THURSDAY, FEBRUARY 23, 1995, 9:10 A.M. --o0o-- MR. CAFFREY: Good morning and welcome to this hearing of the State Water Resources Control Board on the Bay-Delta Draft Water Quality Control Plan. My name is John Caffrey, Chairman of the Board. Let the record show that the full Board is present. By way of introduction of the people in front of the hearing room, starting to my far left at the dais is Board Executive Director, Walter Pettit. And then, proceeding down from Mr. Pettit, Board Member Marc Del Piero. And between Mr. Del Piero and me is Mary Jane Forster. By the way, congratulations as our Vice Chair elect to resume term on March 15. On my immediate right is the current Board Vice Chair, James Stubchaer; and next to Mr. Stubchaer is Board Member John Brown. At our front table is our Senior Engineer, Tom Howard from the Delta Unit; and also, Senior Counsel, Barbara Leidigh; and of course, we have our Court Reporter, Alice Book, with us this morning. Good morning to all of you. Before I read the opening statement into the record, which is our usual procedure, I would like to acknowledge on behalf of the Board that this is the first time that we have met on the Delta process, the Delta plan, since the death of our colleague, John Krautkraemer. While the Board members and Board staff have had opportunity as individuals to express condolences to John’s family, we wish to say as we open these proceedings, again, that we will miss John, his commitment and contribution, and we will remember him with great respect. And now, the opening statement. The purpose of this hearing is to give all interested parties an opportunity to present relevant comments and recommendations to the Board regarding the contents of the Draft Water Quality Control Plan for the Bay-Delta Estuary and its proposed adoption. This hearing is being held pursuant to the Notice of Public Hearing on Consideration of the Water Quality Control Plan for the Sacramento-San Joaquin Delta Estuary issued January 3, 1995. The Draft Water Quality Control Plan that is the subject of this hearing is the result of an agreement among the major parties interested in the waters of the Bay-Delta Estuary. The agreement was reached after a series of workshops conducted by this Board and extensive negotiations among the parties. Having given the parties two months to review the draft plan, we are conducting a hearing today in which the interested parties will have a further opportunity to comment. The Board appreciates the important work the parties have put into developing a plan for the Bay-Delta Estuary. We encourage all the parties to continue working together. After this hearing, we may make revisions if they are needed. We will then, again, provide copies of the draft to the interested parties. After that, we will hold a Board meeting to consider it for adoption. If you intend to speak today, please fill out a blue speaker card and give it to our staff at the front table. They look like this and are available at the back of the room. Conduct of the hearing: Today’s procedures are described in the notice for today. Additional copies of the notice are available from staff. In this hearing, I will call each party who has submitted a card requesting an opportunity to provide oral comments and recommendations. There will be no sworn testimony or cross-examination of the parties, but the Board members and the staff may ask clarification questions. Each party will have 20 minutes for an oral presentation. A party may be represented by one or several speakers. If any party needs additional time, the party’s representative may ask for additional time at the beginning of the presentation. Please explain why the additional time is necessary. If we are not able to provide you with all the time you think you need, we encourage you to submit your presentation in writing. In the interest of time, we ask that parties avoid repeating details already presented by other parties whenever possible, and simply indicate agreement. Alternately, parties with the same interests are welcome and encouraged to make joint presentations. We will also accept and we encourage written comments. You need to provide the Board and staff with 20 copies of any written comments and recommendations, and make copies available to the other parties who are here today. Written comments should be provided as soon as possible and must be received by the Division of Water Rights no later than four p.m. on March 10, 1995. So, you have until March 10 to comment. Any materials received by the Board will be made available for inspection by interested persons. Again, a Court Reporter is present and will prepare a transcript. If you want a copy of the transcript, you must make arrangements with the Court Reporter. We have a number of cards today, and when we get to the end of the statement, I will read them in the order that we are going to take them. And with regard to that, we will take cards as we always do in the Delta proceedings in the following order: Elected officials for the State, federal and local governments first; then representatives of State, federal and local agencies; then all parties in the order that your speaker card was submitted to staff, unless you have special time constraints which are noted on your speaker card. And even then, that could be difficult depending on how many folks we have that have special time constraints. We will do the best we can up here. We thank those parties who have participated in the Board’s proceedings and have helped the Board develop a plan that will afford reliable and reasonable protection for the estuary and all its beneficial uses. That completes the statement. Do any Board members have any statements they wish to make at this point before we proceed? Anything from staff or Mr. Pettit? All right. Then, I will read off the cards that I have and I believe there are at least 20 here, and this is the order that we will attempt to follow: Joint presentation from Club Fed; that is Roger Patterson, Wayne White, Jim Lecky and Patrick Wright. And then, Patrick Coulston, David Anderson, Glen Birdzell, Alex Hildebrand, John Herrick, Jeanne Zolezzi, Steve Macaulay, Ed Steffani. And this is a joint presentation; first is Chris Hyashi, Dan Nelson, Greg Gartrell, Dave Schuster from the Joint Water Users. And then, Alan Lilly, Christiane Hyashi, Thomas Zuckerman, Richard Golb. And then, Mat Bingham, Patrick Porgans, Jim Easton, William Johnston, Gregory Thomas, Gary Bobker, Jim Chatigny and Margaret Johntson. This is the order, and some people have asked for some accommodations and we will do our best to accommodate those individuals. I was told earlier that perhaps some of the members of Club Fed have not arrived yet for their joint presentation. Is that true? Is somebody here from Club Fed? MR. WRIGHT: The other people are not here yet. MR. CAFFREY: Would you like to be moved back one, Patrick? MR. WRIGHT: Yes. MR. CAFFREY: Okay, we will then move to the second card and that is Patrick Coulston from the Interagency Ecological Program. Is Mr. Coulston here? Good morning, sir, and welcome. MR. COULSTON: Good morning, Mr. Chairman and members of the Board. My name is Patrick Coulston. I am Supervising Biologist for the California Department of Fish and Game, Bay-Delta Division. I am also the Program Manager of the Interagency Ecological Program for the Sacramento-San Joaquin Estuary, commonly known as the IEP. The directors and coordinators of the IEP agencies have asked me to come before the Board today to make you aware of an effort now under way to support the Board’s current development of a water quality control plan for the estuary, specifically the monitoring program portion of that plan. The IEP which was established in 1970 by a Memorandum of Agreement is the collaboration of nine State and Federal agencies, including the California Department of Fish and Game, California Department of Water Resources, the State Water Resources Control Board, the U. S. Bureau of Reclamation, the U. S. Fish and Wildlife Service, the U. S. Environmental Protection Agency, the U. S. Geological Survey, and the U. S. Army Corps of Engineers. In January, 1995, the National Marine Fisheries Service accepted an invitation to join the program. The principal goal of the IEP is to provide for the collection and analysis of environmental data needed to understand factors in the estuary controlling distribution and abundance of fish and wildlife resources, thereby allowing sound management and regulatory decision making. Information gathered and disseminated by the IEP has played a prominent role in decision making by the Board in previous Bay-Delta decisions, including the development of D-1485 and draft Decision 1630. As you know, in mid-December, 1994, representatives of the State and Federal agencies and urban, agricultural and environmental interests signed an agreement establishing for a three-year period mutually agreeable protective measures for the estuary. As I understand it, this agreement is largely the basis for the December, 1994, Water Quality Control Plan. Since late December, representatives of the IEP have been working with policy level and technical level representatives of water and environmental interests to develop a mutually agreeable monitoring program to evaluate the protective measures and provide information for revising the measures in the future. This joint monitoring program development process has been divided into three separate but closely related efforts. First, the document specifying monitoring goals, objectives and strategies is being prepared to guide IEP monitoring programs development. This goal, objectives and strategy document exists in draft form and our hope was to provide you with this document today. However, the parties have not quite reached the point of mutual agreement on the content language. Our intent still is to submit a document acceptable to all parties to the Board before the March 10, 1995, comment deadline. I can provide copies of the present draft of this document to parties interested in commenting on it, and I can be reached at 209-948-7800 to accomplish that. Secondly, an effort is under way identifying designs, specific compliance monitoring and research elements or studies that are based on mutually agreeable goals and objectives contained in the document described before. In addition, as part of this effort, a broad list of general and specific research questions has been drafted and the questions are now being prioritized by the parties involved. Our present intent is to provide the IEP technical teams with these research questions and the goals and objectives document to use in designing specific monitoring study elements. The recommendations of the IEP technical teams will be reviewed by the IEP management and configured into a long-term monitoring program. The directors of the IEP have asked us to complete this process by September 15 of this year. The water and environmental interests have been invited to participate in the technical teams so that the teams’ recommendations reflect the concerns of these parties. Finally, a specific proposal for monitoring to support decision making by the Club Fed Ops group is being prepared. We expect that most of the elements of this program will be under way this spring. I should say that the urban and agricultural water users have taken the lead on preparing that Club Fed Ops group support document. In conclusion, I would like to say that the IEP is encouraged by the expanded collaborative monitoring program development process and believes that it will lead to the availability of better and more widely accepted environmental information of the future management of the estuary, and specifically, decision making by the Board. Thank you. MR. CAFFREY: Thank you very much, Mr. Coulston. Are there questions by Board members? Anything from staff? Thank you, sir. I am going to rely on the folks from Club Fed to give me a hand signal of some form -- okay, I see you waving me off, Mr. Wright. Let me know when your participants are here and we will take you next when that occurs. David Anderson, Department of Water Resources. Good morning, Mr. Anderson. MR. ANDERSON: Good morning, Mr. Caffrey, and thank you. I am David Anderson and I am representing the Department of Water Resources. Mr. Coulston spoke of what everyone knows about the December 15 consensus. Our comments will be brief. The Department fully supports this consensus and in that spirit we have been working cooperatively with the consensus group to fine tune the December, 1994, understandings and have worked productively, we believe, with both Club Fed and the Club Fed Ops group to implement the Principles of Agreement that was signed and executed on December 15. Specifically, we have shared our concerns and comments on the Board’s draft plan with these groups in order that they may be assimilated into consensus comments to the Board or into consensus-based revisions which the Board has undertaken. Therefore, the Department does not itself offer any comments on the objectives in the plan, but supports those modifications or adjustments as have been agreed to by the consensus group. A bit out of place here, but I believe that these things will be talked about and explained to the Board by the Club Fed folks, and as well, I believe, by the water users, a group that you will be hearing from later. I do have one comment that I want to make on objectives. The Department was requested to give an update on where we stand with respect to Suisun Marsh. The parties to the consensus effort indicated that of the many complex and important items addressed in the December 15 consensus, one area in need of some clarification was the objectives for the Suisun Marsh. And this clarification has been arrived at, I think, almost to a final point, but I think the parties to the consensus wish a final chance to review, but I think it does represent a substantial agreement. We discussed this through the offices of the Club Fed Ops group and it was concurred in by the four public agency signatories to the Suisun Marsh Preservation Agreement and a suite of agreements for marsh protection. And I have appended to my comments the essence of this agreement as to where we stand now and it provides that the objectives for S-97 and S-35, which are the far western marsh, would not become effective until October 1, 1997. I also note in passing it provides that the non- deficiency objectives for these four stations for November will be 16.5 EC. This comports with the standards in the existing marsh preservation agreement, which I believe was the intent of the Board in the draft plan. As expressly noted, the purpose for suspending the effective date of these stations is to provide sufficient time to allow a Suisun Marsh ecological work group to convene and discuss water quality objectives for these latter two stations. The work group, which was already discussed at some length in the Board’s draft plan on page 38, in our view, should also include EPA and the National Marine Fisheries Service, and I think it is time for a plenary review discussion of the water quality and public interest issues in the marsh and should have a broad-based group to undertake that effort in the next couple of years. The Department also supports the comments that Pat Coulston just made of the Department of Fish and Game as representative of the Interagency Ecological Program with respect to the monitoring aspects of the Principles for Agreement. That’s an ongoing process and we are supporting that process. The Department also supports the views expressed in the comments of the Joint Users Group on the institutional and legal framework of the Board’s planning process. Without getting into these in any detail, these are views which the Department has presented to the Board on numerous occasions, and most recently at the workshop on September 1, 1994. As I say, we are not going to repeat them here, but we do hope that their support and rearticulation by the larger universe represented by the Joint Users Group will be persuasive to the Board. The Department, finally, will be submitting comments on the program of implementation portion of the planning document and on the draft environmental report by March 10. In general, we concur with the approach taken in the program of implementation section of the draft plan, and we think that it comports with the Court of Appeals’ 1986 interpretation of the Porter-Cologne Act’s broad indication of responsibility for implementing water quality objectives. This is a minor point -- we think that in this regard there is a statement on page 1 that indicates that the water rights decision will provide for full implementation of the water quality objectives, given what the Board clearly recognizes in the program implementation, that there are things besides simply water rights, including waste discharge controls and actions by other agencies, and we think that while it is undoubtedly true that much of the implementation will occur through water rights actions, that will not necessarily be all of it, and I think that Chapter 4 in your draft plan expressly recognizes that. Those are our comments. If you have any questions, I will be pleased to answer them. MR. CAFFREY: Thank you very much. Anything from Board members? MR. DEL PIERO: Mr. Anderson, have you had occasion to review the submittal from Stockton East Water District? MR. ANDERSON: No, I have not. MR. DEL PIERO: Probably be good to read it. MR. ANDERSON: Certainly. MR. CAFFREY: Anything else. Anything from staff? Thank you very much, Mr. Anderson. We will now hear from the Club Fed group, Roger Patterson, Wayne White, Jim Lecky, Patrick Wright. Good morning. Is Mr. Lecky not going to be here? MR. PATTERSON: No, Mr. Lecky from Marine Fisheries is not here and he wanted you to know that lack of his presence in no way is an indication of lack of interest or support of the Marine Fisheries Service. He had some kind of a conflict. MR. CAFFREY: It must have had something to do with the fog. MR. PATTERSON: Mr. Chairman, members of the Board, Mr. Pettit, I am Roger Patterson and I will present the comments this morning of Club Fed. First of all, I appreciate your indulgence in the schedule. I will leave it to you to ask Wayne why he was late. Let me start by introducing the two gentlemen with me this morning. First of all you know Patrick Wright. He is with the EPA Region 9, San Francisco; and Wayne White, who is the State Supervisor for the Fish and Wildlife Service here in Sacramento. I have provided copies of our statement to be available to you, so I will merely hit on those areas we want to emphasize this morning. On December 15, the federal departments and agencies which constitute Club Fed were signatories, along with agencies of the State of California, water users and representatives of environmental organizations, of the Principles for Agreement on Bay-Delta standards between the State of California and the Federal Government. The Draft Water Quality Control Plan the State Water Resources Control Board has prepared is a reflection of the standards contained in those principles. The Bureau of Reclamation and the Department of Water Resources have agreed to operate the Central Valley Project and the State Water Project in conformance with the principles for the next three years. This is the period in which the State Board will be developing an implementation program for the Water Quality Control Plan. It is expected that this program will address all water right holders in the Central Valley and determine their responsibility to meet the plan. The Bureau would like to make it clear that it may not be possible or prudent to meet all the standards under all conditions, but we will make our best effort to do so. The Fish and Wildlife Service and the National Marine Fisheries Service, who have responsibility under the federal Endangered Species Act, have or will be modifying the biological opinions for winter-run chinook salmon and Delta smelt to reflect that the projects will be operating to these standards. The Club Fed agencies have been working with State Board staff and other interested parties to reach agreement upon interpretations of the standards in the draft plan and the principles. There are five principal areas that are actually under discussion. These include the striped bass water quality standard, the forecast for the San Joaquin flows, the X2 starting gate, the export limits during the San Joaquin River pulse flows, and the Suisun Marsh standards. We will continue to work with the various agencies and interested parties to reach agreement on these particular issues. We believe that we are very close to that agreement and either we or one of the Club Fed agencies will formally notify the State Board of the outcome of these discussions by March 10. I understand that Greg Gartrell of the Contra Costa Water District is going to provide a more detailed discussion of these issues in his testimony. The Club Fed agencies believe that the recommended actions in the draft plan have a great deal of merit and should be pursued. To the extent that the authorities under which our agencies operate and our funding allows us to do so, we will undertake such programs. The Club Fed agencies will be working closely with the State agencies and others to develop a monitoring program to address the needs and requirements of the new standards. We believe the Interagency Ecological Program is the appropriate vehicle to develop such a monitoring program and that integrated monitoring should be the goal, one that will meet not only the needs of the new standards, but also, aids in the efforts involved with the Central Valley Project Improvement Act implementation and the joint long-term State and Federal Delta planning process. In order to conform our operations to the new standards, the Bureau and the Department of Water Resources will be submitting shortly to the State Board a petition to modify conditions in the Central Valley Project and the State Water Project water rights that are inconsistent with conditions imposed by D-1485. In conclusion, the Club Fed agencies are firmly committed to the principles that we signed on December 15. We stand ready to assist the State Board in any way you desire. We will be happy to answer any questions. MR. CAFFREY: Thank you very much, Mr. Patterson. Are there questions from -- I presume the other two gentlemen, Mr. White and Mr. Wright, are here to answer questions? MR. PATTERSON: That is correct. MR. CAFFREY: Any questions from Board members at this time? I would just say that this is a pretty good synopsis of what we hear, perhaps by rumor because we are not in meetings, as you know, as members of the Board, but do you feel pretty much, Mr. Patterson, or any of the other gentlemen, that, if I understand you correctly, that by March 10th you will be submitting something in writing on these five very important points, that you will either give us some suggested word changes or give us some suggested interpretations of the words already there? MR. PATTERSON: I think that’s the outcome that we are looking for. As you know, we were working with everyone that has an interest, and hopefully, we can submit some consensus recommendations and conclusions on those. People are working hard, all with the same objective, so we believe that’s possible. MR. CAFFREY: Thank you very much. Any questions from staff? Thank you very much, gentlemen. We appreciate your being here. Our next speaker is Glen Birdzell representing the City of Stockton. Good morning, sir. Welcome. MR. BIRDZELL: Good morning, Mr. Chairman and members of the Board and Mr. Pettit. I have submitted this morning a letter from the Director of the Department of Municipal Utilities from the City of Stockton containing comments dealing with the water quality objectives on the San Joaquin River between Turner Cut and the City of Stockton for DO of six milligrams per liter, and for compliance schedules included in NPDES permits. The City of Stockton was issued an NPDES permit in October of 1994, which immediately placed it in the position of liability for possible violations of this DO objective. The findings of that permit indicated the City of Stockton would not be able to meet that water quality objective during the life of the permit. Additionally, the findings indicated that the City of Stockton was not the only reason for this water quality objective not being attainable. The City provided testimony during the permit process indicating that if the discharge of the City was removed from the San Joaquin River, indeed, the attainability of the six would still not be met. The City believes that the requirements in this NPDES permit placed an unreasonable and disproportionate burden on the City of Stockton and the metropolitan area to comply with this water quality objective. We feel that the modifications that we are proposing would accomplish three facts for the Board: One, the Regional Board would be given the authority to include compliance schedules in NPDES permits, and indeed, the Executive Officer of the Central Valley Regional Quality Control Board agreed that if you have the authority to place compliance schedules in the permits, he would gladly do so. We also feel that this modification would aid substantially in diminishing the need for the appeal that we currently have before the Board of that NPDES permit, and would aid substantially toward a settlement and make that more likely. Further, we feel if these modifications were made, that there would be additional consistency brought to the Board’s water quality planning process. If there are any questions, I would like to answer them. MR. CAFFREY: Thank you, sir. Mr. Stubchaer has a question. MR. STUBCHAER: Is your sole concern the DO in the receiving waters from your treatment plant? MR. BIRDZELL: There are issues around that bring that into the problem. MR. STUBCHAER: And if the DO in the receiving waters without your discharge met the standards, would you have a problem with your discharge? MR. BIRDZELL: It is more complex. It’s the DO objective and the various constituents in our discharge that bring us the problem. And we have done the modeling and testing indicating that if we didn’t discharge, this DO wouldn’t be reached. We are building facilities that will bring this into compliance, but we are ten years down the road from being able to comply, so a compliance schedule would seem reasonable at this point. It’s not that we aren’t addressing the problem currently and being proactive in addressing it, it is just that the Regional Board was not allowed to place a compliance schedule in the permit. They chose possibly to use other vehicles. However, those would raise the cost of construction considerably. MR. STUBCHAER: Okay. I was looking for a map here. Would you just briefly tell me where your discharge point is. MR. BIRDZELL: Highway 4, San Joaquin River. MR. STUBCHAER: Okay, thank you. MR. CAFFREY: Other questions? Mr. Brown. MR. BROWN: Glen, are you still considering reclamation and reuse? MR. BIRDZELL: We definitely are. We are approxi- mately 65 percent complete with a marketing evaluation of possible uses for reclaimed water in the area of the City of Stockton. In fact, last night we completed our first focused meeting with the agricultural community. MR. BROWN: Thank you. MR. CAFFREY: Anything from staff? Thank you very much, Mr. Birdzell. We have your submittal and we will take a look at it. Thank you. Alex Hildebrand representing the South Delta Water Agency. Good morning, welcome. MR. HILDEBRAND: Good morning, Mr. Chairman and members of the Board. I wore a tie today to impress you more than I did last week. MR. CAFFREY: You are always impressive Mr. Hildebrand. MS. FORSTER: Very handsome. MR. CAFFREY: She never tells us that. MR. HILDEBRAND: I am here representing the South Delta Water Agency, Delta Water Users Association and Reclamation District 2075. I will keep my remarks brief in part by referring to later remarks that you are going to hear on behalf of Stockton East by Jeanne Zolezzi, and perhaps the Central Delta Water Agency by Tom Zuckerman. We are in substantial agreement with what they will say. We also may submit written testimony later on in the light of today’s reactions. As you know from previous discussions, we are very much concerned about the potential consequences of establishing fish flows for three and a half months of the year without requiring any flows for the rest of the year. This has the potential then for degrading the flows and the water quality in those other months of the year, and that then could have a substantial impact on prior rights and on the resident fishery as well. The analysis in the plan and in the environmental planning that goes with it presume that there will be a coordination of the release of westside drainage into the river via Salt Slough, but you declined last week to require the Regional Board to do that. Consequently, there seems to be a dichotomy there between what you are saying in this control plan and what you did last week relative to the Regional Board. That concerns us. You have heard a lot about this so-called consensus agreement, but I remind you that neither the people I represent nor any of the districts on the east side of the valley all the way from the Friant water users to the South San Joaquin Irrigation District are not parties to that agreement. They were not consulted at all, and furthermore, there was no impact analysis of what would happen to their communities, the urban users, the agricultural users and so forth along those tributaries and the main stem of the river if the agreement was carried out. This seems to be a rather major gap in the analysis supporting the control plan and the Environmental Impact Report for your current designation. Mr. Herrick can address in greater detail than I can exactly what is missing there to support what you are proposing. Now we understand that you aren’t going to implement the Vernalis fish flows for three years until you have your water rights proceedings and decide how it will affect the water rights of the various parties, but the Bureau is committed and order, or condoned or something by this Board to go ahead and provide those flows in the interim. We don’t see how you can permit them to do that without some oversight from you as to how they impact these other interests in the process of meeting this commitment they have made. We suggest that you could at least partly get around this problem if you added one more footnote to the flow requirement on page 17 where it refers to the Vernalis flows. If you then related that to an additional footnote which said: Water released to provide these flows shall not result in subsequent violation of the Vernalis water quality objective and shall not adversely affect the ability to maintain downstream prior rights, and we could add the public trust right in the other months of the year to that. We earnestly urge you to add such a footnote to provide some limit on the manner in which the Bureau will meet its three-year commitment. So that’s all I have to say unless you have some questions. Mr. Howard has this wording I just read to you. MR. DEL PIERO: I was just going to ask if you submitted that. MR. HILDEBRAND: I have some additional copies if you want them. MR. CAFFREY: Are there questions of Mr. Hildebrand? Anything from staff at this time? All right, thank you very much, Alex. Good to see you. Next is John Herrick representing the South Delta Water Agency as well. Good morning, sir. Welcome. MR. HERRICK: Good morning. My name is John Herrick and I am representing the South Delta Water Agency. I won’t take too much of your time. As Alex said, we join with Stockton’s proposed comments and South Delta. Just real quickly, in our opinion, the plan and the EIR are deficient in two aspects: The first is that the EIR does not evaluate or examine the effects of meeting the required flows during the interim period over a multiyear period. Based on our review of those documents, we have concluded that meeting the required flows in any one year will most likely mean that the water quality flows will not be met in that year, and indeed, may result in there being insufficient carryover in the reservoirs to meet the following year’s flow requirements. Hence, we believe the environmental report does not examine the contingency that two of the goals, of the goals of the plan, flows and the water quality, cannot be met at the same time. Failure to meet either of these goals will significantly affect not only fish populations, but also, the in-channel habitats, the riparian rights holders, and all sorts of other interests. We see no examination in this report of the mechanics of meeting these flows and those effects, and how they affect all the parties. The second way that it is deficient is dealt with more by the Stockton East submittal, and we believe that the plan is insufficient in that it doesn’t examine how the flows are to be met prior to the implementation of the plan, this interim period. This is relevant in that the agreement in the plan commits the feds to meeting these flows in the three-year interim or until the water rights issues are resolved. And in order to meet those flows, the manner in which they do it will necessarily affect all the various water right holders in the system. We don’t believe the Board can avoid addressing this interim period just by saying the feds are going to be dealing with that because of the effect on all water right holders. Again, this point is more closely examined by Stockton East in their information. That’s all I have. Thank you. MR. CAFFREY: All right, thank you, Mr. Herrick. Are there questions? Anything from staff? MR. HOWARD: No. MR. CAFFREY: Thank you, sir. Jeanne Zolezzi from the Stockton East Water District. Good morning and welcome. MS. ZOLEZZI: Good morning. My name is Jeanne Zolezzi and I am representing the Stockton East Water District. I have heard much this morning about the much heralded framework agreement. Fortunately, however, you have also heard from Mr. Hildebrand and Mr. Herrick so that you know that not all parties were at that table when this consensus was reached. In fact, for many of the districts who were not at the table, what we have discovered in reading the framework agreement and in reading the Draft Water Quality Control Plan is that consensus was reached by compromising our water rights. We have two major points that I would like to make today regarding the draft plan. I would also like to put on the record that we will be submitting our comments on the draft environmental document in writing later. The first point is on the San Joaquin River flows and the draft plan indicates that within three years this Board will allocate responsibility for those flows in a water rights phase. As Mr. Hildebrand and Mr. Herrick mentioned, our concern, however, is with the sentence in the draft plan that the U. S. Bureau of Reclamation shall provide these flows in accordance with the biological opinion for Delta smelt during this three-year period. This sentence must be removed from the draft plan. As you well know, this is a water quality plan. It is not a water rights allocation. Therefore, a statement such as this which actually assigns the obligation to meet the flow standards even on an interim basis is inappropriate in the water quality document. It is true that the United States purports to provide these flows in the framework agreement. We are aware of that. We do not believe they have the authority to do that and that representation by the United States will be challenged. What we would recommend is this Board not get involved in that dispute and not purport to include water rights allocations in the Draft Water Quality Control Plan. There are many reasons why we object to the United States agreeing to provide those flows. It is our understanding that the U. S. purports to provide those flows from the New Melones project and the Stanislaus River. There are numerous reasons why the United States does not have the authority to do that. We believe it is important that I cover those briefly so this Board understands why it is inappropriate for this particular sentence to be included in the draft plan. The first is the stated place of use in the permits granted to the United States for the New Melones project do not include the purported places that this water will be used in the draft plan, which includes the Suisun Bay and the Western Delta. That is not a place of use for New Melones water. The Bureau has not attempted to get that place of use changed since it filed a consolidated place of use many years ago and has not pursued it since. The second issue is that the water rights for New Melones specifically state that before any change in the project determined by the State Board to be substantial, permittee shall submit such change to the Board for its approval. The United States has not done so, despite the fact that using New Melones water to meet these flow requirements would take more than the safe yield of the project as is indicated even in your draft EIR. Next, the framework agreement and the draft plan state that the United States will provide the required flows in accordance with the biological opinion for Delta smelt. Again, this is somewhat confusing. The flow requirements in the draft plan greatly exceed the flow requirements from the San Joaquin River for Delta smelt as set forth in the Delta smelt biological opinion that is in existence now. So, the statement itself is misleading. Is the United States going to provide the flows up to the requirements of the Delta smelt opinion or in excess of that opinion in those requirements. Next, the dedication of the flows of New Melones to meet the requirements for Delta smelt is inconsistent with the language in the Delta smelt opinion itself. In that biological opinion, the Bureau is pointed toward different sources of water to meet the San Joaquin flows including temporary water supplies and Friant Class 2 water. There are also other sources of CVP water that are available to provide flows in the San Joaquin. It is our understanding from conversations with the Bureau that they have failed to look at any other option but New Melones, and they should be forced to do so. Finally, dedication of flows from New Melones to meet the requirements of Delta smelt and the San Joaquin River flows violates the Central Valley Project contracts on the New Melones project. And as you all know, this and other items are the subject of litigation and will be determined in that venue. But for all these reasons, again, we believe that this Board should not include any statement in the draft plan regarding the Bureau’s stated intention to meet flows for the water quality objectives even in the interim period. The second point that we would like to make is on the Southern Delta agricultural salinity objectives and we obviously had a long discussion on this last week. But again, our points are very similar to that which we made last week. The plan states that implementation of the objectives will be accomplished through the release of adequate flows to the San Joaquin River and control of saline agricultural drainage to the San Joaquin River and its tributaries. Despite this statement, we again have no idea how this Board intends to implement that statement. As you know, this Board failed to require the Regional Board just last week to adopt a water quality plan for the San Joaquin River which addressed salinity objectives in the lower San Joaquin River. What we find most injurious is that the major focus in this draft plan in addressing the problem of salinity in the San Joaquin River is under the heading of the Recommendations to Other Agencies. The plan goes on and on about what other agencies should do to address this problem. The point we would like to make is that no other agency has as much direct authority over discharges of saline water into the San Joaquin River as this Board and the Regional Water Quality Control Board that is directly under this Board’s authority. The draft plan states that control and limited discharges of agricultural drainage water to the San Joaquin River must occur in a manner that meets water quality objectives, and the draft plan suggests that waste discharge requirements may be an appropriate tool to use. Again, we find that statement curious because just last week this Board failed to require the Regional Board, Central Valley Regional Board, to implement the tools to use waste discharge requirements to control this problem. They have no salinity objectives in the San Joaquin River in their basin plan and they cannot utilize waste discharge requirements which are suggested in the draft plan to control that problem. If this Board does not take a leadership role in controlling the problem of salinity in the Southern Delta, we think that its direction to other agencies and boards to take such action really rings false. We cannot expect other agencies with less authority over that issue to take action when this Board and the Regional Board under it have failed to begin that process. And, in closing, the draft plan purports to achieve water quality objectives by also achieving certainty to water users in California. With regard to the New Melones project, the only certainty that we have realized is that there will be no water available for the contractors on the New Melones project either in the interim three-year period or unless something is done in the long term for the implementation of this plan. We would hope that the language about the Bureau providing those flows in the next three years could be taken out, and obviously, we could fight this battle during the water rights phase where it is appropriate to do so, and again, we would urge this Board to take action regarding the salinity problem in addition to addressing that problem to other agencies and boards. Are there any questions? MR. CAFFREY: Thank you. First, Ms. Forster, and then Mr. Brown. MS. FORSTER: All I wanted to say for the record is in adopting the basin plan last week, the Board had strong recommendations that we would address this problem and we are in the process of writing a formal letter to the Regional Board making that a priority. So, I think that should be clarified, that we are very concerned and we are trying to take appropriate action with the Regional Board to look at these issues. MR. CAFFREY: Mr. Brown. MR. BROWN: Jeanne, you made a statement that the water quality requirements would take the entire safe yield of New Melones. Does that include the Tri-Dam project which New Melones also regulates, the 300,000 for Oakdale Irrigation District? MS. ZOLEZZI: It is difficult to say at this point. You don’t have actual numbers. There are figures in the draft environmental plan. What we do know is that the projected flows for the San Joaquin River could not be met from the safe yield of the New Melones project without those flows that the Bureau has reserved for Oakdale and South San Joaquin Irrigation District. Whether or not the Bureau would attempt to go beyond the safe yield of Melones and dip into those prior rights, I have no information. We do know that the yield of New Melones project without that is insufficient to meet these flow requirements. MR. BROWN: Okay, so that’s what you were speaking of, was the yield without the Tri-Dam project? MS. ZOLEZZI: It is insufficient, yes. MR. BROWN: Thank you. MR. CAFFREY: Any other questions? Anything from staff? Thank you very much, Ms. Zolezzi. We appreciate your comments. I am going to take one speaker out of order who has a time constraint, Ed Steffani, also from the Stockton East Water District, so perhaps that is appropriate at this point anyway. MR. STEFFANI: I was sort of counting on Alex not wearing a tie. MR. CAFFREY: Do you want to take a couple minutes to borrow his? Good morning, sir, welcome. MR. STEFFANI: Good morning, Chairman Caffrey and Board members. My name is Ed Steffani, General Manager of Stockton East Water District. I will be very short because Alex and Jeanne have both covered the consensus thing. There was no consensus. The second point, we might be able to solve a lot of the San Joaquin River quality problems by adding another measuring point in addition to Vernalis. If we had a quality and flow station further upstream near the Merced, that might go a long way toward solving the problem. Finally, let’s not spend the next three years trying to find an equitable way to dilute the pollution coming down the San Joaquin River. Let’s spend that time instead to find a way to eliminate the pollution. Thank you. MR. CAFFREY: Thank you, Mr. Steffani. Are there questions? Thank you, sir. We will go back to the regular order now, Steve Macaulay, General Manager of the State Water Contractors. Good morning, welcome. MR. MACAULAY: Good morning, Mr. Chairman and Board members. Mine is a me-too statement. Many of our members were actively involved in the development of the standards embodied in the Principles for Agreement on December 15, 1994. Our Board of Directors certainly has supported that effort all along. Our Board of Directors is in full support of the comments you will hear today from the joint California water users. MR. CAFFREY: Thank you, Mr. Macaulay. Any questions? All right, thank you, sir. We will now have a joint presentation from the Joint Water Users, Chris Hyashi, Dan Nelson, Greg Gartrell, Dave Schuster and Walt Wadlow. Are these gentlemen here? They are. Welcome. MS. HYASHI: Good morning, Mr. Chairman and Board members. I am here in the shoes of Mr. Moran in his capacity as the Chairman of the Board of Representatives of the California Urban Water Agency, who was unfortunately unable to be here to present comments today. These comments were compiled by the Joint California Water Users, which is a coalition of urban and agricultural interests from north and south serving more than two-thirds of the State’s urban population and substantial portions of the irrigated farm land. These comments to the Draft Water Quality Control Plan and Draft Environmental Report represent a continuation of the joint efforts of last year which culminated in the historic consensus between urban, agricultural, environmental and regulatory communities which were embodied in the December 15, 1994, Principles for Agreement. In addition to my own comments today, the joint agencies will also be represented here today by Mr. Dan Nelson, who will discuss the ongoing effort of the operations group; Mr. Dave Schuster, who will discuss water transfers; Mr. Greg Gartrell, who will discuss monitoring efforts; and Mr. Wadlow, who will discuss Category 3 issues. The joint agencies wish to commend the State Board and its staff on the tremendous amount of effort that has gone into the Draft Water Quality Control and the Draft Environmental Impact Report. The plan provides essential technical clarification to the relevant aspects of the Principles for Agreement and the Draft Environmental Impact Report is generally thorough for the purpose of compliance with the California Environmental Quality Act. The joint agencies strongly encourage the Board to move forward with adoption and implementation of the plan and to that end we have combined our technical and legal resources to review and provide detailed comments to the plan and the Draft Environmental Impact Report. These issues have all been thoroughly discussed with the Board’s technical and legal staff, and these discussions have been very constructive and productive, and the written comments submitted to the Board yesterday are intended as clarification of these discussions, and by the way, our copies for the public of these comments were exhausted early this morning but more will be provided outside the door here at some point during the morning, if anyone wants additional copies. I will spare the Board from a detailed verbal presentation of the issues that are contained in the comments, but representatives of the joint agencies are available to take any questions today. The joint agencies are continuing to move forward as a coalition to maintain consensus in this process into the implementation phase, and with that, I would like to turn the discussion over to Mr. Gregory Gartrell. MR. GARTRELL: Thank you. Mr. Chairman and members of the Board, I am Greg Gartrell from Contra Costa Water District, and I am with the CUWA and Ag group. The CUWA-Ag group has been actively working on development of the monitoring plan to meet the requirements of the Principles of Agreement and be consistent with the Draft Water Quality Control Plan. In this process, the CUWA-Ag group has been collaborating with State and Federal agencies and other interested parties. While we are not prepared to make a recommendation to the Board today, we hope to have one by March 10. The monitoring effort covers several areas of importance; first, compliance monitoring to assure that the standards are being met. This is currently being carried out and no significant changes are envisioned for this portion of the program. Second, a real-time monitoring program must be developed to assist in the key decisions that will need to be made by the operations group with respect to modified operations of the project under the Principles of Agreement. There’s an intensive effort under way to develop a plan that can be implemented this year and that will integrate with the longer-term needs. Third, we are working on a long-term program designed to measure the effectiveness of the standards. This program will provide necessary information for the triennial review and will be used in developing the long- term solutions for the Delta. Some of the elements of the long-term program may be refinements to existing studies and monitoring programs. The existing programs with some refinements are, of course, being continued this year, so we will not lose valuable data in 1995. In order to make our total monitoring program responsive and cost effective, it is envisioned that peer review and coordination with other programs will be made integral parts. We expect to make recommendations to the Board as to how the program should be structured by March 10. Next is Dave Schuster on water transfers. MR. SCHUSTER: What we are doing here, as was stated, we are going to continue our efforts to have people in the implementation of this process, direct discussions with others on the monitoring, and what I am going to talk about now is transfers and what we will talk about as far as Category 3. This is intended to give you sort of an update of where we collectively are. As far as transfers, I can be very brief. As you know, the December 15 agreement did not deal directly with the transfers since your plan does not either. Since we are operating to the December agreement, it does affect our ability to transfer in terms of how much pumping capacity is available and so on, and, of course, your plan when implemented would do the same. What we have done is form a water transfer committee, the CUWA-Ag people have, and invited others to come, which they have. Your Board, your staff has participated and been very helpful in that process. We have just got started. We are basically trying to do two things; identify the amount of water under certain water year type conditions by month that can be transferred within the constraints of the December 15 agreement and your plan, better understand what we did to ourselves in a sense. I think so far it looks like we are better off than before the plan in terms of transfers. What has to happen gets fairly mind boggling in a regulation sense -- what has to go to the Board, what doesn’t have to go to the Board, trying to think through the process of implementation of a particular transfer and looking at what happens if somebody wants to try to propose a transfer that would be beyond the agreement or cause noncompliance, which would have to be handled by the Board; in other words, on a case-by-case basis. We are not advocating that, so we are trying to think through those three different areas. That’s pretty much where we are. We have made progress. The last meeting went three or four hours and most of it was trying to work together to figure out what the problem is, and it gets very confusing in terms of what’s the Board’s authority and technically what you can do and what you can’t do, so we are sort of in that stage. MR. CAFFREY: Thank you, Mr. Schuster. Mr. Wadlow. MR. WADLOW: Thank you. My name is Walt Wadlow. I am Principal Engineer with the Santa Clara Valley Water District. Mr. Chairman and members of the Board, what I would like to do this morning is very briefly update you on the progress that has been made relative to Category 3 implementation. As you probably recall, Category 3 is the terminology that was used in the December 15 principles statement to refer to non-outflow factors. I wanted to use the graphic that is up there now, the single graph. It is a very busy one but I will attempt to walk you very quickly through the flow of events from the December 15 principles. As you probably recall, those principles assign to the Joint Water Users the responsibility for conducting an open and collaborative process which would lead to the development of an implementation plan for Category 3 measures. The principles also articulate an initial financial commitment with regard to Category 3. In response to that commitment in the principles, the Joint Water Users established a Category 3 ad hoc work group which is a 14- member work group. It has representatives from the water users, the environmental community, the Club Fed fishing interests as well. That group has met four times to date. Those are open meetings. It’s intended to be that open and collaborative process called for in the principles. There are two main functional areas that that work group has had work done for them in. The first is in the institutional side of Category 3, and that is looking at alternatives for setting up an institution to collect, hold and disburse funds associated with funding of Category 3 measures. The second main foundational area is to actually look at the measures themselves. To date, through interviews of over 70 people and a solicitation of projects, we have received somewhat in excess of 500 suggested projects for Category 3. Those projects are at this point being assembled into a database which will be made available to the interested community at large and used as the basis for developing potential Category 3 measures for implementation. The intent of both of those task groups is to be open to all interested parties. Essentially when I or someone receives a phone call, we simply add that individual that is interested to the appropriate area. Our intent is to develop an implementation plan document by the time the State Board goes final with your plan. We understand the target date for that now is March 31, 1995. Our comments to you; that is, the Joint Water Users’ comments indicate that we will work with the State Board staff on the linkage between the Category 3 efforts that we have under way and the way that Category 3 is discussed in the water quality control plan, and we have also asked that language be included in the plan which recognizes that this effort will be continuing beyond the March 10 deadline for comments. MR. CAFFREY: Thank you, sir. MR. NELSON: My name is Dan Nelson. I am the Executive Director of the San Luis and Delta-Mendota Water Authority. By way of summary and conclusion, I would like to echo Chris’s compliments to the State Board on their efforts in preparing and developing the draft plan, and also, I would like to take this opportunity to thank the State Board for creating an atmosphere that allows the water users to get together which led to the December 15 agreement ultimately. As you know, the stakeholders were very much engaged and the joint agencies were very much engaged in the development of the December 15 agreement, and as you have heard today, we remain committed to continue our activities to assist the State Board and California and fed agencies to implement the December 15 agreement. I would like to summarize what you have just heard today. Our focus is going to be post-December 15 agreement and it is on the issues that we have just talked about, and that’s again the development of Category 3 issues, the development of the monitoring program, participation in the operations group, trying to scope out how we do transfers in the context of the Bay-Delta agreement, and also, we have begun working with representatives of the upstream water groups to see if we can put together some consensus effort to deal with the water rights phase, Phase 2, and I, though I heard on your list that Rich Golb would be testifying a little later, and I will defer to him to go into more detail on that. I think it is noteworthy to also say that we have had tremendous cooperation post-December 15 from Federal and State agencies, your staff, incorporating the stakeholders through the implementation and decision-making process, and we are very encouraged by that, and commit to you that we will continue working with the appropriate agencies. MR. CAFFREY: Thank you very much, Mr. Nelson. MR. NELSON: Roger Patterson also said that Greg Gartrell would touch on the five remaining issues, and Greg is available to do that. MR. GARTRELL: Thank you. Roger mentioned the five issues and I would like to go through them briefly to give you an understanding of what they are and where we are at. The first involves the San Joaquin River forecast for determining the minimum flows at Vernalis. The draft plan used a 75 percent exceedence level. This was not specified in the Principles of Agreement and in examining the data, there was some concern that the data that have been available in the past were in need of update and there hadn’t been a thorough analysis, and there still isn’t. This has been discussed with a number of parties and was discussed in the Cal-Fed operations group last week. The consensus there was that the biological opinions use a 90 percent forecast, that the water quality control plan retain the 75 percent level with the understanding that that level would have to be examined in the water rights proceedings and in the triennial review when we have a better data set available and have better information on what the effects of that forecast would be. The second involves the alternative compliance for the X2 standard. This is touched on in the Principles of Agreement, that the concept of the X2, the two parts salinity, actually be attained at the confluence at the beginning of February. The Principles of Agreement call for resolution of this consistent with the water requirements in the agreement, essentially that there be no net water cost for that. A proposal that might meet those requirements is under discussion and appears near resolution. We expect to have a final recommendation on that prior to March 10. A third one is the lower San Joaquin River salinity standard, or the striped bass spawning standard. The Joint Water Users proposal cited in the Principles of Agreement was the 1991 Water Quality Control Plan which sets salinity levels at Antioch and Prisoners Point. The Draft Water Quality Control Plan proposed a Jersey Point to Prisoners Point standard. This, again, was discussed in the Cal Fed operations group and the consensus there was the standards be set in April-May at .44 millisiemens per centimeter level from Jersey Point to Prisoners Point for wet, above normal, below normal and dry years; that the standard not apply in critical years, protection being provided by the X2 standards. And, again, I think there was good consensus on that one. The fourth one is the Suisun Marsh salinity that Dave Anderson discussed a little earlier and I think that that is nearing resolution. And the final one involves the export levels during the San Joaquin pulse flow. The Principles of Agreement and the draft plan call for export no more than the inflow at Vernalis. The question that arose was over the purchase of water for flow augmentation and the levels of flow that might be desired relative to the export levels. The Draft Water Quality Control Plan allows the export levels to go below the level of Vernalis flow in the provisions of the Principles of Agreement, and consequently, in this one I think that the issue is not one that requires a change in the plan, but can be addressed in the operations group or in the biological opinions. MR. SCHUSTER: Just for the Board’s information, you probably know this, but what Greg just went through is very accurate and correct, of course. I just want to give you a sense in terms of the process. As Greg said, we decided to use the Ops group and what Greg has done is to form a task for that group, bringing people together, and that is why Roger Patterson referred to Greg. Your people are heavily involved in it, Tom Howard is heavily involved. So it is a cooperative effort and is not one that we are doing alone. It is one in which we just helped. MR. CAFFREY: We appreciate your willingness to involve all the parties. We think you are continuing this effort of consensus and it is certainly something that the Board has been supporting, and we are still supportive of that concept and hope you continue along this path. So, I thank you all for your presentation. Are there any questions from Board members? MR. BROWN: You have participated excellently in helping to identify the water quality requirements and relative demand, and I see in your task group here, your potential Category 3, that includes things such as water transfers. Does it also include other options that are being considered in the CVPIA right now, the charge that the Secretary of Interior has to restore those quantities of water back to the CVPIA through various options of conservation, reclamation and reuse? Are you involved in that at this time or will that come later? MR. WADLOW: One of the things that we recognized early on was the close linkage between Category 3 and not only the CVPIA restoration specifically, but the San Francisco estuary project as well, because all of those address projects that fall within that same arena. To date the coordination there has been attempted essentially through communication and dissemination of the same types of ideas and projects that we are considering. It has been suggested that at some future time, there should be more careful consideration to actually linking those more closely in terms of the decision-making process, and the object of that, of course, would be to make sure that the funds that are spent are spent in the most effective manner, and that you don’t create a situation where you have an overlap trying to address essentially the same types of elements since they all fall in the Category 3 realm. MR. BROWN: The early fear this Board had and some staff members had was that those options would be considered at some later date and they would trail to the point to where they could not be as supportive to help resolve the issue, as if they were brought along on a parallel track. In discussions the other day with some people that are working on these considerations at Jones & Stokes, I understand they have advanced that track, so to speak, to where it will be considered early in the CVPIA, and it may be that the information developed through that analysis will be helpful in your endeavors, plus the CVPIA, of course, is limited to the CVP study area. And many of those options go way beyond just that study area itself, throughout the state, in fact. So, I encourage you to broaden your horizons to include those options, too, beyond the CVPIA. MR. WADLOW: We would certainly welcome additions in any of those areas where they bear on anything clearly germane to Category 3. MR. BROWN: Good. MR. CAFFREY: Anything else? Mr. Del Piero. MR. DEL PIERO: Who is representing the fishery industry group? You indicated there was someone repre- senting them. MR. WADLOW: Specific individuals, Jim Crenshaw and Nat Bingham are both participating in that particular work group to bring both the sportfishermen to the table as well as the commercial fishing industry. MR. DEL PIERO: Thanks. Who is preparing the budget selection criteria? What standards are being used for the preparation of those criteria? MR. WADLOW: What we attempted to do is really to do a two-step process in terms of putting together that selection of criteria. The first was to look out there at a lot of existing work that has already been done to the BDOC process and other processes in terms of identifying good selection criteria for looking at Category 3 measures. The other effort that we have had under way is to try and work both with the work group, and additionally, with one of the task groups and other interested parties who have come to us and said, we would like to participate in the development of the criteria that could be used for the selection of the project. We are at the stage now where we have our first cut, if you will, at a set of criteria that could be used to evaluate projects looking both at biological benefits, feasibility in terms of implementation, support for the projects, ability to finance, and really, we have just put together our initial cut on what that set of evaluation criteria might look like. MR. DEL PIERO: Can you tell me about the ability to finance that? MR. WADLOW: Obviously, you have put your finger on the most problematic aspect associated with all Category 3, and that is determining the source and the mechanism for the funding of the Category 3 measures. The principles document made an initial financial commitment on behalf of the water users community which was guaranteed in the principles by Metropolitan Water District. What we are in the process of doing now in the Category 3 work group is attempting to put together a short-term mechanism via something like a memorandum of understanding, as well as a long-term process for collecting, holding and disbursing funds. Those are the vehicles. Now, getting the people to utilize the vehicles, obviously, is the key step in actually bringing money to the table. The principles indicated that the funding would be the result of a combination of not only water user money, but State and Federal appropriations as well. And so, obviously, the challenging effort that’s before us now is to figure out how that mix works and how the vehicles are developed that we use to bring those to the table. MR. DEL PIERO: At this point, that’s not resolved? MR. WADLOW: At this point, that is not resolved. No individual or agency other than Metropolitan that I am aware of actually signed on the dotted line for granting money. MR. DEL PIERO: Thank you. MR. CAFFREY: Questions from staff? Thank you all very much for your participation, and your continuing efforts are appreciated. Next we have Alan Lilly representing Yuba County Water Agency. Good morning, sir. MR. LILLY: Mr. Caffrey and members of the Board, thank you very much. I am Alan Lilly of the firm of Bartkiewicz, Kronick & Shanahan, appearing for Yuba County Water Agency. As you know, we also represent other agencies in the Bay-Delta proceedings. I am going to talk about some things a little different than what has been discussed so far this morning. First of all, I want to send out a confidence. We don’t always agree with everything this Board does. As a matter of fact, we usually have some disagreements, but I think as a matter of course, you did have the Principles of Agreement to build on which was a major starting point, but one thing I am happy to see is the recognition of non-water measures and the importance of those to solving the Bay- Delta problems, particularly pages 30 through 38 of the draft plan. We have been harping on this throughout the last summer, that it will definitely take more than just higher flows or changes in water quality in the Delta to cause the reversal in the decline of the Delta species, and I appreciate the fact that you not only recognized it, but have gone into great detail to address that. I hope that this recognition on the Board’s part will be followed up with follow-up actions by the other agencies because it just can’t be solved by this Board alone. It’s certain the Board plays a major role, but it’s going to take cooperation with other regulatory agencies. I won’t comment on implementation. We, obviously, will be talking about that if we get to the water rights hearing. We still have hope that there will be positive development in that regard. We still have concerns about the respect for the area of origin statutes but I will leave that to another day. I do want to note that we are pleased to see that the Principles of Agreement did explicitly recognize the importance of area of origin protections in any implementation process. What I would like to focus my comments on today is one proposed objective in the draft plan, the salmon protection objective on page 16, and I just made a copy of it here which I will put up on the board. As you can see, it states Narrative Objective and simply states: Water quality conditions shall be maintained together with other measures in the watershed sufficient to achieve a doubling of production of chinook salmon from the average production of 1967 through 1991 consistent with the provisions of the State and Federal law. My understanding is that this is basically carried over from a sentence and I think it is Appendix B of the Principles of Agreement. MR. DEL PIERO: Actually, it’s a reflection of the statute adopted by the State Legislature about four or five years ago. MR. LILLY: That is correct. There is the salmon steelhead and anadromous fishes protection act, and there is a similar protection in the Central Valley Project Improvement Act. However, my concern is, I think there are some great problems with carrying that over to the water quality control plan and I will just mention them real quickly here, three specific concerns. First of all, it is unclear what this means. Is it supposed to mean that the plan is asking for some specific water quality objectives other than the very specific numerical objectives that are stated in the plan, or is it intended to be simply an affirmation or belief that those other specific objectives will achieve this doubling? Second, I think it is unrealistic. Water alone, I think everyone recognizes, doesn’t double salmon populations. We went through detailed testimony about this point on the Yuba River where there had been probably the most extensive IFIM work of almost any of the -- at least on the Sacramento Valley Rivers, and there was no evidence, particularly not from Fish and Game or anyone else, that their proposals would cause doubling or, in fact, any increase in the average salmon population, and their IFIM which indicates to the contrary, that the existing flows already were at or close to the peak habitat requirements for most of the life stages. And it appeared that the flows they were asking for might actually be on the declining end of those curves, so I am concerned about the State Board adopting an objective that is not realistic. Third, I think this objective may be unreasonable and we will follow this up with our written comments, but Section 13241 of the Water Code, which governs the water quality objectives, has some very specific reasonableness requirements, and if the intent of this objective is to require huge flows for questionable benefits to the salmon species, that would be unreasonable and I think there would be a mistake in this Board adopting that. I just want to note the Principles of Agreement, as I mentioned, do mention this doubling goal, and Mr. Del Piero has correctly pointed out provisions in the State and Federal law that mention that. But none of those provisions say it should be put verbatim into a water quality standard, and I think there’s some good reasons for that. It is very simply stated because a water quality standard alone won’t do the job. I think it is good that the State and Federal agencies have this goal and are working toward it, but I think we need to recognize if it’s achievable at all, it would take a variety of measures and simply just shouldn’t be put in a water quality control plan. I just want to go back to 1978 briefly. As you all are aware, it was the water quality control plan adopted in 1978 which ultimately led to D-1485. The State included various flow requirements and other operational matters called water quality standards that were transmitted to EPA under the Federal Clean Water Act. The result of that, just to summarize very briefly, was 17 years of legal battles as to what authority EPA had to regulate flows versus what promises the State had going into Section 101(g) of the Clean Water Act and so forth. I think it is a very positive sign and it appears that that legal dispute between this Board and EPA has been resolved, or at least put on hold, hopefully put on hold for a long time. I think it would be a mistake to send a standard like this to EPA because it might start another whole round of similar legal battles, and just put very simply, if three years from now we haven’t seen a doubling, I think that there’s a very strong risk that EPA will come back to the Board and say, your standards which are now a part of federal law, water quality standards in the Clean Water Act, and are subject to review by EPA, have not been achieved and, therefore, some further action is necessary. So, just to be clear, I don’t object to the concept of the goal of doubling. I think that is a laudable goal to the extent it is reasonable to achieve, and we should work on it. I think it is a whole different matter and it would be a serious mistake to put something like that in here, and frankly, I don’t think the Principles of Agreement require you to do this. I think this was listed as the goal and not a specific water quality control standard that was supposed to be part of the plan that this Board adopts to carry out that agreement. So, with that, I would be glad to answer any questions and I will follow up before March 10th with written comments on this plan. MR. CAFFREY: Thank you, Mr. Lilly. We appreciate that. Are there questions from the Board members? Anything from staff? All right, thank you, sir. Good to see you. Next we have Chris Hyashi again representing now the San Francisco Public Utilities Commission. Good morning, again. MS. HYASHI: Good morning. I had to step outside and get my other hat. I wanted to present these comments on behalf of the San Francisco Public Utilities Commission, which is a signatory to the comments provided today by the joint agencies. In addition to those comments, however, San Francisco would also like to submit the following brief comments to the Draft Water Quality Control Plan, and the accompanying Draft Environmental Impact Report for the purpose of today’s hearing. San Francisco will be submitting more detailed comments prior to the March 10 deadline. The Principles of Agreement represent the first important step towards resolving Delta problems. It embodies the concurrence of the north and south as well as urban, agricultural and environmental interests in the State of California. This consensus process should provide a model for addressing other outstanding Delta issues such as allocation, long-term policy issues and long-term environmental protection, and creation of reliable water supply at a reasonable cost. The principles did not attempt to address all Bay- Delta related problems, however. Implementation, allocation of responsibilities for meeting standards and biological justification for measures to protect endangered species are all subjects that remain to be addressed. Future actions by the Board and other interested parties must be directed toward resolution of all these issues. I would like to go over a brief list of preliminary concerns by San Francisco, but before I do so, I would like to join the other commenters who have commended the Board and staff in the preparation of this water quality control plan and accompanying environmental documents. A few of San Francisco’s specific concerns include the fact that while the plan can, in theory, stand on its own for purposes of complying with the Porter-Cologne Act over the next three years, as a practical matter, the plan cannot be divorced from an implementation plan which includes non-project water users. Implementation of the plan will require allocation of responsibility perhaps beyond the State and Federal projects and other measures to address non-flow actions. The Draft Environmental Report states that the environmental effect of the standards contained in the plan are largely speculative and that an environmental document will be prepared in conjunction with the allocation plan. At that time, the Board will have to perform economic balancing and environmental analysis as required under the Porter-Cologne Act and other State laws. This balancing may ultimately require reconsideration of the standards themselves. Second, the Draft Environmental Report does not appear to clearly identify the scope of actions under analysis. It is unclear whether the intended scope of the Draft EIR is an analysis of the three-year Principles of Agreement or of the longer-term plan. For example, on page 7-4 of the Draft Environmental Report, it indicates a modeling assumption that if there is insufficient water in New Melones to meet all of the requirements for the South Delta, the model will obtain additional water from the San Joaquin River upstream from the confluence of the Stanislaus River. This creates at least two conflicts: First, there is no provision in the Principles of Agreement for calling on upstream water beyond that to be supplied by New Melones. And second, in the biological opinion the reasonable and prudent alternative for Delta smelt states that if there is insufficient water in New Melones to meet the requirements of the biological opinion, the standard may be relaxed. Third, the Draft Environmental Report states that a cap on freshwater releases for salinity control on the San Joaquin River is reasonable because a salinity control over the long term is unlikely to be achieved exclusively through releases of high quality water from upstream reservoirs. San Francisco concurs with this statement and recommends that the Board take the measures advocated by the joint agencies and their comments to clarify the intention in relation to the South Delta agricultural objective and the San Joaquin River dissolved oxygen objective. Fourth, the Board should not adopt the inference that biological justification exists linking the San Joaquin River flows to Delta smelt abundance. To date, there is insufficient evidence to validate the reasonable and prudent alternative contained in the biological opinion for Delta smelt, the effectiveness of transport or the necessity of San Joaquin River flows when the Old River barrier is installed. The San Joaquin standards are to be reviewed over the next three years to evaluate the scientific support for these measures. Fifth, in the section discussing the environmental effects of the preferred alternative, the discussion of the San Joaquin River flows does not mention the Old River barrier to be installed during the fall period. Mention of the recent use of the Old River barrier as a measure to improve survival of out-migrating smolts is also absent in the discussion of the chinook salmon on the San Joaquin River. These failures to mention the Old River barrier are contradictory to the recommendation by the Board and by the Principles of Agreement to install the barrier. Finally, overall the Draft Environmental Report has a tendency to presuppose broad-based allocation of responsibility for meeting Delta requirements. In conclusion, San Francisco looks forward to participating in the consensus process to reach a comprehensive solution for the Bay-Delta. However, that solution must respect water rights and State water laws. It would not be appropriate or legally supportable to impose a solution that results in a compensated taking of water from one user simply to give it to another. There are mechanisms available to apportion responsibility in a manner that is consistent with the applicable law and we refer to the Board an example specified in the August 25, 1994, CUWA recommendations to the State Board on Bay-Delta standards at page 36 and 37. Thank you for the opportunity to comment today, and I would be happy to take any questions. MR. CAFFREY: Thank you. Any questions from Board members? Anything from staff? Thank you very much. Let me just say that we will now be taking a break. I have a message from Mr. Porgans and I am aware, sir, of your time constraints, and if we don’t get to you in the regular order before 11:30, I will take you out of order and make sure you are allowed to make your presentation before you have to leave. Let me read the remaining order: We have Tom Zuckerman, Richard Golb, Craig Willey, Steve McAdam, which is a new one that came in a little bit late, and that is the remaining of the government officials. And then, after that, we will go to the other grouping of the regular citizenry, so to speak. With that, we will take a ten-minute break and see you back here in ten minutes sharp. (Recess) MR. CAFFREY: If you will all take your seats, we will resume the hearing. Good morning, Mr. Zuckerman, welcome. MR. ZUCKERMAN: Thank you, Mr. Chairman and members. My name is Tom Zuckerman. I am co-counsel for the Central Delta Water Agency and I have presented a written statement which is brief, and I intend to go through that quickly, if I may. The Central Delta Water Agency’s primary focus is on maintaining a water supply suitable both in terms of quality and quantity on the lands adjacent to the channels with the Central Delta. These lands are used mainly for agriculture now, although wildlife habitat and recreational uses are important and growing in significance. The creation and activities of the Delta Protection Commission have added emphasis to preservation and enhancement of agricultural, recreational and habitat uses of the Central Delta lands and waterways. This iteration of a water quality control plan has been focused on arresting the dramatic decline of aquatic populations that depend upon the Bay-Delta Estuary, several of which are threatened with extinction. Agricultural issues have not been revisited, nor have recreational or land-based habitat uses been re-examined other than by inference. Although the current concentration on aquatic populations is understandable, we urge you not to abandon direct concern for protection of agricultural, recreational and land-based habitat uses in your future deliberations. A specific comment on the agricultural needs follows. The agricultural standards brought forward from D-1485 into this draft plan are restricted to the period from April 1 to August 15. Although most irrigation occurs during this period, water is diverted from the channels onto lands in the Central Delta for critical agricultural uses in every month of the year. Some crops are still being irrigated into the fall, and pre-irrigation of crops can begin as early as January, February or March, particularly after a dry winter. Leaching of salts accumulated by previous evapotranspiration of crops and native vegetation requires water diversion and application in the fall and winter months. Although the water quality needs for irrigation and leaching after August 15 and before April 1 can be, and usually are met by water quality standards designed to protect other uses, such as fishery and export quality needs, explicit recognition of the water quality needs of agriculture on a year-round regime should eventually be reflected in agricultural water quality standards for every month. A particular concern to us are the potential impacts of Delta cross channel closures and increased San Joaquin River flows on water quality in the Central Delta. It is likely that these actions in combination will result in San Joaquin River water quality which is grossly impacted by San Joaquin Valley drainage, adversely impacting water quality in some channels of the Central Delta. When we inquired during the workshop sessions, we were advised that the operation studies conducted to test the different Bay-Delta plan scenarios under consideration did not include resulting water quality at measuring stations within the Central Delta. We do not believe the Draft Environmental Report or your deliberations on this draft plan can be complete without such information for all months. We are particu- arly concerned by the following statement which appears at page VI-2 of the Draft Environmental Report: DWRSIM is not capable of analyzing the water supply impacts of water quality objectives for the interior stations in the Southern Delta because of a lack of adequate understanding of relationships between the San Joaquin River flow and Southern Delta water quality. Because the San Joaquin River water quality could have a growing impact on water quality in the Central Delta with cross channel closures and increase San Joaquin River flows, greater inquiry needs to be made about the sources of San Joaquin River water that will be flowing into the Delta. The only measuring station currently provided in the draft plan is below the confluence of the Stanislaus River with the San Joaquin, and the assumption appears to be that increased flows for the San Joaquin River will all be provided from New Melones Reservoir via the Stanislaus River. Such water would be of excellent quality, but the Draft Environmental Report indicated that there will not always be enough water in New Melones to meet the San Joaquin River flow requirements. In addition, there are legal and equitable demands upon waters stored in New Melones which may restrict usage of waters stored in New Melones to other purposes. In anticipation of these problems, a water quality measuring station should be established on the San Joaquin River above its confluence with the Stanislaus so that the flow and water quality implications of water from sources other than the Stanislaus River can be anticipated and understood before problems arise. Without construction of the valley drain, which was to be a prerequisite to contracting for water from the San Luis Unit of the CVP, the CVP water evaporated from the Delta will continue to add to the salt load at Vernalis. If CVP exports for delivery into the portion of the Central Valley which drains to the San Joaquin River are allowed to continue, then an appropriate contribution of water from San Luis or Friant should be required for dilution of the salts added to the San Joaquin. Under the Delta Protection Act, exports must be limited to water which is surplus to the needs of the Delta. To the extent non-regulated as well as regulated flows are needed to flush salts out of the Delta, including those salts contributed by way of the San Joaquin River, they are not surplus and should not be subject to export. We have some additional brief comments on the Draft Water Quality Plan and the Draft Environmental Report: 1. Fish screens: We support the approach to fish screening incorporated in these documents. The implication of location, timing and methodology need to be much better understood before what could otherwise be an extremely expensive, disruptive and ineffectual construction program is started. 2. Alternative water conveyance: We support the draft plan’s approach of looking at various alternatives, especially in view of the increased outflow the draft plan provides. Keeping the primary nursery areas well west of the export pumps should reduce the impact of the export pumps on the eggs, larvae and smaller fish that are hardest to screen, and will probably eliminate carriage water needs. Incremental solutions short of an isolated transfer facility should be the most effective means of dampening the impacts of water conveyance facilities. Isolated transfer facilities would, in our view, violate the common pool concept which is at the heart of the Delta Protection Act. 3. Water conservation: Delta levee maintenance is critical to freshwater conservation in the Delta. Previous and current studies show that evaporation from flooded surfaces in the Delta uses approximately two acre-feet per flooded acre more than if the same acre was farmed. On farmed lands, all unconsumed water is returned to the usable supply. The inescapable conclusion is that the levees in the Delta need to be maintained to prevent flooding of the 600,000 acres now farmed in the Delta and conserve over 1.2 million acre-feet of freshwater that would otherwise be lost through evaporation from flooded surfaces. We thank you for the opportunity to present our views on these important subjects. Thank you. MR. CAFFREY: And we thank you, Mr. Zuckerman. Are there questions from the Board members? Anything from staff? Ms. Leidigh. MS. LEIDIGH: Mr. Zuckerman, do you have any written comments for the Board? MR. ZUCKERMAN: I gave you 20 copies before the thing began. Did you all get -- MR. DEL PIERO: I am in receipt of it. MR. CAFFREY: Thank you very much, Mr. Zuckerman. We will hear now from Richard Golb representing Northern California Water Agencies, and then, after Mr. Golb, we will go out of order and take Mr. Porgans, who has a time problem, and I will also announce that I erred in placing a couple of cards and I apologize to Mr. Chatigny and Mr. Johnston, who represent government agencies, and I had them in the wrong grouping. So, we will take you gentlemen up a little bit sooner than had been originally anticipated. Good morning, Mr. Golb. MR. GOLB: Good morning, Mr. Chairman and members of the Board. My name is Richard Golb. I am Executive Director of the Northern California Water Association. We have over 45 agricultural water suppliers, water companies and private landowners in the Sacramento Valley encompassing over 600,000 acres of farm land. NCWA is a signatory to the December 15 Principles of Agreement, and continues to strongly support it, and we do so for very simple reasons. We think that that agreement will provide sufficient protection for fish and biological resources of the Bay-Delta. We were also pleased the agreement contained specific language directing the State Water Resources Control Board to act in compliance with all provisions of California water law, including the water rights priority system and the area of origin statutes. As the Board considers the adoption of the water quality control plan, I offer the following recommendations: Within the December 15 agreement there is one section regarding principles for implementation of Category 3 activities, and that section calls for a financial commitment annually of up to 60 million dollars. Today, as the Board well knows, there are a number of both State and Federal programs and funding mechanisms that are focused on protecting many of the same fish species and biological resources as the water quality control plan now before the Board. One example would be the CVPIA 50 million dollar restoration fund. Before the Board levies any, call them what you will, user fees, financial contributions, whatever, on the water users, I would recommend that the Board undertake an exhaustive review of all the current State and Federal programs. Now, I am not suggesting that we eliminate any successful programs that are under way at this point. What I am suggesting is that if there are programs that can be better directed to meet the priorities established in the December 15 agreement, that the Board should do so. And I believe, as was indicated earlier today, this is consistent with the December 15 agreement. I would also recommend that the Board undertake a rigorous analysis of the plan analyzing both the possible social and economic consequences that it may have on the water users in the state. You know, it is equally critical that we protect these biological resources, but it is also important that we understand the potential costs, both social and economic, that those environmental protections may have. Finally, and this may be the shortest testimony I have ever provided, finally, as Dan Nelson indicated earlier, we have coordinated a group of upstream water rights holders, both from the Sacramento Valley and the San Joaquin Valley. This upstream group has met once with the CUWA-Ag group. We have scheduled additional meetings. The goal is pretty simple, we want to see if we can develop an approach and possibly a solution to some of the issues that the Board will consider during this implementation phase. But I would caution the Board that we have some real difficulties ahead of us and we know that. As the Governor said during the December 15 announcement, there is rough sledding ahead. I think that might be mild, if not optimistic. There are some difficulties in front of us. We recognize that. We are hopeful, we will work as hard as we can, but I think at this point it is just a little bit too soon to place any expectations on this effort. I encourage the Board not to put too much emphasis on what we are attempting to do. With that, I would be happy to answer any questions. MR. CAFFREY: Thank you very much. Are there questions from Board members? Anything from staff? Thank you, sir. Good to see you. Mr. Porgans, good morning, sir. MR. PORGANS: Good morning, Mr. Chairman and members of the Board. My name is Patrick Porgans. I am a publisher and copies of these have been provided to your staff. My testimony is contained in that. And essentially, I am also a founder and charter member of the Club Fed Up. I appreciate everything everyone has to say here today. I went to bed at 4:30 and thought I was going to beat everyone today and was the third card signed in. However, I have to wait for all the other entities, the so- called government entities, to go before me. Now, of course, I am going to find out how I’m going to change that. If I am here early, I want to be heard first. I am a citizen of this state, this country, and I have rights, too. Okay. With that said, it is only a minor detail, you understand, I don’t feel anybody is any better than me. Now, getting into my testimony, since the inception of this plan, it has been a moving target. Even the day it was announced -- the day before it was announced I was trying to find out what it was all about, who was going to be involved, and even where it was going to be at, and I couldn’t get even that detailed information until about 4:19 the day before, and it was Mr. McCracken who was running into the Public Relations Office over at the Bureau of Reclamation yelling, we finally know where it is going to be, we know who is going to be involved. I thought he was getting a refund at the French connection here. It’s ridiculous. This is one of the most important things facing this state and I can’t find out who is going to be involved less than 24 hours before it happens. And as you may or may not know, I was not involved in the consensus, although as the Board recognizes, I was involved in the hearing process for almost five years and unlike the districts that have money from their people that are in the districts that they assess, I paid for this out of my own pocket. Okay. So you understand that. Now, getting into some of the general details about this plan on this so-called agreement, which by the way, it just happened to be most of the people that were involved in creating the problem that put it together. I take exception to that, too. I have to have the foxes in the hen house, so to speak. The Department of Water Resources, the Bureau of Reclamation have a track record of creating serious problems with their water projects and I have to continually stay on top of them to try to find out ways to enlighten them. I am thinking about having a conference on romper room 101, the doobies and the dopies and how to conduct yourself in accordance with the laws that already exist. They just don’t seem to understand that. The plan, admittedly, does not guarantee the reasonable protection of the estuary, fish and wildlife and personal uses. Instead, the plan will protect fish and wildlife beneficial uses at a level which will stabilize or enhance the conditions of aquatic resources. However, when it comes to other uses of the plan, it will insure reasonable protection of municipal, industrial and agricultural beneficial uses. However, as one probes it becomes clear that all of the numbers are fluid. The State Board estimates that the water cost of the plan will be somewhere between 300 and 900 thousand acre-feet, the 900 thousand being the drought years. The water costs, however, are estimated by comparing the plan’s Delta export rates with inflated-based export rates, thus producing inflated water costs. A better approach is to compare the plan’s Delta exports with historical actual Delta exports that caused the decline in Delta fisheries. When this comparison is done, the results show that the State Board’s plan would allow the State and Federal projects to export more water. On that note, I wanted to provide the Board with some graphics. I don’t have one of my many assistants with me today, so you will have to forgive me. Anyway, on that end over there is the estimated annual runoff and then below the dry and normal. There’s something a lot of these people forget. This is the natural profile of the water type years that we have had here in the Sacramento basin since we have been recording information. That data shows us that there is a very wide disparity in the amount of runoff we receive here. If we look at the ‘28 to ‘34 period, which a lot of these operations are based on, we had conditions that existed then which didn’t have high levels of export rates. Now we are back into the base period where you are using in the plan the ‘84 to ‘92 period, which essentially is one of the worst-case scenarios simply because now we have these demands that are being imposed on the system. We need to go back and look at something different than what we are looking at in the plan if we want to get a better indication as to what really is going on. If we look at the data, this is export demand from ‘67 through ‘78, we see that the average exports were 3.2 million acre-feet and a high of 4.9. From the ‘84 to the ‘92 period, we are looking at 4.9 average with a high of 6.1 maximum. If we look at the range of export demands in the plan for the 1984-94 period, we are actually looking at an increase up to 5 million acre-feet of average exports. All of this data is from DWR Day Flow data. Here is the historical Delta inflow diverted and we are looking at the 1956 through 1990 period, and then we are looking at the pre State water project period, and then we are looking at the post D-1485 period, and then we looked at the drought period, ‘87 through ‘92, the point being we can look at the historical demands on the system and we see that, for example, the months of October, November, December and January, where the Department of Water Resources and the Bureau are talking about 65 percent of the water -- there we are in October of 63 percent, and every month after that we have less than that right into January, which is about 50 percent. If you average those figures out, historically we have never taken more than 55 percent during those months. In addition to that, which is even more important, with the weasel wording that goes into these plans, is that 63 percent includes Delta in-channel diversions -- includes, and that’s another million acre-feet of water or more. DWR and the Bureau are talking about taking 65 percent, not counting in-Delta. Now, the reason why I am concerned about this sort of thing is we know how much pumping takes place during the 1987-1990 period. We had historical levels of pumping going on and we had significant impacts associated with that pumping, and some of you Board members are new, but I was here in ‘88 and I was saying what they were going to do because they had to keep their agricultural contractors economically solvent down there, and the Bank of America and the boys, you know, have some investments -- and the girls, excuse me. My point is that this system cannot handle the kind of export levels that they are talking about here. It just cannot handle it under a certain type of conditions. This plan discards key west flow criteria that require the streamflow in the Delta to flow downstream, the natural direction. Instead the plan executes a less restrictive export-inflow ratio that allows double exports to continue at rates that are damaging to fisheries. The ratio was substituted even though no definitive studies or analyses were completed to support export-inflow restrictions. According to the Governor, no additional species will be listed unless there are some unforeseen circumstances. Well, I am looking into finding out why it was that the Sacramento splittail was sort of pulled off the list because there was some pressure going on internally. Some people in the Department allegedly were saying they would pull out of the negotiations if they listed splittail. If I can’t get a splittail listed when it looks like it should have been listed, what unforeseen circumstances are we talking about? The State Water Board staff, with all due respect to their staff, I have the highest regard for their staff, and, of course, they are basing their information on DWR’s data and everybody else’s data because most of the information that’s contained in this report is not this Board’s information. It is information coming in from other sources. There are several environmental determinations in the environmental checklist. For example, the checklist concluded that the plan will cause substantial reduction in the amount of water otherwise available for public water supplies. The figures don’t show us that. It also considers that the plan will result in no deterioration of existing fish and wildlife. Finally, the checklist concluded that the project will result in increased groundwater withdrawals to replace decreased water supply. The new plan opens up the peripheral canal and my sources have already told me, we had six-pack and right-of- way people from DWR down there, you know, looking at opening up negotiations again. The truce was hammered out by the same interests that created the problem -- I need them to come back here and direct this Board as to how they should go forward with protecting my resources when they are the ones responsible for it. Let’s hypothesize for a minute. I am not really that academically inclined. You may have noted that already. Let’s hypothesize for a minute and say that these so-called standards, which I don’t know when they are going to be enforced, if they are going to be enforced, and I agree with some of the former speakers about, you know, we have a little bit of a gray area here; we have a water quality standard and we have a flow issue which somehow may go over the line in terms of the water rights issue and somebody is going to have to come in and get a quickie fix to get around that D-1485 stuff in order to go forward, and, you know, not have to change the point of diversion or maybe not meet a standard. But let’s hypothesize and say for a minute, Mr. Chairman, for the sake of discussion, that we put all this plan together, we get this general agreement going, and then they do not comply with the law. I am sorry I have to ask you this, Mr. Chairman, but I am compelled out of necessity and I reiterate, who will enforce it? Historically, when they violated the law, they just got away with it. I can’t find anywhere where this Board actually made an actual vote on that series of hearings that we held on those violations. I can’t find that yet, but you can believe I am looking. My last point is going back to Ms. Forster’s statement when we were at the Board meeting last week and we were talking about the San Joaquin Valley and the salinity issues, and we asked the Board to send that plan back because of its gross inadequacies. We also pointed out between 1988 and 1992, that the standards, salinity standards, on the San Joaquin River were exceeded 82 percent of the time between ‘82 and ‘92. In ‘93 and ‘94, 11 out of 12 months they were in violation. The Regional Board has a track record of creating problems. We don’t have a plan and it is going to take three to five more years to do something about it. So, in conclusion, I suggest as a member of the public, de facto public trustee, we can no longer wait for the learned ones, the knowledgeable ones to make decisions about how they are going to correct problems that they have created. I need this Board to enforce the law. That’s what I need and I have every expectation that it will, and on that note, if there are any questions, indulge me. MR. CAFFREY: Thank you, Mr. Porgans. Anything from Board members of Mr. Porgans at this time? Anything from staff? Are you going to give us copies of your transparencies? If they are in your publication, I didn’t see them. MR. PORGANS: Yes, I am. Excuse me, Mr. Chairman, one last note. Thank you for bringing me back here. Ms. Carla Bard, whom I have the highest respect for, used to be the Chairperson of this particular Board, testified over here at the Senate committee hearings before Senator Hayden, and I just wanted to read one paragraph of her statement. We will submit this as part of the record. I want to speak plainly. This was a totally political agreement negotiated in secret, contrary to law, by the State and Federal regulators charged with the protection of water, fish and wildlife resources. It was not based on ‘good science.’ Well, there are some improvements from previous water flows and standards. The new flows are untested and most of the remaining runs of California chinook may be doomed -- and she goes on from there. I will be submitting something from Senator Nejedly, who had similar comments in regard to the same things I am raising. I am not alone. MR. CAFFREY: Thank you, Mr. Porgans. Craig Willey from San Joaquin County. Welcome. MR. WILLEY: Good morning. My name is Craig Willey and I am an attorney, and I am here to present the comments of San Joaquin County. San Joaquin County recognizes and appreciates the work of the State Water Resources Control Board and others to develop water quality standards for the Bay-Delta Estuary. As a significant portion of the San Joaquin- Sacramento Delta lies in the County and many County residents use its waters for consumptive and recreational purposes, we understand the need to balance diverse interests when protecting this valuable resource. There exists, however, a significant aspect of the proposed standards that does not provide for a fair balance. Specifically, the County is very concerned with the establishment of only one water quality measuring point on the San Joaquin River. The location of this water quality measuring point at Vernalis, below the San Joaquin’s confluence with the Stanislaus and the exclusion of other measuring points, unfairly places the entire burden of meeting the San Joaquin River water quality requirements on the Stanislaus and does not fairly allocate that burden to other tributaries of the San Joaquin. As you know, San Joaquin County has a critically overdrafted groundwater basin in the eastern portion of the County. We are in need of supplemental surface water to combat this overdraft. The Stockton East Water District has a contract with the U. S. Bureau of Reclamation for a supplemental surface supply from New Melones, but Stockton East has yet to receive a single drop of water under this contract. The Central San Joaquin Irrigation District also has not received any water under its Bureau contract. In the two years in which the Stockton East Water District has had the facilities in place to accept water from New Melones, the Bureau has determined that all project yield was needed to meet downstream water quality and fish and wildlife requirements in the San Joaquin and Delta. In fact, the Bureau allocated 200,000 acre-feet of the 800,000 acre-feet prescription under the Central Valley Project Improvement Act to the Stanislaus River, an unfair and unjustified act. Even before the Central Valley Project Improvement Act, the Bureau of Reclamation has used releases from New Melones Reservoir to meet its Delta water quality obligations. As you are well aware, the west-side drain was designed to be part of the Central Valley Project but has not been completed. As a result, the salts and other materials present in agricultural tailwater drain from the west side of the valley into the San Joaquin River. In other words, the San Joaquin River has become the drain for the Bureau’s deliveries to the west side of the valley. The Bureau has used releases from New Melones Reservoir to dilute the salts so that Delta water quality standards are met. Despite knowing about this problem, the Bureau has continued to deliver water to the west side of the valley to the detriment of the San Joaquin River and those relying on water from New Melones as a water supply. These activities must be alleviated either through the construction of a west-side drain or through stopping the deliveries of water that caused the problem in the San Joaquin. As the Board is well aware, all of the natural flows of the San Joaquin are stopped at Friant Dam where they are diverted to the Friant-Kern and Madera Canals to irrigate land in Madera, Fresno, Tulare and Kern Counties. The natural flows of the Tuolumne are stopped at New Don Pedro Dam and significant quantities are diverted out of that river and delivered through a pipeline to serve residents of the Bay Area. While the County does not contend that the natural flows of the Tuolumne and San Joaquin should be fully restored, the County does not believe that the burden to make up the difference for the water lost to these diversions be placed entirely on the Stanislaus as it is by the single measuring point. Placing only one measuring point on the San Joaquin encourages the Bureau to use New Melones as the sole means to regulate water quality standards in the Delta. Placing a water quality measuring point on the San Joaquin below its confluence with the Merced River would more fairly allocate the burden of meeting water quality standards in the San Joaquin and the Delta, and would provide more information as to the conditions in the river so that releases could be optimized. The same salinity standards that exist for Vernalis should exist for this Merced measuring point. Also, flow standards should be established for the Merced measuring point. Contributions of water from the Friant service area, San Luis Reservoir and other alternatives should be considered in addressing water quality and flows in the San Joaquin River. Again, the County commends the State Board and others for tackling one of the State’s most pressing and contentious issues, water quality standards in the Bay and the Delta. The County supports the barriers used to improve water quality that are already in the plan and proposed by the South Delta Water Agency. However, the Board must be sensitive to the fact that the Stanislaus River has historically borne the brunt of meeting these standards and that by only placing one measuring point on the San Joaquin below its confluence with the Stanislaus, encourages this activity to continue. We hope that the Board will establish a second measuring point on the San Joaquin below the Merced and address the issues of drainage from lands on the west side of the valley that currently are leaching salts into the San Joaquin. We believe that these measures will help improve conditions in the San Joaquin and Delta, and will help the residents of our County. Thank you. MR. CAFFREY: Are there questions for Mr. Willey by Board members? Anything from staff? Thank you very much. You are now submitting your written comments? MR. WILLEY: Yes. MR. CAFFREY: William R. Johnston, San Joaquin River Tributary Agencies. MR. JOHNSTON: Good morning, Mr. Chairman and Board members. My name is William R. Johnston. I am speaking today on behalf of the San Joaquin Tributary Agencies, which is Merced, Modesto, Oakdale, South San Joaquin and Turlock Irrigation Districts. These Districts are upstream water right holders on the Merced, Tuolumne and Stanislaus Rivers in the San Joaquin Basin. We have some general comments under the heading of water rights, State Project, Central Valley Project, pumping impacts, striped bass, salmon models, San Joaquin River flow standards, salinity and water supply impacts. In regard to water rights, California has an established water rights system which allows for the orderly allocation and use of its water supply. As is pointed out in the draft plan, the watershed protection and area of origin statutes accord first priority to water rights for use within the watershed. The Central Valley Project and State Water Project water rights are subject to these provisions, and diversions for export by these projects are restricted until the needs in the watershed, including protections for beneficial uses in the Bay-Delta Estuary are met in regard to the SWP and CVP pumping impacts. Salmon operations have been severely affected by pumping operations in the Delta and peak chinook salmon losses occur at State and Federal export pumps in April through June when the fall-run smolts are passing through the Delta. The burden of dealing with these project created impacts cannot be transferred to other entities. The projects alone must be held responsible for flows necessary to permit export pumping, whether these flows are operational, carriage water or additional flows to offset and mitigate these project impacts. In regard to striped bass, as pointed out on numerous occasions by the San Joaquin Tributary Agencies and its members, there’s no reason to adopt striped bass water quality standards. We believe that: (1) There is no real scientific evidence that a salinity barrier to mitigation exists; (2) Even if such barrier did exist, it would not affect the production of striped bass because as broadcast spawners they are not spawning habitat limited; and (3) If the striped bass did spawn farther upstream, the eggs and larvae would be susceptible to increased entrainment at the State and Federal pumping facilities. From a policy standpoint, it is inappropriate to set standards to improve the habitat for exotic species that are a known threat to native species, particularly the chinook salmon. In regard to salmon models, if the statistical validity of the Fish and Wildlife model is so criticized, why is the State Board using it for analysis? The San Joaquin Tributary Agencies and others have presented testimony at previous State Board hearings and workshops regarding the suitability and use of the Fish and Wildlife Service smolt survival model. As pointed out at the October 13, and again at the October 19, 1994, workshops, the model incorrectly uses and interprets the smolt survival data. As a result, it is inappropriate to use the model for the purpose of determining outflows and for setting policy. We have provided the State Board with a full copy of a paper entitled, Estimating the Influence of Temperature on the Survival of Chinook Salmon Smolts Migrating Through the San Joaquin-Sacramento Delta of California. The paper points out that with the correct interpretation of the Fish and Wildlife Service data, salmon smolts can survive at temperatures substantially higher than those being recommended by the Fish and Wildlife Service. The Fish and Wildlife Service analysis indicates that increases in temperature between 61 and 72 degrees Fahrenheit will result in a linear increase in smolt mortality. Our analysis indicates that survival is relatively insensitive to temperature until about 70 degrees Fahrenheit. The models do, however, show the significance that the Old River barrier has on the survival of salmon smolts migrating through the Delta, figures VIII-29 and VIII-30 in the environmental report show that with the Old River barrier in place, smolt survival is more than doubled. Even though we disagree with the U. S. Fish and Wildlife Service model, we used their model in our analysis, and each salmon population model shows a three- to four-fold increase in salmon population over the base case through a ten-year period of analysis. In regard to the San Joaquin River standards, the stated purpose for the San Joaquin River flow standards is to move smolts past the pumps and export-related impacts, or move them from upstream areas, which is not a Delta issue. If the pumps are the cause of the decline of the species, then it is the export projects that must mitigate for their own project-related impacts. Moving to smolts in upstream areas is a subject that is being addressed currently in other forums and should not be included in this plan. There is no scientific basis for the flows that are recommended. These flow standards were never presented at any public forum and parties have had no opportunity to comment on them. The flows we agreed to were during the last-minute negotiations prior to the December 15, 1994, Bay-Delta announcement. They appear to be based on recommendations of the Fish and Wildlife Service for the benefit of the Delta smelt rather than flows necessary for the protection of the chinook salmon. The preferred alternative in the draft plan fails to include an Old River barrier as recommended by all the parties to the Bay-Delta process, and as required under the Principles for Agreement on the Bay-Delta standards between the State of California and the Federal Government. This includes the EPA, the Department of the Interior, and the State of California. To ignore the agreement and require the use of a large quantity of water to provide protection for the salmon or the smelt where a physical solution is recognized by the State Board, advanced by the State and Federal Governments and endorsed by the signators to the Bay-Delta, will be a tremendous waste and an unreasonable allocation of water for public trust purposes. We believe the Board must adopt the plan that includes a barrier. If there is no barrier, there must be a limit placed on Delta exports substantially below one hundred percent of the San Joaquin flows, particularly during the salmon out-migration period. In regard to the salinity issue, the use of water to dilute the pollution of others is not a listed beneficial uses of San Joaquin River water. We believe that the State Board and Regional Water Quality Control Board must enforce the San Joaquin River water salinity standard by requiring those discharging saline water into the river to cease such discharges. The program of implementation should, instead, describe the steps that must be taken to reduce the salt load entering the river rather than relying on additional water flows to dilute such salt. The only real solution to the San Joaquin Valley salinity problem is to export the salt from the valley through an isolated channel. I believe this is something you have supported. Identifying additional releases from other reservoirs as may be required through ongoing and future court proceedings is inappropriate. The USBR New Melones project is obligated as a condition of the water rights permit to meet certain salinity standards in the Southern Delta and it is inappropriate to suggest that upstream water users contribute flows to meet permit conditions of a junior water appropriator. The only appropriate way to meet the salinity objectives is to reduce or eliminate the salt discharges to the San Joaquin River. Since much of the salt entering the San Joaquin River originates in the Central Valley Project service area, it appears that the burden to solve the salinity problems also belongs on the CVP. In regard to water supply impacts, there should be no interference, implied or otherwise, regarding the distribution of water supply impacts to anyone other than the Central Valley Project and the State Water Project. The draft plan covers only a three-year period. During the three-year period, the USBR is required to meet the San Joaquin River flow objectives in accordance with the biological opinion for Delta smelt. The flows provided by the Bureau are described as interim flows and will be re- evaluated as to timing and magnitude within the next three years. The State Board is not even considering allocation of flows at this time. The allocation process will be the subject of a water rights proceeding which is scheduled to commence following the adoption of the draft plan. At that time, the State Board has stated it will allocate responsibility for meeting the San Joaquin River flow objectives among the water right holders in the watershed, after considering the water right priority system, watershed protection and area of origin laws, and decisions by the Federal Energy Regulatory Commission and other regulatory agencies. Consequently, the impacts described in the environmental report should only be limited to those areas dependent upon flows provided by the USBR’s entitlement from New Melones. The proper time to evaluate the impacts of any proposed allocation scheme is during the water rights phase. In addition, CEQA requires that the State Board prepare an Environmental Impact Report before issuing any order reallocating water to benefit public trust resources in the Bay-Delta Estuary. This concludes my comments at this time. Today we have provided you with a letter signed by the managers of the San Joaquin Tributary Agencies. We will again, and possibly the individual agencies, will be providing additional detailed comments to the draft plan and environmental report prior to your March 10 comment deadline. I would be happy to answer any questions. MR. CAFFREY: Thank you very much, Mr. Johnston. Any questions from Board members? Anything from staff at this time? Thank you, sir, we will look forward to reading your document and whatever else you may be submitting. I think this is as good a time as any to probably break for lunch. Let me read the cards that we will take up when we get back: Mr. Chatigny, Steve McAdam, Nat Bingham, Jim Easton, Greg Thomas, Jerry Bobker, Margaret Johnston, Christopher Foster and Lowell Landowski. There have been some cards added as we have moved through the day. We will be back at one o'clock this afternoon. Thank you. (Noon recess) THURSDAY, FEBRUARY 23, 1995, 1:00 P.M. --o0o-- MR. CAFFREY: Let’s take our seats and we will resume the hearing. Good afternoon and welcome back. Mr. Pettit and Ms. Forster are working on some Clean Water Act issues and I am not sure they will be able to join us for the rest of the afternoon, but in any event, they will have the record available to them to read. Mr. Chatigny, are you here, representing DTAC. MR. CHATIGNY: Now that everyone had a nice lunch, good afternoon, Mr. Caffrey and Board members. I am here as Manager of Nevada Irrigation District, but also, as Chairman of the Delta Tributary Agencies Committee. You have been presented with a written copy of my comments so I will not go over all of them, but I do want to bring some things to your attention. We are here in response to your Notice of Public Hearing regarding the December, 1994, Draft Water Quality Control Plan. As a reminder, Delta Tributary Agencies Committee consists of 30 water agencies with service areas situated within the Sacramento River and the San Joaquin River Basins. You have a list of those 30 agencies. All the members of the agencies either possess pre- 1914 or post-1914 appropriative water rights or riparian water rights. Individual members will be presenting their own items for your consideration in regard to the response to the notice. It is the intent of our testimony before you today to remind the Board of its water rights hearings that are set to commence perhaps in June of 1995, by which you propose to allocate the water necessary to meet the water quality objectives that you intend to adopt in these proceedings. We know that you are aware there are ongoing settlement negotations between what is referred to as the Ag/CUWA group and the upstream users. Within this group of upstream users, Delta Tributary Agencies comprise at least six or seven of the major negotating group of thirteen, so we are actively engaged in proceeding toward working out some type of consensus if it can be reached, and we would like to do this in order to avoid, if possible, the subsequent water rights implementation proceedings to meet the quality objectives that you intend to adopt. We must remind you, however, that the State-Federal- Ag/CUWA settlement of December 15 was a true consensus in the eyes of DTAC. Not one member of 30 DTAC agencies had been invited or was able to attend any of those meetings, and we are the major providers of much of the water that is being used by the water users within the State of California. We presented testimony to your Board in September of 1987 at the Red Lion Inn in Redding where we did bring forth some items and some information in regard to the beneficial uses of the water storage facilities that the members of DTAC used, and I refer you to those submittals for your review when and if it is necessary. We urge you to be mindful of the reasonable and beneficial uses of water of all our 30 DTAC member agencies so that when you adopt these quality objectives in this proceeding you will not force yourselves in the subsequent water rights hearings to deviate from California’s water right priority system in order to reallocate water to achieve this share-the-pain concept that some exporters claim is required in the Racanelli decision. If I may at this time, I would like to diverge and tell a little story, if I may. It has nothing to do with bathtub rings. As we are all aware, the water projects started sometime in the fifties, the State Water Project specifically. I was able to purchase a 1955 Ford pickup in the early seventies, which is about the time the water right phases came about to authorize the water for some of the projects. That is forty years old as we compute the numbers. So that makes the Delta system, the exporters, the projects, approximately forty years also. Well, my truck is now in the process of being overhauled, rejuvenated, restored, to be brought back up so I can put it to a beneficial use again. But during the time that I have owned it, I have talked to it, I have said nice things to it when it did what I wanted it to do, I have also kicked the tires, I have also said some bad words to it when it didn’t do what I wanted it to do. We do the same thing and we have been doing the same thing to the Delta. When it was working right, it was the greatest thing in the world. We said nice things about it. Now that it is not working right in some people’s minds, we say bad things about it. So, as I am doing with my truck, I am restoring it. I have taken it all apart, sandblasted it, I have changed some parts on it and even overhauled the drive train, and I would liken the drive train of the truck to the export pumps of the Delta. Some of the facilities within the Delta and as part of that drive train, there is something missing in the Delta, and I think we would look at that as part of the cross channel facilities perhaps, or maybe that nasty P word that some people have talked about in years past. The truck needed overhauling. It served its purpose for many many years, but it went into disrepair either by non-use or by overuse, and that is the same problem that we have had at times with the Delta. So now, we are trying to fix it. I am about to fix my own truck. I am using my own resources. The benefit of fixing the truck is going to be to my benefit and I am using my own dollars, my own time, and my own labor and own facilities to repair that. And so, I would liken again the fixing of the Delta to be paid for, to be provided for by the people that are going to use the Delta for their benefit, and I would say that the exporters are the ones that use it. That’s mostly from my own personal observation and from myself as General Manager of the irrigation district, and from some of my Board of Directors from the District. So, if we could work on our own items, if we can put them back in order, why can’t we all put the Delta back in order if we put our minds to it and put our facilities and our wherewithal to make it work for everyone? Again, DTAC reaffirms its statement of principles for the Bay-Delta proceedings that we provided to you in June of 1991. And four of the principles adopted by DTAC are: 1. The State Board should recognize and follow area of origin and watershed protection principles. 2. The State Board should recognize the unique impacts of Delta water exports and require those exporters to mitigate their adverse environmental impacts. 3. Consistent with principles (1) and (2), the State Board must rely on the priority system to allocate the responsibility for Bay-Delta water quality objectives and flow requirements. 4. Municipal and domestic users should receive no special preference in the allocation of responsibility to maintain Bay-Delta water quality objectives and flow requirements. And finally, the Districts recognize that this is a very difficult political and legal administrative proceeding, and that any decision which you will make is certain to be criticized by different groups or individuals representing a specific use of water which they may claim is put to more beneficial use. The same thing with my truck. My wife says why are you spending all that money on the truck? You should be buying something for the house. Well, I felt that the priority should go to the truck for a while and she will get the house things later. So, statutorily authorized and historically we have resulted in billions of dollars of economic decisions and agency water development contractual commitments, all of which are being provided by members of DTAC for the benefit and the support of the ecomony of the State of California, and we hope that you take that into consideration as you make a global approach to setting the water quality standards within the Delta through these proceedings. Thank you. MR. CAFFREY: Thank you, Mr. Chatigny. Questions from Board members? Anything from staff? Thank you, sir. I am going to take the next presenter out of order because there is a time constraint problem, and I will call on Gary Bobker of the Bay Institute. Good afternoon, sir. MR. BOBKER: Good afternoon, Mr. Caffrey and members of the Board. Thank you for accommodating a time need. My name is Gary Bobker from the Bay Institute of San Francisco. What I want to do is to discuss three things: Number one, the way in which the water quality control plan is characterized, what it is and what it isn’t. Secondly, I want to discuss the deficiencies of the plan and the tools which I think exist within the context of the plan as well as in other initiatives concurrent with the plan’s adoption that are designed to correct those deficiencies. And third, I want to discuss the limitation measures particularly as they relate to the water quality objectives in the plan. First of all, with regard to what the plan really does, I think that the way that I would characterize it is that this plan would finally allow you to fulfill the charge that the Governor laid on you almost three years ago, to come up with interim measures which would halt the decline of the Bay-Delta resources, and I believe that implementing this plan will help to do that. Basically, what it is going to do is stabilize the populations of a number of Bay-Delta species and in some cases it is going to allow partial recovery for those resources. In some other cases it probably will do nothing at all and we will need to address those species through some other means. The Corps protections that are contained in the plan are obviously the new habitat requirements and export criteria for the February-June period, the critical spawning and migration period. Adoption of those measures, we believe, will benefit a broad range of resident species in the Delta as well as the anadromous fish that are using the estuary during that time period. And the biggest benefits come from the new estuary salinity standards that are in effect during that time period. The water quality plan incorrectly describes those standards as Delta outflow standards. Although there is clear agreement that those standards can be met using either salinity or outflow measures, the fact is that the standards themselves are based on significant correlations found between salinity in Suisun Bay and the abundance of aquatic organisms. They are not based on the correlations found between outflow and aquatic organism abundance, although such relationships may also exist. The fact is that that’s not what these standards are based on. Therefore, I suggest it would be more correct to characterize these in the most precise form as Suisun Bay salinity standards, perhaps less accurately, more generally as estuarine habitat standards that would reflect both the biological justification for the standards as well as the high level of unity tht exists between the scientific and management community that salinity was a more appropriate measure to use in terms of estuarine habitat. What I think the agreement allows us to do besides giving us some real benefits in the February-June period, is it also gives us a window of opportunity, a phrase used by John Krautkraemer in the signing of the December 15, 1994, Principles of Agreement. That opportunity allows us to move toward the possibility of both more comprehensive water management regimes and greater environmental restoration. Let me repeat the last part, and greater environmental restoration. What this plan does not do by any stretch of the imagination is achieve the highest water quality reasonable, as the plan puts it, required by law. I believe that these are truly interim standards with some serious deficiencies. We believe that it is clear that the State and Federal water quality laws and public trust considerations require much more from the Board in the long term, and that not to do much more in the way of environmental protection and restoration will also retreat from the commitment that was made by this Board in the past in D-1485 to offset the impacts of the major water projects and the beneficial uses of estuary water and the Racanelli court’s charge to the Board to expand that commitment to include all users that affect the estuary. Outside of the benefits concentrated in the January- February period, what the plan does not achieve is the highest water quality reasonable for biological resources outside of the February-June period. We don’t believe that the export criteria, the cross channel gate closures, the other operational requirements during that period in and of themselves are sufficient as direct protections for biological resources. That’s especially critical in the case of spring-run salmon, fall- run chinook salmon and steelhead, essentially anadromous fish in the estuary in the November-January period. These are all fish populations that are at extremely depressed levels, all meriting listing, in my opinion. We also are concerned about fish present in the lower San Joaquin during spring pulse flows because of the direct export that is in place at that time. And the concerns that we have about the export criteria and other operational requirements not being protective enough were reflected in a lot of comments we made in the past, in the series of workshops held by the Board. Nonetheless, we signed the agreement. We support the adoption of this water quality plan. The reason is that we believe there are mechanisms available to us to mitigate for those deficiencies and our support for this plan is premised on the assumption that we are going to use all those mechanisms aggressively. That’s a very serious responsibility both for this Board and the other parties involved. Some of those mechanisms involve most importantly the adequate exercise of operational flexibility to vary the export criteria because that’s a particularly important period of high risk to biological resources. A comment I should throw in here is that there’s a lot of weight being put on the decision-making process for the operations coordinations group, a heavy responsibility here, and the structure of that group and the process by which it makes decisions really needs to be clarified and codified a little bit more before this plan is adopted. I think all parties involved would like to see that happen. It would give us greater certainty how exactly we are going to use operational flexibility. Second, complete funding and implementation of the Category 3 habitat improvement program is extremely important. I have been involved in steering the ad hoc committee and we are addressing a lot of the issues like project criteria, project implementation issues. Good work is being done. The question now is, is there going to be money to do these projects? The clear intent of that program was to inject new funds into habitat improvement efforts. We are eagerly awaiting funding commitments to follow up on the one that was made by Metropolitan Water District. I think there is a feeling that things like pre- existing funds like the CVPIA are going to be available. That’s not the case. A lot of those funds like the CVPIA are fairly restricted. The real need is to get some new money in and we are interested in seeing that followed up on. I think that the National Heritage Institute will have some additional comments on what can be done in those areas. The whole area of Category 3 kind of reminds me of the old saying, be careful what you wish for because you just might get it. And the water user community has urged these non-flow related measures for a long time. We agree they are important in addition to flow. Obviously, we now have a program and it’s time to make sure that it is adequately funded. The final element I want to focus on in terms of implementation mechanisms that correct deficiencies of the plan outside of the direct scope of the Board is simply the prompt and effective allocation of the flows that were mandated by CVPIA to double anadromous fish populations in the Central Valley. That’s going to be a very important safety net for salmon, and all of these things are going to be important as a safety net for salmonid stocks that are at high risk. And I guess the language of the water quality control plan should acknowledge the linkage between the success of these other State and Federal and voluntary initiatives. Essentially the success of the plan rides on the success of these other initiatives. They all rise and fall together. The final thing I want to talk about was the narrative water quality objectives, for example, the Suisun Marsh. Obviously, narrative criteria don’t represent improved protections for the Bay, but instead, what they really do is identify wherever the gaps occurring in the protection lie, and in theory, move us towards resolving those problems. What narrative objectives, in fact, we don’t need is file and forget, and that’s a real danger with narrative criteria. What I think the Board omitted from the water quality control plan section on program implementation was the section that specifically dealt with implementation of narrative objectives. The guidance from the Federal Government on adoption of narrative criteria states when you adopt narrative criteria, you should indicate how the application is going to be accomplished, and what that means is what kind of data-gathering measurements procedures and other things that you are going to do that will eventually lead to the development of numeric criteria. I think the Board has already made sort of a step in that direction in terms of the Suisun Marsh narrative criteria with the idea of the Suisun Marsh ecological work group. The narrative objective for the brackish tidal marsh of Suisun Bay and Suisun Marsh really present us with a very exciting opportunity to look at the marsh as an ecosystem and start protecting in terms of biodiversity and habitat. At the same time the Board has in the past refused to allow deficiency relaxations under the Suisun Marsh preservation agreement because of the potential impacts on those brackish marshes. We believe that the solution the Board has come up with in the Draft Water Quality Control Plan is a good one, but that adoption of the marsh regime should be made conditional on the establishment of this Suisun Marsh ecological work group and that group should be required to report to this Board on its progress towards developing measures that both give us a better picture of how we are doing in protecting biodiversity in the marsh and on assessing the real impacts of the new regulatory regime on the beneficial uses of the marsh. Turning to the salmon, the narrative water quality objective calls for the doubling of chinook salmon populations. I don’t think that anyone in their right mind who has looked at the evidence on salmon or the exhibits and testimony offered by the resources agencies thinks that the export criteria operational requirements contained in the plan are going to accomplish the doubling of chinook salmon over the baseline. In fact, based on what I said earlier, I think we are going to be hard pressed to hold the line for the runs that are at high risk in the November-January period. So, what I really think needs to happen is the Board needs to set a goal of developing measures that will be used to gauge our success in meeting the narrative water objectives. We made a start on this working on EPA’s proposed salmon survival index and there were a lot of good revisions made to that in 1994, and we should build on that in the future to try and come up with something that will give us a better gauge of how we are doing with salmon. Another thing about salmon I should mention is that looking above the Delta, the Board has been conducting some proceedings to look at instream flow requirements on the tributaries and I think expeditious completion of that for all tributaries to support salmon runs and reversing in- stream flow requirements in order to reach the goals of this standard since it does include measures in the upstream areas, it would be appropriate. One final implementation step for salmon might be to recommend a fund to augment salmon flows to water purchases either through recommendations to water agencies, water users and others through voluntary efforts or through water user fees as has been proposed in the past. There’s a big challenge there and I encourage the Board to rise to that challenge. The narrative criteria, the mechanisms of operational flexibility, the expectations that are set for Category 3 and for the other factors, are all parts of the glue that’s going to keep this window of opportunity together. They all need to be aggressively pursued if we are going to reach the longer term, more comprehensive solutions that everyone is interested in, and that concludes my prepared remarks. MR. CAFFREY: Thank you very much, Gary. Any comments. Anything from staff? Thank you very much, Mr. Bobker. Steve McAdams, Assistant Director, San Francisco Bay Commission. Good afternoon. MR. MCADAMS: Mr. Chairman and members of the Board, my name is Steve McAdam and as you indicated, I am Assistant Director of the San Francisco Bay Conservation and Development Commission. In the late 1980’s, in order to insure that the policies of the San Francisco Bay plan and Suisun Marsh protection plan were considered by the Board, our Commission actively participated in the Board’s hearing process to update the water quality standards set in the water quality control plan for the Delta and Suisun Marsh and Decision 1485. Subsequent to these hearings, the Board adopted in 1991 a water quality control plan for salinity, which our Commission believed would not adequately protect the fish and wildlife resources of the Bay and Suisun Marsh. We have consulted our hydrologist, Phil Williams & Associates, and used the Commission’s previous testimony in preparing the following comments on the Draft Water Quality Control Plan for the San Francisco Bay-Sacramento-San Joaquin Delta Estuary. In general, we commend the staff’s work in presenting you with a draft plan that represents a significant step forward in addressing some of the Commission’s major concerns over the adverse impacts of upstream diversion of freshwater inflow to the estuary. We believe this draft plan offers a good chance of arresting the decline in key environmental resources of San Francisco Bay. While it appears that protection is still inadequate for the salmon fishery, the framework agreement and the draft plan provide a breathing space that might allow stabilization of estuarine resources and should allow for an opportunity to develop a better understanding of the most effective measures to restore resources that will be required in the future. Therefore, we support the draft plan as one step in a longer process aimed at restoring the estuary’s environmental resources. Briefly, we offer a few suggestions to make the draft plan more protective of the Bay ecosystem in general, and specifically, to the tidal brackish marshes in the Western Suisun Marsh. First, we believe that for any long-term plan to be effective, there has to be some statement as to what are optimum, acceptable and unacceptable levels of a resource by which management actions are measured. Thus, we recommend that an important task under the special studies program contained in the draft plan be devoted to characterizing thresholds, historic conditions and optimal levels of key species. Second, we have in the past emphasized the importance of maintaining the goals and standardss for protecting the wetlands of Suisun Marsh as enacted in Decision 1485. Although the increased Delta outflow required by the draft plan should help in maintaining brackish conditions in the managed and tidal wetlands in the Eastern Marsh, they are certainly insufficient in dry years to improve conditions in the Western Marsh, and we have consistently advocated the need for salinity standards to prevent the continued encroachment of salt water into the tidal wetlands of Suisun Marsh. Third, the draft plan should include a specific requirement for the mitigation of adverse salinity impacts on brackish tidal wetlands through restoration of this type of habitat elsewhere in the Suisun Marsh. Fourth, the draft plan might be interpreted to endorse the discharge of San Joaquin Valley agricultural drainage water into San Francisco Bay. To insure that salt and agricultural pollutants are dealt with on site, we would emphasize the need for source control and discourage the use of reservoir releases for pollution dilution in the San Joaquin River. Fifth, the Commission has previously testified on the need to consider protection for the entire San Francisco Bay Estuary ecosystem including the important role of South Bay, which includes 40 percent of the total estuary. The draft plan should explain the reason for excluding mention of the important role that freshwater flow pulses play in improving water quality, increasing primary production and reducing toxicity of benthic organisms in the South Bay, and should include a monitoring and research program aimed at developing recommended standards for the South Bay in the future. Sixth, although coordination and direction of the research and monitoring efforts on the estuary have improved, we are concerned that the draft plan will not require a coherent research and monitoring program that is aimed at answering the important management questions. In the draft plan description of the monitoring program, it is clear that the monitoring will not include key resources such as the South Bay and will inadequately characterize the San Pablo Bay. There is also little emphasis on important hydrologic, hydrodynamic and geomorphic processes affecting the estuary. And, although the draft plan endorses the concept of an ecosystem approach, to its credit, it does not maximize the opportunity to develop an understanding of the complete estuarine ecosystem and the place freshwater plays in its functioning. In conclusion, we hope that these comments will be helpful to the Board in its consideration of the draft plan. We support adoption of the draft plan and are hopeful that the final plan, and the Board’s subsequent implementation actions, will reflect these comments. If you have any questions, I would be happy to answer them. MR. CAFFREY: Thank you very much. Are there questions? Staff? Thank you very much for being here. We appreciate your comments. Nat Bingham, Habitat Director, PCFFA. MR. BINGHAM: Good afternoon, Mr. Chairman and members of the Board. My name is Nat Bingham, and as you said, I am Habitat Director, former President of the Pacific Coast Federation of Fishermen’s Association. I have been an active commercial fishermen for the past 30 years. Now I am pretty much full time trying to represent fish in this difficult and complex process you are going through. Unfortunately, as much as we would have liked to have been, we were not part of the discussions and negotations that led to the December 15 agreement. I think everybody afterward felt like maybe we should have been there, but as often happens with fishermen, we were overlooked and we are now gratified that we have been invited to participate in the Category 3 process, and we are there and we have also been invited to participate in the long-term planning process for the Delta. But, as we have learned from a lot of the testimony that we have heard today, and I have to agree with just about 95 percent of what Mr. Bobker just recently said to you and many other speakers have said regarding the deficiencies of the agreement and the plan in regard to salmon protection, particularly in regard to the late fall run, spring run and possibly the winter run, although it looks better for the winter run, and certainly, I have to recognize there is some pretty good protection for the fall run, which is the mainstay of our commercial fishery. Those other runs of salmon do need to be explicitly protected and right now the way the agreement seems to be structured, my understanding is that an awful lot of burden is placed on this so-called operations or Ops committee to use a limited amount of water that is available in a flexible way to address the protection when fish are out- migrating through the system. If we have learned anything in our past years of experience in the Delta, it is simply that more than anything else successful out-migration of salmonids to the sea is dependent on adequate flows. There are a lot of non-flow related factors that can be looked at and are often addressed. The success, I think, is dependent on good planning and a lot of other things, and we know that when fish get through the system, there’s a lot of water, and so, in this interim period that we are in now, this three-year period, I urge you to be conservative. And I would also disagree with one of the previous speakers today who argued that explicit salmon protection standards should not be part of the water quality plan. I would argue that they should be, very explicitly so, because right now until we have some long-term solutions in place and we have an operating system that, frankly, we as fishermen can trust, and I am sorry to say at this time we don’t all feel we can trust government in this as fishermen, we would like to be represented in that operations process so that we can watch-dog and make sure that the right thing is going to be done for the fish. Too often when we get into a technical group behind closed doors or in a relatively inaccessible process, bad decisions get made. That is the long history that we have seen from the fishery. I won’t delineate it for you because you all heard plenty of times before. The tragedy of the extinction of the spring-run salmon on the San Joaquin River is something that we as fishermen will never forget or forgive. It is just a fact we have to live with, but it has certainly affected us in our industry and we will never forget it. What I passed out to you is a suggested possible over-arching biological resource objective that you might want to put in your plan. It is the first cut of what I think might be a good definition of ecosystem management. I will read it to you: Preserve, restore, or where those are not possible, simulate an ecosystem that provides for the integrity of biological resources as defined by composition, structure and function. It might be something you might consider adding to your plan as sort of an overall statement to reassure us folks out there on the ocean. And with that, I will be happy to answer any questions. MR. CAFFREY: Thank you very much, Mr. Bingham. Are there any questions? Thank you, sir, for being here and thank you for waiting. It is starting to become a long day. Jim Easton, Delta Wetlands. Good afternoon, Mr. Easton. MR. EASTON: Good afternoon, Mr. Chairman and members of the Board, Mr. Pettit and staff. I am Jim Easton and I am pleased to make the following comments on behalf of Delta Wetlands regarding the Draft Water Quality Control Plan. This plan certainly reflects the arduous and intense effort by your Board, your staff and those who crafted the State and Federal agreement. We are optimistic that the proposed standards will provide the protection required and the certainty pulled for by all users of the Delta, including fish and wildlife, agricultural, urban and industrial entities. In Delta Wetlands’ view, the adaptive management strategies and real time monitoring ideas in the plan are concepts that are extremely important and overdue for use in the Delta. Delta Wetlands strongly supports the flexibility inherent in a plan that provides specific standards along with an operations group capable of evaluating conditions and recommending modified operations consistent with the environmental protection of the Delta and efficient management of the State’s water supplies. To begin our discussion of the specifics of the plan, we would like to recommend an addition to the draft environmental document that accompanies the plan. The document recognizes the need to enhance water supply reliability through the construction of additional off- stream storage and projects that are identified in that report as being under consideration or development are Los Banos Grandes, Domenigoni Valley, Los Vaqueros Reservoirs. We strongly recommend that Delta Wetlands be included in that group. The Board is presently processing Delta Wetlands’ water rights applications. With the release of the water quality control plan, the project’s environmental documentation should be completed in relatively short order, or at least we fervently hope it will be completed in relatively short order. As you are aware, your Board, together with the Corps, is acting as co-lead agency in the preparation of the environmental documents for our project. We hope that the Board will make a high priority of the completion of this long awaited environmental document because as soon as that’s finished and goes out for public review, we can then proceed to the water rights hearings, and once we have obtained a water right permit and the other permits that will be required of the project, we can have Delta Wetlands operational within one year. Delta Wetlands is an important and very viable project in terms of providing enhanced water supply, increased water supply reliability and conserve water that would otherwise flow to the ocean in excess of Delta outflow requirements. This project offers a ready supply of water located in the Sourthern Delta and because of its location and its proximity to the export facilities, Delta Wetlands will be able to respond rapidly to water supply needs. Water diverted to storage on Delta Wetlands’ reservoir islands can be exported later in the year when there’s capacity for wheeling at the export facilities. Also, water stored on the reservoir islands can be used to contribute to Delta outflow or for other environmental purposes as well. It’s the flexibility, the strategic location and the rapid response capability which merits consideration of Delta Wetlands as an important component in the Board’s recommendation to improve water supply reliability by increasing off-stream storage. For these reasons, the Delta Wetlands should be included in the environmental document as a viable off-stream storage project presently under consideration. As I mentioned, the EIR/EIS for our project is being prepared by Jones & Stokes Associates with your Board and the Corps as co-lead agencies. The document is currently being revised to evaluate Delta Wetlands’ operational impacts under the water quality control plan standards. The analysis includes a broad range of interpretations of the new standards to consider a variety of operational scenarios. Modeling shows that Delta Wetlands remains a viable project under the new water quality control plan standards. We recognize that the draft standards do not specifically describe how a facility such as Delta Wetlands will operate, nor do the standards provide how north to south water transfers or in-Delta water transfers are going to be treated. We believe that these types of projects and activities can function within the guidelines set out in the water quality control plan. All that remains to be determined is how the standards will be interpreted in certain situations. We urge the Board to consider carefully these different projects and activities within the Delta and to recognize the similarities and the differences between these activities and projects when you determine how the standards will be applied. We are not proposing specific interpretive language for the Board to consider at this time. We understand that, because of the size, location and importance of the Delta Wetlands project to both water supply and reliability and to water transfers, the Board may want to hold in abeyance any decision concerning how the standards will be applied to in-Delta storage projects, such as Delta Wetlands. If the Board decides to wait until the upcoming hearing on Delta Wetlands’ water rights applications, it will then have the opportunity to evaluate specifically Delta Wetlands’ analysis and to utilize the tremendous amount of thought and energy that have gone into those analyses. At a minimum, however, we believe that the water quality control plan standards should be recognized to encompass all exports from the Delta through the CVP/SWP pumping facilities, including the Bureau and State Water Project contract water, water transfers and water from in- Delta storage projects like Delta Wetlands. The standards presented in the water quality control plan represent an opportunity to define conditions in which water supply operations and fish and wildlife protection needs can be met. The standards not only provide rules in which water supply projects must operate, but also, a recovery-based approach to meeting fish and wildlife needs. We are very optimistic that so long as these standards are being met, adequate environmental protection is being provided. We are confident that the Board will recognize the far-reaching effect of its efforts when considering other projects in the Delta, such as north to south water transfers and in-Delta storage projects like Delta Wetlands. These activities and projects should be evaluated in terms of their ability to operate within the standards and not only in terms of their environmental effect on the Delta, but also, for their potential to enhance overall water supply and contribute to more efficient management of the Bay-Delta ecosystem. I thank you for your time, and I would be pleased to answer any questions if there are any. MR. CAFFREY: Thank you, Mr. Easton. Are there questions? Mr. Brown. MR. BROWN: Jim, what is the revised or the now current projected yield of this project in cost per acre- foot? MR. EASTON: The cost per acre-foot -- I don’t think we have come up with a cost per acre-foot, John. One of the reasons we haven’t done that is we don’t know what it is going to cost yet until we are further down the road to getting permitted, but we are finding that the yield of the project, even with the new standards applied in several different ways, will still leave us with a sufficient yield to have a viable project. MR. BROWN: Do you have a range of what the costs might be that you expect? MR. EASTON: Not that I can give you right now. MR. BROWN: Thank you. MR. CAFFREY: Thank you very much, Mr. Easton, appreciate your being here. Greg Thomas, President of the National Heritage Institute. Good afternoon, sir. MR. THOMAS: Good afternoon. Mr. Chairman and members of the Board, I did provide you with a written statement which I will now endeavor to summarize quickly. I am Greg Thomas, President of the National Heritage Institute. We are a party to the historic Delta agreement in support of the water quality control plan which emanates from that agreement, both because we believe that it will help to stabilize the public trust resources of the estuary, and also, because it provides the foundation, as we view it, for a longer term planning process which we hope can lead to even more optimal environmental standards for the estuary. The current agreement, of course, is predicated upon facilities as they now exist in water management institutions as they now exist. The purpose of a long-term planning process is to improve upon that status quo, but, of course, this Delta agreement should not be regarded as a Panacea. It is simply an interim protection program which represents -- not a ceiling but really a floor on protections for the estuary. In addition to the more protective measures that we hope will result in the long-term planning process, other protective activities will, of course, continue to move forward, including the doubling plan of the CVPIA, environmental water purchases under the CVPIA, and other authorities, and perhaps most importantly at least the prospect of measures taken by regulatory management agencies to avoid the need for listing of additional endangered species; or absent those protective measures, the invocation of the protections of the Endangered Species Act. We continue in the wake of this agreement to have concerns over the species that have been the subject of our own petitions in NHI, the splittail, the longfin smelt and a species that is not currently the subject of a petition but is almost certainly eligible, and that is the spring-run salmon. This water quality control plan, of course, promulgates water quality standards in the Delta agreement, but it is important to recognize that the Board’s responsibility under this agreement extends beyond the traditional water quality setting. EPA’s commitment to withdraw the federal proposal is contingent not merely on the promulgation of State water quality standards, but the State’s adoption of a Bay-Delta protection plan that will provide protection equivalent to those that are available under the federal promulgations, and it is that larger planning effort that I want to address here for a moment. This Delta agreement is full of promise and prospect, but whether it will actually translate into improvement in the estuary is very much the problem before this Board. It has to be made real and the Board should not regard its role here as simply passive as though the parties themselves are going to serve up on a silver platter all of the content of this plan that you are in the process of developing. Particularly with respect to two features of this Delta agreement, I believe the Board is going to need to play a proactive role. The first important opportunity and challenge for you, I think, is with respect to this operations coordination rule. Now, one of the triumphs of this Delta agreement was the concept of operational flexibility so that as much protection as possible could be accomplished within a water budget through real time hands-on, finely tuned management program with all of the parties involved. That’s supposed to be the role of this operations coordination with this Ops group with final appeal of disputes to Cal-Fed. Because of the central role that this body plays, it is important that it work well. In fact, the success of the water quality control plan will largely depend upon how well this Ops group works and we believe that you can improve the prospect of it working well by providing in the water quality control plan, at least on a default basis, at least if the parties themselves, the members of the Ops group, don’t come up with a charter for the operation of the institution, we believe you should do so in the water quality control plan. The charter, we believe, needs to reflect the balance of interests that produced the agreement as voting members with the addition of commercial and sportfishermen, who should have been part of the negotations and now should be part of the operations group. That charter should specify the voting members, the voting rules, the rules for convening and the conduct of meetings, and the criteria process for referring these views to Cal-Fed, we believe. It should also deal with the procedural milieu in which the Ops group is going to have to operate. Particularly, it appears to us as though it is going to be important to charter this Ops group under the Federal Advisory Committee Act and to make sure it meets the California Brown Open Meeting Act. Now, this is tricky and it is going to, I think, require some consideration on how to set up this charter. Our suggestion to you would be that you take steps to remove the legal cloud that these procedural requirements can otherwise pose by seeking an advisory committee from the Attorney General as to how to constitute this Ops group consistent with the Brown Act, and we are also going to urge the Department of the Interior to seek the Solicitor’s opinion on how to operate under the Federal Advisory Committee Act, not because opinions from these sources are necessarily going to be determinative, but they certainly would be persuasive in the event that a challenge is ever mounted to the operations of this institution based upon compliance with those statutes. Now, our own analysis leads us to the view that by constituting the Ops group as a formal FACA committee, it would then be possible to allow the actual day-by-day decision making of the Ops group to be conducted by subcommittees which would not have to be separately constituted under FACA on an intersession basis, if you will, with the decisions ratified by the full committee. We suggest that that particular approach be suggested to the Attorney General and to the Solicitor, and that the advisory opinions specifically address this proposal. The charter should also establish the limits of the Ops group’s authority. Specifically, to be consistent with the Delta agreement, the charter should provide explicitly that the Ops group and Cal-Fed are not empowered to constrain the State and Federal resource agencies with respect to decisions on allowable take under the Endangered Species Act. We turn now to the Category 3 initiatives and funding for a moment. The State Board needs to appreciate that this commitment to a 180 million dollars mitigation and enhancement fund is an integral part of this agreement and we on the environmental side would regard failure to implement that pledge as a material breach of this agreement, and that is of some concern. The only party so far that has taken their checkbook so far has been the Metropolitan Water District. While we don’t question the good intent of the other parties to this pledge, the fact is so far there has been more talk and discussion than there has been actual demonstration of willingness to step forward with that funding. Now stakeholders are meeting regularly. They are looking at sources of funding, they are looking at the responsibilities of the public agencies and the water users for providing it, they are looking at the scope of activities, they are looking at the kind of things that should be eligible for funding and belated matters. And this is a continuation of the process that produced the agreement and we think it ought to be given a fair chance to produce results, but we don’t think that the State Board should just blindly assume that volunteerism is going to necessarily provide the funding, and for that reason, we suggest that you include in the water quality control plan a set of default requirements regarding the funding and the use of funding, provisions that would come into play only if the coalition that is negotiating fails to present a workable program. The features of that default program that we suggest to you -- first of all, it is going to be important to apportion this responsibility for providing funding as among the various public agencies and water users. These pledges will remain hollow until they are particularized, and if the parties themselves don’t do that, then we think the State Board needs to come up with an assessment formula, if you will. In terms of how the funding will be raised in the absence of voluntary contributions, we suggest that the water quality control plan, again on a default basis, provide for the establishment of a water users fee program not unlike the one that was devised by this Board in its D- 1630 order with one important exception. We, having looked at it with some care, believe the Board does have the legal authority necessary to assess water users and create the fund. The problem is we don’t believe under State law that you can actually be the custodian of the fund without that money being lost to the general fund and then being subject to appropriations by the Legislature. So, we would like to work with you on a structure that would avoid that problem, perhaps by allowing a non- governmental entity to act as the custodian of the funds, either pursuant to contract with the Board, or maybe more ideally, a special purpose non-governmental, non-profit entity that would be created by the stakeholders themselves, and an entity that they could control and govern. Also, bear in mind as we think about this very important fund, that it really was the contemplation of the parties, we believe, that the funding would consist of new moneys; that is, money not otherwise available for improvement in the Delta, rather than simply a double counting of moneys that would otherwise be available. There is reference in the agreement to the possibility of reprioritizing existing governmental programs, but that’s not to say that, for instance, the restoration fund, federal restoration fund should be counted against this 180 million dollar pledge, except to the extent that that money would not otherwise be available for Delta initiatives. Talking now about new money and the possibility of new initiatives; another consideration, some water users apparently prefer to initiate their own so-called Category 3 activities and have those initiatives credited against the funding obligation. That can be workable, but we do have a concern that unless that is supervised, initiatives only tangentially related to improvements in the estuary, may end up dissipating a fair amount of this fund. Our suggestion there is that the water quality control plan should set forth criteria governing the types of mon-monetary contributions that should qualify Category 3 activities, final judgment as to whether or not to, if you will, certify those as Category 3 activities, final judgment as to whether or not to, if you will, certify those as Category 3 activities, lying with the Fish and Wildlife protection agencies at the Federal and State level -- Fish and Wildlife Service, National Marine Fisheries Service and California Department of Fish and Game. One final consideration, again related to the types of activities that ought to qualify as Category 3 activities, we believe it is artificial to assume that Category 3 activities will be non-flow initiatives only. It makes more sense from our standpoint to approach Category 3 as an opportunity to provide the most cost effective improvements in habitat conditions in the estuary whether they happen to be screens, purchase of Delta islands or, indeed, purchase of water for enhanced flow purposes. This could be important for a couple of reasons. First, the agreement limits the use of water for protection to currently listed species, bear in mind, and yet, there are a suite of species that are highly stressed and that are likely to need additional attention beyond what’s provided in the agreement. We believe that the Category 3 funding should be available for this purpose. It is certainly far better to use the funding than to have to resort to listing these species under the Endangered Species Act. The second, as has been alluded to several times today, the San Joaquin fall salmon protections in this agreement are at least in the near term going to be dependent upon water releases from New Melones, which there is every reason to believe will not always be adequate for this purpose, in fact, will often not be adequate for this purpose, and it may well be necessary to come up with additional San Joaquin flows during this interim period before you finalize your water rights decision to attend to the needs of the San Joaquin fall-run salmon. So, again, having Category 3 funding available for that purpose would be, it seems to us, in the interest of all parties. I guess in the interest of avoiding going over any of the ground that the Bay Institute already plowed for you, I will just stop at this point and take any questions that you may have, and just refer you to the written statement for some additional recommendations. MR. CAFFREY: Thank you very much, Greg. Are there questions for Mr. Thomas? Anything from staff? Thank you, sir. We have your document here and we will read it with great interest. Thank you very much. Margaret Johnston. Good afternoon. MS. JOHNSTON: Good afternoon, Mr. Caffrey, and members of the Board. My name is Margaret Johnston, I am Executive Director of the San Francisco Estuary Institute, which many of you may know as the predecessor organization, Aquatic Habitat Institute. Early in 1974, we did change our name, changed our Board of Directors structure and our mission statement which now is to provide scientific understanding necessary to manage the complex and biologically rich San Francisco estuary. In fact, we have changed our role from looking strictly at pollutants to looking at the overall health of the San Joaquin estuarine institute, and we accepted the task under the San Francisco Estuarine Program, Comprehensive Conservation and Management Program, of attempting to implement a comprehensive regional monitoring strategy in cooperation with other groups that monitor the estuary, such as the Interagency Ecological Program. We do conduct extensive trace substances monitoring in the estuary and we are trying to put into place a wetlands monitoring program. We will also be looking at the overall monitoring strategy for the estuary and what is being done currently under existing programs, what is not being done, and try to implement those additional elements that are needed. I also would like to bring out that we are requested in the water quality plan to work together with the CVPIA and the Interagency Program to implement a coordinated approach to the monitoring needs under the water quality plan. Because the by-laws of the San Francisco Estuary Institute precludes us from commenting or advocating water quality policy regulations, my comments have only to do with the monitoring program and I would also like to state that we have very little concerns or worries about the compliance monitoring or the operations monitoring. Our concern is with the efforts to understand whether the water quality plan and all associated habitat improvement measures are, in fact, going to have the desired effect on improving the health of the estuary. We are very pleased that the need for this kind of monitoring is recognized in the plan and we recognize it as being absolutely essential. This morning, Mr. Coulston presented to you some idea from the interagency program on the monitoring program that they hope to have in place. We recognize this as a very good start to get a comprehensive monitoring plan in place, and it is based upon, of course, adopting the current monitoring program. But the plan that you will have in your hands is really just a start and it needs a great deal of work before it really can be considered a blueprint for a long-term monitoring effort. In addition to needing a real definition of success in order to design a monitoring program, there are other issues such as replication and statistical power of your measurements that have to be fully analyzed before we have confidence in the results of the monitoring. We strongly recommend that the current draft monitoring plan and the subsequent iterations of that plan will add the details when, where and what is monitored, that these plans be subject to extensive external review, and call upon the expertise already available in scientific advisory groups that have been formed to review the work of the Interagency Ecological Program and the San Francisco Estuary Institute. At this point, neither of those groups have been asked to review the plan that’s being presented. We would also like to point that we need to think of monitoring the estuary in a synoptic way. In addition to the control flow and diversion, these other Category 3 activities that are proposed, such as reducing the pollutant load, increasing wetland habitat availability and controlling exotic species also need to be looked at at the same time we are examining issues of flow and salinity. Monitoring of Category 3 activities will not be effective if done on a piecemeal case-by-case basis, unconnected to the long-term program designed to determine compliance with flow and salinity requirements. Many agencies and organizations outside of the current Interagency Ecological Program structure will need to be involved in developing this comprehensive, synoptic approach to monitoring. As an example, in trace substances monitoring, we will also need to include both Regional Boards 2 and 5, the Sacramento comprehensive monitoring program, the U. S. Geological Survey’s water quality assessment of the Sacramento and San Joaquin River basins will all need to be coordinated. We are willing to help provide the needed coordination process. We also hope that the Board is very well aware of the fact that few of the answers that all of us desire concerning the effectiveness of the control measures now being put into place will actually be available within a three-year period. As you are quite aware, the extreme variability in natural conditions, and the complicated ways in which humans impact that system, make it a very challenging job to tease out cause-and-effect relationships from the information that we collect. This is something that can only be done by taking a long term view of monitoring and also supplementing monitoring with the research program that really examines how the estuary functions as an ecosystem. After the initial rush to get the monitoring program started, thoughtful and deliberative evaluation and re- evaluation of program efficacy is and will continue to be required. The Institute will fully cooperate with the Board and with the Interagency Ecological Program, with water users and public interest groups, to try to insure that the monitoring program is, in fact, the best that it can be and truly answers the question of whether the control measures being put into place are having the desired effect. We are happy to continue to work through the Interagency Ecological Program in this effort, but we want you to be aware that we are willing and able to play a larger role in monitoring program design, in implementation of monitoring elements addressing pollutant effects and wetlands, and riparian habitat condition, and data management, in the interpretation and reporting of data, and in coordinating research, and in particular, we think it is necessary that we do a much better job than we have in the past of communicating the results of this kind of monitoring and the effectiveness of the control measures to the general public in making it understandable. Thank you. MR. CAFFREY: Thank you very much. Are there any questions of Ms. Johnston? MR. DEL PIERO: In terms of the ability of your organization to participate, how many employees do you have? MS. JOHNSTON: We have 12 full-time employees and about as many part-time. MR. DEL PIERO: Thank you. MR. CAFFREY: Any other questions? Anything from staff? Thank you very much. Christopher Foster, representing Area 1 repre- sentatives of Westlands Water District. Good afternoon, sir. MR. FOSTER: Good afternoon, Mr. Chairman and members of the Board. My name is Christopher Foster. I am here to speak on behalf of several court-appointed representatives of Area 1 and certain other farmers in Area 1. Area 1 is the original and largest portion of the Westlands Water District which is a portion of the San Luis Unit of the Central Valley Project. I have submitted written comments which cover a number of concerns. I would like to discuss briefly the chief concern that we have with the draft plan. In December of last year, the Bureau of Reclamation voluntarily announced that it would operate the Central Valley Project according to the restrictions set forth in the draft plan. Last week, the Bureau made its water allocations for this coming water year and whereas most of the Central Valley Project contractors are receiving 100 percent of their entitlement, Area 1 is receiving only 75 percent, and our chief concern is that the Bureau is employing the restrictions in the draft plan to take away water rights of Area 1, and we have this interim period between the adoption of the draft plan and when the implementation takes place with the water rights decision, and during that interim period rights are being modified and abridged without the appropriate process of the water right decision to change the permits that the Area 1 farmers hold. So I don’t have a perfect solution today to offer in a manner to modify or amend the draft plan to avoid that problem, but I look forward to working with the staff and opening a dialogue so we can address this and explore ways that the draft plan can preserve the rights of the Area 1 farmers in this interim period. Any questions? MR. DEL PIERO: I guess I am not familiar enough with Area 1. I didn’t understand Area 1 had any rights. I understand they had a contract; is that not right? MR. FOSTER: They have contractual rights and they have rights from 25 years of application of water for beneficial use on their farms. MR. DEL PIERO: From where? MR. FOSTER: They have permits held by the Central Valley Project, beneficiary of the permits. MR. DEL PIERO: But the CVP, the Bureau actually holds the permits, the farmers do not? MR. FOSTER: That is correct. They are the beneficiaries. MR. DEL PIERO: So, what you are talking about is reductions in terms of their contractual allotments; is that not correct? MR. FOSTER: The contractual as well as rights that they are beneficiaries of under the permits. Those rights are being taken away. They are not getting 100 percent of the water that they have in the past. MR. DEL PIERO: And you are asserting that’s a function of the implementation of the water quality plan or are you asserting that is a function of the implementation of the CVPIA? MR. FOSTER: No, we are asserting that it is in part, and we are not completely sure exactly what it is that’s causing Area 1 only to receive 75 percent of its entitlement when the rest of the CVP-wide users are getting 100 percent, but it is partially, we understand, as a function of the Bureau’s deciding to implement the operational restrictions that are set forth in the draft plan prior to its adoption and prior to any modification through a water right decision of the permits. MR. DEL PIERO: And the Bureau represented that to you? MR. FOSTER: The Bureau has not made a specific representation, but it sort of follows from the fact that the Bureau is saying they are operating the Central Valley Project under the restraints and restrictions of the draft plan, and people are getting -- many of the contractors are getting 100 percent, and in this wet year Area 1 is getting 75 percent, so at least in some parts, it is our understanding that it’s based on the restriction that the draft plan imposes that’s causing the Bureau to withhold 25 percent of Area 1’s water. MR. DEL PIERO: Why do you assume that? I don’t understand how you reach that conclusion when the Bureau is also holding back water under the Central Valley Project Improvement Act. MR. FOSTER: I assume that because the Bureau’s statement is that they are operating the Central Valley Project under the restrictions of this draft plan. We haven’t had anything that contradicts that assumption, that this at least is in some part responsible for withdrawing 25 percent of the water. MR. DEL PIERO: That is the conclusion you have reached based on that statement, and what else? MR. FOSTER: And the fact there hasn’t been any contrary indication from the Bureau that it is not at least in part based on their operating under the restrictions that are contained in the draft plan. MR. DEL PIERO: Have you or any of your clients approached Mr. Patterson for an affirmative answer one way or the other that the reason for the reduction is based on that or some other activities? MR. FOSTER: I don’t know that for sure. MR. DEL PIERO: Thank you very much. MR. CAFFREY: This is a little unusual, I just received this card from Mike Heaton representing Westlands. Did you wish, Mr. Heaton, to respond to this discussion? MR. HEATON: I will just take my turn when it comes up. I do want to respond to a couple of things. Perhaps I can clarify a couple of things. MR. CAFFREY: All right, thank you, sir. We will be with you shortly then. Mr. Foster, thank you very much. I don’t quite know how to answer your concern. It seems to me, though, that some clarification from the Bureau might be in the offing for you as to how they get to their 75 percent allocation for your clients. I don’t have an answer in terms of how this proposed plan may or may not affect that. MR. FOSTER: I think that would be one method, but the other might be some language in the draft plan that insures that the use of the draft plan by the Bureau is not the basis for the withdrawal of any of the rights of water from Area 1. MR. CAFFREY: Thank you very much. We have your document and we will take a quick look at it. Thank you. Lowell Landowski, representing the Bay Fishermen’s Coalition. MR. LANDOWSKI: Good afternoon, members of the Board. I am concerned about the proposed research and limitation on introduced species, specifically striped bass under recommendations to other agencies. I feel that it is a case of pitting one species against the other and maybe punishing a substantial population to benefit other beneficial uses under water diversions. But even though that’s the case, one thing that concerns me more is the lack of a detailed cost-benefit analysis in this document. Under the section in the environmental analysis under conclusion, it states: The management of controllable factors is associated with the decline of aquatic resources. However, the relative effects of controllable and uncontrollable factors have not been quantified. Therefore, management of controllable factors may not significantly improve the condition of aquatic resources in the estuary due to the effect of uncontrolled factors, but such efforts should be made with this uncertainty in mind. I don’t think that efforts that potentially impact employment, substantial capital investment, small farms, fishermen’s lives should be done with this uncertainty in mind. Currently the Congress of the United States is considering just such legislation. The cost-benefit analysis would be an essential factor in any decision-making process involving regulations. While I am interested in preserving Delta fish because I love the Delta, some people love the ocean and the mountains, and I love them both, but if you ask me which I love the most, it would be the Delta. That’s where I spend my free time. But if I knew that putting some farmer out of work might enhance my pleasure by some insignificant incremental degree, I couldn’t sleep at night. I would like to know what are the costs, what are the benefits of all these aspects that are being considered in this plan. I would urge the Board to beef up or at least provide some substantive discussion regarding costs and benefits of these actions proposed. Another factor that should be considered is upstream water storage facilities. I don’t see much mention of it, but since we are talking about limiting diversions in order to increase flows for beneficial purposes, we should also consider increasing storage to allow more flow to allow an easier and more humane balancing of these interests. I find it ironic that groups that might oppose upstream water storage would also be diligent in their advocacy of limiting diversions at the same time. It seems like cutting it off on both ends. So I would just urge the Board to consider a cost- benefit analysis as one of the key elements of this whole decision. We are talking about tax dollars and we are talking about the source of those tax dollars, business activities, and then we are talking about impacts and benefits to wildlife and recreation, which we are all for and benefit in, but we need to know more about costs. MR. CAFFREY: Thank you, Mr. Landowski. Do you have a submittal? MR. LANDOWSKI: No, I don’t. MR. CAFFREY: Thank you, sir. Mike Heaton, responding to the discussion on Westlands Water District. Good afternoon, sir. MR. HEATON: Good afternoon, Mr. Chairman and members. I am Mike Heaton, General Counsel for Westlands Water District. I hadn’t prepared anything but there were a couple of things said this afternoon that I feel somewhat obligated to respond to. The first comment that I wanted to respond to was that of Mr. Thomas from NHI, and I was out arguing with Greg in the hallway and I walked in on Mr. Foster’s statement, and I thought I had to respond to that one as well. Greg Thomas made a statement, something to the effect -- I will put a few words in his mouth, but basically what he said was restoration fund money doesn’t count against the 60 million dollars that is referenced in the Bay-Delta agreement. We didn’t get that resolved in the hallway -- MR. CAFFREY: How come? MR. HEATON: I don’t think that’s abuse of the federal contractors, but I just wanted to make sure that was clear. MR. DEL PIERO: Is that something you can work out between now and the end of the month? MR. HEATON: We are going to have to sort that out. I think it was clearly the view of the federal contractors who were involved in the Bay-Delta negotiations that at a minimum, to the extent that activities undertaken with restoration fund money since CVPIA was compatible with the category 3 project criteria, that there is credit and that that the money will count. We are not going to get it twice. MR. DEL PIERO: That’s the position of the contractors? MR. HEATON: I think it is fair to state that is the position of the CVP contractors. MR. DEL PIERO: Is it fair also to state that that was not resolved during the agreement that was worked out and proposed on December 15? MR. HEATON: It probably is. The language is probably somewhat ambiguous. I think it is going to be those things in retrospect we will look back and say different parties meant different things. MR. DEL PIERO: I have been asking the question for the last month and a half, and nobody can give me an answer, so that’s why I asked. MR. HEATON: I thought we meant what we gave at the office. Others may have a different view. MR. DEL PIERO: The Chairman says you guys can have until March 10 to work that out. MR. HEATON: We will do our best. When I walked in Mr. Foster was speaking. I am sorry I didn’t get a chance to talk to Chris ahead of time. I just wanted to make it clear, at least from what I heard of Mr. Foster’s statement was clearly representative of the views of individual landowners within Westlands and not the views of the Board of Directors or Westlands Water District. Westlands has been a very active participant in this process and while our board hasn’t taken a formal position on the draft plan, we have been authorized and directed staff and consultants to participate in all aspects of these processes. We fully supported the San Luis-Delta-Mendota Water Authority. We are the largest member of the Authority. I think, again, without having formal resolution by the Board, the Westlands board is supportive of the draft plan. We want to see it implemented and want to see the process work. I think I might be able to just add some factual clarification to the allocation situation on south of the Delta. Mr. Foster is correct that the allocations to South Delta federal contractors this year of 75 percent of the contractual entitlement. That is not something unique to Area 1 in Westlands. It is a situation with respect to all water service contractors south of the Delta. That includes the Delta-Mendota Canal division contractors, the other San Luis Unit contractors which are Westlands, San Luis, Panoche and Broadview Water Districts, and San Benito County Water District in the San Felipe Unit. They have all received 75 percent. We are no happier than Mr. Foster’s clients about the fact that everybody else is getting 100 percent and we are only getting 75 percent, but we believe the fact we are getting 75 percent in some measure is a reflection of this program and this draft plan, and the fact the projects are operating in this plan. We believe that if we were, say, operating, for example, in 1995 under criteria constraints similar to what we had in 1993 when we had 50 percent in a wet year, or 1994 which was a dry year in which we had 35 percent, we are actually a lot better off now under the draft plan than we would be without it. There would probably be to the tune or 15 or 20 percent incremental differences in our contract supplies. Why are we only getting 75 percent? There’s a number of reasons. The Bureau and the State projects have agreed to voluntarily comply with the Bay-Delta agreement, or the draft plan. The Bureau has other constraints, though, as well. Separate and apart from Delta pumping constraints, the Bureau now has a contractual obligation south of the Delta that exceeds the capacity of their Tracy pumping plant of the capacity of the upper Delta-Mendota Canal somewhere in the neighborhood of 2 or 3 hundred thousand acre-feet, and this is a function of the San Felipe Unit, San Benito and Santa Clara being on line, and the functions of the obligations now to the refuges south of the Delta. The level 2 obligation to the refuges south of the Delta itself is 210, 212 thousand acre-feet. This is an obligation that did not exist prior to October 31, 1992, and that took up a big chunk of the remaining capacity at Tracy. The fact is our analysis shows that even if you had no constraints in the Delta, none whatsoever, we can’t get to 100 percent. We always run about ten percent short because you can’t move enough water through Tracy. That’s why the consolidated point of diversion is so important. MR. DEL PIERO: I don’t mean to start a war, but it is my understanding that there is at least one agency in that area that has received 75 percent allocation and is having real difficulty getting this water received as part of their allocation, particularly the M&I allocation. They can’t find anybody to take it. MR. HEATON: Give me the name and we will take it. No, I am not familiar with the situation you are talking about. I have no information on that. That’s all I really have to say. I wanted to clarify those two points. I would be happy to answer other questions. MR. CAFFREY: Are there any other questions? Anything from staff? MR. FOSTER: Mr. Chairman, I just want to make sure that it is confirmed that my statements were not meant to be on behalf of Westlands, but particularly Area 1. MR. CAFFREY: Thank you for clarifying that. All right, ladies and gentlemen, let me state then that that completes the cards for today, and just by way of letting you know what is going to happen now, and I will look to Mr. Pettit to correct me if I err, but as to when you will hear from us next goes to how long it takes us to respond to your various comments and assimilate them after March 10, so to speak, because March 10 is the deadline, so sometime after March 10 as quickly as we can, we will again come forward with the draft plan, possibly revised, possibly not, depending on how all the comments meld. And we will then move toward a meeting with that draft to adopt it. And so, we will be letting you know what the timing of all this is through the public notification process as quickly as we can. Is there anything else, Mr. Pettit? MR. PETTIT: Just a clarification, Mr. Chairman. As you know, I was out for a few minutes after the lunch recess, and I have a submittal here from the Woodbridge Irrigation District and I want to make sure they either didn’t intend to speak or you covered them while I was gone. MR. CAFFREY: I did see that and we did not. I saw Mr. Gallery here earlier. Is anybody here wishing to speak on behalf Woodbridge Irrigation District? It is not required. We do have the submittal. MR. HOWARD: Mr. Gallery left me a note to that effect. MR. CAFFREY: Anything else? Thank you all very much for attending our hearing. The hearing was adjourned.) I N D E X Page PATRICK COULSTON, Interagency Ecological Program 6 DAVID ANDERSON, Department of Water Resources 11 ROGER PATTERSON, Club Fed 16 GLEN BIRDZELL, City of Stockton 20 ALEX HILDEBRAND, South Delta Water Agency 24 JOHN HERRICK, South Delta Water Agency 27 JEANNE ZOLEZZI, Stockton East Water District 29 ED STEFFANI, Stockton East Water District 38 STEVE MACAULAY, General Manager, State Water Contractors 39 CHRIS HYASHI, Joint Water Users 40 GREG GARTRELL, Contra Costa Water District 42 DAVE SCHUSTER, water transfers 43/52 WALT WADLOW,Prinipal Engineer, Santa Clara Valley Water District 45 DAN NELSON, Executive Director, San Luis Delta-Mendota Water Authority 48 ALAN LILLY, Yuba County Water Agency 57 CHRIS HYASHI, San Francisco Public Utilities Commission 63 TOM ZUCKERMAN, Central Delta Water Agency 69 RICHARD GOLB, Northern California Water Agencies 76 PATRICK PORGANS 79 CRAIG WILLEY, San Joaquin County 89 WILLIAM R. JOHNSTON, San Joaquin River Tributary Agencies 94 JIM CHATIGNY, Manager, Nevada Irrigation District; Chairman, Delta Tributary Agencies Committee 104 GARY BOBKER, Bay Institute of San Francisco 110 STEVE MCADAMS, Assistant Director, San Francisco Bay Commission 121 NAT BINGHAM, Habitat Director, PCFFA 125 JIM EASTON, Delta Wetlands 129 GREG THOMAS, President, National Heritage Institute 135 MARGARET JOHNSTON, Executive Director, San Francisco Estuary Institute 145 CHRISTOPHER FOSTER, Area 1, Westlands Water District 151 MIKE HEATON, General Counsel, Westlands Water District 155/159 LOWELL LANDOWSKI, Bay Fishermen’s Coalition 156 --o0o-- 88