0001
01
02 STATE WATER RESOURCES CONTROL BOARD
03
04 PUBLIC HEARING
05
06
07 REGARDING STREAM AND WATERFOWL HABITAT RESTORATION PLANS
07 AND GRANT LAKE OPERATIONS AND MANAGEMENT PLAN SUBMITTED BY
08 THE LOS ANGELES DEPARTMENT OF WATER AND POWER PURSUANT TO
08 THE REQUIREMENTS OF WATER RIGHT DECISION 1631
09
10
11
12
13
14   HELD AT:
15 STATE WATER RESOURCES CONTROL BOARD
15 PAUL BONDERSON BUILDING
16 901 P STREET, FIRST FLOOR HEARING ROOM
16 SACRAMENTO, CALIFORNIA
17
17
18
18
19 TUESDAY, JANUARY 28, 1997
19 9:00 A.M.
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23
24
24 Reported by: ESTHER F. WIATRE
25 CSR NO. 1564
25
0002
01 APPEARANCES
01 BOARD MEMBERS:
02
02 JOHN CAFFREY, CHAIRMAN
03 JOHN W. BROWN, VICE CHAIR
03 JAMES STUBCHAER
04 MARY JANE FORSTER
04 MARC DEL PIERO
05
05 STAFF MEMBERS:
06
06       JAMES CANADAY, ENVIRONMENTAL SPECIALIST
07       GERALD E. JOHNS, ASSISTANT DIVISION CHIEF
07       MELANIE COLLINS, STAFF ENGINEER
08
08     COUNSEL:
09
09       DAN FRINK, ESQ.
10
10  LOS ANGELES DEPARTMENT OF WATER AND POWER:
11
11     PANEL MEMBERS:
12
12       PETER KAVOUNAS
13       BRIAN TILLEMANS
13       DAVID F. ALLEN
14       CHRISTOPHER J. HUNTER
14       WILLIAM S. PLATTS
15       ROBERT BESCHTA
15       J. BOONE KAUFFMAN
16       WILLIAM J. TRUSH
16
17       KRONICK MOSKOVITZ TIEDEMANN & GIRARD    
17       400 Capitol Mall, 27th Floor
18       Sacramento, California 95814
18       BY:  THOMAS W. BIRMINGHAM, ESQ.
19                      and  
19            JANET GOLDSMITH, ESQ.
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0003
01                           APPEARANCES
01
02  UNITED STATES FOREST SERVICE:
02
03       UNITED STATES DEPARTMENT OF AGRICULTURE
03       OFFICE OF GENERAL COUNSEL
04       33 New Montgomery, 17th Floor
04       San Francisco, California 94105
05       BY:  JACK GIPSMAN, ESQ.
05
06  BUREAU OF LAND MANAGEMENT:
06
07       UNITED STATES DEPARTMENT OF THE INTERIOR
07       BUREAU OF LAND MANAGEMENT
08       BISHOP RESOURCE AREA
08       785 North Main Street, Suite E
09       Bishop, California 93514
09       BY:  TERRY L. RUSSI
10
10  PEOPLE FOR MONO BASIN PRESERVATION:
11
11       KATHLEEN MALONEY BELLOMO
12       JOSEPH BELLOMO
12       P.O. Box 217
13       Lee Vining, California 93541
13
14  ARNOLD BECKMAN:
14
15       DeCUIR & SOMACH
15       400 Capitol Mall, Suite 1900
16       Sacramento, California 95814
16       BY:  DONALD MOONEY, ESQ.
17
17  ARCULARIUS RANCH:
18
18       FRANK HASELTON, LSA
19       1 Park Plaza, Suite 500
19       Irvine, California 92610
20
20  RICHARD RIDENHOUR:
21
21       RICHARD RIDENHOUR
22
22  CALIFORNIA TROUT, INC.:
23
23       NATURAL HERITAGE INSTITUTE
24       114 Sansome Street, Suite 1200
24       San Francisco, California 94104
25       BY:  RICHARD ROOS­COLLINS, ESQ.
25
0004
01                           APPEARANCES
01
02  CALIFORNIA DEPARTMENT OF FISH AND GAME:
02
03       McDONOUGH HOLLAND & ALLEN
03       555 Capitol Mall, Ninth Floor
04       Sacramento, California 95814
04       BY:  VIRGINIA A. CAHILL, ESQ.
05
05       THE RESOURCES AGENCY
06       1416 Ninth Street, 12th Floor
06       Sacramento, California 95814
07       BY:  NANCEE MURRAY, ESQ.
07
08  CALIFORNIA STATE LANDS COMMISSION:         
08  CALIFORNIA DEPARTMENT OF PARKS AND RECREATION:
09
09       MARY J. SCOONOVER, ESQ.
10       1300 I Street
10       Sacramento, California 95814
11
11       MICHAEL VALENTINE
12
12  NATIONAL AUDUBON SOCIETY:
13  MONO LAKE COMMITTEE:
13
14       MORRISON & FOERSTER
14       425 Market Street
15       San Francisco, California 94105
15       BY:  F. BRUCE DODGE, ESQ.
16
16       HEIDE HOPKINS
17       GREG REISE
17       PETER VORSTER    
18
18
19                            ­­­oOo­­­
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0005
01                              INDEX     
01
02                                                     PAGE
02
03  LOS ANGELES DEPARTMENT OF WATER AND POWER
03
04       DIRECT EXAMINATION
04
05            BY MR. BIRMINGHAM                     44, 125
05
06       CROSS­EXAMINATION
06
07            BY MS. BELLOMO                             94
07            BY MR. ROOS­COLLINS                   98, 148
08            BY MR. DODGE                              188
08            BY MS. CAHILL                             256
09            BY MS. SCOONOVER                          302
09            BY BOARD STAFF                            321
10
10                            ­­­oOo­­­
11
11       AFTERNOON SESSION                              120
12
12       EVENING SESSION                                233
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0006
01                      SACRAMENTO, CALIFORNIA
02                    TUESDAY, JANUARY 28, 1997
03                            ­­­oOo­­­
04       CHAIRMAN CAFFREY:  Good morning and welcome to this
05  hearing regarding restoration plans required by Mono Lake
06  Decision 1631.  My name is John Caffrey.  I am Chairman of
07  the State Water Resources Control Board, and I will be
08  presiding in this hearing.
09       Let the record show that the full Board is present.   By
10  way of introduction, to my very far left is Board Member
11  Marc Del Piero, who I am sure many of you may recognize. 
12  Mr. Del Piero served as hearing officer in the original Mono
13  Lake decision. 
14       Thank you, again, Mr. Del Piero.
15       BOARD MEMBER DEL PIERO:  Thank you, Mr. Chairman.
16       CHAIRMAN CAFFREY:  Between Mr. Del Piero and myself is
17  Board Member Mary Jane Forster.  To my immediate right is
18  Board Member James Stubchaer, and to Mr. Stubchaer's right
19  is our Board's Vice Chair, John Brown.
20       I am going to read a somewhat lengthy statement into
21  the record for starters, but I think it may serve to answer
22  some questions that you may have, and then we can get to 
23  some opening questions after I read the statement, if there
24  is any need for clarification.
25       This is the time and place for the hearing on the
0007
01  Stream and Waterfowl Habitat Restoration Plans submitted by
02  the City of Los Angeles as required by Water Right Decision
03  1631.  Decision 1631 amended the City of Los Angeles' water
04  right licenses which authorized diversion of water from four
05  streams tributary to Mono Lake. 
06       This hearing is being heard in accordance with the
07  Notice of Hearing dated June 18, 1996, and the Supplemental 
08  Hearing Notices dated August 12th and December 20th, 1996.
09       The Board will be assisted in this proceeding by the
10  following staff members: 
11       Jerry Johns, Assistant Division Chief of the Division
12  of Water Rights.  Jim Canaday, Environmental Specialist,
13  and Dan Frink, Staff Counsel.
14       Many of the parties here this morning participated in
15  the Board's hearing, leading to adoption of Water Rights
16  Decision 1631.  Decision 1631 amended water licenses 10191
17  and 10192 to establish instream flow requirements for
18  protection of fish and water diversion criteria which are
19  intended to result in a higher water elevation at Mono Lake
20  in order to protect public trust resources. 
21       Decision 1631 also directed the City of Los Angeles to
22  prepare and submit a plan for restoration of the four
23  streams from which it diverts water in the Mono Basin and
24  the plan for restoration of a portion of the waterfowl
25  habitat, which was lost as a result the City's prior water
0008
01  diversions.  The decision directs the City to seek input
02  from the California Department of Fish and Game, the State
03  Lands Commission, the California Department of Parks and
04  Recreation, and the United States Forest Service, the
05  National Audubon Society, the Mono Lake Committee, and
06  California Trout, Incorporated.
07       The decision also directed the City to make the draft
08  restoration plans available to those designated parties for
09  review and comment prior to making any revisions and
10  submitting the final plans for the Board.
11       Following time extensions at the request of various
12  parties, the City of Los Angeles submitted the final
13  restoration plans to the Board in February 1996.  The Board
14  requested and received written comments on the plans from
15  interested parties. 
16       This hearing on the Restoration Plans was originally
17  scheduled for July 29th and 30th, 1996, but the Board has
18  twice granted requests to continue the hearing in order to
19  provide an opportunity for parties to negotiation and
20  resolve their differences concerning the plans.  The purpose
21  of the present hearing is to provide Los Angeles and other
22  parties an opportunity to present information to assist the
23  Board in determining if the proposed restoration plans meet
24  the requirements of the Decision 1631.
25       The Board recognized that the preparation of these
0009
01  plans has been a lengthy process, involving input from many
02  individuals and organizations.  We certainly appreciate all
03  the work and cooperation that has gone into that process. 
04  We also appreciate that some issues concerning the plans
05  involve extensive technical information, which many of you
06  have submitted in the form of written testimony and exhibits
07  prior to the hearing.
08       As explained in the hearing notices, parties will have
09  the opportunity to present a brief oral summary of their
10  previously submitted information.  However, parties are not
11  expected to make a detailed oral presentation of all matters
12  covered in the written testimony and exhibits.  Evidence
13  presented in the written testimony and exhibits will receive
14  equal consideration to oral testimony.  The Board requests
15  that the City of Los Angeles limit its oral presentation
16  regarding the proposed restoration plans to no more than two
17  hours.  In view of the number of parties commenting on the
18  plans, the Board requests that each of other parties limit
19  their oral presentations to no more than one hour per
20  party.  Each witness should limit the oral summary of their
21  written testimony to 20 minutes or less.
22       Parties will be allowed the opportunity to cross exam
23  witnesses.  In most cases it will be most efficient if a
24  party's witnesses are made available for cross­examination
25  as a panel.  The hearing notice states that each party's
0010
01  cross­examination of other party witnesses normally will be
02  limited to one hour.  The Board will be monitoring the time
03  limits for direct testimony and cross­examination.  Upon a
04  showing of good cause, we may allow some additional time for
05  cross­examination.  All participants are encouraged to be as
06  succinct as possible. 
07       Following completion of the direct testimony and
08  cross­examination of all the parties' witnesses, the Board
09  will provide an opportunity for rebuttal testimony, if
10  desired.  In the interest of time, we will ask that parties
11  who have opening statements make those statements at the
12  beginning of their evidentiary presentations and within the
13  one hour time allotted to each party.
14       The procedures established in the hearing notice
15  required each party, who intends to participate in the
16  evidentiary hearing, to submit a written Notice of Intent to
17  Appear.  We have received Notice of Intent to Appear from 12
18  parties.  Typically, the Board receives all of one party's
19  testimony or comments before moving to the text party.  In
20  this instance, the Board received a request from the people
21  for Mono Basin Preservation to organize the testimony by
22  topic.  We have considered this request, but believe that it
23  will be most expeditious to proceed in our normal fashion
24  and allow each party to complete the entire presentation
25  before moving to the next party.
0011
01       At this time, I would like to invite appearances from
02  the parties.  I will call on each party in the suggested
03  order in which the Board will hear your presentations.  We
04  believe the announced order will be most efficient, and it
05  should allow some parties to avoid having to stay for the
06  entire hearing.
07       When I call the name of each party, will the party's
08  representative please stand and give your name and address
09  for the record.
10       City of Los Angeles, Department of Water and Power.
11       MR. BIRMINGHAM:  Good morning, Mr. Chairman, Members of
12  the Board.  Kronick Moskovitz Tiedemann & Girard by Thomas
13  Birmingham and Janet Goldsmith appearing on behalf of the
14  Department of Water and Power for the City of Los Angeles.
15       CHAIRMAN CAFFREY:  Thank you.
16       U.S. Forest Service.
17       MR. GIPSMAN:  Jack Gipsman, Office of General Counsel,
18  U.S. Department of Agricultural, 33 New Montgomery,
19  Seventeenth Floor, San Francisco 94105.
20       CHAIRMAN CAFFREY:  Bureau of Land Management.          
21       MR. RUSSI:  Terry Russi with the Bureau of Land
22  Management, Bishop Resource Area, Bishop, California.  The
23  address is 785 North Main Street, Suite E.
24       CHAIRMAN CAFFREY:  Trust for Public Land.
25       Is there a representative here from the Trust for
0012
01  Public Land? 
02       People for the Preservation of the Mono Basin.
03       MS. BELLOMO:  My name is Kathleen Maloney Bellomo, and
04  I am here as a representative of the group, along with
05  Joseph Bellomo.  At this time, it might be appropriate for
06  me to state for the record that I am an attorney licensed to 
07  practice in the State of California, but I am not
08  representing the People for Mono Basin Preservation as their
09  attorney of record.  I am here a representative of the
10  group.  I am not here in my capacity as counsel for that
11  group.
12       CHAIRMAN CAFFREY:  Thank you.
13       MS. BELLOMO:  Our address is P.O. Box 217, Lee Vining,
14  California 93541. 
15       Thank you.
16       CHAIRMAN CAFFREY:  Thank you.
17       Arnold Beckman.
18       MR. MOONEY:  Donald Mooney with DeCuir & Somach, 400
19  Capitol Mall, Suite 1900, Sacramento.
20       CHAIRMAN CAFFREY:  Arcularius Ranch.
21       MR. HASELTON:  Frank Haselton, LSA, 1 Park Plaza, Suite
22  500, Irvine, 92610.
23       CHAIRMAN CAFFREY:  Richard Ridenhour.
24       Is Mr. Ridenhour or his representative here?
25       MR. JOHNS:  He will be here later today.
0013
01       CHAIRMAN CAFFREY:  One has to wonder if the weather
02  has had some influence on people's ability to travel.  We
03  certainly hope it hasn't been an impediment.
04       California Trout, Inc.
05       MR. ROOS­COLLINS:  Morning, Mr. Chairman, Members of
06  the Board.  I am Richard Roos­Collins appearing on behalf of
07  California Trout.  My address is Natural Heritage Institute,
08  114 Sansome Street, Suite 1200, San Francisco, 94104.
09       CHAIRMAN CAFFREY:  Thank you, sir.      
10       Department of Fish and Game.
11       MS. CAHILL:  Virginia Cahill, McDonough Holland &
12  Allen, 555 Capitol Mall, Sacramento, 95814, representing the
13  Department, and also Nancee Murray. 
14       MS. MURRAY:  Staff counsel with the Department of Fish
15  and Game, 1416 Ninth Street, Sacramento, 95814.
16       CHAIRMAN CAFFREY:  California State Lands Commission
17  and the California Department of Parks and Recreation.
18       MS. SCOONOVER:  Morning.  I am Mary Scoonover
19  representing the State Lands Commission and the Department
20  of Parks and Recreation.  With me is Michael Valentine
21  representing the States Lands Commission.  My address is 
22  1300 I Street, Sacramento, 95814.
23       CHAIRMAN CAFFREY:  And the National Audubon Society
24  and Mono Lake Committee.
25       MR. DODGE:  Good morning, Mr. Chairman, Members of the
0014
01  Board.  I am Bruce Dodge.  My address it 425 Market Street,
02  San Francisco, California.  I have with me two people that
03  you have not met before.  Heide Hopkins and and Greg Reise 
04  of the Mono Lake Committee based in the Lee Vining, and I
05  have with me one person who I am tempted to say you have met
06  before and never wanted to see again.
07       CHAIRMAN CAFFREY:  That is never the case, Mr. Dodge.
08       MR. DODGE:  Peter Vorster.
09       BOARD MEMBER DEL PIERO:  Oh, oh, wait a minute.
10       CHAIRMAN CAFFREY:  I will not be speaking for Mr. Del
11  Piero.
12       MR. DODGE:  Redoubtable hydrologist.
13       CHAIRMAN CAFFREY:  Thank you all very much.   Welcome to
14  all of you.  It is good to see you all.
15       I will then proceed with the further reading of the
16  statement.
17       If there are any interested persons present who did not
18  submit a Notice of Intent to Appear, but who wish to present
19  a brief nonevidentiary policy statement regarding the
20  proposed restoration plans, please fill out one of the cards
21  available at the front table and return to the Board staff. 
22  They will be over on the table to my far left. 
23       At this time, I do not have any cards for policy
24  statements.
25       If there are not too many persons who wish to make
0015
01  policy statements, we will schedule you to speak in just a
02  few minutes, prior to beginning the evidentiary
03  presentations.  Persons who wish to make brief
04  nonevidentiary policy statements are requested to limit
05  their statements to five minutes.  Parties who have returned
06  Notices of Intent to Appear and who intend to present
07  evidence and recommendations on policy matters should save
08  their comments or recommendations on policy matters until
09  the time of their evidentiary presentations.     
10       After reviewing the written testimony, there is one
11  procedural issue that we want to address before beginning
12  the parties' presentations.  That issue concerns the 
13  relationship between the waterfowl habitat restoration
14  proposal for Mill Creek and the City of Los Angeles' water
15  right application to divert water to Wilson Creek for use in
16  Mill Creek.  Parties may wish to address the general concept
17  of the proposed water diversion and waterfowl habitat
18  restoration proposal for Mill Creek in this hearing. 
19  However, under the Water Code, the pending right application
20  and any petitions to change the use of water diverted under
21  existing rights are subject to a separate review process
22  before this Board may approve those proposals.  Issues
23  regarding the details of Mill Creek restoration proposals
24  can be addressed in the context of processing that
25  application and any related change petitions.
0016
01       Therefore, we would ask that parties limit their
02  cross­examination concerning the technical details of the
03  Mill Creek Restoration Plans.  In the current proceeding the
04  Board will be careful not to prejudice the outcome of
05  pending water right applications or petitions that may come
06  before the Board in the future.
07       That completes the opening statement, and I have a few
08  notes here that I would like to talk about a little bit.  We
09  will be providing you with some assistance on the time
10  keeping.  This somewhat limited device, in terms of its size
11  that I have in my hand, on here is a little light
12  arrangement.
13       BOARD MEMBER DEL PIERO:  That is a laser, right?
14       CHAIRMAN CAFFREY:  No, it is not a laser.  
15       You will see a green light throughout the course of
16  your presentation.  When there is five minutes left in your
17  allotted time, there will be a yellow light.  And then when
18  you see a red light, your time is up.  I will also give you
19  a verbal warning when there is one minute left in any
20  presentation.
21       That will just kind of help us all to keep our thoughts
22  and to stay organized.  Mr. Stubchaer will be our very able
23  timekeeper.  If you see him prodding me from time to time,
24  that will be Mr. Stubchaer reminding me of where we are in
25  the process.
0017
01       Also, with regard to the amount of time we have for
02  these proceedings, as you all know, we have scheduled three
03  days, and it is our hopeful intent to be able to complete
04  within that period of time.  The Board would like, for its
05  own selfish reason and for all of you, to try and avoid
06  night sessions because that tends to be laborious.  So, we
07  will attempt to do that, but if we get behind and what
08  appears to be any reasonable ability to finish in three
09  days, we may have to consider a night session or a couple of
10  night sessions somewhere along the way. 
11       Having said that and seeing Mr. Dodge rising on the
12  occasion, I was going to open it up for any questions. 
13       Mr. Dodge.
14       MR. DODGE:  On January 13th, we received a totally
15  revised Stream Monitoring Plan from Los Angeles.  And we are
16  looking at and we have an expert looking at it.  But it is
17  extremely complicated.  I would request a couple of weeks
18  for our expert to digest it and come back and testify on
19  that subject.  It just physically cannot be done by this
20  Thursday.  If any of you have had a chance to review the
21  Stream Monitoring Plan, you will see that it is extremely
22  complicated and very hard to understand.
23       CHAIRMAN CAFFREY:  So, what you are asking for, Mr.
24  Dodge, if I understand you correctly, is to proceed as far
25  as we go, but leave that one subject area open to come back
0018
01  for yet a fourth day and have what is tantamount to a
02  separate proceeding with direct, cross, redirect, all that?
03       MR. DODGE:  I am prepared to try to go to the
04  cross­examination today, if that is your preference.  I am
05  just saying that my expert can't physically be ready by this
06  week.
07       CHAIRMAN CAFFREY:  What I would really like to do in
08  the interest of ­­ but I would defer to my fellow Board
09  Members.  In the interest of getting this done for this
10  very, very important restoration, I would like to do
11  everything we possibly can to keep this within the three
12  days of scheduled hearings.  And it is my understanding ­­
13  is it, Mr. Frink, have the parties had this information for
14  a couple of weeks now? 
15       MR. FRINK:  Most of the parties received it, I think,
16  on the 13th of January.
17       CHAIRMAN CAFFREY:  Then we are all laboring under that
18  same restriction.  I would be inclined at this point to deny
19  your request and to just see what we can do to get through
20  the process in three days.
21       MR. DODGE:  With all due respect, sir, we all received
22  it on the 13th, we're laboring.  But Los Angeles has
23  presumably had it for some time. 
24       MR. FRINK:  Mr. Caffrey, if I might.
25       CHAIRMAN CAFFREY:  Mr. Frink.
0019
01       MR. FRINK:  As I understand the revised reports on
02  monitoring that the City of Los Angeles has submitted, they
03  were an attempt to address some of the comments that the
04  City had received on its plans.  The City intends to present
05  its plans initially, I believe.  Then we will hear comments
06  from other parties.  Had the City wanted, it could have
07  waited to introduce the revised monitoring proposals until
08  after the parties had commented on it. 
09       My understanding was that they attempted to get it out
10  even before their other exhibits in order that the parties
11  would have longer.  The City had a number of other exhibits
12  it has to go over that it received from the other parties. 
13  Whereas, a majority of the information the City provided,
14  its plans has been out there for nine months or more.
15       BOARD MEMBER STUBCHAER:  Mr. Chairman.
16       CHAIRMAN CAFFREY:  Mr. Stubchaer.
17       BOARD MEMBER STUBCHAER:  Perhaps one solution to this
18  problem would be to allow written comments for a week, or
19  two weeks, or a month after the close of the hearing.  Mr.
20  Dodge said he is willing to proceed with cross­examination
21  today.  That way we can conclude this proceeding.
22       CHAIRMAN CAFFREY:  I think that is an appropriate
23  suggestion, Mr. Stubchaer, and I was going to ask Mr. Frink
24  if ­­ at least my inclination was, at the end of this
25  proceeding to see if there was a desire on the part of the
0020
01  parties to have any open period for written comments.        
02       Perhaps that would accommodate your needs, Mr. Dodge. 
03  It wouldn't necessarily allow for any further examination,
04  but it would certainly allow you to comment.  We could keep
05  the record open for that period of time.  I think that is
06  the best that we can do under the circumstances. 
07       MR. DODGE:  I appreciate the opportunity to comment
08  after the hearing is closed.  I think that we did that
09  previously, and it worked out well, I think.  As I recall,
10  we had simultaneous opening briefs and simultaneous closing
11  briefs.  I thought that was a good process.  That is fine.
12       My point is that I have a witness who wants to talk
13  about monitoring, and I would like this Board, or at least
14  the hearing officer of this Board, to hear him.  And I don't
15  know that that is physically possible by Thursday.
16       CHAIRMAN CAFFREY:  Well, in that event then ­­ Mr.
17  Stubchaer, were you going to comment?
18       BOARD MEMBER STUBCHAER:  Mr. Chairman, I was going to
19  restate what you said in your opening statement, that the
20  written evidence has just as much weight as the oral
21  summary.  And it seems to me that it is not absolutely
22  necessary to have the oral summaries.
23       CHAIRMAN CAFFREY:  That is quite true, Mr.
24  Stubchaer.  I really don't want to get into a discussion of
25  the weight of evidence.  I would just remind the parties
0021
01  that the summary is just that; it is a summary, and the
02  testimony and exhibits have already been presented.  This is
03  a full­time Board.  We fully intend, and always do, to look
04  over everything and to read it. 
05       So, with great respect, Mr. Dodge, it is the ruling
06  that we will stay within the process that we have outlined,
07  but we will have some additional time when we close the
08  proceedings, the actual hearing portion, to keep the record
09  open and allow you to submit further statements.
10       MR. DODGE:  Thank you.
11       CHAIRMAN CAFFREY:  Thank you, sir. 
12       Do any of the other parties wish to be recognized?  
13       Ms. Scoonover.
14       MS. SCOONOVER:  Thank you, Mr. Caffrey.   I have a
15  question about the Board's discussion of Mill Creek with
16  respect to the Waterfowl Habitat Restoration Plan.  I just
17  want to be certain that I understand the points that you
18  made previously. 
19       It is our understanding that the application from the
20  Department of Water and Power for winter water rights on
21  Mill Creek will be heard at a later time, but that this
22  Board is planning to go forward with its Waterfowl Habitat
23  Restoration Plan during the course of these hearings.  Is
24  that correct?
25       CHAIRMAN CAFFREY:  That is correct, yes.
0022
01       MS. SCOONOVER:  It will be ­­ since the Mill Creek
02  restoration is, in many ways, the cornerstone of the
03  scientists' recommendations for the Waterfowl Restoration
04  Plan, it will be difficult, at times, for at least my expert
05  witnesses, and I assume other parties' expert witnesses, to
06  keep a clear line of demarcation between the two.  We will
07  make every effort, but when you talk about the Mill Creek
08  system, I think it is necessary to talk about all of the 
09  flows in the Mill Creek system, and I want to make sure that
10  that is acceptable to the Board, that that is understandable.
11       CHAIRMAN CAFFREY:  I guess the way I would deal with it
12  is that, certainly, the situation on the streams is
13  pertinent to the whole Mono Lake question, the lake levels,
14  and while I was ­­ and perhaps this is a little gray, and
15  maybe we feel our way through it as we go along, but it was
16  my hope that we didn't get into a very detailed, technical
17  situation, especially in the cross­examination, that would
18  be very time consuming, and then that we would again repeat
19  in a later public process on the application.  But at the
20  same time, I don't want to stifle or fetter the parties. 
21  So, we will ­­ when we get into that, let's do the best we
22  can and see where it takes us.
23       Just be mindful ­­ try not to get too technical.   Stay
24  more conceptual, but go where you have to go to try to make
25  your point.  When we get into it, we will just see if there
0023
01  are objections, or we will see if Mr. Frink has a problem of
02  where we are, and do the best we can.
03       MS. SCOONOVER:  Thank you.
04       CHAIRMAN CAFFREY:  Mr. Frink, do you wish to add
05  anything to that?
06       MR. FRINK:  No, Mr. Chairman.
07       CHAIRMAN CAFFREY:  Correct me in any way?
08       MR. FRINK:  No.  I think we will do the best we can on
09  that subject.
10       CHAIRMAN CAFFREY:  Are there other questions?   Please
11  feel free.  This is your time. 
12       Mr. Birmingham.
13       MR. BIRMINGHAM:  Mr. Chairman, you indicated earlier,
14  the parties would have an opportunity to make a policy
15  statement.  Caroline Green, who is the president of the
16  Board of Water and Power Commissioners for the City of Los
17  Angeles, would like to appear before the Board to make a
18  very brief, less than two­minute, policy statement. 
19  Unfortunately, she is not available today, and we would like
20  to ask the Board's leave to permit her to appear tomorrow to
21  make a very brief policy statement.
22       CHAIRMAN CAFFREY:  I certainly don't have any objection
23  to that.  Does anybody have a problem with that? 
24       We would certainly accommodate her.  We would most
25  likely be resuming at 9:00 a.m., unless we were going late
0024
01  tonight and as a group that would be too early.  But I would
02  say a good benchmark is 9:00 a.m. tomorrow morning.          
03       Could she be here by then? 
04       MR. BIRMINGHAM:  Yes, she can.
05       CHAIRMAN CAFFREY:  Mr. Birmingham, we can start off
06  with her policy presentation.
07       MR. BIRMINGHAM:  While I am here, I would like to take
08  the opportunity to introduce to the Board three gentlemen,
09  two of whom the Board has met before.  Jim Wickser, who is
10  the Assistant General Manager in charge of the water
11  division of the Department of Water and Power, is here.
12       CHAIRMAN CAFFREY:  Mr. Wickser.
13       MR. BIRMINGHAM:  Jerry Gewe, who is a senior engineer
14  with the Department of Water and Power, very high executive
15  within the Department, is also here, and Ed Schlotman, who
16  has ­­ I don't think anyone can ever replace Ken Downey, but
17  Ed Schlotman, who is an assistant city attorney, with the
18  City Attorney's Office, has assumed responsibility for this
19  matter upon Mr. Downey's retirement.  He's also here today.
20       Thank you.
21       CHAIRMAN CAFFREY:  Welcome gentlemen. 
22       Thank you, Mr. Birmingham. 
23       While we are on the subject, Mr. Birmingham and Mr.
24  Dodge have both taken the time, and we appreciate it, to
25  introduce some newer faces and some faces that we are
0025
01  already familiar with. 
02       Do any of the other parties wish to make any 
03  introductions while we are at this stage?  Please feel
04  free.
05       Thank you.
06       Mr. Dodge.
07       MR. DODGE:  I have one procedural point that I would
08  like to raise, and given my poor track record on procedural
09  points with this Board, I am probably not going to tell you
10  what my position is.  But one thought is that there are
11  several proposals for the use of Mill Creek water that are
12  floating around in the testimony.  Three are to keep it just
13  the way it is, send the water down to Wilson Creek.  The
14  second one is the Los Angeles proposal to dedicate 1 cfs and
15  to apply for winter water rights.  And the third,
16  recommended by the waterfowl scientists, is to basically
17  return as much water as you can to Mill Creek.  And then
18  there is environmental considerations raised by the Bellomos
19  and others about doing that. 
20       It's occurred to me that nothing on any of these
21  proposals is going to be done without environmental
22  review.  And one approach to this problem would be to,
23  basically, sever the waterfowl aspects of this proceeding
24  and proceed with an environmental review of all these
25  various proposals for what is naturally Mill Creek
0026
01  water, and, basically, not to hear testimony at this time. 
02  Because, presumably, the environmental review would consider
03  all of the issues, waterfowl issues, trout issues, green
04  land issues, and the flows raised.  A lot of those issues
05  would have to be considered. 
06       That is just something that has been rattling around in
07  my brain, and I think it is an option you have.
08       CHAIRMAN CAFFREY:  I must say it rattled around in our
09  brains, too, Mr. Dodge, because we did give that some
10  thought.  We came down on the side that to not consider it,
11  at least on the conceptual level, might be problematic in
12  terms of the overall picture of the lake level, et cetera. 
13       I see Mr. Frink is leaning towards his mike and may
14  have some thoughts on this or some further explanations.    
15      Mr. Frink.
16       MR. FRINK:  No.  Actually, I misunderstood you.  I
17  thought you were going to state that the Board had decided
18  not to consider, and, in fact, the Board is, as I understand
19  it, based on the letter dated December 31st.
20       CHAIRMAN CAFFREY:  That is right.  That is what I
21  thought I said.  If I didn't say that, I apologize.
22       MR. BIRMINGHAM:  Mr. Chairman, may I address that?
23       CHAIRMAN CAFFREY:  Mr. Birmingham.
24       MR. BIRMINGHAM:  Thank you.
25       CHAIRMAN CAFFREY:  I am sorry, Mr. Dodge, had you
0027
01  completed?
02       MR. DODGE:  I had completed.
03       CHAIRMAN CAFFREY:  Thank you, sir.
04       MR. BIRMINGHAM:  The notice that went out from this
05  Board, the initial notice concerning this hearing, raised
06  three issues.  And, actually, there was a subset within the
07  issues that was contained in that notice.  I believe, that
08  notice was sent out in June of 1996.
09       The issues were:  Does the Stream and Stream
10  Restoration Plan submitted by the Department of Water and
11  Power comply with the terms of D­1631 and, if not, how
12  should it been amended?  The second issue was:  Does the
13  Waterfowl Habitat Restoration Plan comply with D­1631, and,
14  if not, how should it be amended?   The third issue was: 
15  Does the Grant Lake Operations and Management Plan comply
16  with D­1631, and, if not, how should it been amended?
17       Before these plans are implemented, it will be
18  necessary for the Department to conduct environmental review
19  in many settings.  Before the Stream Restoration Plan can be
20  implemented, it will be necessary for the Department of
21  Water and Power to obtain permits from many agencies, State
22  agencies as well as Federal agencies.
23       In order to implement the Waterfowl Habitat Restoration
24  Plan, it will be necessary to obtain a permit from this
25  Board.  But in order to address the issues that were
0028
01  identified in the original notice, it is not necessary for
02  the Board to reach a decision concerning the availability of
03  water for appropriation from Wilson Creek.  The simple
04  question is:  Does the plan comply with D­1631?       
05       If it turns out that no water is available for
06  appropriation or the Board, in connection with DWP's water
07  right application concludes that because of the
08  environmental impacts associated with appropriating 16 cfs
09  from Wilson Creek, during the period of appropriation, that
10  it is not going to approve the permit, it may be necessary
11  for the Department to come back to the Board and supplement
12  or amend the Waterfowl Habitat Restoration Plan, if it is
13  approved.  But the same thing is true with respect to
14  implementing the Stream Habitat Restoration Plan. 
15       For instance, the Department of Water and Power
16  proposes doing restoration work on Forest Service land.  The
17  Forest Service has said, "It will be necessary for you to
18  comply with ­­ for us to comply with NEPA, and for you to
19  obtain the appropriate permits."  If the Forest Service
20  says, "No way," we are going to have to come back before the
21  Board and say we may need to modify the plan.  But the Board
22  can address the issue, decide the issue, that was presented
23  in the notice, based upon the evidence that is before the
24  Board today.
25       BOARD MEMBER DEL PIERO:  Question, Mr. Chairman.
0029
01       CHAIRMAN CAFFREY:  Mr. Del Piero.
02       BOARD MEMBER DEL PIERO:  On behalf of the Los Angeles
03  Department of Water and Power, Mr. Birmingham, are you then
04  acknowledging that this Board has the authority and L.A. is
05  willing to agree to revisiting the Waterfowl Restoration
06  Plan in the event that subsequent water rights hearing
07  determines inadequate water supplies to service anything
08  that this Board might consider today?
09       MR. BIRMINGHAM:  This Board has continuing jurisdiction
10  over every aspect of the license.
11       BOARD MEMBER DEL PIERO:  I am more interested in the
12  other half of the question, whether or not L.A.
13  acknowledges, at this point, that they will return here, in
14  terms of revisiting the waterfowl plan in the event water is
15  not made available as part of the subsequent water rights
16  hearing?
17       MR. BIRMINGHAM:  Yes, Mr. Del Piero.  The Department of
18  Water and Power recognizes that if, for some reason, it
19  cannot implement any aspect of a plan that is approved by
20  this Board, if it is a major aspect of this plan, certainly
21  rewatering Mill Creek is, as Ms. Scoonover indicated, a
22  major element of implementing the Waterfowl Habitat
23  Restoration Plan, if we can't do that because we can't
24  obtain the appropriate permits, then we will have to come
25  back to this Board.
0030
01       BOARD MEMBER DEL PIERO:  I guess the reason I am asking
02  the question is because I remember once in a water rights
03  order, the water rights order directs the Los Angeles
04  Department of Water and Power to return here with a plan for
05  the Board's subsequent approval.  It doesn't talk about
06  subsequent events beyond that.  In terms of implementation
07  of the plan, the order presumes that the plan to be
08  approved as part of these hearings will be the final
09  document.
10       So, the issue that you are raising about some
11  subsequent hearing that might necessitate modification of
12  the plan in the event that water is not available, raises an
13  issue that is simply not spoken to in the water rights order.
14       CHAIRMAN CAFFREY:  Let me ask ­­ excuse me for
15  interrupting.
16       Can the people in the back or the room hear us?        
17       Thank you.
18       MEMBER DEL PIERO:  They turned it down on purpose.
19       CHAIRMAN CAFFREY:  Anything else, Mr. Birmingham?
20       MR. BIRMINGHAM:  No, I don't think so.   But I am not
21  sure that I've addressed Mr. Del Piero's concern.  It is our
22  ­­ just so we are very specific.  We understand that if, for
23  some reason, we cannot implement the Waterfowl Habitat
24  Restoration Plan because there is no water available for
25  appropriation or because for other reasons the Board
0031
01  determines not to grant that application, then I expect we
02  will have to submit a modified restoration plan to the
03  Board.  I hope it doesn't result in an evidentiary hearing
04  of the type that we are about to initiate, but there will
05  have to be some modification.
06       BOARD MEMBER DEL PIERO:  I appreciate you making that
07  comment, Mr. Birmingham.  Because, given the way this is
08  proceeding and given the respective proposals in terms of 
09  Mill Creek, there are clearly significant CEQA issues that
10  can only be answered by an environmental impact.  And until
11  that document is completed, I wouldn't want anyone thinking
12  that we are attempting to prejudge water rights hearing.
13       CHAIRMAN CAFFREY:  That is what we said in the opening
14  statement so carefully, we thought and we hoped.
15       MR. BIRMINGHAM:  I appreciate that statement, because
16  we don't want this to become a water rights hearing.  We are
17  not prepared for that.  There is testimony, particularly
18  from Mr. Beckman, that goes right to the heart of the water
19  rights issue.  And, in fact, when that testimony is
20  presented, we are going to object to it because it is beyond
21  the scope of the noticed hearing. 
22       But D­1631 contained very specific guidelines which
23  were to be used by the Department of Water and Power in
24  developing its restoration plan, and the issue that is
25  before the Board today, are the plans that are submitted
0032
01  consistent with those guidelines.  If not, how should they
02  be modified?
03       CHAIRMAN CAFFREY:  Thank you, Mr. Birmingham.  
04       Any others? 
05       Ms. Bellomo.
06       MS. BELLOMO:  Please, by the way, if I mispronounce or
07  have mispronounced anybody's name, please, correct me
08  immediately. 
09       Good morning, welcome.
10       MS. BELLOMO:  You pronounced it correctly.
11       Mr. Dodge's proposals came as a surprise to me this
12  morning, first that we heard of it.  I would certainly say
13  that we welcome what sounds like some recognition that there
14  are some serious environmental questions raised by the
15  various proposals to rewater Mill Creek.
16       I am responding completely spontaneously because I
17  haven't heard of this until five minutes ago.  My concern,
18  if we don't go forward whatsoever with the waterfowl habitat
19  restoration part of this proceeding is that the parties
20  won't have any sort of guidance in terms of any inclination
21  that the Board has, and we are back to the drawing board. 
22  And I really don't know what will come out of it. 
23       The local community is very cognizant of the importance
24  of getting some waterfowl habitat restoration under way, not
25  just because of the effects that the lower lake levels have
0033
01  on waterfowl habitat.  There is another very serious issue,
02  which is Dechambeau Ranch caused the county's pond problem. 
03  And so the Forest Service needs some guidance, as well,
04  because they're in the process of deciding whether they are
05  going to do drilling, or try to find artesian wells, or are
06  they gong to rely on surface groundwater. 
07       So, I think that this group of people that are convened
08  here today needs some sort of guidance on direction to go.
09       CHAIRMAN CAFFREY:  I appreciate that, Ms. Bellomo.  My
10  asking earlier if there were any questions actually was a
11  question directed more at procedure and a little concerned
12  now that we are getting into an opening statement kind of a
13  situation.
14       I don't want to stifle anybody and disallow them the 
15  opportunity to come up here, but this the kind of thing that
16  we certainly want to hear from you when you are giving us
17  your direct, and you can weave in your cross­examination. 
18  But at the moment, we do need to proceed.  We'd like to keep
19  the commentary now with regard to processing as best we can.
20       MS. BELLOMO:  I was attempting to address the process
21  which was Mr. Dodge's suggestion that you not hear any
22  testimony in this proceeding about waterfowl habitat
23  restoration.  That was my understanding.
24       CHAIRMAN CAFFREY:  We already decided that we were
25  going to proceed as we had noticed.  So, I believe that
0034
01  would be to your satisfaction.
02       MS. BELLOMO:  Yes, that will.
03       Thank you.
04       CHAIRMAN CAFFREY:  Thank you, Ms. Bellomo.     
05       MR. DODGE:  I have just one more procedural matter. 
06       CHAIRMAN CAFFREY:  Excuse me, go ahead.
07       MR. DODGE:  I didn't think about it.
08       MR. MOONEY:  I'm Don Mooney, representing Mr.
09  Beckman.  Maybe, just briefly, in response to Mr. Birmingham
10  with regards to the water rights issues for Mill Creek.  I
11  thought the Board's response to Ms. Scoonover provided a lot
12  of clarification in terms of how to proceed.  However, Mr.
13  Birmingham's comments did raise a little bit of concern.  It
14  is not out intention to put on water rights testimony.  In
15  fact, in very limited nature.  But to the extent there is an
16  enormous, not enormous, but there is discussion within the
17  testimony about the Mill Creek water rights and Mill Creek
18  decree, we feel, on Mr. Beckman's behalf, there is need, at
19  least, to address that to some extent.  We'd be more than
20  willing ­­ as Mr. Birmingham said he would object to Mr.
21  Beckman's testimony, we would more than willing to withdraw
22  that testimony if all references to the Mill Creek water
23  rights, as mentioned in the water rights, are removed from
24  the testimony.  But since so much of this is based upon the
25  discussion of Mill Creek water rights, irrigation season and
0035
01  those types of issues, we feel that there is a need to
02  address that somewhat, although it will not be a technical
03  discussion of Mr. Beckman's water rights.
04       CHAIRMAN CAFFREY:  Let the record show that you have
05  stated in response to Mr. Birmingham, that you will object
06  to his objection.  Let me say we don't follow the strict
07  rules of evidence here in the hearing room.  It is my
08  intention, although sometimes I may sound a little
09  disstructured, it is my intention to provide ­­ my most
10  important goal in life as a hearing officer is to provide
11  the most fairness that I possibly can.  In that regard, I
12  would generally tend to lean towards allowing evidence in,
13  rather than leaving it out, especially when we have a record
14  as broad as we do already, with regard to Mono Lake
15  proceedings, and which, I believe, Mr. Frink will probably
16  offer into evidence in this proceeding in a moment. 
17       I appreciate your comment. 
18       Thank you.
19       MR. MOONEY:  Thank you.
20       CHAIRMAN CAFFREY:  Mr. Dodge, one more time?
21       MR. DODGE:  Yes.  I was somewhat surprised to see that
22  my clients had slipped to last in terms of presenting
23  evidence.  But I do understand the reason for that in terms
24  of perhaps other people being able to leave after they have
25  presented their evidence.
0036
01       I would urge the Board, however, that I retain my spot
02  of cross examining L.A.'s witnesses early on in the
03  proceeding rather than late.
04       CHAIRMAN CAFFREY:  So you would like a change in the
05  order, if I understand you correctly, in the order that we
06  cross­examine?  Is that what you are saying?
07       MR. DODGE:  In terms of cross­examination, I would urge
08  to go back to the system we had before, which, as I recall,
09  provided that Fish and Game and myself cross­examined
10  first.
11       CHAIRMAN CAFFREY:  I just don't know that I have
12  reaction to that other than just the standard reaction of
13  trying to keep order and stay with what we have already
14  announced we are going to do.
15       Mr. Frink, do you have any guidance?  Would it be
16  valuable to turn the list upside­down when it comes to
17  cross­examination?
18       MR. FRINK:  I don't know if it would be or not.  I
19  think in cross­examination, as well as with presentations of
20  direct evidence, that there are going to be a number of
21  people who don't have a lot of material that they want to
22  get in.  They may have a few questions that they want to ask
23  a party, and then they may leave and not return to the
24  hearing, or they may return at a later date. 
25       Mr. Dodge, generally, has extensive cross­examination,
0037
01  and if we had all the parties who have extensive
02  cross­examination at the beginning, it means that the
03  parties who just have a few questions have to stay
04  throughout, and they may not desire to. 
05       I would suggest staying with the order that you
06  originally described.
07       CHAIRMAN CAFFREY:  I think Mr. Frink makes an important
08  point.  Please bear with us, Mr. Dodge, and please don't
09  think that there is going to be a diminishment of interest
10  on the part of the Board Members because of your place in
11  the list.  I think we should stay with the existing list
12  just to try and accommodate as many people who have, really,
13  less input in the proceedings as we. 
14       Thank you, sir.
15       Anything else? 
16       Mr. Roos­Collins.
17       MR. ROOS­COLLINS:  Those of you who weren't present for
18  the 43 days of hearing in 1993 and 1994 may now understand
19  why 43 days were necessary.  I do have a request for
20  clarification.
21       CHAIRMAN CAFFREY:  Please, sir.
22       MR. ROOS­COLLINS:  You said that each party would be
23  limited to one hour of cross­examination.
24       CHAIRMAN CAFFREY:  That's correct.  I thought I was
25  anticipating you.  I thought you were going to talk about
0038
01  direct.
02       Continue.
03       MR. ROOS­COLLINS:  Is that cross­examination of all
04  parties' witnesses or of each other parties' witnesses?
05       CHAIRMAN CAFFREY:  No, that is cross­examination by
06  each party of each set of witnesses.
07       MR. ROOS­COLLINS:  Thank you.
08       CHAIRMAN CAFFREY:  Not to encourage you to go beyond
09  that, but I fully recognize that cross­examination is
10  something much different than direct.  When you had the
11  situation of being able to submit your direct testimony in
12  advance and you are being limited to a synopsis there.  I
13  realize that is something else.
14       We are setting up the hour for the maximum on the
15  cross­examination as a guideline.  If you need more time
16  than that, as we stated in the opening statement, please
17  give us a showing that you do.  We do not want to deny due
18  process when somebody is doing their cross­examination and
19  is making an important point or getting to an important
20  point, just because the clock says so.  But still, having
21  said, please try as best you can to stay within the
22  guideline, because what we are about today is so very
23  important, and completion of what we do is so very
24  important. 
25       I appreciate your clarifying question, sir.   Thank you.
0039
01       MR. ROOS­COLLINS:  Thank you.
02       CHAIRMAN CAFFREY:  Anybody else? 
03       All right. 
04       Thank you very much.  Then we will ask our staff, Mr.
05  Frink, if he has staff exhibits to introduce.  And, Mr.
06  Frink, please interrupt me at any point during the
07  proceeding if I overlook anything important. 
08       Go ahead, Mr. Frink.
09       MR. FRINK:  Yes, Mr. Chairman.  The staff exhibits for
10  this hearing are identified as Staff Exhibits 1 through 4 in
11  the June 18, 1996 hearing notice.  The hearing notice also
12  indicated that the record preceding entry of Decision 1631
13  would be considered as part of the record and present
14  hearing. 
15       If there are no objections, I would ask for acceptance
16  of the Staff Exhibits as identified in the hearing notice at
17  this time.
18       CHAIRMAN CAFFREY:  Thank you, Mr. Frink.  
19       If there is no objection, the exhibits are accepted
20  into the record.
21       MR. DODGE:  Would Mr. Frink refresh our recollection as
22  to what they are?
23       MR. FRINK:  Sure.  The exhibits as identified in the
24  hearing notice: 
25       Exhibit Number 1 was Division of Water Right file on
0040
01  water right applications 8042, 8043, 531, and 570.
02       Staff Exhibit 2, Division of Water File 0.5O, Special
03  Studies of the Mono Lake Basin.
04       Staff Exhibit 3, the draft and final Environmental
05  Impact Report for the review of Mono Basin Water Rights for
06  the City of Los Angeles certified by the State Water
07  Resources Control Board on September 28, 1994.
08       Staff Exhibit 4, cultural resources inventory of four
09  tributaries to Mono Lake and an evaluation plan for the Mono
10  Stream Restoration Project.
11       CHAIRMAN CAFFREY:  Thank you, Mr. Frink.
12       MR. FRINK:  Are the exhibits accepted into evidence?
13       CHAIRMAN CAFFREY:  Yes, I did accept them already, the
14  time that Mr. Dodge was asking his question.  They are
15  accepted.  I did not note any objection when I asked for
16  it.  Hope you all heard me.
17       MR. FRINK:  I do have one other matter.
18       CHAIRMAN CAFFREY:  All right, Mr. Frink, please go
19  ahead. 
20       MR. FRINK:  The Board has received a letter dated
21  January 22, 1997, from Mr. Farnetti, Mr. Chairman, of the
22  Mono County Board of Supervisors.  The letter expresses
23  opposition to the plan's ceased irrigation of the Thompson
24  Meadow in conjunction with the Waterfowl Habitat Restoration
25  Plan.  And Mr. Farnetti, on behalf of the Board of
0041
01  Supervisors, has asked that the letter be included in the
02  record of this proceeding. 
03       I would suggest that the Board include the letter as a 
04  policy statement, written policy statement.
05       CHAIRMAN CAFFREY:  Is there any necessity to read the
06  letter in its entirety into the record?
07       MR. FRINK:   I don't believe so, in keeping with the
08  procedures that apply to.
09       BOARD MEMBER DEL PIERO:  Policy statement?
10       MR. FRINK:  He is not appearing as a witness.   He is
11  making statement on a matter of policy.  If he were here, he
12  could state it orally.  I think we can include it in the
13  record.
14       BOARD MEMBER DEL PIERO:  Do we have that?
15       MR. FRINK:  Yes, we do.
16       CHAIRMAN CAFFREY:  We have the letter?
17       MR. FRINK:  Yes, we do.     
18       MR. BIRMINGHAM:  I wonder if the parties could be given
19  a copy of the letter.
20       CHAIRMAN CAFFREY:  Could we provide the parties with
21  copies of the letter sometime during the course of the
22  proceeding? 
23       MR. FRINK:  Yes.
24       CHAIRMAN CAFFREY:  We will do that.
25       Thank you.
0042
01       I saw it last night.  It came in last night.   Mr. Del
02  Piero was asking if I had seen the letter.  I told him that
03  I did see it briefly last night when it came in. 
04       That is the same letter we received last night?
05       MR. FRINK:  Yes, it is.  We will have copies available
06  after the first break.
07       CHAIRMAN CAFFREY:  Thank you, Mr. Frink.
08       I will call one more time to make sure there are no
09  policy statements.  No one has responded with the exception
10  of the one letter that Mr. Frink just referred to.  So, no
11  one wishing to make a policy statement, then we will proceed
12  onward.
13       It is now time to administer the oath.  All those here
14  today, all those parties intending to offer direct
15  testimony, please rise and raise your right land.
16            (Oath administered by Chairman Caffrey.)
17       CHAIRMAN CAFFREY:  Thank you all very much.   Please be
18  seated.  I'm never quite sure how to ­­ Mr. Brown thought
19  there were some weak ones there.  Probably is more to do
20  with the somewhat nonassertive application of the question.
21       All right.  Thank you all.  You are now sworn in, so to
22  speak. 
23       And let me just say before we go to direct testimony
24  from the City of Los Angeles, that we will be taking breaks
25  from time to time, and Mr. Birmingham, with your indulgence,
0043
01  if you intend to take the two full hours we have allotted
02  you, we will probably be taking a break somewhere in the
03  middle of your presentation or during your presentation, and
04  we will try not to be too disruptive about it. 
05       Also, when we are timing you, if a question is asked or
06  if there is an objection to your testimony, or if a Board
07  Member just cannot stand it anymore and has to ask a
08  question outside of the normal time that we go to the Board
09  for questions, we will not penalize you for that.  We will
10  stop the clock in fairness to all, since we will be on your
11  time if we didn't stop the clock.
12       With that, then, unless there are any further
13  questions, it is time to proceed with direct from the City
14  of Los Angeles. 
15       Mr. Birmingham, good morning again, sir, and welcome.
16       MR. BIRMINGHAM:  Thank you.
17       At this time, the Department of Water and Power would
18  like to call Robert L. Beschta, Ph.D.; J. Boone Kauffman,
19  Ph.D.; Peter Kavounas; William S. Platts, Ph.D.; and Brian
20  Tillemans. 
21       I should also observe that when Platts agreed to come
22  out of retirement to testify here, I promised him that we
23  would not have an argument at the beginning of this hearing. 
24  He apparently has left as a result of my having failed to
25  keep that promise.
0044
01       CHAIRMAN CAFFREY:  I thought that was a colloquy. 
02       Gentlemen, please come to the table and use the mikes. 
03  Our sound system here could be a little bit better.  So you
04  may be asked, from time to time, to pull the mikes a little
05  bit closer.  It probably won't pick you up where they are
06  situated right now.  As each of you speak, you will have to
07  pull it forward.
08       The Court Reporter ­­ standard practice, when you bring
09  your panels up to all parties, I presume you are going to go
10  through an introduction and full information about each
11  witness. 
12       MR. BIRMINGHAM:  Yes, I am.
13       CHAIRMAN CAFFREY:  Please bear that in mind, everybody.
14  I know you normally do that anyway, but just as a reminder.  
15                            ­­­oOo­­­
16                        DIRECT EXAMINATION
17          BY LOS ANGELES DEPARTMENT OF WATER AND POWER
18                        BY MR. BIRMINGHAM
19       MR. BIRMINGHAM:  Mr. Kavounas, good morning.   Would you
20  please state and spell your full name.
21       MR. KAVOUNAS:  My name is Peter Kavounas.   Spelled
22  K­a­v­o­u­n­a­s.
23       MR. BIRMINGHAM:  Mr. Kavounas, when the Department
24  submitted a Notice of Intent to Appear, you provided me with
25  a copy of your resume; is that correct? 
0045
01       MR. KAVOUNAS:  That is correct. 
02       MR. BIRMINGHAM:  This is submitted as R­DWP Exhibit 1;
03  is that correct? 
04       MR. KAVOUNAS:  That is correct.
05       MR. BIRMINGHAM:  I would like to refer you to R­DWP­24.
06  Is that direct testimony that you prepared for submission to
07  the Board?
08       MR. KAVOUNAS:  That is correct.
09       MR. BIRMINGHAM:  Would you, please, take a few moments
10  and state for the Board your background and qualifications.
11       MR. KAVOUNAS:  Mr. Chairman, Members of the Board,
12  thank you for the opportunity to be here.  My name is Peter
13  Kavounas.  I am a civil engineering associate for the
14  Department of Water and Power.
15       CHAIRMAN CAFFREY:  Excuse me, Mr. Kavounas.
16       Can you hear the gentlemen in the back of the room?     
17       You need to pull the mike around.  Maybe you need to
18  turn it up a little more, Mr. Anton, or whoever normally
19  does. 
20       Thank you, Mr. Johns.
21                  (Discussion held off record.)         
22       CHAIRMAN CAFFREY:  Please proceed, sir.
23       MR. KAVOUNAS:  I am a civil engineer by education.  I
24  work for the Department of Water and Power as a civil
25  engineering associate.  My role in this has been to
0046
01  coordinate the preparation of the plans for Department.  I
02  am not going to take much time from this panel.  The process
03  that we followed and the assumptions that the Department
04  made are all explained in my written testimony.  I'll let
05  that stand as is, and I will be available for
06  cross­examination.
07       CHAIRMAN CAFFREY:  Thank you, sir.
08       MR. BIRMINGHAM:  Before I move on to other members of
09  the panel, Mr. Kavounas, the Department submitted a number
10  of exhibits:  R­DWP­15, which is an executive summary; 
11  R­DWP­16, which is a stream, a Stream Channel Restoration
12  Plan; R­DWP­17, which is an appendix to the stream and
13  Stream Channel Restoration Plan; R­DWP­18, which is a Grant
14  Lake Operation Management Plan;  R­DWP­19, which is an
15  appendix to the Grant Lake Operation Management Plan;
16  R­DWP­20, which is a Waterfowl Habitat Restoration Plan;
17  R­DWP­21, which is comment in response to comments on the
18  draft Stream Restoration Plan and Waterfowl Habitat
19  Restoration Plan; R­DWP­22, which is a plan for monitoring
20  the recovery of the Mono Basin streams, White Book;
21  R­DWP­23, which is a plan for monitoring the recovery of the
22  Mono Basin streams, Blue Book.
23       Are those the plans which are the subject of the
24  hearing before the Board today? 
25       MR. KAVOUNAS: To my knowledge, yes.
0047
01       MR. BIRMINGHAM:  Next, I would like to move to Brian
02  Tillemans. 
03       Mr. Tillemans, would you briefly state your background
04  and then provide a brief oral summary of the written
05  testimony which has been submitted.
06       MR. TILLEMANS:  Good morning.  My name is Brian
07  Tillemans.  I have been a biologist with the Department of
08  Water and Power for approximately 15 years, since 1981.  I
09  have been living entirely in the northern district.  DWP
10  owns approximately 300,000 acres of watershed in both the
11  Owens River Watersheds and the Mono Basin.  With that I have
12  dealt with a multitude of fishery and wildlife and water
13  resource issues, during the course of my career. 
14       I am currently closely involved with several stream
15  enhancement projects designed to improve riparian fishery
16  habitats in our lands, and I have been involved with the
17  Mono Basin restoration efforts since the very beginning, and
18  I have spent a lot of time on the creeks, probably as much
19  as anyone, if not more, in Mono Basin tributaries.
20       MR. BIRMINGHAM:  Exhibit R­DWP­25 is a document
21  entitled Direct Testimony of Brian Tillemans on Mono Basin
22  Stream and Stream Channel Restoration Plan. 
23       Is that document the written direct testimony which you
24  prepared concerning the stream and Stream Channel
25  Restoration Plan?
0048
01       MR. TILLEMANS:  Yes.
02       MR. BIRMINGHAM:  Would you briefly summarize that
03  testimony?
04       MR. TILLEMANS:  I assisted Peter Kavounas in the
05  coordination and development of LADWP's Stream Restoration
06  Plans.  Our goal is to restore, preserve and protect the
07  fisheries in Rush, Lee Vining, Parker, and Walker Creeks, as
08  well at fulfill our obligations under Decision 1631.
09       My written testimony stands as is.  In addition to my
10  involvement with Mono Basin restoration efforts since day
11  one, I am currently involved with several ongoing stream
12  enhancement projects within the Eastern Sierra region and
13  outside the Mono Basin.  LADWP's philosophy in each of those
14  projects begins with sound flow and land management
15  practices, similar to the Department's Mono Basin's plans.
16       This provides nature with the best feasible tools to
17  facilitate natural recovery processes.  LADWP has already
18  produced excellent habitat improvements with the Long Valley
19  riparian livestock programs in Long Valley, on McGee,
20  Convict, and Mammoth Creeks.  And DWP has just initiated a
21  similar project on the Upper Owens River.  All these streams
22  are tributary to Crowley Lake. 
23       Sound flow management practices utilized in the old
24  Owens Gorge River rewatering project have resulted in 
25  explosion of riparian growth and establishment of productive
0049
01  fishery in just a very short time frame.
02       In the southern Owens Valley, DWP plans to implement an
03  Owens River project that is based on holistic management,
04  and founded on proper flow and land management.  Because the
05  positive and successful results have been observed in the
06  many  projects within the Owens River shed and because of
07  the tremendous recovery I have observed on the Mono Basin
08  tributaries to date, I am confident that our restoration
09  plans, utilizing the same basic philosophies of the other
10  projects, will produce quality streams and an overall
11  fishery that will be better than pre­DWP fisheries.       
12  LADWP plans to facilitate naturally recovery processes,
13  resulting in resilient, high quality streams, that man
14  cannot duplicate with artificial measures.
15       MR. BIRMINGHAM:  Mr. Tillemans, the Department of Water
16  and Power has submitted a number of photographs or collages
17  that have been identified as R­DWP­37 through R­DWP­54.      
18       Are those photos of Rush Creek?
19       MR. TILLEMANS:  Rush, yes, they are.
20       MR. BIRMINGHAM:  Were those photos taken by you?
21       MR. TILLEMANS:   Yes, they were.
22       MR. BIRMINGHAM:  Can you tell us when you took these
23  photographs?
24       MR. TILLEMANS:  Those photographs were taken June of
25  this past summer, June 1996.
0050
01       MR. BIRMINGHAM:  There are a series of photographs that
02  are identified as R­DWP­55 through R­DWP­62.  Are those
03  photos of Lee Vining Creek, which you took?
04       MR. TILLEMANS:  Yes, they are.
05       MR. BIRMINGHAM:  Were they taken approximately the same
06  time that the photos of Rush Creek?
07       MR. TILLEMANS:  That's correct.
08       MR. BIRMINGHAM:  And R­DWP­63 are photos of Rush Creek
09  at the fish hatchery site; is that correct?
10       MR. TILLEMANS:  That's correct.
11       MR. BIRMINGHAM:  You are familiar with the fish
12  hatchery site?
13       MR. TILLEMANS:  Yes. 
14       MR. BIRMINGHAM:  The photos that are contained in
15  R­DWP­63, are those representatives of the condition of the
16  stream at the fish hatchery site on the dates indicated in
17  those photos?
18       MR. TILLEMANS:  Yes they are.
19       MR. BIRMINGHAM:  Next, I would introduce to the Board,
20  or reintroduce to the Board, Robert Beschta.  Dr. Beschta is
21  a professor from Oregon. 
22       And Dr. Beschta ­­
23       MR. TILLEMANS:  Excuse me, I was going to do the
24  pictorial exhibits now for my part. 
25       MR. BIRMINGHAM:  Excuse me.  I am sorry that I
0051
01  interrupted.  Please go ahead.
02       MR. TILLEMANS:  Some of you may not have had an
03  opportunity to see the creeks as of late.  There are a lot
04  of things that happened out there.  So, as part of my
05  pictorial exhibit, I wanted to attempt to bring the creeks
06  to the Board.  It is also intended to use as a complimentary
07  to the other panel members' testimony.  I think the most
08  important thing here is to observe the natural recovery that
09  is occurring out there and a very positive trend that these
10  systems are showing, as we speak. 
11       My first, R­DWP­63, is a sequel taken at Rush Creek at
12  the fishing hatchery site, in the lower portion of Rush
13  Creek.  The reason why I brought these photos in was that
14  the series of photos from 1986 showing a very blown out
15  stream, very poor condition, little vegetation, and it shows
16  a series of what has happened since '86 to October 1991 to
17  September 1993.  And this is a shot taken in August of
18  1995.
19       And, basically, I would like to put this up to
20  demonstrate how vegetation has come back within Rush Creek. 
21  In 1991 the Department of Water and Power instituted a
22  grazing moratorium on Rush Creek.  This allowed the younger
23  plants to establish.  They are very palatable and edible to
24  the sheep that occupied the floodplain.  They eat those very
25  quick.
0052
01       MR. BIRMINGHAM:  Excuse me, Brian.
02       Are members of the Board able to see those photographs?
03       CHAIRMAN CAFFREY:  We can see then, and we have the
04  smaller copies, as well.
05       MR. TILLEMANS:  The important aspect is that this is
06  ­­ basically, these photos here are from the same photo
07  site, and it depicts the vegetation has come back within the
08  site here.  Again, this is when we initiated the grazing
09  moratorium, and you can see the abundant vegetation that has
10  come in here.  Notice this band of willows that started in
11  1991 and notice the progression of how that band of willows
12  has grown and begun to mature.
13       This is a picture taken in August '95, a little bit
14  different lens on this site here, but a close­up of this
15  area, and it shows really how well the streams are coming
16  back, and the potential the streams have to revegetate on
17  their own. 
18       BOARD MEMBER DEL PIERO:  Mr. Chairman.
19       CHAIRMAN CAFFREY:  Mr. Del Piero.
20       BOARD MEMBER DEL PIERO:  Was that part of an
21  affirmative revegetation effort by LADWP?
22       MR. TILLEMANS:  Yes, it is in terms of passive
23  restoration measures.  We have taken one of the dominant
24  treatments that we have applied.  The treatments have been
25  removal of grazing that has brought about the change.
0053
01       BOARD MEMBER DEL PIERO:  Were there plantings of
02  willows that took place ­­
03       MR. TILLEMANS:  No, no artificial measures whatsoever.
04       BOARD MEMBER DEL PIERO:  What is the balance of the
05  vegetation beyond the willows in front of the line ­­
06       MR. BIRMINGHAM:  Mr. Del Piero, Dr. Kauffman, who is
07  the witness that will testify on the recovery of riparian
08  vegetation, can offer some very specific information in
09  response to that question.
10       BOARD MEMBER DEL PIERO:  Thank you.
11       CHAIRMAN CAFFREY:  This is not directed at Mr. Del
12  Piero.  I know he is very expert on this, just presents an
13  opportunity.  We, as Board Members, should probably try to
14  hold our questions.  We will have a questioning period for
15  the Board Members.  I may not have been very clear on that. 
16  I don't think I mentioned it at all, frankly.  I apologize
17  for to my fellow Board Members for that.   
18       Please, proceed, sir.
19       MR. TILLEMANS:  This is my next exhibit, R­DWP­46, and
20  this is a ­­ I purposely took sequels so that I could show
21  you more of a panoramic what was going on within a reach,
22  rather than an isolated snapshot, and, basically, this is
23  here in the bottomlands of Rush Creek.  It is in area of
24  what we would call the 4Bii complex.  And the important
25  thing to note here is if you notice this sagebrush and 
0054
01  rabbitbrush, which is a xeric, desert­type vegetation
02  community that previously exists on the Rush Creek
03  bottomland.  It is now dying off and is being replaced by
04  more wetland obligate­type plants, plants that are dependent
05  on the presence of a high water table. 
06       The importance of this is it shows a very positive
07  indicator of what is occurring out there, that what we were
08  doing in terms of rewatering and our land management is
09  bringing a rise in the water table and sending this towards
10  the transition of riparian vegetation. 
11       Again, down in here, you see the rabbitbrush and the
12  sage, what­have­you, the side out being replaced by sedges. 
13  In some cases we even have horsetail, which is a plant very
14  dependent on water.  Also, large sediment deposition has
15  flowed within this reach.  These, here, are seeds that have
16  occurred.  I was trying to show the seeds in the air at this
17  point, but the camera didn't bring it out.  The important
18  thing is a lot of sediment deposition and a lot of good
19  areas for potential riparian recruitment.
20       This next reach here is, basically, a little above the
21  4Bii complex.
22       MR. BIRMINGHAM:  Excuse me, Mr. Tillemans.   "This reach
23  here" doesn't tell us what you are referring to.  Could you
24  refer to it by an exhibit number?
25       MR. TILLEMANS:  This is R­DWP­45, and this is a little
0055
01  bit above the 4Bii complex, taken from the east side of the
02  rough.  You notice the riparian area here, a highly diverse
03  vegetation occurring within the flood plan.  The cottonwood
04  has really taken off and shows tremendous growth rates in
05  this reach.  Continuous quarter, very wide wetland,
06  floodplain vegetation occurring. 
07       Again, witness the xeric plants that are being forced
08  out; more and more water dependent plants are occurring. 
09  This is in a site where we plan on doing some rewatering. 
10  Prior to going out there, there was already water flowing in
11  this reach.  In fact, there was a strand of fish in this one
12  little section.  This channel was flowing in '95, as well as
13  '96.
14       MEMBER BROWN:  That is the main channel?
15       MR. TILLEMANS:  This is not the main channel.   This is
16  the secondary channel off the main.
17 &nbs