to somewhere about 1.1 million acre-feet during      
 21 that period and to achieve 5-1/2 million export for the      
 22 balance of the year which would require 4.4 million      
 23 acre-feet of diversion during the period August through      
 24 March.      
 25        If my computations are correct, there are 243 days                                     
               
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   1 left which would require 9100 second-feet of diversion on       
   2 an average daily basis during every day of that remaining       
   3 portion of the year which would place a tremendous burden       
   4 on a place to put the water when you have such       
   5 restrictions as the capability of 4,000 second-feet into       
   6 the San Luis Reservoir.  Where would the balance go,       
   7 particularly when there are no irrigation demands of any       
   8 significance during that period?       
   9        I think we have a problem with conveyance capacity,      
 10 storage, not to mention the impact this revised operation      
 11 would have on electric power, demanding that the      
 12 April-July, the peak period of demand for agriculture in      
 13 most cases, would have to be pumped from the underground,      
 14 and then during the winter months that water would be      
 15 replaced, somehow percolated into the underground, and the      
 16 surface water historically used is now converted to      
 17 groundwater pumping, and that increases the energy that      
 18 would be required for agricultural operations, a      
 19 tremendous impact that needs to be evaluated.      
 20        We were much disappointed that the plan dealt so      
 21 lightly with the San Joaquin Valley groundwater overdraft.      
 22 For years we have been dealing with the fact that there is      
 23 in excess of a million acre-feet of groundwater overdraft      
 24 within the San Joaquin Valley. The Draft Plan idly      
 25 mentions the overdraft in the Kern County area, yet if you                                  
                  
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   1 follow through the proposed Plan, groundwater overdraft       
   2 would be further compounded under the scenario that you       
   3 have been provided in this Plan.       
   4        It would further impact the operations that the Mid       
   5 Valley Water Authority have under current conditions, that       
   6 of utilizing unused capacity in the existing conveyance       
   7 facilities.  If you will, you are idling existing       
   8 extensive conveyance facilities during April-July and       
   9 expecting then the water to be exported during August      
 10 through March.  That in essence squeezes out the use of      
 11 those facilities for anyone else.  It would be used for      
 12 project water exclusively during other than the April-July      
 13 period and the restriction during April-July would not      
 14 allow the importation of water into the valley with the      
 15 existing facility.      
 16        You would just about eliminate the potential of any      
 17 groundwater overdraft reduction with existing facilities.      
 18 The plan does, however, point up the need for the added      
 19 conveyance facilities and storage south of the Delta such      
 20 as proposed by the Mid Valley Water Authority.      
 21        We have had in the Congress and it will be      
 22 introduced again, a bill that would provide for the Mid      
 23 Valley Canal, a connection between the Mendota Pool and      
 24 the Kings River along with some other features and      
 25 provides for additional storage south of the Delta.  Those                                   
                 
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   1 facilities become more predominant in need as a result of       
   2 a plan such as proposed by the staff.       
   3        The concept of balancing what you were discussing       
   4 today, we have difficulty in understanding why the total       
   5 need of agriculture, the total need of correction of       
   6 groundwater overdraft, is not a part of a planning       
   7 alternative.  Why do we not provide in this plan a summary       
   8 of the total needs of all the beneficial uses, and then       
   9 collectively develop the methods and the facilities to      
 10 provide those needs?      
 11        The proposed Plan, without a doubt, would curtail      
 12 water to agriculture and I can't overemphasize that, as we      
 13 provided extensive testimony in the Phase 1 hearings,      
 14 agriculture is the number one industry in California and a      
 15 billion dollar industry in 1985 in the San Joaquin Valley,      
 16 and some 13 or 14 billion dollars statewide.  It's a      
 17 curtailment of that industry that would occur as a result      
 18 of the Plan.      
 19        And finally, I must comment about the California      
 20 Water Ethic.  I am concerned that the Plan includes      
 21 conservation as the Work Ethic for all Californians, and      
 22 yet the Plan establishes an increased flow of the      
 23 Sacramento and the San Joaquin Rivers through the Delta to      
 24 the ocean, a salt sink of 2.85 million acre-feet during      
 25 the April-July period of each year.  Is that real                                                  
  
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   1 conservation?       
   2        Thank you, Mr. Chairman.       
   3        MR. MAUGHAN:  Any questions of Mr. Schafer?  There       
   4 appear to be none.       
   5        Mr. Chapin now, and then Mr. Bill Dendy and then we       
   6 will take our afternoon break.  After the break we have       
   7 seven more cards.       
   8        MR. CHAPIN:  Mr. Chairman and Members of the Board,       
   9 my comments will be rather brief.  I am a little short of      
 10 voice.  My name is Dan Chapin and I am representing the      
 11 California Waterfowl Association.      
 12        During Phase 1 of the Bay-Delta hearings the      
 13 California Waterfowl Association presented testimony      
 14 identifying the water supply needs of the state and      
 15 federal waterfowl refuge areas, waterfowl refuges in the      
 16 Central Valley together with those in the Grasslands      
 17 Resource Conservation District.      
 18        Essentially this same information was represented      
 19 by the U. S. Fish and Wildlife Service and by the      
 20 California Department of Fish and Game.  The attached      
 21 Table 1 contains the same data presented in a different      
 22 format which may be easier to understand.  And if you      
 23 wouldn't mind turning to that last page, we need to take a      
 24 look at it for a moment.      
 25        Please look at the level one supply and note that                                       
             
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   1 at the present time no federal refuge in the Central       
   2 Valley, with the exception of Kesterson, has a firm water       
   3 supply.  Level two reflects the current water use by the       
   4 refuges.       
   5        As indicated in column A, 266,800 acre-feet of the       
   6 existing 381,000 acre-foot refuge supply is provided by       
   7 the Bureau of Reclamation on a when and if available       
   8 basis.       
   9        Level four is the water supply necessary to permit      
 10 full habitat management of the refuge.  It includes      
 11 144,650 acre-feet of water that the refuges need but don't      
 12 presently receive, sort of like the proposed Delta fishery      
 13 flows.  This 526,200 acre-foot supply is 401,450 more than      
 14 the current firm supply as indicated in column C.      
 15        During the recent workshops held by your staff, the      
 16 California Waterfowl Association asked what analyses your      
 17 staff had done concerning the refuge water supply needs as      
 18 part of the balancing process which it used in arriving at      
 19 its proposal.  The answer was none.  Your staff was also      
 20 asked whether or not it had done any analyses of the      
 21 impact on the refuge water supplies of implementing the      
 22 proposed Bay-Delta standards.  Again, the answer was none.      
 23        The California Waterfowl Association's preliminary      
 24 broad brush evaluation of the proposed Bay-Delta standards      
 25 on the Central Valley refugre water supplies is that in                                        
            
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   1 the absence of any other State Board action, their impact       
   2 would be extremely severe.  The staff's scenario       
   3 anticipates that 900,000 acre-feet of incremental Delta       
   4 outflow will be provided from currently uncontracted water       
   5 available in the Central Valley.       A substantial       
   6 portion is expected to come from the uncontracted yield of       
   7 the Central Valley Project.  Included in the Bureau's       
   8 definition of this uncontracted yield is the existing when       
   9 and if available water supply currently used by the      
 10 refuges as well as the incremental supply needed to      
 11 maximize their wildlife values.      
 12        If this water is allocated to Delta outflow, the      
 13 potential clearly exists for effectively dewatering all of      
 14 the state and federal wildlife areas in the Central Valley      
 15 as well as the Grasslands Resources Conservation District.      
 16        In addition, the San Joaquin Valley refuges, in      
 17 particular, face a second problem.  The proposal to      
 18 underutilize the conveyance capacity of the California      
 19 Aqueduct and the Delta-Mendota Canal for four months of      
 20 the year by reducing Delta exports during that period will      
 21 result in increased conveyance demands during the      
 22 remaining eight months of the year if present export      
 23 levels are maintained.      
 24        We understand that there is a real question as to      
 25 whether or not the conveyance capacity exists to convey                                    
                
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   1 the Class 1 water contractual commitments under this       
   2 scenario.  However, there is no question whatsoever that       
   3 there will be no conveyance capacity for transporting when       
   4 and if available water to the San Joaquin Valley refuges.       
   5        In response to your questions, at the present time,       
   6 the Association cannot estimate how long it will take to       
   7 develop a detailed analysis of the impacts of the proposed       
   8 standards on the refuge water supplies.  Moreover, we do       
   9 not have the modeling capability to generate this      
 10 information.  In its absence we hope to take advantage of      
 11 the Department of Water Resources offer to provide such      
 12 information (see the attached letter), but have no idea      
 13 how long it will take to generate it.      
 14        We appreciate the opportunity of providing this      
 15 input and welcome any questions or suggestions.      
 16        In connection with what I have heard today, our      
 17 suggestions would be very simply, is that when you have      
 18 these technical workshops and start to look at some of the      
 19 things which inadvertently have been left out of the      
 20 current equation, that this issue be one that should      
 21 certainly be on the table.  We would welcome the      
 22 opportunity to participate and support this effort in any      
 23 way that we can.      
 24        MR. MAUGHAN:  All right, Dan, thank you very much.      
 25 Don't test your voice any more.                                                     
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   1        Bill Dendy and then we will take our break for ten       
   2 minutes.       
   3        MR. DENDY:  Thank you, Mr. Chairman.  My name is       
   4 Bill Dendy from Davis, California.  I am representing       
   5 Santa Ana Watershed Project Authority of Riverside,       
   6 California, which as you know, is a joint powers agency of       
   7 five municipal water districts.  We worked very closely       
   8 with the Santa Ana Regional Water Quality Control Board to       
   9 develop and implement the basin plan in that area.      
 10        With respect to his hearing, as you will recall, we      
 11 testified previously at your Irvine hearing.  As far as      
 12 being ready to proceed with the next phase, we could have      
 13 been ready today except for one aspect of the staff Draft      
 14 Report which has to do with the proposed water quality      
 15 standards for the water to be exported from the Delta, and      
 16 we estimate it will take about three or four months more      
 17 for us to analyze the potential impact of that.      
 18        In our basin plan in the Santa Ana we have always      
 19 assumed that State Water Project water coming to us for      
 20 use would be not greater than 200 parts per million total      
 21 dissolved solids.  That's about what it is now and we have      
 22 always assumed that in our planning.  The proposed      
 23 standards in the staff Draft allows 250 parts per million      
 24 of chlorides alone which to us indicates perhaps that the      
 25 total dissvolved solids would be two or three times higher                                   
                 
 179       
   1 than that.  We have to go back and determine what the       
   2 impacts of that would be on the basin plan in the Santa       
   3 Ana and how could we possibly manage water there if we       
   4 were to start with that level of salinity.       
   5        As you know, in our basin plan it calls for       
   6 multiple uses of water.  We start at the upper end of the       
   7 watershed with our best and use it three times before we       
   8 get to the beat.  We have purposely not assumed that we       
   9 would use Colorado River water.  In fact, we have built      
 10 projects to exclude the use of Colorado River water in the      
 11 upper watershed because of its high salinity and the      
 12 inability to get that many uses out of it without      
 13 violating standards.      
 14        We do this through salinity management.  We used      
 15 some very sophisticated mathematical computer models to do      
 16 our basin planning, not unlike the operation study models      
 17 used by the Department and the Bureau of Reclamation,      
 18 except we also include the groundwater basin and water      
 19 quality in all of our analyses and we are now in the      
 20 process of updating those computer models.  They should be      
 21 ready to go hopefully in six weeks and after that time,      
 22 then we would have to go in and use the new assumptions on      
 23 water quality for State Water Project water to see what      
 24 kind of basin plan we would have to formulate with that      
 25 kind of water quality.                                                     
 180       
   1        Now you have been asking three questions as you       
   2 have gone along here.  One is would our time of analysis       
   3 be shortened if you took out the proposals on flow,       
   4 outflow requirements and restricting on exports, and they       
   5 would not.  The only thing that would shorten our analysis       
   6 is if you say that the State Water Project water would be       
   7 250 parts per million total dissvolved solids.  Then we       
   8 would be all right.  We wouldn't have to do this analysis.       
   9 But just changing that part of the implementation Plan      
 10 would not shorten the analysis we have to do.      
 11        The second question you had was about the scope of      
 12 the inquiries.  We do think you should definitely include      
 13 consideration of the impacts of the decisions and the Plan      
 14 on other basins such as the Santa Ana, not just on the      
 15 Central Valley and San Francisco Bay region insofar as      
 16 water quality is concerned.      
 17        And the third question you have had is about what      
 18 should be included in a program of implementation.  I can      
 19 only refer you back to 20 years ago when we wrote the      
 20 Porter-Cologne Act.  The subject of what should be in      
 21 basin plan and a program of implementation was thoroughly      
 22 discussed at that time.  The idea of having a program of      
 23 implementation, one of the ideas of having it in the basin      
 24 plan in the first place was that it provided a balance      
 25 wheel against the water quality objectives.  That is, the                                      
              
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   1 Regional Board of the State Board in considering what       
   2 water quality objectives should obtain would have to have       
   3 in mind how that would be achieved.  It's a measure of       
   4 reasonableness.       
   5        If you can devise a reasonable, a Plan of       
   6 implementation to cause those objectives to be met through       
   7 your regulatory authority and through the actions of other       
   8 people that you would identify, the people who you cannot       
   9 regulate, if you can identify that and believe that that      
 10 was a reasonable Plan, then that would help support the      
 11 reasonableness of the water quality objectives.      
 12        That was not intended to mean that that was the      
 13 only possible program of implementation, but it was a way      
 14 of measuring whether or not the Regional Board or the      
 15 State Board has thoroughly thought through the      
 16 ramifications of setting particular water quality      
 17 objectives to be met.      
 18        For instance, if you wanted to set drinking water      
 19 standards under the Golden Gate Bridge, you would have to      
 20 figure out how you would achieve that, and one of the      
 21 purposes of it was to accomplish that.      
 22        So any other questions?      
 23        MR. MAUGHAN:  Mr. Finster.      
 24        MR. FINSTER:  This question has been raised to me      
 25 in several instances regarding the 250 parts per million                                      
              
 182       
   1 chlorides as the standard.  What is the standard in 1485?       
   2        MR. DENDY:  There never has been a standard set by       
   3 the Board on export water as far as I know.       
   4        MR. FINSTER:  That's not true.  Have you read       
   5 1485 -- were you here during the adoption?       
   6        MR. DENDY:  No, I wasn't here.       
   7        MR. FINSTER:  250 is the chloride requirement of       
   8 1485.  The contractors, as far as I have been told are       
   9 blending water through San Luis Reservoir, taking water at      
 10 lower concentrations of chlorides, and delivering to you      
 11 water in the vicinity of 250 parts per million TDS, which      
 12 is approximately 110 parts per million of chlorides, but      
 13 the standard is no different than it is in 1485.      
 14        MR. DENDY:  But there has never been a total      
 15 dissvolved solids standard put in it.      
 16        MR. FINSTER:  No, but you are talking about      
 17 chlorides.      
 18        MR. DENDY:  What I am proposing is we need a TDS      
 19 standard, not just for a maximum number but so we know      
 20 what we can expect and get.      
 21        MR. FINSTER:  You are saying the standard then      
 22 should be 110.      
 23        MR. DENDY:  I don't know what type of water it is.      
 24 If it is sodium chloride water, then it would be.  If it      
 25 is some different type of water, then the chloride                                               
     
 183       
   1 standard is not the right one to use.  In addition to that       
   2 you need to have a total dissvolved solids standard.       
   3        MR. FINSTER:  This standard that's set forth at the       
   4 point of diversion is no different than what is in 1485.       
   5 The State Contractors have an agreement with their users       
   6 that they will deliver a lower TDS, but that's a       
   7 requirement that they have in order to carry that carriage       
   8 water to produce water that's necessary to meet these       
   9 conditions, but it is no different than what is in 1485,      
 10 so I don't see that --      
 11        MR. DENDY:  I agree with that.      
 12        MR. FINSTER:  Well, the way you are presenting it      
 13 and the way it was put forth in this is that it is      
 14 something brand new that was never considered by the Board      
 15 and that it's just drastically changed, and that's not      
 16 true.      
 17        MR. DENDY:  I didn't intend to say that.  I am      
 18 saying at the hearing we had in Irvine we asked for a TDS      
 19 standard that we could rely on.      
 20        MR. FINSTER:  At the point of delivery or the      
 21 takeout?      
 22        MR. DENDY:  At the point of diversion.      
 23        MR. FINSTER:  And if you take it at 120 and they      
 24 can blend it during the high and low conditions in the      
 25 winter months and deliver it at 50 parts per million like                                       
             
 184       
   1 I think Contra Costa wants it delivered at 65 parts per       
   2 million if I'm not mistaken, that's the way they are going       
   3 to operate it.  But if you so elect and that's the       
   4 condition set forth in your contract with the State Water       
   5 Project, I don't think -- this is the maximum.  You can go       
   6 to the minimum.  We are not going to put down the minimum.       
   7 This is the maximum       
   8        Now if you want a lower one, then you are going to       
   9 have to worry about how it is blended and that type of      
 10 thing.  I drink the water.  I understand what you are      
 11 saying.  I live in the area, but I am getting a little      
 12 upset over the fact this has been misconstrued as      
 13 something drastically different than what is contained at      
 14 the present time, and it is not.      
 15        MR. DENDY:  The only thing different is that we      
 16 think there is a need to correct the past oversight of not      
 17 having an average TDS limit in the diverted water.      
 18        MR. MAUGHAN:  Okay.  Thank you, Bill.      
 19        Let's take a break until 3:20.  As I said, there      
 20 are seven people left and Paul Minasian is the first up.      
 21        (Recess)      
 22        MR. MAUGHAN:  Can I get people back in the      
 23 auditorium and in their seats so we can all get home this      
 24 afternoon.      
 25        Paul, you are up as soon as people get seated and                                    
                
 185       
   1 after Paul we have Barry Nelson, Save San Francisco Bay       
   2 Association.       
   3        MR. MINASIAN:  Mr. Chairman, my name is Paul       
   4 Minasian.  I speaking to you today on behalf of the Delta       
   5 Tributaries Group which is, as you know, a diverse group       
   6 of water right holders on the tributaries to the Delta.       
   7        Most of the points have been covered and I will try       
   8 to give you a brief summary of the position of DTAC in       
   9 regard to the Phase 2 proceedings.      
 10   1.  We need four to six months, that is our best      
 11 estimate.      
 12    2.  We ask you to set specific topics at specific      
 13 places so there will be an efficiency to the hearings.      
 14 Your procedure to this date has been admirable.  We think      
 15 we can carry that same sort of efficiency forward.      
 16    3.  We would like to see the proceedings in a      
 17 question and answer, and I intentionally do not use the      
 18 phrase "cross-examination."  Question and answer in the      
 19 case of water generally gets the very best results because      
 20 it allows the parties to talk about the black boxes of the      
 21 other parties and water in many ways in the past has been      
 22 something that only the owners of the projects knew      
 23 something about and the best way to get that out in the      
 24 open is to allow parties to ask questions of participants.      
 25   4.  I want to emphasize to you that we are greatly                                           
         
 186       
   1 concerned.  We think some time needs to be taken to       
   2 analyze the relationship of your proceedings to the       
   3 California Environmental Quality Act.  Now that doesn't       
   4 mean you have to write an EIR.  What the staff has been       
   5 saying and on the face of it, it is in the law, is that       
   6 your proceedings and the Plan and the implementation,       
   7 prior to the implementation phase is to be functionally       
   8 equivalent to an environmental impact document.       
   9        Now, of course, that means we talk about      
 10 alternatives.  One way we talk about alternatives is to      
 11 allow direct questions, and besides the excellent      
 12 discussion that occurred earlier about the seemingly      
 13 openness of the process which you get from allowing      
 14 questions, I believe that you are going to go some      
 15 distance toward satisfying the California Environmental      
 16 Quality Act if we allow questioning of the witnesses.      
 17 Otherwise, there is an argument that could be made that      
 18 the staff would have to respond in writing to every      
 19 comment that is made, and I suggest to you that it is much      
 20 more efficient to have a dialogue, expecially when we are      
 21 trying to have a dialogue with people that operate      
 22 facilities, and it is very obvious that in this basin plan      
 23 alternative we are talking about the means of operating      
 24 facilities as much as we are talking abut the objectives.      
 25        If you have any questions, I would be happy to                                          
          
 187       
   1 answer them.  We came today not thinking that you wanted       
   2 to hear about the various evils of the staff Plan and so       
   3 we are thinking that with the diverse group such as ours       
   4 it would be best to not comment.  There are other members       
   5 of DTAC here who have great concerns and we share in       
   6 those.       
   7        Those concerns relate to reoperating reservoirs and       
   8 certain tributaries and the impacts of those, the rice       
   9 herbicide program, just to mention a couple.      
 10        But we are pledged to work with you in this process      
 11 and we want to see it done in an efficient fashion.      
 12        MR. MAUGHAN:  Thank you.      
 13        MR. FINSTER:  We wanted to hear the good part, too,      
 14 but we didn't hear that.      
 15        MS. RUIZ:  Mr. Minasian, to your knowledge has      
 16 there been in the many years in the basin planning by our      
 17 Regional Boards, any challenge along the lines you have      
 18 just described for the failure to have questioning      
 19 consistent with the CEQA requirements?      
 20        MR. MINASIAN:  None.  I think we are in new ground      
 21 here.  Many of us would have expected the staff Report to      
 22 be written in a fashion closer to an EIR, that is talking      
 23 alternatives, talking environmental background, talking      
 24 socio-economic impacts, we therefore recommend the      
 25 following.  That didn't happen, and I have a number of                                       
             
 188       
   1 theories why it didn't happen because we are all here and       
   2 our attention is riveted on this process now and that's       
   3 not fatal.  I mean the first document out, if it has       
   4 insufficiencies in terms of dealing with the functional       
   5 equivalency function, that's not the end of the world.       
   6        So, no, there has been no legal challenge and I       
   7 don't want to see one.  Most of us are in public agencies       
   8 and we know environmental documents are a disciplining       
   9 factor.  They make you think about what you are doing.      
 10 That's all that's required of you, and as long as your      
 11 process makes you think about what you are doing, and I      
 12 assure you that, Mr. Maughan and you Board Members, can      
 13 keep the questioning in control.  I don't think that's the      
 14 issue.  You have not had a problem up to now.  I don't      
 15 think you will ever have a problem.      
 16        MS. RUIZ:  Well, you are not the only one, of      
 17 course, who has raised this question and I am trying to      
 18 probe for alternatives that would create that opportunity      
 19 for full participation.  Are there any other options short      
 20 of cross-examination in the Perry Mason mode that would      
 21 get the information in a useful way to all the parties,      
 22 because the attorneys sure are going to argue the evidence      
 23 anyway, such as discovery in the civil world that would      
 24 let you have access to what the Department of Water      
 25 Resources is doing and they would have access to what you                              
                      
 189       
   1 are doing, and you get to engage in full discussion about       
   2 the weaknesses of their point.       
   3        As I understood it, the task forces and the       
   4 workshops that were described by the Chair were to be an       
   5 avenue, an opportunity to engage in those kinds of things.       
   6 Wouldn't that allow you and your client a full and open       
   7 participation in order to bring the issues to the Board?       
   8        MR. MINASIAN:  Well, first of all, there has been       
   9 to this date an excellent working relationship between the      
 10 large projects and those of us who are probably just as      
 11 important in the water field but do not have the image of      
 12 being somebody who operates the Delta.  The cooperation is      
 13 very good, so we don't really have a problem of getting      
 14 information informally, plus I think the idea that it      
 15 might save time at the Board hearings probably might miss      
 16 this question, and that is that Board Members themselves      
 17 have questions and inquiries which are provoked by the      
 18 comments that are made at Board hearings.      
 19        Second, all of us are very much aware that you ask      
 20 four questions.  You better put your best four questions      
 21 out because you are going to lose everybody after that      
 22 point in time, so --      
 23        MS. RUIZ:  Well, I wish all counsel were so guided      
 24 but I'm afraid that hasn't been our experience.      
 25        MR. MINASIAN:  Well, my observation is different,                                     
               
 190       
   1 that you have seen a natural curtailment and people are       
   2 focusing upon the principal issues.       
   3        Now, maybe the staff Report we have is a sign that       
   4 that hasn't worked too well, because you know there's a       
   5 focus in the Report that I think is maybe the source of       
   6 some of the comments today.  And if there had been more       
   7 verbiage, more paper, maybe we would have less of an       
   8 emotional reaction.  On the other hand, I think the       
   9 emotional reaction is good.      
 10        We are all here, we are all thinking facilities, we      
 11 are all thinking how does this thing really work.      
 12        MS. RUIZ:  Another question I pose for you to      
 13 consider and others to comment to us on is what about,      
 14 from what I have heard, the biggest frustration is in      
 15 trying to figure out how the staff Report got from point A      
 16 to point Z, and cross-examination doesn't provide that.      
 17        The analytic framework, the time that is spent in      
 18 developing the analytic framework both for technical      
 19 issues and the legal issues seems to be an area that we      
 20 can really use the legal services of all that are      
 21 participating here and get focus so that not just you, but      
 22 the average Californian, can then understand how the Board      
 23 ultimately got from point A to point Z when the final      
 24 document is adopted.  That's just for you to consider.      
 25        MR. MINASIAN:  I think it is a creative thought.  I                                      
              
 191       
   1 think it has certain drawbacks to it which is that the       
   2 time we spend immersing ourselves in this is also the time       
   3 we spend getting up the energy to find a way through the       
   4 maze, and if you just have us immerse ourselves in our       
   5 fact finding, deposition type or staff workshop type       
   6 arrangement and we don't have the attention of all Board       
   7 Members to some degree, you will lose a bit of that       
   8 learning.  I agree you have other important things to do.       
   9        MS. RUIZ:  I think you misunderstand me.  I am not      
 10 saying the Board should in any way divorce itself from      
 11 understanding the issues and engaging in full dialogue      
 12 with the participants.  I am talking about where time      
 13 could be better spent as opposed to simply making      
 14 cross-examination the main focus of attention on our      
 15 workplan.  I am looking at perhaps trying to remedy what I      
 16 have heard from a lot of witnesses here today, a need to      
 17 understand.      
 18        MR. MINASIAN:  Do I detect a fear on the part, not      
 19 fear, but a concern on the part of some Board Members that      
 20 maybe the emphasis upon modeling and going back and      
 21 studying this is going to immerse the Board in the      
 22 operating details of the Bureau and the Department of      
 23 Water Resources projects to a degree in this phase that      
 24 you won't be able to keep with the global approach?      
 25        MS. RUIZ:  No, at least not on my part.  No, I'm                                        
            
 192       
   1 trying to determine how best to make our final work       
   2 product understandable to the public so that people will       
   3 know how we found an issue, how we framed the issue, how       
   4 we decided to weigh the evidence in terms of that issue       
   5 and how we ultimately concluded with our final decision.       
   6        MR. MINASIAN:  Just from a kind of different       
   7 viewpoint, there has been a proposal that one thing about       
   8 either starting and drafting a new Report to start out       
   9 with or having an interim Draft to work with.  In the      
 10 environmental impact field, as you well know, there's a      
 11 type of dialogue in consultation that goes on before you      
 12 put your Draft together which in a way, in some ways you      
 13 are limited by the ex parte order and by some of the      
 14 proceedings we have had here -- that the sort of process      
 15 you are thinking about in which we get together and we try      
 16 to Draft, and if we disagree we indicate the disagreements      
 17 and we bring alternative language to the Board?      
 18        MS. RUIZ:  Not just alternative language.  Take the      
 19 Draft in its current state.  Let's say the Board were to      
 20 do nothing to change it.  I think it would be helpful to      
 21 all the parties involved and to the Board Members to have      
 22 that broken down into some kind of analytic framework,      
 23 some kind of matrix as it were, so that we could see if      
 24 there was a method to check other alternatives, not just      
 25 the ones presented within the Draft document, but others,                                  
                  
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   1 and be able to know that we are exploring the broadest       
   2 range of implications to any given issue.       
   3        MR. MINASIAN:  I must say to you that I always try       
   4 to have the answer.  I don't have the answer to that.       
   5 This Board is a very active Board and you see things that       
   6 sometimes we don't.  Maybe some of the other speakers can       
   7 address that.       
   8        It seems to me that a consultation process in which       
   9 we work this Draft to provide a description of the step      
 10 process which leads to various alternatives, leaving to      
 11 the Board the choise of the alternatives, and then the      
 12 relationship of the alternative chosen to the other      
 13 alternatives that will be available, provides remarkable      
 14 opportunity to try to find how you used the word to      
 15 describe physical reality.  Nobody has ever done that, I'm      
 16 sure.      
 17        We could stop right now and try to find that matrix      
 18 and that may be a good investment of our time.  Your idea      
 19 appeals to me.      
 20        MS. RUIZ:  It is not my idea, but I can assure I am      
 21 anxious to hear others who think along these lines and      
 22 perhaps can bring us their coments.      
 23        MR. MINASIAN:  Thank you.      
 24        MR. MAUGHAN:  All right, thank you.      
 25        Mr. Barry Nelson from Save San Francisco Bay                                         
           
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   1 Association and then Mr. Greg Karras.       
   2        MR. NELSON:  Thank you, Mr. Chairman.  My name is       
   3 Barry Nelson, Executive Director of Save San Francisco Bay       
   4 Association, which is party to the hearings and an       
   5 organization of over 22,000 members around the state and       
   6 around the country concerning the protection of San       
   7 Francisco Bay.       
   8        I am going to address briefly two issues raised by       
   9 the Chairman, the first being the time necessary to      
 10 prepare for the hearings.  I will be brief because some      
 11 previous speakers have addressed some of these issues.      
 12        We believe the reasons cited for lengthy delays in      
 13 these proceedings are not relevant at this point in the      
 14 hearings.      
 15        The Board is not contemplating starting Phase 3,      
 16 the implementation phase of the hearings, and therefore      
 17 this is not the point in the hearings at which to consider      
 18 the potential specific impacts to specific water users.      
 19        And many of the criticisms leveled at the Draft      
 20 document are these Phase 3 implementation type concerns.      
 21 The Association is prepared to continue playing under the      
 22 rules that were adopted when these hearings began and we      
 23 would like to resume those hearings as soon as possible.      
 24        The second issue I would like to address is the      
 25 scope of those hearings, and the first point I would like                                      
              
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   1 to make is that we very strongly believe there is no need       
   2 to reopen Phase 1 and that inflow standards in the Draft       
   3 document are not only appropriate, but that they are       
   4 critical to these proceedings, and that the proposed       
   5 spring Delta standards are just a start in that process.       
   6        Standards are needed to protect the beneficial uses       
   7 of the estuary, and two things we think the Board needs to       
   8 consider in the Phase 2 hearings are, first, the lack of       
   9 standards for the entire estuary, and second the burden of      
 10 proof which the Draft document places on different water      
 11 interests in these hearings.  The Draft document places      
 12 the majority of the burden of proof on the natural      
 13 resources of California and on its advocates, while Bay      
 14 interests are required to demonstrate that the Bay      
 15 deserves any water.  No other sector of the water      
 16 community faces the same standards.      
 17        The Draft documents did not examine the potential      
 18 for a broad reexamination of California's water policies      
 19 and allocation practices to find water for environmental      
 20 protection as well as legitimate agricultural and urban      
 21 uses.      
 22        We think the Board in Phase 2 needs to consider, in      
 23 light of these two issues, how the final documents adopted      
 24 by the Board will comply with the Racinelli decision which      
 25 ordered, as you know, a global balancing of interests,                                        
            
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   1 natural resource protection and other issues.  That didn't       
   2 happen in the Draft document, and the Board needs to       
   3 consider adopting at least interim standards, well at       
   4 least interim standards to protect the estuary.       
   5        In 1978, when the last decision was made, the       
   6 estuary was told it was going to have to wait for more       
   7 studies to determine what sorts of protections would be       
   8 adopted.  Now we are being asked to wait for Phase 2 of       
   9 the hearings to begin so that according to the Draft      
 10 document we can wait again for more studies to consider      
 11 protection for the estuary.      
 12        The signs of deterioration in the health of the      
 13 estuary are very clear, such things as the crash in the      
 14 striped bass index, the population of striped bass, and      
 15 many other issues as well.  We think that a delay due to      
 16 these issues would not serve as good public policy.  It      
 17 would not be consistent with the Board's responsiblity to      
 18 protect the beneficial uses and it wouldn't be consistent      
 19 with the Racinelli decision, and we would like to address      
 20 those issues in Phase 2 as soon as possible.      
 21        Thank you.      
 22        MR. WALSH:  A couple of questions if you have a      
 23 reaction to this.  Number one, I guess the question is      
 24 reasonable delay, what that might be based on the Board      
 25 deliberations and based on the comments we are hearing                                  
                  
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   1 today, and you have got a whole range there.  In any case,       
   2 I think the concerns you raise about actually getting into       
   3 the issues of the Delta, which is obviously your       
   4 constituency, that if in fact sufficient time isn't taken       
   5 up front and we properly assess the procedure for which       
   6 the Board gets those comments, that, you know, it is very       
   7 possible you are going to be vulnerable in court and       
   8 delays will be much longer than any of us would want.       
   9 That's one thought.      
 10        The second issue I think deals with the      
 11 participation through Phase 2 as well as everyone's      
 12 involvement in Phase 3, of which your constituencies are      
 13 going to be very important players, because if in fact all      
 14 of the options, programs, facilities,  you name it,      
 15 conservation mechanisms, water transfers, straightening      
 16 out the problem with water sales, and moving water from      
 17 one part of the state to the other, are not fully explored      
 18 by the Board, then the chances for winding up back in      
 19 court, I think, are very real, so I would encourage you,      
 20 we have heard, I mean most of the testimony has been from      
 21 the water users and from the standpoint here today, you      
 22 folks are going to be a critical part of that hopefully      
 23 cooperative process through Phase 2 and 3 and just      
 24 highlight for you, I encourage you to be thinking about      
 25 that productive role you can play in that process.                                              
      
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   1        So if you have reaction great.  I just wanted to       
   2 throw those two things out.       
   3        MR. NELSON:  Two very quick ones.  You are right,       
   4 there are some issues that we certainly don't believe were       
   5 fully explored in the documents and we do think the Board       
   6 can address those in Phase 2 and some of those issues in       
   7 Phase 3, and we are prepared to do that.       
   8        The second question is one of reasonable delay.       
   9 Clearly there is going to be some delay in the hearings      
 10 and when the Board is considering what that delay is going      
 11 to be, I think what the Board needs to look at is, are      
 12 there reasons, are the issues that have been raised as far      
 13 as necessary delays, are those issues that need to be      
 14 addressed before the Phase 2 hearings begin, and I think      
 15 when you look at most of the issues that have been raised      
 16 today, the answer is no, that the Phase 2 hearings can go      
 17 ahead and we can deal with some of these issues as I      
 18 mention.      
 19        Some of the potential techniques for reallocating      
 20 water supplies in the state, I think we can deal with      
 21 those in Phases 2 and 3 without long delays.      
 22        MR. MAUGHAN:  Thank you, Mr. Nelson.      
 23        MR. SAMANIEGO:  I have a question with regard to      
 24 the operational studies that may be made during this      
 25 interim, if there is such an interim.  Given you don't                                           
         
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   1 agree that's necessary, or at least not necessary at this       
   2 time, do the public interest groups have a mechanism       
   3 whereby they can participate with a suitable expert of       
   4 your choice to be a part of that groping for consensus on       
   5 the assumptions and the operational studies?       
   6        MR. NELSON:  Do you mean as a formal part of those       
   7 operational studies or informal discussions?  I am not       
   8 quite sure.       
   9        MR. SAMANIEGO:  Either way, perhaps formally, if it      
 10 can be accomplished, but some way that assures you      
 11 accessibility to that.      
 12        MR. NELSON:  I think this really is the forum where      
 13 most of those options can be most fully explored.  There      
 14 are ongoing negotiations on a number of issues, but I      
 15 think this is the forum where certainly my organization      
 16 sees the greatest potential for these types of issues to      
 17 be fully explored.      
 18        MR. SAMANIEGO:  Are you saying that you will not be      
 19 a part of that process if it is --      
 20        MR. NELSON:  No, we certainly will be to the extent      
 21 that we are able to do that.      
 22        MR. SAMANIEGO:  And my question is, can you clearly      
 23 identify if you have some way for your interest groups,      
 24 perhaps not to have a number of experts, but at least an      
 25 expert available to you to be a part of that process?                                          
          
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   1        MR. NELSON:  That is something we are currently       
   2 exploring.  Frankly, right now I am not sure.  I am not       
   3 sure anyone really knows what form these operation studies       
   4 are going to take.  I heard some earlier speakers say       
   5 earlier that they are not sure what sort of operational       
   6 studies they are going to undertake, so I am not sure,       
   7 frankly, how we are going to plug into that process right       
   8 now.       
   9        MR. SAMANIEGO:  But you do have and you will      
 10 declare a firm commitment to be a part of that process?      
 11        MR. NELSON:  To the extent we can, absolutely, yes,      
 12 we would like to be.      
 13        MR. MAUGHAN:  Thank you, Mr. Nelson.      
 14        Greg Karras and then Harrison Dunning.      
 15        MR. KARRAS:  Mr. Chairman, my name is Greg Karras      
 16 representing Citizens for a Better Environment.      
 17        We are ready to go and we do have some things to      
 18 say about the Draft document, on the scope.      
 19        As you recall Citizens for a Better Environment      
 20 presented evidence in Phase 1.  Based on that evidence we      
 21 requested basically two things, reduced toxic impacts      
 22 through reduced dischargers, and clean up of hot spots and      
 23 increased pulse flows to increase circulation of water and      
 24 to particularly alleviate extreme toxic hot spots in the      
 25 South Bay.                                                     
 201       
   1        We do not believe the Drafts have adequately       
   2 addressed those requests and we look forward in Phase 2 of       
   3 the hearings to provide specific testimony on some of the       
   4 problems we foresee, some of the problems we found in the       
   5 Draft and our suggestions for remedying them.       
   6        On the issue of timing, as I say, we are ready to       
   7 go.  We would have liked to have been providing       
   8 substantive testimony today.  We will be prepared to do so       
   9 as soon as the Board reconvenes the hearings.      
 10        Now we are concernerd about any further delays in      
 11 the hearings because there are ongoing serious toxicity      
 12 impacts in San Francisco Bay, particularly in the South      
 13 Bay that seem to be getting progressively worse in      
 14 combination with other impacts on species like striped      
 15 bass as other speakers have mentioned; and also for toxics      
 16 control there are some federal deadlines that we fear will      
 17 be exceeded by delays in these hearings.      
 18        That's all I really had to say.  I would be happy      
 19 to answer any questions.      
 20        MR. MAUGHAN:  You are very brief today, Mr. Karras.      
 21 Thank you for your thoughts.      
 22        Mr. Dunning, you have been patient all day here.      
 23        MR. DUNNING:  Thank you very much, Mr. Chairman.      
 24        I am submitting a brief statement, but I would like      
 25 to make some comments on it and I would like to say at the                               
                     
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   1 outset I am appearing on my own behalf, although I do       
   2 teach and research at UC Davis, but I am simply not       
   3 appearing on behalf of the University nor am I appearing       
   4 on behalf of the Bay Institute, although I am a member of       
   5 the Board of Directors of that group.       
   6        The particular question I would like to comment on       
   7 is this matter of the Board's authority with regard to the       
   8 water quality function, the question whether flow       
   9 objectives which are not somehow linked to salinity or to      
 10 temperature are nonetheless appropriate and proper in      
 11 putting out a basin plan.  My conclusion is that there      
 12 very clearly is a legal authority, but since it's been      
 13 commented on several times today, I would like to, if I      
 14 may, detail my reasoning on that.      
 15        First of all, I think it is a very plausible and      
 16 eminently fair reading of the Porter-Cologne Act to say      
 17 simply by looking at the statute you do have that      
 18 authority.  We all know the Porter-Cologne Water Quality      
 19 Control Act is keyed to protection of beneficial uses.      
 20 This is done through the establishment of water quality      
 21 objectives.      
 22        It is fair enough to say water quality objectives      
 23 must deal somehow with water quality, but we do have a      
 24 definition of the quality of water.  It's in the Act.      
 25 It's Section 13050(g) and it is extremely open ended.                                         
           
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   1        Quality of water according to the statute refers to       
   2 the chemical, biological, bacteriological and other       
   3 properties and characteristics of water which affect its       
   4 use.       
   5        I think it is clear the Legislature was giving you       
   6 a very broad charge there, a long list of very general       
   7 categories, and then adding at the end "other" would       
   8 certainly to me affect the hydraulic force, would include       
   9 the hydraulic force of the water, the power of the water      
 10 as it moves down and moves fish.  We know that protection      
 11 and enhancement of fish is a beneficial use.      
 12        The Legislature told us that 30 years ago.  It's      
 13 nothing new and to say that in order to accomplish that      
 14 beneficial use, you need to have or could have if you wish      
 15 a water quality objective which deals with flows I think      
 16 is very clear simply on the face of the statute.      
 17        Now a couple of other speakers have made that      
 18 point.  Mr. Thomas made that point, referred to the long      
 19 practice of assuming that flows were proper in a water      
 20 quality control plan, but I think there are a couple of      
 21 other things that need to be added.      
 22        If you assume that there might be some ambiguity,      
 23 that there is some doubt that maybe since hydraulic force      
 24 is not explicitly mentioned in this subsection in      
 25 Porter-Cologne, if you assume therefore that there is some                                 
                   
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   1 doubt, then I suggest you keep in mind that you are       
   2 dealing with public trust resources, that navigable waters       
   3 and fish, according to one of the California court       
   4 decisions, are both public trust resources, and the courts       
   5 again and again, not in the water rights context because       
   6 it's quite new to have the public trust with water rights       
   7 since Audubon, as you know, but in other situations the       
   8 California courts and the federal courts again and again       
   9 have said if there is doubt in a statute as to what it      
 10 means and if there is a reading which is more protective      
 11 of a public trust resource than another reading, then the      
 12 agency or whoever is in the implementing situation is to      
 13 take the broader reading, so I think that certainly could      
 14 bolster your decision should you decide on a policy ground      
 15 that you want to have the flow standards included in the      
 16 basin plan to be promulgated.      
 17        The final point, leaving aside the public trust and      
 18 the way the courts have looked at agency authority in      
 19 light of the public trust doctrine with regard to certain      
 20 resources, the final point is time and again in the big      
 21 cases in recent years, the California courts have been      
 22 very deferential to this Board in its reading of the      
 23 language in the Water Code.      
 24        We have the Long Valley decision you are all      
 25 familiar with, as to what is meant by certain language in                                     
               
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   1 the statutory adjudication part of the code, dealing in       
   2 that instance with the fate of unexercised riparian       
   3 rights.  There the court backed the agency.  Again in the       
   4 litigation where it was a matter of what the trespass       
   5 provisions mean in the face of a claim of prescription,       
   6 the court backed the agency.  Finally, in the instream       
   7 cases, Cal Trout and Fullerton some years ago, the Court       
   8 of Appeal there backed the agency in its reading of what       
   9 is required under the permitting sections, whether you      
 10 have to show some plan to have physical control of water      
 11 in order to get an appropriative right.      
 12        So in all these big cases simply because the Board      
 13 said this is what we think the statute properly means, the      
 14 courts have gone along with it.  The one big exception, of      
 15 course, is Racinelli.  Racinelli is the one time when the      
 16 Board was in court in recent years in a major case and the      
 17 court said no, we think you are wrong here, at least we      
 18 think it is very very questionable whether you have done      
 19 the right thing.  As we all know, in the Racinelli case      
 20 they questioned the integration of the water quality and      
 21 the water right function, and the main reason that      
 22 Racinelli and is cohorts on the Court of Appeal did that      
 23 was they said, this does not provide the kind of robust      
 24 implementation of the Porter-Cologne Act which is called      
 25 for by the Legislature, that the problem in integrating                                         
           
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   1 the water quality function and the water right function       
   2 was precisely that there was a tendency to truncate       
   3 everything to look at water quality solely in terms of       
   4 what could be implemented through water rights, through       
   5 permit conditions placed on exporters and so forth, and       
   6 Racinelli was saying you have got to take Porter-Cologne       
   7 on its face, you have got to set the beneficial uses at a       
   8 reasonable level, you have got to go through the water       
   9 quality objective process and the program of      
 10 implementation and do that without some kind of myopic      
 11 view which is generated because you are always thinking      
 12 water rights, so I think it is very clear under Racinelli      
 13 that a robust understanding of what is permitted, perhaps      
 14 even required in some situations by Porter-Cologne, is      
 15 what this agency has been given.      
 16        So I certainly would urge you to adopt the view      
 17 that you do have the legal authority to set the flow      
 18 standards.  It was pointed out earlier a whole lot of      
 19 momentum would be lost at this point in this very long      
 20 process if you took out the flow standards that you put      
 21 in, and my urging would be that you stick with them,      
 22 refine them as necessary, but stick with them through      
 23 Phase 2 and then later in Phase 3 come to the      
 24 implementation part which involved implementation      
 25 vis-a-vis water right holders.                                                     
 207       
   1        MR. MAUGHAN:  Let me ask you a hypothetical       
   2 question though.  Setting flow standards is a little bit       
   3 different than salinity standard objectives.  You need a       
   4 very good understanding of all the factors, I think.       
   5 There may be a difference between setting a flow standard       
   6 and a salinity standard and if hypothetically the studies       
   7 that are made miss the mark by quite a bit; in other       
   8 words, you need operations of a whole bunch of reservoirs,       
   9 some of which are under control of one institution and      
 10 others under others, with the variability of runoff and      
 11 climatic conditions and what have you, in this      
 12 hypothetical let's assume we set some flow standards and      
 13 they are way off.  Does that give you any more trouble in      
 14 terms of court review than it does if salinity or some      
 15 other kind of turbidity or whatever it may be standards      
 16 that you can't quite attain, but in the case of flow it      
 17 might be quite different.      
 18        MR. DUNNING:  Well, my reaction would be even with      
 19 the salinity standards, to the extent that you are      
 20 implementing the salinity standards through flow      
 21 requirements, you have the same problem, the operational      
 22 studies may indicate what the impact is going to be on the      
 23 flow provider.  I think it is important obviously in Phase      
 24 1 to do the analysis correctly so that you get proper      
 25 water quality objectives, whether they be salinity,                                              
      
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   1 temperature, flow or anything else.       
   2        MR. MAUGHAN:  Yes, but as I gather from some of the       
   3 commenters today, you may be dealing with some other       
   4 factors, that you aren't just with flow in the Delta.  You       
   5 may be dealing with capacity and reuse of groundwater       
   6 reservoirs and requirements between parties and so on that       
   7 are much more difficult to find out all those       
   8 relationships and how they mesh together than you do, at       
   9 least in my mind, from the salinity aspects of it in the      
 10 Delta itself.      
 11        MR. DUNNING:  Wouldn't the operational studies or      
 12 other studies be grist in Phase 2 which could lead to      
 13 revisions in the substance of the flow requirements, of      
 14 the flow objectives prior to the Board finally adopting      
 15 the water quality?      
 16        MR. MAUGHAN:  Yes, I think so, although there seems      
 17 to be an estimate of a lot of time to do that.      
 18        MR. DUNNING:  I am not in a position to know that.      
 19        MR. MAUGHAN:  It may be quite a while.      
 20        MR. DUNNING:  But nonetheless that would come in      
 21 before you as a Board act on the staff recommendations and      
 22 adopt your Plan.      
 23        MR. MAUGHAN:  That's one way to do it and some      
 24 people would like us to move ahead right now without that.      
 25 Others say, if you are going to do that, you will have to                                      
              
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   1 wait for these studies.       
   2        MR. DUNNING:  I am really not in a position to       
   3 offer a judgment as to whether you ought to wait for the       
   4 studies or not, but simply to urge an interpretation of       
   5 the Porter-Cologne which I think is very very sustainable       
   6 if it ever does come before the courts, and I wouldn't       
   7 have actually thought anybody would object.  I am       
   8 surprised this late in the process to find some of the       
   9 major players urging this interpretation.      
 10        As I understand it, your interpretation or your      
 11 staff's interpretation is the same one that existed in      
 12 1978, the same one that existed in 1986 or '87 when you      
 13 got started, so it is really well established, and that in      
 14 itself is a factor in the courts where quite often they      
 15 say agency practice is important, and where there is an      
 16 established agency practice, they are more likely to      
 17 support what you as an agency do.      
 18        MR. MAUGHAN:  Well, in the '78 Plan they both came      
 19 out together and they tried to make the Board, on which I      
 20 was on, fit together and that is one of the things      
 21 Racinelli objected to.      
 22        MR. DUNNING:  But in terms of having, I would have      
 23 to go back and look to see to what extent you could say in      
 24 1978 you had flow standards independent of salinity or      
 25 temperature or other such requirements.  Obviously flow                                    
                
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   1 can be linked to them as a surrogate for them.  But here I       
   2 understand flow is treated more independently.       
   3        Was that the case in '78 or not?       
   4        MR. MAUGHAN:  Well, in '78, like I say, without       
   5 extending this discussion very much, there was a       
   6 concentrated effort to try to make both the water rights       
   7 decision and water quality control plan to be as close       
   8 together as they possibly could, and that's what led to       
   9 having flow standards in both documents.      
 10        MR. DUNNING:  Maybe that meant there wasn't as      
 11 close a look at what is permitted under Porter-Cologne.      
 12        MR. MAUGHAN:  That was looked at also, but there ws      
 13 that other factor involved.      
 14        Any other questions?      
 15        Thank you very much.      
 16        We have three more gentlemen, John Joham, General      
 17 Manager of Central and West Basins of Southern California,      
 18 and after that Mr. Hubbard.      
 19        MR. JOHAM:  Thank you, Mr. Chairman and and Members      
 20 of the Board.  My name is John Joham.  I am here to speak      
 21 for the water users.  The water replenishment district      
 22 that I manage is a large agency that operates in Los      
 23 Angeles County, and there are two matters that we would      
 24 like to clarify or at least comment on with respect to the      
 25 replenishment operations as they would begin to unfold if                                   
                 
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   1 the Phase 1 Plan were adopted.       
   2        Earlier this morning, one of the spokespersons for       
   3 one of the other adjacent water districts mentioned the       
   4 fact that there's a problem with bringing in water       
   5 supplies at certain times of the year, and there is a       
   6 problem.  We obviously take our water supplies as Mother       
   7 Nature provides them hopefully at first during the winter       
   8 months, and when it rains we take those supplies and use       
   9 them for spreading and recharging the basin to the extent      
 10 we can with what we get.      
 11        Obviously, under those conditions we would want to      
 12 go ahead and be able to use the so-called free water that      
 13 Mother Nature provides rather than purchase supplemental      
 14 water and in that respect we would formally take our      
 15 supplemental water supplies after the storm season began      
 16 to phase out.      
 17        The people who have been in the business of calling      
 18 the shots at the flood control district level for years in      
 19 Los Angeles County tell us that time is approximately      
 20 April 1 to April 15, just about the time you people want      
 21 to purpose a cutoff of the supplemental deliveries from      
 22 the north to implement your program.  So that is the      
 23 problem from the standpoint of our groundwater      
 24 replenishment program as we see it at the moment.      
 25        Another problem we have is approximately 150 wells                                  
                  
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   1 are used to stop sea water intrustion and they take a       
   2 certain flow rate on a regular basis.  If we were to go       
   3 ahead and implement, for instance, the 15 to 25 percent       
   4 conservation program that you have spoken of in the Draft       
   5 Report, we see that as a difficulty with being able to       
   6 maintain safe sea water injection criteria to prevent the       
   7 sea water from getting into the groundwater basin and this       
   8 is a problem that we see as part of that particular Plan's       
   9 perspective that we would like you to be thinking about      
 10 when you implement the Plan in its final form.      
 11        Speaking for the two large public agencies that      
 12 deliver water to people in Los Angeles County on the      
 13 western side of the county, on the eastern side of the      
 14 county, I also manage what is called Central and West      
 15 Basin Municipal Water Districts.  These are member      
 16 agencies of Metropolitan Water District of Southern      
 17 California and these districts do support Metropolitan's      
 18 positions that have been already related to you today and      
 19 we would like to take as an example a situation there that      
 20 we have about 40 different agencies that receive water      
 21 supplementally from these districts and use them      
 22 throughout the year.  Not all of the people who buy water      
 23 from us, however, have wells to be able to pump a portion      
 24 of their water supply from.  Some of the people take water      
 25 directly from the Metropolitan Water District and                                                
    
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   1 distribute it in their distribution area.       
   2        I speak of the area in the Palos Verdes region       
   3 where there is no other supply of water except what is       
   4 supplied by Metropolitan, or in the case of Malibu and       
   5 Topango Canyon where there is no other supply except from       
   6 Metropolitan.       
   7        If we are looking at an area of curtailment in the       
   8 period April through July, we would like to remind you       
   9 that although we do have emergency storage, and that      
 10 storage might be as much as seven days at length, we don't      
 11 have anything like 90 days.  I have spoken to you of 40      
 12 distribution agencies.  They are not interconnected.  They      
 13 are not what you might say homogenously side by side.  It      
 14 is difficult for them to be able to supply water to each      
 15 other, much less cut back and reserve water supplies to      
 16 adequately span the time that you project is necessary to      
 17 leave water in the Delta.      
 18        I am asking you to give that due consideration,      
 19 too, because there's more than 3 million people on the      
 20 coastal plain that depend upon supplemental water supplies      
 21 and these people want to be able to drink some water and      
 22 not have to wait for too long to do it.      
 23        Thank you.      
 24        MR. MAUGHAN:  We will assure you that all that will      
 25 be carefully considered before the final result comes out.                                    
                
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   1        Thank you.       
   2        Any questions.       
   3        Mr. Hubbard, California Natural Resources       
   4 Federation, and the last card I have is Mr. Forsberg.       
   5        MR. HUBBARD:  I am Dick Hubbard, Executive Director       
   6 of California Natural Resources Federation, a       
   7 state-affiliate in the National Wildlife Federation.       
   8        We have about 40,000 members and supporters       
   9 state-wide.  I have also been asked today to comment on      
 10 behalf of United Anglers of California, which is the      
 11 State's largest sportsfishing organization.  Our two      
 12 organizations cross affiliate.      
 13        In the interest of saving some time, I simply want      
 14 to endorse the comments by Nat Bingham, Barry Nelson,      
 15 Gregory Thomas, Dan Chapin and Pete Chadwick, and I never      
 16 disagree with Mr. Dunning, although I don't always      
 17 assimilate all he has to say.      
 18        We commend the Board and its staff for producing a      
 19 Draft Plan which provides for the first time a level      
 20 playing field for considering critical fish, wildlife and      
 21 environmental problems of the Bay and Delta, but all is      
 22 not copasetic.  We think or hope that the Plan, if it was      
 23 fully implemented, would slow the drastic decline of the      
 24 fisheries, but we agree with Pete Chadwick's assessment      
 25 that additional facilities planning is a must if we are to                                        
            
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   1 see any significant recovery of the striper or the salmon.       
   2        We are participating in discussions with various       
   3 water interests regarding facilities planning under the       
   4 banner of the two agency agreement.  We will continue to       
   5 do so as long as any hope or progress remains.       
   6        We see no value in delaying the Phase 2 process,       
   7 nor do we see any value in turning Phase 2 into a quasi-       
   8 Phase 1.  We, of course, object strenuously to the       
   9 suggestion of withdrawing the current Draft Plan, even      
 10 though it was suggested by a representative of the beer      
 11 industry, an industry I have pledged lifelong support to.      
 12 After today I may switch to imported beer which will      
 13 further exacerbate the balance of payments problem.      
 14        Thank you.      
 15        MR. MAUGHAN:  The only thing I have to question you      
 16 on is Mr. Chapin seemed to present testimony which said if      
 17 we fouled up and helped the salmon and the striped bass we      
 18 would hurt his refuges, so I thought he was sort of      
 19 opposed to --      
 20        MR. HUBBARD:  Oh, I don't think Dan said that.      
 21        MR. MAUGHAN:  Yes, he did.      
 22        All right, thank you very much.      
 23        Steve Forsberg, are you still with us.  Not with      
 24 us.      
 25        All right, that's the last card I have.  I                                                     
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   1 appreciate your undivided attention today.  It's a very       
   2 important matter as you all indicate by your presence, so       
   3 we will take this under advisement and remember that by       
   4 the 17th if you have any additional comments, please       
   5 submit them by that date.       
   6        (The workshop was concluded)

