STATE WATER RESOURCES CONTROL BOARD PUBLIC HEARING 1998 BAY-DELTA WATER RIGHTS HEARING HELD AT: BONDERSON BUILDING 901 P STREET SACRAMENTO, CALIFORNIA MONDAY, JANUARY 11, 1999 9:00 A.M. Reported by: ESTHER F. WIATRE CSR NO. 1564 CAPITOL REPORTERS (916) 923-5447 1 APPEARANCES BOARD MEMBERS: 2 JAMES STUBCHAER, COHEARING OFFICER 3 JOHN W. BROWN, COHEARING OFFICER MARY JANE FORSTER 4 MARC DEL PIERO 5 STAFF MEMBERS: 6 WALTER PETTIT, EXECUTIVE DIRECTOR VICTORIA WHITNEY, CHIEF BAY-DELTA UNIT 7 THOMAS HOWARD, SUPERVISING ENGINEER 8 COUNSEL: 9 WILLIAM R. ATTWATER, CHIEF COUNSEL BARBARA LEIDIGH 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 AMELIA MINABERRIGARAI, 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 CALIFORNIA URBAN WATER AGENCIES: 9 BYRON M. BUCK 455 Capitol Mall, Suite 705 10 Sacramento, California 95814 11 RANCHO MURIETA COMMUNITY SERVICES DISTRICT: 12 MCDONOUGH, HOLLAND & ALLEN 555 Capitol Mall, 9th Floor 13 Sacramento, California 95814 BY: VIRGINIA A. CAHILL, ESQ. 14 CALIFORNIA DEPARTMENT OF FISH AND GAME: 15 OFFICE OF ATTORNEY GENERAL 16 1300 I Street, Suite 1101 Sacramento, California 95814 17 BY: MATTHEW CAMPBELL, ESQ. 18 NATURAL RESOURCES DEFENSE COUNCIL: 19 HAMILTON CANDEE, ESQ. 71 Stevenson Street 20 San Francisco, California 94105 21 ARVIN-EDISON WATER STORAGE DISTRICT, et al.: 22 DOOLEY HERR & WILLIAMS 3500 West Mineral King Avenue, Suite C 23 Visalia, California 93291 BY: DANIEL M. DOOLEY, ESQ. 24 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 SACRAMENTO MUNICIPAL UTILITY DISTRICT: 3 LESLIE A. DUNSWORTH, ESQ. 6201 S Street 4 Sacramento, California 95817 5 SOUTH SAN JOAQUIN IRRIGATION DISTRICT, et al.: 6 BRAY, GEIGER, RUDQUIST & NUSS 311 East Main Street, 4th Floor 7 Stockton, California 95202 BY: STEVEN P. EMRICK, ESQ. 8 EAST BAY MUNICIPAL UTILITY DISTRICT: 9 EBMUD OFFICE OF GENERAL COUNSEL 10 375 Eleventh Street Oakland, California 94623 11 BY: FRED S. ETHERIDGE, ESQ. 12 GOLDEN GATE AUDUBON SOCIETY: 13 ARTHUR FEINSTEIN 2530 San Pablo Avenue, Suite G 14 Berkeley, California 94702 15 CONAWAY CONSERVANCY GROUP: 16 UREMOVIC & FELGER P.O. Box 5654 17 Fresno, California 93755 BY: WARREN P. FELGER, ESQ. 18 THOMES CREEK WATER ASSOCIATION: 19 THOMES CREEK WATERSHED ASSOCIATION 20 P.O. Box 2365 Flournoy, California 96029 21 BY: LOIS FLYNNE 22 COURT APPOINTED REPS OF WESTLANDS WD AREA 1, et al.: 23 LAW OFFICES OF SMILAND & KHACHIGIAN 601 West Fifth Street, Seventh Floor 24 Los Angeles, California 90075 BY: CHRISTOPHER G. FOSTER, ESQ. 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 CITY AND COUNTY OF SAN FRANCISCO: 3 OFFICE OF THE CITY ATTORNEY 1390 Market Street, Sixth Floor 4 San Francisco, California 94102 BY: DONN W. FURMAN, ESQ. 5 CAMP FAR WEST IRRIGATION DISTRICT, et al.: 6 DANIEL F. GALLERY, ESQ. 7 926 J Street, Suite 505 Sacramento, California 95814 8 BOSTON RANCH COMPANY, et al.: 9 J.B. BOSWELL COMPANY 10 101 West Walnut Street Pasadena, California 91103 11 BY: EDWARD G. GIERMANN 12 SAN JOAQUIN RIVER GROUP AUTHORITY, et al.: 13 GRIFFTH, MASUDA & GODWIN 517 East Olive Street 14 Turlock, California 95381 BY: ARTHUR F. GODWIN, ESQ. 15 NORTHERN CALIFORNIA WATER ASSOCIATION: 16 RICHARD GOLB 17 455 Capitol Mall, Suite 335 Sacramento, California 95814 18 PLACER COUNTY WATER AGENCY, et al.: 19 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 20 400 Capitol Mall, 27th Floor Sacramento, California 95814 21 BY: JANET GOLDSMITH, ESQ. 22 ENVIRONMENTAL DEFENSE FUND: 23 DANIEL SUYEYASU, ESQ. and 24 THOMAS J. GRAFF, ESQ. 5655 College Avenue, Suite 304 25 Oakland, California 94618 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 CALAVERAS COUNTY WATER DISTRICT: 3 SIMON GRANVILLE P.O. Box 846 4 San Andreas, California 95249 5 CHOWCHILLA WATER DISTRICT, et al.: 6 GREEN, GREEN & RIGBY P.O. Box 1019 7 Madera, California 93639 BY: DENSLOW GREEN, ESQ. 8 CALIFORNIA FARM BUREAU FEDERATION: 9 DAVID J. GUY, ESQ. 10 2300 River Plaza Drive Sacramento, California 95833 11 SANTA CLARA VALLEY WATER DISTRICT: 12 MORRISON & FORESTER 13 755 Page Mill Road Palo Alto, California 94303 14 BY: KEVIN T. HAROFF, ESQ. 15 CITY OF SHASTA LAKE: 16 ALAN N. HARVEY P.O. Box 777 17 Shasta Lake, California 96019 18 COUNTY OF STANISLAUS: 19 MICHAEL G. HEATON, ESQ. 926 J Street 20 Sacramento, California 95814 21 GORRILL LAND COMPANY: 22 GORRILL LAND COMPANY P.O. Box 427 23 Durham, California 95938 BY: DON HEFFREN 24 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 SOUTH DELTA WATER AGENCY: 3 JOHN HERRICK, ESQ. 3031 West March Lane, Suite 332 East 4 Stockton, California 95267 5 COUNTY OF GLENN: 6 NORMAN Y. HERRING 525 West Sycamore Street 7 Willows, California 95988 8 REGIONAL COUNCIL OF RURAL COUNTIES: 9 MICHAEL B. JACKSON, ESQ. 1020 Twelfth Street, Suite 400 10 Sacramento, California 95814 11 DEER CREEK WATERSHED CONSERVANCY: 12 JULIE KELLY P.O. Box 307 13 Vina, California 96092 14 DELTA TRIBUTARY AGENCIES COMMITTEE: 15 MODESTO IRRIGATION DISTRICT P.O. Box 4060 16 Modesto, California 95352 BY: BILL KETSCHER 17 SAVE THE SAN FRANCISCO BAY ASSOCIATION: 18 SAVE THE BAY 19 1736 Franklin Street Oakland, California 94612 20 BY: CYNTHIA L. KOEHLER, ESQ. 21 BATTLE CREEK WATERSHED LANDOWNERS: 22 BATTLE CREEK WATERSHED CONSERVANCY P.O. Box 606 23 Manton, California 96059 24 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 BUTTE SINK WATERFOWL ASSOCIATION, et al.: 3 MARTHA H. LENNIHAN, ESQ. 455 Capitol Mall, Suite 300 4 Sacramento, California 95814 5 CITY OF YUBA CITY: 6 WILLIAM P. LEWIS 1201 Civic Center Drive 7 Yuba City 95993 8 BROWNS VALLEY IRRIGATION DISTRICT, et al.: 9 BARTKEWICZ, KRONICK & SHANAHAN 1011 22nd Street, Suite 100 10 Sacramento, California 95816 BY: ALAN B. LILLY, ESQ. 11 CONTRA COSTA WATER DISTRICT: 12 BOLD, POLISNER, MADDOW, NELSON & JUDSON 13 500 Ygnacio Valley Road, Suite 325 Walnut Creek, California 94596 14 BY: ROBERT B. MADDOW, ESQ. 15 GRASSLAND WATER DISTRICT: 16 DON MARCIOCHI 22759 South Mercey Springs Road 17 Los Banos, California 93635 18 SAN LUIS CANAL COMPANY: 19 FLANNIGAN, MASON, ROBBINS & GNASS 3351 North M Street, Suite 100 20 Merced, California 95344 BY: MICHAEL L. MASON, ESQ. 21 STONY CREEK BUSINESS AND LAND OWNERS COALITION: 22 R.W. MCCOMAS 23 4150 County Road K Orland, California 95963 24 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 TRI-DAM POWER AUTHORITY: 3 TUOLUMNE UTILITIES DISTRICT P.O. Box 3728 4 Sonora, California 95730 BY: TIM MCCULLOUGH 5 DELANO-EARLIMART IRRIGATION DISTRICT, et al.: 6 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 7 P.O. Box 1679 Oroville, California 95965 8 BY: JEFFREY A. MEITH, ESQ. 9 HUMANE FARMING ASSOCIATION: 10 BRADLEY S. MILLER 1550 California Street, Suite 6 11 San Francisco, California 94109 12 CORDUA IRRIGATION DISTRICT, et al.: 13 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 14 Oroville, California 95965 BY: PAUL R. MINASIAN, ESQ. 15 EL DORADO COUNTY WATER AGENCY: 16 DE CUIR & SOMACH 17 400 Capitol Mall, Suite 1900 Sacramento, California 95814 18 BY: DONALD B. MOONEY, ESQ. 19 GLENN COUNTY FARM BUREAU: 20 STEVE MORA 501 Walker Street 21 Orland, California 95963 22 MODESTO IRRIGATION DISTRICT: 23 JOEL MOSKOWITZ P.O. Box 4060 24 Modesto, California 95352 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 PACIFIC GAS & ELECTRIC: 3 RICHARD H. MOSS, ESQ. P.O. Box 7442 4 San Francisco, California 94120 5 CENTRAL DELTA WATER AGENCY, et al.: 6 NOMELLINI, GRILLI & MCDANIEL P.O. Box 1461 7 Stockton, California 95201 BY: DANTE JOHN NOMELLINI, ESQ. 8 and DANTE JOHN NOMELLINI, JR., ESQ. 9 TULARE LAKE BASIN WATER STORAGE UNIT: 10 MICHAEL NORDSTROM 11 1100 Whitney Avenue Corcoran, California 93212 12 AKIN RANCH, et al.: 13 DOWNEY, BRAND, SEYMOUR & ROHWER 14 555 Capitol Mall, 10th Floor Sacramento, California 95814 15 BY: KEVIN M. O'BRIEN, ESQ. 16 OAKDALE IRRIGATION DISTRICT: 17 O'LAUGHLIN & PARIS 870 Manzanita Court, Suite B 18 Chico, California 95926 BY: TIM O'LAUGHLIN, ESQ. 19 SIERRA CLUB: 20 JENNA OLSEN 21 85 Second Street, 2nd Floor San Francisco, California 94105 22 YOLO COUNTY BOARD OF SUPERVISORS: 23 LYNNEL POLLOCK 24 625 Court Street Woodland, California 95695 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 PATRICK PORGANS AND ASSOCIATES: 3 PATRICK PORGANS P.O. Box 60940 4 Sacramento, California 95860 5 BROADVIEW WATER DISTRICT, et al.: 6 DIANE RATHMANN 7 FRIENDS OF THE RIVER: 8 BETSY REIFSNIDER 128 J Street, 2nd Floor 9 Sacramento, California 95814 10 MERCED IRRIGATION DISTRICT: 11 FLANAGAN, MASON, ROBBINS & GNASS P.O. Box 2067 12 Merced, California 95344 BY: KENNETH M. ROBBINS, ESQ. 13 CENTRAL SAN JOAQUIN WATER CONSERVATION DISTRICT: 14 REID W. ROBERTS, ESQ. 15 311 East Main Street, Suite 202 Stockton, California 95202 16 METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA: 17 JAMES F. ROBERTS 18 P.O. Box 54153 Los Angeles, California 90054 19 SACRAMENTO AREA WATER FORUM: 20 CITY OF SACRAMENTO 21 980 9th Street, 10th Floor Sacramento, California 95814 22 BY: JOSEPH ROBINSON, ESQ. 23 24 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 TUOLUMNE RIVER PRESERVATION TRUST: 3 NATURAL HERITAGE INSTITUTE 114 Sansome Street, Suite 1200 4 San Francisco, California 94194 BY: RICHARD ROOS-COLLINS, ESQ. 5 CALIFORNIA DEPARTMENT OF WATER RESOURCES: 6 DAVID SANDINO, ESQ. 7 CATHY CROTHERS, ESQ. P.O. Box 942836 8 Sacramento, California 94236 9 FRIANT WATER USERS AUTHORITY: 10 GARY W. SAWYERS, ESQ. 575 East Alluvial, Suite 101 11 Fresno, California 93720 12 KERN COUNTY WATER AGENCY: 13 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD 400 Capitol Mall, 27th Floor 14 Sacramento, California 95814 BY: CLIFFORD W. SCHULZ, ESQ. 15 SAN JOAQUIN RIVER EXCHANGE CONTRACTORS: 16 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON: 17 P.O. Box 1679 Oroville, California 95965 18 BY: MICHAEL V. SEXTON, ESQ. 19 SAN JOAQUIN COUNTY: 20 NEUMILLER & BEARDSLEE P.O. Box 20 21 Stockton, California 95203 BY: THOMAS J. SHEPHARD, SR., ESQ. 22 CITY OF STOCKTON: 23 DE CUIR & SOMACH 24 400 Capitol Mall, Suite 1900 Sacramento, California 95814 25 BY: PAUL S. SIMMONS, ESQ. CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 ORLAND UNIT WATER USERS' ASSOCIATION: 3 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON P.O. Box 1679 4 Oroville, California 95965 BY: M. ANTHONY SOARES, ESQ. 5 GLENN-COLUSA IRRIGATION DISTRICT: 6 DE CUIR & SOMACH 7 400 Capitol Mall, Suite 1900 Sacramento, California 95814 8 BY: STUART L. SOMACH, ESQ. 9 NORTH SAN JOAQUIN WATER CONSERVATION DISTRICT: 10 JAMES F. SORENSEN CONSULTING CIVIL ENGINEER, INC. 209 South Locust Street 11 Visalia, California 93279 BY: JAMES F. SORENSEN 12 PARADISE IRRIGATION DISTRICT: 13 MINASIAN, SPRUANCE, BABER, MEITH, SOARES & SEXTON 14 P.O. Box 1679 Oroville, California 95695 15 BY: WILLIAM H. SPRUANCE, ESQ. 16 COUNTY OF COLUSA: 17 DONALD F. STANTON, ESQ. 1213 Market Street 18 Colusa, California 95932 19 COUNTY OF TRINITY: 20 COUNTY OF TRINITY - NATURAL RESOURCES P.O. Box 156 21 Hayfork, California 96041 BY: TOM STOKELY 22 CITY OF REDDING: 23 JEFFERY J. SWANSON, ESQ. 24 2515 Park Marina Drive, Suite 102 Redding, California 96001 25 CAPITOL REPORTERS (916) 923-5447 1 REPRESENTATIVES 2 TULARE IRRIGATION DISTRICT: 3 TEHAMA COUNTY RESOURCE CONSERVATION DISTRICT 2 Sutter Street, Suite D 4 Red Bluff, California 96080 BY: ERNEST E. WHITE 5 STATE WATER CONTRACTORS: 6 BEST BEST & KREIGER 7 P.O. Box 1028 Riverside, California 92502 8 BY: ERIC GARNER, ESQ. 9 COUNTY OF TEHAMA, et al.: 10 COUNTY OF TEHAMA BOARD OF SUPERVISORS: P.O. Box 250 11 Red Bluff, California 96080 BY: CHARLES H. WILLARD 12 MOUNTAIN COUNTIES WATER RESOURCES ASSOCIATION: 13 CHRISTOPHER D. WILLIAMS 14 P.O. Box 667 San Andreas, California 95249 15 JACKSON VALLEY IRRIGATION DISTRICT: 16 HENRY WILLY 17 6755 Lake Amador Drive Ione, California 95640 18 SOLANO COUNTY WATER AGENCY, et al.: 19 HERUM, CRABTREE, DYER, ZOLEZZI & TERPSTRA 20 2291 West March Lane, S.B.100 Stockton, California 95207 21 BY: JEANNE M. ZOLEZZI, ESQ. 22 ---oOo--- 23 24 25 CAPITOL REPORTERS (916) 923-5447 1 INDEX 2 PAGE 3 RESUMPTION OF HEARING 8092 4 AFTERNOON SESSION 8202 5 POLICY STATEMENTS: 6 MR. BOBKER 8100 MR. CAMPBELL 8103 7 MR. CANDEE 8105 MR. MADDOW 8106 8 MR. JACKSON 8110 9 SAN JOAQUIN RIVER GROUP: OPENING STATEMENT: 10 BY MR. O'LAUGHLIN 8119 MARC VAN CAMP 11 DIRECT EXAMINATION: BY MR. O'LAUGHLIN 8139 12 CROSS-EXAMINATION: BY MR. NOMELLINI 8145 13 BY MR. HERRICK 8153 BY MR. JACKSON 8161 14 BY MR. BIRMINGHAM 8167 BY BOARD MEMBERS 8175 15 SOUTH DELTA WATER AGENCY: 16 OPENING STATEMENT: 17 BY MR. HERRICK 8204 ALEX HILDEBRAND 18 DIRECT EXAMINATION: BY MR. HERRICK 8212 19 CROSS-EXAMINATION: BY MR. BIRMINGHAM 8226 20 21 ---oOo--- 22 23 24 25 CAPITOL REPORTERS (916) 923-5447 1 SACRAMENTO, CALIFORNIA 2 January 11, 1999 3 ---oOo--- 4 C.O. STUBCHAER: Good morning. We will call the 5 hearing to order. We are going to read a new opening 6 statement into the record. 7 This is the time and place for the commencement of 8 Phase II-A of the hearing on Bay-Delta Water Rights. This 9 hearing is being held in accordance with the Revised Notice 10 of Hearing dated May 6, 1998, and the supplement issued 11 August 12, 1998. 12 I am Jim Stubchaer. There may be other Board members 13 with us later. I will serve as Hearing Officer in this 14 hearing. In keeping with earlier practice, John Brown will 15 serve as Cohearing Officer. The designation of Hearing 16 Officer is subject to change when Governor Davis appoints a 17 new chair. 18 It may not be possible, due to other important matters, 19 for all Board Members to be present at all times during this 20 hearing, as we are seeing right now. To keep up on the 21 hearing, each Board Member has a complete copy of the 22 documents the parties have submitted and will have the 23 transcripts as soon as they are available. All Board 24 Members are committed to giving this important matter our 25 full consideration. CAPITOL REPORTERS (916) 923-5447 8092 1 Assisting the Board today are Executive Director, up 2 here at the podium with me, Walt Pettit, to my left. At 3 staff table, Barbara Liedigh, Senior Staff Counsel; Victoria 4 Whitney, Supervising Engineer; Tom Howard, Assistant 5 Division Chief, Division of Water Rights. 6 The purpose of this phase of the hearing is to afford 7 the parties an opportunity to present relevant testimony, 8 maps, charts, studies and other materials to create an 9 evidentiary record which will assist the Board in making 10 determinations on the three issues listed in the August 11 12th, '98, supplement to the revised Notice of Public 12 Hearing. 13 The key hearing issues for Phase II-A are listed in the 14 revised supplement just mentioned. I am going to read them 15 into the record: 16 One, what requirements for implementing the 17 flow-dependent objectives in the 1995 Bay-Delta Plan should 18 be adopted in a water right decision applicable to the San 19 Joaquin River watershed? 20 Two, with respect to the San Joaquin River Agreement, 21 should the Board add water right terms and conditions to the 22 water rights of the parties to the agreements or take other 23 action consistent with the agreement? 24 Should the Board action, consistent with the Agreement, 25 establish or eliminate responsibility on the part of water CAPITOL REPORTERS (916) 923-5447 8093 1 right holders listed in Enclosure 2a of the revised notice 2 we just mentioned, who are signatories to the Agreement? 3 Should any Board action consistent with the Agreement 4 require the Department of Water Resources and the Bureau of 5 Reclamation take full responsibility for meeting the 6 Bay-Delta flow objectives that otherwise might be allocated 7 to other water right holders within the San Joaquin River 8 watershed? 9 Three, what evidence supports the Board's exercising 10 its jurisdiction and taking action regarding the water 11 rights listed in Enclosure 2 for the purpose of ensuring 12 that water originating within the watersheds of the 13 Bay-Delta Estuary is diverted and used within the 14 constraints of the California Constitution, Article X, 15 Section 2 of the Reasonable Use Doctrine, and the public 16 trust doctrine? 17 The order of proceeding for this hearing is to first 18 take any new appearances of parties, then receive general 19 statements, that is, applicable to all or several of the 20 hearing phases non-evidentiary oral statements from those 21 who wish to present only a policy statement. The Board will 22 also accept any written policy statements. 23 A policy statement is a non-evidentiary statement. It 24 is subject to the limitations listed in the hearing notice. 25 Presenters of policy statements should fill out a speaker CAPITOL REPORTERS (916) 923-5447 8094 1 card and give it to the staff at the front table. 2 After the general policy statements, we will first hear 3 policy statements specific to Phase II-A and then hear any 4 opening statement from parties who do not plan to present a 5 case in chief in Phase II-A. 6 Morning, Mr. Del Piero. 7 MEMBER DEL PIERO: Good morning. 8 C.O. STUBCHAER: Next we will hear the cases in chief 9 of the parties presenting evidence in Phase II-A. Each case 10 in chief may be commenced with an opening statement. After 11 any opening statement, we will hear testimony from the 12 witnesses called by the party presenting the case in chief, 13 followed by cross-examination by other parties, Board staff 14 and Board Members. This procedure will be followed for each 15 party presenting a case in chief. 16 Redirect testimony and recross-examination limited to 17 the scope of the redirect testimony will be permitted. The 18 San Joaquin River Group will be called to present the first 19 case in chief. After all the cases in chief are completed, 20 the parties may present rebuttal evidence addressing 21 specified case in chief evidence presented by adversarial 22 parties. 23 I encourage everyone to be efficient in presenting 24 their cases and cross-examination. Except where we approve 25 a variation, we will follow the procedures set forth in the CAPITOL REPORTERS (916) 923-5447 8095 1 Board's regulation and the attachment to the hearing notice 2 entitled "Bay-Delta Water Rights Hearing Information 3 Concerning Appearances by Parties." 4 We will use a timer to keep track of time. As usual 5 the timer will be stopped during objections, procedural 6 points and other interruptions. 7 Regarding cross-examination, each party will be allowed 8 up to one hour to cross-examine a witness or panel of 9 witnesses. At the end of the hour the cross-examiner will 10 be given the opportunity to make an offer of proof as to 11 additional matters which the cross-examiner wishes to cover 12 and to make an estimate of time needed to complete the 13 cross-examination. If additional cross-examination is 14 allowed, after an offer of proof, the cross-examiner may be 15 requested to stipulate to the amount of additional time 16 needed to complete. 17 We have observed that the order in which 18 cross-examiners are called makes a difference. Many of the 19 questions asked by late examiners have been based on 20 previous cross-examination, not the direct testimony. In 21 the interest of fairness, we will attempt to assign the 22 order of cross-examination in a random manner. In order to 23 prevent late requests to cross-examine, parties who are not 24 sure if they wish to cross-examine should identify 25 themselves when the hearing officer asks, "Who wishes to CAPITOL REPORTERS (916) 923-5447 8096 1 cross-examine a panel?" They can be included in the order 2 of cross-examination. If they later determine it is not 3 necessary to cross-examine a panel, they can so state when 4 called. 5 Unless announced otherwise, we will schedule each day 6 of hearing to begin at 9:00 a.m., conclude at 4:00 p.m., 7 with one hour for lunch and two 12-minute breaks during the 8 day. We will try to announce any changes in the schedule at 9 least a day in advance. 10 Incidentally, I don't know if you all know it or not, 11 the hearing scheduled for February 11th has been cancelled. 12 The February 11th is no longer a scheduled hearing date. 13 We will call for each party's testimony and related 14 cross-examination in the following order: 15 San Joaquin River Group Authority, U.S. Department of 16 Interior -- incidentally, this order is posted on the web 17 site. It has not changed from what is on the web site -- 18 Department of Water Resources, Department of Fish and Game, 19 South Delta Water Agency, Central Delta Water Agency, 20 Central San Joaquin Water Conservation District, City of 21 Stockton, Stockton East Water District, Tuolumne Utilities 22 District, Natural Heritage Institute, Natural Resources 23 Defense Council, Save San Francisco Bay Association. 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 8097 1 not previously appeared at this hearing. 2 Will those making appearances, please state your name 3 and the parties whom you represent and any change in your 4 address so the Court Reporter can enter this information 5 into the record. 6 Any new parties not previously identified themselves? 7 Seeing none, we will continue. 8 Copies of the service list are available from the staff 9 so you can verify we have your current address. The Court 10 Reporter is present to prepare a transcript of the 11 proceedings. Parties wishing to have copies of the 12 transcript must make their own arrangements with the Court 13 Reporter. Copies of the transcript will be posted on the 14 Bay-Delta web page no sooner than 60 days after the Board 15 receives the transcript from the Court Reporter. 16 The Board staff also regularly posts updates of the 17 status of this proceeding on the web page and has recently 18 posted a list of the accepted exhibits. The staff can give 19 you the web page address if you need it. 20 I will now administer the oath or affirmation. Will 21 those persons planning to testify during this phase who have 22 not been previously sworn, please stand and raise your right 23 hand. Anyone? 24 No new witnesses. Okay. 25 At this time we will hear any general policy CAPITOL REPORTERS (916) 923-5447 8098 1 statements. I am missing here. I am sorry. 2 All requests to the hearing officer on behalf of a 3 party should be made at the lectern by the party's 4 representative, including requests regarding order of 5 cross-examination of the witnesses. No private requests, 6 please. Also, parties are requested to switch cell phone 7 ringers off while you're in the hearing room. 8 At this time we will hear any general policy statements 9 as I previously stated, and then, after that, we will hear 10 policy statements for Phase II-A only. After that we will 11 hear the opening statements from parties who do not plan to 12 present a case in chief in Phase II-A. Parties who will 13 present a case in chief in Phase II-A will be given an 14 opportunity to make their opening statements when they are 15 called to present their cases in chief. 16 Yes, Mr. Sexton. 17 MR. SEXTON: Good morning, Mr. Stubchaer. For purpose 18 of clarification, I just want to make clear that in this 19 phase I am representing the Exchange Contractors. Mr. 20 Birmingham is now representing the San Luis and 21 Delta-Mendota Water Authority along with Westlands Water 22 District. 23 C.O. STUBCHAER: Thank you for that clarification. 24 Any other clarifications? 25 Any general policy statements regarding Phase II-A? CAPITOL REPORTERS (916) 923-5447 8099 1 Opening statements, then, from parties who are not 2 presenting a case in chief. 3 Mr. Bobker. 4 Morning. 5 MR. BOBKER: Good morning, Mr. Stubchaer, Mr. Del 6 Piero, Members of the Board, staff. My name is Gary Bobker. 7 I am Program Director with the Bay Institute of San 8 Francisco. 9 We were heavily involved in the development of both the 10 Vernalis staff and management plan and the San Joaquin River 11 Agreement as proposed. Important to make a distinction 12 between those two things, as I think you know. 13 We spoke during Phase II on the VAMP and our support 14 for the VAMP itself, the proposed flow export regime that we 15 believe may provide equivalent protection to the '95 Water 16 Quality Control Plan's Vernalis flow objective. And if the 17 Board's analysis bears that out, we would support its 18 implementation. 19 We have continuing concerns about the San Joaquin River 20 Agreement, though, as proposed, and that is what I would 21 like to address my policy statement or opening statement 22 toward. 23 There are three main points that I would like to 24 address. The first is funding to implement the San Joaquin 25 River Agreement and Vernalis Adaptive Management Agreement. CAPITOL REPORTERS (916) 923-5447 8100 1 In order to view the San Joaquin River Agreement, which does 2 contain a funding element, it is not about paying some of 3 the water users in the San Joaquin Basin to meet legal 4 obligations under the '95 Water Quality Control Plan. 5 Rather it's about the Bureau of Reclamation and the 6 Department of Water Resources agreeing on an interim basis 7 to accept that legal obligation to meet the Vernalis 8 objective and about paying the San Joaquin River Group to 9 help them assist in complying with that obligation. 10 Under that formula transfer funds may be appropriate. 11 The transfer funds isn't appropriate if it comes out of 12 dedicated ecosystem restoration funding. Generally, those 13 funds are dedicated to the -- intended to supplement 14 baseline regulatory or statutory protections. In addition, 15 in the case of the Friant surcharge, which is the likely 16 source for the San Joaquin River Agreement, those funds are 17 needed to support restoration in the San Joaquin River below 18 Friant Dam and to achieve anadromous fish restoration 19 objectives for salmon doubling under the CVPIA. 20 Use of the dedication restoration funds, including the 21 Friant surcharge, would make the San Joaquin River Agreement 22 unacceptable to Bay Institute and to, I believe, just about 23 every conservation organization that's been involved in this 24 issue. 25 We believe there are more appropriate sources of CAPITOL REPORTERS (916) 923-5447 8101 1 funding. Specifically, such as those identified for 2 conjunctive use projects or other water supply management 3 projects that would be used to pay for development of such 4 projects by the San Joaquin River Group in support of 5 implementation of the San Joaquin River Agreement. 6 I think the Board is going to have, based on past 7 history, a desire perhaps to punt on this issue. I really 8 would urge you not to do that, defer the funding issue, to 9 the parties. Because you should look at whether good or bad 10 precedents are being set about the use of funding to help 11 implement the '95 Water Quality Plan. I think that is the 12 responsibility you have. 13 The second point I wanted to make was, if we had the 14 proper funding sources for the San Joaquin River Agreement, 15 the Bay Institute may be able to support this agreement. 16 That doesn't mean that we don't believe that the Bureau of 17 Reclamation doesn't have an obligation to release flows from 18 Friant to achieve a variety of benefits, including Vernalis 19 flow objective. 20 However, there are various separate proceedings that 21 are underway to address that obligation. We believe that 22 the San Joaquin River Agreement is flexible enough to be 23 modified if the Friant obligations of the Bureau change, 24 although such modification would require oversight approval 25 by the Board. In no way should implementation of a CAPITOL REPORTERS (916) 923-5447 8102 1 framework for or a framework, such as the San Joaquin River 2 Agreement, to implement the VAMP should be viewed as 3 precluding improvement or increases in releases from Friant 4 Dam. 5 Finally, one issue that we raised in Phase II that I 6 just wanted to remind the Board of; that is that the 7 Vernalis Adaptive Management Agreement and the San Joaquin 8 River Agreement do not, and were never intended to, 9 represent compliance with the '95 Water Quality Control 10 Plan's narrative objective for salmon protection. We are 11 sponsoring testimony being presented by the Natural Heritage 12 Institute that you will be hearing later about compliance 13 with narrative objective. We think that is one area where 14 in this phase and throughout the water rights proceeding the 15 Board has not paid adequate attention. We encourage the 16 Board to more aggressively examine that issue. 17 Thank you. I will submit a written statement of the 18 opening statement to staff. 19 C.O. STUBCHAER: Very well. Thank you, Mr. Bobker. 20 Matthew Campbell. 21 MR. CAMPBELL: Thank you, Mr. Chairman, Mr. Del Piero. 22 Matthew Campbell, Deputy Attorney General on behalf of 23 the Department of Fish and Game. 24 Here at the outset of Phase II-A of these proceedings, 25 the Department of Fish and Game reiterates its statement in CAPITOL REPORTERS (916) 923-5447 8103 1 Phase II that it has signed the letter of intent to support 2 the San Joaquin River Agreement and Vernalis Adaptive 3 Management Plan components, and continues to support that 4 alternative. 5 DFG's support is based on the reasons expressed in the 6 testimony of biologists Dr. Loudermilk, Dr. Herbolt, Dr. 7 Hansen, Dr. Kjelson and Ms. Brandes in Phase II. According 8 to that evidence, DFG believes the successful implementation 9 of the San Joaquin River Agreement and VAMP will provide 10 equivalent protection for San Joaquin River fall-run salmon 11 to that provided by the 1995 Bay-Delta Plan. Based on that 12 evidence, it is the Department's position that the potential 13 biological benefits of the San Joaquin River Agreement and 14 VAMP are dependent upon whether VAMP is successfully 15 implemented by the parties. 16 At this time, DFG would also like to comment that if, 17 in its opinion, over the past six months the focus of these 18 hearings has strayed far afield from the specific limited 19 purposes set forth in the Board's hearing notice. As 20 required by that hearing notice, the Board must focus, and 21 the following are quotes from the May 6th revised hearing 22 notice, "narrowly on assigning responsibility for meeting 23 the objectives of the 1995 Bay-Delta Plan." 24 With respect to meeting the objectives, the proceeding 25 is intended to establish water right implementation CAPITOL REPORTERS (916) 923-5447 8104 1 requirements within the Bay-Delta, not to establish specific 2 in-stream flow requirements to protect fish and wildlife 3 upstream of the Delta. The proceeding involves a limited 4 review of existing water rights. To the extent that it 5 modifies existing water rights, it will do so only for the 6 limited purpose of assigning responsibility for meeting 7 water quality objectives in the 1995 Bay-Delta Plan. 8 DFG believes that in Phase II-A the Board will again be 9 presented with evidence, testimony, argument, positions that 10 are extraneous to the specific limited purposes for which 11 this hearing has been noticed. Accordingly, DFG requests 12 that the Board, in its conduct of Phase II-A, adhere to the 13 narrow focus and specific limitations required in the 14 hearing notice. 15 Thank you very much. 16 C.O. STUBCHAER: Thank you, Mr. Campbell. 17 Mr. Candee. 18 MR. CANDEE: Thank you, Mr. Stubchaer and Members of 19 the Board, my name is Hamilton Candee. I am representing 20 the Natural Resources Defense Council. 21 We already submitted a two-page letter to the Board 22 dated September 15th, which really sets out our views on the 23 role we want to play in this hearing. We will not be 24 putting on a case in chief, although we will be cooperating 25 with other environmental groups and participating throughout CAPITOL REPORTERS (916) 923-5447 8105 1 the hearing. 2 I would like to just say that I support the three 3 points, the three concerns, that Bobker raised in his 4 opening statement. I'll resubmit our letter of September 5 15th as a formal opening statement later on that. 6 Thank you. 7 C.O. STUBCHAER: Thank you, Mr. Candee. 8 Any other opening statements? 9 Mr. Maddow. 10 MR. MADDOW: Morning, Mr. Stubchaer, Members of the 11 Board. I am Robert Maddow, appearing on behalf of the 12 Contra Costa Water District. 13 I have an opening statement of which I will give 20 14 copies to Ms. Whitney. I will provide copies to all the 15 other parties. I have a few with me today. We will pass 16 them out. Perhaps I can do that now if Mr. Birmingham would 17 give me some assistance. I won't read the entire statement. 18 We will provide it to all parties. 19 Contra Costa Water District appeared in Phase II and 20 did some limited cross-examination concerning the proposed 21 San Joaquin River Agreement. We have been urging the Board 22 throughout the proceedings, in regard to settlement 23 agreements, to look at a series of principles. The purpose 24 for our statement here at the beginning of Phase II-A is to 25 review and reinforce those principles if we can. CAPITOL REPORTERS (916) 923-5447 8106 1 First, we believe that the flow obligations of those 2 contributing to or backstopping any settlement agreement 3 need to be clearly identified. We think there needs to be 4 full disclosure of the scope and extent of the flow 5 obligations the parties undertake through a settlement 6 agreement, like the San Joaquin River Agreement or any 7 alternatives that are proposed to it. And, similarly, we 8 think there needs to be full disclosure of what the backstop 9 obligations of those who would be providing backstop flows 10 would be. 11 The alternatives to the San Joaquin River Agreement we 12 expect are likely to raise the same questions as are raised 13 by the agreement itself from significant contributions of 14 flow from the state project and federal project can be 15 required to make up for some of the shortfalls, and we think 16 it is important that those contributions be understood since 17 they can have a potential affect on the operation of the 18 entire state and federal projects. 19 We think that the contributions made to backstop 20 settlement agreements, including the San Joaquin River 21 Agreement or alternatives to it, could have an impact on the 22 water supplies available to the state and federal projects 23 to meet their contractors' needs systemwide. And we think 24 that is particularly a concern in dry and critical years, 25 given the testimony and evidence that was received in Phase CAPITOL REPORTERS (916) 923-5447 8107 1 II. 2 We think that full disclosure of those flow 3 contributions, also, will be important in a variety of other 4 ways, understanding whether or not any impacts are going to 5 be transferred to other users in other portions -- other 6 water users in other portions of the Bay-Delta watersheds, 7 for example. Determining whether or not the state and 8 federal projects can meet all of their obligations, looking 9 at all of the settlement agreements that appears to be 10 backstopping. Understanding what their roles will be when 11 we get to Phase VIII, all of those things are going to 12 assisted if we get full disclosure of the responsibilities 13 of not only the parties to the agreement but the 14 backstoppers. 15 Our second point is that neither the San Joaquin River 16 Agreement nor alternatives that may be proposed to it are 17 going to currently discharge all the Bay-Delta obligations 18 of the parties which have jointly proposed the San Joaquin 19 River Agreement. We recognize that it is a special 20 agreement that is for a limited period of time. Contra 21 Costa Water District is not one of the parties jointly 22 proposing it, but we have not opposed it. 23 We think it needs to be kept in perspective. We think 24 we need to remember the approval of that agreement or any of 25 the alternatives that may be brought forward shouldn't be CAPITOL REPORTERS (916) 923-5447 8108 1 confused with the determination that those parties are 2 permanently relieved from their entire Bay-Delta 3 obligation. If one goes back to the draft EIR for these 4 proceedings, you can see that those parties would have 5 substantial Bay-Delta flow-related obligation depending on 6 the alternative that is ultimately selected. We believe 7 that the degree to which there is going to be any relief 8 from any portion of the Bay-Delta obligation by virtue of 9 approval of the agreement needs to be clearly understood and 10 needs to be understood that the relief is only temporary, 11 and that there will need to be future proceedings once these 12 sort of test programs, like the San Joaquin River Agreement, 13 expire. 14 Our final point is that in addition to the water supply 15 and the flow considerations that are involved in the San 16 Joaquin River Agreement and any alternatives to it, water 17 quality effects need to be kept in mind, need to be 18 addressed, need to be understood. The principal motivations 19 behind the San Joaquin River Agreement appear to the Contra 20 Costa Water District to be flow considerations, water supply 21 considerations. We understand that. But as in the case 22 with all settlement agreements, Contra Costa believes that 23 the water quality impacts need to be analyzed, need to be 24 taken into consideration in determining whether to approve 25 the agreement from Phase II or any of the alternatives that CAPITOL REPORTERS (916) 923-5447 8109 1 may come up in this case. 2 Given the combined water quality aspect in the 3 proceeding, particularly in light of the municipal and 4 industrial uses that are made of water from the Delta and 5 the new world of regulation of the waters used from 6 municipal and industrial purposes, we respectfully suggest 7 that the Board needs to give significant attention to those 8 water quality impacts when considering the San Joaquin River 9 Agreement or any of the other alternatives that may come 10 before you in this phase. 11 I say, Mr. Stubchaer, we will provide copies of these 12 remarks to all the parties. 13 Thank you. 14 C.O. STUBCHAER: Thank you, Mr. Maddow. 15 Mr. Jackson. 16 MR. JACKSON: Michael Jackson representing the Regional 17 Council of Rural Counties. 18 The Regional Council of Rural Counties will not be 19 putting on a case in chief. However, we will be taking part 20 in cross-examination throughout Phase II-A. 21 It is our position that the Bureau of Reclamation is 22 responsible for meeting the water quality control standards 23 in the Delta on the San Joaquin River side. That 24 responsibility should not be shared by senior water rights 25 holders. The law has been clear. That practice has been CAPITOL REPORTERS (916) 923-5447 8110 1 clear for the last 30 or 40 years, that the Bureau and DWR, 2 where DWR has facilities that would be helpful, is 3 responsible for meeting water quality standards, fishery 4 standards in the Bay-Delta. That was the theory under which 5 the projects were built. 6 That particular requirement to meet standards in the 7 Delta should not be put on other folks that would 8 essentially change both the law and practice in California 9 to the extent that it would make for great uncertainty in 10 terms of water rights law, in terms of the ability for the 11 parties to work together in a cooperative sense. If you 12 change the standards, you change who's responsible for the 13 standards. Essentially, it opens up a race to the bottom in 14 terms of political authority, in terms of who can do the 15 best lobbying, who can essentially reach the ability to pawn 16 off their obligations to other parties. 17 The Bureau is responsible. The Bureau should be 18 responsible in conformance with the area of origin laws. 19 Basically, the use of New Melones as the only facility to 20 meet the standard is cutting off folks who have superior 21 water rights. That should not take place. If that happens 22 in the New Melones system, it will be a forerunner of what 23 will happen on every other system controlled by the Bureau. 24 The Bureau also has the authority to meet the narrative 25 standard. Now, I am not 100 percent sure at this point, CAPITOL REPORTERS (916) 923-5447 8111 1 having been through almost every day of these hearings, 2 whether or not we are trying to meet the narrative standards 3 in the tributaries. I agree with Cal Fish and Game that 4 this was not noticed for tributary flows. Having had some 5 experience in tributary flows, that has not worked out 6 satisfactorily. I understand that those flows could be 7 allocated and it might solve part of this problem. 8 But the notice does not indicate that that is going to 9 happen here, except that it seems to say that we are going 10 to meet the water quality standards, including the narrative 11 standard which can only be met by tributary flows. So I 12 will be very curious as to how the Chair decides to define 13 the series of questions that would be asked by a number of 14 parties to try to clarify that particular issue. 15 It is also important that the Bureau meet the water 16 quality standard. We can't set these standards and then 17 back away from them. If the standard is wrong, it should be 18 reset in some hearing noticed to do that. This one is not. 19 This hearing is noticed to meet the standards. All of the 20 Central Delta standards of water quality should be met by 21 whatever order the Board sets forth. That will enable folks 22 then to figure out how to work out among theirselves, 23 through the greatest transfer mechanism in history, which is 24 money, how they are going to meet that particular standard 25 among themselves. CAPITOL REPORTERS (916) 923-5447 8112 1 There are many good things about the San Joaquin River 2 Agreement in that the Bureau is beginning to purchase water 3 from senior water rights holders to help the Bureau meet its 4 own requirements in the Delta. That's a good thing. It is 5 not a good thing if the Bureau is able to slide on the 6 standards, and that seems to be what is happening here. The 7 Bureau is responsible. If you make them responsible and 8 require more water, they will simply have to go buy it. 9 That will have a great benefit, both in terms of 10 environmental quality, in terms of fostering water transfers 11 and in finally solving the problems that we are all here to 12 solve. 13 The fourth point, which RCRC would be making throughout 14 this particular hearing, is that there are -- there is 15 essentially one practical way to meet the water quality 16 standards, and that, I think, will come through in the 17 evidence again. But what certainly has been -- has come 18 through the testimony of the Bureau in the past. If you 19 remember the operations officer of the Bureau testified that 20 the only real way to meet the outflow requirements of the 21 Water Quality Control Plan is to modulate the pumps. The 22 other ways are not as efficient. I think that is the 23 evidence before you because that is the history of the 24 operations of the projects. 25 So, in that record it is extremely important that CAPITOL REPORTERS (916) 923-5447 8113 1 Contra Costa Water District's point about the backstop be 2 the key here. The Bureau and DWR are responsible. They are 3 the backstop. The backstop should be complete. The 4 backstop should be in terms of diversions in the Delta, and 5 the backstop should spread the inflow equitably to meet the 6 narrative standards. 7 Thank you very much. 8 C.O. STUBCHAER: Thank you, Mr. Jackson. 9 Any other opening statements from parties not 10 presenting a case in chief? 11 Mr. Campbell. 12 MR. CAMPBELL: Counsel for the Department of the 13 Interior, I understand, has been unavoidably detained and 14 may want to provide an opening statement. I am wondering 15 whether some time for that could be reserved for him. 16 C.O. STUBCHAER: They are a party presenting a case in 17 chief. 18 MR. CAMPBELL: I don't believe they are presenting a 19 case in chief, so, appropriately, they would make their 20 statement now. 21 C.O. STUBCHAER: Mr. Del Piero. 22 MEMBER DEL PIERO: For everyone's information, 23 virtually every airport in the Bay Area is now shut down. 24 So if there were people arriving by plane, they won't. 25 C.O. STUBCHAER: Interestingly enough, I was listening CAPITOL REPORTERS (916) 923-5447 8114 1 to the airport on my scanner this morning. The first plane 2 from L.A. landed easily, but not from San Francisco. 3 But, anyway, we will permit him and any other 4 unavoidably detained parties to make their opening 5 statements. 6 Thank you for calling that to our attention. 7 I neglected to welcome Co-Hearing Officer Brown. 8 C.O. BROWN: Good morning. 9 C.O. STUBCHAER: We will proceed with the case in chief 10 with the San Joaquin River Group Authority. 11 Morning, Mr. O'Laughlin. 12 MR. O'LAUGHLIN: Morning, Mr. Stubchaer and Members of 13 the Board. Happy New Year. We haven't been here for a 14 while. I would like to, if possible, before starting with 15 the opening statement, there is a -- I have been talking to 16 the other attorneys, and if this would be a good time, there 17 is about three minor procedural matters we would like to 18 bring to the Board's attention, if we could. 19 C.O. STUBCHAER: All right. 20 MR. O'LAUGHLIN: The first one is when the hearing left 21 off on Phase V, the question was when the closing briefs 22 would be due. We set a time period for, I believe, 60 days 23 after the transcript was mailed out. I was wondering if we 24 can -- if it would be prudent to set a firm date since some 25 people may look at when they got their transcripts and when CAPITOL REPORTERS (916) 923-5447 8115 1 they were sent out differently than others. That might be 2 helpful to the parties. 3 In regards to that, let me bring one other thing up. 4 It's going to be difficult to do a Phase V closing brief 5 because part of the redaction that was to take place between 6 Westlands Water District and Trinity County, to my 7 understanding, has not occurred. I think it would be 8 advisable if you found out what the status of that redaction 9 was. Because, if not, the record is still incomplete for 10 Phase V. We don't know what is going to be in and what is 11 going to be out. 12 Then the final point I would like to bring up is a -- 13 the Board talked about a workshop in January. I was 14 wondering if there had been any further discussion with the 15 Board and staff as to when we would be scheduling a workshop 16 in January. 17 C.O. STUBCHAER: Taking your questions in reverse 18 order, we did discuss a date. 19 What is that date, please, Ms. Leidigh? 20 MS. LEIDIGH: January 28th at 1:00. 21 C.O. STUBCHAER: January 28th at 1:00 we will have the 22 workshop discussing the various phased decision-making 23 possibilities, January 28th starting at 1:00. 24 Ms. Leidigh. 25 MS. LEIDIGH: Do you want me to address the other two CAPITOL REPORTERS (916) 923-5447 8116 1 questions? 2 C.O. STUBCHAER: Yes, please. 3 MS. LEIDIGH: They are related. As a matter of fact, 4 they are part of the same package. We have not sent out a 5 letter stating when the closing briefs will be due for Phase 6 V because we have not yet received the transcript with the 7 Trinity materials in it that was to be partially redacted. 8 And when we last met, the plan was that as soon as we had 9 all the transcripts for Phase V, we would send out a notice 10 setting the date for briefs to be filed approximately 60 11 days after that. So, under, at least, the current plan we 12 would wait until we get that redaction before we send out 13 the letter setting the date. 14 C.O. STUBCHAER: Yes. I see how it would not be 15 possible to give you a firm date until we know that, of 16 course. 17 MR. O'LAUGHLIN: Can we hear from Trinity County or 18 Westlands as to when? 19 MEMBER DEL PIERO: That is what I was going to ask. I 20 see Mr. Birmingham holding his temples there. 21 C.O. STUBCHAER: Mr. Birmingham. 22 MEMBER DEL PIERO: Happy New Year. 23 MR. BIRMINGHAM: We received last Thursday, via 24 E-mail, a proposal from Mr. Stokely of Trinity County 25 concerning what they though should be redacted under the CAPITOL REPORTERS (916) 923-5447 8117 1 stipulation. I don't know what the delay was between the 2 date they appeared and last Thursday. I provided to them 3 our proposal on the day they appeared. 4 We sent back, via E-mail yesterday, our response to 5 their proposal. I was holding my temples based upon the 6 E-mail that we received. I won't go into detail, but based 7 on the E-mail that we received there appears there may be 8 some misunderstanding on the part of Trinity County as to 9 what the stipulation was. 10 I am confident that we will be able to work it out 11 quickly with Mr. Jackson, who acted as Trinity County's 12 counsel during that phase of the hearing. What I would 13 suggest is that if we are not able to resolve this issue by 14 the conclusion of this week, that on the first hearing day 15 next week we report back to the Board and the Board 16 establish a specific time when the Board can resolve any 17 dispute that exists. 18 C.O. STUBCHAER: Any response, Mr. Jackson? 19 MR. JACKSON: That would be fine with me. I 20 essentially left the country. And Mr. Stokely has been 21 dealing with it. I don't know much about it, but I'll find 22 out very quickly. 23 C.O. STUBCHAER: Thank you, Mr. Birmingham. 24 Anything else, Mr. O'Laughlin? 25 MR. O'LAUGHLIN: Nothing else, Chairman Stubchaer. If CAPITOL REPORTERS (916) 923-5447 8118 1 I may, I would like to take a little extra time in my 2 opening statement. I've coordinated this opening statement 3 with all the parties to the San Joaquin River Agreement and 4 believe it will be, hopefully, an all-encompassing opening 5 statement for the parties to the San Joaquin River 6 Agreement. I timed it a couple times. Depending on how 7 fast I talk, it runs somewhere between 20 and 25 minutes. 8 C.O. STUBCHAER: Well, we'll give you five minutes 9 extra so Esther can keep up with you. 10 MR. O'LAUGHLIN: Thank you very much. 11 MEMBER DEL PIERO: Doesn't make any difference how fast 12 you talk. 13 ---oOo--- 14 DIRECT TESTIMONY BY SAN JOAQUIN RIVER GROUP AUTHORITY 15 BY MR. O'LAUGHLIN 16 MR. O'LAUGHLIN: My name is Tim O'Laughlin. I am 17 appearing on behalf of the San Joaquin River Group Authority 18 and its members. Members of the San Joaquin River Group 19 Authority are comprised of Modesto Irrigation District, 20 Turlock Irrigation District, South San Joaquin Irrigation 21 District, Oakdale Irrigation District, Friant Water Users 22 Authority, Merced Irrigation District, San Joaquin River 23 Exchange Contractors. 24 I would like to thank the Board for the opportunity to 25 address you going into Phase II-A. By this point the Board CAPITOL REPORTERS (916) 923-5447 8119 1 has heard hundreds of hours of testimony. The Board has 2 heard from scores of witnesses on issues ranging from 3 biology to hydrology, from science to economics, from social 4 policy to the language of statutes. The Board has heard 5 from attorneys and other representatives of parties about 6 issues of evidence, of procedure and of law. The Board has 7 received thousands of pages of exhibits and accepted many of 8 those into evidence. In fact, just this weekend I was 9 looking in my office, and I noticed that the transcript for 10 this hearing testimony has already exceeded 7,000 pages and 11 growing. 12 With this deluge of material that is coming to you, 13 sometimes it is hard to focus on what facts or concepts are 14 important. I would like to take this opportunity to discuss 15 with you for a few moments the concepts that we think will 16 assist you in making a determination in regards to the 17 alternatives presently before the Board. 18 If the Bay-Delta hearing is about one thing, it is 19 about balance, is about balancing the needs of the water 20 users and environmental values, about balancing the needs of 21 urban water users and agricultural water users. It is about 22 balancing the right of those who take water out of the Delta 23 for use in cities and farms and those who discharge wastes 24 into the Delta. 25 Balance forms the heart of the three main legal CAPITOL REPORTERS (916) 923-5447 8120 1 principles which are the underpinnings for the Bay-Delta 2 Water Rights Hearings. First and foremost, it is the 3 Porter-Cologne Water Quality Control Act, under which this 4 1995 Water Quality Control Plan was promulgated. Seeking to 5 protect the water quality of the state, the Legislature 6 passed the act so that, and I quote, "The activities and 7 factors which effect the water qualities of the state can be 8 regulated to attain the highest water quality which is 9 reasonable." 10 This word "reasonable" is of fundamental importance and 11 one which permeates the basic legal authority under which 12 this Board is acting. In Porter-Cologne the Legislature 13 gives guidances as to who this Board should implement the 14 concept of reasonableness. Water quality, stating that 15 reasonableness can be determined by "considering all the 16 demands being made and to be made on those waters and the 17 total values involved, beneficial and detrimental, economic, 18 social, tangible and intangible." 19 As the Board well knows, this is an extraordinary broad 20 score of inquiry for the Board to undertake. But this 21 breadth of inquiry was confirmed by the Racanelli decision. 22 In that decision, Judge Racanelli wrote "the Board's 23 paramount duty is to provide reasonable protection to 24 beneficial uses, considering all the demands made upon the 25 water." Elsewhere Judge Racanelli wrote that the CAPITOL REPORTERS (916) 923-5447 8121 1 Porter-Cologne Act grants the Board broad discretion to 2 establish reasonable standards consistent with statewide 3 interest. Throughout the opinion, the breadth of the 4 Board's discretion and the scope of its review are 5 consistently reinforced. 6 Balance is also at the heart of the Board's 7 consideration of the issue of public trust. In National 8 Audubon the California Supreme Court stated that the state 9 has an affirmative duty to take public trust into account in 10 the planning and allocation of water resources and to 11 protect public trust uses whenever feasible. 12 At the same time the Supreme Court acknowledged that, 13 and I quote, that as a matter of practical necessity, the 14 state may have to approve appropriations despite foreseeable 15 harm to public trust resources. In doing so, however, the 16 state must bear in mind its duty as trustee to consider the 17 effect of the taking on the public trust and to preserve, so 18 far as consistent with the public trust interest, the use 19 protected by the trust. 20 Here, like the Legislature in the Porter-Cologne Act, 21 the Supreme Court finds that the key to applying the public 22 trust is balancing the needs of water users with protection 23 of public trust resources. Finally, the last underpinning 24 of this hearing is Article X, Section 2 of the California 25 Constitution, requires a balancing approach to water use. CAPITOL REPORTERS (916) 923-5447 8122 1 In essence, that section states that because water is scarce 2 in California it needs to be conserved. So water must be 3 put to beneficial use, must not be used wastefully or 4 unreasonably. 5 Again, however, this requires the Board to weigh the 6 use of water and the means by which it is diverted with the 7 need of the state to conserve water so as to make the 8 fullest use possible of the water. Again, the issue is 9 balance. 10 I know what I am saying is nothing new to this Board or 11 to parties involved in this proceeding, for this Board has 12 been using the concept of reasonableness and balance as its 13 basic approach to the Bay-Delta Water Rights Hearing. 14 Starting with the 1995 Water Quality Control Plan itself, 15 the Board has consistently stated that it was conducting a 16 wide-ranging inquiry and would not base its decision on any 17 one factor or consideration. The breadth of the scope of 18 the inquiry is best shown through the seat of questions the 19 Board asked in its hearing notice. 20 The Board asked: What set of components should be 21 combined in a decision to implement the water quality 22 objectives? How should each of the selected alternatives be 23 modified to insure that, one, it meets the reasonableness 24 requirement of the California Constitution, Article X, 25 Section 2; is feasible; appropriately protects water rights, CAPITOL REPORTERS (916) 923-5447 8123 1 fishing and public trust uses; meets county of origin and 2 watershed statutory provisions; and, five, meets all other 3 applicable provisions of law? 4 In short, the Board, in asking those questions, is 5 looking at the alternative and is asking: Can it be done? 6 Should it be done? And is it legal? 7 While the Board has certainly taken a broad view of its 8 responsibilities, the concepts of reasonableness and balance 9 do not stop with the Board in the Bay-Delta Water Rights 10 Hearing. Rather, this Board and the parties to these 11 proceedings know that the Board's actions in this 12 proceedings are but one part of many of a myriad of ongoing 13 processes that are addressing the needs of the Bay-Delta 14 system. 15 First, the Bureau of Reclamation, through the Central 16 Valley Project Improvement Act, has an obligation to achieve 17 the doubling of anadromous fish independently of any action 18 of this Board and has sought to comply with the requirement 19 through the Anadromous Fist Restoration Program. Second, 20 the Central Valley Region Water Quality Control Board, 21 covering the Sacramento and San Joaquin River watersheds, 22 has recently announced the triennial review of its Basin 23 Plan. This review will include consideration of salinity 24 and dissolved oxygen issues in the watershed, which are also 25 part of this hearing. CAPITOL REPORTERS (916) 923-5447 8124 1 Finally, CalFed is currently considering appropriate 2 physical changes to the Bay-Delta system, which, in turn, 3 will have effects on water quality. In fact, CalFed has 4 provided for ecosystem restoration through its CalFed 5 category three process, which addresses nonflow issues. 6 Clearly, the actions of this Board, while of vital 7 importance to the Bay-Delta, are but one of a much larger 8 group of activities which are trying to balance the many 9 competing needs to the Bay-Delta water system in a 10 reasonable manner. The Board itself has acknowledged this 11 interconnectiveness. The implementation of the 12 flow-dependent objective alone is not and cannot magically 13 solve all the problems of the Bay-Delta estuary. Both the 14 environmental concerns of fish, wildlife ecosystems and the 15 human concerns of agriculture, cities and other consumptive 16 uses of water cannot be solved in this hearing. 17 The 1995 Water Quality Control Plan acknowledges that 18 simply meeting the numeric objectives through flow alone may 19 not satisfy the narrative objective of doubling the number 20 of salmon. Rather, the flow objectives are simply a piece 21 of a larger process involving many entities and many actions 22 in many different areas of action. In the 1995 plan the 23 Board states that this plan is, in conjunction with the 24 Regional Water Quality Control Board plans and other State 25 Water Resources Control Board plans and policies and CAPITOL REPORTERS (916) 923-5447 8125 1 programs under jurisdiction of other agencies, such as the 2 Central Valley Project Improvement Act provides a 3 coordinated and comprehensive ecosystem approach to the 4 protection of beneficial uses of the Bay-Delta estuary. 5 This reference to other agencies is not "passing the 6 buck," but rather an acknowledgement that the solution to 7 the Bay-Delta problems will not come solely through the 8 Board's actions. In view of the concepts that I have just 9 described, it will help set the stage for the application to 10 the alternatives presently before the Board. 11 The point of Phase II-A is to determine whether the 12 Board should adopt the San Joaquin River Agreement as the 13 contribution of the entities within the San Joaquin River 14 Basin for meeting the flow-dependent objectives for the San 15 Joaquin River Basin. And it is the firm belief of all the 16 members of the San Joaquin River Group that the parties who 17 signed the letter of support for the agreement that the 18 River Agreement is the most reasonable and most balanced 19 alternative before this Board. 20 The Board has heard a great deal of evidence that 21 supports the adoption of the San Joaquin River Agreement in 22 Phase II. As the Board may recall, in response to a motion 23 made by the River Group, the Board decided to bifurcate the 24 consideration of the River Agreement into Phase II and II-A. 25 Stated briefly, in Phase II the question was whether the CAPITOL REPORTERS (916) 923-5447 8126 1 agreement had sufficient merit to warrant further 2 consideration. The Board answered yes to that question. In 3 Phase II-A the question is whether the Board should select 4 the River Agreement as the preferred alternative. 5 Consequently, the San Joaquin River Group presented the 6 bulk of its evidence supporting the River Agreement during 7 Phase II in order to make the strongest case possible that 8 the River Agreement merited the Board's full and complete 9 consideration as an alternative. In the interest of 10 brevity and as we have stated in our pleadings that we filed 11 with the Board, we will probably make an opening statement 12 and call one witness and rely on the evidence that we 13 previously submitted during Phase II. 14 However, I would like to take a few minutes to 15 highlight for the Board the evidence presented by the river 16 group in Phase II. The majority of that evidence addressed 17 what the river group feels is the basic question before this 18 Board concerning the San Joaquin River Agreement. Does the 19 River Agreement provide protection that is equivalent to the 20 1995 Water Quality Control Plan? The evidence presented by 21 the River Agreement shows that the answer to the question is 22 yes. 23 The River Agreement contains two basic pledges. First, 24 the members of the San Joaquin River Group Authority pledge 25 to provide pulse flows that, in concert with actions by the CAPITOL REPORTERS (916) 923-5447 8127 1 Bureau of Reclamation and the Department of Water Resources, 2 will provide the same level of protection for migrating 3 salmon smolts as the 1995 Water Quality Control Plan. 4 Secondly, the Bureau of Reclamation and the Department 5 of Water Resources pledge to meet the combined 6 responsibilities of the remaining flow-dependent objectives 7 of the 1995 Water Quality Control Plan for the San Joaquin 8 River Basin. The proponents of the river group produced a 9 substantial body of credible evidence in Phase II that 10 demonstrates that the San Joaquin River Agreement, more 11 specifically the Vernalis Adaptive Management plan, provides 12 a level of protection to the salmon that is equivalent to 13 the protection provided under the 1995 Water Quality Control 14 Plan during the pulse flow period. 15 The River Agreement does this by providing -- did this 16 by providing testimony in two areas. The first testimony 17 was by the biologist. In Phase II the San Joaquin River 18 Agreement proponents presented the testimony of a panel of 19 biologists, which included Bill Loudermilk from the 20 California Department of Fish and Game, Marty Kjelson and 21 Patricia Brandes from the United States Fish and Wildlife 22 Service, Chuck Hansen from State Water Project Contractors 23 and Bruce Herbolt from the United States Environmental 24 Protection Agency. 25 And each of these biologists testified unequivocally CAPITOL REPORTERS (916) 923-5447 8128 1 that the provisions of the VAMP provided a level of 2 protection for salmon that is equivalent to that provided 3 under the 1995 Water Quality Control Plan. While the 4 numbers are not the same, the outcome is. It is important 5 to understand how they arrived at their conclusion. 6 The San Joaquin River Agreement and the VAMP provide a 7 package of three actions. First, there are pulse flows in 8 the tributaries and main stem of the San Joaquin River. 9 Second, there are reduced exports from the Delta during the 10 pulse flow period. And, finally, there is the installation 11 of the Head of Old River Barrier. It is this package taken 12 together that provides the level of protection. The river 13 group does not deny as was pointed out by several parties 14 that the flows under the River Agreement are not the same as 15 those under the 1995 Water Quality Control Plan. But the 16 River Agreement and the VAMP are not concerned with flows 17 alone. 18 The entire package, flows, limiting exports and the 19 Head of Old River Barrier: The uncontroverted evidence and 20 testimony of biologists demonstrated that the coordination 21 of the flows, exports and the Head of Old River Barrier in 22 VAMP will result in benefits which are equivalent to the 23 1995 Water Quality Control Plan. 24 The second main area of testimony presented by 25 proponents of the River Agreement was on hydrology. Mr. CAPITOL REPORTERS (916) 923-5447 8129 1 Steiner's testimony demonstrated that the flow levels 2 indicated in the River Agreement are achievable. Based on 3 the historic hydrology of the San Joaquin River and the 4 Delta, the water called for in the River Agreement will be 5 made available. Dr. List testified with the flows in the 6 VAMP and the Head of Old River Barrier in place, the vast 7 majority of water in the San Joaquin River from the pulse 8 flow would stay in the main stem of the San Joaquin River. 9 Further, with lower exports, more water moves past the pumps 10 and out through the Delta. Together, the testimony of these 11 two experts indicate that VAMP and the River Agreement with 12 the combination of pulse flows, export limitations and 13 barrier installations will have a beneficial affect on the 14 hydrology of Delta that will help salmon smolt migration. 15 The second pledge of the River Agreement is the pledge 16 of the Bureau of Reclamation and the Department of Water 17 Resources to meet other flow-dependent objectives of the 18 1995 Water Quality Control Plan. We have already heard here 19 this morning several parties expressing interest in the 20 hearing further about this matter. You will hear from Mr. 21 Dwight Russell from the Department of Water Resources on 22 this point. And we understand that some Sacramento Valley 23 water users may call Lowell Ploss from the Bureau of 24 Reclamation in rebuttal to also address this point about 25 backstop. CAPITOL REPORTERS (916) 923-5447 8130 1 Now, during Phase II the Board heard some criticisms 2 from the opponents of the River Agreement and VAMP. First, 3 the Board heard testimony and argument that the actions in 4 the River Agreement, such as the export restrictions and the 5 Head of Old River Barrier would happen with or without the 6 River Agreement because of such things as the Delta Smelt 7 Biological Opinion or the Interim South Delta Program of 8 barrier placement. But the River Agreement is not about 9 possible actions that may or may not happen in isolation. 10 The River Agreement and the VAMP are about coordination of 11 all of these, flows, exports and barriers, through a 12 consensus-based approach that develops a program upon which 13 all the parties can agree. 14 The River Agreement also commits the parties to seeking 15 to ensure that the actions in the agreement do occur and 16 occur every year. We will believe that will happen because 17 the parties who have made this agreement are the same 18 parties who have the regulatory authority to make these 19 actions happen. 20 Some parties also criticized the structure of the River 21 Agreement itself. They claim that based on the pulse flow 22 amounts on the existing flow would provide the parties to 23 the agreement the ability to manipulate the flows for their 24 own advantage. This assertion is unfounded, however, for 25 two reasons. CAPITOL REPORTERS (916) 923-5447 8131 1 First, remember that the decision making under the 2 River Agreement is consensus-based. On all parties, 3 including Department of Fish and Game, United States Fish 4 and Wildlife Services, will participate and must agree to 5 the existing flow determination. Decision by consensus 6 ensures that the agencies most directly responsible for 7 protecting the salmon will not be outvoted or ignored. 8 Second, the San Joaquin River Agreement flows are not 9 the only flow requirements in the San Joaquin River Basin. 10 There are many, many factors controlling the levels of flows 11 to the rivers, including flow releases from reservoirs, and 12 FERC flows and other flows that lead to what occurs as 13 existing flow in the San Joaquin River. In reality, dam 14 operators only have -- I mean that as dam operators -- only 15 have a narrow window of discretion over the flows they must 16 bypass or release. Thus, there is little opportunity for 17 manipulation. 18 The River Agreement was criticized because of the 19 dispute resolution provisions and the ability of the parties 20 to cancel the agreement. Rather than being flaws in the 21 agreement, the river group believes that these provisions 22 are part of the basis for strength of the agreement. Having 23 clear, dispute resolution provisions means that, if and 24 when disputes do arise, the parties can concentrate on 25 resolving the dispute rather than bickering over process and CAPITOL REPORTERS (916) 923-5447 8132 1 cost. The parties will be able to concentrate on the 2 resolution rather than the dispute. 3 The provisions on the cancellation of the agreement 4 should not concern the Board, but reassure the Board. By 5 laying out clearly the responsibilities and actions of the 6 parties, the cancellation provisions guarantee that there 7 would not be a regulatory vacuum in the unlikely event that 8 the parties cannot make the agreement work. 9 Finally, several parties criticized the uncertainties 10 surrounding the agreement. They said because the Bureau 11 does not have an operations plan to implement the San 12 Joaquin River Agreement in every year, the Board could not 13 approve. They said the pulse flows provided in the 14 agreement may not lead to the doubling to salmon production 15 as called for in the 1995 Water Quality Control Plan. They 16 say that the River Agreement may not guarantee all the 17 flow-dependent objectives would be in all the circumstances 18 and at all times. 19 We acknowledge these concerns. However, back to the 20 theme of reasonableness and balance, we ask, "Comparison to 21 what?" 22 Each and every alternative suffers from some 23 deficiencies. The Bureau and, indeed, the other parties do 24 not have the operation plans prepared to implement any of 25 the other alternatives in the Draft EIR/EIS. In contrast CAPITOL REPORTERS (916) 923-5447 8133 1 to the other alternatives, however, the San Joaquin River 2 Agreement does provide a thorough and comprehensive plan for 3 implementing the pulse flows contained in the 1995 Water 4 Quality Control Plan. 5 As for guarantees of Doubling Salmon Production Act, 6 the 1995 Water Quality Control Plan itself states that flow 7 alone will not lead to doubling of salmon and many other 8 actions in addition to simply meeting the flow-dependent 9 objectives will need to occur. As for meeting all the 10 requirements of the 1995 Water Quality Control Plan, at all 11 times and in all circumstances, no alternative accomplishes 12 this goal on the San Joaquin River. 13 The opponents of the River Agreement do not discuss one 14 additional type of uncertainty that pervades this process; 15 that is, the legal uncertainty. This Board, as an 16 institution, knows better than any other party the extensive 17 history of legal action over Bay-Delta water rights issues. 18 Despite that extensive history, there are still many, many 19 open legal questions. 20 For example, what is interplay between the Public Trust 21 Doctrine, water rights priority system and the Reasonable 22 Use Doctrine of Article X, Section 2? What is the extent of 23 protection afforded by area of origin and county of origin 24 statutes? No matter who is right or wrong on these issues, 25 those undecided legal issues brought to the court could CAPITOL REPORTERS (916) 923-5447 8134 1 result in additional delays and costs. 2 Please understand this is not a threat of litigation 3 nor a criticism of this Board's conduct in the hearing by 4 the river group. But the issue of legal uncertainty is 5 there and must be acknowledged. With the San Joaquin River 6 Agreement a large portion of those legal uncertainties have 7 been resolved by consensus-based negotiations by numerous 8 parties to the Bay-Delta proceedings. 9 For that matter, most of the uncertainty in regards to 10 the San Joaquin River Basin and legal issues will not have 11 to be addressed for 12 years. This uncertainty is part of 12 the reasons why this Board, along with Governor Pete Wilson 13 and Secretary of the Interior Bruce Babbitt and many, many 14 others encouraged the development of consensus-based 15 solutions. 16 The river group heard this call and acted upon it. The 17 river group wants to move this process forward, not bog it 18 down in endless legal maneuverings. This is a reasonable, 19 balanced approach to the process. 20 Ultimately, when we are done with Phase II and II-A, 21 what is it that all the evidence will show? The river group 22 believes the evidence it has presented, even in the critical 23 light cast upon it by opponents of the River Agreement, 24 shows that the river with VAMP best balances the competing 25 demands on water in the Bay-Delta system. The evidence CAPITOL REPORTERS (916) 923-5447 8135 1 shows that the balance and reasonableness of the River 2 Agreement provides the fit of all the alternatives to the 3 relevant law, including Porter-Cologne, public trust, and 4 Article X, Section 2, of the California Constitution, in 5 meeting the flow-dependent objectives of the San Joaquin 6 River. 7 The river group encourages the Board to look at the 8 evidence, listen to the testimony and compare what the river 9 group and River Agreement are offering with the other 10 alternatives posed in the Draft EIR/EIS. The river group 11 believes that the Board should keep in mind some of the 12 following questions: 13 Is the alternative based on consensus between various 14 stakeholders? The San Joaquin River Agreement is. The 15 federal and state projects, major water interests and 16 environmental groups all participated in crafting the River 17 Agreement. These agencies spent hundreds, if not thousands, 18 of hours and millions of dollars in arriving at a 19 consensus-based solution to bring to this Board. While 20 clearly not all parties to this hearing support the River 21 Agreement, what other alternative can claim the broad-based 22 support of the River Agreement? 23 If the agreement is not adopted, what message are we 24 sending to parties to arrive at a consensus-based solution 25 to our Bay-Delta problems? What evidence is there of the CAPITOL REPORTERS (916) 923-5447 8136 1 effectiveness of the alternative? The San Joaquin River 2 Group has offered testimony of biologists and hydrologists 3 that demonstrate that the San Joaquin River Agreement meets 4 the requirement of the 1995 Water Quality Control Plan by 5 balancing competing demands for water. No other alternative 6 has so much evidence supporting it. 7 Does the alternative balance the competing demands for 8 water? How soon can the alternative be implemented? This 9 is an issue that has not been discussed much here. The San 10 Joaquin River Agreement can be implemented almost 11 immediately. Pending completion of the CEQA process, 12 Bay-Delta hearing and this Board issuing an order and 13 completion of the NEPA/CEQA process, which will be completed 14 on March 1st of 1999, we are ready to proceed forward with 15 implementing the San Joaquin River Agreement. In fact, the 16 parties to the River Agreement are prepared to go forward, 17 if possible, starting this April. 18 Does any other alternative offer the comprehensive 19 study in monitoring provided by the VAMP? Only the River 20 Agreement provides for a coordinated package of controlled 21 scientific study of the relationship between the flow, the 22 barrier and export reductions on salmon smolt survival in 23 the Bay-Delta. Does any other alternative provide directly 24 for improvements in conjunctive use in the San Joaquin River 25 Basin? The River Agreement provides that the river group CAPITOL REPORTERS (916) 923-5447 8137 1 members will use funds received to improve water management 2 and conjunctive use. 3 We will admit that we do not have all the answers to 4 the many questions concerning the long-term water quality 5 issues in the Bay-Delta. The simple proof is that nobody 6 does. If all the parties stood on what they perceived to be 7 their rights, then the only winner would be delay, while the 8 losers would be all of us, and most of all the Bay-Delta 9 estuary. 10 The proponents of the River Agreement want to be part 11 of the solution rather than part of the problem. What 12 Lowell Ploss said during these hearings concerning the 13 Bureau is just as applicable to all the proponents of the 14 river. We are using the San Joaquin River Agreement as an 15 opportunity to move on to other water supply and 16 environmental issues in the valley and not be in a prolonged 17 battle over water rights. This is what the river group is 18 offering the Board with the River Agreement, the opportunity 19 to put into place a balanced, reasonable alternative that 20 will benefit the San Joaquin River Bay-Delta, to provide a 21 foundation to move on to other ideas, solutions and 22 practices to improve the Bay-Delta. 23 As the Board recognized, it is but a part of the 24 process. In adopting the San Joaquin River Agreement, the 25 State Water Resources Control Board can provide those other CAPITOL REPORTERS (916) 923-5447 8138 1 processes the foundations to move forward and address other 2 issues in regards to the Bay-Delta. 3 Thank you for your time and your patience and 4 consideration of my opening statement. The San Joaquin 5 River Group is now prepared to call its first witness. 6 C.O. STUBCHAER: Thank you, Mr. O'Laughlin. 7 MR. O'LAUGHLIN: We'd like to call Mr. Marc Van Camp. 8 Mr. Van Camp is seated at the table with me. 9 Mr. Van Camp, you've had your -- you've taken the 10 affirmation? 11 C.O. BROWN: Hold up a minute, Mr. O'Laughlin. 12 C.O. STUBCHAER: We are going off record. 13 (Discussion held off record.) 14 C.O. STUBCHAER: Back on the record. 15 Please introduce your witness and proceed with your 16 direct testimony. 17 MR. O'LAUGHLIN: Thank you, Chairman Stubchaer. 18 Mr. Van Camp, you have taken the oath of affirmation; 19 is that correct? 20 MR. VAN CAMP: Yes. 21 MR. O'LAUGHLIN: Mr. Van Camp, your professional 22 biography was entered as the San Joaquin River Group 23 Authority Exhibit Number 7; is that correct? 24 MR. VAN CAMP: Yes, it is. 25 MR. O'LAUGHLIN: You prepared your testimony today, CAPITOL REPORTERS (916) 923-5447 8139 1 which has been marked San Joaquin Group Authority Exhibit 2 24; is that correct? 3 MR. VAN CAMP: Yes. 4 MR. O'LAUGHLIN: Could you provide the Board with a 5 brief summary of your testimony. 6 MR. VAN CAMP: Yes, I can, and I can guarantee it will 7 be shorter than that opening statement. 8 The purpose of my testimony today is to simply identify 9 in general terms the type of projects that the member 10 agencies of the San Joaquin River Group will be 11 investigating and pursuing pursuant to the agreement. 12 This is based on my work with Merced Irrigation 13 District, specifically, and my participation in the San 14 Joaquin River Group meetings and discussions with the other 15 agencies. 16 As you heard in Phase II, the agreement results in a 17 new demand on those agencies. That new demands could result 18 in possible water supply impacts. Funding from the 19 agreement is intended to be used to investigate and 20 implement projects. Those projects are, hopefully, to avoid 21 water supply impacts from this new demand. 22 In general, the projects are to optimist water 23 supplies, to improve water supply reliability. These 24 projects, we believe, are consistent with the AB 3316, and 25 include, in general, the following: CAPITOL REPORTERS (916) 923-5447 8140 1 Groundwater management. The agencies intend to 2 investigate conjunctive use projects within their 3 boundaries. This will include investigating recharge basins 4 and other studies relative to recharge. It will include 5 investigating in lieu recharge. Currently significant lands 6 are being irrigated from groundwater as a result of a lot of 7 permanent crops and sprinkler irrigation, drip irrigation. 8 It is the hopes that, through the funding, incentive 9 programs can be developed such that those water users 10 irrigating from groundwater at present can be turned to 11 surface water during years of available water supply. 12 Another area of the projects will be improved surface 13 water management, and this is, again, consistent with AB 14 3316. This improved water management -- and you note I use 15 the term "management" versus conservation, there is a lot of 16 misunderstanding, misconceptions when you use the word 17 "conservation." 18 This improved surface water management will minimize 19 losses, spills that may go to unusable basins, groundwater 20 basins, in deep percolation. Of course, that will have to 21 be coordinated with the groundwater management plans I 22 identified earlier. 23 The agencies will also have to investigate and possibly 24 increase system flow capacity. This may be necessary to 25 accommodate conjunctive use projects and the in lieu CAPITOL REPORTERS (916) 923-5447 8141 1 recharge. If we do put a greater demand on the surface 2 supply during those years of available surface supply, it 3 may be necessary to do something to the existing systems to 4 accommodate them. 5 Another project would be system automation. It is 6 intended that the agencies will use the funding to 7 investigate automating their systems. This, of course, has 8 to do with water management within the districts, but it is 9 also considered part of management outside the member 10 agencies, measurements and monitoring that deal with the 11 flows in the rivers and streams. 12 Other activities, just in general, that funding will be 13 used for will be a greater detailed mapping of the systems 14 so we can understand where bottlenecks might exist, 15 coordination with the agencies in research and development 16 relative to water management activities, filtration for the 17 conjunctive use projects. 18 So, in conclusion, this is, again, just a very brief 19 general description of the types of projects these folks are 20 looking at. The majority of their energy has been spent on 21 the agreement itself, and it is hoped that now their energy 22 can be spent at investigating and implementing these 23 projects to assure or to avoid water supply impacts 24 resulting from making flows available for the San Joaquin 25 River Agreement. CAPITOL REPORTERS (916) 923-5447 8142 1 MR. O'LAUGHLIN: Are you done? 2 That is the conclusion of Mr. Van Camp's testimony. 3 C.O. STUBCHAER: Thank you, Mr. Van Camp. 4 Before we take the break, let's ask potential 5 cross-examiners to identify themselves. And for those of 6 you who were not here at the beginning, I know some of you 7 came in late, if you are not sure, please identify yourself 8 anyways so we can put you in the order of 9 cross-examination. 10 All right. Mr. Jackson, Mr. Birmingham, Mr. Nomellini, 11 Mr. Herrick. 12 And who else, besides the Board and staff? 13 Just four. Okay. We will -- 14 MR. BOBKER: Mr. Stubchaer, Mr. Candee stepped out for 15 a moment. You might want to check with him when he steps 16 back in. 17 C.O. STUBCHAER: We are going to take our 12-minute 18 break now. We will ask him after the break. 19 Thank you. 20 (Break taken.) 21 C.O. STUBCHAER: The hearing will come to order. 22 Before we proceed with the cross-examination, Mr. Sandino 23 has an item to discuss. 24 Mr. Sandino. 25 MR. SANDINO: Thank you, Mr. Stubchaer. CAPITOL REPORTERS (916) 923-5447 8143 1 We are moving a little bit more quickly than what I 2 anticipated. I have a conflict this afternoon. I wonder if 3 it would be possible to accommodate the Department of Water 4 Resources, if by chance it looks like we would be going this 5 afternoon? We would be ready to go first thing tomorrow 6 morning or anytime after that. 7 C.O. STUBCHAER: Are there any objections to the 8 Department of Water Resources going tomorrow instead of 9 today? 10 Seeing none, your request is -- 11 Mr. Herrick. 12 MR. HERRICK: I don't have an objection. I talked to 13 counsel before this. We had preferred to put on Alex and 14 Dr. Orlob together. I think we are after DWR. We can start 15 Alex today if you'd like, if that works. If somebody has 16 their case ready, whatever works best. 17 C.O. STUBCHAER: When we get to you, we can discuss if 18 you want to delay, Mr. Herrick. 19 MR. HERRICK: Thank you very much. 20 MR. SANDINO: Thank you. 21 C.O. STUBCHAER: Thank you. 22 Mr. Sandino, your request is granted. 23 MR. O'LAUGHLIN: Just briefly, Mr. Chairman. Everybody 24 knows this. It was in our original letter we sent to the 25 Board. If any party wants to request a witness that we put CAPITOL REPORTERS (916) 923-5447 8144 1 on in Phase II, we would make the accommodation to make 2 those witnesses available. So far, I've not received any 3 request to ask for witnesses to be available in Phase II-A. 4 C.O. STUBCHAER: Thank you for that offer. 5 C.O. BROWN: It was in your letter? 6 MR. O'LAUGHLIN: Yes. 7 C.O. STUBCHAER: Mr. Candee, I believe you were out of 8 the room. Do you wish to cross-examine Mr. Van Camp? 9 MR. CANDEE: No. 10 C.O. STUBCHAER: The order of cross-examination will be 11 as follows: Mr. Nomellini, Mr. Herrick, Mr. Jackson, Mr. 12 Birmingham. 13 Mr. Nomellini. 14 ---oOo--- 15 CROSS-EXAMINATION OF THE SAN JOAQUIN RIVER GROUP AUTHORITY 16 BY CENTRAL DELTA PARTIES 17 BY MR. NOMELLINI 18 MR. NOMELLINI: Mr. Chairman, Members of the Board, 19 Dante John Nomellini for Central Delta parties. 20 Mr. Van Camp, have you made any calculations that would 21 reflect your estimate of the reduction in water supply to 22 the San Joaquin River Agreement parties due to the San 23 Joaquin River Agreement? 24 MR. VAN CAMP: I did not do it for the San Joaquin 25 River Group. CAPITOL REPORTERS (916) 923-5447 8145 1 MR. NOMELLINI: Did you do it for any of the members of 2 the San Joaquin River Group? 3 MR. VAN CAMP: As indicated in the, I believe, Phase II 4 testimony, each party considered potential impacts, water 5 supply impacts, and I did do that for Merced Irrigation 6 District. 7 MR. NOMELLINI: What was your determination as to the 8 water supply impact to the Merced Irrigation District of the 9 San Joaquin River Agreement? 10 MR. O'LAUGHLIN: Objection. I am going to raise the 11 attorney work product privilege here. Mr. Van Camp has not 12 been offered as a witness in regards to water supply impacts 13 to the Merced Irrigation District or to any of the members 14 of the San Joaquin River Group. None of that testimony has 15 been offered into evidence. He has not been offered as an 16 expert on that. 17 If he did work privately for Merced Irrigation 18 District, I will assert the privilege in that regard. 19 C.O. STUBCHAER: As you know, we allow pretty broad 20 discretion on cross-examination. Regarding the 21 attorney-client privilege, I want to consult. 22 MEMBER DEL PIERO: Excuse me. I need some 23 clarification. You are asserting the privilege on behalf of 24 who? 25 MR. O'LAUGHLIN: Merced Irrigation District. CAPITOL REPORTERS (916) 923-5447 8146 1 MR. ROBBINS: I will raise it on behalf of the Merced 2 Irrigation District. 3 MEMBER DEL PIERO: You are representing Merced 4 Irrigation District today? Let's -- if you are not 5 identified as counsel for Merced Irrigation District, then 6 the proper counsel has to raise the privilege. 7 MR. ROBBINS: Jim Robbins on behalf of Merced 8 Irrigation District. 9 I will reassert the objections posed by Mr. O'Laughlin, 10 who does, in fact, represent Merced Irrigation District as a 11 component party of the San Joaquin River Group. 12 MEMBER DEL PIERO: Wait a second, though. The 13 privilege goes to the district. If, in fact, the privilege 14 exists, it goes to the district. Let's not switch hats 15 here. Either he is going to answer questions on behalf of 16 San Joaquin River Group or answers questions on behalf of 17 Merced Irrigation District. So, get it straight. 18 Pardon me, Mr. Chairman. 19 C.O. STUBCHAER: Thank you, Mr. Del Piero. 20 Anyway, we're going to go off the record for a brief 21 consultation on the matter of privilege. 22 (Discussion held off record.) 23 C.O. STUBCHAER: Back on the record. 24 The objection is overruled. You may answer the 25 question. CAPITOL REPORTERS (916) 923-5447 8147 1 MR. O'LAUGHLIN: You can answer the question. 2 MR. VAN CAMP: Relative to supply impacts to Merced 3 Irrigation District. I did do that analysis. I do not have 4 those numbers with me. It did some water supply impacts in 5 some years. 6 MR. NOMELLINI: Could you give an estimate of the range 7 of the magnitude of the water supply impacts for Merced 8 Irrigation District related to the San Joaquin River 9 Agreement? 10 MR. VAN CAMP: I would prefer not to do that without 11 having looked at the numbers for some time. 12 MR. NOMELLINI: Recognizing your preference, do you 13 have any estimate as to what the range might be, if you 14 recall? 15 MR. VAN CAMP: In an order magnitude zero to 50,000 16 acre-feet. 17 C.O. STUBCHAER: Per year? 18 MR. VAN CAMP: In a given year. 19 MR. NOMELLINI: In your testimony you talked about 20 surface water management, and I believe you used the words 21 "investigation as to what alterations might take place with 22 regard to surface water management." Is that a correct 23 statement of what you were testifying to? 24 MR. VAN CAMP: Yes. 25 MR. NOMELLINI: To this point in time there has been no CAPITOL REPORTERS (916) 923-5447 8148 1 specific outline or particular projects that would be 2 carried out by the San Joaquin River Group Authority, but 3 rather simply an investigation into the subject? 4 MR. VAN CAMP: I am not aware of specific projects 5 within each district. 6 MR. NOMELLINI: Do you know whether or not the water 7 rights for these particular participating agencies in the 8 San Joaquin River Agreement would have to be modified in 9 order to facilitate the provision of water into the San 10 Joaquin River Agreement? 11 MR. VAN CAMP: What specific provision? 12 MR. NOMELLINI: Would there be any amendments to any of 13 the water rights of the various parties to the San Joaquin 14 River Agreement that would be required to facilitate 15 providing water for the purpose of meeting the San Joaquin 16 River Agreement? 17 MR. VAN CAMP: I believe the answer is yes. In fact, 18 there is a section that requires or asks, calls for a 19 petition to be filed by the parties, and that petition has 20 been filed. 21 MR. NOMELLINI: Do you know whether or not it was 22 served on the other parties to this proceeding? 23 MR. VAN CAMP: The current status is the staff of the 24 Division of Water Rights is in the process of preparing the 25 notice. I recently received calls from staff with questions CAPITOL REPORTERS (916) 923-5447 8149 1 on those petitions. 2 MR. NOMELLINI: Is it your understanding that the San 3 Joaquin River Agreement is intended to meet the narrative 4 standard in the 1995 Water Quality Control Plan? 5 MR. VAN CAMP: I am not prepared to answer that 6 question. 7 MR. NOMELLINI: Do you know what the narrative standard 8 is? 9 MR. VAN CAMP: I don't know it well enough to answer 10 the question. 11 MR. NOMELLINI: You have not been asked to quantify 12 flow as related to the narrative standard in the 1995 Water 13 Quality Control Plan? 14 MR. VAN CAMP: No. 15 MR. NOMELLINI: You mentioned the loss of water to 16 unusable basins. Do you recall that testimony? 17 MR. VAN CAMP: I do. 18 MR. NOMELLINI: You talked about minimizing spills to 19 unusable basins. 20 Where within the areas of the San Joaquin River 21 Agreement parties are the unusable basins that you are 22 speaking about? 23 MR. VAN CAMP: Again, I was not trying to identify 24 specific locations. In general, if those spills occurred to 25 unusable location or basins, then they could be recaptured CAPITOL REPORTERS (916) 923-5447 8150 1 and used and improve the management. In addition, some 2 spills may not reach the river, and those could be 3 recaptured and used, possibly, after investigation by the 4 parties. 5 MR. NOMELLINI: All right. Are there any unusable 6 groundwater basins within the boundary of Oakdale Irrigation 7 District? 8 MR. VAN CAMP: I believe I answered I do not know. 9 MR. NOMELLINI: Would your answer be the same with 10 regard to all the contributing parties to the San Joaquin 11 River Agreement? 12 MR. VAN CAMP: Yes, it would. 13 MR. NOMELLINI: In terms of spills to usable 14 groundwater basins, would you agree that in effect is not a 15 waste of water but a storage in the underground? 16 MR. VAN CAMP: In general, yes. Whether the management 17 of that water is what has to be considered is can that water 18 -- the management of that water be improved to meet all the 19 goals of the agreement. 20 MR. NOMELLINI: Do you agree that with regard to the 21 tributaries in question on the San Joaquin River Agreement 22 that there are accretions to the river system due to the 23 particular presence of groundwater? 24 MR. VAN CAMP: I do not know of the specific locations, 25 but I have assumed there are accretions from those CAPITOL REPORTERS (916) 923-5447 8151 1 districts. 2 MR. NOMELLINI: Do you know those in some cases to be 3 from groundwater, correct? 4 MR. VAN CAMP: That gets a little more difficult if 5 those accretions -- yes, I've made that assumption relative 6 to groundwater. 7 MR. NOMELLINI: If there was a reduction in spills to 8 groundwater in those areas where groundwater is accreting 9 the river, then, in fact, that reduction in spill to the 10 groundwater basins could adversely impact the accretion to 11 the river; is that correct? 12 MR. VAN CAMP: Under your example, yes, and the reverse 13 could also be true. 14 MR. NOMELLINI: The reverse being what? 15 MR. VAN CAMP: That if you're in an area that the river 16 is supplying water to a groundwater basin and the 17 conjunctive use raises the groundwater level such that it 18 could turn to an accretion. 19 MR. NOMELLINI: You were here when the opening 20 statement was made by, I think, Mr. Bobker that the 21 structure of the San Joaquin River Agreement could 22 accommodate flows, and I think the reference was to Friant. 23 Did you hear that statement? 24 MR. VAN CAMP: I did. 25 MR. NOMELLINI: Let's assume that flows are added to CAPITOL REPORTERS (916) 923-5447 8152 1 the San Joaquin River to meet the pulse flow requirements in 2 the spring from some source farther upstream, whether it be 3 Friant or San Luis or what have you, how would the 4 requirement for payment to the San Joaquin River Agreement 5 party be changed if that flow was introduced from those 6 sources, if you know? 7 MR. VAN CAMP: I do not know. 8 MR. NOMELLINI: Do you know whether or not the payment 9 under the San Joaquin River Agreement is in any way related 10 to the quantity of water actually released to meet the pulse 11 flow under the agreement? 12 MR. VAN CAMP: I believe that was testified in Phase 13 II, and I don't recall the answer to that question. 14 MR. NOMELLINI: If I told you that it was not in any 15 way related to the actual quantity of water released, do you 16 think that would be correct? 17 MR. VAN CAMP: I don't know. 18 MR. NOMELLINI: That's all I have. 19 Thank you. 20 C.O. STUBCHAER: Thank you, Mr. Nomellini. 21 Mr. Herrick. 22 ---oOo--- 23 CROSS-EXAMINATION OF THE SAN JOAQUIN RIVER GROUP AUTHORITY 24 BY SOUTH DELTA WATER AGENCY 25 BY MR. HERRICK CAPITOL REPORTERS (916) 923-5447 8153 1 MR. HERRICK: Thank you, Mr. Chairman, Board Members. 2 John Herrick for the South Delta Water Agency. 3 Morning, Mr. Van Camp. Just briefly going through your 4 testimony, you state that the agreement also intends that 5 members receiving funds commit a substantial portion of such 6 funding to projects designed to enhance water management 7 within the agencies' service areas. It goes on from there. 8 It is your understanding that there is no requirement 9 in the contract that those agencies commit a substantial 10 portion of those funds for those projects? 11 MR. VAN CAMP: That is my understanding. The agreement 12 says "intends.' 13 MR. HERRICK: In your testimony you talk about -- you 14 state that projects are primarily designed to enhance water 15 supply. Are you talking about creating additional yield or 16 something else? 17 MR. VAN CAMP: The projects are designed to maximize 18 the use of available water supplies. Investigating 19 conjunctive use, if new groundwater can be used to make more 20 surface available for in-stream flows during the drought 21 years, that is the aim of these projects. 22 MR. HERRICK: Do those projects look at only the uses 23 within their districts, or do they also include an 24 examination of other uses? 25 MR. VAN CAMP: I believe these projects are designed to CAPITOL REPORTERS (916) 923-5447 8154 1 look at the use of water and management of water within 2 their districts. 3 MR. HERRICK: The Board here is trying to determine how 4 to implement the 1995 Water Quality Control Plan, and 5 leaving the legal arguments aside, there are other uses of 6 the water, whether it is groundwater, downstream or 7 upstream. Have you taken that into consideration in any of 8 these projects that you have reviewed or proposed? 9 MR. VAN CAMP: The answer must be no, because I am 10 speaking to the projects in general. We don't have a 11 specific project outlined. 12 MR. HERRICK: Have you taken into consideration whether 13 or not an increase in available water in the districts 14 affects the available water in areas outside the district? 15 MR. VAN CAMP: No. 16 MR. HERRICK: Do you think that should be part of the 17 consideration of these projects? 18 MR. VAN CAMP: I don't know. 19 MR. HERRICK: What is your understanding of the goal of 20 these projects? 21 MR. VAN CAMP: Is to increase water supply reliability 22 for their members, noting that they have now committed to a 23 new demand in the San Joaquin River Agreement. 24 MR. HERRICK: I believe you said that you have gone 25 through no quantification of potential savings for these CAPITOL REPORTERS (916) 923-5447 8155 1 proposed projects for the San Joaquin River Group Authority 2 in general; is that correct? 3 MR. VAN CAMP: That's correct. 4 MR. HERRICK: You have done some work for Merced 5 Irrigation District? 6 MR. VAN CAMP: No. I think the testimony was relative 7 to the water supply impacts as a result of the agreement, 8 not relative to these projects. 9 MR. HERRICK: Has your analysis or did those proposed 10 projects anticipate having additional storage in the various 11 dams that the agencies either use or operate? 12 MR. VAN CAMP: I am not aware of that being considered 13 at this time. 14 MR. HERRICK: Let me just walk through that so I 15 understand. If an agency that is within the San Joaquin 16 River Group Authority institutes actions that result in 17 actually using less water because they are conserving the 18 water that they applied before -- let me back up. 19 Are these actions meant to reduce applied water or 20 reduce use of water? 21 MR. VAN CAMP: Possibly both. That will be evaluated 22 through the investigations I have identified here. 23 MR. HERRICK: Are you aware of any analysis that has 24 been done to see if there is a decrease in use of water, if 25 that may result in an increase in storage in any of the CAPITOL REPORTERS (916) 923-5447 8156 1 reservoirs? 2 MR. VAN CAMP: I am not aware of an analysis. If the 3 folks -- if the water users reduce their demands from their 4 reservoirs, that should back water into the reservoirs. 5 MR. HERRICK: Have you considered that in your analysis 6 of the effects on Merced Irrigation District? 7 MR. VAN CAMP: No, I have not. 8 MR. HERRICK: Will you? 9 MR. VAN CAMP: We will when we investigate each 10 project, yes. 11 MR. HERRICK: Let's go through a hypothetical to see if 12 it is something that you have considered in your analyses. 13 Let's say that downstream users without the San Joaquin 14 River Agreement some particular year type of sufficient 15 water. I will say downstream riparians have sufficient 16 water in the channel to exercise their rights. And at the 17 time in this hypothetical the upstream dams are trapping 18 natural flow for storage. That is the starting point. 19 Now let's switch to the San Joaquin River Agreement. 20 Let's say that the projects reviewed and implemented to 21 manage water better as you describe it, result in less 22 downstream flow. Do you think the analysis of those 23 projects should include whether or not that water that was 24 previously trapped as storage might now need to be released 25 as natural flow downstream? CAPITOL REPORTERS (916) 923-5447 8157 1 MR. VAN CAMP: I don't know whether they should. I 2 assume it would be covered in any environmental 3 documentation relative to those projects. 4 MR. HERRICK: This is me, I had a misunderstanding. Is 5 it correct that there has been an application to change 6 permits on this process? 7 MR. VAN CAMP: It is a petition to change the licenses 8 held by those that are contributing water. It has not been 9 noticed as I indicated earlier. It is a Section 1707 10 petition. 11 MR. HERRICK: Without getting too far afield, one of 12 the statements you make in your testimony is that projects 13 that might decrease the weeds in various laterals -- let me 14 start over because I lost my train of thought. 15 One of the components of a project may include taking 16 weeds out of laterals of irrigation supply ditches; is that 17 correct? 18 MR. VAN CAMP: That is identified, yes. 19 MR. HERRICK: Have you done any analysis whether or not 20 that is habitat for any endangered or threatened species or 21 anything like that? 22 MR. VAN CAMP: No. 23 MR. HERRICK: Would you anticipate that would be part 24 of an environmental review of such a project? 25 MR. VAN CAMP: I would anticipate it. CAPITOL REPORTERS (916) 923-5447 8158 1 MR. HERRICK: Is it possible that the yield of the 2 system might be decreased if the district saved more water 3 behind the dams as a result of their water management 4 practices? 5 MR. VAN CAMP: I haven't done any analysis regarding 6 that. 7 MR. HERRICK: Correct me if I am wrong. I understood 8 your originally drafted testimony, which was not submitted 9 -- which was dispersed but not submitted in Phase II, as Mr. 10 Nomellini asked, you talked about decreasing flows to basins 11 that were not used by beneficial users or not attributably 12 lost. Did you remove that from this testimony, this current 13 testimony? 14 MR. VAN CAMP: I don't know offhand. I thought that 15 when we identified -- let me look here for a second. 16 MR. HERRICK: Sure. 17 That is okay. That is not a trick question. I was 18 trying to get a clarification from Mr. Nomellini's line of 19 questioning. 20 Mr. Nomellini asked you about sort of an estimate on 21 the potential impacts to Merced Irrigation District from the 22 San Joaquin River Agreement. I believe you gave a range of 23 0 to 50,000 acre-feet. 24 Are you aware of any plans by Merced to deliver less 25 water to its customers or users pursuant to the effects of CAPITOL REPORTERS (916) 923-5447 8159 1 the San Joaquin River Agreement? 2 MR. VAN CAMP: I am not aware of delivering less at 3 this time. As I identified in the testimony, Merced has its 4 project, which includes conjunctive use. They are currently 5 investigating potential of conjunctive use within their 6 district. 7 MR. HERRICK: Do you know whether or not it is their 8 goal to still supply or to still have their users consume 9 the same amount of water? 10 MR. VAN CAMP: I don't know whether that has been 11 identified as a goal or not. 12 MR. HERRICK: Is it their intent to not decrease the 13 amount of water their users have available? 14 MR. VAN CAMP: It is the intent of the district to 15 provide the water needs for their members. If these 16 projects can reduce the applied water or come up with 17 conjunctive use projects to keep the water supply 18 reliability, that is their objective. 19 MR. HERRICK: As we began this line of questioning, do 20 you believe that necessitates an examination of whether or 21 not that affects water available for downstream users? 22 MR. VAN CAMP: I don't know whether that necessitates 23 the need to look for the availability of water for 24 downstream users. 25 MR. HERRICK: Why do you say that? CAPITOL REPORTERS (916) 923-5447 8160 1 MR. VAN CAMP: To the extent that the water right 2 holder can recapture tailwater, I believe that is within 3 their authority. 4 MR. HERRICK: Do you believe the Board should examine 5 any potential effects on downstream users? 6 MR. VAN CAMP: I would leave that up to the Board. 7 MR. HERRICK: I have no further questions. 8 Thank you very much. 9 C.O. STUBCHAER: Thank you, Mr. Herrick. 10 Mr. Jackson. 11 ---oOo--- 12 CROSS-EXAMINATION OF THE SAN JOAQUIN RIVER GROUP AUTHORITY 13 BY REGIONAL COUNCIL OF RURAL COUNTIES 14 BY MR. JACKSON 15 MR. JACKSON: Mr. Van Camp, in preparing for your 16 testimony today on behalf of the San Joaquin River Group, 17 did you review the Board's Draft Environmental Impact 18 Report? 19 MR. VAN CAMP: I have not recently. I have before. 20 MR. JACKSON: All right. Did you -- do you have any 21 evidence indicating what the responsibility of the parties 22 who are proposing the San Joaquin River Agreement should be 23 in regard to meeting the Water Quality Control Plan? 24 MR. VAN CAMP: I believe that is the reason we are 25 here. CAPITOL REPORTERS (916) 923-5447 8161 1 MR. JACKSON: Yes, it is. Do you have any evidence in 2 regard to that? 3 MR. VAN CAMP: Not that I know of. 4 MR. JACKSON: Have you done any comparison of 5 alternatives in the Draft EIR in terms of the ability to 6 meet the Water Quality Control Plan's flow objective between 7 the San Joaquin River Agreement and Alternative 1 of the 8 Board's Draft EIR? 9 MR. VAN CAMP: Have I done any analysis relative to the 10 Board's -- relative to the San Joaquin River Agreement and 11 the Board's Alternative 1? 12 MR. JACKSON: In terms of which one of them is more 13 likely to meet the flow objectives of the Water Quality 14 Control Plan? 15 MR. VAN CAMP: Not in regards to the flow objectives of 16 the Water Quality Control Plan. 17 MR. JACKSON: Have you done any analysis of the ability 18 to meet the flow objectives in the Water Quality Control 19 Plan between the San Joaquin River Agreement and Alternative 20 2 in the Board's Draft EIR? 21 MR. VAN CAMP: No. 22 MR. JACKSON: Have you done any analysis in regard to 23 the ability of -- a comparison between the San Joaquin River 24 Agreement and Alternative 3 of the Draft EIR in terms of 25 meeting the flow objectives in the Water Quality Control CAPITOL REPORTERS (916) 923-5447 8162 1 Plan? 2 MR. VAN CAMP: Not for meeting flow objectives. As I 3 indicated with Mr. Nomellini, we evaluated the potential 4 water supply impacts for Merced only. 5 MR. JACKSON: Have you done any comparison of the San 6 Joaquin River Agreement and its ability to meet the flow 7 objectives in the Water Quality Control Plan with 8 Alternative 4 of the Board's Draft EIR? 9 MR. VAN CAMP: I have not. 10 MR. JACKSON: Have you done any comparison between the 11 San Joaquin River Agreement and Alternative 5 of the Board's 12 Draft EIR in a comparison in which one better meets the flow 13 objectives of the Water Quality Control Plan? 14 MR. VAN CAMP: No. 15 MR. JACKSON: Have you done any analysis comparing the 16 San Joaquin River Agreement and Alternative 6, the 17 recirculation agreement, the recirculation alternative, in 18 terms of the ability to meet the Water Quality Control 19 Plan's flow objectives? 20 MR. VAN CAMP: I have not. 21 MR. JACKSON: Have you done any evaluation of any 22 comparison of any of the seven alternatives for implementing 23 the flow objectives with the San Joaquin River Agreement? 24 MR. VAN CAMP: I think we just went through the list. 25 I indicated that I had not. CAPITOL REPORTERS (916) 923-5447 8163 1 MR. JACKSON: Have you done any analysis or comparison 2 of the Board's Draft EIR alternatives with the San Joaquin 3 River Agreement to determine which alternative best meets 4 the reasonableness requirements of the California 5 Constitution, Article X, Section 2? 6 MR. VAN CAMP: I don't have any answer for that. 7 MR. JACKSON: Have you done -- when you say you don't 8 have an answer, does that mean you did no such a -- 9 MR. VAN CAMP: I did not, no. 10 MR. JACKSON: Have you done any examination to 11 determine whether the San Joaquin River Agreement is more 12 feasible than any of the Board's draft alternatives in their 13 Draft EIR? 14 MR. VAN CAMP: No specific analysis, no. 15 MR. JACKSON: Have you done any analysis of a 16 comparison of which of the draft environmental impact 17 reports alternatives best protects water rights, fish and 18 wildlife and public trust uses? 19 MR. VAN CAMP: I have not. 20 MR. JACKSON: Have you done any analysis to determine 21 whether the San Joaquin River Agreement appropriately 22 protects water rights, fish and wildlife and public trust 23 uses? 24 MR. VAN CAMP: No. 25 MR. JACKSON: Have you done any analysis or comparison CAPITOL REPORTERS (916) 923-5447 8164 1 between the San Joaquin River Agreement and the Board's 2 draft alternatives in their Draft EIR as to which of the 3 alternatives best meets the county of origin and watershed 4 of origin statutory provisions? 5 MR. VAN CAMP: No. 6 MR. JACKSON: Do you have an expert opinion as to 7 whether or not the State Water Resources Control Board, if 8 it adopts the San Joaquin River Agreement, should add water 9 rights terms and conditions to the water rights of the 10 parties to the agreements? 11 MR. VAN CAMP: I don't have an opinion. I believe that 12 is being investigated. 13 MR. JACKSON: Do you have an opinion as to whether or 14 not the State Water Resources Control Board should establish 15 responsibility on the part of other water rights holders who 16 are not signatories to the San Joaquin River Agreement to 17 meet San Joaquin flow-dependent standards for the Water 18 Quality Control Plan? 19 MR. VAN CAMP: I again believe that is being 20 investigated and discussed by the parties. 21 MR. JACKSON: Do you have any opinion? 22 MR. VAN CAMP: Not relative to the other water right 23 holders, no. 24 MR. JACKSON: Do you have any evidence that would 25 support the State Water Resources Control Board's exercising CAPITOL REPORTERS (916) 923-5447 8165 1 its jurisdiction in regard to water rights holders of other 2 people who are not signatories to the San Joaquin River 3 Agreement on the San Joaquin River? 4 MR. VAN CAMP: Not that I am aware of. 5 MR. JACKSON: You have talked about a number of 6 potential water management activities on the San Joaquin 7 river that Merced Water District would undertake. Is there 8 a commitment to undertake any particular one of those things 9 on the part of Merced Irrigation District? 10 MR. VAN CAMP: At this time they are currently under 11 investigation. I believe it is in their best interest to 12 pursue those projects to assure water supply reliability, 13 but I am not a writer of a commitment. 14 MR. JACKSON: To your knowledge, would the money 15 received from the Bureau of Reclamation for the water used 16 for the San Joaquin Tributary Program be limited in its use 17 to the proposed water management activities that you have 18 described? 19 MR. VAN CAMP: I do not know. 20 MR. JACKSON: In regard to Merced Irrigation District, 21 have you made any comparison of the tributary flows on the 22 Merced River in comparison to the tributary flows of 23 Alternative 1 through 7 in the Board's draft environmental 24 document? 25 MR. VAN CAMP: No. CAPITOL REPORTERS (916) 923-5447 8166 1 MR. JACKSON: Have you ever seen such an evaluation as 2 a member of the San Joaquin River Group? 3 MR. VAN CAMP: I believe there is previous testimony in 4 regard to that. 5 MR. JACKSON: You believe that there was testimony 6 previously comparing the alternatives in Phase II? 7 MR. VAN CAMP: No, I am sorry. You are correct. 8 MR. JACKSON: So, there has been no comparison, to your 9 knowledge, by the San Joaquin River Group of the flows on 10 the San Joaquin tributaries in comparison with the other 11 seven alternatives; is that correct? 12 MR. VAN CAMP: I am not aware of it. 13 MR. JACKSON: No further questions. 14 C.O. STUBCHAER: Mr. Jackson. 15 Mr. Birmingham. 16 ---oOo--- 17 CROSS-EXAMINATION OF THE SAN JOAQUIN RIVER GROUP AUTHORITY 18 BY WESTLANDS WATER DISTRICT & 19 SAN LUIS DELTA-MENDOTA WATER AUTHORITY 20 BY MR. BIRMINGHAM 21 MR. BIRMINGHAM: Good morning, Mr. Van Camp. My name 22 is Tom Birmingham. I am an attorney that represents the San 23 Luis Delta-Mendota Water Authority and Westlands Water 24 District in connection with these proceedings. I have a 25 number of questions that I would like to ask of you. CAPITOL REPORTERS (916) 923-5447 8167 1 Were you present this morning during Mr. Jackson's 2 opening statement on behalf of the RCRC? 3 C.O. STUBCHAER: Mr. Birmingham, you can't be heard in 4 the back of the room. Perhaps you can get that mike a 5 little closer or tilt it up or something. 6 MR. VAN CAMP: Yes, I was. 7 MR. BIRMINGHAM: Did you hear Mr. Jackson say that the 8 organization that he represents, the RCRC, is concerned with 9 the senior water rights holders? 10 MR. VAN CAMP: Yes, I did hear that. 11 MR. BIRMINGHAM: The protection of county of origin 12 areas? 13 MR. VAN CAMP: Yes. 14 MR. BIRMINGHAM: And areas within watersheds of 15 origin? 16 MR. VAN CAMP: Yes. I heard those words. 17 MR. BIRMINGHAM: What are the agencies that comprise 18 the San Joaquin River Group Authority? 19 MR. VAN CAMP: Let me -- just so I don't slip here, I 20 will go right to the agreement and go through the list. 21 MR. BIRMINGHAM: The agreement you are referring to 22 has been marked and introduced as evidence; is that correct? 23 MR. VAN CAMP: I am sure it has and -- 24 MR. BIRMINGHAM: San Joaquin River Group Authority 25 Exhibit 2; is that correct, Mr. Van Camp? CAPITOL REPORTERS (916) 923-5447 8168 1 MR. VAN CAMP: Yes, that's correct. 2 The San Joaquin River Group Authority is made up of 3 Modesto Irrigation District, Turlock, Merced, South San 4 Joaquin, Oakdale, San Joaquin River Exchange Contractors 5 Water Authority and its member agencies -- I will not go 6 through the member agencies -- and the City and County of 7 San Francisco, and Friant Water Users, excuse me. 8 MR. BIRMINGHAM: As part of your work for Merced 9 Irrigation District, have you ever conducted an 10 investigation of water right holders on tributaries to the 11 San Joaquin River? 12 MR. VAN CAMP: I've -- yes, I have. 13 MR. BIRMINGHAM: Does Modesto Irrigation District hold 14 water rights on the tributary to the San Joaquin River? 15 MR. VAN CAMP: Yes, they do. 16 MR. BIRMINGHAM: On what tributary to the San Joaquin 17 River does the Modesto Irrigation District hold water rights? 18 MR. VAN CAMP: On the Tuolumne River. 19 MR. BIRMINGHAM: Are those water rights senior to the 20 water rights held by the Bureau of Reclamation? 21 MR. VAN CAMP: The Bureau of Reclamation holds many 22 water rights. 23 MR. BIRMINGHAM: Thank you for objecting to my 24 question. You are absolutely correct. 25 With respect to the water rights held by the Bureau of CAPITOL REPORTERS (916) 923-5447 8169 1 Reclamation for New Melones, are the water rights held by 2 the Modesto Irrigation District on the Tuolumne River senior 3 with date of priority? 4 MR. VAN CAMP: I believe, yes. 5 MR. BIRMINGHAM: I believe you said that the Turlock 6 Irrigation District is a member of San Joaquin River Group 7 Authority? 8 MR. VAN CAMP: I did. 9 MR. BIRMINGHAM: Does the Turlock Irrigation District 10 hold water rights on a tributary to the San Joaquin River? 11 MR. VAN CAMP: They do. They -- I believe. In 12 reviewing the State Board's documents, that they are held 13 jointly, Modesto and Turlock. 14 MR. BIRMINGHAM: So, Turlock's water rights would be 15 also on the Tuolumne River? 16 MR. VAN CAMP: Yes. 17 MR. BIRMINGHAM: Merced Irrigation District, does it 18 hold water rights on the tributary to the San Joaquin River? 19 MR. VAN CAMP: Yes, it does. 20 MR. BIRMINGHAM: On what tributary to the San Joaquin 21 does Merced Irrigation District hold water rights? 22 MR. VAN CAMP: The Merced River. 23 MR. BIRMINGHAM: With respect to the water rights held 24 by Merced Irrigation District on the Merced River, are those 25 rights senior in terms of priority to the rights held by the CAPITOL REPORTERS (916) 923-5447 8170 1 Bureau of Reclamation to appropriate water at New Melones 2 Reservoir? 3 MR. VAN CAMP: I believe they are. 4 MR. BIRMINGHAM: South San Joaquin Water District is 5 another district you said is a member of the Authority? 6 MR. VAN CAMP: Yes, I did. 7 MR. BIRMINGHAM: Does South San Joaquin Water District 8 hold water rights on a stream tributary to the San Joaquin 9 River? 10 MR. VAN CAMP: Yes. That is the Stanislaus River. 11 MR. BIRMINGHAM: Are South San Joaquin's water rights 12 senior in terms of priority date to the rights held by the 13 Bureau of Reclamation to appropriate water at New Melones 14 Reservoir? 15 MR. VAN CAMP: I believe, yes. 16 MR. BIRMINGHAM: Oakdale Irrigation District, does it 17 hold water rights on a tributary to the San Joaquin River? 18 MR. VAN CAMP: Yes. That is also on the Stanislaus. 19 MR. BIRMINGHAM: Those rights are also senior to the 20 rights held by the Bureau of Reclamation to appropriate 21 water from New Melones; isn't that correct, Mr. Van Camp? 22 MR. VAN CAMP: I believe so. 23 MR. BIRMINGHAM: The San Joaquin River Exchange 24 Contractors Authority, that is a Joint Powers Authority? 25 MR. VAN CAMP: I do not know. CAPITOL REPORTERS (916) 923-5447 8171 1 MR. BIRMINGHAM: Isn't it correct that the members of 2 the San Joaquin River Exchange Contractors Authority are 3 Firebaugh Canal Water District, Central California 4 Irrigation District, San Luis Canal Company and Columbia 5 Canal Water District? 6 MR. VAN CAMP: Yes. 7 MR. BIRMINGHAM: Each one of those agencies holds water 8 rights on the San Joaquin River; is that correct? 9 MR. VAN CAMP: I believe this is correct. 10 MR. BIRMINGHAM: In fact, the basis of the exchange 11 contractor between those agencies and the Bureau of 12 Reclamation is that those agencies water rights on the San 13 Joaquin River are senior to the water rights held by the 14 Bureau of Reclamation to appropriate water at Friant Dam; is 15 that correct? 16 MR. VAN CAMP: I believe so. I believe those rights 17 date back and include the Miller and Lux case. 18 MR. BIRMINGHAM: The City and County of San Francisco, 19 you said that the City and County of San Francisco is a 20 member of the San Joaquin River Group Authority? 21 MR. VAN CAMP: Yes. 22 MR. BIRMINGHAM: Does the City and County of San 23 Francisco hold water rights on a stream tributary to the San 24 Joaquin River? 25 MR. VAN CAMP: Yes. On the Tuolumne River. CAPITOL REPORTERS (916) 923-5447 8172 1 MR. BIRMINGHAM: Those rights are senior to the rights 2 held by the Bureau of Reclamation to appropriate water at 3 New Melones Reservoir? 4 MR. VAN CAMP: Yes. 5 MR. BIRMINGHAM: Each one of the districts that we have 6 talked about, Mr. Van Camp, are they within the watersheds 7 of the streams on which they hold water rights? 8 Let me ask the question differently. 9 Each one of the agencies that we talked about, with the 10 exception of San Francisco, is within the watershed of the 11 stream on which they hold water rights; isn't that correct? 12 MR. VAN CAMP: If not all the majority of it, yes. 13 MR. BIRMINGHAM: So, when Mr. Jackson talks about 14 protecting senior water rights holders, Mr. Jackson is 15 talking about the water rights holders that we have 16 discussed here today: Modesto Irrigation District, Turlock 17 Irrigation District, Merced Irrigation District, South San 18 Joaquin, Oakdale and the San Joaquin River Exchange 19 contractors; isn't that correct? 20 MR. VAN CAMP: I would assume they would have to be 21 included in that list. 22 MR. BIRMINGHAM: When he talks about protecting the 23 water rights of the agencies within the areas of origin or 24 watersheds of origin, that would include the water agencies 25 we talked about with the exception of the City and County of CAPITOL REPORTERS (916) 923-5447 8173 1 San Francisco? 2 MR. VAN CAMP: Yes. 3 MR. BIRMINGHAM: You were involved in the negotiation 4 of the San Joaquin River Agreement? 5 MR. VAN CAMP: I was as a technical advisor to Merced. 6 MR. BIRMINGHAM: Were these water agencies coerced into 7 entering into the San Joaquin River Agreement? 8 MR. VAN CAMP: No. 9 MR. BIRMINGHAM: The agreement was freely negotiated? 10 MR. VAN CAMP: Yes. 11 MR. BIRMINGHAM: To your knowledge -- I will withdraw 12 that question. 13 MEMBER DEL PIERO: Coffee and cookies regularly, 14 right? 15 MR. BIRMINGHAM: In fact, cookies were served during 16 most of the negotiation sessions, weren't they, Mr. Van 17 Camp? 18 MR. VAN CAMP: I must have missed that meeting. 19 MR. BIRMINGHAM: Mr. Van Camp, Mr. Jackson asked you a 20 question on his cross-examination of you about a comparison 21 between the San Joaquin River Group Authority's proposal, 22 the San Joaquin River Agreement, and the alternatives 23 considered by the Environmental Impact Report prepared by 24 the State Board, and which one of the alternatives was more 25 feasible. Do you recall that question? CAPITOL REPORTERS (916) 923-5447 8174 1 MR. VAN CAMP: Yes, I do. 2 MR. BIRMINGHAM: Is it correct that in proposing the 3 San Joaquin River Agreement members of the San Joaquin River 4 Group Authority are of the view that entering into and 5 implementing a negotiated agreement will accomplish 6 environmental protection sooner than implementing an 7 alternative ordered by the Board that may result in years of 8 lengthy litigation? 9 MR. VAN CAMP: I believe that is correct. 10 MR. BIRMINGHAM: Was that one consideration that was 11 discussed by the agencies that negotiated the San Joaquin 12 River Agreement? 13 MR. VAN CAMP: Certainly it was. 14 MR. BIRMINGHAM: I have no further questions. 15 C.O. STUBCHAER: Thank you, Mr. Birmingham. 16 Staff have any questions? 17 MR. HOWARD: No. 18 MS. LEIDIGH: No questions. 19 C.O. STUBCHAER: Now to the Board. 20 Mr. Brown. 21 ---oOo--- 22 CROSS-EXAMINATION OF THE SAN JOAQUIN RIVER GROUP AUTHORITY 23 BY BOARD MEMBERS 24 C.O. BROWN: Mr. Van Camp, in your statement I didn't 25 see your resume. I think I read it once before, but you are CAPITOL REPORTERS (916) 923-5447 8175 1 a registered civil engineer? 2 MR. VAN CAMP: Yes, I am. 3 C.O. BROWN: Are you a registered agricultural 4 engineer? 5 MR. VAN CAMP: No, I am not. 6 C.O. BROWN: Do you have any agronomists on staff? 7 MR. VAN CAMP: No. 8 C.O. BROWN: Have you -- are you familiar with the 9 Bureau of Reclamation's, some of their funding programs? 10 You work with them on, like, the public law 84-984 program 11 that they have for conservation of projects? 12 MR. VAN CAMP: I am aware of it, Mr. Brown, but I 13 cannot speak to the specifics. 14 C.O. BROWN: Have you reviewed about an 18 or 15 $20,000,000 program that Oakdale Irrigation District back in 16 the early 1980s on the public law 84-984 for various water 17 conservation projects funding their canal, namely, and a few 18 other programs? 19 MR. VAN CAMP: I have not reviewed that. 20 C.O. BROWN: Are you aware that, at least in this 21 program or similar programs, that the justification for 22 funding those programs through the Bureau of Reclamation was 23 made on water conservation, the justification was for 24 funding and priority in funding was based on water 25 conservation, water saved, in some cases soil stabilization CAPITOL REPORTERS (916) 923-5447 8176 1 practices? Are you familiar with those kinds of programs? 2 MR. VAN CAMP: I am somewhat, yes. 3 C.O. BROWN: Are you familiar with the attitude that 4 the Bureau of Reclamation has today compared to back in the 5 1980s about funding those kinds of programs and their vision 6 of what was considered water conservation back then as 7 opposed to what it is today? 8 MR. VAN CAMP: I am certainly aware of their increased 9 awareness of the need for water conservation in today's 10 world versus several years ago. 11 C.O. BROWN: Have you made yourself familiar with the 12 term they now use "real water"? 13 MR. VAN CAMP: Yes. Mr. Brown, I have been involved in 14 many of those discussions, and I still don't think today we 15 have a clear definition of that. 16 C.O. BROWN: Do you think that kind of program that was 17 fundable back in the '80s would be fundable today? 18 MR. VAN CAMP: Just in general to respond to your 19 question, I believe that projects, previous projects, will 20 be reevaluated and considered because of the enlightened or 21 increased need for water within the state. 22 C.O. BROWN: Have you done -- in your travels have you 23 determined what the consumptive use is of various cropping 24 patterns within these service areas? 25 MR. VAN CAMP: I have not done it specific for these CAPITOL REPORTERS (916) 923-5447 8177 1 districts or agencies, Mr. Brown, but I have been involved 2 with some recent CalFed work on consumptive use and the need 3 to revisit DWR's Bulletin 113. 4 C.O. BROWN: In reading your testimony I saw no 5 alternative that would consider cropping pattern changes 6 that could address higher value crops with lower 7 consumptive use values than some of the existing cropping 8 patterns that is out there today. As a for instance, 9 pasture lands; some of those lands might be indeed suitable 10 for other kinds of crops with reclamation, deep ripping and 11 so forth. 12 Do you know what the consumptive use of pasture is, as 13 an example? 14 MR. VAN CAMP: Offhand, I believe the consumptive use 15 of pasture in Bulletin 113 is about 3.5 acre-feet per acre. 16 C.O. BROWN: What is the consumptive use of vines or 17 tree crops? 18 MR. VAN CAMP: There is quite a variation between the 19 vines and the tree crop. 20 C.O. BROWN: Either one. 21 MR. VAN CAMP: The orchards, I would suspect to be in 22 the neighborhood of two and a half to three acre-feet per 23 acre. 24 C.O. BROWN: Maybe some of the vines less than two? 25 MR. VAN CAMP: I would believe less than two, yes. CAPITOL REPORTERS (916) 923-5447 8178 1 C.O. BROWN: If you had crop conversions on some of 2 those lands that might be suitable for a 3.5, a consumptive 3 use to 1.5 to 2, would that be considered real water? 4 MR. VAN CAMP: I believe that is clearly a real water 5 number that people believe is there. That was proven in the 6 DWR's water bank. I would just like to point out that the 7 crop pattern decision is really at the farm level versus the 8 district's level. 9 C.O. BROWN: You're a question ahead of me. 10 MR. VAN CAMP: Excuse me. 11 C.O. BROWN: In these travels have you made any 12 consideration about writing incentives to the growers for 13 crop conversion for some of this funding you are speaking of? 14 MR. VAN CAMP: I think that will be considered. I 15 can't say that -- I haven't heard it discussed to great 16 detail. But it possibly should be considered, yes. 17 C.O. BROWN: Have you considered trying to get some of 18 the funds directly back to the growers as an incentive to 19 change cropping patterns to where you could produce "real 20 water"? 21 MR. VAN CAMP: In my opinion, that should be considered. 22 C.O. BROWN: I don't see that in your report. 23 MR. VAN CAMP: You're right. I was testifying to what 24 I understood the discussions to be during the negotiations. 25 The energies of these groups have been focused on the CAPITOL REPORTERS (916) 923-5447 8179 1 agreement and not so much on these projects. 2 C.O. BROWN: If you put a tailwater recovery system at 3 Oakdale or South San Joaquin, it takes water, return water, 4 out of the Stanislaus that might be used by the South Delta 5 people or others, would you consider that real water? 6 MR. VAN CAMP: From the total picture, that would not 7 be real water, just as your example. And, again, we are 8 using this term "real water" which you can get three or four 9 engineers in the room and argue what real water is. 10 MEMBER DEL PIERO: It's wet. 11 C.O. BROWN: There's two extremes that we have 12 identified. The two extremes in our discussion that we have 13 identified as what real water is, the consumptive use 14 example with the vines or tree crops as opposed to pasture. 15 You agree that is real water? 16 MR. VAN CAMP: I do. 17 C.O. BROWN: Then the other example to where if 18 tailwater flows back into the Stanislaus and is picked up by 19 the neighbor down the stream and is reused or percolates to 20 the groundwater basin, is that clearly, in your mind, not 21 real water? 22 MR. VAN CAMP: Not so clearly. If we use Mr. Del 23 Piero's definition of wet -- 24 C.O. BROWN: He is an attorney. 25 MR. VAN CAMP: So, I will avoid doing that. There is CAPITOL REPORTERS (916) 923-5447 8180 1 also a water quality consideration. 2 MEMBER DEL PIERO: That is like four engineers have a 3 different definition of what real water is. 4 C.O. BROWN: This is an engineer's discussion, Mr. Del 5 Piero. 6 MEMBER DEL PIERO: I will be quiet. 7 MR. VAN CAMP: Some of that discussion on that 8 tailwater recovery is that, maybe not from a quantification, 9 is it real water, but there is possibly water quality 10 considerations. 11 C.O. BROWN: I was hoping you were heading in a 12 different direction. 13 If that tailwater could be regulated or released out of 14 New Melones, might there be an increment there that would be 15 considered as real water? 16 MR. VAN CAMP: Certainly. It would be reregulated in a 17 different way than just the pure tailwater. 18 C.O. BROWN: In your analysis that you plan to do, is 19 that the kind of analysis that you plan to present something 20 that you could prove to this Board what is real, what is 21 true conserved water as opposed to a more generic 22 alternative that you have described here? 23 MR. VAN CAMP: I am not -- I can't say what is the 24 analysis that is going to be done specific to each project. 25 Certainly, analysis would be done on each project. Whether CAPITOL REPORTERS (916) 923-5447 8181 1 that is brought to the Board, I guess that depends on the 2 project. 3 C.O. BROWN: Do you think it is appropriate that you 4 provide that kind of analysis or report to this Board so we 5 can use it, from your professional judgment, as to what is 6 real and what might be supposed? 7 MR. VAN CAMP: I believe that would be good to have. 8 C.O. BROWN: Thank you. 9 That is all, Mr. Chairman. 10 C.O. STUBCHAER: Okay, Mr. Brown. 11 Ms. Forster. 12 MEMBER FORSTER: I apologize for being late, and some 13 of these questions might have been asked of you. It was 14 because of fog. 15 When Mr. Jackson asked you about analysis of the 16 alternatives in the State Board's EIR, you said that there 17 was no analysis done on comparing your agreement with the 18 alternatives. Does that just mean you, or did no one in the 19 group ever look at what we would be proposing and what you 20 were proposing to see if we had some similarities there? 21 How did you determine -- I am compounding the question. 22 C.O. STUBCHAER: Nobody is going to object. 23 MR. VAN CAMP: I did not do those analyses. 24 MEMBER FORSTER: Did anybody? 25 MR. VAN CAMP: I believe the State Board did. CAPITOL REPORTERS (916) 923-5447 8182 1 MEMBER FORSTER: We did them with comparing there's -- 2 all right. It's been a long time. 3 MR. VAN CAMP: Understand. 4 MEMBER FORSTER: The other thing in reading some of 5 your projects, are these all to be funded, like -- I was 6 very interested in your incentives, and especially the one 7 about filtering water for crops, vines and stuff, that they 8 would filter out the water and have a pressurized system. 9 Is that supposedly going to be financed by the money 10 received from the Bureau and DWR? Is that what finances 11 many of these programs in here? 12 MR. VAN CAMP: That is what is being considered, yes. 13 MEMBER FORSTER: Has anybody done a pilot of that? 14 What is the typical cost of something like that for a farm? 15 I don't even know how much acreages you mean with a farm, 16 but -- 17 MR. VAN CAMP: I don't know of one offhand, Ms. 18 Forster, but I am sure some analysis of that has been done. 19 MEMBER FORSTER: So, my last question is: Your 20 testimony on conjunctive use water supply, conservation and 21 facility enhancement projects, is that, in essence, what 22 adoptive management is? 23 MR. VAN CAMP: These folks -- I guess there is a 24 difference. You've used the work adaptive management. The 25 San Joaquin River Agreement is proposing test flows in the CAPITOL REPORTERS (916) 923-5447 8183 1 river to decide -- to look at the results of those tests, 2 various programs. This is to describe the potential 3 projects that could be put in place. And if they consider 4 those projects and put them in place, if that is what you 5 mean by adaptive management, then, yes. 6 MEMBER FORSTER: It's been a long time since we talked 7 about the River Agreement and the title "adaptive 8 management," and so I was trying to remember what adaptive 9 management meant. 10 MR. VAN CAMP: I believe it was used in the biological 11 testimony. 12 MEMBER FORSTER: Right. So these projects are all just 13 -- there is no commitment to them; they are just proposed? 14 Is that your testimony? 15 MR. VAN CAMP: Correct. They will be investigated and 16 possibly implemented. And as I indicated, I believe it is 17 in the best interest of these agencies to move forward on 18 this investigation and possible implementation. 19 C.O. BROWN: Identifying real water. 20 MEMBER FORSTER: Okay. 21 C.O. STUBCHAER: Thank you. 22 Mr. Del Piero. 23 MEMBER DEL PIERO: I have an initial question of 24 staff. 25 Have we -- and this relates to a question raised by Mr. CAPITOL REPORTERS (916) 923-5447 8184 1 Brown, initially. Have we quantified in our evidentiary 2 record those grants and those projects that have been funded 3 by the Bureau for water conservation purposes so that when 4 proposals are made as part of this process, we know, in 5 fact, whether or not actual water conservation is being 6 proposed or simply double crediting for projects that may 7 have been constructed within the last 20 years? 8 MS. LEIDIGH: No, we don't have anything like that. 9 MEMBER DEL PIERO: We have nothing like that. So we 10 don't know what, in fact, is being proposed to be conserved 11 as a result of this process or as a result of what is going 12 on as opposed to what, in fact, may be conserved already as 13 a result of other funding programs? 14 MS. LEIDIGH: Correct. 15 MEMBER DEL PIERO: That has a direct impact as to what 16 the actual wet flows are in the river. Because if there are 17 reductions that have been made in terms of appropriations in 18 order to comply with grants that have already be given, 19 projects that have already been constructed and proposals to 20 reduce from the water rights the that Board has granted may, 21 in fact, be nothing more than representations of what's 22 already taken place. 23 I guess the concern that I've got, after having sat and 24 looked through the testimony last night, before I walked in 25 here, is measurable and definitive standards by which the CAPITOL REPORTERS (916) 923-5447 8185 1 wet stuff is actually measured as opposed to the paper stuff 2 which never satisfied anybody when they were thirsty. 3 Do you have a recommendation, Ms. Leidigh, as to how we 4 can get that information incorporated into our evidentiary 5 record so we know, in fact, whether or not the 6 representations that are being made to us actually result in 7 what Mr. Brown refers to as real water as opposed to simply 8 double counting projects that may, in fact, already have 9 been delivered? 10 MR. HOWARD: We don't have a recommendation, I think, 11 specifically to what you are specifically dealing with. 12 However, I would like to point out that the modeling that 13 was done for the Draft EIR included depletions throughout 14 the basin using the most up-to-date information available to 15 the Department of Water Resources. 16 MEMBER DEL PIERO: Mr. Howard, do you know whether or 17 not the Department of Water Resources generally receives 18 information about grants made by the Bureau of Reclamation 19 for this purpose? 20 MR. HOWARD: They wouldn't incorporate the depletions 21 in that way. 22 MEMBER DEL PIERO: I didn't think they would. I 23 understand your comment. I fully appreciate it. I 24 seriously question as to whether or not that is reflected in 25 those depletion numbers. I will be happy to be proven CAPITOL REPORTERS (916) 923-5447 8186 1 wrong. 2 It just seems to me there is -- it seems to me there 3 may be potential deficiency in terms of our calculations as 4 to what everyone's obligations are. I would like to know 5 one way or another. You don't have a ready suggestion for 6 me at this point? This process is not ending today. The 7 Board, under its own authority, can augment the record in 8 the event we choose to do so. 9 After you and the rest of the staff think about it, 10 perhaps you can come back with a recommendation to the Board 11 as to how to address this issue, because it may be nothing 12 and it may be significant. I know the Bureau put out a lot 13 of money for a lot of water conservation programs in the 14 course of the last 20 years. I would like to see just 15 exactly what they bought for their money. 16 C.O. STUBCHAER: Thank you, Mr. Del Piero. 17 Did you wish to respond, Mr. Howard? 18 MR. HOWARD: No. We will take a look at it. 19 C.O. STUBCHAER: Mr. Brown. 20 C.O. BROWN: Mr. Van Camp, I am encouraged by what 21 appears to be your willingness to include in your analysis 22 the spectrum of what we discussed as real water versus what 23 may or may not be real water. I think your professional 24 signature on a report or analysis, helping us to decipher 25 that effect would be very important in our determination of CAPITOL REPORTERS (916) 923-5447 8187 1 what we do. 2 MR. VAN CAMP: Mr. Brown, I believe Mr. O'Laughlin has 3 pointed out to me in the agreement where it calls for an 4 annual report on the projects. 5 C.O. BROWN: Well, I am more concerned about the 6 initial decision we have to make, rather than making a 7 decision for you to move ahead and then coming back in a 8 year or so, or two years later, to find out that what we 9 decided to support or go along with, should that be the 10 case, was not, in a sense, real water. 11 I don't know how you are going to make that kind of 12 analysis in time for us to make a timely decision 13 ourselves. But setting that point aside, if in addition you 14 could address Mr. Nomellini's concerns, with regards to the 15 affect of the alternatives on downstream water users, be 16 they riparian or otherwise, they could be of considerable 17 assistance to this Board, also. If you come up with a 18 program of conservation in some of the upstream districts or 19 agencies that has a direct detrimental effect to their water 20 supply down below, that doesn't help the big picture. 21 So, can you in your analysis, when you make them of 22 these alternatives that you have listed in your testimony 23 here, also include the potential downstream effects of 24 existing water users? 25 MR. VAN CAMP: It is difficult for me to analyze the CAPITOL REPORTERS (916) 923-5447 8188 1 impacts to the downstream users as I don't know the details 2 of their system. Certainly, each project, if it is 3 investigated, if there is spill back to the river that a 4 member district is trying to recapture, that will have to be 5 quantified to understand the value of that project, and so, 6 that will be included in that analysis. 7 C.O. BROWN: That could be helpful to us. 8 MR. VAN CAMP: Also, helpful to us would be a clear 9 definition, not only -- when I say "us," those on the San 10 Joaquin River Group but in the water right and the water 11 transfer business is the definition of real versus paper 12 water. I have heard you use the terms, yet I don't know 13 that we have a clear definition from the division of water. 14 C.O. BROWN: I think that the Bureau of Reclamation has 15 spent a lot of time on determining what is real and what is 16 not real. In fact, the new applications for public law 17 84-984 grants is based upon what is today considered to be 18 real water as opposed to what is not. In addition, they 19 have also, I think have made -- I am asking this question if 20 you know. In their water transfers there has been a lot of 21 study work done in the work transfers as opposed to what is 22 real and not real. 23 I believe that is the case; is that not so? 24 MR. VAN CAMP: I believe they have. But my question 25 is: Has this Board adopted those? I mean, I didn't think CAPITOL REPORTERS (916) 923-5447 8189 1 it would be the Bureau's decision as to what is real or what 2 is not. 3 C.O. BROWN: I don't know. I would suggest that you 4 could present to us what you believe, in your professional 5 opinion, to be correct and then we could consider it. 6 C.O. STUBCHAER: Ms. Forster. 7 MEMBER FORSTER: I just want to echo Mr. Brown's -- 8 what I hear Mr. Brown saying, and that is this package that 9 you have presented today is pretty critical to understand 10 what's real in this. He is talking about real water. What 11 projects are its intent? What are definite -- if you have 12 any definite project to help us move ahead that all of you 13 really have a very sophisticated well-thought out plan that 14 helps the Board in its final decision making. It's -- I am 15 seconding what he is saying. It sounds so good, but we have 16 to know what is real in this. And maybe some things are 17 real and you have already decided you are going to do it and 18 how much it will cost. That will help us. We have to have 19 tangible -- we have to have tangible, measurable results to 20 see how it all works with what we are trying to accomplish. 21 MR. VAN CAMP: I understand. 22 C.O. STUBCHAER: I have a question of staff about the 23 best way to get the information that has been discussed into 24 the record. I am not sure that we can require parties to do 25 additional studies and submit them to us or if they can do CAPITOL REPORTERS (916) 923-5447 8190 1 that. Do you have any comments? 2 MS. LEIDIGH: I think that we need to think a little 3 bit more about this before we really give you a complete 4 recommendation. I would think, just preliminarily, that if 5 the Board were to call for additional materials, that it 6 would entail additional testimony, additional 7 cross-examination, presentation of evidence along with it. 8 At this stage it has not been presented. 9 Also, I think, generally the parties may argue whether 10 or not the Board can require them to bring this in. And I 11 don't really have a complete answer to that right now. 12 Ultimately, it is probably up to them if they feel it is to 13 their advantage to do so. 14 C.O. STUBCHAER: Mr. Del Piero. 15 MEMBER DEL PIERO: As to this subsequent analysis that 16 was referred to by Mr. Brown and Ms. Forster, I think Ms. 17 Leidigh has it correctly. If they wish to submit it, it 18 would benefit them. But we can't mandate that. 19 Alternatively, in terms of the information that I 20 requested, that is all public record. I mean, the grants 21 made by the Bureau of Reclamation for water conservation 22 purposes within the Central Valley of California, a phone 23 call and a trip with a couple of file boxes will be able to 24 pull up those projects from the Bureau office downtown and 25 we can find out just exactly what the terms and conditions CAPITOL REPORTERS (916) 923-5447 8191 1 of those grants were. I would not recommend you go back any 2 further than 1980. This is not -- anything back beyond that 3 is not going to be particularly beneficial. 4 C.O. STUBCHAER: Your request of our staff, do you 5 intend that be part of this hearing record or just 6 information for the Board? 7 MEMBER DEL PIERO: Mr. Chairman, I can't tell you that 8 at this point. If it is of no value, if it indicates that 9 the Bureau gave away a whole bunch of money with no 10 expectation of return in terms of water conservation, I 11 don't think it is appropriate for incorporation into the 12 record. If they gave away large amounts of money, which I 13 do know they did and they have and they continue to, and 14 there was expectation of conservation that, in fact, was 15 realized, I would like to know how that compares to what is 16 being proposed by the various parties. I am not picking on 17 these guys. They gave away money from Redding to 18 Bakersfield. I would like to know how that spins out in 19 terms of what is being proposed by various parties. 20 C.O. STUBCHAER: We will have to consider how it comes 21 into the record. 22 MEMBER DEL PIERO: That's correct. It is impossible 23 for of us to judge that at this point, depending on what the 24 information shows. 25 C.O. STUBCHAER: Mr. Brown. CAPITOL REPORTERS (916) 923-5447 8192 1 C.O. BROWN: I believe the record is clear on this. If 2 it is not, I will make it clear. I couched it in the form 3 of a question. If these kinds of analyses are going to be 4 included in your report that you are proposing to do here, 5 that was a question that I have. Do you intend to include 6 those kinds of issues and analyses in your subsequent 7 report? 8 MR. O'LAUGHLIN: Can I go ahead and respond to this, 9 probably better than Mr. Van Camp? I have not been sworn. 10 The river group envisions when these projects and other 11 projects go forward pursuant to the agreement, there will be 12 an annual report made that will cover, in our estimation and 13 in our belief, the biology, what happened with the fish that 14 year, how many smolts went down, what the releases were. 15 The San Joaquin River Agreement calls for that. 16 We will address the hydrology, how we came up with the 17 existing flows, the base flows, how that process worked. We 18 will, pursuant to Paragraph 6.1, look at what projects are 19 on the drawing boards, what projects are being done, and 20 address the question of what that means, as far as water and 21 water supply, liability to impacts. 22 I don't want to argue about the question of real water 23 and paper water, but I think what we can probably identify 24 in that process when we are doing the projects is what we 25 believe happens with that water now which is different than CAPITOL REPORTERS (916) 923-5447 8193 1 what it used to be used for or how it was used. Then 2 somebody else can put the label on it, whether it is real 3 water or paper water. 4 C.O. STUBCHAER: Mr. Brown. 5 C.O. BROWN: Mr. Chairman, my concern is we have a 6 decision here to make. And there's been people addressing 7 Mr. Van Camp's testimony here -- Mr. Herrick, Mr. Nomellini, 8 Mr. Jackson, Mr. Birmingham -- as to what you really intend 9 to do. 10 The two major questions that's come out of this cross 11 is where is the water coming from and the effect on 12 downstream water users. That is important; those are two 13 important questions. If you are talking about just giving 14 us some paperwork and reorganizing your waters that you have 15 now out of these districts and then putting in some internal 16 conservation program and receiving compensation for them 17 that has no direct benefit to the whole picture, that is one 18 kind of issue. But if you are coming up with real measures 19 that can conserve water and contribute to the water quality 20 issues that we are addressing here, that is different 21 issue. 22 We need to know the difference between those two. 23 Those are the questions that are being asked right now. We 24 need some answers, if you want the kind of consideration on 25 this alternative that you are requesting. How can we go CAPITOL REPORTERS (916) 923-5447 8194 1 ahead and make a decision based today upon the evidence that 2 you are presenting and come back in a year or two from now 3 and ask you how you have been doing to see if those 4 questions have been addressed? 5 C.O. STUBCHAER: Mr. Brown, you stated the question 6 very well. We have to look at that evidence that we have. 7 We have to look at the EIR. If we don't have the 8 information, we have to do the best we can. 9 I agree that it would be in everyone's interests to 10 have the best and most complete information available. 11 Mr. O'Laughlin, thank you for your comments and let the 12 record show that that was not sworn testimony. I know you 13 mentioned that you were not sworn. 14 Ms. Forster. 15 MEMBER FORSTER: I have a question of staff. 16 Mr. Van Camp's testimony I am going to use as an 17 example. When we receive testimony like this, and they talk 18 about these projects, and we want to believe that these 19 projects are real, but they are not there yet or they are 20 not yet in the testimony, then we can't ask for any of it 21 because it hasn't been submitted in any of the exhibits, so 22 it's a teasers? 23 MS. LEIDIGH: Well, if this party has not provided it, 24 then it hasn't been provided in the report. There are a 25 couple of other ways that information can be brought into CAPITOL REPORTERS (916) 923-5447 8195 1 the record, though. One is by other parties. For example, 2 on rebuttal. 3 The other is if there are documents that are public 4 record as Mr. Del Piero mentioned, the staff can gather up 5 those documents and see about offering them in evidence by 6 reference for the general record. But there would not be 7 cross-examination on those unless one of the parties brought 8 it in and put on a witness to ask questions about it. 9 MEMBER FORSTER: Do you like my legal and technical 10 word, "teaser"? That is just a joke. 11 MS. LEIDIGH: I don't know how to respond. 12 MEMBER FORSTER: I'm sure you don't. 13 C.O. BROWN: Say yes, Barbara. 14 MEMBER DEL PIERO: There is a learned-hand decision 15 that refers to that term, defines it. 16 MEMBER FORSTER: Thank you. 17 C.O. STUBCHAER: That concludes the 18 cross-examination. 19 Mr. O'Laughlin, are you going to have redirect? 20 MR. O'LAUGHLIN: No, I will not. 21 (Inaudible comment from audience.) 22 MEMBER DEL PIERO: Why don't we go for lunch and let 23 them decide afterwards. 24 MR. O'LAUGHLIN: I will consult with my learned 25 colleagues during lunch. CAPITOL REPORTERS (916) 923-5447 8196 1 C.O. STUBCHAER: You can defer the decision till after 2 lunch. We will reconvene at ten minutes after one. 3 MR. NOMELLINI: Can we talk a little bit about how we 4 are going to proceed after lunch? I have Tom Zuckerman 5 standing by. We were going to follow South Delta. If 6 necessary, I can get him here within an hour. I don't know 7 what the Chair has in mind. 8 C.O. STUBCHAER: That is a good suggestion. 9 Mr. Brandt, you weren't here earlier this morning. 10 Does the Department of the Interior intend to put on a case 11 in chief? 12 MR. BRANDT: No, we do not intend to put on a case in 13 chief. We would prefer to make a short statement following 14 DWR's testimony on backstop. 15 C.O. STUBCHAER: DWR requested to go tomorrow. 16 MR. BRANDT: That is what I understand. 17 C.O. STUBCHAER: So you would want to make your opening 18 statement tomorrow? 19 MR. BRANDT: If that would be acceptable, yes. 20 C.O. STUBCHAER: Then that would take us to Fish and 21 Game. Is Fish and Game ready to put its case in chief on 22 this afternoon? 23 MR. CAMPBELL: There will be no case in chief. 24 C.O. STUBCHAER: South Delta Water Agency, and you 25 said that you would prefer to have your two witnesses here CAPITOL REPORTERS (916) 923-5447 8197 1 rather than just one? 2 MR. HERRICK: We are certainly ready and able to put on 3 Mr. Hildebrand after lunch. 4 C.O. STUBCHAER: How about Central Delta? 5 MR. NOMELLINI: We were going to follow South Delta. I 6 guess we could do that. 7 C.O. STUBCHAER: Are your witnesses available today? 8 MR. NOMELLINI: I am going to try. 9 C.O. STUBCHAER: Is that going to be your only witness? 10 MR. NOMELLINI: Right. 11 C.O. STUBCHAER: So, would you prefer to go first? 12 MR. NOMELLINI: No, I want to go after. We are kind of 13 supporting South Delta. We didn't duplicate testimony. 14 C.O. STUBCHAER: How about Central San Joaquin? 15 MR. HERRICK: He's not here. He said his witness was 16 unavailable today. If it helps, we will just put Mr. 17 Hildebrand on. 18 C.O. STUBCHAER: I understand. I want to see who is 19 ready. 20 MR. HERRICK: Reed Roberts left. He told me earlier 21 that his witness is not here. 22 C.O. STUBCHAER: Stockton East? 23 MS. ZOLEZZI: It looks at this point that we will only 24 have a short opening statement and will not have any 25 witnesses. CAPITOL REPORTERS (916) 923-5447 8198 1 C.O. STUBCHAER: Tuolumne Utilities? 2 MR. GALLERY: Dan Gallery for Tuolumne Utilities 3 District, Mr. Chairman. 4 We had -- our principal witness is Mr. Tim McCullough. 5 He will be available next week. That is when we had planned 6 on presenting his testimony. 7 While I am here, I would like to mention that we had 8 planned some -- we had a few questions of the Department of 9 the Interior witness, Lowell Ploss. His testimony had been 10 presented and filed with the Board to be presented as a part 11 of II-A testimony. 12 Now, apparently that testimony is not going to be 13 presented. We would then want to be able to call Mr. Ploss 14 as an adverse witness later on in Phase II. So that 15 shouldn't be a problem, I am assuming that he would be 16 available. 17 C.O. STUBCHAER: II-A. 18 MR. GALLERY: I did understand that the Bureau was -- 19 that DOI was thinking about some rebuttal evidence, in which 20 case we could ask our questions of Mr. Ploss at that time, 21 that would be convenient to us. 22 C.O. STUBCHAER: Mr. Brandt. 23 MR. BRANDT: I would just request that a standard 24 request, which is that I get a written request on the topic 25 you are requesting. We will do our best to try to arrange CAPITOL REPORTERS (916) 923-5447 8199 1 for that. We will talk more about whether Mr. Ploss will be 2 on rebuttal. 3 C.O. STUBCHAER: Mr. Jackson. 4 MR. JACKSON: I would like to join in the request for 5 Mr. Ploss to testify. I was assuming that he would be 6 present to testify because he is listed as a II-A witness. 7 The area that I would like to cover is his comparison of 8 the alternatives with the San Joaquin River Agreement. 9 C.O. STUBCHAER: Have you given a written request? 10 MR. JACKSON: I have not. 11 C.O. STUBCHAER: Will you do so? 12 Natural Heritage Institute, you just put on an opening 13 statement? 14 MR. BOBKER: I put on an opening statement for the Bay 15 Institute. Natural Heritage, they are not here. They will 16 be presenting testimony on behalf of both NHI and Bay 17 Institute. They are obviously not prepared to do so today. 18 C.O. STUBCHAER: NRDC. 19 MR. CANDEE: We are not putting on a case in chief. 20 The Save San Francisco Bay Association, however, is putting 21 on at least two witnesses, I believe. I am sure they 22 weren't expecting to do that this afternoon. 23 C.O. STUBCHAER: Reversal of the previous phases. We 24 are going too fast. 25 We will go back to the offer of Mr. Herrick to put Mr. CAPITOL REPORTERS (916) 923-5447 8200 1 Hildebrand on after we see about redirect and recross. 2 So, now let's take a lunch break till 1:15. 3 (Luncheon break taken.) 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 8201 1 AFTERNOON SESSION 2 ---oOo--- 3 C.O. STUBCHAER: Let's come to order, please. 4 Mr. O'Laughlin. 5 MR. O'LAUGHLIN: Thank you, Chairman Stubchaer. 6 I don't believe we will call Mr. Van Camp back for 7 redirect. I am a little unclear about the discussion that 8 we had at the end. The testimony of Mr. Van Camp was 9 offered, not to show that this water being made at Vernalis 10 would come from these types of programs, because the 11 testimony of Mr. Steiner in Phase II was that the water 12 would be made available by withdrawals from storage, bypass, 13 or reductions in direct diversions. Rather, this testimony 14 was concerned about if there are impacts within the agencies 15 that are making water available, that these programs would 16 go to secure their water supply to liability. 17 So, we never addressed the other question that you 18 wanted to have addressed. We always assumed, then, and I 19 think the Bureau did, too, that the water that would be at 20 Vernalis would be at Vernalis in the quantities described in 21 the San Joaquin River Agreement. With that brief 22 clarification, we will not call Mr. Van Camp on redirect. 23 We will close our case in chief at this time. 24 C.O. STUBCHAER: You have the one exhibit? 25 MR. O'LAUGHLIN: Yes. I would like to offer Exhibit 24 CAPITOL REPORTERS (916) 923-5447 8202 1 into evidence, please 2 C.O. STUBCHAER: Are there any objections to receiving 3 Mr. Van Camp's revised testimony into evidence? 4 Seeing none, it is accepted. 5 MR. O'LAUGHLIN: Thank you very much, Chairman 6 Stubchaer. 7 C.O. STUBCHAER: I would say, Mr. O'Laughlin, as you 8 know, this Board has to base its decision on the evidentiary 9 record. We can't consider anything outside the evidentiary 10 record. As you heard, some of the Board Members have 11 questions about what they believe is in the record. If 12 there is testimony from previous phases that you would want 13 to emphasize or point out to the Board in a closing 14 statement, that might be helpful. 15 MR. O'LAUGHLIN: Thank you, Chairman Stubchaer. Just 16 one brief comment in response to that. I listened very 17 carefully and wrote down in my notes as to what Board Member 18 Brown and Forster said. My problem is, in processing that 19 was, I have not seen any analysis of real or paper water in 20 records to the alternatives being made available to the 21 State Water Resources Control Board. 22 Rather, it was our understanding when we did our 23 testimony for the San Joaquin River Agreement, as the Board 24 staff did for its Draft EIR, the assumption was that the 25 flows are stated, that the flows would be met, i.e., there CAPITOL REPORTERS (916) 923-5447 8203 1 would be that amount of water in the river at Vernalis. So 2 that is why we prepared the testimony that we did. If we 3 need to make a supplemental, we will try to do that later in 4 the rebuttal, if necessary. 5 Thank you very much. 6 C.O. STUBCHAER: Thank you. 7 MEMBER FORSTER: I just want to thank you because that 8 -- it was a little difficult to put it all together and you 9 did a good job clarifying where the process is, and I have a 10 hundred percent understanding now this morning. I think 11 that I just got excited by some of the projects as good 12 water management and forgot about the process that we're 13 in. You did a good job, and I thank you. 14 MR. O'LAUGHLIN: Thank you. We are excited about them, 15 too. Hopefully, we can get through with this phase and move 16 on to some projects. 17 C.O. STUBCHAER: Mr. Herrick. 18 --oOo--- 19 DIRECT TESTIMONY OF SOUTH DELTA WATER AGENCY 20 BY MR. HERRICK 21 MR. HERRICK: Good afternoon. Thank you, Mr. Chairman. 22 John Herrick, again, for the South Delta Water Agency. I 23 will start with an opening statement. Then we will move on 24 to the testimony of Alex Hildebrand. Tomorrow morning we 25 will put on Dr. Jerry Orlob. He is unable to make it CAPITOL REPORTERS (916) 923-5447 8204 1 today. 2 As we have started or as I have started every opening 3 statement so far in this proceeding, we would just like to 4 object to the federal government, the Bureau's position, 5 which is not submitting to the jurisdiction of California 6 Courts before their permits may or may not be changed in 7 this process. I won't belabor that too much, but we would 8 like to emphasize it. That if the decision by this Board is 9 unacceptable to the Bureau, they can sue. However, if the 10 decision is unacceptable to other parties, they cannot get 11 the Bureau into court. There has been a recent legislation 12 change which might allow the Court to proceed with any such 13 challenge, that is not a given because the language isn't 14 mandatory. 15 Three years ago the Board adopted the 1995 Water 16 Quality Control Plan and instituted -- set to institute high 17 flows for fishery purposes. Three years later, 18 representatives of the San Joaquin River Group, who are 19 witnesses for the San Joaquin River Group, came from the 20 Department of Fish and Game and Fish and Wildlife Service, 21 told us there was no correlation between Vernalis flows and 22 smolt survival. That testimony in Phase II was sort of a 23 surprise to most people. But they thought maybe there was a 24 correlation between flows at Stockton and smolt survival, 25 maybe. CAPITOL REPORTERS (916) 923-5447 8205 1 These same agencies that support this agreement then 2 told us there was no correlation between export pumps and 3 smolt survivability. Now, they did think that there might 4 be some relationship, but they hadn't done any work, no 5 data. Again, these same agencies endorsed the San Joaquin 6 River Agreement and believe it's okay not to have the higher 7 fish flows that are set forth in the '95 plan. 8 Well, in our testimony, not just prior phases, but in 9 this one specifically, we will compare, or attempt to, the 10 San Joaquin River plan with those other alternatives 11 contained in the Board's Draft EIR. Those other 12 alternatives are attempting to meet the Vernalis flows, flow 13 objectives, not just one of them but all of them. 14 We know from the testimony that San Joaquin River 15 Agreement provides less fish flows. It is said to be 16 comparable, but there is no evaluation on the record whether 17 or not the other alternatives provide better protection. 18 So, if we are going to examine what is reasonable and what 19 is needed for public trust, we need that evaluation that has 20 not been provided. 21 We also know that the flows aren't guaranteed. I would 22 like to remind the Board that San Joaquin River Agreement 23 will attempt to institute the VAMP program, but it is not 24 mandatory. As you know, there are triggers that allow the 25 flows not to be provided, and assume that the Bureau of CAPITOL REPORTERS (916) 923-5447 8206 1 Reclamation will backstop those. But there is no evidence. 2 In fact, there is contrary evidence that the Bureau doesn't 3 know how it will make those backstops. We also 4 know that the plan will result in water quality violations. 5 Now that is just -- that is not a water quality violation; 6 not a permit violation by the Bureau. That is not meeting 7 the agricultural objective of the Water Quality Control 8 Plan. 9 We also know the San Joaquin River Group makes no 10 consideration for downstream riparian needs. Our agency has 11 brought this up repeatedly. I am sure there will be many 12 more discussions about it. As the Board just asked in the 13 previous case in chief, it makes a big difference how you do 14 this. 15 Well, the big difference between the San Joaquin River 16 Agreement and the other alternatives, we know somebody gives 17 up water. Now, whether they make that up or not is a 18 different issue. But in the San Joaquin River Agreement we 19 don't know how the water is going to be generated, but 20 that's okay. That is what the San Joaquin River Group has 21 done. 22 We believe that we will be able to compare the 23 alternatives to their plan. In examining the water quality 24 violations, it is easy to say, "Well, there is not enough 25 water in the system so we have to do a balancing; we have to CAPITOL REPORTERS (916) 923-5447 8207 1 look at reasonableness; we have to look at public trust 2 needs. The problem is the San Joaquin River Agreement chose 3 one of these factors to be balanced and put that in the 4 forefront, fish objectives, fish and wildlife objectives. 5 According to their testimony, they are supplying sufficient 6 water to meet that objective, but not to meet the water 7 quality objective at Vernalis. I believe they asserted that 8 their plan does not affect the ability to meet the other 9 objectives, like Delta outflow, X2. 10 Again, the water quality objective for 11 agriculture/beneficial uses is not met. If that is a 12 reasonable balancing, I don't understand it. Is not my 13 position to understand it. But I don't think the Board 14 should accept that either. The reasonable balance is 15 everybody shares in a deficiency. That is not what the San 16 Joaquin River Agreement does; it institutes water quality 17 violations at Vernalis. 18 South Delta Water Agency will attempt to show that 19 there is an alternative to satisfy these objectives with the 20 least amount of effects, and those effects are transferred 21 to the parties who have caused the adverse conditions that 22 led to the objectives. 23 Mr. Hildebrand's testimony will show that 24 recirculation, which is a Alternative Number 6, in addition 25 to purchases from exporters, in addition to the potential CAPITOL REPORTERS (916) 923-5447 8208 1 use of water that has been illegally provided by the Bureau 2 to areas outside their permits, and use of South Delta tidal 3 barriers will meet those objectives. 4 Now, all of those except the use of the unfamiliar 5 water, those are part of the plan right now. Those are part 6 of the DEIR right now. Those are alternatives that can be 7 picked, chosen, take them out of the plan and institute the 8 water quality objectives. I don't think anybody in the room 9 will tell you that in any scenario any sort of alternative 10 will meet all the objectives. That is not the issue. The 11 issue is what has the best chance of meeting the 12 alternatives. 13 We believe a combination of recirculation, purchases 14 and operation of the tidal barriers will do that. This 15 method can provide not only the full flows of the '95 plan, 16 but, if the Board doesn't believe those are sufficient, you 17 can use it to provide the full San Joaquin Group flows or 18 use it to provide the full VAMP flows. That is up to you. 19 The issue of whether or not you should adopt something that 20 won't meet the full '95 plan flows, I am sure that will be 21 argued in closing briefs or other times. 22 But this proposal will meet those flows, no matter 23 which you choose. It also goes a long way to complying with 24 California statutes, which are, unfortunately, are markedly 25 absent from the evidence and argument so far. But there are CAPITOL REPORTERS (916) 923-5447 8209 1 a number of statutes which protect my clients in the Delta, 2 and those statutes require that there is only exports when 3 there is surplus water. If there is insufficient water in 4 the South Delta for the local riparians, it is hard to 5 understand when there is surplus water. 6 The Bureau's permits, although they've been discussed 7 here for New Melones -- the Bureau's permits for New 8 Melones, although they have been discussed here, don't seem 9 to be a very important issue, according to the San Joaquin 10 River Agreement. Those permits require it to meet the 11 Vernalis water quality standard. But the Bureau tells us, 12 until they change their interim plan, their operations, they 13 believe, will have violations in 40 percent of the year 14 types. Our plan doesn't allow that. Our plan will go to 15 meet that because it finds the water, and it also finds the 16 water by not hurting other people. 17 Another aspect of the San Joaquin River Agreement that 18 should be compared to the other alternative is this issue of 19 consensus. Virtually everybody in this room was at the 20 final hearing where 95-6 was adopted three years ago. At 21 that time the various Delta interests and San Joaquin County 22 interests stood up and said, "You know, it is not fair to go 23 forward with something that was agreed upon by a lot of 24 parties without our input." 25 And the Board, rightfully so, I'll use the word, CAPITOL REPORTERS (916) 923-5447 8210 1 "admonished," but recommended that in the future, as groups 2 try to build consensus to solve these problems, that they 3 should make sure they're overly inclusive so that all 4 parties have a chance. 5 Well, as we have said in prior phases, the South Delta 6 Water Agency was not part of that process. They were asked 7 at the very end of that process to come on board, but that 8 was after the San Joaquin River Group had already decided 9 that limits on meeting the water quality criteria should be 10 a foundation of their agreement. 11 So, I think that is important to remember; that this is 12 not a consensus. This is not settling parties moving out of 13 a dispute. These are the upstream parties who don't want to 14 have obligations imposed on them trying to settle out, 15 without talking to the parties that are being harmed by the 16 process. It is the downstream parties that feel the results 17 of every project. 18 And the Board knows because we keep bringing it up, 19 that that is a very serious issue, and it needs to be 20 addressed, especially through the CEQA process. If we don't 21 have sufficient information to tell us whether or not the 22 institution of any of the alternatives affects downstreamers 23 and how much it affects them, then we don't have an 24 environmental record to support an adoption of the program. 25 Finally, I would just like to point out that this CAPITOL REPORTERS (916) 923-5447 8211 1 process was restructured at the request of San Joaquin River 2 Group Authority. And we went from Phases I through VII to 3 Phases II, II-A and VIII, if necessary. I believe it is 4 important to point out, although that South Delta will be 5 attempting to analyze the various alternatives to the San 6 Joaquin River Agreement, that the San Joaquin River Group 7 Authority has not done that analysis for the Board. 8 Phase II, as I assert, Phase II analyzed how that 9 agreement, the San Joaquin River Agreement, compared to the 10 '95 Water Quality Plan. It did not compare it to the other 11 alternatives. Whether on not the San Joaquin River 12 Agreement is a good idea or not, that is not the issue 13 before us in Phase II-A. It is whether or not and how it 14 compares to the other alternatives. 15 That is all I have for my opening statement. I will 16 now ask Alex Hildebrand, who has been sworn in, to summarize 17 his testimony that has been previously provided. 18 C.O. STUBCHAER: Good afternoon, Mr. Hildebrand. 19 MR. HILDEBRAND: Good Afternoon, Mr. Stubchaer and 20 Members of the Board. 21 Mr. Herrick has said we would like to begin by before 22 comparing all of the alternatives in the Board's DEIS, we'd 23 like to propose a method of modifying, implementing one of 24 those alternatives, and we will then compare it to the other 25 alternatives, including the SJRA. CAPITOL REPORTERS (916) 923-5447 8212 1 South Delta Water Agency offers the following 2 Comprehensive Water Management Plan for the San Joaquin 3 River watershed. The proposal is similar to one of the 4 alternatives in the DEIS, but with certain significant 5 changes and restrictions so that discretionary decisions by 6 the USBR are limited in order to avoid adverse impacts on 7 other interests. 8 The 1980 report on the affects of the CVP upon the 9 Southern Delta water supply clearly describes the Bureau's 10 adverse impacts on water quality and flow in the San Joaquin 11 River. South Delta Water Agency's Comprehensive Plan 12 includes the following objectives: 13 First, to provide that full proposed VAMP flows or 14 control plan flows at Vernalis in all years with the 15 April/May 31-day pulse flow never below 3200 cfs. 16 Second, meet the Vernalis salinity standards at all 17 times in all years. 18 Third, provide substantial protection for downstream 19 salmon smolt migration throughout the migration period. As 20 you heard in previous testimony, 35 percent of the migration 21 was alleged by the fishery interest to, in expert testimony, 22 to occur before and after the 31-day Vernalis pulse flow. 23 Fourth, provide improved flow and lower selenium and 24 salinity concentrations in the San Joaquin main stem of Mud 25 Slough to the mouth of the Tuolumne in order to protect CAPITOL REPORTERS (916) 923-5447 8213 1 fisheries and protect those parties who divert from this 2 reach of river. 3 Fifth, maintain adequate Vernalis flow, particularly in 4 the summer, to meet the channel depletion needs in the South 5 Delta. That being riparian and public trust needs. 6 Sixth, reduce the salinity in the Delta-Mendota Canal 7 in order to thereby reduce the salt load delivered to the 8 west side service area and to reduce the drainage salt load 9 that then reaches the San Joaquin River. 10 Seventh, minimize the dollar and water cost, providing 11 the desired Vernalis April and May pulse flow. 12 And eighth, to avoid water acquisition that impact 13 water users other than the water sellers. 14 SDWA's Comprehensive Plan proposes to provide the 15 necessary flows for fishery and water quality from one or 16 more of three potential sources: recirculation and/or 17 purchases from export water users and/or water currently 18 being provided outside the Bureau's permitted area of use. 19 SDWA's Comprehensive Plan also includes the 20 coordination of initial springtime drainage from the west 21 side or San Joaquin Valley in order to take advantage of the 22 dilution capacity of the San Joaquin River during a pulse 23 flow. 24 The Comprehensive Plan also requires the operation of 25 the three South Delta tidal barriers in order to benefit CAPITOL REPORTERS (916) 923-5447 8214 1 outmigrating smolts in times other than the 31-day pulse 2 period and to increase export salt and to improve South 3 Delta channel circulation. 4 The Board currently has two proposals before it 5 regarding what the flow objectives for fish and wildlife 6 should be. The first choice is to implement an alternative 7 or alternatives that will provide the full amount of water 8 as set forth in the 1995 Water Quality Control Plan. 9 The second choice is to adopt new flow objectives for 10 fish and wildlife as part of the Board's triennial review of 11 the Water Quality Control Plan. 12 South Delta Water Agency takes no position on which set 13 of flows the Board should require. According to the 14 testimony in Phase II by Daniel Steiner, providing the 15 supplemental flows for VAMP, the amount above existing flows 16 varies from year to year and requires from zero to 150,000 17 acre-feet of water in any one year. 18 This water should be provided from one of three 19 sources. Recirculation is the primary and preferred source 20 proposed in South Delta's Comprehensive Plan. It 21 anticipates the release of water from the Delta-Mendota 22 Canal, through Newman Wasteway where it will add to the flow 23 of the San Joaquin River during the 31-day pulse flow. The 24 proposal requires the use of available export pump capacity 25 in order to repump the supplement pulse flow water. The CAPITOL REPORTERS (916) 923-5447 8215 1 proposed recirculation of DMC releases would be superimposed 2 on the base conditions. 3 The recirculation could be provided up to one-third of 4 VAMP flow at Vernalis. Recapture of this component of flow 5 would increase export pumping during the pulse flow as 6 compared to furnishing the flow by reallocation of water 7 from users of tributary flows or from export water users. 8 The question is whether this higher pump rate is 9 significantly adverse to fisheries, and, if so, are there 10 offsetting fishery benefits from the proposals. The 11 increased pumping will not draw Sacramento River across the 12 Delta. The additional water is coming from the San Joaquin 13 test made by fishery exports before the State Water Control 14 Board during Phase II. That testimony indicated that when 15 dye and tagged smolts released at Mossdale with barriers 16 functioning, the fish soon arrived in the western Delta even 17 though most of the dye does not, but takes longer. 18 This and other testimony, such as monthly reports on 19 the movement of Delta smelts, seemed to indicate that 20 although small fish move with net river flow upstream of the 21 Delta, they cease to do so in the Central Delta were the net 22 cross flow is very small when compared to tidal flows. In 23 any event, fishery benefits from the plan should also be 24 considered, as discussed in my written testimony. 25 Fears have been expressed that this additional pumping CAPITOL REPORTERS (916) 923-5447 8216 1 will have an effect on Delta smelt. However, pumping for 2 recirculation can be accomplished in compliance with the 3 current biological opinion for that species. Biological 4 opinion on Page 19 requires the Bureau to seek additional 5 flows above the Vernalis objective in order that the actual 6 Vernalis flow is equal to export pumping plus one-half of 7 the Vernalis pulse flow objective. 8 As a required Vernalis pulse flow amount increases all, 9 or at least most, of the additional water needed to meet the 10 objective can be provided through recirculation without 11 violating the biological opinion. Following is an example: 12 Assume the base flow of 5,000 cfs. The Vernalis pulse 13 flow objective of 7,000 cfs and base export rate of 1,500 14 cfs. In this example it would be necessary to recirculate 15 and thus increase export pumping by 2,000 cfs in order to 16 meet the objective. That makes the total export rate 3,500 17 cfs. The biological opinion requires a maximum flow in this 18 instance to be 3,500 cfs total export pumping, plus 3,500 19 cfs, one-half of the 7,000 objective, or 7,000 cfs. 20 In this example all of the flow necessary to bring 21 base flow up to the Vernalis pulse flow objective can be 22 recirculated and still comply with the biological opinion. 23 Furthermore, if export pumping during the pulse flow 24 period results in an unacceptable take of smelt, then export 25 pumping would have to be decreased. At any time that CAPITOL REPORTERS (916) 923-5447 8217 1 exports must be curtailed, this recirculation -- thus 2 recirculation opportunities decrease and other methods of 3 providing pulse flow, as later described, could take up the 4 slack. 5 The benefits from the recirculation method are 6 tremendous. Any amount of flow contributed towards the 7 pulse period up to the full 1995 Water Quality Control Plan 8 amounts can be provided without a loss to any water user. 9 It also makes it unnecessary to make the purchase of water 10 on the San Joaquin River tributaries, which can harm users 11 other than the sellers as described in SDWA Exhibits 7 and 12 also 34. 13 Finally, by providing a portion of the pulse flow above 14 the mouth of the Merced, increased flows in that reach of 15 the San Joaquin River assist in transporting and protecting 16 Merced River smolts. This includes helping to dilute the 17 salinity and selenium in that reach of the main stem of the 18 river. 19 The second method is for providing flow objective 20 waters through purchases from export water users. Purchases 21 can be made from export contractors of the CVP and SWP, 22 including Friant. Water from these sources can either be 23 delivered directly to the San Joaquin River system or 24 delivered through exchanges. By adding water to the San 25 Joaquin River system that was previously not present we CAPITOL REPORTERS (916) 923-5447 8218 1 avoid the adverse effects that accompany in-basin transfers. 2 These purchases also free up other water in New Melones. 3 The third source of water to meet the 1995 Water 4 Quality Control Plan objectives is from water that is 5 currently exported by the CVP in violation of its permits. 6 It is probably not necessary to use that water, but it is 7 available. 8 It is our position that such an admitted permit 9 violation cannot simply go ignored. By using this source of 10 water the Board would ensure compliance with the objectives 11 without any increase in exports of water or any increase in 12 export rates. 13 South Delta's Comprehensive Plan also recommends that 14 the Board control a release of drainage water to the San 15 Joaquin River via Salt and Mud Sloughs so that about 50 16 percent of the drainage is withheld from March 1st to April 17 15. This withheld drainage is then released during the 18 pulse flow period when substantial dilution is available. 19 Dilution must be available near Mud Slough in order to 20 protect the downstream reach that would otherwise be 21 affected by the delay drainage. In order to have control of 22 this time of drainage, you have to have recirculation. 23 This greatly reduces water quality problems in the 24 main stem of the river and the need for New Melones releases 25 prior to April 15th. The Board should note that the smelt CAPITOL REPORTERS (916) 923-5447 8219 1 biological opinion recognizes the poor upstream water 2 quality drainage, as I stated, likely adversely affects on 3 Delta smelt and its food organisms. 4 Our proposed Comprehensive Plan also requires the 5 operation of the three south tidal barriers, except when 6 take limits reduce export pumping. These barriers mitigate 7 the impact of Head of Old River Barrier from downstream 8 water supply during the April/May pulse. They also create 9 a hydraulic barrier to protect downstream smolt migrants 10 from being drawn to the export pumps before and after the 11 31-day pulse. They protect South Delta diverters from loss 12 of adequate water depth caused by export pumping. They 13 restore the circulation of some South Delta channels that is 14 needed to avoid stagnate reaches and to control water 15 quality, and they avoid re-exporting most of the west side 16 drainage salt load that reaches the Delta via the San 17 Joaquin River. 18 The barriers are the best and only practical method of 19 mitigating the adverse effects of export pumps on the South 20 Delta. Because of this, the operation of the pumps must be 21 licked to barrier operations. At any time when exports 22 cause lowered levels, reverse flows and quality problems 23 such that other beneficial uses are impaired, the barriers 24 must be operating if export pumping is to be continued. 25 Turning next to comparisons of alternatives. We CAPITOL REPORTERS (916) 923-5447 8220 1 believe any plan that assumes that the Vernalis standard 2 will not be met is unacceptable, if not illegal. The Board 3 is clearly not protecting beneficial uses or water quality 4 if it adopts implementation of the 1995 plan, such as the 5 SJRA that anticipates not meeting the objectives of the 6 plan. 7 In order to avoid this, we suggest the Board require 8 the Bureau to budget a sufficient amount of water in New 9 Melones to meet the Vernalis standard. Since the other 10 parts of South Delta's plan allow for the fishery pulse 11 flows to be provided through sources other than New Melones, 12 the Bureau could increase the New Melones budget for water 13 quality. Subsequent to the passage of the CVPIA, the Bureau 14 changed its New Melones operations to emphasize fishery 15 flows, as indicated in Lowell Ploss' testimony. 16 We believe this change in emphasis, formally instituted 17 through the Interim Operation Plan, is a violation of 18 Paragraph 27 of the Bureau's New Melones permits. In order 19 to cure this problem and to add the necessary incentive to 20 get the Bureau to follow through with the above-mentioned 21 methods of providing fish flow water, there needs to be 22 simple changes to meet the Bureau's New Melones permits. 23 These changes are outlined in our written testimony. 24 As we have shown, the operation of the CVP prior to New 25 Melones resulted in an average annual decrease of flows at CAPITOL REPORTERS (916) 923-5447 8221 1 Vernalis of 553,000 acre-feet with 345,000 acre-feet of 2 that decrease occurring during April through September. 3 The Draft EIR for these hearings incorporates the South 4 Delta proposal for the minimum amounts of flow at Vernalis 5 required to provide adequate channel depletion needs. 6 My written testimony compares the eight alternatives 7 analyzed by the Board staff with each other and also the 8 South Delta's Comprehensive Plan. The eight alternatives, 9 as now defined, are all unacceptable in one or more 10 important ways. They either fail to comply with the control 11 plan or to consistently provide the VAMP flows or they 12 assume New Melones release that exceed the capability of New 13 Melones, or they make San Joaquin water right holders 14 mitigate CVP impacts, or they unnecessarily deprive existing 15 beneficial users of water by failing to make efficient 16 multiple use of water. 17 SDWA's plan is the only one that avoids all of these 18 problems. Specifically, the SJRA does not guarantee the 19 minimum 3,200 cfs flows set forth in the VAMP, whereas South 20 Delta's Comprehensive Plan does. 21 The SJRA biologists state in Phase II that the believe 22 the lower-end flows of VAMP are more important than the 23 higher-end flows because the fisheries are more stressed at 24 the lower flows. They concluded they would not "trade" 25 extra flows at the high end for flows on the lower end. CAPITOL REPORTERS (916) 923-5447 8222 1 However, this is exactly what SJRA does when it contains a 2 double step during higher flows while relaxing or removing 3 them in the VAMP flows under drought times. 4 South Delta's Comprehensive Plan, on the other hand, 5 can and will provide the VAMP flows in their full amounts. 6 SJRA guarantees that the water quality obligations will be 7 violated. South Delta's Comprehensive Plan guarantees the 8 water obligations will be met. The SJRA will exacerbate 9 those times when the San Joaquin River provides insufficient 10 channel depletion flows. South Delta's Comprehensive Plan 11 assures that those flows will be available as protecting 12 beneficial users. 13 The SJRA cost is $4,000 a year and sometimes provides 14 no water -- $4,000,000, pardon me, a year and sometimes 15 provides no water. South Delta's Comprehensive Plan costs 16 have not yet been determined, but its flexibility allows for 17 a least cost approach. Incremental cost of recirculation is 18 far less per acre-foot than water purchases, and it would 19 only pay for purchases as needed. 20 The SJRA parties will make water available either by 21 decreasing return flows or shifting the time of use of the 22 water. These actions decrease downstream flows and cause 23 harm to downstream water quality, beneficial users and 24 public trust needs. South Delta's Comprehensive Plan only 25 contemplates purchases that add to the overall net flows to CAPITOL REPORTERS (916) 923-5447 8223 1 the San Joaquin River and not only avoids these problems, 2 but actually helps mitigate existing problems. 3 The SJRA protects only those salmon smolts which happen 4 to outmigrate during the 31-day pulse. South Delta's 5 Comprehensive Plan provides also for early and late 6 migrants. The plan also specifically forces the Bureau to 7 act in a reasonable manner and recognition of California 8 water law. 9 Based on the above, it is clear that South Delta's 10 Comprehensive Plan is superior to all the other alternatives 11 in almost every respect to the SJRA. The best method of 12 meeting the objectives in the 1995 plan is South Delta's 13 Comprehensive Plan. It is the only alternative that can 14 fairly and actually meet all of the objectives. This plan 15 enables the state and federal projects to provide the 16 necessary mitigation at a minimum cost to themselves. It is 17 clearly not reasonable to adopt an alternative, such as the 18 SJRA, which favors some objectives over others and locks in 19 water quality violations. 20 C.O. STUBCHAER: You really had that timed. 21 MR. HILDEBRAND: That was my intent. 22 C.O. STUBCHAER: Are you ready for cross-examination? 23 MR. HERRICK: Yes. 24 C.O. STUBCHAER: Who wishes to cross-examine Mr. 25 Hildebrand? CAPITOL REPORTERS (916) 923-5447 8224 1 Brandt, Birmingham, Campbell, O'Laughlin, Cahill, 2 Jackson. 3 Anyone else? 4 I got you, Mr. Brandt. 5 We are now pulling the cards so we can shuffle them. 6 MR. GODWIN: I would like to be added to the list, 7 Arthur Godwin. 8 C.O. STUBCHAER: Anyone who is not sure, but thinks 9 they might? 10 Seeing none. 11 We have all the parties on cards. We are going to 12 shuffle the cards and see. 13 MEMBER DEL PIERO: I want everybody to note that it is 14 two engineers who came up with that. 15 C.O. BROWN: We are doing this to save time, too. 16 MR. HILDEBRAND: I should be complimented that it takes 17 so many people to talk to me that you have to shuffle 18 cards. 19 C.O. BROWN: We have some tough questions for you, you 20 better be on your best behavior. 21 C.O. STUBCHAER: We will come up with a more 22 expeditious system next time. I take full responsibility. 23 C.O. BROWN: The first one is Mr. Birmingham, you are 24 up. 25 C.O. STUBCHAER: Read them all off. CAPITOL REPORTERS (916) 923-5447 8225 1 C.O. BROWN: Birmingham, O'Laughlin, Cahill, Jackson, 2 Godwin, Brandt and Campbell. 3 C.O. STUBCHAER: Mr. Birmingham. 4 MR. HILDEBRAND: I am in good face today. 5 ---oOo--- 6 CROSS-EXAMINATION OF SOUTH DELTA WATER AGENCY 7 BY SAN LUIS DELTA-MENDOTA WATER AUTHORITY AND 8 WESTLANDS WATER DISTRICT 9 BY MR. BIRMINGHAM 10 MR. BIRMINGHAM: Mr. Hildebrand, how are you? 11 MR. HILDEBRAND: I'm in good face today. 12 MR. BIRMINGHAM: You recovered from having been kicked 13 by the horse? 14 MR. HILDEBRAND: Just about. 15 MR. BIRMINGHAM: In your testimony, Mr. Hildebrand, 16 South Delta Water Agency Exhibit 51, you describe a 17 Comprehensive Water Management Plan to implement the 1995 18 Water Quality Control Plan; is that correct? 19 MR. HILDEBRAND: Yes. 20 MR. BIRMINGHAM: Could you briefly describe for me the 21 analysis that you performed in comparing your Comprehensive 22 Management Plan to the alternatives that are described in 23 the Draft Environmental Impact? 24 MR. HILDEBRAND: As you know, the analysis that was 25 made of recirculation by DWR modelers and a report which was CAPITOL REPORTERS (916) 923-5447 8226 1 submitted in this proceeding, we had the testimony of SJRA 2 and their witnesses under cross-examination as to what that 3 plan was. We read the Board's other alternatives, what they 4 consisted of, and then we compared them. 5 MR. BIRMINGHAM: Did you perform -- when I say "you," I 6 mean at South Delta Water Agency or any consultant -- 7 C.O. STUBCHAER: They can't hear in the back. Is there 8 any way, staff, that we can turn up this mike, this 9 particular mike? 10 It shows people are trying to listen. 11 MR. BIRMINGHAM: Did South Delta Water Agency perform 12 any independent modeling analysis to compare the 13 Comprehensive Management Plan you've described in your 14 testimony with the alternatives described in the Draft 15 Environmental Impact Report? 16 MR. HILDEBRAND: The Board's draft report? 17 Dr. Orlob has done some analyses, which you will hear, 18 I guess, tomorrow. Basically, however, it was not necessary 19 to do modeling because others had done the modeling. It was 20 a matter of comparing the propriety of the inputs, the 21 sources of the water, the overall water balance, whether 22 people were providing flows with real water or merely spill 23 water, as was discussed this morning, things of that kind. 24 It did not seem to be necessary to do any extensive modeling 25 to make the comparison. CAPITOL REPORTERS (916) 923-5447 8227 1 MR. BIRMINGHAM: I want to make sure that I understand 2 your basic objection to the San Joaquin River Agreement. 3 Your basic objection to the San Joaquin River Agreement is 4 that it will reduce return flows and change the timing of 5 releases from reservoirs operated by the agencies that are 6 members of the San Joaquin River Group Authority; is that 7 correct? 8 MR. HILDEBRAND: As one of our principal objections is 9 that, basically, looking at the testimony of Mr. Steiner and 10 others, it is a matter of they're shifting the time of water 11 releases such that we get loss of -- less flow in the summer 12 to meet riparian rights to provide the salinity control in 13 order to get more water to come down for this pulse flow in 14 the spring. It also incorporates, as we discussed before, 15 the Interim Operation Plan presumably for the next 12 years 16 for the Bureau, which, explicitly, by their own modeling 17 would involve violations of the Vernalis salinity standard 18 during approximately 40 percent of the water years. That is 19 not only frequent, but substantially, and, furthermore, that 20 modeling doesn't even incorporate the shift of water from 21 summer to spring in the other tributaries, which would make 22 it work. 23 MR. BIRMINGHAM: If I understand your answer, one of 24 your objections is premised on your view that under riparian 25 rights held by water users within the South Delta Water CAPITOL REPORTERS (916) 923-5447 8228 1 Agency those water users have a right to return flow? 2 MR. HILDEBRAND: The riparian water user has a right to 3 the unimpaired flow of the river system. And so, if the 4 tributary -- operators of the tributary dams don't bypass 5 all of the necessary flow, unimpaired flow of the river when 6 needed to meet riparian rights, we are being damaged. 7 MR. BIRMINGHAM: You would acknowledge, Mr. Hildebrand, 8 that riparian water users have no legal right to a return 9 flow? 10 MR. HERRICK: I would just object to that, calling for 11 a legal conclusion. That is and has been argued in these 12 proceedings. If Mr. Hildebrand wants to give his opinion, 13 that is certainly appropriate, but it is not a legal 14 position. 15 C.O. STUBCHAER: Mr. Birmingham, go ahead. Rephrase 16 the question. 17 MR. BIRMINGHAM: Am I correct, Mr. Hildebrand, that in 18 the course of your testimony here today you have expressed 19 your view concerning what is and is not required under 20 California water law? 21 MR. HILDEBRAND: In respect to the riparian rights, 22 that was the extent of your previous question. It is also 23 the question of whether downstream water users, whether 24 riparians or others, have a right to water which would come 25 down the river if the upstream parties only diverted water CAPITOL REPORTERS (916) 923-5447 8229 1 for their own use and did not divert additional water for 2 use outside the boundaries of their districts and beyond 3 their right, pre-1914 rights. 4 MR. BIRMINGHAM: I noticed today that the Board has 5 adopted or has returned to a rule that the cross-examiners 6 are going to be limited to one hour, absent a showing of 7 need for additional time. I wonder if I could request that 8 the responses that Mr. Hildebrand provides that are not 9 responsive to my questions not be counted had against my one 10 hour. 11 C.O. STUBCHAER: That is a very difficult thing to do 12 procedurally. We don't know at the time if they are 13 responsive, but we have not said that we are not going to 14 permit the time extensions. 15 MR. BIRMINGHAM: Alternatively, I would be happy with 16 an instruction from the hearing officer to the witness that 17 Mr. Hildebrand answer only my questions, and that if he 18 thinks it is appropriate for additional information to be 19 presented to the Board to clarify South Delta's position, 20 that his lawyer could ask him those questions on redirect. 21 C.O. STUBCHAER: I think that, generally speaking, not 22 with regard to you, that tends to be too restrictive on the 23 witnesses. So we'll be generous with the time, I guess. 24 Mr. Nomellini. 25 MR. NOMELLINI: I think that the solution would be to CAPITOL REPORTERS (916) 923-5447 8230 1 allow Mr. Birmingham an ample amount of time to complete his 2 cross-examination. I realize in your statement this morning 3 there was a change, sounded like a change to me. I think 4 the Board tried to keep a reasonable control of 5 cross-examination within the bounds of relevancy, and I 6 would suggest that we emphasize that as a rule rather than 7 the one hour. 8 C.O. STUBCHAER: Mr. Nomellini, I think that is kind of 9 what I just stated except there have been instances where 10 some cross-examinations become repetitive, not focused on 11 the testimony, and that is what our procedure is aimed at, 12 trying to streamline things. To use Mr. Caffrey's favorite 13 word, we will not stifle anyone. 14 So, please proceed, Mr. Birmingham. 15 MR. BIRMINGHAM: Mr. Hildebrand, I would like to go 16 back to my question. You would acknowledge that the 17 riparian water rights user does not have a right to return 18 flow? 19 MR. HERRICK: Again, Mr. Chairman, I am not trying to 20 delay these proceedings. I want to make sure the record is 21 clear that Mr. Hildebrand is free to discuss everything he 22 wants, and he is fairly much an expert on most of these 23 matters. But that is a legal issue and that would be argued 24 in these proceedings and afterwards. 25 C.O. STUBCHAER: I understand, but, as you say, we have CAPITOL REPORTERS (916) 923-5447 8231 1 accepted Mr. Hildebrand as an expert in many cases over some 2 objections, by the way, and I think he can answer that 3 question with the best of his ability and knowledge. 4 MR. HERRICK: Thank you. I was just trying to make 5 sure the record reflected. 6 Thank you. 7 MR. HILDEBRAND: I think riparians are entitled to the 8 water to meet their needs. If it is being met by return 9 flow, rather than by bypassed water, unimpaired water, I 10 assume that would be one way of doing it. But I repeat that 11 I don't think that the rights to divert by people downstream 12 of these tributaries is limited to riparian rights. 13 I don't think the tributaries have a right under their 14 storage rights to store water that is over and above their 15 needs. That was not the purpose of the rights that they 16 were given for storage. When they do that, I don't think 17 they have a right, then, to deny the excess storage that 18 goes downstream who should have the benefit of it. 19 MR. BIRMINGHAM: You would acknowledge, wouldn't you, 20 Mr. Hildebrand, that riparian water users in the South Delta 21 Water Agency cannot compel members of the San Joaquin River 22 Group Authority to store water? 23 MR. HILDEBRAND: That's right. 24 MR. BIRMINGHAM: So if the Bureau of Reclamation pays 25 members of the San Joaquin River Group Authority to forego CAPITOL REPORTERS (916) 923-5447 8232 1 their rights to appropriate water to storage in order to 2 meet flows in the San Joaquin River, water users in the 3 South Delta Water Agency have not been injured? 4 MR. HILDEBRAND: The Bureau, as far as I know of, has 5 not paid for water precisely on that basis. It paid for you 6 to release a certain amount of water for pulse flow purpose, 7 and whether that water was taken out of storage currently or 8 whether it affected the amount of water which would be 9 stored for refill or something else, it is not that simple a 10 question. 11 MR. BIRMINGHAM: You heard Mr. Steiner testify in Phase 12 II that water would be made available under the San Joaquin 13 River Agreement by bypassing flows? 14 MR. HILDEBRAND: I don't believe he said that 15 exclusively. 16 MR. BIRMINGHAM: Did he say that water would be -- is 17 it your understanding, Mr. Hildebrand, that water would be 18 made available under the San Joaquin River Agreement by 19 bypassing flows? 20 MR. HILDEBRAND: I don't recall whether he used that 21 specific term. But his overall analysis did not say where 22 the water would come from. 23 MR. BIRMINGHAM: I am going to ask you to assume for 24 purposes of my questions, water for purposes of meeting the 25 Vernalis flow under the San Joaquin River Agreement would be CAPITOL REPORTERS (916) 923-5447 8233 1 made available by bypassing flows. 2 Based on that assumption, you would agree that in those 3 circumstances water users within the South Delta Water 4 Agency have not been injured as a result of implementation 5 of the agreement? 6 MR. HILDEBRAND: That is a very hypothetical question 7 because that is not what the testimony indicated. 8 MR. BIRMINGHAM: I wonder if I can ask a hypothetical 9 question. Mr. Hildebrand is an expert, and I am entitled to 10 ask hypothetical questions. Responding to my question by 11 saying it is hypothetical is not a response. 12 C.O. STUBCHAER: Mr. Hildebrand, could you please 13 respond to the best of your ability. 14 MR. HILDEBRAND: Repeat the question, please. 15 MR. BIRMINGHAM: I am going to ask you to assume that 16 water for the flows at Vernalis called for by the San 17 Joaquin River Agreement are provided by the members of the 18 San Joaquin River Group Authority bypassing flows. In those 19 circumstances, you would agree, wouldn't you, Mr. 20 Hildebrand, that riparian water rights of water users in the 21 South Delta Water Agency have not been injured? 22 MR. HILDEBRAND: Not during the time of the bypass. 23 MR. BIRMINGHAM: It is your position that the water 24 users would be injured because less water would be made 25 available in those circumstances later in the year; is that CAPITOL REPORTERS (916) 923-5447 8234 1 correct? 2 MR. HILDEBRAND: That is likely to be the case. 3 MR. BIRMINGHAM: You have acknowledged that water users 4 in the South Delta Water Agency cannot compel San Joaquin 5 Group Authority members to store water? 6 MR. HILDEBRAND: We also have trouble keeping them from 7 storing water. It should come on down. 8 MR. BIRMINGHAM: Have you ever filed a complaint 9 against members of the San Joaquin River Group Authority for 10 not satisfying or releasing sufficient water to meet your 11 riparian needs? 12 MR. HILDEBRAND: We filed a lawsuit for -- they -- when 13 there was a purchase, for example, from the Merced. I 14 believe it was -- which was expressly for the purpose of 15 shifting release of power water in the summer and releasing 16 it instead in the spring, which directly and clearly reduced 17 the flow in the summer. 18 MR. BIRMINGHAM: I am not sure that you understood my 19 question, Mr. Hildebrand. Has South Delta Water Agency ever 20 filed a complaint with the State Water Resources Control 21 Board alleging that members of the San Joaquin River Group 22 Authority have not released sufficient water to satisfy the 23 riparian water rights of water users within the South Delta 24 Water Agency? 25 MR. HILDEBRAND: I don't recall for sure whether we did CAPITOL REPORTERS (916) 923-5447 8235 1 or we didn't. 2 MR. BIRMINGHAM: In your testimony you referred to the 3 Interim Operation Plan that was developed by the Bureau of 4 Reclamation for operation of New Melones Reservoir? 5 MR. HILDEBRAND: That's right. 6 MR. BIRMINGHAM: Isn't it correct, Mr. Hildebrand, that 7 South Delta Water Agency participated in the discussions 8 that resulted in the adoption of the Interim Operations Plan 9 by the Bureau of Reclamation? 10 MR. HILDEBRAND: What do you mean by "participate"? We 11 were present at some of the discussions. We never agreed to 12 it in any way, shape or form. We objected throughout. 13 MR. BIRMINGHAM: In your written testimony, South Delta 14 Water Agency Exhibit 51, you state that the adoption of the 15 Interim Operations Plan by the Bureau of Reclamation is a 16 violation of the Bureau's permits to appropriate water at 17 New Melones Reservoir? 18 MR. HILDEBRAND: That's right. 19 MR. BIRMINGHAM: Has South Delta Water Agency filed a 20 complaint with the State Water Resources Control Board 21 alleging that adoption of the Interim Operations Plan by the 22 Bureau of Reclamation violates the permits held by the 23 Bureau to appropriate water at New Melones Reservoir? 24 MR. HILDEBRAND: In objecting to the extension of 95-6 25 we brought up that tissue. CAPITOL REPORTERS (916) 923-5447 8236 1 MR. BIRMINGHAM: Have you filed a complaint, Mr. 2 Hildebrand? 3 MR. HILDEBRAND: Not yet. 4 MR. BIRMINGHAM: During his opening statement your 5 counsel observed that the South Delta Water Agency had been 6 excluded from the discussions that resulted in the San 7 Joaquin River Agreement. 8 Do you recall him saying that? 9 MR. HILDEBRAND: Yes. 10 MR. HERRICK: Objection. That misstates the opening 11 statement. 12 C.O. STUBCHAER: I didn't memorize your opening 13 statement. 14 MR. HERRICK: My opening statement said the initial 15 negotiations with SJRA did not include South Delta, but that 16 we were brought in at the very end, after assumptions of 17 that program had been decided on. 18 MR. BIRMINGHAM: With that clarification, do you recall 19 your counsel's opening statement, Mr. Hildebrand? 20 MR. HILDEBRAND: Yes. 21 MR. BIRMINGHAM: I apologize to him for misstating his 22 position. 23 With respect to the Interim Operations Plan, was South 24 Delta Water Agency made a party to the discussions only at 25 the end of the process? CAPITOL REPORTERS (916) 923-5447 8237 1 MR. HILDEBRAND: Yes. The decision to adopt that 2 interim plan incorporated in this was already in place at 3 the time. Also the decision that the pulse flow would be 4 provided in a manner that was presented by Mr. Steiner and 5 others. When I was put in for two or three meetings, which 6 were cordial, nevertheless, the outcome was that I was 7 informed by the person in charge of the meeting that, since 8 I objected to those, that there would be no further 9 negotiation with us and that, in fact, the SJRA, to use his 10 words, was at war with the South Delta. 11 MR. BIRMINGHAM: I would like to focus on the 12 description in your Comprehensive Plan, South Delta Water 13 Agency Exhibit 51. You have identified three sources of 14 water to implement the Comprehensive Plan; is that correct? 15 MR. HILDEBRAND: Yes. 16 MR. BIRMINGHAM: One source of the water would be the 17 recirculation plan that you've previously described? 18 MR. HILDEBRAND: That is the preferred one, yes. 19 MR. BIRMINGHAM: The second one, purchases from export 20 users. 21 MR. HILDEBRAND: That's correct. 22 MR. BIRMINGHAM: The third would be water currently 23 being provided outside the Bureau's permitted area of use? 24 MR. HILDEBRAND: Yes. I doubt if it would come to 25 that, but if it did, it should be available. That water is CAPITOL REPORTERS (916) 923-5447 8238 1 being delivered without permit. 2 MR. BIRMINGHAM: During the oral summary of your 3 testimony, I believe you used the term "water being exported 4 in violation of the Bureau's permits"? 5 MR. HILDEBRAND: Yes. 6 MR. BIRMINGHAM: Let me ask you, Mr. Hildebrand, have 7 you done any analysis to quantify how much water is used 8 outside of the existing place of use described in the 9 Bureau's permits? 10 MR. HILDEBRAND: I don't recall the numbers, but I have 11 seen the acreage provided. And putting any reasonable water 12 demand per acre on it, you come up with a pretty significant 13 sum of water. It may or may not be enough to take care of 14 this thing in total, but it certainly could contribute to 15 it. 16 MR. BIRMINGHAM: That contribution is based on an 17 assumption that that water would not be used elsewhere 18 within the permitted place of use; isn't that right, Mr. 19 Hildebrand? 20 MR. HILDEBRAND: Well, if the Bureau is delivering it 21 outside the place of use, the inference would be that they 22 are satisfying their obligations for the permitted place of 23 use. Otherwise, I don't know why the parties who are within 24 the permitted place of use would not have objected. 25 MR. BIRMINGHAM: So, that is an assumption on which you CAPITOL REPORTERS (916) 923-5447 8239 1 are basing your analysis? 2 MR. HILDEBRAND: In part. 3 MR. BIRMINGHAM: Let's talk specifically about 4 Westlands Water District. Are there areas within Westlands 5 Water District that are outside the permitted place of use? 6 MR. HILDEBRAND: I believe so, but I don't recall. I 7 have seen the maps of where it was. 8 MR. BIRMINGHAM: Isn't it correct, Mr. Hildebrand, that 9 within Westlands Water District there is a greater demand 10 for water than there is CVP supply? 11 MR. HILDEBRAND: Yes. 12 MR. BIRMINGHAM: If water were being used outside the 13 place of use and the Board would issue an order prohibiting 14 that, that same water could be used within the boundaries of 15 Westlands Water District? 16 MR. HILDEBRAND: It could have been. Whether the Board 17 wants to exonerate the violation of its permits and no 18 penalty, I don't know. That is up to the Board. 19 MR. BIRMINGHAM: So what you are proposing is that the 20 Board institute a penalty against water users for having 21 used water outside the place of use? 22 MR. HILDEBRAND: I'm not proposing anything. I merely 23 point that if they don't want to recirculate water, they 24 don't want to buy enough water from contractors to provide 25 the flows in the river, then it would be more reasonable to CAPITOL REPORTERS (916) 923-5447 8240 1 consider using this water than to take water from the 2 tributaries which then deprives downstream users of their 3 water. 4 MR. BIRMINGHAM: Again, going back to your assumption, 5 you've assumed that there is no demand within the permitted 6 place of use for the water currently being used outside the 7 place of use? 8 MR. HILDEBRAND: I didn't make that assumption, no. 9 MR. BIRMINGHAM: I would like to talk for a moment 10 about the recirculation plan. 11 On Page 5 of South Delta Water Agency Exhibit 51, you 12 state that the benefits from the recirculation method are 13 tremendous. Any amount of flow contributed toward the pulse 14 period up to the full 1995 Water Quality Control Plan 15 amounts can be provided without a loss to any water user. 16 Is that correct, Mr. Hildebrand? 17 MR. HILDEBRAND: That is what I said. 18 MR. BIRMINGHAM: On what are you basing your conclusion 19 that any amount of flow contributed towards the pulse period 20 up to the full 1995 Water Quality Control Plan amounts could 21 be provided without a loss to any water user? 22 MR. HILDEBRAND: If you recirculate the water, you are 23 not consuming any of it. No water disappears. You are 24 reusing the water, making multiple use of water. That is 25 why it is a much more reasonable way to use water than to CAPITOL REPORTERS (916) 923-5447 8241 1 provide the flows that deprives other water users of their 2 needs. 3 MR. BIRMINGHAM: Isn't it correct, Mr. Hildebrand, that 4 there are restrictions that are imposed on the use of the 5 export pumps? 6 MR. HILDEBRAND: What we have proposed here is that 7 those restrictions be lifted to whatever degree is necessary 8 to permit the recirculation. 9 MR. BIRMINGHAM: You have used -- provided an example 10 of the recirculation proposal on Page 4 of South Delta Water 11 Agency Exhibit 51; is that correct? 12 MR. HILDEBRAND: I believe that is the page, yes. 13 MR. BIRMINGHAM: The example that you have used is 14 based upon an assumption where the base flow at Vernalis is 15 5,000 cfs, correct? 16 MR. HILDEBRAND: Yes. 17 MR. BIRMINGHAM: The Vernalis pulse flow objective is 18 7,000 cfs? 19 MR. HILDEBRAND: Yes. 20 MR. BIRMINGHAM: The base export rate is 1,500 cfs. 21 MR. HILDEBRAND: Yes. 22 MR. BIRMINGHAM: Under this example what you are 23 proposing is that exports would be increased by 2,000 cfs to 24 make up for the difference between the 7,000 Vernalis flow 25 objective and the base flow of 5,000 cfs? CAPITOL REPORTERS (916) 923-5447 8242 1 MR. HILDEBRAND: That's right. 2 MR. BIRMINGHAM: What would happen, Mr. Hildebrand, 3 under your example if rather than having a base export rate 4 of 1,500 cfs the base export rate was 3,000 cfs? 5 MR. HILDEBRAND: You could do the arithmetic as well as 6 I can. Under some situations you can do the -- you can do 7 the recirculation while still meeting the existing Delta 8 Smelt Biological Opinion, and other situations you would be 9 limited and would have to go to buying parts of the flow in 10 the event that they don't reconsider that biological 11 opinion, which would seem a reasonable thing to do since 12 this is a different kind of situation envisioned when they 13 made the opinion. 14 When they did the opinion, it was assumed that this 15 water would not all be coming from the San Joaquin, a lot of 16 recirculation. It did involve bringing water across from 17 Sacramento. That is a very different thing because you can 18 draw Sacramento fish across when you do that. 19 So, if you did this recirculation, I would assume there 20 would be a reconsideration of the biological opinion. But 21 what we are saying, even if there was not such a 22 reconsideration you could do a good deal of the -- provide a 23 good deal of flow by recirculation. And if you didn't want 24 to change the biological opinion, you then have to do the 25 rest by buying water from contractors instead of from CAPITOL REPORTERS (916) 923-5447 8243 1 tributaries. 2 MR. BIRMINGHAM: On Page 4 of your testimony you phrase 3 the question as follows: 4 Regardless, the question arises as to whether 5 recirculation pumping can be accomplished in 6 compliance with the current biological 7 opinion for that species. (Reading.) 8 And by "that species" you meant the Delta smelt; is 9 that correct? 10 MR. HILDEBRAND: That's right. 11 MR. BIRMINGHAM: You then go on to say: 12 The answers to these questions is yes. 13 (Reading.) 14 Is that correct, Mr. Hildebrand? 15 MR. HILDEBRAND: That's right. But I think what I said 16 in there was somewhat qualified by the previous indication 17 that recirculation would not necessarily provide all of the 18 flow. It would provide a large portion of it. In some 19 circumstances, it can provide all of it. It could provide 20 all if the Delta smelt opinion was revised. If not, you 21 then switch to the second choice of source of water, which 22 is to buy the water from the contractors. 23 MR. BIRMINGHAM: If we wanted to make the sentence at 24 the end of the first full paragraph of Page 4, which 25 presently reads, "The answer to these questions is yes," to CAPITOL REPORTERS (916) 923-5447 8244 1 make that more accurate, we would say, "The answer to these 2 questions is a qualified yes"? 3 MR. HILDEBRAND: I would agree with that. 4 MR. BIRMINGHAM: You've indicated that one alternative 5 when it is not possible to export water in sufficient 6 quantities to meet the flow objectives at Vernalis would be 7 to borrow water from the San Luis Reservoir? 8 MR. HILDEBRAND: I don't think I said specifically that 9 that is how you would get it. We did say that in the 10 process of recirculation, as you will see if you look at our 11 SDWA 12, you prime the system by borrowing a little water 12 out of San Luis at the beginning of the pulse and return it 13 at the end of the pulse. That is a different thing from the 14 whole source of water; that is just a temporary borrowing 15 thing to make it work. 16 MR. BIRMINGHAM: Page 5, Mr. Hildebrand, I would like 17 you to refer to Page 5 of your testimony, South Delta Water 18 Agency Exhibit 51. It states: 19 At times that exports must be curtailed and 20 thus recirculation opportunities decreased, 21 other alternatives can take over. (Reading.) 22 There you are talking about other alternatives to meet 23 the fish flow requirement in the lower San Joaquin River; is 24 that correct? 25 MR. HILDEBRAND: That gets back to what I was just CAPITOL REPORTERS (916) 923-5447 8245 1 saying. Under the circumstances where biological opinions 2 or something else preclude recirculating the total amount 3 that is required, that you then turn to these other 4 alternative sources of flow which still do not deprive the 5 over burdened San Joaquin River system. 6 MR. BIRMINGHAM: One of the alternatives, in fact, the 7 first alternative that you mention in the next paragraph is 8 borrowing water from San Luis Reservoir. The next sentence 9 following the sentence that I just quoted from Page 5, Mr. 10 Hildebrand, states: 11 The relevant San Luis Reservoir storage 12 permits could be adjusted to allow a 13 borrowing of export water. (Reading.) 14 MR. HILDEBRAND: That is one of the options how you go 15 about doing this. That is not an exclusive thing you can -- 16 but there are a lot of permutations you can get into as to 17 how you provide -- get the purchased contract water into the 18 river, the timing of when you put it in. 19 MR. BIRMINGHAM: I want to make sure I understand the 20 proposal. A few moments ago when I asked you if it is going 21 to be necessary to borrow water from San Luis Reservoir, I 22 believe you responded by saying it would only be necessary 23 to borrow water in order to prime the recirculation 24 program. 25 Now you are saying in the testimony that I have read CAPITOL REPORTERS (916) 923-5447 8246 1 from on Page 5 of South Delta Water Agency Exhibit 51, that 2 sometimes it may be necessary to borrow water from storage 3 in San Luis Reservoir when the recirculation opportunities 4 decrease because of limitations imposed by biological 5 opinions? 6 MR. HILDEBRAND: When you first raised the question I 7 thought you were referring to the reference to borrowing 8 water that is in SDWA 12. Now I understand you are talking 9 about the reference in here. It merely was an example of 10 one of the things you can do to make it possible to -- was 11 instead of buying water from a contractor who is not 12 receiving it at that particular point in time, you can, in 13 effect, by his interest in the water that is in the dam, 14 which would later be delivered to him, delivered instead for 15 the pulse flow. I am merely trying to describe the 16 flexibility of the system here to do various things. 17 MR. BIRMINGHAM: Your next sentence with respect to 18 borrowing water from San Luis Reservoir says: 19 The borrowed water could be replaced at other 20 times just as the joint point proposal 21 contemplates such a borrowing method could 22 strive for a "no-net loss" goal as contained 23 in the current joint point operations under 24 WR 95-6. (Reading.) 25 What do you mean by that "no-net loss" goal? CAPITOL REPORTERS (916) 923-5447 8247 1 MR. HILDEBRAND: In the plan, in SDWA 12, we propose to 2 provide water by recirculation for the fish flows on the 3 basis that it would involve no-net loss to the contractors. 4 This was all discussed with the contractors as to how we 5 would do this, and that for the purpose of this proposal we 6 would limit it to no-net loss potentials. 7 Now there are other times when you could also do it on 8 a no-net loss basis with some staggering of time. And it 9 gets more complicated. We didn't try to put it in those 10 options into the report. But there are opportunities to 11 borrow water and replace it at a later time and thereby 12 avoid increasing the pumping rate during the pulse. That 13 depends on the specific situation and how much water there 14 is in the dam, what kind of water year it is, and that sort 15 of thing. 16 Again, I am trying to point out here that there is a 17 lot of flexibility for doing this. We've only, in getting 18 right down to the nitty-gritty numbers, we stuck to those 19 things that are clearly feasible. 20 MR. BIRMINGHAM: Getting back to my question, Mr. 21 Hildebrand, if by no-net loss you mean there would be no-net 22 loss to contractors? 23 MR. HILDEBRAND: That's correct. 24 MR. BIRMINGHAM: In this sentence, and I am sorry -- 25 MR. HILDEBRAND: I also refer to no-net loss to people CAPITOL REPORTERS (916) 923-5447 8248 1 in the San Joaquin River system. So there may be some 2 confusion between the two. 3 MR. BIRMINGHAM: So, it would be a no-net loss to water 4 users on the San Joaquin River system and no-net loss to CVP 5 contractors? 6 MR. HILDEBRAND: That, I think, is the goal we strived 7 for. 8 MR. BIRMINGHAM: In fact, that leads to my next 9 question. In the sentence you say: 10 Such a borrowing would strive. (Reading.) 11 When you use the term "strive," that suggests that in 12 some circumstances it may not be possible to borrow water 13 from San Luis Reservoir on a no-net loss basis; is that 14 correct, Mr. Hildebrand? 15 MR. HILDEBRAND: That situation could be forced by 16 biological opinions, not by us. 17 MR. BIRMINGHAM: In those circumstances, going down to 18 the paragraph entitled "benefits," in those circumstances 19 your recirculation plan, in fact, would result in water 20 losses to water users; isn't that correct? 21 MR. HILDEBRAND: We have not urged any recirculation 22 program that would cause a net loss to anybody. We 23 recognize that biological opinions may cause net losses to 24 various people, and that could include us and could include 25 the contractors. CAPITOL REPORTERS (916) 923-5447 8249 1 MR. BIRMINGHAM: I would like to go back to the 2 analysis of the biological opinion, if we can. You have 3 suggested that an alternative to obtain water to satisfy the 4 fish flow requirements at Vernalis is to buy the water? 5 MR. HILDEBRAND: Yes. 6 MR. BIRMINGHAM: When the Department of the Interior 7 proposed to buy water from Merced Irrigation District to 8 satisfy the biological opinion, you sued them? 9 MR. HILDEBRAND: The distinction there is that the 10 purchase that the Bureau was making bought water from people 11 that damaged people other than the sellers. Whereas, if you 12 buy the water from contractors, he is just going to release 13 water that he would have otherwise used. 14 Since the SJRA proposal makes no commitment that the 15 water that is released for pulse flow would be water that is 16 derived either from increased yield or from decrease in 17 consumption, we have to assume predominantly it would be a 18 shift from other water users and not the seller. 19 MR. BIRMINGHAM: When the Department of the Interior 20 proposes to buy water from a water user -- let me ask the 21 question differently, Mr. Hildebrand. 22 Under what criteria would you think it appropriate for 23 the Bureau of Reclamation to buy water from water users? 24 MR. HILDEBRAND: If they buy water from people who are 25 committed to a reduction in their consumptive use of water, CAPITOL REPORTERS (916) 923-5447 8250 1 that would be all right. 2 MR. BIRMINGHAM: I want to make sure I am writing down 3 accurately what you said, Mr. Hildebrand. You say if they 4 buy water from people committed to reducing consumptive use, 5 that would be all right. Is that what you just said? 6 MR. HILDEBRAND: Yes. Let me refer to Title 34, Public 7 Law 102-565 of the CVPIA. And in that, on Page 7, Paragraph 8 I, is states: 9 The water subject to any transfer undertaken 10 pursuant to this subsection shall be limited 11 to water that would have been consumptively 12 used or irretrievably lost to beneficial use 13 during the years or years of the transfer. 14 (Reading.) 15 We have sued them when they have not complied with 16 that. 17 MR. BIRMINGHAM: Actually, this is kind of an 18 interesting situation, Mr. Hildebrand. If I just observed 19 correctly, your Counsel handed you that document so you 20 could read provisions of the law. 21 MR. HILDEBRAND: I am quite familiar with the document. 22 MR. BIRMINGHAM: May I borrow the document? I am not 23 familiar with the document, Mr. Hildebrand, this law, so 24 let me ask a -- 25 MR. HILDEBRAND: You're a lawyer. You're supposed to CAPITOL REPORTERS (916) 923-5447 8251 1 know this. 2 MR. BIRMINGHAM: I know nothing about the CVP, ask the 3 audience that. 4 MR. O'LAUGHLIN: Can we enter that in the record? 5 UNIDENTIFIED VOICE: Can the government enter that in 6 the record? 7 MEMBER DEL PIERO: He is not sworn. That is not an 8 admission. 9 C.O. STUBCHAER: "Can we enter that in the record," for 10 the record, was that a statement of the document, Mr. 11 O'Laughlin? 12 MR. O'LAUGHLIN: Oh, no. I was joking. 13 C.O. STUBCHAER: If this isn't in the record, we ought 14 to get it into the record. Is it in the record, staff? 15 MR. HERRICK: I think it is. 16 C.O. STUBCHAER: I am sure it is. 17 MR. BIRMINGHAM: You've said that when Interior has -- 18 actually, may I ask that be read back because I don't want 19 to misquote. 20 (Record read as requested.) 21 MR. BIRMINGHAM: Mr. Hildebrand, you said that you have 22 sued Bureau when they have not complied with that. And when 23 you say that, you are referring to -- 24 MR. HILDEBRAND: What I've just read. 25 MR. BIRMINGHAM: Section 3405 (a)(1) of the Central CAPITOL REPORTERS (916) 923-5447 8252 1 Valley Project Improvement Act? 2 MR. HILDEBRAND: I didn't mean to imply we have sued 3 them every time they didn't comply, because we can't afford 4 it. 5 MR. BIRMINGHAM: The one time that you have sued them 6 related to a transfer from Merced Irrigation District; is 7 that correct? 8 MR. HILDEBRAND: That was a different suit, yes. 9 MR. BIRMINGHAM: In what other circumstances have you 10 sued the Bureau of Reclamation in connection with the 11 transfer under CVPIA, Section 3405? 12 MR. HILDEBRAND: I have to have my lawyer jog my memory 13 on that. These legal things get too frequent and too 14 complicated. 15 MR. BIRMINGHAM: I want to make sure that the record is 16 clear. You are not suggesting, are you, Mr. Hildebrand, 17 that the transfer from Merced Irrigation District to the 18 Department of the Interior was subject to the requirements 19 of Section 3405 of the Central Valley Project Improvement 20 Act? 21 MR. HILDEBRAND: I am not sure of the answer to that 22 because the -- although the Merced Irrigation District got 23 paid for it, the Bureau -- got paid to do it, it was the 24 Bureau who put up the money. 25 MR. BIRMINGHAM: Isn't it correct, Mr. Hildebrand, that CAPITOL REPORTERS (916) 923-5447 8253 1 Section 3405 of the Central Valley Project Improvement Act 2 deals with the transfer of Central Valley Project water? 3 MR. HILDEBRAND: That's correct. 4 MR. BIRMINGHAM: Merced Irrigation District water is 5 not Central Valley Project Improvement Act water? 6 MR. HILDEBRAND: I guess you are right about that. 7 C.O. STUBCHAER: Mr. Birmingham, when would be a good 8 time to take our afternoon break? 9 MR. BIRMINGHAM: This would be a good time. 10 C.O. STUBCHAER: All right. We will take a 12-minute 11 break. 12 (Break taken.) 13 C.O. STUBCHAER: Come back to order, please. If we can 14 come back to order, we will resume with Mr. Birmingham's 15 cross-examination. 16 Please proceed. 17 MR. BIRMINGHAM: Mr. Hildebrand, I would like to go 18 back to answer you gave me a few moments before the 19 afternoon recess. You said, and this was immediately before 20 our discussion of the Central Valley Project Improvement 21 Act, that if Reclamation or Interior buys water from water 22 users who are committed to consumptive use, then that would 23 be okay? 24 MR. HILDEBRAND: Yes. 25 MR. BIRMINGHAM: So, in other words, if the Bureau -- CAPITOL REPORTERS (916) 923-5447 8254 1 if the San Joaquin River Group Authority members agreed to 2 reduce their consumptive use, you would have no objection to 3 the Bureau of Reclamation or the Department of the Interior 4 buying water from those water agencies under the San Joaquin 5 River Agreement? 6 MR. HILDEBRAND: I would say, generally, yes. I would 7 have to look at how it affected the timing of the downstream 8 flow. Generally speaking, yes. 9 MR. BIRMINGHAM: Well, if the San Joaquin River Group 10 Authority members reduced their consumptive use of water, 11 that would result in a decrease in return flows, would it 12 not? 13 MR. HILDEBRAND: If they -- that is why we made a 14 qualification. I just did. If they reduce their 15 consumptive use at one point in time, but not overall, then 16 that would just shift it around. You would have to look at 17 whether the reduction in consumptive use was consumptive use 18 that would normally have been made within their boundaries 19 for the agricultural purposes. 20 C.O. BROWN: Excuse me, Mr. Chairman. 21 C.O. STUBCHAER: Mr. Brown. 22 C.O. BROWN: This is kind of critical here. You asked 23 the question if they reduce the consumptive use, they would 24 reduce tailwater. My understanding of consumptive use and 25 tailwater are two independent -- are two independent CAPITOL REPORTERS (916) 923-5447 8255 1 concerns. This is critical here. 2 Do you have an explanation, Alex, as to the difference 3 between those two? 4 MR. HILDEBRAND: If they applied less water and 5 consumed the same amount, they would reduce the return 6 flow. But then if they also -- 7 C.O. BROWN: Excuse me, go ahead. 8 MR. HILDEBRAND: If the water then that is not consumed 9 is let down the river on the schedule that it would come 10 down just by being bypassed, then it doesn't affect 11 downstream people. If they go in and they stop growing 12 crops, they could splash the water all over the place, and 13 it would come back to the river either directly or via 14 groundwater and we wouldn't be affected. 15 So, it has to do both with their reducing consumptive 16 use and whether or not they are changing the time of 17 diversion of undiverted water. 18 C.O. BROWN: May I follow-up, Mr. Chairman? 19 Mr. Birmingham, you are on my time, if that is all 20 right? 21 MR. BIRMINGHAM: Absolutely. 22 C.O. BROWN: Could you reduce the consumptive use by 23 changing your cropping patterns from two and half acre-feet 24 to two acre-feet, but still have the same quantity of 25 tailwater? CAPITOL REPORTERS (916) 923-5447 8256 1 MR. HILDEBRAND: Yes. If you applied the same amount. 2 C.O. BROWN: That is the issue. 3 MR. HILDEBRAND: That's right. But changing cropping 4 patterns is not something that Board Members of these 5 tributaries are going to require. They would get fired, 6 and the market dictates the cropping pattern. 7 C.O. BROWN: That is not the issue. Of course, you're 8 right. Market and soil suitability and a lot of other 9 concerns. 10 The question was, as I understood Mr. Birmingham, if 11 you reduce the consumptive use, for whatever reason, you 12 change crops or -- I guess you'd have to change crops, if 13 you reduce the consumptive use, do you reduce tailwater? 14 And that is the answer I am looking for. 15 MR. HILDEBRAND: If you apply the same amount and 16 consume less, you'll get more tailwater. 17 C.O. BROWN: Thanks, Mr. Birmingham. That was my 18 time. 19 MR. BIRMINGHAM: Mr. Hildebrand, I want to go back to 20 your statement because I want to make sure I understand the 21 objection you have to the San Joaquin River Agreement. 22 You stated it twice now. Confirmed it each time. 23 Actually, you said it once and you've confirmed it now twice 24 when I read it back to you. 25 If Reclamation or Interior buys water from water users CAPITOL REPORTERS (916) 923-5447 8257 1 who are committed to consumptive use, that would be okay. 2 Now, let me ask you a hypothetical question. 3 Let's assume that the Interior buys water from the San 4 Joaquin River Group Authority members, and that during the 5 year in which the water is purchased all of the Authority 6 members fallow all of the land within their districts. That 7 would be a reduction of consumptive use, wouldn't it? 8 MR. HILDEBRAND: Certainly would. 9 MR. BIRMINGHAM: That would reduce return flows or 10 tailwater, wouldn't it? 11 MR. HILDEBRAND: It wouldn't reduce the flow in the 12 river, as long as they just didn't store it and consume it 13 the next year. 14 MR. BIRMINGHAM: There isn't anything that would 15 prevent them from storing it and consuming it the next year, 16 is there, Mr. Hildebrand? 17 MR. HILDEBRAND: That is why I qualified my answer at 18 the time. It depends on whether it is going to affect the 19 amount of water and the timing of the water coming down the 20 river. 21 MR. BIRMINGHAM: Before, when we clarified the 22 statement in your written testimony, that with respect to 23 the implementation of the recirculation plan in compliance 24 with the biological opinion, the answer to these questions 25 are a qualified yes. Here, although you stated it three CAPITOL REPORTERS (916) 923-5447 8258 1 times, your statement that if they buy water from water 2 users who are committed to reducing consumptive use, that 3 would be okay. That is also a qualified statement? 4 MR. HILDEBRAND: Somewhat. 5 MR. BIRMINGHAM: The qualification is that so long as 6 the tailwater or return flows remain the same, you have no 7 objections? 8 MR. HILDEBRAND: As long as the river flow remains the 9 same, whether it gets into the river by first being 10 overapplied and draining back to the river or bypassed to 11 the reservoir, doesn't make any difference to us 12 downstream. But we have to remember this whole thing is 13 hypothetical because there is no commitment of the San 14 Joaquin River parties to reduce consumptive use. 15 MR. BIRMINGHAM: Earlier you referred to the litigation 16 that you filed against Merced Irrigation District when you 17 said Merced proposed to transfer water to the Department of 18 the Interior? 19 MR. HILDEBRAND: That -- I didn't recall timing. You 20 asked the question. But that suit involved two things. It 21 involved this shift in the use of power uses, and it also 22 involved purchases of other water. 23 MR. BIRMINGHAM: In that litigation South Delta Water 24 Agency asserted that the shift in the release of water, in 25 the transfer of water, would injure the riparian rights of CAPITOL REPORTERS (916) 923-5447 8259 1 the South Delta Water Agency? 2 MR. HILDEBRAND: That's right. 3 MR. BIRMINGHAM: You lost that litigation? 4 MR. HILDEBRAND: Well, yes and no. What happened was 5 that they -- after we brought the litigation, we had some 6 very wet weather. So that it was possible for them to 7 refill the void in the reservoir with water that would 8 otherwise have been spilled. To a large degree the question 9 became moot. 10 MR. BIRMINGHAM: Mr. Hildebrand, from your perspective 11 tell us in detail, please, because you have described a 12 Comprehensive Plan that you asked the Board to adopt. I 13 want to make sure we understand it in detail necessary to 14 implement the plan, in as much detail as you can provide 15 from whom can the Department of the Interior buy water to 16 implement the Comprehensive Plan? 17 MR. HILDEBRAND: To the extent that they don't have to 18 buy it because they just recirculate it, that is not 19 involved here, to the extent for one reason or another they 20 are not allowed to recirculate it, then they would buy water 21 from a party, let's say, on the west side of the San Joaquin 22 Valley who would otherwise receive water from the Bureau, 23 deliver it out of the DMC, and that water instead be dropped 24 into the river during the pulse flow. Since the delivery 25 might or might not have been made at the time of pulse flow, CAPITOL REPORTERS (916) 923-5447 8260 1 they might in effect buy that party's water while still in 2 the San Luis Reservoir. But, basically, they are buying 3 water from somebody who would otherwise consume it or lose 4 it, too, irrecoverable supplies. 5 MR. BIRMINGHAM: Are those the only criteria that you 6 would ask the Board to apply in ordering the implementation 7 of the Comprehensive Plan that is described in South Delta 8 Water Agency Exhibit 51? 9 MR. HILDEBRAND: I am not sure what you mean by "only 10 those criteria." 11 MR. BIRMINGHAM: I've heard your lawyer and I have 12 heard you criticize the San Joaquin River Agreement because 13 it doesn't provide a lot of detail concerning the 14 implementation. Now, you have offered the Comprehensive 15 Plan that is described in South Delta Water Agency Exhibit 16 51, and I want to make sure that we have the kind of detail 17 with respect to the implementation of your plan that the San 18 Joaquin River Agreement lacks. 19 So, are there any other criteria that you would suggest 20 the Board should impose on from whom Interior can buy water 21 to implement your Comprehensive Plan? 22 MR. HILDEBRAND: Very fundamental difference. In the 23 case of buying water from parties on the tributaries who 24 have no commitment and no quantification of any offsetting 25 reductions in the consumptive use or increase in yield, buy CAPITOL REPORTERS (916) 923-5447 8261 1 water which would presumably predominantly be derived either 2 from a reduction -- a transfer of summer water to spring 3 water or water which was needed and would otherwise be used, 4 needed, to meet the Vernalis salinity standard at other 5 times of the year. On the case of what we are proposing, no 6 such things is involved. 7 It is a matter of whether you buy water from somebody 8 who has a contractual right to that water and who agrees, in 9 lieu of taking that water, to have it put down the river for 10 fish purposes. You are not taking water away from anybody 11 other than the seller. You are not affecting adversely any 12 water quality problem. In fact, you actually help the water 13 quality problem. 14 MR. BIRMINGHAM: Those are the only criteria that you 15 would describe to the Board in implementing the 16 Comprehensive Plan described in the water purchase element 17 in the Comprehensive Plan in South Delta Water Agency 18 Exhibit 51? 19 MR. HILDEBRAND: That is the essence of it. I don't 20 know when you got down to the nitty-gritty in either case 21 whether you would have additional provisions that would have 22 to be put into it. 23 C.O. BROWN: Mr. Chairman. 24 C.O. STUBCHAER: Mr. Brown. 25 C.O. BROWN: I think you gave some examples of water CAPITOL REPORTERS (916) 923-5447 8262 1 purchases in your testimony, did you not? 2 MR. HILDEBRAND: Yes. 3 C.O. BROWN: They are not Broadview, but south of 4 Bakersfield? 5 MR. HERRICK: Arvin-Edison. 6 C.O. BROWN: Bravo. Any addition to those? 7 MR. HILDEBRAND: It could be pretty near anybody in the 8 valley on the west side or south of the Merced. And either 9 directly or indirectly it can be exchanged around to where 10 that water goes into the river instead of being -- so there 11 is no -- as I indicated in my testimony, if you do it our 12 way, you are adding water to the available water supply in 13 the San Joaquin River system. If you buy it out of the San 14 Joaquin River system, you let it out one time of the year, 15 you are necessarily having less water at other times of the 16 year. 17 So there is a fundamental difference here. Whether 18 you're acquiring the water outside of the river system or 19 inside the river system. 20 C.O. BROWN: Thank you, Mr. Chairman. 21 MR. BIRMINGHAM: Again, Mr. Hildebrand, I want to make 22 sure we get down to what you've referred to as the 23 "nitty-gritty." Because my understanding of the San Joaquin 24 River Agreement is that it describes the essence of the 25 plan; is that your understanding of it? CAPITOL REPORTERS (916) 923-5447 8263 1 MR. HILDEBRAND: Yes. It doesn't give great detail. 2 MR. BIRMINGHAM: The Comprehensive Plan that you 3 described in South Delta Water Agency Exhibit 51 gives the 4 essence of your proposal? 5 MR. HILDEBRAND: Correct. 6 MR. BIRMINGHAM: It doesn't get down to the 7 nitty-gritty. 8 MR. HILDEBRAND: No, but it has essential differences. 9 MR. BIRMINGHAM: Again, I want to make sure we have it 10 when we leave the room this afternoon or when I am done. 11 Before, when I asked you about the criteria, you said that 12 if Reclamation buys water from water users who are committed 13 to reducing consumptive use, that would be okay. You then 14 shifted from that to buying water from contractors, CVP 15 contractors, on the west side of the San Joaquin Valley, 16 correct? 17 MR. HILDEBRAND: Correct. 18 MR. BIRMINGHAM: Now, we are shifting another step 19 further. We are saying the west side of the San Joaquin 20 Valley or contractors south of the Merced? 21 MR. HILDEBRAND: Yes. You could buy water from 22 somebody in the -- Friant water users, for example. 23 MR. BIRMINGHAM: Arvin-Edison Water Storage District is 24 within the service area of the Friant water users? 25 MR. HILDEBRAND: That water isn't being used to solve CAPITOL REPORTERS (916) 923-5447 8264 1 the problem we are talking about here. 2 MR. BIRMINGHAM: Berrenda Mesa is not a CVP contractor, 3 is it, Mr. Hildebrand? 4 MR. HILDEBRAND: Not to my knowledge. 5 MR. BIRMINGHAM: Berrenda Mesa is a state water 6 contractor? 7 MR. HILDEBRAND: I believe that is right. Although, 8 the further south you get, the less I know about it. 9 MR. BIRMINGHAM: So now we are changing it from CVP 10 contractors on the west side to CVP contractors on the west 11 side or south of the Merced to State contractors, as well? 12 MR. HILDEBRAND: I don't think we said just CVP 13 contractors. We said water project contractors. 14 MR. BIRMINGHAM: Explain to me, Mr. Hildebrand, the 15 difference between the exchange contractors providing water 16 under the San Joaquin River Agreement and the exchange 17 contractors selling water to the Bureau of Reclamation as 18 you have described in the Comprehensive Plan in South Delta 19 Water Agency Exhibit 51. 20 MR. HILDEBRAND: The exchange contractors, according to 21 my understanding, got a little bit of a sweetheart deal when 22 they made their exchange contract. They -- at that time I 23 don't know if it was fully appreciated that the water that 24 was diverted by Miller and Lux was applied water, put it out 25 over the land. A large part of it flowed back into the CAPITOL REPORTERS (916) 923-5447 8265 1 river. So the consumptive use was not very great. 2 Then when the exchange contract was made, I don't think 3 they made much distinction between applied water and 4 consumed water. Consequently, I believe it is correct to 5 say that the exchange contractors have a rather generous 6 supply, and, therefore, they can get by with less water if 7 they use it efficiently. And at the present time, if the 8 water they applied but don't consume ends up back in the 9 river, some of those go underground and is bumped back out 10 again by Patterson District, those people, but it ends up in 11 the watershed of the San Joaquin River system. 12 Now, if, instead of that, they sell water they can get 13 along without to somebody who then further consumes that 14 water and then drains what is left back into the river, 15 they're increasing the salinity in the river. They are 16 decreasing the recharge of groundwater, and they are not -- 17 as they do impact people downstream, as compared to doing 18 what they are doing in the absence of the sale. 19 MR. BIRMINGHAM: I want to make sure I understand your 20 legal theory on this, Mr. Hildebrand. You have described 21 now the criteria that should be used by the Department of 22 Interior to acquire water from water users for your 23 Comprehensive Plan. I want to make sure that I understand 24 the legal theories. 25 I am going to ask you to assume that there is some CAPITOL REPORTERS (916) 923-5447 8266 1 water user in a service area of the San Joaquin River Group 2 Authority agency member who is growing row crops through 3 furrow irrigation, flood irrigation. 4 MR. HILDEBRAND: Is this on the west side or east side? 5 MR. BIRMINGHAM: Within the service area of the San 6 Joaquin River -- 7 MR. O'LAUGHLIN: OID. 8 MR. BIRMINGHAM: Mr. O'Laughlin suggests OID. We have 9 a water user within OID who is growing row crops through 10 flood irrigation. You would agree with me that in those 11 circumstances the production of those crops through flood 12 irrigation would probably result in a significant amount of 13 tailwater returning to the river? 14 MR. HILDEBRAND: Yeah. He is applying more water than 15 he can consume. 16 MR. BIRMINGHAM: He is applying more water than he 17 consumes and that results in significant tailwater going 18 back to the river? 19 MR. HILDEBRAND: Yes. 20 MR. BIRMINGHAM: I am going to ask you to assume that 21 that same grower decides for purposes of water efficiency he 22 is going to switch to a drip sprinkler system. Now, in 23 those circumstances that will reduce the tailwater going 24 back to the river; is that correct? 25 MR. HILDEBRAND: He will apply less water and he will CAPITOL REPORTERS (916) 923-5447 8267 1 consume less water and he will leave more water in the 2 river. So the important thing isn't whether the water 3 downstream in the river came from tailwater, but made a trip 4 out, bypassed over some land and back into the river or 5 whether it was left in the river in the first place. 6 MR. BIRMINGHAM: That is an assumption that I didn't 7 ask you to make, Mr. Hildebrand, that, in fact, it would 8 result in leaving more water in the river. In fact, it 9 could simply leave more water in storage? 10 MR. HILDEBRAND: It could be left in storage, but 11 eventually it is going to come down the river. It can't 12 just go on accumulating in storage unless it has accumulated 13 to the point where it becomes flood spill, which happens 14 rather rarely in New Melones, fortunately. Unless that 15 happens, the water eventually comes down the river. 16 MR. BIRMINGHAM: It could come down the river during a 17 pulse flow period? 18 MR. HILDEBRAND: Yes. 19 MR. BIRMINGHAM: But you think that would be illegal 20 because that would be injuring you as a riparian user of 21 water? 22 MR. HILDEBRAND: That's correct. 23 MR. BIRMINGHAM: Even if the -- I'll withdraw that. 24 MR. HILDEBRAND: Gets back to what we discussed. 25 MR. BIRMINGHAM: I don't believe there is any question CAPITOL REPORTERS (916) 923-5447 8268 1 pending, sir. 2 C.O. STUBCHAER: Please wait for the question. 3 MR. HILDEBRAND: Okay. I was just going to be sure he 4 understood. 5 MR. BIRMINGHAM: I would like to go back to other 6 elements of the Comprehensive Plan. I would like to get 7 back to recirculation. And rather than going to the 8 essence, I want to get to the nitty-gritty, as you 9 described, Mr. Hildebrand, because I don't want this 10 Comprehensive Plan to be subject to the same criticism that 11 the San Joaquin River Group plan has been subject to. 12 On an annual, on average, how much water would have to 13 be recirculated to meet the water quality objectives at 14 Vernalis? 15 MR. HERRICK: I would like to ask for a clarification 16 on that. The water quality objectives include both fish 17 flows and the Vernalis water quality standard for salinity. 18 Those are two different things. They seem to be in the same 19 question. 20 MR. BIRMINGHAM: Mr. Herrick is absolutely right. I 21 will clarify. 22 C.O. STUBCHAER: Didn't you specify year type? 23 MR. BIRMINGHAM: I asked for average, and average I 24 think assumes all year types. 25 But let's talk about the flow objective at Vernalis, CAPITOL REPORTERS (916) 923-5447 8269 1 Mr. Hildebrand. 2 On average, how much water will have to be circulated 3 under your Comprehensive Plan in order to meet the flow 4 objectives at Vernalis during the pulse flow period? 5 MR. HILDEBRAND: The VAMP flow or control plan flow? 6 MR. BIRMINGHAM: Start with control plan flow. 7 MR. HILDEBRAND: I don't know whether I can remember 8 what the average was. But it varied from, I think, 0 to 9 something like 110,000 acre-feet. I think you will find the 10 numbers in this SDWA 12. 11 C.O. BROWN: Mr. Chairman. 12 C.O. STUBCHAER: Mr. Brown. 13 C.O. BROWN: The question was how much water is 14 required to prime the system, essentially? 15 MR. BIRMINGHAM: No. I am asking Mr. Hildebrand, on 16 average how much water will have to be recirculated in order 17 to meet the pulse flow objective. 18 C.O. BROWN: Clarify the question for me. You mean by 19 recirculating that the total quantity of water that is 20 recirculated as opposed to the total quantity of water that 21 would be dedicated to priming the system, two different 22 ones? Which one do you mean? 23 MR. BIRMINGHAM: I should ask Mr. Hildebrand to explain 24 that to me. 25 Did you understand Member Brown's clarification? CAPITOL REPORTERS (916) 923-5447 8270 1 MR. HILDEBRAND: I think so. 2 MR. BIRMINGHAM: Let's start with how much water is 3 required to prime the system? On average under your 4 recirculation plan how much water would be required to prime 5 the system? 6 MR. HILDEBRAND: Let me think a minute. Do a little 7 arithmetic. 8 MR. BIRMINGHAM: Have you calculated that number 9 before, Mr. Hildebrand? 10 MR. HILDEBRAND: I think it is in SDWA 12 someplace, 11 but probably not easy to dig that particular number out. 12 MR. BIRMINGHAM: I have to apologize. I didn't expect 13 you to testify this afternoon or today, so I didn't bring my 14 copy of Exhibit 12. May I borrow yours? 15 I interrupted you, Mr. Hildebrand. You started to 16 calculate the amount of water required under the 17 recirculation proposal to prime the system. 18 MR. HILDEBRAND: Let me put it this way: The amount of 19 water it takes to prime it, will be, roughly, 10 percent of 20 the amount of water you use during the entire pulse. But 21 the amount you use to prime it is not lost, of course. It 22 is put back. In effect, you deprime it at the end of the 23 period. If you needed a total of 80,000 acre-feet in a 24 particular year, I would assume it might take something on 25 the order of 8,000 to prime it. But you would return that CAPITOL REPORTERS (916) 923-5447 8271 1 at the end of the pulse, so there is no net. That is not a 2 net amount of water. 3 MR. BIRMINGHAM: Maybe you can explain to me, Mr. 4 Hildebrand, what you and Board Member Brown mean by "prime 5 the system." 6 MR. HILDEBRAND: When you -- if you start providing 7 Vernalis flow by recirculation from the Delta-Mendota Canal, 8 there is a time lag in the system. So if you wanted to 9 arrive there on the 15th of April at Vernalis, you have to 10 release it from the DMC two, three days before that. And so 11 in order -- but at that point in time you haven't got 12 anything picked up to pump back into the system, so you 13 borrow the water out of the San Luis to provide the flow to 14 fill up the -- start the flow going. 15 And then, conversely, when you get to the last three 16 days of the 31-day pulse, if you want the water at Vernalis 17 -- the increased flow at Vernalis to cease on the 15th of 18 April, let's say, then you stop dropping the water out of 19 Delta-Mendota Canal two or three days before that, instead 20 put that water back in the San Luis. It is just a 21 short-time loan of water. There is no net loss of water. 22 It is just a matter of taking care of the time lag in the 23 system. 24 C.O. BROWN: You estimate that at two or three days if 25 you ran 2,000 cubic feet per second. That is 4,000 CAPITOL REPORTERS (916) 923-5447 8272 1 acre-feet a day. So two days would be 8,000 acre-feet. Is 2 that what you said, three days would be 12,000? 3 MR. HILDEBRAND: Yeah. I don't know if that is a full 4 three days, somewhere between. 5 C.O. BROWN: Eight to 12,000. 6 MR. HILDEBRAND: That would be a maximum. Most years 7 you wouldn't be recirculating that much. The amount you 8 need depends on the year type. 9 MR. BIRMINGHAM: A few minutes ago, I believe, in 10 response to my earlier question you said there would be 11 approximately 80,000 acre-feet in a particular year to prime 12 a system? 13 MR. HILDEBRAND: I just used that as an example. I 14 didn't say 80,000 to prime it. I said if you want 80,000 15 acre-feet total flow augmentation at Vernalis, in order to 16 do that you will have to prime the system with, perhaps, 17 8,000 and return it. 18 MR. BIRMINGHAM: We have heard testimony before, Mr. 19 Hildebrand, that between Mendota and a particular point 20 downstream, the San Joaquin River is a losing stream. What 21 is meant by the term "losing stream"? 22 MR. HILDEBRAND: Well, there is -- you take from the 23 mouth of the Merced to the mouth of the Tuolumme, you've got 24 districts that are diverting out of there and riparian users 25 diverting out of there, and you have hardly any coming in, CAPITOL REPORTERS (916) 923-5447 8273 1 except subsurface accretion. So, you will be, by the time 2 you get down to just above Tuolumne, you will have less 3 water than you had when you were just below the Merced. 4 MR. BIRMINGHAM: Well, in fact, there has been 5 testimony from soil scientists and hydrologists who worked 6 for USGS that downstream of the Mendota Pool there is no 7 subsurface accretion into the San Joaquin River. 8 Are you familiar with the data that showed there is no 9 subsurface accretion below the Mendota Pool? 10 MR. HERRICK: I would just ask, would you clarify below 11 the Mendota Pool to what point? My recollection of that 12 testimony was that they gave an area as they labeled as a 13 losing stream, but not all the way south of Mendota Pool, 14 but all of the streams south of Mendota Pool. 15 MR. BIRMINGHAM: Do you recall that, Mr. Hildebrand? 16 MR. HILDEBRAND: In general terms I do. But I have 17 discussed this question of accretions in the San Joaquin 18 River at some length with the members of the Geologic 19 Survey, for example, Charlie Kraser, and it is not a static 20 thing. Sometimes it goes one way and sometimes the other. 21 So, it is hard to generalize on it. It is not a static 22 thing. 23 I think most of the time my recollection is that it's a 24 net accretion, subsurface accretion, but as a net depletion 25 because of the diversions. CAPITOL REPORTERS (916) 923-5447 8274 1 MR. BIRMINGHAM: I am going to ask you to assume 2 between the Sac Dam and Merced River, the San Joaquin River 3 is a confluence of the Merced with the San Joaquin, that the 4 San Joaquin River is a losing stream. 5 What does that term "losing stream" mean to you? 6 MR. HILDEBRAND: I can't accept that assumption because 7 what happens is you have a substantial accretion in that 8 reach to leakage back out of the canals. 9 MR. BIRMINGHAM: On what do you base your statement 10 that there is substantial accretion in that reach? 11 MR. HILDEBRAND: I have been there and seen it. 12 MR. BIRMINGHAM: I am going to ask you to assume -- 13 MR. HILDEBRAND: The diversions may exceed the 14 accretions, but there is a substantial accretion. Let's not 15 confuse the two. 16 C.O. STUBCHAER: Mr. Birmingham, how much more time 17 will you need, really need it? 18 MR. O'LAUGHLIN: Keep going. 19 MR. BIRMINGHAM: I probably will need another hour, and 20 I do need it, yes. 21 C.O. STUBCHAER: Granted. 22 MR. BIRMINGHAM: Thank you. 23 Mr. Hildebrand, so in the analysis that you have 24 conducted with respect to the recirculation plan, you 25 haven't considered whether or not the San Joaquin River is a CAPITOL REPORTERS (916) 923-5447 8275 1 losing or a gaining stream? 2 MR. HILDEBRAND: You are speaking of the reach between 3 the pool and Merced? 4 MR. BIRMINGHAM: Yes. 5 MR. HILDEBRAND: I haven't worried about that because 6 the concern has to do with the water quality and the fish 7 flows and the selenium concentrations in the reach from the 8 Merced on downstream. And we do have a rather serious 9 situation there. We have some pretty good spawning beds in 10 the Merced and those fry and smolts come out into the San 11 Joaquin and immediately are subjected to a very abrupt rise 12 in salinity and to a significant selenium concentration. 13 And if you recirculate, as we propose, you very much 14 relieved that problem. 15 MR. BIRMINGHAM: So that would be another benefit of 16 recirculation? 17 MR. HILDEBRAND: That's correct, as I mentioned in my 18 testimony. 19 MR. BIRMINGHAM: You heard Mr. Van Camp testify today 20 that the members of the San Joaquin River Group Authority 21 hold water rights on the Tuolumne, Merced and Stanislaus 22 Rivers; is that correct? 23 MR. HILDEBRAND: That's right. 24 MR. BIRMINGHAM: Is that your understanding, Mr. 25 Hildebrand, that the members of the Stanislaus [verbatim] CAPITOL REPORTERS (916) 923-5447 8276 1 River Group Authority hold water rights on the Tuolumne, 2 Merced and Stanislaus Rivers? 3 MR. HILDEBRAND: They do, indeed. 4 MR. BIRMINGHAM: I would like to go back to the concern 5 you have with respect to the San Joaquin River Agreement and 6 how implementation of the agreement would reduce flows 7 during the periods in which the South Delta Water Agency is 8 irrigating. 9 That is one of your concerns, isn't it, Mr. Hildebrand? 10 MR. HILDEBRAND: Yes. 11 MR. BIRMINGHAM: Isn't it correct that the permits to 12 appropriate water on the Tuolumne, Merced and Stanislaus 13 Rivers have minimum flow requirements in those permits? 14 MR. HILDEBRAND: They have a FERC requirement on the 15 Tuolumne and David Grunsky requirement on the Merced. I am 16 not sure there are any requirements on the Stanislaus, 17 except in terms of a minimum total release for the year, 18 which originally was to be 65,000 in drought, or dry and 19 critical years, and 98,000 in other years. And then the 20 Bureau made a commitment to the Fish and Game Department and 21 in '87 they increased that to a minimum of 97 and on up to 22 something like 300,000 in wet years. And they never said 23 where that water could come from. 24 MR. BIRMINGHAM: Those minimum flows are not adequate 25 to provide water required by South Delta Water Agency water CAPITOL REPORTERS (916) 923-5447 8277 1 users? 2 MR. HILDEBRAND: The extent that the flows are for 3 fishery, the times it comes down is dependent on decisions 4 by the Department of Fish and Game and they don't want the 5 water at the time we need it or at the time that it is 6 needed for salinity control. There is some overlap, 7 admittedly, but, basically, it is a different objective with 8 a different time. 9 MR. BIRMINGHAM: With respect to South Delta Water 10 Agency Exhibit 12, what are the assumptions that are made in 11 that analysis concerning restrictions imposed on the 12 operation of the Delta export facilities? 13 MR. HILDEBRAND: I don't remember whether those 14 restrictions are actually in this analysis. But the 15 analysis has to do with how much water you need to meet 16 either the VAMP or the control plan flows at Vernalis. I 17 don't recall that we -- and we just said we'd superimpose 18 the circulation to whatever was needed to meet those 19 flows. I don't think we addressed in this report what they 20 need to address what the restrictions were on the exports. 21 MR. BIRMINGHAM: I want to make sure we understand 22 this, Mr. Hildebrand. A few moments ago I asked you how 23 much water would have to be recirculated under our 24 Comprehensive Plan, a plan described in South Delta Water 25 Agency Exhibit 51, and you said the analysis was contained CAPITOL REPORTERS (916) 923-5447 8278 1 in South Delta Water Agency Exhibit 12? 2 MR. HILDEBRAND: That's right. 3 MR. BIRMINGHAM: Now you are telling me that South 4 Delta Water Agency 12 does not conduct an analysis that 5 considers the restrictions imposed by the biological 6 opinion? 7 MR. HILDEBRAND: Wait a minute. That is not what you 8 asked me. You never said that about the biological 9 opinion. You said about the restrictions on flow. Now the 10 amount you have to recirculate to achieve a given flow at 11 Vernalis has little to do with how much you're exporting. 12 When you talk whether the biological opinion would permit 13 that recirculation, that is a separate question. 14 And in the analysis in SDWA 12, we just postulated that 15 in the recirculation the amount of water required to meet 16 those flows would be permitted. If it isn't permitted, then 17 we say we have to go to a different source of water. 18 MR. BIRMINGHAM: I am not asking about what is in South 19 Delta Water Agency's 12, Mr. Hildebrand. Apparently you and 20 I confused one another. I am asking about the Comprehensive 21 Plan described in South Delta Water Agency Exhibit 51. 22 Now, the Comprehensive Plan, as described in South 23 Delta Water Agency's 51, considers the fact that there are 24 pumping restrictions that are imposed by the biological 25 opinion for Delta smelt? CAPITOL REPORTERS (916) 923-5447 8279 1 MR. HILDEBRAND: Yes. 2 MR. BIRMINGHAM: How much water, under the 3 Comprehensive Plan, would have to be recirculated for both 4 the priming purposes and the Vernalis 1995 Water Quality 5 Control Plan flow objectives during the pulse flow period, 6 under the Comprehensive Plan that assumes restrictions 7 imposed by a biological opinion? 8 MR. HILDEBRAND: The Comprehensive Plan doesn't assume 9 any particular restriction. It assumes how much water it 10 would take in absence of a restriction to circulate water. 11 We point out that much of that recirculation could be 12 accomplished even within the biological opinion. But we 13 don't assume that that biological opinion would not be 14 modified because we are talking about a different kind of 15 operation than the one for which the biological opinion was 16 developed. 17 MR. BIRMINGHAM: A few moments ago, Mr. Hildebrand, I 18 asked you the question about the Comprehensive Plan, 19 described in South Delta Water Agency Exhibit 51, assumes 20 restrictions imposed by the Delta Smelt Biological Opinion, 21 and I thought you answered that question by saying "yes." 22 Am I mistaken? 23 MR. HILDEBRAND: I think you are mistaken. 24 MR. BIRMINGHAM: So, if I asked you that question a few 25 minutes ago and you said yes, you misspoke? CAPITOL REPORTERS (916) 923-5447 8280 1 MR. HILDEBRAND: I apparently misunderstood your 2 question. 3 MR. BIRMINGHAM: Again, so, sitting here today, you 4 cannot quantify the amount of water that would have to be 5 recirculated in order to implement your Comprehensive Plan? 6 MR. HILDEBRAND: Nobody knows what the new biological 7 opinion might be, so, no. To the extent that it might or 8 might not be restricted by the biological opinion, I can't 9 tell. I can tell you it would be in the event that the 10 biological opinion does not govern. 11 MR. BIRMINGHAM: If we take all of the restrictions 12 imposed by the biological opinion off, then we can implement 13 the recirculation plan without taking water away from 14 contractors? 15 MR. HILDEBRAND: That is correct. 16 MR. BIRMINGHAM: But without the biological opinion in 17 place, you don't know whether the recirculation plan can be 18 implemented without taking water away from contractors? 19 MR. HILDEBRAND: Without knowing what the biological 20 opinion may be, we can't answer that. The biological 21 opinion may say that the pumps have to shut down 22 altogether. So we don't know. Nobody knows. This fish 23 business is a wild card. 24 MR. BIRMINGHAM: Going back to Page 5, when you say any 25 amount of flow contributed toward the pulse flow period up CAPITOL REPORTERS (916) 923-5447 8281 1 to the full 1995 Water Quality Control Plan amounts can be 2 provided without loss to any contractor, you don't know that 3 to be true, do you, Mr. Hildebrand? 4 MR. HILDEBRAND: I am referring here to the presumption 5 that the recirculation will be permitted as a pumping that 6 is superimposed on what you would otherwise do. If that is 7 not permitted, then you have to go to purchasing water. But 8 you can still purchase the water and provide the flow. So 9 you wouldn't -- we qualify that maybe you can't do it all by 10 recirculation, depending on what the biological opinion 11 says. But if the biological opinion says you can't 12 recirculate, we can still do it with purchases from 13 contractors instead of from the tributaries. 14 MR. BIRMINGHAM: Is your assumption about purchases 15 from contractors, that they will be voluntary purchases? 16 MR. HILDEBRAND: Oh, yes. It is a question of price. 17 MR. BIRMINGHAM: Have you given any -- have you 18 consulted with the, not in formal legal sense, but have you 19 had any discussion with the Fish and Wildlife Service 20 concerning the chance that they will revise the biological 21 opinion for Delta smelt to eliminate all restrictions on 22 Delta exports? 23 MR. HILDEBRAND: I think that biological opinion is 24 Fish and Wildlife. Did you say Fish and Game? 25 MR. BIRMINGHAM: If I said Fish and Game, I misspoke. CAPITOL REPORTERS (916) 923-5447 8282 1 I meant Fish and Wildlife. 2 MR. HILDEBRAND: I don't know whether you could say I 3 had direct conservation with them on the subject, but I have 4 discussed a long time ago with Thabault the general concept 5 of this recirculation. It was my understanding at the time 6 that he neither agreed to it or neither excluded it. 7 C.O. STUBCHAER: Mr. Campbell. 8 MR. CAMPBELL: I would like to object to a portion of 9 Mr. Hildebrand's response in that it contained hearsay. I 10 just need to note that objection for the record so that it 11 prevents the Board from utilizing Mr. Thabault's statement 12 for any finding that it would make in this proceeding. 13 C.O. STUBCHAER: Which portion? 14 MR. CAMPBELL: Mr. Hildebrand just stated -- just 15 relayed a conversation, as he recalls it, with a Mr. 16 Thabault who is not a witness before this proceeding right 17 now. That fits within the definition of hearsay. 18 I would like to object to the introduction of that 19 hearsay. I understand from the Board's rules that, unlike a 20 judicial proceeding, this can come in for background 21 purposes, but it cannot form the basis of any finding that 22 the Board may make. 23 MR. HILDEBRAND: I understand the objection. I only 24 made the point because it was necessary in order to answer 25 Tom's question. CAPITOL REPORTERS (916) 923-5447 8283 1 C.O. STUBCHAER: Mr. Herrick. 2 MR. HERRICK: I would say I don't think it is 3 appropriate for the Board not to take that statement as part 4 of the overall evidence. You give it the appropriate 5 weight. 6 If Fish and Game believes that it was a misquote, they 7 can certainly call Mr. Thabault and clear it up. 8 C.O. STUBCHAER: We will get back. 9 Are you standing to be recognized, Mr. Jackson? 10 MR. JACKSON: I was going to make the same point. Fish 11 and Game can't have it both ways. They can't refuse to call 12 witnesses in regard to the biological opinion in concert 13 with U.S. Fish and Wildlife Service who refuses to call 14 witnesses and then object to what people were recounting 15 what they were told. 16 C.O. STUBCHAER: Mr. Nomellini. 17 MR. NOMELLINI: I think it could be an admission 18 against interest by an adverse party and, therefore, could 19 serve as a basis for a finding. So, I take issue with 20 Campbell's position that it automatically does not 21 constitute a basis for a finding. But I don't know that we 22 need to go through all that. 23 C.O. STUBCHAER: Mr. O'Laughlin. 24 MR. O'LAUGHLIN: This is an important point, whether it 25 is Mr. Hildebrand or other witnesses later on. The CAPITOL REPORTERS (916) 923-5447 8284 1 objection is purely based on hearsay and whether the Board 2 can consider it as evidence. And the question you can't, 3 because he is making a statement about what somebody else 4 said and relayed to him, if they, South Delta Water Agency, 5 wants to call Mr. Thabault, then they can call him. The 6 United States Bureau, the United States Department of the 7 Interior has graciously granted us free access to all the 8 witnesses. 9 So if they want to make that statement and support it 10 on the record with evidence, they can call Mr. Thabault and 11 ask him, "Did you tell Mr. Hildebrand X?" And if he says 12 yes, that is fine. We can't rely, and that is why we have 13 the hearsay exception, we can't rely on a party that is 14 interested to make a statement about what some other party 15 said to him. And it doesn't fall in the hearsay exception 16 because it is not a declaration against interest because Mr. 17 Nomellini has not defined what interest the Department of 18 the Interior would have in Mr. Thabault making that 19 statement. So, they are wrong on both counts, and the 20 objection should be sustained. 21 C.O. STUBCHAER: You want to hear my proposed ruling 22 before we hear further debate? The objection, Mr. Campbell, 23 is noted. It is part of the record, and the Board will 24 consider that in giving weight to the evidence. 25 MR. HILDEBRAND: Refrain from asking me for hearsay, CAPITOL REPORTERS (916) 923-5447 8285 1 Tom. 2 C.O. STUBCHAER: All right. That is the ruling. Ms. 3 Forster wants to make a comment. 4 MEMBER FORSTER: Nothing to do with this. I am going 5 back to the extension of time. One of the reasons that I 6 liked the tightening in this part of the process was after 7 an hour you want to know where people are going with this. 8 It helps the Board Members know what point you are trying to 9 make and so, you know -- I said to Mr. Stubchaer, "If you 10 don't make Mr. Birmingham do that, we are going to have a 11 hard time making other lawyers do it." It is not for 12 penalty; it is for, like, a little reality check. 13 What is it you want the Board to learn from this? Kind 14 of know what you want on the record, but sometimes I think 15 you all are just thinking of your interest in your lawsuits 16 and you forget how we have to listen. So it would help if 17 you could take a few minutes to say, "I've asked for the 18 rest of this time because this is what I am trying to get 19 out of this." It is just a little relief to the Hearing 20 Officer. Do you know what I am saying? To one of the 21 Hearing Officers. 22 C.O. STUBCHAER: To the Board Members. 23 MEMBER FORSTER: To one Board Member. Let's see where 24 you are going with this. 25 MR. BIRMINGHAM: I do understand that, Ms. Forster. I CAPITOL REPORTERS (916) 923-5447 8286 1 personally refrain from doing that because, from my 2 perspective, in an adjudicative proceeding it is 3 inappropriate for a lawyer to offer testimony. And if I 4 preface by question by saying, "This is where I am going 5 with this question," and then ask the question, from my 6 individual perspective, that is an argumentative question. 7 Although it may not be intended as argument. 8 For instance, I can tell Mr. Hildebrand, "Mr. 9 Hildebrand, Westlands Water District gets nailed by that 10 biological opinion all the time and, therefore, if you can 11 convince Fish and Wildlife Service to revise it, to 12 eliminate the restrictions on exports, we would certainly 13 appreciate that. Have you had any discussion with Fish and 14 Wildlife Service?" That would be, technically, an 15 argumentative question. 16 I think what I can do is I can make an offer of proof 17 as to why I need to go the additional time with Mr. 18 Hildebrand. 19 Mr. Hildebrand has proposed a very comprehensive scheme 20 or has provided the essence of what he has termed a very 21 comprehensive scheme, and I want to inquire into the details 22 of it so we can make sure that there is a fair comparison 23 between the alternative that he has proposed and the 24 alternatives that are described in the Environmental Impact 25 Record and the alternative proposed by San Joaquin River CAPITOL REPORTERS (916) 923-5447 8287 1 Group Authority, which is also analyzed by the Draft 2 Environmental Impact Report. 3 MEMBER FORSTER: That is helpful. Thank you. 4 I just wanted to see what was possible. 5 C.O. STUBCHAER: We will see. We will reconsider that 6 part of the hearing procedure later. I violated my own rule 7 in not asking you for an offer of proof because I think I 8 saw -- we were right in the middle of examining this 9 recirculation alternative, and I thought it was necessary to 10 continue. 11 MR. BIRMINGHAM: And, Mr. Hildebrand, Westlands does 12 get hammered by the biological opinion. If you can -- 13 C.O. STUBCHAER: Stop. You are testifying. 14 MR. BRANDT: Argumentative. 15 MR. BIRMINGHAM: In your testimony on Page 5, Mr. 16 Hildebrand, it states that: 17 Export pumping cannot and does not take 18 priority over endangered or threatened 19 species or over superior water rights. 20 (Reading.) 21 Is that correct? 22 MR. HILDEBRAND: That's right. 23 MR. BIRMINGHAM: By that you mean export pumping 24 cannot be conducted in a way which will result in jeopardy 25 to a listed species? CAPITOL REPORTERS (916) 923-5447 8288 1 MR. HILDEBRAND: To the extent that the biological 2 opinions are enforced, yes. 3 MR. BIRMINGHAM: So, let me ask the question this way: 4 How would you rate the probability that the Fish and 5 Wildlife Service is going to amend the biological opinion in 6 a way that would allow unlimited exports during the pulse 7 flow period? 8 MR. HILDEBRAND: We are not talking about unlimited 9 exports. We are talking about exports rather limited in 10 magnitude. I think the probability of their doing that is 11 not hopeless. There is some substantial benefits to the 12 fishery from our Comprehensive Plan. And, furthermore, in 13 the case of the CalFed operation, they include a proposal 14 that state pumps would be operated to take water into 15 Clifton Court on a rather steady basis through some new 16 screens. If that happened, we would absolutely have to have 17 the three tidal barriers all the time that was going on. 18 So, I think that as the fishery interests look at the 19 overall picture, rather than just the limited question of 20 whether they like or dislike an increased rate of pumping 21 caused by recirculation, that they may well find that it is 22 in the overall interest of the fishery to permit that 23 recycling. 24 I emphasize, again, it is not the same if you pump that 25 additional water from across the Delta. CAPITOL REPORTERS (916) 923-5447 8289 1 MR. BIRMINGHAM: A few moments ago we started talking 2 about the purchases of water from contractors to implement 3 your Comprehensive Plan. You indicated that the plans is 4 based on an assumption that there would be voluntary 5 purchases? 6 MR. HILDEBRAND: Yes. 7 MR. BIRMINGHAM: Is it conceivable, Mr. Hildebrand, 8 that in some circumstances there may not be water available 9 for purchase in order to implement your Comprehensive Plan? 10 MR. HILDEBRAND: I suppose that is conceivable, just as 11 it is conceivable that the purchases from the tributary 12 people may not be available. But I think it is pretty much 13 a matter of price. You don't have to do it on an annual 14 basis. You can make longer-term agreements, that under 15 certain circumstances we will sell our water. 16 MR. BIRMINGHAM: But if purchases are not available and 17 the biological opinions can't be modified to allow increased 18 exports to permit recirculation, then it would be necessary 19 to make releases from San Luis Reservoir? 20 MR. HILDEBRAND: We offer a third alternative, resource 21 of water in that case, to use water that is not being 22 delivered outside of the permitted area. 23 MR. BIRMINGHAM: You testified that you don't know how 24 much water that is; isn't that correct? 25 MR. HILDEBRAND: I don't know how much, but it is a CAPITOL REPORTERS (916) 923-5447 8290 1 significant amount and could contribute. I don't think 2 there is any situation where the whole amount has to be 3 derived by something other than recirculation. 4 MR. BIRMINGHAM: You don't know if there is an existing 5 demand within the existing permitted place of use for that 6 water? 7 MR. HILDEBRAND: There is an existing demand, no 8 question about it. It is a question of whether they are 9 entitled to that water. 10 MR. BIRMINGHAM: You are not proposing that the Board 11 take the water away from the Bureau of Reclamation? 12 MR. HILDEBRAND: No. 13 MR. BIRMINGHAM: I would like to turn to a different 14 subject, Mr. Hildebrand. Is there a direct relationship 15 between export -- levels of export pumping and water quality 16 at Vernalis? By direct relationship I mean is there an 17 instantaneous relationship between pumping levels and water 18 quality at Vernalis? 19 MR. HILDEBRAND: No. 20 MR. BIRMINGHAM: On Page 9 you state: 21 If the Bureau cannot budget sufficient 22 amounts for water quality, then the Board 23 should require automatic decreases in 24 exports. It is patently unfair to allow the 25 Bureau to continue exports the benefits of CAPITOL REPORTERS (916) 923-5447 8291 1 the system when it chooses or fails to meet 2 the permit obligations, the responsibilities 3 of the system. (Reading.) 4 Now, we have established that there is not an 5 instantaneous relationship between -- direct relationship 6 between export levels and water quality at Vernalis. But 7 you're proposing that if the Bureau cannot meet water 8 quality at Vernalis, that exports be reduced? 9 MR. HILDEBRAND: You changed the terms. You first said 10 "instantaneous." Now you say "direct." That is not the 11 same thing. 12 MR. BIRMINGHAM: I defined "direct," Mr. Hildebrand. 13 By direct relationship I said by that I mean instantaneous. 14 You said you understood that. Now does that mean you want 15 to change your answer; there is a direct relationship? 16 MR. HILDEBRAND: No. I said it wasn't instantaneous. 17 I didn't say it wasn't direct. 18 MR. BIRMINGHAM: Explain to me, Mr. Hildebrand, what is 19 the relationship between levels of export pumping and water 20 quality at Vernalis? 21 MR. HILDEBRAND: You go back to our earlier testimony. 22 I remind you that prior to the delivery of CVP water to the 23 west side of the valley, we had no salinity problem. We 24 would not have any salinity problem today were it not for 25 the fact that the DMC is importing enormous quantities of CAPITOL REPORTERS (916) 923-5447 8292 1 salt from the west side of the valley, which is then 2 delivered to people who concentrate it by consumptive use of 3 crops. And then we have several hundred thousand tons of 4 that salt per year coming back into the San Joaquin River, 5 which otherwise would not be there in the absence of CVP. 6 So, the CVP has created the problem and will create it 7 as long as they continue to deliver water, DMC water, to 8 those areas that drain into the river. 9 Therefore, if the Bureau doesn't choose to correct the 10 salinity problem by other means, the problem which they 11 caused, then they better cease and desist the operations 12 which is creating that problem. 13 MR. BIRMINGHAM: We have talked about this before, Mr. 14 Hildebrand, in other phases. New Melones Reservoir was 15 constructed for the purpose of mitigating water quality 16 impacts in the Lower San Joaquin River; isn't that correct? 17 MR. HILDEBRAND: It wasn't constructed solely for that 18 purpose, no. It was constructed when they recognized that 19 the CVP has caused this problem and that they could 20 alleviate the problem for those of us downstream of Vernalis 21 by releasing high quality water to dilute that drainage. 22 Now they overlooked the fact that this doesn't do 23 anything for the people upstream of Vernalis. They are 24 being seriously hurt, both fishery and agricultural 25 diverters. So, it was a rather poor solution. They CAPITOL REPORTERS (916) 923-5447 8293 1 estimate an enormous underestimate of the amount of water it 2 would take to accomplish that purpose. 3 But the purpose of having that Vernalis -- that water 4 quality release requirement from New Melones was the 5 expectation that it could, so far as people downstream of 6 Vernalis were concerned, alleviate the impact that was 7 imposed on us by the operation of the Bureau. 8 MR. BIRMINGHAM: You are familiar with the parties to 9 this proceeding, Mr. Hildebrand? 10 MR. HILDEBRAND: Yes. If you want to list them, I can 11 go down the list, I guess, but there are a lot of them. 12 MR. BIRMINGHAM: Can you identify for me the parties to 13 this proceeding who have complained about water quality 14 standards above Vernalis who divert water out of the San 15 Joaquin River above Vernalis? 16 MR. HILDEBRAND: The Patterson Water District at the 17 time the exchange contract was instituted or sometime 18 thereafter, sued the Bureau for damaging -- 19 MR. BIRMINGHAM: Excuse me. I don't mean to interrupt, 20 but I want to move us along. I am not talking about prior 21 proceedings. I am talking about the water rights hearing 22 which we are involved right now. I am asking for you to 23 identify for me any party that diverts water out of the San 24 Joaquin River above Vernalis who has complained about the 25 impacts of water quality on their beneficial use of water. CAPITOL REPORTERS (916) 923-5447 8294 1 MR. HILDEBRAND. In this proceeding? 2 MR. BIRMINGHAM: In this proceeding. 3 MR. HILDEBRAND: I don't know that they have. These 4 poor people are not organized. They don't have the lawyers 5 like you to come represent them, and consequently -- 6 MR. BIRMINGHAM: That is an advantage, Mr. Hildebrand. 7 MR. HILDEBRAND: So they have not been recognized, and 8 I think this is a rather sad reflection on the process. 9 People who don't -- aren't aware of what is happening or 10 can't afford to do something, are being overlooked. They 11 have -- the water rights of all these upstream people 12 explicitly say that those water rights are subject to water 13 rights of downstream parties. That has not been enforced, 14 recognized. 15 There is also the San Joaquin River in their water 16 codes, San Joaquin River protection division -- I don't know 17 whether I have quite the right term for it -- which states 18 explicitly that neither the state or federal government can 19 do anything to degrade the quality of water from Merced 20 River down to Middle River. That has not been observed. 21 They have been terribly impacted. I don't think they ought 22 to have to come in here with half a dozen lawyers to get 23 some recognition of their problem. 24 MR. BIRMINGHAM: Mr. Hildebrand, I would like to go 25 back to the question that started this this morning. It is CAPITOL REPORTERS (916) 923-5447 8295 1 your contention that its the Bureau of Reclamation's 2 responsibility to meet the water quality standard at 3 Vernalis? 4 MR. HILDEBRAND: Definitely. 5 MR. BIRMINGHAM: It is your view that the Bureau of 6 Reclamation should operate New Melones Reservoir to meet the 7 water quality standard at Vernalis? 8 MR. HILDEBRAND: Only to the extent they don't meet it 9 some other way. There are better ways to meet it. 10 MR. BIRMINGHAM: So, you're suggesting that the Bureau 11 -- the discretion of how the Bureau is going to meet it 12 should be taken away, and if the Bureau decides to meet it 13 through operation of New Melones Reservoir, you have a 14 better suggestion? 15 MR. HILDEBRAND: No. As long as the Bureau does it, 16 that is their responsibility, so far as we downstream of 17 Vernalis are concerned. As far as people upstream of 18 Vernalis is concerned, they have a real complaint. Because 19 correcting it by releasing water out of New Melones doesn't 20 do the job, and the Bureau is not committed to maintaining 21 the Vernalis standard with New Melones water. 22 MR. BIRMINGHAM: Going back to your testimony, you are 23 proposing if the Bureau doesn't meet the standard at 24 Vernalis, that the Board should order that the Bureau reduce 25 its exports. Can you describe in greater detail for me what CAPITOL REPORTERS (916) 923-5447 8296 1 you are talking about? For how long a period should the 2 Board order reduction in exports? 3 MR. HILDEBRAND: Until such time as the problem is 4 corrected. 5 MR. BIRMINGHAM: So, in other words, if the Bureau is 6 meeting water quality standard at Vernalis -- 7 MR. HILDEBRAND: It is not. 8 C.O. STUBCHAER: Please, Mr. Hildebrand, don't 9 interrupt. Allow him to finish the question. 10 MR. BIRMINGHAM: If the Bureau is meeting the water 11 quality standard at Vernalis, then its export levels should 12 not be reduced? 13 MR. HILDEBRAND: We have not proposed that they be 14 reduced as long as they do meet the standard and so long as 15 our riparian rights are covered, which is only a partial 16 obligation. 17 MR. BIRMINGHAM: If the Bureau is unable to meet the 18 water quality standard at Vernalis, then its export levels 19 would be reduced? 20 MR. HILDEBRAND: If it fails to meet it. It is not a 21 question of whether they are able to. It is a question of 22 whether they do it. 23 MR. BIRMINGHAM: Thank you for the clarification. 24 If the Bureau is failing to meet water quality 25 standards at Vernalis, then its export levels would be CAPITOL REPORTERS (916) 923-5447 8297 1 reduced? 2 MR. HILDEBRAND: That is what we produced. 3 MR. BIRMINGHAM: When the Bureau is then again meeting 4 the water quality standards at Vernalis, the export levels 5 would be increased to the otherwise permitted levels? 6 MR. HILDEBRAND: That's right. We would hope that 7 forseeing that consequence they would get busy and meet 8 them, the requirement at Vernalis. 9 MR. BIRMINGHAM: You're suggesting a realtime reduction 10 in exports based on whether the Bureau is meeting the water 11 quality standard at Vernalis? 12 MR. HILDEBRAND: Yes. 13 MR. BIRMINGHAM: You have testified that there is no 14 instantaneous relationship between export at the export 15 pumps and water quality at Vernalis? 16 MR. HILDEBRAND: It took quite a period of time for the 17 problem to develop. It would take a period for it to go 18 away if you do nothing else about it. 19 MR. BIRMINGHAM: Mr. Hildebrand, if you can answer my 20 question, I would appreciate it very much. 21 Although there is no instantaneous relationship, a 22 realtime relationship between water quality at Vernalis and 23 export levels, you are proposing that the Board order the 24 Bureau on a realtime basis to reduce exports if it is not 25 meeting water quality at Vernalis? CAPITOL REPORTERS (916) 923-5447 8298 1 MR. HILDEBRAND: That's right. It is not 2 instantaneous, but it is direct. 3 MR. BIRMINGHAM: Let me ask a question. You have 4 talked in your testimony about your view of Article X, 5 Section 2; is that correct? 6 MR. HERRICK: Of what? 7 C.O. STUBCHAER: Mr. Birmingham, let's stop a minute 8 here. You have half an hour plus more. Are you going to 9 continue the cross-examination? 10 Would this be a good place to stop? 11 MR. BIRMINGHAM: Yes, it would. 12 C.O. STUBCHAER: I would like to ask one question of 13 Mr. Hildebrand while it is fresh. In the sentence we have 14 been discussing for some time about easing the exports, it 15 says: 16 Then the Board should require automatic 17 decreases in exports. (Reading.) 18 It doesn't says whose exports. There is implied in 19 context what goes before and after. That is the Bureau's 20 exports? 21 MR. HILDEBRAND: That is an omission on our part. We 22 meant the Bureau. 23 C.O. STUBCHAER: Thank you. 24 MR. HILDEBRAND: The state is not responsible for the 25 selenium. CAPITOL REPORTERS (916) 923-5447 8299 1 C.O. STUBCHAER: We will be adjourned until 9:00 2 tomorrow morning. 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 8300 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 8092 through 14 8300 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 23rd day of January 19 1999. 20 21 22 23 ______________________________ ESTHER F. WIATRE 24 CSR NO. 1564 25