                                                                    1
 1               MONDAY, FEBRUARY 27, 1989, 10:00 A.M.
 2                              ---oOo---
 3            MR. MAUGHAN:   I think we will go ahead and get
 4    started.   we appreciate you all being here today.   We do
 5    want to make this into an informal type setting.  It's
 6    hard to do and still pick everything up, so we may do some
 7    adjusting as the day proceeds.
 8            I do have a prepared statement here.  For the
 9     record, my name is Don Maughan and I am Chairman of the
10    State Water Resources Control Board.
11            This is the scheduled time and place for an
12    informal discussion of the legal topics regarding water
13    quality  control  planning  for  the  Bay-Delta  Estuary.  A
14    notice of this informal discussion was provided to all
15    participants in the Bay-Delta proceeding.
16            I will moderate this discussion.
17            All the Board Members are present, our Vice Chair
18    Darlene Ruiz, Ted Finster, Eliseo Samaniego and Danny
19    Walsh.
20            The purpose of this informal discussion of legal
21    topics is to enable a sharing of legal opinions among the
22    participants, the Board Members and the Board's staff
23    regarding the Board's water quality control planning for
24    the Bay-Delta Estuary.   By engaging in this discussion we
25    hope to communicate our understanding of the requirements,                            
                                       2
 1    identify issues lacking consensus and the reasons for the
 2    differences.
 3            We also are seeking the parties' opinions regarding
 4    the Board's proper course of action in revising the Draft
 5    Water Quality Control Plan.  We encourage a free exchange
 6    of views during this discussion and a debate of the
 7    issues.
 8            We will start with the discussion of the statutory
 9     requirements governing the contents of the forthcoming
10    Water Quality Control Plan.    To better focus the
11    discussion, we will discuss separately each of several
12    subtopics.
13           Barbara Leidigh, Senior Staff Counsel, will lead the
14    discussion by introducing the subtopics and summarizing
15    the applicable requirements under each subtopic.
16    Following Ms. Leidigh's presentation on each subtopic,
17    parties may ask questions and offer their own views.
18            In the time remaining after discussion of the water
19    quality planning requirements we will hear opinions on
20    each of the topics listed in our notice.     If we run out of
21    time at the end of the day and have not discussed all of
22    the topics, we will schedule further informal discussions
23    for the remaining topics and perhaps other topics.
24            The procedure for this discussion will be very
25  informal.  Any person who wishes to speak may raise their                                 
                                   3
 1    hand and be recognized.    Anyone may ask to respond to a
 2    point that someone else has made.    If statements become
 3    repetitive or a stalemate arises, I may cut off discussion
 4    of a point and go on to another topic.
 5            The Board Members and staff may ask questions at
 6    any time.
 7            I want to stress this.   Your views are important to
 8    us so a record of this discussion will be made.    Alice
 9     Book, a certified shorthand reporter, is present and will
10    record and complete a transcript of the discussion.
11           To accommodate the reporter, please use the
12    microphone and state your name each time you speak.   The
13    first time you speak, please also state your address and
14    affiliation.
15           Any  parties  who  want  copies  of  the  transcript  must
16    make your own arrangements with the court reporter.
17            Barbara, would you like to go ahead and get started
18    then.
19            MS. LEIDIGH:   Okay.   I would like to start off with
20    some general information about water quality planning,
21    statutory law, both the Porter-Cologne Act and the Clean
22    Water Act and regulations to the Clean water Act.
23            My format is going to be to talk generally about
24    some background materials first and then I will get into
25    some specifics, first on the Porter-Cologne Act and then                                   
                                4
 1    on the Clean Water Act, and we will talk about several
 2    topics under each of those.
 3           So I will let you know when I start talking about
 4    the topics that are really focused for discussion and when
 5    I finish the first topic there will be a break for
 6    discussion, and then I will go on with another part and
 7    there will be a break for discussion after that, and so
 8    on.
 9             First, the general statutory law that applies to
10    water quality planning and I am talking basically about
11    basin plans today, is the Porter-Cologne Act which is
12    State law at Water Code Section 13000 and following; the
13    Clean Water Act, which is federal law at 33 U.S. Code,
14    Section 1251 and following.    It is also referred to as
15    Sections 101 through 525 of the act for those who have
16    that act rather than the U. S. Code.
17            The regulations implementing the Clean Water Act
18    are at 40 CFR Parts 130 and 131.
19           The laws form a comprehensive statutory program for
20    water quality control.    They are administered by the State
21    Water Resources Control Board and the nine Regional Water
22    Quality Control Boards.    They include planning
23    obligations, permitting and enforcement authority.     The
24    Regional Boards have the primary responsibility under the
25    act to adopt water quality control plans for all waters                                        
                           5
 1    within their respective regions.  The State Board's usual
 2    role in planning is to review and approve all regional
 3    plans and plan amendments.    In this case, though, the
 4    State Board is considering adopting a water quality
 5    control plan which it has the authority to do.
 6            As a matter of background, focus to this discussion
 7    will be on first of all water quality planning;
 8    second by the State Board, third for the waters of the
 9     Estuary; fourth, regarding salinity control,  temperature
10    and  perhaps  other  properties  ot  the  water  which  can  be
11    controlled to some extent by water right regulations.
12            Regional Boards 2 and 5 currently have water
13    quality plans that cover the entire area of the Estuary
14    and contain objectives for reasonable protection of
15    beneficial uses.
16            The State Board has authority under Section 13170
17    to adopt .water quality plans for surface waters for which
18    water quality standards are required by the Clean Water
19    Act.  The State Board plans supersede to the extent of con-
20   flict with regional plans for the same waters.
21            The State Board's 1978 plan partially supersedes
22    the Region 2 and Region 3 plan.    In effect, the Regional
23    Board plans and State Board plans work together to
24    complete the State's water quality Planning for the waters
25    of the Estuary.                                                                    6
 1            The State Board's 1978 plan contains objectives
 2    only for salinity and flow which can be implemented by
 3    regulation of water rights.
 4            The object of the current proceeding is to review
 5    and replace the 1978 plan.    The citations that you might
 6    want to look at on this are Resolution 78-43 in which the
 7    Board adopted the 1978 plan and committed itself to
 8    further review after ten years, also the case of United
 9     States versus the State Water Resources Control Board,
10    otherwise known as the Racinelli decision.
11            The current proceeding will focus on establishing
12    water quality objectives which can be implemented by water
13    right regulations inlcuding salinity, temperature, perhaps
14    other objectives.   A consideration of measures to mitigate
15    the effects of outflow changes or exports are not related
16    to salinity or temperature.    They will be deferred until
17    Phase III and water right changes may be considered during
18    that phase to regulate outflow and export rates if
19    necessary.
20            Getting into the Porter-Cologne Act specifically,
21    the Porter-Cologne Act was adopted in 1969 to replace the
22    water quality control law adopted in 1949, called the
23    Dickey water Pollution Act.
24           The Porter-Cologne Act establishes a comprehensive
25    program for water quality control under which numerous                                   
                                 7
 1    water quality control plans are maintained statewide.  No
 2    water quality control plan can be adopted without a public
 3    hearing first being held.  This is provided at Water Code
 4    Section 13244.
 5         A  hearing  is  held  to  consider  a  draft  water  quality
 6    plan that has been prepared by staff after reviewing
 7    literature' available data, other information and so on.
 8         For purposes of the water quality control plan, the
 9     hearing held in Phase I of this proceeding is considered
10    to be a source of information.  Water quality plans must
11    be periodically reviewed and may be revised.  See Water
12    Code Section 13240.
13            When a Regional- Board adopts a plan or revises a
14    plan,  it  does  not  become  effective  until  approved .by  the
15    State Board.   The act provides for concurrent State
16    implementation under the provisions of the federal Clean
17    Water  Act  which  is  provided  at  Section  13370  of  the
18    Porter-Cologne Act, the provisions there for using the
19    federal act.
20            There are three elements required in a water
21    quality control plan under the Porter-Cologne Act:     First,
22    a designation  of beneficial uses to be protected; second,
23    water quality objectives; third; a program of
24    implementation.
25            These are listed at Section 13050(f).                                                     
              8
 1            The first subject for discussion is going to be
 2    designation of beneficial uses under the Porter-Cologne
 3    Act and I will start that now.
 4            Beneficial uses that may be protected against
 5    quality degradation include, but are not limited to
 6    domestic, municipal, agricultural and industrial supply,
 7    power generation, recreation, aesthetic enjoyment,
 8    navigation, and preservation and enhancement of fish,
 9     wildlife and other aquatic resources or preserves.
10            Not all of these uses were listed in the draft plan -
11    considered a complement of the Region 2 and Region 5 plan.
12            Several points are relevant to designation of
13    beneficial uses.
14                   1.  Designation of beneficial uses
15            often include subcategories of the
16            foregoing beneficial uses.
17                   2.  Designated beneficial uses may
18            include potential beneficial uses if
19            existing water quality will support the use
20            or if the necessary level of water quality
21            can reasonably be achieved.  See Water Code
22            Section 15241(a) and (c).
23                   To comply with the statutory policy
24            in Section 13000 that "the quality of all
25            the waters in the State shall be protected                                              
                      9
 1            for use and enjoyment by the people of the
 2            state."
 3                   An existing beneficial use
 4            ordinarily must be designated for
 5            protection unless another beneficial use
 6            requiring more stringent objectives is
 7            designated.
 8                   4.  A relevant exception may exist
 9             in the Estuary for beneficial uses of water
10            that is used outside of the water body such
11            as for agriculture.  These beneficial uses
12              may  be  protected  by  substitute  water
13              supplies  under  water  Code  Section  12202,
14            which is the Delta Protection Act.
15                   5.  Designation of beneficial uses
16            must take into account constitutional
17            prohibition of waste and unreasonable use
18            of water.   Designation of the beneficial
19            use for protection should not require a
20            waste of water under Article 10, Section 2
21            of  the  Constitution.   Also  see  U.  S .  versus
22            State Water Resources Control Board at 227
23            Cal Reporter, page 197.
24                   6.  Water rights of users of Delta
25            water are not to be equated with beneficial                                            
                      10
 1            uses for the purposes of designated
 2            beneficial uses.   See U. S. versus State
 3            water Resources Control Board, 227 Cal
 4            Reporter, 178, 179.
 5                   7.  Waste transport or waste
 6            assimilation cannot be designated as a
 7            beneficial use under the Porter-Cologne
 8            Act.  The direction of the act is to
 9             protect water against these constituents.
10            In that regard see Section 13241, 13263 and
11            the legislative history of the act.
12                   This does not mean that waste cannot
13            be discharged to water.   It means it cannot
14            be designated as beneficial uses.
15            That concludes my summary of beneficial use
16    designations and at this point we are going to open it up
17    for discussion of designation of beneficial uses.
18            Are there any questions or comments from the
19    audience?
20            MR. MAUGHAN:   Yes, Mr. Littleworth.   Before you
21    respond, did you want to --
22    MS .  RUIZ :  Yes, One  of  the  things,  unfortunately  we
23    couldn't get the room into the configuration that I think
24    most expedites these kinds of informal discussions, but I
25    was anxious that we have an opportunity to explore just as                               
                                   11
 1    Barbara has outlined, and again even this outline is
 2    subject to discussion, how best to communicate the Board's
 3    understanding, the staff's understanding, your own
 4    understanding of water quality planning within the basin
 5    planning context.   How many of you really understand and
 6    appreciate what the delegation is to the state of
 7    California from the federal government under the Clean
 8    Water Act, how does that come about, and then how do we
 9     implement it through these various subtopics which Barbara
10    has outlined such as a finding or designating beneficial
11    uses?
12          To the degree you can assist us either by questioning
13    or discussion of your concerns as to what has been said,
14    would be appreciated, but I do view it in my mind as an
15    opportunity  to  ask  us  questions  as  well  as  to  make  your
16    comments on your own understanding of the law.
17            MR. MAUGHAN:  All right, Mr. Littleworth, and then
18    Mr. Turner, in that order.
19            MR. LITTLEWORTH:   For the record, I am Arthur L.
20    Littleworth of Best, Best & Krieger, appearing for the
21    State Water Contractors.  My address is 3750 University
22    Avenue, Suite 400, in Riverside.
23            Barbara, I was writing fast and I am not sure I got
24    this straight.   When you were talking about being able to
25    supply some kind of beheficial uses with a substitute                                       
                           12
 1    supply and used agriculture as an example, could you go
 2    through that again for me, and then my real question, I
 3    guess, is do you see that other kinds of beneficial uses,
 4    instream uses, could also be under a planning process, the
 5    objectives could also be satisfied in other ways than just
 6    quality of the water in the area?
 7            MS. LEIDIGH:  Well, the first thing, with regard to
 8    supplying beneficial uses, the statutory provision is in
 9     the Delta Protection Act, Section 12202, and what comes to
10    mind most is provision of water for agriculture since
11    that's a beneficial use that is in the Estuary and requires
12    a certain quality of water.
13            The act, though, is not specific to agriculture.
14    Let me just pull it.   It states:
15               "Among  the  functions  to  be  provided  by  the
16            State water resources development system in
17            coordination with the activity of the
18            United States in providing salinity for the
19            Delta through operation of the Delta
20            Central Valley Project shall be the
21            provision of salinity control and an
22            adequate water supply for the users of
23            water in the Sacramento-San Joaquin Delta.
24            If it is determined to be in the public
25            interest to provide a substitute water                                                     
              13
 1            supply to the users in said Delta in lieu
 2            of that which would be provided as a result
 3            of the salinity control, no added financial
 4            burden shall be placed upon said Delta
 5            water  users  solely  by  virtue  of  such
 6            substitution.   Delivery of said substitute
 7            water supply shall be subject to provisions
 8            of Section 10505 and Sections 11460 to
 9             11463 inclusive of this code."
10            So,  what  we  are  really  looking at is  the  uses  in
11    the Delta and they look like out of stream types of uses.
12    I don't know of any specific provision that talks about
13    substitute supplies for instream uses, but of course we all
14    recognize that facilities in the Estuary may have a
15    positive effect on the quality of water that exists for
16    those instream uses.
17            MR. LITTLEWORTH:   You are tying this back to the
18    Delta Protection Act specifically?
19            MS. LEIDIGH:  Yes.
20            MR. LITTLEWORTH:   And not really taking it out of
21    Porter-Cologne in a broader sense?
22            MS. LEIDIGH:   Not for this particular citation.
23            MR. LITTLEWORTH:   Okay.
24     MR.  SAWYER:    Andy  Sawyer,  Office  of  the  Chief
25     Counsel  of  the  State  Water  Resources  Control  Board.                              
                                     14
 1            Barbara Leidigh mentioned two exceptions to the
 2    general rule, that an existing beneficial use must be
 3    designated for protection and the second is where that
 4    designation would require a waste of water.    For
 5    example, if you have a physical solution that protects the
 6    beneficial use in such a manner that protecting it through
 7    instream flows would be a waste of water, that would be
 8    another example.
 9             MR. LITTLEWORTH:   I guess maybe we will get into
10    this more later and I really don't want to jump ahead of
11    your outline.
12            But one of the problems that we have been sort of
13    struggling with on how to fit sort of total management into
14    is concept of water quality protection when in fact you may
15    be able to protect the beneficial use better by some kind
16    of a management technique than you really can by just
17    changing the water quality.    Maybe the water quality
18    doesn't even do it, and so we have been trying to struggle
19    with that concept and see how to fit that into the planning
20    process, and maybe this other suggestion here of doing it
21    through the broader concept of reasonable use of water may
22    be  a  way  to  approach  it.
23            MR. WALSH:  Mr. Littleworth, are you talking about
24    flow management techniques or quality managment techniques
25    such as as BMP's?                                                                    15
 1            MR. LITTLEWORTH:  What was in my mind at that moment
 2    was none of those.
 3            MR. WALSH:   Would they or could they include those?
 4            MR. LITTLEWORTH:   Yes, I think so.  What I was
 5    really thinking about was all of the kinds of things that
 6    the five-agency salmon task force is now looking at to
 7    improve salmon and, you know, they can include spawning
 8    gravels, screens, new fish ladders, hatcheries, all kinds
 9     of things which aren't directly related to water quality,
10    but in fact are related to maybe one of the beneficial uses
11    that you are trying to protect.  It's hard to find a way to
12    fit those into the --
13            MR. WALSH:  But nothing I have heard precludes those
14    things from being discussed in the mix.
15              MR.  LITTLEWORTH:      I  hope  not.   we  are  trying  to  find
16    a way to do that and I was just trying to find the legal
17    framework for doing that comfortably.
18            MS. RUIZ:   Again you are grappling with exactly what
19    EPA is grappling with and that's the distinction between
20    the water quality effect and a water quality kind of
21    assessment  that  they  are  doing  now  by  protecting  the
22    standards and making the assumption that therefore the
23    designated beneficial use is protected.
24            It would be wonderful if we do resolve that here.
25            MR. LITTLEWORTH:   If you read the words in the                                 
                                 16
 1    statute, it is sort of a three-stage kind of thing.     You
 2    are to protect, provide reasonable protection for the water
 3    quality which then is to protect the beneficial use, and I
 4    think what we have in our Delta situation is a desire by
 5    everybody to protect the end point, the beneficial use.
 6    That may be improved natural spawned salmon as an example,
 7    but the better way to do that may not be, or the very best
 8    way to do that may not be through water quality.   It may be
 9     through some other kind of ways, so if you just track the
10    words through the statute, you have a little bit of
11    trouble, and yet I think the common sense solution is to
12    really try to protect the beneficial use in a broad sense
13    and that may be water quality, it may be some other thing
14    as well.
15            I guess I was struggling to try to find a legal
16    format which would permit as broad an approach as possible.
17           MS. RUIZ:   Even assuming we could take on the
18    broader approach as you suggest because of the approval and
19    disapproval process with EPA and their interpretations
20    under the act, I submit that that may not be sufficient.
21            MR. LITTLEWORTH:   EPA is another big thing that
22    looms in the background that we are much concerned about,
23    and I think we have to think about how they interpret all
24    these things.
25            MS. RUIZ:  There is something I didn't hear in                                        
                          17
 1    Barbara's presentation, moving back to your subtopic,
 2    Barbara, the interrelationship, and you have already raised
 3    it, Mr. Littleworth, on the Delta Protection Act and the
 4    relationship to our basin planning process, but also the
 5    policies of this Board as they relate to basic planning and
 6    I  cite  again  68-16.  Have you Provided a listing of any
 7    other policies which directly relate back to this effort to
 8    do designation of the beneficial uses within the basin
 9     planning concept?
10            MS. LEIDIGH: I am planning to talk about that later
11    on.  It's pretty much at the very end though.
12            MR. SAWYER:   If I could make an observation, there
13    will necessarily be some overlapping on topics.     Mr.
14    Littleworth's comments were mostly directed towards the
15    second or third issues, being water quality objectives and
16    the program of implementation, whereas the exception Ms.
17    Leidigh mentioned is when you don't designate a use in the
18    first place.   That would go to the question, are salmon or
19    fisheries a  beneficial use in the first place.  Mr.
20    Littleworth was not trying to reach that ultimate
21    decision.
22            The coments Barbara and I made are more directed to
23    questions such as is domestic use a beneficial use to be
24    designated at a particular point in the Delta.  Mr.
25    Littleworth's are more, how do you achieve the already                                    
                              18
 1    designated beneficial uses.
 2            MS. RUIZ:   Okay, but trying to focus in on that
 3    again, Barbara, perhaps you could go over for the benefit
 4    of the Board that test.   In reality what occurs in our
 5    Regional Boards and historical here at the State Board in
 6    designating a beneficial use, what is it that is normally
 7    looked at and reviewed in the process of beneficial use?
 8           MS. LEIDIGH:   It's the various points that I went
 9     over as far as what's relevant to the designation of
10    beneficial uses.   Let's see, designation of beneficial use
11    can include potential use, it can often include
12    subcategories of use.   You would want to look at those uses
13    to see --
14           MS. RUIZ:   In reality it is anything that is
15    occurring; if somebody is using that water supply for
16    drinking water, is it in fact using it for agricultural
17    purposes.
18            MS. LEIDIGH:   Right.
19            MS. RUIZ:   Proof of that existing use establishes
20    that, but also it might potentially be used, evidence
21    showing in the future it could be used for municipal is the
22    basis on which the policy maker could designate that.
23            MS. LEIDIGH:   That's right.
24            MR. WALSH:  Mr. Chairman, on Mr. Littleworth's
25    comments, Barbara or whoever, and this whole issue of legal                            
                                      19
 1    parameters or processes, how tightly constrained are we
 2    going to be, because if we are, I have a real concern from
 3    a number of different perspectives.
 4            I predict that the number of issues and the depth of
 5    the issues are so great in this proceeding that there isn't
 6    one nice tidy concise process that we are going to follow,
 7    and if anything, I think the Board has an opportunity to be
 8    creative, a duty to be creative in terms of entertaining
 9     all possible options and alternatives before we get right
10    down to choosing the ultimate mix of things, perhaps
11    facilities, conservation plans, whatever they are, and so I
12    would appreciate a little discussion on that point.
13            MR. ATTWATER:   Mr. Chairman, we broke this down into
14    small parts hoping that we could focus in on the narrow
15    issues and then talk about the broader issues at the end.
16    Mr. Littleworth jumped ahead of us and really talked about
17    kinds of implementation.    Barbara was talking about
18    designating beneficial uses first of all, how we go about
19    that.
20            And the response to Darlene's question, staff
21    reviews the literature, the staff talks to the Department
22    of Fish and Game, and the other water users, and the Board
23    adopted a policy designating sources of drinking water.
24    That would all be part of the mix that the staff of the
25    Regional Board and this Board normally look at before doing                            
                                      20
 1    a draft plan.
 2            In fact, Barbara alluded to it, but the way the
 3    Board has gone about the Delta plan is a little bit
 4    different than the way the Regional Board normally
 5    operates.  You  have held a number of days of hearings and
 6    gathered evidence and the staff went off and prepared a
 7    draft plan.
 8            Normally the Regional Board staff on their own
 9     prepare the draft plan and send that out for public review
10    and then hold a hearing on that.    They would not hold a
11    hearing first and then hold a series of workshops or
12    hearings thereafter, so the way the State Board approaches
13    this plan is a little bit different than the way the
14    Regional Boards approach it.
15            MS. RUIZ:   And again, the procedure you referred to,
16    Mr. Attwater, is a courtesy more than anything required by
17    any  regulation,  guidance  or  any  other  policy  of  this.
18            MR. ATTWATER:   Right.   So nobody is under any
19    misapprehension, there has been some criticism of the staff
20    that they went outside the record and put things in the
21    plan that were not either testified to or maybe supported
22    by the record.   There is nothing in the law that requires
23    this Board to have a hearing and gather evidence before  a
24    plan is submitted.   The Board could have had the draft plan
25    in hand and then had 50 days of hearings on the draft plan.                              
                                     21
 1            So I think whatever criticism has been leveled at
 2    this process is unwarranted.
 3            MR. MAUGHAN:   Mr. Turner, you are next and then Mr.
 4    Nomellini.
 5            MR. TURNER:   Jim Turner from the Regional
 6    Solicitor's Office, U. S. department of the Interior, at
 7    2800 Cottage Way, here in Sacramento.
 8            Barbara, you might let me know if I am jumping to
 9     another topic, but when you made reference to the Delta
10    Protection Act in connection with the Board's
11    responsibility for developing water quality control plans,
12    am I to imply from that that there is any kind of better
13    protection that has to be afforded to the uses within the
14    area being studied; in other words, in Delta uses versus
15    Delta uses outside that particular area, is there any kind
16    of relationship between those kinds of uses or is that
17    something we get into later?
18             MS .  LEIDIGH :   We  will  perhaps  talk  a  little  more
19    later,  but  all  that  you  would  really  draw  from  that  is  that
20    there is a statute that deals with the responsibilities of
21    the Department of water Resources and the U. S. Bureau of
22    Reclamation that works to protect uses in the Estuary, and
23    it puts a responsibility, it appears, on those two agencies
24    to do that before they take water out.
25            MR. TURNER:   That was the thing I was trying to get                             
                                      22
 1    to, the last thing before they take water out.     In other
 2    words, uses outside the Delta would have to be reduced,
 3    restricted, limited, before there could be any reduction,
 4    limitation on the in Delta uses.  Is that the
 5    interpretation that I am hearing?
 6            MS. LEIDIGH:   I wouldn't interpret it quite that
 7    rigidly.   I think there's got to be some determination of
 8    what the needs are and so on, the process that we are going
 9     through here first of all.
10            You look at the designation of beneficial uses and
11    the question of reasonable objectives to protect beneficial
12    uses, how do you implement it, the whole mix.     And again in
13    water rights there are also reasonableness considerations.
14            MR. TURNER:   Okay, thank you.
15            MR. ATTWATER:   Mr. Maughan, while Mr. Turner is still
16    here, I noticed in the briefs that were filed, let me give
17    you an example, Mr. Zuckerman's brief which was filed about
18    a year ago, focused in on uses in the Delta.     Some other
19    briefs that were filed focused in on use of Delta waters
20     obviously for export.  And parties seem to be mixing up the
21    idea of in Delta uses as opposed to export uses.
22            And if you look at the Racinelli decision, at one
23    place he talks about the use of Delta water and then a
24    couple of places later he is talking about uses in the
25    Delta, protecting quality in the Delta.    And those two                                      
                            23
 1    ideas, I think, are constantly floating back and forth.
 2           MR. MAUGHAN:   What's the correct interpretation?
 3           MR. ATTWATER:   That's what we are all here for
 4    today.  But the Delta people seem to have a view of
 5    protecting the quality for in Delta uses whereas the
 6    exporters kind of turn it around and I think sooner or
 7    later some sharpening of the ideas on those two views is
 8    going to be helpful to us.
 9             MR. WALSH:   How will that take place?
10            MR. ATTWATER:   I think that's what we are here for.
11    That is why the parties filed briefs in the first place a
12    year ago, but it is obvious that people are looking at it
13    from a different viewpoint.
14           MR. TURNER:   I think that's a very good point.
15    That's precisely what inspired my question, to see whether
16    there has been any tentative decision made at this point by
17    the Board staff with respect to how that particular view
18    should be resolved, which interpretation was going to be
19    given favor if either.
20            What I am hearing now is that it is still an open
21    question.
22            MR. SAMANIEGO:   On balance, did you say that there
23    is not a legal hierarchy created by the Delta Protection
24    Act?
25            MR. TURNER:   Yes, that's what I was hearing Barbara                           
                                       24
 1    say, that recognizing that those uses do have to be
 2    protected, but the extent to which they have to be
 3    protected as compared to the other beneficial uses is not
 4    absolute.
 5            Would that be a correct interpretation of what you
 6    were saying?
 7            MS. LEIDIGH:   It's not a rigid type of thing.    You
 8    ultimately have to look at what those are and what is
 9     reasonable and everything else.
10            MR. TURNER:   Okay.
11            MS. RUIZ:   I would like to along those lines hear
12    from  our staff or anyone who holds the view that in fact
13    in Delta beneficial uses have a higher priority.
14            MR. MAUGHAN:   Mr. Nomellini might do that.
15            MR. NOMELLINI:   Yes.  I feel quite strongly about
16    that.
17            MS. RUIZ:   I appreciate your strong feeling, but I
18    guess I am looking for something a little more persuasive
19    than your feelings.
20            MR. NOMELLINI:   I think it is supported by the law.
21            MS. RUIZ:   Good.  That's what I would like to hear,
22    Mr. Nomellini.
23            MR. WALSH:   While Mr. Nomellini is coming up, what
24    does that do with the Board's ability to deliberate and
25    ultimately balance all these competitive issues and needs                                 
                                 25
 1    if we are going to be getting to a point where you have
 2    kind of an unspoken straw vote on what one thing is
 3    intended to mean or another thing is intended to mean?  I
 4    mean we are always worried about prejudice.    I think that
 5    sets the stage up for early prejudice on how we address
 6    issues that may more properly be worked out by the Board,
 7    and I will just ask for some guidance here, whatever you
 8    want to say.
 9             MR. ATTWATER:  You need to do your balancing
10    probably at the end of the process.  The way the two laws
11   intermix, the water quality planning law and the water
12   rights law and the Racinelli decision and other court
13   decisions, those court decisions first of all have heaped
14   upon this Board time and time again the ultimate discretion
15   to do the balancing, especially Racinelli, it's all over the
16   place.  But Racinelli did chastise the Board for not
17   separating out the water quality planning process from the
18   water rights process in the ultimate balancing.
19            In other words, the Board was obligated to take, in
20   Racinelli's words, the beneficial uses of the Delta and set
21   water quality standards that would protect those beneficial
22   uses.
23            Now Mr. Littleworth said, well, are there other ways
24    to do that besides water quality standards?  Well, there
25    may well be, but on the front end of the process when you                               
                                   26
 1    are talking about a basin plan and how the law, both
 2    federal and State law read, you have to set water quality
 3    standards to protect those beneficial uses.     It doesn't
 4    mean that the two major projects will be totally
 5    responsible for those.  Racinelli makes that clear.
 6            MR. WALSH:   Based on your reading or interpretation,
 7    that question  has already been answered, not necessarily
 8    as was --
 9            MR. ATTWATER:   Well, I don't know what the limits
10    are going to be.   That's what the Board sets.
11            MR. WALSH:   Are you following me though in my
12    statement of concern.    Let's assume that no one stands up
13    and objects to the fact that the higher beneficial uses are
14    outside the Delta or vice versa, that no one objects to Mr.
15    Nomellini's position that, you know, the Delta uses are
16    protected first.
17            MR. ATTWATER:   I don't understand that.    There is in
18    Delta domestic use and there is export domestic use.      There
19    is in Delta agricultural use and there is export
20    agricultural use.
21            MR. WALSH:   Mr. Turner stood up and said that he
22    understood Ms. Leidigh to say that neither of those uses,
23    either in or out are weighted.    You on the other hand --
24           MR. ATTWATER:   No, I didn't.
25           MR. WALSH:  Well, that's why we are here.  You see,                              
                                    27
 1    the benefit I have is that I am not an attorney, Mr.
 2    Attwater, and hopefully some of us lay people will have an
 3    opportunity of understanding the stuff, too.  What's what I
 4    heard, that neither were weighted. Then I heard in terms of
 5    literal reading of whatever it was, both federal and State
 6    requirements, that in Delta beneficial uses are weighted --
 7            MR. ATTWATER:  You didn't hear me say that.
 8            MR. WALSH:   Okay, then restate your --
 9             MR. ATTWATER:   I just said beneficial uses of the
10    Delta waters have to be protected.  That's what the
11    Racinelli decision said.    It says you set the water quality
12    to protect the beneficial uses.
13            MR. WALSH:   By saying that --
14            MR. ATTWATER:   And I said there were export uses as
15    well as in Delta uses.
16            MR. WALSH:  And would you make the same statement
17    there that they would have to be protected, too?
18            MR. ATTWATER:  Of course.
19            MR. WALSH:   Then what are we going to get out of
20    this?
21            MR. ATTWATER:  My point was that the Delta people
22    have approached it one way and indicated that in Delta uses
23    essentially have a priority over export uses.    That is in
24    the briefs, and you can look at Mr. Zuckerman's brief and
25    he says it.                                                                   28
 1            MR. WALSH:   Right.
 2            MS. RUIZ:   Mr. Walsh, by way of explaining, we are
 3    hoping that this particular hearing or workshop will allow
 4    you to hear these arguments firsthand by the various
 5    parties and be able to weigh them as we move toward to
 6    ultimate decision making.
 7            No pronouncement of the Board is expected here, only
 8    an opportunity to understand and learn from those that are
 9     engaged here.
10            MR. WALSH:   That's what I did in Phase I.
11            MR. ATTWATER:   Mr. Walsh, even though we are not
12    going  to  discuss  it  today,  the  same  arguments  apply  to
13    public trust uses.   Some of the groups have said public
14    trust values are in a hierarchy and deserve additional
15    protection over and above any other kind of use, so we will
16    get to that eventually, but the heirarchy of use has been
17    brought up in several kinds of contexts.
18            MR. NOMELLINI:   For the record I am Dante John
19    Nomellini .    My  office  is  at  235  East  Weber  Avenue ,
20    Stockton, California, and I am one of the attorneys for the
21    Central Delta water Agency.
22            First, with regard to the specific topic, that being
23    beneficial uses, as brought up here, I think that from our
24    viewpoint we believe that the Board has a duty to take a
25    very broad look at the beneficial uses of the water and                                     
                              29
 1    obviously out of basin uses of that as well.
 2            So I think you have to look far beyond the
 3    implementation and the arguments on priorities and those
 4    things when you define beneficial uses.     I think your duty,
 5    and conceptually as I perceive it, is one of looking at the
 6    waters of the State as the federal Government looked at the
 7    waters of the nation and said, hey, we have got to do
 8    something.   The good quality that we have should be
 9     protected because if we don't start protecting it, it's
10    going to be degraded and lost.
11            In those areas of our water system where water
12    quality has already suffered some degradation, we should
13    look at that and see whether or not the needs of beneficial
14    uses, and I think maybe the objectives, the term
15    objectives, or synonymously the word goals should be
16    thought  about .   What  can  we  do  to  clean  this  water  way  up
17    or bring it up to a level of protection?
18            So I think you have to look at it in a very broad
19    way in this planning phase.
20           In the planning functions some beneficial uses, both
21    within and without I think must be fully considered and
22    designated and I think it is your duty to set the
23    objectives and the goals to protect those regardless of Mr.
24    Littleworth's desire to take more water south or our desire
25    to have first priority.                                                                   30
 1            I think you have to look at the objectives absent
 2    those considerations.  Then I think you get into the
 3    implementation and the implementation plan may very well
 4    not necessarily achieve all aspects of the goals and
 5    objectives within the framework of existing structures and
 6    water rights and those kinds of things.
 7            I think it is in that arena that the so-called
 8    balancing takes place, and on the question of priority for
 9     the Delta, we think the Delta comes first.  We think it is
10    clearly designated in the Delta Protection Act.     We think,
11    too, that if you analyze the legislative history of water
12    in California, you will see that especially with regard to
13    the State Water Project, that the purpose of the project
14    was to take surplus waters from the north to the south,
15    those waters that would otherwise waste to the ocean and
16    capture those in reservoirs.
17            In fact, there are plans for some 200 or more
18    reservoirs' many of which have never been built because of
19    other policy considerations.  The idea was to capture water
20    that would otherwise waste and store that and put it to
21    beneficial uses in other parts of the State.
22            The history of the federal Central Valley Project
23    was likewise.   The big trade off there was to provide
24    salinity control, salinity protection for the Delta as a
25    tradeoff  to  take  water  out.   We  think  that  is  adequately                            
                           31
 1    supported in the legislative history and in the law, and
 2    it's been argued extensively.
 3            I think most of the lawyers in this room know the
 4    arguments of the other side and yet since we are in an
 5    adversary proceeding, I don't think you are going to get
 6    the kind of open discussion that perhaps you hope for, but
 7    those are my comments.
 8            I would be happy to answer specific questions.
 9             MS. RUIZ:  What again is your inhibition about open
10    discussion?
11            MR. NOMELLINI:   Well, we are obviously all
12    representing particular clients' interests.     The water
13    contractors want to export more water from the north to the
14    south.  Their lawyers come here and they feel that's their
15    job.  Those of us representing the Delta, we want to
16    protect the water of the Delta.
17            So you are not going to get a full and frank
18    discussion where attorneys on opposite sides are going to
19    yield on the legal positions.
20            MS. RUIZ:   I wasn't expecting an Alice in wonderland
21    situation.   I did expect you to continue to represent your
22    client's interests, but in doing so allow us to hear the
23    broadest possible range of positions being held by the
24    parties and educate ourselves on how broad the diversion is
25    and how compelling your arguments may be as you understand                        
                                          32
 1    basin planning.
 2            MR. NOMELLINI:   Well, I hope I have been responsive
 3    to that request.
 4            MS. RUIZ:   Thank you.
 5            MR. MAUGHAN:   Any other questions of the Board?  Do
 6    you want to ask Mr. Nomellini a question, Mr. Littleworth?
 7            MR. LITTLEWORTH:   I know better than that.
 8            MR. MAUGHAN:  Mr. Bold had his hand up first.
 9             MR. LITTLEWORTH:  I wanted to know, the Delta
10    Protection Act is actually one of your things down the
11    list, and I wanted to know if you really want our comments
12    on the Delta Protection Act now or shall we wait until it
13    comes up later?
14            MR. MAUGHAN:   Let's wait until it comes up later on.
15    It was explained there is some cross-relationship here and
16    it is not possible to totally distinguish them.
17            MR. LITTLEWORTH:   We have some comments we want to
18    make on it.
19            MR. MAUGHAN:   Okay, keep your notes.
20            Mr. Bold.
21            MR. BOLD:   Mr. Chairman and Members of the Board,
22    Frederick Bold.   I represent the Contra Costa Water
23    District.   My office is at 500 Ygnacio Valley Road, Walnut
24    Creek.
25            With your permission I would like to make some brief                               
                                   33
 1    comments on the first topic in the Board's notice of this
 2    workshop and that is the balancing of the demand for
 3    beneficial uses and I want to make that comment now because
 4    of the recent discussion on in Delta priority.
 5           Now the Board very logically balances demand for
 6    beneficial uses among first the Delta Estuary second the
 7    area upstream, and third the export area.
 8            Now in Contra Costa we perceive a veryserious error
 9     in the draft plan in that Contra Costa Water District's
10    service area is classified as an export area and it is not
11    an export area.   It is an in Delta area.   When water is
12    lifted from Rock Slough into the Contra Costa Canal, it
13    doesn't leave the Delta.    It stay in the Delta.    It's used
14    in the Delta.   It's transported in the Delta.
15           It isn't until that water is transported for 15
16    miles west to Mallard Slough that it leaves the territorial
17    boundary of the Delta.    But then it is not an export as we
18    understand it because it is then transported by gravity an
19    additional eight to ten miles in an area immediately
20    adjacent to the Delta which has for 50 years been
21    conveniently served with water from the Delta.
22            Now to compound this problem, the Draft Salinity
23    Control Plan at page 4-62 says not only is the Contra Costa
24    service area an area of export, but lo it is in the San
25    Joaquin valley service area.    Now that does gross violence                             
                                     34
 1    to the geography of Central California.
 2           To the extent that the service area of the canal is
 3    not within the statutory Delta, it is west of the Delta, it
 4    is in the estuarial zone.    The land drains not into the San
 5    Joaquin River but the Sacramento River and Suisun Bay.
 6            Now the problem, Members of the Board, is not one
 7    simply of classification and categorizing.     There are two
 8    very serious consequences.    First, to declare that this
 9     service area is outside the Delta and an area of export,
10    you are by a simple declaration wiping out the priority
11    that that area is entitled to under the statutes of
12    California.
13            I mean, it is obviously convenient to just avoid, to
14    walk away from the problems of the priority to which this
15    area is entitled by simply declaring that it is outside of
16    the Delta, but you can't do that.
17            Now the second consequence is this, there is a
18    fundamental difference between the Contra Costa water
19    District service area and the areas of export in the San
20    Joaquin valley and it is that each of them has a forebay or
21    a reservoir that can blend and balance quality gradations,
22    forebays and reservoirs that can take the peaks off the bad
23    quality.
24            But the Contra Costa Canal is different from
25    everybody in the San Joaquin valley because we are                                       
                           35
 1    compelled to take the water as it is instantaneously
 2    available to us.  Last week the quality water surged over
 3    250 milligrams per liter of chlorides.  It had no
 4    measurable or noticeable effect on the San Joaquin valley
 5    service area, but in Contra Costa County the people were
 6    drinking foul tasting water.
 7            So it is for these two reasons that we ask the Board
 8    to give careful consideration to the fact that Contra Costa
 9     is in the Delta.   To try to take it out of the Delta does
10    two things.   It wipes out a legal priority and it places us
11    in a disadvantaged position because we must accept and use
12    the water that becomes available to us day by day and hour
13    by hour.
14            I appreciate the opportunity to make these comments.
15            MS. RUIZ:   Mr. Bold, in order to better understand
16    your statement, in a more generic term, not necessarily
17    addressing Contra Costa, you are saying that we must
18    carefully view within our designation of beneficial uses as
19    to who is using consistent with that, is how we go about
20    defining an exporter versus somebody in Delta and how we
21    are watching our geographic classification in order to make
22    that determination.
23            MR. BOLD:   Exactly.
24            MS. RUIZ:   Thank you.
25            MR. MAUGHAN:  Thank you, Mr. Bold.                                                 
                 36
 1            Mr. Krautkramer and then you, Mr. Dunning.
 2            MR. KRAUTKRAMER:   First of all, I would like to
 3    apologize.   I am getting over a little touch of the flu.
 4            With all due respect, I have sat through the
 5    discussion and I must admit that I am still somewhat at a
 6    loss as to what it is we are attempting to accomplish here
 7    today.  Many of these issues have been briefed in full
 8    about  a  year  ago  by  the  parties.   Many  of  them  have  been
 9     discussed prior to that when the work plan was developed a
10    couple of years ago.
11           The notice gives the impression that this is
12    supposed to be some sort of informal discussion and I think
13    Mr. Nomellini's statement on that is correct, that when you
14    have lawyers representing clients and advocating legal
15    positions, that you are not going to get the kind of
16    discussion that you would have sitting around the fireplace
17    in a free rambling discussion.
18            Ms. Ruiz's comments suggest that perhaps what we are
19    supposed to be doing here is conducting oral argument of
20    our case, but that's not really what the notice said.
21            MS. RUIZ:   You have not been listening.  As a matter
22    of fact, I guess the framework for considering having this
23    legal workshop in the first place was an attempt to find
24     out  how  comfortable  you  were  with  basin  planning,  how  you
25     understood  the  Board's  role.       Even  in  the  briefs  that  were                   
                                               37
 1    submitted there was a clear indication that there were a
 2    lot of folks out there that don't understand the Board's
 3    role in basin planning, don't understand its relationship
 4    to the federal act, don't understand its relationship to
 5    other Board policies and actions, and in an attempt to
 6    perhaps find some common ground on which we could start
 7    discussing these issues with all of those policies and
 8    determinations in the hopper at one time as opposed to your
 9     having a perspective that you understand what basin
10    planning is.
11            I submit to you that we all have an opportunity to
12    learn and that this is that opportunity.     I am hoping that
13    by your coming in and addressing us as to what you believe
14    is the  process for designating beneficial uses, this Board
15    will learn, and others will benefit as well by your
16    understanding and your understanding of their understanding
17    of that process.
18            MR. KRAUTKRAMER:   Well, I guess to get to the point,
19    you know, we are two years into a process, we have had some
20    50 days of hearings, we have had legal briefs, we have had
21    workshops in the past, and I guess I am very concerned that
22    this process seems to be losing direction, that we are
23    going backwards, that we are back where we were two years
24    ago.
25        We are talking now about issues that were addressed                                  
                                 38
 1    at the outset of the hearing, what kind of beneficial uses
 2    should be addressed.   They were addressed in depth during
 3    Phase I hearings when parties put on evidence about what
 4    use they thought should be protected and there was
 5    discussion, you know, even during the hearings themselves.
 6            I can tell you what Art Littleworth's views are, I
 7    can tell you what my views are.    I am concerned that we are
 8    not moving this process along.    We are supposed to be at a
 9     point where we complete hearings on Phase II on a draft
10    plan and moving towards actually establishing protection
11    for the Bay and the Delta, and instead we seem to have gone
12    backwards two years.
13            MS. RUIZ:   Okay.  Then perhaps it is easier for me
14    to ask you since you seem to think it is all so clear, what
15    is your distinction and definition between an objective and
16    a standard?
17            MR. KRAUTKRAMER:   An objective is defined under
18    State law the same as the standard under federal law except
19     my  understanding  is  that  it  includes  a  program  of
20    implementation.
21            MS. RUIZ:   And everyone in this room agrees with
22    that description of what is the distinction between an
23    objective and a standard?
24            MR. KRAUTKRAMER:   I think that's wrong actually.    I
25    don't know that that's the point, but the standard is under                                 
                                  39
 1    federal law.   It includes beneficial use and  criteria to
 2    protect that use.
 3            MS. RUIZ:   Exactly what is a criterion?
 4            MR. KRAUTKRAMER:   Criterion is based solely on
 5    scientific and technical evidence.
 6            MS. RUIZ:   And what degree of scientific evidence?
 7            MR. KRAUTKRAMER:   It depends on various protocols
 8    EPA has adopted.
 9             MS. RUIZ:   How have they been adopted by EPA?
10            MR. KRAUTKRAMER:   I don't know that that's going to
11    get us -- I mean, when we get to that level of detail --
12           MS. RUIZ:  Yes, it does, because as we get into
13    defining what a standard is, which I believe has a
14    different --
15    MR .  KRAUTKRAMER:  We  are  talking  about  objectives  or
16    standards for that matter which EPA doesn't have protocols
17    for as far as I am aware.
18           MS. RUIZ:   Well, yes, that's helpful to know.    I
19    think a lot of people would like to know the current status
20    of a lot of the numbers that people wanted to set standards
21    on and also would like to understand what an objective is
22    and how we go about attaining an objective.
23            How do you view it in terms of is a basin plan a
24    plan or is it a document which has to be implemented?  It
25    sets rigid standards that must be complied with?                                             
                     40
 1            MR. KRAUTKRAMER:   I would submit, Ms. Ruiz, that at
 2    some point that's the Board's decision.    The Board is going
 3    to have make a decision on that and put out a document that
 4    has its conclusions in there and the parties will respond
 5    to that.   If the Board determines that those distinctions
 6    make a difference in the kind of decision that it is going
 7    to make, then it makes that clear in the document that it
 8    puts out and the parties comment on that as they would in
 9     any normal basin planning process.
10            MS. RUIZ:   I am concerned that representing your
11    client's interest you would be opposed to more public input
12    and more understanding and education --
13            MR. KRAUTKRAMER:   I am not opposed to public input
14    if it is going to get us somewhere.    I would have liked to
15    have public input over the last two months on the draft
16    plan and I think that's what we should have been doing.
17            MS. RUIZ:   Again I encourage you to engage in these
18    discussions because I think you yourself in your statements
19    about what an objective is suggest  there is a lot of lack
20    of clarity out there on some of these issues, and we need
21    your best thoughts quite frankly.
22            The Board is not composed of attorneys, thank
23    goodness, and the more we understand about what our options
24    are under the law and how best to frame a plan that is
25    legally sustainable, I think the better off the Bay and the                                   
                               41
 1    Estuary are going to be, and I think that you would agree
 2    with that statement.
 3            MR. KRAUTKRAMER:   I suppose I would appreciate
 4    understanding why the difference between what an objective
 5    and a standard is makes a difference in what the Board will
 6    decide.
 7            MS. RUIZ:   That is only but one narrow issue.
 8            Mr. Attwater and Mr. Sawyer, perhaps if we could
 9     outline for the gentleman some of the other issues that we
10    plan to get into and if you could review those and say that
11    you feel that you are pretty certain as to what the
12    interpretation is, then maybe there would be no need for
13    you to engage in these discussions.
14           MR. KRAUTKRAMER:  Again, I would go back to my
15    opening point and that is the parties have submitted
16    substantial briefs  on  what they feel the law applying to
17    the Board's decision making process is, and the parties
18    have taken different views on that law and in some
19    instances perhaps the views aren't the views the Board
20    would have and perhaps they don't totally understand the
21    basin planning process, but we have gone through that
22    exercise and I guess my question is, when are we going to
23    get down to the point of actually rendering a decision?
24            I don't really believe that this process is going to
25    move us any closer to getting a decision that everyone is                                 
                                 42
 1    going to agree on.   You are not going to have a decision
 2    that everyone is going to agree on.    You know, if you
 3    wanted to notice legal arguments, the parties could come in
 4    and argue the law as they interpret it in the context of
 5    the facts.   That would be unusual but it would be a very
 6    different matter than an informal discussion of this type
 7    which it is unclear to me where we are going.
 8            MR. ATTWATER:   Mr. Maughan, can I make a response to
 9     that?
10            MR. MAUGHAN:   Go ahead.
11            MR. ATTWATER:   In reference to the briefs filed over
12    a year ago and probably written at least a year and a half
13    ago, a lot of the questions in the briefs deal with the
14    question of flow which is being taken out of Phase I and
15    Phase II.   The briefs which I reviewed again about two
16    months ago, in large part did not adequately deal with the
17    basin planning process.    I mean if I gave an exam or if we
18    gave an exam on what was in 40 CFR 131 today, I doubt that
19    many people in this room, Mr. Krautkramer, would even know
20    what we are talking about.    Most of the discussion was at a
21    very general level in dealing with the basin planning
22    process.
23            Most of the people focused in on other things.     I
24    think that's one of the reasons that the Board Members felt
25    that this exchange today might be beneficial.  At least                                      
                            43
 1    everybody now knows there's a 40 CFR 130 and 131 out there.
 2            MR. KRAUTKRAMER:   I am not opposed to having
 3    exchanges like this, but the real point I want to make, is
 4    I am real concerned in having exchanges like this at the
 5    expense of moving a process along to where we finally get a
 6    decision.
 7            I am concerned about a process that seems to have
 8    lost direction.   In 1978 we were told that we would have a
 9     decision in ten years and now it looks like we are going to
10    be into the early 1990's at the earliest, so it is not the
11    process itself that bothers me, it is the fact that we seem
12    to be doing something that we probably should have done a
13    long time ago, and at this point I think the Board just has
14    to bite the bullet and make some decisions here and I don't
15    see that happening.
16            MR. MAUGHAN:   Thank you.
17            Mr. Dunning.
18            MR. DUNNING:   I am Harrison Dunning, affiliated with
19    UC Davis School of Law, also with the Bay Institute of San
20    Francisco, a party in the proceedings.    My address is UC
21    Davis, Davis, California, 95616.
22           I have a touch of the flu like Mr. Krautkramer.     I
23    think it is endemic in the environmental community  since
24    change in direction.
25           I wanted to respond to Mr. Walsh's point or question                                
                                  44
 1    really about whether in the basin planning process you make
 2    any distinction between the in basin and out of basin uses.
 3            I understood that to be the thrust of your question,
 4    whether it matters where the beneficial uses are going to
 5    be and Mr. Nomellini spoke about the possible applicability
 6    of the Delta Protection Act there.
 7           I simply wanted to point out, and I think it is
 8    relevant here,  although the public trust doctrine is
 9     suggested as item 3 on this list, I wanted to point out
10    that we have some guidance on that very question from the
11    California Supreme Court.  All of you are familiar with
12    Audubon, this litigation over Los Angeles's diversions out
13    of the Mono Basin and I think it is helpful to recall that
14    one of the things Justice Brussard said very very clearly
15    in Audubon is that this Board has a duty to protect public
16    trust or what he called common heritage resources.
17            Now I think it is clear from the decision that
18    Brussard was telling us that duty exists across the board.
19    It's not simply when the State Water Resources Control
20    Board sits down and issues a water rights permit or has the
21    statutory adjudication or does something else that  is
22    water rights.   I think it is very clear in the context of
23    the Audubon decision that that duty to protect common
24    heritage resources cuts across everything this Board does
25    where public trust assets are involved.                                                          
        45
 1            Going on from that, we find that Audubon said in the
 2    context of the Mono problem that they were using water to
 3    satisfy public trust objectives, the traditional
 4    objectives, the traditional objectives of preservation of
 5    navigation and commerce and fisheries, and Los Angeles
 6    said, people speaking on their behalf said in effect we are
 7    taking water out of the basin, we are taking it to Los
 8     Angeles,  we  are  using  it  for  very  important  commercial
 9     purposes, so you had this very question of in basin versus
10    out of basin.
11           The response from the court was very clear, a
12    unanimous court speaking with Justice Brussard's opinion
13    said, absolutely not.   The essence historically of the
14    public trust is to protect the public's right to access and
15    enjoyment of these common heritage resources in place in
16    some kind of natural system managed to a degree perhaps but
17    in the Mono Basin, not in the San Fernando Valley or
18    someplace else hundreds of miles away.
19            So I think there are two points there worth
20    considering.   First, the public trust obligation on this
21    Board explicitly declared by the court cuts across
22    everything.   It is not just for water rights, it is for
23    water quality planning just as much and in the water
24    quality planning the suggestion that there is some
25    particular emphasis to be placed on preservation of common                            
                                      46
 1    heritage resources, keeping them in some sense in the place
 2    where they have been.
 3            MR. ATTWATER:   Mr. Maughan, could I ask Mr. Dunning
 4    a question?
 5            MR. MAUGHAN:   Yes.
 6            MR. ATTWATER:   Why did the Justice then go on and
 7    talk about practical necessity and the ability of the Board
 8    to indeed allocate water knowing it would harm public trust
 9     uses?
10            MR. DUNNING:   He acknowledged this is not an
11    absolute duty to protect public trust as such to the
12    exclusion of everything else.    That's very clear.   I am
13    saying you have got to consider it and you have got to be
14    aware of this in basin preference, but the Brussard
15    standard was to say the in basin public trust uses are to
16    be protected if feasible.
17            So there's a different problem there.    It is similar
18    to the balancing problem many people have talked about in
19    many different situations.    There's certainly nothing that
20    said no export. In fact, there's some very strong language
21    at the beginning of the opinion pointing out that
22    California has built much of its prosperity and
23    habitability on the basis of massive exports of water and
24    that these have harmed public trust uses in many
25    situations.   He acknowledges that.                                                               
   47
 1            MR. ATTWATER:   And that is repeated in the Racinelli
 2    decision.
 3            MR. DUNNING:   And I don't think anybody questions
 4    that.   Nobody says the only thing considered is in-stream
 5    use or in-basin use.   My point is it is clearly a very
 6    important factor.   It does pervade the water quality
 7    process as well as the water rights process and it is
 8    something that necessarily must be very important in this
 9     Board's decision making.
10            MR. ATTWATER:   Mr. Dunning, the Sierra Club brief
11    filed before this Board a little over a year ago argued
12    that public trust uses deserve more protection than other
13    kinds of uses.   Do you agree with that?
14            MR. DUNNING:   I think that's the thrust of what
15    Brussard said in Audubon, that you protect them wherever
16    feasible to do so.
17            MR. ATTWATER:   Wherever feasible.
18            MR. DUNNING:   He didn't say we have water projects
19    to export wherever feasible.    That is not the mandate that
20    comes out of the public trust.    It's not an absolute duty,
21    but there is a strong sense of priority in the Brussard
22    decision and a call for this Board to integrate  -- you
23    recall he pointed out there are these two different lines
24    of doctrines, the doctrine about appropriative water rights
25    and the doctrine about the public trust, and they have                                      
                             48
 1    lived a somewhat separate existence for some time, and
 2    Brussard and the rest of the court said these have to be
 3    integrated and brought together, and it's up to this Board
 4    to do it in a creative way and the Bay-Delta is the obvious
 5    opportunity.
 6            MS. RUIZ:   What is your view of the relationship of
 7    public trust and basin planning as it is juxtaposed to the
 8    federal act and State Board statutory authority as well as
 9     its policies.   Isn't it safer to say you have a lot more
10    tools to work with examining the federal act than the State
11    act?
12            MR. DUNNING:   Well, the federal act certainly would
13    supersede if it conflicted in any way with the public trust
14    doctrine here which is a State law doctrine, but I am not
15    aware of anything in the federal act, in the Clean Water
16    Act that speaks to this question of in basin versus out of
17    basin beneficial uses.  Is there anything that you have
18    found?
19          MS. RUIZ :  That ' s  a  question  you  give  priority  to,
20    but in the basin planning itself are you saying that we
21    have to make that determination in basin planning now which
22    has the priority?
23            MR. DUNNING:   In working out the scheme of
24    beneficial  uses  and  identifying  subsets  of  particular
25    beneficial uses, I would say this is one of the matters to                                   
                                49
 1    be kept clearly in mind, yes.
 2            MS. RUIZ:   You envsion basin planning for us to be
 3    using designated beneficial uses in some kind of priority
 4    scale?
 5            MR. DUNNING:   I didn't say necessarily a priority
 6    scale and Brussard said integrate the two ideas, integrate
 7    the idea that the public is entitled to continued access to
 8    these long enjoyed common heritage resources, fish and
 9     recreation and so forth at the same time we have a prior
10    appropriations system which is built on this priority idea.
11    Priority doesn't come out of the public trust tradition, it
12    comes out of the appropriative rights tradition.
13            MS. RUIZ:   Which goes into how you implement your
14    basin plan, not necessarily in your basin plan.
15             MR. DUNNING:   well, I am suggesting in doing the
16    plan  that  is  an  important  decision  by  this  Board.   The
17    Board is under a general duty not to ignore common heritage
18    natural resources and so I think that in doing the planning
19    itself, the admonitions of Justice Brussard should be very
20    much in your mind.
21            As I read that case, it's a very powerful
22    expression, unanimous expression, and I think it's clear
23    that he understands the practicality as Mr. Attwater
24    pointed out.   He stresses that there necessarily in some
25    instances will have to be damage to public trust assets.                                   
                               50
 1    That's happened many times.    There are legions  of examples
 2    we can point to.
 3           MR. ATTWATER:   Mr. Dunning, on January 26, the Third
 4    District Court of Appeal came down with an intended
 5    decision in the Cal Trout case.    In that decision as I
 6    recall the court talked about the State proprietary
 7    interest in fish rather than its police power in regulating
 8    public trust values, if you will.
 9            Do you find anythig in that decision that would
10    impact the Board's basin planning process; in other words,
11    would impact how it sets standards, the fact that the court
12    emphasized that there is a proprietary interest in the
13    fishery itself and equated it with sort of a trust like --
14            MR. DUNNING:   Wasn't that point made to get away
15    from the idea that perhaps in some situations there were
16    non-navigable waters or --
17            MR. ATTWATER:   It included water public and private,
18    navigable and non-navigable.
19            MR. DUNNING:   That the fish in non-navigable water
20    would be seen as --
21            MR. ATTWATER:   I don't know why it was set.    I am
22    asking you whether or not it has any impact on the Board.
23    I mean the proprietary interest went across the board.     It
24    said navigable and non-navigable.    Assuming the Delta is
25    navigable does that have any impact                                                            
      51
 1            MR. DUNNING:   I think what the Board can do if
 2    ultimately tested by federal Constitutional standards, the
 3    Board may be on firmer ground in some situations if it is
 4    acting on the basis of some kind of proprietary interest
 5    the State has.   Otherwise I think it can do under its
 6    police power anything it can do as a proprietor, but in the
 7    federal Constitutional context it may make some difference.
 8     A  lot  of  that  is  undeveloped.      We  really  don't  know  yet.
 9             Thank you.
10            MR. MAUGHAN:   Thank you.
11            Mr. Somach, I didn't think I would ever see your
12    hand raise .   I thought you were just here today to hear
13    everybody else.
14            MR. SOMACH:   Well, actually I was in many respects,
15    and to respond where appropriate.
16           I am Stuart Somach.   I represent the Central Valley
17    Project Water Association.   I am with the law firm of
18    McDonough, Holland & Allen, 555 Capitol Mall, Suite 950,
19    Sacramento.
20            I want to address two things at the outset.     First,
21    the substance of the issue that we are dealing with and
22    then a concern, because I think that this process is a good
23    one, but I am a little bit worried about one aspect of it
24    and that is our ability to really totally respond to the
25    breadth of the questions that I have been listening to                                       
                            52
 1    being discussed here and certainly some of the comments
 2    that Mr. Attwater deals with in terms of the basin planning
 3    process and the more specific questions that are being
 4    dealt with.
 5            Let me first state in terms of the substantive issue
 6    we have been talking about, and that is this broad question
 7    of beneficial uses.  It's clearly the Central Valley
 8     Project  Water A ssociation' s  view  that  what  ought  to  be
 9      protected  is  not  beneficial  uses  in  the  Delta ,  but  uses  of
10    Delta water.   I think we have spoken to that in the briefs --.
11    we have spoken to that in the briefs we have filed both
12    originally as well as the petition on the draft plan, and
13    that emanates basically from our view of how the whole
14    balancing process of beneficial uses works.
15            And what we did is view both the federal act as well
16    as the State act, but focused primarily on the State act
17    which gives, I believe, a lot of definition to how one can
18    move through the process in a reasonable fashion in trying
19    to incorporate as much as possible, and that's the language
20    in the State act basically which looks at things from a
21    perspective of reasonableness and talks about feasibility
22    and takes a look at and focuses on that issue.
23            The issue itself is somewhat interesting.     The term
24    "reasonableness" is a term of art in the law as we all
25    know, but it is also a term of art unique and special to                                     
                             53
 1    the water rights context, and it also appears because of
 2    Porter-Cologne to be a word that has perhaps a little
 3    different meaning in the context of water quality in basin
 4    planning.   It's used particularly in the water context both
 5    as a limitation, a Constitutional limitation on beneficial
 6    uses of water, but it is also discussed very prominently in
 7    Porter-Cologne as being a limitation on the level or the
 8    standards or the objectives that are set in protecting
 9     beneficial uses.
10            And what we did there is in our briefs go through
11    even an analysis, an example analysis of how we thought
12    perhaps that might work trying to differentiate between
13    reasonableness as used in the water rights context from
14    reasonableness that was used in the water quality context.
15            I guess what I am suggesting is as I listened to the
16    various discussions that went on today, ranging from Mr.
17    Bold's discussion, even the public trust discussion that
18    Professor Dunning was just engaged in, and moving all the
19    way through Mr. Littleworth's original question about how
20    we move through this process so that we get a total
21    management of the resource, if one doesn't try to move too
22    far outside of the normal and ordinary understanding in the
23    water context of the term reasonableness, and I know that I
24    am stating this in a simplistic fashion, and I am doing
25    that because I spent so much time in writing it down in                                    
                               54
 1    more detail in the briefs, utilizing that concept as we go
 2    through the process doesn't at all aid or assist in trying
 3    to determine how things met out.    In other words, it is not
 4    necessary to determine whether or not the beneficial uses
 5    that are being protected are beneficial uses in the Delta
 6    if one realizes that regardless of how you view that
 7    beneficial protection, the objective  or standard has to be
 8    developed in a reasonable fashion as that term is utilized
 9     throughout the Porter-Cologne Act.
10            Doesn't that somewhat answer Mr. Littleworth's
11    question or give you a handle on how to work through the
12    process in a certain way so as to come up with common sense
13    answers where we think common sense answers are needed?
14            I am not sure that I am being particularly clear and
15    part of the problem is that I spent a great deal of time
16    and I think it is not such an easy concept as I am trying
17    to express it here.   I think it is more complicated than
18    that.
19            But I guess what I am saying is you can cut through
20      some  of  these  types  of  nuances  which  clearly  exist  there  by
21    broadening the view of that term "reasonableness" and while
22    perhaps yes, you ultimately, because you need to fit
23    certain legal constraints, you are going to have to make a
24    decision as to whether or not you are protecting beneficial
25    uses in the Delta versus beneficial uses of the Delta                                        
                          55
 1    water.
 2            But I don't know that the answer, the bottom line in
 3    terms of what that looks like, changes if one views the
 4    whole process as being one that has to develop standards
 5    based upon a concept of reasonableness, taking into account
 6    the impacts and effect upon all other beneficial uses.
 7            I don't know -- perhaps I didn't prepare to give you
 8    an oral argument here.    I really was more prepared for an
 9     informal discussion.
10            Anyway, I could even give page cites in the briefs
11    where I went into some detail.    I did that in preparing for
12    this, which is the other question, the broader question
13    perhaps that I want to pose to the Board, and that is that
14    in looking at the eight questions delineated out here, I
15    think all but one of these questions were specific
16    questions that were briefed, yet if I understand the
17    questions now that we are talking about, we are really
18    talking about subsets really, small subsets of these very
19    questions, and I know it appears to me that the Board staff
20    has done a great deal of work in flushing out and outlining
21    in other forums the whole myriad of issues that we are
22    talking about, and I am wondering whether or not a
23    procedure that will allow us to take a look at that
24    document to develop -- I would like to sit down really and
25    take a look at those issues, the 40 CFR 130, 131, basin                                   
                               56
 1    planning process, and I would like to sit down and I really
 2    don't want to brief this, I can assure you, but sit down
 3    and address those issues rather than on     off the top of
 4    our head, extemporaneous on whatever I can recall about the
 5    specifics of the regulations and stuff, I would like to be
 6    able to participate in a more total manner in a more
 7    detailed analysis that it appears to me the inquiry really
 8    is focused upon.
 9             I just offer that as a way -- I want this to be more
10    useful to everyone, and I'm afraid that my ability to
11    participate is somewhat limited by the fact I am dealing
12    with these eight very broad issues and I went through all
13    that written.   I did very similar to what Mr. Attwater did.
14    I went through everybody's brief, went through our brief,
15    and I have all that down here and I could talk about what's
16    down there.   I'm afraid that is not responsive to the type
17    of issues
18            MR. ATTWATER:   Excuse me, Mr. Somach, not everybody
19    in this room reads everybody else's briefs because I have
20    talked to some of these attorneys and I said, what about
21    this issue that was in so and so's brief?  They have never
22    read the brief.  Well, if you read it, it might change your
23    mind.   I mean these briefs have been out over a year.  I
24    would think these people that are appearing here, I mean
25    these briefs have been out over a year, would have an                                    
                              57
 1    obligation to sit down and read each other's brief and see
 2    whether or not there is any enlightenment.
 3            MR. SOMACH:   well, if it is of any assistance, I
 4    could provide specific page references to our brief if
 5    anybody wants to read and understand our position on the
 6    broad issues.
 7            MS. RUIZ:   Your position still didn't get into what
 8    do you think basin planning is.
 9            What is the legal context or what is the basin plan?
10    Is it a management tool comparable to a general plan?  Is
11    it instead a sword which has to be implemented by the Board
12    rigorously?  How do we go about it, what are the tests?
13    Certainly the tests are outlined in Racinelli, but those
14    are certainly just the broad brush.
15            MR. SOMACH:   Really, in order to better respond to
16    the question perhaps, why is the State Board's planning
17    process or basin Planning process, why is it different than
18    the Regional Board's planning process?  One would presume
19    it is different only because we have got more than one
20    reason involved.
21           MS. RUIZ:   It's also different because in the past
22    this Board dealt with flow.    Now the Regional Board never
23    deals with flow.
24            MR. SOMACH:   That was the point I was going to make.
25    If in fact flow is not, as I believe it is not, that was                                           
                       58
 1    the postion we took in the petition in particular, was that
 2    flow related to water quality issues ought not to be dealt
 3    with in the water planning process.
 4            If in fact that's the view that is concurred in even
 5    in the abstract, even for the sake of discussion now, then
 6    if that gets pulled out, then the question I have is, other
 7    than the fact the Board perhaps should do it because we do
 8    have two regions involved as opposed to one, why is the
 9     process any different in terms of what you go through in
10    terms of establishing those basin planning objectives and
11    standards?
12            MS. RUIZ:   That's a good legitimate question.
13            MR. SOMACH:   I don't know of any reason why it
14    wouldn't.   I guess that's my point.
15            MS. RUIZ:   Looking at temperature, looking at THM
16    precursors, looking at those kinds of issues, identifying
17    those issues which could be given by individual reasons as
18    opposed to a common plan, and understanding a perspective
19    like that is what is needed in this discussion.
20            MR. SOMACH:   I guess what I am saying is that all
21    the uses you have just named are perfectly, and always, not
22    always because the issues are a little different
23    because of the Delta and because of the salinity aspect of
24    uses, but those are all issues that can be addressed and
25    should be addressed in the basin planning process.                                         
                         59
 1            And what you need to do in the basin plan, as one
 2    does in a basin plan, is take a look at the broad water
 3    quality issues that are out there, identify them, and move
 4    through a process which tends to address the issues.  You
 5    see, one of the problems I think in this process is, it
 6    always has at the end of it because of the flow aspect, one
 7    heck of a club that allows or that precludes I think what
 8    the basin planning process is all about, and that process
 9     as I understand it, is of a broad Planning nature.
10            Let's identify the problems, let's take a look at
11    the range of problems as well as the range of solutions,
12    and then work outside that identification towards how we
13    are going to implement methodologies that will address and
14    resolve where possible and over a Period of time those
15    problems.
16            That's one of the complaints that I have had all the
17    way through .the process, and if I have said this once, I
18    have said it a thousand times to the Board, and it is not
19    because I don't think ultimately that may not be out there,
20    but by focusing so much on the water rights aspect, by
21    always talking about Phase III as if, you know, the day
22    follows the night, after you get done with this you move
23    right into that water right process, and I think what
24    happens, it inhibits, it impairs, it really precludes you
25    from ever getting into the real good opportunity of having                                 
                                 60
 1    a normal basin planning process to identify the issues and
 2    the range of standards and objectives.
 3            Now that we have divorced ourselves a bit from that,
 4    we have put some distance --
 5            MR. WALSH:   It sounds to me like that's an
 6    endorsement for the Phase I draft.
 7            MR. SOMACH:  Well, I have a myriad of problems with
 8    the Phase I Draft.   I don't think it did that.    I don't
 9     think it did all of the things that I am saying a normal
10    and ordinary basin plan should.    I think the Board staff
11    got caught up in many of the various things that I am
12    saying ought not to be caught up in the context of the
13    planning process.
14            Most of that plan deals with flows and flow related
15    issues that not at all you are dealing with.   If you were
16    to focus on the real basin planning issues, those really
17    are not as broad as what that plan is.    That plan would
18    have been a lot smaller and less controversial I think if
19    it focused merely on those things that are properly a basin
20    planning process.
21            MS. RUIZ:   Accepting that we are here dealing with
22    basin planning, again some of the other issues I would like
23    to see you focus on and think about, even in the course of
24    this discussion, is in basic planning should we be talking
25    about different rainfall types, different year types.     You                                  
                                61
 1    have different standards for different years.
 2            Are you talking about, because most of the problems
 3    we are dealing with are non-point source created, are we
 4    talking about different kinds of standards totally from
 5    point sources?  How are we going to interact some of those
 6    non-point source issues directly through the direction we
 7    give in the pollutant guidance document to the Regional
 8    Boards?  Are there additive relationships, transportation
 9     issues and the like?
10           There are a myriad of technical issues that all fall
11    back to the legal issues on the scope and effort that we
12    are engaged in.   Now, to do what you call a typical basin
13    plan is really a first for this Board.
14            MR. SOMACH:   I agree, typical in the planning
15    process, not typical with respect to the issues that are
16    involved.   What you are giving me, I don't want to respond
17    to any of those right now because I want to think about
18    them, but not one of those issues, as you obviously know
19    was addressed the way it ought to have been if at all in
20    the briefing that thus far has been done, and it's because
21    no one focused on what is the real aspect of the planning
22    process because everybody focused on the water right
23    implications of all this stuff.    There's not one of those
24    questions that you noted that I have, you know, that I have
25    written down, that you have stated that isn't deserving --                                   
                               62
 1    I mean I think it is absolutely right to discuss those
 2    things.
 3            All I am saying is at this point I am going to sit
 4    and listen a lot, but I am not prepared at this point to
 5    make specific comments on those.
 6            I would hope as we go through this process for the
 7    rest of the day the Board will allow opportinity for us to
 8    in fact have some input on these issues.    In fact, I
 9     specifically request that we be allowed that opportunity on
10    all these various issues, and again I suggest that the
11    staff has done, it appears to me, a great deal of work in
12    terms of scoping out these issues for their own internal
13    understanding so they could pose questions and conduct this
14    process.
15            It might be helpful in a subsequent follow-up
16    hearing, or some way to get copies or get some kind of
17    outline like that so we could do the same thing and again I
18    am not suggesting briefing, although that might be
19    something you might want to advance, but at least to allow
20    us to address those issues orally once we have had some
21    opportunity to focus on them.
22            None of these issues, as everyone knows, are types
23        of issues you want to deal with without some thought.
24           MR. ATTWATER:   I have one other question.
25           MR. MAUGHAN:   I want to take a 15-minute break                                 
                                 63
 1    pretty soon.
 2           MR. ATTWATER:   I have one question.
 3           Mr. Somach, when you first started out, as you spoke
 4    I wrote down that you mentioned a balancing process of
 5    beneficial uses. I don't understand what that means.     Are
 6    you equating balancing with reasonable protection of
 7    beneficial uses?
 8            MR. SOMACH:   Yes.  You know, it's almost a circular
 9     argument.   You first have to identify as we were discussing
10    earlier what beneficial uses are, what beneficial uses you
11    are going to take cognizance of, whether they be instream
12    beneficial uses or consumptive or out of stream beneficial
13    uses.  Once you do that, then I think you have to attack,
14    and this again is a very simplistic reiteration or
15    paraphrase of what I think was a little more detail, but I
16    think then what you have to do is identify what the needs
17    of those beneficial uses are from a water quality
18    perspective.
19            In other words, what is needed to protect each one
20    of those beneficial uses?  Then in the context of
21    developing standards to protect those beneficial uses, you
22    have to take a look at them, one versus the other, one
23    versus the myriad of beneficial uses, and attempt to
24    establish those standards in a reasonable fashion
25    considering each one of those things, each one of those                                  
                                64
 1    beneficial uses.   And there's a lot of subjectivity clearly
 2    in that process.
 3            I think you can develop standards, the absolute
 4    standards in a fairly objective way, but when you start to
 5    question the reasonableness, because reasonableness is a
 6    factual determination whether it be in water quality or
 7    water rights, it depends upon all the facts and
 8    circumstances.   You have to start taking a look at all the
 9     facts and circumstances.
10            And that's why I say I think it blurs the issue
11    about whether or not your mission is to protect in Delta
12    beneficial uses or beneficial uses of Delta water because
13    ultimately you have to look at the impacts that any
14    particular standard will have on all of the beneficial uses
15    that are involved that revolve around that water and the
16    standards must be set in a reasonable fashion in light of
17    all of those beneficial uses.
18           Whether or not you put a priority on those things, I
19    don't know.   whether or not -- exactly how you go about
20    making sure the standards are reasonably set, of course, is
21    subject to, I think, some advocacy based upon positions
22    that people hold perhaps, and perhaps there is some
23    objective mechanism for doing that, but I'm not positive
24    about what that is.
25            I did go through a sample analysis in the closing                                     
                            65
 1    memorandum which attempted to grapple at that point, and I
 2    thought about it a great deal since then and I'm not sure
 3    my analysis would be identical to those in there, that
 4    brief having been written over a year and a half ago.     But
 5    that would be an example of how one would go through and
 6    accommodate exactly what I am talking about, and set forth
 7    on pages 16 through 21 of that closing memorandum as an
 8    example because I was having trouble even in the brief just
 9     simply in terms of citing the law, making sure I was
10    explaining how it would operate, and the attempt on pages .
11    16 through 21 is an attempt to demonstrate how that process
12    might be done to account for all the beneficial uses and
13    set reasonable standards that accounted for all of them.
14            MR. WALSH:   Mr. Somach, you are continuing to talk
15    about a typical process, a process that had some
16    predictability or what people could follow, yet in
17    listening to your comments, it is pretty clear  that the
18    whole issue is very complex, very confusing, and that's
19    exactly what we got into in Phase I relative to flow,
20    exports and some of the other issues.
21            So, you know, if anything this is not, and defies a
22    typical approach, it is this process, and that's why I can't
23    imagine why introducing flows or requesting development of
24    these standards prior is going to get us any farther down
25    the road and therefore it seems to make a natural argument                             
                                     66
 1    for hopefully getting everyone to buy into the process so
 2    we can hear those things so that the Board in fact does
 3    have this hammer at the end of the process.
 4            Now it may not benefit a particular interest group
 5    or it may not set up a lawsuit for another interest group,
 6    but it certainly does keep all of the interest groups
 7    focused on the opportunity they have in this process, and
 8    with the threat of the club at the end of the process.     I
 9     think the threat is always much more productive than
10    letting the thing blow up in the first phases.
11            MR. SOMACH:   Not to know why the whole thing blew
12    up, I don't want to embark down that road by any means.      I
13    am just suggesting that by having pulled out the flow
14    issue, as flow not being related to water quality, as not
15    being a proper area of inquiry, what may occur is a more
16    useful process.   I also think it simplifies the issues.
17    You already have about as complicated a set of issues in
18    the context of any basin planning I can imagine to begin
19    with, and what you have merely done is at least taken out
20    not only a very complicated area of flows not related to
21    water quality, but also a very incendiary issue, not that
22    it doesn't exist, not that it still is not out there, not
23    that we know that we don't have to address that down the
24    road, I am just suggesting that by doing that and by
25    proceeding, and what I am not suggesting is that the issues                              
                                     67
 1    are more complicated, but the procedures, the document that
 2    we are looking at in terms of constructing, we should use
 3    existing models for that document if we move back into
 4    dealing with issues that are normally dealt with in basin
 5    planning.
 6            It doesn't make the process any easier, but at least
 7    you don't have to go and reinvent the entire wheel as to
 8    how it  all gets put together.
 9            MS. RUIZ:   Using the existing documents perhaps
10    staff or you could comment on the definition of sources of
11    drinking water which is a policy of this Board in place at
12    this time and its impact on the discussion of the Board!s
13    designation of beneficial uses within the Bay-Delta.
14            MR. ATTwATER:   In my view with respect to the State
15    Board, it was effective upon when you adopted it.  With
16    respect to the Regional Boards, they are required by law to
17    integrate it into their basin plan and they are proceeding
18    to do that over the next couple of months, so by probably
19    May of this year, the same document that the State Board
20    adopted will be integrated into the Regional Boards' basin
21    plans and for purposes of basin planning the definition of
22    drinking water will be the same definition as in the State
23    Board's policy.
24            In other words, the definition of what is drinking
25    water will be the same throughout the nine regions in the                                 
                                 68
 1    State of California.
 2            M$. RUIZ:   And included in this plan?
 3            MR. ATTWATER:   And included in this plan.   The only
 4    glitch in that is when the Board adopted these sources of
 5    drinking water policy they gave latitude to the Regional
 6    Boards to either up or down the sources of drinking water,
 7    so you would have to check each region to find out what
 8    they are either adding or subtracting.
 9               MS . RUIZ:  Does that discretion apply to the State
10    Board in its designation of beneficial uses as well?
11            MR. ATTWATER:   Well, since you adopted the policy to
12    begin with, I assume you would have the ability to go back
13    and change that policy, sure.
14            MS. RUIZ:   Not the policy, but using the policy in
15    the context of the Bay-Delta Plan, you would be able to do
16    so?
17            MR. ATTWATER:   Yes, I believe that is correct.
18            MS. RUIZ:   Are you familiar with that policy?
19            MR. SOMACH:   I am familiar with it, but I want to
20    think about it before responding.
21            MR. MAUGHAN:   Let's take a 15-minute break.
22            (Recess)
23            MR. MAUGHAN:  Mr. Littleworth wanted to make a
24    comment at the completion of the earlier session.
25            MR. LITTLEWORTH:   Thank you, Mr. Chairman.   I wanted                     
                                             69
 1    to make a couple of points on behalf of the contractors on
 2    some of the things that have come up under this general
 3    category of beneficial uses.
 4            Let me say at the outset though that I think there
 5    would be some advantage in having some more precise
 6    questions put to us either to respond in writing or to
 7    respond on another day.
 8            While we did brief a whole lot of things a year ago,
 9     the briefs didn't always meet.    I can remember Mr.
10    Krautkramer in his brief, which they were filed
11    simultaneously, and I didn't see that until it came in, put
12    a lot of emphasis on the federal law and on the
13    anti-degradation policy, and I know his conclusion was that
14    under federal law the protection could be no less than it
15    was in 1975.
16           Well, that was a point we didn't address in our
17    briefs at all and there was never any responsive period so,
18    you know, there's those briefs just sitting out there.
19            So I think there would be some advantage in picking
20     up  some  of  the  more  precise  questions  on  the  relationship
21    between objectives and standards and some of these kinds of
22    things that have come up and give us a chance to either
23    respond orally or to respond in writing.
24            MR. ATTWATER:   Mr. Littleworth, wouldn't you feel a
25    little more comfortable doing that after the draft plan has                                  
                                70
 1    been published?  I mean, how are you going to file a brief
 2    on just generic issues without knowing the factual context?
 3            MR. LITTLEWORTH:   Well, I suppose that if we are
 4    doing this it would only be with the thought that it might
 5    assist in the preparation of the plan and if ultimately
 6    your staff is going to have to make legal judgments on all
 7    of this and if in fact they are made, maybe what I am
 8    suggesting doesn't help.
 9             MR. ATTWATER:   I think the Board has to make the
10    judgment.
11            MR. LITTLEWORTH:  You have to be making a
12    recommendation at least to them on the legal kinds of
13    issues on which I think you would be doing that.     But I was
14    thinking that --
15            MR. ATTWATER:   Let me put it in an example.    If in
16    the factual context of the draft plan there was no -- let's
17    say there was no dispute as to the water quality limitation
18    for domestic use, for example, would the issue really need
19    to be addressed?
20            MR. LITTLEWORTH:   Well, if, as has been suggested
21    here, that the flow which doesn't relate to salinity is
22    going to be moved into Phase III, I think we will have a
23    much simpler plan and it may be that some of the issues
24    which we are talking about really wouldn't surface.
25            MR. ATTWATER:   Well, put more succinctly, the                                   
                               71
 1    requirement of the code, do they have reasonable protection
 2    of beneficial uses?  Normally your brief would focus in on
 3    what is reasonable in a factual context.
 4            MR. LITTLEWORTH:   There are at least a couple of
 5    issues that have come up here though this morning that
 6    maybe it would be helpful to have more precise legal
 7    thinking on it.   One is the question of enforceability of
 8    objectives and standards and how they relate.     Obviously if
 9     objectives were simply very general guidelines and goals so
10    to speak, and that's all you had, then it wouldn't be so
11    important as to what you have in them.
12            If in fact you think they are going to be
13    enforceable, then it's a whole lot more important how they
14    are prepared and how much balancing is done in that
15    preparation.
16            MR. ATTWATER:   Or how the allocation responsibility
17    is made for meeting those standards; in other words, does
18    it all fall on the projects or does it fall on the projects
19    plus 20 others, 30 others, 40 others?
20            MR. LITTLEwORTH:   That, I take it, however, is a
21    Phase III issue.
22            MR. ATTWATER:   Yes.
23            MR. LITTLEWORTH:   But this question of
24    enforceability of objectives is something that, you know, I
25    think Racinelli says that they are not, they may not be                                     
                            72
 1    enforceable, at least through water rights.    You may try to
 2    enforce them through a program of implementation that can
 3    be recommended to other agencies and so forth, but we have
 4    got two trial court decisions which were issued before
 5    Racinelli and maybe now are overruled, but at least we have
 6    got two trial court decisions sitting out there that
 7    basically equated objectives and standards and said if
 8    there are to be standards, it only makes sense if they are
 9     enforced.
10            MR. ATTWATER:   The Tulare case and Figone.
11            MR. LITTLEWORTH:   Figone refused to call these
12    objectives.   He called everything standards.    Once he
13    called the objectives standards, he sort of moved through
14    them and in sort of a layman's logic said if you have
15    standards, what is the use of having them unless they are
16    enforceable, and away he went.
17            MR. ATTWATER:  What weight do you give Figone in
18    light of Racinelli?
19            MR. LITTLEWORTH:  Well, I think that Racinelli has
20    answered that issue both as to Tulare and to Figone, but I
21    say we have those two decisions out there.   We have EPA out
22    there, too, and I don't know what EPA's view is going to be
23    and I don't think we can ignore that.
24            Anyway, that's just an example of, I think, the way
25    it does make a difference, whether these are enforceable or                             
                                      73
 1    whether they are mere guidelines.
 2            MS. RUIZ:   There's a trial court decision that's
 3    still out there in Sacramento on herbicides and a number of
 4    things that we have to
 5           MR. LITTLEwORTH:  Same kind of thing.
 6           MR. ATTWATER:   The problem that you face, of course,
 7    in a classical sense if you read the law, there are
 8    enforceable waste discharge requirements that really don't
 9     seem to be, you know, to the point in many cases.     They are
10    also enforceable by prohibitions and that wasn't even
11    mentioned by Racinelli.    Whether or not a prohibition would
12    be applicable in any case or not, I'm not sure.
13            MS. RUIZ:   But then that raises other questions,
14      doesn't it, about all the way to EPA, and we need to be
15      evaluating  how  we  set  about  with  CEQA.
16            MR. ATTWATER:   Sure, there's CEQA implications.    I
17    think we agreed not to discuss those today.
18            MS. RUIZ:   A lot of your analyses tie into the
19    interrelationship, and I think what this exercise is all
20    about is an appreciation of the interrelationship and our
21    best thought that comes with the realization of where these
22    tie together.
23         MR.  ATTWATER:         In  the  DWR  Bulletin  167,  whatever  it
24    was, the latest color --
25        MR. MAUGHAN:       160-87?                                                                 
 74
 1            MR. ATTWATER:   Yes, 160-87.   I believe they start
 2    out by saying, well, the Board has certain beacons they
 3    have to follow, the Porter-Cologne Act and the federal
 4    Clean Water Act and the Racinelli decision, but there are a
 5    lot of other things when we started out this morning
 6    getting into the Delta Protection Act and there's the area
 7    of origin that we have to consider, there's CEQA law,
 8    there's the regulations, 40 CFR 130, 131, a lot of things
 9     that people probably haven't thought about because we
10    haven't spent any time in the basin planning process.
11              A  lot  of  the  attorneys  in  this  room  are  somewhat
12    expert in the water rights process but this is probably the
13    first time that they have bucked up against the basin
14    planning process and that's one of the reasons that we
15    started out with the basin planning process today to talk
16    about it.
17            After reading the briefs, many of the parties gave
18    scant attention to it and then skipped to long discussions
19    of public trust and other issues that they thought they
20    were going to bump up against in Phase II and III.
21            MR. LITTLEWORTH:   I'm aware of that and that's why I
22    think there really is some value in trying to give us some
23    precise questions that we can all focus on.
24            Let me just state our position without trying to be
25    too argumentative on it, but to state our position on a                                      
                             75
 1    couple of other things that have come up.
 2           The contractors obviously think the beneficial uses
 3    should include the use of Delta water as opposed to merely
 4    beneficial uses in the Delta.    When you get to this
 5    question of whether there's a preference or a priority
 6    among those uses, those within the Delta and those outside,
 7    we don't think there is.    We think that Racinelli is really
 8    clear on that and if you begin to look at the grounds we
 9     are hearing for developing a preference, it relates to
10    maybe the Delta Protection Act or possibly some of the
11    other statutes, county of origin, Watershed Protection Act,
12    basically those kinds of statutes.
13            We have done a lot of briefing on those in times
14    past including to the Court of Appeal in the Racinelli
15    decision, but I don't know how much that kind of an issue
16    has really been briefed by everybody here, but our view
17    very simply is this, that those statutes, and I am
18    generalizing a little bit now, but those statutes all sort
19    of relate to giving areas a priority to get water out of
20    the project if they wanted to do that.  They could get a
21    contract, they could get, if there was enough water to go
22    around, they were going to get it first, but those statutes
23    I don't think reach down into the basin planning process.
24            Now if you look at the Delta Protection Act, Mr.
25    Nomellini was talking about, it was passed hand in hand                                  
                                76
 1    with the Burns-Porter Act in I think 1959 when the State
 2    Project was authorized, long before we had basin planning
 3    statutes, and as Mr. Nomellini was saying, the concept
 4    there was that the project would get surplus water.
 5            The real question is, what does surplus mean,
 6    surp.lus over what?
 7            Now if you go through the history of the statutes,
 8    at one point the drafting said that their needs would be
 9     protected and so presumably we would take anything that
10    they didn't need.   The word "need" got taken out in the
11    drafting and what was put in its place was "vested right."
12    You got back into a legal concept of what your rights were.
13            And so we get to take anything over and above their
14    rights, and rights are not in the planning process.   When
15    you get to the planning process you are back to simply
16    trying to protect beneficial uses, so anyway we can go
17    through that in much more detail and with all kinds of
18    citations, but briefly we don't think that any of those
19    statutes give a priority in the planning process.
20            Now let me just say a word about public trust --
21            MR. ATTWATER:   Mr. Littleworth, before you go on,
22    what were the provisions in the Porter-Cologne Act that
23    said that other agencies, other State agencies have to
24    comply with the plans unless specifically directed
25    otherwise?                                                                   77
 1            MR. LITTLEWORTH:   To comply with the plan?
 2            MR. ATTWATER:   Yes.
 3            MR. LITTLEWORTH:   You mean you are back to
 4    enforceability?
 5            MR. ATTWATER:   No, you are saying that none of those
 6    laws reach down into the planning process.     I mean there's
 7    one that's specifically at the planning process and
 8    directed at another State agency.
 9             MR. LITTLEWORTH:   Well, the laws I am talking about
10    are the priority ones which are county or origin, Watershed
11    Protection Act, Delta Protection Act.
12            MR. ATTWATER:  I understand.
13            MR. LITTLEWORTH:   Those, I don't think, pass
14    priority down in the planning process.    What they basically
15    do is protect the rights or give certain areas of priority
16    in buying water or acquiring water out of a project or
17    building a project, getting an assignment of water right so
18    they can build that project if they wanted to build their
19    own.
20            On public trust, I think the thing to remember there
21    beyond what Professor Dunning said, was that that case was
22      a water rights case.   He wants to apply it over to the
23    planning process, but it was a strictly water rights case
24    and actually the priority issue did come up there.     It came
25    up in a backhand kind of way because the City of Los                                     
                             78
 1    Angeles took Water Code Section 106 that says the highest
 2    use of water is for domestic purposes.
 3           It said, we have a priority over these instream uses
 4    and the court said no.
 5            When we were putting together the public trust
 6    doctrine and traditional California water law and we are
 7    trying to merge these into a combined body of water law,
 8    there are going to be no priorities and there's a clear
 9     sentence in there that says there are no priorities, so I
10    think that's as you begin to look at how public trust is
11    going to be carried over, you have to look at that sentence
12    that says there will be no priority between the public
13    trust uses and the domestic uses, and you are back again to
14    the balancing concept that you have to finally just make a
15    decision on.
16            MS. RUIZ:   Is it central to use public trust
17    analysis within basin planning?
18            MR. LITTLEwORTH:   Pardon?
19            MS. RUIZ:   Is the public trust analysis appropriate
20    within basin planning?
21           MR. LITTLEwORTH:   Well, Professor Dunning said yes
22    because he is saying that it is a principle that basically
23    is a broad policy that ought to be enforced at every level
24    as he puts it.   I don't really think so.    I think that the
25    basin planning process has a statute to start with and has                                
                                  79
 1    a number of cases on it.
 2            MS. RUIZ:  But isn't that an argument that public
 3    trust isn't already encompassed within a number of those
 4    provisions when you designate the beneficial uses or
 5    establish certain values for the fisheries and the like?
 6            MR. LITTLEWORTH:  The public trust doctrine doesn't
 7    really begin to have much impact, I think, over current
 8    statutes and current practices and the things you are doing
 9     now unless you give it a preference.    The statutes, when
10    you are applying water rights, your water rights authority
11    now says you will take into consideration the water needed
12    for fish, wildlife, recreation, all kinds of instream uses.
13    And you have to remember that the public trust doctrine
14    came up in the context of a situation where that did not
15    occur.  They didn't have a balancing and so the court said,
16    no, we are going to have to do that and they used the
17    public trust doctrine as a way to reach back and be sure
18    that there was then a new decision made that would take
19    into account public trust values as well as water right
20    values.
21            Well, you do that all the time.    That's not in the
22    statute.   So if you just say that the public trust doctrine
23    requires you to take these various values into account
24    without a preference it may affect old cases and old water
25    rights, but it is not going to affect the current kind of                                        
                          80
 1    situation because that's what you do.
 2            MR. ATTWATER:   That's a little bit unclear.    This is
 3    the thesis of the article that Mr. Littleworth wrote and
 4    had published, that it really was a vehicle for the court
 5    to reach back and have the City of Los Angeles water rights
 6    amended because there was no other way of getting to them.
 7            But Justice Racinelli picked up the issue and
 8    Audubon very clearly says there is a public trust
 9     obligation on the Board and whether or not it really means
10    anything more or not, I am not sure because the State made
11    the argument initially in Audubon that all this was assumed
12    in the Board's water rights process already, that the Board
13    had these broad police powers and there was a whole line of
14    cases, Fullerton case and other cases saying that the Board
15    had extensive power to deal with waste and unreasonable
16    uses and we really didn't need another arrow in our quiver,
17    but that the arrow came out of Justice Brussard's decision,
18    so it's been picked up and repeated in the Racinelli
19    decision and other decisions, so that, you know, that's a
20    good issue that Mr. Littleworth touches on and that's the
21    reason I ask Mr. Dunning the question, does the fact you
22    are dealing with public trust issues mean that public trust
23    values deserve any kind of a higher protection or are they
24    just thrown in the pot with everything else.
25            I think it is a question that ought to be briefed                                         
                          81
 1    and analyzed.
 2            MR. LITTLEWORTH:   The other thing, when you are
 3    thinking about public trust that has to be looked at, is
 4    what water does it apply to.    I think the public trust
 5    doctrine is basically a concept, and traditionally
 6    developed this way, which prevented the State from
 7    transferring into private ownership those assets in which
 8    the public had a common heritage and which really belonged
 9     to the public, and so it was a limit on the State's power
10    to basically give away the public's rights in streams and
11    lakes and so forth.
12            Now if you take that view of it, then in our
13    situation it would apply however it is going to apply, to
14    the natural system and to natural flows and so forth.     It
15    wouldn't be applying to stored water.
16            I don't think there is anything in the public trust
17    doctrine that says, thank you very much for building this
18    dam, we would like all this water and now please let it
19    down for our use for recreation or fish or what have you.
20    You have that authority in your water rights power to
21    require certain kinds of releases, but it is coming right
22    out of your statute.  It's not coming out of the public
23    trust doctrine.
24            So I don't think that --
25            MS. RUIZ:  But it could come out of public trust.                                     
                  82
 1            MR. LITTLEWORTH:   I don't think though when it is
 2    applying to stored water, but that's another issue.
 3            If you are going to begin to look at public trust,
 4    you have to look at whether you are talking about natural
 5    flow or stored water.
 6            MR. ATTWATER:   There's two types of public trust
 7    cases.  There's the water cases, and then there's the -- I
 8    call them the tideland cases or the shore cases, and there
 9     are a couple of cases dealing with maintaining artificial
10    levels of lakes like Clear Lake and Lake Tahoe, so I don't
11    think it is at all clear that public trust doesn't apply to
12    artificial things, but that's once again --
13            MR. LITTLEWORTH:  Not to artificial, but to stored
14    water, to require the releases.    There are cases which say
15    that you can go on to these kinds of bodies and as long as
16    the water is there, they are subject to public trust uses.
17    That's not the same thing as saying the water has to be
18    released from a reservoir to satisfy a downstream --
19            MS. RUIZ:   Again, that's the tideland cases you
20    referred to.   I happen to --
21            MR. ATTWATER:   Well, there's all kinds of
22    distinctions.
23            MR. LITTLEWORTH:   Anyway, that's another kind of
24    issue that if you are really trying to apply the public
25    trust doctrine, you get some kind of priority, then I think                                    
                              83
 1    you have got to look at whether or not it affects stored
 2    water.
 3            MS. RUIZ:   When you are doing that analysis, how are
 4    you evaluating the Endangered Species Act, both federal as
 5    well as we have within the State of California within the
 6    context of basin planning?
 7            MR. LITTLEWORTH:   Could I just give that question to
 8    Mr. Roberts.
 9             When we looked at all these things, some things I
10    knew something about and some things I didn't, and
11    endangered species was on my don't know list, so I left
12    that to the Metropolitan water District's counsel to be
13    very familiar with, so maybe he will have something to say
14    about that.
15            Thank you.
16            MR. MAUGHAN:   Anyone else on this subject?  Mr.
17    Nomellini.
18            MR. NOMELLINI:   I don't want this to become a debate
19    between Mr. Littleworth and myself, but the stored water
20    concept I think has to be recognized in the context of a
21    physical solution.
22            If you were to, not knowing what upcoming years will
23    look like, and with the variation in hydrology, I think it
24    is absolutely imperative that the Board has the power to
25    call upon stored water releasees.    Otherwise, you would                                
                                  84
 1    have to adopt such a stringent restriction on the filling
 2    of the reservoir that perhaps there would be very little
 3    stored water.
 4           So I think you have got to think about that in the
 5    nature of a physical solution.    In other words, you are
 6    trading off capturing greater flows in some years by
 7    calling upon those flows from a storage condition in a
 8    subsequent year.
 9             If you had to write decisions without some physical
10    mechanism, there wouldn't be these straight lines.
11            MR. MAUGHAN:   well, unless I am mistaken, the fact
12    that the chloride level at Rock Slough went over 250, their
13    solution was to release stored water to get it back down
14    recently, two weeks ago.
15            MR. NOMELLINI:   Right, and I think it is perfectly
16    appropriate in dealing both with the public trust issues as
17    well as in the water rights context, which I think is
18    implementation here, to deal with stored water, not
19    necessarily as a sacred cow that is already over on Mr.
20    Littleworth's side of the ledger sheet as part of the total
21    package of working out the solutions.
22            MS. RUIZ:   Again, I didn't understand him to say it
23    was exclusively on his ledger side, but rather under what
24    authority could you be evaluating it and whether it was
25    under the public trust or under our statute.                                                     
             85
 1            MR. NOMELLINI:   I think the public trust can reach
 2    stored water in the same manner that you reach it in the
 3    context of water rights and that's in terms of concept of
 4    working out a physical solution, knowing that hydrology has
 5    such variations from year to year that in balancing those
 6    issues you can deal with stored water.
 7           MR. MAUGHAN:   Thank you.
 8           Ms. Schneider, you haven't had a chance to speak.
 9     Now you do.
10            MS. SCHNEIDER:   Anne Schneider, 555 Capitol Mall,
11    Sacramento, 95814.
12            I am representing the Delta Wetlands, Inc., which
13    was not a party to this first phase in any serious way.
14            I am one of the people that Mr. Attwater referred to
15    as someone with some understanding of water rights
16    processes, but a very small understanding of the Delta or
17    basin planning process, and I think there have been some
18    questions that Vice Chair Ruiz has asked that I think lead
19    into the next set of issues, the second set of issues on
20    the list of eight, and that is whether the basin plan that
21    you are creating is a guidance document or a binding set of
22    limitations akin to a general plan.
23            I find that to be a very interesting question.     In
24    particular as far as Delta Wetlands is concerned, it is
25    interesting because I think it is crucial that you find a                                       
                           86
 1    practical relatively easy way to take into account future
 2    agreements, future facilities and projects.     When we talk
 3    about plans of implementation, I think you are raising
 4    issues, going backwards, raising issues now of building
 5    into your planning process the necessary flexibility.
 6            One way I got into these questions was looking at
 7    the draft salinity plan and figuring out after everyone's
 8    reactions had been accumulated, what are you going to have
 9     now?
10            I recognize that you have to have a hybrid plan
11    because you are doing a plan yourself and it is not
12    generated bt the regions.    But when you take back out of
13    your draft plan the flow requirements, I'm not sure what
14    you have left.
15            And it seems that -- two things -- you have
16    something much more like the basin plans that the regions
17    do, but I wonder if you don't have something that needs to
18    be called a different kind of basin plan and when you take
19    out these plans of implementation, these flow objectives,
20    can you make a finding or make a determination, an
21    overriding finding of some sort, that you can't include
22    many kinds of plans, aspects of a plan of implementation in
23    this basin plan at this time?
24            I know you have said basin plans include beneficial
25    uses and objectives and a plan of implementation, and yet                               
                                    87
 1    you come back and say, but we can't get into the plan of
 2    implementation on flows.   Maybe we can on temperature.
 3    Maybe we can on certain quality salinity related
 4    objectives.  But I don't know what you have left, and so
 5    when you ask, this is roundabout, but when you then ask, do
 6    we have something akin to a general plan, and yet you are
 7    deleting what I would have perceived as the heart of the
 8    plan of implementation, I'm not sure that you have
 9     explained what you are really going to end up with.
10            MS. RUIZ:   Okay.  That's a very good point.    If you
11    look at flows as opposed to being tantamount to salinity
12    standards, that's what we have cut out at least in my mind.
13            MS. SCHNEIDER:  May I follow that with a question.
14    In some understanding of water rights in California, I have
15    just grown up with the concept that we cannot separate
16    rights from the quality in the Delta.  Just on the very
17    basic level I don't understanding how you are going to do
18    this.
19            MS. RUIZ:   I agree with you, but again it's where it
20    comes in.   If we do our analysis and we get into this phase
21    later, our test for establishing the objectives or
22    standards goes to reasonableness.    The accomplishment of
23    what is reasonable in light of what is implementable,
24    technically economically feasible under an analysis, will
25    get you back into flows, so you are setting your standards                                
                                  88
 1    or your objective, whichever you feel is appropriate for
 2    the amount of evidence, based on that feasibility and they
 3    are tied, the economics on the technical feasibility.
 4            So again, you don't totally excise flows.    You use
 5    them as a  method of analysis in establishing the numbers.
 6            MS. SCHNEIDER:   Do you have the legal ability to say
 7    that you will not include in the plan of implementationwhat
 8    everyone recognizes as a major implementing tool, control
 9     of rlows?
10            MS. RUIZ:   We have no other basin in California that
11    has the flow that we do in the Delta.
12            MR. ATTWATER:   And there is a possible way of doing
13    it to maybe alleviate your confusion.    I mean, the Board,
14    after getting through Phase III -- let's step back once and
15    say that the plan of implementation would be very genera1,
16    would not talk about specific flows at all.  You get to
17    Phase III and you may have negotiated settlement  you may
18    have legislation, you may have all kinds or things that
19    come out of that.   The Board could always go back and amend
20    that plan of implementation.    That is not impossible at
21    all.
22            MS. SCHNEIDER:   So what you are amending is like a
23    general plan?
24            MR. ATTWATER:  I have actually referred to it as
25    water quality plans when I have given speeches and it is                                  
                                89
 1    somewhat akin to a general plan, just so people can
 2    grasp -- I mean they are familiar with general plans.     If
 3    you talk to local agency planning people, they know what a
 4    general plan is.
 5            MS. SCHNEIDER:   Does each new agreement or facility
 6    have to get an amendment to the general plan?  What is the
 7    planning process?
 8            MR. ATTWATER:   No, I don't think so because of the
 9     agreements.   That's one of the ways -- let's say that the
10    project operators can meet the constraints in the Board's
11    decision.
12            MR. WALSH:   with the time line.
13            MR. ATTWATER:   Yes, with the time line.
14            MS. RUIZ:   If you set an objective, and an agreement
15    only moves you this far through this objective, so long as
16    it is consistent with attaining that objective within a
17    specific time, it's not like having to go in and amend the
18    general plan or that you have even granted a variance.  You
19    have in essence made an evaluation that that physical
20    option, that proposal or that agreement is in itself a
21    movement consistent with the plan, general plan itself, and
22    is moving toward that objective.
23            MS. SCHNEIDER:   But if the general plan is generous
24    enough to allow the interpretation that an agreement is
25    moving toward the intended goal, that is the easiest case.                                
                                  90
 1    Sometimes it will be difficult to determine        that a new
 2    project or a new facility or a new agreement will indeed be
 3    moving you in that direction, and then what I am trying to
 4    find out is, do you have a process that's going to be like
 5    a general plan amendment process that you have to go
 6    through in order to meet your basin plan?
 7            MR. ATTWATER:   You don't have to.   After the plans
 8    in 1485 were adopted, the COA was adopted and the marsh
 9     agreement was reached, the Board did not go back and amend
10    the plan.
11            MS. SCHNEIDER:   But the COA incorporated into it the
12    recognition that 1485 would be met; is that correct?
13            MR. ATTWATER:  Yes.
14            MS. SCHNEIDER:   I am talking about some new concepts
15    that we are trying to work out.    Throughout this room there
16    are people who are trying to work out new ways of meeting
17    Delta objectives that are and are not related to flow, and
18    I think a lot of the people worry about just what kind of
19    thing this plan is in terms of having to meld what they
20    would propose into what the objectives are and how they are
21    stated.   It's one thing to say that habitat is related to
22    pre-project flows, and another to set objectives now that
23    allow a lot of flexibility as to just how that habitat
24    would be met.
25            MR. WALSH:  From my perspective it may well be that                            
                                      91
 1    ultimately you wind up with a list of things that have to
 2    be accomplished by certain dates.  If in fact those things
 3    don't occur by those dates, the Board always has the
 4    opportunity to come back and set the balance of that need
 5    by revisiting water rights.
 6            MR. ATTWATER:   Or extending the time.
 7            MR. WALSH:   Or extending the time if there is a
 8    legitimate excuse.
 9             MR. ATTWATER:   If it's 200 parts at X point in the
10    Delta --
11            MR. wALSH:   May I just finish this thought.
12            There may also be several other things that occur
13    within that time frame or along with that time frame there
14    may be a piece of legislation, there may be another
15    negotiated agreement between various agencies and
16    departments, special interest groups, that plug in and
17    satisfy a portion of the puzzle that the Board is
18    addressing.
19            But we always have the authority and right if, in
20    fact, within the time frame these things are not
21    accomplished, to come back and say, which is what I prefer
22    because I think you get over a lot of the historic
23    animosity and you allow people to participate as opposed to
24    just setting arbitrary limits to water rights; I mean,
25    people that are worried about this thing doing something                                  
                                92
 1    positive and getting some standards in place, you know,
 2    that to me is a good way to postpone it another 10 or 25
 3    years.
 4            I think this other route gives you an opportunity to
 5    try to encourage people to buy into the process with
 6    specific time lines.   If those times lines aren't met
 7    through one agreement or another, the Board can always come
 8    back and say, sorry, we have got to go back and start
 9     figuring out what water rights are going to have to be
10    addressed and maybe that would be of use up front, but
11    still it doesn't like the stick.  It worked well for me
12    from K to 12 at Catholic school and we knew exactly what
13    the parameters were.
14            MR. ATTWATER:   Not only can the Board reopen the
15    plan at any time, we are under an obligation to provide a
16    triennial review every three years, revisit the plan and
17    see if there's anything that needs to be changed.     That's
18    an EPA requirement, but we still have that obligation.
19           MR. MAUGHAN:   Thank you.
20           MR. WALSH:   I have got to make another statement.    I
21    am continually hearing about how this has got to be done up
22    front, you got to bite the bullet, you have got to go ahead
23    and do this, maybe not from you, but out there, and it
24    would seem to me that particularly with the criticism we
25    received about doing something quick, I am a layman, but if                             
                                      93
 1    you want to wind up in court and have nothing done for five
 2    or ten years, that's the way to do it.     It's pretty evident
 3    that has been the way to do it in the past and why we still
 4    aren't farther down this road, so like I say, I have thrown
 5    out creativity and not being bound by historic constraints
 6    or just because the Board did it this way 10 or 15 or 20
 7    years ago, we ought to be doing it this way today.     I think
 8    the ballgame has changed so dramatically that if anything
 9     we ought to be moving away from those types of approaches
10    and hopefully everyone buying into the process so we at
11    least get us a bit farther down this road.
12            MR. MAUGHAN:   Anyone else?
13            MR. ATTWATER:   Barbara has about a six- or
14    seven-minute presentation on water quality objectives and
15    then you can break and allow people to think.
16            MR. MAUGHAN:    We will break then.
17            MS. LEIDIGH:    The next subtopic on my list is water
18    quality objectives.     Just to kind of orient people though,
19    after I talked about water quality objectives, and after
20    the next discussion break for that, I will talk about the
21    program of implementation under the Porter-Cologne Act, and
22    then I will go into the Clean Water Act, the federal act,
23    and talk again about designation of beneficial uses
24    criteria and program of implementation.    After that I will
25    talk about the anti-degradation policy at the federal level                                  
                                94
 1    and some parallels at the State, and non-point source
 2    regulations.
 3            On water quality objectives, under the
 4    Porter-Cologne Act, these objectives must meet the
 5    requirements of Water Code Section 13241 and what that
 6    means is that they must have the following:
 7            First, they must insure the reasonable protection of
 8    beneficial uses and the prevention of nuisance, recognizing
 9     that the quality of water may be changed to some degree
10    without unreasonably affecting beneficial uses.
11            Second, they must be based upon a consideration of
12    factors which must include at least the following factors:
13                  (a)  Past, present and probable
14            future beneficia1 uses of water;
15                   (b)  Environmental characteristics
16            of the hydrographic unit under
17            consideration, including quality of water
18            available in the area;
19                   (c) Water quality conditions which
20            could reasonably be achieved through the
21            coordinated control of all factors which
22            affect the water quality in the area;
23                   (d) Economic considerations;
24                   (e) The need to develop housing
25            within the region.                                                                   95
 1            These are the provisions that are in Section 13241.
 2    The provisions are construed in U. S. versus State Water
 3    Resources Control Board, the Racinelli decision, as
 4    granting the State Board "broad discretion to establish
 5    reasonable standards consistent with overall statewide
 6    interests."
 7            And the cite for that quote is 182 Cal Reporter,
 8    161, 116.   That doesn't sound right.  Check with me later
 9     and if you need that quote, I will find it for you.
10           Some important points in the opinion regarding
11    objectives are:
12            First, the Board's task is to protect beneficial
13    uses;
14            Second, the Board must consider not only the
15    availability of water but also all competing demands for
16    water when it determines what is the reasonable level of
17    water quality protection.    I refer you to Section 13000.
18            For water quality planning this means taking the
19    larger view of water resources to estimate all water uses,
20    not a quantification of all existing rights.
21            And those two points are what the Court of Appeals
22    specifically said that it wanted to call your attention to
23    regarding objectives.
24            At this point I have a break on my outline and this
25    would be an opportunity for discussing programs -- well,                                   
                               96
 1    the next thing is program of implementation.     This is an
 2    opportunity to discuss the objectives and how they are
 3    prepared, so we can either go into that now or we can wait
 4    until after lunch.
 5            MR. WALSH:   I have a question on what you are
 6    covering.
 7            In the first list of parameters you read off, you
 8    came down to about the second or third, and you were
 9     talking about water in the system or --
10            MS. LEIDIGH:   The objectives are to be based upon a
11    consideration of factors which must include the following
12    factors:
13            The first one is past, present, future beneficial
14    uses; the second one is environmental characteristics; the
15    third one was water quality conditions which would
16    reasonably be achieved through the coordinated control of
17    all factors which affect water quality in the area.
18            Is that the one you were talking about?
19            MR. ATTWATER:   I think he is referring to B which
20    says environmental characteristics of the hydrographic unit
21    under consideration including quality of water available
22    thereto.   In other words, if you have poor quality water to
23    begin with are you going to set high objectives?
24            MR. WALSH:  I was interested in both of those and
25    also the second one, that's, you know, the facilities, et                                     
                             97
 1    cetera, and depending upon what stage we are in it is
 2    almost as inflammatory as the B word, so I wanted a
 3    rereading of that.
 4            Thank you.
 5            MR. MAUGHAN:   Let's return at one o'clock to discuss
 6    those.
 7            (noon recess) 8 9101112131415161718192021222324
25                                                                    98
 1                MONDAY, FEBRUARY 27, 1989, 1:00 P.M.
 2                              ---oOo---
 3            MR. MAUGHAN:   All right, it is one o'clock.    It
 4    looks like some people are taking a little longer for lunch
 5    or are not coming back.
 6           Do all of you remember what Ms. Leidigh put on the
 7    table before lunch?  If so, how many of you would like to
 8    comment?
 9             MR. NOMELLINI:   I made a fairly broad comment
10    earlier that was probably applicable to this in terms of
11    objectives.  Again, I think that you have to do it in light
12    of the beneficial uses without regard to the question of
13    the implementation.   I think you have to look at the
14    beneficial uses to be protected and set the appropriate
15    objectives to meet the needs of those beneficial uses.
16            MS. RUIZ:   How can you do that?
17            MR. NOMELLINI:   I think you do it, I think the trap
18    that I see, not the trap, I see the same problem occurring
19    in this go-around as occurred in the prior decision and I
20    thought the Racinelli decision was clear in terms of saying
21    the mistake the Board made at that time was in setting the
22    objectives in the planning function constrained by water
23     rights ,  and  I  think  the  judge  is  just  saying  it  again.         We
24     are  all  arguing  about  it  and  I  guess  we  won't  find  out
25    until we get back into the legal system to get it decided.                                   
                               99
 1            I thought that was clear in Racinelli, that you
 2    don't let that restrain your determination as to what the
 3    objectives should be to protect the beneficial uses that
 4    you have identified.
 5            MS. RUIZ:   What emphasis then do you give the test
 6    that Barbara outlined for setting water quality objectives
 7    that include such things as economic feasibility?
 8            MR. NOMELLINI:   well, I think you look at it in a
 9     broader perspective, not in the balancing that you have to
10    do in terms of the implementation.    I think you look at it
11    as agriculture, let's say we had some unique crop that
12    would require distilled water in the Delta.  I think you
13    would say it is unreasonable, you know, in the broader
14    perspective of looking at agricultural needs in general and
15    the general beneficial uses in the Bay-Delta Estuary, but I
16    don't think you do the balancing that you are going to do
17    in the water rights phase.
18           MS. RUIZ:   what are you talking about when you
19    say -- I am truly trying to understandy our thinking
20    because it is very important, what balancing -- I think we
21    are using the term "balancing in a lot of different ways
22    and I think in conversations that I have had with our
23    attorneys, it is true even in house, and I would like to
24    understand completely what you are talking about in
25    balancing.                                                                  100
 1            MR. NOMELLINI:   Okay, let's pick agriculture.    The
 2    Board in the past chose to focus on field corn as kind of a
 3    gauge of what crop to use to depict the present and future
 4    needs for the beneficial use for agriculture in the Delta.
 5    Is that a reasonable or unreasonable decision?
 6            And I think in light of determining whether it is
 7    reasonable or unreasonable, there's some valuations that
 8    are going to take place as to whether or not you have said,
 9     well, I think on balance that the Delta is not going to
10    plant celery throughout, and that you are doing some
11    balancing in that thought process.
12            MR. MAUGHAN:   And that's okay.
13            MR. NOMELLINI:   I am not agreeing that corn should
14    be the one, but I think that's the kind of balancing that
15    goes to the reasonableness of the need, you know, the
16    reasonableness of the objective that you set for that need,
17    and I think that's the kind of thing you do and I think you
18    are bogging yourselves down when you go to the balancing in
19    every phase that has been advocated by my good friend, Mr.
20    Littleworth, because there's no point in having a
21    subsequent phase if you are going to do it all now, and
22    that's it.
23           And I don't think that's what Racinelli said and I
24    don't think that's what the basin planning function is.
25            MS. RUIZ:   What is the meaning of the term                                         
                        101
 1    "reasonableness" in setting objectives?  How do you account
 2    for that?
 3            MR. NOMELLINI:   I think it is in the nature of the
 4    test that is made after your decision is made as to the
 5    reasonableness of your judgment on that issue and it has to
 6    have a basis that cannot be found to be an abuse of
 7    discretion.  That's what I think that reasonableness means
 8    at this stage.   And I think in terms of planning, you have
 9     got to remember that the implementation is not limited to
10    water rights.
11            You have got the discharge controls, you have got
12    the other things.   There may be programs and facilities.
13    There may be, you know, land use decisions.
14            I could think of a wide range, you know, anti-growth
15    policies, all kinds of things, that could technically be a
16    part of implementation, so to take the water rights aspect
17    and bring it up here now and force you to balance those
18    while at the same time you pick your objectives, I think
19    that's a clear error.
20           MR. ATTWATER:   Let me go back.   I am not tracking
21    Mr. Nomellini very closely on this one.    The Racinelli
22    decision said first of all you need to protect beneficial
23    uses, not to protect water rights, and I think what the
24    court  meant  by  that  is  if  something  does  not  have  a  water
25    right per se, the Board still has to go ahead and adopt a                                  
                               102
 1    water quality objective to protect that beneficial use even
 2    though it doesn't have a water right.
 3           Okay, secondly, the Board must assure reasonable
 4    protection of beneficial uses.
 5            At this point Racinelli is quoting right out of the
 6    Porter-Cologne Act.   He doesn't get into what is reasonable
 7    or not reasonable.   He said the Board has broad discretion,
 8    wide latitude to discuss and adopt a water quality
 9     objective.
10            And then thirdly, this is where the word "global"
11    came that so many people are throwing around in the
12    planning process, it said in the planning process the Board
13    has to take a global perspective of its obligations and
14    that sort of followed, as I recall, on the heels of the
15    Racinelli discussion of the various options that the Board
16    had with regard to planning.
17            And then finally, Racinelli is very emphatic.     He
18    said that nothing allows the Board to limit the scope of
19    its basin planning function to water quality standards that
20    are enforceable through the water rights process.
21            In other words, if you think it needs to be 200
22    parts per million at a certain part of the Delta and you
23    decide that without project is the proper way to enforce
24    the water quality standard, and that only meets half the
25    standard, you have other options that you can go ahead and                            
                                  103
 1    look to.   I mean that's a distillation of the water quality
 2    part of the Racinelli decision.
 3            I didn't quite track with Mr. Nomellini.
 4            MR. NOMELLINI:   Well, there's two lawyers in
 5    agreement at this instant in time.    I am in accord with
 6    that statement.
 7            MR. ATTWATER:   That's what it says.   I am not making
 8    it up.  It is almost verbatim from the decision.
 9             MR. NOMELLINI:   I agree that's what it says.    I
10    think that's the law that we have to abide by and therefore
11    I think we are forcing ourselves into a position of
12    violating that --
13            MR. ATTwATER:   Well, I just want to say that the
14    unanswered question is, and I alluded to it, is what is
15    reasonable and the court said you have wide latitude to
16    determin e     what is reasonable.
17            In fact, the Cal Trout decision that came out of the
18    Third District Court of Appeal on the 26th of January has a
19    little discussion of what's reasonable and indicates that
20    bdth the Legislature and the court and presumably
21    administrative bodies all have the capacity to
22    determination reasonableness.  It's a question of fact.
23            MS. RUIZ:   And I guess while you agree with our
24    counsel here on those points, you want clearly to say you
25    felt we shouldn't be considering flows and we were in                                      
                            104
 1    danger of bringing flows back?
 2           MR. NOMELLINI:   No, I didn't say anything about
 3    flows.  That's another subject which I would comment on if
 4    you want me to, but staying right on the question of
 5    whether or not you should be dealing with implementation in
 6    your minds as you try to determine  what the needs are,
 7    what the objectives should be to protect the beneficial
 8    uses, it's on that narrow point that I think you are headed
 9     into error, because I think your determinations on what is
10    necessary to protect the beneficial uses, be it the
11    objectives, has to be made without constraint from the
12    implementation aspect.   That's what I think.
13            MR.  MAUGHAN:  Let  me  make  sure .   A  little  while ago
14    you said something about celery.    If the Central Delta had
15    ten acres of a very salt sensitive crop, you wouldn't
16    necessarily think it is reasonable to protect that?
17            MR. NOMELLINI:   That's right, and I think that's --
18            MR. MAUGHAN:   That's where reasonableness comes in.
19            MR. NOMELLINI:   The reasonableness is going to come
20    in on the test.   Now you have to look at past, present and
21    future  and whether your determination is found to be
22    reasonable there, I don't know.    I am not passing judgment
23    on that.
24            But that's the kind of balancing that I think you
25    make, not the balancing on the implementation.                                              
                   105
 1            MR. ATTWATER:   Before we broke Ms. Leidigh read the
 2    list of things on the water quality plans that had to be
 3    considered and Mr. Walsh had some questions.     (d) under
 4    that section, which is 13241 of the water Code, talks about
 5    economic considerations.  You obviously have to take that
 6    into consideration when you determine  the
 7    reasonableness of what your water quality objectives are
 8    going to be and the one --
 9             MR. NOMELLINI:   I don't have any problem with that.
10            MR. ATTWATER:   Well, let me finish, and then the one
11    before that,  (c) under that section says water quality
12    conditions that could reasonably be achieved through the
13    coordinated control of all factors which affect quality in
14    the area, so somehow the Board has got to look at all the
15    factors; is it natural flow, is it return flow, is it this,
16    is it that, so I don't know how you don't do some kind of
17    balancing, whether you call it balancing or whatever you
18    call it, in order to reach what is a reasonable water
19    quality objective.
20            MR. NOMELLINI:   Well, I do, I think, and I think you
21    look at, putting aside now the question of implementation,
22    is such as to whether or not a water right holder should
23    pick up so much of the burden and dischargers another part,
24    and project builder is another part of how you solve the
25    problem.   I think you can look and see, when you look at                                
                                  106 
 1    the water system whether or not it is feasible in terms of 
 2    the water that's available to work out a physical plan that 
 3    could meet a future need, you know, of an improved water 
 4    quality condition. 
 5            I think you could take a general look at that 
 6    without determining water rights issues, without 
 7    determining who has the responsibility of putting forth 
 8    that water and who has the burden of paying. 
 9             MS. RUIZ:   I agree with you that we don't have to 
10    designate that party X is going to be responsible for 
11    one-tenth of one percent of the water flows that are going 
12    to go down into the Estuary in order to meet the standards. 
13    That's true.   But you are in accord with Mr. Attwater's 
14    statement that in fact we have to evaluate how much water 
15    is flowing, we have to look at other implementation tools, 
16    other agreements -- 
17            MR. NOMELLINI:   No, I don't agree on the 
18    implementation phase and the use of the term balancing.     I 
19    would not even use the term balancing at this point.     I 
20    would stick with the word "reasonable." 
21            MS. RUIZ:   what test would you give us to establish 
22    reasonable if you don't balance? 
23            MR. NOMELLINI:   I think really the way it works in 
24   the  other  way  is  we  cnallenge  you  on  your  planning  function 
25   to see whether or not you have abused your discretion.  In                                
                                   107 
 1    other words, did you use a reasons approach.    Do you have 
 2    good reasons for your decision making, and I think those 
 3    involve factual determinations as to the availability of 
 4   water; economics, I think you can look at.    I think it is a 
 5    much broader brush than what you are trying to do with it 
 6    in terms of implementation. 
 7            MR. WALSH:  Under your tack, when would the 
 8    balancing occur? 
 9             MR. NOMELLINI:   I think the balancing occurs when 
10      we get into the water rights we are definitely going to do 
11    some of it there. 
12            MR. WALSH:   You are accepting the charge of 
13    balancing, you and others? 
14             MR.  NOMELLINI:  We think the law is clear in terms 
15    of the priority of the Delta.    I mean you are going to face 
16    the balancing argument there to the extent the Legislature 
17    has not already determined the issue.    So you are going to 
18    do your allocation there and then the courts clearly said 
19    you may not put all the burden on water rights to achieve 
20    the objectives in the plan.  And there is disagreement, I 
21   guess, and maybe it isn't clear as to whether or not you 
22   have to have a plan that is completely achievable based on 
23   water rights in discharge controls. 
24            I could conceive of a plan that we could work at as 
25    a society over the years, but still the objectives that are                                    
                             108
 1    necessary to protect those beneficial uses, I think, have
 2    to be defined in the abstract of all those other balancing
 3    compromises, so that's the guide that people look at and I
 4    view it as a goal.
 5            Now maybe if you have to meet that goal every time
 6    you have a discharge, you know maybe the impact is totally
 7    different and there may be a need for clarification in that
 8    area, but that's the way I view it.  I think unless the
 9     legal decisions are wrong -- I am going to get a copy of
10    the transcript today and when we finally get back in court,
11    that same legal issue will be there and I would bring this
12    transcript in and say, hey, you know, that's what these
13    guys did.  They didn't want to set water quality objectives
14    because they worried about how it was going to affect the
15    implementation and water rights of Mr. Littleworth over
16    here, and it is going to look exactly the same way.
17            MS. RUIZ:   If you can discern that from this
18    transcript, good luck.
19            I am concerned though that what I hear is not
20    dissimilar from discussions we have had internally where
21    you don't want to use the word "balancing" but there is a
22    process going on that you feel more comfortable with than
23    what effort you envision to be the balancing in the water
24    rights phase, and the more clearly I think that, at least
25    as I understand what that process is as you have outlined                                
                                 109
 1    it, I think that's important to this discussion.
 2            MR. NOMELLINI:   I think you have to put blinders on
 3    as to implementation.  That's what I think.    Forget about
 4    water rights, forget about discharge standards, forget
 5    about facilities, and focus on the beneficial uses and the
 6    needs of those beneficial uses, and make reasonable
 7    decisions as to those needs by setting objectives to
 8    protect those beneficial uses.
 9             Then you take those blinders off in a different
10    phase and then you say, how are we going to implement this.
11    If you later learn that it is totally impossible to
12    implement them, you may have to rethink your previous
13    decision, but I don.t think you can set those objectives
14    struggling in the manner that you are with what you are
15    going to do on implementation.
16            MR. ATTWATER:   I'm not sure the Board is really
17    struggling with what they are going to do on
18    implementation.
19              MR.  NOMELLINI :    That' s  my  subjective  view  of  what
20      they  are  trying  to  do.
21            MR. WALSH:   I think struggle is a pretty good term.
22            MR. ATTWATER:   There's five considerations that the
23    Board has to make when they determine       what an objective
24    is, and economics is one of them, and that doesn't mean
25    economics is 20 percent of.the balancing that you would do,                             
                                    110
 1    but there are certain things that you have to look at
 2    whether you want to call it balancing or something else,
 3    and in your own mind you go through a thought process.
 4    Nobody is talking about the need for developing housing
 5    within the region.   That was added about ten years ago to
 6    the code.  In fact, in 1979 when housing during the Brown
 7    administration became a big issue -- nobody has talked
 8    about that, housing, you know.    Is that important?
 9             MR. NOMELLINI:   What about lack of housing?
10            MR. ATTWATER:   Lack of housing, sure.
11            MR. NOMELLINI:   Efficiency in power use, pumping
12    water over the Tehachapis.    I don't think if you took --
13    forget the Delta.   Let's look at another basin, look at the
14    beneficial uses in the basin, and set some objectives to
15    protect those beneficial uses, then you can begin to
16    evaluate all the rest of it.    Otherwise, I am happy with
17    the proces because I will get trifocals and the rest of my
18    hair will fall out and we will still be debating the same
19    issue.
20            Anyway, thank you.
21            MR. MAUGHAN:  Thank you.
22            Yes, sir.
23            MR. KUNEY:   For the record, my name is Kenneth
24    Kuney, co-counsel with Mr. Somach in the representation of
25    the Central Valley Project Water Association.     My address                             
                                    111
 1    is 145 North M Street, Tulare.
 2           My friend Dante has left me confused again.     I
 3    thought for a moment I might be in the embarrassing
 4    position of agreeing, but then as you went on, I found out,
 5    no, I don't.
 6            This is really in furtherance of what Stuart said
 7    earlier and our concept of the use of the word "reasonable"
 8    and where it comes into play and when it comes into what we
 9     are talking about now, the setting of objectives.
10            I would agree that the first thing we have to do is
11    look at the needs and look at reasonableness with respect
12    to the needs.   That's first.
13           When it comes to then, the objectives, it seems to
14    us that if we talk about reasonable objectives to meet
15    those needs, that implicit in reasonable is that balancing
16    process, and I think that's clear from the Racinelli
17    decision, I think it is clear from Porter-Cologne, that we
18    are to look at all of the competing reasonable needs that
19    there are for that same acre-foot of water.     And that's
20    what you have to balance.
21            I would agree, I think, that in that process
22    implementation does have to get involved, and water rights
23    per se do not have to get involved, but other reasonable
24    needs do have to be involved in all of the areas.
25            MR. WALSH:   In that process would some "reasonable                           
                                      112
 1    needs" drop out?  Is there a likelihood that such could
 2    occur?  I am trying to follow your logic here.
 3            MR. KUNEY:   I suppose if it was a reasonable need,
 4    Mr. walsh, it would never have a zero value; would it?  It
 5    would always have some value.  But I think Racinelli told
 6    you pretty clearly that we are to look at all of the
 7    reasonable needs in Delta, out of Delta, and balance those
 8    competing needs as it were in arriving at what is a
 9     reasonable objective to meet the reasonable needs in the
10    Delta.
11            I think the balancing is inherent in the use of the
12    word "reasonable" with respect to objectives in that sense.
13    I don't marry it to water rights, I don't marry it to
14    implementation, but think not in terms of water rights, but
15    think in terms of reasonable water uses.
16            MR. WALSH:  Under that scenario    though isn't it
17    likely that one or several of those needs would lose prior
18    to the time that you decide whether or not there might be
19    some other options in which, the ideal, none of the needs
20    would have to lose?
21            MR. KUNEY:   what you are saying in effect is that
22    when you got to implementation you could increase your
23    objectives; is that right?  You would raise your
24    objectives. But I don't think implementation has to get
25    involved in this process, but I don't think that you can                                      
                           113
 1    look at reasonable needs for agriculture in the Delta and
 2    divorce that from the competing reasonable needs elsewhere,
 3    and what is a reasonable objective depends on a thorough
 4    viewing and consideration of the other competing needs.
 5            We think that balancing very definitely comes into
 6    play necessarily in the objective setting process and of
 7    course it's going to come into play as Mr. Nomellini
 8    suggests very definitely again when we start looking at
 9     implementation and certainly when we start looking at water
10    rights.
11            MR. MAUGHAN:   Let me explore this a little further,
12    Ken.  Let's assume reasonableness of needs of 50,000 acres
13    of Delta agriculture end up with a certain amount of good
14    protection from salinity control and more flow for this
15    50,000 acres against a million people.    Let's assume there
16    is still 50,000 acres of Delta agriculture and there's ten
17    million people that now have to be served.
18            Does that change that ratio somewhat?     I mean those
19    are the needs that are established.    There are ten million
20    people there, would you then balance or would the
21    reasonable protection for agriculture be different for ten
22    million than one million?
23            MR. KUNEY:   I think that would be an element.    I
24    think you would look at a need, number one, and maybe when
25    you start on an objective, maybe you start at the ideal and                               
                                  114
 1    work your way down, down to a level of satisfaction that is
 2    reasonable in light of the other competing needs.
 3            And I think you look at economic considerations, as
 4    Mr. Attwater said, all of the other considerations that
 5    Porter-Cologne has told you to look at.
 6            MR. MAUGHAN:   So under one factor they might protect
 7    a very salt sensitive crop and on the other with a higher
 8    number of people they may only be able to protect crops
 9     that are less sensitive to salt?
10            MR. KUNEY:   It may be in consideration of all the
11    competing uses, that it would be unreasonable to try to
12    protect the planting of a very salt sensitive crop. that's
13    right.
14            MR. MAUGHAN:   I am just trying to see if I
15    understand you.
16            MR. KUNEY:   I think that would be in the process,
17    yes.
18            MS. RUIZ:   How does your concept there deal with the
19    past practices of this Board which looks to the drinking
20    water standard established by Health Services and being
21    deferred to or incorporated in some part during the
22    revision without regard to any establishment of need?
23            MR. KUNEY:   Well, I think you have to view that
24    breakdown certainly between agricultural uses and the urban
25    uses and you are going to be under some constraints, I                                   
                              115
 1    think, with respect to the drinking water standards, yes.
 2           MS. RUIZ:   In your mind it is appropriate to allow
 3     say  levels  established  by  EPA  and  sister  State  agencies  to
 4    become determinative without having to go through the
 5    balancing process as we have described it?
 6            MR. KUNEY:   I don't know that I include EPA in that.
 7    EPA has got me thoroughly confused.    I wouldn't include EPA
 8    there, no.
 9            MR. ATTwATER:   Mr. Maughan, one point -- I went
10    through Racinelli and circled every time "balancing" or
11    "balance" was used and it seems that it comes up uniquely
12    either in the water rights area or in the discussion of
13    waste and unreasonable use.    I don't recall finding the
14    word "balance" or "balancing" used with a discussion of
15    water quality plans or basin plans.
16            However, there is a section in Racinelli which is on
17    page 179 of the California Reporter opinion that Barbara
18    Leidigh referred to and it says that in performing its dual
19    role, including development of water quality objectives,
20    which we are talking about right here, the Board is
21    directed to consider not only the availability of
22    unappropriated water but also all competing demands of
23    water in determining what is a reasonable level of water
24    quality protection.
25            So Mr. Kuney's recollection that all competing                                        
                           116
 1    demands have to be considered is at least reflected in this
 2    decision.
 3           MR. MAUGHAN:   So my little example, his answer would
 4    seem to fit?
 5            MR. ATTWATER:   Right.
 6            MR. KUNEY:   Thank you.
 7            MR. NOMELLINI:   May I address that because I think
 8    that's a key issue.
 9            If you follow his approach, you are going to end up
10      as the State grows balancing weighing all protection of
11    beneficial uses within the basin.    That's where that leads
12     you, and that's Why I don't think -- now you may make a13 .. policy decision --
14            MR. MAUGHAN:   That's only on needs.  That's not on
15    anything else.
16            MR. NOMELLINI:   I think that type of decision making
17    is related to implementation, not the setting of the needs
18    for the beneficial uses, and I think that's where the error
19    is.
20            Now I was going through the process of thinking what
21    happens if we have a need for fish, and let's make it real
22    easy, let's look at just in the Delta itself, the need for
23    fish that precludes the use of water for setting another
24    for agriculture.   The two are inconsistent in some fashion
25    or maybe vice versa.   That internal balancing I think, and                                
                                 117
 1    we are going to use the term "balance" although I don't
 2    like to at this stage, I think that determination would be
 3    done within the viewing of the beneficial uses and the
 4    needs of those beneficial uses.
 5            I think you have to reconcile those objectives, but
 6    the way agriculture in the valley versus agriculture in the
 7    Delta, or urban uses outside the Delta versus urban uses in
 8    the Delta, I think that all goes to the water rights
 9     implementation.
10            MR. MAUGHAN:   Let me approach it from another angle.
11    Once set, you don't feel objectives should ever change?
12            MR. NOMELLINI:   Pardon me?
13            MR. MAUGHAN:   Once objectives are set on the basis
14    of relative needs or reasonableness of needs, they will
15    never change?
16            MR. NOMELLINI:   I think only if you find that all
17    reasonable mechanisms for implementation, you know, show
18    them to be unreasonabale.    I don't think you do it to begin
19    with.  Otherwise, you would never have a non-degradation
20    policy.
21            I think it is clear that the intent of the law was
22    to protect the good quality of waters that we have and
23    enhance those waters which are degraded, all subject to
24    reasonableness.   I think it is a clear policy.
25            MR. MAUGHAN:  We appreciate your views.     This is a                         
                                        118
 1    very key area, I agree with you.
 2            Anyone else want to comment?  Mr. Masuda.
 3            MR. MASUDA:   Roger Masuda.   I am co-counsel with
 4    William Baber for the Delta Tributary Agencies Committee.
 5            I would like to sort  of change the subject for just
 6    a little bit and talk about temperature as a water quality
 7    objective.   The solution to the protection of the salmon,
 8    as we are finding, is a systemwide approach to increasing
 9      total  salmon  production.       If  you  set  a  water  quality
10     standard  just  based  on  temperature,  I  think  it  is  going  to
11    possibly result in misleading and could result in an
12    unreasonable level of protection for salmon.
13            The reason I say that is because the primary factor
14    influencing temperature is flow.    If you recall in the Fish
15    and wildlife Service's Exhibit 31, their regression model,
16    they used flow as an index parameter, they call it, for
17    both flow, temperature and diversion, and Dr. Kjelson has
18    even admitted that if you use temperature as a water
19    quality objective, you can in some instances have higher
20    flows than are currently proposed in the Draft Plan.     The
21    reason temperature is coming before you now, as I
22    understand it, is as a result of the Fish and Wildlife
23    Service's smolt survival studies on the Sacramento River
24    that came after the closing of the Phase I hearing.
25            I think the Board staff and the Board needs to                                        
                         119
 1    closely scrutinize those studies to see whether they are
 2    technically valid.
 3            One point that our fishery biologist pointed out was
 4    that the conclusion that temperature is important for the
 5    Sacramento River is because they caught less smolts that
 6    were released in June than they did in April.     One of the
 7    reasons could possibly be that in the two months'
 8    difference the smolts got larger and the larger smolts were
 9     able to avoid the nets used in the sampling process.
10            Another interesting philosophical thing is that the
11    fishery agencies aren't using wild smolts, they are using
12    hatchery smolts, and we get the impression from the
13    hearings that somehow hatchery smolts are less genetically
14    favorable than wild smolts.
15            Also, I think you need to look and not conclude that
16    the Sacramento basin salmon are the same as San Joaquin
17    basin salmon.  I think that was one of the things in the
18    Phase I hearing that the fish agencies say, well, this is
19    what works in the Sacramento system, therefore we should
20    translate it and use it for the San Joaquin system.
21            As the Turlock and Modesto multiple regression
22    analysis showed during Phase I, temperature was not a
23    significant factor in and of itself for the San Joaquin
24    basin and this can be explained probably because the San
25    Joaquin salmon out-migrate earlier than the Sacramento                                  
                               120
 1    salmon and also there seems to be indication that San
 2    Joaquin smolts have genetically adapted to the higher
 3    temperature that they experience in the San Joaquin.
 4            MR. MAUGHAN:   If you eliminate flow and temperature
 5    what kind of objectives would you be able to set for the
 6    salmon to protect that beneficial use in a water quality
 7    plan?
 8            MR. MASUDA:   I think D-TAC is a little different
 9     from some of the other water users.
10            We realize that as a practical matter you need to
11    discuss flow and that whether you get to it in a roundabout
12      way  or  whether  you  eventually  discuss  flow,  I  think  you
13      wou.ld  rather  have  it  up  front.
14            If you are going to discuss temperature in Phase II
15    you need to discuss flow in Phase II because they are not
16    separable.
17            MR. MAUGHAN:   But you don't know of any other way of
18    establishing an objective for salmon protection other than
19    flow or something -- in other words, if you look at
20    hatchery catch and all that, none of that seems to reduce
21    itself into some sort of objective.
22    MR.  MASUDA:     That ' s  a  problem  that  Mr.  Littleworth
23    alluded to at the beginning, that the big problem, big
24    question that those     who dwell on salmon issues have.
25    The way you increase the total salmon production is that                                  
                                121
 1    you look at the salmon situation systemwide.     you look
 2    upstream.   You look in the Delta.    You even look out in the
 3    ocean for harvest, which has had probably the most
 4    significant influecne on the current levels of salmon in
 5    the basin.
 6            And how do you fit that analysis and all the issues
 7    related to those management decisions to a water quality
 8    objective that fits with a Porter-Cologne Act dealing with
 9     characteristics of water?
10            MS. RUIZ:   And if you do that, what do you read in
11    as being implications of water characteristics or water
12    planning in the context of say addressing the Endangered
13    Species Act?  Do you have obligations consistent with that?
14            MR. MASUDA:   Well, whether or not you have that,
15    endangered species issue at least has not come in the
16    fisheries context which at least for the Draft Plan was
17    really the central moving force in the Draft Plan.  You
18    might have endangered species issues, they may relate to
19    waterfowl of salamanders or something, but as far as the
20    central fisheries issue, that was not raised.
21    we  understand  the  winter  salmon  run  question  on  the
22    Sacramento, but that has not at least surfaced as a part of
23    the plan.
24            MR. MAUGHAN:   Any other comments or questions
25    there?                                                                  122
 1            Thank you.
 2            Anyone else on this particular part of the subject?
 3            Barbara, you can go on.
 4            MS. RUIZ:   Before you move on, there is one point I
 5    would ask people to consider as they address basin planning
 6    and specifically standards for objective setting and those
 7    would be the influence of federal administrative guidance
 8    documents such as EPA's technical support document for
 9     water quality based toxics control, the water Quality
10    Standards Handbook, and the "The Gold Book" water quality
11    criteria, as well as waste load allocation manuals which
12    are promulgated by EPA.
13             The implication back to our planning process is
14    something that I think we all better understand as we go
15    forward.
16            MR. SANGER:   Mr. Maughan, John Sanger, law firm of
17    Pettit and Martin, 101 California Street, 35th Floor, San
18    Francisco, California.
19            We represent the Bay Institute in these proceedings
20    or in the former proceedings.
21            If I may, I would like to take advantage of Ms.
22    Ruiz's earlier indication that one of the functions of this
23    workshop was for us to ask questions of the Board.  Mr.
24    Krautkramer has already expressed the reservations of some
25    of us regarding the fundamental purpose of what's the                                     
                            123
 1    purpose of this workshop.
 2            I am going to assume the purpose of the workshop is
 3    to ask or answer questions either way.
 4           The question I have is that now after, I believe
 5    about two years of operating under a work plan that
 6    describes water quality objectives as including flow
 7    levels, what the basis of the Board's determination
 8    reported from its January 19 meeting directing the staff to
 9     exclude flow objectives from the preparation of the water
10    quality plan is.
11            MR. MAUGHAN:   Mr. Attwater, do you want to take a
12    first stab at that or are you the wrong person?
13            MR. ATTWATER:  The Board made a polcy decision that
14    they were going to stay that issue until Phase III.
15            MR. MAUGHAN:   None of the legal people feel it fits
16    with the Racinelli decision.
17            MR. ATTWATER:   Well, it really wasn't discussed in
18    the Racinelli decision in that context.     I've had extensive
19    discussions with people about whether or not the
20    definition, for example of water quality in the
21    Porter-Cologne Act includes flow.
22            Let me give you an example:    Quality of water or
23    qualities of waters refers to chemical, physical,
24    biological, bacteriological, radiological and other
25    properties.                                                                      124
 1           Some people have argued that physical actually means
 2    flow, but if you go back and look at the legislative
 3    history and talk to the people who have implemented this
 4    act over the last 20 years, I think it is fairly clear that
 5    physical means turbidity, temperature and color as opposed
 6    to chemical properties.   And so --
 7            MS. RUIZ:   Assuming that flows would be included,
 8    wouldn't that put the Regional Boards in a position of
 9     having to make a flow determination within their basin plan
10    and what authority would they have given their particular
11    inability to deal with water rights?
12            MR. ATTWATER:   They could make a recommendation to
13     another  agenc which  under  the  law  would  be  us
14    presumably.
15            MS. RUIZ:   What happens to the validity of your plan
16    if the other agency chooses not to in light of our approval
17    or disapproval of their basin plan?
18            MR. ATTWATER:  Well, that's always been the problem
19    I have had with making recommendations to Fish and Game or
20    U. S. Bureau of Reclamation, Department of Water Resources,
21    without having some handle on them like a water rights
22    permit.
23            MR. MAUGHAN:   Mr. Sanger.
24            MR. SANGER:   There is also a definition of water
25    quality objectives which states water objectives meet the                                  
                               125
 1    limits or levels of water quality constituents or
 2    characteristics which are established for the reasonable
 3    protection of beneficial uses or the prevention of
 4    nuisance.  Although you could read that to include flow, it
 5    seems to indicate we are talking about things like
 6    temperature, turbidity and various contaminants.
 7            In answer to your question, water quality objectives
 8    may be set either in a water quality control plan or if
 9     water quality control plans are not specific enough on a
10    case by case basis, in waste discharge requirements.     I
11    think you are correct if your insinuation was if the State
12    Board can set flow objectives in a basin plan, can't a
13    Regional Board set flow objectives in either a plan or in
14    basin discharge requirements?  I would think that they
15    could if you take that position.
16            MR. MAUGHAN:   Let me just add, Mr. Sawyer, and this
17    is just my own recollection, that in the earlier decision,
18    Decision 1485 and the Water Quality Control Plan that
19    accompanied it, and I sat on the Board at the time, the
20    decision of the Board supported by the staff was that they
21    had to be totally consistent with one another and so flow
22    became an integral part of 1485 and also became part of the
23    Water Quality Control Plan because they were made to be
24    totally consistent with one another.
25            As I reflected on the Racinelli decision, he seemed                                  
                               126
 1    to feel that there should be some separation there and so I
 2    am just throwing out the fact that there are some
 3    differences between what we are doing now and what was done
 4    by that previous Board as it relates to flow.
 5            MR. SANGER:   Mr. Chairman, I wasn't referring to
 6    anything done by the previous Board.    I was referring to
 7    the unchallenged presumption that has gone on for the last
 8    two and a half years in these proceedings regarding the
 9     constituents of water that were to be considered for
10    purposes of establishing water quality objectives.
11            I am still waiting for the answer to my question.     I
12    heard the statement that it is believed that the Board may,
13    and even the Regional Boards may, and I would argue the
14    Regional Boards have in fact incorporated flow objectives
15    into regional basin plans contrary to what was stated
16    before, but I did not hear the answer as to the basis for
17    the Board's directive to the staff that flow objectives not
18    be included in the water quality plan.
19            Is there an answer from the Board?  Is it supposed
20    to be on legal counsel advice that it would be
21    inappropriate, or is it within the discretion of the Board
22    on the basis of its counsel's advice?
23           MR. ATTWATER:   well, it is undoubtedly within the
24    discretion of the Board to change flow from Phase I to
25    Phase III, and they have made a decision to do so.                                         
                         127
 1            MR. SANGER:   Your advice then, Mr. Attwater, has
 2    been --
 3            MR. ATTWATER:   I am not telling you what my advice
 4    was.   I am telling you what authority the Board has in that
 5    area.
 6            MR. SANGER:   I'm sorry, you are expressing your
 7    opinion that the Board has the discretion to decide that
 8    flow objectives need not be included in the Water Quality
 9     Control Plan?
10            MR. ATTWATER:   Need not be included in the Water
11    Quality Control Plan.
12            MR. SANGER:   Has the Board decided in a formal
13    fashion that it would be inappropriate for flow objectives
14    to be included in a Water Quality Control Plan?
15            MR.  MAUGHAN: What has been decided by the Board, at
16    least this Board Member, is we directred the staff to
17    prepare a work plan on that basis which is going to be made
18    available for comment before the Board then takes its final
19    action and either approves of modifies that revised work
20    plan.
21            And I can only repeat from my standpoint that my
22   views in terms of change came from the fact that earlier in
23   the first work plan two years ago, I was making too great a
24   parallel between that and what was done ten years ago, and
25   as I personally studied the Racinelli decision and so on, I                                  
                               128
 1    am not at all sure in this particular proceeding, reading
 2    Racinelli, that it is a wise policy decision to put flow in
 3    the Water Quality Control Plan.    It might be that it is
 4    better to put it in the third Phase and particularly that
 5    is the case because there are so many implementation
 6    factors concerning flow that it would have to take a long
 7    time to work out in terms of operation, physical capability
 8    and so on.
 9            And then finally, I will even point out that if you
10    had flow for the Rock Slough matter when they exceeded the
11    250 chlorides, there may have been a little different way
12    to handle that, too.   So there are differences all through
13    there that need to be explored in my mind.
14            MR. FINSTER:   I think the question he asked
15    specifically was answered by the action the Board took on
16    the 19th.   They made that decision, right or wrong.
17            MR. SANGER:   I was present, Mr. Finster.
18            MR. FINSTER:   You asked the question whether they
19    did or did not make that decision, and they did.
20           MR. MAUGHAN:   They made a direction.
21           MS. RUIZ:   Again more specifically for legal
22    purposes that I think you are attempting to address, the
23    Chair has made the statement, which is very consistent, it
24    was a Board direction absent any objection to prepare a
25    work plan consistent with that conclusion which would be                                 
                                129
 1    adopted later by this Board subject to public comment.
 2            The Board's action will take place at the time of
 3    adoption of that work plan.    So there are a number of
 4    arenas in which you will be addressing your concerns
 5    whether or not we should include or exclude flows as we
 6    develop that work plan.
 7            MR. SANGER:   That is obvious, Ms. Ruiz.    The
 8    question was what the considerations were that would lead
 9     the Board to revise the prior work plan after this length
10    of time to delete one of the constituents of water from the
11    water quality plan.
12            MS. RUIZ:   Again, we would welcome your legal
13    argument as to why we are without authority to do so.
14            MR. SANGER:   I think any legal argument would be
15    simply the quotation read by Ms. Leidigh at the beginning
16    of this matter from the code.
17            MR. MAUGHAN:   Anyone else on this subject?
18            The next subject then -- wait a minute.
19            MR. THOMAS:   Gregory Thomas.  Maybe I can follow on
20    Mr. Sanger's point just briefly.
21            I am Gregory Thomas for the Sierra Club Legal
22    Defense Fund, and I have I guess a question to the Board on
23    its view on how Phase III will relate to Phases I and II at
24    this point.   I take it it is clear that what we are trying
25    to do here is protect beneficial uses of many different                                      
                           130
 1    kinds including what we have come to call the public trust
 2    uses, which includes a variety of environmental assets that
 3    are involved in the living system  which is the Estuary.
 4            A disquieting feature of a decision to exclude flows
 5    in favor of other kinds of water quality parameters such as
 6    temperature and salinity measures, EC, is that it is not
 7    clear that those quality standards will sufficiently
 8    address some of the key biological resources.
 9             If you recall the testimony in Phase I, you recall
10    there was a great deal of discussion about proper
11    positioning of the entrapment zone, for instance, in order
12    to produce the conditions that set up the food chain and
13    the Estuary habitat, and I take it there's no question
14    that's a beneficial use, or the setting up of the mixing
15    conditions in the Gulf of the Farallones to support the sea
16    life there, and the bird life there, and very likely also
17    some features of the way in which the fishery operates, are
18    addressed perhaps best and perhaps only by consideration of
19    flows.
20            So the question is if the Board proceeds in this
21    fashion and deletes flow standards from Phases I and II,
22    hasn't it in effect finalized a Water Quality Control Plan
23    that sets a set of objectives that will make it impossible
24    in Phase III to revisit this flow question?
25            I guess to put it another way, am I correct in                                          
                       131
 1    assuming that in Phase III the only kind of implementation
 2    measures that will be on the table for discussion are those
 3    that will accomplish the salinity and temperature standards
 4    finalized in Phase II?  If so, isn't that a fundamental
 5    problem in the way you are choosing to approach this
 6    problem?
 7            MR. WALSH:   My understanding is that some of the
 8    flow issues will in fact be part of the. latter stages of
 9     Phase II.   We start to discuss through the workshops
10    various alternatives and I am addressing this to Walt
11    Pettit to try to help me refresh my memory, or whether
12    there are going to be exclusively --
13            MR. PETTIT:   I guess we have had some discussion as
14    to nomenclature about where Phase II ends and Phase III
15    picks up and we have talked about Phase III, A, B and so
16    on.  I think in my mind anyhow the workshops, or the
17    hearings that you intended to hold, and I think this is
18    what you are referring to, specifically address physical
19    facilities, negotiated agreements, and so on which are
20    intended to follow Phase II or follow the adoption of a
21    water quality control plan, so my perception at least is
22    that you would have to have a water quality control plan in
23    place, adopted objectives in whatever degree of plan of
24    implementation it takes to achieve those objectives in the
25    water quality control plan sense  all in place before you                                    
                             132
 1    got into these further hearings that would consider all the
 2    options you might have for implementation details, and I
 3    think maybe one thing that hasn't been talked about too
 4    much here, and maybe we have talked around it, is the
 5    degree of specificity in that plan of implementation, and
 6    one of the things we have perceived is that if we look at
 7    just temperature and salinity in the plan, that the
 8    implementation mechanisms are going to be quite a bit
 9     narrower and possibly easier to describe than they would be
10    in the original plan that envisioned flow.
11           I don't know if that answers your question or not,
12    Mr. Walsh, but I guess the short answer is I envision those
13    specific hearings on the other, I think we call them topic
14    hearings, to follow Phase II.
15            MR. WALSH:   It gets me closer.
16            MR. THOMAS:   I am not sure that entirely answers my
17    concern.
18            MR. ATTWATER:   Mr. Maughan, could I take a crack at
19    it?
20            MR. MAUGHAN:   Yes, go ahead.
21            MR. ATTWATER:   Two things I want to talk about:
22            First of all, when you talk about flow, you are
23    necessarily talking about allocation, I think.     There's a
24    provision in the act that once the basin plans are approved
25    by the Board, they will have to go to EPA for further                                        
                         133
 1    approval.   There's a provision in the federal Clean Water
 2    Act, Section lOlg, and I am not really sure of the
 3    operative effect, total operative effect of that section,
 4    but it states that it is the policy of Congress to leave
 5    allocation of water resources to the states, and it seems
 6    to me that if you are sending a water quality plan to EPA
 7    for approval and it is involves flow, then you are getting
 8    the Federal Government into water allocation and that's the
 9     opposite to what the direction of congress is in the
10    implementation of the federal Clean Water Act.
11            Secondly, Mr. Thomas seems to be under a
12    misapprehension that when we get to Phase III we are only
13    going to be talking about the implementation of the water
14    quality plan that comes out of Phase I and Phase II, and
15    that's just not accurate.
16           The 'Board has full  latitude in Phase III to start
17    talking about public trust values and how they are going to
18    protect those values, what flows are needed and a myriad of
19    other things that Mr. Walsh has, I know, talked about both
20    on the 19th and since, legislation, physical facilities,
21    agreements and all the rest of it.
22            So it seems to me the Board would be discussing not
23    only the plan, implementing the plan through possibly the
24    water rights process, but other things also like flow.
25            MR. WALSH:   And the subjects of those workshops are                          
                                       134
 1    outlined in the flow chart.
 2            MR. ATTwATER:   They are in the flow chart now, but
 3    nobody has seen the work plan yet.    But maybe the work plan
 4    will give a little more comfort to Mr. Thomas.
 5            MS. RUIZ:  In addressing the flow questions
 6    specifically and the language that Mr. Attwater was talking
 7    to you about in the Clean Water Act, Section lOlg, I think
 8    it is critical to your question.
 9             It is the policy of Congress that the authority of
10    each state to allocate qualities of water within its
11    jurisdiction shall not be superseded and abrogated or
12    otherwise impaired by this act, and to the degree the State
13    feels that flows get involved in that exercise, I think we
14    are trying to comply fully with the spirit and intent of
15    the Clean Water Act to avoid this very complication.
16            MR. THOMAS:  If I may be permitted one comment on
17    that, and then a further question, I think the concern that
18    you point to there is satisfied if EPA's role is restricted
19    to approving a mix of water quality compliance strategies that
20   are formulated      and adopted by the State which may
21    include flow as opposed to casting EPA in the role of
22    mandating a flow regime.    I at least suggest that to you.
23            MR. ATTWATER:   But the problem with that is that EPA
24    under the federal Clean water Act, is that if they don't
25    like what we do, they can send it back and keep sending it                               
                                 135
 1    back and eventually just take the program back and do it
 2    themselves.
 3           MR. THOMAS:  I believe they could send it back
 4    telling you they don't think your mix of strategies will do
 5     it, which will cause you to revisit both the flow and the
 6     other set of strategies, but quite frankly, EPA's role in
 7     this, I certainly don't think can we read as precluding you
 8     from including any flow strategies in your mix.
 9             MR. ATTWATER:   If EPA took the program back, do you
10    think EPA would have the ability under its Clean Water Act
11    to allocate flow in excess of temperature and salinity
12    standards?
13            MR. THOMAS:   If they took over administration of the
14    program?
15            MR. ATTWATER:   Say if California bows out of
16    implementing the Clean Water Act, do you think EPA would
17    have the authority to set flow standards?
18            MR. THOMAS:   I don't know that I can really -- I
19    don't have that kind of detailed response to your issue at
20    this point, but it sure doesn't sound to me like it is a
21    show stopper.   I can't think that your whole rationale.rests
22    on that.   It's a pretty flimsy reed.
23            But let me just be more Pointed in my question about
24    how flows in Phase III relate back to your burden in Phases
25    I and II.  I appreciate that flow standards, prescribing                                       
                          135
 1    back and eventually just take the program back and do it
 2    themselves.
 3            MR. THOMAS:   I believe they could send it back
 4    telling you they don't think your mix of strategies will do
 5    it, which will cause you to revisit both the flow and the
 6    other set of strategies, but quite frankly, EPA's role in
 7    this, I certainly don't think can be read as precluding you
 8    from including any flow strategies in your mix.
 9             MR. ATTWATER:   If EPA took the program back, do you
10    think EPA would have the ability under its Clean Water Act
11    to allocate flow in excess of temperature and salinity
12    standards?
13            MR. THOMAS:   If they took over administration of the
14    program?
15            MR. ATTWATER:   Say if California bows out of
16    implementing the Clean Water Act, do you think EPA would
17    have the authority to set flow standards?
18            MR. THOMAS:   I don't know that I can really -- I
19    don't have that kind of detailed response to your issue at
20    this point, but it sure doesn't sound to me like it is a
21    show stopper.   I can't think that your whole rationale rests
22    on that.   It's a pretty flimsy reed.
23            But let me just be more pointed in my question about
24    how flows in Phase III relate back to your burden in Phases
25    I and II.   I appreciate that flow standards, prescribing                                      
                           136
 1    flows of some sort, may be an implementation strategy for
 2    accomplishing temperature and salinity objectives.     I
 3    understand that, and to that extent Phase III will have
 4    something to do with flows, but my question is quite apart
 5    from temperature and salinity objectives, intermediate
 6    objectives, will flow have a place to address those kinds
 7    of beneficial uses which are either only or best protected
 8    through flows, or will that be included under this strategy
 9     that you are adopting?
10            MR. ATTWATER:   No, we just tried to answer that
11    question.   The answer is yes to that question.    It is just
12    a question of timing, when the Board considers it.     It will
13    consider it in Phase III rather than Phase I.
14            MR. THOMAS:   Well, we will have further opportunity
15    to comment on this mix of issues before you adopt your
16    strategy.  But if that is true, then I have to wonder what
17    the utility is of excluding flow considerations for all
18    purposes at this point after, you know, weeks and weeks of
19    hearings on questions of flow and correlations with
20    protection of --
21            MR. ATTWATER:   But that information will be used in
22    Phase III.   It's not wasted.   It was always intended the
23    testimony in Phase I would be used in Phase II and Phase
24    III.
25            MR. THOMAS:  But again not to belabor this point, we                            
                                     137
 1    would want to get into it later.
 2            MR. ATTWATER:   I think you want the answer right now
 3    in terms of flow. What I am saying --
 4            MR. THOMAS:   I simply want to understand your
 5    rationale for excluding those in developing a final water
 6    quality control plan.    I mean if it gets in at a later
 7    stage anyway, it seems to m'e it would be advisable to have
 8    it on the table during Phase II so that, you know, it can
 9     be a subject of further discussion  and participation.
10            MR. WALSH:   Well, Mr. Thomas, to try to react to
11    this on more of a practical basis, and I mentioned this
12    earlier, on more of a practical level, we have been hearing
13    particularly from the environmental sector about how they
14    want this action to take place quick, that they want
15    standards set, that they want to move ahead with the
16    process.
17            My particular background tells me that I think there
18    are going to be more opportunities, hopefully we will be
19    successful with those, if in fact the flow related issues
20    are held to the end because just based on what's happened
21    in the past, I see this thing falling apart in a big way
22    the way it did the last time, and you won't get any interim
23    relief in the Delta for five to ten years if this thing
24    winds up back in court.
25            We may not be getting to a point where we resolve                                 
                                138
 1    all issues, but we may be far enough along in resolving
 2    these issues that maybe the whole thing doesn't go into
 3    court, but maybe only portions of it, and I just think
 4    that, you know, people would at least try to accept the
 5    fact that we are trying to strike the most productive path
 6    to travel short of        the inevitable issues having to
 7    come to light, i.e., the courts, which is what you all do
 8    best.   That's why we are here today; and hopefully
 9     something might come from this more staged approach with an
10    opportunity to hear from you folks on just what those areas
11    of interest would be. for your particular constituency in
12    terms of incorporating those into a plan with a time line
13    that hopefully all sectors might be able to buy off on for
14    the first time, because none of you have done a very good
15    job on your own, whether you are environmentalists, water
16    developers or agricultural people, in arguing or lobbying
17    for your own. particular projects.  That has been a
18    disastrous failure on all of your accounts.    I don't think
19    you do very good on your own and this might be the
20    facility, the vehicle here, to try to come to at least an
21    answer on.part of the problems.
22           MR. ATTWATER:  Mr. Maughan, could I say one other
23    thing?
24            MR. MAUGHAN:  Mr. Finster has a comment.
25            MR. FINSTER: I just want to say, sitting here and                                   
                               139 
 1    listening, I think everybody is going to say the same 
 2    thing, we are going to consider all the factors that were 
 3    considered in the original work plan.    The only thing is we 
 4    are proposing to move some out into Phase III, and I think 
 5    the problem as I see it, Phase III has been earmarked as 
 6    being the water rights portion of this particular plan. 
 7            I suggested that at one point in time we actually 
 8    had Phase III be nothing other than an implementation plan 
 9     which is what we are talking about.    All these other things 
10    relating to fisheries and things of this nature, and then 
11    have Phase IV be the water rights. 
12            Implementation may not be entirely water rights.     It  
13     may  be  implemented  by  physical  facilities,  maybe  by  any
14    kind of thing and Phase IV, which would be the water rights
15    portion of it would be strictly the part that's needed to
16    assist in accomplishing the implementation phase.     I
17    suggested at one point in time we actually have four
18    phases.
19            I haven't had much success in getting that
20    considered, but I think that the confusion I am hearing now
21    is the fact we have some of this stuff in Phase III
22    associated with the water rights portion; that maybe we
23    should separate it out and have two separate phases.
24           You talk about Phase A and Phase B, but it is still
25    tarnished with the fact that Phase III is water rights.     I                                   
                              140
 1    think Phase IV should be the water rights.     Let's make
 2    Phase III the implementation portion of it which would
 3    include all these other items such as the flow.
 4            MR. THOMAS:   I'll yield the microphone, but let me
 5    just say in doing it, my clients, more than perhaps any,
 6    are eager for an expeditious process here, but I have to
 7    say at this point not convinced that what you intend will
 8    do that.   Interjecting this issue again at the end in fact
 9     may do exactly the opposite, rather than allowing it to get
10    a part of the fuller participatory process; and secondly, I
11    think there is a real worry that some of the beneficial
12    uses that we seek to protect are going to be left behind if
13    you proceed in that fashion.
14            MR. MAUGHAN:   Mr. Attwater, and then Professor
15    Dunning.
16            MR. ATTWATER:   There is just one other thing, Mr.
17    Maughan.   Since flow is really intertwined with water
18    rights, the more you consider flow in the water quality
19    planning portion of your process, the closer you are to
20    going back and intertwining water rights with water quality
21    considerations and bumping up against that flawed process
22    that Justice Racinelli referred to.
23            MR. MAUGHAN:   Well, that's what I said little bit
24    ago.
25            MR. ATTWATER:  I don't want to get three or four                                  
                               141
 1    years down the trail and find out that we are overturned
 2    and we have done something again that the Court of Appeals
 3    told us not to do five years ago, and now we are here doing
 4    it again.   I mean, you run a risk if you get those ideas
 5    too close together.
 6            MR. MAUGHAN:   As I say, when I reflected recently on
 7    that, that concerned me.
 8            I did want to say before Professor Dunning comes,
 9     this is my own personal view and it relates to Mr. Thomas,
10    too, to set salinity standards or temperature standards,
11    you are going to have to consider flows. The only
12    difference is you are not going to actually set flow
13    objectives, but you have to have an array of what will
14    happen under certain flow sequences to set salinity
15    standards, so I don't think flow will be ignored.     It just
16    will not have objectives in my mind set in the second
17    phase, but they will be there for everyone to see.
18           Professor Dunning.
19           MR. DUNNING:   Let me just add something I neglected
20    this morning.   I am appearing on my own behalf, certainly
21    not in any sense on behalf of the university.
22           MR. MAUGHAN:   I thought so.
23           MR. DUNNING:   I thought that would be assumed, but
24    for the record I wanted to add that.
25            I had two quick comments in response to certain                                    
                             142
 1    comments made by the Chief Counsel.
 2            First of all, with regard to Section lOlg of the
 3    Clean water Act, that was the so-called Wallop amendment
 4    and that was added in 1977.    It was there to keep the
 5    federal government, especially EPA out of the State water
 6    rights business, with the long history we have had of the
 7    states basically setting the water rights in the west, and
 8    not having the federal government do it.
 9             There was some concern in Wyoming and other places
10    that some of the states might find that the line had been
11    crossed by federal water quality people.
12            Now it has no bearing at all if you are talking
13    about a state through its own processes, basing itself on
14    Porter-Cologne, its own water quality act, getting into
15    something that might be considered water rights.     So I
16    think that as far as an EPA review of your basin plan goes,
17    you are on very safe ground if you do decide eventually to
18    include flows.
19            MR. MAUGHAN:   But if we put it in there and EPA
20    said, we don't like your flow standards, and therefore we
21    are going to not approve them as it relates to their
22    authority under the Clean Water Act, what happens?  And
23    that isn't a far-fetched deal because fairly recently
24    Region 9 complained about the triennial review of 1485, or
25    the water Quality Control Plan related to 1485 basically on                               
                                  143
 1    flow.  It was not on the basis of anything else, and so
 2    there is some history there where once they are involved in
 3    the process, they are not going to back away from the
 4    allocation.
 5            MR. DUNNING:   I am not familiar with the substance
 6    of their complaint.    My understanding in general is states
 7    must meet the various minima set out in federal law.     Once
 8    that's been done, it's clear under the Clean water Act you
 9     can go further.   States can have more stringent quality
10    standards.
11            MS. RUIZ:   No question about that.    That which they
12    review they see as an open door for any opportunity to
13    engage in this discussion with flow, and that comes from
14    experience over the last five years and it is not just
15    California, it is national and the implications of that, as
16    you can appreciate, under our water rights structure, are
17    very serious.
18            There continues to be that concern that we need to
19    be able to excise that which is appropriately necessary for
20    the delegation and that which is supposed to take care of
21    California water needs, and I think the Board has found a
22    way to try to accommodate those interests.
23           MR. DUNNING:   Is there a case in these last five
24    years where they have cited lOlg?
25            MR. MAUGHAN:  Region 9 in the triennial review of                                
                                 144
 1    the Water Quality Control Plan related to 1485, said
 2    specifically that the State should not allow any more
 3    export unti1 the striped bass standards reached a certai n
 4    level.  In other words, they addressed the export limits as
 5    it related to meeting what they call striped bass standards
 6    and they specifically recommended or took the stance that
 7    we shouldn't approve it because of that.
 8            MR. DUNNING:  Isn't that EPA saying you shouldn't be
 9     doing these other things until you are satisfing the
10    minimum achievement necessary under federal law?
11            MR. MAUGHAN:   I didn't think so because the water
12    people took it the other way too.
13           MR. DUNNING:   This would be something quite
14    different, saying we are meeting the minimum of federal law
15    and under our State authority, Porter-Cologne, we have gone
16    further.
17            MR. MAUGHAN:   They didn't draw that line at all.
18            MS. RUIZ:  They never make that distinction.
19            MR. DUNNING:   Was lOlg cited in this instance.    I
20    have heard of.no case nationwide where that particular
21    amendment -- Bill, do you know of any case?
22            MR. ATTWATER:  I don't know of any offhand.
23            MR. DUNNING:   I do remember the legislative history
24    when it was done in '77, and your interpretation seems
25    inconsistent with what Congress was trying to do at that                                   
                               145
 1    time.  They were trying to keep EPA out of what they
 2    regarded as State business and you are a State agency.     You
 3    can go into State business.
 4           MR. ATTWATER:   I think I asked the question before,
 5    if EPA does not have the authority to set flow standards to
 6    begin with, do they have authority to approve flow
 7    standards if they are in the State plan.     That's another
 8    way of looking at it .
 9             MR. DUNNING:   I think they do, not as a matter --
10            MR. ATTWATER:   You think they do even though they
11    couldn't do it in the first instance?  I think that's one
12    of the concerns this Board has.    Darlene talked about an
13    open door.   That's the open door, and then you have EPA
14    allocating the water rights for you.
15            MR. DUNNING:  There are instances where they have
16    done things comparable under the Clean Air Act.     I wouldn't
17    conclude based on simply looking at lOlg that you are
18    somehow going to be having some difficulty, particularly if
19    this other case is not a lOlg case.
20            MS. RUIZ:   Professor Dunning, I do work with EPA on
21    a regular basis and this is the topic of the discussion
22    naturally with EPA, and they would welcome the opportunity
23    to step into the California water right structure through
24    just that mechanism and have even talked about backsliding
25    and using that term with all its legal emphasis in trying                                     
                           146
 1    to engage in this Board's determinations concerning flow.
 2            So it isn't just a hypothetical, it's actually a
 3    topic of discussion and they would welcome that
 4    opportunity.
 5          Now of your argument is that perhaps they should do
 6    it, I would caution you to be very careful what you ask for
 7    because you just might get it.
 8            MR. DUNNING:   My impression is a lot of their
 9     concern in recent years has been groundwater quality.
10    Perhaps that's the area where you have worked with them.
11            MS. RUIZ:  I have worked with them in all their
12    programs, surface water, .groundwater, non-point source, all
13    of their issues and they are not shy in trying to assume some
14    of the roles of the states on some of these matters.
15           MR. DUNNING:   Is the objective stated to be an
16    objective of getting better water quality?
17            MS. RUIZ:   Who is to know true motivation of EPA?  I
18    don't pretend to know.
19            MR. DUNNING:   Because here the non-salinity related
20    flow standards or flow objectives to be put into the basin
21    plan would be to improve water quality.    That's the point
22    of it really.
23            MR. MAUGHAN:   To protect beneficial uses and may not
24    have anything to do with water quality.    I think there's
25    quite a distinction.                                                                  147
 1            MR. DUNNING:   It's a water quality control plan and
 2    we are identifying beneficial uses and setting water
 3    quality objectives.
 4            MR. MAUGHAN:   But there are ways of protecting
 5    beneficial uses other than through water quality and that's
 6    been discussed here today, and I think this is where you
 7    are going to have these leapfrog situations in which under
 8    the Clean water Act you protect the beneficial use without
 9     other means, other than water quality, water allocation and
10    maybe physical means.
11            MR. ATTWATER:   Take a look at Suisun Marsh, the
12    gates project in the marsh.    This is a good example where
13    you didn't just use flow, you used some kind of physical
14    device to regulate the in and out of water in the marsh.
15             MR. DUNNING:   I think I have expressed as much as I
16    can on that point.
17           The other comment I have, again a comment on
18    something Bill Attwater said, goes to the definition of
19    water quality, which is found in Porter-Cologne.     I don't
20    have that in front of me, but he did read it and what he
21    emphasized was that one of the words is "physical."  One of
22    the characteristics of water mentined there is physical and
23    he said he thought it was intended to deal with other
24    properties, not flow that we are talking about in this
25    instance.                                                                  148
 1            I agree with that, but that same definition had four
 2    or five different categories and then said "other" and I
 3    think it is the other that would certainly be available to
 4    justify inclusion of non-salinity related flow objectives
 5    if you wish to do so.
 6           Now under the Porter-Cologne Act, my reading is you
 7    have the discretion.   You can do it or not do it.    It's a
 8    policy choice, but it may be with the public trust doctrine
 9     you don't have the discretion    that you do have a duty in
10    the factually correct circumstances to go further, to
11    exercise that discretion.   There's lots of cases on the
12    books where agencies that had discretion find in a public
13    trust setting they are not free to refrain from exercising
14    the discretion in a protective manner. I think that's where
15    you may be running into potential problems.
16            MR. ATTWATER:   It's an argument, Mr. Maughan,
17    however, since the water rights process has been in vogue
18    in this State at least statutorily since 1914.    When the
19    Legislature adopted the Porter-Cologne in 1969, if they
20    thought of somehow duplicating that Process even in part to
21    the Porter-Cologne Act, I'm sure that something would have
22    been said other than just the word "other" at the tail end
23    of a definition of water quality.
24            In other words, to have water quality defined to
25    include water rights would be a sheer inconsistency in the                                
                                 149
 1    Water Code.
 2            MR. DUNNING:   I'm not suggesting that that
 3    definition would be used to swallow up the whole of the
 4    water rights law, which I know is your concern.  I am
 5    suggesting when you are at the point of intersection as you
 6    are in the Delta with the salinity problems, that the line
 7    is not that bright.
 8           What Racinelli said was don't be myopic with regard
 9     to what you can do under Porter-Cologne just because you
10    are always thinking water rights, and he did suggest
11    sequencing, although as I recall the exact language with
12    regard to your integrated proceeding in 1977 and 1978, he
13    said it probably was unwise.
14            MR. ATTWATER:  Was flawed.
15            MR. DUNNING:   And he was looking at it hostilely, but
16    actually didn't strike it down and you certainly have
17    sequencing now.
18            MR. ATTWATER:   I will take a line from Mr. Thomas,
19    it is a thin reed.
20            MR. DUNNING:   Beauty is in the eye of the beholder
21    and all of that.  Thank you.
22            MR. MAUGHAN:  Well, you know, that's why the Board
23    decided to put out a revised work plan, to allow both sides
24    or several sides to comment before we finalize that
25    particular aspect of it, because we did know there were                                    
                             150
 1    arguments on both sides.    I think the preponderance is on
 2    the side of leaving flow out, but we are willing to listen.
 3            Mr. Masuda, did you have something else before we go
 4    on to the next subject?
 5            MR. MASUDA:   I just had a comment.   When Mr. Thomas
 6    talked about public trust resources I have always wondered.
 7    In salmon you have the total production consisting of two
 8    components, one the escapement component which I call the
 9     future generation component, and the other is the harvest
10    component which I call fish egg or egg production.
11            I was wondering since the harvest component is 75
12    percent of the total production when you look at your water
13    quality objectives or do your balancing, are you
14    considering the fact that there's really no difference
15    between fish egg and upstream egg or export egg as part of
16    the balancing process?
17            MR. wALSH:   Could you expand on that a little more
18    for me?
19            MR. MASUDA:   Well, if you look at total production
20    of salmon, there's two components, the escapement portion,
21    which is defined as those salmon that escape the harvest.
22    Okay.
23            MR. MAUGHAN:   If I remember the figure, it is
24    something like less than one percent or even less than
25    one-one hundredths of a percent of the number of eggs that                             
                                    151
 1    are hatched.   It.s a very very small percentage.
 2            MR. MASUDA:   Then of the ones that are hatched that
 3    go out and 75 percent of that is caught, and so what we
 4    see, I think in Phase I --
 5           MR. WALSH:  You mean, put real bluntly, do we factor
 6    in the commercial and sport catch?
 7           MR. MASUDA:   Right. There is one other thing.    In
 8    Phase I everybody seemed to talk about salmon as a public
 9     trust resource and tended to seem to gloss over or ignore
10    the fact that really salmon is a commercial industry and a
11    valuable commercial industry for California, but when you
12    talk about salmon as a public trust resource, I think
13    people in general think of that as an escapement and means
14    of increasing the escapement, not necessarily a means to
15    increase the harvest because I got a good article written
16    by two Washington State fishery biologists that talk about
17    over fishing as being the primary cause for the reduction
18    of salmon stock on the Pacific Coast.
19            MR. WALSH:  I think that's a fair question.   I don't
20    know whether we could get into it now, but do you recall
21    how that issue was addressed, Walt?
22            MR. PETTIT:   I don't think we addressed it in the
23      plan  in  the  way  that  Mr.  Masuda  is  alluding  to  it.      We
24    didn't make a direct comparison, I guess, between the
25    relative value of the harvest as a commercial industry as                                  
                               152
 1    opposed to say agriculture or other uses.     With one
 2    exception that's been pointed out to us, and I don't
 3    believe that it was factored quantitatively into the
 4    analysis, but we did make a statement in the plan that went
 5    out to the effect that it didn't look like the fishery had
 6    received the same level of protection in the past that the
 7    other uses had and a number of people commented on the fact
 8    that we essentially, in fact, maybe the language we used
 9     said something about not having started out with a level
10    field, but quantitatively we didn't make that kind of
11    evaluation.
12            MR. WALSH:   It seemed to me they focused more, Mr.
13    Masuda, on the impediments to escapement, i.e., the whole
14    controversy of how much water is needed during those
15    critical three or four months, what the obstacles to escape
16    were, but really not commercial fishing related at least in
17    that component, at least during that segment of the
18    escapement process.
19            Do you follow me?
20            MR. MASUDA:   Yes.
21            MR. WALSH:   So then your issue, on top of that would
22    be, should there be some factoring to the loss of
23    commercial export?
24            MR. MASUDA:   I think the reason I make this the top
25    handout, and I have more handouts for people here, but the                             
                                    153
 1    top handout is from your Draft water Quality Control Plan,
 2    and I think what has been bothering us as water developers
 3    is that the fish agencies keep on insisting that the level
 4    of protection should be the 1940''s, and that basically the
 5    agencies should be the ones to make up all of the loss.
 6            But when you look at that exhibit, you will notice
 7    the hatched portion is the 1940's harvest rate which was
 8    dramatically low in that period and then it went up
 9     significantly in the fifties through the eighties.
10            MS. LEIDIGH:  Excuse me, Mr. Masuda.  For
11    everybody's information Mr. Masuda is referring to page
12    4-23 from the Water Quality Control Plan Draft.     It is
13    figure 4.5.1.2-5.
14           MR. MASUDA:   And the other article is attached
15    because one of the things that the fish biologists like to
16    spout is, it is not in the literature, therefore we are not
17    going to consider it.
18            This is an article on wild chinook salmon management
19    by two Washington State fishery biologists and I would like
20    to quote from the first page, the first column.  It says:
21                  Important naturally spawning chinook
22            salmon runs are dwindling all along North
23            America's Pacific Coast from California to
24            Southeast Alaska.   Older age classes are
25            disappearing from harvests, and as a result                                           
                      154
 1            the average fish size has declined.
 2                   Catches, run sizes and spawning
 3            escapements have all been decreasing.
 4            Despite these classic signs of overfishing,
 5            effective corrective actions are lacking.
 6            And further on at the bottom of the second column it
 7    says:
 8                   The role of overfishing and chinook
 9             salmon management dilemma is now  apparent
10            and acknowledged on an international basis.
11            You know, what we are asking is that when you look
12    at the factors causing the current salmon stock that, you
13    know, consider this as a very important factor.
14            MR. WALSH:   Well, you will also have an opportunity
15    to mention, here is a new one, you know, along with
16    recommending that such be included as part of the mix of
17    things the Board is considering, but you will have an
18    opportunity to argue this ussue.
19            MR. MASUDA:   I realize that.   I just wanted to point
20    out that when you're setting water quality objectives, the
21    salmon actually have two components and that one of them
22    has a commercial value.
23            MS. RUIZ:   More as relevant legal discussions here
24    today I would be curious as to your evaluation of what the
25    duty is on the part of the State to protect, as you put it,                                    
                             155
 1    the farming of fish, and how that fits within the public
 2    trust.  Does it fit within the public trust or was it an-
 3    ticipated   to be there as you now define it?
 4           Mr.  MASUDA:  That's a good question and we will
 5    pursue that.   Thank you.
 6           MR. MAUGHAN:  All right.   Let's have Barbara give
 7    the next item again and then we will break for 15 minutes.
 8            MS. LEIDIGH: The next subtopic is Program of
 9     Implementation under the Porter-Cologne Act.    The program
10    of implementation must include at least the following items
11    pursuant to Water Code Section 13242:
12            1.  A  description  of  the  actions  which  are
13            necessary to achieve the objectives.    This
14            must include recommendations for
15            appropriate action directed to any entity,
16            public or private.
17            2.  A  time  schedule  for  the  actions  to  be
18            taken.
19            3.   A  description  of  surveillance  to  be
20            undertaken to determine compliance with the
21            objectives.
22            The Court of Appeal in U. S. versus State Water
23    Resources Control Board made two points which I would like
24    to point out to you.
25            First, a full range of actions must be considered in                                  
                               156
 1    the program of implementation to achieve water quality, not
 2    just the water rights of the Central Valley Project and the
 3    State Water Project.
 4            Second, an implementing program may be a lengthy and
 5    complex process over which the Board has little control and
 6    requiring significant time intervals..
 7            Water quality control plans can be carried out in
 8     several ways:
 9             First, waste discharge requirements or NPDES
10    permits, the federal permits issued by the Regional Board,
11    must implement relevant water quality control plans.     The
12    citation is Water Code Section 13263.  This particular
13    requirement though will have little application to the
14    objectives in the Bay-Delta plan since the properties of
15    the water being controlled generally are not influenced by
16    discharges of waste.
17            The second way that the plans can be carried out
18    is -- some water quality control plan provisions are
19    self-executing, that is waste discharge prohibitions and
20    some other matters that are in a Regional Board type of
21    plan.
22            Again, we do not expect that the Bay-Delta plan will
23    contain the kinds of discharge controls that can be
24    self-executing.  The cite here is Water Code Section 13243.
25            A  third  way  is  other  State  agencies  are  required  to                         
                                        157
 1    comply with water quality control plans unless they are
 2    specifically authorized to the contrary by the statute.
 3    The cite here is 13247 fo the Water Code.  This provision
 4    has a long history which includes the tradition of
 5    assigning implementation functions to other agencies.
 6            An interesting article which predates this precise
 7    section, but not the idea, is in 44 Attorney General's
 8   Opinion 126, which was a 1964 opinion.
 9            The fourth way that the program of implementation
10    can be carried out is that the State Board is required to
11    consider water quality control plans when it acts upon
12    water appropriations, and it may subject appropriations to
13    such terms and conditions as it finds are necessary to
14    carry out the plans.   The cite for this Water Code Section,
15    1258.
16            That's all I have on the program of implementation
17    to start off, and I think we are ready now for comments on
18    that after the break.
19            MR. MAUGHAN:   After the break I think we will carry
20    on until four o'clock because we are not going to get
21    through everything today, so you can make plans that we
22    will conclude today at four o'clock.
23            So, a 15-minute break.
24            (Recess)
25            MR. MAUGHAN:  well, I think our 15 minutes are up.                              
                                   158
 1            I guess all the plan of implementation people
 2    decided not to come back.
 3            Anybody want to talk about the plan of
 4    implementation?
 5            MR. NOMELLINI:   I have been talking about it
 6    already.   You probably don't want to hear from me, Mr.
 7    Chairman.
 8            MR. MAUGHAN:   Now, Mr. Nomellini, we are always
 9     anxious to hear from you.
10            Seriously, apparently there is no one here at the
11    present time that would like to talk on that subject.  Any
12    Board Member want to comment?
13            MS. RUIZ:  Well, to the degree we can move any
14    questions that might be out there, Barbara, if you can go
15    over again what the Board must consider within the plan of
16    implementation in summary fashion --
17            MS. LEIDIGH:   Okay.  To recap, the program of
18    implementation has to include three things, description of
19    the actions which are necessary to achieve the
20    objectives -- this would include recommendations for
21    appropriate action directed to any entity, public or
22    private.   Second, it must include a time schedule for the
23    actions to be taken, and third, a description of
24    surveillance to be undertaken to determine compliance with
25    the objectives.                                                                   159
 1            MS. RUIZ:   And that last one again was?
 2            MS. LEIDIGH:   Description of surveillance to be
 3    undertaken to determine compliance with the objectives.
 4            MS. RUIZ:   Now, I noted in the discussion of
 5    objectives everyone seemed perfectly content to talk about
 6    other issues, but anyone have any comments on whether the
 7    Board should be making distinctions between objectives and
 8    standards?  What would be sufficient evidence on the part
 9     of any federal or other sister agency to take a standard --
10    there appear to be a number of issues and I just wanted to
11    indicate I am anxious to hear whether or not others are
12    thinking along those lines and advising the Board as to how
13    they feel we should go forward in that area.
14    MR. WALSH:  A  good  point.  To  that  end ,  could  I  ask
15    for general guidance from counsel on the difference between
16    standards and objectives, and whether we are required to
17    adopt one of the two or both or how does that work?
18            MR. SAWYER:   The term "water quality standards" is
19    used in the federal Clean Water Act and refers to the
20    combination of a beneficial use designation and criteria to
21    achieve protection of that beneficial use.  An objective is
22    the equivalent of a criterion, so we often use the term
23    "standard" to cover water quality objectives, to refer to
24    water quality objectives, but it is a federal term and the
25    drafters of the Porter-Cologne Act deliberately chose the                                  
                               160
 1    term of objective because at that time the federal term was
 2    not well defined.
 3            Since then the federal term has been well defined.
 4            MR. WALSH:   So we are going to be dealing with
 5    standards?
 6            MR. SAWYER:   The topics that Ms. Leidigh is going to
 7    discuss include standards under the Clean Water Act if
 8    that's what you mean by we will be dealing with it.
 9            MS. LEIDIGH:  We will be talking about it.
10           MS. RUIZ:   Bill wants to add something.
11           MR. ATTWATER:   Andy alluded to it, but I was in the
12    room when the various drafters of the Porter-Cologne Act
13    were going around and around on whether to change water
14    quality objectives to standards, and they din't want to
15    have two definitions for standards.  They didn't want to
16    have a federal definition and a State definition, so they
17    left it at water quality objectives.
18            As Andy said, a federal standard is a designation of
19    beneficial use along with the water quality objective
20    basically.   We sort of shorthanded the phrase to be
21    objectives equal to standards because they become standards
22    once EPA approves them, standards in their lingo, in our
23    lingo water quality objectives.
24            MS. RUIZ:   And again, an objective doesn't have to
25    be a number.                                                         161
 1            MR. ATTWATER:   It could be a narrative, of course,
 2    but it could be a number, but it's not some euphemistic
 3    goal shining out there, if you can get to it in the next 50
 4    years, that's fine.   It really is something that should be
 5    met and EPA uses it that way and I have always used it that
 6    way.  It's just a question of how you get there and in what
 7    time frame.   I don't have any problem --
 8            MR. SAMANIEGO:   Is it either or neither?
 9             MR. ATTWATER:   what?
10            MR. SAMANIEGO:   Setting a goal.
11            MR. ATTWATER:   I don't like the term goals.    It is
12    not in the law.
13           MR. SAMANIEGO:   It is not in the law?
14           MR. ATTWATER:   Racinelli particularly noted it may
15    take you a long time or you may never get there.  You may
16    get a water quality objective at 100 parts per million and
17    you try your best to get there through various techniques,
18    either through waste discharge requirements or prohibitions
19    or water requirements, permits, amendments or you may get
20    there through a negotiated settlement or physical facility,
21    and ten years down the line you may not get there.
22            Now, if you can't get there at all after trying
23    everything in the world, maybe that objective is not a
24    reasonable objective.   You may have to raise the objective.
25            MR. SAMANIEGO:  What apparently is the important                               
                                  162
 1    element is to have a plan that directs you in that direction.
 3            MR. ATTWATER:   Say that again.
 4            MR. SAMANIEGO:   An objective in order to be valid
 5    must have a design by which you would attempt to reach that
 6    point.  We won't say goal.
 7            MR. ATTWATER:   Well, that's the reason for the plan
 8    of implementation, and if you are harkening back to your
 9     Regional 5 experience, it is fairly straightforward when
10    you are dealing with just dischargers because you have
11    basically two ways to do it.
12            You give them waste discharge requirements for
13    secondary treatment and then they run to the State Board
14    and get a grant for 87.5 percent and go out and build their
15    facility.   In that context it's pretty straightforward.
16    It's more difficult when you are dealing with a non-point
17    source discharge rather than a point source, of course.
18           That's a little more difficult and then as you deal
19    with salinity, it becomes even more difficult because
20    nobody is discharging anything.    It's sort of the reverse,
21    you have an intrusion problem because of lack of outflow
22    and so the further you move away from the classic regulated
23    point source discharge, the more mind boggling and the more
24    intellectually difficult it becomes.
25            MS. RUIZ:  Let's take for example the THM                                           
                      163
 1    precursors, bromides specifically, how do you see setting
 2    the objective?  Let's say EPA sets a very stringent number
 3    to protect public health as it were, what do you envision
 4    are the implications of such a standard placed within the
 5    basin plan?
 6            MR. ATTWATER:   Well, first of all, you assume you
 7    would use an EPA number.    There's a whole cafeteria of
 8    numbers out there.
 9             MS. RUIZ:   For the purposes of this hypothetical,
10    suppose the only number is a very stringent number.     It's
11    related to public health and as we have handled it in the
12    past the Regional Board takes drinking water standards, for
13    example, and just uses them.
14            MR. ATTWATER:   They use the Health Department
15    numbers?
16            MS. RUIZ:   Yes.
17            MR. ATTWATER:   Well, in your plan of implementation
18    you could put the number in, say the number gets in the
19    basin plan, in the implementation plan you would have to
20    determine whether or not you can realistically get to that
21    number.   You may not realistically be able to get to that
22    number in terms of what you can regulate.   You may receive
23    testimony that the THM, or the bromide precursors, or
24    whatever you want to call them, have to be taken care of on
25    the water supply end.                                                                  164
 1            What if there is a more economic way of doing it
 2    rather than regulating outflow?  What if it is determined
 3    that the domestic supplier at the supply point could
 4    instead of using chlorine, could use something else,
 5    ozonation, something like that, more economical?
 6            MR. WALSH:   On an unrelated issue --
 7            MS. RUIZ:   Do we have the option consistent with the
 8    federal act as we have done in 68-16 and elsewhere to
 9     simply define our own terms for our better thinking for
10    handling these issues and in fact make a distinction
11    between standards and objectives?
12            MR. ATTwATER:  I don't think we have the option of
13    defining our own terms.    I think they are defined in the
14    Clean water Act and Porter-Cologne Act.
15            What you have the option of doing is not necessarily
16    taking EPA's numbers and the Health Department's numbers.
17    You could come up with numbers of your own if they were
18    supported  by  good  evidence.
19            MS. RUIZ:   Now how do you read EPA's approval and
20    disapproval process with number setting where they would
21    view it as more stringent than, but not less than?
22            MR. ATTWATER:   You mean our number more stringent?
23            MS. RUIZ:   Or that we would have the right to
24    exercise a number more stringent, but we wouldn't have the
25    opportunity to reduce that standard or broaden it unless we                              
                                   165
 1    had some extraordinary evidence.
 2            MR. ATTWATER:   Okay, let's take it in two parts.
 3            Certainly we have the authority to be more
 4    stringent.   I don't think there's any questions about that.
 5    whether we can be less stringent than the EPA number in the
 6    Gold Book or some other promulgated standard, I think that
 7    you probably could.   I think you could use a Health
 8    Department number, say it was less stringent than EPA's
 9     number, if you had good reason for doing that and the good
10    reason would be it was a reasbnable number under the
11    Porter-Cologne Act.
12            MS. RUIZ:   And we may use, included in that analysis
13    the rainfall year, year type?
14            MR. ATTWATER:   Yes.  That's interesting.   That has
15    not been discussed yet and nobody has mentioned it, but one
16    of the options the Board has is that you could have, I hate
17    to use the word "floating standard," but you could have
18    different standards for different year types, I believe.      I
19    think that is one of the ways of getting out of the
20    impasse.   Whether you call it dry year relaxation or you
21    set up a chart and say if you are in a dry year, this is
22    the number, if you are in a critical dry year, this is the
23    number, or if you are in some other kind of year, this is
24    the number -- I believe the Board has the authority to do
25    that and that may alleviate some concerns.                                                    
             166
 1            MR. WALSH:   The same way they are handling the Bay
 2    standards now.
 3            MR. ATTWATER:   Yes.  That wasn't really a subject
 4    of --
 5            MR. SAMANIEGO:   When you say that we have the
 6    ability of perhaps the option to establish our own numbers
 7    based on good evidence, the test for good evidence is what,
 8    acceptance at a Regional Board, concurred  n by the State
 9     Board?
10            MR. ATTWATER:   It could be, sure.
11            MR. SAMANIEGO:   It need not go beyond just the
12    weight of the evidence?  We need not go into clear and
13    convincing or beyond the reasonable doubt standards or any
14    of that?
15            MR. ATTWATER:   I wouldn't think so.   First of all,
16    this is a quasi-legislative process.
17            MR. SAMANIEGO:   So simply the weight of evidence as
18    the Regional Boards do water quality?
19            MR. ATTWATER:   If they adopted a number and you
20    approved it, I think that would be a number that you could
21    use.
22            MR. SAMANIEGO:   But as we hear more often of late,
23    clear and convincing, that is a higher level of good
24    evidence?
25            MR. ATTWATER:  Well, I don't want to get either                                    
                             167
 1    myself or the Board confused about the hierarchies of
 2    evidence.   I mean that's esoteric for even most lawyers.     A
 3    lot of that has to do with the burden of proof that comes
 4    in criminal cases as opposed to civil cases and adjudictory
 5    cases as opposed to quasi-legislative processes.
 6             MR. SAMANIEGO:   what we have been doing in the past
 7    is good enough in good evidence?
 8            MR. ATTWATER:   I think with the exception of --
 9     Racinelli actually said, for example, the instream quality
10    standards were acceptable.    I mean that was approved in the
11    Racinelli decision.   What was not approved was the process
12    by which we commingled water rights and water quality.
13            So the court actually upheld the numericals if you
14    will.   It was the process that they took us up on.
15            MS. RUIZ:  And understanding that process and
16    following that thought, is it advisable or should we be
17    looking at having findings of fact within basin planning,
18    something which we are not compelled to do?
19            MR. ATTWATER:   Yes, I think it is important,
20    Darlene, because you are going to use all that information
21    eventually in a water rights process.    I think it will help
22    people if you articulate the reasons for the numbers.
23           MR. MAUGHAN:   Mr. Krautkramer.
24           MR. SAMANIEGO:   When you say you articulate, you
25    mean the findings of a public hearing?                                                          
       168
 1            MR. ATTWATER:   I think it is helpful -- I think you
 2    could probably come out with a number, staff could develop
 3    a number, for example, that says  this is the number that,
 4    you know, based upon a survey of the literature we think is
 5    an appropriate number.    In fact, that was done in the Ocean
 6    Plan originally. That's how the Ocean Plan numbers were
 7    selected.   It wasn't to do with any test we did in the
 8    ocean.   It had to do with a literature survey.  Staff could
 9     do that.
10            But I think in order to help any court that reviews
11    that and certainly to help the public that has to comply
12    with it, it would be beneficial to put that kind of
13    information in the plan.    That's the basis for your number.
14    Otherwise, you raise the specter of the Board being
15    arbitrary.
16            MR. SAMANIEGO:   Didn't that same test fail in the
17    selenium issues, that the selenum numbers in Salt Slough
18    and the San Joaquin River were not site specific?
19            MR. ATTwATER:   I'm not sure, to be honest with you.
20            MS. RUIZ:   well, again, I guess I was going back to
21    the Racinelli review where they stated about the three
22    questions that will be asked by any reviewing court, and
23    all they were looking at was to be fully fair procedures,
24    that we act within the scope of our delegated authority and
25    was our action reasonable. It doesn't require us, of                                          
                       169
 1    course, to establish our findings of fact right up front,
 2    that great deference will be paid to us as long as we meet
 3    that.
 4            MR. ATTWATER:   I agree with you in the abstract, but
 5    I think in this particular the Board would be well served
 6    for explaining what they are doing in the water quality
 7    plan and use somewhat the same process so a reviewing
 8    agency, whether it be EPA or a reviewing court, can follow
 9     the trail from beginning to end on what the bases for the
10    numbers are and how we got there, the train of thought, the
11    typical train of thought that the courts laid out in a
12    quasi-adjudicatory process.
13            MS. RUIZ:   But again without waiver of our right not
14    to have to do that?
15            MR. ATTWATER:   Oh, sure.   And as I said initially,
16    the Board didn't have to hold 50 days of hearing to come up
17    with the Draft Plan.  They could have the staff do it and
18    then hold the hearings.
19            MR. MAUGHAN:   All right.
20            MR. KRAUTKRAMER:   I have a point of clarification on
21    the distinction between objectives and criteria since
22    that's one of the questions I missed on my quiz earlier.
23           I think one of the staff attorneys up here said that
24    an objective was the same as a criterion under federal law,
25    but my understanding of criteria in federal law, the                                          
                       170
 1    definition of criteria explicitly excludes consideration of
 2    economic or technical factors, whereas the definition of
 3    objective under the Porter-Cologne Act specifically
 4    includes economic factors.
 5            I was wondering how the Board interpreted those two.
 6            MR. ATTWATER:   Andy is looking it up.    EPA has been
 7    accepting them for the last 20 years, so I assume they know
 8    what they are doing.
 9             MR. WALSH:   Was that comment based on a legal
10    article you wrote?
11            MR. ATTWATER:   No.
12            MR. SAWYER:   The definition of criteria in EPA's
13    regulations is not separately defined in the act itself,
14    does not expressly include economic consideration.     That
15    does not mean that the Board cannot consider economic
16    considerations in setting criteria, in setting objectives.
17    In either case there are levels of water quality
18    constituents or characteristics set to protect the
19    beneficial use.   Each term is defined.   The definitions are
20    not identical, but they are compatible and it's been the
21    intent in the original drafting of the Porter-Cologne Act
22    and its use since 1969 that the objectives do serve as
23    water quality criteria for purposes of the Clean Water Act.
24            MR. ATTWATER:   This was explainded in detail in our
25    initial legal presentation to EPA in early 1973 when they                                   
                              171
 1    approved the State's ability to run the NPDES permit
 2    program and do the planning, et cetera, that has been
 3    accepted by EPA and so that is really the strongest
 4    argument that the two laws are compatible and they have
 5    been viewed so by EPA for the last, at least since 1973 to
 6    the present time, and the question has never been raised by
 7    EPA.
 8            MS. RUIZ:   Does that respond to your question.
 9             MR. KRAUTKRAMER:   It responds in part, but I guess
10    the concern goes back to the balancing or reasonableness
11    discussion conducted earlier and that's if a decision is
12    made by the Board to adopt the lower level of protection
13    reflected in objectives based on economic factors, when in
14    fact that is something that under the Clean water Act is
15    not supposed to be considered, at least at the criteria
16    stage.
17            I'm not saying it is not necessary to be considered
18    at some time.   How would the Board deal with that
19    situation.
20            MS. RUIZ:   I don't see any inconsistency.    If you
21    take the criteria that EPA has developed and you take that
22    and put it in the context of a public hearing here in
23    California, it is but a factor to be considered and weighed
24    against our test and we may use our test ultimately in
25    evaluating the use of that criteria to ultimately reach an                                    
                              172
 1    objective, as I understand it.
 2            MR. ATTWTER:   Yes.  We don't have to buy into the
 3    federal numbers whole hog.
 4            MR. KRAUTKRAMER:   But you are ultimately subject
 5   to -- those numbers are ultimately subject to approval by
 6    EPA assuming now we are talking only about salinity or
 7    temperature.
 8            MR. ATTWATER:   I would put this to you, Mr.
 9     Krautkramer, when the State Board adopts a water quality
10    control plan, I have always viewed it at that point as
11    being binding upon dischargers, if you will, and other
12    people in the State of California at the time the State
13    Board acts.   Whether EPA concurs or doesn't concur tends to
14    be of no moment to me.   What they would have to do is take
15    some affirmative action to invalidate those standards or
16    objectives. They have never done so.
17            Occasionally we get a missile from EPA in San
18    Francisco saying, do this or do that.    If we don't do it,
19    their only remedy really is to take the entire program away
20    from the State Board, and I would submit to you that they
21    are not going to do that as a practical matter.
22            MR. KRAUTKRAMER:  I guess as a closing comment, to
23    my mind the fact that the criteria excludes economic
24    considerations, and as I understand the process, sets up
25    another process for assessing economic factors and the use                             
                                    173
 1    of attainability analysis I believe they call it, that that
 2    reflects a judgment in the Clean water Act that the
 3    principal purpose of a water quality standard is to protect
 4    the beneficial use in the body of water for which the
 5    standard is being set and certainly at the very least
 6    establishes in a sense somewhat of a priority, if you will,
 7    for those uses over other uses, and only if there can be
 8    demonstrated, pursuant to the use of attainability analysis
 9     that for some reason lower criteria should be established,
10    can such a lower criteria be established and with that kind
11    of priority where you start out with a mandate to fully
12    protect beneficial use, and only through a certain specific
13    kind of showing can you back off, that that somehow
14    translated to the Porter-Cologne Act, I think the same
15    considerations would apply to objectives.
16            MR. SAWYER:   I think in some respect this discussion
17    is better covered when Ms. Leidigh gets into the specific
18    Clean Water Act requirements.
19            As I see it, the question is not our objectives
20    criteria, the question will become is a particular
21    objective being proposed as part of a particular basin plan
22    consistent with the federal requirements for criteria.     As
23    a whole they are compatible.    One can make an argument that
24    a particular proposed objective does or does not meet
25    federal requirements.   The use of the attainability                                           
                      174
 1    analysis which Mr. Krautkramer talked about concerns what
 2    beneficial uses will be designated for protection which is
 3    the first topic we would like to discuss under the Clean
 4    Water Act.
 5            MR. KRAUTKRAMER:   I would agree with that statement.
 6    I am not raising an issue.    I think that has a generic
 7    answer to it, but I think it does raise the question of, if
 8    the Board were to backslide, if you will, or offer a lower
 9     level of protection in an objective that it adopts, I think
10    that the Clean Water Act considerations, in the scheme of
11    the Clean Water Act, sets out a process Which the Board has
12    to be aware of in adopting an objective.
13            MR. MAUGHAN:   All right, thank you.
14            Anything else on this?    I think Mr. Littleworth sort
15    of passed a question about endangered species.
16            Mr. Roberts, do you have any comments you would like
17    to make on that before I forget it?
18            MR. ROBERTS:   Is that further down the list?
19            MR. ATTWATER:   That is on the list of issues.
20            MR. ROBERTS:   I will pass also.
21            MR. MAUGHAN:   All right.  The next item.
22            MS. LEIDIGH:  The  subtopic on my list is to start
23    talking about the Clean Water Act.    I will give you some
24    background and then I will go into a discussion of
25    beneficial use designations.                                                                   175
 1            The Clean Water Act was adopted in 1972 and adopted
 2    to replace earlier statutory provisions enacted in 1948 as
 3    the federal Water Pollution Act.    The State Board
 4    implements provisions of the act and the section that
 5    authorizes the State Board to do that is Section 13370 and
 6    following.
 7            The Clean water Act expressly declined to supersede,
 8    abrogate, or impair the authority of the State to allocate
 9     quantities of water within its jurisdiction, and that's
10    under Section lOlg, and we talked about that quite a bit
11    already today.
12            EPA regulations implementing the Clean water Act
13    provisions for water quality planning are set forth in 40
14    CFR Parts  130 and 131.  Among other provisions the act
15    includes water quality planning requirements and permitting
16    provisions for discharges of pollutants from point sources.
17            The Clean Water Act requires that each state have a
18    contiunuing planning process for all of its navigable
19    waters approved under Section 303(e) and the planning
20    process must include adequate implementation including
21    schedules for compliance, for revised and new water quality
22    standards.
23              Section 303 of the act, which is at 33 U.S. Code
24    Section 1313 requires the State to adopt water quality
25    standards which must be reviewed and approved by EPA.                                
                                 176
 1            For example, the 1978 plan was approved by EPA under
 2    Section 303(c):
 3            Standards consist of the designated uses of
 4            navigable waters involved and the water
 5            quality criteria for such waters based upon
 6            such uses.
 7            And this is in Section 303(c) (2).
 8            Criteria in turn are the equivalent of water quality
 9     objectives under the Porter-Cologne Act.
10            Now as Mr. Krautkramer undoubtedly would point out,
11    they are not precisely the same but they are the
12    equivalent.  Thus the water quality objectives and
13    beneficial use designations adopted under the
14    Porter-Cologne Act serve as water quality standards for
15    purposes of Section 303 of the act.
16            Standards under the Clean water Act must protect the
17    public health and welfare, enhance water quality and serve
18    the purposes of the act. They must be based on a
19    consideration of their use and value for public water
20    supplies, propagation of fish and wildlife, recreation
21    purposes, agricultural, industrial and other purposes, and
22    navigation.
23            And the citation for this point is Section 303(c).
24            The first subject of discussion is beneficial use
25    designations.   The designation of beneficial uses under the                              
                                   177
 1    Clean Water Act is detailed at length in 40 CFR 131.10.
 2    The following points in that section are relevant:
 3            First, waste transport or waste assimilation may not
 4    be designated as a beneficial use.    Now, this does not
 5    mean, however, that water cannot receive wastes for
 6    assimilation if designated beneficial uses are not
 7    unreasonably impaired.
 8            Second, the water quality standards for downstream
 9     waters must be considered.
10           Third, states may designate subcategories of a use.
11           Fourth, states may adopt seasonal uses.
12           Fifth, states may adopt a designated use or
13    substitute subcategories of a use only under the following
14    circumstances:   The use is not an existing use.
15            Now existing use is defined as a use actually
16    attained in the water body on or after November 28, 1975,
17    whether or not it is included in the water quality
18    standards.   The cite for this is the regulations, Section
19    131.3(e).
20            In addition to the use being an existing use (b),
21    the State can demonstrate that attaining the designated use
22    is not feasible for the following reasons:
23           First, naturally occurring pollutant concentrations
24    prevent the attainment of the use or natural ephemeral,
25    intermittent or low flow conditions or water levels prevent                                  
                           178
 1    the attainment of the use.        However, I note that if such
 2    effluent discharges exist to allow meeting the use, the use
 3    cannot be removed.
 4            Another Point, human caused conditions or sources of
 5    pollution prevent the attainment of the use and cannot be
 6    remedied or would cause more environmental damage to
 7    correct than to leave in place, or dams, diversions or
 8    other types of hydrologic modifications preclude the
 9     attainment of the use and it is not feasible to restore the
10    water body to its original condition or to operate such
11    modification in a way that would result in the attainment
12    of the use; or physical conditions related to the natural
13    features of the water body such as lack of a proper
14    substrate, cover, flow, depth, pools, riffles and the like
15    unrelated to water quality preclude attainment of aquatic
16    life protection uses; or controls more stringent than the
17    controls for effluent limitations in the Clean Water Act
18    Sections 301(b) and 306 would result in substantial and
19    widespread economic and social impacts.
20            The sixth point under my start off list is that
21    states may not remove a designated use if,  (a) there are
22    existing uses unless a use requiring more stringent criteria
23    is added, or (b) such uses will be attained by implementing
24    effluent limits under Clean Water Act Section 301(b) and
25    306, and by implementing best management practices or                                 
                                179
 1    non-point source control.
 2            Seven.   If existing use are higher than those
 3    specified in the water quality standards, a state must
 4    revise its standards to reflect the uses actually being
 5    attained.  If the designated uses do not include the uses
 6    specified in Section 101(a)(2) of the Clean Water Act or
 7    the state wants to remove a use specified in Section
 8    101(a) (2). the state must conduct a use attainability
 9     analysis.   This analysis is defined as a structured
10    scientific assessment of the factors affecting the
11    attainment of the use which may include physical, chemical,
12    biological and economic factors.
13            And the uses listed in Section 101(a)(2) for your
14    information are protection and propagation of fish,
15    shellfish and wildlife and recreation.
16            That will conclude the discussion of the designation
17    of beneficial uses under the Clean water Act.     And now I
18    would assume there probably are some questions or comments.
19            MR. MAUGHAN:   I think you overwhelmed everybody.
20            Mr. Nomellini.
21            MR. NOMELLINI:   Is there in effect through the
22    statutes in the particular Clean Water Act a non-
23    degradation requirement?
24            MS. LEIDIGH:   There is.   I was planning to talk
25    about that a little bit later, but there is something                                             
                180
 1    called the anti-degradation policy.
 2           MR. MAUGHAN:   Anti rather than non.
 3           MR. NOMELLINI:   We had a debate a little earlier
 4    about it.  It seems to be implicit in a lot of statutes in
 5    different ways, and I refer to them kind of generally
 6    rather than a statute that says non-degradation or
 7    anti-degradation.
 8            MS. RUIZ:   Well, you say it as if they are
 9     interchangeable, and they are not.    I think you have to
10    understand anti-degradation has a different meaning and is
11    language that is actually used.
12            MR. NOMELLINI:   I see it as the Delta Protection
13    Act, throughout a lot of different statutes, you know,
14    maybe not with the same exact words, but the idea and
15    policy is well engrained in law as I see it.
16           MR. MAUGHAN:   Anyone else care to comment or ask
17    questions?
18            See, I was correct, you overwhelmed them.
19            MS. SCHNEIDER:   Can you explain more about how the
20    attainability analysis can come back in and affect the
21    process of setting objectives by the Board?
22            MS. LEIDIGH:   What particularly are you --
23            MS. SCHNEIDER:   I had the impression from what you
24    said there is a process there and Andy said there is a
25    process that exists if you get to the point of EPA                                             
                    181
 1    reviewing your objectives it comes back to haunt you in
 2    some fashion and I assume that you could give an example of
 3    your concern.
 4            MR. SAWYER:   A use attainability analysis is a term
 5    of art defined by EPA to refer to a structured scientific
 6    process you must go through if your water quality control
 7    plan does not include one of the listed instream beneficial
 8    uses.   So that if swimming or body contact recreation was
 9     not a beneficial use listed in the plan, we would have to
10    go through a use attainability analysis to demonstrate that
11    it was not feasible to protect that use.     That doesn't go
12    to the issue of the adequacy of the criteria.     Once you
13    have designated the use, then the question is do the
14    criteria protect the use.    The use attainability analysis
15    goes to the question if, for example, in the New River the
16    Board does not designate body contact recreation, they have
17    to go through a demonstration that it is not feasible or
18    attainable to protect body contact recreation on the New
19    River if that's what the Board decides to do.
20            MS. SCHNEIDER:   Agriculture, as an example?
21            MR. SAWYER:   No, because the use attainability
22    analysis that EPA requires is for those particular uses
23    that are designated in, I think it is Section lOl(a) (2).
24            MS. SCHNEIDER:   The list that Barbara read?
25            MS. LEIDIGH:   Yes.                                                                  182
 1            MR. SAWYER:   Now there is something that is similar
 2    to a use attainability analysis but not as structured.     If
 3    you want to remove a use, you have to demonstrate it is not
 4    attainable.   You have to demonstrate it is not attainable
 5    to remove a use that's now designated in the plan.
 6            Now by EPA's regulation you cannot remove it if it
 7    is an existing use, so that demonstration only comes into
 8    place if there is a use designated under the current plan
 9     which is not currently being achieved and the State wants
10    to remove it based on its belief that it is unattainable,
11    and that would include off-stream uses, agricultural,
12    industrial and municipal.
13            MS. RUIZ:   A specific example being, say within San
14    Luis Drain, if the fish had been identified there and the
15    fishery has been established there, in order to drop that
16    designated beneficial use and drop it for the purposes of
17    that water body, assuming it is a water body within the
18    definition, that's the test we have to use.  That's the
19    format we have to use.
20           MS. SCHNEIDER:   So you will have to treat something
21    like that separately in this plan?
22            MS. RUIZ:   To the degree we undertake to do that and
23    there is evidence to do that.    I'm not sure that that's
24    what we will be engaged in.
25            MR. ATTWATER:  I would be surprised if we would                                 
                             183
 1    designate any uses.
 2            MS. RUIZ:   Again not wanting to prejudge any
 3    evidence that the parties may feel free to bring in --
 4            MR. ATTWATER:   There's a whole hierarchy of things
 5    under the Clean Water Act regulations.    There are a number
 6    of hoops we would have to go through.
 7            MR. MAUGHAN:   That seems to conclude that subject.
 8    The next one.
 9             MS. LEIDIGH:   The next part of this is talking about
10    criteria.   The following points in the Clean Water Act
11    regulations are relevant to the establishment of criteria.
12            First of all, criteria are defined as constituent
13    concentration levels or narrative statements representing a
14    quality of water that supports a particular use.     And
15    that's in 40 CFR 131.3(b).
16           Criteria may be either numerical or narrative.
17    Criteria must protect the designated uses and must be based
18    on sound scientific rationale.    And the cite there is 40
19    CFR 131.11(a).
20            In water with multiple use designations, criteria
21    must support the most sensitive use.
22            And finally, where numerical criteria cannot be
23    established, narrative criteria must be established based
24    upon biomonitoring methods.
25            That's all on criteria and I have so little on                                             
                    184
 1    implementation requirements I might as well just bring that
 2    up, too.
 3            Implementation requirements under the Clean Water
 4    Act are sketchy.   Section 303(e) (3) (f) requires adequate
 5    implementation, including schedules for compliance for
 6    revised or new water quality standards.     I think we are
 7    ready to talk about criteria and Clean Water Act
 8    implementation.
 9             MR. MAUGHAN:   Professor Dunning.
10            MR. DUNNING:   This goes to semantics anyway, but I
11    think it goes to a policy point that has been raised
12    several times.   It's very clear to me listening to Barbara
13    read the definition of criteria that as the federal law
14    uses that term, it is a descriptive term.     It tells you
15    something about science, it tells you if you want to
16    protect a given beneficial use, a given designated
17    beneficial use, then you have got to do this or that.      If
18    you want a diversified fish population in a particular
19    stream, then you have got to have so much dissolved oxygen.
20    That's a scientific statement.
21           There is nothing normative about it.    It only
22    becomes normative when you adopt the designated use.     When
23    you say, we want the fish, then you are also saying we are
24    going to have to have some dissolved oxygen.
25            Now it's clear from listening to Bill Attwater that     in the Porter-Cologne
Act he understands objectives to be                                                                
185
 1    normative.  Water quality objectives are binding on people.
 2    They are normative.   They are to be followed, so I conclude
 3    from that that the appropriate comparison is between
 4    objectives in the State law and standards in the federal
 5    law, that those are the things that are binding, those are
 6    the things that are normative, and I would respectfully
 7    disagree with Barbara and Andy in their previous
 8    characteristization of water quality objectives under State
 9     law as being the equivalent, I think you said, Barbara, of
10    water quality criteria under the law, and it is a point
11    about semantics, but I think it all leads to this question
12    of what is binding, what is not, and I think it might be
13    good to be clear about it.
14            MR. ATTWATER:   Why don't we write it out for
15    everybody so there is no mistake.    I think Andy correctly
16    read from the definition of the law as to what the criteria
17    were in terms of definition, and I have stated how EPA
18    views our adoption of water quality objectives and
19    beneficial uses as being the equivalent then of
20    standards.
21            MR. DUNNING:   That's what you said, but it has also
22    been stated that State law objectives are equivalent to
23    federal law criteria and that's what I believe is
24    incorrect.
25            MR. SAWYER:   Federal law defines standards as                                  
                               186
 1    provisions of State or federal law which consists of a
 2    designated use or uses and water quality criteria.
 3            MR. DUNNING:   Right, you have got to have both
 4    elements in the standard, and unless you have a designated
 5    use, nothing is normative.
 6            MR. SAWYER:   The Porter-Cologne Act has beneficial
 7    use designations and objectives, so if you take the
 8    Porter-Cologne Act beneficial use and objectives, together
 9     those are standards.   Under federal law they are submitted
10    to EPA for approval as standards, and are approved as
11    standards under federal law, so I think the objectives are
12    equivalent with the criteria.
13            MR. DUNNING:   They are equivalent to standards.
14    They are submitted as standards and approved as standards.
15    Criteria are just one part.
16            MR. SAWYER:   The objectives are submitted along with
17    the beneficial use designation and together they comprise
18    the standards.   So we often refer to objectives as
19    standards because those are the features of the standards
20    that tend to have a greatest effect and are translated into
21    NPDES permits and other implementation actions.
22            MR. ATTWATER:   You wouldn't have any objectives if
23    you didn't have any beneficial uses. Andy and I referred to
24    objectives and standards as being the equivalent of one
25    another.                                                                  187
 1            MR. DUNNING:   Since this question has arisen, for
 2    many years I assumed the same thing you did, Bill, these
 3    were binding.   Now there's a question and it seems to be
 4    important in the basin planning process.
 5            MS. RUIZ:   It's not so much a question, sir.    I
 6    believe Racinelli was addressing that very issue.
 7            MR. DUNNING:   well, I don't think it is as clear on
 8    that point.   I have read that with that question in mind
 9     and I think there's room for people that differ as to
10    exactly what Racinelli meant in this question.  I would say
11    it is more of a question perhaps than --
12            MS. RUIZ:   You would concede certainly, sir, that in
13    fact Appellate Court decisions have some weight beyond that
14    of the Superior Courts.
15           MR. DUNNING:   Certainly. but the question is what
16    did Racinelli actually say about it.
17            MS. RUIZ:   And what do you read into Racinelli's
18    statement about objectives can be long range and not
19    attained over time?  How do you think with your view that
20    they are binding?
21            MR. DUNNING:   I think you can time phase them.    I
22    think that is what Mr. Attwater was suggesting earlier,
23    that you can have binding standards that are not achieved
24    immediately.   That happens all the time with the federal
25    standards in the air quality area.    In the water quality                                     
                            188
 1    area there are all kinds of standards that are not now
 2    being achieved and there are various compliance schedules
 3    and so forth, and you can achieve them over some period of
 4    time, sometimes a very long period of time.
 5            MS. RUIZ:  So you see only a role of enforcement --
 6            MR. DUNNING:  There's a difference between saying we
 7    have a binding standard to be achieved over a period of
 8    time and saying we have a general direction we are heading
 9     and we may never get there or we might, and that's the
10    difference to me.
11            Thank you.
12            MR. MAUGHAN:   Okay, thank you.
13            Anyone else?  We really are moving.
14            MS. RUIZ:   Must be as clear as turbidity out there.
15            MR. MAUGHAN:   All right, your next subtopic.
16            MS. LEIDIGH:   Okay.  We next come to the thrilling
17    subtopic of anti-degradation.    In addition to the basic
18    requirements that we have discussed previously, including
19    the restraints on removal of designated use, both the State
20    and EPA maintain enforceable policies aimed at maintaining
21    and protecting existing instream water uses.
22            Federal regulations require a state to develop and
23    adopt a statewide anti-degradation policy and identify the
24    methods for implementing the policy.    Three tiers are
25    included in 40 CFR Section 131.12(a).                                                          
       189
 1            First, all existing instream water uses shall be
 2    maintained and protected.
 3            Second, the second tier protects waters whose
 4    quality exceeds levels necessary to support propagation of
 5    fish, shellfish and wildlife and recreation in and on the
 6    water.   For these waters limited water quality degradation
 7    may be allowed if necessary to accommodate important
 8    economic or social development in the area in which the
 9     waters are located, and if the water quality is adequate to
10    protect existing uses fully.
11            For these waters the highest requirement must be
12    placed on discharges.
13           The third tier requires maintenance and protection
14    of all high quality waters which constitute an outstanding
15    national resource such as in parks, refuges and waters of
16    exceptional recreational and ecological significance.
17            The State Board's policy for maintaining high
18    quality waters which is set forth in Resolution 68-16,
19    adopted in 1968, which complies with the EPA anti-
20    degradation policy, is titled "Statement of Policy With
21    Respect to Maintaining High Quality of water in
22    California."
23            Now under that resolution, first of all, the State
24    Board has interpreted Resolution 68-16 as incorporating the
25    three-pronged test set forth in the federal anti-                                                
                 190
 1    degradation policy and this interpretation is in order No.
 2    WQ86-17, adopted November 20 of 1986.
 3            Second, Resolution 68-16 requires that whenever the
 4    existing quality of water is better than the quality
 5    established in water quality plans, the existing high
 6    quality must be maintained unless a change in water quality
 7    will do the following:
 8            First, will be consistent with maximum benefits to
 9     the people of the State, or will not unreasonably affect
10    present and anticipated beneficial uses of such water ano
11    will not result in water quality less than that prescribed
12    in the plan.
13           Third, Resolution 68-16 serves as a general
14    narrative water quality objective in all Regional water
15    quality plans.
16            The federal anti-degradation policy I would like to
17    note could prevent a water quality plan from allowing
18    degradation in the form of reduced flows.     I think we
19    talked some about this before today.
20           However, we believe that it cannot override the
21    State Constitution's prohibition against the waste and
22    unreasonable use of water in Constitution Article 10,
23    Section 2.
24            That will start off our discussion on
25    anti-degradation.   We are ready for comments or questions                             
                                191
 1    on that now.
 2            MR. MAUGHAN:   Mr. Nomellini, are you ready on that?
 3            MR. NOMELLINI:   Sounds good to me.
 4            MR. MAUGHAN:   All right, anyone else?
 5            MS. RUIZ:   Do you see, Mr. Nomellini, where perhaps
 6    non-degradation may not be the term of art you are in
 7    search of?
 8           MR. NOMELLINI:   I am willing to stipulate to
 9     anything that will keep the Delta water quality good.
10            MR. MAUGHAN:   Anyone?
11            MS. RUIZ:   Some of these are very complex issues as
12    I think you can all appreciate.    I am hoping perhaps your
13    silence is an indication that you would like more time to
14    think about these interrelationships.
15            MR. MAUGHAN:   Mr. Masuda.
16            MR. MASUDA:    When I was listening to Barbara, it
17    didn't seem to me it helped Mr. Nomellini any.
18           Just for clarification for me, it was talking about
19    instream uses, not Delta ag pumping it out --
20            MS. RUIZ:   But again I think something that you
21    should pay key attention to is the concern under Article
22    10, Section 2, which we see as a constitutinal provision
23    which may in fact override certain aspects of it, so there
24    is a give and take there and it depends on your
25    interpretation under given circumstances.                                                       
          192
 1             MR. MAUGHAN:   Continue.
 2             MS. SCHNEIDER:  What do Board Members think
 3     anti-degradation policy is going to do in the planning
 4     process?  Something is going on here.  What's the question?
 5     we are too tired to think of anything.
 6            MR. MAUGHAN:   well, they were addressed in the Draft
 7     Plan ,     and maybe you haven't had a chance to read it.
 8             MS. SCHNEIDER:   I mean in the next phase?
 9              MR. MAUGHAN:   The next phase, I don't know, I
10    haven't got that far ahead.
11            Seriously, do any of the Board Members have any
12    thoughts?
13            MR. THOMAS:  Mr. Chairman, may I ask a question?
14            MR. MAUGHAN:   Sure.
15            MR. THOMAS:   This may just be my own inattentive-
16    ness, but if there was a suggestion that the State
17    Constitution and its provisions on reasonableness override
18    the  anti-degradation  policy  driven  by  a  valid  federal
19    regulation, I think that's a highly questionable
20    proposition.
21            MS. RUIZ:   I would be willing to argue that's a
22    matter of dispute.
23           MR. THOMAS:   But is that what you are suggesting in
24    posing the question?  If so --
25           MR. ATTWATER:  That's what Barbara said in her                                   
                            193
 1    statement as a matter of fact.    One of the problems we
 2    alluded to earlier is that all of these laws come together,
 3    I mean people I think before today were just thinking about
 4    the water rights, maybe a few provisions in the
 5    Porter-Cologne Act, but as you can see from this discussion
 6    today, there are a lot of laws, State laws, federal laws,
 7    State regulations, federal regulations, policies, et
 8    cetera, et cetera, that all come to bear and the Board's
 9     got to figure out how all those fit together.
10        Article 10, Section 2, is the law that ultimately
11    will drive certain allocation decisions, certain water
12    qualit parameters, and the courts have repeatedly, as I
13    said earlier, heaped upon this Board quite a bit of
14    authority in making a decision as to what is waste and
15    unreasonable use, witness the most recent Appellate Court
16    decision dealing with the Imperial Irrigation District.
17    There is nothing new in that decision but it does chronicle
18    the long history of State court decisions giving this Board
19    quite a bit of latitude in making determinations.
20            MR. SAWYER:   The EPA has published guidance on its
21    anti-degradation regulations.    Among the questions asked in
22    and responded to in that guidance are whether it applied to
23    changes in water quality due to other water diversions and
24    EPA  says  that, yes,  it  does  apply .
25            But they also ask about how it affects water rights                                   
                              194
 1    decisions, and EPA responds that the State water rights
 2    authority and EPA's water quality standard requirements
 3    should be harmonized wherever possible, but in the event of
 4    an irreconcilable conflict the State water rights authority
 5    would prevail, so that it is our position that in the case
 6    of an irreconcilable conflict between the requirements of
 7    our Article 10, Section 2 of the Constitution and the
 8    requirements of EPA's anti-
 9     degradation regulation, the California constitutional
10    requirement would prevail.
11                MR.  ATTWATER:  We can give you a copy of that
12    document if you would like to see it.     It was '75 --
13            MR. SAWYER:   No, it is about 1983, and we can
14    provide it.
15            MR. THOMAS:   Well, that's interesting and may avoid
16    a supremacy clause, federal constitutional problem, but it
17    strikes me that there is much more to be said on this and I
18    am not in a position to say it.
19           MR. MAUGHAN:  You mean you don't agree with it?
20           MR. THOMAS:   On the face of it, it is a remarkable
21    proposition I would say as a matter of constitutional law,
22    federal constitutional doctrine, that a State
23    constitutional provision can override a valid federal
24    regulation.
25            MS. RUIZ:   It is not so remarkable.                                                      
           195
 1            MR. THOMAS:   Perhaps that's right in this case.
 2    Without analyzing the particular, you know, regulations
 3    involved here, it is hard to make that judgment.
 4            MS. RUIZ:  Again, I think in just the water law in
 5    the West, it isn't so hard to envision why this has come
 6    about, and in light of Professor Dunning's statements as to
 7    the underlying discussions that were inherent in those
 8    provisions of the Clean water Act.
 9             MR. ATTWATER:   It really isn't remarkable because
10    when you stop and think of the New Melones case when the
11    Supreme Court said it had to be a specific direction of
12    Congress to free up the feds from State regulation, they
13    didn't say a validly promulgated regulation, they didn't
14    say congressional intent, they said specific congressional
15    action.
16            So I don't find it unusual at all that a State
17    constitutional provision could override a federal
18    regulation.
19            MR. THOMAS:   I think it is correct that the will of
20    the Congress on that point is going to be the point.
21            MR. MAUGHAN:  Okay.  I think if that's all on that,
22    we will take one more before we break.
23            MS. LEIDIGH: One more is the last one.
24            MR. MAUGHAN:   That's why we are taking one more.
25            MS. LEIDIGH:  This is on non-point source                                            
                     196
 1    management.
 2            Generally the pollutants sought to be controlled in
 3    the Estuary through the State Board's water quality
 4    planning process are from non-point sources.     That is, they
 5    are from ocean salinity, temperature, dissolved oxygen,
 6    salts from irrigated agriculture.    These matters are not
 7    regulated by the Clean water Act in the form of NPDES
 8    permits, although the Clean Water Act does recognize them
 9     as pollutants and requires the State to plan for their
10    control.
11            Under the Porter-Cologne Act, the Board can plan for
12    non-point discharges and Regional Boards can regulate
13    non-point waste discharges under waste discharge
14    requirements.
15            Ocean salinity and non-point salinity from irrigated
16    agriculture, while expressly recognized by the Clean Water
17    Act, is a form of non-point source of pollution for which
18    states must plan.
19           That cite is in Section 304(f) (e); and are not
20    regulated under the federal permit system.
21            The Clean water Act requires the State to prepare
22    non-point source management programs which include best
23    management practices to be undertaken, identification of
24    programs to implement best management practices, a
25    schedule, a certification from the State Attorney General                                  
                               197
 1    as to the State's authority to implement their management
 2    program, and sources of funding.
 3            And there is a citation to this law in U. S. versus
 4    State water Resources Control Board, the Racinelli
 5    decision, at 227 Cal Reporter, 161, page 173.     See also
 6    Clean Water Act Section 319.
 7            That's all I have to say about that.
 8            Are there questions or comments on this?
 9             MS. RUIZ:   It is important to be mindful that
10    Section 319 gives us the obligation, well, it isn't even an
11    obligation, in the event -- but in the event the State
12    doesn't do it, the feds would do it but as an assessment
13    and management plan to be promulgated by the State.     There
14    is nothing further the federal government can do after that
15    particular step short of just simply disapproving the
16    management plan since they haven't even got the statutory
17    power to impose their own non-point source management plan
18    in the event of disapproval.
19           That raises questions of the interrelationship of
20    Section 319, the whole underscoring of the Clean Water Act
21    and how it addresses non-point sources and what we may be
22    doing in the context of a plan which seeks to be approved
23    or disapproved by EPA, the degree we are dealing with
24    non-point sources in salinity, temperature and perhaps
25    things like THM precursors, although that hasn't been                                      
                           198
 1    decided by the Board, so your reaction and comments on some
 2    of that would be of interest, I know.
 3            MR. MAUGHAN:   Ms. Trager.
 4            MS. TRAGER:   Susan Trager, and I am appearing here
 5    for the Water Advisory Committee of Orange County, 2100
 6    Southeast Main Street in Irvine.
 7            I am very nervous about leaving here today without
 8    somebody asking some questions about the Endangered Species
 9     Act because it is a matter of concern.     It's especially a
10    matter of concern in what this Board views as its planning
11    function and how far you go in your planning function to
12    address the federal Endangered Species Act and the State
13    Endangered Species Act, and in how in lots of conversations
14    with lawyers in this room that there are lots of questions
15    and the hour is late, and there were other complicated
16    things to get into and that was kind of jumped over, so I
17    would like to raise that as a question.
18            MR. ATTWATER:   That's on the list of issues.    It was
19    noticed and I don't know what the Board wants to do.
20            MR. MAUGHAN:   we will probably have to hold
21    another --
22            MR. ATTWATER:   Okay, so why don't we plan --
23    everybody knows it is an issue and the staff will plan to
24    look at it and then the rest of the people can look at it
25    and we will deal with it next time.                                                                 
199
 1            MR. MAUGHAN:   Maybe Mr. Roberts can settle the whole
 2    thing.
 3            MR. ATTWATER:   I don't think he can do it in ten
 4    minutes.
 5            MR. MAUGHAN:   It is on this other list in addition
 6    to what we have covered today for an extension or
 7    resumption of this informal discussion.
 8            MS. TRAGER:   There was another question I think that
 9     has developed since the earlier hearings and that is the
10    question about the process of listing one of the salmon
11    runs as an endangered species and I think it would be
12    helpful if there could be a report, if someone would report
13    to us as to the status of that effort.
14            MR. MAUGHAN:   It was announced in the paper.    It has
15    not been so designated by the Fish and Game Commission.
16    They did not designate it as an endangered species.
17            MS. RUIZ:   Was there a referral of it for further
18    study, do we know?
19           MR. ATTwATER:   I just remember the newspaper report
20    and there was some threat to file a lawsuit.
21            MR. SAWYER:   There are two proceedings.    The
22    National Marine Fisheries Service has declined to list it
23    and maybe Mr. Thomas could correct me, but I think the
24    Sierra Club is suing or planning to sue or challenge that
25    act, and the Fish and Game Commission is proposing not to                             
                                    200
 1    list the winter run chinook salmon as an endangered species
 2    under the State law, and the time to file lawsuits has not
 3    run, but the Sacramento River Preservation Trust and other
 4    groups are contemplating possible litigation on that item.
 5           MR. MAUGHAN:   Did we conclude on that item?  Susan,
 6    did you understand what the situation was?
 7            MS. TRAGER:   I did, and it is helpful to know that,
 8    so we will hear or there will be more questions and more
 9     discussion on these issues later?
10            MR. MAUGHAN:   Yes.  I was going to ask Barbara to
11    relate them once again and if any of you have some other
12    issues to add to the list we would be glad to, but the
13    intent right now would be -- we haven't checked our
14    calendars and yours, but our intent would be almost like a
15    postcard just to say we are continuing that informal
16    discussion to cover these particular issues and we have
17    enumerated several.   Maybe you have some additional ones
18    you would like to add to it.
19            MS. TRAGER:   Thank you.
20            MS. RUIZ:   I guess we do appreciate there was a
21    great deal to absorb since the first time in my experience
22    in the last five years we have gone into this degree of
23    detail     concerning some of the interrelationships in our
24    basin planning process and again we are anxious to see your
25    thinking and what further relationships you may identify.                                   
                              201
 1            MS. TRAGER:   Thank you.
 2            MS. LEIDIGH:   Do you want me to read off the list?
 3            MR. MAUGHAN:   Excuse me just one moment.    Yes, sir,
 4    from San Francisco.
 5            MR. BERLINER:   I am Tom Berliner from the City
 6    Attorney's office, City Hall, Room 206, San Francisco,
 7    California.
 8            Before we leave the issue of what we have covered
 9     today, I wanted to identify a general concern about
10    noticing and hearing topics ahd agendas.     I think it would
11    be appreciated if we could get at least the staff or
12    Board's impression as to what we covered on these items
13    today because I don't know if I was the only one or not,
14    but I got lost during the course of discussion as to
15    exactly which items we have covered and which we haven't.
16            I frankly felt like we got to No. 1 before we ever
17    finished the introduction and that we were well into 3 and
18    4 before we finished No. 1, and I kind of felt like a lot
19    of these got mixed in together, so I think it would be very
20    helpful if we could have some identification as to exactly
21    which ones the Board feels have been adequately covered
22    today and which ones are still left open, and then what
23    would be on the agenda for the next meeting.
24            And that brings me to a point that I am concerned
25    with and that is in the hearings or in these workshops and                                
                                  202
 1    particularly in the more informal staff level workshops, I
 2    have been feeling that there is a lack of, particularly in
 3    the staff workshops, that there is not sufficient notice as
 4    to what the agenda will include and what has been discussed
 5    and when the meetings are going to take place along with
 6    adequate notice.
 7            Now I have attended a couple of workshops --
 8            MR. MAUGHAN:   Are these the Department of water
 9     Resources workshops?
10            MR. BERLINER:   Yes, and my sense is, and I can't
11    cite specifically. but my sense is that there's been a lack
12    of notice to everybody that wants to participate in what
13    the discussions have covered and I think it would be very
14    helpful if at least two to three weeks before any workshop
15    that notice be sent out and an agenda be sent out as to the
16    items that are at least proposed to be discussed, and that
17    would include even subworking groups so that we all know
18    the kind of discussions that are going on so that if there
19    are discussions concerning M&I uses or agricultural,
20    conservation or salmon studies, or whatever, everybody
21    knows that there is going to be a workshop next Tuesday to
22    discuss something.
23            MR. MAUGHAN:   Mr. Pettit, can we work something out
24    with the Department of Water Resources?   I have heard
25    another complaint along these lines.  Can we work something                           
                                      203
 1    out with them to be sure that we can satisfy this?
 2            MR. PETTIT:  We will certainly try.   As far as I
 3    know, there have been two meetings and I attended part of
 4    the first one and it was the initial effort to get the
 5    thing off the ground, and I think --
 6            MR. MAUGHAN:   That the notification was imperfect.
 7            MR. ATTWATER:   It's obviously Dave Anderson's fault
 8    and we will have to do something about it.
 9            MR. PETTIT:  No, it wasn't Dave's fault.    We gave
10    them our mailing list and I think we tried to combine some
11    of the parties on it that we thought were in close contact,
12    so we may have omitted some that shouldn't have been
13    omitted.  I understand there was another meeting last week
14    that I wasn't able to attend, but I think we do need, from
15    the comments we have heard, we need to improve that
16    noticing procedure.
17            That partly gets back to the discussion we had at
18    the Board meeting, I guess, a week or so ago.   We are not
19    specifically driving those workshops ourselves, so it is a
20    coordinated effort with the Department of Water Resources
21    and they are running the workshops.
22            MR. MAUGHAN:  As I understand, their wish is, and
23    Mr. Anderson, I don't know whether you want to comment,
24    they also wanted to have any of the parties notified
25    properly and keep them as informative in advance and so on                            
                                     204
 1    as possible. So if we can work on it to take into
 2    consideration what has been said here and otherwise, I
 3    would sure appreciate it and I am sure the rest of the
 4    Board would.
 5            MR. PETTIT:   we will certainly try to do that.
 6            MR. MAUGHAN:   Insofar as the other comments about
 7    today, what can we do?
 8           MR. ATTWATER:   Mr. Maughan, I think that certainly
 9     some of the people have touched on some of the issues, like
10    public trust and balancing, but I think in fairness to
11    everybody, that we should stay with the eight issues that
12    have been listed and I would suspect that after today some
13    people might have further thoughts on balancing and public
14    trust and sequentially go back through the eight listed
15    areas that are in the notice and not try to exclude any of
16    them.
17            I don't think any of them were really fully
18    discussed even though some people like Mr. Littleworth
19    touched on several of them.
20            So I would stay with the original notice and just
21    say that the issues listed in the notice will be heard at a
22    date that we will have to work out with you and we will
23    send a notification to the parties.
24           MR. MAUGHAN:   Is there a way to sort of shorthand,
25    say, what we covered and make sure that the people who get                           
                                      205
 1    the notice --
 2            MR. ATTWATER:   Well, we could say -- what I would do
 3    is resubmit -- I wouldn't do a postcard, I would be
 4    thinking of submitting the list of issues again.     These
 5    issues will be specifically discussed.
 6           MR. MAUGHAN:   Which ones were and they can be
 7    further discussed?
 8            MR. ATTWATER:   You mean the issues discussed today,
 9     list those?
10            MS. RUIZ:   List the ones that Barbara has outlined
11    already within their statements.    I don't even feel you
12    need to put in citations as much as the subject matter that
13    you covered within basin planning today, and then the full
14    list, even though they overlap in large part of what we had
15    in the notice, and that is open for further comment and
16    input at the next workshop in this area.
17            MR. ATTWATER:   All right.
18            MR. MAUGHAN:   we will try to accommodate your
19    request.
20            Anything else before we conclude?
21            Well, we thank you all for being here.     I appreciate
22    it puts a little bit of pressure on you that are very busy,
23    but I hope it has been worthwhile.
24            (The discussion was terminated.)
25
