STATE WATER RESOURCES CONTROL BOARD PUBLIC HEARING 1998 BAY-DELTA WATER RIGHTS HEARING PHASE VIII HELD AT: BONDERSON BUILDING 901 P STREET SACRAMENTO, CALIFORNIA TUESDAY, APRIL 11, 2000 9:00 A.M. Reported by: ESTHER F. WIATRE CSR NO. 1564 CAPITOL REPORTERS (916) 923-5447 1 APPEARANCES BOARD MEMBERS: 2 JOHN W. BROWN, COHEARING OFFICER 3 MARY JANE FORSTER 4 STAFF MEMBERS: 5 WALTER PETTIT, EXECUTIVE DIRECTOR JULIE CHAN, SUPERVISING ENGINEER 6 NICK WILCOX, CHIEF BAY-DELTA UNIT 7 COUNSEL: 8 BARBARA LEIDIGH 9 ---oOo--- 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 PRINCETON CODORA GLENN IRRIGATION DISTRICT, et al.: 3 FROST, DRUP & ATLAS 134 West Sycamore Street 4 Willows, California 95988 BY: J. MARK ATLAS, ESQ. 5 JOINT WATER DISTRICTS: 6 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON: 7 P.O. BOX 1679 Oroville, California 95965 8 BY: WILLIAM H. BABER III, ESQ. 9 CALIFORNIA SPORTFISHING PROTECTION ALLIANCE: 10 ROBERT J. BAIOCCHI P.O. Box 357 11 Quincy, California 12 BELLA VISTA WATER DISTRICT: 13 BRUCE L. BELTON, ESQ. 2525 Park Marina Drive, Suite 102 14 Redding, California 96001 15 WESTLANDS WATER DISTRICT: 16 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Capitol Mall, 27th Floor 17 Sacramento, California 95814 BY: THOMAS W. BIRMINGHAM, ESQ. 18 and JON ROBIN, ESQ. 19 THE BAY INSTITUTE OF SAN FRANCISCO: 20 GARY BOBKER 21 55 Shaver Street, Suite 330 San Rafael, California 94901 22 CITY OF ANTIOCH, et al.: 23 FREDERICK BOLD, JR., ESQ. 24 1201 California Street, Suite 1303 San Francisco, California 94109 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 LEAGUE OF WOMEN VOTERS: 3 ROBERTA BORGONOVO 2480 Union Street 4 San Francisco, California 94123 5 UNITED STATES DEPARTMENT OF THE INTERIOR: 6 OFFICE OF THE SOLICITOR 2800 Cottage Way, Room E1712 7 Sacramento, California 95825 BY: ALF W. BRANDT, ESQ. 8 and JAMES TURNER, ESQ. 9 10 CALIFORNIA URBAN WATER AGENCIES: 11 BYRON M. BUCK 455 Capitol Mall, Suite 705 12 Sacramento, California 95814 13 RANCHO MURIETA COMMUNITY SERVICES DISTRICT: 14 MCDONOUGH, HOLLAND & ALLEN 555 Capitol Mall, 9th Floor 15 Sacramento, California 95814 BY: VIRGINIA A. CAHILL, ESQ. 16 CALIFORNIA DEPARTMENT OF FISH AND GAME: 17 OFFICE OF ATTORNEY GENERAL 18 1300 I Street, Suite 1101 Sacramento, California 95814 19 BY: MATTHEW CAMPBELL, ESQ. 20 NATURAL RESOURCES DEFENSE COUNCIL: 21 HAMILTON CANDEE, ESQ. 71 Stevenson Street 22 San Francisco, California 94105 23 24 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 ARVIN-EDISON WATER STORAGE DISTRICT, et al.: 3 DOOLEY HERR & WILLIAMS 3500 West Mineral King Avenue, Suite C 4 Visalia, California 93291 BY: DANIEL M. DOOLEY, ESQ. 5 SACRAMENTO MUNICIPAL UTILITY DISTRICT: 6 LESLIE A. DUNSWORTH, ESQ. 7 6201 S Street Sacramento, California 95817 8 SOUTH SAN JOAQUIN IRRIGATION DISTRICT, et al.: 9 BRAY, GEIGER, RUDQUIST & NUSS 10 311 East Main Street, 4th Floor Stockton, California 95202 11 BY: STEVEN P. EMRICK, ESQ. 12 EAST BAY MUNICIPAL UTILITY DISTRICT: 13 EBMUD OFFICE OF GENERAL COUNSEL 375 Eleventh Street 14 Oakland, California 94623 BY: FRED S. ETHERIDGE, ESQ. 15 GOLDEN GATE AUDUBON SOCIETY: 16 ARTHUR FEINSTEIN 17 2530 San Pablo Avenue, Suite G Berkeley, California 94702 18 CONAWAY CONSERVANCY GROUP: 19 UREMOVIC & FELGER 20 P.O. Box 5654 Fresno, California 93755 21 BY: WARREN P. FELGER, ESQ. 22 THOMES CREEK WATER ASSOCIATION: 23 THOMES CREEK WATERSHED ASSOCIATION P.O. Box 2365 24 Flournoy, California 96029 BY: LOIS FLYNNE 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 COURT APPOINTED REPS OF WESTLANDS WD AREA 1, et al.: 3 LAW OFFICES OF SMILAND & KHACHIGIAN 601 West Fifth Street, Seventh Floor 4 Los Angeles, California 90075 BY: CHRISTOPHER G. FOSTER, ESQ. 5 CITY AND COUNTY OF SAN FRANCISCO: 6 OFFICE OF THE CITY ATTORNEY 7 1390 Market Street, Sixth Floor San Francisco, California 94102 8 BY: DONN W. FURMAN, ESQ. 9 CAMP FAR WEST IRRIGATION DISTRICT, et al.: 10 DANIEL F. GALLERY, ESQ. 926 J Street, Suite 505 11 Sacramento, California 95814 12 BOSTON RANCH COMPANY, et al.: 13 J.B. BOSWELL COMPANY 101 West Walnut Street 14 Pasadena, California 91103 BY: EDWARD G. GIERMANN 15 SAN JOAQUIN RIVER GROUP AUTHORITY, TURLOCK IRRIGATION 16 DISTRICT,et al.: 17 GRIFFTH, MASUDA & GODWIN 517 East Olive Street 18 Turlock, California 95381 BY: ARTHUR F. GODWIN, ESQ. 19 NORTHERN CALIFORNIA WATER ASSOCIATION: 20 RICHARD GOLB 21 455 Capitol Mall, Suite 335 Sacramento, California 95814 22 PLACER COUNTY WATER AGENCY, et al.: 23 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 24 400 Capitol Mall, 27th Floor Sacramento, California 95814 25 BY: JANET GOLDSMITH, ESQ. CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 ENVIRONMENTAL DEFENSE FUND: 3 DANIEL SUYEYASU, ESQ. 4 and THOMAS J. GRAFF, ESQ. 5 5655 College Avenue, Suite 304 Oakland, California 94618 6 CALAVERAS COUNTY WATER DISTRICT: 7 SIMON GRANVILLE 8 P.O. Box 846 San Andreas, California 95249 9 CHOWCHILLA WATER DISTRICT, et al.: 10 GREEN, GREEN & RIGBY 11 P.O. Box 1019 Madera, California 93639 12 BY: DENSLOW GREEN, ESQ. 13 CALIFORNIA FARM BUREAU FEDERATION: 14 DAVID J. GUY, ESQ. 2300 River Plaza Drive 15 Sacramento, California 95833 16 SANTA CLARA VALLEY WATER DISTRICT: 17 MORRISON & FORESTER 755 Page Mill Road 18 Palo Alto, California 94303 BY: KEVIN T. HAROFF, ESQ. 19 CITY OF SHASTA LAKE: 20 ALAN N. HARVEY 21 P.O. Box 777 Shasta Lake, California 96019 22 COUNTY OF STANISLAUS: 23 MICHAEL G. HEATON, ESQ. 24 926 J Street Sacramento, California 95814 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 GORRILL LAND COMPANY: 3 GORRILL LAND COMPANY 4 P.O. Box 427 Durham, California 95938 5 BY: DON HEFFREN 6 SOUTH DELTA WATER AGENCY: 7 JOHN HERRICK, ESQ. 3031 West March Lane, Suite 332 East 8 Stockton, California 95267 9 COUNTY OF GLENN: 10 NORMAN Y. HERRING 525 West Sycamore Street 11 Willows, California 95988 12 REGIONAL COUNCIL OF RURAL COUNTIES: 13 MICHAEL B. JACKSON, ESQ. 1020 Twelfth Street, Suite 400 14 Sacramento, California 95814 15 DEER CREEK WATERSHED CONSERVANCY: 16 JULIE KELLY P.O. Box 307 17 Vina, California 96092 18 DELTA TRIBUTARY AGENCIES COMMITTEE: 19 MODESTO IRRIGATION DISTRICT P.O. Box 4060 20 Modesto, California 95352 BY: BILL KETSCHER 21 SAVE THE SAN FRANCISCO BAY ASSOCIATION: 22 SAVE THE BAY 23 1736 Franklin Street Oakland, California 94612 24 BY: CYNTHIA L. KOEHLER, ESQ. 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 BATTLE CREEK WATERSHED LANDOWNERS: 3 BATTLE CREEK WATERSHED CONSERVANCY 4 P.O. Box 606 Manton, California 96059 5 BUTTE SINK WATERFOWL ASSOCIATION & 6 STANFORD VINGA RANCH IRRIGATION COMPANY: 7 MARTHA H. LENNIHAN, ESQ. 455 Capitol Mall, Suite 300 8 Sacramento, California 95814 9 CITY OF YUBA CITY: 10 WILLIAM P. LEWIS 1201 Civic Center Drive 11 Yuba City 95993 12 BROWNS VALLEY IRRIGATION DISTRICT, et al.: 13 BARTKIEWICZ, KRONICK & SHANAHAN 1011 22nd Street, Suite 100 14 Sacramento, California 95816 BY: ALAN B. LILLY, ESQ. 15 CONTRA COSTA WATER DISTRICT: 16 BOLD, POLISNER, MADDOW, NELSON & JUDSON 17 500 Ygnacio Valley Road, Suite 325 Walnut Creek, California 94596 18 BY: ROBERT B. MADDOW, ESQ. 19 GRASSLAND WATER DISTRICT: 20 DON MARCIOCHI 22759 South Mercey Springs Road 21 Los Banos, California 93635 22 SAN LUIS CANAL COMPANY: 23 FLANNIGAN, MASON, ROBBINS & GNASS 3351 North M Street, Suite 100 24 Merced, California 95344 BY: MICHAEL L. MASON, ESQ. 25 CAPITOL REPORTERS (916) 923-5447 1 2 REPRESENTATIVES 3 STONY CREEK BUSINESS AND LAND OWNERS COALITION: 4 R.W. MCCOMAS 4150 County Road K 5 Orland, California 95963 6 TRI-DAM POWER AUTHORITY: 7 TUOLUMNE UTILITIES DISTRICT P.O. Box 3728 8 Sonora, California 95730 BY: TIM MCCULLOUGH 9 DELANO-EARLIMART IRRIGATION DISTRICT, et al.: 10 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 11 P.O. Box 1679 Oroville, California 95965 12 BY: JEFFREY A. MEITH, ESQ. 13 HUMANE FARMING ASSOCIATION: 14 BRADLEY S. MILLER 1550 California Street, Suite 6 15 San Francisco, California 94109 16 CORDUA IRRIGATION DISTRICT, et al.: 17 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 18 Oroville, California 95965 BY: PAUL R. MINASIAN, ESQ. 19 EL DORADO COUNTY WATER AGENCY: 20 DE CUIR & SOMACH 21 400 Capitol Mall, Suite 1900 Sacramento, California 95814 22 BY: DONALD B. MOONEY, ESQ. 23 GLENN COUNTY FARM BUREAU: 24 STEVE MORA 501 Walker Street 25 Orland, California 95963 CAPITOL REPORTERS (916) 923-5447 1 2 REPRESENTATIVES 3 MODESTO IRRIGATION DISTRICT: 4 JOEL MOSKOWITZ P.O. Box 4060 5 Modesto, California 95352 6 PACIFIC GAS & ELECTRIC: 7 RICHARD H. MOSS, ESQ. P.O. Box 7442 8 San Francisco, California 94120 9 CENTRAL DELTA WATER AGENCY, et al.: 10 NOMELLINI, GRILLI & MCDANIEL P.O. Box 1461 11 Stockton, California 95201 BY: DANTE JOHN NOMELLINI, ESQ. 12 and DANTE JOHN NOMELLINI, JR., ESQ. 13 TULARE LAKE BASIN WATER STORAGE UNIT: 14 MICHAEL NORDSTROM 15 1100 Whitney Avenue Corcoran, California 93212 16 AKIN RANCH, et al.: 17 DOWNEY, BRAND, SEYMOUR & ROHWER 18 555 Capitol Mall, 10th Floor Sacramento, California 95814 19 BY: KEVIN M. O'BRIEN, ESQ. 20 OAKDALE IRRIGATION DISTRICT: 21 O'LAUGHLIN & PARIS 870 Manzanita Court, Suite B 22 Chico, California 95926 BY: TIM O'LAUGHLIN, ESQ. 23 SIERRA CLUB: 24 JENNA OLSEN 25 85 Second Street, 2nd Floor San Francisco, California 94105 CAPITOL REPORTERS (916) 923-5447 1 2 REPRESENTATIVES 3 YOLO COUNTY BOARD OF SUPERVISORS: 4 LYNNEL POLLOCK 625 Court Street 5 Woodland, California 95695 6 PATRICK PORGANS AND ASSOCIATES: 7 PATRICK PORGANS P.O. Box 60940 8 Sacramento, California 95860 9 BROADVIEW WATER DISTRICT, et al.: 10 DIANE RATHMANN 11 FRIENDS OF THE RIVER: 12 BETSY REIFSNIDER 128 J Street, 2nd Floor 13 Sacramento, California 95814 14 MERCED IRRIGATION DISTRICT: 15 FLANAGAN, MASON, ROBBINS & GNASS P.O. Box 2067 16 Merced, California 95344 BY: KENNETH M. ROBBINS, ESQ. 17 CENTRAL SAN JOAQUIN WATER CONSERVATION DISTRICT: 18 REID W. ROBERTS, ESQ. 19 311 East Main Street, Suite 202 Stockton, California 95202 20 METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA: 21 JAMES F. ROBERTS 22 P.O. Box 54153 Los Angeles, California 90054 23 SACRAMENTO AREA WATER FORUM: 24 CITY OF SACRAMENTO 25 980 9th Street, 10th Floor Sacramento, California 95814 CAPITOL REPORTERS (916) 923-5447 1 BY: JOSEPH ROBINSON, ESQ. 2 REPRESENTATIVES 3 TUOLUMNE RIVER PRESERVATION TRUST: 4 NATURAL HERITAGE INSTITUTE 114 Sansome Street, Suite 1200 5 San Francisco, California 94194 BY: RICHARD ROOKS-COLLINS, ESQ. 6 CALIFORNIA DEPARTMENT OF WATER RESOURCES: 7 DAVID SANDINO, ESQ. 8 CATHY CROTHERS, ESQ. P.O. Box 942836 9 Sacramento, California 94236 10 FRIANT WATER USERS AUTHORITY: 11 GARY W. SAWYERS, ESQ. 575 East Alluvial, Suite 101 12 Fresno, California 93720 13 KERN COUNTY WATER AGENCY: 14 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Capitol Mall, 27th Floor 15 Sacramento, California 95814 BY: CLIFFORD W. SCHULZ, ESQ. 16 SAN JOAQUIN RIVER EXCHANGE CONTRACTORS: 17 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON: 18 P.O. Box 1679 Oroville, California 95965 19 BY: MICHAEL V. SEXTON, ESQ. 20 SAN JOAQUIN COUNTY: 21 NEUMILLER & BEARDSLEE P.O. Box 20 22 Stockton, California 95203 BY: THOMAS J. SHEPHARD, SR., ESQ. 23 CITY OF STOCKTON: 24 DE CUIR & SOMACH 25 400 Capitol Mall, Suite 1900 Sacramento, California 95814 CAPITOL REPORTERS (916) 923-5447 1 BY: PAUL S. SIMMONS, ESQ. 2 REPRESENTATIVES 3 ORLAND UNIT WATER USERS' ASSOCIATION: 4 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 5 Oroville, California 95965 BY: M. ANTHONY SOARES, ESQ. 6 GLENN-COLUSA IRRIGATION DISTRICT: 7 DE CUIR & SOMACH 8 400 Capitol Mall, Suite 1900 Sacramento, California 95814 9 BY: ANDREW M. HITCHINGS, ESQ. 10 NORTH SAN JOAQUIN WATER CONSERVATION DISTRICT: 11 JAMES F. SORENSEN CONSULTING CIVIL ENGINEER, INC. 209 South Locust Street 12 Visalia, California 93279 BY: JAMES F. SORENSEN 13 PARADISE IRRIGATION DISTRICT: 14 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 15 P.O. Box 1679 Oroville, California 95695 16 BY: WILLIAM H. SPRUANCE, ESQ. 17 COUNTY OF COLUSA: 18 DONALD F. STANTON, ESQ. 1213 Market Street 19 Colusa, California 95932 20 COUNTY OF TRINITY: 21 COUNTY OF TRINITY - NATURAL RESOURCES P.O. Box 156 22 Hayfork, California 96041 BY: TOM STOKELY 23 CITY OF REDDING: 24 JEFFERY J. SWANSON, ESQ. 25 2515 Park Marina Drive, Suite 102 Redding, California 96001 CAPITOL REPORTERS (916) 923-5447 1 2 REPRESENTATIVES 3 TULARE IRRIGATION DISTRICT: 4 TEHAMA COUNTY RESOURCE CONSERVATION DISTRICT 2 Sutter Street, Suite D 5 Red Bluff, California 96080 BY: ERNEST E. WHITE 6 STATE WATER CONTRACTORS: 7 BEST BEST & KREIGER 8 P.O. Box 1028 Riverside, California 92502 9 BY: ERIC GARNER, ESQ. 10 COUNTY OF TEHAMA, et al.: 11 COUNTY OF TEHAMA BOARD OF SUPERVISORS: P.O. Box 250 12 Red Bluff, California 96080 BY: CHARLES H. WILLARD 13 MOUNTAIN COUNTIES WATER RESOURCES ASSOCIATION: 14 CHRISTOPHER D. WILLIAMS 15 P.O. Box 667 San Andreas, California 95249 16 JACKSON VALLEY IRRIGATION DISTRICT: 17 HENRY WILLY 18 6755 Lake Amador Drive Ione, California 95640 19 SOLANO COUNTY WATER AGENCY, et al.: 20 HERUM, CRABTREE, DYER, ZOLEZZI & TERPSTRA 21 2291 West March Lane, S.B.100 Stockton, California 95207 22 BY: JEANNE M. ZOLEZZI, ESQ. 23 WESTLANDS ENCROACHMENT AND EXPANSION LANDOWNERS: 24 BAKER, MANOCK & JENSEN 5260 North Palm Avenue 25 Fresno, California 93704 BY: CHRISTOPHER L. CAMPBELL, ESQ. CAPITOL REPORTERS (916) 923-5447 1 2 REPRESENTATIVES 3 SAN LUIS WATER DISTRICT: 4 LINNEMAN, BURGES, TELLES, VANATTA & VIERRA 1820 Marguerite Street 5 Dos Palos, California 93620 BY: THOMAS J. KEENE, ESQ. 6 7 ---oOo--- 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 1 INDEX PAGE 2 RESUMPTION OF HEARING: 16723 3 AFTERNOON SESSION: 16817 4 POLICY STATEMENTS: 5 MR. O'LAUGHLIN 16729 6 MR. HITCHINGS 16730 MR. LILLY 16732 7 OPENING STATEMENTS: 8 MR. NOMELLINI 16735 9 MR. JACKSON 16737 10 POLICY STATEMENT: 11 MR. SCHUSTER 16799 MR. PORGANS 16817 12 SOUTH SUTTER WATER DISTRICT & 13 CAMP FAR WEST IRRIGATION DISTRICT & DEPARTMENT OF WATER RESOURCES: 14 OPENING STATEMENTS: 15 MS. CROTHERS 16741 MR. O'BRIEN 16746 16 MR. GALLERY 16750 BRAD ARNOLD: 17 DIRECT EXAMINATION: BY MR. TULLY 16752 18 MARC VAN CAMP & THOMAS HICKMANN: 19 DIRECT EXAMINATION: BY MR. O'BRIEN 16754 20 JOHN PACHECO: DIRECT EXAMINATION: 21 BY MS. CROTHERS 16760 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 16721 1 INDEX (CONT.) 2 PAGE 3 PANEL: CROSS-EXAMINATION: 4 BY MR. BIRMINGHAM 16762 BY MR. JACKSON 15803 5 BY MR. NOMELLINI 16824 REDIRECT EXAMINATION: 6 BY MR. O'BRIEN 16861 BY MS. CROTHERS 16869 7 RECROSS-EXAMINATION: BY MR. BIRMINGHAM 16873 8 BY MR. JACKSON 16885 BY MR. NOMELLINI 16892 9 10 11 12 ---oOo--- 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 1 SACRAMENTO, CALIFORNIA 2 APRIL 11, 2000 9:00 A.M. 3 ---oOo--- 4 C.O. BROWN: Good morning. 5 This is the time and place to commence the first 6 session of Phase VIII of the hearing on Bay-Delta Water 7 Rights. In this session of the hearing, the Board will hear 8 arguments and evidence regarding the Bear River Agreement 9 and regarding a petition for changes in water rights filed 10 in connection with the agreement. 11 The Bear River Agreement states to settle the 12 responsibilities of parties in the Bear River watershed with 13 respect to the potential actions in this proceeding. 14 This hearing is being held in accordance with the 15 supplement to the Revised Notice of Hearing dated February 16 29th, 2000. I am John Brown. Ms. Forster, Board Member, 17 will be joining us shortly. Art Bagget may or may not joins 18 us today, but probably will be here tomorrow. 19 The Board's Executive Director, Mr. Walt Pettit, is in 20 the audience. Assisting the Board at the staff table are 21 Barbara Leidigh, Senior Staff Counsel; Julie Chan, Senior 22 Engineering Geologist; Nick Wilcox, Chief of the Bay-Delta 23 Unit. Other staff also are present and may assist us from 24 time to time. 25 The purpose of this session of the hearing is to afford CAPITOL REPORTERS (916) 923-5447 16723 1 the parties an opportunity to present relevant evidence on 2 the Bear River Agreement and the accompanying petition for 3 changes filed by the South Sutter Water District. The 4 hearing issues for this session of the hearing are listed in 5 the supplement to Revised Notice of Public Hearing dated 6 February 29th, 2000. 7 The issues are as follows. 8 Number 1, should the State Water Resources Control 9 Board determine the terms of the agreement among the 10 Department of Water Resources, South Sutter Water District 11 and Camp Far West Irrigation District satisfy the 12 responsibilities of the South Sutter Water District and Camp 13 Far West Irrigation District and other Bear River watershed 14 water rights to meet objectives in the 1995 Bay-Delta Plan? 15 If so, should the Board add water rights terms and 16 conditions to the water rights of the parties to the 17 agreement or take other actions to implement the regulatory 18 provisions of this agreement? 19 Number 2, would the petition changes operate to the 20 injury of any legal user of the water involved? 21 Three, if the State Water Control Board approves the 22 changes, what terms and conditions will best develop and 23 serve and utilize in the public interest the water proposed 24 to be used as part of the change? 25 The order of proceeding in this hearing is, first, take CAPITOL REPORTERS (916) 923-5447 16724 1 any new appearances of parties, then receive nonevidentiary 2 oral policy statements from those who wish to present only a 3 policy statement. The Board will also accept written policy 4 statements. A policy statement is a nonevidentiary 5 statement provided by a nonparty. It is subject to the 6 limitations listed in the hearing notice. 7 Presenters of policy statements should fill out a speaker 8 card and give it to the staff at the front table. 9 After the policy statements, we will hear any opening 10 statements from parties who do not plan to present a case in 11 chief in this session of the hearing. Next we will hear the 12 case in chief of the parties presenting evidence in this 13 session. Each case in chief may be commenced with an 14 opening statement. After an opening statement, we will hear 15 testimony from the witnesses called by the party presenting 16 the case in chief, followed by cross-examination by other 17 parties, Board staff and Board Members. 18 This procedure will follow for each of the two parties 19 presenting a case in chief. 20 Redirect testimony and recross-examination limited to 21 the scope of the redirect testimony will be permitted. The 22 Department of Water Resources will be called to present the 23 first case in chief. 24 After both of the cases in chief are completed, the 25 parties may present rebuttal evidence addressing specific CAPITOL REPORTERS (916) 923-5447 16725 1 case-in-chief evidence presented by an opposing party. 2 I encourage everyone to be efficient in presenting 3 thier cases and their cross-examination. Except where we 4 approve a variation, we will follow the procedures set forth 5 in the Board's regulations and in the attachment to the 6 hearing notice titled Bay-Delta Water Rights Hearing 7 Information Concerning Appearances by Parties. 8 We will use a timer to keep track of time. As usual, 9 the timer will be stopped during objections, procedural 10 points and other interruptions. All requests of the hearing 11 officer on behalf of a party should be made at the lectern 12 and by the party's representative. 13 Also, parties are requested to switch off all your cell 14 phones while you are in the hearing room. 15 Regarding cross-examination, each party allowed up to 16 one hour to cross-examine a witness or panel of witnesses. 17 At the end of the hour, the cross-examiner will be given the 18 opportunity to make an offer of proof as to additional 19 matters which the cross-examiner wishes to cover and to make 20 an estimate of the time needed to complete the 21 cross-examination. 22 If additional cross-examination is allowed after an 23 offer of proof, the cross-examiner may be requested to 24 stipulate to the amount -- he may be requested or she may be 25 requested to stipulate to the amount of additional time CAPITOL REPORTERS (916) 923-5447 16726 1 needed to complete the cross-examination. 2 We have observed that the order in wish cross-examiners 3 are called makes a difference, I might add, thanks to Mr. 4 Jim Stubchaer. Many of the questions asked by late 5 examiners are based on previous cross-examination, not the 6 direct testimony. 7 In the interest of fairness, we will assign the order 8 of cross-examination in a random manner. In order to 9 prevent late requests to cross-examining parties who were 10 not sure if they wish to cross-examine, they should identify 11 themselves when the Hearing Officer asks, "Who wishes to 12 cross-examine a panel?" They can then be included in the 13 order of cross-examination. If they later determine it is 14 not necessary to cross-examine a panel, they can so state 15 when called. 16 Unless announced otherwise, we will schedule each day 17 of hearing to begin at 9:00 a.m. and conclude at 4:00 p.m., 18 with one hour for lunch and two 12-minute breaks during the 19 day. We will try to announce any changes in the schedule at 20 least a day in advance. 21 We will first call for testimony and related 22 cross-examination by the Department of Water Resources and 23 then South Sutter Water District. 24 Now I would like to invite any new appearances by 25 parties who have filed notices of intent to appear, but have CAPITOL REPORTERS (916) 923-5447 16727 1 not previously appeared in the Bay-Delta Water Rights 2 Hearing. Will those making appearances please state your 3 name, the parties who you represent and your address so that 4 the Court Reporter can enter this information into the 5 record. 6 A Court Reporter is present to present a transcript of 7 the proceedings. Parties wishing to have copies of the 8 transcripts may make their own arrangements. 9 Those representing parties, will you please stand and 10 we will go around the room. 11 MS. LEIDIGH: This is for witnesses, right? 12 C.O. BROWN: Yes. 13 MS. LEIDIGH: This is for the oath of affirmation. 14 C.O. BROWN: I will now administer the oath. 15 (Oath administered by C.O. Brown.) 16 C.O. BROWN: We will now go with policy statements. 17 For the record, Mary Jane Forster has joined us. 18 Mr. Schuster, you are up with a policy statement. 19 MR. SCHUSTER: Good morning, Mr. Brown. 20 You said there is opening statements, and policy 21 statements are supposed to be made by nonparties. I am 22 representing the State Water Contractors, which is a party 23 plus I prefer going after the Department. 24 Is that possible? 25 C.O. BROWN: We will hold yours. CAPITOL REPORTERS (916) 923-5447 16728 1 I have a policy statement from Mr. Tim O'Laughlin. 2 MR. O'LAUGHLIN: Morning, Mr. Brown. 3 C.O. BROWN: Morning. 4 MR. O'LAUGHLIN: How are you this morning? 5 On behalf of San Joaquin River Group Authority, Tim 6 O'Laughlin. 7 We would like to express as a policy statement only. 8 We will be presenting testimony during this hearing or 9 offering witnesses. We support the settlements that were 10 reached in this matter. We support settlements generally. 11 As a party that has been through the process in 12 negotiating agreements over a period of time and now have 13 those agreements in place and brought them to the State 14 Board, I commend the parties on reaching the agreement and 15 bringing them in front of the State Board. 16 This would be an appropriate environmental 17 documentation and legal documentation and would ask that the 18 Board adopt the agreement as proposed by the parties who 19 have negotiated it over the last several years. 20 Thank you. 21 C.O. BROWN: Thank you, Mr. O'Laughlin. 22 Have a policy statement or opening statement form Alan 23 Lilly. 24 MR. LILLY: Mr. Brown, mine logically follows Mr. 25 Hitchings. I put my card right after his. I would request CAPITOL REPORTERS (916) 923-5447 16729 1 if you switch those two cards. May go a little quicker for 2 you. 3 C.O. BROWN: We will do that. 4 Mr. Hitchings. 5 MR. HITCHINGS: Thank you. Good morning, Mr. Brown, 6 Ms. Forster. Andrew Hitchings for Glenn-Colusa Irrigation 7 District. 8 I have a written copy of my statement and it's noted as 9 a policy statement. It is probably an opening statement 10 since we don't intend to present any witness or evidence in 11 this session, and I will briefly paraphrase that. I can 12 hand out copies of this and, there are extra copies for 13 audience. I will also mail copies to the Bay-Delta service 14 list. Glenn-Colusa Irrigation District submits 15 this opening statement regarding the Bear River Agreement 16 and the related petition for change in this proceeding. As 17 Mr. O'Laughlin just stated, GCID also generally supports the 18 agreement and similar attempts to achieve a negotiated 19 resolution in these proceedings and the implementation of 20 the 1995 Bay-Delta Water Quality Control Plan. 21 The active and willing participation and cooperation of 22 DWR and the Bureau of Reclamation have been and they remain 23 critical to enable parties to settle the present dispute 24 without the need for a further adversarial hearing. 25 The Bear River Agreement illustrates the results of CAPITOL REPORTERS (916) 923-5447 16730 1 such activity and the willing participation and cooperation, 2 particularly of DWR. In particular, I draw your attention 3 to Article 3a of the agreement, which creates what has been 4 commonly referred to in this proceeding as the backstop 5 requirement. Under this backstop provision, DWR has agreed 6 to assume responsibility for the Bear River Basin share of 7 the water quality objectives established by the 1995 Plan 8 during the term of the agreement. 9 This requires that in certain years and under certain 10 conditions, DWR may have to release additional water or 11 reduced diversions by State Water Project facilities. This 12 backstop provision, which implicitly recognizes the junior 13 priorities of the export projects' water rights is a 14 critical component of the agreement. 15 As was the case with the San Joaquin River Agreement, 16 similar provisions will be necessary in other settlement 17 agreements currently under negotiation. Two of those that 18 were referenced in your notice were the Placer County Water 19 Agency and Oroville Wyandotte. 20 DWR and the Bureau have repeatedly stated that 21 implementation of these types of settlement agreements will 22 not adversely affect water right holders on other rivers or 23 tributaries that are not the subject of the agreements, and 24 specifically will not require such water right holders to 25 curtail their diversions to help satisfy any unmet share of CAPITOL REPORTERS (916) 923-5447 16731 1 the 1995 Plan's objectives. 2 Based upon these representations and the backstop 3 provisions set forth in Article 3a of the agreement, GCID 4 supports the Bear River Agreement provided, however, that 5 any State Water Board or water right decision approving or 6 adopting the Bear River Agreement and the related petition 7 for change should contain appropriate terms and conditions 8 which ensure that implementation of the agreement will not 9 result in an increased allocation of responsibility among 10 other water right holders in the Sacramento River Basin to 11 help implement the 1995 Plan's objectives. 12 GCID appreciates your consideration of the policy 13 statement. 14 C.O. BROWN: Thank you, Mr. Hitchings. 15 Mr. Lilly. 16 MR. LILLY: Good morning, Ms. Forster, Members of the 17 staff. My name is Alan Lilly from the firm of Bartkiewicz, 18 Kronick & Shanahan, and we represent several different water 19 districts in Phase VIII of the Bay-Delta proceedings. 20 For today's hearing we will just be making an opening 21 statement. We will not be cross-examining or direct 22 examining any of the witnesses, so you don't have to leave 23 me on the list of attorneys for that. That may make things 24 go a little faster, which I am sure you appreciate. 25 C.O. BROWN: Not at all. CAPITOL REPORTERS (916) 923-5447 16732 1 MR. LILLY: I am sure I will have a chance in other 2 hearings to make up for it. 3 We generally, like Mr. Hitchings and Glenn-Colusa 4 Irrigation District, my clients also support this settlement 5 agreement and settlement agreements in a general. It helps 6 narrow the remaining Bay-Delta process, and we agree the 7 Board should encourage these settlements. 8 The critical element, as Mr. Hitchings pointed out, is 9 the backstop, which DWR has agreed to. Basically, they will 10 operate their facilities so that there will be not any 11 impacts from the settlement on any parties who have not 12 signed the settlement agreement. That, of course, is 13 critical to our support so there will not be impacts on any 14 other parties. 15 We, therefore, ask that the State Board's final order 16 on this settlement agreement specifically include a 17 provision that recognizes and enforces that backstop 18 provision. 19 C.O. BROWN: Thank you, Mr. Lilly. 20 Is there anyone else wishing to make a policy statement 21 that hasn't done so, a nonparty? 22 We will go into the case in chief of the Department of 23 Water Resources. 24 Ms. Crothers. 25 Mr. Nomellini, you rise. CAPITOL REPORTERS (916) 923-5447 16733 1 MR. NOMELLINI: Mr. Chairman, Dante John Nomellini for 2 Central Delta Parties and also for the South Delta parties. 3 John Herrick is ill with the flu. I would like to make an 4 opening statement as a party not presenting a case in 5 chief. And is now the appropriate time? 6 C.O. BROWN: Yes. Now is the time and place to do 7 that. I didn't see a card on you up here. 8 MR. NOMELLINI: I understood the cards would be filled 9 out by those making policy statements, Mr. Chairman. 10 C.O. BROWN: Okay. 11 MR. NOMELLINI: I think Michael Jackson is in the same 12 position. 13 MR. JACKSON: I had the same understanding. I wish to 14 do the same as Mr. Nomellini. 15 C.O. BROWN: Mr. O'Brien. 16 MR. O'BRIEN: Mr. Brown, just in terms of order of 17 presentation, I think the normal practice would be to have 18 the presenting parties present their openings first and then 19 I would normally expect the parties that are at least 20 potentially in opposition to the settlement to go afterwards. 21 C.O. BROWN: Thank you, Mr. O'Brien. 22 Barbara. 23 MS. LEIDIGH: The normal procedure in Bay-Delta 24 hearings has been to have parties who are not going to 25 present a case in chief, if they have an opening statement, CAPITOL REPORTERS (916) 923-5447 16734 1 present their opening statement before we get started with 2 the cases in chief. 3 That does not mean that later on, after the parties 4 presenting cases in chief have presented their cases, that 5 the other parties, if they so choose, might present rebuttal 6 or might cross-examine witnesses during the course of the 7 cases in chief or something else like that. But we have 8 always had the opening statements first. 9 C.O. BROWN: Thank you, Ms. Leidigh, 10 MR. NOMELLINI: It doesn't matter to me. 11 C.O. BROWN: Go ahead, Mr. Nomellini, proceed. 12 MR. NOMELLINI: We strongly oppose the piecemeal 13 settlement of this water right proceeding as we have 14 indicated before. We think that the obligation of the Board 15 is to determine the project responsibility for mitigating 16 their own particular damages, which in some in the *Davis 17 Stalwart Act is referenced as preservation of fish and 18 wildlife. We think the Board has to determine the 19 responsibilities of the two projects for salinity control in 20 the Delta and their obligations for providing an adequate 21 water supply to the Delta under the Delta Protection Act, 22 all of which must proceed prior to determining whether or 23 not there is anything to be allocated for other water right 24 holders for meeting the Delta 1995 Water Quality Control 25 Plan. CAPITOL REPORTERS (916) 923-5447 16735 1 We think these proceedings are simply being carried out 2 pursuant to the Delta Accord or the Principals Agreement, 3 and you have heard our objections to the way in which that 4 agreement was negotiated and the involvement of the Board. 5 It is quite obvious to us that those in the watersheds 6 of origin, including the parties to this particular 7 agreement, have, because of the leverage developed through 8 what we consider to be an improper procedure, have agreed to 9 yield water at less than market value, in fact $25 an acre 10 foot. The State Water Project, for example, when it came on 11 line, they entered into contracts well in excess of what the 12 project had developed. In fact, they entered into the 13 contract before they developed any water. They developed 14 the Oroville Dam, which I think has a firm yield at the end 15 of the seventh year of the 28th and 34 dry cycle somewhere 16 in the neighborhood of 220,000 acre-feet. You can put that 17 in the perspective four and a quarter million acre-feet. 18 They were going to go up and develop the North Coast River. 19 They were going to take a segment out of yield of all those 20 river systems and bring it in to assure that exporters would 21 have water available to them which would be surplus to the 22 needs of the Delta and the areas of origin. 23 For environmental reasons and other political 24 considerations, that hasn't been done. 25 What should be done in this situation is the export CAPITOL REPORTERS (916) 923-5447 16736 1 should yield. We are headed in the exact opposite direction 2 of where we think we must go. Instead of going up here, 3 buying water out of the watersheds of origin, the projects 4 ought to be seriously considering and using that money to 5 reduce whatever they think their obligation is to 6 exporters. Otherwise what is happening is we are grinding 7 up fish in the export pumps, and we are trying to mitigate 8 for that grind up by releasing more and more water out of 9 the watersheds. We are working against ourselves. 10 We think that is not only an impractical approach, but 11 an illegal approach. We strongly support the prior rights 12 of the area of origin, including these contracting parties. 13 But we must oppose on the basis of the principles that we 14 think are critical to a fair determination in this 15 proceeding these types of settlement agreements. 16 Thank you. 17 C.O. BROWN: Thank you, Mr. Nomellini. 18 Mr. Jackson. 19 MR. JACKSON: Michael Jackson representing the Regional 20 Council of Rural Counties. Mr. Chairman, Ms. Forster. 21 This settlement is the first of the activities on the 22 Sacramento side of the Delta, and RCRC's main membership is 23 on the Sacramento side of the Delta. So, basically, we are 24 here not as water rights holder. We are here a lot like 25 Westlands, as a sort of party interested in the public CAPITOL REPORTERS (916) 923-5447 16737 1 interest, the public trust and how someone else's water 2 rights can affect your future. 3 So, we have land-use authority in this area. And the 4 State Legislature and the urban folks continually point out 5 that sprawl is dangerous to the habitat, that is sprawl is 6 dangerous in terms of transportation and air quality, 7 certainly dangerous in terms of impacts on declining 8 habitats in California within our counties. 9 This land use authority extends, according to the case 10 of Tehama versus Baldwin, to groundwater. And as you know, 11 groundwater is paramount in California, and its rights are 12 superior to rights of surface flows. I would cite the 13 Mojave Water Agency case for that proposition. 14 The area of origin is beginning to grow. Modern 15 changes in telecommunication have enabled people to bring 16 capital into our counties for the first time in 50 years. 17 Water is our future. And this decision will determine where 18 growth in California will go. We will be here at every 19 opportunity, even in a situation like this where we support 20 the settlement agreement reached by these parties, but where 21 we will agressively engage the Department of Water Resources 22 of the State of California on both what they intend to do 23 and the policy positions that they are taking that relate to 24 our future. 25 So, basically, we support what Mr. Nomellini just said CAPITOL REPORTERS (916) 923-5447 16738 1 and will be taking part in cross-examination throughout any 2 Phase VIII hearing in that regard. We believe that in the 3 Sacramento Valley the projects control our destiny in much 4 the same way that they control the Destiny of the folks in 5 the export area. 6 We are looking for creative solutions. This Board did 7 a couple in the San Joaquin side. We are looking for 8 equity. On the San Joaquin side you were very protective of 9 groundwater exchange. We do not believe, as the authorities 10 over groundwater in California under the Constitution, that 11 it is appropriate to substitute groundwater for surface 12 flow. And so we will be examining any substitution to 13 determine third-party impacts to determine how it will 14 affect our future economy and to determine how it affects 15 the environment in our area. 16 We do not intend to allow the unfortunate needs of the 17 United States Fish and Wildlife Service for any kind of cold 18 water that will enable them to grow fish on an artificial 19 habitat in the Central Delta to cause you to just release 20 water that rapidly loses temperature gain and becomes just 21 more hot water into the Delta for no apparent reason. So 22 we will be examining why you believe that any additional 23 water is required for environmental purposes into the Delta 24 for Delta purposes. 25 All the way through this, we have separated out the CAPITOL REPORTERS (916) 923-5447 16739 1 tributary areas from the Delta and we will be rigorous about 2 that. I don't think this is about Keswick releases. I 3 don't think this is about the upper part of Mill and Deer 4 Creek. I think this is about what is necessary in the 5 Delta. The problems in the Delta on the Sacramento side is 6 the operation of the cross channel gate. It is inherently a 7 conflict by legitimate water quality needs and legitimate 8 endangered species needs. And so I will be examining, I 9 hope at some point in Phase VIII, the Bureau. 10 Again, if these parties or any parties who own water in 11 the Sacramento want to do a deal for additional flow, that 12 is their business, and I think it ought to be supported. 13 But if anything about their deal violates the area of origin 14 and favors exporters over the basin, I ask them to rethink 15 what they are doing. Because in the long run, the basin has 16 a priority. That is the only reason these projects were 17 built. Mr. Nomellini is exactly right; they are underbuilt 18 and oversubscribed in the export areas. 19 But there are magnificent things that are taking place 20 in the export areas in terms of getting by with less. So, I 21 thank you for the opportunity to vent and look forward to 22 the approval of any settlement agreement that doesn't get in 23 the way of the future of the Sacramento side of the Delta. 24 Thank you. 25 C.O. BROWN: Thank you, Mr. Jackson, for your remarks. CAPITOL REPORTERS (916) 923-5447 16740 1 Are there any other opening statements from parties who 2 do not plan to present a case in chief in this session? 3 We will proceed to the case in chief with the 4 Department of Water Resources being first. 5 Ms. Crothers. 6 MS. CROTHERS: Thank you, Mr. Brown. Good morning, Ms. 7 Forster. My name is Cathy Crothers. I am staff counsel for 8 the Department of Water Resources. 9 Before I begin my opening statement, I have a 10 procedural request that the presentation today by DWR and 11 South Sutter Water District and Camp Far West Irrigation 12 District be put on as a panel presentation. And, therefore, 13 I would suggest that Mr. O'Brien and Mr. Gallery's opening 14 statements come after mine and that we put our witnesses on 15 together as a panel. I think that would provide a better 16 clarity or continuity to the presentation since we are 17 presenting an agreement together, if that is acceptable to 18 the Board. 19 C.O. BROWN: That is fine. 20 MS. CROTHERS: This morning, South Sutter, Camp Far 21 West Irrigation District and DWR will present their 22 agreement that we have negotiated for purposes of settling 23 the obligations for implementing the Bay-Delta water quality 24 objectives that was set by the Board in the 1995 Water 25 Quality Control Plan. CAPITOL REPORTERS (916) 923-5447 16741 1 C.O. BROWN: Can all of you hear Ms. Crothers in the 2 back? 3 Can you hear me okay in the back? 4 MS. CROTHERS: I guess everybody was doing well 5 without this. DWR has participated in other agreements, 6 settlement agreements, during this water rights hearing, 7 namely the San Joaquin River Agreement, the Mokelumne River 8 Agreement and certain stipulations concerning the Cache 9 Creek, Putah Creek and the North Delta Water Agency 10 agreement. These agreements and stipulations presented 11 during Phases II and IV have all been dealt with in Decision 12 1641 by the Board. 13 And as in those above agreements, the parties to the 14 Bear River Agreement would request that the Board also issue 15 an order that finds the terms of the agreement acceptable 16 for purposes of meeting any obligations of the Bear River 17 water right users to implement the Bay-Delta objectives. As 18 part of this order, the parties request that the Board would 19 find that DWR will assume the responsibility for any Bear 20 River obligations to contribute to the objectives and that 21 the Bear River water right holders would have no additional 22 obligations to contribute to the objectives during the 23 effective period of our agreement. 24 And in addition, the parties request that the Board 25 accept the petition filed by South Sutter Water District for CAPITOL REPORTERS (916) 923-5447 16742 1 a change in the South Sutter Water District's water rights 2 permits to add points of rediversion, place of use and 3 purpose of use to enable the State Water Project to transfer 4 any available water, at least under the agreement, which is 5 not used for water quality standards. 6 Part of the motivation to enter into these settlements 7 is to implement the Water Quality Control Plan in a 8 negotiated, less contentious manner, to minimize cost of 9 participation the parties in these hearings and to reduce 10 potential litigation later. 11 Furthermore, the settlements, like the Bear River 12 Agreement and Mokelumne River Agreement and the San Joaquin 13 River Agreement, they all benefit the State Water Project 14 because they obligate additional water users to provide -- 15 to help implement the Bay-Delta objectives than what is 16 occurring presently under the current conditions. 17 So today, the South Sutter Water District will briefly 18 describe the agreement and the district's water delivery 19 system and their operations. And then John Pacheco, our 20 Bay-Delta hearing program manager, will present the 21 Department's role in the agreement. As mentioned before, 22 this role is often described as backstopping the obligations 23 of the parties to the settlements. 24 DWR has agreed to backstop the water obligations of 25 other water agencies in other agreements, such as the San CAPITOL REPORTERS (916) 923-5447 16743 1 Joaquin River Agreement and the Mokelumne River Agreement. 2 The purpose of the backstop is to encourage settlements and 3 to avoid transferring any responsibility of the Bear River 4 water right users to other diverters, to other water users 5 in this Bay-Delta proceeding. So DWR has agreed in the Bear 6 River Agreement to pay for a certain amount of water from 7 South Sutter for use in meeting the Bay-Delta water 8 obligations. 9 If the Board, during Phase VIII, determines that more 10 than the amount is needed for the Delta from the Bear River, 11 DWR will meet the additional flow requirements by either 12 increased reservoir releases or increased exports. So, in 13 essence, through the agreement, DWR steps in the shoes of 14 the Bear River water right holders and for purposes of 15 meeting the Bay-Delta obligations so that there should not 16 be any injuries to any water users through this agreement. 17 DWR and the Bureau of Reclamation have entered into an 18 agreement in principle as to the sharing of the 19 responsibilities with respect to the Bear River Agreement. 20 Reclamation has agreed how the settlement will be treated 21 under the Coordinated Operating Agreement for the Delta in 22 basin obligations. Under the COA, Reclamation and DWR will 23 allocate in-Delta obligations at 75 percent to the Bureau 24 and 25 percent to the Department when the Delta is in 25 balanced conditions. CAPITOL REPORTERS (916) 923-5447 16744 1 In this case, with the settlement in place, the State 2 Water Project will meet that 75 percent Bureau obligation. 3 The accounting under COA will be adjusted to reflect any DWR 4 obligation or credit. So by agreeing that DWR will meet the 5 obligations that may be imposed on settling parties by the 6 Board in Phase VIII, Reclamation and its water contractors 7 will not be injured by the agreement. 8 At this time, the actual amounts of water required by 9 the Bear River system for helping implement the Bay-Delta 10 Plan is unknown. The amounts will depend on the alternative 11 or combination of alternatives that the Board may select to 12 implement the plan. In addition, the amount will vary 13 depending on hydrology of each year. The South Sutter Water 14 District prepared an initial study and negative declaration 15 for the settlement agreement. 16 The environmental analysis assumed potential scenarios 17 in which the South Sutter Water District would release water 18 from its Camp Far West Reservoir in July through September 19 during dry and critical years. And the State Water Project 20 would export the purchased water. The State Water Project 21 was assumed to export all the water for purposes of 22 analyzing the worst-case impact to the Delta. The analysis 23 considers impacts to water supply, groundwater water users, 24 fish and wildlife, recreation and other environmental 25 parameters. CAPITOL REPORTERS (916) 923-5447 16745 1 By limiting water releases and exports to July through 2 September, no significant adverse impacts to the environment 3 would occur. 4 In the following testimony we will show that the 5 agreement is a reasonable settlement that could be 6 implemented without significant impacts, and that the Board 7 should adopt an order recognizing it as a means of 8 contributing to implementing the Bay-Delta objectives. 9 If are there no questions, we will proceed. That is 10 all I have. 11 C.O. BROWN: Thank you Ms. Crothers. 12 Mr. O'Brien. 13 MR. O'BRIEN: Morning, Mr. Brown, Ms. Forster. Kevin 14 O'Brien appearing on behalf of South Sutter Water District. 15 Also appearing with me is Gwyn-Mohr Tully of my firm. He 16 will be asking a few questions of the witnesses later. 17 I would like to begin by introducing four of the 18 members of the South Sutter Water District's Board of 19 Directors who are appearing today: Mr. VanDyke, Mr. Jopson, 20 Mr. Vertrees and Mr. Nelson in the back. They all came down 21 today, and this was properly noticed in accordance with the 22 Brown Act as a special meeting. 23 I would like to first thank the Board for holding this 24 separate hearing on this issue. I know that the Board has a 25 lot of work ahead of it in the Bay-Delta hearing process, CAPITOL REPORTERS (916) 923-5447 16746 1 and I know that it takes a certain amount of resources to 2 hold a separate hearing. But I think by doing so you send a 3 signal to the water user community that the Board supports 4 the concept of settlements of this type. By holding this 5 separate hearing and by giving us an opportunity to come 6 before the Board prior to the start of Phase VIII, you have, 7 in fact, encouraged us and probably other parties to 8 consider settlements of this type. 9 I think this is the first Sacramento Valley water 10 rights settlement that has come before the Board in the 11 context of the Bay-Delta process. What you do in this 12 proceeding will be watched by other water users in the 13 Sacramento Valley and potentially may suggest and encourage 14 other water users to develop settlements of their own. 15 I think, in particular, it is important that the Board 16 honor the contractual terms that were negotiated by the 17 parties in this case over the course of more than two years, 18 actually. And I just wanted to underscore the comments made 19 by Mr. Hitchings and Mr. Lilly that in particular the 20 backstop provisions are a critical component of this 21 settlement. And in our view, any order from the Board 22 approving this settlement should and must include the 23 various terms and conditions that were negotiated by the 24 parties in this case. 25 In terms of the hearing today, we are planning a fairly CAPITOL REPORTERS (916) 923-5447 16747 1 brief presentation. Mr. Brad Arnold is the manager of 2 South Sutter Water District. He will give you a brief 3 overview of the district, give you the lay of the land, if 4 you will. And then Mr. Van Camp and Mr. Hickmann will 5 present some more technical testimony regarding esssentially 6 how they got to the numbers that are contained in the 7 settlement agreement. 8 I want to underscore, though, this is a settlement. 9 There is not necessarily a scientific document, a model run, 10 a spreadsheet, that is going to give you the numbers that 11 ended up in the settlement. These are negotiated numbers 12 that occurred over the course, as I said, quite a long 13 period of time. Mr. Van Camp will explain the process that 14 was used to get to these numbers. It is our hope that the 15 Board respect the ability of the parties to this negotiation 16 to decide what the appropriate numbers should be and to 17 support that settlement. 18 I had one procedural item I just had to clarify on the 19 record. There was a staff analysis prepared after the 20 submission of written testimony in this case. I believe it 21 was under a cover memo from Mr. Wilcox, dated March 29th, 22 2000. My understanding from speaking to Ms. Leidigh before 23 the start of the hearing is that that document is not in the 24 hearing record, and I just wanted to confirm that for the 25 record. CAPITOL REPORTERS (916) 923-5447 16748 1 C.O. BROWN: I think the document has been mailed to 2 all parties. Has it, Barbara? 3 MS. LEIDIGH: That is correct. It was mailed to all 4 the parties. But it is not offered by staff as an exhibit. 5 C.O. BROWN: Your mike is not working well. 6 MS. LEIDIGH: It seems to be working occasionally. 7 C.O. BROWN: My apologiese to all of you folks for the 8 microphone system here. We seem to be having some problems 9 with it recently. We'll do the best we can. 10 MS. LEIDIGH: I will try to -- the letter with the 11 analysis is not an exhibit and has not been offered into 12 evidence or submitted as evidence for this hearing. It is 13 simply a letter with an analysis attached that was mailed to 14 the parties after the exhibits were submitted. 15 C.O. BROWN: That is my understanding, also. 16 MR. O'BRIEN: Does that mean it is not part of the 17 hearing report for this proceeding? 18 MS. LEIDIGH: I think it will probably be in the 19 correspondence file someplace. But it won't be an exhibit 20 in the hearing. It won't be treated as one. 21 MR. O'BRIEN: Can it be used as evidence in support of 22 a Board decision on this matter? 23 MS. LEIDIGH: No. 24 C.O. BROWN: Mr. Birmingham 25 MR. BIRMINGHAM: Mr. Brown, I had planned on marking CAPITOL REPORTERS (916) 923-5447 16749 1 the letter to which Mr. O'Brien is referring as a Westlands 2 exhibit during my cross-examination of Mr. Pacheco. We 3 will, at conclusion of that, offer it in evidence. 4 C.O. BROWN: Perhaps that answers your question, Mr. 5 O'Brien. 6 MR. O'BRIEN: I would simply reserve my right to object 7 to that. 8 C.O. BROWN: All right. 9 Dan. 10 MR. GALLERY: Thank you, Mr. Brown, Ms. Forster. 11 Daniel Gallery representing Camp Far West Irrigation 12 District. 13 My district is a party to the agreement. We are the 14 small district. South Sutter Water District is the big 15 district. We both get our supply from the Camp Far West 16 Reservoir. It is so named because we originally built a 17 small reservoir there back in the 1920s. But South Sutter 18 owns and operates the Camp Far West Reservoir today. 19 We are not going to present any evidence. We will be 20 relying on the evidence and testimony of South Sutter Water 21 District and the Department of Water Resources. I have Mr. 22 Bill Waggershouser with me from the district today if there 23 is any need for information from us. We may possibly have a 24 question or two on cross-examination. 25 C.O. BROWN: All right. CAPITOL REPORTERS (916) 923-5447 16750 1 Thank you, Mr. Gallery. 2 MR. GALLERY: Thank you. 3 C.O. BROWN: Ms. Crothers, I think you are up with your 4 direct. 5 Staff, while they are assembling the panel, do we have 6 cards from everyone who wants to cross-examine? 7 MS. LEIDIGH: We haven't been asking for cards. 8 C.O. BROWN: Why don't we get cards from all the 9 cross-examiners so I can shuffle those according to random 10 -- we will have a fair selection. Pass those out and get 11 names on those cards and then bring them up to me if you 12 would, please. 13 MS. LEIDIGH: Some of the parties may not know till 14 they're finished. 15 C.O. BROWN: Fill them out anyway if you think you 16 might wish to cross-examine. Fill out one of the cards and 17 give it to staff. 18 Off the record. 19 (Break taken.) 20 C.O. BROWN: We are back on the record. 21 Mr. O'Brien. 22 MR. O'BRIEN: Just so you will know how we are going to 23 proceed. If acceptable to the Hearing Officer, we are going 24 to have the South Sutter witnesses go first and then 25 department witness. We have also available for CAPITOL REPORTERS (916) 923-5447 16751 1 cross-examination purposes Mr. Warren Shaul, Mr. Dave Vogel 2 and Ms. Heidi Rooks. Their resumes were submitted. We 3 don't know if they need to testify. They were primarily 4 involved in the environmental documentation, so they are 5 available for questioning. And Mr. Tully will begin with 6 the examination of Mr. Arnold. 7 ---oOo--- 8 DIRECT EXAMINATION OF SOUTH SUTTER WATER DISTRICT & 9 CAMP FAR WEST IRRIGATION DISTRICT & 10 DEPARTMENT OF WATER RESOURCES 11 BY MR. TULLY 12 MR. TULLY: Good morning, Mr. Brown and Ms. Forester. 13 My name is Gwyn-Mohr Tully on behalf of South Sutter Water 14 District. I am going to do the direct examination of Brad 15 Arnold. 16 C.O. BROWN: Morning, Mr. Tully. 17 MR. TULLY: Mr. Arnold, would you please state your 18 full name for the record. 19 MR. ARNOLD: Bradley John Arnold. 20 MR. TULLY: Is South Sutter Water District Exhibit 1 a 21 true and correct copy of your testimony? 22 MR. ARNOLD: Yes. 23 MR. TULLY: Could you please summarize that testimony. 24 MR. ARNOLD: I am the General Manager for South Sutter 25 Water District. I have held this position for approximately CAPITOL REPORTERS (916) 923-5447 16752 1 five years. South Sutter Water District is a public 2 entity. It was formed under the California Water District 3 Law. The district is composed of 57,300 acres approximately 4 of which 42,000 acres is able to be irrigated with the 5 surface water. The predominant crop in the district is 6 rice, and the district owns and operates Camp Far West Dam 7 and Reservoir. 8 The project, it fills up quite rapidly. It is 9 influenced primarily by rainfall and not snowfall or 10 snowpack runoff. In most years the reservoirs is full by 11 late February and the district takes advantage of that. 12 Since completion of the project it has essentially 13 operated as a conjunctive use project. In years that there 14 is not a lot of rainfall, the groundwater pumping increases; 15 and in years that there is quite a bite of precipitation, 16 the groundwater pumping is decreased. The district itself 17 owns no wells. The wells that are within the district are 18 privately owned by the landowners and they operate those. 19 The district does have an AB 3030 groundwater 20 management plan that it is using at the present time. The 21 facility itself provides water to South Sutter Water 22 District and Camp Far West Irrigation District. Camp Far 23 West Irrigation District has the senior water right on the 24 Bear River, and that is recognized by the fact that they 25 are entitled to the first 13,000 acre-feet of water within CAPITOL REPORTERS (916) 923-5447 16753 1 the reservoir. 2 Agreement was signed with them between South Sutter 3 Water District and them in 1957. Camp Far West Irrigation 4 District is made up of approximately 47,000 acres of which 5 37,000 acres is available to water. 6 That is pretty much all that I have. 7 MR. TULLY: Thank you. We are finished 8 C.O. BROWN: Thank you, Mr. Tully. 9 MR. O'BRIEN: Mr. Arnold, I think you may have misspoke 10 with respect to Camp Far West Irrigation District. You said 11 37,000 and 47,000. I think the numbers are smaller. 12 MR. ARNOLD: Yes, it is 4,700. I apologize, 4,700 and 13 3,700. 14 MR. O'BRIEN: Thank you. 15 Mr. Van Camp, South Sutter Water District Exhibit 6, is 16 that a true and correct copy of your written testimony, 17 joint testimony, prepared and submitted on behalf of you and 18 Mr. Hickmann? 19 MR. VAN CAMP: Yes, it is. 20 MR. O'BRIEN: Is South Sutter Exhibit 11 a correct copy 21 of your resume? 22 MR. VAN CAMP: Yes, it is. 23 MR. O'BRIEN: Mr. Hickmann, is Exhibit 12 a correct 24 copy of your resume? 25 MR. HICKMANN: Yes, it is. CAPITOL REPORTERS (916) 923-5447 16754 1 MR. O'BRIEN: Could you -- I guess you are going to 2 divide this up in sections, so, Mr. Van Camp, I think you 3 are going to start. Could you please summarize your 4 testimony. 5 MR. VAN CAMP: Yes, I can, Kevin. Can I make one 6 clarification to the testimony right up front? I realize 7 the testimony isn't page numbered, but on Page 3 under Item 8 Number 7, the third line down that starts with "then a 9 portion to individual water users." In order to be clear 10 with that statement the word "individual" should be deleted 11 from that line. So that it will read, that sentence will 12 read, "This 300,000 acre goal was then apportioned to water 13 users within the Bear River watershed," and go on. And I 14 will explain the need for that clarification as I go through 15 my summary. 16 Our plan today was to for me to give a little bit of an 17 overview of the settlement and then have Tom go into some 18 more of the details of the settlement and how it will be 19 implemented, and then for me to come back and just give a 20 very brief conclusion that hits the points identified in the 21 notice of the hearing. 22 First of all, the settlement, the main purpose of the 23 settlement is to avoid proceeding into a contentious water 24 right hearing in Phase VIII from the district's 25 prospective. We believe it is a settlement that falls CAPITOL REPORTERS (916) 923-5447 16755 1 somewhere between Alternative 2 and 3 proposed by the State 2 Board. The discussion relative to the settlement began in 3 1997. Those involved were the State Water Contractors, DWR, 4 the Bureau of Reclamation, South Sutter Water District, Camp 5 Far West Irrigation District. The Bureau was not as heavily 6 involved as the Department. The agreement ended up 7 beginning between the Department, South Sutter and Camp Far 8 West Irrigation District. 9 As I identified in my testimony, the value that we 10 started with for settlement in the Sac Basin was a target 11 value of 300,000 acre-feet. That is a goal that was set, my 12 understanding, by the State Water Contractors and the 13 Department of Water Resources for obtaining settlements 14 within the Sac Valley through Phase VIII of the Bay-Delta 15 hearings. 16 That would represent the settlement quantity for all 17 water right holders within the basin. We, through our 18 discussions, settlement discussions, apportioned the 300,000 19 based on unimpaired inflow throughout the basin. Using the 20 unimpaired inflow or flow, and in this case for the Bear 21 River system, it was for a site near Wheatland, and that 22 represents 1.5 percent of the entire unimpaired inflow and, 23 therefore, results in 4,400 acre-feet of the 300,000 24 acre-feet of the target value. 25 That gives you a brief overview of how we arrived at CAPITOL REPORTERS (916) 923-5447 16756 1 the numbers. I would like to ask Tom to go into a brief 2 discussion of water rights and some other settlement 3 details. 4 MR. HICKMANN: I am going to briefly explain some of 5 the water rights held by South Sutter Water District. They 6 hold two water rights on the Bear River, which supply the 7 majority of the district's surface water supply. They do 8 hold numerous other water rights in small streams that are 9 tributary to the Feather River which flow through the 10 district. These don't supply much water supply, natural 11 flow available, during the summer months, especially in dry 12 and critical years. 13 South Sutter Water District has the most downstream 14 control on the Bear River with the Camp Far West Diversion 15 Dam, which is located approximately one mile below the Camp 16 Far West Dam. How Camp Far West was developed or why, 17 during the mid 1950s, water users started experiencing 18 declining groundwater levels. When they realized this, this 19 led to the development of Camp Far West. This was done 20 through a negotiation with Camp Far West Irrigation District 21 which owned and operated the original Camp Far West 22 Reservoir, at that time with the 5,000 acre-foot capacity. 23 After the development of Camp Far West Reservoir there 24 was improvement in the groundwater levels; rather, it was 25 rather rapid. CAPITOL REPORTERS (916) 923-5447 16757 1 This reservoir now allows the district and the water 2 users within the district to operate in a conjunctive use 3 project. As Mr. Arnold explained previously, that water 4 users within the district offset surface deliveries with 5 groundwater pumping. 6 There are other water users, water right holders, on 7 the Bear River system upstream of Camp Far West. Some of 8 the settlement details is -- basically, this is going to -- 9 the settlement will allow South Sutter Water District to 10 release 4,400 acre-feet above their bypass requirements in 11 dry and critical years. In order to avoid any potential 12 fish attraction flows up the Bear River, the water will be 13 released over a 60-day period which results in a flow of 37 14 cfs. This 4,400 acre-feet will be offset by groundwater 15 pumping by water users within the district. 16 The settlement contains another year-type which was 17 called an extreme critical year. The purpose of this was 18 simply to allow the district to be relieved of obligations 19 of the settlement in years where the hydrology just didn't 20 allow them to make any deliveries to water users within 21 their district. This did occur in 1977. 22 Briefly, how this water is going to be measured and 23 accounted for under this settlement. I believe it is 24 Exhibit 9. As I said before, South Sutter Water District 25 operates the Camp Far West Dam by releasing water through a CAPITOL REPORTERS (916) 923-5447 16758 1 powerhouse on the dam. These are measured releases. The 2 water flows approximately one mile downstream to the Camp 3 Far West Diversion Dam where there are measured releases to 4 Camp Far West Irrigation District on the north side and to 5 South Sutter Water District's main Canal system on the south 6 side of that diversion dam. These are identified on Exhibit 7 9. The water flows down South Sutter Water District's main 8 canal where there is a turnout for Camp Far West Irrigation 9 District's south side canal. 10 The way this water is going to be accounted for is the 11 difference between the releases from the Camp Far West Dam 12 and the deliveries at the diversion dam above the required 13 fish flow will be the settlement water. 14 And with that, I am going to turn it back over to 15 Marc. 16 MR. VAN CAMP: So, to briefly conclude, it's our 17 opinion the volume of water proposed in this settlement is 18 fair as it represents a volume of water somewhere between 19 State Board proposed flow Alternative 2 and proposed flow 20 Alternative 3, and is negotiated between the parties of 21 concern. 22 With the DWR assurance or the backstop for the 23 quantities pending the outcome of the Phase VIII hearing, 24 this provides the assurance that other water right holders 25 will not be impacted by this settlement. CAPITOL REPORTERS (916) 923-5447 16759 1 And that concludes our direct testimony. 2 MS. CROTHERS: So I would like to hear DWR's expert 3 witness, Mr. John Pacheco. 4 John, please state your full name for the record. 5 MR. PACHECO: John Pacheco. 6 MS. CROTHERS: And is DWR Exhibit 42 a true and correct 7 copy of your statement of calcifications? 8 MR. PACHECO: Yes, it is. 9 MS. CROTHERS: Is DWR -- Exhibit DWR 41 a true and 10 correct copy of your testimony? 11 MR. PACHECO: Yes, it is. 12 MS. CROTHERS: Would you please summarize that for the 13 Board. 14 MR. PACHECO: Yes. 15 Mr. Brown, Ms. Forster, good morning. 16 The Department and the parties, South Sutter Water 17 District and Camp Far West Irrigation District, in February 18 of this year signed a settlement agreement which generally 19 provides that the Department will meet all obligations for 20 the '95 Water Quality Control Plan. And in return, South 21 Sutter Water District is providing up to 4,400 acre-feet in 22 all dry and critical years to the Department at a 23 predetermined price. 24 As mentioned by others earlier, the release of the 25 4,400 acre-feet at Bear River is to be used for either CAPITOL REPORTERS (916) 923-5447 16760 1 export or meeting obligations in the Delta. However, prior 2 to and as part of the agreement it is a condition that the 3 State Board approve South Sutter Water District's petition 4 for the change in place of use which will allow export and 5 change of place of use of the water. 6 Additionally, the initial study prepared by South 7 Sutter Water District did conclude that the additional water 8 in the Delta and export of any or all of that water would 9 not have a significant impact environmentally in the Delta. 10 And, finally, the staff from both the Department and Bureau 11 of Reclamation, their Central Valley operations office, did 12 meet and confer several times to discuss accounting of this 13 water and, as presented in our Exhibit 44, we have signed up 14 a letter agreement laying out the principles of coming to 15 terms and conditions on how this water in any subsequent 16 settlement agreements, how that water would be accounted for 17 under the COA, 1986 Coordinated Operation Agreement, between 18 the Department and the Bureau. It will provide for terms 19 and conditions to ensure that the Bureau and Bureau 20 contractors will not be adversely impacted by this 21 agreement. 22 And that concludes my testimony. 23 MR. O'BRIEN: That is the conclusion of our direct 24 case. 25 C.O. BROWN: We will go to cross-examination. The CAPITOL REPORTERS (916) 923-5447 16761 1 cards are random. 2 Mr. Johnston, Bill Johnston, you are first up. 3 MR. JOHNSTON: No cross. 4 C.O. BROWN: Mr. Birmingham. 5 ---oOo--- 6 CROSS-EXAMINATION OF SOUTH SUTTER WATER DISTRICT & 7 CAMP FAR WEST IRRIGATION DISTRICT & 8 DEPARTMENT OF WATER RESOURCES 9 BY MR. BIRMINGHAM 10 MR. BIRMINGHAM: Good morning. 11 My name is Tom Birmingham. I am an attorney that 12 represents Westlands Water District. I have some questions 13 for this panel. First, I have some questions for Mr. 14 Arnold. And if during the course of my questions of you Mr. 15 Arnold, you want to defer to another witness or if any 16 member of the panel feels that a complete answer -- they 17 would like to contribute to a complete answer, I would 18 certainly encourage you to respond to any question. 19 Looking at South Sutter Water District Exhibit Number 20 9, that is a map depicting the reservoir and Camp Far West 21 Diversion Dam and the Camp Far West Irrigation District 22 North Canal; is that correct? 23 MR. HICKMANN: Yes, sir. 24 MR. BIRMINGHAM: I believe that it was indicated 25 earlier that the Camp Far West Diversion Dam is CAPITOL REPORTERS (916) 923-5447 16762 1 approximately one mile below the Camp Far West Reservoir; is 2 that correct? 3 MR. ARNOLD: Yes. 4 MR. BIRMINGHAM: Now, are there anadromous fish in the 5 Bear River? 6 MR. ARNOLD: At certain times there can be, yes. 7 MR. BIRMINGHAM: What species of anadromous fish are 8 sometimes in the Bear River? 9 MR. ARNOLD: As far as species go, I believe it is 10 salmon. 11 MR. BIRMINGHAM: Are there steelhead that are sometimes 12 in the Bear River? 13 MR. ARNOLD: I have never witnessed that, no. But 14 there is a possibility. 15 MR. BIRMINGHAM: Has any member of the -- does any 16 member of the panel know if there are steelhead that are 17 sometimes present in the Bear River? 18 MR. VOGEL: My name is Dave Vogel. 19 I am not aware of any evidence of steelhead in the Bear 20 River. 21 MR. BIRMINGHAM: Could you describe in a little greater 22 detail how the Camp Far West Diversion Dam is operated? 23 MR. ARNOLD: Okay. What occurs is when we make a 24 release out of either the powerhouse, which is located on 25 Camp Far West Dam or out of our outlet works, the water goes CAPITOL REPORTERS (916) 923-5447 16763 1 downstream and gets to the diversion dam where the Camp Far 2 West Irrigation District on the one side can divert water or 3 South Sutter Water District on the south side of the river 4 can take water. During irrigation season, we are both 5 operating at the same time and we just tally up our orders 6 for the date prior to the day that deliveries is going to be 7 made and release that amount of water out of the, like I 8 said, out of the powerhouse or our outlet works. 9 MR. BIRMINGHAM: Is the diversion facility at Camp Far 10 West Diversion Dam screened? 11 MR. ARNOLD: No. Well, it has a trash rack on it. 12 MR. VAN CAMP: Maybe I can just add a point of 13 clarification. The dam is there to check the water up in 14 the canal is from behind the dam. 15 MR. BIRMINGHAM: Thank you, Mr. Van Camp 16 MR. VAN CAMP: The diversion dam. 17 MR. BIRMINGHAM: Is the diversion dam, Camp Far West 18 Diversion Dam, an impediment to fish passage? 19 Mr. Vogel, do you know? 20 MR. VOGEL: Yes, it is. It is the upstream terminus 21 for any anadromous fish migration. I also don't believe 22 there are any upstream fish passage facilities, such as fish 23 ladders, on that dam. 24 MR. BIRMINGHAM: So anadromous fish are not able to 25 migrate upstream past the Camp Far West Diversion Dam? CAPITOL REPORTERS (916) 923-5447 16764 1 MR. VOGEL: That's correct. 2 MR. BIRMINGHAM: Does South Sutter Water District 3 maintain any diversion facilities below the Camp Far West 4 Diversion Dam? 5 MR. ARNOLD: In regards to the Bear River? 6 MR. BIRMINGHAM: Yes. 7 MR. ARNOLD: No. 8 MR. BIRMINGHAM: Does Camp Far West Irrigation District 9 maintain any diversion facilities for the Bear River below 10 the Camp Far West Diversion Dam? 11 MR. ARNOLD: Not to my knowledge. 12 MR. BIRMINGHAM: I believe that the rest of my 13 questions are for Mr. Pacheco. But if any member of the 14 panel would like to respond, you are certainly welcome to do 15 that. 16 Mr. Pacheco, were you involved in the negotiations of 17 the settlement agreement between the Department of Water 18 Resources, South Sutter Water District and Camp Far West 19 Irrigation District? 20 MR. PACHECO: Yes, I was. 21 MR. BIRMINGHAM: And your testimony, DWR Exhibit 41, 22 makes reference to a 1986 Coordinated Operation Agreement; 23 is that correct? 24 MR. PACHECO: That's correct, yes. 25 MR. BIRMINGHAM: Mr. Pacheco, I am handing to you a CAPITOL REPORTERS (916) 923-5447 16765 1 document which I will mark for identification as Westlands 2 Water District Exhibit 131. That is a document bearing the 3 title, "Agreement Between the United States of America and 4 the State of California for Coordinated Operation of the 5 Central Valley Project and State Water Project." 6 Are you familiar with Westlands Water District Exhibit 7 131 for identification? 8 MR. PACHECO: Yes, I have seen this document before. 9 MR. BIRMINGHAM: What is Westlands Water District 10 Exhibit 131 for identification? 11 MR. PACHECO: It is titled, "The Agreement Between 12 United States of America and the State of California for 13 Coordinated Operation of the Central Valley Project and 14 State Water Project." 15 MR. BIRMINGHAM: Is Westlands Water District Exhibit 16 131 for identification the document that is referred to in 17 your testimony as the 1986 Coordinated Operation Agreement? 18 MR. PACHECO: I believe it is. 19 MR. BIRMINGHAM: Would you take a moment and examine 20 Westlands Water District Exhibit 131 for identification to 21 confirm that is the 1986 Coordinated Operation Agreement 22 referred to in your testimony? 23 MR. PACHECO: Correct. This seems to be the document. 24 On Page 10 there are some handwritten entries which I am not 25 familiar with. CAPITOL REPORTERS (916) 923-5447 16766 1 MR. BIRMINGHAM: Are those the two notes at the bottom 2 of the page between with asterisks; is that correct? 3 MR. PACHECO: Right. 4 MR. BIRMINGHAM: Other than the handwritten notes on 5 Page 10 of Exhibit 131, Westlands Exhibit 131 for 6 identification, is the 1986 Coordinated Operations Agreement 7 referred to your testimony? 8 MR. PACHECO: Yes. 9 MR. BIRMINGHAM: What is the Coordinated Operations 10 Agreement, Westlands Water District 131, what is its 11 purpose? 12 MR. PACHECO: As I understand it, and I am not 13 intimately familiar with this document, I wasn't around 14 during its negotiation and formulation, but just my general 15 knowledge of the Coordinated Operations Agreement is how the 16 two projects, the federal Central Valley Project and State 17 Water Project, would share in controlling flows to meet the 18 requirements in the Sac Valley Basin. The basin also 19 included the Delta. 20 MR. BIRMINGHAM: Does it prescribe responsibility 21 between the federal Central Valley Project and State Water 22 Project for meeting Sacramento Valley in-basin uses? 23 MR. PACHECO: Yes, it does. 24 MR. BIRMINGHAM: Is satisfaction of water quality 25 objectives in the Bay-Delta considered a Sacramento Valley CAPITOL REPORTERS (916) 923-5447 16767 1 in-basin use under the Coordinated Operations Agreement, 2 Westlands Exhibit 131 for identification? 3 MR. PACHECO: I am really not sure of that question. 4 MR. BIRMINGHAM: Does the Coordinated Operations 5 Agreement, Westlands Water District Exhibit 131, establish a 6 formula that is used to determine how much -- what 7 percentage of water can be exported by the federal Central 8 Valley Project and State Water Project from the Delta? 9 MR. PACHECO: Yes, it does. 10 MR. BIRMINGHAM: Is that formula described on Page 10 11 of Westlands Water District Exhibit 131 for identification? 12 MR. PACHECO: Correct. Well, Pages 9 and 10; starts on 13 Page 9. 14 MR. BIRMINGHAM: With respect to the settlement 15 agreement between the Department of Water Resources, South 16 Sutter Water District and Camp Far West Irrigation District, 17 which has been marked for identification as South Sutter 18 Water District Exhibit 2, have there been any discussions 19 with the Bureau of Reclamation concerning the Bureau's 20 agreement to backstop the obligation of the settling parties 21 for meeting Bay-Delta water quality objectives? 22 MR. PACHECO: With respect to the Bear River Agreement, 23 is that the question? 24 MR. BIRMINGHAM: Yes. 25 MR. PACHECO: Being that the Bureau was not involved in CAPITOL REPORTERS (916) 923-5447 16768 1 the negotiations, the way the agreement was formulated the 2 Bureau is not responsible for those obligations. 3 MR. BIRMINGHAM: Well, the reason I asked this 4 question, Mr. Pacheco, is --were you present this morning 5 during the opening statement by Mr. Hitchings on behalf of 6 Glenn-Colusa Irrigation District? 7 MR. PACHECO: Yes, I was. 8 MR. BIRMINGHAM: During that opening statement, did 9 you hear Mr. Hitchings say the Department of Water Resources 10 and the U.S. Bureau of Reclamation have repeatedly stated 11 that the implementation of these types of settlement 12 agreements will not adversely affect water right holders on 13 other rivers or tributaries that are not subjects of the 14 agreements? Did you hear him say that? 15 MR. PACHECO: I think I did hear him say that. 16 MR. BIRMINGHAM: With respect to the settlement 17 agreement that is currently before the Board, South Sutter 18 Water District Exhibit 2, the Bureau of Reclamation has not 19 made any sort of representation about how it will react to 20 that settlement agreement; isn't that correct? 21 MR. PACHECO: Could you repeat the question? 22 MR. BIRMINGHAM: Sure. I will restate it. 23 The Bureau of Reclamation has not agreed to backstop 24 the obligation of South Sutter Water District and Camp Far 25 West Irrigation District with respect to their obligations CAPITOL REPORTERS (916) 923-5447 16769 1 to meet the water quality objectives in the Bay-Delta; isn't 2 that correct? 3 MR. PACHECO: Related to the Bear River contribution, 4 correct. 5 MR. BIRMINGHAM: Now, it has been stated that among the 6 purposes of the agreement is to avoid a contentious water 7 rights hearing; is that right? 8 MR. PACHECO: Yes. 9 MR. BIRMINGHAM: Now, if the agreement, South Sutter 10 Water District Exhibit 2, is approved by the State Board, 11 will it still be necessary for the State Board to determine 12 the responsibility of South Sutter Water District and Camp 13 Far West Irrigation District for meeting Bay-Delta water 14 quality objectives? 15 MR. PACHECO: If you mean their obligation to meeting 16 that. Yes, I think it would. 17 MR. BIRMINGHAM: So it would be necessary for the State 18 Water Board to receive evidence concerning the 19 responsibility of South Sutter Water District and Camp Far 20 West Irrigation District for meeting the Bay-Delta water 21 quality objectives? 22 MR. PACHECO: I am not sure what type of evidence the 23 Board would need. 24 MR. BIRMINGHAM: Well, how does the Department of Water 25 Resources propose the Water Board determine the CAPITOL REPORTERS (916) 923-5447 16770 1 responsibility of South Sutter Water District and Camp Far 2 West Irrigation District for meeting Bay-Delta water quality 3 objectives in Phase VIII of these proceedings if the 4 settlement agreement is approved? 5 MR. PACHECO: I can only guess as far as the Board's 6 procedure and process in Phase VIII. I think that is a task 7 for the Board to take up in the future proceedings. 8 MR. BIRMINGHAM: But I am asking you, Mr. Pacheco. The 9 Department of Water Resources has agreed to backstop the 10 obligation of South Sutter Water District and Camp Far West 11 Irrigation District? 12 MR. PACHECO: Correct. 13 MR. BIRMINGHAM: So it will be necessary to determine 14 the obligation of Camp Far West Irrigation District and 15 South Sutter Water District? 16 MR. PACHECO: Correct. 17 MR. BIRMINGHAM: How would the Department of Water 18 Resources propose that that obligation be determined? 19 MR. O'BRIEN: I am going to object on ground of 20 relevance. We are -- this is a backdoor way of having the 21 department state its position as to an appropriate 22 alternative to be selected in Phase VIII. This is not a 23 Phase VIII hearing. This is a hearing on the settlement 24 agreement. 25 C.O. BROWN: Mr. Birmingham. CAPITOL REPORTERS (916) 923-5447 16771 1 MR. BIRMINGHAM: Well, indeed, it is a Phase VIII 2 hearing, Mr. Brown. It was noticed as part of Phase VIII. 3 It is certainly related to the ultimate decision that will 4 be rendered in Phase VIII. 5 And if Mr. Pacheco doesn't know, that is certainly an 6 acceptable response. But the representation has been made 7 that this settlement agreement will not affect the federal 8 project or its contractors, and I am exploring the basis of 9 that statement. 10 C.O. BROWN: Mr. O'Brien. 11 MR. O'BRIEN: He's already gotten the answer that the 12 USBR will have no obligation to backstopping of this 13 agreement. That to me seems to answer the question. To now 14 go the next step and ask the Department to discuss its 15 position in the real Phase VIII, seems to me to be a huge 16 waste of time and irrelevant to this particular proceeding. 17 C.O. BROWN: I will overrule the objection. Answer the 18 question if you know the answer. 19 MR. PACHECO: Let me see if -- I think I know what you 20 are asking. As far as -- I don't think it is the 21 Department's place to tell the Board how to evaluate the 22 water rights under Phase VIII. As I understand it, it is 23 through their EIR they have, what, seven or eight different 24 alternatives which they will be evaluating in Phase VIII, 25 that is, I guess, is the Board's business as far as they CAPITOL REPORTERS (916) 923-5447 16772 1 conduct the future proceedings. 2 MR. BIRMINGHAM: In future proceedings in Phase VIII 3 will the Department of Water Resources be presenting 4 evidence in the shoes of Camp Far West Irrigation District 5 and South Sutter Water District concerning the obligation of 6 those two agencies to meet water quality objectives in the 7 Bay-Delta? 8 MR. PACHECO: I am not sure of the answer to that. 9 MR. VAN CAMP: Can I just add a point of clarification? 10 I don't think it is necessary for each and every water right 11 holder that is listed in the hearing record to be presenting 12 testimony for this Board to determine its obligation, and I 13 don't think you will have that. 14 C.O. BROWN: Mr. Birmingham, is this a good time to 15 take a break? 16 MR. BIRMINGHAM: Yes, it would be a fine time to take a 17 break. 18 C.O. BROWN: We will take our morning break, 12 minutes. 19 (Break taken.) 20 C.O. BROWN: Back to order. 21 Mr. Birmingham. 22 MR. BIRMINGHAM: Thank you, Mr. Brown. 23 Mr. Pacheco, I am handing to you a document that is 24 marked for identification as Westlands Water District 25 Exhibit 132. Have you previously seen Westlands Water CAPITOL REPORTERS (916) 923-5447 16773 1 District Exhibit 132? 2 MR. PACHECO: Yes, I have. 3 MR. BIRMINGHAM: This is a letter dated March 29, 2000, 4 addressed to Mr. John Pacheco at the Department of Water 5 Resources, signed by Nick Wilcox, Chief of the Bay-Delta 6 unit; is that correct? 7 MR. PACHECO: That's correct. 8 MR. BIRMINGHAM: As part of your employment with the 9 Department of Water Resources, did you receive a copy of 10 Westlands Water District Exhibit 132? 11 MR. PACHECO: Yes, I did. 12 MR. BIRMINGHAM: In the first paragraph of Westlands 13 Water District Exhibit 132 it states: 14 In early March of this year you requested 15 information regarding the quantity of water 16 that might be provided to the Bay-Delta 17 estuary if water right holders on the Bear 18 River system were curtailed under Alternative 19 3 of the State Water Resources Control 20 Board's Environmental Impact Report. 21 (Reading.) 22 Do you see that sentence? 23 MR. PACHECO: Yes, I do. 24 MR. BIRMINGHAM: In March of 2000, did you make such a 25 request of the State Water Control Board? CAPITOL REPORTERS (916) 923-5447 16774 1 MR. PACHECO: You could call it a request. We were in 2 a meeting discussing data and information to perform a 3 study, yes. 4 MR. BIRMINGHAM: Did you ask anyone from the State 5 Water Control Board how much water might be provided to the 6 Bay-Delta estuary if water right holders on the Bear River 7 system were curtailed under Alternative 3 of the Water 8 Board's EIR? 9 MR. PACHECO: I didn't ask that direct question. But 10 the end result of the meeting was Board staff volunteering 11 to perform that analysis, yes. 12 MR. BIRMINGHAM: Attached to Westlands Water District 13 Exhibit 132 for identification is an analysis of Bear River 14 water rights; is that correct? 15 MR. PACHECO: Yes. 16 MR. BIRMINGHAM: Have you reviewed the attachments to 17 Westlands Water District Exhibit 132? 18 MR. PACHECO: I've read it. I don't know as far as a 19 review, if you had anything else in mind. 20 C.O. BROWN: Mr. O'Brien. 21 MR. O'BRIEN: Excuse me, Mr. Brown. I think Mr. 22 Birmingham is about to get into substance of the document, 23 so I'll go ahead and make my objection. He's attempting to 24 get into the record this document which apparently was 25 prepared by Mr. Wilcox, through Mr. Pacheco. And I think CAPITOL REPORTERS (916) 923-5447 16775 1 the appropriate way to do this, if Mr. Birmingham wants to 2 put this into the record, is to call Mr. Wilcox, who 3 prepared the document, and not have it come in through Mr. 4 Pacheco who did not prepare the document. 5 I am going to object on the grounds, number one, of 6 lack of foundation for the document. Number two, lack of 7 relevance. This is a hearing to consider a settlement 8 agreement. And our view and analysis of the obligation 9 under Alternative 3 is not relevant to this proceeding. 10 It is unclear to us whether Alternative 3 was picked. 11 And I think the document potentially is prejudicial in terms 12 of the settlement agreement we are reviewing in this 13 proceeding. Finally, I would object to the document itself 14 on grounds of hearsay. 15 C.O. BROWN: Thank you, Mr. O'Brien. 16 Mr. Birmingham. 17 MR. BIRMINGHAM: I will observe all evidence, all 18 evidence is prejudicial to someone. That is the purpose of 19 evidence, is to establish why something should or shouldn't 20 be done. 21 I don't think the fact that the document is prejudicial 22 to the document or potentially prejudicial to the settlement 23 means that it shouldn't come in. That is a good reason for 24 it to come in. It is relevant to an analysis of the 25 settlement. CAPITOL REPORTERS (916) 923-5447 16776 1 I do agree with Mr. O'Brien, that if we were in a court 2 and I wanted to lay a foundation under the strict rules of 3 evidence, it would be necessary for me to lay more of a 4 foundation than I have up to this point. But as has been 5 observed many times, we are not in a courtroom, and the 6 rules of evidence are relaxed in this proceeding. 7 I would point out that the document contains an 8 analysis that I had planned on using for purposes of 9 exploring further the Department of Water Resources's 10 agreement to backstop the obligation of South Sutter Water 11 District and Camp Far West Irrigation District and the 12 potential impact that that agreement will have on the 13 Coordinated Operating Agreement. 14 So to that extent, I believe it is relevant. 15 C.O. BROWN: Mr. Nomellini. 16 MR. NOMELLINI: Mr. Chairman, I disagree in part with 17 both of the previous speakers. But I think in 18 cross-examination it is very relevant to the question of 19 whether or not the settlement is a reasonable settlement 20 that would merit your approval. And, therefore, I think, 21 even without a foundation, the fact this is a document that 22 went to Mr. Pacheco, I think that has been established, and 23 that is all that is necessary to allow for cross-examination 24 to proceed. 25 C.O. BROWN: Thank you, Mr. Nomellini. CAPITOL REPORTERS (916) 923-5447 16777 1 Mr. Campbell, you rise. 2 MR. CAMPBELL: If I could point out, if the Chairman 3 does determine that the document is hearsay, that the 4 document can form the basis of a finding from the Board. 5 C.O. BROWN: Thank you, Mr. Campbell. 6 Mr. O'Brien, final say. 7 MR. O'BRIEN: I will just stand on my objection, Mr. 8 Brown. 9 C.O. BROWN: I overrule the objection. Proceed, 10 please. 11 MR. BIRMINGHAM: You stated, I think, Mr. Pacheco, you 12 reviewed the analysis of Bear River water rights attached to 13 Westlands Water District Exhibit 132 for identification? 14 MR. PACHECO: I said I read it. I don't know exactly 15 what you mean by review. If you are talking a thorough, 16 comprehensive review, I am not sure what you are asking. 17 MR. BIRMINGHAM: Let's turn to the second page of the 18 attachment to Westlands Water District Exhibit 132 for 19 identification. On that page there is a Table 3; is that 20 correct? 21 MR. PACHECO: Yes, it is. 22 MR. BIRMINGHAM: Table 3 represents the amount of 23 water, according to the analysis that was performed, that 24 would be released by or contributed towards Bay-Delta water 25 quality objectives by South Sutter Water District and Camp CAPITOL REPORTERS (916) 923-5447 16778 1 Far West if the Board were to adopt Alternative 3 in the 2 Draft EIR; is that correct? 3 MR. PACHECO: That is my understanding from Mr. 4 Wilcox's analysis. 5 MR. BIRMINGHAM: My understanding of the settlement 6 agreement, South Sutter Water District Exhibit 2, is that in 7 dry and critical years up to 4,400 acre feet would be 8 contributed towards Bay-Delta water quality objectives and 9 other uses by the State Water Project by South Sutter Water 10 District and Camp Far West Irrigation District? 11 MR. PACHECO: I think what you said was correct. You 12 said by the State Water Project, by Camp Far West. I think 13 more correctly it's South Sutter Water District and Camp Far 14 West Irrigation District would release those waters to the 15 Department for those uses. 16 MR. BIRMINGHAM: Looking at Table 3 on the attachments 17 to Westlands Water District Exhibit 132 for identification, 18 this analysis shows that in a critical year approximately 19 23,000 acre-feet would be contributed by South Sutter Water 20 District and Camp Far West Irrigation District towards 21 meeting the Bay-Delta water quality objectives if the Water 22 Board were to adopt Alternative 3 from the EIR; is that 23 correct? 24 MR. PACHECO: That is what the analysis shows. 25 MR. BIRMINGHAM: Now, so that I can explore the CAPITOL REPORTERS (916) 923-5447 16779 1 question of backstopping a little bit further, let's assume 2 hypothetically that the State Water Resources Control Board 3 adopts Alternative 3 and that it concludes that in a 4 critical year the obligation of the South Sutter Water 5 District and Camp Far West Irrigation District towards 6 meeting water quality objectives is 23,000 acre-feet. 7 Do you understand those assumptions? 8 MR. PACHECO: Yes, I do. 9 MR. BIRMINGHAM: Now, under the settlement agreement 10 between DWR and South Sutter Water District and Camp Far 11 West Irrigation District, South Sutter Water District 12 Exhibit 2, the State Water Resources Control Board would 13 make up -- excuse me, the Department of Water Resources 14 would make up the difference between 23,000 acre-feet in a 15 critical year and whatever is released by the settling 16 parties under the agreement? 17 MR. PACHECO: Right. The hypothetical situation, that 18 is correct. 19 MR. VAN CAMP: Mr. Birmingham, may I interject here? I 20 believe what you are getting at is simply the backstop 21 issue. And you are looking at numbers that we are at a 22 disadvantage, that were simply provided less than ten days 23 ago. 24 I have problems with the analysis. I have probably 25 looked at it more than Mr. Pacheco. I believe the analysis CAPITOL REPORTERS (916) 923-5447 16780 1 done in the EIR does a relative impact analysis. Separate 2 analyses were likely done by both parties for purposes of 3 settlement as compared to relative impacts. And I think 4 your -- by comparing these numbers with what the settlement 5 came to is not a proper use of those. 6 MR. BIRMINGHAM: I would move to strike Mr. Van Camp's 7 statement on the grounds it is nonresponsive to any question 8 that I asked up to this point. 9 MR. O'BRIEN: May I address that? 10 Mr. Birmingham very graciously began his examination by 11 encouraging the witness, if they had additional comments to 12 make in response to questions, to feel free to do so. 13 Certainly, Mr. Van Camp's statement is very relevant to the 14 line of questioning Mr. Birmingham is now conducting with 15 Mr. Pacheco. I think bears very directly to the relevant 16 objection that has been made. 17 C.O. BROWN: Mr. Birmingham. 18 MR. BIRMINGHAM: I think what Mr. O'Brien said about my 19 invitation is correct. I did encourage members of the panel 20 to respond to the questions that I was asking. 21 What Mr. Van Camp just stated was not responsive to a 22 question that I asked. Instead, he voiced an opinion on the 23 accuracy of these numbers. Mr. O'Brien can certainly ask 24 him those questions on redirect examination. 25 I, to this point, have used the document, Westlands CAPITOL REPORTERS (916) 923-5447 16781 1 Water District Exhibit 132, for purposes of asking 2 hypothetical questions about the backstop agreement that the 3 Department of Water Resources has. The accuracy of the 4 assumptions that are concluded in my hypothetical certainly 5 isn't relevant to the answer given to the hypothetical. 6 C.O. BROWN: Thank you. 7 (Discussion held off the record.) 8 C.O. BROWN: You gentlemen would be happy to know I 9 have good counsel from both, opposite sides. I am going to 10 allow the answer to remain in the record. But I would 11 suggest that while Mr. Birmingham has been open in allowing 12 each of the witnesses to answer on an individual basis, 13 perhaps you might be a little bit more specific, Mr. 14 Birmingham, if you wish to have additional information after 15 a witness has provided the information. 16 And then the other witnesses, I would suggest that you 17 let Mr. Birmingham know that you have additional 18 information, if he wants it. This is Mr. Birmingham's turn 19 to ask any question he wants. You'll have an ample 20 opportunity for redirect and in your direct testimony. But 21 this is Mr. Birmingham's turn. So, if you have additional 22 information, before response ask Mr. Birmingham if he would 23 like to have more information on it. 24 MR. BIRMINGHAM: Thank you, Mr. Brown. 25 Mr. Van Camp, since we have opened this door, let's CAPITOL REPORTERS (916) 923-5447 16782 1 explore, walk in the room. You said that you have done some 2 analysis concerning the accuracy of the analysis attached to 3 Westlands Water District Exhibit 132? 4 MR. VAN CAMP: I said I reviewed in more detail than 5 Mr. Pacheco, I believe. 6 MR. BIRMINGHAM: Have you done any analysis to 7 determine what the contribution of South Sutter Water 8 District and Camp Far West Irrigation District would be 9 towards meeting Bay-Delta water quality objectives if the 10 State Water Resources Control Board were to adopt 11 Alternative 3? 12 MR. VAN CAMP: I need to hear. Did you say impacts to 13 the South Sutter Water District? 14 MR. BIRMINGHAM: Would you read back my question, 15 please? 16 (Record read as requested.) 17 MR. VAN CAMP: We have -- 18 MR. JACKSON: Excuse me, Mr. Brown. 19 C.O. BROWN: Mr. Jackson. 20 MR. JACKSON: I object to the form of the question as 21 being compound. I can't tell what Bay-Delta water right 22 objective Camp Far West affects from the question, so I 23 can't understand the answer. 24 C.O. BROWN: As long as the witness understands the 25 question, we will go with it. CAPITOL REPORTERS (916) 923-5447 16783 1 Thank you, Mr. Jackson. 2 If you understand the question, go ahead and answer it. 3 If not, so state. 4 MR. VAN CAMP: The work we have done is to try to 5 respond, evaluate the analysis done by Mr. Wilcox, keeping 6 in mind we have only had it for a few number of days. 7 MR. BIRMINGHAM: Again, Mr. Van Camp, I don't think you 8 responded to my question. 9 Would you read back my question, please? 10 (Record read as requested.) 11 MR. VAN CAMP: If you did not understand my longer 12 answer, it is yes. 13 MR. BIRMINGHAM: When did you do an analysis of the 14 contribution of South Sutter Water District and Camp Far 15 West Irrigation District towards meeting the Bay-Delta water 16 quality objectives under Alternative 3? 17 MR. VAN CAMP: You used the word "contribution." I 18 assume you are using that word because that is what used in 19 Mr. Wilcox's analysis. And, therefore, our analysis that's 20 been done has been done since the March 30th submittal or 21 transmittal of Mr. Wilcox. To look at what you call, and I 22 assume you are referring to Mr. Wilcox's word, the 23 contribution of the bypass flow. 24 MR. BIRMINGHAM: Do you understand my use of the word 25 "contribution" to mean bypass flow? CAPITOL REPORTERS (916) 923-5447 16784 1 MR. VAN CAMP: That is what I understand it to mean, 2 yes. 3 MR. BIRMINGHAM: Has your analysis reached any 4 conclusion about how much flow would be bypassed by South 5 Sutter Water District and Camp Far West Irrigation District 6 in a critical year if the State Water Resources Control 7 Board adoptes Alternative 3? 8 MR. VAN CAMP: Yes. We have arrived at a number. 9 MR. BIRMINGHAM: What is your number? 10 MR. VAN CAMP: We were proposing to submit this as 11 rebuttal testimony. I gather it is appropriate time now. 12 To directly answer your question, turn to the last page 13 of this testimony. 14 MR. BIRMINGHAM: Actually then me asking you about the 15 testimony, you just looked at a document, and I will ask 16 you, has your recollection been refreshed to a point where 17 you can answer the last question that I asked, which was: 18 In a critical year how much water would be contributed or 19 bypassed by South Sutter Water District and Camp Far West 20 Irrigation District if the Board were to adopt Alternative 21 3? 22 MR. VAN CAMP: Three. 23 MEMBER FORSTER: Excuse me, three what? 24 MR. VAN CAMP: 3,000 acre-feet. Excuse me, good 25 point. CAPITOL REPORTERS (916) 923-5447 16785 1 MR. NOMELLINI: Can we give this an identification 2 number. 3 MR. BIRMINGHAM: It is not in evidence. I am not 4 examining -- 5 MR. NOMELLINI: In order to refer to it in the 6 testimony, I think it ought to be identified. 7 C.O. BROWN: Mr. O'Brien. 8 MR. O'BRIEN: It has been marked previously as SSWD 16. 9 I would proposed that we refer to it by that number. If Mr. 10 Birmingham doesn't intend to proffer it, I will offer it 11 later. 12 C.O. BROWN: Let's leave it as Number 16 13 MR. O'BRIEN: Yes. 14 MR. NOMELLINI: Thank you, Mr. Chairman. 15 MR. BIRMINGHAM: I don't think that there has been any 16 identification of South Sutter Water District 16, and I 17 don't propose to identify it now. 18 C.O. BROWN: Well -- 19 MR. BIRMINGHAM: I don't think any of my questions have 20 related to a document. I asked Mr. Van Camp about an 21 analysis that he performed. I asked him a question: What 22 did that analysis show? He couldn't remember if he looked 23 at a document, which has not been identified, and his 24 recollection was refreshed. 25 So I don't know -- CAPITOL REPORTERS (916) 923-5447 16786 1 C.O. BROWN: Mr. O'Brien. 2 MR. O'BRIEN: Well, he asked him if he had prepared an 3 analysis. He said, "Yes, but I don't have it, I can get 4 it." 5 We got it, and we passed it out to everybody in this 6 room. Now Mr. Birmingham doesn't want it to be used for 7 purposes of the examination. If he doesn't want to use it, 8 fine. I will get it in through redirect examination. I 9 just think we are making this a little bit more complicated 10 than we need to. 11 C.O. BROWN: Thank you, Mr. O'Brien. 12 Mr. Nomellini. 13 MR. NOMELLINI: My only concern is that we know what we 14 are referring to in his testimony if you follow it. I would 15 -- there are three exhibits in this little package. There 16 is South Sutter Water District Exhibit 16; that is a joint 17 rebuttal testimony of Marc Van Camp and Tom Hickmann. 18 17 is South Sutter Water District Exhibit 17, a 19 comparison of Camp Far West Irrigation District Reservoir 20 inflows, historical versus DWR HEC-3. 21 And South Sutter Water District Exhibit 18 is modified 22 Table 3 of State Water Resources Control Board staff 23 analysis dated March 29, 2000. 24 If you would allow that statement to be in the record 25 and ask these parties when they refer to this document to CAPITOL REPORTERS (916) 923-5447 16787 1 try and point out the exhibit number, I think that would 2 satisfy my request so we do have orderly transcript of the 3 proceeding. 4 C.O. BROWN: Thank you, Mr. Nomellini. 5 Mr. O'Brien, why don't you go ahead and mark these as 6 exhibits, and we will leave them in the record as it now 7 stands. And if there is some question later on as to being 8 accepted into evidence then, we will discuss that later on. 9 So they will be marked as SSWD-16, 17 and 18. 10 Proceed, Mr. Birmingham. 11 MR. BIRMINGHAM: Thank you, Mr. Brown. 12 Mr. Van Camp, the analysis that you performed 13 concerning how much water would have to be bypassed by South 14 Sutter Water District and Camp Far West Irrigation District 15 if the State Board were to adopt Alternative 3, what did it 16 show concerning how much water would have to be bypassed in 17 a wet year? 18 MR. VAN CAMP: My analysis, with the corrections made 19 to State Board staff analysis, would show 11,000 acre-feet 20 during a wet year during May through August. 21 MR. BIRMINGHAM: And what did your analysis show would 22 have to be bypassed by South Sutter Water District and Camp 23 Far West Irrigation District in an above-normal year if the 24 Board were to adopt Alternative 3? 25 MR. VAN CAMP: Again, with the corrections made and the CAPITOL REPORTERS (916) 923-5447 16788 1 May through August period being looked at, 26,000. 2 MR. BIRMINGHAM: What did your analysis show would have 3 to be released by South Sutter Water District and Camp Far 4 West Irrigation District in a below-normal year? Let me 5 restate the question. 6 What did your analysis show would to have be bypassed 7 by South Sutter Water District and Camp Far West Irrigation 8 District in a below-normal year if the Board were to adopt 9 Alternative 3? 10 MR. VAN CAMP: 5,000 acre-feet. 11 MR. BIRMINGHAM: In a dry year, what did your analysis 12 show would have to be bypassed by South Sutter Water 13 District and Camp Far West Irrigation District if the Water 14 Board were to adopt Alternative 3? 15 MR. VAN CAMP: 7,000. 16 MR. BIRMINGHAM: Did you share your analysis with Mr. 17 Pacheco? 18 MR. VAN CAMP: I believe he has only received this 19 correct table this morning. He was aware of our method and 20 our concerns with the State Board staff analysis. 21 MR. BIRMINGHAM: I will ask you, Mr. Pacheco, going 22 back to my earlier questions, let's assume hypothetically 23 that the State Water Resources Control Board adopts 24 Alternative 3 at the conclusion of Phase VIII, and assume 25 that the State Board determines that in an above-normal year CAPITOL REPORTERS (916) 923-5447 16789 1 South Sutter Water District and Camp Far West Irrigation 2 District would be obligated to bypass 26,000 acre-feet of 3 water. 4 Do you understand those hypothetical assumptions? 5 MR. PACHECO: Yes, I do. 6 MR. BIRMINGHAM: Now, under the agreement between the 7 Department of Water Resources and Camp Far West Irrigation 8 District and South Sutter Water District, the Department of 9 Water Resources would essentially make up in an above-normal 10 year the difference between 26,000 acre-feet and what would 11 be released by or bypassed by those agencies in an 12 above-normal year; is that correct? 13 MR. PACHECO: I am not sure what you are referring to 14 as the bypass release by those agencies. 15 MR. BIRMINGHAM: Under the agreement in an above-normal 16 year Camp Far West Irrigation District and South Sutter 17 Water District would contribute nothing towards the water 18 quality objectives for Bay-Delta; isn't that correct? 19 MR. PACHECO: I am not sure if they are contributing 20 nothing. There are minimum releases from their project for 21 fishery purposes, and I am not sure how those would qualify 22 or fall out as they arrive and show up in the Delta if they 23 do. 24 MR. BIRMINGHAM: Those minimum releases would be 25 released by Camp Far West Irrigation District and South CAPITOL REPORTERS (916) 923-5447 16790 1 Sutter Water District whether or not there was a settlement 2 agreement with the Department of Water Resources; isn't that 3 correct? 4 MR. PACHECO: Yes. 5 MR. BIRMINGHAM: So, under the agreement, South Sutter 6 Water District Exhibit 2, in an above-normal year, Mr. 7 Pacheco, how much water will be contributed by the two 8 agencies towards meeting the water quality objectives for 9 Bay-Delta? 10 MR. PACHECO: Under the agreement they are not 11 obligated to release any water to the Department in an 12 above-normal year. 13 MR. BIRMINGHAM: So, if the Water Board were to adopt 14 Alternative 3 and determine that in an above-normal year the 15 agencies under Alternative 3 would be obligated to bypass 16 26,000 acre-feet, as Mr. Van Camp has determined, in that 17 year the Department of Water Resources would assume that 18 obligation under the settlement agreement? 19 MR. PACHECO: Correct. That is what the settlement 20 agreement requires. 21 MR. BIRMINGHAM: How would that assumption of 22 obligation affect the Department of Water Resources' 23 operations under the Coordinated Operating Agreement, 24 Westlands Water District Exhibit 131 for identification? 25 MR. PACHECO: I really can't say right now because that CAPITOL REPORTERS (916) 923-5447 16791 1 particular agreement for accounting is still being put 2 together by staff from the Department and from the Bureau. 3 MR. BIRMINGHAM: What does it mean, Mr. Pacheco, when 4 the Bureau is in balanced conditions? 5 MR. PACHECO: Balanced conditions in the Delta are 6 periods when upstream reservoir releases and the natural 7 flows or unappropriated flows approximately equal Sacramento 8 Valley in-basin demands and project exports. 9 MR. BIRMINGHAM: Under the Coordinated Operation 10 Agreement, Westlands Water District Exhibit 131, when the 11 Delta is in balance, what are the respective 12 responsibilities or proportions of releases that must be 13 made from the federal Central Valley Project and State Water 14 Project to maintain in-balanced conditions? 15 MR. PACHECO: As I understand the COA, there are two 16 sets of shared responsibility. One is a 45/55 percent split 17 and the other is a 75/25 percent split. 18 MR. BIRMINGHAM: When the Delta is in balanced 19 conditions, in order to maintain balanced conditions the 20 federal Central Valley Project makes releases of 75 percent 21 of the water necessary to maintain balanced conditions and 22 the state makes releases of 25 percent of the water 23 necessary to maintain balanced conditions? 24 MR. PACHECO: That is correct. That is when there is 25 no natural or unappropriated flows in the system. CAPITOL REPORTERS (916) 923-5447 16792 1 MR. BIRMINGHAM: When you say "natural or 2 unappropriated flows," what would happen if the State Water 3 Resources Control Board were to adopt Alternative 3 with 4 respect to natural or unappropriated flows? Do you have an 5 understanding about that? 6 MR. PACHECO: I am not sure what you are asking. 7 MR. BIRMINGHAM: What is your understanding of Term 8 91? 9 MR. PACHECO: That is a condition put on water rights 10 after a certain date. I am not sure if it is in the '60s or 11 '70s, that require them to cease diversions when the 12 projects are maintaining the Delta in balanced condition and 13 there is no natural or unappropriated flows and we are 14 releasing water from storage. 15 MR. BIRMINGHAM: When you saw there are no natural 16 flows, let's talk about the Bear River. Are there times 17 when there are no natural flows in the Bear River? 18 MR. PACHECO: I am not sure. 19 MR. BIRMINGHAM: Is it is your understanding that 20 Alternative 3 would impose Term 91 on the water right 21 permits or licenses that are held by South Sutter Water 22 District and Camp Far West Irrigation District? 23 MR. PACHECO: Correct. I think they are listed in the 24 table that is with the State Board's EIR. 25 MR. BIRMINGHAM: So if the State Board were to adopt CAPITOL REPORTERS (916) 923-5447 16793 1 Alternative 3, when the Delta is in balanced conditions and 2 releases are being made by the Department of Water Resources 3 and the Central Valley Project, South Sutter Water District 4 and Camp Far West Irrigation District would be required to 5 cease diversions from the stream? 6 MR. PACHECO: What stream are you talking about? The 7 Bear River? 8 MR. BIRMINGHAM: Bear River. 9 MR. PACHECO: Correct. 10 MR. BIRMINGHAM: They would have to bypass the natural 11 flow in the Bear River? 12 MR. PACHECO: Correct. 13 MR. BIRMINGHAM: Now, going back to my hypothetical 14 question, under circumstances as they exist today, when the 15 Delta is in balanced conditions, the Central Valley Project 16 releases 75 percent of the water required to maintain 17 balanced conditions; is that your understanding? 18 MR. PACHECO: Yes. 19 MR. BIRMINGHAM: And DWR releases 25 percent of the 20 water required to maintain balanced conditions? 21 MR. PACHECO: Correct. 22 MR. BIRMINGHAM: Now, under the settlement agreement, 23 South Sutter Water District Exhibit 2, in an above-normal 24 year during the months of June, July and August the 25 Department of Water Resources would have to release CAPITOL REPORTERS (916) 923-5447 16794 1 additional 26,000 acre-feet in order to maintain balanced 2 conditions in the Delta; is that correct? 3 MR. PACHECO: And you're assuming alternative -- what 4 number? 5 MR. BIRMINGHAM: I am assuming Alternative 3. 6 MR. PACHECO: Correct. 7 MR. BIRMINGHAM: If the Central Valley Project is to be 8 protected from any effects of the settlement agreement, it 9 would be necessary to adjust the percentages described in 10 the Coordinated Operating Agreement, Westlands District 11 Exhibit 131, with respect to the releases to maintain 12 balanced conditions? Do you understand my question, Mr. 13 Pacheco? 14 MR. PACHECO: Yes. At this time I could probably only 15 guess or assume as to the outcome of the specific agreement 16 between the Department and the Bureau, as far as how those 17 type of releases will be accounted for. It has not yet been 18 finalized. So if I say it is a hundred percent, it would be 19 a guess right now. 20 But the intent of that specific agreement is that the 21 Bureau suffers no adverse impact from the settlement 22 agreement to which we are entering. 23 MR. BIRMINGHAM: If the Bureau's to suffer no adverse 24 impact, it would be necessary for some adjustment to be made 25 with respect to how much water the Bureau has to release in CAPITOL REPORTERS (916) 923-5447 16795 1 order to maintain balanced conditions in the Delta? 2 MR. PACHECO: Correct. And that is the purpose of the 3 agreement I mentioned that we are working on. 4 MR. BIRMINGHAM: When the Delta is in balanced 5 conditions, generally the exports of the projects, the 6 Central Valley Project, are limited by capacity of its 7 diversion facilities; is that correct? 8 MR. PACHECO: Yes. 9 MR. BIRMINGHAM: So when the Delta is in balanced 10 conditions in an above-normal year, the release of 11 additional 26,000 acre-feet by the State Water Project, 12 assuming the Board adopts Alternative 3, would not enable 13 the Central Valley Project to export any additional water; 14 isn't that correct? 15 MR. PACHECO: I am not sure that what you said is 16 correct. Could you rephrase it or repeat? 17 MR. BIRMINGHAM: Well, the expectation is that the 18 Department of Water Resources and Bureau of Reclamation will 19 amend the Coordinated Operating Agreement, Westlands Water 20 District Exhibit 131, in order to ensure the CVP and its 21 contractors are not impacted by the settlement agreement? 22 MR. PACHECO: Correct. 23 MR. BIRMINGHAM: But that agreement or the amendment 24 has not been negotiated? 25 MR. PACHECO: Correct. CAPITOL REPORTERS (916) 923-5447 16796 1 MR. BIRMINGHAM: So you can't tell us how the Central 2 Valley Project and its contractors would be protected from 3 implementation of the settlement agreement, South Sutter 4 Water District Exhibit 2? 5 MR. PACHECO: And I am not understanding, protected 6 from what? 7 MR. BIRMINGHAM: Protected from potential impacts. 8 MR. PACHECO: And you are trying to describe an impact 9 to do with their pumping facility. You did mention their 10 pumping facility, right? 11 MR. BIRMINGHAM: Mr. Pacheco, let me rephrase the 12 question and make sure you understood it. 13 You have represented that it is the intent of the 14 Department of Water Resources to amend the Coordinated 15 Operation Agreement, Westlands Water District Exhibit 131 16 for identification, in order to ensure that the water supply 17 of the Central Valley Project and its contractors will not 18 be impacted by implementation of the settlement agreement, 19 South Sutter Water District Exhibit 2? 20 MR. PACHECO: Right. But I am not sure if amending the 21 COA is the correct term. I understand in the past there 22 have been these letter agreements to account for special 23 water types. I am aware this occurred during the drought 24 water banks of the early '90s. 25 C.O. BROWN: Mr. Birmingham, you have been up for one CAPITOL REPORTERS (916) 923-5447 16797 1 hour. How much more time do you need? 2 MR. BIRMINGHAM: Ten minutes. 3 C.O. BROWN: Thank you. 4 MR. BIRMINGHAM: Thank you. 5 But today you can't tell us of what will be done in 6 order to ensure that the CVP and its contractors will not be 7 impacted in terms of its water supply by the settlement 8 agreement? 9 MR. PACHECO: Correct. Because that is still being 10 worked on. 11 MR. BIRMINGHAM: Have there been any analysis to 12 determine how the settlement agreement would affect the 13 accounting which is done concerning implementation of 14 Section 34O6 (b)(2) of the Central Valley Project 15 Improvement Act? 16 MR. PACHECO: I am not aware of any analysis, no. 17 MR. BIRMINGHAM: Are you aware of the accounting 18 document that has been prepared by the Department of the 19 Interior to determine how much water has been used under 20 Section 3406 (b)(2) of the Central Valley Project 21 Improvement Act? 22 MR. PACHECO: No, I have not. 23 MR. BIRMINGHAM: Less than ten minutes. 24 Thank you. 25 C.O. BROWN: Thank you, Mr. Birmingham. CAPITOL REPORTERS (916) 923-5447 16798 1 Let's see. Mr. Pettit, would you step outside and ask 2 Mr. Schuster to come in here, please? 3 MR. NOMELLINI: Could you give us the order of 4 cross-examination you are going to call? 5 C.O. BROWN: Yes. 6 MR. PETTIT: Tough assignment, but here he is. 7 C.O. BROWN: Mr. Schuster has a scheduling problem. He 8 wanted to make a policy statement, so we are going to 9 interrupt cross for just a moment here for Dave. 10 Welcome Dave, or Mr. Schuster. 11 MR. SCHUSTER: My name is Dave Schuster. I am here 12 today representing the State Water Contractors. 13 We have three things to say. One is that we, through 14 my participation, were directly involved in negotiations 15 with the Department and South Sutter and Camp Far West. We 16 are supportive of the Department signing the agreement when 17 they did. And so we are basically saying we agree with 18 DWR's testimony. 19 There are two things that need clarification, I think. 20 One thing is relative to this Board is whether the agreement 21 when implemented would harm any other water users. And 22 there is two different issues there. One, which this Board 23 has control of, the Board, when they determine their 24 methodology of how they are going to allocate the 25 obligation, meaning the Basin Plan and flows, outflows, and CAPITOL REPORTERS (916) 923-5447 16799 1 other flow requirements, their methodology we apply to every 2 water user, including South Sutter and Camp Far West 3 Irrigation District. And their share can be calculated on 4 an annual basis, not a real-time basis. 5 That obligation then becomes SWP's obligation as long 6 as this agreement is in force and will be met. That ensures 7 that South Sutter's obligation is not passed on to any other 8 water right holder. 9 The other option, which is the one Mr. Birmingham asked 10 a whole bunch of questions about, is with the Bureau, and 11 making sure the Bureau is not harmed. Somebody called 12 attention to the fact the South Sutter and DWR agreement 13 cannot implemented until there is an agreement in force 14 between the Bureau and DWR. That is one of the provisions 15 of this agreement. And that agreement will be done soon. 16 And I assure you that the Bureau will have an agreement out 17 and written down and will not allow the users to be harmed. 18 Therefore, in a given year if we determine that South 19 Sutter's obligation was whatever, let's use 20,000 acre-foot 20 for an example, DWR will be required to put that water out. 21 And you could also calculate what the Bureau's share of that 22 water, how much of that water they are going to put to use, 23 which in most cases will be all of it, will be put to use, 24 and DWR can release that water to the Bureau in the schedule 25 that they asked for. CAPITOL REPORTERS (916) 923-5447 16800 1 And this doesn't require any changes in the COA or 2 those kind of discussions. In this case, this agreement has 3 been designed to make sure that none of their water users 4 are being harmed, and I think it does that. 5 The second issue has been raised about Nick's, excuse 6 me, Mr. Wilcox's memo. His memo gets to a point, as far as 7 I am concerned, this agreement is a business deal, this 8 settlement, nice fuzzy word. Whether we -- he was raising a 9 question whether the Department made a good business 10 decision. Is our obligation going to be greater than the 11 benefit we get from the water that they will deliver to us 12 under the terms of the agreement, which is a legitimate 13 question. 14 I am not sure. It is still in the analysis. That is a 15 very relevant question to me because if it is not a good 16 agreement, I might get fired. It is not relevant to this 17 Board as far as that goes, Mr. Birmingham and his client 18 because we will be -- if we cut a bad deal, we still have 19 the obligation to release the water, your share. We still 20 have the obligation to release the water if needed to be, 21 the remaining share. And what is relevant to this Board is 22 as long as the agreement is in place, the Department has 23 agreed to meet South Sutter's obligation, whatever that 24 obligation is as determined by you. 25 If the agreement is not in place or if for some reason CAPITOL REPORTERS (916) 923-5447 16801 1 eventually -- what is that word -- is voided because of some 2 condition of the agreement, we will have to come back to 3 this Board to assign the obligation to South Sutter and take 4 it from SWP. 5 As far as whether we cut a good deal, which was what 6 Nick was requesting -- he was trying to be helpful. I am 7 not being critical at all. Nick's question, that is between 8 us and South Sutter. And as long as the Bureau, which they 9 will do, comes to agreement with us to make arrangements to 10 make sure they get the share they would have gotten absent 11 the agreement, is held whole. 12 Thank you, sir. 13 C.O. BROWN: Thank you, Mr. Schuster. 14 In the order of cross-examination: Andrew Hitchings, 15 Tim O'Laughlin, Dan Gallery, Michael Jackson, Arthur Godwin, 16 Mr. Nomellini, Mr. Johnson. 17 Next up is Mr. Hitchings. 18 MR. HITCHINGS: I have no cross-examination, Mr. 19 Brown. 20 Thank you. 21 C.O. BROWN: All right. 22 Mr. O'Laughlin. 23 MR. O'LAUGHLIN: I have no cross-examination, Mr. 24 Brown. 25 C.O. BROWN: Mr. Gallery. CAPITOL REPORTERS (916) 923-5447 16802 1 MR. GALLERY: No questions. 2 C.O. BROWN: Mr. Jackson. 3 MR. JACKSON: Thank you, your Honor. Thank you, Mr. 4 Chairman. 5 ---oOo--- 6 CROSS-EXAMINATION OF SOUTH SUTTER WATER DISTRICT & 7 CAMP FAR WEST IRRIGATION DISTRICT & 8 DEPARTMENT OF WATER RESOURCES 9 BY REGIONAL COUNCIL OF RURAL COUNTIES 10 BY MR. JACKSON 11 MR. JACKSON: Mr. Van Camp, you indicated that you took 12 part in the negotiations with DWR and the contractors on 13 behalf of South Sutter? 14 MR. VAN CAMP: Yes. I participated in many, not all of 15 the settlement discussions. 16 MR. JACKSON: Calling your attention to your testimony, 17 and I guess we will bounce around a little bit, I would like 18 to start with Number 7. The pages aren't numbered, but it 19 is Item 7. 20 MR. VAN CAMP: Yes. 21 MR. JACKSON: It says that the State Water Contractors 22 and DWR established a goal of 300,000 acre-feet as the 23 contribution towards settlement from Sacramento River Basin. 24 Were you folks part of setting that goal? 25 MR. VAN CAMP: No. CAPITOL REPORTERS (916) 923-5447 16803 1 MR. JACKSON: Did you do any sort of analysis to 2 determine whether or not that goal would, in fact, bring 3 benefit to the Delta? 4 MR. VAN CAMP: No. 5 MR. JACKSON: To your knowledge, did you see any 6 environmental document that indicated that that would be an 7 appropriate goal? 8 MR. VAN CAMP: No. Keep in mind, I believe that was a 9 goal for settlement with the projects assuming the remaining 10 responsibility. 11 MR. JACKSON: You don't have any idea how that goal was 12 determined? 13 MR. VAN CAMP: No, sir. 14 MR. JACKSON: In the course of their discussions with 15 you, was it indicated whether the Bureau of Reclamation had 16 bought off on a goal of 300,000 acre-feet as the apporpriate 17 contribution to the Sacramento River Basin from the 18 Sacramento drainage? 19 MR. VAN CAMP: I can't answer your question relative to 20 the terms you used, "bought off on." I know the Bureau was 21 involved in some of early meetings when both the 300,000 and 22 4,400 acre-feet for South Sutter and Camp Far West was 23 discussed. 24 MR. JACKSON: So they were part of the negotiations at 25 some point? CAPITOL REPORTERS (916) 923-5447 16804 1 MR. VAN CAMP: Early on, yes. 2 MR. JACKSON: Was the 300,000 acre-feet goal to come 3 from parties other than the Bureau and DWR, or was that the 4 total drainage goal? 5 MR. VAN CAMP: Mr. Jackson, I believe the 300,000 was a 6 goal to be obtained from water right holders in the 7 Sacramento River Basin. 8 MR. JACKSON: That would exclude their own 9 contractors? 10 MR. VAN CAMP: Not necessarily. 11 MR. JACKSON: So, addressing the question again, was it 12 your understanding that this was a goal for the drainage or 13 for the nonproject part of the drainage? 14 MR. VAN CAMP: I believe it was for the drainage. 15 MR. JACKSON: Was there ever -- was it identified in 16 the course of negotiations which water quality objective 17 this 300,000 acre-feet was supposed to satisfy? 18 MR. VAN CAMP: No, sir. As indicated in the testimony, 19 it was a settlement quantity. 20 MR. JACKSON: And you agreed to the settlement 21 basically because you were afraid of Alternative 3? 22 MR. O'BRIEN: Excuse me, I am going to object to the 23 form of the question. 24 MR. JACKSON: I should withdraw. You are right. I 25 will withdraw it. CAPITOL REPORTERS (916) 923-5447 16805 1 Does the Bear River portion of the 300,000 acre-feet 2 goal include just South Sutter Water District and Camp Far 3 West Irrigation District or does it include other water 4 rights holders above you? 5 MR. VAN CAMP: Our position is that the 300,000 was 6 distributed by unimpaired flow as indicated in the 7 testimony; and, therefore, the 4,400 represents the portion 8 of the 300,000 that is allocated to the Bear River system, 9 whatever Bear river right holders are identified in the 10 State Board's notice to Phase VIII hearings. 11 MR. JACKSON: Are there other water rights holders on 12 the river who are not part of the notice that rely on the 13 same groundwater basin that South Sutter relies on? 14 MR. VAN CAMP: I believe the answer is yes. 15 MR. JACKSON: Could you describe those interests? 16 MR. VAN CAMP: Excuse me, did you say that are party to 17 this agreement? 18 MR. JACKSON: No, that are not. 19 MR. VAN CAMP: I believe there are water right holders 20 in the American River Basin along the Sacramento River that 21 are identified in the hearing that are considered part of 22 the groundwater basin. 23 MR. JACKSON: Would the shift -- there will be a shift 24 to groundwater use caused by releasing these flows, will 25 there not? CAPITOL REPORTERS (916) 923-5447 16806 1 MR. VAN CAMP: Based on our review, it is within the 2 historical practice that has occurred within South Sutter 3 Water District. 4 MR. JACKSON: But it is increasing groundwater 5 pumping? 6 MR. VAN CAMP: It has that potential, yes. 7 MR. JACKSON: Are there people within -- does your 8 district cover all of the -- are all lands within your 9 external boundaries in your district, or are there gaps in 10 the district? Maybe this would be -- 11 MR. ARNOLD: There is some landowners within South 12 Sutter Water District that have at the inception of the 13 district chose not to be part of the district, yes. 14 MR. JACKSON: Are those folks in the same groundwater 15 basin? 16 MR. ARNOLD: Yes, they are. 17 MR. JACKSON: Has there been any determination what 18 would happen to water levels in the basin from this 19 agreement? 20 MR. HICKMANN: Yes. 21 MR. JACKSON: Would the water levels for those folks 22 who are not members of the district but are near the 23 district go down as a result of this agreement? 24 MR. HICKMANN: Potentially. 25 MR. JACKSON: Do you know the magnitude of the CAPITOL REPORTERS (916) 923-5447 16807 1 drawdown? 2 MR. HICKMANN: I don't. 3 MR. JACKSON: If the water is to be -- Mr. Van Camp, I 4 notice from your testimony that it indicates that the water 5 hypothetically would be released from July 1st to November 6 1st. Is that the release pattern? 7 MR. VAN CAMP: Are you referencing a certain -- 8 MR. JACKSON: Maybe that is out of the agreement, come 9 to think of it, not your testimony. 10 Is the water to be released in dry and critical years 11 between the months of July 1st and September 30th? 12 MR. VAN CAMP: That is correct. 13 MR. JACKSON: Mr. Van Camp, you have been active 14 throughout the Delta proceedings, have you not? 15 MR. VAN CAMP: Only to the level necessary. 16 MR. JACKSON: And you have been quite active in 17 California water for 20 years, have you not? 18 MR. VAN CAMP: Close. 19 MR. JACKSON: What Bay-Delta objective is met, water 20 quality objective is met, by the release of water in the 21 summer and early fall? 22 MR. VAN CAMP: I can't cite a specific objective, but 23 in exchange for releasing this water in the summer and fall, 24 the State Water Project agrees to meet a portion of -- that 25 portion of any potential obligation determined to be South CAPITOL REPORTERS (916) 923-5447 16808 1 Sutter or Camp Far West during the other times of the year, 2 whatever those may be. 3 MR. JACKSON: It is also your understanding that the 4 DWR has agreed to meet any other -- has agreed that they 5 will backstop any other party on the river who is not part 6 of this agreement? 7 MR. VAN CAMP: For the Bear River, yes. 8 MR. JACKSON: Mr. Pacheco, is that your understanding 9 as well, that everyone on the Bear River is backstopped 10 whether they sign this agreement or not? 11 MR. PACHECO: Other water right holders that the Board 12 may notice or notify in the Phase VIII hearings. 13 MR. JACKSON: That is correct. Is that correct, sir? 14 MR. PACHECO: Yes. There may be others outside of 15 that, but I am not aware of them. 16 MR. JACKSON: Mr. Pacheco, how did you get the figure 17 300,000 acre-feet of water as a goal? 18 MR. PACHECO: I myself personally didn't get it. It 19 was an agreed-to number by Department management and State 20 Contractors based on just general policy, legal and 21 technical considerations. 22 MR. JACKSON: You don't know personally what those were? 23 MR. PACHECO: I am aware of some of the conditions, 24 yes. 25 MR. JACKSON: What conditions are you aware of, sir? CAPITOL REPORTERS (916) 923-5447 16809 1 MR. PACHECO: As far as evaluating what the projects 2 today see as their contribution to meeting the Delta 3 obligations, what waters we have to release or forego to 4 meet those obligations. In different years, in a dry year, 5 in a critical year, in the worst year on record; we have 6 information like that. And then with that determining what 7 portion of that may be -- see that we can contract for with 8 settlement agreements from potential water right holders in 9 the Sacramento Valley. 10 MR. JACKSON: Is the purpose of this 300,000 acre-foot 11 goal to the Bay-Delta water quality standards or to keep up 12 exports? 13 MR. PACHECO: I think the Bay-Delta standards are set 14 regardless. That is a Board condition. The purpose of the 15 300,000 is to seek a redistribution, a reallocation, of the 16 responsibility for meeting the obligation that the Board had 17 in the 1995 Water Quality Control Plan, allocating that 18 responsibility to others besides the SWP and CVP. 19 MR. JACKSON: So it is the position of DWR that Term 91 20 ought to be applied to the pre-1968 water rights holders in 21 the Sacramento Valley? 22 MS. CROTHERS: I object to that. I don't see the 23 relevance to this hearing, on the settlement agreement 24 discussion, the Department's position as to Term 91 and 25 other water rights. CAPITOL REPORTERS (916) 923-5447 16810 1 C.O. BROWN: Mr. Jackson. 2 MR. JACKSON: I think it is completely relevant, your 3 Honor. We have used Alternative Number 3 as a base for Mr. 4 Wilcox's work. It obviously was a base for how badly these 5 people could get hurt. Alternative 2 is, basically, the 6 existing law without Term 91 applied to the pre-1968 folks. 7 So, I want to know why DWR is doing this. 8 C.O. BROWN: Ms. Crothers, put yourself forward and use 9 the microphone. 10 MS. CROTHERS: Perhaps Mr. Jackson could rephrase the 11 question because I understood him to ask for DWR's position 12 at this time. And DWR is not really prepared to have any 13 position on the alternatives that will be presented in Phase 14 VIII. 15 C.O. BROWN: Thank you, Ms. Crothers. 16 MR. BIRMINGHAM: I would also like to comment on Mr. 17 Jackson's last observation that the existing law is the 18 Department of Water Resources and CVP meet these 19 obligations. Up until the adoption of D-1641 the 20 obligations were being met voluntarily. The objective were 21 being met voluntarily by the two projects. And one of the 22 concerns, as you may recall, that was voiced by the two 23 projects with respect to condition two in the 1641 was 24 suddenly that would become the law. 25 The Board has made it very clear that it is a temporary CAPITOL REPORTERS (916) 923-5447 16811 1 condition. During a workshop several weeks ago, Mr. Lilly 2 referred to condition two as status quo. And I rise now 3 because I just want to make sure that every time someone 4 suggests that condition two is the law or status quo, that 5 it not become so simply because it is restated again over 6 and over. 7 C.O. BROWN: Thank you, Mr. Birmingham. 8 Mr. Jackson, perhaps you can restate the question just 9 a little bit. 10 MR. JACKSON: Yes, sir. 11 Does DWR have a position on whether or not Term 91 12 should be applied to a new set of water users, the folks 13 noticed in Alternative 3? 14 MR. PACHECO: No. Today we don't have a Department 15 policy that's endorsing any one of the alternatives 16 presented by the Board in their EIR. We haven't gotten to 17 that stage yet in our preparation for Phase VIII. 18 MR. JACKSON: What objective in the Bay-Delta is DWR 19 trying to reach by delivering, by arranging a water release 20 from July 1st to October the 30th? 21 MR. PACHECO: I don't think there is any one objective 22 that we have identified to connect to the release of that 23 water. 24 MR. JACKSON: Do you know whether or not the release of 25 this water or the 300,000 acre-feet of water would move X2 CAPITOL REPORTERS (916) 923-5447 16812 1 appreciably? 2 MR. PACHECO: I am not sure what you are asking about 3 moving X2. If we are just operating to the '95 Water 4 Quality Control Plan, X2 is going to be where it is supposed 5 to be with or without this water 6 MR. JACKSON: This water doesn't help in regard to X2 7 at all? 8 MR. PACHECO: Help? It meets -- it's to be used to 9 help meet the Delta obligations. I don't see it changing 10 those objectives or obligations. That is not the 11 purpose. I think the Board is the one who needs to -- if 12 they were going to change the water quality control plan, 13 that's their decision. 14 MR. JACKSON: Is the purpose of this water to improve 15 water quality at Hammonton on the Sacramento River? 16 MR. PACHECO: Again, I think that is one of the 17 standards or objectives or compliance points in the Water 18 Quality Control Plan, and the purpose of this water is not 19 to change that in one way or the other. Again, I think the 20 Board in its decision, and Mr. Birmingham pointed this out, 21 that on an interim basis the projects are going to be 22 meeting those conditions. 23 MR. JACKSON: Do you have any -- is there any fisheries 24 reason in the Delta to care whether the water is released on 25 the Bear River or on the Feather River? CAPITOL REPORTERS (916) 923-5447 16813 1 MR. BIRMINGHAM: Object to the question because it 2 goes beyond the scope of this witness' expertise. 3 MR. JACKSON: Your Honor, I am trying to -- excuse me, 4 sir. 5 C.O. BROWN: If you understand the question and have 6 knowledge on it, go ahead and answer it. 7 MR. PACHECO: I was about to say I am not a fisheries 8 biologist so I wouldn't know. 9 MR. JACKSON: You have no -- you are not doing this for 10 any public trust reason in the Delta that you are aware of? 11 MR. PACHECO: Doing this? What is this? 12 MR. JACKSON: Picking this number of 300,000 as your 13 goal. 14 MR. PACHECO: I am not sure if I am prepared to talk 15 public trust when we are just discussing settlement 16 agreement. I don't understand, I guess, your question. 17 MR. JACKSON: This settlement agreement, as I 18 understand it, is part of an effort by DWR to meet its goal 19 of 300,000 acre-feet of water from nonproject water rights 20 holders on the Sacramento River, correct? 21 MR. PACHECO: Correct. 22 MR. JACKSON: Is there any public trust reason for such 23 a goal, to your knowledge? 24 MR. PACHECO: If you call distributing or reallocating 25 the obligation to meet Delta objectives a public trust, CAPITOL REPORTERS (916) 923-5447 16814 1 correct. 2 MR. JACKSON: And if -- do the fish care who owns the 3 water that is released? 4 MS. CROTHERS: I have to object. 5 MR. PACHECO: I am not a fishery biologist. 6 C.O. BROWN: You can rephrase that. 7 MR. JACKSON: Is there any environmental reason that 8 you're aware of in the Delta that requires an extra 300,000 9 acre-feet of water to be released from water rights holders? 10 MR. BIRMINGHAM: Object to the question. It assumes 11 facts not in evidence. The 300,000 acre figure, that is not 12 extra water or additional water. There is no evidence that 13 it would be additional water. It is simply water that would 14 be contributed by a different source. 15 C.O. BROWN: Mr. Jackson. 16 MR. JACKSON: Exactly the point I am trying to make. 17 This is noticed for a water rights hearing on the 18 contribution of the Sacramento Valley based upon water 19 rights, public trust and public interest; and what I am 20 trying to determine is what this request is for. 21 C.O. BROWN: Overruled. 22 MR. PACHECO: Could you repeat the question, sir? 23 MR. JACKSON: Yes. Are you aware of any public trust 24 reason for the release of this 300,000 acre-feet goal? 25 MS. CROTHERS: Mr. Brown. CAPITOL REPORTERS (916) 923-5447 16815 1 C.O. BROWN: Ms. Crothers. 2 MS. CROTHERS: I think I am going to object. I think 3 what Mr. Jackson is getting to is a public trust 4 determination which is probably more proper in a legal brief 5 on the meaning of public trust, than those sources which 6 public trust -- what would be protected under public trust 7 legal arguments. I am not sure Mr. Pacheco is prepared to 8 respond to that level. 9 C.O. BROWN: Mr. Jackson. 10 MR. JACKSON: Yes, sir. This negotiating team which 11 has placed Mr. Pacheco on to represent DWR in regard to this 12 settlement established a goal and determined a contribution 13 for this particular drainage to meet that goal. The goal 14 looks to me it may have been pulled out of thin air, or it 15 may simply be a goal to fill up the export pumps. 16 C.O. BROWN: Thank you, Mr. Jackson. 17 I understand the question. I think it is an 18 appropriate question. If you don't have an answer or have 19 the knowledge or background in reference to the question, 20 you may say so state. That is an acceptable answer. 21 MR. PACHECO: I guess I am going to have to defer on 22 the answer. I am just not prepared today to answer a 23 question of that detail and level. 24 MR. JACKSON: Thank you, sir. 25 Mr. Vogel. CAPITOL REPORTERS (916) 923-5447 16816 1 C.O. BROWN: Will this be a good time for a break, Mr. 2 Jackson? 3 MR. JACKSON: Yes, it would. 4 C.O. BROWN: We will meet back here at about five after 5 one. 6 (Luncheon break taken.) 7 C.O. BROWN: Back on the record. 8 Mr. Jackson is up with cross, but he he's graciously 9 granted his okay for Mr. Porgans. 10 Mr. Porgans, You wanted to make a policy statement into 11 the record. 12 MR. PORGANS: Yes. Thank you. I will be very brief, 13 Mr. Chairperson. My name is Patrick Porgans. I am with 14 Porgans & Associates. 15 Essentially, what my comments are today for the record 16 in this final Phase VIII after 13 years of hearings and 17 hundreds of thousands of pages of documentation, God knows 18 whatever else, I have to say for the record that I do not 19 feel that I have been treated fairly, that this process was 20 not impartial, and that there were fundamental flaws in that 21 the way that the Board proceeded, and I am concerned about 22 taking any water out of the north state to meet the flow 23 objective requirements until we resolve the issue of the 24 base case. 25 It is our position, has been our position, that the CAPITOL REPORTERS (916) 923-5447 16817 1 case base was over-inflated by 1,000,000 acre-feet of water, 2 because it wasn't based on existing conditions but based on 3 demands. Until that issue is resolved, I believe it would 4 be an injustice to try to get Northern California to 5 appropriate water or to provide water to meet those flow 6 objectives. 7 Lastly, based on the record, I am not sure, Mr. Brown, 8 if we will ever be able to get the agencies to meet the 9 water quality objectives and/or flow or criteria for the 10 Delta when push comes to shove. The only thing that saved 11 the Delta, based upon my 30 years of involvement, we have 12 had six years of wet weather. 13 Thank you very much. 14 C.O. BROWN: Thank you, Mr. Porgans. 15 Mr. Jackson. And thank you again, Mr. Jackson for the 16 interruption. 17 MR. JACKSON: Mr. Vogel, you have worked on the 18 Sacramento River for the last 20 years; is that correct? 19 MR. VOGEL: Yes, I have. 20 MR. JACKSON: Would you recount a little bit about your 21 experience in regard to Sacramento River fisheries? 22 MR. VOGEL: Yes. For approximately ten years during 23 the 1980s I was the Bureau's fish and wildlife individual in 24 charge of salmon and steelhead research within the basin. 25 And for approximately the last ten years I have been working CAPITOL REPORTERS (916) 923-5447 16818 1 as a private consultant, working not only on Sacramento 2 River fishery issues, but the Delta and San Joaquin as 3 well. 4 MR. JACKSON: In the course of this experience, have 5 you developed a knowledge about the problems affecting 6 Sacramento River fisheries caused by Bureau operations? 7 MR. VOGEL: In part, yes. 8 MR. JACKSON: And are you familiar with conditions on 9 the Bear River below Camp Far West? 10 MR. VOGEL: Fish habitat conditions? 11 MR. JACKSON: Yes. 12 MR. VOGEL: Yes, I am. 13 MR. JACKSON: Are you familiar with conditions from the 14 Bear River's terminus on down into the Delta? 15 MR. VOGEL: To some degree, yes. 16 MR. JACKSON: In your experience, is there a fisheries 17 need for more water in the Sacramento River at Hood in the 18 months of June through October? 19 MR. VOGEL: One point of clarification. The purpose of 20 my role here today is on behalf of the -- appearance with 21 the South Sutter Water District. It is specifically to Bear 22 River, in-river habitat conditions. There are other people 23 on our panel that did analyses from the confluence of the 24 Bear River down to the Delta, so perhaps they would be more 25 appropriate for your question. CAPITOL REPORTERS (916) 923-5447 16819 1 MR. JACKSON: Actually, this hearing, as you understand 2 it, does not cover tributary conditions in the Bear River; 3 is that correct? 4 MR. VOGEL: Well, the impact analyses that were done 5 did include fish habitat conditions in the Bear River. 6 MR. JACKSON: Did the impact -- who did the impact 7 analysis for conditions from the place that the Bear River 8 joins the rest of the Sacramento drainage on down to Suisun 9 Bay? 10 MR. VOGEL: I believe it was Jones & Stokes. 11 MR. SHAUL: Warren Shaul with Jones & Stokes. 12 MR. JACKSON: Mr. Shaul, it is my understanding that 13 you took a look at the effects of this settlement agreement 14 on the Delta itself; is that true? 15 MR. SHAUL: Yes. In part, yes. 16 MR. JACKSON: What impacts did you analyze from this 17 settlement agreement? 18 MR. SHAUL: Well, we looked at the potential for fish 19 impacts during the months of -- when additional water would 20 be put down into the Delta. 21 MR. JACKSON: Did you find any impacts? 22 MR. SHAUL: No adverse impacts. 23 MR. JACKSON: And what -- did you take a look at 24 whether or not this water would change the operation of the 25 cross channel gates? CAPITOL REPORTERS (916) 923-5447 16820 1 MR. SHAUL: That was considered 2 MR. JACKSON: It was found that there was no difference 3 either way, with the project or without the project? 4 MR. SHAUL: Well, as far as the operation of the gates? 5 MR. JACKSON: Yes. 6 MR. SHAUL: We were not given any information that it 7 would change the operation. That is not a fisheries 8 question. That is operation. 9 MR. JACKSON: The gate itself has fisheries impacts? 10 MR. SHAUL: Yes. 11 MR. JACKSON: The owner of the gates? 12 MR. SHAUL: Bureau of Reclamation. 13 MR. JACKSON: The impact that take place at the gates 14 are caused by the Bureau? 15 MR. SHAUL: If impacts occur because of the operation 16 of the gates? I would assume they would be the 17 responsibility of the Bureau of Reclamation. 18 MR. JACKSON: Did you determine whether or not the 19 additional inflow as part of this settlement agreement would 20 change fish conditions anywhere between the Bear River's 21 confluence and Suisun Bay? 22 MR. SHAUL: You are talking specifically about a change 23 in inflow, 37 cubic feet per second? 24 MR. JACKSON: Yes. 25 MR. SHAUL: I wouldn't expect you would be able to CAPITOL REPORTERS (916) 923-5447 16821 1 measure any change. 2 MR. JACKSON: If the source of the water shifted from 3 Camp Far West to Oroville, would that have any effect below 4 -- would it make any difference to conditions below the 5 point where those two rivers join? 6 MR. SHAUL: Are you still speaking of 47 or 37 cubic 7 feet per second? 8 MR. JACKSON: 37 cubic feet per second. 9 MR. SHAUL: I don't believe you would be able to 10 measure the difference, given the timing. 11 MR. JACKSON: Were you part of the discussion about 12 this overall goal of 300,000 acre-feet? 13 MR. SHAUL: No. 14 MR. JACKSON: You never heard that number before? 15 MR. SHAUL: Only because I read it in the same 16 information that you have read. 17 MR. JACKSON: Do you have any way of knowing whether or 18 not that amount of water would have either a beneficial or 19 adverse impact on fishery conditions in the Delta? 20 MR. SHAUL: Whether 300,000 acre-feet could have an 21 beneficial impact or an adverse impact? 22 MR. JACKSON: Right. 23 MR. SHAUL: I really -- I haven't evaluated that, so it 24 would really depend on how that water was used and where the 25 water came from and when it came to the Delta. CAPITOL REPORTERS (916) 923-5447 16822 1 MR. JACKSON: So it would be a question of source, 2 timing, how it related to operations in the Delta, 3 export/import ratios, that sort of thing? 4 MR. SHAUL: Right. 5 MR. JACKSON: You didn't do any of that? 6 MR. SHAUL: Not for the 300,000 acre-feet. 7 MR. JACKSON: Did you see anything that DWR had done in 8 regard to the 300,000 acre-foot goal? 9 MR. SHAUL: I personally haven't seen anything. 10 MR. JACKSON: Are you familiar with the Sacramento 11 River between the confluence with the Feather River and 12 Suisun Bay? 13 MR. SHAUL: I am familiar with it, yes 14 MR. JACKSON: Have you been part of any identification 15 of environmental problems on that stretch of the river? 16 MR. SHAUL: I am not clear what you mean by 17 "identification of environmental problems." 18 MR. JACKSON: I am still trying to figure out where the 19 idea that the Sacramento River needs more flow for fishery 20 purposes between June 1 and October the 30th came from. 21 Do you have any knowledge of what it is we are trying 22 to fix in the Sacramento River during those time periods 23 with more flow? 24 MR. SHAUL: Well, I guess you are asking the question 25 of whether I know whether the 37 cfs was put down the CAPITOL REPORTERS (916) 923-5447 16823 1 Sacramento River at that time for fishery benefits, and I am 2 not sure. I don't know what the total benefits are. I 3 don't think I am the correct person to ask that question. 4 MR. JACKSON: Thank you. 5 I have no further questions. 6 C.O. BROWN: Thank you, Mr. Jackson. 7 Mr. Godwin. 8 MR. GODWIN: I have no questions, sir. 9 C.O. BROWN: Mr. Nomellini. 10 MR. NOMELLINI: I have a few. 11 ---oOo--- 12 DIRECT EXAMINATION OF SOUTH SUTTER WATER DISTRICT & 13 CAMP FAR WEST IRRIGATION DISTRICT & 14 DEPARTMENT OF WATER RESOURCES 15 BY CENTRAL DELTA PARTIES & SOUTH DELTA PARTIES 16 BY MR. NOMELLINI 17 MR. NOMELLINI: Mr. Chairman, Dante John Nomellini for 18 Central Delta Parties and South Delta parties. 19 I think this is for Mr. Arnold. The agreement, the 20 settlement agreement, and I don't have the exhibit number -- 21 MR. BIRMINGHAM: Two. 22 MR. NOMELLINI: Two. 23 Thank you. 24 I'll go with the audience, Mr. Chairman, as 2. 25 C.O. BROWN: All right. CAPITOL REPORTERS (916) 923-5447 16824 1 MR. NOMELLINI: On Page 2 of South Sutter Water 2 District Exhibit 2, in Paragraph D, it provides upstream 3 interest with water rights, and others believe that the 4 objectives should be implemented solely by the CVP and the 5 SWP. 6 Do you see that, Mr. Arnold? 7 MR. ARNOLD: Yes, I do. 8 MR. NOMELLINI: Is that the position of South Sutter 9 Water District? 10 MR. ARNOLD: Yes, it is. 11 MR. NOMELLINI: Why is it that South Sutter Water 12 District would enter into an agreement with the Department 13 of Water Resources to sell them water for $25 an acre-foot? 14 MR. ARNOLD: Well, it was basically a business -- good 15 business decision. 16 MR. NOMELLINI: Did South Sutter Water District view 17 the pending water rights proceedings before the State Water 18 Resources Control Board as a potential threat to their water 19 supply? 20 MR. ARNOLD: In respect to the outcome of what may 21 happen. 22 MR. NOMELLINI: Outcome or -- 23 MR. ARNOLD: To a degree, yes. 24 MR. NOMELLINI: Was the cost of participation in the 25 water rights proceedings before this Board a factor that CAPITOL REPORTERS (916) 923-5447 16825 1 South Sutter Water District considered in entering into this 2 agreement? 3 MR. ARNOLD: Yes, that was one of the factors. 4 MR. NOMELLINI: Mr. Van Camp, the agreement, as I 5 understand it, anticipates that South Sutter Water District 6 will pump -- water users within the district will pump 7 additional groundwater to make up for the water given up 8 under the agreement; is that correct? 9 MR. VAN CAMP: That is correct. That is one 10 potential. 11 MR. NOMELLINI: Is there another potential? 12 MR. VAN CAMP: Well, as indicated, the surface supply 13 only provides a portion of the supply to the individuals in 14 the district. So to the extent the 4,400 reduces the 15 surface supply whether the individual water users can 16 tighten up their operation or need to pump groundwater as an 17 individual, but they will be allocated a lesser surface 18 supply. 19 MR. NOMELLINI: The two alternatives available to make 20 up for the water would be reduce consumptive use and pumping 21 of the additional groundwater. Is that what I heard you 22 say? 23 MR. VAN CAMP: I think you heard me say they could 24 reduce consumptive use if they elected to take lands out of 25 production. I don't think, in my mind, that has been CAPITOL REPORTERS (916) 923-5447 16826 1 contemplated. They would remanage the water or pump 2 additional groundwater. 3 MR. NOMELLINI: Is it anticipated that there would be a 4 lowering of the groundwater levels because of additional 5 pumping which would be required under the settlement 6 agreement? 7 MR. VAN CAMP: Of course, when you are pumping 8 additional groundwater there would be some reduction in 9 groundwater levels. It is believed that the 4,400 is a 10 small quantity relative to the overall pumping. Therefore, 11 any decline is insignificant. 12 MR. NOMELLINI: What type of decline would you expect 13 to occur in the groundwater levels beneath South Sutter 14 Water District due to this agreement? 15 MR. VAN CAMP: I don't believe we have an actual 16 quantity or level reduction. We compared, and I will look 17 to Tom for clarification, compared the increased pumping to 18 the overall pumping in the basin and found it quite small. 19 MR. HICKMANN: That is correct. We compared that to 20 the average annual pumping within the American Basin and 21 came out to be slightly less than 2 percent. 22 MR. NOMELLINI: Two percent overall? 23 MR. HICKMANN: Yes. 24 MR. NOMELLINI: Is it correct that Camp Far West 25 Reservoir, if I am using the terminology correctly, was CAPITOL REPORTERS (916) 923-5447 16827 1 constructed in order to help bring the particular 2 groundwater basin into balance; is that correct? 3 MR. HICKMANN: That's correct. That is my 4 understanding. 5 MR. NOMELLINI: Now, putting aside this settlement 6 agreement, did the Camp Far West Reservoir provide 7 sufficient water to bring the groundwater basin beneath 8 South Sutter Water District into balance? 9 MR. HICKMANN: I have looked at hydrographs which show 10 -- of several wells within the district. And having 11 reviewed those, you can see the decline going into the '50s 12 and after the development of the reservoir, you can see the 13 recovery of the basin. 14 MR. NOMELLINI: Have you made any analysis to see 15 whether or not this settlement agreement would change the 16 balance in the groundwater basin to a negative situation? 17 MR. HICKMANN: I didn't personally do an analysis for 18 that. DWR staff did do an analysis on that, and their 19 conclusion was that it was insignificant. 20 MR. VAN CAMP: May I just add a point of 21 clarification. In addition, in the agreement to uncover the 22 uncertainty of potential impacts there is a clause relative 23 to the declines in groundwater. 24 MR. NOMELLINI: Is that clause at Page 12, Paragraph 25 7d? CAPITOL REPORTERS (916) 923-5447 16828 1 MR. VAN CAMP: That appears to be the right clause, 2 yes. 3 MR. NOMELLINI: That provision states the groundwater 4 basin in SSWD's service area experiences depletions or 5 declines such that water quality is threatened or overdraft 6 conditions are created. Is that what it says? 7 MR. VAN CAMP: I believe you read that properly. 8 MR. NOMELLINI: And that is all tied to a paragraph on 9 changed circumstances or conditions that would be allowed 10 for changes in the agreement; is that correct? 11 MR. VAN CAMP: Yes. 12 MR. NOMELLINI: If it is -- Strike that. 13 How are you going to determine whether or not the 14 provisions of d are triggered? 15 MR. HICKMANN: It's left up to the district to decide 16 that. If they feel that it's reached a point of decline, 17 that it's not economical for them to pump or maybe pumps go 18 dry, then certainly they would or it would appear it is 19 headed in that direct, then they would approach DWR and, I 20 guess, open this up for discussion. 21 MR. NOMELLINI: Mr. Arnold, I guess they passed the 22 baton to you. How were you going to determine whether or 23 not the provision in Paragraph d is triggered? 24 MR. ARNOLD: Currently, annually I monitor over 23 25 wells within the district boundaries. I do that biannually CAPITOL REPORTERS (916) 923-5447 16829 1 and with that information I would be able to see what was 2 occurring, hopefully, prior to any hardship to the 3 district. 4 MR. NOMELLINI: What would you look for to determine 5 whether or not there is hardship to the district? 6 MR. ARNOLD: Standing water levels. 7 MR. NOMELLINI: Would you expect that during years of 8 less rainfall that the groundwater level in South Sutter 9 Water District would drop? 10 MR. ARNOLD: Yes. 11 MR. NOMELLINI: How would you distinguish whether or 12 not that was a drop due to the change in hydrology as 13 opposed to the effects of the settlement agreement? 14 MR. ARNOLD: It would -- I would look at the effects of 15 -- or what the information or data upon rainfall is in 16 regards to what I was seeing the groundwater table do. And 17 also, I have -- I can call on 30 years of record at that 18 time. 19 MR. NOMELLINI: Basically, if you get in trouble, 20 regardless, you could, under your understanding of the 21 agreement, call the Department back to the table to change 22 the terms of the agreement; is that correct? 23 MR. ARNOLD: That is my understanding, yes. 24 MR. NOMELLINI: Back to the engineering team of Van 25 Camp and Hickmann. Is the groundwater under South Sutter CAPITOL REPORTERS (916) 923-5447 16830 1 Water District flowing groundwater? 2 MR. HICKMANN: Not that I am aware of. 3 MR. VAN CAMP: I have not been party to the recent 4 hearings in front of the State Board relative to the 5 groundwater issues, and I am not going to -- 6 MR. NOMELLINI: Excuse me, you are not going to what? 7 MR. VAN CAMP: I am not going to address that question, 8 specifically. 9 MR. NOMELLINI: Let me ask it a little differently. 10 Do you have any opinion as to whether or not the 11 groundwater beneath South Sutter Water District has a 12 gradient? 13 MR. VAN CAMP: It has a gradient. 14 MR. NOMELLINI: Is that gradient consistent with the 15 fall of the surface of the ground? 16 MR. VAN CAMP: No. 17 MR. NOMELLINI: Do you know whether or not water flows 18 from the Bear River into the underground basin beneath South 19 Sutter Water District? 20 MR. VAN CAMP: I do not have specific knowledge on 21 that. And I do think you would have to -- may have to break 22 that down by year-type or months and maybe Tom has had 23 further conversations. 24 MR. HICKMANN: Based on discussions that I had with DWR 25 staff, they looked at that issue and potentially in certain CAPITOL REPORTERS (916) 923-5447 16831 1 years, like Marc said, certain conditions, certain 2 hydrologic conditions, water could flow from the Bear River 3 to the groundwater. 4 MR. NOMELLINI: Mr. Pacheco, do you have any opinion as 5 to whether water flows from the Bear River into the 6 underground water table beneath South Sutter Water 7 District? 8 MR. PACHECO: I guess I don't have an opinion on that. 9 I am not performing those studies on the American Basin; 10 that is other staff within the Department. 11 MR. NOMELLINI: Mr. Hickmann, who in the Department of 12 Water Resources are you referring to when you indicated that 13 you were aware of their analysis on this? 14 MR. HICKMANN: Mr. Fielding. 15 MR. NOMELLINI: Is he around here? 16 MR. HICKMANN: I believe he may be in the back. 17 MR. NOMELLINI: All right. So you have made no 18 measurement yourself as to stream losses that would be in 19 excess of what you expect from evaporation? 20 MR. HICKMANN: No. 21 MR. NOMELLINI: Do any of the people on the panel know 22 whether or not water accretes to downstream areas from the 23 groundwater beneath South Sutter Water District? 24 MR. VAN CAMP: I would say the general slope of the 25 groundwater basin is southerly to a certain point generally CAPITOL REPORTERS (916) 923-5447 16832 1 located in Northern Sacramento County. 2 MR. NOMELLINI: If there is an accretion to the river 3 system, it would probably be in Sacramento County that that 4 would occur? 5 MR. VAN CAMP: I am sorry, an accretion to? 6 MR. NOMELLINI: An accretion to the water flow from the 7 groundwater beneath South Sutter Water District. 8 MR. VAN CAMP: I believe in general the Sacramento 9 River is a losing stream in this location, such that waters 10 from the river is replenishing the groundwater, in general. 11 MR. NOMELLINI: And you believe that is true farther 12 down in the system as well? 13 MR. VAN CAMP: Could you explain "farther down"? 14 MR. NOMELLINI: Do you think that groundwater has any 15 movement farther down in the Sacramento Basin where that it 16 would add to accretions to the river system at a point far 17 below the confluence of the Bear River and Feather? 18 MR. VAN CAMP: In general, I believe there is 19 groundwater depression east of the American River, east of 20 the Sacramento, south of the Bear River such that water is 21 flowing from surface flows into the groundwater basin. 22 MR. NOMELLINI: Now, with regard to the operation of 23 Camp Far West Reservoir, would this agreement cause there to 24 be any change in the amount of water stored in the reservoir 25 or the timing of the storage in the reservoir? CAPITOL REPORTERS (916) 923-5447 16833 1 MR. VAN CAMP: Yes. 2 MR. NOMELLINI: Would those changes in any way affect 3 the flow of water from the Bear River or the reservoir into 4 the South Sutter Water District groundwater? 5 MR. VAN CAMP: Please reask the question. 6 MR. NOMELLINI: You have testified that there will be 7 changes in the amount of water stored in Camp Far West 8 Reservoir and the timing of that storage; is that correct? 9 MR. VAN CAMP: Yes. 10 MR. NOMELLINI: Now, would those changes affect the 11 amount of water flowing from the Bear River, including its 12 portion beneath Camp Far West Reservoir, into South Sutter 13 Water District? 14 MR. VAN CAMP: I understand your question. It is our 15 opinion, in review of hydrographs, that the water, the 16 surface water released for the settlement, will be restored, 17 refilled during the subsequent years because Camp Far West 18 fills and drains in most years. And, therefore, any 19 potential change that you are describing would occur during 20 the wetter times of the year, and, I believe, the 4,400 21 acre-feet would be filled so rapidly that any change is not 22 measurable. 23 MR. NOMELLINI: Do you know how the 300,000 acre-foot 24 goal set by -- first of all, do you know that the 300,000 25 acre-feet was the goal set by the Water State Contractors CAPITOL REPORTERS (916) 923-5447 16834 1 and DWR? 2 MR. VAN CAMP: That is my understanding. 3 MR. NOMELLINI: Do you have any understanding as to 4 whether or not DWR developed the goal or the State Water 5 Project contractors developed the goal? 6 MR. VAN CAMP: No, I do not. 7 MR. NOMELLINI: Mr. Pacheco, do you have any 8 understanding as to whether or not the Department of Water 9 Resources developed the goal of 300,000 acre-feet or the 10 State Water Contractors? 11 MR. PACHECO: My understanding is that the State Water 12 Contractors initially developed the 300,000 acre-foot goal 13 first and the Department subsequently acknowledged it or 14 adopted it. 15 MR. NOMELLINI: Do you have any understanding as to 16 what the basis was for calculating the 300,000 acre-foot 17 goal? 18 MR. PACHECO: It wasn't a strict calculation. Again, 19 from this morning, it was more of a decision based on 20 various reasons, legal, policy and technical information, to 21 seek contribution from the Sacramento Valley water right 22 holders, about a 300,000 acre-foot goal. That's it. 23 MR. NOMELLINI: Has the Department determined what they 24 believe to be the State Water Project and CVP obligation to 25 mitigate damages caused by the projects? CAPITOL REPORTERS (916) 923-5447 16835 1 MR. PACHECO: Again, repeat that one more time. 2 MR. NOMELLINI: Has the Department made any 3 determination, I am talking about the Department of Water 4 Resources, as to what they believe the State Water Project 5 and CVP project obligation for mitigation of damages is in 6 terms of water quality? 7 MR. PACHECO: I am not aware of such a number, no. 8 MR. NOMELLINI: Has the Department of Water Resources, 9 to your knowledge, determined what they believe to be the 10 State Water Project and CVP project obligation for salinity 11 control in the Delta in terms of quantity of water? 12 MR. PACHECO: No, I am not aware of that number. 13 MR. NOMELLINI: I believe you testified you got the 14 letter, that is Westlands Water District Exhibit 132, a 15 letter dated March 29th, 2000, from Nick Wilcox to you? 16 MR. PACHECO: Correct. 17 MR. NOMELLINI: Are you familiar with that? 18 MR. PACHECO: Yes. 19 MR. NOMELLINI: I believe you testified that that 20 letter was sent to you as a result of a meeting you had with 21 Board staff; is that correct? 22 MR. PACHECO: Yes. 23 MR. NOMELLINI: By Board you meant State Water 24 Resources Control Board? 25 MR. PACHECO: Correct. CAPITOL REPORTERS (916) 923-5447 16836 1 MR. NOMELLINI: When did that meeting take place? 2 MR. PACHECO: Without my calendar I couldn't say. But 3 February or March of this year, in that time frame. 4 MR. NOMELLINI: February or March of 2000? 5 MR. PACHECO: Correct. 6 MR. NOMELLINI: You were aware, were you not, at the 7 time that the State Water Resources Control Board Delta 8 water right proceedings were convened? 9 MR. PACHECO: By what notice was that? 10 MR. NOMELLINI: Were you aware at that time that the 11 proceedings that this Board is conducting today were ongoing? 12 MR. PACHECO: Again, without my calendar I can't find 13 that specific date. I don't believe they were noticed yet. 14 MR. NOMELLINI: If I suggested to you that they were 15 noticed in 1998, would that be a surprise to you? 16 MR. PACHECO: Are you saying Phase VIII was noticed in 17 1998? 18 MR. NOMELLINI: Well, yes, Phase VIII as well. 19 MR. PACHECO: My understanding is the Board has not yet 20 put out their notice for Phase VIII. It is my understanding 21 from the December hearings and meetings they had in the 22 adoption of D-1641. I wasn't aware. 23 MR. NOMELLINI: You think this hearing today is not a 24 part of Phase VIII? 25 MR. PACHECO: The notice does say it is the first CAPITOL REPORTERS (916) 923-5447 16837 1 session of Phase VIII. 2 MR. NOMELLINI: Who was present at this meeting in 3 February or March of 2000 that was followed by this letter 4 from Nick Wilcox? 5 MR. PACHECO: Myself, Nick and two other Department 6 staff people. 7 MR. NOMELLINI: Who were they? 8 MR. PACHECO: Amir Ranghi and another fellow, Inkham; 9 and I can't recall the last name. 10 MR. NOMELLINI: Do you know how it came about that 11 there was such a meeting? 12 MR. PACHECO: Yes. My staff contacted Nick and asked 13 him if we could meet and discuss some data. 14 MR. NOMELLINI: Do you know what the specific request 15 was? 16 MR. PACHECO: Yes. We were looking for input data on 17 the Bear River to utilize in running different scenarios to 18 see what the potential obligation on the Bear River could 19 be. 20 MR. NOMELLINI: Was this request made in writing? 21 MR. PACHECO: No, it was not. 22 MR. NOMELLINI: Do you know who your staff made the 23 request to? 24 MR. PACHECO: Yes. I asked my staff person, Amir 25 Ranghi, to set up the meeting. CAPITOL REPORTERS (916) 923-5447 16838 1 MR. NOMELLINI: And at this meeting, do you recall what 2 the general conversation was? 3 MR. PACHECO: Yes. In general, we were looking at 4 various data, input data tables, information that -- bits 5 and pieces that may help the Department modeling section. 6 Computer modeling section may have worked on it. And we 7 were looking for the upper Bear River inflows, the 8 hydrology, you might say, of the upper Bear River. 9 MR. NOMELLINI: Was there any discussion in this 10 meeting as to what the fair allocation of the burden of 11 meeting the 1995 Water Quality Control Plan should be to 12 South Sutter Water District or Camp Far West? 13 MR. PACHECO: I don't know if we you used the word 14 "fair" obligation. I think we were just looking at how 15 would a computer model determine an obligation up there. We 16 selected an Alternative 3 as one case and were looking just 17 for the data and information and methodology, the approach 18 you might say, as to how would the Board determine that in a 19 -- determining the obligation of the Bear River as a whole. 20 MR. NOMELLINI: How the Board would determine that is 21 what your inquiry was? 22 MR. PACHECO: In context of an Alternative 3 scenario. 23 MR. NOMELLINI: Do you remember what your question was 24 to Nick Wilcox at that meeting? 25 MR. PACHECO: Question or discussion, I guess, was the CAPITOL REPORTERS (916) 923-5447 16839 1 plumbing for upper reaches of Bear River are very complex, 2 and we were finding out that nobody in the Department's 3 current modeling section had very detailed knowledge of 4 that. However, Nick having worked on it and, in fact, 5 having given a lot of data to our modelers over the year 6 knew exactly where the information was. He understands the 7 system a lot better. He knows how not only the Bear River, 8 but other watersheds may be connected and the different 9 water sources that come in and out. He was more familiar 10 with the upper system than any of our staff was. 11 MR. NOMELLINI: Based on your testimony then, is it is 12 your testimony that that meeting was purely technical in 13 nature? 14 MR. PACHECO: I think so. 15 MR. NOMELLINI: Is there anything in the meeting that 16 you think was not purely technical in nature? 17 MR. PACHECO: What would classify as not technical? 18 MR. NOMELLINI: Let me give you a hypothetical 19 example. If you asked Nick Wilcox as to what he thought the 20 fair burden should be for meeting the 1995 Water Quality 21 Control Plan placed on South Sutter Water District. 22 MR. PACHECO: No, I don't think the way you are asking 23 the question. We were looking strictly for the mechanical 24 process in an Alternative 3 scenario, Alternative 3 25 describing the Board EIR kind of a modified Term 91 CAPITOL REPORTERS (916) 923-5447 16840 1 situation where water rights are cut off in priority 2 groups, how would that situation with data we had over a 3 multi-year period, how would that fall out in an analysis. 4 C.O. BROWN: How much more time do you need, Mr. 5 Nomellini? You still have plenty 6 MR. NOMELLINI: Did I use my hour already? 7 C.O. BROWN: No. I would just like to know. 8 MR. NOMELLINI: I'm probably going to use another 20 9 minutes, perhaps 10 C.O. BROWN: That is fine. 11 MR. NOMELLINI: I am not going to stay on this. I'm 12 through with it, if that is why you are uncomfortable. I'm 13 off it. 14 I have a couple questions relating to fish. 15 Somewhere in this pile there is a reference to export 16 pumping impact on fish. First let me ask Mr. Pacheco. 17 Do you expect that the exports from the Delta by the 18 State Water Project will increase, stay the same or decrease 19 because of this settlement agreement with South Sutter Water 20 District and Camp Far West? 21 MR. PACHECO: They could go up. 22 MR. NOMELLINI: Do you think it is likely that they 23 would go up? 24 MR. PACHECO: Likely, yes. But there is many other 25 variables that are unknown at this time. You never know CAPITOL REPORTERS (916) 923-5447 16841 1 what will happen. 2 MR. NOMELLINI: Is the objective of the 300,000 3 acre-foot goal to try and minimize losses to the export 4 contractors? 5 MR. PACHECO: Well, I phrase it more as reallocating or 6 redistributing the responsibility for meeting Delta 7 obligations to other parties who will have responsibilities 8 for that. 9 MR. NOMELLINI: Staying right with that. Doesn't that 10 mean that there will be a greater amount of water available 11 to the State Water Project contractors who receive export 12 deliveries from the Delta? 13 MR. PACHECO: If you mean that we will be using less of 14 State Water Project stored water for meeting Delta 15 conditions, Delta outflows and other standards, yes. 16 MR. NOMELLINI: All right, back to the fish. 17 I believe that the testimony was, I think by you, Mr. 18 Shaul, that there was no significant adverse impact found to 19 fish by reason of this particular agreement. Is that what 20 your testimony was? 21 MR. SHAUL: That's correct. 22 MR. NOMELLINI: Calling your attention to -- I am going 23 to show you the initial study and proposed negative 24 declaration for proposed changes in operation as related to 25 the South Sutter Water District Bay-Delta Settlement CAPITOL REPORTERS (916) 923-5447 16842 1 Agreement and perhaps you can tell me what exhibit number 2 that is, or Mr. Birmingham could. 3 MR. BIRMINGHAM: Four. 4 MR. NOMELLINI: I am going to go with the audience 5 again. 6 Are you familiar with that document? 7 MR. SHAUL: Yes, I am. 8 MR. NOMELLINI: If I can have my copy back, do you have 9 a copy you can look at? 10 MR. SHAUL: Yes, I do. 11 MR. NOMELLINI: Calling your attention to Page 327, the 12 second paragraph, which is the first full paragraph on that 13 page, talks about the worst-case scenario involved 14 multiplying the average June salvage density of each species 15 during dry and critical years by an additional 3,520 16 acre-feet to be exported. 17 Do you see that? 18 MR. SHAUL: What page are you on again? 19 MR. NOMELLINI: Page 3-27. 20 MR. SHAUL: I have a different paragraph. 21 MR. NOMELLINI: Maybe we have a different exhibit 22 number. 23 MR. HICKMANN: Same document. 24 MR. NOMELLINI: It is not 3-27. So if a double-spaced 25 was changed to single, that would be about 3-13. CAPITOL REPORTERS (916) 923-5447 16843 1 MR. SHAUL: What is the header? 2 MR. NOMELLINI: The header is back a good number of 3 pages, says Sacramento-San Joaquin Delta. 4 MR. O'BRIEN: Page 3-13. 5 MR. NOMELLINI: Going to 3-16 -- thank you very much. 6 Sorry for the confusion. 7 Calling your attention to the bottom of 3-16, talking 8 about the worst-case scenario -- do you see that language? 9 MR. SHAUL: Yes. 10 MR. NOMELLINI: And it goes over onto the next Page 11 3-17 and it concludes with the final sentence: 12 This method produced an estimated increase in 13 entrainment ranging from zero for steelhead 14 to up to 641 for Delta smelt in a critical 15 water year. (Reading.) 16 Do you see that? 17 MR. SHAUL: Yes. 18 MR. NOMELLINI: Do you agree with that assessment? 19 MR. SHAUL: Well, what do you mean do I agree with it? 20 MR. NOMELLINI: Do you agree that using an assumption 21 that the water exported in June, the 3,520 acre-feet, that 22 there would be an estimated increase in entrainment ranging 23 from zero for steelhead up to 641 for Delta smelt? 24 MR. SHAUL: This was a worst-case analysis. I should 25 defer to Heidi Rooks from the Department of Water Resources CAPITOL REPORTERS (916) 923-5447 16844 1 who did that analysis. 2 MR. NOMELLINI: The Department of Water Resources did 3 this analysis; is that correct? 4 MS. ROOKS: Yes. 5 MR. NOMELLINI: Heidi, perhaps you can state on the 6 record your name. 7 MS. ROOKS: My name is Heidi Rooks. I work for the 8 Department of Water Resources. 9 MR. NOMELLINI: Do you agree with this conclusion that 10 I referred to, the last sentence of the first partial 11 paragraph on Page 3-17? 12 MS. ROOKS: Yes, it is an estimate. 13 MR. NOMELLINI: Do you view that as a significant 14 adverse impact to Delta smelt? 15 MS. ROOKS: Just a point of clarification. This month 16 was not used because it was the month in which the worst 17 impacts would occur in the Delta. So it was dropped out. 18 MR. NOMELLINI: But if this was the month for the 19 export of the water of 3,520 acre-feet provided under this 20 agreement, would you agree that entrainment ranging up to 21 641 for Delta smelt would be a significant adverse impact? 22 MS. ROOKS: It would be an important impact. I am not 23 sure with just this information whether or not it would be 24 significant. 25 MR. NOMELLINI: What level of entrainment of Delta CAPITOL REPORTERS (916) 923-5447 16845 1 smelt in terms of numbers would you consider to be 2 significantly adverse? 3 MS. ROOKS: That is difficult to say because every year 4 is different and every month and situation is different. 5 MR. NOMELLINI: Can you give me a range? 6 MS. ROOKS: No, I can't. 7 MR. NOMELLINI: Let's just see if we can -- for the 8 record, what are you qualifications? 9 MS. ROOKS: What are my qualifications? I work as an 10 Environmental Specialist Supervisor in the environmental 11 assessment and compliance section of the Department of Water 12 Resources in the environmental services office. 13 MR. NOMELLINI: Are you a fisheries biologist? 14 MS. ROOKS: Generally speaking. 15 MR. NOMELLINI: Have you been trained as a fisheries 16 biologist in school? 17 MS. ROOKS: No, I don't have a degree in fisheries 18 biology. I have a degree in zoology. 19 MR. NOMELLINI: Have you made any studies, either in 20 school or in your work environment, with regard to Delta 21 smelt? 22 MS. ROOKS: No. 23 MR. NOMELLINI: How is it that you wrote the section or 24 did you write this section for the environmental document -- 25 Initial Study of Proposed Negative Declaration? CAPITOL REPORTERS (916) 923-5447 16846 1 MS. ROOKS: Yes. 2 MR. NOMELLINI: How is it that you came to write this 3 particular section of Exhibit Number 4? 4 MS. ROOKS: The Department was asked to do an 5 assessment of the potential impacts in the Delta. 6 MR. NOMELLINI: Is there any reason why the face page 7 does not reflect that the document was prepared in part by 8 the Department of Water Resources? 9 MS. ROOKS: I think there was a list of preparers in 10 the front. 11 MR. SHAUL: This is a list of preparers -- Warren 12 Shaul. There is a list of preparers in the back of the 13 document, and Heidi Rooks is listed there. 14 MR. NOMELLINI: Let me flip some pages. 15 MR. SHAUL: Page 5-1. 16 MR. NOMELLINI: Somebody has a finger on it so I can 17 just take a look. 18 Okay. Calling your attention to 5-1 of Exhibit 4, the 19 top of that page says: 20 This report was prepared by MBK Engineering 21 with assistance from Jones & Stokes 22 Associates under contract to South Sutter 23 Water District. The persons responsible for 24 preparing this document are listed below. 25 (Reading.) CAPITOL REPORTERS (916) 923-5447 16847 1 And your name, Heidi Rooks, DWR is listed. Do you see 2 that? 3 MS. ROOKS: Yes. 4 MR. NOMELLINI: Were you working for Jones & Stokes or 5 MBK at the time of the preparation of this document? 6 MS. ROOKS: No. 7 MR. NOMELLINI: Is there any reason why the Department 8 of Water Resources didn't take joint credit for the 9 preparation of this document? 10 C.O. BROWN: Mr. O'Brien, you rise. 11 MR. O'BRIEN: I really don't know where we are going 12 with this. I think it is irrelevant. The document clearly 13 identifies Ms. Rooks as one of the people who has 14 participated in the initial study. I haven't made 15 objections, but I think at this point we are just crossing 16 the line and leading to areas that have no relevance to this 17 proceeding whatsoever. 18 C.O. BROWN: Thank you, Mr. O'Brien. 19 MR. NOMELLINI: This is cross-examination. Some of us 20 in this profession use cross-examination to get to the 21 credibility of witnesses. Some of these questions lay the 22 foundation for other questions. And I was pursuing it, and 23 not to belabor it, but find out why. 24 C.O. BROWN: I side with Mr. O'Brien, but I am going to 25 let you proceed. It is your hour. Go ahead and use it. CAPITOL REPORTERS (916) 923-5447 16848 1 MR. NOMELLINI: Thank you. 2 Is there any reason why the Department of Water 3 Resources didn't get partial credit for the preparation of 4 this Exhibit 4? 5 MS. ROOKS: I guess I would defer that question to MBK 6 because they prepared it. 7 MR. NOMELLINI: You don't know of any reason why the 8 Department was not listed as a preparer? 9 MS. ROOKS: No. 10 MR. NOMELLINI: In terms of when the export of the 11 water provided under this agreement would take place, is 12 there anything in the agreement that precludes the export of 13 the water provided under the settlement agreement during the 14 month of June? 15 MS. ROOKS: Can you ask that again, please. 16 MR. NOMELLINI: Is there anything in the agreement that 17 precludes the export of the water provided under the 18 agreement in the month of June? 19 MS. ROOKS: I don't think I should speak to the 20 settlement agreement, but I don't believe there is anything. 21 MR. NOMELLINI: Mr. Pacheco, is there anything we can 22 find in this agreement that would preclude exports during 23 the month of June when it has this impact on Delta smelt? 24 MR. PACHECO: If my memory serves me right -- is the 25 export or the release period, June through September or July CAPITOL REPORTERS (916) 923-5447 16849 1 through September? 2 It is July through September. It is specifically set 3 in the agreement. There are to be no releases in June, 4 according to the agreement. 5 MR. NOMELLINI: Going back to our fishery expert on 6 Delta smelt, Heidi. What is the impact on Delta smelt, if 7 any, if the exports were to take place in July? 8 MS. ROOKS: This analysis book ended the potential 9 impacts. Because of time of the development of this 10 document, we didn't know exactly how the settlement 11 agreement would come out, so we did the worst-case scenario 12 and the best-case scenario. We didn't do a specific 13 analysis for July. We merely did the June. If everything 14 was exported in June or if everything was spread out over a 15 four-month period of June through September. 16 C.O. BROWN: Can you hear Heidi in the back? 17 Pull your microphone a little closer to you, Ms. 18 Rooks. 19 MS. ROOKS: So we did the June analysis with 20 everything, the water being exported over a 30-day period or 21 that amount of water being exported over a four-month 22 period, June, July, September, August -- or August and 23 September. And that was to bookend the potential impacts at 24 the export pumps, assuming this tool that we used. 25 MR. NOMELLINI: Some it would be somewhere in between? CAPITOL REPORTERS (916) 923-5447 16850 1 MS. ROOKS: Correct. 2 MR. NOMELLINI: In terms of impact on steelhead, the 3 June export, was that at the zero end? Is there a greater 4 impact on steelhead with exports in September? 5 MS. ROOKS: Again, we didn't do it month by month, 6 except for June. 7 MR. NOMELLINI: For the bookends, did you do bookends 8 for steelhead? 9 MS. ROOKS: We did all four species the two different 10 ways that I described. 11 MR. NOMELLINI: In terms of greatest adverse impact on 12 steelhead, what part of the bookend would that be? 13 MS. ROOKS: It ranges anywhere from zero to less than 14 one, according to this analysis. 15 MR. NOMELLINI: So it would be slightly greater in the 16 September period than it would be in the June period; is 17 that what your testimony is? 18 MS. ROOKS: No. Again, I didn't do it month by month. 19 If you just use these bookends of the worst-case and perhaps 20 the best-case scenario, the range in potential impact for 21 salmon is zero to one. 22 MR. NOMELLINI: Is there a page that has the table 23 that has the range on it? 24 MS. ROOKS: Yes. It is 3-20 of my copy. 25 MR. NOMELLINI: So the bookends were June only, export CAPITOL REPORTERS (916) 923-5447 16851 1 versus an average export? 2 MS. ROOKS: Correct. 3 MR. NOMELLINI: You didn't attempt to see what would 4 happen if all the water was exported during the month of 5 September; is that correct? 6 MS. ROOKS: That's correct. 7 MR. NOMELLINI: Going now to the -- going back to the 8 Bear River, there is an indication in another exhibit. I am 9 going to try this one. It is a different exhibit number, 10 too. Initial Study and Proposed Negative Declaration for 11 Proposed Changes in Operation Related to South Sutter Water 12 District Bay-Delta Settlement Agreement, February 2000. Are 13 you familiar with that? 14 Who's familiar with the fishery determinations in that 15 with regard to the Bear River? Who's going to volunteer? 16 MR. VOGEL: That is the same document. 17 What was the question, again? 18 MR. NOMELLINI: That is Exhibit Number 4, then; is that 19 correct? 20 MR. O'BRIEN: Yes. 21 MR. NOMELLINI: On Page 3-10, under Bear River, it 22 says: 23 The Lower Bear River is considered hostile to 24 the natural production of fall-run chinook 25 salmon and steelhead trout and American shad. CAPITOL REPORTERS (916) 923-5447 16852 1 (Reading.) 2 Do you see that? 3 MR. VOGEL: Yes. 4 MR. NOMELLINI: Is that your statement? 5 MR. VOGEL: No, I didn't write that statement 6 MR. NOMELLINI: Do you know who did? 7 MR. VOGEL: No, I don't, but I would agree with it. 8 MR. NOMELLINI: Why is it hostile? 9 MR. VOGEL: There are actually quite a few reasons why 10 it's hostile for production of anadromous salmonids. Back 11 in 1996, 1997, I did fish habitat surveys on behalf of South 12 Sutter Water District in the Lower Bear River from their 13 diversion dam down to the confluence with Feather River, 14 looking at most my physical habitat conditions. What I 15 found, that a spawning substrate was severely lacking, very 16 little amount of spawning gravels were present. 17 For the spawning gravels that were present, they were 18 relatively heavy silted, which would be adverse for egg 19 incubation. Also, I reviewed water temperature records that 20 were provided in earlier reports back in mid 1980s for the 21 reservoir in front of the intake to both the powerhouse and 22 outlet as well as provisions data that was provided to me 23 through our own water temperature thermographs in the Lower 24 Bear River. 25 What I found was that during the early fall months, a CAPITOL REPORTERS (916) 923-5447 16853 1 time period when you would expect chinook salmon to migrate 2 into the Bear River, water temperatures were within the 3 lethal range. In addition, the Bear River has a unique 4 problem unlike many other Central Valley rivers and streams 5 with large reservoirs, in that the Camp Far West Reservoir 6 really doesn't store a large amount of the very severe 7 flood flows. So it results in a situation that salmon or 8 steelhead for this matter, if they did ever appear, spawned 9 in the Lower Bear River where there is a very high 10 probability that the eggs would be scoured from the river 11 gravels. 12 So, I think it is a combination of all of those factors 13 as well as some others that reduces the probability that we 14 will ever have successful salmonid production in the Lower 15 Bear River. 16 MR. NOMELLINI: Are there any rainbow trout in the 17 Lower Bear River? 18 MR. VOGEL: Not that I am aware of. 19 MR. NOMELLINI: In this statement I believe it 20 indicated there were spring-run salmon that were found to -- 21 right in Page 3-10, right under Bear River. The first 22 paragraph says: 23 Spring-run chinook salmon occur on rare 24 occasion in the Lower Bear River, but their 25 presence may be largely a result of a strain CAPITOL REPORTERS (916) 923-5447 16854 1 of Feather River hatchery fish. (Reading.) 2 MR. VOGEL: Yes. 3 MR. NOMELLINI: Are you saying that the spring-run 4 chinook salmon do not survey? 5 MR. VOGEL: I didn't write that statement, but it would 6 be almost impossible for spring-run salmon to have 7 successful production in the Lower Bear River. 8 MR. NOMELLINI: So you are saying it is difficult for 9 them to reproduce in that environment. Is that what you are 10 saying? 11 MR. VOGEL: Yes. 12 MR. NOMELLINI: They could in some years reproduce 13 successfully? 14 MR. VOGEL: I doubt it very much because the spring-run 15 salmon has a spawning cycle that is one to two months 16 earlier than fall-run. So the adverse high water 17 temperature conditions would be even more severe because 18 spring-run generally spawn in, say, August-September time 19 period. 20 MR. NOMELLINI: Would you expect that steelhead and 21 fall-run chinook salmon would not go into the Bear River? 22 MR. VOGEL: No. Actually, I would expect that some of 23 those fish could stray into the Bear River if some high 24 flows were provided in the early fall, such a very wet fall 25 period. It is a natural occurrence. I have seen it in many CAPITOL REPORTERS (916) 923-5447 16855 1 Central Valley rivers and streams. 2 I don't believe that these would be of the natal origin 3 of fish strain from the Feather River. 4 MR. NOMELLINI: With regard to the releases of water 5 under this agreement, are you concerned that such releases 6 could attract salmonids to the Lower Bear River that would 7 not otherwise go there? 8 MR. VOGEL: I don't have a definitive answer for that 9 because I didn't do analysis of 37 cfs as specific flow 10 level. Based on my surveys of the river and the fact that I 11 would expect that water temperature to be quite warm during 12 the months that are envisioned for the settlement agreement, 13 that fish would probably would not be attracted to the 14 flow. In fact, the documents I read here, it was 15 specifically designed not to attract fish into the river 16 MR. NOMELLINI: Do you know who did the analysis? 17 MR. VOGEL: No, I don't. 18 MR. NOMELLINI: Anybody else do the analysis? 19 MR. SHAUL: Jones & Stokes did that. 20 MR. NOMELLINI: In terms of comparison of the base flow 21 and the additional flow, what time that you would expect 22 these releases to be made under the settlement agreement, do 23 you know what those relative numbers are? 24 MR. SHAUL: What additional flow? 25 MR. NOMELLINI: The addition flow would be as much as CAPITOL REPORTERS (916) 923-5447 16856 1 37 cubic feet per second? 2 MR. SHAUL: Yes. 3 MR. NOMELLINI: What would the flow be without the 4 additional flow? 5 MR. SHAUL: I think that is indicated 10 cubic feet per 6 second. 7 MR. NOMELLINI: You are going to increase the flow by 8 300 percent or thereabouts? 9 MR. SHAUL: That's correct. 10 MR. NOMELLINI: Would that, in your opinion, increase 11 the chance that there would be salmonids coming up into that 12 Lower Bear River area? 13 MR. SHAUL: Given the timing of the flow and that these 14 flows are going to be occurring in critically dry and dry 15 years and they are not released substantially different 16 than the flows you might see in a wet year and also the time 17 of the year, July, August, September, they would still be 18 very warm by the time the flow gets to the mouth. I 19 wouldn't expect to see that those flows at that time of year 20 would attract additional salmonids to the Bear River. 21 MR. NOMELLINI: Do you know how that flow would compare 22 with flows in other streams or rivers, such as the Feather, 23 during the same types of condition? 24 MR. SHAUL: During -- that is given in the document 25 also. I am going to recall off the top of my head, but I CAPITOL REPORTERS (916) 923-5447 16857 1 know it is several thousand cubic feet per second in the 2 Feather River. So you are looking at flow of one percent, I 3 guess. 4 MR. NOMELLINI: If I read it correctly, the U.S. Fish 5 and Wildlife Service recommends supplementing flows with 6 water acquired from willing sellers or negotiated 7 agreements to improve conditions for all lifestages. 8 Is that correct, that U.S. Fish and Wildlife service 9 are recommending that greater flows be put into the Lower 10 Bear River area? 11 MR. SHAUL: I think that is part of the anadromous fish 12 restoration program, and that is one component. But I don't 13 think they have done an evaluation of what flows are needed 14 in the Lower Bear River. That is just one aspect that could 15 be addressed, if you did put more flow, but it would take 16 other changes than just more flow in the Bear River. 17 MR. NOMELLINI: What other changes would it take, in 18 your opinion? 19 MR. SHAUL: In my opinion, it would take some look at 20 the habitat conditions in the Bear River and what the 21 habitat needs of chinook salmon are. As far as I know, that 22 has not been done. 23 MR. NOMELLINI: What would that be? Gravel 24 restoration? 25 MR. SHAUL: Spawning gravel, plus probably also looking CAPITOL REPORTERS (916) 923-5447 16858 1 at riparian areas and possibly looking at redesigning the 2 channel so that you can remove the flood flows from the 3 main, the high flows from the main channel so it no longer 4 scours, so you would have secondary channels. 5 I don't know Bear River that well, so I would say it 6 would take some in-depth study to determine what you would 7 need to provide adequate or habitat that would sustain 8 salmonids in the Bear River. 9 MR. NOMELLINI: Do you agree? 10 MR. VOGEL: No, not necessarily. I looked at that, in 11 fact, specifically. Brad Arnold and myself met on two 12 occasions with U.S. Fish and Wildlife Service employees on 13 that very topic. We pointed out all at serious, naturally 14 occurring limiting factors for salmon production. 15 But, hypothetically, if even you provided large 16 quantities of gravel and clumps to gravel -- by the way, the 17 riparian vegetable is excellent there; it is like a jungle 18 on either side of the river channel. But still, 19 nevertheless, you have a very severe problem with water 20 temperatures that would limit production. 21 MR. NOMELLINI: Last question. Mr. Pacheco, if DWR had 22 to backstop this particular agreement, where would DWR get 23 the water? 24 MR. PACHECO: It would probably come out of project 25 supplies, Oroville Reservoir although -- CAPITOL REPORTERS (916) 923-5447 16859 1 MR. NOMELLINI: Do you know what the yield of Oroville 2 Reservoir is in the seventh year of the '28 and '34 3 hydrology? 4 MR. PACHECO: Not off the top of my head. 5 MR. NOMELLINI: Do you have any idea what the magnitude 6 is? 7 MR. PACHECO: No. 8 MR. NOMELLINI: If I told you it was 220,000 acre-feet, 9 do you think that is wrong? 10 MR. PACHECO: I was just about to finish. As far as 11 besides Oroville supplies, any other supplies the Department 12 might acquire similar to the water bank conditions of the 13 early '90s. The agreement doesn't preclude us from going 14 out and securing other supplies. 15 MR. NOMELLINI: Thank you, Mr. Chairman. That is all 16 I have. 17 Thank you, panel. 18 C.O. BROWN: Thank you, Mr. Nomellini. 19 Mr. O'Brien, Mr. Tully, do you have redirect? 20 MR. O'BRIEN: Just a little bit. 21 C.O. BROWN: Would you like to take a break or -- 22 MR. O'BRIEN: It will probably take me about 15 or 20 23 minutes to go through. So, it's up to you. 24 C.O. BROWN: Let's take our afternoon break now. We 25 will meet back here in about 12 minutes. CAPITOL REPORTERS (916) 923-5447 16860 1 (Break taken.) 2 C.O. BROWN: Come back to order. 3 Mr. O'Brien, you are up. 4 ---oOo--- 5 REDIRECT EXAMINATION OF SOUTH SUTTER WATER DISTRICT & 6 CAMP FAR WEST IRRIGATION DISTRICT & 7 DEPARTMENT OF WATER RESOURCES 8 BY MR. O'BRIEN 9 MR. O'BRIEN: You are up. I would like to start with a 10 couple of housekeeping details. We have a couple of 11 witnesses who now have testified and who have submitted 12 resumes. 13 Mr. Vogel, is South Sutter Water District Exhibit 13 a 14 correct copy of your resume? 15 MR. VOGEL: Yes, it is. 16 MR. O'BRIEN: Mr. Shaul, is Exhibit 15 a correct copy 17 of your resume? 18 MR. SHAUL: Yes, it is. 19 MR. O'BRIEN: Mr. Van Camp, this morning Mr. Birmingham 20 asked you some questions regarding Westlands Exhibit 132, 21 which is an analysis prepared by Mr. Wilcox. 22 Do you recall that questioning? 23 MR. VAN CAMP: Yes, I do. 24 MR. O'BRIEN: Before today's hearing, I asked you and 25 Mr. Hickmann to prepare some testimony in response to Mr. CAPITOL REPORTERS (916) 923-5447 16861 1 Wilcox's analysis; is that correct? 2 MR. VAN CAMP: Yes, you did. 3 MR. O'BRIEN: Is that testimony and some related 4 exhibits before you as South Sutter Water District Exhibits 5 16, 17 and 18? 6 MR. VAN CAMP: That's correct. 7 MR. O'BRIEN: We labelled this rebuttal testimony, but 8 we are going to simply use it in redirect, if that is 9 acceptable to the Board, and it is in response to the 10 cross-examination. 11 C.O. BROWN: That is fine. Very good. 12 MR. O'BRIEN: Mr. Van Camp, could you just briefly 13 summarize Exhibits 16, 17 and 18. 14 MR. VAN CAMP: Yes. In response to receiving the 15 analysis done by State Board staff, we attempted to 16 understand it and provide our insights to it. It is our 17 belief that the numbers presented in the State Board staff 18 are an overestimate of the volume of water generated by 19 curtailment or bypass of water to South Sutter Water 20 District and Camp Far West water rights pursuant to proposed 21 flow Alternative 3. 22 It is our opinion that overestimate is because of 23 overestimating inflow to the reservoir and the method of 24 using total water right entitlement. 25 First of all, in regard to the inflow issue, we took CAPITOL REPORTERS (916) 923-5447 16862 1 the years of record that we have at the reservoir, which is 2 1968 and stopped at 1994, to compare with the ending period 3 of State Board staff analysis and generated the inflow to 4 Camp Far West Reservoir. So that is using storage outflow 5 and estimated evaporation data, actually evaporation data is 6 for Folsom Reservoir and applied to surface area at Camp Far 7 West. 8 In comparing those differences, we generated Exhibit 9 17, which shows the difference in the inflow to Camp Far 10 West Reservoir for the period 1968 to 1994. Provides the 11 various years types. Provides a shading in those months 12 when the inflow is overestimated by State Board staff or the 13 tools used by State Board staff, excuse me. 14 The tool used, my understanding and indicated in the 15 memo prepared by State Board staff, is the HEC-4 Model for 16 that system. As you can see, our conclusion in review of 17 that, although on an average annual basis the inflows 18 compare quite well. It generally overestimates the inflow 19 to Camp Far West Reservoir during the May through August 20 period. 21 MR. O'BRIEN: When you say it overestimates, you are 22 talking about Mr. Wilcox's analysis? 23 MR. VAN CAMP: Yes, the modeling work that he used for 24 his. 25 That is one reason we believe it overestimates the CAPITOL REPORTERS (916) 923-5447 16863 1 quantity generated from curtailment of South Sutter Water 2 rights. 3 The second reason I identified is one of the 4 assumptions in this analysis technique did not make as big a 5 difference in quantities as the inflow issue, but it is my 6 understanding from review of the document that the volume of 7 water made available is the difference between the water 8 right entitlement versus the water that would be available 9 for appropriation under proposed flow Alternative 3. 10 In that case, in the State Board staff analysis it is 11 690.3 cfs. So if more than 690.3 cfs of inflow was 12 available to the reservoir and there was no water right 13 entitlement, say all water rights were cut off under 14 proposed Alternative 3, then it was assumed for purpose of 15 this analysis that 690.3 was made available to the Delta 16 under proposed flow Alternative 3. 17 What we have done is made a correction to that by 18 looking at the actual diversions that occurred during those 19 months to see what difference it did make. It was small, 20 but it did make a difference. 21 A side point is two of the applications used have been 22 cancelled. They're for small tributaries that flow either 23 tributary to the Feather or Sacramento or would have absent 24 construction of project facilities in that area. 25 So what we attempted to do, and to summarize, is CAPITOL REPORTERS (916) 923-5447 16864 1 Exhibit 18 is an attempt to summarize the staff's Table 3, 2 which kind of puts it all in a nutshell. And on our Exhibit 3 18, Table A is simply taking State Board staff analysis and 4 looking at it for the 1968 to '94 period, because that is 5 the period we have data. So we are trying to look at a -- 6 compare the same hydrologic periods. 7 Table B of Exhibit 18 is that we have used the 8 historical inflow as we have calculated it, using actual 9 data, and we have eliminated the diversion rate under those 10 two filings that I mentioned that were canceled. But, in 11 fact, as I indicate, we don't believe that was an issue in 12 this case. 13 Then under Table C, we proceeded to review the water 14 that was actually diverted versus the water that was under 15 the water right entitlements. So rather than comparing what 16 was authorized to be appropriated to the water right 17 entitlement, we compared it to what was actually diverted 18 to come up with the quantity of water that would potentially 19 be generated or bypassed through the facilities for the 20 Delta or under proposed Alternative 3. And that is what is 21 depicted in Table C. You can see slight changes between 22 Table B and Table C. 23 MR. O'BRIEN: Focusing on Table C, under the column for 24 critical year, I just want to make sure the record is clear 25 on this. The number 3 at the end of that column signifies CAPITOL REPORTERS (916) 923-5447 16865 1 what? 2 MR. VAN CAMP: That is 3,000 acre-feet. It's up in the 3 heading under South Sutter-Camp Far West obligation (TIF). 4 MR. O'BRIEN: This estimates that under Alternative 3, 5 based on the methodology you described, that South Sutter's 6 bypass requirement in a critical year, based on these 7 hydrologic years, would be 3,000 acre-feet per year? 8 MR. VAN CAMP: Yes, on average. 9 MR. O'BRIEN: That compares to the 4,400 foot number 10 that South Sutter would have to give up pursuant to the 11 terms of the settlement agreement, correct? 12 MR. VAN CAMP: That's correct. 13 MR. O'BRIEN: And as to the dry year number, the seven, 14 I assume that would represent 7,000 acre feet which you 15 would expect South Sutter to have to contribute in a dry 16 year under Alternative 3, correct? 17 MR. VAN CAMP: That's correct. 18 MR. O'BRIEN: That, again, compares to the 4,400 19 acre-feet obligation under the settlement? 20 MR. VAN CAMP: That is correct. 21 MR. O'BRIEN: This analysis was done based on the 22 assumption that Alternative 3, I guess, in effect would be 23 selected by the State Board at least for comparison 24 purposes. Do you know what the obligation of South Sutter 25 Water District would be to meet the Bay-Delta flow CAPITOL REPORTERS (916) 923-5447 16866 1 objectives if Alternative 2 were selected ultimately by the 2 State Board? 3 MR. VAN CAMP: My understanding, under flow Alternative 4 2 the state and federal projects would assume the 5 responsibility and, therefore, South Sutter would not be 6 bypassing any additional flow than it may already do and, 7 therefore, the settlement agreement would not appear to be a 8 good business arrangement by South Sutter Water District. 9 MR. O'BRIEN: And South Sutter Water District is 10 essentially taking that risk. Is that fair to say? 11 MR. VAN CAMP: That is my understanding. 12 MEMBER FORSTER: Can I ask a question -- Mr. O'Brien a 13 question? 14 MR. O'BRIEN: Yes. 15 MEMBER FORSTER: I don't know if I missed it in reading 16 the exhibits. How do you measure these numbers? Take Table 17 C where it says all years, '68 to '94, 10,000 acre-feet. So 18 my question is: How do you do these measurements? 19 MR. VAN CAMP: We attempted to use the same process as 20 your staff has, and that is by looking at the years that 21 proposed flow Alternative 3 would curtail water rights and 22 taking what curtailment level occurred in the authorized 23 direct diversion rate under those rights and looking back at 24 the historical diversion to come up with the volume that 25 would not be authorized for diversion to come up with these CAPITOL REPORTERS (916) 923-5447 16867 1 quantities. 2 MR. O'BRIEN: Does that answer your question? 3 Finally, Mr. Van Camp, Mr. Birmingham also asked you 4 some questions about the numbers that appear in your Table C 5 in Exhibit 18 for above normal and wet years; that is the 6 11,000 and 26,000 numbers. 7 Do you recall that? 8 MR. VAN CAMP: Yes. 9 MR. O'BRIEN: My question to you is: Do we have any 10 idea at this point whether that 26,000 acre-foot number, for 11 example, in above-normal year, if it were required to be 12 bypassed by South Sutter Water District, whether that water 13 could actually be utilized by the State Water Project in 14 above-normal year? 15 MR. VAN CAMP: I have done no specific analysis to 16 understand whether that is a usable quantity, for one, by 17 the projects. My suspicion in above-normal years, there is 18 a lot of water available to the system. One would have to 19 evaluate the various control requirements in the Delta, 20 including, also, I guess, is upstream storage levels as to 21 what it means at that time in that specific year, and I have 22 not done that. 23 MR. O'BRIEN: I assume the same would be true for the 24 wet year number, 11,000? 25 MR. VAN CAMP: That is correct. CAPITOL REPORTERS (916) 923-5447 16868 1 MR. O'BRIEN: Thank you. 2 I have no further. 3 C.O. BROWN: Ms. Crothers. 4 MS. CROTHERS: I just have a few questions. 5 Mr. Pacheco, in regards to some of the questions as to 6 impacts, are the implications of the Bureau, to the Bureau 7 of Reclamation, does the Department of Water Resources 8 through this agreement intend that the Bureau will not be 9 adversely impacted by our settlement agreement? 10 MR. PACHECO: That is correct. In our letter 11 agreement, Exhibit 44, I think we specifically say that we 12 intend not to adversely affect the Bureau and its 13 contractors. 14 MS. CROTHERS: Does the selection of the specific 15 alternatives made by the Board in the upcoming Phase VIII, 16 would that make a difference in this assurance that will not 17 have impact to the Bureau? 18 MR. PACHECO: No, it would not. It wouldn't affect our 19 obligation under the agreement. 20 MS. CROTHERS: Is this settlement agreement similar to 21 other settlement agreements that the Department has agreed 22 to be a backstop, as to obligations for water -- this is 23 more complicated. 24 Is our Bear River Agreement similar to other settlement 25 agreements with regards to the backstop obligation? CAPITOL REPORTERS (916) 923-5447 16869 1 MR. PACHECO: Correct. I think the San Joaquin River 2 Agreement and the Mokelumne Agreement, there are portions of 3 the obligations that have not been met by water under the 4 contract or parties' contributions, the projects do make up 5 the difference of the obligation. The projects being SWP 6 and CVP. 7 MS. CROTHERS: In the Bear River Agreement, this 8 agreement, does it require that the Department of Water 9 Resources contribute the hundred percent of the backstop? 10 MR. PACHECO: Correct. The Department is the only 11 party signing this South Sutter and Camp Far West. The 12 Bureau is not obligated for the backstop. 13 MS. CROTHERS: This question in regards to the 14 fisheries impacts analysis that we have in the initial 15 study. It was prepared as South Sutter Water District was 16 the lead agency in that study. 17 Mr. Shaul, can you explain how the fishery impact 18 analysis was done for determining impact from the Bear River 19 Agreement during which we are going to have water releases 20 from the Bear River system in the months specified in the 21 agreement and also the potential impacts from the export of 22 that water? 23 MR. SHAUL: Yes. Jones & Stokes was the primary 24 preparer of the initial study. And when we looked at 25 impacts, especially regarding the exports that Heidi Rooks CAPITOL REPORTERS (916) 923-5447 16870 1 discussed, the study that was used assumed a relationship 2 between exports and entrainment of fish. And that is a 3 really strong assumption. The purpose of using that 4 assumption was to give us an indicator of which months were 5 most sensitive relative to entrainment of fish. 6 I should point out that there is not a very strong 7 relationship between salvage of fish at export facilities 8 and the pumping rate, and that there is not a statistically 9 significant relationship between those two. But it does 10 give you an indication of when the fish are present in the 11 Delta, and that is part of the information we used to do the 12 assessments. 13 So that when we look at it and we used -- June was 14 really the worst-case month, it indicated that June is 15 probably the month you should stay away from, when you look 16 at table. And then in addition we used the data on one of 17 fish present in the Delta. That data is presented in Figure 18 1, which gives an indication of Exhibit 4, which gives an 19 indication of when fish are present in the Delta. And you 20 will see that by July that the species that were discussed 21 in the assessment are much reduced compared to June. 22 So we used that relationship between salvage and export 23 volume as kind of an indicator of what the sensitive months 24 were. But the total assessment is really based on more 25 information than that, on the whole distribution and CAPITOL REPORTERS (916) 923-5447 16871 1 abundance of species in the Delta. 2 MS. CROTHERS: When you look at Figure 1, Page 3-18 of 3 the initial study, that figure does actually break down this 4 salvage density month by month, does it not? 5 MR. SHAUL: Yes, it does. 6 MS. CROTHERS: So in this table it is comparing the dry 7 years and critical years salvage for the months that we 8 looked at; is that right? 9 MR. SHAUL: That's correct. 10 MS. CROTHERS: So it's your understanding that we 11 decided to avoid the fish impacts in the month of June by no 12 longer including that in a month where water would be 13 released or water would be exported out of the Delta? 14 MR. SHAUL: It is definitely a sensitive month. It is 15 a good month to avoid, if you can, increasing exports even 16 if it would not have a significant adverse impact because 17 presence of especially Delta smelt could be high and 18 injurious because likely high in June in a lot of years. If 19 you can avoid that month then you avoid a lot of problems to 20 figure out ways to mitigate. 21 MS. CROTHERS: Thank you. 22 C.O. BROWN: That completes your redirect? 23 MR. O'BRIEN: Yes. 24 C.O. BROWN: Let's see a show of hands of who would 25 like to recross? CAPITOL REPORTERS (916) 923-5447 16872 1 Mr. Birmingham, Mr. Nomellini, Mr. Jackson. 2 Mr. Birmingham you are up. 3 ---oOo--- 4 RE-CROSS EXAMINATION OF SOUTH SUTTER WATER DISTRICT & 5 CAMP FAR WEST IRRIGATION DISTRICT & 6 DEPARTMENT OF WATER RESOURCES 7 BY WESTLANDS WATER DISTRICT 8 BY MR. BIRMINGHAM 9 MR. BIRMINGHAM: Mr. Van Camp, I have a few questions 10 for you about South Sutter Water District Exhibits 16, 17 11 and 18. I believe you testified in response to question by 12 Mr. O'Brien that you prepared South Sutter Water District 13 Exhibits 16, 17 and 18 in response to the analysis performed 14 by Mr. Wilcox, which has been marked for identification as 15 Westlands Water District Exhibit 132? 16 MR. VAN CAMP: Yes, that is correct. 17 MR. BIRMINGHAM: From your answer, am I correct that 18 you have analyzed Westlands Water District Exhibit 132 for 19 identification? 20 MR. VAN CAMP: I have looked at it and tried to 21 reconstruct it to the best of my ability, but have not had, 22 in fact, not had access to the modeling run referred to 23 relative to the inflow to Bear River, but the inflow numbers 24 are provided in the tables attached. 25 MR. BIRMINGHAM: I would like to explore a little bit CAPITOL REPORTERS (916) 923-5447 16873 1 your assessment of Mr. Wilcox's analysis. 2 You would not characterize Mr. Wilcox's analysis as 3 being wrong, would you? 4 MR. VAN CAMP: From a quantification standpoint, yes. 5 From a methodology standpoint, no. 6 MR. BIRMINGHAM: Let's talk about the methodology 7 standpoint for a few minutes. 8 It is your understanding that in order to prepare Table 9 3 in Westlands Water District Exhibit 132, Mr. Wilcox 10 compared -- let me restate the question. 11 In order to calculate the numbers reflected in Table 3 12 in Westlands Water District Exhibit 132, Mr. Wilcox compared 13 the difference between Camp Far West Reservoir inflow and 14 the remaining permitted direct diversion; is that correct? 15 MR. VAN CAMP: That's correct. 16 MR. BIRMINGHAM: Now, the permitted direct diversion, 17 what is meant by that term? 18 MR. VAN CAMP: Are you -- can you give me specific 19 reference to the State Board staff analysis, where you are 20 speaking to, so I can look at it? 21 MR. BIRMINGHAM: Well, yes, I can give that to you. 22 At the top of Page 2 of the attachments to Westlands 23 Water District Exhibit 132 for identification, there is a 24 reference to remaining permitted direct diversion. 25 What is your understanding of that term, "remaining CAPITOL REPORTERS (916) 923-5447 16874 1 permitted direct diversion"? 2 MR. VAN CAMP: My understanding of what was done was 3 the rate of diversion authorized under all the water rights 4 were totaled. At times when proposed flow Alternative 3 5 cuts off certain water rights, you move down and reduce the 6 quantity of water authorized for direct diversion. That 7 quantity remaining to be authorized is still authorized for 8 diversion under proposed flow Alternative 3. 9 MR. BIRMINGHAM: That leads me to a question that I 10 wanted to ask because of your response to a question asked 11 of you by Board Member Forster. She asked how you measured 12 the numbers in the tables on Exhibit 18, South Sutter Water 13 District Exhibit 18, and you made reference to curtailing 14 water rights. 15 It isn't the water right that is curtailed; it is the 16 diversion of water. Isn't that correct? 17 MR. VAN CAMP: Well, in this case, you need the water 18 right to make the diversion. 19 MR. BIRMINGHAM: It is actually the difference between 20 -- to calculate your numbers on modified Table 3, which is 21 South Sutter Water District Exhibit 18, you compared 22 diversions which would have been eliminated if Term 91 had 23 been imposed historically? 24 MR. VAN CAMP: You're correct. The difference between 25 the tables or one difference in the tables is the fact that CAPITOL REPORTERS (916) 923-5447 16875 1 I understand what took place with remaining water was 2 subtracted from the total entitlement, which, in my opinion, 3 makes the assumption that the total water right entitlement 4 was being diverted. And, therefore, if inflow is in excess 5 of that entitlement and, therefore, that was available, 6 water curtailed made available to the Delta. We simply the 7 took the methodology another step and compared it to actual 8 diversion. 9 MR. BIRMINGHAM: Now, your testimony, South Sutter 10 Water District Exhibit 16, concludes, as can be seen from 11 Exhibit 18, the water potentially made available under 12 SWRCB's flow Alternative 3 is significantly less than 13 identified in the State Water Resources Control Board's 14 March 29, 2000 transmittal for the same time period. 15 Do you see that statement? 16 MR. VAN CAMP: Yes. 17 MR. BIRMINGHAM: When you say "significantly less," 18 what do you mean by that, Mr. Van Camp? 19 MR. VAN CAMP: In my opinion, those numbers, and we've 20 focused on the dry and critical years, but, in addition, for 21 all year types the average under Table A shows 20,000 22 acre-feet. And Table C shows 10,000 acre-feet reduction of 23 50 percent. In my opinion, that was sufficient to identify 24 it as significantly less number. 25 MR. BIRMINGHAM: Let's compare Table C on South Sutter CAPITOL REPORTERS (916) 923-5447 16876 1 Water District Exhibit 18 to Table 3 which is attached to 2 Westlands Water District Exhibit 132. Do you have those two 3 tables in front of you? 4 MR. VAN CAMP: Yes. Table C of mine. 5 MR. BIRMINGHAM: Yes. 6 MR. VAN CAMP: And Table 3 of State Board staff memo. 7 MR. BIRMINGHAM: Let's look at A wet year type. 8 MR. VAN CAMP: Can I raise a concern? 9 MR. BIRMINGHAM: Please do, Mr. Van Camp. 10 MR. VAN CAMP: You're looking at two different 11 hydrologic periods here. And that is why we generated Table 12 A. So, I am concerned right off the bat when you try to 13 compare Table 3, the memo to Table C. 14 MR. BIRMINGHAM: Well, looking at the statement on Page 15 3 of South Sutter Water District Exhibit 16, when you said 16 as can be seen from Exhibit 18, the water potentially 17 available under SWRCB's flow Alternative 3 is significantly 18 less than identified in the March 29, 2000 transmittal for 19 the same period, you were comparing your Table C with Table 20 3; isn't that correct? 21 MR. VAN CAMP: I believe the comparison that I made was 22 to provide consistency. I was reviewing consistent 23 hydrologic periods. So that may have been misstated. It 24 should have been a comparable hydrologic period as shown in 25 A, which is a comparable analysis as Mr. Wilcox to Table C. CAPITOL REPORTERS (916) 923-5447 16877 1 MR. BIRMINGHAM: Let's look at your Table A. For a wet 2 year type, so we are comparing apple with apples. For a wet 3 year type you show that if flow Alternative 3 were adopted 4 by the State Water Resources Control Board that the amount 5 of water that would be bypassed by South Sutter and Camp Far 6 West is 15,000 acre-feet; is that correct? 7 MR. VAN CAMP: Yes. 8 MR. BIRMINGHAM: Mr. Wilcox calculated that number to 9 be 11,000 acre-feet; is that correct? 10 MR. VAN CAMP: That's correct. 11 MR. BIRMINGHAM: Would you say that, using your 12 language from the last sentence on Page 3 of Exhibit 16, 13 that 15,000 cfs is significantly less than 11,000 cfs? 14 MR. VAN CAMP: I think you are mixing terms, cfs. 15 MR. BIRMINGHAM: Acre-feet. I beg your pardon. 16 Let me ask the question again. 17 Using your term from Page 3 of South Sutter Water 18 District Exhibit 16, where you say significantly less, would 19 you say that 15,000 acre-feet is significantly less than 20 11,000 acre-feet? 21 MR. VAN CAMP: Mr. Birmingham, I would not compare 22 those two tables to make that comparison. They are 23 different hydrologic periods. For the purpose of the 24 settlement we focused on the dry and critical years. 25 MR. BIRMINGHAM: Mr. Van Camp, a few moments ago you CAPITOL REPORTERS (916) 923-5447 16878 1 admonished me that if we want to compare apples to apples 2 that we should compare your Table A with Table 3. 3 Did I misunderstand you? 4 MR. VAN CAMP: Yes. I said Table A with Table C, I 5 believe, to have the comparable hydrologic periods. 6 MR. BIRMINGHAM: All right. 7 MR. VAN CAMP: Excuse me if I misspoke. 8 MR. BIRMINGHAM: I may have misunderstood, so there is 9 no need for you to apologize. 10 MR. BIRMINGHAM: Let's go back to your Table C. In 11 above-normal year you have calculated that South Sutter 12 Water District and Camp Far West Irrigation District would 13 have to bypass 26,000 acre-feet if the State Water Resources 14 Control Board were to adopt Alternative 3; is that correct? 15 MR. VAN CAMP: Yes. 16 MR. BIRMINGHAM: Now, let's look at Mr. Wilcox's 17 calculation for above-normal year in Westlands Water 18 District Exhibit 132. He calculated that it would be 19 necessary for Camp Far West and South Sutter to bypass 20 20,000 acre-feet; is that correct? 21 MR. VAN CAMP: That is what it shows. 22 MR. BIRMINGHAM: You would agree that, in fact, Mr. 23 Wilcox's calculation is less than your calculation for the 24 same year type? 25 MR. VAN CAMP: Using a different hydrologic period, CAPITOL REPORTERS (916) 923-5447 16879 1 yes. 2 MR. BIRMINGHAM: Let's use the same hydrologic period 3 and compare your Table A with your Table C. Looking at an 4 above-normal year in Table A, it is 25,000 acre-feet; is 5 that correct? 6 MR. VAN CAMP: Correct. 7 MR. BIRMINGHAM: And Table C is 26,000 acre-feet; is 8 that correct? 9 MR. VAN CAMP: Correct. 10 MR. BIRMINGHAM: You would agree with me, Mr. Van Camp, 11 that 25,000 acre-feet is not significantly more than 26,000 12 acre-feet? 13 MR. VAN CAMP: Yes, Mr. Birmingham, I would agree. In 14 fact, I would say it is less. 15 MR. BIRMINGHAM: So, I would like to go back to the 16 statement that you made in the last page of Exhibit 18, 17 South Sutter Water District Exhibit 16. As can be seen from 18 18, the water potentially made available under SWRCB's flow 19 Alternative 3 significantly less than identified in SWRCB's 20 March 29, 2000 transmittal for the same period. 21 You would modify that sentence today, wouldn't you? 22 MR. VAN CAMP: Well, you have focused on a single year 23 type. I am -- in looking at Table A compared to Table C, 24 looking at all year types, I would still say that there is 25 reduction, a significant difference, in those numbers. CAPITOL REPORTERS (916) 923-5447 16880 1 MR. BIRMINGHAM: You are basing that on a comparison of 2 averages; is that correct? 3 MR. VAN CAMP: Yes. 4 MR. BIRMINGHAM: Now, sometimes when we try and 5 compare, use averages to make new analysis, the conclusions 6 can be a little bit skewed. You would agree with that, 7 wouldn't you, Mr. Van Camp? 8 MR. VAN CAMP: At times, yes. 9 MR. BIRMINGHAM: For instance, if I'm standing with one 10 foot in boiling water and my other foot is in ice, then the 11 average temperature of my two foot feet is, what, 50 degrees 12 centigrade? 13 MR. VAN CAMP: Without doing the math, you sound close. 14 MR. BIRMINGHAM: In fact, I would be in serious 15 trouble in that circumstance? 16 MR. VAN CAMP: Yes, sir. 17 MR. BIRMINGHAM: The settlement agreement that you've 18 proposed would release water in critical and dry years; is 19 that correct? 20 MR. VAN CAMP: Yes. 21 MR. BIRMINGHAM: In wet years under the settlement 22 agreement you've proposed there would be no water bypassed 23 or released? 24 MR. VAN CAMP: Pursuant to the settlement agreement 25 there would already be water flowing down the river. CAPITOL REPORTERS (916) 923-5447 16881 1 MR. BIRMINGHAM: Again, let's go back and make a 2 comparison that appears to have been made in your analysis 3 as reflected in the last sentence of Exhibit 16 where you 4 have compared Exhibit 18 with the Board's March 29th, 2000 5 transmittal letter. 6 In a wet year the number that you calculated in Table C 7 and the number Mr. Wilcox calculated is precisely the same; 8 isn't that correct? 9 MR. VAN CAMP: Okay. Now you are comparing Table 3 10 with Table C which is, so we have this on the record, 11 different hydrologic periods, different inflows. But, yes, 12 the number is the same. 13 MR. BIRMINGHAM: So with respect to the analysis for 14 wet years, you would agree with me, Mr. Van Camp, that from 15 a quantitative standpoint the analysis that was conducted by 16 Mr. Wilcox for wet years was accurate? 17 MR. VAN CAMP: By chance, yes. 18 MR. BIRMINGHAM: Let's look above-normal years. In an 19 above-normal year, Mr. Van Camp, how much water will be 20 released under the settlement agreement between DWR and Camp 21 Far West and South Sutter Water District? 22 MR. VAN CAMP: I believe we just described that as no 23 additional water would be required pursuant to the 24 settlement agreement in above-normal years. Bypass only 25 occurs in critical and dry years. CAPITOL REPORTERS (916) 923-5447 16882 1 MR. BIRMINGHAM: Let's look at the calculations that 2 you have made in Table C on Exhibit 18 with Mr. Wilcox's 3 calculation in Table 3, in Westlands Water District Exhibit 4 132, for and above-normal year. You calculated that in an 5 above-normal year when Camp Far West and South Sutter would 6 not be contributing any water in the settlement agreement, 7 if flow Alternative 3 were adopted, Camp Far West and South 8 Sutter Water District would have to release 26,000 9 acre-feet? 10 MR. VAN CAMP: Correct. 11 MR. BIRMINGHAM: Mr. Wilcox calculated that in a 12 comparable water type year, above-normal year, if flow 13 Alternative 3 were adopted, the two agencies would have to 14 release or bypass, excuse me, 20,000 acre-feet? 15 MR. VAN CAMP: I see that, yes. 16 MR. BIRMINGHAM: Now, Mr. Wilcox underestimated the 17 amount of inflow that would have to be bypassed during the 18 May through August period for an above-normal year? 19 MR. VAN CAMP: In my opinion, yes. 20 MR. BIRMINGHAM: So if we focus on an above-normal 21 year, your statement on Page 2 of Exhibit 16 that the SWRCB 22 staff generally overestimates inflow during the May through 23 August period, that would be an inaccurate statement, 24 wouldn't it, Mr. Van Camp? 25 MR. VAN CAMP: The general statement came from the CAPITOL REPORTERS (916) 923-5447 16883 1 comparison of Table A to Table C and looking at all year 2 averages. Based on your view of looking at wet and 3 above-normal years, that statement is not a hundred percent 4 accurate. 5 But, again, we were looking at dry and critical years, 6 specifically. The testimony could have been more clear on 7 that. 8 MEMBER FORSTER: Mr. Birmingham, can I ask you a 9 question about your line of questioning? 10 If the settlement only has to deal with the dry and 11 critical years, help me understand why you are asking all 12 these other questions and what the pertinence is if it isn't 13 a part of the settlement. 14 MR. BIRMINGHAM: That is very good question. And the 15 concern that motivates these questions is that if under 16 flow, the alternative that might be adopted by this Board, 17 these two agencies would have to contribute in above-normal 18 years 20- to 26,000 acre-feet towards meeting the Bay-Delta 19 water quality objectives, and under the settlement agreement 20 that is an obligation that is going to be assumed by the 21 Department of Water Resources. Because the Department of 22 Water Resources and Bureau of Reclamation operate their 23 projects in a coordinated fashion in order to maintain the 24 Delta in a balanced condition, without a very detailed and 25 specific adjustment to the coordinated Operating Agreement CAPITOL REPORTERS (916) 923-5447 16884 1 the implementation of the settlement agreement could result 2 in impacts to the CVP and, therefore, its contractors. 3 MEMBER FORSTER: Okay, I understand. 4 MR. BIRMINGHAM: I presume that that was an objection 5 being made by Board Member Forster on grounds of relevance. 6 I hope I have been able to explain that. 7 C.O. BROWN: You have. 8 MEMBER FORSTER: Put us on track. 9 MR. BIRMINGHAM: I have no further questions. 10 C.O. BROWN: Thank you, Mr. Birmingham. 11 Mr. Jackson. 12 ---oOo--- 13 RECROSS-EXAMINATION OF SOUTH SUTTER WATER DISTRICT & 14 CAMP FAR WEST IRRIGATION DISTRICT & 15 DEPARTMENT OF WATER RESOURCES 16 BY REGIONAL COUNCIL OF RURAL COUNTIES 17 BY MR. JACKSON 18 MR. JACKSON: Mr. Shaul, I believe you testified that 19 one of the reasons that this agreement goes from July to the 20 end of September is because in your environmental document 21 it became clear that increasing the exports in the month of 22 June could have potential environmental effects on Delta 23 smelt? 24 MR. BIRMINGHAM: Objection. Goes beyond the scope of 25 redirect. CAPITOL REPORTERS (916) 923-5447 16885 1 C.0. BROWN: Mr. Jackson. 2 MR. JACKSON: I don't believe that it does. I believe 3 Mr. Shaul made the statement about the July -- about the 4 June time period and the reasons for the 600-and-some-odd 5 Delta smelt during redirect by Ms. Crothers. 6 C.O. BROWN: Mr. Birmingham. 7 MR. BIRMINGHAM: I don't believe that Ms. Crothers 8 asked Mr. Shaul any questions on redirect. I think her 9 questions were -- I withdraw my objection. 10 C.O. BROWN: Overruled. 11 MEMBER FORSTER: Could you repeat the question? 12 MR. JACKSON: Could you read it back? 13 (Record read as requested.) 14 MR. SHAUL: I can't speak to the agreement 15 specifically, but I can speak to the assessment. The 16 assessment, that's true. It is definitely indicated by the 17 assessment that Delta smelt presence in the Delta and 18 salvage at the export facilities is highest in June, and 19 that is a good month if you can avoid it to stay away from. 20 MR. JACKSON: Who were you working for on this 21 particular assignment? 22 MR. SHAUL: Who were we working for? 23 MR. JACKSON: Who does Jones & Stokes work for? 24 MR. SHAUL: Worked for MBK. 25 MR. JACKSON: You worked with DWR and their staff? CAPITOL REPORTERS (916) 923-5447 16886 1 MR. SHAUL: That's true. 2 MR. JACKSON: Now, I noticed in reviewing the initial 3 study and the negative declaration that you were examining 4 only the entrainment impacts during the month of June of 5 this settlement agreement, correct? 6 MR. SHAUL: Let me see if I understand your question. 7 Your question is in the environmental assessment the 8 assessment was the additional or potential additional export 9 that could occur if it occurred during the month of June. 10 That is correct. 11 MR. JACKSON: As a result of this 4,400 acre-feet of 12 water if it was all in the one month? 13 MR. SHAUL: I think it was in a worst-case example, a 14 little different than that. It was of the -- right, but it 15 was the total amount during that month. That's correct. 16 MR. JACKSON: Now, you're required in a review of 17 potential impacts from projects to take a look at cumulative 18 impacts as well, are you not? 19 MR. SHAUL: That's true. That is also in this 20 document. 21 MR. JACKSON: Actually, I don't find it in this 22 document that you ever considered the potential of the 23 increased export of the whole 300,000 acre-feet of water 24 that is the goal of DWR in putting together this series of 25 settlements. CAPITOL REPORTERS (916) 923-5447 16887 1 Did I miss that? 2 MR. SHAUL: No. I think that that is true. Because 3 the accumulative -- I am not a lawyer so. But my 4 understanding of accumulative is that you evaluate the 5 impacts of projects that are likely to occur. We don't know 6 how the 300,000 acre-feet is going to be diverted. We can't 7 very well describe the impact of that. So we don't -- I 8 don't personally have that information or did not have the 9 information for this evaluation. 10 MR. JACKSON: You were aware, however, that DWR is 11 considering a 300,000 acre-foot goal for increased flow on 12 the Sacramento River that could potentially all be exported, 13 are you not? 14 MR. SHAUL: Well, I don't know if I -- I don't know 15 exactly. I couldn't say that. I guess I am aware -- I know 16 for sure that is what they plan to read. I have read in the 17 same documents that you have read they have a goal of 18 300,000 in these type of agreements. How that water is to 19 be used or whether it is to be exported or go to outflow, I 20 couldn't say. 21 MR. JACKSON: If, in fact, the whole 300,000 acre-foot 22 goal was exported in the month of June, you would expect 23 that that 300,000 acre-feet would have more of impact on the 24 Delta smelt than the 4,400 acre-feet you studied, would you 25 not? CAPITOL REPORTERS (916) 923-5447 16888 1 MR. SHAUL: Okay. The question is whether or not if 2 you exported on top of existing exports 300,000 acre-feet 3 rather than 4,400 acre feet that we evaluated in the EA, 4 whether that would be a greater impact. You would expect a 5 greater impact from that than an export of 4,400. That is 6 true, yes. 7 MR. JACKSON: Since you determined that it would be 8 inappropriate to export the 4,400 acre-feet in June, it 9 would certainly follow that it would be inappropriate to 10 export the 300,000 acre-feet in the month of June? 11 MR. O'BRIEN: I think counsel is mischaracterizing the 12 testimony. I don't think he said it would be inappropriate. 13 He simply said there would be fisheries impacts. 14 C.O. BROWN: Mr. Jackson. 15 MR. JACKSON: Excuse me, I stand corrected. 16 That it would cause fisheries impacts, the larger 17 diversion? 18 MR. SHAUL: You would expect that a larger diversion 19 could cause fishery impacts. 20 MR. JACKSON: Let's move now to the month of June. 21 Assuming that all of the settlements that are designed to 22 satisfy this 300,000 acre-foot goal, does your document look 23 at the cumulative impacts of such diversion from the export 24 pumps during the month of July? 25 MR. SHAUL: I think the way our document handled the CAPITOL REPORTERS (916) 923-5447 16889 1 cumulative impacts of the exports is through the State Water 2 Project. State Water Project has to meet all the 3 requirements of State Board plus any requirement that 4 existing biological opinions relative to Delta smelt. Those 5 requirements have to be met regardless of whether there is a 6 settlement agreement or not. 7 MR. JACKSON: So is it your testimony that increased 8 exports caused by more water availability in the month of 9 July would not cause increased fisheries impacts at the 10 pumps? 11 MR. SHAUL: The question, let me restate it 12 MR. JACKSON: Please do. 13 MR. SHAUL: You are asking is that increased exports in 14 the month of July? 15 MR. JACKSON: In the neighborhood of 300,000 16 acre-feet. 17 MR. SHAUL: Would have -- 18 MR. JACKSON: Would it have -- 19 MR. SHAUL: Would it increase impacts? 20 MR. JACKSON: Yes. 21 MR. SHAUL: It is getting -- as you probably well 22 understand, the relationship, as I said earlier, the 23 relationship between the volume of exports and the number of 24 fish salvaged is not a strong relationship. It is a weak 25 relationship to begin with, and it is also not a CAPITOL REPORTERS (916) 923-5447 16890 1 statistically significant relationship, which means there is 2 a lot of variability when you look at the historic data, 3 that there is no clear -- that if pump 8,000 -- it is clear 4 if you don't pump any exports you won't entrain any fish. 5 MR. JACKSON: Right. 6 MR. SHAUL: Beyond that point it is not clear whether 7 you pump 6,000 cubic feet per second or 8,000 cubic feet per 8 second, whether you would get an increase in fish 9 entrainment. You need to look at other factors such as the 10 distribution and potential occurrence of the species in the 11 Delta. 12 MR. JACKSON: Did you do that for purposes of looking 13 at the cumulative impacts of the overall DWR program in 14 regard to these settlements in this particular initial study 15 and negative declaration? 16 MR. SHAUL: We did not look at 300,000 in this 17 particular document; that is correct. 18 MR. JACKSON: Thank you. 19 C.O. BROWN: Thank you, Mr. Jackson. 20 Mr. Nomellini. 21 ---oOo--- 22 // 23 // 24 // 25 // CAPITOL REPORTERS (916) 923-5447 16891 1 RECROSS-EXAMINATION OF SOUTH SUTTER WATER DISTRICT & 2 CAMP FAR WEST IRRIGATION DISTRICT & 3 DEPARTMENT OF WATER RESOURCES 4 BY CENTRAL DELTA PARTIES & SOUTH DELTA PARTIES 5 BY MR. NOMELLINI 6 MR. NOMELLINI: Mr. Pacheco, if the settlement 7 agreement goes through, is it possible that the Bureau of 8 Reclamation could pump or export from the Delta 55 percent 9 of the water that DWR purchases from South Sutter? 10 MR. PACHECO: There might be conditions where 55 11 percent of the water would be available to the Bureau. 12 MR. NOMELLINI: Is there a reason why the Bureau should 13 not pay its fair share of the cost of the water purchased 14 from South Sutter Water District? 15 MR. PACHECO: Is there a reason why they should not? 16 MR. NOMELLINI: Should not. 17 MR. PACHECO: They are not signatories to the 18 agreement, so they are not a party to the agreement. 19 MR. NOMELLINI: They are not a party. 20 MR. PACHECO: They do not enjoy the benefits nor are 21 they taking on the risk of the agreement. 22 MR. NOMELLINI: You just told me a minute ago, did you 23 not, that they under some circumstance would be able to pump 24 their share, 55 percent, of the water made available by the 25 agreement, did you not? CAPITOL REPORTERS (916) 923-5447 16892 1 MR. PACHECO: With or without the agreement that water 2 could be there, depending on the State Board's eventual 3 decision and order in Phase VIII. That is what we are 4 trying to provide, as far as no adverse impact to the Board, 5 with or without this agreement, trying to protect -- pardon 6 me, I don't mean the Board. Protection to the Bureau with 7 or without this agreement that whatever decision that is 8 handed down by this Board that they will see the same amount 9 of water that they would have seen under any Board decision 10 on any of their -- any alternative or combination of 11 alternatives they may select. 12 MR. NOMELLINI: But in one case you would agree the 13 state would be paying for the water that is being provided? 14 MR. PACHECO: Correct. 15 MR. NOMELLINI: Are state general funds in any way used 16 to pay for the amount of water being provided by DWR 17 pursuant to the settlement agreement or as a backstop? 18 MR. PACHECO: No, they're not. This is a project 19 funding. 20 MR. NOMELLINI: All of these funds will come from the 21 contractors; is that your testimony? 22 MR. PACHECO: With one exception. There is a possible 23 -- if the provision in the agreement is exercised whereby 24 they develop a program under Prop 204 funding and they meet 25 the requirements for Prop 204, they could receive those CAPITOL REPORTERS (916) 923-5447 16893 1 funds. 2 MR. NOMELLINI: Is the Department of Water Resources 3 authorized to provide water to agricultural at subsidized 4 rates? 5 MR. O'BRIEN: This is beyond the scope of redirect. I 6 am going to object. 7 C.O. BROWN: Mr. Nomellini. 8 MR. NOMELLINI: It is not beyond the scope of redirect. 9 Redirect got into the question of whether or not the Bureau 10 would have to pay anything for the water, and I think this 11 redirect or recross on the redirect has demonstrated that 12 they could get a benefit of some of the water and not have 13 to pay. And it is state money that is going into the 14 payment of the water purchased from South Sutter as well as 15 the backup. 16 C.O. BROWN: Mr. O'Brien. 17 MR. O'BRIEN: I don't believe the redirect got into any 18 of these issues with respect to how the state pays for this 19 water. Mr. Nomellini is on a fishing expedition. He should 20 have done this in cross-examination. 21 C.O. BROWN: Ms. Leidigh. 22 MR. NOMELLINI: It is a catching expedition rather 23 than fishing expedition. 24 MS. LEIDIGH: I think it is a factual question. If the 25 topic came up during redirect, then it is fair game for CAPITOL REPORTERS (916) 923-5447 16894 1 recross. But if it didn't come up during redirect, then it 2 should not be asked. These questions would not be 3 appropriate during recross if it did not come up during 4 redirect. 5 C.O. BROWN: Overruled. Proceed. 6 MR. NOMELLINI: I forget where I was. I think he 7 answered my question and then the objection came up. 8 Unless you want to clarify, Mr. Pacheco, I don't have a 9 further question to ask of you on this subject. 10 MR. PACHECO: I think I am done. 11 MR. NOMELLINI: Question for Mr. Shaul on 3-18, which I 12 believe was referenced in the redirect. That is 3-18 of 13 SSWD Exhibit 4. 14 Do you have that in front of you? 15 MR. SHAUL: Yes, I do. That is Exhibit 1. 16 MR. NOMELLINI: On redirect you made it clear that you 17 participated in the assessment of the fishery impacts 18 related to Page 3-18; is that correct? 19 MR. SHAUL: We participated in the assessment of the 20 fishery impacts as far as environmental assessment. Yes, 21 that is correct. 22 MR. NOMELLINI: That was in contrast to your answer to 23 a question of whether or not any of the studies had been 24 done by you that I asked on cross; is that correct? 25 MR. SHAUL: I don't recall exactly what your question CAPITOL REPORTERS (916) 923-5447 16895 1 was, but -- 2 MR. NOMELLINI: Calling your attention to 3-18 with 3 regard to impacts related to fish salvage, the month of 4 June shows a relatively high impact on Delta smelt, does it 5 not? 6 MR. SHAUL: Relative to the month of July, August and 7 September, it does. 8 MR. NOMELLINI: And is that also true with regard to 9 the impact on splittail? 10 MR. SHAUL: Yes, that is true. 11 MR. NOMELLINI: Is it also true with regard to the 12 impact on chinook salmon? 13 MR. SHAUL: Yes, that is true. 14 MR. NOMELLINI: Is it also true with regard to impact 15 on steelhead? 16 MR. SHAUL: No, it is not true for steelhead. But the 17 steelhead numbers, they get so few steelhead in the salvage 18 during the months of July and June at the state and federal 19 pumps. As you can see by that small line that extends above 20 the bar, that is a confidence interval in that it is very, 21 very wide for steelhead. So very few steelhead. 22 MR. NOMELLINI: Calling your attention to steelhead and 23 Page 3-18 Figure 1, the impact on steelhead for June and 24 July are somewhat the same, are they not? 25 MR. SHAUL: You used only this information -- using CAPITOL REPORTERS (916) 923-5447 16896 1 just this information, that is true. They are somewhat the 2 same in both the dry years and critical years. The dry 3 years have -- they didn't get any steelhead in the critical 4 years. We have a few steelhead. 5 MR. NOMELLINI: With regard to critical years then, 6 they're relatively the same in June and July as shown on 7 Figure 1, Page 3-18; is that correct? 8 MR. SHAUL: That's correct. 9 MR. NOMELLINI: Was this figure the basis of your 10 assessment? 11 MR. SHAUL: This figure is not the whole basis of our 12 assessment. Our assessment is based partially on this 13 figure to put these months in perspective, but we also 14 looked at when steelhead are most likely to be in the Delta. 15 And steelhead are most likely to be in the Delta prior to 16 these months. So these are the fringe months when steelhead 17 presence in the Delta -- steelhead presence in the Delta. 18 MR. NOMELLINI: The data shows that of the months June 19 through September, June and July had some impact on 20 steelhead in terms of salvage density? 21 MR. SHAUL: Yeah. If you were to base it on just this 22 information where your -- and you assume there is a direct 23 relationship between salvage numbers and volume pumped, that 24 would be a true statement. But our impact assessment took, 25 in terms of determining significance took into consideration CAPITOL REPORTERS (916) 923-5447 16897 1 information of when steelhead are most likely to be in the 2 Delta, when most abundant in the Delta and how many 3 steelhead were actually salvaged during this period. 4 MR. NOMELLINI: You are aware, are you not, that many 5 decisions based on poor fisheries are based on limited 6 information because that is all the information that is 7 available? Would you agree with that? 8 MR. SHAUL: I would definitely agree with that. But 9 there is a lot more information than is presented in this 10 figure. 11 MR. NOMELLINI: I am almost ready to wrap up. 12 Looking at this chart on steelhead, you see on the 13 left-hand side of the chart it said "salvage per acre-foot"? 14 MR. SHAUL: Yes. 15 MR. NOMELLINI: And there is an X and a number 1000? 16 MR. SHAUL: Yes. 17 MR. NOMELLINI: Would you take the reading on the 18 left-hand side of the graph and multiply it times a thousand 19 to determine the salvage per acre-foot on this graph? 20 MR. SHAUL: I think it is just the opposite of that. 21 Let me let Heidi address that. 22 MR. NOMELLINI: Whoever can answer, how do we read this 23 graph? 24 Go ahead. Maybe I can help you. Would .08 times a 25 thousand, would be the per acre-foot which my multiplication CAPITOL REPORTERS (916) 923-5447 16898 1 would give me 80 steelhead salvaged per acre-foot. 2 MS. ROOKS: It is times acre -- thousand acre-feet. 3 MR. NOMELLINI: It is .08 steelhead per thousand 4 acre-feet? 5 MS. ROOKS: Correct. 6 MR. NOMELLINI: So if we had 3,500 times .8, we'd have 7 two and a half steelhead, something like that? 8 MS. ROOKS: I don't have my calculator. I'll take 9 your word for it. 10 MR. NOMELLINI: Is the salvage density related in some 11 way to a larger population that might be in the area or 12 vicinity that would be affected by the pump? 13 MR. SHAUL: Salvage -- the salvage density is 14 definitely related to occurrence. I think that is probably 15 as much as we can say, that the higher density of fish in 16 the area of the export facility, the higher fish you would 17 see in the export. 18 MR. NOMELLINI: If we salvaged two and half fish, would 19 you -- would it be your opinion that there were more than 20 two and half fish -- we can't have a half fish. Would it be 21 your opinion that there would be more than two and a half 22 fish affected by the export operations at that time? 23 MR. SHAUL: Relative to steelhead, if I am recalling 24 the expansion numbers for steelhead for salvage, actually, 25 the steelhead -- these are -- steelhead are large fish by CAPITOL REPORTERS (916) 923-5447 16899 1 the time they pass through the Delta. So they salvage 2 efficiency is relatively high. So the expansion numbers are 3 relatively low. 4 I can't recall what the number is that is currently 5 used by Department of Water Resources, but it's -- it 6 wouldn't be substantially more than two, I don't think. It 7 might be -- 8 MR. NOMELLINI: A factor of two? 9 MR. SHAUL: A factor of two. 10 MR. NOMELLINI: If we salvage two and a half, you think 11 that the factor would be no greater than four or five? 12 MR. SHAUL: Right, if I am recalling the expansion 13 factors. 14 MR. NOMELLINI: You would agree that steelhead are a 15 listed species? 16 MR. SHAUL: Yes, They are a listed species. 17 MR. NOMELLINI: Have there been reconsultation with the 18 National Marine Fisheries Service with regard to the 19 increased, potential increase, in exports of 3,250 cubic 20 feet per second? 21 MR. SHAUL: I am not sure whether there has been a 22 reinitiation of consultation on steelhead since there is 23 currently no 4(d) rule. I am not sure where that stands. 24 The Department of Water Resources can better answer that 25 question. CAPITOL REPORTERS (916) 923-5447 16900 1 MR. NOMELLINI: Can they? 2 MS. ROOKS: The Department of Water Resources has 3 ongoing consultation with National Marine Fishery Service on 4 steelhead and spring-run. 5 MR. NOMELLINI: Have you consulted with them with 6 regard to the water purchased under -- supposed to be 7 purchased under this agreement? 8 MS. ROOKS: Right now we are dealing with this year, 9 and this is going to come up in the year 2000. Right now 10 they are dealing with 1999 and transitioning to 2000 issues. 11 So this is going to come up if it hasn't gotten there, 12 gotten to that phase 13 MR. NOMELLINI: It is going to come up, but it hasn't 14 yet. 15 Thank you. 16 C.O. BROWN: Thank you, Mr. Nomellini. 17 Staff, do you have any redirect? 18 MS. LEIDIGH: No. 19 C.O. BROWN: Ms. Forster. 20 MEMBER FORSTER: I have a question. 21 After listening today, is it my understanding that the 22 Sutter and Camp Far West really had nothing to do with the 23 300,000 acre-feet, that that is being sought from the 24 Sacramento watershed? 25 MR. VAN CAMP: That's correct. CAPITOL REPORTERS (916) 923-5447 16901 1 MEMBER FORSTER: You are all here, just to recap, as a 2 party who is willing to be a partner in helping to find 3 water, and you looked at your calculation and charts and 4 came up with 4,400 acre-feet? 5 MR. VAN CAMP: Yes. We looked at the -- we apportioned 6 the 300,000 to a 4,400 acre-foot for the Bear River supply. 7 That was done for the Bear River system. That was done with 8 representatives of the state contractors and I do believe 9 DWR to arrive at the 4,400, and you phrased it right. I 10 believe South Sutter has said those numbers appear 11 reasonable to us as an alternative to proceeding into the 12 Bay-Delta hearings to figure out whether it is going to be 13 Alternative 2 or Alternative 3. 14 MEMBER FORSTER: Did you independently look at any 15 alternatives -- there are other alternatives out there -- to 16 see what your role would be or what your hit would be, or 17 did you just look at 2 and 3? 18 MR. VAN CAMP: I believe we did look at other 19 alternatives, 4 and 5, but I don't have those numbers. 20 MEMBER FORSTER: What if it was a really dire 21 situation, would your -- not as maybe part of this 22 proceeding, and if we got into a terrible drought and there 23 needed to be more water, buy more water to help with the 24 water bank, are you -- it looks like you have a pretty good 25 water supply. Would you be willing to sell more? Did you CAPITOL REPORTERS (916) 923-5447 16902 1 look at this? 2 MR. VAN CAMP: I don't think -- speaking on behalf of 3 South Sutter, I don't think they would be against the idea. 4 But you have got to keep in mind during those real dry years 5 that is when South Sutter supply, surface supply, is 6 minimal, absolutely nothing. It could be as in '77, when 7 the individual water users had to resort back to significant 8 use of groundwater. 9 MEMBER FORSTER: When Mr. Jackson raised the issue 10 about the cumulative impact of 300,000 acre-feet, is it your 11 understanding that that would be pretty hard to determine 12 just with your settlement? To me that is a much broader 13 scope. That is maybe why it wasn't considered? 14 MR. VAN CAMP: My opinion, there is a lot of 15 speculation as to where the difference between the 300,000 16 and 4,400 comes from, and what those arrangements would look 17 like. 18 MR. PACHECO: On that 300,000, I think any cumulative 19 impact from that would probably already be bracketed or 20 taken care of within the State Board's Draft EIR. So, I 21 don't see what we're doing is really beyond that. And so 22 the Board has already covered that within the existing 23 document. 24 Speaking to the 300,000 acre-feet number a little 25 more. The goal was set probably three years ago. And since CAPITOL REPORTERS (916) 923-5447 16903 1 then, many of the negotiations have come and gone. And 2 currently -- and I think Kathy Crothers at the workshop did 3 describe that besides this settlement agreement we have a 4 handful of settlement agreements. We are still negotiating 5 and reviewing those. 6 Placer County Water Agency, we have one agreement which 7 could fall between 20,000 acre-feet all the way up to 47,000 8 acre-feet. We have another potential settlement agreement 9 with the Oroville-Wyandotte Irrigation District for up to 10 10,000 acre-feet. And that's it as far as the settlement 11 agreements. 12 At this time, we have other stipulations that people 13 have come to us and asked us to evaluate. But those don't 14 require water transactions and backstop such as this. 15 MEMBER FORSTER: That is all. 16 C.O. BROWN: Ms. Crothers, do you have some exhibits 17 you would like to offer into evidence? 18 MS. CROTHERS: Yes, I do. 19 DWR would like to offer the following exhibits as 20 evidence: DWR 41, just testimony of John Pacheco; DWR 42, 21 statement and qualifications for John Pacheco; DWR 43, 22 statement of qualifications for Heidi Rooks; and DWR 44, a 23 letter from DWR Deputy Director Ray Hart to Bureau of 24 Reclamation, Lowell Ploss, regarding the COA. 25 C.O. BROWN: Is that it? CAPITOL REPORTERS (916) 923-5447 16904 1 MS. CROTHERS: Yes, those four exhibits. 2 C.O. BROWN: Are there any objections to acceptance of 3 those exhibits into evidence? 4 Seeing none, they will be accepted. 5 Mr. O'Brien. 6 MR. O'BRIEN: I would like to offer South Sutter Water 7 District Exhibits 1 through 18, excluding Exhibit 14 which 8 is the resume of Philip Don. 9 C.O. BROWN: Any objections? 10 They are accepted into evidence. 11 C.O. BROWN: Mr. Birmingham. 12 MR. BIRMINGHAM: I would like to move the admission 13 Westlands Water District 131 and Westlands Water District 14 Exhibit 132. 15 C.O. BROWN: Any objections to the acceptance of those 16 exhibits into evidence? 17 Seeing none, they are so accepted. 18 Anyone else? 19 That is it. 20 MS. LEIDIGH: Yes. 21 C.O. BROWN: Let's talk about rebuttal for just a 22 minute. Can I see a show of hands who has rebuttal? 23 MR. BIRMINGHAM: May I address that point? 24 C.O. BROWN: You may, Mr. Birmingham. 25 MR. BIRMINGHAM: I have had an opportunity to confer CAPITOL REPORTERS (916) 923-5447 16905 1 with Mr. O'Brien and with Ms. Crothers. We are very 2 interested in the agreement that is currently being 3 negotiated between the Department of Water Resources and the 4 Bureau of Reclamation concerning how adjustments will be 5 made to the Coordinated Operating Agreement. 6 Mr. O'Brien has agreed to keep the record open for a 7 period not to exceed 30 days so we could obtain a copy of 8 that agreement which they expect to be negotiated within the 9 next couple of weeks. Then come back and ask the Board for 10 an opportunity to submit a rebuttal case if we feel that 11 there is a need to do that. 12 We don't want to stand in the way of a settlement 13 agreement if the concerns that I addressed to Ms. Forster 14 are addressed through the agreement which is currently being 15 negotiated. We think it would be helpful to our evaluation 16 of the settlement agreement to have that document. 17 MR. O'BRIEN: We are willing to agree to the 30-day 18 period, Mr. Brown. Our obvious concern is that we not delay 19 this too long so that the Board is unable to make a decision 20 on this matter before you start the rest of the Phase VIII 21 process. So there is a timing concern on our part. I think 22 30 days will hopefully allow time to get this agreement with 23 USBR completed. 24 I am going to at this point reserve the right to object 25 to a further hearing process with respect to that agreement CAPITOL REPORTERS (916) 923-5447 16906 1 in the event that Mr. Birmingham or others request 2 additional hearing time. He has reserved the right to make 3 that request. I think at this point we are simply both 4 reserving our rights in that regard. Hopefully this 5 agreement will be an agreement that all the parties are 6 happy with. I am hopeful that Westlands can participate in 7 that process, and we can get something done here fairly 8 shortly that will address the issues. 9 MR. BIRMINGHAM: That is our hope. What Mr. O'Brien 10 has stated was my understanding of the stipulation. 11 C.O. BROWN: Come forward again and tell me what you 12 request more specifically. Make sure I understand what you 13 are asking for here. 14 MR. BIRMINGHAM: DWR Exhibit 34, which is the letter 15 from Deputy Director Raymond Hart to Lowell Ploss of the 16 Central Valley Project office, makes reference to an 17 agreement which is going to be negotiated between DWR and 18 the Bureau of Reclamation to memorialize how accounting 19 under the coordinated operation will be modified in order to 20 ensure that implementation of the settlement agreement will 21 not impact the operations or water supply of the Central 22 Valley Project and its contractors. 23 We are informed by Ms. Crothers that the Department of 24 Water Resources and the Bureau of Reclamation have been 25 working on that agreement and expect to have it finalized CAPITOL REPORTERS (916) 923-5447 16907 1 within the next couple, meaning two, weeks. Our concerns 2 about the settlement agreement we expect will be obviated by 3 that agreement. 4 What I have asked for is an opportunity to hold the 5 hearing record open for a period not to exceed 30 days to 6 give us an opportunity to receive that agreement and analyze 7 it. And if it is -- if we still have concerns, then ask the 8 Board for an opportunity to present a rebuttal case. We 9 don't want to -- if our concerns are going to be obviated, 10 we don't want to object to the settlement agreement which 11 has been reached as a result of the negotiations between DWR 12 on one hand and South Sutter Water District and Camp Far 13 West Irrigation District on the other. 14 C.O. BROWN: I have some real concerns about holding 15 this open for another 30 days, Mr. Birmingham. 16 MR. BIRMINGHAM: Well, would the Hearing Officer 17 entertain a request to hold it for less than 30 days? 18 C.O. BROWN: Let's see what Mr. Nomellini has to say. 19 MR. NOMELLINI: If the hearing is going to be held 20 open, I would like to receive a copy of that agreement 21 without having to make a discovery request. Of course, if 22 Mr. Birmingham's concerns are obviated, my concerns would be 23 accentuated that the federal is getting a free ride on the 24 basis of the state and, therefore, I would have another 25 basis which I think is already partially in the record or CAPITOL REPORTERS (916) 923-5447 16908 1 strong objection that we may want to present a rebuttal case 2 as well. 3 MR. BIRMINGHAM: I am going to withdraw my request and 4 merely state that I will put on a rebuttal case tomorrow, 5 if that is the direction that the Board wants to go. 6 C.O. BROWN: All right. 7 Thank you, Mr. Birmingham. That keeps us kind of 8 moving somewhat on a track here in order to try to get two 9 things accomplished. You will be up first thing in the 10 morning, Mr. Birmingham. 11 MR. BIRMINGHAM: Just so the other parties will be 12 aware, our rebuttal witness will be Jim Snow. 13 MR. NOMELLINI: Why can't we do it now? 14 MR. BIRMINGHAM: Would you be ready now? 15 MR. BIRMINGHAM: No, I would not. 16 C.O. BROWN: All right. 17 Ms. Forster, I am sorry, I have been trying to keep 18 track of Mr. Birmingham and ignoring your concerns. I 19 apologize. 20 MEMBER FORSTER: I know how hard it is to run the 21 meeting. I think that my questions are for only legal staff 22 and I can take care of them later. 23 C.O. BROWN: Thank you, Ms. Forster. 24 Does anyone have any questions before we conclude 25 today? CAPITOL REPORTERS (916) 923-5447 16909 1 All right. I'll see you at 9:00 in the morning. We 2 are adjourned. 3 (Hearing adjourned at 4:00 p.m.) 4 ---oOo--- 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 16910 1 REPORTER'S CERTIFICATE 2 3 4 STATE OF CALIFORNIA ) ) ss. 5 COUNTY OF SACRAMENTO ) 6 7 8 I, ESTHER F. WIATRE, certify that I was the 9 official Court Reporter for the proceedings named herein, 10 and that as such reporter, I reported in verbatim shorthand 11 writing those proceedings; 12 That I thereafter caused my shorthand writing to be 13 reduced to typewriting, and the pages numbered 16723 through 14 16910 herein constitute a complete, true and correct record 15 of the proceedings. 16 17 IN WITNESS WHEREOF, I have subscribed this certificate 18 at Sacramento, California, on this 21st day of April 2000. 19 20 21 22 23 ______________________________ ESTHER F. WIATRE 24 CSR NO. 1564 25