THURSDAY, JUNE 8, 1995, 9:00 A.M.
--o0o--
	MR. CAFFREY:  Good morning and welcome to this 
proceeding.
	My name is John Caffrey, Chairman of the State Water 
Resources Control Board.
	Let the record show that we have a quorum of the 
Board present.
	Mr. Del Piero is representing the Board in another 
matter elsewhere and will not be joining us today.
	By way of introduction, proceeding from my immediate 
left if Board Vice Chair Mary Jane Forster.  To my immediate 
right is Board Member James Stubchaer and next to Mr. 
Stubchaer is Board Member John Bown.
	This is the time and place for the Board meeting to 
consider adoption of the water rights order on changes in 
the Department of Water Resources and U. S. Bureau of 
Reclamation water right permits in the San Francisco 
Bay/Sacramento-San Joaquin Delta estuary.
	In a few minutes staff will make a presentation on 
the proposed order.  
	Any party who wishes to comment orally on the order 
before the Board takes a vote should fill out a blue card 
such as the one I am holding up.  I have about 11 here with 
me this morning.  If you do wish to speak today, please fill 
out a card immediately and give it to us so we will be able 
to have some kind of idea how much time we need to devote to 
this morning's meeting.
	We will limit the time for each oral comment to no 
more than ten minutes.  
	I would like to remind you that since this is a Board 
meeting and we have completed the hearing, we will not be 
accepting any new evidence today.  As most of you know, the 
Board held a hearing on this matter on April 18, 19 and 20, 
1995, and the hearing record was closed on April 28, 1995.
	Therefore, your comments must be limited to argument 
concerning the hearing record.  We cannot accept new 
evidence this morning.
	With that, let me introduce the folks at the front 
table.  Proceeding from the point immediately in front of 
Ms. Forster is our Board Assistant, Maureen Marche¢.  Next to 
her is Chief Counsel for the Board, Bill Attwater.  Next to 
Mr. Attwater is Walt Pettit, our Executive Director; and 
next to Mr. Pettit is Dale Claypoole, our Deputy Director.  
Next to Dale is Barbara Leidigh, our Senior Counsel in this 
matter.  Next to Barbara is Jerry Johns, the Chief 
Hydrologist, so to speak, in this matter.
	Jerry, did I give you a new title?
	And, of course, around the table from Jerry is Alice 
Book, who is our court reporter and who has served the Board 
well for many many years.
	With that then, we will begin the meeting with our 
presentation from staff, and I believe you are going to do 
that, Jerry.
	MR. JOHNS:  That is correct.
	Good morning, Mr. Caffrey.  
	As you know, this action is a response to a petition 
received from the Department of Water Resources and the U. 
S. Bureau of Reclamation that we received on February 28.  
And, as you mentioned, we had a hearing on April 18, 19 and 
20.
	This petition is to conform the permit terms and 
conditions imposed in water rights Decision 1485 and 
Decision 1422 with the objectives recently adopted by the 
Water Resources Control Board in the 1995 Bay-Delta Plan and 
to allow under certain conditions, to allow the Department 
of Water Resources and the Bureau of Reclamation to use each 
other's facilities in the Sourthern Delta to pump each 
other's water.
	There are two items I would like to mention to the 
Board this morning.  We passed out the draft of this order 
on May 31, and I think most of the parties have had a chance 
to review this order and may have comments for the Board 
today.
	We have received two letters from parties, one from 
the Department of Fish and Game and one from representatives 
from certain landowners in Area 1 of Westlands Water 
District.
	The letter from the Department of Fish and Game deals 
principally with a no-jeopardy finding regarding this order 
that we requested from them as part of our consultation 
under the Endangered Species Act.  The letter also mentions 
three good examples of how this order might be interpreted 
and used by the parties, and I think it is worthwhile for 
you to have a look at that and make usre you feel 
comfortable with those interpretations.
	We looked at it and agree with those interpretations 
and think they are appropriate.
	More important, we did get a finding of no jeopardy, 
so we are clear from an Endangered Species Act standpoint.  
We will file today a Notice of Determination with the 
Clearing House should the Board decide to act on this matter 
positively.
	The letter from the Area 1 representative might best 
be summarized by them.  I am sure that they are here, and I 
will let them discuss them themselves.
	The other item deals with an errata.  In our review 
of the order we found a couple of things:
	First of all, there was a date error in the cover 
memo that went out on the 31st of May and that's mentioned 
in the errata.  Copies of the errata were given to the Board 
members today and there are additional copies at the table 
if people haven't already picked them up.
	There are also four items that I will briefly 
summarize here that we caught as we reviewed the decision.  
The first is rather a technical problem dealing with the 
1995 Water Quality Control Plan and how much of that was 
adopted in Decision 1485.  Because at that time the Board 
did not have the permits of New Melones, the 1422 permits 
before it, it did not require in Decision 1485 meeting the 
South Delta standard, salinity standards, in Decision 1485, 
and we left that to another water rights proceeding.
	So, we have corrected the wording here to make sure 
that's correct.
	Also, on page 16 we attributed signing of the 
Principles for Agreement to the Department of Water 
Resources and the Bureau of Reclamation.  They have informed 
us they didn't actually sign that agreement.  That was 
actually signed by the Department of the Interior the 
Resources Agency, and subsequent to the signing is actually 
when they made an agreement to meet the flows and terms of 
the Principles for Agreement as a development of their 
biological opinion for winter run and for Delta smelt.
	So, we have corrected that language.
	Also, in the order we make reference to Decision 1485 
permits and Decision 1422 permits, so in Attachment 1 we 
thought it best if we noted these as DWR permits in this 
matter or all D-1485 permits.
	So, we made that suggestion for change, and also, we 
noted in Attachment B that we did not exactly get the 
precise language that the order adopted in the 1995 Water 
Quality Control Plan for the footnote, so we have made that 
correction to make the footnote consistent with the Water 
Quality Control Plan the Board just adopted.
	So, those are the four errata we found.  There may be 
others that other parties may bring to your attention today.
	So, my suggestion is that we hear from them at this 
time.
	MR. CAFFREY:  All right, thank you very much, Mr. 
Johns.	
	We will take the cards in the order of their 
submittal and I will read the names of the order that I have 
them here:
	Morris Allen
	Dan Nomellini
	Jeanne Zollezzi
	John Herrick
	Alex Hildebrand
	Ed Steffani
	Thomas Shephard
	David Anderson
	Greg Zlotnick
	Cliff Schulz
	And if necessary, John Renning from the U. S. Bureau 
of Reclamation.
	That will be the order that we will take up the 
speakers absent any dire scheduling emergency.
	Mr. Allen, are you ready to speak?  Good morning, 
sir, welcome.
	MR. ALLEN:  I would like to defer my presentation 
until after Ed Steffani makes his presentation, if that's 
satisfactory to the Board.
	MR. CAFFREY:  Hearing no objection, we can certainly 
do that.
	All right, Dan Nomellini.  Good morning, Mr. 
Nomellini, welcome.
	MR. NOMELLINI:  Good morning, Mr. Chairman and 
members of the Board. 
	For the record, my name is Dante John Nomellini, and 
I am attorney for the Central Delta Water Agency.
	The portion of the decision or proposed order that I 
would like to focus on deals with the issue that I raised at 
the inception of the hearing regarding the possibility that 
the impartiality of the Board's action in this matter has 
been tainted or jeopardized.
	If you recall, I made a formal request for disclosure 
and that was responded to by the Board.  In addition, 
Barbara Leidigh provided me with copies of written documents 
that were in the Board's records consisting of various 
notes, I think primarily of Walt Pettit's notes, portions of 
his calendar and various other documents.
	I have packaged those and provided them.  I realize 
you are not accepting evidence.
	I was told by Mr. Attwater he had provided the Board 
copies. 
	I would like to formally offer those into the record 
on the question of impartiality which I think is a critical 
issue to be raised prior to decision in this matter.  So, I 
offer them.  I have provided 20 copies and I served copies 
on all other parties by mail, and I brought extra copies and 
I think everybody has them here today.
	MR. CAFFREY:  I believe it was our intention also to 
provide copies, if we haven't already, of our own response 
to all the parties.  Is that not the case?
	MR. ATTWATER:  That is the case.
	MR. CAFFREY:  With regard to the question of whether 
or not this should be included in the record, the record is 
closed.  
	Can you give us some advice, Ms. Leidigh?
	MS. LEIDIGH:  I would suggest since we already have 
this in our possession in our files, that it doesn't need to 
be accepted as evidence.  It is there.  You could take it as 
part of Mr. Nomellini's argument, I suppose, as far as 
having the document is concerned.  But we won't treat this 
as an offer of evidence at this time.
	MR. CAFFREY:  I think that's an appropriate 
recommendation.  
	Is there any objection from Board members that we 
proceed on the basis of the advice of Ms. Leidigh?  All 
right, that will be the order.
	Please proceed, Mr. Nomellini.
	MR. NOMELLINI:  Your proposed order, Draft Order, at 
pages 16 and 17 addresses this very question of conflict.  
It is under the title of Conflict of Interest Allegations.  
Basically, the position of the order, if you adopt it, 
contends that the staff members were present only for the 
purpose of observing and providing information, and, of 
course, the concern here is the Principles for Agreement and 
the negotiations leading to those.
	The Draft Order also states that they did not 
participate in the negotiations, they did not advocate any 
position that was the subject of the Principles for 
Agreement, nor did they serve as a communications link 
between the negotiators and the Board members.
	Now, I believe the documents that have been provided 
me show that statement is false.  Now, the consquence of 
that in terms of prejudice to the proceeding and tainting of 
the impartiality is something I cannot conclude on.  I can't 
tell you that the thing has been brought to the point where 
it cannot be properly acted upon, but I feel that there's 
enough evidence here, and I am going to point out some 
specifics to you before I sit down, but I think there's 
enough evidence here that merits this Board deferring action 
today because I think we are through the April and May 
period on the fishery thing, and I don't know why there's 
any urgency to act on this petition today.
	But I would ask that you defer action today, that you 
notice a hearing on the question of this impartiality and 
the question of conflict of interest, that we set that for 
hearing.  I would suspect it would take a couple of days 
because I think what should be done is the parties that are 
evident to the proceeding, evident in these documents, 
should be subpoenaed by this Board before the Board, and we 
ought to have an airing of what these are prior to making 
the decision.
	Now, I think this is going to have to be fair to that 
and cleaned up somewhere, and I think the right place to do 
it is here for you people to evaluate it. 
	The consequence, assuming we found some impartiality 
was jeopardized, there are a number of sequences, and I only 
offer these just to let you know that I don't envision a 
complete breakdown of the process assuming we were satisfied 
there was some breach, there could be a change of staff, a 
reassignment of staff, the people that worked on this would 
be substituted with people that weren't tainted, assuming we 
found the taint.
	If there were any Board members that were implicated 
in the thing, they would, of course, be expected to 
disqualify themselves and remove themselves from the 
proceeding so it may not involve a total jeopardy situation.
	It's not something that we as lawyers find unusual.  
We run into judges all the time that say, I talked to so and 
so about this case, or I know somebody here and I am not 
going to hear it.  Go see the presiding judge. He will 
assign somebody else.  
	So, that's what we run into and I think you people, 
when you deal with water rights, are expected to maintain 
the same kind of standards.  You are an adjudicator in this 
water right proceeding.  It is not a water quality plan.  
This is an adjudication.
	Now, let me just hit a couple of items along the way 
to point out in these documents the reasons why I think the 
participation did not stop at just being an observer, and I 
put page numbers on the bottom of these documents.
	On page 11, and again, these Principles for Agreement 
are in two parts.
	MR. CAFFREY:  Which document are you referring to?
	MR. NOMELLINI:  I am talking about the documents I 
submitted.  There are 20 copies here for the Board.
	MR. CAFFREY:  This is a little unusual in that this 
is not evidence, but barring some strong reason why we 
shouldn't do it, I am inclined to hear Mr. Nomellini out.
	Is there anything that counsel wants to advise me 
otherwise?
	MR. ATTWATER:  Well, if you want to let him talk, 
that's fine with us, but Mr. Nomellini has a remedy at law.  
He can file, he can depose everybody that is listed in these 
documents and the Board members, and I don't think the Board 
should be put in the position of, you know, investigating 
itself.
	MR. CAFFREY:  I think this is highly unusual.  
	Why don't you proceed.
	MR. NOMELLINI:  It is unusual, but the Board should 
investigate itself.  I don't think that that's the right 
attitude, that the parties that come before this Board 
should be expected to be the ones to police the impartiality 
of the proceedings.  I think that's your duty.  And that's 
why I am raising it here and I feel we are obligated to 
raise it before you to give you the opportunity to deal with 
it.
	If you choose not to --
	MR. CAFFREY:  That's why I am going to allow you, Mr. 
Nomellini, to complete your presentation and give us the 
examples that you wanted to, and then, I will have something 
to say after that.
	MR. NOMELLINI:  Thank you very much.
	I put page numbers at the bottom of these just so we 
could refer to them.  On page 11, under 3.b., this document 
talks about informal correspondence.  
	If you look at page 9, there cc's to JPC.  I think 
JPC is you, Mr. Chairman.
	MR. CAFFREY:  That's me.
	MR. NOMELLINI:  And the Draft Order says the staff 
was not used as a communication line between these parties 
and you.  There are a number of these documents that show, 
and I don't know who all these other initials are, but I do 
recognize yours and I merely want to show you that there's a 
communication link here.  You may have disregarded it, you 
may not have read it, it may have been put in your in basket 
or whatever, but there is evidence here of this link that I 
think, and I am not going to try to air it today -- I know 
you won't let me call you as a witness and question you 
today, and I don't think that's the right way to do it.
	I think we should set a hearing for the purpose of 
airing the thing out.
	Okay, on page 10 --
	MR. CAFFREY:  You are going back to page 10?
	MR. NOMELLINI:  I am going to page 10, No. 6 talks 
about, no reallocation of water from the CVP-SWP will be 
required to meet the Bay-Delta portion of recovery plans or 
the CVPIA fish doubling plan; additional water needs will be 
met through purchases from willing sellers.
	The Principles for Agreement, the deal, it's not just 
an agreement on what the quality criteria or flow 
requirements are for fish, it also, unfortunately, involves 
some deal making on water allocations and it is clear -- we 
heard the testimony from Schuster explaining about, you 
know, what I cited to you in the regular hearing attachment 
that the deal was they would take the water from New Melones 
to meet the flow requirements.
	This is not just a separate matter of dealing with 
fish.  It deals with water allocation which is the water 
rights phase of this thing.  That's the judicial, the part 
that requires the judicial action on your part.
	On page 11 on 3.b. it talks about, full 
implementation of approved water quality standards will, 
barring unforeseen circumstances, result in no additional 
flow requirements to meet ESA needs; 4(d) rule may be 
adopted.
	We have got people talking about how you are going to 
decide these things.  They talked about these things.  It is 
in these documents.  So, it is not simply a matter that's 
outside of your purview.
	Look on page 12.  I think these notes are Pettit's 
but I don't know whose handwriting this is, but Mantell meet 
with Fed directors Monday p.m., down at the bottom.
	MR. BROWN:  This is on page 12?  Page 12 is printed.
	MR. NOMELLINI:  Are they out of order?  Maybe it's 
17.  Excuse me, it is 17.  Sorry about that.  At the bottom 
of page 17 it says Mantell meet with Fed directors Monday 
p.m., me, too.  This is under caucuses.  If the me, too, is 
Pettit, he is not just a simple observer, he is a mainstream 
player in this caucus.
	Then it says, discussion include choreography, i.e., 
what if it doesn't come together?
	On page 24 --
	MR. BROWN:  You don't know whose handwriting this is?
	MR. NOMELLINI:  No, I don't.
	MR. CAFFREY:  Where did you get this?
	MR. NOMELLINI:  I got this from Barbara Leidigh, and 
if I am correct, those were notes of Walt Pettit, but I have 
not questioned Walt Pettit.
	MR. CAFFREY:  By the way, the I am sure our staff had 
numerous discussions on the process.  Choreography to me is 
the process, not merit.
	MR. NOMELLINI:  All right.  I don't know that, and if 
I was allowed to follow through and cross-examine I may very 
well conclude exactly that that's the case, and what I urge 
you to do as Board members is to air this thing out, put the 
light on it.  Hopefully, it is just completely a clean deal 
and we can get this matter behind us.
	But there is evidence here that needs to be worked on 
and you need to ask the next question which I haven't been 
allowed to do.
	Page 24, in the margin on the left-hand side, and 
this is right next to the paragraph about State Water 
Resources Control Board authority, and it looks like it 
says:  Agreed on with Dave now, 12/15/94, or Nawi.  I don't 
know what that means in terms of agreement, but there is 
language in there, sombody is working on the draft language 
that pertains to the State Board activities, not simply 
observing, but rather, active participation.
	Page 30, cc:  JPC, and in the middle of that page it 
says --
	MR. CAFFREY:  I don't see that.
	MR. NOMELLINI:  Handwritten up at the top, in the 
memo to Mantell from Fish and Game.  So, there is 
correspondence to a Board member, at least it was a cc.
	In the middle of the page where it says:  Secondly, 
we suggest regulatory action by the State Water Resources 
Control Board which we believe will bring more water into 
the Delta on a fisheries enhancement schedule and which 
would make it easier for DWR and USBR to deal with Qwest 
requirements in the spring.
	So, somebody -- that's Fish and Game's suggestion, 
but it is not in the hearing process.  It is being submitted 
to the Board, at least to the Chairman of the Board, through 
this other side process.
	On page 32, a little below the middle, it says:  
Additionally, the State Water Resources Control Board could 
agree to approve a petition to develop a joint points of 
diversion for the CVP and SWP.
	That's the exact proceeding we are in.  Somebody 
thought you could agree to approve that petition, and 
somebody should have thrown these people completely out, 
should have told them, hey, the State Board doesn't make 
agreements.  These are matters that come before the hearing.  
They are a separate issue, it's an adjudication that takes 
place on the matter of water rights and your contact with 
our staff and Board members has got to be through the 
hearing process and through the public meetings.
	Maybe this is due to a lack of aggressive effort to 
stop this kind of stuff, but here it is.  These are written 
documents that lead us in the direction of concern.
	MR. CAFFREY:  We have a ten-minute limitation.  I 
don't want to stifle you.  Are these the most critical of 
your -- I think we certainly are aware of the points you are 
attempting to make here and wanting to have more 
information.
	MR. NOMELLINI:  Okay, let me make one last point on 
this issue and I hope you will listen to me, and I hope you 
will see that there's enough evidence here to permit a 
further look, and I would urge that you do it, that you set 
the hearing, and allow us to come in and ferret out these 
questions and clear the air on them, and if there's 
something bad there, you can make the appropriate decision 
as to what to do, if anything, but I don't think it should 
be ignored.
	Now, let's look at page 43.  Over in the left-hand 
margin it says:  Feds still can't 'volunteer' (need ESA 
hook).
	This ESA hook is in your Draft Order and that's where 
you say we, the Board, don't set the ESA requirements and 
that the Bureau can take all the water from the Stanislaus 
or New Melones water if it wants to, and run it down and 
meet the ESA requirements, ignoring the Watershed Protection 
Act, and that is the hook, that is the hook where somebody 
gets into that watershed water, at least someobdy thought 
that was the way to do it, to get into that watershed water, 
and in your Draft Order -- and I know you guys don't draft 
all the wording, but it is clearly in there, and if you 
adopt it, you buy into that program and this kind of stuff 
that's outside of the hearing process, and these meetings 
weren't noticed workshops.
	Somebody said to us, oh, the Delta, you guys could 
have come to the workshop, you could have proposed other 
alternatives.  
	There are meetings in here in Monterey and in 
different hotels, and dinner meetings and things like that.  
These weren't noticed public meetings.  It is not an open 
forum.  
	Plus, there are two documents involved in here, and 
one of them is marked confidential, that was given to me, 
and the other one is a confidential document that was not 
given to me.  Your staff said I was not entitled to that 
document because it was a communication from the Chairman of 
the Water Policy Council to the Governor, but it clearly 
pertains to the Principles for Agreement and the 
negotiations, but your people had it.
	Now, confidential documents have no part in a public 
process and an open process where we are entitled to a fair 
shot.  We are not entitled to win, I understand that.  We 
are used to losing, a good loser, but we are entitled to a 
fair shot.  We cannot have a fair shot in a closed process 
that involves confidential communications that staff is 
influenced by, that we cannot address and we can't even look 
at.
	Okay.  I am going to leave the merits of the rest of 
the order to others.  Again, I urge that this Board deal 
with this problem that I raised and I think it can be done 
in an expeditious way protecting all the parties involved 
and with little downside because I don't see the urgency to 
making a decision on this order in advance of such 
investigation because I think the April-May period is past, 
and the next probably an important water issue, make-up 
water or something like that, is probably going to be in 
like July or August, so there's time if you wanted to 
schedule and notice a hearing, and we could sit down with 
staff and subpoena the parties that we think are important.
	I don't think we ought to just fish.  I think we 
ought to go based on the documents that are available and 
who is involved in that process.
	Thank you very much.  I realize this is not what you 
wanted to hear at the beginning of this meeting, but I have 
no other alternative but to raise it.
	MR. CAFFREY:  It isn't a question of what we do or 
don't want to hear, it's a question of fairness and your 
right to get up and speak on a matter that concerns you, and 
I don't think we take your concerns lightly.  
	I do want to say that this Board has always said that 
our staff is going to be involved in the meetings, in the 
Water Policy Council, and we have stated to -- or I should 
say our counsel has stated to you that our staff has 
participated in a number of meetings with the parties and 
that they were there to provide guidance as to process.
	This is my own statement.  It does not include other 
Board members.  
	The fact that there are notations that Mr. Pettit or 
other staff have made, such as the one that says feds still 
can't 'volunteer' (need ESA hook), that's a notation in my 
mind of what somebody heard and he is keeping a record for 
himself.
	Now, let me say this --
	MR. NOMELLINI:  You know something I don't know.
	MR. CAFFREY:  It is the Board members that make these 
decisions.  We are not here to rubber stamp what the staff 
puts before us.  Certainly, we have to have a certain amount 
of confidence in what they present to us, but I can tell you 
without qualification that I have made it a point not to 
participate in any discussions on the Principles for 
Agreement to the point of ad nauseam where I wore people 
out.
	I have personally stood up and left meetings that 
involved other members of the administration on other water 
subjects when the subject of the Delta came up. 
	That's also been the case with the other Board 
members and I have worn them out doing that as well, and 
that's not to say that they resisted that concept because 
they were very good about that, I want you to know, and I 
have great respect for you, and, of course, I would like to 
make you believe this, but we have been exceedingly fair and 
we have not participated in any discussions on the 
Principles for Agreement.
	I didn't know what was in the Principles for 
Agreement until December 15 when it was introduced.
	MR. NOMELLINI:  That's fine, and I think it ought to 
be aired out.  I think it ought to be clear.  These 
documents show -- and I have great respect for all of you, I 
have great respect for Mr. Pettit.  I have not concluded 
that there was an evil intent here, but I think the process 
has not been protected.  
	There's a cc in a lot of these documents to you 
outside the hearing process.  Sending Board staff to 
meetings where water allocations are being discussed, maybe 
that can't be allowed anymore and shouldn't be allowed.  
Maybe we ought to stop that because the water allocation is 
the meat of the coconut in the water rights proceeding, and 
I think this process is not good.
	Somebody drafted an agreement, your higher ups 
drafted an agreement and signed it where they said the State 
Water Resources Control Board shall do this and shall do 
that.  Whoever drafted that was not sensitive to the role of 
the State Water Resources Control Board in water rights 
matters and we have got to do something about it.
	You may have done eveything you can, but that hasn't 
solved the problem.
	MR. CAFFREY:  I don't think anybody can stop anybody 
else from writing letters back and forth to each other.  We 
were not privy to that and people can speculate all they 
want on how much authority they have or don't have over this 
Board.  This is an independent Board.  Members of this Board 
are confirmed by the Senate and the reason for that is 
because we have to make tough decisions.
	MR. NOMELLINI:  And it is pretty tough for you guys 
to have the Governor's office right in the middle of these 
proceedings.  They shouldn't do that.
	MR. CAFFREY:  I can guarantee you no one from the 
Governor's office or the administration in any form of 
representation whatsoever has ever given me an instruction 
or even a suggestion as to what we should be doing.
	MR. NOMELLINI:  Well, please look at what they gave 
your staff here in these documents.  This is what was 
furnished to me.  I was a little surprised to go over there 
and find there was only a pile of that much.  I expected to 
find boxes of documents I would have to wade through.  
Somebody's got a paper shredder over here or doesn't keep 
notes, and they are all gone.
	But anyway, in the little pile I got there's some 
real questions, legitimate questions that have been raised 
and I didn't create these documents.  They are documents 
that were there.
	MR. CAFFREY:  Mr. Nomellini, there's no paper 
shredder, there is no conspiracy, whatever word anybody 
wants to use.  Perhaps that is reason in and of itself as to 
why this Board should not attempt to investigate itself, 
because we are not the proper venue for that kind of thing.
	I am not a judge in the judicial system and, frankly, 
there are rules whereby those kinds of things proceed and I 
think what's going on here this morning is an example of how 
this would not be the proper venue for that kind of 
proceeding because you are making accusations which are just 
clearly false and they are disturbing.  
	This Board has bent over backwards to not violate the 
rules of ex parte communication and we have not violated 
them.  The only persons that can commit ex parte are the 
members of the Board, no one else, and if somebody calls up 
and wants to talk to us about a subject, it falls to us to 
refuse to do that because they are not guilty of ex parte, 
only we can be.
	I can tell you we have not violated ex parte in this 
matter.  We were especially careful about that because I do 
not want to go through this proceeding again for the sake of 
the people of California and for the sake of getting this 
problem solved.
	I thank you very much for your concerns and we hope 
to continue to work with you in the water rights proceeding.
	Thank you, sir. 
	Anything else from our attorneys on this matter?
	Mr. Pettit.
	MR. PETTIT:  I probably ought to add a couple of 
comments, Mr. Caffrey, hopefully briefly.
	Number one, just so there's no doubt or any question 
about it, I think probably all the handwritten notes Mr. 
Nomellini alluded to in this compilation of documents are 
mine.  They are notes in the margins of documents.
	Without going into a discussion of the merits of his 
concerns about the impacts of these documents, I think you 
have already described that there is a difference between 
between being a scribe in a meeting recording what other 
people are discussing and agreed to, and being a participant 
in the decisions that are made at that meeting, and I would 
represent that my role in those meetings was in the form of 
a scribe.
	And the third point, I think I am in a position to 
have a pretty fair assessment of what the Board members' 
involvement in this was and I will certainly second the 
Chairman's statement that he has either refused to attend 
meetings or has gotten up and left meetings when any 
substance of any negotiations or agreements came to light.
	I wouldn't want to argue with Mr. Nomellini about the 
item-by-item instances here.  I suspect I will get a chance 
to do that in a deposition or in court, but I think your 
comments are right on point and I have not seen anything I 
would characterize as an ex parte contact on the part of the 
Board members.
	MR. CAFFREY:  Thank you very much, Mr. Pettit.
	MR. NOMELLINI:  For the record, Mr. Chairman, I would 
like to request permission to cross-examination Mr. Pettit 
with regard to his statements in these documents.
	MR. CAFFREY:  This is a Board meeting.  It is not an 
opening of the record, so I would deny that request, but I 
would certainly encourage you to pursue whatever avenues of 
legal redress you feel are appropriate.
	Our next speaker is Jeanne Zolezzi, general counsel 
for Stockton East Water District.
	Good morning and welcome.
	MS. ZOLEZZI:  Good morning, Chairman Caffrey and 
Board members.
	On behalf of Stockton East Water District this 
morning, I would urge you not to act on this petition today.  
It appears to us through the Draft Order and through 
statements that have been made previously, that this Board 
is taking a very broad view of its ability to assist the U. 
S. Bureau of Reclamation and the Department of Water 
Resources to insure that the deal they made is executed. 
	On the other hand, it appears through your Draft 
Order, again, that you are taking a very narrow view of this 
Board's responsibility to the State of California to insure 
that any order issued is consistent with laws and the 
mandates of the California Constitution.
	We believe the crux of this issue is reflected in the 
language of the Draft Order, particularly pages 16 and 17, 
which attempt to explain the reasons that this Board must 
move quickly and cannot delay approval of this petition 
until after the water rights phase.
	The Order states that the Bureau and DWR are bound by 
the Endangered Species Act requirements that differ from the 
requirements of D-1485, and that they signed the Principles 
for Agreement with the expectation that they would not be 
required to comply with the inconsistent requirements of D-
1485 which would reduce their export yield.
	The Bureau and DWR created their own dilemma.  They 
placed themselves in this predicament of inconsistency.  
	Now, Stockton East has been called unreasonable in 
this and other proceedings, but we would submit to you today 
that it is unreasonable to enter into a voluntary agreement 
when compliance with that agreement requires you to violate 
your water rights permits.
	We would submit that it is unreasonable to promise 
Fish and Wildlife that you will operate the two major 
projects in the State of California in a manner inconsistent 
with the water rights permits governing those projects.
	Instead of being reprimanded for such irresponsible 
and, in our opinion, arrogant action by the Bureau and DWR, 
they are being heralded as solving the State's water 
problems, particularly in the Delta.
	The Draft Order states that it is important that 
these changes be approved as it will increase water supply 
yield and make more water available for all beneficial uses.
	We would submit that that simply is not true given 
the circumstances you have heard testimony on for Stockton 
East Water District and other contractors.
	There is no consideration by this Board or by any 
party of the water supply yield available to areas protected 
by the watershed protection statutes, and there was 
testimony at the hearing by the Bureau as well as parties in 
the watershed areas that they will be impacted by this 
petition.
	We feel a bit like Alice in Wonderland here that we 
can see that something is going on and something is being 
approved without full consideration of the watershed 
protection rights.
	Now, in the order and in other proceedings, the Board 
has stated that it has no ability to impact the actions of 
the Bureau, that they are either voluntary or they are being 
required by the Endangered Species Act.
	We want to be very clear.  These actions are 
voluntary.  Now, the question of whether or not these 
documents that were provided by the Board, which Mr. 
Nomellini passed out this morning, impropriety completely 
aside, what they evidence is that there was a clear deal 
made to sacrifice area of origin rights in order to put this 
deal together and maintain exports.  This is evidenced by 
the statement, again, that the feds can't volunteer, they 
need an ESA hook.  They needed that to insure that you could 
make the statement in your Draft Order today that they are 
required to make these releases.
	In fact, they weren't.  They committed them and Fish 
and Wildlife simply stated that if they committed them, 
there would be no jeopardy.
	As indicated in your Draft Order, there was a clear 
expectation that the Board would support the deal by 
clearing a path for implementation of the plan through 
expediting this petition in particular.
	Again, all questions of impropriety aside, your 
action here, if you adopt the Draft Order, would appear to 
be doing just that, expediting implementation of the deal.
	However, Stockton East Water District and other areas 
protected by the watershed protection statute have clear 
expectations of their own.  We have expectations that this 
Board will not abrogate its duty under the law.  We believe 
that this Board not only has the authority to impact the 
actions of the Bureau and DWR, but you have the duty to do 
that.  You have the duty to prohibit actions that violate 
areas of origin protections, particularly the rights of 
areas within the watershed of origin, that violate specific 
water rights permits, particularly restrictions imposed by 
this very Board in Decision 1422 and which violate the 
reasonable use requirements of the California Constitution.
	I will not get into it again.  There was substantial 
testimony on it, but there are methods available to achieve 
the goals that the projects are attempting to achieve by 
their petition and still protect areas of origin and remain 
consistent with California law.
	The Bureau testified that alternatives are available, 
but they did not investigate them.  This Board should direct 
that that be done.  
	It is our belief that this Board cannot abrogate its 
duties to enforce these laws.  Despite the deal made by the 
Bureau, DWR and the exporters, this Board must exercise the 
independence that it professes to have and that we believe 
that you do have under the law, and should deny the 
requested permit.
	As Mr. Nomellini mentioned, there is no urgency here.
	Please allow us to work these problems out through 
the water rights phase, which we believe can be done, and 
don't force us to pursue our remedies in another venue.
	Thank you very much.
	MR. CAFFREY:  Thank you very much, Ms. Zolezzi.
	Next is John Herrick, South Delta Water Agency.
	MR. HERRICK:  Good morning, Mr. Chairman and Board 
members.  
	I am John Herrick, representing South Delta Water 
Agency.
	The South Delta Water Agency continues to oppose the 
permit changes requested by DWR and the U. S. Bureau of 
Reclamation, and the Draft Order granting these changes.
	The Board is acquiescing to a series of predetermined 
moves which result in the most junior water right holders 
securing their exports at the expense of superior water 
right holders.
	From a system that was already overcommitted, the 
further commitment of additional flows for fish and wildlife 
will not result in no decrease to the exporters.  The Board 
refuses to address the point of from whom the fish and 
wildlife flows are going to be taken.
	The evidence of this and the reason why the changes 
should not be ordered is the failure of the environmental 
review process.  To get around this, we believe the Board 
has had to take inconsistent positions which will 
unfortunately return to haunt them.
	The Board and staff have stated on the record in the 
hearings of both the Bay-Delta Water Quality Control Plan 
and the hearing on this petition that the Board is not 
implementing the plan until the water rights phase.  
	The Environmental Report itself stated that this is 
not a review of the implementation of the plan.
	Now, however, in order to support the petition, the 
Draft Order states that this partial implementation is a 
necessary part of the process, closely intertwined and 
inseparable for review.  This, unfortunately, evidences the 
Board's bias towards exports.
	The Draft Order states that the failure to grant the 
petition for changes would adversely affect exports, but 
gives no thought to how other superior users are harmed.
	The Draft Order fails to state, or misstates the 
South Delta's plain arguments.  Those arguments are that the 
Bureau has been unable to historically consistently meet the 
water quality and quantity standards at Vernalis in the 
summer months.  The Bureau has stated on the record that it 
will meet the new fish and wildlife flows solely through New 
Melones releases.  The new water quality standards are 
slightly more stringent, the .07 instead of 500 TDS.
	The increased spring flows will then necessarily 
result in the Bureau being unable to meet the summer quality 
standards.  The Environmental Report confirms this in 
Chapter 7 where it shows that New Melones releases alone 
cannot meet fish and wildlife flows and the Vernalis quality 
flows.
	Given this, the Board can't reasonably state here 
that the environmental effects of the project are slight or 
mitigated, but it does.
	The Environmental Report at page VIII-10 
states:  
Significant impacts are seen in drier years.  
The greatest impacts are seen in critical years 
1987 through 1992.  In almost all critical 
years, salinity levels at Vernalis exceed the 
standard in April through August.  In some 
critical years, the standards also require 
reduced salinity levels in January through 
March.
	Ignoring the ER and its own prior nonaction, the 
Board states that it assumes the Bureau will meet its 
requirements, that 70,000 acre-feet of water should be 
sufficient to meet the standards because other actions are 
necessary to solve the salinity issue anyway, and besides, 
better earlier quality of water evens out with worst later 
quality water. 
	This conclusion directly contradicts the ER.	
	The facts are 70,000 acre-feet has been insufficient 
in the past, and less than 70,000 acre-feet will now be 
available.  Decision 1422 requires the Board to meet the 
water quality standards regardless of amount, and the Board 
and the Regional Board have intentionally not instituted 
other actions to address the salinity problem.
	Another quote from the Environmental Report states:
These increased flows, however, may reduce the 
capacity to provide dilution water from New 
Melones Reservoir for salinity control.
	Depending on how the responsibility to meet the new 
fish and wildlife objectives are allocated, this will be 
addressed during the water rights phase.  This conflicts 
with the order itself.
	Rather than examining the effect of the party 
responsible for water quality now being allowed to choose 
how to get the fish flows, the Environmental Report examines 
the effect of the objectives after assuming there is 
sufficient water coming down the San Joaquin River.
	The proposal here is for an interim implementation by 
the Bureau.  There is no examination in the Environmental 
Report of the specific effects of implementation solely 
through New Melones releases as is now contemplated by the 
Bureau.
	As the Deputy Secretary General Counsel of the 
California Resources Agency stated to the Board and quoted 
in the Draft Order, an environmental analysis prepared under 
a certified regulatory program can be relied upon for 
subsequent discretionary action when the environmental 
analysis has programmatically disclosed and analyzed the 
effects of the subsequent action.  In other words, there has 
to have been an environmental review of the interim, the 
post-action.
	The subsequent discretionary action, the interim 
implementation, has not been analyzed for its effect.  The 
Draft Order does the best it can by stating that while this 
is only temporary, the effects aren't that bad, besides the 
petitioners would not agree to meet the fish and wildlife 
flows until they were guaranteed not to lose any water.
	On its face then, the Environmental Report is 
insufficient for this action.
	A second and even more glaring error deals with the 
joint points of diversion.  I would like the Board to keep 
in mind that the original request would have allowed 
increases in exports after the fish and wildlife flows were 
met.  This would be truly an amazing creation of surplus 
water.
	The Draft Order examination of the environmental 
support for the joint points of diversion is very revealing.  
Beginning on page 45 the Draft Order says nothing with 
regard to environmental documentation for 39 lines.  Then, 
it finally says:  The ER does not specifically address the 
change to joint points of diversion.
	The word specifically should be changed to at all as 
there is no unspecific reference to joint points of 
diversion in the ER either.
	To get around this CEQA obstacle, the Draft Order 
proposes to limit the changes so it won't have any 
environmental effects.  The Board should ask the Deputy 
Secretary General Counsel of the California Resources Agency 
if lack of environmental review in a CEQA process can be 
cured by ordering the action not to have any environmental 
effects -- clearly it can't -- or any action under CEQA 
could avoid the EIR/EIS process simply by requiring no 
impacts.
	What happens if impacts do occur?  Does the order 
become void, does the ER become void, does the Board take 
action, does the Board wait for a complaint?   
	This is not how CEQA works.  The way it does work is 
to examine the project and alternatives as to environmental 
effects, describe why the preferred alternative is 
preferable, determine whether there are significant 
environmental effects under the preferred alternative, and 
then either mitigate them or alter the project to remove or 
mitigate them.
	When the Board and petitioners were shown an 
alternative that didn't have the complained of effects, 
releases from the Delta-Mendota Canal, this alternative was 
not included in the ER because, and this is the Board 
talking to us on the record, the Board isn't implementing 
the plan.  It's not necessary.  Now that the plan is being 
implemented, the Board states, it is not feasible to isolate 
the impacts of this step of implementation.  Hence, a 
separate and discrete action escapes the California 
Environmental Quality Act process.
	Contrary to the Draft Order's unsupported assertion, 
the effects of the Bureau trying to meet fish and wildlife 
flows and water quality flows exclusively out of New Melones 
can be specifically shown.  Therefore, the Draft Order 
should not be adopted.  The underlying California 
Environmental Quality Act review does not support, much less 
examine this interim implementation. The Board is choosing 
not to become involved in how the Bureau will meet its 
various requirements even after the Board has been shown 
that the chosen method will result in specific harm to other 
superior users.
	The South Delta Water Agency believes this choice 
violates both the spirit and the letter of the area of 
origin and watershed protection laws, much less the current 
permit conditions.
	We would also like to join in the other arguments 
from the other San Joaquin parties.
	Thank you very much for your time.
	MR. CAFFREY:  Thank you very much, Mr. Herrick.
	Mr. Hildebrand.  
	Alex, good morning and welcome.
	MR. HILDEBRAND:  Good morning, Mr. Chairman and 
members of the Board.  
	I would like to take what I think is a little more 
constructive approach here.  You have got a lot of 
contentions and I think they might be resolved without too 
much trouble.
	The Board has heard serious concerns over this order 
by parties dependent on the yield of the San Joaquin River 
system.  These concerns are limited primarily to the manner 
in which the new Vernalis fish flows may be provided prior 
to completion of the Board's water rights phase of the 
control plan.
	We suggest that these concerns could be largely 
defused by a proposed modest addition to the order.  The 
addition would, if anything, improve environmental 
protection.  It would permit full provision of the new flow 
objectives in the San Joaquin River while assuring that 
compliance with the Vernalis quality objective and retention 
of needed summer flow at Vernalis would not be impaired by 
the provision of these fish flows.
	It would also assure that if provision of these flows 
causes any impairment of water rights, the impairment would 
apply first to inferior rather than superior water rights.
	Let me hand out to you a suggestion here which I 
would like to read and then explain.  The suggestion is you 
add to the order a paragraph as follows:  
The stated purpose of the DWR and USBR in 
requesting these permit changes was as an 
immediate measure to enable them to implement 
the December 15, 1994, Principles for 
Agreement.  In utilizing these permit changes 
for that purpose, the DWR and USBR shall assure 
that their intent to implement the Vernalis 
fish flows prior to completion of the Board's 
water right phase is accomplished without 
impairing their ability to meet the Vernalis 
water quality standard and without decreasing 
the summer flows at Vernalis that would 
otherwise exist, and without impacting area of 
origin and other superior water rights when 
inferior water rights can instead be impaired, 
if necessary, to meet the flow requirements.
	Let me explain why I think it would be responsible 
and reasonable for the Board to adopt that addition to the 
order.  It was acknowledged in the permit hearing that the 
Vernalis fish flows could be furnished by releases from the 
Delta-Mendota Canal to the river.  This would have the 
advantage of improving river flow and quality south of 
Vernalis and would avoid the use of overcommitted New 
Melones water.
	The peak fish flow requirement is from April 15 to 
May 15, or thereabouts, at which time export limit is 
controlled at 100 percent of the Vernalis flow in accordance 
with footnote 11 in the order.
	Since the required supplemental fish flow is less 
than half of the export capability, supplemental water for 
fish flows could be circulated from the DMC to and down the 
river and back to the canal.
	Furthermore, this circulation would cost less than 
buying tributary water and will avoid the loss of summer 
return flows associated with such purchases.
	There is, therefore, no need to impair compliance 
with other responsibilities of New Melones or to take water 
from other tributaries to provide Vernalis fish flows.
	The Board cannot in good conscience excuse itself from 
responsibility for the impact of providing Vernalis fish 
flows from New Melones by alleging that this is the result 
of the biological opinion for Delta smelt and is, therefore, 
not a Board responsibility.
	That allegation is made on seven different pages in 
the 50-page discussion that precedes the order.  This 
biological opinion was rewritten as dictated by the December 
15 agreement to address the flows negotiated in the 
agreement for both smelt and salmon.  These flows were not 
based on the prior biological opinion for smelt.
	The opinion merely says that the Vernalis flows 
stipulated in the agreement are adequate to protect smelt.  
It does not deny that lesser flows or previous opinions 
would also be adequate to protect smelt.  It also does not 
say that the water must come from New Melones.
	On December 6, Roger Patterson defined biological 
opinion as the document that states that the opinion of the 
Fish and Wildlife Service or the National Marine Fisheries 
Service as to whether or not the federal action is likely to 
jeopardize the continued existence of listed species, or 
result in their destruction or adverse modification of 
critical habitat.
	The Board should not exempt itself from all 
responsibility for seeing that the ESA requirements are meet 
with minimum impact on superior water rights.
	It should also see that water right priorities are 
not violated by ascribing to ESA protection any flows that 
exceed those really needed for ESA protection.
	The draft is inconsistent and disingenuous regarding 
the proposed overload on New Melones and its consequences.  
It not only says that this impact is due to the smelt 
opinion and disregards the option of using the DMC water for 
Delta smelt flows.
	It also says on page 29 that this order requires the 
USBR to meet the new salinity objective at Vernalis, and on 
page 35 it says there will be full implementation of the new 
objectives on an interim basis.  Then, on page 40 it says 
compliance need only be as good as it was in 1987 to 1992. 
	It also alleges that 70,000 acre-feet of quality 
release should be enough because other measures may at some 
undefined future time make that adequate.
	It also says that a reference to an analysis shows 
only modest salinity changes from the 1987 to 1992 period 
assuming that there would be water available in the San 
Joaquin River to meet all of the flow requirements.
	This statement regarding flow requirements implies 
that these flows will not impact New Melones water 
availability, whereas, in fact,  this would only be the case 
if Vernalis flows come from the Delta-Mendota Canal or other 
non-Stanislaus sources, but this is not what the Bureau had 
planned.
	Page 35 says that this Board will rule on full 
implementation of the new objectives on an interim basis;  
but on page 36 it is then argued that impacts of the plan on 
other water needs for the next three years could be 
tolerated because they are unimportant as compared to the 
fishery benefits.
	This, apparently, includes disregarding violations  
of the Vernalis quality objective.
	By adopting the proposed addition to the order, the 
Board will in no way impair the feasibility of providing 
interim implementation of the control plan.  It will avoid 
the confusion that otherwise results from the above and other 
faults and inconsistencies in the 50-page discussion of the 
order, and it will assure that the Vernalis flows are 
provided without unnecessary impairment of the summer water 
quality and flow, and with due regard to protecting superior 
water rights.
	South Delta Water Agency urges the Board to adopt 
this addition to the order.
	Thank you.
	MR. CAFFREY:  Thank you very much, Mr. Hildebrand.
	Mr. Stubchaer has a question.
	MR. STUBCHAER:  Mr. Hildebrand, what role do you see 
the Department of Water Resources would have in implementing 
Vernalis standards?
	MR. HILDEBRAND:  Only insofar as they might assist 
the Bureau in providing water transfer capacity at certain 
times.  There are times when the two projects together have 
ample capacity to send water down and put it into the river 
further down, but the Bureau might need help from the 
Department of Water Resources to transport it.
	For the most part, this is a matter of the CVP 
mitigating its own impact on the water quality problems of 
the river and its own impacts on the reduction of flow in 
the river, rather than putting a burden on anybody else.
	MR. STUBCHAER:  If this recirculation plan were to be 
implemented, what would the position of your agency be on 
the maximum rate that would be allowed to be pumped at the 
pumping stations for both export and recirculation of water?
	MR. HILDEBRAND:  So long as the South Delta barriers 
are put in as has been agreed to among the Bureau, DWR and 
the South Delta, there would be no problem for us in the 
magnitude of the flows we are talking about.
	MR. STUBCHAER:  No problem to have additional pumping 
above the present ones?
	MR. HILDEBRAND:  No, not if those flows are coming 
down the river and if they are repumped.
	Now, if they pump that much coming from somewhere 
else, it might hurt us, but if it is coming down the river 
and is picked back up, it wouldn't hurt.  It wouldn't even 
hurt us without the barriers, but the barriers do a lot of 
good things.  They keep the salinity that's in the river, 
they push it on down to where it is diluted by the very 
large tidal flows and thereby substantially reduces the 
extent to which it recycles salts from the west-side 
drainage back to the canal and back down the valley again.  
It approximately cuts in half the amount of that 
recirclation and is much better for the fisheries.
	It is also much better for the dissolved oxygen 
problem.
	MR. STUBCHAER:  Do you think there is any risk of the 
recirculated water being stolen?
	MR. HILDEBRAND:  No, the parties along the river are 
already pumping whatever they need.  In fact, they might use 
a little less water if it is better quality because they 
don't have to over-leach so much.
	MR. CAFFREY:  Mr. Brown.
	MR. BROWN:  Alex, have there been prior diversions 
from the Delta-Mendota Canal or the State Aqueduct into the 
San Joaquin?
	MR. HILDEBRAND:  Yes.
	MR. BROWN:  Farther upstream?
	MR. HILDEBRAND:  Yes, in fact, only a year or two 
ago, I think two years ago, the Fish and Game Department, I 
believe it was, bought some water and had it stored, I think 
in San Luis temporarily, and then released into the Newman 
Wasteway and into the river at a time that it was beneficial 
to the fishery.
	And this circulation, in my judgment, would be even 
more beneficial to the fishery than releasing it out of New 
Melones even if we had enough water to do it out of New 
Melones, because we have big problems of quality and flows 
south of Vernalis.  So, this would help it all the way from 
the Merced River on downstream.
	So, I think it would be better from an environmental 
point of view to provide those fish flows by the circulation 
than to provide it in the manner in which they are proposing 
to do it.
	It was conceded, you know, in our cross-examination 
during the hearing that this, indeed, is a feasible thing to 
do.
	MR. BROWN:  And the problem of putting it in at the 
Stanislaus, before it gets down the river there's problems 
and the San Joaquin could sure use some help.
	MR. HILDEBRAND:  That's right.
	MR. BROWN:  I think there is consideration now being 
made to allow the Department and the Bureau to pump 100 
percent of the San Joaquin.
	MR. HILDEBRAND:  That's in the Principles for 
Agreement.  The signatories to that agreement agreed that 
whatever came down the San Joaquin could be picked up 100 
percent.  There are some other qualifications, but they 
don't kick in because of --
	MR. BROWN:  I am trying to make a point here and you 
are going to help me make it.  
	If they are allowed to take 100 percent of the San 
Joaquin, they recirculate water when there is carriage 
capacity in the system, and there was some talk that there 
could be a 30,000 acre-foot increase in yield by the 
improved operations, there was testimony given for that, I 
believe, at the hearing on this process, by improving the 
operations of the two systems.
	MR. HILDEBRAND:  Oh, by the coordination of the two.  
I have no objection to that coordination as long as it is 
done --
	MR. BROWN:  As long as there is some increase in 
yield available from that program, without any detriment to 
the Delta or to the Bay.
	MR. HILDEBRAND:  That's right.
	MR. BROWN:  Are you suggesting that some of that 
increase in yield be dedicated back to the San Joaquin for 
recirculation?
	MR. HILDEBRAND:  Well, I think that's a possibility.  
However, I don't think it is necessary because you don't 
lose any water by circulating it around.
	MR. BROWN:  You are ahead of me.  
	The next question is, if it was 30,000, just to pick 
a figure, in your profesional opinion, which I respect 
highly, I might add, what do you think of this 30,000 would 
be the loss through evaporation and seepage?
	MR. HILDEBRAND:  A very small percentage, very small.
	MR. BROWN:  Twenty percent at the most?
	MR. HILDEBRAND:  I would think less than that.
	MR. BROWN:  So, conceivably, you could increase the 
yield of the State project or the Central Valley Project if 
you were allowed to improve the operations and improve the 
efficiencies of the operations, the project could increase 
the yield and at the same time recirculate some water in the 
San Joaquin to improve water quality and reduce the demand 
on New Melones; is that what you are saying?
	MR. HILDEBRAND:  I believe that's right.  If you 
don't take the water out of New Melones to provide those 
flows, that water is then available for something else.  You 
can use it for fish flows or whatever.
	MR. BROWN:  Thank you.
	MR. CAFFREY:  Ms. Forster.
	MS. FORSTER:  Alex, did you circulate this idea to 
any of the other parties like the Bureau and DWR?
	MR. HILDEBRAND:  We have discussed it with the 
Bureau, yes.
	MS. FORSTER:  Because I am not a technician on the 
Board.  I follow the conversation pretty well, but does this 
have any significant impact to this order that we have 
before us today?
	MR. HILDEBRAND:  Would the addition we are suggesting 
have some obscure --
	MS. FORSTER:  Well, just an obvious significant 
impact that they haven't had any chance to get any analysis 
on or understand.
	MR. HILDEBRAND:  I am not aware of any obscure effect 
of it.  The Bureau has acknowledged that they hadn't 
considered this, but it could be done and it has been 
discussed with two branches of the Bureau actually, and they 
didn't at this point at least in the last couple of weeks, 
they haven't seemed to find any fault with it.
	MS. FORSTER:  Does it have any impact or have any 
kind of significant meaning to the Department of Water 
Resources?
	MR. HILDEBRAND:  I don't think it would have any 
effect on the Department of Water Resources other than it 
might at times be necessary for them to help wheel the 
water.  There are times when the total export of the two 
projects are considerably less than their total capacity, 
but the federal project is running at full tilt, and so, 
then if you want to circulate extra water, you might have to 
get the State to help with the transportation of that water 
in order to circulate it.
	I don't think this would often be the case, but it 
might sometimes.
	MS. FORSTER:  I am just trying to see how it fits in 
with what is before us today and what changes it may cause 
in our document.
	MR. HILDEBRAND:  I think by making this addition you 
don't have to clean up a whole lot of this stuff that's in 
the 50-page discussion which is inconsistent and confusing.  
If you try to fix that all up, you would have to do a whole 
lot of editing, but if you put this in the order I think it 
avoids the ambiguities and confusion that otherwise can be 
drawn from the discussion.
	MR. CAFFREY:  Mr. Brown.
	MR. BROWN:  Alex, during the hearing there was 
testimony that the environmental community representatives 
would be more receptive to this order if there was not 
increased diversions made out of the Delta by the Department 
and the Bureau.  
	If a portion of those increased diversions were to be 
made through recirculating water as you are suggesting, 
which might be a very good idea, do you think that the 
objections to the increase in diversions through improved 
efficiency might be consented to?
	MR. HILDEBRAND:  Well, I would hope so.  I think the 
principal concern of the environmentalists, and I don't mean 
to speak for them, is the diversion of water that comes 
across the Delta, not the diversion of water that comes down 
the river, and that's evidenced by their having agreed in 
the Principles for Agreement on December 15 that it was okay 
to export water that came down the San Joaquin, particularly 
if you put the barrier at the head of Old River.
	MR. BROWN:  But the initial 30,000, recognizing that 
you are recirculating it, but that's going to come out of 
the Delta.
	MR. HILDEBRAND:  Well, it's going to come out of the 
Delta.
	MR. BROWN:  At little or no cost to the Delta.
	MR. HILDEBRAND:  That's right.  There's no net cost.  
You increase the inflow and you export that increased 
inflow, so you are not increasing the percentage of the 
inflow that is being exported, and the water quality of the 
DMC is appreciably better than the salinity standard at 
Vernalis, so you actually help that further reduce then the 
amount of water you need out of New Melones to maintain 
water quality.
	MR. BROWN:  How much water do you think it would take 
to accomplish what you are suggesting here?
	MR. HILDEBRAND:  I really can't give you a number on 
that because it varies a lot with the year type.  What we 
are really talking about is circulating the amount of water 
it takes to supplement the water that would otherwise be 
there.  We are not talking about recirculating the entire --
	MR. BROWN:  That's right.  Take a guess.
	MR. HILDEBRAND:  In a year like this you wouldn't 
need any. In a dry year you would have to circulate during 
that peak period, during the fish pulse from the 15th of 
April to the 15th of May.  You might have to recirculate 
two-thirds of the fish flow requirements, something of that 
sort.
	But that's still way less than the capacity or the 
ability to pump it at that time.
	MR. BROWN:  Can you make an estimate of what that is 
in acre-feet?
	MR. HILDEBRAND:  It would probably be, and I am just 
figuring off the top of my head here, so I can't guarantee 
these numbers, but I would think we are probably talking 
about not more than recirculating 4,000 cfs, which would be 
8,000 acre-feet a day for the 30-day period.
	It is not an insignificant amount of water, but it is 
entirely doable, and the cost of that recirculation just to 
pump it around the merry-go-round, the incremental cost of 
doing that, which doesn't include the cost of building the 
canal or anything like that, but the incremental cost of 
circulating it is substantially less than what is being 
talked about, which is buying water from the various 
tributaries and releasing that for this purpose.
	They are not going to buy water for anything like 
what it costs to recirculate it.
	MR. BROWN:  Plus you are going to pick up 90 percent 
of it again anyway.
	MR. HILDEBRAND:  Oh, you pick it back up.
	MR. BROWN:  Thank you.
	MR. CAFFREY:  Thank you, Mr. Hildebrand.
	Let me ask, I think our procedure this morning, Mr. 
Pettit, is that after we go through all of the commenters, 
we can have some discussion, or some analysis or review of 
the discussion; is that correct?
	MR. PETTIT:  That's appropriate, I think, Mr. 
Chairman.
	MR. CAFFREY:  I think we will hold our questions from 
staff and our attorneys on these matters until we get to the 
end of the process, and I would encourage, based on Ms. 
Forster's question, I would encourage the other parties to 
do what they feel comfortable doing, to comment on the 
suggestions that are before them.
	Okay, that will take us to Mr. Ed Steffani, Stockton 
East Water District.
	Good morning, welcome.
	MR. STEFFANI:  Good morning. 
	I have very little to say after Alex's presentation.  
	I want to say, first, that we support Alex's proposal 
entirely.  We confess it is a wonderful way to solve this 
whole problem.
	I have a question about a statement on page 39, 
beginning at the bottom of page 39 and going over to the top 
of page 40:  The limitation of consumptive uses to the four-
county area prevents the USBR from selling New Melones water 
for consumptive uses outside these counties.
	Well, if 100 percent of the San Joaquin River flow 
can be pumped for export, then isn't the Bureau selling that 
New Melones water?  So, perhaps there ought to be some 
provision in the order to prevent that.
	Now, back to Alex's idea, if you are considering 
adding to the order, this concept of the pump-back 
recirculation, we would ask that language be added which 
states that this be done without imparting area of origin and 
the area protected by the watershed protection statutes, new 
words, area protected by the watershed protection statutes.
	Thank you.
	MR. CAFFREY:  Thank you very much, Mr. Steffani.
	Morris Allen, City of Stockton.
	Good morning, sir.
	MR. ALLEN:  Good morning.  My name is Morris Allen.  
I represent the City of Stockton in these proceedings.
	The City of Stockton would like to join in the 
arguments that were presented from the other San Joaquin 
County interests and we do support those arguments, and I 
won't ask the Board's indulgence to go through a lot of the 
points that were already covered by previous San Joaquin 
speakers.
	I would just like to point to an item on page 44 in 
your proposed document.  Supporting the order there is a 
comment regarding the Stockton testimony where your Board 
staff has said that the incremental impact of the new 
objectives is much different than those Stockton presented.
	There is no evidence or any argumentation provided in 
your proposed order that indicates in what way they are 
different or how this has been analyzed.  It may be that the 
impacts are actually more severe than Stockton presented or 
perhaps the Board staff is saying they are less severe, but 
they don't say in what way they are different, and they 
don't say what methodology they used to analyze those 
differences, since the City of Stockton did present 
extensive testimony from modeling experts that indicated 
that these impacts were predicted to occur.
	Also, this same argument indicates that waterflows 
are expected to increase with the new objectives, and this 
actually proves the San Joaquin County interests' case and 
the testimony that was presented in this matter, and it 
certainly does nothing to disprove Stockton's position 
regarding the impact on dissolved oxygen in the river from 
these exports.
	Because there is no documentation, no testimony 
presented to this Board which indicated which way this 
increased flow would go, the Board does not know the 
direction of the flow, the Department of Water Resources did 
not model this and the Environmental Report did not model it 
either.
	So, you have really no basis upon which to disprove 
Stockton's position in this matter.
	I would also like to make a comment on page 56 of 
your order, the order is going to continue to allow what I 
call the Delta exporters club to continue to control the 
operations of the Federal and State facilities.
	The interests of the San Joaquin parties continue to 
be legally excluded because the order states that the Cal-
Fed Operations Group meets the Board's requirement to have a 
committee to provide input on the operations of these 
facilities, and the City of Stockton would like to suggest 
that this language be excluded from your order, that you 
require that wide participation be ordered in terms of 
operation of these facilities, so that the State Water 
Resources Control Board would require the Department of 
Water Resources and the U. S. Bureau of Reclamation to 
include all interested parties on the operations committee.
	And I thank you for the opportunity to present this 
statement.
	MR. CAFFREY:  Thank you very much for being here, Mr. 
Allen.
	Next we have Thomas Shephard, San Joaquin County.
	Good morning, sir, welcome.
	MR. SHEPHARD:  Good morning, Mr. Chairman and members 
of the Board.
	I am Tom Shephard.  I am special water counsel for 
the Board of Supervisors of San Joaquin County.
	We view the order as fatally flawed for the reasons 
that the various San Joaquin County parties have stated.
	I would like to call attention to some particular 
concerns, and I might just make a philosophic observation 
that I have spent most of my life helping local governmental 
and private developers build projects, and CEQA is a very 
frustrating thing because CEQA slows down the process, but 
as one who has suffered under slowing down the process, I 
have got to admit CEQA results in better actions almost 
invariably.  It has been overall a good process.
	You have not followed CEQA in this process.  The 
Environmental Report, it is not an Environmental Impact 
Report which is being utilized to attempt to fulfill your 
obligations to comply with California Environmental Quality 
Act and it fails to perform any analysis of the specific 
actions that are proposed by your order.
	The Environmental Report fails to consider 
alternatives.  Mr. Hildebrand, and with the change suggested 
by Mr. Steffani, suggests a very good alternative to your 
order, an addition to your order, and one that would be a 
mitigation measure and an alternative.
	There is no environmental documentation considering 
what you are doing at all and one of the reasons that you 
have this kind of thing come up is the lack of an 
environmental process.
	Throughout the Environmental Report the authors of 
that report say the report has not been prepared for use in 
implementation of the plan.  Here you are proposing to 
implement a significant part of the plan without the 
environmental consideration that is required.
	Your order, at page 36, indicates that this may be 
okay because this is a short-term action.  There is nothing 
in CEQA that says that you don't consider short-term actions 
as well as long-term actions.  This short-term action can 
have a very profound effect on waterflows in the lower San 
Joaquin River, a great concern to our county.  It can have a 
very profound effect in three more years of salinity 
intrusion into the Eastern San Joaquin groundwater basin.
	During those three years, significant environmental 
impacts in those areas alone, let alone other impacts that 
are studied, because implementation was not studied in the 
Environmental Report, may occur and we don't know what those 
are.  We know, too, from our own experience that we will 
suffer but there may well be others.
	It is also explained that this is a programmatic 
document.  Number one, it isn't a programmatic document.  It 
does not meet, and we in what we gave you before in the 
proceedings, Mr. Willey and other San Joaquin parties point 
this out, but it is not a programmatic document, first of 
all.
	And secondly, a programmatic document does not serve 
to eliminate the requirements of further environmental 
study.  It provides a framework for further environmental 
study, but unless the specific actions set forth in the 
environmental programmatic report are considered, then the 
action is not justified under CEQA.  In other words, you 
have to say the specific action that you are going to take.
	There has been no study of the actions you are 
proposing to take here.  For one example, there is 
absolutely no study in the Environmental Report of the joint 
diversion which is the heart of what you are approving here.  
It simply is not studied.
	So, I would submit that what is before you is fatally 
flawed.  It does not have a legal basis under CEQA.  CEQA is 
not simply a process that you go through.  It has two parts.  
It is a process and the courts have repeatedly said that you 
have to comply with the process.  Number one, you have not 
complied with the process.
	Secondly, CEQA has a substantive side to it and that 
is the examination of the environmental impacts, all the 
environmental impacts of the action that is proposed.  You 
have not considered the environmental impacts of the action 
that you propose to take in the Draft Order.
	Also, as Ms. Zolezzi and other speakers have 
indicated, we feel that the order totally ignores the effect 
of the water protection statutes.  It simply dismisses that.  
The parties can implement them themselves by such actions 
that they choose to take.
	I would submit there is nothing in the watershed 
protection statute that says it does not control the State 
government and you are a part of the State government, and I 
believe that your action has to consider the watershed 
protection statutes, and I don't believe you are considering 
it in this action which you propose to take.
	Finally, you dismiss concerns of the San Joaquin 
County parties, particularly Stockton East and the Central 
Valley San Joaquin Water Conservation District based on the 
fact that contract holders are not water right holders and, 
therefore, do not come within Section 1702 of the Water 
Code.
	Again, for reasons we submitted earlier, both oral 
and in writing, we disagree strongly with that position.
	Thank you.
	MR. CAFFREY:  Thank you very much for being here, Mr. 
Shephard.  We appreciate your comments.
	David Anderson, DWR.  
	Good morning, sir, and welcome.
	MR. ANDERSON:  Good morning, Mr. Chairman.
	I am David Anderson from the Department of Water 
Resources.
	I wanted to briefly address the Board.  Since we are 
co-petitioners in this matter, we have received and reviewed 
the Draft Order, and while it does not contain all that we 
requested and while we are, therefore, not necessarily 
agreeing with all of the Draft Order's explanatory language, 
we do, nonetheless, recommend that the Board adopt the Draft 
Order.
	And we also would like to say again that I do 
appreciate the Board's time and energy in working so 
expeditiously on this petition.
	Thank you very much.
	MR. CAFFREY:  Mr. Stubchaer.
	MR. STUBCHAER:  How urgent is action on this petition 
today to your project?
	MR. ANDERSON:  I am not sure I can add any more than 
what was adduced at the hearing on April 18.  However, some 
characterizations of the export limits as being in April and 
May are incorrect.  There are May, June and July export 
limits for the striped bass in D-1485.  
	I think it is important for us to go forward on this 
matter, but I don't have anything more to add.
	MR. STUBCHAER:  What would the consequences be of a 
delay to your clients or other Department operations?
	MR. ANDERSON:  As I say, I don't have anything more 
to add than we gave you at the April 18 hearing.
	Are you asking for specific water supply impacts?
	MR. STUBCHAER:  No.  I am asking the question, what 
the legals impacts are since I don't think there would be 
operational impacts, but there might be.  
	I don't know who else to ask the question.
	MR. ANDERSON:  You say, will we comply with the next 
order of the Board if it is enforced against us?  Yes, we 
will.
	MR. FORD:  I am Mike Ford with the Department of 
Water Resources.  
	I don't think we have anybody here from O&M, but my 
impression is that it will impact our planned operation in 
June and July because we have a 3,000 cfs limit and we plan 
to exceed that, and if the order is delayed, it will impact 
our operation in those months.  How much that would impact 
it, I'm not prepared to say.
	MR. CAFFREY:  Mr. Stubchaer.
	MR. STUBCHAER:  Does the Department have any comments 
on the recirculation proposal by Alex Hildebrand?
	MR. ANDERSON:  It's something we will have to look 
at, but obviously, to the extent we are talking about 
exceeding the amounts of the current permits, I think a lot 
of the discussion has been about the proposal and the 
proposal anticipates that.  
	And a lot of people have suggested that their 
comments have not been considered in the environmental 
documentation. 
	The proposal in the Board's Draft Order, of course, 
is to allow the interchange of points of diversion only when 
it benefits the fisheries, and also results in no net 
increase in exports by the two projects from the Delta. 
	So, I think for this thing to work it would have to 
exceed that.  Of course, time is a big issue.  I don't think 
we can simply say that is going to benign to the Delta 
necessarily.
	All the people who over the last several years of 
Bay-Delta hearings have pointed to the act of exporting as 
having under certain circumstances negative impacts on 
fisheries and I would want to know the timing and the 
magnitude of the increased exports that Mr. Hildebrand 
suggested, so I guess what I am saying is this opens a lot 
of questions that ought to be addressed and answered before 
we venture much further.
	I am not the technical person that would venture 
beyond this point.
	MR. CAFFREY:  Mr. Pettit, did you have a question?
	MR. PETTIT:  I thought there might be some 
clarification of the question Mr. Stubchaer asked -- if Mr. 
Ford knows what the Bureau and the Department are pumping 
currently.
	MR. CAFFREY:  Mr. Ford.
	MR. FORD:  I think we are under 3,000 right now -- 
are we above it?
	MR. GARTRELL:  Greg Gartrell, Contra Costa Water 
District.
	From the Operations Group Conference Call we had 
yesterday, the Bureau is currently pumping about 4,300 cfs 
and the Department of Water Resources about 4,000, combined 
about 8,300.  I think they intend to maintain --
	MR. PETTIT:  The point being they are under the 3,000 
under D-1485, and when I say under, their present 
requirement is an operation requirement of 3,000.
	MR. FORD:  The pumping of 4,000, as Greg said, is the 
plan of operation for the rest of the month.  If the Board 
does not adopt the modification for the 3,000 monthly 
average, that affects the State Water Project and we would 
be in violation of that condition.
	MR. ANDERSON:  Pumping is a monthly average.
	MR. FORD:  We plan a monthly average of about 4,000 
cfs.
	MR. ANDERSON:  The point being if the Board does not 
adopt this, we would have to decrease pumping to be within 
the D-1485 limitations.
	MR. CAFFREY:  Thank you very much, Mr. Anderson.
	Greg Zlotnick of the Department of Fish and Game.
	Good morning, sir.
	MR. ZLOTNICK:  Good morning, Mr. Chairman and members 
of the Board.
	I am Greg Zlotnick, Special Assistant to Water 
Resources, Office of the Director, Department of Fish and 
Game.
	Thank you for the opportunity to address you this 
morning so that I may convey the Department's support for 
your adoption of the proposed water right order modifying 
the terms and conditions proposed by your previous 
decisions, 1485 and 1422, on certain water right permits 
held by the Department of Water Resources and the Bureau of 
Reclamation.
	As you know, the Department has reviewed the proposed 
order you are considering today and has concluded that its 
adoption implementing the 1995 Bay-Delta Water Quality 
Control Plan on an interim basis will not likely result in 
jeopardy to threatened and endangered species or their 
habitat.
	That determination, however, is based upon our 
interpretation in consultation with the Board staff as to the 
terms and conditions set forth in the proposed order.
	Consequently, I would like to briefly outline for you 
what that interpretation is specifically with respect to the 
issue of allowing the State Water Project and the Federal 
Central Valley Project to utilize each other's Delta pumping 
facility.
	First and foremost, our support for the adoption of 
this order is predicated on the explicit constraint to the 
authorization of the use of the so-called joint point of 
diversion to the situation when such coordinated operation 
will benefit fish resources in the estuary.
	With respect to this limitation, we support the 
Board's direction that the decision as to whether such 
benefits will result from shifting pumping from one facility 
to another rests with the Cal-Fed Operations Group, subject 
to review by the Board's Executive Director.
	The Department also endorses the order's explicit 
constraint to the use of the joint point when fishery 
benefits that result are also subject to the condition that 
no water can be exported in excess of that which would have 
been exported absent this order.
	The Department believes this condition is consistent 
with both DWR's and the Bureau's stated commitment that the 
project management flexibility provided by the use of the 
joint point of diversion could not result in any net gain in 
exports.
	Any expansion of the use of the joint point is then  
subject to your continuing jurisdiction.
	The Department would be concerned, however, if such 
an increased capability were to be sought by the projects 
before the Board has completed its comprehensive water 
rights decision allocating responsibility for achieving the 
1995 Bay-Delta objectives in the time frame which should 
provide for preliminary assessment of the effectiveness of 
the Bay-Delta plan and limited use of the joint point of 
diversion through the order under discussion today.
	Any future action by the Board concerning the 
possible expansion of the use of the joint point would 
likely result in the need for initiation of reconsultation 
with the Department pursuant to the California Endangered 
Species Act.
	If I may comment on Mr. Hildebrand's suggestions, 
since you asked for comment, if accepted, in consultation 
with staff here this morning, that may necessitate such an 
expansion and thus trigger that reconsultation.
	Similarly, the recirculation idea has not been 
assessed with regard to the opinion that we gave to you. 
	However, I am not prepared to give you a definitive 
Department position this morning without further opportunity 
for review.  And the Department's position, I think, would 
be that, if possible, to continue this process forward.  I 
don't know if there's opportunity later on to come back and 
amend this, but we believe that the whole Bay-Delta process 
should keep moving forward as expeditiously as possible.
	A critical issue related to the no net increase in 
yield condition included in the Draft Order is a definition 
of what no net increase means.  The Department has discussed 
this term with Board staff and believes that we are in 
agreement regarding the meaning.
	It is our understanding that in the context of this 
order it is allowing for pumping flexibility to provide the 
projects with opportunity to make up water foregone to 
provide biological benefits.  The cap on the volume of 
makeup water allowed to be pumped is not the applicable 
limit set forth in the Bay-Delta plan for operations at any 
given time, but rather, what the actual loss of water was at 
the time the pumping was temporarily reduced or halted.
	For example, if at the time pumping was reduced, the 
project were pumping only one-third of their allowable limit 
because demand was low and the reservoirs south of the Delta 
were near capacity, to make up pumping later in the year to 
recover the so-called losses would be capped at the amount 
that would have been exported by pumping at the rate of one-
third of the limit, not the full amount that the project 
could have potentially pumped within the overall limits of 
the Bay-Delta plan.
	Simply stated then, the Department's support for the 
adoption of this order today is based upon the following:
	First, I believe that the terms and conditions 
require that the use of the joint point of diversion 
for coordinated operation shall be exclusively for 
the purpose of improving fisheries protection; 
	Second, implementation of the terms and conditions of 
the order shall not result in increase in total 
annual exports greater than would have been exported 
in the absence of the flexibility granted by the 
order; and
	Thirdly, increases in exports during the course of 
the year to make up water foregone are to be capped 
by the actual loss of water and not what 
theoretically could have been pumped under the 
project's permits.
	In addition to the conditions placed upon the use of 
the joint point of diversion within this proposed order, we 
believe there's related restrictions independently 
constraining project operations.  
	It is the Department's expectation and belief that 
existing limits imposed by the Army Corps of Engineers on 
water diversions into Clifton Court Forebay will not be 
affected by your action today, and thus, remain in effect.
	Now, while the Department endorses the adoption of 
the order before you today, we similarly wish to enlist the 
Board's support for two initiatives that we believe are 
crucial to maximize both biological and water management 
benefits under the Bay-Delta plan, and increased 
coordination afforded the project through the flexibility 
provided by the joint point of diversion.
	First, the future will no doubt present multiple 
scenarios with respect to coordinated operations and their 
potential impacts on fishery resources and water supply.
	The implications of these various potential 
circumstances will need to be understood if good management 
decisions are to be made.  In anticipation of the 
complexities involved in such analyses, the Department 
recommends that the Ops Group undertake during this period 
of relative water abundance the assessment of the 
hypothetical scenarios and potential issues likely to emerge 
when operational decisions will have to be agreed to and 
made under more urgent circumstances to serve both fishery 
resources and water users.
	The second initiative for which the Department seeks 
the Board's support is resolution of the present controversy 
pertaining to identification of young winter-run salmon 
among the salmon captured in the sampling at the fish 
salvage facilities.  This issue has been a lightning rod for 
dispute and must be put to rest if we are to facilitate 
better operational decisions.
	Finally, the Department supports the order's 
reiteration of the 1997 compliance date for water quality 
objectives in the Western Suisun Marsh as stations S-35 and 
S-97.
	We concur with the Board's previous findings that the 
CVP and the SWP have a mitigation responsibility to protect 
the Suisun Marsh and believe maintenance of the 1997 
compliance date provides an appropriate impetus towards 
satisfaction of that obligation.
	The Department stands ready and willing to join with 
DWR, the Bureau, Suisun Resource Conservation District in an 
assessment of the standards to evaluate their continued 
sufficiency and feasibility of the implementation.
	The Department commends the Board for acting swiftly 
to align the project's operational constraints to reflect 
the requirements of the Bay-Delta plan, acknowledging it as 
an interim measurement.
	As you undertake a comprehensive water right 
proceeding later this year, we look forward to continuing 
our cooperative efforts with all parties as we seek to 
enhance the Bay-Delta ecosystem while serving the needs of 
all Californians.
	Thank you.
	MR. CAFFREY:  Thank you very much, Mr. Zlotnick, for 
being here.  We appreciate your comments.
	Ms. Forster.
	MS. FORSTER:  One point.  You commented on Mr. 
Hildebrand's recommendation, talked about that it might open 
up the need for reconsultation.  I am not sure that I have 
ever been involved in that and understand the proceedings.  
	What kind of time are you talking about?  Can that be 
done expeditiously?
	MR. ZLOTNICK:  I would say relatively expeditiously, 
understanding the nature of what we are discussing and 
involved with here.  I am not sure what needs to be done to 
assess the idea both in terms of the increased pumping   
that it sounds like would be necessary, as well as the 
potential impact of recirculation of water.
	MR. CAFFREY:  Mr. Brown.
	MR. BROWN:  You mentioned the concerns about there 
not being any more water exported than what would normally 
have been.  
	If, through the improved efficiency of the two 
systems, we could increase the yield, then if that yield, 
all of it or part of it was dedicated back to the San 
Joaquin to help improve water quality and the fisheries in 
the San Joaquin, would you be receptive to that?
	MR. ZLOTNICK:  I don't feel I am qualified to speak 
on behalf of the staff in terms of a technical response.  I 
think it would be the Department's position that it is not 
necessarily the yield that's the issue.  It's what is the 
impact of what you do to the biological resources, which is 
our responsibility, and I would have to wait to see what the 
technical staff came up with on that.
	I don't know if I can really answer your question.
	MR. BROWN:  From what I hear, you certainly would 
consider it?
	MR. ZLOTNICK:  Surely.
	MR. BROWN:  And if it is suitable -- 
	MR. ZLOTNICK:  Then we have an obligation as trustee 
for the resources, and if it can be done without hurting 
them --
	MR. BROWN:  Nobody knows right now whether it can or 
can't be done.
	MR. ZLOTNICK:  I know that was not part of the 
assessment in the current opinion and that would have to be 
looked at.
	MR. BROWN:  Thank you.
	MR. CAFFREY:  Thank you, Mr. Zlotnick.
	Cliff Schulz, Joint California Water Users.
	Good morning, Mr. Schulz, welcome.
	MR. SCHULZ:  Good morning, Mr. Chairman and members 
of the Board.
	I am Cliff Schulz and I am counsel for the Kern 
County Water Agency and I am appearing here today not only 
for the agency, but also, on behalf of the Joint California 
Water Users, a group that presented evidence at the April 
hearing.
	My statement was going to be brief, but it is 
probably going to be a little longer now because I would 
like to comment on all of the things that were raised by 
other parties.
	But like the Department, we have reviewed your Draft 
Water Rights Order and believe it is supported by both the 
law and facts in this case.  	
	Also, not all of our proposals were adopted, but 
nevertheless, the order constitutes a significant step in 
providing increased protection of the estuary while at the 
same time assuring that the water supplies in the Delta and 
the tributaries are not unreasonably impacted in the interim 
period during which the order is to be effective.
	I also agree that we have a significant conflict 
between D-1485 and the proposed order which is effective in 
June and July that could be very expensive from a water 
supply standpoint.  If we have 4,000, 3,000 cfs pumping on 
an average over the 30 days, that is 60,000 acre-feet for 
each of the project pumps, so I do believe there is 
definitely continuing urgency to act on this, and I believe 
you should act on it, if possible, today.
	I want to also emphasize that the Joint California 
Water Users do not believe our efforts are at an end if this 
order is adopted.  We will be continuing to work with all 
interested parties to further improve operations during the 
interim until your permanent water rights decision is 
issued.
	As an example, we will participate in the Suisun 
Marsh negotiations that are contemplated in your order and 
we will also be working, for example, to develop a program 
whereby more refuge water can be delivered without impacting 
water supply.
	We believe these and similar programs can and should 
be developed and implemented in less than three years, and 
we look forward to being before you from time to time with 
additional operational improvements.
	Now, I was listening to Mr. Zlotnick's statement and 
there may be some disagreement between ourselves and Fish 
and Game, but we think some of these things can be put into 
place before your final water rights decision comes out, and 
we suggested in our presentation a process trying to gain 
consensus to possibly allow increased pumping under the 
joint point of diversion, and coming back to you with those 
consensus-type of activities.
	We think that's still appropriate.  It is not in your 
order but I don't think that matters.  I think we still plan 
on doing those kinds of things because we don't think the 
clock should ever stop.  I think operational improvements 
could benefit both water supply and biological resources, so 
we are planning on doing that.
	And in some ways I view what Mr. Hildebrand was 
talking about to be exactly that type of activity.  The one 
I heard from him in his proposed addition, he is clearly 
talking about using the joint point for diversions over and 
above what they would otherwise divert.  Otherwise, the 
circulation of water that he is talking about would be a 
major water supply impact on the Federal Central Valley 
Project's westside users, in particular, San Luis users, so 
that circulated water has to be from increased pumping, and 
in all likelihood pumped at Banks rather than Tracy.
	Now, that is an interesting concept.  I am not saying 
it shouldn't be studied or anything of that type.  It is 
obviously who pays for the power and who is responsible for 
the mitigation costs, is it a transfer, those kinds of 
issues would have to be worked out, but in addition, we know 
and I think Greg Zlotnick made the point for Fish and Game 
when he said that they are only supporting this petition 
because of the no increase, that they are and I know that 
the Fish and Wildlife Service is concerned about the 
increased entrainment that is related to increased pumping, 
particularly during the pulse flow.
	During the pulse flow we are talking about 
entrainment possibly of San Joaquin fish because the pulse 
is supposed to be coincident with the downstream migration 
of San Joaquin smolts, so there is a bunch of issues out 
there with respect to implementing it, and for that reason, 
I can't support at this time Alex's proposal to include  
this language.
	I think there is the additional problem, even if this 
language was in the order, the Department and the Bureau 
would not be able to implement these changes in a way that 
does not impair their ability to meet the Vernalis water 
quality standard if these fish flows are required by Section 
7 consultation, ESA, biological opinion.  That would have to 
be amended or whatever else the Board said the Bureau would 
find themselves either in violation of this order or in 
violation of their biological opinion from the Fish and 
Wildlife Service with respect to how they treat these flows.
	So, I would suggest that this is something that can 
be worked on, should be worked on, but should not be 
incorporated in the decision at this time because I think it 
would go way beyond what can be supported either by the 
record in this matter or by the environmental documentation.
	So, in conclusion, the Joint California Water 
Agencies urge you to adopt the order as presented with the 
addendum, and we thank you and your staff for their prompt 
and responsive effort that's evidenced by the Draft Order.
	MR. CAFFREY:  Thank you, Mr. Schulz.
	Question from Ms. Forster.
	MS. FORSTER:  With the complexity of doing these 
orders and supporting documentation, and then trying to add 
or deplete from the order in a normal hearing like this --
	MR. CAFFREY:  This is a meeting.
	MS. FORSTER:  A meeting like this, doesn't preclude a 
recommendation as was made by Mr. Hildebrand from being part 
of an agreement between DWR and the Bureau and the other 
people that are working on this outside of this order.
	You have been involved in this many many years, and 
you have experienced every issue there is on the Bay-Delta 
and tributaries.  What kind of assistance or commitment 
could you all make outside of this petition that would 
enable his recommendation to move forward?  Would you work 
with a group?  I mean, you meet on the Suisun Marsh and all 
of these others.  How could you help solve some of these 
problems?
	MR. SCHULZ:  I think I can speak for the entire group 
to say we are committed to that kind of action.  As I said, 
we had a second paragraph to our suggested language on the 
joint point of diversion which talked about having the Board 
tell us, in effect, to go out and put together through 
negotiation with all interested parties a consensus 
procedure which would allow us to go above the current 
diversion rates that are in place without the joint point, 
and Alex's suggestion is just inextricably linked to the 
ability to pump more and wheel some Bureau water through the 
State facility.
	We are willing to do that.  We also want to do that, 
as we said, for purposes of refuge water, so we are ready, 
willing and able to start discussing those things.
	I think ultimately when we do it, we have to come 
back to you jointly with a proposal, and I can submit to you 
that we will be doing that and we want to involve the San 
Joaquin people in those discussions and consensus-building 
process.
	MS. FORSTER:  What page did you have this paragraph?
	MR. SCHULZ:  We had it in one of our -- I believe it 
was Westlands Exhibit 1, we had that paragraph, and I can 
understand why the Board didn't put it in the order, but the 
reason why I said in my prepared statement that irrespective 
of being in the Board's order, that is our policy.  That is 
what we plan to do and we plan, because we don't think 
simply because you didn't force us to do it in an order, we 
shouldn't be doing that to try to make improvements in the 
system through the Ops Group and everybody else, and that's 
what we are going to do.
	MR. CAFFREY:  Thank you, Mr. Schulz.  We appreciate 
your being here.
	Steve Ottemoeller, Chief of Water Resources, 
Westlands Water District.
	Good morning, sir, welcome.
	MR. OTTEMOELLER:  Good morning, Mr. Chairman and 
members of the Board.  I am up here on somewhat of an 
impromptu basis as a result of Mr. Hildebrand's comments, 
and just a few things that I would like to say, possibly a 
little repetitious, but I want to compliment Cliff on his 
comments in terms of impacts because they were the kind of 
things that I as an engineer might say about the impacts, 
but just a couple of things I want to maybe clarify.
	First of all, the proposed order does not allow any 
increases in diversions or yield of the project as a result 
of the combined point of diversion.  The 30- to 50-thousand 
acre-feet that was discussed during testimony was related to 
an unrestricted joint point of diversion, so absent 
something in the order that allows for any increases as a 
result of the joint point, something like that proposal, in 
my mind, clearly would reduce the amount of water that would 
be available for use south of the Delta.
	Once pumping that is intended for use south of the 
Delta for purposes of the project, be it for M&I or 
agricultural uses, is foregone in order to recirculate that 
water, that pumping cannot be regained absent some clear 
allowance for increased pumping at a later time, so I would 
reiterate Mr. Schulz' comments about having some process and 
discussion of this in a manner that will allow us to 
identify exactly what the impacts would be and what kind of 
considerations would have to be made if the recirculation 
plan were to be something that would be required as part of 
the operations.
	And secondly, I just want to comment on the urgency.  
A couple of other people have mentioned it, but it is 
important to the water users south of the Delta that the 
order be approved as soon as possible, preferably today, in 
the manner that it's been drafted.  
	If the order is not adopted, then the Bureau and the 
Department of Water Resources will have to adjust their 
operations to come into compliance with the 3,000 cfs 
monthly average and DWR would also be impacted in their July 
pumping because they have a 4600 cfs limitation, so any 
delay does have an impact on the amount of water that the 
project can move south of the Delta.
	There have already been actions by -- particularly 
DWR and somewhat the USBR, during May primarily which have 
reduced what they otherwise would have pumped in order to 
improve conditions for the fish coming down the San Joaquin 
River, and to my knowledge, it has been in anticipation of 
their being able to make up some of that foregone pumping 
that they have made the decision to do that, so there is, if 
not an absolute, at least some reliance on the order that we 
are hoping that the Board will approve today.
	Thank you.
	MR. CAFFREY:  Thank you, Mr. Ottemoeller.
	I have two cards left, first, Mr. Porgans and then 
John Renning.
	Mr. Porgans, good afternoon, sir.
	MR. PORGANS:  Good morning, Mr. Chairperson.
	I don't know how to begin.  I am totally -- I thought 
I heard someone say they are exceeding pumping now.  Then I 
was told this plan here is going to help provide for 
protection and that there is no reason to believe they are 
not going to comply with the Vernalis standard.
	Something is not quite right here.  I am always 
trying to do the catch-up thing, Mr. Chairperson.  I am a 
little slow and the pace of this whole process is passing me 
by in light years.  I can't even keep up anymore.  Put that 
in the record.
	All I keep hearing Mr. Anderson --
	MR. CAFFREY:  She can't not put it in the record.
	MR. PORGANS:  Thank you very much.
	My point being that here again we are back to the 
crisis management mode.  We need to approve it today so this 
way they will be in compliance with what we are doing now.  
I just don't understand it.  I, quite frankly, don't 
understand it. 
	It's like me telling the Highway Patrol, I am doing 
75 now.  I realize I'm in the 55 zone, but I think I am 
going to get approval by the Legislature to bring it back to 
75.  So, officer, just don't give me the ticket now.
	Now, we know from the record, and I brought this 
record to you, that in the past the Bureau has just outright 
flatly unequivocally said they weren't going to meet 
standards at certain times at Vernalis, so I can't buy into 
that one.
	Getting back to Mr. Anderson, he is coming back here 
again with we want you to move expeditiously.  I realize 
that Mr. Anderson represents the Department of Water 
Resources, and this gentleman from Kern County represents 
the people in Kern County, but I am a member of the public 
and this Board represents me as well as them, and I have now 
learned from my experience, and I took exception at the last 
hearing when someone said there was a rubber stamping 
process going on here, but I started to dream about it and I 
came to the reality that it appears to me, Mr. Chairperson, 
that there is some sort of a rubber-stamping process going 
on here.
	You guys can't move fast enough for the DWR and the 
Bureau.  
	I filed a petition two years ago to deal with 
drainage and my decision will not even be made until the end 
of this year or possibly next year.  I am two years in the 
waiting.
	This has everything to do with what we are talking 
about now because this water quality thing is affecting the 
things that are happening in the valley in terms of water 
quality in the rivers, elsewhere in the groundwater.
	I am still trying to decipher what's in the 
Environmental Report that Mr. Howard and everybody else put 
together, which I raised at the last hearing and didn't get 
an answer to my specific questions, and that hasn't been 
settled yet because I am sending a six-page letter of my 
interpretation of what I think Mr. Howard, et al., said, and 
it is totally perplexing to me.
	I have to compliment them on the cryptics.  That's 
not the way these reports are supposed to be written.  They 
are supposed to be written in plain English so people can 
understand them.  I only have a college degree but I can 
read, and I can read the handwriting on the wall.
	This whole process, not just this particular request 
that Mr. Anderson, et al., is making today, Mr. Chairperson, 
the entire process is flawed.  
	I can appreciate the fact that, you know, there are 
conditions in times when you have to deal with a crisis.  
Everybody has to.  This whole thing has been a series of 
crises and all we keep doing is reacting to the crisis.  
They keep telling me they are going to protect fish. 
	The gentleman from Fish and Game said, we have still 
got to determine what the fish criteria is for salmon.  Hey, 
let's get a wake-up call here.  I brought that issue up back 
in 1991 at the first biological opinion when we were talking 
about fish criteria for salmon.  It still hasn't been 
resolved.
	They didn't provide better protection when we know 
historically, the record shows implicitly that they have 
been the major contributing cause to the decline of the 
fisheries.
	The Bureau and the Department, they haven't 
mitigated.
	We talk about all this mitigation in this order, the 
Draft Order, but most of which is out of your purview.  This 
Board was nice enough to go forward and look toward 
directing the Regional Board to do something about coming up 
with something related to the salinity standard.  You get a 
memo back from them stating that, well, we will see -- I am 
paraphrasing -- see about getting to it, but you realize our 
staff is pretty preoccupied, so as soon as we can get up to 
that, and we want you to finish up your hearing process, and 
then we will work with you.
	That's not good enough, absolutely not good enough.
	This report makes reference to unreasonable use, and 
you can't find unreasonable use?  I have been throwing out 
unreasonable use to this Board for the last several years.  
	In my petition to this Board on the evaporation 
points -- you did not answer those issues.  As a matter of 
fact, you didn't even listen.
	So, let me see if I can get back to what I am 
attempting to try to say here today.  The Department of 
Water Resources doesn't have any special rights that I know 
of.  The U. S. Bureau of Reclamation doesn't have any 
special rights that I know of.  This Board is giving them 
preferential treatment, and I am taking exception to that.  
I take exception to the way this impact report was written 
because I was one of the first persons to become certified 
to write these things way back when, and I can tell you 
right here and now I wouldn't put my name on it.
	So, in conclusion, if this Board goes forward today 
and approves this request that Mr. Anderson and the Bureau 
have before it, I will be absolutely convinced beyond any 
reasonable doubt that the rubber stamp theory is a fact, and 
I will now have to figure out why all of these sequences of 
events are occurring at different points in time and why 
very few people can provide me with specific answers to 
relative questions pertaining to the public trust resources.
	So, in conclusion, the information contained in the 
Draft Order, which is to some degree based upon the 
Environmental Report, as far as I am concerned, based upon 
my involvement in this process for 25 years, is inadequate.  
It doesn't fulfill the requirements of CEQA.  It evades, and 
avoids and circumvents the issue, and I don't have enough 
time to go into all of the inefficiencies in this particular 
order or that report.  I don't have that kind of staff.
	But I can assure you that the dust hasn't settled on 
this one and I appreciate this Board, and I respect a number 
of the Board members here, I truly do.  I have waited, I 
have watched for the action, I've got three more years with 
Mr. Anderson and DWR, and the Bureau is going to be taking 
more water out of my Delta, haven't been held accountable in 
the past and I just can't see how they can pump more than 
they are allowed to pump right now, and then tell you, we 
need to be approved so we are not in violation.
	I hope somebody is listening because, quite frankly, 
I find it somewhat amusing.
	Thank you.
	MR. CAFFREY:  Thank you, Mr. Porgans.
	Any questions?
	Mr. Brown has a question.
	MR. BROWN:  Which specific major item did you bring 
up that was not addressed?
	MR. PORGANS:  In what particular arena?
	MR. BROWN:  In this order here.  I thought I heard 
you say you brought up several specific items that the staff 
did not address or respond to.
	MR. PORGANS:  I believe what I said initially -- let 
me go back here for a moment.
	In the initial hearing that you held on this, I said 
my major point was we shouldn't be making the D-1485 conform 
to the terms and conditions of the agreement.  The agreement 
should conform to an established Board order.  That is my 
first point.
	The second point, coming back to what you are talking 
about, I questioned whether it was reasonable to take water 
out of the Delta and apply it to agricultural land where we 
have known drainage problems in light of the fact that we 
don't have a solution to that problem.
	MR. BROWN:  That is a different issue.
	MR. PORGANS:  It is different, but it relates to the 
water quality standard at Vernalis and relates to what's 
going on in the San Joaquin River for the last several 
years.
	We know that in 1994, that in 11 out of 12 months, 
Mr. Brown, they exceeded the standards.
	MR. BROWN:  By allowing the Department to continue to 
pump 4,000 instead of 3,000, what major consequences do you 
see on that as far as the impact to the people in the 
community?
	MR. PORGANS:  Well, it is difficult for me to say 
with any degree of specificity as to what those impacts are 
because I don't have enough information to make that 
determination.  I know historically when they have taken 
more water than what they should have taken, it had an 
adverse impact and those were not mitigated, so I am 
concerned that I don't have enough information to give to 
you.
	MR. BROWN:  They are the people who use the water.  
	The concern I have right now is that if we cut them 
back to 3,000, it is not the Department we are cutting back, 
it is the people all along the aqueduct and the State of 
California that could conceivably be using that thousand 
cfs.   That's the they.
	Give me some reasons not to do that.
	MR. PORGANS:  Okay, first of all, if we look at the 
type of water year we have this year, we have more than 
enough water down there in the valley to provide for the 
basic needs of the people.  
	I think that one of the reasons why we shouldn't 
allow them to do it is because historically they haven't 
operated to the letter and intent of the terms and 
conditions of their permits.  By granting them additional 
latitude and flexibility in the operation of the project 
could effectively create some problems such as we had in the 
past.
	Now, I understand your question, Mr. Brown.  I will 
try to focus back on why should we deny people down in the 
valley the use of water that could be made available from 
this project.  That is your question and I am going to 
answer that question right now.
	It is because DWR and the Bureau have no drainage 
facilities.  To put more water on those fields down there is 
only going to compound some of the existing drainage 
problems we already have.  They have no solution.
	MR. BROWN:  Thank you.
	MR. CAFFREY:  Anything else?
	Thank you very much, Mr. Porgans, for being here to 
express your concerns.
	MR. PORGANS:  Thank you.
	MR. CAFFREY:  John Renning of the U. S. Bureau of 
Reclamation.
	Good morning, sir, welcome.
	MR. RENNING:  Thank you, Mr. Chairman.
	I have several comments to make.  First, we would 
like to voice our agreement with the comments Mr. Anderson 
made from the Department of Water Resources.  
	Secondly, I would have to say that the discussions 
that we have had with the South Delta Water Agency 
concerning the recirculation idea that Mr. Hildebrand has 
proposed are very preliminary in nature, and that the Bureau 
of Reclamation at this point in time certainly does not 
endorse the addition of any language to this order 
concerning that program.
	It must be studied in a great deal more depth than 
what occurred to date.
	And thirdly, we would request that the Board act 
immediately upon the order that's before them, that we view 
it as being an important thing for the operation of the 
project at this point in time for the flexibility that it 
gives us in operating to the conditions that we are facing 
right now.
	Thank you.
	MR. CAFFREY:  Thank you, Mr. Renning.
	Mr. Hildebrand has his hand up and I saw earlier Mr. 
Anderson wanted to say something.  I will allow you to do 
so.
	MR. HILDEBRAND:  I wanted to make a point of 
clarification.
	MR. CAFFREY:  Please do so.
	MR. HILDEBRAND:  I think there is some 
misunderstanding of my proposal.  My proposed addition does 
not stipulate that the Bureau must circulate water.  I 
merely point that out as a way, an opportunity they have, 
which would result in there being no impact or no 
impropriety with these other qualifications being imposed on 
them.
	In other words, they can still provide the fish flows 
without impairing the water quality, et cetera, without 
impairing area of origin rights by that means, but this 
doesn't require them to do it that way.
	Furthermore, a complaint has been made that they 
haven't studied, haven't figured out whether they might lose a 
couple of acre-feet of water in order to make this 
circulation.
	I would state that maybe they would, but it is more 
appropriate that they lose a little bit of export water to 
correct the problem which is created by the Central Valley 
Project than that they should take water away from the areas 
of origin to accomplish that purpose, so lest there be a 
misunderstanding, the wording I propose does not stipulate 
that this must be their solution.
	MR. CAFFREY:  Thank you, Mr. Hildebrand.
	Mr. Anderson, you had your hand up, and then Ms. 
Zolezzi.
	MR. ANDERSON:  Very briefly, just so the Board did 
not misunderstand my comments, we are not in violation of D-
1485 today.  The pumping limitation is a monthly average.  
We are eight days into the month and we will know on June 
30.
	My suggestion was were we not to get a different 
limitation, we would have to change our operation, but we 
are not in violation of D-1485.
	MR. CAFFREY:  Thank you for that clarification.
	Ms. Zolezzi.
	MS. ZOLEZZI:  I just have a question.  I feel like I 
am back at the hearing on this issue and I hope that if the 
Board contemplates adopting the order, perhaps we could have 
a clarification.
	We have heard from Fish and Game that its 
interpretation of the order is that there will be no net 
increase in water yield available if the petition were 
granted.
	Mr. Ottemoeller made the same statement.  
	The order itself states in more than one place that 
there will be increased yield if this petition is adopted 
compared to if it were not adopted.
	Maybe I am not understanding something, but I would 
request a clarification if you intend to move forward with 
it, and that would be in the record.
	MR. CAFFREY:  Thank you, Ms. Zolezzi.
	We will ask that very question of staff as soon as we 
come back from our break.  That will be part of our --
	Mr. Porgans, very briefly.
	MR. PORGANS:  I was only referring to what Mr. Mike 
Ford was talking about, if they kept that pumping level up 
for a 30-day period, they would be in violation unless the 
Board approved the order.
	MR. CAFFREY:  Mr. Brown.
	MR. BROWN:  Mr. Porgans, it is important to note, in 
our discussion here I got the full impression that you were 
concerned that DWR was in violation and how were we 
permitting it.
	MR. PORGANS:  Excuse me, I would say if you didn't 
approve the request that they are making, and they would 
continue to pump like Mr. Ford said, that was my point.
	The other note that I was trying to make in terms of 
impact was on the striped bass.  I don't know what that 
impact is by taking this water out at this time of year, the 
additional water.
	Thank you.
	MR. CAFFREY:  Thank you for your clarification, sir.
	Let's take about a 15-minute break and let's be back 
at 11:30 by that clock, and we will have staff present their 
responses to the concerns that have been raised by the 
various parties, and then we will see whether we have a 
motion, so be back in 15 minutes.
	(Recess)
	MR. CAFFREY:  All right, we will resume the meeting 
and I think we are at the point now where we would ask 
staff, and I presume it is Mr. Pettit or Mr. Johns, perhaps 
Ms. Leidigh as well, to perhaps take us through the points 
you wish to on the comments from the various parties.
	MR. PETTIT:  I will ask Mr. Johns to kick that off.  
I think he and Ms. Leidigh will probably handle the bulk of 
it.  
	I don't know that every comment needs to be responded 
to, but I think we tried to summarize the major ones and if 
we miss anything you are interested in, we will certainly 
try to respond to it.
	I would ask Jerry to kick off.
	MR. JOHNS:  Thank you, Mr. Chairman.
	To reiterate, we will try to hit those that are based 
on the questions by Board members that we feel you would 
like to have addressed.  If there are things we miss, please 
bring them up and we will try to address them for you.
	MR. CAFFREY:  Thank you, Mr. Johns.
	MR. JOHNS:  So, I think we can be gratified that we 
have another non-controversial Bay-Delta water rights 
proceeding that we have going on here, the fact that 
everybody is in agreement with what we are doing.
	MR. CAFFREY:  You take gratification in that?
	MR. JOHNS:  Yes.  I didn't keep score, but I think 
we've got half and half.
	MR. PETTIT:  Mr. Chairman, I probably should insert 
that in talking to someone during the break it is refreshing 
to be accused of moving too fast in the Bay-Delta.
	MR. CAFFREY:  I will announce that I am really 27 
years old but I look like this because of the Delta process.
	MR. JOHNS:  Mr. Nomellini brought up the issue of 
impartiality.  I think the Board members have a good sense 
of that and I am not going to elaborate on that.
	Ms. Jeanne Zolezzi of Stockton East raised concerns 
about water protection statutes and the legal aspects that 
are going on here, concerns about the CEQA documentation.
	Staff's feeling is that we have complied with CEQA 
requirements here.  We also feel very strongly we have 
complied with all the water protection statutes.  Our 
feeling is that the water protection statutes are accurately 
reflected in our order, Draft Order for the Board here, and 
we have complied with all of the requirements of both the 
Endangered Species Act and CEQA.
	Mr. Herrick from the South Delta Water Agency also 
expressed concerns with the Environmental Report.  We do 
feel this is a programmatic document and the actions we are 
talking about here are covered within the scope of that 
environmental document.
	He specifically raised concerns about our evaluation 
of the interim effects of this order.  I do feel that the 
Environmental Report does talk about the impacts of the 
requirements here and I will address the interim impacts 
when I discuss Mr. Hildebrand's concerns.
	The joint point of diversion is not specifically 
addressed in the Environmental Report that we did for the 
Water Quality Control Plan; however, we did do a staff 
review of the impacts of that.  We did consult the 
Department of Fish and Game on this issue, and it is our 
feeling that we have mitigated these sorts of impacts to 
insignificance with the current terms of this order, and 
that because of that we can use the Environmental Report as 
a justification for environmental review here, and our 
actions within the scope of that Environmental Report.
	It is discussed there although not analyzed.  I think 
that our analysis since that time shows that the impacts 
would not be significant and Fish and Game agrees with that.
	Mr. Hildebrand really brought up two different types 
of points, one regarding the potential violation of water 
quality standards in the South Delta with the additional 
requirements of flow that are required in the Endangered 
Species Act, and he brought up this idea of recirculating 
the water.
	Let me break those into two pieces.  We recognize 
there is tension between the Endangered Species Act for 
flow, additional flow, in the San Joaquin River during the 
pulse-flow events for the protection of fish, and the water 
right terms and conditions to protect both prior rights and 
water quality in the San Joaquin River -- down to the San 
Joaquin River along the Stanislaus River.
	The Environmental Report shows that there is not 
enough water in New Melones to meet all those demands, but 
on page 39 of the Draft Order, we state that during this 
interim period we expect that the Bureau will continue to 
honor its water right permit terms to protect both prior 
rights, fisheries and water quality in the Stanislaus River 
basin down to Vernalis.
	We have been in discussions where this issue of the 
tension of not enough water in New Melones to provide both 
ESA requirements and water right permit terms have been 
discussed and it becomes very clear to us that the Bureau is 
aware of this tension and has committed to purchase 
additional water to meet their conditions under ESA, and if 
they can't find enough water in the basin, that they will 
re-enter consultations with the Fish and Wildlife Service 
with the idea of possibly lowering the fishery flows so they 
can meet the requirements with the available water supply.
	MR. CAFFREY:  Mr. Brown.
	MR. BROWN:  You made a statement that the Bureau meet 
the water rights.  I would assume that you are talking only 
about the Stanislaus.
	MR. JOHNS:  Yes.
	MR. BROWN:  So, what you are saying is the concern of 
the San Joaquin folks is that there is not going to be 
sufficient water in the New Melones to meet the water rights 
and to meet the water quality requirements, but the Bureau 
will be making this up somewhere else?
	MR. JOHNS:  The Bureau has a program where they can 
purchase additional water from other sources to augment flows in 
the San Joaquin River.
	MR. BROWN:  Through the CVPIA?
	MR. JOHNS:  Yes.
	MR. BROWN:  What about interim water rights?  What 
about Stockton East Water District as an example? It has, I 
think, an interim water right for 70,000 acre-feet that has 
not been exercised presumably because there has never been 
any water there.
	MR. JOHNS:  I wasn't talking about interim water 
rights.  I was talking about prior vested rights.  
	There are terms and conditions in the water rights 
permit in D-1422 where the Bureau has to meet those prior 
rights before they deliver contract water to their 
customers.
	MR. BROWN:  I was talking about contract water.
	MR. JOHNS:  The contract rights is an issue basically 
between the contractor and the Bureau once they have 
satisfied their requirements under ESA and the water rights 
permits.
	If there is additional water for appropriation, then 
they can deliver that water under the permits.
	MR. BROWN:  The concern is the Bureau not being able 
to meet the contract water.  Will the Bureau still be able 
to meet the contract water requirements?
	MR. JOHNS:  Our analysis indicates they will not be 
able to meet all the contract demands from New Melones with 
the present requirements.
	MR. BROWN:  Will the action we are contemplating here 
take away from their ability anymore?
	MR. JOHNS:  No.
	MR. BROWN:  Will it change?
	MR. JOHNS:  The actual action that we are taking,  
that we are proposing for the Board to take is to change the 
water quality standard at Vernalis that currently exists in 
D-1422.  
	The record indicates that that's a water supply 
neutral action.  There is no additional water supply 
required in that change, and that's the only change we are 
talking about that would affect the Stanislaus River.
	So, our action today does not affect their water 
supply in that area.  It provides better quality.
	MR. BROWN:  So, the contract water would not be 
affected?
	MR. JOHNS:  By this action today.
	MR. BROWN:  What about the interim contract 
potential, even though this has never been exercised?
	MR. JOHNS:  Interim contract, again, our action today 
is a water supply neutral proposal.  What we tried to point 
out in the order is that the concerns that we see that have 
been expressed by the Stockton East area and the Stanislaus 
River users have been the concerns raised by the Endangered 
Species Act in the taking of water for fishery purposes 
downstream to Vernalis.
	That has had a very large impact on the ability of 
the Bureau to meet water supply demands, or contract 
demands, but we are not proposing that that be included in 
the water rights permit at this time.  We are only talking 
about the water quality change.
	MR. BROWN:  Thank you.
	MR. CAFFREY:  Ms. Forster.
	MS. FORSTER:  Did you say to Mr. Brown that it is 
water supply neutral and improves the water quality?
	MR. JOHNS:  It is our opinion that definitely 
improves water quality in the summertime and allows some 
increase in salinity during the wintertime when we feel it 
is less of an impact on agriculture.  On the whole, we 
believe that the water quality objective that was adopted by 
the Board in the 1995 Water Quality Control Plan represents 
an improvement for agriculture in the Sourthern Delta.
	MR. CAFFREY:  Mr. Brown.
	MR. BROWN:  Then, I don't understand the objections.
	MR. JOHNS:  Neither do I.  I don't want to put words 
into people's mouths, but I think the biggest concerns with 
the ESA flows, and I think there is some frustration on the 
part of the parties here that they don't have a forum where 
they can express their frustrations.
	This is a forum where at least they are discussed and 
I think they are expressing that frustration here, but we 
are not proposing that the Board adopt those flows at this 
point in time in a water right permit.
	What we are asking for is that we modify the water 
quality standards in the water quality permit in D-1422.
	MR. BROWN:   Thank you.
	MR. CAFFREY:  Please proceed, Mr. Johns.
	MR. JOHNS:  The other issue that was expressed 
related to the possibility of circulating water through the 
DMC.  I think that was discussed pretty well by the parties.  
	Our concern in that area is we may not have 
sufficient environmental documentation to act on that 
proposal at this point in time.
	Also, I think Fish and Game pointed out correctly 
that we probably have to consult with them under ESA and 
that that would take some time.
	So, our proposal would be not to include that in this 
order, but to perhaps defer that to some later date.
	The City of Stockton expressed concerns about the 
dissolved oxygen in the river and stated that they didn't 
see any direct analysis of that.  
	We were somewhat frustrated in this area because we 
didn't have a direct modeling analysis of our proposal.  
Some of the information presented during the hearing talks 
about if there were no exports in the South Delta, how that 
would afffect the dissolved oxygen, and if there were 
exports, what would that do to dissolved oxygen? 
	We are not proposing anywhere near that kind of 
marked change in activities.  We did have an evaluation of 
all actions going on in the Delta, including ESA and water 
right changes, and they were modeled by the Department of 
Water Resources for us.  They were included in the 
Environmental Report appendix for the Water Quality Control 
Plan.  That indicated that levels in South Delta would 
increase most of the time due to the changes in flows and 
these increases in levels would result from changes in 
flows, so although they indicated in their comments that we 
have not analyzed flows, we have analyzed levels, and the 
levels and flows are directly correlated.
	I think our analysis indicates that we don't expect 
low dissolved oxygen problems due to this action.
	Also, there was a concern expressed about the 
Operations Group and they want participation in that group.  
That group is open to the public forum currently.  The 
agencies are the ones that if it ever gets to decision 
making or the agencies act on it, any party from the public 
is allowed to attend those meetings, and I would extend the 
invitation to people who are interested to go ahead and 
attend.  It's not a closed meeting by any means.
	MS. FORSTER:  Somebody asked that on page 56, why 
should participation be ordered?  
	I don't know what we are going to do about any of the 
wording, or leave the wording like this.  You are 
encouraging, but do you think this does it strong enough?
	MR. JOHNS:  We rely on the Operations Group.  It is 
open.  That process is currently open now.  We could mention 
it here in the order.  It would simply reiterate what is 
currently going on.
	MS. FORSTER:  Are people happier and it is not a 
problem saying --
	MR. JOHNS:  On page 55, Barbara points out before 
changes are made, the permittee shall consult with a 
committee composed of representatives of all parties who 
indicate an interest in participating.
	MS. FORSTER:  Okay.
	MR. JOHNS:  My guess is Stockton may have expressed 
interest in participating.
	MR. BROWN:  Where is that?
	MR. JOHNS:  At the bottom of page 55.
	MS. LEIDIGH:  It is the last partial sentence and it 
continues on page 56.
	MR. BROWN:  Why is the San Joaquin group missing 
these opportunities?
	MR. SHEPHARD:  No notice.
	MR. BROWN:  Any comment?
	MR. JOHNS:  If anybody who is interested in that 
would contact me or Bob Potter, or anybody else that is 
attending those meetings, we can make them aware of these 
meetings.
	MR. OTTEMOELLER:  I just wanted to comment there have 
been members representing some San Joaquin River agencies at 
the last two Operations Group meetings.
	MR. BROWN:  Who were they, Steve?
	MR. OTTEMOELLER:  Alex, specifically, two months ago.
	MR. HILDEBRAND:  Tom Zuckerman.  We invited 
ourselves.
	MR. JOHNS:  The process works.
	MR. NOMELLINI:  The Operations Group makes the 
decision and what you are talking about is that if anybody 
wants to attend, they can.  We think that's a good step, to 
let people attend the meeting, but the decision making is 
being given to the other people.
	MR. CAFFREY:  Is there some kind of a notice process?
	MR. JOHNS:  The meetings are usually scheduled at the 
end of the subsequent meeting.  If you miss a couple, you 
have to interject yourself into the process, call somebody 
and find out where the meeting is going to be.
	MR. CAFFREY:  The logistics are they just have to be 
more or less the people call you and you tell them about 
where the meeting is.
	MR. JOHNS:  Or they regularly attend the meeting.
	MR. CAFFREY:  If they attend one, and attend all of 
them thereafter, they will know when the next meeting is.
	MR. CREEL:  Curtis Creel of the Department of Water 
Resources.
	Those meetings are scheduled for the fourth Thursday 
of every month at Room 1131 of the Resources Building.  They 
just recently changed the time.  The meetings start at one 
o'clock.
	MR. CAFFREY:  I want to make sure everybody gets the 
time and location of those meetings.  All interested parties 
are invited to attend and it is at one o'clock.
	MR. JOHNS:  We will caution people there are times 
when that meeting may be changed, so it could be --
	MR. CAFFREY:  You didn't need to say that, Jerry.  A 
lot of things change.
	MR. JOHNS:  We schedule meetings and they are changed 
from time to time.  It's just continual vigilance on the 
part of the participants.
	MR. CAFFREY:  It appears to me we should let people 
know when things change.  I trust you will, I should say.
	MR. JOHNS:  San Joaquin County had a lot of concerns 
about the environmental document.  I am not going to go into 
those here.  Suffice it to say that we have analyzed the 
CEQA concerns here quite carefully.  We feel we are in 
compliance with CEQA and CEQA requirements also.
	Those in support of the order -- there is not too 
much need to talk about that.  I think Dave did clarify 
correctly what their position is and what the impacts would 
be if the Board did not adopt this order.
	MR. CAFFREY:  Dave --
	MR. JOHNS:  Dave Anderson.  They are not currently in 
violation of any standards.  The violation would occur at 
the end of the month and certainly there have been past 
years when export rates have been at least this high during 
the early part of the month and then dropped them later, and 
came into compliance.
	Mr. Zlotnick from the Department of Fish and Game, I 
think, gave some good examples of how the order might be 
interpreted and expressed their concern about the 
recirculation proposal and need for possible consultation 
under ESA.
	One thing I might note is that in terms of several 
parties, they later on talked about the desire to get the 
Board to approve this currently.  There is today a concern 
with splittail in the last five days, and this is a proposed 
species to be listed.  It is currently being debated.	
	The catches in the pumps in the Sourthern Delta are 
fairly large.  In the last five days they caught 1.2 million 
splittail and for an endangered species, that's a lot.
	And what they are talking about currently, although 
they are below all requirements for pumping, Fish and Game 
is currently evaluating whether they would have the projects 
alter their operations to protect these fish.
	As they were entering these discussions we had 
earlier this week, they were saying, well, gee, that may be 
a possibility, particularly if the Board were to adopt the 
proposed order, then they can decrease pumping during this 
critical period for splittail, and then possibly make that 
up later under the provisions of the proposed order.
	So, there are things going on now that might be 
accommodated if the Board were to adopt this order.
	Mr. Porgans talked about the fast pace of this 
proceeding.  I would like to reiterate what Mr. Pettit 
indicated, that this is probably -- is that this may be more 
-- is that this probably is maybe more fast pace, that maybe 
this may be responsible by everyone.
	The rubber stamp kind of hit me.  It is hard to 
justify how this could possibly be a rubber stamp since both 
the petitioners expressed their concern that we did not 
adopt everything they wanted, but they still think the order 
is okay.  I don't think if this were a rubber stamp that you
would have seen something that is very similar to what they 
petitioned for.
	This is not what they petitioned for.  There were 
several things that the petitioners asked for that the Board 
in this Draft Order is not granting.  I think that 
represents a good weighing, equitable weighing of the 
efforts and petitions of all the parties.
	Again, there was concern with CEQA.  I have already 
stated our analysis indicates we are in compliance with CEQA 
and that covers most of the concerns that I think that you 
were concerned with.
	MR. CAFFREY:  Thank you very much, Mr. Johns.  I 
appreciate that.
	The matter is now before us and it is time for Board 
member discussion.
	MS. FORSTER:  I was going to ask Mr. Johns, isn't one 
of the things that the Board decided to do that might not 
have been in the original petition, more protection for 
Suisun Marsh?
	MR. JOHNS:  Yes.
	MR. CAFFREY:  Mr. Stubchaer.
	MR. STUBCHAER:  Mr. Chairman, I want to tell everyone 
here that I speak with a clear conscience and that I am 
sympathetic to the suggestions Mr. Hildebrand made.  The 
idea of recirculation is not something new.  Mr. Brown 
brought that up in an internal discussion we were having a 
few weeks ago in discussing how quickly it might be 
implemented.
	It became apparent that it required study and 
environmental analysis, consultations with the fishery 
agencies and things like that, which would preclude the 
concept of recirculation being implemented soon enough for 
us to take timely action on the petition before us today, 
and I think it is an effort that is worth pursuing, that we 
should act and direct our staff to consider that in the 
alternatives in our implementation process, the water rights 
process, together with any other alternatives that may be 
worthy of consideration, and also, ask the Bureau and the 
Department and their work groups to consider this 
alternative along with other alternatives.
	I think that we all know that the two projects are 
voluntarily implementing our Bay-Delta standards.  I believe 
Mr. Johns said that it's essential that this petition be 
granted so they will have flexibility to take actions for 
the protection of fish, and I think that it is only 
appropriate to not put the project in the position of non-
compliance with an obsolete order because they are 
voluntarily complying with our new standards, and therefore, 
I am proposing to move adoption of the order today.
	MR. CAFFREY:  Are you now making a motion, Mr. 
Stubchaer?
	MR. STUBCHAER:  I am making a motion.
	MR. CAFFREY:  It has been moved that we adopt the 
order as it is currently written.
	MS. FORSTER:  Second.
	MR. STUBCHAER:  Including the errata.
	MR. CAFFREY:  And seconded by Ms. Forster.
	MS. FORSTER:  May I say something?
	MR. CAFFREY:  Yes.  I have something to say before we 
vote.
	MS. FORSTER:  I am seconding the motion because it is 
my understanding that this petition is to help the fishery 
resources and that's what all of this has been about over 
the past year, from the lawsuit with the Federal Government, 
to all of our workshops, to all of the activities of coming 
together of Californians to try to solve something that has 
been an insolvable problem, and Mr. Johns just stated that 
if an order like this were in effect, things like the 
splittail could be helped or mitigated, and until we resolve 
some of these issues, we cannot move forward in meeting the 
needs of Californians in their water supply.
	So, as difficult and complex as this is, I think that 
we have to keep moving forward, and I think that the area of 
origin interests that Mr. Hildebrand brought up, I did not 
read carefully the Principles for Agreement, but somewhere 
in December when our Water Quality Plan was coming forward 
and the Principles for Agreement, I remember words that said 
water right laws on the area of origin would be given their 
due respect and consideration, and I can't remember the 
document.
	So, I feel the Board in the framework, I didn't read  all 
that either, but I did read our order and I did read our 
Environmental Report, and I did read our Water Quality 
Report several times, and all the briefs, and I don't know 
what else we can do.
	We respect everybody's opinion.  We have had a real 
hard time with keeping isolated and just trusting 
Californians are really motivated to work together to solve 
these problems, and I, on my part, am doing the best I can 
living in a vacuum only having documents to read and only 
these processes for you to communicate how we are going to 
resolve these things.
	I like Mr. Hildebrand's recommendation, I like what 
Mr. Stubchaer has asked, that we put this as a very 
important point as we proceed in the implementation.  We 
must do something to help the San Joaquin people and we have 
to help each other all the way through this, so I seconded 
that with the intent that we are all working together to 
move forward to resolve this ancient problem.
	MR. CAFFREY:  Thank you, Ms. Forster.
	Before we call the roll, I want to just say to 
everyone here that I certainly share the statements made by 
both Mr. Stubchaer and Ms. Forster.  I think it is really 
important for this Board to go forward.  
	I am not going to repeat what I said this morning.  I 
have great respect for Mr. Nomellini and the agencies and 
parties he represents, and I hope that he will stay part of 
this process and I hope he will find, I will use the word 
satisfaction within it. 
	I do want to say before we take the vote that I 
personally, as chair, and I hope -- and I am sure with the 
support of all my fellow Board members, and I might ask Mr. 
Pettit as we now begin the process of attempting to design 
and scope what the long-range water process is going to look 
like, that we make the issues for the San Joaquin the 
uppermost priority, one that we can deal with very early on 
in the process and perhaps find early resolution to that 
one, or at least seek to do so, because I suppose that we 
can certainly look at the various issues of the Delta 
process as somewhat modular, although they are 
interconnected obviously, and I would certainly like to deal 
with that as quickly and as expeditiously as we can, and I 
certainly do encourage the parties that stood up represented 
by Mr. Schulz and others for reiterating their desire to 
work closely with the San Joaquin interests, that they will 
please begin to do so, that you can bring to our process 
perhaps some information and some proposals that will help 
the Board to solve this difficult problem.
	So, with that, we thank you all.
	Mr. Brown, do you have something to say?
	MR. BROWN:  I would sooner follow the Gettysburg 
Address than the three of you.  You three have covered it 
very well.  
	I assure you that this is not going to be rubber 
stamped.  It has been a very difficult issue for us to 
arrive at a conclusion.
	The final note is it is really important for us to 
keep the process moving.  You have the opportunity, those 
with concerns here today, to continue to be a part of that 
process and to exert your influence.  
	The watershed protection, the area of origin are 
primary in our concern.  You will hear more about those in 
the months ahead.  
	The effect on the New Melones, I am not convinced 
that what we are doing here is going to cause harm to the 
San Joaquin County areas.  I don't see where we are changing 
the water rights. 
	It is important to bring closure to these issues that 
you have presented today and we will work to try to make 
that happen.
	Mr. Hildebrand, I have a high regard for his ideas 
and experience and knowledge, and when Mr. Hildebrand 
speaks, I try to listen.  I heard your suggestions today and 
they will not fall on a tin ear, I assure you, sir.
	The same goes with the rest of the people that 
presented a case here.  I think we have to keep the process 
moving, Mr. Chairman.
	MR. CAFFREY:  All right, thank you, Mr. Brown.
	With regard to the matter that is now before us, it 
has been moved and seconded that we adopt the proposed order 
as presented by staff with the errata that has been 
presented by staff.
	Ms. Marche¢, please call the roll.
	MS. MARCHE¢:  Mr. Stubchaer.
	MR. STUBCHAER:  Aye.
	MS. MARCHE¢:  Ms. Forster.
	MS. FORSTER:  Aye.
	MS. MARCHE¢:  Mr. Brown.
	MR. BROWN:  Aye.
	MS. MARCHE¢:  Mr. Caffrey.
	MR. CAFFREY:  Aye.
	The order is unanimously adopted.  
	Thank you all for your participation and for being 
here.  	
	This meeting is adjourned.
	(Thereupon the meeting was adjourned.)








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