STATE
WATER RESOURCES CONTROL BOARD
PUBLIC
HEARING
---oOo---
REGARDING STREAM AND
WATERFOWL HABITAT RESTORATION PLANS AND GRANT LAKE
OPERATIONS AND MANAGEMENT PLAN SUBMITTED BY THE LOS
ANGELES DEPARTMENT OF WATER AND POWER PURSUANT TO
THE REQUIREMENTS OF WATER
RIGHT DECISION 1631
HELD AT:
STATE WATER RESOURCES
CONTROL BOARD
PAUL BONDERSON BUILDING
901 P STREET, FIRST FLOOR
HEARING ROOM
WEDNESDAY, JANUARY 29,
1997
9:00 AM
REPORTED BY: TERI L.
VERES, CSR NO. 7522, RMR
CAPITOL REPORTERS (916)
923-5447
1 APPEARANCES
2 ---oOo---
3 BOARD MEMBERS:
4 JOHN CAFFREY, CHAIRMAN
JOHN W. BROWN, VICE CHAIR
5 JAMES STUBCHAER
MARY JANE FORSTER
6 MARC DEL PIERO
7 STAFF MEMBERS:
8 JAMES CANADAY,
ENVIRONMENTAL SPECIALIST
GERALD E.
JOHNS, ASSISTANT DIVISION CHIEF
9 MELANIE COLLINS, STAFF
ENGINEER
10 COUNSEL:
11 DAN FRINK, ESQ.
12 LOS ANGELES DEPARTMENT
OF WATER AND POWER:
13 PANEL MEMBERS:
14 PETER KAVOUNAS, M.E.,
M.S., P.E.
BRIAN TILLEMANS,
Biologist
15 DAVID F. ALLEN, M.S.,
P.E.
CHRISTOPHER J. HUNTER,
M.S.
16 WILLIAM S. PLATTS,
Ph.D.
ROBERT L. BESCHTA, Ph.D.
17 J. BOONE KAUFFMAN,
Ph.D.
WILLIAM J. TRUSH, Ph.D.
18
WATERFOWL HABITAT
RESTORATION PANEL MEMBERS:
19
PETER KAVOUNAS
20 JAMES R. PERRAULT,
P.E.
BRIAN B. TILLEMANS,
Biologist
21 BRIAN N. WHITE, Ph.D.
22 KRONICK, MOSKOVITZ,
TIEDEMANN & GIRARD
400 Capitol Mall, 27th
Floor
23 Sacramento, California
95814
BY: THOMAS W. BIRMINGHAM,
ESQ.
24 and
JANET GOLDSMITH, ESQ.
25
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1 APPEARANCES CONT'D
2 ---oOo---
3 UNITED STATES FOREST
SERVICE:
4 UNITED STATES
DEPARTMENT OF AGRICULTURE
OFFICE OF GENERAL COUNSEL
5 33 New Montgomery, 17th
Floor
San Francisco, California
94105
6 BY: JACK GIPSMAN, ESQ.
7 BUREAU OF LAND
MANAGEMENT:
8 UNITED STATES
DEPARTMENT OF THE INTERIOR
BUREAU OF LAND MANAGEMENT
9 BISHOP RESOURCE AREA
785 North Main Street,
Suite E
10 Bishop, California
93514
BY: TERRY L. RUSSI
11
PEOPLE FOR MONO BASIN
PRESERVATION:
12
KATHLEEN MALONEY BELLOMO
13 JOSEPH BELLOMO
P.O. BOX 217
14 Lee Vining, California
93541
15 ARNOLD BECKMAN:
16 DeCUIR & SOMACH
400 Capitol Mall, Suite
1900
17 Sacramento, California
95814
BY: DONALD MOONEY, ESQ.
18
ARCULARIUS RANCH:
19
FRANK HASELTON, LSA
20 1 Park Plaza, Suite
500
Irvine, California 92610
21
RICHARD RIDENHOUR:
22
RICHARD RIDENHOUR
23
24
25
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367
1 APPEARANCES CONT'D
2 ---oOo---
3 CALIFORNIA TROUT, INC.:
4 NATURAL HERITAGE
INSTITUTE
114 Sansome Street, Suite
1200
5 San Francisco,
California 94104
BY: RICHARD ROOS-COLLINS,
ESQ.
6
CALIFORNIA DEPARTMENT OF
FISH AND GAME: 7
McDONOUGH, HOLLAND &
ALLEN
8 555 Capitol Mall, Ninth
Floor
Sacramento,
California 95814
9 BY: VIRGINIA A. CAHILL,
ESQ.
10 THE RESOURCES AGENCY
1416 Ninth
Street, 12th Floor
11 Sacramento, California
95814
BY: NANCEE
MURRAY, ESQ.
12
CALIFORNIA
STATE LANDS COMMISSION:
13 CALIFORNIA DEPARTMENT
OF PARKS AND RECREATION:
14 MARY J. SCOONOVER,
ESQ.
1300 I
Street
15 Sacramento, California
95814
16 MICHAEL VALENTINE
17 NATIONAL AUDUBON
SOCIETY:
MONO LAKE COMMITTEE:
18
MORRISON & FOERSTER
19 425 Market Street
San Francisco, California
94105
20 BY: F. BRUCE DODGE,
ESQ.
21 HEIDE HOPKINS
GREG REISE
22 PETER VORSTER
23
24 ---oOo---
25
CAPITOL REPORTERS (916)
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368
1 INDEX
2 ---oOo---
3 PAGE
LOS ANGELES DEPARTMENT OF
WATER AND POWER
4
CROSS-EXAMINATION
5
BY MR. DEL
PIERO...........................374 6
REDIRECT EXAMINATION
7
BY MR.
BIRMINGHAM..........................396 8
RECROSS-EXAMINATION
9
BY MR.
ROOS-COLLINS........................429 10 BY MR.
DODGE...............................431
BY MS.
CAHILL..............................451 11 BY MS.
SCOONOVER...........................460
BY MR.
CANADY..............................471 12
13 LOS ANGELES DEPARTMENT
OF WATER AND POWER
(WATERFOWL HABITAT
RESTORATION PANEL)
14
DIRECT EXAMINATION
15
BY MR.
BIRMINGHAM..........................486
16
CROSS-EXAMINATION
17
BY MS.
BELLOMO.............................499
18 BY MR.
MOONEY..............................529
BY MS.
CAHILL..............................541
19 BY MS.
SCOONOVER...........................555
20
21 AFTERNOON
SESSION.......................................485
22
23
24
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25
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1 SACRAMENTO, CALIFORNIA
2 WEDNESDAY, JANUARY 29,
1997
3 ---oOo---
4 CHAIRMAN CAFFREY: Good
morning and welcome back. We
5 will pick up where we
left off yesterday and that was at the
6 point where we had
completed staff's cross-examination of
7 these three panels.
8 Mr. Birmingham, did you
have something you wish to add
9 to that or were you
just going to position yourself for the
10 next set of questions?
11 MR. BIRMINGHAM: Mr.
Chairman, you may recall that
12 yesterday we asked for
leave of the Board to permit Carolyn
13 Green, the President
of the Board of Water and Power
14 Commissioners, to make
a policy statement this morning.
15 Ms. Green is present
and if we could start with that, we
16 would appreciate that
opportunity.
17 CHAIRMAN CAFFREY: We
will certainly do that. We
18 announced yesterday
that we would. Ms. Green is here.
19 Welcome. Please come
forward and address the Board.
20 MS. GREEN: Thank you
and good morning. As
21 Mr. Birmingham said, I
am Carolyn Green. I'm President of
22 the Los Angeles
Department of Water and Power Commissioners
23 and I'm really happy
for the opportunity to address you
24 today.
25 Without going into all
of the background of why we're
CAPITOL REPORTERS (916)
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1 here, you know that as
well or better than I do. I'd like
2 to get to the bottom
line. The Los Angeles Department of
3 Water and Power and the
City of Los Angeles are committed to
4 satisfying our
obligations under Decision 1631. We think
5 that the proposals that
are the subject of this hearing are
6 adequate to restore,
preserve and protect Rush, Walker,
7 Parker and Lee Vining
Creeks and the fisheries.
8 This process has been
the result of lengthy
9 discussions, joint
studies, negotiations between all of the
10 parties involved. We
think the plans are good plans and
11 that they will
accomplish the objectives of 1631. We commit
12 to today these plans
and a monitoring program that is
13 jointly agreed upon by
all the parties for a -- some sort of
14 date certain, and I
can't tell you what that is. I think
15 the scientists have to
tell us -- that says, "If what we are
16 doing is the not
adequate, the City of Los Angeles commits
17 to making whatever
additional changes are necessary to carry
18 out the purposes of
1631."
19 We face the reality
that our ratepayers are going to
20 bear the cost of
implementing all of the plans approved by
21 this Board, and we
have fiscal constraints. So in
22 developing our
restoration proposals we had to look at the
23 financial feasibility
of each of the restoration
24 alternatives and adopt
what we thought was the least costly
25 alternative that
satisfied the objectives of the Decision
CAPITOL REPORTERS (916)
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1 and that really is our
bottom line, what will satisfy 1631.
2 Given the results of
the ecosystem restoration that
3 has occurred over the
last few years, we think that our plan
4 will facilitate natural
restoration without requiring
5 construction of costly
new facilities; but if it doesn't, we
6 commit now to doing
whatever is necessary in the minds of
7 the scientists to
making this decision work and I think -- I
8 can't say any more than
that, that we want to move forward
9 with all the parties,
including your Board, who has final
10 jurisdiction, in a
partnership fashion to make 1631 work.
11 Thank you.
12 CHAIRMAN CAFFREY:
Thank you very much.
13 BOARD MEMBER FORSTER:
I'm sorry I was late. I didn't
14 know you were going to
be on in the beginning.
15 MS. GREEN: I try to be
punctual.
16 CHAIRMAN CAFFREY: Are
there any questions of --
17 BOARD MEMBER FORSTER:
Me, too.
18 CHAIRMAN CAFFREY: In
fairness to Ms. Forster, she has
19 been here since much
earlier this morning and we were
20 working on an issue
together earlier and she was just
21 straightening that out
before she got here. So we
22 appreciate that.
23 Let me just say, Ms.
Green, that we very much
24 appreciate your
comments and the spirit in which they are
25 made. We certainly do
want to bring this to completion and
CAPITOL REPORTERS (916)
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1 fruition for the
protection of the lake and its environment.
2 So thank you so much
for taking the time to be here.
3 We appreciate it.
4 MS. GREEN: And thank
you very much for allowing me to
5 speak.
6 CHAIRMAN CAFFREY: All
right. We will return, then,
7 to the completion of
the cross-examination of these three
8 panels. We had
completed everything except Board Member
9 questions.
10 Do any of the Board
Members wish to -- do any of the
11 Board Members wish to
question these three panels?
12 Mr. Del Piero.
13 BOARD MEMBER DEL
PIERO: Thank you, Mr. Chairman. I
14 have not more than two
questions, although they might be
15 compound. So at least
I'm being honest, guys. I'm telling
16 you up front.
17 CHAIRMAN CAFFREY:
Start the clock please,
18 Mr. Stubchaer. Just
kidding, Mark.
19 BOARD MEMBER DEL
PIERO: That's okay.
20 CHAIRMAN CAFFREY: He's
bigger than me.
21 BOARD MEMBER DEL
PIERO: That's fine. I get the same
22 amount of time Ms.
Scoonover gets, right?
23 ///
24 ///
25 ///
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1 ---oOo---
2 CROSS-EXAMINATION
3 BY BOARD MEMBERS:
4 BOARD MEMBER DEL PIERO:
Okay, Dr. Platts, help me to
5 understand about deep
scour in Lee Vining Creek and the
6 necessity given the
current condition of the creek of deep
7 scour.
8 DR. PLATTS: Why you
want deep scour --
9 BOARD MEMBER DEL PIERO:
Yeah.
10 DR. PLATTS: -- or what
will cause deep scour?
11 BOARD MEMBER DEL
PIERO: Why and what it's going to
12 achieve in Lee Vining
at this point.
13 DR. PLATTS: Well, deep
scour will achieve many
14 points. One is that it
will rebuild pools for Lee Vining
15 Creek. You have to
have scour in order to build pools. You
16 also have to have
scour in order to move sediment down the
17 channel, and you have
to have sediment going down the
18 channel in order to
move that sediment or vortex it over
19 into your floodplains
or even some of your lower terraces.
20 So scour needs to take
place first before a lot of the
21 rehab that we need
going on in Lee Vining Creek can take
22 place. If you didn't
have any scour and everything was just
23 sitting on site, you
wouldn't have any rebuilding going on.
24 BOARD MEMBER DEL
PIERO: And is scour a periodic
25 condition that's
necessary for the sustainment of the
CAPITOL REPORTERS (916)
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1 relative health of the
stream?
2 DR. PLATTS: Yes.
3 BOARD MEMBER DEL PIERO:
It is, okay. Both you and
4 Dr. Beschta indicated,
I believe -- and I know for sure
5 Dr. Beschta indicated.
You'll forgive me if my notes are
6 not complete in terms
of whether or not you said it, but
7 we'll stick with you
for the time being -- that sediment
8 passage for Lee Vining
Creek was necessary; is that correct?
9 DR. PLATTS: I think in
the long term it will be, yes.
10 BOARD MEMBER DEL
PIERO: And, Dr. Beschta, you agree
11 with that?
12 DR. BESCHTA: Yes, I
agree for long term it's
13 important.
14 BOARD MEMBER DEL
PIERO: Okay. And the sediment --
15 the impediment to
sediment passage on Lee Vining are the
16 diversions on Walker
and Parker? No? Yes? What's the --
17 DR. BESCHTA: The
impediment on Lee Vining?
18 BOARD MEMBER DEL
PIERO: I'm sorry, the impediment on
19 Lee Vining is what?
20 DR. BESCHTA: The
diversion structure.
21 DR. PLATTS: The
diversion structure
22 DR. BESCHTA: The pond
water upstream of the diversion
23 structure.
24 BOARD MEMBER DEL
PIERO: Okay. How much debris is --
25 or, pardon me,
sediment is backed up in back of that? Have
CAPITOL REPORTERS (916)
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1 we quantified it?
2 DR. PLATTS: I don't
know.
3 DR. BESCHTA: I was in
the field this summer and I
4 actually calculated a
volume, but I don't remember exactly
5 what those numbers are;
but, yes, it can be calculated and
6 that's part of trying
to figure out what should happen
7 there.
8 BOARD MEMBER DEL PIERO:
Okay. Part of the proposed
9 schedule for Rush Creek
is to divert water from where, what
10 other stream? It's
okay whoever wants to answer.
11 MR. ALLEN: That would
be Lee Vining Creek.
12 BOARD MEMBER DEL
PIERO: Lee Vining, okay. And that's
13 what, approximately a
hundred fifty cfs in -- is it wet
14 years or extreme
years?
15 MR. ALLEN: Yeah, the
amount of diversion would vary
16 depending on the year
type. Obviously the wetter years we
17 divert up to a hundred
fifty cfs and then as you move down
18 through the scale the
diversions would become less.
19 BOARD MEMBER DEL
PIERO: Now, I guess back to
20 Dr. Beschta and to Dr.
Platts. Explain to me what happens
21 when you take the peak
off of those flows during those wet
22 and extreme years to
divert into Rush Creek in relationship
23 to the issue of
necessity for scour in Lee Vining.
24 DR. PLATTS: Sir, the
peak would not be taken off.
25 BOARD MEMBER DEL
PIERO: Okay. It's seven days
CAPITOL REPORTERS (916)
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376
1 afterwards, right, when
you start diverting?
2 DR. PLATTS: Yes.
3 BOARD MEMBER DEL PIERO:
And forgive me for misstating
4 it, but explain to me
what that 150 cfs seven days after the
5 peak is going to do in
terms of the ongoing changes that
6 take place in
relationship to scouring in Lee Vining.
7 DR. PLATTS: That would
be a better question for
8 Dr. Beschta.
9 BOARD MEMBER DEL PIERO:
Okay.
10 DR. BESCHTA: The
sediment transport is occurring --
11 you're getting
sediment transport occurring during the
12 entire snow melt
hydrograph in general, okay, but it
13 increases in quantity,
if you will, as you increase the
14 amount of flow in the
system.
15 BOARD MEMBER DEL
PIERO: Slow down because I want to
16 make sure I understand
exactly how this operates.
17 Of the sediment
transport taking place, how much of it
18 is impaired at the
diversion point as opposed to how much of
19 it gets past the
diversion point and is going down Lee
20 Vining? Have you been
able to quantify that at this time?
21 DR. BESCHTA: I don't
have any numbers on that. I'm
22 sure some gets past,
but I don't know how much.
23 BOARD MEMBER DEL
PIERO: Not much, though?
24 DR. BESCHTA: Well, the
heavier stuff -- the larger
25 particles, the denser
particles would very quickly be
CAPITOL REPORTERS (916)
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377
1 trapped there. But if
there is less dense sediment and
2 finer particles, they
may continue to move through there.
3 BOARD MEMBER DEL PIERO:
But in relationship to the
4 issue of scour, the
vast majority, if not all, of the
5 material necessary to
affect the scour condition on Lee
6 Vining is trapped in
back of that diversion facility?
7 DR. BESCHTA: No.
8 BOARD MEMBER DEL PIERO:
"No," okay.
9 DR. BESCHTA: Well, when
you say scour on the main
10 stream, I'm thinking
further on down the stream system.
11 BOARD MEMBER DEL
PIERO: That's what I am, too.
12 DR. BESCHTA: Okay.
13 BOARD MEMBER DEL
PIERO: So you explain it to me.
14 DR. BESCHTA: There are
all kinds of local sediment
15 sources alongside that
stream. There's the existing
16 floodplain. There's
the bed material. So scour can take
17 place -- and it's not
simply a physical process, too.
18 If we remove the
vegetation, we'd have a nice physical
19 system, okay. We'd
have sediment and water and it would be
20 a very simple system;
but when you start putting the veg and
21 you start putting the
root masses in there and the woody
22 debris that falls in
and the branches, that creates local
23 hydraulic conditions
which can create scour at flows that
24 are much different or
much smaller than what you would just
25 purely predict from
just physics.
CAPITOL REPORTERS (916)
923-5447
378
1 BOARD MEMBER DEL PIERO:
Is that your experience now
2 in Lee Vining?
3 DR. BESCHTA: Yes, the
vegetation is beginning to play
4 a role.
5 BOARD MEMBER DEL PIERO:
No, no, that's not what I
6 asked.
7 DR. BESCHTA: Okay.
8 BOARD MEMBER DEL PIERO:
The question I asked: Is
9 that scour taking place
now as a result of large woody
10 debris and extensive
vegetation line?
11 DR. BESCHTA: There is
scour beginning to take
12 place --
13 BOARD MEMBER DEL
PIERO: Of substance?
14 DR. BESCHTA: Yes.
15 BOARD MEMBER DEL
PIERO: Okay, where? Which portion
16 of the lower end of
Lee Vining is that taking place?
17 DR. BESCHTA: Above the
County Road.
18 BOARD MEMBER DEL
PIERO: Okay. Let's add back in,
19 then, the necessity --
or Dr. Platts' suggestion that
20 there's a necessity
for amending either -- or diverting this
21 sediment into the
creek.
22 What's that going to
do to the system that you see
23 developing, Dr.
Beschta?
24 DR. BESCHTA: Well, we
-- the diversion becomes a
25 sediment trap, okay,
and if it's gonna be in position a long
CAPITOL REPORTERS (916)
923-5447
379
1 time, which I'm
expecting that the City of Los Angeles is
2 going to want to divert
water for a long time --
3 BOARD MEMBER DEL PIERO:
I think the plan assumes
4 that.
5 DR. BESCHTA: Yes.
6 BOARD MEMBER DEL PIERO:
And let's assume that as a
7 given.
8 DR. BESCHTA: Yeah. So
given that assumption then,
9 you will be continually
removing sediment out of the stream
10 at a given location
and that is not something we would
11 encourage anyone to do
if you wanted to maintain the natural
12 processes that are
occurring in that system.
13 So the recommendation
would be to make sure that that
14 sediment gets past the
point of diversion and continues on
15 down the stream and
moving in a timing and a magnitude that
16 is typical and
representative for that stream.
17 BOARD MEMBER DEL
PIERO: And do you -- is there a way
18 of integrating that
sediment movement --
19 DR. BESCHTA: Uh-huh.
20 BOARD MEMBER DEL
PIERO: -- whether it be through a
21 ditch, some kind of
pipe passage or excavation with those
22 storm events that
resulted or -- that would result or
23 normally and typically
be expected to result in scour?
24 DR. BESCHTA: Well,
that would be the hope. I mean,
25 ideally it would be
nice to move the sediment through
CAPITOL REPORTERS (916)
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380
1 exactly -- it comes
into the diversion at a point in time.
2 It would be nice to
allow it to continue right through at
3 that particular point
in time.
4 BOARD MEMBER DEL PIERO:
Is it physically possible to
5 design something at
that diversion point to achieve that?
6 DR. BESCHTA: I don't
know what the answer is. Now
7 you're asking an
engineering structures question and I would
8 be glad to address that
--
9 BOARD MEMBER DEL PIERO:
Does anyone on the panel know
10 that? Does anyone on
the panel know the answer to that
11 question?
12 Is it physically
possible at this point or has it been
13 discussed by the
Department of Water and Power in their
14 engineering staff that
you're aware of as to how to design
15 some kind of mechanism
to bypass the sediments in order to
16 achieve the sediment
transport to the lower end of Lee
17 Vining and at the same
time allow for scour to take place?
18 MR. KAVOUNAS: Mr. Del
Piero --
19 BOARD MEMBER DEL
PIERO: Yes, sir.
20 MR. KAVOUNAS: -- I do
recall some of our engineering
21 staff making
suggestions that the Lee Vining diversion
22 facility could be
modified. However, I would like to add to
23 that that we've had no
input from the scientists as to
24 whether that would
transport the sediment as desired.
25 BOARD MEMBER DEL
PIERO: What was the modification
CAPITOL REPORTERS (916)
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1 that the engineers were
discussing?
2 MR. KAVOUNAS: As I
recall -- and this is not a
3 hundred percent clear
recall -- but as I recall, it would
4 entail building some
kind of a wall that would bisect the
5 intake structure. And
what that would allow is for the most
6 part of the year the
flow to continue straight down Lee
7 Vining and it would
have some sort of a gate, perhaps on the
8 upstream end of it,
that would allow flow to be taken in to
9 the southern portion of
that pool that could then be
10 diverted into the
conduit and allow the Department of Water
11 and Power to conduct
either the augmentation or export
12 operations. If that's
not clear, I could try to sketch it.
13 BOARD MEMBER DEL
PIERO: No, that's clear.
14 MR. KAVOUNAS: Okay.
15 BOARD MEMBER DEL
PIERO: I understand that.
16 CHAIRMAN CAFFREY:
Anything else, Mr. Del Piero?
17 MR. KAVOUNAS: May I
add to that?
18 BOARD MEMBER DEL
PIERO: Sure.
19 MR. KAVOUNAS: I would
like to repeat what I said
20 yesterday in answer to
-- I believe it was Jim Canaday's
21 question. The concept
of the Iowa vanes that were brought
22 forth by a consultant
to the Mono Lake Committee is one that
23 we have not looked at.
24 BOARD MEMBER DEL
PIERO: Don't feel bad. I'm the
25 lawyer and I didn't
understand it at all. That remains to
CAPITOL REPORTERS (916)
923-5447
382
1 be seen.
2 MR. KAVOUNAS: But that
seems to be yet another way
3 that something could be
engineered to pass sediment.
4 BOARD MEMBER DEL PIERO:
Okay. A couple other things
5 in terms of a question
for Dr. Beschta.
6 This is the second
question, Mr. Chairman.
7 CHAIRMAN CAFFREY: This
is the second one?
8 BOARD MEMBER DEL PIERO:
This is the second question.
9 CHAIRMAN CAFFREY: Okay.
Sometimes I don't know how
10 they break down.
11 BOARD MEMBER DEL
PIERO: The first one was scour and
12 sediment on Lee
Vining. There is no method.
13 CHAIRMAN CAFFREY:
Please, Mr. Del Piero.
14 BOARD MEMBER DEL
PIERO: Okay. I want to talk about
15 large woody debris,
Dr. Beschta.
16 DR. BESCHTA: Yes.
17 BOARD MEMBER DEL
PIERO: We heard a variety of
18 responses yesterday to
questions raised by Mr. Canaday and I
19 just want to -- he
asked virtually all the questions I was
20 interested in hearing
answered and so I'm not going to
21 belabor this, but I
wanted to ask you a couple questions
22 maybe for the record
and maybe for my own edification in
23 terms of understanding
how the system worked in Rush Creek
24 prior to 1941.
25 During the hearings
that took place in 1993 and 1994 a
CAPITOL REPORTERS (916)
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1 number of exhibits were
demonstrative of the fact that in
2 the lower reaches of
Rush Creek there was a significant
3 presence of Jeffrey
pine and some of those remnants actually
4 still remain. Every
once in a while you'll see -- even in
5 the most recent
pictures that were demonstrated -- in fact,
6 there might be one or
two sticking up, I don't know, in the
7 background in some of
those pictures that were shown
8 yesterday.
9 Did the presence of
those pine trees that are
10 substantially larger
than the willows and the rest of the
11 normal riparian
vegetation that is predominant now or is
12 attempting to come
back now, did the presence of that -- of
13 that particular type
of pine tree lend itself to the large
14 woody debris that we
all seem to talk about in terms of
15 habitat?
16 DR. BESCHTA: The
Jeffrey pine, yes.
17 BOARD MEMBER DEL
PIERO: It did?
18 DR. BESCHTA: Yes.
19 BOARD MEMBER DEL
PIERO: I did not hear yesterday,
20 although we talked a
whole lot about rushes and willows and
21 the normal, typical
wetlands-type plant communities that
22 result through
application of water pretty immediately.
23 No one talked to me
about -- other than some kind of
24 mechanical and
artificial installation or opportunistic
25 installation, if you
will, of woody debris dependent upon
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1 whether or not Caltrans
decided to cut a tree down
2 correctly, whether or
not there was any thought given by any
3 of the scientific
panels in terms of the ultimate
4 restoration of that
pine forest along particularly the lower
5 reaches of Rush Creek
in terms of ongoing contribution to
6 the ecosystem of large
woody debris and it was sort of -- I
7 couldn't figure out why
we talked about it. So that's why
8 I'm asking the
question.
9 Did anybody ever talk
about it in the last two and a
10 half years while we
were waiting for the weather?
11 DR. BESCHTA: Yes.
12 BOARD MEMBER DEL
PIERO: They did?
13 DR. BESCHTA: Yes,
there have been discussions.
14 BOARD MEMBER DEL
PIERO: Do you want to share with me
15 what the current
thought is in terms of -- at least the Los
16 Angeles Department of
Water and Power in terms of
17 contributing large
woody debris to a system that everybody
18 agrees needs it?
19 DR. BESCHTA: Well, I
can give you my opinion and then
20 there probably will be
others.
21 BOARD MEMBER DEL
PIERO: I'll be happy to hear yours.
22 DR. BESCHTA: Large
woody debris has been an important
23 issue in stream
ecology at least for the last 15 or 20
24 years. The major
emphasis on that research has taken place
25 in the Pacific
Northwest. There are a lot of articles that
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1 have been published in
that area, and that issue now is
2 becoming more widely
recognized in other places.
3 I think we have to be a
bit careful when we move over
4 into the more arid land
systems; and even though Jeffrey
5 pine was present, I'm
going to suggest that the timing is
6 different than what we
think about when we talk about
7 putting wood into the
system today. I would suggest that
8 Jeffrey pine played a
role ultimately in the ecology of
9 these stream systems;
but it was not a major player and it's
10 after the rest of the
pieces are in place that it becomes
11 important, not before
the rest of the pieces are in place.
12 So if you let me
recover the system the way I would
13 love to see Rush Creek
with Jeffrey pine forest come on
14 line, would be first
to get those species such as the
15 willows and the
cottonwoods, the ones that can occupy the
16 barren sites or
initiate their growth on these sites begin
17 to tie down that
channel and then ultimately grow the
18 Jeffrey pine and where
it falls into the stream it will
19 create some wonderful
habitat.
20 Now, if we reverse
that process, we load the stream
21 with large wood prior
to the recovery of the willows and the
22 cottonwoods, we've got
a different ball game. And I have
23 seen so many -- I've
seen lot of projects, as well as other
24 people sitting at this
table, of where we've attempted to do
25 that, where we've
loaded the stream with large wood prior to
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1 the other vegetation
being in place and it's created --
2 ultimately it's created
major disaster.
3 BOARD MEMBER DEL PIERO:
I'm not advocating that.
4 DR. BESCHTA: Okay.
5 BOARD MEMBER DEL PIERO:
I'm trying to understand from
6 the standpoint of
long-term restoration of the ecosystem,
7 which was the charge
this Board gave to the Los Angeles
8 Department of Water and
Power, where the Jeffrey pine card
9 gets played in terms of
the process, because I've gone
10 through all this.
11 Can someone point out
to me the year when there's some
12 kind of affirmative
effort made to -- because that's not the
13 kind of thing that's
going to get transported necessarily by
14 high flows.
15 DR. BESCHTA: That's
right, that's right.
16 BOARD MEMBER DEL
PIERO: I mean, that's not how they
17 grow.
18 DR. BESCHTA: That card
is already being played,
19 though, because there
is establishment of Jeffrey pine and
20 Lodgepole out there.
And Dr. Kauffman can tell you perhaps
21 the number of plants
down to, you know, whatever but --
22 BOARD MEMBER DEL
PIERO: Have we quantified or is
23 there an ongoing
effort in terms of Los Angeles Department
24 of Water and Power to
present evidence to this Board in
25 terms of
quantification of reproduction of that?
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1 DR. BESCHTA: Left me
shift, if I can, the microphone.
2 BOARD MEMBER DEL PIERO:
Okay.
3 DR. KAUFFMAN: If you
look on page six of my
4 testimony, the last
sentence -- page six of my testimony
5 in -- I don't know what
number, DWP-24 or 25.
6 CHAIRMAN CAFFREY:
"28."
7 BOARD MEMBER DEL PIERO:
Hold on for one second.
8 DR. KAUFFMAN: Yes.
9 BOARD MEMBER DEL PIERO:
That's the white book?
10 DR. KAUFFMAN: Yes --
no, no, it's the testimony on
11 the Restoration Plan
R-DWP-28.
12 BOARD MEMBER DEL
PIERO: Okay.
13 DR. KAUFFMAN: And this
is based on my walking the
14 creek on several
occasions and basically looking for and
15 just acknowledging --
just to see what is the situation of
16 the recovery of the
conifer component on the ecosystem.
17 And basically I stated
that "Fortunately, naturally
18 established seedlings
of conifers are common..." both the
19 Lodgepole pine and
Jeffrey pine, it's not just Jeffrey pine
20 "...as are
tree-like willows."
21 Again, as one walks
the creek, you see that there
22 are -- it's safe to
say hundreds of small conifers that are
23 establishing within
the riparian zone today.
24 BOARD MEMBER DEL
PIERO: Which reaches?
25 DR. KAUFFMAN: The
entire area from, I would say,
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1 Reach 2 to the --
probably County Road.
2 BOARD MEMBER DEL PIERO:
Reach 2?
3 DR. KAUFFMAN: From
beginning at Reach 2 high up and
4 through the County
Road.
5 BOARD MEMBER DEL PIERO:
Where do the seedlings come
6 from up there?
7 DR. KAUFFMAN: There's a
large number of established
8 conifers at the high
end of Rush Creek in the canyon area
9 just above the --
10 BOARD MEMBER DEL
PIERO: What are we looking at here,
11 gentlemen?
12 DR. KAUFFMAN: This is
low.
13 BOARD MEMBER DEL
PIERO: Okay. Let's go -- excuse me,
14 Mr. Chairman.
15 CHAIRMAN CAFFREY:
Would you use the mike, Mr. Del
16 Piero.
17 BOARD MEMBER DEL
PIERO: Sure. You'll forgive me,
18 Mr. Chairman, but it's
an issue that -- he indicated there
19 was one sentence in
his presentation and I didn't find
20 anything else anywhere
else. So unless we're assuming that
21 someone's going to be
out there mutilating this system for
22 large woody debris
from now until my hairline comes back,
23 something else has to
happen. No conifers here.
24 DR. KAUFFMAN: No.
25 BOARD MEMBER DEL
PIERO: Okay. Let me see the rest of
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1 the reaches here. I'm
assuming that short of the presence
2 of a mature conifer you
aren't going to have an immature
3 conifer; is that
correct? Not likely anyway?
4 DR. KAUFFMAN: I'm
sorry?
5 BOARD MEMBER DEL PIERO:
Short of the presence of a
6 pine tree that's going
to drop seeds you aren't going to
7 have a pine tree
growing out there; is that more or less
8 correct?
9 DR. KAUFFMAN: One of
the things that's apparent by
10 anybody walking the
creek is that there's a number of pine
11 cones that are
deposited by high water -- are transported by
12 high water carrying --
presumably carrying the seeds. I
13 don't think that seed
dispersal is a problem.
14 BOARD MEMBER DEL
PIERO: There's not a seed dispersal
15 problem if there's
seeds to disperse.
16 DR. KAUFFMAN: Exactly.
17 BOARD MEMBER DEL
PIERO: Yeah.
18 DR. KAUFFMAN: And
there are seeds to disperse.
19 BOARD MEMBER DEL
PIERO: Where?
20 DR. KAUFFMAN:
Beginning --
21 BOARD MEMBER DEL
PIERO: Where?
22 DR. KAUFFMAN: Let me
show you -- I can show you on
23 the aerial photo where
we've mapped the Jeffrey pine.
24 BOARD MEMBER DEL
PIERO: Okay.
25 CHAIRMAN CAFFREY:
Could we have some clarification on
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1 what it is we're doing?
That sort of developed into a
2 little side meeting.
Let's work through the Chair.
3 BOARD MEMBER DEL PIERO:
What I'm asking for,
4 Mr. Chairman, is
demonstration of the existence of whatever
5 remnant conifer forest
-- and I'm using that in the most
6 generous term because
there's never been a forest out there
7 as long as I've been
looking around. There's one or two
8 trees left over from
about 30 or 40 years ago that might
9 have been able to
survive. The vast majority of pine
10 forest -- Jeffrey and
Lodgepole, predominantly Jeffrey --
11 were wiped out when
these streams were dewatered.
12 DR. KAUFFMAN: Yes,
that would be correct, your
13 statement.
14 BOARD MEMBER DEL
PIERO: And they were -- based on
15 testimony given three
years ago -- and I assume nothing's
16 changed, the testimony
was given by both LADWP and the
17 National Audubon
Society, that was singularly the source of
18 large woody debris for
Rush Creek.
19 We've heard repeated
testimony on this, both written
20 and oral, about the
necessity of that and short of a
21 completely artificial
system where you have people hauling
22 woody debris in -- and
we've heard that hauling woody debris
23 in is a bad idea --
you have to get woody debris into the
24 system somehow and the
only way to do it is normally to grow
25 it naturally, and
other than one line there's no reference
CAPITOL REPORTERS (916)
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1 to that in terms of the
Restoration Plan.
2 CHAIRMAN CAFFREY: So
the question is succinctly
3 where's the woody
debris gonna come from?
4 BOARD MEMBER DEL PIERO:
Yes.
5 CHAIRMAN CAFFREY: Is
that what we're talking about
6 here? Is there an
answer to that?
7 DR. KAUFFMAN: Yeah.
Again, the sources of woody
8 debris would come from
those plants that can become -- that
9 can grow to a tree size
and there's four or five species out
10 there: Jeffrey pine,
Lodgepole pine, Black cottonwood and
11 Salix lucida, Yellow
willow.
12 BOARD MEMBER DEL
PIERO: I'm focusing just to Jeffrey
13 pine and Lodgepole.
14 DR. KAUFFMAN: Okay,
yeah, and as of 1996 it's been
15 based upon our math
and we see -- and the vast majority is
16 in the upper reaches
of Rush Creek. If you'll look --
17 again, it is in my
testimony that there are approximately
18 1,902 square meters of
area occupied by -- that would be
19 probably four acres --
of area occupied by -- no, excuse me,
20 not four acres. What
would that be? Point one nine --
21 BOARD MEMBER DEL
PIERO: How many square meters?
22 DR. KAUFFMAN: 1,902.
It's nineteen -- the "Riparian
23 Plant Communities on
Rush Creek 1996" this -- it's in my
24 testimony.
25 BOARD MEMBER DEL
PIERO: It's ten by a hundred foot --
CAPITOL REPORTERS (916)
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1 pardon me, ten by a
hundred meter plot; is that correct?
2 CHAIRMAN CAFFREY: Let's
get as clear an answer as we
3 can here. The question
is: What's the source of the woody
4 debris with respect
particularly to Jeffrey pine; is that
5 right, Mr. Del Piero?
6 BOARD MEMBER DEL PIERO:
Yes. I'll settle for
7 Lodgepole, too.
8 CHAIRMAN CAFFREY: Sure.
We just need a succinct
9 answer for the record
so we can go on.
10 DR. KAUFFMAN: Well,
the bottom line is my statement
11 was that there are
conifer seedlings established on the
12 riparian zone at
present and this is -- we're looking at in
13 the long term these
plants will grow up, die, fall into the
14 creek.
15 BOARD MEMBER DEL
PIERO: Mr. Chairman --
16 MR. BIRMINGHAM: Mr.
Chairman.
17 CHAIRMAN CAFFREY: Mr.
Birmingham.
18 MR. BIRMINGHAM: I hate
to interrupt Mr. Del Piero's
19 questions, but I'd
like to just take a moment and point out
20 that the Restoration
Plan proposed by DWP contains a
21 provision that on
areas that are not recovered naturally
22 Jeffrey pine will be
artificially planted.
23 BOARD MEMBER DEL
PIERO: When?
24 MR. BIRMINGHAM: I
think, as Dr. Beschta indicated and
25 I believe Dr. Trush
may have a view on this as well, when we
CAPITOL REPORTERS (916)
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1 are able to determine
where the areas that will not be
2 occupied by -- well, I
shouldn't testify. I'd ask them to
3 answer that question.
4 MR. KAVOUNAS: If I may
clarify --
5 BOARD MEMBER DEL PIERO:
I don't want to belabor the
6 point.
7 CHAIRMAN CAFFREY: I
don't believe Mr. Birmingham has
8 taken the oath.
9 BOARD MEMBER DEL PIERO:
Hey, I have no reason to
10 question Mr.
Birmingham's ability and familiarity with
11 various of the
exhibits by any stretch of the imagination.
12 CHAIRMAN CAFFREY: By
the way, Mr. Birmingham, you're
13 welcome to take the
oath. I didn't mean to say that -- if
14 you wish to appear as
a witness, you're more than welcome.
15 MR. BIRMINGHAM:
Absolutely not.
16 BOARD MEMBER DEL
PIERO: If I can get an answer to the
17 question, Mr.
Chairman. I don't want to belabor it.
18 CHAIRMAN CAFFREY: Let
me remind the Board Members
19 that the answer is the
answer whether we like it or not.
20 The witnesses do the
best they can.
21 Is there an answer
specifically with regard to the
22 Jeffrey pine
"yes" or "no"? If there is, please
give it to
23 us.
24 MR. KAVOUNAS: Yes,
there is an answer. There's an
25 answer, as Dr.
Kauffman has stated, as to the existing
CAPITOL REPORTERS (916)
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1 Jeffrey pine. And as
far as the planting that the
2 Department is proposing
in its plan, that's listed on page
3 74. And as far as the
schedule, the plan is fairly clear
4 the planting will begin
during the first full field season
5 after the State Board
approves this plan. That includes
6 planting of Jeffrey
pine.
7 BOARD MEMBER DEL PIERO:
I didn't find that, but I'll
8 look for it. Thank you.
9 CHAIRMAN CAFFREY: All
right. Thank you, sir. Thank
10 you, Mr. Del Piero.
11 Any questions from the
other Board Members? All
12 right, nothing from
the Board Members.
13 That completes the
Board Member cross-examination of
14 this panel. Now we
will go to redirect, if any, and I
15 suspect there is some.
16 MR. BIRMINGHAM: Well,
actually, there is a little.
17 CHAIRMAN CAFFREY: Good
morning again, Mr. Birmingham.
18 MR. BIRMINGHAM: Good
morning.
19 CHAIRMAN CAFFREY: You
may begin your redirect, sir.
20 MR. BIRMINGHAM: Unlike
Mr. Dodge and unlike
21 Mr. Del Piero, I won't
misrepresent the number of questions
22 that I'm going to ask
you because I know it will change as I
23 ask it.
24 CHAIRMAN CAFFREY: Do
you have an idea of how much
25 time you need, sir,
just so we can plan as we go here?
CAPITOL REPORTERS (916)
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1 MR. BIRMINGHAM:
Forty-five minutes.
2 CHAIRMAN CAFFREY: All
right.
3 ---oOo---
4 REDIRECT EXAMINATION
5 BY LOS ANGELES
DEPARTMENT OF WATER AND POWER
6 MR. BIRMINGHAM: Mr.
Hunter and Dr. Trush, yesterday
7 Mr. Roos-Collins was
asking a series of questions concerning
8 when we would be able
to conclude that restoration was
9 completed, and at the
time he was asking those questions you
10 were not on the panel.
11 Do either of you have
an opinion as to whether or not
12 we can say with
certainty when restoration will have been
13 completed?
14 MR. HUNTER: I guess my
view on that is that when the
15 flows are implemented,
the flows that are in the plan, it is
16 our hope that those
flows will create the processes that
17 will start the
restoration of those streams. At that
18 immediate -- as to
when that -- when the restoration is
19 completed, I don't
have a view. These stream channels
20 naturally evolve,
change on an annual basis, and how you
21 determine when they've
reached restoration is beyond me.
22 MR. BIRMINGHAM: Dr.
Trush, do you have a view on that
23 question?
24 DR. TRUSH: No, I don't
have a specific time. I guess
25 I would look at a
turning point is when we reach maturity of
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1 cottonwoods on the
present day floodplain, say in the 20,
2 25-year category. We're
going to see a very -- a large
3 forest, something
that's going to be to a person traveling
4 along noticing a very
different kind of system if they were
5 there 25 years earlier
versus ten years from the -- over a
6 ten year we would
notice some green shrubs, but once you
7 reach the maturity of
the cottonwood forest I think you'll
8 start to reach some
kind of stability.
9 It will still keep
changing. We all talk about
10 fluctuation, but I
think the maturity of the cottonwoods
11 will be a mark in the
evolution of it; but I can't give an
12 exact date of when
we're going to hit an equilibrium stream
13 channel.
14 MR. BIRMINGHAM: Dr.
Platts, yesterday you stated that
15 you would not
recommend that fish passage be created at
16 DWP's Walker, Parker
and Lee Vining Creek diversion
17 facilities; is that
correct?
18 DR. PLATTS: No, just
Walker and Parker.
19 MR. BIRMINGHAM: In
your opinion, do the fish --
20 excuse me. Do the fish
passage barriers that are created at
21 Walker and Parker by
DWP's diversion facilities limit the
22 number of brown trout
in those streams?
23 DR. PLATTS: In my
opinion it does not.
24 MR. BIRMINGHAM: And on
what do you base that opinion?
25 DR. PLATTS: I base it
on the fact that there are
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1 spawning and rearing
areas both above and below these
2 diversions and also
looking at some of the data collected by
3 California Department
of Fish and Game, by Dr. Mesick,
4 looking at that
information above and below diversions to
5 see if I couldn't come
up with something that would show
6 that there was a
problem.
7 The database available
I could not show that there is
8 a problem -- the fish
passage blocks are causing a problem
9 with the fish
population.
10 MR. BIRMINGHAM: Mr.
Hunter, do you have an opinion on
11 that subject?
12 MR. HUNTER: I would
agree with Dr. Platts.
13 MR. BIRMINGHAM: That
the diversion facilities do not
14 create a limiting
factor for brown trout populations in the
15 streams?
16 MR. HUNTER: Correct.
17 MR. BIRMINGHAM: Dr.
Trush, do you have a view on that
18 question?
19 DR. TRUSH: Yeah, Lee
Vining I question -- Lee Vining
20 I wouldn't be so sure
of as far as fish passage, but I have
21 no problems with
Parker and Walker and I spent a large
22 percent of my time up
in Arcata trying to get fish passage
23 culverts in the timber
industry. That's a big passion of
24 mine.
25 So for me to say fish
passage isn't that big a deal I
CAPITOL REPORTERS (916)
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1 don't think on Parker
and Walker, I'm wondering what I'm
2 saying; but that's what
I would have to do as a scientist
3 from the evidence that
I've seen and the research that I've
4 seen.
5 MR. BIRMINGHAM: That
evidence would include the data
6 that Dr. Platts
referred to?
7 DR. TRUSH: Yes. In
fact, the two culverts I'd be
8 most worried about are
the ones under 395. They really
9 split up the main stem
of both creeks and if you're going to
10 have any significant
migration, I could see it happening at
11 those two. Those two
aren't very friendly to fish. The
12 baffled one is great
if you have adult steelhead going up,
13 but I'm not so sure
about smaller cutthroat.
14 CHAIRMAN CAFFREY: Mr.
Del Piero, are you raising your
15 hand?
16 BOARD MEMBER DEL
PIERO: Yes, I have a question.
17 I don't recall, is
there a recommendation in the
18 Restoration Plan that
this Board seek out assistance from
19 Caltrans in terms of
remedying that impediment?
20 CHAIRMAN CAFFREY: This
is a clarifying question.
21 Briefly, sir. We'll
delay the start once you get
22 back. Thank you for
reminding us.
23 BOARD MEMBER DEL
PIERO: Yes, Mr. Tillemans.
24 MR. TILLEMANS: Yes,
we've addressed this and I can
25 find the letter in my
pile over here; but we've called
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1 Caltrans, written them
in a letter when they do their
2 highway widening
projects to take into consideration future
3 flows that will be
coming down from there and --
4 BOARD MEMBER DEL PIERO:
Mr. Canaday, do you have a
5 copy of the letter?
6 MR. CANADAY: I'm not
sure what letter he's referring
7 to, but I do know that
LADWP has made conversations with
8 Caltrans and informed
them of the need to take that into
9 consideration.
10 BOARD MEMBER DEL
PIERO: There's no reference to it in
11 the current document?
12 MR. BIRMINGHAM: I
believe there is a copy of the
13 letter in the appendix
to the Restoration Plan.
14 CHAIRMAN CAFFREY: All
right. Please proceed,
15 Mr. Birmingham, and
we'll delay the start of the clock.
16 MR. BIRMINGHAM: Thank
you.
17 Dr. Platts, are you
familiar with the historic
18 conditions of Rush
Creek? And when I say "historic," I mean
19 the conditions of Rush
Creek prior to the diversions of
20 water for export by
the Department of Water and Power.
21 DR. PLATTS:
Personally, no. The only thing I can
22 draw on is what I've
read or what I've been told or what I
23 can deduct out of
things that went on at that time.
24 MR. BIRMINGHAM: I
would like to read to you a passage
25 from NAS&MLC
Exhibit 1-Y, which is the testimony of E. Woody
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1 Trihey regarding stream
restoration submitted by the Mono
2 Lake Committee and
National Audubon Society in the first set
3 of hearings related to
this matter, and I'd refer you to the
4 last page of the
photocopy that I've given you and this
5 testimony appears to
relate to the conditions of Rush Creek
6 historical; is that
correct?
7 DR. PLATTS: That's
correct.
8 MR. BIRMINGHAM: Looking
at page 20, paragraph 24 from
9 NAS&MLC 1-Y it
states (reading) the mile long reach
10 immediately above this
canyon had been modified to function
11 as a supply channel
for irrigation ditches. It was a
12 long -- excuse me. It
was a low gradient engineered reach
13 generally devoid of
channel structure or instream objects
14 that would have
provided good cover for fish. However, it
15 was lined with dense
riparian vegetation. This channel
16 reach was replaced
with the Mono Ditch when Grant Lake Dam
17 was enlarged in
1939-40.
18 Is it your
understanding that that testimony refers to
19 what we have called in
these proceedings Reach 1 of Rush
20 Creek?
21 DR. PLATTS: Yes.
22 MR. BIRMINGHAM: Is it
your understanding -- let me
23 restate the question.
From your review of the historical
24 information concerning
Rush Creek, do you agree with the
25 characterization
presented by Mr. Trihey in NAS&MLC 1-Y?
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1 DR. PLATTS: Yes, I do.
2 MR. BIRMINGHAM: Do you
have an opinion concerning
3 whether or not the
conditions that existed in Reach 1 would
4 have provided good
habitat for brown trout?
5 DR. PLATTS: It would
not have provided good habitat,
6 but there were brown
trout available that were occupying
7 that reach, but it
would not be good habitat.
8 MR. BIRMINGHAM: Are you
familiar with the suggestion
9 by Dr. Platts -- excuse
me, by Dr. Beschta in his testimony
10 that Reach 1 could be
rewatered by diverting a few cfs from
11 the Mono Return Ditch
and allowing that water to back up
12 into Reach 1?
13 DR. PLATTS: Yes, I'm
familiar with that.
14 MR. BIRMINGHAM: Would
that process recreate the
15 conditions that
existed in that reach of stream in 1941?
16 DR. PLATTS: Yes, they
would be similar.
17 MR. BIRMINGHAM: In
connection with the hearings which
18 resulted in D-1631 you
submitted a testimony; is that
19 correct?
20 DR. PLATTS: Could you
clarify that?
21 MR. BIRMINGHAM: Yes.
I'd like to show you what I
22 believe was testimony
that you submitted with Dr. Donald
23 Chapman concerning the
historical conditions of Rush Creek
24 that was presented
during the hearings which resulted in
25 D-1631. Do you recall
that?
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1 DR. PLATTS: Yes, I do.
2 MR. BIRMINGHAM: Now, in
the preparation of that
3 testimony you reviewed
all of the historical data that you
4 could find pertaining
to the conditions of Rush Creek; is
5 that correct?
6 DR. PLATTS: Yes, I did.
7 MR. BIRMINGHAM: What --
in 1941 prior to the
8 diversions by DWP how
would you describe the condition of
9 the stream between,
say, the point at which the A-Ditch
10 started and Highway
395?
11 DR. PLATTS: It was a
highly diverted stream. It was
12 heavily grazed by
livestock. For months on end the stream
13 would have zero flow
above 395. It was a highly stressed
14 stretch of stream. I
would say that the fish population in
15 that area was having a
hard time surviving. It wasn't -- it
16 was not good
conditions. I think that's typical of other
17 streams you see in the
Western United States that are
18 heavily grazed and
very heavily diverted.
19 MR. BIRMINGHAM: In
fact, as part of your testimony
20 that was submitted in
1993 you had a Figure 6; is that
21 correct?
22 DR. PLATTS: Yes.
23 MR. BIRMINGHAM: And
what was Figure 6?
24 DR. PLATTS: It's a
photograph of Rush Creek looking
25 upstream in the
vicinity of the old Highway 395. It was
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1 taken in 1939.
2 MR. DODGE: Mr.
Chairman, I wonder --
3 CHAIRMAN CAFFREY: Mr.
Dodge.
4 MR. DODGE: -- what's
really the purpose of this
5 hearing to revisit all
of the work we did in 1993 on the
6 historic conditions
pre-diversions, which seems to me what
7 this testimony's all
about. Those matters have already been
8 resolved.
9 MR. BIRMINGHAM: Indeed,
they have been resolved and
10 the relevance of this
question -- or line of questions will
11 become immediate -- or
known immediately with my next
12 question.
13 CHAIRMAN CAFFREY: All
right. Please proceed and get
14 to the point as
quickly as you can, Mr. Birmingham.
15 MR. BIRMINGHAM: I
will, but before I do that I'd like
16 to pass this
photograph Figure 6 from the direct testimony
17 of Dr. Platts to the
Members of the Board.
18 Dr. Platts, have you
heard any of the parties to these
19 proceedings propose
that we restore the conditions of Rush
20 Creek that are
depicted in Figure 6?
21 DR. PLATTS: No.
22 MR. BIRMINGHAM: I'd
like to go back and talk a moment
23 about Reach 1, and I'd
like to ask this question of
24 Dr. Platts, Mr. Hunter
--
25 MS. CAHILL: Mr.
Birmingham, could we see Figure 6?
CAPITOL REPORTERS (916)
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1 MR. BIRMINGHAM:
Certainly.
2 CHAIRMAN CAFFREY: Is
this the only copy we've got?
3 DR. BESCHTA: Here's a
loose one if I can get it back.
4 MR. BIRMINGHAM: Dr.
Platts, Mr. Hunter and Dr. Trush,
5 I'm going to ask you to
assume that in order to construct an
6 outlet facility from
Grant Lake Dam into Reach 1 it would
7 cost approximately 10.8
to 14 million dollars.
8 Do either of you have
an opinion concerning whether it
9 would be reasonable to
expend that money to construct an
10 outlet facility in
order to rewater Reach 1?
11 Dr. Platts, do you
have an opinion on that?
12 MR. DODGE: Objection,
it calls for an opinion on a
13 question of law. I
mean, that's really the ultimate
14 decision facing this
Board.
15 CHAIRMAN CAFFREY: Help
me out with this, Mr. Frink.
16 MR. FRINK: I believe
any of the scientists could
17 offer an opinion, if
they have one, on how reasonable a
18 proposal it would be
from their standpoint as scientists.
19 CHAIRMAN CAFFREY: And,
of course, it goes to the
20 Board to give weight
of evidence.
21 Mr. Del Piero?
22 BOARD MEMBER DEL
PIERO: No comment, Mr. Chairman.
23 CHAIRMAN CAFFREY: Go
ahead and answer the question.
24 DR. PLATTS: I would
consider it unreasonable if the
25 sole purpose was just
for rewatering Reach 1.
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1 MR. BIRMINGHAM: Mr.
Hunter, do you have an opinion on
2 that?
3 MR. HUNTER: If, as it
appears, the flows that we
4 think are required in
order to set restoration and progress
5 can be achieved without
spending that money, I would not
6 think it would be
necessary to spend that money.
7 DR. TRUSH: I agree with
Chris.
8 MR. BIRMINGHAM:
Yesterday Mr. Tillemans expressed an
9 opinion that at least
with respect to some reaches of Rush
10 Creek the restoration
proposal that's been made by the
11 Department of Water
and Power will result in a stream which
12 is in better condition
than existed in 1941 when DWP began
13 its diversions.
14 Mr. Hunter, do you
have an opinion concerning the
15 accuracy of that
statement?
16 MR. HUNTER: I'm really
not familiar with what the
17 condition of the creek
was pre '41. There are a lot of
18 streams in the Western
United States that are subjected to
19 heavy grazing and
heavy diversion this stream will be better
20 than -- these streams
will be better than.
21 MR. BIRMINGHAM: Dr.
Trush, do you have an opinion on
22 that?
23 DR. TRUSH: Yes. Again,
for what reach are we talking
24 about?
25 MR. BIRMINGHAM: Well,
let's focus on the reach
CAPITOL REPORTERS (916)
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1 between the old A-Ditch
and Highway 395 of Rush Creek.
2 DR. TRUSH: Based on the
photos and looking at
3 riparian recovery I'd
say "yeah" you would improve it over
4 pre '41. Over places in
the channel I'm not so sure.
5 MR. BIRMINGHAM: Now,
Dr. Trush, I'd like to explore
6 for a moment some of
the opinions that you've expressed with
7 respect to these
proceedings.
8 You've talked about
pre-disturbance conditions; is
9 that correct?
10 DR. TRUSH: Yes.
11 MR. BIRMINGHAM: What
is your concept of
12 "pre-disturbance
conditions"?
13 DR. TRUSH: Before the
influence of white -- we always
14 say Euro-American man.
15 MR. BIRMINGHAM: So the
conditions that you're talking
16 about are conditions
that would not be influenced by the
17 operations of Southern
California Edison or historic
18 irrigation practices?
19 DR. TRUSH: Ideally,
yes.
20 MR. BIRMINGHAM: Dr.
Platts, yesterday you expressed a
21 view that with respect
to screening DWP's irrigation
22 diversions off of
Walker and Parker at this point you didn't
23 think that was
warranted; is that correct?
24 DR. PLATTS: That's
correct.
25 MR. BIRMINGHAM: And
you stated, I believe, that it
CAPITOL REPORTERS (916)
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1 was your understanding
that no irrigation of -- from Walker
2 and Parker would occur
below the Lee Vining conduit.
3 Is that your
understanding?
4 DR. PLATTS: That was
the way I was informed.
5 MR. BIRMINGHAM: Then
Mr. Dodge asked you a question
6 whether you were aware
that irrigation had occurred in 1996
7 and you responded
"no" you were not aware of that; is that
8 correct?
9 DR. PLATTS: I was not.
10 MR. BIRMINGHAM: Mr.
Tillemans, you're in the Mono
11 Basin frequently; is
that correct?
12 MR. TILLEMANS: Yes.
13 MR. BIRMINGHAM: To
your knowledge, were there any
14 irrigation diversions
that occurred off of Walker and Parker
15 below the conduit in
1996?
16 MR. TILLEMANS: Below
the conduit off of Walker and
17 Parker there was an
incident on Parker this past year. I
18 immediately went up
there to investigate. There was a
19 debris jam in the
channel and water had jumped out of the
20 channel. We have no
operational head gates for irrigation
21 because, if you recall
previously, due to Judge Finney's
22 order on that we had
to plug our irrigation diversions. So
23 we have no operational
head gates and I immediately -- and I
24 also reaffirmed with
the lessee at that point in time
25 there's absolutely no
irrigation to be going on, and I was
CAPITOL REPORTERS (916)
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1 told that there was a
debris jam in the stream and the water
2 had jumped out of the
low spot down below.
3 MR. BIRMINGHAM: Did you
observe that debris jam in
4 the stream?
5 MR. TILLEMANS: No, I
didn't.
6 MR. BIRMINGHAM: But, to
your knowledge, there were no
7 irrigation diversions
out of Walker and Parker in 1996?
8 MR. TILLEMANS: No,
DWP's operations do not provide
9 for that.
10 MR. BIRMINGHAM: This
is a question that I'll ask of
11 Mr. Kavounas or Mr.
Tillemans.
12 Mr. Dodge yesterday
made reference to a July 1992
13 letter from Mr. Kodama
concerning the policies of the
14 Department of Water
and Power concerning irrigation of Cain
15 Ranch. He asked
questions of Mr. -- excuse me, of
16 Dr. Platts concerning
that correspondence.
17 Are you familiar with
that correspondence,
18 Mr. Kavounas?
19 MR. KAVOUNAS: Yes, I
am.
20 MR. BIRMINGHAM: What
is your understanding concerning
21 the accuracy of Mr.
Kodama's letter in terms of stating the
22 current policy of the
Department of Water and Power
23 concerning irrigation
of Cain Ranch?
24 MR. KAVOUNAS: My
understanding is that the passage
25 that Mr. Dodge asked
Dr. Platts to read on the second page
CAPITOL REPORTERS (916)
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1 is accurate. However, I
would like to direct the Board's
2 attention to the first
page, which was not mentioned
3 yesterday, and in that
Mr. Kodama clearly states that the
4 attached outline of the
irrigation and grazing policy that
5 DWP intends to
implement in the Mono Basin is based upon the
6 current status of Mono
Basin issues. That was written on
7 July 27, 1992.
8 MR. BIRMINGHAM: That
preceded Decision 1631?
9 MR. KAVOUNAS: By a
little over two years.
10 MR. BIRMINGHAM: Did
Decision 1631 change the
11 conditions that -- or
the circumstances which would guide
12 the Department's
policy on irrigation?
13 MR. KAVOUNAS: I would
most certainly say so.
14 MR. BIRMINGHAM: In
what respect?
15 MR. KAVOUNAS: It's my
opinion that the Decision
16 guides the Department
to restore the streams and their
17 fisheries and that
includes Rush Creek, Walker and Parker.
18 The advice that we
have from our scientists is that
19 that is best done with
flows in the streams. If the
20 Department is to
accomplish that, the Department would need
21 to leave water in the
streams not just for the sake of
22 Walker and Parker, but
also for Rush Creek below the
23 Narrows.
24 MR. BIRMINGHAM:
Yesterday there were some questions
25 concerning the
reopening of channels and what would happen
CAPITOL REPORTERS (916)
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1 if after those channels
were reopened they became plugged.
2 This is a question that
I would like to direct to
3 Drs. Beschta, Platts
and Trush and to Mr. Hunter.
4 What is your opinion
concerning reopening those
5 channels that are
proposed for reopening if after reopening
6 they become plugged?
Dr. Platts, do you have a view on
7 that?
8 DR. PLATTS: Yes, it
would depend on each site case by
9 case. If it's just a
matter of dragging a limb out or
10 something small, I
would say go ahead and do it. If it
11 gets -- but if these
get to the point where you have to
12 build a step in this
system in order to get that water into
13 these side channels,
in other words, you have to build a
14 fault step in that
channel, then you're just setting
15 yourself up for a
catastrophe. Like the flows we had this
16 year in Lee Vining
Creek would never allow something like
17 that to stay in.
18 So we do not want to
interfere with the rehabilitation
19 of the streams by
putting artificial steps in in order to
20 just keep channels
watered, but if we can do it without I
21 would say to do it,
but you've got to be very careful.
22 MR. BIRMINGHAM: Dr.
Trush, what is your view?
23 DR. TRUSH: I'm pretty
much along the lines of
24 Dr. Platts. Where some
of the smaller channels like on the
25 upper part of the Lee
Vining flatlands, the latest storm may
CAPITOL REPORTERS (916)
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1 have dropped the
thalweg a foot and a half. I haven't been
2 there, but quite a bit
below the thalweg these little side
3 channels, they're gone.
I can't see reblowing out the
4 entrances and all that
stuff.
5 But where we have large
bifurcations of the channel
6 farther downstream,
until we get a healthy riparian forest
7 up there I would have
to deal with it on a site-by-site
8 basis as to whether
that -- to keep that open channel
9 morphology -- the
options going so when the channel kind of
10 matures then they can
start making -- it's like a
11 father/son -- make a
decision on its own. But until then
12 help it along, train
it. So site by site, but not into a
13 standard routine where
every -- you know, every other month
14 someone goes down and
vacuums out the entrances to these.
15 MR. BIRMINGHAM: Mr.
Hunter, what is your view, if you
16 have one?
17 MR. HUNTER: I agree
with both bills.
18 MR. BIRMINGHAM: Dr.
Beschta?
19 DR. BESCHTA: I agree a
little bit with everybody
20 here. The rewatering
of off-channel areas, a lot of it
21 seems to be occurring
naturally, at least at subsurface --
22 you're getting
subsurface water in many of these
23 depressional areas.
24 I certainly agree with
Bill if you have to get in
25 there and construct a
channel with heavy equipment to
CAPITOL REPORTERS (916)
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1 maintain an off-channel
or a side channel, that's definitely
2 the wrong thing to do.
The use of hand tools to move water
3 to make sure it's going
into an overflow channel, I guess if
4 one feels like they
have to do something that, I guess,
5 would be acceptable at
some point in time.
6 But I really do think
that at some point if we're
7 really talking about
restoring these systems we do let them
8 function, and we're
talking about putting in disturbance
9 regimes. We're talking
about allowing them to do what they
10 know best, and at some
point you really do have to walk out
11 of that channel with
your idea on what you want to do.
12 MR. BIRMINGHAM: Dr.
Trush?
13 DR. TRUSH: One thing
that we haven't done and I'm not
14 sure the monitoring
plan's going to show is when -- the
15 dynamics of these
entrances are something you're not going
16 to go looking up in
any sort of geomorphic journal. And
17 we're not talking
about the huge catastrophic floods that
18 might be the major
process that opens and closes these
19 things, and I'm not so
sure that we may not have to have our
20 hand in it if we don't
allow these large floods in the
21 future.
22 Now, we might see one
now and it would be very
23 interesting to see how
the dense mature cottonwood forest
24 just below 395 on Lee
Vining is going to behave with these
25 big floods; but we
don't know the mechanism relating to a
CAPITOL REPORTERS (916)
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1 flow threshold that's
going to create a dynamic closing and
2 opening. So I can't
necessarily leave out the option that
3 we might have to deal
with this longer than we think.
4 Cautious scientist, but
we don't know how they work.
5 MR. BIRMINGHAM: That is
a segue into a question I was
6 going to ask you
following up to a question that was asked
7 of you yesterday by Mr.
Dodge.
8 He asked a question
about a 1938 or '39 flow event and
9 the fact that -- you
related the fact that it didn't do
10 significant damage to
Rush Creek. What I'd like to know,
11 Dr. Trush, is in your
opinion if there were a flow event of
12 the magnitude of a
1938 or '39 flow event in Rush Creek
13 today, would it create
"big problems in Rush Creek" to quote
14 Mr. Dodge?
15 DR. TRUSH: I don't
know if I should bet my paycheck
16 on this June or not. I
don't know what that one's gonna be
17 like but --
18 BOARD MEMBER DEL
PIERO: It's going to be a corker.
19 DR. TRUSH: And on the
'95 one I'd put in a couple
20 cross-sections where
he had the outside of the meander
21 migrate 35 feet, some
of the meander bends on lower Rush.
22 So there's been some
major change.
23 Now, on the inside of
the bend, the point bar kept up.
24 If you walked out
there before and after, you would have
25 seen no change in that
channel. Your eye can't pick up
CAPITOL REPORTERS (916)
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1 35-foot displacement,
but it was there. That's where the
2 deep scour comes in. It
forms those bars.
3 So if your channel
migrates, the outside bend, if you
4 don't have the process
that keeps the inside going, you
5 can't maintain channel
width. So that's another process
6 that you always have to
look at. If you don't maintain
7 channel width, the
whole system goes to hell. But short
8 of -- what was the flow
on that?
9 MR. BIRMINGHAM: I don't
know.
10 DR. TRUSH: Big, honken
flow.
11 DR. KAUFFMAN: BHF.
12 BOARD MEMBER DEL
PIERO: That's a scientific term,
13 right?
14 DR. TRUSH: Eight
hundred, nine hundred cfs I think it
15 could handle. After
that there might be some places where
16 you're gonna go,
"Gee, this doesn't look very good." But
17 for me, I've just
watch hundred year floods just trash
18 entire places and I'm
standing there on someone's house
19 buried in sediment
going, "This is good." I like to see the
20 rejuvenation of the
riparian floods.
21 So I might be a poor
person to ask on that, but I
22 think it would do
okay, but it would set it back in places
23 more than it will if
it happened ten years from now, a
24 little more mature
riparian.
25 MR. BIRMINGHAM: But
from what you've just said I take
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1 it, Dr. Trush, that
from your view those changes are
2 actually positive?
3 DR. TRUSH: On the
whole, yes.
4 MR. BIRMINGHAM: Dr.
Kauffman, there was a reason that
5 you stayed over last
night.
6 DR. KAUFFMAN: Okay,
thank you.
7 MR. BIRMINGHAM: Mr.
Dodge asked you some questions
8 yesterday concerning
seed dispersal and, in particular, he
9 referred to your
testimony on page three and I'm going to
10 ask you questions
about whether or not consistent with the
11 definition of
"restoration" you used on page three if --
12 because flows on Rush
Creek were impaired, the peak were
13 delayed for three
weeks, whether or not that would be
14 consistent with that
definition of restoration you used.
15 Do you recall those
questions?
16 DR. KAUFFMAN: Yeah,
more or less.
17 MR. BIRMINGHAM: Let me
ask you have you studied seed
18 dispersal on Rush
Creek?
19 MR. KAVOUNAS: No. I've
observed it, but I've not
20 studied it.
21 MR. BIRMINGHAM: From
the observations that you've
22 made, do you have an
opinion concerning whether seed
23 dispersal on Rush
Creek is adequate for its restoration?
24 DR. KAUFFMAN: Oh,
absolutely. I think if one looks
25 at the seed dispersal
event last year where, you know,
CAPITOL REPORTERS (916)
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1 clearly seeds are not
limiting or -- you know, there's no
2 seed source limitation
currently for any of the willows,
3 cottonwoods or most
likely conifers on that site right now.
4 MR. BIRMINGHAM: And is
that your opinion with respect
5 to the entire reach of
Rush Creek from, say, the confluence
6 of the return ditch to
the County Road?
7 DR. KAUFFMAN: Yes.
8 MR. BIRMINGHAM: So if
-- since 1986 when the stream
9 was rewatered, if since
1986 the peak flows in Rush Creek
10 have been delayed for
a period of three weeks because they
11 were impaired, that
hasn't created a problem with respect to
12 seed dispersal; is
that right?
13 DR. KAUFFMAN: No, it
hasn't.
14 DR. TRUSH: There are
some places -- you know, if we
15 consider the present
riparian zone, I'd have to agree. But
16 if we're talking about
former riparian areas, older terraces
17 that -- if the channel
cross-section looked like this and it
18 had been scoured out
so the cross-sectional area is this
19 big, then these
surfaces that used to get flooded frequently
20 don't get flooded very
often.
21 So if we define our
riparians not by the present
22 riparian but by what
used to be the riparian, there is no
23 mechanism waterborne
to get seeds onto those surfaces and
24 those are the areas --
but I've seen trees up on it by, I
25 guess, animals and I
looked uphill and I didn't see cones
CAPITOL REPORTERS (916)
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1 rolling down on me.
2 So there must be some
kind of mechanism, but those
3 areas won't get them
waterborne onto them and, yet, they
4 were former riparian.
They probably won't function the same
5 way anymore because of
the changes in ground water, but that
6 might be areas that --
we had that in mind for targeting for
7 the planting as
possible places.
8 MR. BIRMINGHAM: Dr.
Trush, let me follow up on that
9 comment, if I may.
Those are areas where you might propose
10 planting Jeffrey
pines; is that correct?
11 DR. TRUSH: But we
decided to wait and see if -- the
12 ground water, as Bob
Beschta said, is so weird in that you
13 get clay lenses, you
get ground water where you never think
14 it is, you walk 50
feet from the channel and you've got
15 ponded water that's a
foot lower than the channel 50 feet
16 away. I've never been
able to figure that one out.
17 BOARD MEMBER DEL
PIERO: Mr. Chairman.
18 CHAIRMAN CAFFREY: Mr.
Del Piero.
19 BOARD MEMBER DEL
PIERO: The only thing that I've
20 looked at -- and
obviously you all are far more expert than
21 I. The only thing I
can figure is that you've got some
22 residual underground
water there that didn't disappear when
23 they diverted the
streams and those conifers are left over
24 from 30, 40, 50 years
ago and they've just been able to
25 self-perpetuate. There
are very few of them obviously. If
CAPITOL REPORTERS (916)
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1 you walk over near them
you can sometimes find little, wet
2 spots out in the middle
of nowhere and that, I think, is
3 probably what sustained
those few remnant elements.
4 DR. TRUSH: That's what
we had in mind about waiting a
5 number of years given
that we've got higher flow regimes now
6 and there's a recharge.
Let's see what these surfaces can
7 do on their own before
we go in and start in a heavy-handed
8 manner planting. That
was the idea behind it.
9 MR. BIRMINGHAM: Dr.
Trush, on these terraces that
10 you've just described,
the failure of the water to disperse
11 the seeds is not a
result of the timing of the peak flows,
12 is it?
13 DR. TRUSH: No, it's
magnitude and -- well, magnitude
14 and change in the
cross-section of the stream, the loss of
15 the confinement.
16 MR. BIRMINGHAM: Dr.
Kauffman, yesterday Mr. Dodge
17 showed you some
photographs. They've been marked for
18 purposes of
identification as R-NAS-MLC 8, 9 and 10.
19 Do you have a copy of
those in front of you?
20 DR. KAUFFMAN: These
are them?
21 MR. BIRMINGHAM: Yes.
22 MR. BIRMINGHAM: Okay.
I don't know which one's 8, 9
23 or 10 but --
24 MR. BIRMINGHAM: May I
have a moment, Mr. Caffrey?
25 DR. KAUFFMAN: To
answer your question, yes, I do have
CAPITOL REPORTERS (916)
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1 a copy in front of me.
2 MR. BIRMINGHAM: Have
you had an opportunity to review
3 those photographs with
greater detail to determine whether
4 or not the area that is
depicted in the foreground of
5 R-NAS-MLC has, in fact,
revegetated with riparian
6 vegetation?
7 DR. KAUFFMAN: Looking
-- comparing pictures 8 and
8 10 -- well, what I do
see -- and, again, you know, with a
9 different lens and a
different angle it makes comparisons a
10 little bit difficult
but if one looks at the foreground of
11 the photo one does see
while it's green, it's Chrysothamnus
12 nauseousus or grey
rabbitbrush. This is an upland species,
13 a highly disturbed --
it's dependent upland species that's
14 even poisonous to
sheep. It's clearly not a very desirable
15 riparian species.
16 If one looks at the
background in contrast, though,
17 you can see a pretty
impressive expansion of the willow
18 cover and dominates in
growth over the -- what's this, '93
19 to '95, the photos?
Again, if one would just look at the
20 cottonwood and Jeffrey
pine to the right and just above to
21 the right of the piece
of heavy equipment, one can look at
22 those willow
communities as being greatly expanding through
23 time on the site.
Interestingly enough, areas where there
24 has been some work
done you don't see that establishment of
25 willow through time.
CAPITOL REPORTERS (916)
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1 MR. BIRMINGHAM: So
looking at these pictures, the
2 establishment of willow
has occurred in places where the
3 restoration activities
didn't occur?
4 DR. KAUFFMAN: Where the
heavy equipment activities
5 were occurring, yes.
6 MR. BIRMINGHAM: I want
to make sure that my record is
7 correct. Looking at
these photographs, the willow
8 recruitment has
occurred in places where the restoration
9 activity did not take
place?
10 DR. KAUFFMAN: Yes,
yes.
11 MR. BIRMINGHAM: Have
you had an opportunity to go out
12 and inspect the sites
along Rush Creek where spoils were
13 deposited during the
restoration activities that took place
14 under the jurisdiction
of the El Dorado County Superior
15 Court?
16 DR. KAUFFMAN: Yes, I
have. That's, I think, what I
17 was -- what was
brought up when I allegedly made some bet
18 yesterday, I was
referring to areas where ditch spoils had
19 been deposited upon
old gravel bars.
20 MR. BIRMINGHAM: And
did you -- have you had an
21 opportunity to
determine from your inspections whether or
22 not those spoil sites
have recovered?
23 DR. KAUFFMAN: Yes. One
area in particular that we
24 have looked at in
September of this year was on page 36 of
25 the Rush and Lee
Vining Creeks' restoration work. That's
CAPITOL REPORTERS (916)
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1 Exhibit 2. It says
Exhibit 2. I don't know what that is.
2 At any rate, it was an
area that was a gravel bar with
3 small, moist
meadow-type wetlands around it. Through the
4 in-channel work the
wetlands were destroyed and had spoils
5 deposited upon the
gravel bar and, again, once you build up
6 these areas -- once you
build up and put this many ditch
7 spoils on an area that
was a gravel bar or wetland I made
8 the statement that
these -- you've ruined these sites in
9 terms of wetland
recovery. To this day that site is
10 dominated, again, with
a few sparse rabbitbrush plants, a
11 few exotic weeds and
little else.
12 MR. BIRMINGHAM: Dr.
Trush, yesterday during questions
13 of you by -- I believe
it was Mr. Dodge you made reference
14 to your activities as
a court-appointed restoration
15 technical committee
member.
16 Do you recall those
questions? Let me be more
17 specific.
18 DR. TRUSH: Yeah,
thanks.
19 MR. BIRMINGHAM: During
your testimony you referred to
20 a report which you say
you deposited in the round and
21 circular file, a
report that said that the channel would
22 mobilize at 1200 cfs.
Do you recall that?
23 DR. TRUSH: Yes.
24 MR. BIRMINGHAM: Who
prepared the report that you were
25 referring to?
CAPITOL REPORTERS (916)
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1 DR. TRUSH: After I
threw it out I -- you know, pretty
2 much Simons and Lee of
Fort Collins.
3 MR. BIRMINGHAM: And do
you agree that the channel
4 referred to in that
report would mobilize at 1200 cfs?
5 DR. TRUSH: From the
first minute I stepped out on the
6 bar far below that.
7 MR. BIRMINGHAM: And it
was based upon your opinion
8 that the channel will
mobilize at flows far below that that
9 you concluded that the
kind of engineered restoration
10 approach undertaken
historically was inappropriate?
11 DR. TRUSH: Yes.
12 MR. BIRMINGHAM: May I
have a moment, Mr. Del Piero --
13 Mr. Caffrey?
14 CHAIRMAN CAFFREY:
Yeah, just very briefly. You are
15 staying within your 45
minutes?
16 MR. BIRMINGHAM: Yeah.
17 CHAIRMAN CAFFREY:
We'll stop the clock for just a
18 brief second.
19 (Pause.)
20 MR. BIRMINGHAM: Mr.
Kavounas, I'd like to look at
21 paragraph eight of
Decision 1631 -- it's paragraph eight of
22 the Order actually.
Paragraph 8(a) contains a number of
23 items which the Stream
Restoration Plan shall make
24 recommendations on; is
that correct?
25 MR. KAVOUNAS: Yes.
CAPITOL REPORTERS (916)
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1 MR. BIRMINGHAM: I'd
like to run through this list.
2 Does the plan submitted
by the Department of Water and Power
3 make a recommendation
concerning instream habitat
4 restoration measures
for Rush Creek?
5 MR. KAVOUNAS: Yes, it
does.
6 MR. BIRMINGHAM: Does it
make a recommendation for
7 rewatering of
additional channels on Rush Creek and Lee
8 Vining Creek?
9 MR. KAVOUNAS: Yes, it
does.
10 MR. BIRMINGHAM: And
does it make a recommendation
11 concerning the
riparian vegetation restoration for Rush
12 Creek and Lee Vining
Creek?
13 MR. KAVOUNAS: Yes, it
does.
14 MR. BIRMINGHAM: Does
it make a recommendation
15 concerning a sediment
bypass facility at Licensee's
16 diversion structure on
Lee Vining Creek?
17 MR. KAVOUNAS: The plan
makes a recommendation for
18 sediment bypass
operations.
19 MR. BIRMINGHAM: Does
it contain a flood flow
20 contingency measure?
21 MR. KAVOUNAS: Yes, it
does.
22 MR. BIRMINGHAM: Does
it propose limitations or make
23 recommendations on
limitations on streamcourse vehicular
24 access?
25 MR. KAVOUNAS: Yes, it
does.
CAPITOL REPORTERS (916)
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1 MR. BIRMINGHAM: Does it
contain recommendations
2 concerning the
construction of a fish and sediment bypass
3 system around the
Department's diversion facilities on
4 Walker and Parker
Creeks?
5 MR. KAVOUNAS: It
contains recommendations to not
6 construct them, yes.
7 MR. BIRMINGHAM: Does it
contain a recommendation
8 concerning spawning
gravel replacement programs downstream
9 of the Department's
points of diversions on Rush, Lee
10 Vining, Walker and
Parker Creeks?
11 MR. KAVOUNAS: The
recommendation is included to not
12 perform any spawning
gravel replacement programs.
13 MR. BIRMINGHAM: But
there is a recommendation
14 contained in the plan?
15 MR. KAVOUNAS: Yes.
Yes, there is.
16 MR. BIRMINGHAM: Is
there a recommendation concerning
17 the livestock grazing
exclusion in the riparian areas below
18 the Department's
points of diversions on the streams?
19 MR. KAVOUNAS: Yes,
there is.
20 MR. BIRMINGHAM: And
does it contain a recommendation
21 concerning the
feasibility of installing and maintaining
22 fish screens on points
of diversion from the streams?
23 MR. KAVOUNAS: Yes.
24 MR. BIRMINGHAM: And it
does contain a Grant Lake
25 Operations and
Management Plan?
CAPITOL REPORTERS (916)
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1 MR. KAVOUNAS: It is
attached as a separate plan. It
2 is part of the
Department's minutes.
3 MR. KAVOUNAS: So in
preparing the document which has
4 been submitted by the
Department, the Department referred to
5 D-1631 and tried to
make recommendations concerning each one
6 of the elements
described in the decision?
7 MR. KAVOUNAS: Yes.
8 MR. BIRMINGHAM: I have
no further questions.
9 CHAIRMAN CAFFREY: Thank
you very much,
10 Mr. Birmingham, and
thank you for staying within your time.
11 I think at this point
it would make sense before we go
12 to recross to take a
short break and let's try to be back
13 here say 15 minutes.
We'll be back at 20 to 11:00 by that
14 clock, thank you.
15 (Whereupon a recess
was taken.)
16 CHAIRMAN CAFFREY:
Okay, let's find our seats and
17 resume the hearing,
please.
18 We were going to start
with recross. I believe
19 Mr. Birmingham has
something you would like to tell us.
20 MR. BIRMINGHAM: Yes,
Mr. Caffrey. In order to
21 arrange for Dr.
Kauffman to be here today we arranged a
22 flight for him back to
Oregon early this afternoon, but in
23 order for him to make
that flight and make his class at
24 Oregon State it will
be necessary for him to leave here by
25 noon. I wonder if --
CAPITOL REPORTERS (916)
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1 CHAIRMAN CAFFREY: Would
you like to have him run
2 everybody through one
time and just ask him questions and
3 then we can accommodate
him?
4 MR. BIRMINGHAM: If
possible I think so and Dr. -- I
5 think Dr. Beschta would
like to go with him because that
6 will get him back to
Oregon earlier as well, but we may
7 finish by noon. I don't
know.
8 CHAIRMAN CAFFREY: Yeah,
we'll just try to move along
9 as quickly as we can
and then if we get to the point of no
10 return we can ask
people if they have any further questions
11 and run it through
real quickly. We'll try to accommodate.
12 We do appreciate -- I
understand you got a charter
13 flight in order to
make your class and to stay here a little
14 bit longer. We
appreciate that, Dr. Kauffman. We'll try to
15 proceed in that
fashion as best we can.
16 Now, let's move as
quickly as we can to recross and
17 I'll just go through
the list to see who wishes to do so.
18 U.S. Forest Service?
Is anybody here from the U.S.
19 Forest Service today?
20 BOARD MEMBER DEL
PIERO: Earlier.
21 CHAIRMAN CAFFREY: Is
Mr. Gipsman here?
22 BOARD MEMBER DEL
PIERO: He was.
23 CHAIRMAN CAFFREY: He
was here? Perhaps he wishes to
24 recross. Of course, he
did not cross.
25 Bureau of Land
Management?
CAPITOL REPORTERS (916)
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1 MR. RUSSI: No, thank
you, Mr. Chairman.
2 CHAIRMAN CAFFREY: Thank
you, sir.
3 Is anyone here from the
Trust of Public Land? They
4 weren't here yesterday.
5 MR. FRINK: I had a call
and they do not plan on
6 attending unless we
specifically request it.
7 CHAIRMAN CAFFREY: All
right. Thank you, Mr. Frink.
8 BOARD MEMBER DEL PIERO:
Unless we specifically
9 request it?
10 CHAIRMAN CAFFREY:
"We" being the Board, I guess.
11 MR. FRINK: Yes.
12 CHAIRMAN CAFFREY:
Thank you, sir.
13 BOARD MEMBER DEL
PIERO: We'll take that up.
14 CHAIRMAN CAFFREY:
People for the Preservation of Mono
15 Basin?
16 MS. BELLOMO: No
questions, thank you.
17 CHAIRMAN CAFFREY:
Arnold Beckman?
18 MR. MOONEY: No
questions, Mr. Mooney. Thank you,
19 sir.
20 Arcularius Ranch?
21 BOARD MEMBER FORSTER:
He's on the phone.
22 CHAIRMAN CAFFREY: Mr.
Haselton is on the phone?
23 We'll go back to him.
24 Richard Ridenhour?
25 MR. RIDENHOUR: No,
thank you.
CAPITOL REPORTERS (916)
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1 CHAIRMAN CAFFREY: Good
morning, sir. I'll have to
2 remember to swear you
in later.
3 Mr. Roos-Collins from
California Trout? Please, come
4 forward, sir.
5 BOARD MEMBER DEL PIERO:
Mr. Haselton has no
6 questions.
7 CHAIRMAN CAFFREY: Mr.
Haselton has no questions.
8 Let's try to set some
rules here and try to be as fair
9 as we can, as always.
First of all, please take caution to
10 keep your recross
pertinent to redirect. And, secondly,
11 since Mr. Birmingham
took 45 minutes for his redirect, in
12 keeping with the ratio
of how we set this up on the direct
13 I'm inclined to use a
guideline of a half an hour for each
14 panel and then if
somebody needs more time, they can make a
15 showing when they're
up here. But the Board would very much
16 appreciate, as I know
the other parties would, brevity and
17 succinctness as best
that we can.
18 Good morning again,
Mr. Roos-Collins, and welcome,
19 sir.
20 MR. ROOS-COLLINS: Good
morning, Mr. Chair.
21 ---oOo---
22 RECROSS-EXAMINATION
23 BY NATURAL HERITAGE
INSTITUTE
24 MR. ROOS-COLLINS: Let
me begin with the fish
25 population objective
stated in the blue book on page 14.
CAPITOL REPORTERS (916)
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1 MR. BIRMINGHAM:
Objection, exceeds the scope of the
2 redirect.
3 CHAIRMAN CAFFREY: I'm
sorry, I didn't hear the
4 objection.
5 MR. BIRMINGHAM: It
exceeds the scope of the redirect.
6 CHAIRMAN CAFFREY: I
haven't heard the question yet.
7 Mr. Frink?
8 MR. FRINK: I don't
believe that they discussed the
9 Monitoring Plan on
redirect, at least that section of it
10 regarding the
objective.
11 CHAIRMAN CAFFREY: All
I can tell you,
12 Mr. Roos-Collins, is
you need to stay obviously within the
13 scope of the redirect
and please refer to documentation that
14 was referred to in
that redirect as best you can.
15 MR. ROOS-COLLINS: Mr.
Chair, no questions, thank you.
16 CHAIRMAN CAFFREY: All
right. Thank you, sir.
17 Virginia Cahill
representing the Department of Fish
18 and Game?
19 MR. DODGE: We
switched, as you recall, Mr. Chairman,
20 just for this panel.
21 CHAIRMAN CAFFREY: Yes,
we did. I was about to say
22 that was a permanent
-- but then this is all part of that
23 questioning. So I
stand corrected. Please, go ahead.
24 Mr. Dodge.
25 ///
CAPITOL REPORTERS (916)
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1 ---oOo---
2 RECROSS-EXAMINATION
3 BY NATIONAL AUDUBON
SOCIETY
4 MR. DODGE: Dr. Trush,
you've talked at various times
5 about bed load motion
starting about 350 cfs to 400 cfs at
6 Rush Creek.
7 DR. TRUSH: What I'm
talking about is mobilization of
8 the bed surface.
9 MR. DODGE: At about 350
cfs?
10 DR. TRUSH: Yes. You
probably get some bed load
11 movement below that
when you get mobilization of gravel
12 deposits, sand,
smaller size classes.
13 MR. DODGE: How often
would you want that to occur to
14 restore Rush Creek?
15 DR. TRUSH: Well, the
prevailing literature has it at
16 about two out of three
years as an annual maximum flow,
17 which translates into
roughly once a year.
18 MR. DODGE: Roughly
once a year. And if Los Angeles'
19 channel maintenance
flows do not provide bed load movement
20 about once a year, is
there a problem there?
21 DR. TRUSH: As initial
hypothesis I would say "yes"
22 that it would not be
achieving one of the primary
23 attributes.
24 MR. DODGE: Let's go
back to the dry-normal and normal
25 year flow
recommendations.
CAPITOL REPORTERS (916)
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1 DR. TRUSH: Okay.
2 MR. DODGE: Now, you
initially -- the scientists in
3 dry-normal years
initially recommended 250 cfs; is that
4 correct?
5 DR. TRUSH: I believe
so.
6 MR. DODGE: And in
normal years 400 cfs?
7 DR. TRUSH: Yes.
8 MR. BIRMINGHAM: Excuse
me. Again, we're going beyond
9 the scope of the
redirect.
10 MR. DODGE: I think
we've been talking about channel
11 maintenance flow
throughout the redirect.
12 CHAIRMAN CAFFREY: I
want to be fairly reasonable in
13 these rulings. I don't
want to be too limiting, but I also
14 would hope that you
all wouldn't push the envelope. There
15 are varying degrees of
expertise up here at the dais. So
16 I'm going to rely
somewhat on Mr. Frink to advise me with
17 regard to these
objections.
18 Mr. Frink.
19 MR. FRINK: I haven't
heard the question yet, but I
20 would agree with Mr.
Dodge that they have been discussing
21 the channel
maintenance flows throughout the redirect.
22 CHAIRMAN CAFFREY: All
right. Mr. Dodge, why don't
23 you pursue your
question, but it's important that in
24 framing -- let me say
to all the attorneys it's important in
25 the framing of your
question that you make enough references
CAPITOL REPORTERS (916)
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1 in it so that we can
understand the point without having to
2 go through a number of
objections. Keep as tightly as you
3 can to what at least
sounds or is perceived to be related to
4 direct as a starter.
Please, proceed.
5 MR. DODGE: Thank you.
6 In the dry-normal --
7 CHAIRMAN CAFFREY:
Excuse me. I should say as is
8 related to redirect,
thank you.
9 MR. DODGE: In the
dry-normal years the recommendation
10 was 250 cfs and the
normal years the recommendation was 400
11 cfs initially,
correct?
12 DR. TRUSH: Initially,
yes.
13 MR. DODGE: And then
there were some discussions or
14 negotiations which led
to a February 13th memorandum where
15 the dry-normal was
reduced to 200 and the normal was reduced
16 to 380, correct?
17 DR. TRUSH: Right. And,
there again, we were with the
18 uncertainty of 400 and
as I said in my -- I don't know if I
19 declared my testimony.
I guess I haven't yet. That's in
20 the record but I did
-- I'll just repeat it then. That we
21 were very, very close
to the threshold of whether this --
22 whether the flows
could be accomplished without having to
23 create a major
obstruction.
24 So to say the
difference between 400 and 380 or 350
25 given how much data we
had, we felt that we could go down on
CAPITOL REPORTERS (916)
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1 that and let the
adaptive management tell us whether that
2 was a wise decision or
not.
3 MR. DODGE: So this was
just a matter of horse trading
4 rather than scientific
knowledge?
5 DR. TRUSH: Well, only
partly in that we had a
6 confidence interval
there. If I felt that my confidence
7 interval was outside
the range of the management capability,
8 if I thought it was 800
plus or minus 50 cfs, I would be
9 screaming for a hole in
the dam right now.
10 MR. DODGE: And then
the final Los Angeles plan for
11 channel maintenance
flows for dry-normal years is 100 and
12 for normal years is
250 as compared to the initial
13 recommendation of 250
and 400.
14 Now, do you believe
that there's a problem with those
15 flows -- if only the
minimum is provided, do you believe
16 there's a problem with
those flows?
17 DR. TRUSH: At this
point, yes.
18 MR. DODGE: And explain
that.
19 DR. TRUSH: Well,
because when we looked at these
20 various intervals, we
felt that they were minimums and that
21 many of the years
within those water year types the flows
22 would be higher and we
would have -- again, being concerned
23 mostly on the
bottomlands we would have another 30 to 50 cfs
24 coming out of the
tribs as well although the timing's not
25 the same, particularly
with the delay in Rush.
CAPITOL REPORTERS (916)
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1 MR. DODGE: But if only
the Los Angeles minimums for
2 dry-normal and normal
years are delivered, there would be a
3 problem in restoring
those creeks, correct?
4 CHAIRMAN CAFFREY: Mr.
Birmingham.
5 MR. BIRMINGHAM: Mr.
Caffrey, I did not ask any
6 questions pertaining to
these flows on my redirect and
7 Mr. Dodge is going --
is now going outside the scope of my
8 redirect.
9 CHAIRMAN CAFFREY: Mr.
Frink.
10 MR. FRINK: I don't
remember everything that was said
11 on redirect. Mr.
Dodge, is this more within the scope of
12 the direct examination
that you had planned for Mr. Trush
13 during your
proceeding?
14 MR. DODGE: Well, I
think it's both. I think it is
15 within the scope of
the redirect, but Mr. Trush has
16 requested I try to get
him out of here today and, of course,
17 I'm not going to go
today so it's both.
18 MR. FRINK: Do you
still intend to call him as a
19 witness as part of
your direct presentation?
20 MR. DODGE: If the
parties will stipulate to the
21 admission of his
testimony, no.
22 MR. BIRMINGHAM: Well,
I will stipulate to the
23 admission of Dr.
Trush's testimony and without the need to
24 cross-examine him; but
if Mr. Dodge wants to persist in
25 going well beyond the
scope of my redirect, I'm going to ask
CAPITOL REPORTERS (916)
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1 for an opportunity to
re-redirect.
2 CHAIRMAN CAFFREY: I
understand what you're saying
3 and, of course, we have
the -- we've announced that we're
4 going to have rebuttal
testimony and cross and perhaps
5 redirect and recross
under rebuttal. But I guess maybe this
6 is the time to say that
-- I know that you're all
7 experienced attorneys
and you appear in court a lot. There
8 is always a difficulty
when you get into questions of
9 recross and there is --
it's difficult to find that -- or to
10 weave your way through
that gray area when you're outside of
11 the scope of redirect.
Some of this is not that easy to
12 determine and we're
gonna have to work our way through it,
13 and I'm going to have
to defer to Mr. Frink for opinions
14 because I want those
on the record when there is an
15 objection.
16 And so if we're going
to get through it, I'm going to
17 ask those that are --
again, those that are
18 recross-examining
please try to stay as succinct as you can
19 within the redirect
and please not -- and I'm not saying
20 that you are -- I'm
not making an accusation here, but I'm
21 just saying for the
future let's not look at it as an
22 opportunity to expand
into other points that we want to make
23 in the record that go
beyond that scope.
24 Now, we'll try to do
the best we can.
25 MR. FRINK: Mr.
Chairman.
CAPITOL REPORTERS (916)
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1 CHAIRMAN CAFFREY: Mr.
Frink.
2 MR. FRINK: Yeah, I
believe perhaps a solution was
3 suggested. If the
intent of this line of questions is to
4 cover material that Mr.
Trush has covered in his written
5 statement on behalf of
Nation Audubon Society and Mono Lake
6 Committee and if Mr.
Dodge is interested in covering the
7 material so Mr. Trush
can leave today and Mr. Birmingham
8 will stipulate to
submittal of his written statement without
9 cross-examination, then
perhaps we needn't go down this line
10 at this time during
cross-examination.
11 MR. DODGE: And, also,
I'll finish this line of
12 questions in a couple
minutes, less time than it will
13 take --
14 MR. CAFFREY: Well, I
thought we had a question on the
15 floor here with regard
to a stipulation?
16 MR. BIRMINGHAM: Mr.
Dodge has exceeded the scope of
17 my redirect. If Mr.
Dodge wants to get Dr. Trush out of
18 here by asking him
questions about his direct testimony for
19 NAS/MLC I understand
that, but it shouldn't occur during his
20 recross-examination.
21 I had a number of
questions that I thought about
22 asking Dr. Trush and
other members of this panel concerning
23 the flows and DWP's
plan. I consciously made a decision not
24 to ask those
questions. Mr. Dodge is now going right to the
25 heart of that area and
--
CAPITOL REPORTERS (916)
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1 CHAIRMAN CAFFREY: All
right. I understand your
2 objection. Hang on just
a moment. Let me get some counsel
3 here from my attorney
member.
4 (Pause.)
5 Mr. Frink, I'm getting
confused because I thought we
6 were talking about Mr.
Kauffman. Are we talking about
7 somebody else?
8 MR. FRINK: I believe it
is Dr. Trush.
9 CHAIRMAN CAFFREY: So
there's more than one individual
10 that we're trying to
get out of here?
11 MR. FRINK: Well, there
are different people who want
12 to leave for different
reasons but Mr. Dodge would like
13 Mr. Trush to be able
to leave soon.
14 CHAIRMAN CAFFREY: All
right. If we're gonna --
15 Mr. Del Piero is
advising that perhaps we bring these
16 witnesses back for
your situation so that you can deal with
17 it at a later date and
then we allow Mr. Dodge to pursue his
18 line of questioning
very briefly.
19 BOARD MEMBER DEL
PIERO: Mr. Chairman, the situation
20 we've got is the
Chairman gave a direction yesterday in
21 terms of this panel
and attempting to try and address the
22 time constraints and
at that point in time indicated to
23 counsel for all the
parties they should try to concentrate
24 their questions on
those issues that Mr. Frink properly just
25 raised.
CAPITOL REPORTERS (916)
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1 Once you give direction
like that and people spend the
2 night preparing for
that type of questioning you can't very
3 well change in
midstream. Although I'll be honest with
4 you, I have an
appreciation for the issue raised by
5 Mr. Birmingham; and in
the interest of equity rather than
6 agreeing, Mr. Chairman,
to letting Mr. Dodge and
7 Mr. Birmingham agree
about the stipulation of the
8 introduction of the
testimony on behalf of the Mono Lake
9 Committee, it strikes
me that maybe what you ought to do is
10 let Mr. Dodge ask his
questions now and then have the
11 witness come back at a
later date so that both
12 Mr. Birmingham and Mr.
Dodge get their second bite of the
13 apple.
14 CHAIRMAN CAFFREY: Is
that not agreeable to you,
15 Mr. Birmingham?
Please, let us know -- I mean, I haven't
16 ruled yet so please
let us know what you're --
17 MR. BIRMINGHAM:
Bringing him back at a later date
18 means tomorrow if
we're going to conclude these hearings by
19 tomorrow. I'm not sure
what that accomplishes.
20 MR. CAFFREY: Well,
perhaps we're letting the cat out
21 of the bag here anyway
because we've had some discussion
22 about this. It's
obviously beginning to look like tomorrow
23 is becoming --
finishing by tomorrow is becoming a real
24 difficulty.
25 BOARD MEMBER DEL
PIERO: We had 21 days scheduled for
CAPITOL REPORTERS (916)
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1 the original hearing.
2 MR. DODGE: Fourteen.
3 BOARD MEMBER DEL PIERO:
Oh, 14, that's right, I
4 forgot.
5 CHAIRMAN CAFFREY: We're
not going to take 21 for
6 this, I can tell you
that. But what has -- what occurred
7 during the break was --
sorry to take the time for this, but
8 we might as well talk
about it now.
9 What occurred during
the break was we found that we're
10 going to have some
difficulty being here for the night
11 sessions and that
sounds pretty much to me like we're
12 probably going to have
to add a couple days for this.
13 BOARD MEMBER DEL
PIERO: I can tell everyone's hearts
14 are broken.
15 CHAIRMAN CAFFREY:
Sorry to give you all that very bad
16 news. I'm sure it's
broken everybody's heart. I'm sure
17 Mr. Dodge won't take
advantage of that and stretch the time
18 out any further.
19 BOARD MEMBER DEL
PIERO: Let the record reflect
20 there's a jig going
on.
21 CHAIRMAN CAFFREY: And
I'm sorry I didn't give you
22 more information.
We're up here commiserating about -- and
23 it dawned on me we're
the only ones that know about that
24 possible extension.
25 If that were the case
and you have to get your
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1 witnesses out today,
would you be okay on --
2 MR. BIRMINGHAM: If that
is the case and it's going to
3 be necessary to bring
Dr. Trush back, then I would propose
4 that Mr. Dodge conduct
his direct examination of Dr. Trush
5 related to his
testimony at that time as opposed to trying
6 to conduct it in the
recross --
7 MR. DODGE: In the
interest of the shortness of life I
8 agree.
9 CHAIRMAN CAFFREY: That
has nothing to do with the
10 fact I told you we're
going to take a little bit longer
11 time, right, okay.
12 MS. BELLOMO: Excuse
me, Chairman Caffrey --
13 CHAIRMAN CAFFREY: Yes,
Ms. Bellomo.
14 MS. BELLOMO: -- may I
address the Board for a moment?
15 I'm not clear -- at
this point maybe you're not clear
16 what you're
anticipating in terms of schedule for the
17 hearing, but now I'm
getting a little concerned because my
18 husband and I
representing our group are probably the only
19 people in the room who
aren't being compensated for our time
20 in one way or another
and we're not going to be able to stay
21 past Friday. We have
jobs that we have to return to.
22 CHAIRMAN CAFFREY: I'm
not going to extend it --
23 MS. BELLOMO: Beyond
Friday?
24 CHAIRMAN CAFFREY: What
we will do is put out another
25 notice. I understand
that everybody has scheduled lives.
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1 I'm sure attorneys here
have court that they have concerns
2 with those various
appearances.
3 So what we will do is
we will put out another public
4 notice that -- I can't
tell you exactly when it's going to
5 be, but I would expect
that we would come back with a couple
6 of days in tandem,
maybe three days, three more days -- two
7 or three more days
maybe in another two or three weeks, but
8 don't hold me to that.
But it certainly isn't going to be
9 this week or next week.
10 MS. BELLOMO: It
wouldn't be next week?
11 CHAIRMAN CAFFREY:
Right.
12 MS. BELLOMO: Fine.
Okay, thank you.
13 CHAIRMAN CAFFREY: And
is often the case, but is
14 probably especially
true of Mono Lake, there's always a lot
15 more information than
we thought we were going to get and
16 it's always very
interesting and we're trying to make sure
17 that everybody gets
their opportunity on the record and so
18 as Mr. Del Piero, a
very skilled hearing officer, I might
19 add, experienced 44
days last time we scheduled -- when we
20 scheduled 21. We've
scheduled three so hopefully that will
21 only be five or six.
So we're doing our best here to
22 accommodate you all
and to be fair.
23 MS. BELLOMO: Thank
you. I just wanted to express the
24 importance to our
group of not only presenting our
25 testimony, but also
having an opportunity to conduct
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1 cross-examination on
the waterfowl habitat of all the other
2 parties. So I know you
would be more than willing probably
3 to accommodate us to
let us testify if that was all we were
4 going to do, but we
really need to be here for all of the
5 other waterfowl habitat
witnesses.
6 CHAIRMAN CAFFREY: And
we understand that and we will
7 schedule something, as
I indicated, so you'll have that full
8 opportunity.
9 MS. BELLOMO: Thank you
very much.
10 CHAIRMAN CAFFREY:
Thank you.
11 Mr. Dodge, I presume
you have other recross?
12 MR. DODGE: I do.
13 CHAIRMAN CAFFREY: Or
should I say have recross, thank
14 you.
15 MR. DODGE: No, other.
16 CHAIRMAN CAFFREY:
Okay.
17 MR. DODGE: Various
people were asked about the
18 advisability in their
judgment of creating a bypass of Grant
19 Lake over the hole --
some people call it a hole in the dam.
20 Some people call it a
tunnel.
21 Dr. Trush, based on
the science that you've seen, do
22 you have an opinion as
to whether such a bypass is necessary
23 to restore Rush Creek?
24 DR. TRUSH: Pending the
monitoring results, my
25 position now is
"no." But given the monitoring results as
CAPITOL REPORTERS (916)
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1 far as whether the
flows that can be done, we may have to
2 wait -- two things we
have to wait and see is, first of all,
3 can -- what's the end
product of trying to maximize those
4 flows that we've called
minimum? In reality, how often
5 would we get 350 rather
than some lower amount? And the
6 other is are these
thresholds appropriate? And that's where
7 the adaptive management
has to come in.
8 So I've taken the
position that as of now as a
9 scientist I cannot
justify a project of that magnitude given
10 what I know right now,
but I think we've set ourselves up
11 for some objective way
of evaluating that.
12 MR. DODGE: But would
you agree with me that the
13 science is a little
incomplete at this point and that such a
14 bypass may well prove
to be necessary?
15 DR. TRUSH: It could.
16 MR. DODGE: Now, Mr.
Kavounas or Mr. Allen, whoever
17 wants to answer this,
I was a little tired when I heard part
18 of your testimony
yesterday but I thought -- in terms of the
19 channel maintenance
flows I thought I heard you say that
20 while you had these
minimums in various year types, that you
21 would in all year
types attempt to maximize the flows; is
22 that correct?
23 CHAIRMAN CAFFREY: Mr.
Birmingham.
24 MR. BIRMINGHAM:
Objection, goes beyond the scope.
25 Mr. Dodge is conceding
that it goes beyond the scope. He's
CAPITOL REPORTERS (916)
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1 referring to testimony
that was done yesterday. The recross
2 of these witnesses
occurred this morning, and this is beyond
3 the scope of my
redirect.
4 CHAIRMAN CAFFREY:
That's a good point. You're beyond
5 the scope here, Mr.
Dodge. Please stay within the scope of
6 the redirect.
7 MR. DODGE: Thank you.
8 Now, Dr. Platts, you
were asked whether 10.8 million
9 dollars for an outlet
was a reasonable figure, and your
10 answer was it's
unreasonable if the sole purpose is to
11 rewater Reach 1. Do
you recall that answer, sir?
12 DR. PLATTS: Yes, I do.
13 MR. DODGE: Isn't it
possible, sir, that the purpose
14 of putting in an
outlet would be to provide high flows that
15 would restore all of
Rush Creek from Grant Lake to Mono
16 Lake?
17 DR. PLATTS: It's
possible.
18 MR. DODGE: Mr.
Kavounas, would you agree with me that
19 D-1631 does not
prohibit Los Angeles from irrigating from
20 Parker and Walker
below the diversion?
21 MR. KAVOUNAS: I
believe 1631 is silent on the issue
22 of irrigation.
23 MR. DODGE: Would you
also agree with me there is no
24 order from Judge
Finney which prohibits such irrigation?
25 MR. BIRMINGHAM: I'm
going to object to the question
CAPITOL REPORTERS (916)
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1 on the grounds that it
calls for a legal conclusion.
2 Mr. Kavounas can, I
think, state whether or not he's aware
3 of any order of Judge
Finney, but the effect of that order
4 is a legal conclusion.
5 CHAIRMAN CAFFREY: I
agree with Mr. Birmingham.
6 Would you like to
restate the question in another
7 fashion more in --
8 MR. DODGE: Are you
aware as you sit here today of any
9 order of Judge Finney
that prohibits such irrigation?
10 MR. KAVOUNAS: I have
seen an order of Judge Finney
11 that I interpret to
mean that we should not irrigate from
12 Walker and Parker.
13 MR. DODGE: And would
you be agreeable to providing me
14 with a copy of that?
15 MR. KAVOUNAS: I would
like to ask counsel to provide
16 that.
17 MR. BIRMINGHAM: Yes,
we will provide a copy.
18 CHAIRMAN CAFFREY:
Thank you, Mr. Birmingham.
19 MR. DODGE: Fine, thank
you. That settles that.
20 Dr. Trush, you were
asked about channels that might be
21 reopened and then
might be replugged. Do you recall those
22 questions?
23 DR. TRUSH: Yes.
24 MR. DODGE: And you
were asked the question "Well,
25 would you reopen them
again?" and you said "Well, it's a
CAPITOL REPORTERS (916)
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1 site-by-site matter
until a healthy forest comes back up
2 top." Do you
recall that testimony?
3 DR. TRUSH: That would
be my first assessment, yes.
4 MR. DODGE: And why do
you focus on a healthy forest,
5 sir?
6 DR. TRUSH: Well, until
then we're going to be
7 expecting a lot of
change in the channels relative to once
8 there's a large forest
we're going to see relatively fewer
9 changes, and it seems
like a reasonable juncture in the
10 evolution of its
ecosystem.
11 MR. DODGE: What
exactly does a large forest have to
12 do with it?
13 DR. TRUSH: Well, it
stabilizes the flows, increases
14 the roughness,
redirects a lot more flow down the center of
15 the channel. Generally
you tend to get a -- more of a
16 meander will start to
assert itself and once a meander
17 particularly starts
asserting itself the way it works is
18 beginning to settle
in. I hate to use such qualitative
19 terms but --
20 MR. DODGE: Would the
large forest up top tend to
21 deter these reopened
channels from being plugged?
22 DR. TRUSH: They might
enhance it.
23 MR. DODGE: You just
don't know?
24 DR. TRUSH: I just
don't know. It's just that they'll
25 provide -- along with
the establishment of the forest you'll
CAPITOL REPORTERS (916)
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1 be getting deposition
in these areas. So you'll be
2 increasing the
confinement of the channels, and that's
3 probably an important
mechanism for maintaining the channel
4 openings and closing.
5 If it's a very broad
one, then a very small piece of
6 woody debris can have a
major affect on directing flows from
7 one channel to the
other; but if your flows are quite deep,
8 it's going to take a
lot bigger thing, shopping cart, before
9 you would start
switching channels.
10 MR. DODGE: Dr.
Kauffman, do you still have those
11 photos in front of
you?
12 DR. KAUFFMAN: I think
so. No. 9, 10, 8?
13 MR. DODGE: Yeah, 8, 9
and 10. Now, if you look at
14 Photo 8, do you see
this piece of heavy equipment right
15 there?
16 DR. KAUFFMAN: Yes, I
do. The one that's in the
17 channel?
18 MR. DODGE: Right. Do
you see that?
19 DR. KAUFFMAN: Yes, I
do.
20 MR. DODGE: Now, on
Exhibit 10 would you agree that
21 riparian vegetation
has grown up right where that piece of
22 equipment is?
23 DR. KAUFFMAN: The
piece of equipment's in the middle
24 of the channel, and I
would say "no" that's still the
25 channel.
CAPITOL REPORTERS (916)
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1 MR. DODGE: The piece of
equipment presumably got in
2 the middle of the
channel by going across the side of the
3 channel?
4 DR. KAUFFMAN: Could you
tell me -- it couldn't have
5 gone up the channel?
6 MR. DODGE: Well if, in
fact, the heavy equipment
7 entered the channel
like that right across there, you'd
8 agree there's willows
growing there, correct?
9 DR. KAUFFMAN: To the
left of the piece of equipment
10 that's in the channel;
is that what you're referring to?
11 MR. DODGE: Right here,
yeah.
12 DR. KAUFFMAN: There's
no willows in the picture right
13 there that I can see
to the left of the piece of equipment
14 that's in the channel,
nor do I see any evidence that that
15 piece of equipment's
driven over that spot either.
16 MR. DODGE: Next in
order will be R-NAS-MLC-11.
17 Dr. Kauffman, do you
have Exhibit R-NAS-MLC-11 in
18 front of you?
19 DR. KAUFFMAN: Is that
what this is right here?
20 MR. DODGE: This one
right here.
21 DR. KAUFFMAN: Yes, I
do have that.
22 MR. DODGE: You do have
that, okay. Now, would you
23 agree with me that in
the bottom portion of the picture on
24 both sides of this
channel where I'm pointing that there are
25 willows coming up?
CAPITOL REPORTERS (916)
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449
1 DR. KAUFFMAN: Where are
you pointing to?
2 MR. DODGE: Right in
here.
3 DR. KAUFFMAN: I would
say that there is a large stand
4 of willows in the
middle of that picture. Down the channel
5 here I see grasses, but
I can't see for sure if they're
6 willows.
7 MR. FRINK: Mr.
Chairman, I would object that this is
8 beyond the scope of the
redirect examination. We're seeing
9 a new photograph.
There's no foundation laid how it relates
10 to the evidence that's
previously been discussed.
11 CHAIRMAN CAFFREY: I
believe you are outside of the
12 scope of --
13 MR. DODGE: With all
due respect, sir, I don't think I
14 am. Mr. Birmingham
asked questions about --
15 CHAIRMAN CAFFREY: Is
this one of the exhibits that
16 was marked?
17 MR. DODGE: The subject
matter is the same. The
18 subject matter is the
effects of heavy equipment on the
19 recovery of riparian
vegetation.
20 CHAIRMAN CAFFREY: I'm
going to accept my counsel's
21 advice and ask you to
get on with the questioning on another
22 line.
23 MR. DODGE: I have a
better option, sir. I'm going to
24 stop my questioning.
25 CHAIRMAN CAFFREY:
Thank you very much, Mr. Dodge.
CAPITOL REPORTERS (916)
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1 Let's see, the order we
kept last night was to now go
2 to Ms. Cahill, I
believe, Department of Fish and Game.
3 Good morning again and
welcome.
4 MS. CAHILL: Good
morning, thank you.
5 ---oOo---
6 BY THE CALIFORNIA
DEPARTMENT OF FISH AND GAME
7 MS. CAHILL: In order to
make my questions easier to
8 understand, I'm going
to pass out a copy of an exhibit.
9 It's Figure 1-1 from an
exhibit previously admitted that was
10 DFG-129, NAS/MLC-137
and Cal Trout 15. I think a lot of us
11 really wanted this
exhibit in last time.
12 Mr. Plats -- or Dr.
Platts, you were asked a number of
13 questions this morning
regarding the pre-1941 conditions of
14 Rush Creek. The page
I've just handed out is from an
15 exhibit that is
entitled "Summary Comparison of Pre-1941 and
16 Post 1941 Conditions
Affecting Fish Populations in Lower
17 Rush Creek, Mono
County, California" by Trihey & Associates.
18 Are you familiar with
that exhibit?
19 DR. PLATTS: Not right
now.
20 MS. CAHILL: Okay. But
you would be familiar -- if
21 you looked at this
map, would you recognize the various
22 reaches as they're
shown on the map?
23 DR. PLATTS: I
recognize the reaches, yes.
24 MS. CAHILL: Okay. This
morning Mr. Birmingham asked
25 you a number of
questions about the conditions between
CAPITOL REPORTERS (916)
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1 A-Ditch and old Highway
395; is that correct?
2 DR. PLATTS: Yes, he
did.
3 MS. CAHILL: And what
reach is A-Ditch in?
4 DR. PLATTS: It appears
to be in Reach 2.
5 MS. CAHILL: And what
reach is old Highway 395 in?
6 DR. PLATTS: It appears
to be in Reach 3B.
7 MS. CAHILL: Is it true
that those conditions that you
8 described in that
stretch, that stretch does not include
9 Reach 1?
10 DR. PLATTS: Correct.
11 MS. CAHILL: And there
was a picture shown, a
12 Figure 6. Is it true
that that picture was upstream of old
13 Highway 395?
14 DR. PLATTS: Yes.
15 MS. CAHILL: In that
case that picture was taken in
16 Reach 3?
17 DR. PLATTS: Yes, Reach
3.
18 MS. CAHILL: And so
that picture was not of Reach 1,
19 was it?
20 DR. PLATTS: No, it was
not.
21 MS. CAHILL: And would
that picture be typical of
22 Reach 1?
23 DR. PLATTS: No, it
would not.
24 MS. CAHILL: In the
exhibit that I've mentioned, the
25 discussion of Reach 1
says that it had stream flow at all
CAPITOL REPORTERS (916)
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1 times except during
some of the winter months in the dust
2 bowl drought period
when it can be inferred from the records
3 that there was no flow.
Seepage from the reservoir and
4 ponded water in the
forebay prevented the channel from
5 becoming dry.
6 Would you disagree with
that statement?
7 DR. PLATTS: No, I
wouldn't disagree with it.
8 MS. CAHILL: Okay.
Further on in that same exhibit
9 there's a table that
summarizes conditions in Reach 1. It
10 says "Mono Return
Ditch to A Forebay Diversion Structure."
11 So that would be --
would that area be in Reach 1? No, that
12 would be in Reach 2.
13 That table, however,
does seem to be describing Reach
14 1 because it says the
historic channel had depths of two to
15 three feet. About 1500
feet of the channel below the old
16 Grant Reservoir Dam
was back water behind the A-Ditch
17 Forebay.
18 It was your testimony
that some of the water in Reach
19 1 was backed up from
A-Ditch Forebay; is that correct?
20 DR. PLATTS: That's
correct.
21 MS. CAHILL: And would
the 1500 foot width -- length
22 sound about right?
23 DR. PLATTS: Sounds
about right.
24 MS. CAHILL: So if the
present Reach 1 is now 2800
25 feet long and 1500
feet was ponded water, would that mean
CAPITOL REPORTERS (916)
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1 that approximately 1300
feet flowed?
2 DR. PLATTS: Could be.
3 MS. CAHILL: Okay. That
table also indicates that
4 mean monthly flows
between 1930 and 1941 ranged from zero,
5 as we mentioned in the
dust bowl, to about 400 cfs.
6 Would you conclude that
that's probably correct for
7 Reach 1 as we know it?
8 DR. PLATTS: It could
be.
9 MS. CAHILL: Dr.
Beschta, your proposal to put some
10 water somehow back in
Reach 1, would it result in flows
11 between zero and 400
cfs going through that reach?
12 DR. BESCHTA: In a
strict sense, yes. I mean, between
13 zero and 400?
14 MS. CAHILL: All right.
More exactly, would it be
15 likely to give you the
typical pattern of flows that was in
16 Reach 1 pre-1941?
17 DR. BESCHTA: No.
18 MS. CAHILL: Okay.
Would it give you approximately
19 1300 feet of running
stream?
20 DR. BESCHTA: It would
give you the 1300 feet of wet
21 stream -- of ponded
water with some flow, but it would be
22 very small. It
essentially would be a pond. I'm not
23 talking about creating
a stream. I'm talking about creating
24 a -- basically a
standing environment with some very small
25 flow.
CAPITOL REPORTERS (916)
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1 MS. CAHILL: Okay. But
you don't deny, do you, that
2 there was stream there
in at least part of this reach
3 pre-1941?
4 DR. BESCHTA: Obviously
there was, yes -- well,
5 pre-1941 I haven't --
there was a dam there and I don't know
6 what they did. I don't
know how they moved water around
7 during the period that
they were irrigating water. If you
8 go back prehistoric,
yes, there was water moving through
9 there.
10 MS. CAHILL: Dr.
Platts, would it be true to say that
11 in Reach 1 before 1941
cover was provided by boulders,
12 cobbles and riparian
vegetation along the margins of the
13 channel?
14 DR. PLATTS: I do not
know that.
15 MS. CAHILL: Do you
agree that there was dense
16 riparian vegetation
along the edges?
17 DR. PLATTS: I do.
18 MS. CAHILL: And was it
likely that there was
19 submerged beds of
aquatic plants?
20 DR. PLATTS: That part
I don't know.
21 MS. CAHILL: Would
Reach 1 have been a source of
22 sediments to the
stream below?
23 DR. PLATTS: That part
I don't know. With the dam in
24 the lower end I'm not
sure it would be. I can't answer that
25 question.
CAPITOL REPORTERS (916)
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1 MS. CAHILL: Okay. Would
it have been true that there
2 was some ripple and run
habitat in that reach?
3 DR. PLATTS: I cannot
visualize how the dam was
4 functioning in order to
divert into the A and C Ditches. So
5 I cannot picture what
that would be like at that time. I
6 can't answer that
question.
7 MS. CAHILL: Okay. What
would you like -- have you
8 walked at all in the
current dry stream reach below Grant
9 Dam?
10 DR. PLATTS: Yes, I
have.
11 MS. CAHILL: And what
type of habitat would you have
12 expected in that -- in
the stretch -- in the first 1300 feet
13 below the dam?
14 DR. PLATTS: I -- it
would be slow-moving habitat,
15 almost a ponded-type
habitat with -- the bottom would be --
16 with all the work that
had gone on in there to repair that
17 area to divert
irrigation waters was probably more in a
18 canal-type form
profile.
19 MS. CAHILL: If we --
let me shift gears a bit here.
20 Mr. Kavounas, the
Department of Fish and Game
21 submitted as its
Exhibit R-DFG-6 a letter from Robert
22 Yoshimura to Mr. Ed
Anton of the Water Resources Control
23 Board. Have you had an
opportunity to look at this exhibit?
24 MR. KAVOUNAS: Yes, I
have.
25 MS. CAHILL: And would
you agree that this is an
CAPITOL REPORTERS (916)
923-5447
456
1 accurate copy of the
letter that was sent to the Board?
2 MR. BIRMINGHAM: I'm
going to object on the grounds
3 that it goes beyond the
scope of the direct examination.
4 MS. CAHILL: It will be
tied in by the very next
5 question.
6 CHAIRMAN CAFFREY: I'm
sorry, I must apologize. I did
7 not hear the question,
but you say it will be tied in by the
8 very next question?
9 MS. CAHILL: It will be.
10 CHAIRMAN CAFFREY: Why
don't you proceed and we'll see
11 if that works for Mr.
Birmingham. Thank you, Ms. Cahill.
12 MS. CAHILL: Is it --
well, maybe it will take me two
13 questions to do it.
14 Does this letter
indicate that there were some
15 problems with the
so-called Lee Vining augmentation in 1996?
16 MR. BIRMINGHAM: Again,
I asked no questions
17 concerning Lee Vining
augmentation.
18 MS. CAHILL: You asked
questions about the release
19 facility and that will
be the next one.
20 CHAIRMAN CAFFREY:
Proceed and maybe we're getting
21 close to the point.
22 MS. CAHILL: Let me get
an answer to the last one.
23 MR. KAVOUNAS: Can you
please repeat the question?
24 MS. CAHILL: Isn't it
true that that letter indicates
25 there were problems
with the Lee Vining augmentation plan in
CAPITOL REPORTERS (916)
923-5447
457
1 1996?
2 MR. KAVOUNAS: It could
be interpreted that way if you
3 assume that the
Department was intending to do the Lee
4 Vining augmentation as
described in the plan. However, as
5 everybody heard in Mr.
Allen's testimony, the Department
6 couldn't have done the
Lee Vining augmentation because the
7 three necessary steps
have not been taken.
8 MS. CAHILL: Dr. Platts,
you testified that you
9 wouldn't recommend the
new release facility solely in order
10 to rewater Reach 1.
11 Do you believe that if
there were a new release
12 facility capable of
releasing the required flows, it would
13 be a more reliable way
of getting those flows to the entire
14 Rush Creek than
relying on the Lee Vining augmentation
15 scenario?
16 DR. PLATTS: It could
possibly be more reliable.
17 MS. CAHILL: Dr. Trush,
would you agree that a release
18 facility directly from
the dam would be a more reliable way
19 to get the required
flows for all of Rush Creek?
20 DR. TRUSH: Probably,
yes.
21 MS. CAHILL: And would
that be of benefit to the creek
22 and to the
restoration?
23 DR. TRUSH: If it were
-- if the reliability fell
24 within the bounds of
these thresholds that we identify,
25 yeah.
CAPITOL REPORTERS (916)
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458
1 MS. CAHILL: Dr. Trush,
if Reach 1 were rewatered and
2 carried the entire
recommended flows, would it serve as a
3 source of sediment to
the rest of the creek?
4 DR. TRUSH: Yes, but I'm
not sure how much, how
5 relatively unimportant
it would be. I suspect not.
6 MS. CAHILL: But it
would send some down?
7 DR. TRUSH: Yes.
8 MS. CAHILL: Dr.
Kauffman, could the change in timing
9 of peak flows influence
or favor one species over another?
10 DR. KAUFFMAN: Yes.
11 MS. CAHILL: Dr.
Platts, if the Fish and Game code
12 requires fish passage,
would you recommend that Los Angeles
13 Department of Water
and Power violate that law?
14 MR. BIRMINGHAM:
Objection, it calls for a legal
15 conclusion.
16 CHAIRMAN CAFFREY: You
don't have to answer that, sir.
17 MS. CAHILL: It does.
18 CHAIRMAN CAFFREY: Ms.
Cahill, it was a valiant
19 attempt.
20 MS. CAHILL: Thank you.
Actually, it didn't.
21 Actually, let me come
back. I didn't ask him if it would
22 violate the law. I
asked if he would recommend they violate
23 the law.
24 MR. BIRMINGHAM: We
would stipulate no member of this
25 panel would ever
recommend that any person violate the law.
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1 CHAIRMAN CAFFREY: I'll
accept that stipulation and
2 not require the answer.
3 MS. CAHILL: Thank you.
4 CHAIRMAN CAFFREY: Thank
you very much, Ms. Cahill.
5 Mary Scoonover.
6 Good morning, Ms.
Scoonover.
7 MS. SCOONOVER: Good
morning, Mr. Caffrey and Board
8 Members.
9 ---oOo---
10 RECROSS-EXAMINATION
11 BY CALIFORNIA STATE
LANDS COMMISSION AND CALIFORNIA
12 DEPARTMENT OF PARKS
AND RECREATION
13 MS. SCOONOVER: I have
a few questions for this panel
14 to follow up on some
of the questions that Mr. Birmingham
15 asked this morning
with respect to -- I guess particularly
16 Mr. Tillemans' and Dr.
Beschta's statement -- repeated
17 statements that the
streams are in better condition now than
18 pre-1941.
19 Is that an accurate
reflection of the statements you
20 made this morning, Mr.
Tillemans and and Dr. Beschta?
21 DR. BESCHTA: I don't
think I ever said they're in
22 better condition now
than they were -- if I did, then I
23 think I misspoke.
24 MS. SCOONOVER: Okay.
25 DR. BESCHTA: I would
say that they have the potential
CAPITOL REPORTERS (916)
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1 for being better with
restoration than they were in the
2 pre-1941 period. That
would be my conclusion.
3 MS. SCOONOVER: And that
means that if the DWP
4 Restoration Plan were
implemented, it is your belief that
5 the streams would be in
better condition after that
6 implementation than in
pre '41?
7 DR. BESCHTA: Yes.
8 MS. SCOONOVER: And
what's the basis for that
9 statement, Dr. Beschta?
10 DR. BESCHTA: The fact
that the disturbance regimes
11 are now in place, that
is, the flows are there and the fact
12 that you have removed
the grazing pressure from those
13 systems will allow the
vegetation to express itself and
14 you'll get the
interactions of the flows, the vegetation and
15 the sediment in
transport to create channels that are
16 capable of sustaining
fisheries and providing fish habitat.
17 MS. SCOONOVER: Dr.
Beschta, I assume you're familiar
18 with the Board's order
in this case, Decision 1631, and the
19 conclusions reached in
that order; is that correct?
20 DR. BESCHTA: I've read
this, but it's been a long
21 time ago. If you have
something specific that you want to
22 ask me, I guess.
23 MS. SCOONOVER: I would
direct your attention to page
24 91, "Conclusions
Regarding Riparian Vegetation." The first
25 paragraph, "Based
on the evidence discussed in Sections 5.1
CAPITOL REPORTERS (916)
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1 through 6.2.5 above, we
conclude that riparian and meadow
2 areas in the Mono
Basin" --
3 DR. BESCHTA: Excuse me.
Excuse me, I'm sorry. Where
4 are you at?
5 MS. SCOONOVER: Page 91,
the first paragraph.
6 DR. BESCHTA: All right,
all right.
7 MS. SCOONOVER:
"...we conclude that riparian and
8 meadow areas in the
Mono Basin were affected by pre-1941
9 land and water
management practices in various ways.
10 Grazing practices had
adverse effects on riparian vegetation
11 in some areas, but
long-term impacts from grazing were
12 localized and the
riparian community remained intact and
13 much more extensive
than today."
14 Continuing down into
the second paragraph then, "There
15 is widespread
recognition that the changes in water
16 management practices
since 1941 due to Mono Basin water
17 exports have had major
adverse impacts on riparian areas."
18 And beginning the last
sentence in that paragraph, "Some of
19 those effects are
irreversible."
20 Do you, Dr. Beschta,
disagree with any of the
21 conclusions reached in
this Decision 1631?
22 DR. BESCHTA: There are
some irreversible changes that
23 have taken place.
You've had some -- irreversible certainly
24 in our time frame,
that is, in my lifetime or your lifetime.
25 The downcutting, for
example, that has occurred on the lower
CAPITOL REPORTERS (916)
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1 end of Rush Creek is
not something you or I will ever see
2 probably put back
together again.
3 MS. SCOONOVER: And, Dr.
Beschta, is that downcutting
4 in the magnitude of,
say, 15 to 28 feet of incision?
5 DR. BESCHTA: In places
it could be that deep, yes.
6 MS. SCOONOVER: And
would you also agree that that
7 incision caused, say,
500,000 to a million cubic yards of
8 sediment to be washed
out into the lake?
9 DR. BESCHTA: Of
sediment that had previously been
10 placed there by
streams, yes.
11 MS. SCOONOVER: And
does the DWP plan in any way
12 attempt to remedy
those losses?
13 DR. BESCHTA: The plan
has no provisions that I'm
14 aware of for a
stockpiling or taking sediment back in and
15 restructuring those
portions of the channels.
16 MS. SCOONOVER: But
your testimony is that with the
17 restoration plan the
conditions of the streams, even with
18 those facts in mind,
the damage due to incision and the loss
19 of -- the sediment
into the lake, the streams will be in
20 better condition than
pre '41?
21 MR. BIRMINGHAM:
Objection, argumentative.
22 MS. SCOONOVER: I in no
way intended it to be
23 argumentative. I will
restate if that would satisfy
24 Mr. Birmingham's
concern. I believe the substance of the
25 question is
appropriate.
CAPITOL REPORTERS (916)
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1 CHAIRMAN CAFFREY: Do
you want to restate it?
2 MS. SCOONOVER:
Certainly.
3 In light of our
discussion, Dr. Beschta, do you
4 believe that the
restored streams -- the streams restored
5 under the DWP plan
would be in better condition than in
6 pre '41?
7 DR. BESCHTA: I think
the reestablishment of
8 vegetation and with the
flows that are being proposed, the
9 placement of those in
place and having that occur through
10 time, we will end up
with a stream, an aquatic system and
11 its associated
riparian system that will be as good or
12 perhaps better than
what was there in pre-1941 and provide
13 better fish habitat
than was certainly there in 1941.
14 MS. SCOONOVER: Dr.
Kauffman, are you familiar with
15 the Board's order
Decision 1631?
16 DR. KAUFFMAN: Yes.
17 MS. SCOONOVER: I would
direct your attention to page
18 87. Perhaps Dr.
Beschta will share his copy with you.
19 The top paragraph,
"Historically, riparian conifer
20 forests dominated
streamsides in the higher elevations and
21 gave way to
conifer-broadleaf forest and cottonwood-willow
22 woodlands at
successively lower elevations creating a
23 generally continuous
corridor from the montane forests of
24 higher elevations to
near the lake shore of Mono Lake."
25 Dr. Kauffman, is that
the condition at Mono Lake
CAPITOL REPORTERS (916)
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1 today?
2 MR. BIRMINGHAM:
Objection, exceeds the scope of the
3 redirect.
4 CHAIRMAN CAFFREY: I'm
sorry, I can't hear you,
5 Mr. Birmingham.
6 MR. BIRMINGHAM:
Objection, exceeds the scope of the
7 redirect.
8 MS. SCOONOVER: Mr.
Caffrey, I believe Mr. Birmingham
9 repeatedly throughout
his redirect made the point that the
10 restoration plans --
asked his panel to make the point that
11 the restoration plans
would leave the forest in
12 conditions -- leave
the lakes that the stream habitats in a
13 condition superior to
that which existed before. I'm merely
14 asking questions of
the same panel to perhaps reach a
15 different conclusion.
16 CHAIRMAN CAFFREY: Go
ahead with your question -- or
17 go ahead with your
answer.
18 DR. KAUFFMAN: Sure.
You want -- go ahead and restate
19 the question.
20 MS. SCOONOVER:
Certainly.
21 In light of this
paragraph on the top of page 87 from
22 the Board's D-1631, is
that the current condition along the
23 streams at Mono Lake
in the Mono Basin today?
24 DR. KAUFFMAN: Based
upon our recent map, we do see
25 that we have had in
the last ten years a pretty dramatic
CAPITOL REPORTERS (916)
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1 increase in the
cottonwood-willow dominated plant
2 communities to where
there is today an almost continuous
3 composition of
cottonwoods and willows from the Grant Lake
4 Dam to Mono Lake.
5 Now, clearly, the
vegetation's only ten years old. It
6 takes time for forests
to grow. So I think that to -- from
7 a structural
perspective, no. It's mostly young,
8 early-aged, woody
dominated riparian vegetation. However,
9 the successional
trajectory of the current composition would
10 lend one to believe
that, indeed, the potential does exist
11 for this to occur
again.
12 MS. SCOONOVER: The
potential exists but at present
13 day, then, am I
correct in understanding that that is not
14 the case, a continuous
corridor from the forests of higher
15 elevation to the
lakeshore?
16 MR. BIRMINGHAM: Asked
and answered.
17 MS. SCOONOVER: I
believe the answer was a bit
18 circuitous and I'm
only trying to make sure that I
19 understand the
response.
20 DR. KAUFFMAN: Yes,
yes. Yeah, the --
21 MR. BIRMINGHAM: Excuse
me, Dr. Kauffman.
22 DR. KAUFFMAN: I'm
sorry.
23 MR. BIRMINGHAM: I have
an objection that's pending.
24 The question was asked
and Dr. Kauffman answered it.
25 MS. SCOONOVER: Perhaps
Dr. Kauffman could remind me
CAPITOL REPORTERS (916)
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1 of his answer.
2 MR. BIRMINGHAM: The
record will speak for itself,
3 Mr. Caffrey.
4 CHAIRMAN CAFFREY: Go
ahead and answer the question
5 additionally.
6 DR. KAUFFMAN: Yes, I'd
be happy to. Again --
7 CHAIRMAN CAFFREY: She's
asking for a clarification.
8 Maybe she didn't
understand your answer. Be succinct.
9 DR. KAUFFMAN: Yes. What
I do see is that there has
10 been a dramatic
increase in the establishment and the
11 occurrence of
cottonwood-willow woodland communities from
12 Grant Lake now to Mono
Lake.
13 Those are in a --
they're young stands. I don't know
14 that -- let me re-read
this and let me tell you is there any
15 evidence of structure,
age, whatever. Yeah, clearly they're
16 a younger age group
now than they were prior to
17 Euro-American
settlement or in 1941.
18 MS. SCOONOVER: Thank
you, we'll move on.
19 Dr. Trush, this
morning you spoke about channel
20 maintenance flows and
floodplain maintenance flows. Are
21 those the same kinds
of flows or are those distinctly
22 different flows?
23 DR. TRUSH: They can be
different. Quite often when
24 we go to many alluvial
rivers we find that the initiation of
25 the channel bed is
slightly less than sort of the
CAPITOL REPORTERS (916)
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1 traditional bank full
flow or we're beginning to find that
2 mobilization of the bed
occurs at about .8 to .9 of the
3 depth of the bank flow,
whereas the more characteristic
4 flooding of the
floodplain is your bank full discharge
5 around a two-year
event. So there can be a slight
6 discrepancy.
7 MS. SCOONOVER: And the
purpose for the floodplain
8 maintenance flow as
opposed to the channel maintenance flow,
9 what's the difference?
10 DR. TRUSH: I think the
inundation of floodplains is
11 the key to the
restoration. Again, we always avoid talking
12 about Lower Lee Vining
because that's the basket case. It's
13 easier to talk about
Rush Creek, but Lower Lee Vining lost
14 its confinement almost
completely and the only way it's
15 going to come back is
by creating depositions and to start
16 to bring it back.
17 We're not going to
bring it back for a very long time.
18 We're already seeing
in some places a foot of deposition.
19 As that deposition
increases, you need higher and higher
20 floods to build up --
to build it up. So that is a critical
21 process, bringing back
confinement. And the only way you're
22 going to do that is by
deposition on these geomorphic
23 surfaces, the
floodplain and the low terrace.
24 MS. SCOONOVER: Are
there benefits to riparian
25 vegetation from
floodplain maintenance flows?
CAPITOL REPORTERS (916)
923-5447
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1 DR. TRUSH: Oh, clearly.
It very much determines what
2 you're going to find
out there.
3 MS. SCOONOVER: Are
there benefits to ground water
4 recharge from a
floodplain maintenance flow?
5 DR. TRUSH: Yes. It gets
into a little grayer area,
6 but there's been
several new studies done on floodplain
7 dynamics in these size
stream channels and it shows a pretty
8 dramatic influence of
peak flows and sort of a memory time
9 of that peak flow that
extends many weeks afterwards.
10 If you combine that
with some of the requirements of
11 seedlings where
documented growth I think was eight
12 centimeters a day on
root growth in the best conditions for
13 cottonwood to keep up
with the retreating ground water
14 table, that's probably
under the best conditions. But that
15 memory time after a
large flood of a gradually declining
16 ground water surface
can be enough to allow seedlings to
17 make it that year.
18 MS. SCOONOVER: And is
there a general rule of thumb
19 in terms of how often
these channeled maintenance flows are
20 necessary in an
environment like the Mono Basin?
21 DR. TRUSH: Well, there
-- and this is where the
22 Forest Service and
everyone else is looking for a cookbook
23 on it and it doesn't
exist.
24 One stream I'm working
on looks like it's the fifty to
25 a hundred year flood
is the key event. In Northern
CAPITOL REPORTERS (916)
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469
1 California I'm finding
a riparian signature at about a
2 five-year event in the
alder forest. Major cottonwood is a
3 wonderful example where
many places you don't see a diverse
4 age class of structure.
You see very distinct age classes,
5 which all are a signal
of some sort of major event.
6 So because the system's
been so manipulated below on
7 Rush and Lee Vining,
it's hard for me to figure that out
8 yet, what recurrence
that is.
9 MS. SCOONOVER: In a
controlled system, Dr. Trush,
10 would it be your
opinion that a channel maintenance flow
11 repeated at some
regular interval would be a good idea for
12 the restoration of the
creek?
13 DR. TRUSH: Oh, yeah,
vital. For instance, a study
14 was done on the Snake.
They're predicting in a hundred and
15 fifty years or so is
the end of the cottonwood forest along
16 the Snake River
because of the lack of fluctuation of flows
17 in creating the
conditions to allow succession and earlier
18 age classes to come
in.
19 So we're beginning to
find that out all over the
20 place, and I don't see
why that would be different on these
21 streams.
22 MS. SCOONOVER: Thank
you, that's all.
23 CHAIRMAN CAFFREY: All
right. Thank you,
24 Ms. Scoonover.
25 Mr. Birmingham, you
rise.
CAPITOL REPORTERS (916)
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1 MR. BIRMINGHAM: I do,
Mr. Caffrey. At this time the
2 Department of Water and
Power of the City of Los Angeles --
3 CHAIRMAN CAFFREY: Are
you about to offer your
4 exhibits?
5 MR. BIRMINGHAM: I am.
6 CHAIRMAN CAFFREY: We
actually haven't finished cross.
7 MR. BIRMINGHAM: Oh,
excuse me. I beg your pardon.
8 CHAIRMAN CAFFREY:
That's perfectly all right. It's a
9 long litany of people
who get to ask questions.
10 We will go to staff
for recross and then we will go to
11 the Board Members if
there are questions. Not to stifle
12 anybody because we
have to take the time that we have to
13 take within reason,
but we are trying to get certain folks
14 out of here by noon so
--
15 MR. FRINK: Staff only
has a couple questions,
16 Mr. Chairman.
17 CHAIRMAN CAFFREY:
Please.
18 ---oOo---
19 RECROSS-EXAMINATION
20 BY STAFF MEMBERS:
21 MR. CANADAY: This is
for Mr. Kavounas. In the
22 recross by Mr.
Birmingham he had questioned you about
23 irrigation in the Mono
Basin.
24 MR. KAVOUNAS: Yes.
25 MR. CANADAY: And you
said that there is currently no
CAPITOL REPORTERS (916)
923-5447
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1 irrigation occurring
below the LADWP conduit; is that
2 correct?
3 MR. KAVOUNAS: To my
knowledge, yes.
4 MR. CANADAY: Is there
any irrigation occurring above
5 the LADWP conduit at
this time?
6 MR. KAVOUNAS: I believe
-- I'd have to ask David, but
7 I believe off of one of
Walker or Parker. I'm not sure
8 which one.
9 MR. ALLEN: Yeah, there
is diversions -- the three
10 Parker Creek
diversions above the conduit.
11 MR. CANADAY: And do
you know what the rates or the
12 acre-foot per season
that's diverted?
13 MR. ALLEN:
Historically -- and I'm not positive on
14 this -- but I think
those three diversions totaled about
15 1500 acre-feet
annually.
16 MR. CANADAY: Are there
any diversions above the Lee
17 Vining Creek conduit
by the City of Los Angeles?
18 MR. ALLEN: Yes, there
are two diversions.
19 MR. CANADAY: And is
that for the Farrington
20 Diversion?
21 MR. ALLEN: That would
be the Farrington Diversion and
22 the Horse Meadows
Diversion.
23 MR. CANADAY: And
that's approximately a thousand
24 acre-feet per year?
25 MR. ALLEN: I'm not
sure on the numbers. I think they
CAPITOL REPORTERS (916)
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1 were around a thousand
-- eight hundred or a thousand
2 acre-feet per year.
3 MR. CANADAY: Thank you.
4 CHAIRMAN CAFFREY: Thank
you, Mr. Canaday.
5 Anything else from
staff?
6 MR. FRINK: No.
7 CHAIRMAN CAFFREY: Do
the Board Members have
8 questions?
9 BOARD MEMBER DEL PIERO:
No, I just found this on my
10 desk. Do you recognize
it?
11 MS. SCOONOVER: Get it
autographed.
12 CHAIRMAN CAFFREY: Ms.
Scoonover says to get it
13 autographed.
14 BOARD MEMBER DEL
PIERO: It is autographed. I got
15 this in '94. I got
this in '94 from Mr. Canaday who was
16 kind enough to get it
from you and I'd forgotten that. But
17 I read it, too.
18 MR. HUNTER: I won't
ask what you thought.
19 CHAIRMAN CAFFREY: Mr.
Canaday, do you wish to add one
20 final thing?
21 MR. CANADAY: Yes. Mr.
Caffrey, you asked me
22 yesterday to find a
document by the City of Los Angeles --
23 CHAIRMAN CAFFREY:
Thank you for reminding me.
24 MR. CANADAY: -- and as
you noticed as you came in
25 this morning a copy of
that was on your chair. I have
CAPITOL REPORTERS (916)
923-5447
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1 provided copies to all
parties who I had opportunity to talk
2 to this morning and I
have additional copies of that
3 document for anyone
else who would like that.
4 CHAIRMAN CAFFREY: Thank
you, sir, for reminding me of
5 that.
6 MR. BIRMINGHAM: I have
copies of it as well.
7 CHAIRMAN CAFFREY: Thank
you, Mr. Birmingham. You
8 came prepared as well.
I appreciate that from both you
9 gentlemen. If anybody
doesn't have a copy and wishes one,
10 you may see either
gentlemen. They have copies for you.
11 Where does that leave
us? We've completed all of the
12 recross then with this
panel. Do you wish to offer your
13 exhibits into
evidence, Mr. Birmingham?
14 MR. BIRMINGHAM: I
would. At this time I'd like to
15 offer R-DWP-1 through
R-DWP-8 inclusive. I would like to
16 offer R-DWP-15 through
R-DWP-31 inclusive. I would like to
17 offer R-DWP-36 through
68 inclusive.
18 CHAIRMAN CAFFREY: I
trust that staff is keeping track
19 of this numbering and
I assume that you included some of the
20 things that we
numbered yesterday.
21 MR. FRINK: I wonder if
you could identify Exhibit 68,
22 Mr. Birmingham?
23 MR. BIRMINGHAM:
"68" was Dr. Kauffman's bar chart.
24 CHAIRMAN CAFFREY:
That's what I was just referring
25 to.
CAPITOL REPORTERS (916)
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1 MR. JOHNS: We have two
pie charts, right, and one bar
2 graph?
3 MR. BIRMINGHAM: That's
correct. There's two pie
4 charts and Dr.
Kauffman's bar -- and perhaps what I could do
5 because I failed to do
it on redirect and I apologize, we
6 could ask Dr. Kauffman
to send to us a key that would answer
7 Mr. Canaday's
questions.
8 MR. JOHNS: As I recall,
we identified one of the pie
9 charts as
"28-A"?
10 MR. BIRMINGHAM: Yes,
and that was included in my
11 offer.
12 MR. JOHNS: And the
other pie chart was "66" and the
13 bar graph I have as
"67."
14 MR. BIRMINGHAM:
Correct.
15 CHAIRMAN CAFFREY:
We'll provide everybody with that
16 key?
17 MR. BIRMINGHAM: Yes.
18 CHAIRMAN CAFFREY:
Thank you, sir.
19 MR. JOHNS: We stop at
"67" then; is that correct?
20 MR. BIRMINGHAM: We
stop at "67," yes.
21 MR. JOHNS: Okay, thank
you.
22 CHAIRMAN CAFFREY: Is
there any objection to --
23 MR. DODGE: I don't
object, Mr. Caffrey, except that
24 part of Exhibit
R-DWP-28 appears to be some black and white
25 renditions of
vegetation maps that I assume are in color and
CAPITOL REPORTERS (916)
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1 we would appreciate
having a copy of the colored version.
2 MR. BIRMINGHAM: We
would be more than happy to
3 provide Mr. Dodge with
a copy of the colored versions at his
4 expense. The reason I
say that is we actually sent those
5 out to be photocopied,
and to photocopy them in color was in
6 excess of $2300. So
that's the reason that they're in black
7 and white.
8 DR. KAUFFMAN: I'll do
my best to try to reprogram my
9 legends to where
they're readable in black and white.
10 MR. DODGE: Well, if
they're going to provide us a
11 black and white
rendition, then that's what should be in
12 evidence. If they want
to put a color rendition in
13 evidence, then I
believe we're entitled to receive one.
14 MR. BIRMINGHAM: I
would then --
15 CHAIRMAN CAFFREY: I'm
not sure I have -- I'm not sure
16 anybody here has the
expertise with regard to the color
17 spectrums for
evidence.
18 Mr. Frink, where are
we here? Poor Mr. Frink. I
19 doubt we pay you
enough.
20 MR. FRINK: I'm not
altogether certain where we are on
21 this but --
22 CHAIRMAN CAFFREY: Nor
am I, Mr. Frink.
23 MR. FRINK: -- but Mr.
Canaday reminds me that we
24 would have to ability
to print them out in color if we could
25 receive copies of the
charts on disk.
CAPITOL REPORTERS (916)
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1 DR. KAUFFMAN: The disks
come on a zip drive and it's
2 about a hundred megs.
Do you have the capability to do
3 that?
4 CHAIRMAN CAFFREY:
Somebody at home does. We could,
5 but we probably can't
do that.
6 MR. FRINK: Okay, I
withdraw that suggestion.
7 CHAIRMAN CAFFREY: This
comes under the heading of
8 housekeeping. If you'll
bear with us for a moment. I think
9 we're about to solve
it.
10 BOARD MEMBER DEL
PIERO: Does the department across
11 the street have that
capability?
12 MR. JOHNS: As I
understand, we have these in black
13 and white. We don't
have them in color.
14 CHAIRMAN CAFFREY: Are
they illegible in black and
15 white?
16 MR. CANADAY:
Basically.
17 CHAIRMAN CAFFREY: Are
the gradations between the hues
18 of gray such that one
cannot follow the legend, let me ask
19 you that?
20 DR. KAUFFMAN: I found
them to be not very useful in
21 black and white.
22 CHAIRMAN CAFFREY: Does
anybody else have a problem
23 with what is currently
in evidence?
24 BOARD MEMBER
STUBCHAER: Mr. Chairman.
25 CHAIRMAN CAFFREY: Yes.
CAPITOL REPORTERS (916)
923-5447
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1 MR. CANADAY: Mr.
Chairman.
2 CHAIRMAN CAFFREY: I got
a question from Mr. Canaday
3 here and then --
4 MR. CANADAY: Just a
response to your question,
5 Mr. Caffrey. As they
exist in the exhibit in their form of
6 reproduction they are
basically unusable.
7 CHAIRMAN CAFFREY: They
are, all right. Then let's do
8 this: Let's get a copy
-- can we get a copy of the --
9 something that's in
proper color that could be construed as
10 an original, whether
it be an electronic form or hard copy,
11 and then we'll see
what we can do to reproduce them?
12 Is that where I saw
the staff heading? Mr. Johns,
13 Mr. Frink?
14 MR. FRINK: I'm not
certain about our ability to
15 reproduce them. I
would state, however, that there's no
16 requirement that the
Board find every exhibit that's
17 submitted to be as
useful as it could be if it were
18 submitted in another
form.
19 BOARD MEMBER DEL
PIERO: If nobody can read it, Danny,
20 that's pushing it
beyond the limits.
21 CHAIRMAN CAFFREY: Mr.
Stubchaer, perhaps our most
22 experienced water
rights hearing officer, has a suggestion.
23 BOARD MEMBER
STUBCHAER: This has nothing to do with
24 water rights hearings,
but it is has to do with computer
25 graphics. Use a
pattern instead of a color and they'll be
CAPITOL REPORTERS (916)
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1 perfectly usable in
black and white. Specify a pattern for
2 each section.
3 DR. KAUFFMAN: Yeah,
yeah, yes. Good point.
4 CHAIRMAN CAFFREY: Can
you do that, Dr. Kauffman? Is
5 that --
6 DR. KAUFFMAN: I can't
do that instantly. I can't
7 will that to happen. I
have to do it and I don't know how
8 many hours that will
take.
9 BOARD MEMBER STUBCHAER:
If we're going to get
10 something, Mr.
Chairman, on a disk it's just a simple matter
11 to set up.
12 CHAIRMAN CAFFREY: Mr.
Birmingham.
13 MR. BIRMINGHAM:
Perhaps we could do this: Perhaps we
14 could make one color
copy available to the Board and make
15 one color copy
available to each party who insists that it
16 is absolutely
necessary for their case. There are lots of
17 parties here who are
not interested in this subject at all,
18 as evidenced by the
fact they've asked no questions and
19 submitted no
testimony.
20 CHAIRMAN CAFFREY: I
think that's a reasonable
21 suggestion and a
helpful one. Let's go with that and see
22 where that takes us.
With that suggestion -- and Mr. Dodge
23 did say it was not an
objection. He was asking for some
24 help. Is that
agreeable, Mr. Dodge?
25 MR. DODGE: Perfectly
fine.
CAPITOL REPORTERS (916)
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1 CHAIRMAN CAFFREY: Thank
you, sir.
2 Is there any objection,
then, to the acceptance of
3 these exhibits into the
record as proposed by
4 Mr. Birmingham? Hearing
and seeing none they are accepted.
5 Thank you very much,
sir.
6 MR. BIRMINGHAM: Thank
you.
7 CHAIRMAN CAFFREY: Mr.
Dodge, do you wish to raise a
8 point?
9 MR. DODGE: Just very
briefly. As we indicated in
10 some of the colloquy,
Dr. Trush is a witness for me on
11 direct examination.
But based on your comments,
12 Mr. Caffrey, I'm going
to tell him to go home.
13 CHAIRMAN CAFFREY: Yes,
because at the rate we're
14 going we're obviously
not going to get to your direct in
15 this three-day block
and we'll do it in the succeeding
16 two-day block.
17 MR. DODGE: I'm going
to advise all my witnesses of
18 that, if I may?
19 CHAIRMAN CAFFREY: I
think that would -- unless
20 there's an objection,
that's probably quite reasonable at
21 this point.
22 MR. DODGE: Thank you.
23 MR. BIRMINGHAM: Mr.
Caffrey, we will renew our offer
24 to admit Dr. Trush's
direct testimony on behalf of NAS/MLC
25 without
cross-examination. I don't know if that --
CAPITOL REPORTERS (916)
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1 MR. DODGE: No, we'll
bring him back.
2 CHAIRMAN CAFFREY: I
believe -- yeah, I believe
3 that -- thank you for
that, but I believe that was rejected
4 earlier. So we're going
to go beyond the three days anyway
5 as it appears.
6 All right, that takes
us probably to a logical point
7 at which to break for
lunch. We'll be back --
8 BOARD MEMBER DEL PIERO:
There's another question back
9 there.
10 CHAIRMAN CAFFREY: Oh,
was there another question?
11 Yes, sir.
12 MR. MOONEY: With
regards to --
13 CHAIRMAN CAFFREY:
That's Mr. Mooney. Yes, sir.
14 MR. MOONEY: With
regards to the scheduling, I also
15 have some witnesses
here and I'm concerned that where we are
16 in the order that we
may not get to them on Friday, but I
17 certainly don't want
--
18 CHAIRMAN CAFFREY:
We're not meeting Friday.
19 MR. MOONEY: I mean on
Thursday, right. Sorry, I lost
20 track. And I certainly
don't want to have them waiting
21 around for a day and a
half with only a slight chance that
22 it looks like the way
this hearing has progressed so far
23 that we would get to
them.
24 CHAIRMAN CAFFREY: It's
difficult to tell at this
25 point. I would
certainly -- we could take another gauge of
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1 it all about 4:00
o'clock this afternoon and see how much
2 we've accomplished. I
certainly expect that -- although I
3 can't say, that the
waterfowl coverage, so to speak, will
4 take a while, but I
don't know.
5 Can anybody -- what do
you think, Mr. Frink?
6 MR. FRINK: Well, I'm
looking at the parties who come
7 before Mr. Beckman.
There's the Forest Service who
8 submitted very little.
The Bureau of Land Management
9 submitted very little.
The Trust for Public Land hasn't
10 appeared. The People
for Preservation of Mono Basin have a
11 substantial amount of
evidence, but then Mr. Beckman's next.
12 So I think it is
likely that we would reach you by the
13 end of tomorrow. I'm
not certain.
14 MR. MOONEY: Would
there be a possibility Mr. Beckman
15 could maybe -- if
there's other parties below him that
16 intend to be here and
their witnesses intend to be here
17 through tomorrow, that
they could -- Mr. Beckman could be
18 bumped down one or two
notches?
19 MS. BELLOMO: Chairman
Caffrey, the People for Mono
20 Basin Preservation had
offered to Mr. Mooney that if it's a
21 question of Mr.
Beckman having to stay over, we don't mind
22 if he goes ahead of us
because we are going to be here
23 through the duration.
24 CHAIRMAN CAFFREY: Is
there any objection from the
25 Board Members or the
parties to make that accommodation for
CAPITOL REPORTERS (916)
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1 Mr. Beckman?
2 BOARD MEMBER DEL PIERO:
I don't object, Mr. Chairman.
3 It's my sense that we
aren't going to get to him anyway. I
4 mean, we're looking at
-- we've got five hours left today
5 not counting breaks.
We've got two more panels on behalf of
6 Mr. Birmingham -- we've
got it consolidated?
7 MR. DODGE: No, just
one.
8 CHAIRMAN CAFFREY: Just
waterfowl.
9 MR. DODGE: In my
opinion, and I'm sure I'll eat these
10 words, the waterfowl
panel will go pretty quickly.
11 BOARD MEMBER DEL
PIERO: Well, then maybe it is
12 possible.
13 CHAIRMAN CAFFREY:
Yeah, I just --
14 BOARD MEMBER DEL
PIERO: Wait a second.
15 Ms. Scoonover, do you
feel the same way?
16 MS. SCOONOVER: Ooh --
17 BOARD MEMBER DEL
PIERO: I didn't think so, okay.
18 CHAIRMAN CAFFREY: Mr.
Mooney, I promise you that at
19 the moment we have a
little bit better handle on this I'll
20 try to give you an
appraisal of where we are. I'll also
21 tell you that if we
get -- even though we've got a situation
22 where we're avoiding
night schedules on behalf of the Board
23 Members, including
myself tonight, if we get tomorrow to
24 where it's late in the
day but we can still get your direct
25 on, I would stay to do
that.
CAPITOL REPORTERS (916)
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1 How long do you think
your direct is going to be, by
2 the way?
3 MR. MOONEY: It will be
very, very short.
4 CHAIRMAN CAFFREY: I
will later this afternoon --
5 let's gauge again where
we are and see if we can give you a
6 little bit better
information. I'm sorry I can't -- I would
7 be remiss if I advised
you to send your people home and then
8 we needed them so --
9 MR. MOONEY: Thank you.
10 CHAIRMAN CAFFREY:
Thank you for asking and we'll stay
11 on it. With that then,
why don't we take a break for lunch.
12 It's just about noon
and let's come back at 1:00 o'clock and
13 resume, thank you.
14 (Lunch recess taken.)
15 ---oOo---
16
17
18
19
20
21
22
23
24
25
CAPITOL REPORTERS (916)
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1 AFTERNOON SESSION
2 ---oOo---
3 CHAIRMAN CAFFREY: All
right, let us continue with the
4 hearing. Before we do
that, Mr. Canaday has an announcement
5 for the parties that
he'd like to make.
6 MR. CANADAY: Thank you,
Mr. Caffrey. I do want to
7 remind the parties here
that our most able court reporters
8 are from Capitol
Reporters. We have Ms. Veres today and
9 Esther we had yesterday
and you need to contact them or
10 Capitol Reporters to
get transcripts. So I encourage you to
11 do so, but that's who
it is from and if you need a card Teri
12 will provide you with
a card today.
13 CHAIRMAN CAFFREY:
Thank you, Mr. Canaday.
14 Mr. Birmingham are you
ready -- oops, what do we have
15 here? Do you need this
back, Mr. Birmingham?
16 MR. BIRMINGHAM: No,
you can keep it.
17 CHAIRMAN CAFFREY: Oh,
all right. Are you ready, sir,
18 for direct on the
waterfowl panel?
19 MR. BIRMINGHAM: Yes,
we are. At this time I would --
20 at this time the
Department of Water and Power of the City
21 of Los Angeles would
like to call Peter Kavounas, Brian
22 Tillemans, James
Perrault and Brian White Ph.D.
23 CHAIRMAN CAFFREY: And,
Mr. Birmingham, I would remind
24 you that according to
our clock you have 24 minutes left for
25 this panel as that
portion of your original two hours.
CAPITOL REPORTERS (916)
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1 MR. BIRMINGHAM: You
needn't remind me of that,
2 although I would like
to remind the panel.
3 CHAIRMAN CAFFREY: It's
amazing what we do around here
4 under the guise of
precision, isn't it?
5 MR. BIRMINGHAM: Yes, I
agree. I'm confident that we
6 can conclude this
within the allotted time.
7 CHAIRMAN CAFFREY: Thank
you very much, sir.
8 ---oOo---
9 DIRECT EXAMINATION
10 BY LOS ANGELES
DEPARTMENT OF WATER AND POWER
11 MR. BIRMINGHAM: There
are two new members of the
12 panel that I will ask
to introduce themselves. The first is
13 Jim Perrault.
14 Mr. Perrault, is
Exhibit R-DWP-10 a copy of a
15 statement of your
qualifications?
16 MR. PERRAULT: Yes, it
is.
17 MR. BIRMINGHAM: All
right, thank you.
18 And Brian White. Dr.
White, is the document that's
19 been introduced or
marked -- excuse me, marked for purposes
20 of identification as
R-DWP-9 a statement of your
21 qualifications?
22 DR. WHITE: Yes, it is.
23 CHAIRMAN CAFFREY: Mr.
Birmingham, excuse me for
24 interrupting you, but
I'm presuming that all of these
25 witnesses were here
yesterday and have taken the oath?
CAPITOL REPORTERS (916)
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1 MR. BIRMINGHAM: They
were and they have, yes.
2 CHAIRMAN CAFFREY: Thank
you.
3 MR. BIRMINGHAM: Mr.
Kavounas, R-DWP-32 is a document
4 entitled "Direct
Testimony of Peter Kavounas On The Adequacy
5 Of The Waterfowl
Habitat Restoration Plan."
6 Is that correct?
7 MR. KAVOUNAS: That's
correct.
8 MR. BIRMINGHAM: Did you
prepare R-DWP-32?
9 MR. KAVOUNAS: Yes, I
did.
10 MR. BIRMINGHAM: Is
there a correction that you would
11 like to make to that
document?
12 MR. KAVOUNAS: Yes,
there is. It's a typographical
13 error. On page two of
that testimony -- excuse me, page
14 four of that
testimony, of the second to last full
15 paragraph, second from
the last line it currently reads
16 "...made the
monitoring adequate." It should read "...made
17 the monitoring
inadequate."
18 MR. BIRMINGHAM: Is it
necessary for to you summarize
19 this testimony or
would you prefer to just reserve the time
20 for the other members
of the panel?
21 MR. KAVOUNAS: The
latter.
22 MR. BIRMINGHAM: Mr.
Perrault, Exhibit R-DWP-35 for
23 identification is a
document entitled "Direct Testimony Of
24 James R.
Perrault." Did you prepare that exhibit?
25 MR. PERRAULT: Yes, I
did.
CAPITOL REPORTERS (916)
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1 MR. BIRMINGHAM: And is
it your written testimony?
2 MR. PERRAULT: Yes, it
is.
3 MR. BIRMINGHAM: Would
you please take a few moments
4 and briefly describe
your qualifications and then summarize
5 R-DWP-35?
6 MR. PERRAULT: Yes, I
will. I'd like to grab an
7 exhibit first, though.
8 MR. BIRMINGHAM: Yes.
The exhibit that you have
9 grabbed is R-DWP-65; is
that correct?
10 MR. PERRAULT: Yes, it
is.
11 MR. BIRMINGHAM: Go
ahead please with a summary of
12 your testimony and a
brief statement of your qualifications.
13 MR. PERRAULT: Okay. My
name is Jim Perrault. I am a
14 Civil Engineer
Assistant with the Los Angeles Department of
15 Water and Power, have
been employed in that capacity for the
16 last five and a half
years.
17 What I'd like to
present today is a brief summary of
18 my testimony which
addresses the Mill Creek component of the
19 Waterfowl Habitat
Restoration Plan prepared by the DWP, and
20 the proposal is to
rewater the lower portion of Mill Creek
21 to create waterfowl
habitat. The plan was developed by DWP
22 relying on the
recommendations of three waterfowl
23 consultants.
24 Before I present the
plan and DWP -- or the
25 recommendations of the
consultants of DWP's Mill Creek Plan
CAPITOL REPORTERS (916)
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1 based on those
recommendations, as a basis of understanding
2 I would like to give a
brief background, including the
3 historical water usage
practices, the hydrology, the water
4 rights facilities and
track Mill Creek water through its
5 system. Also, because
there are some unresolved issues,
6 I'll briefly discuss
those as well.
7 For more than a hundred
years the waters of Mill Creek
8 have been diverted for
irrigation purposes. Power
9 generation on Mill
Creek began in the early 1900's and in
10 1911 the predecessors
to Edison built a power plant which
11 greatly changed the
distribution of water in the system.
12 DWP entered the Mill
Creek area in the 1930's when we
13 bought up water rights
with the intention of extending the
14 Lee Vining conduit up
to Mill Creek. This plan never came
15 to fruition and as a
result DWP has only continued
16 historical irrigation
practices, and so DWP's control in
17 Mill Creek is very
limited and Edison's presence is much
18 more influential.
19 Mill Creek, just as a
background, has an average
20 annual flow of roughly
29 cfs, which is approximately half
21 the size of Lee Vining
Creek, a third of the size of Rush
22 Creek.
23 Water rights on Mill
Creek were established through
24 two decrees, the 1901
Decree and the 1914 Decree. Currently
25 there are four water
right holders on the creek, and the
CAPITOL REPORTERS (916)
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1 rights are tabulated by
seniority and quantity in my
2 testimony. By the way,
Colony Ranch holds a senior right
3 and DWP holds more than
50 percent of the right. Although
4 the powerhouse has a
capacity of 70 cfs, it's rarely used at
5 that capacity. Peak
flows are generally about 55 cfs
6 through the powerhouse.
7 Let me give a brief
summary of the different
8 facilities on the
project -- excuse me, on the creek.
9 Okay, the major
projects on the system are the Lundy Lake
10 Reservoir and the
Lundy Project, which consists of the
11 reservoir, the
penstock and the powerhouse which is located
12 here. The other two
major features are the Conway
13 Irrigation System and
the Thompson Irrigation System. Water
14 from here can be
released either through the penstock or
15 through an outlet
structure on the dam down Mill Creek, and
16 at this point after
water reaches the powerhouse it can be
17 either diverted
through the Conway Irrigation System or pass
18 on down Wilson Creek
where it can also be diverted at other
19 locations.
20 Water that is passed
through down Mill Creek can be
21 diverted off the
Thompson Ranch through a series of
22 irrigation -- or a
system of irrigation ditches or also
23 flows down to Mono
Lake. Water can also be returned at
24 Edison's SCE, their
return ditch.
25 BOARD MEMBER BROWN:
That returns it to Mono Lake or
CAPITOL REPORTERS (916)
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1 where?
2 MR. PERRAULT: That
returns it to Mill Creek.
3 MR. BIRMINGHAM: Excuse
me. Mr. Brown, I have a copy
4 of R-DWP-65.
5 CHAIRMAN CAFFREY: Yes,
we have them up here. Thank
6 you, Mr. Birmingham.
7 MR. PERRAULT: The
capacity of the different
8 facilities on the
system are also given in my testimony.
9 Although full
restoration may be preferable, it's not
10 possible with the
current conditions due to the presence of
11 Lundy Reservoir and
other legal and physical constraints and
12 the consultants
understood this when they presented their
13 plan to DWP.
14 As a result, they
presented a conceptual plan with
15 three main elements,
which was to establish year-round
16 flows, to mimic the
natural hydrology to the extent possible
17 with the limitations,
and to spread the flow among the lower
18 distributaries. They
suggested this be done through the
19 first step of DWP
dedicating its irrigation rights and that
20 the U.S. Forest
Service dedicate part of their rights if
21 possible and, also,
that methods should be explored to
22 obtain a fall/winter
flow and that the capacity of Edison's
23 Return Ditch -- it
should be explored to increase the
24 capacity of the ditch.
25 The final Mill Creek
Plan prepared by DWP provides the
CAPITOL REPORTERS (916)
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1 conceptual elements
required by the waterfowl consultants
2 with some modifications
to the phased approach. The plan
3 establishes a
year-round flow. The plan also mimics the
4 natural hydrology to
the extent possible with the
5 limitations on the
creek. It does not propose the Forest
6 Service right because
of the low priority and inability to
7 bring it through the
ditch, and it does not propose
8 distribution of the
flow. And that is discussed in my
9 testimony. It also does
not propose increasing the capacity
10 of Edison's ditch and,
once again, the reason being it's an
11 Edison facility and
they've expressed an unwillingness to do
12 so.
13 The flows that are
proposed by DWP are, once again,
14 tabulated in my
testimony and additional flows are also made
15 available by the
releases that Edison makes from Lundy
16 Reservoir in wet and
normal years.
17 As I indicated, there
are a couple unresolved issues,
18 one of which is the
pending FERC license. Edison is
19 currently in the
process of being relicensed by FERC, and
20 the U.S. Forest
Service as a 4e condition has sought to
21 impose a seven cfs
direct release to Mill Creek. Southern
22 California Edison has
challenged this authority and a
23 decision is likely in
this by the fall of '97.
24 Two other unresolved
issues were brought out in
25 protest to DWP's
application for the fall/winter flow and
CAPITOL REPORTERS (916)
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1 these two issues were
the owner of the Conway Ranch,
2 Mr. Beckman, has
claimed an injury to his existing right and
3 other environmental
issues were also raised, including the
4 Brown Trout Fishery on
Wilson Creek.
5 The environmental
issues will be resolved -- would
6 ultimately be resolved
through the CEQA process and --
7 however, DWP strongly
feels that prior to undertaking the
8 expensive CEQA process
that Mr. Beckman's injury claim needs
9 to be resolved first.
10 And that summarizes my
testimony.
11 MR. BIRMINGHAM: Thank
you.
12 Mr. Tillemans,
R-DWP-34 is a document entitled "Direct
13 Testimony Of Brian
Tillemans On Mono Basin Waterfowl Habitat
14 Restoration
Plan." Is that correct?
15 MR. TILLEMANS: That's
correct.
16 MR. BIRMINGHAM: Did
you prepare Exhibit R-DWP-34 as
17 your direct testimony
for purposes of this hearing on this
18 issue?
19 MR. TILLEMANS: That's
correct.
20 MR. BIRMINGHAM: Would
you please take a few moments
21 and summarize that
testimony.
22 MR. TILLEMANS: Okay.
Basically, my involvement with
23 the Waterfowl
Restoration Plan by LADWP pertains to the
24 proposed burning
program; and our burning program basically
25 mimics what the
waterfowl scientists had recommended, which
CAPITOL REPORTERS (916)
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1 is to burn
approximately 1,000 to 1200 plus or minus acres
2 of marsh and seasonal
wet meadow habitats listed in Table 1,
3 page 36, in Appendix I
of the plan.
4 And I've identified a
mechanism by which to do that,
5 and basically that is
the same mechanism I've used so far in
6 my 15-year career in
terms of implementing burns on
7 Department property,
which is I've burned literally
8 thousands of acres in
terms of range burns and
9 wildlife-related
projects and I am currently planning one
10 for the Buckley Ponds
project right now. So it's been a
11 very cooperative
relationship with the CDF, California
12 Department of
Forestry, and Fire Protection's VMP Program, a
13 very good working
relationship with them, a very efficient
14 one and that is the
mechanism we use to plan and implement
15 our burns.
16 MR. BIRMINGHAM: Thank
you very much, Mr. Tillemans.
17 Before I go on to Dr.
White, Mr. Perrault, during your
18 examination I failed
to ask you is R-DWP-64 a map which was
19 submitted in
connection with your testimony a map of the
20 Mill Creek Waterfowl
Habitat Restoration Project?
21 MR. PERRAULT: Yes, it
is.
22 MR. BIRMINGHAM: Thank
you.
23 Next, Dr. White,
R-DWP-33 is a document entitled
24 "Direct Testimony
Of Brian White Ph.D." Is that correct?
25 DR. WHITE: Yes, it is.
CAPITOL REPORTERS (916)
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1 MR. BIRMINGHAM: And is
that direct testimony which
2 you've prepared for
purposes of this proceeding?
3 DR. WHITE: Yes, it is.
4 MR. BIRMINGHAM: Would
you please take a few moments
5 and first summarize
your qualifications and then summarize
6 the testimony that was
submitted as R-DWP-33.
7 DR. WHITE: I've been a
biologist with the Department
8 of Water and Power for
almost 11 years now. I was hired to
9 work on Mono Basin
issues and I have been involved with
10 scoping work,
administering contracts, analyzing data and
11 things like that. For
what whole period of time I've worked
12 with I think just
about everybody who has done any kind of
13 work on aquatic
biology at Mono Lake and I worked closely
14 with Mr. Canaday and
Mr. Herrera on the EIR, and I think
15 I've reviewed
everything that's been published on this
16 subject from raw data
form to published manuscripts.
17 I just have a few
points I want to make about our
18 Monitoring Plan.
That's the portion of the Lakeland
19 Knowledge and Primary
Secondary Production portion of our
20 Monitoring Plan,
because that's the part I was asked to
21 contribute to, and on
the basis of the comments we received
22 there are a few points
I want to make.
23 We do retain our focus
on the open water pelagic
24 system and that's for
several reasons: the physical,
25 chemical and
biological processes. They are very well
CAPITOL REPORTERS (916)
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1 understood on the basis
of -- oh, of almost 16, 17 years of
2 work that UC Santa
Barbara has done. Dr. John Melack
3 testified to that
before the Board a couple of years ago and
4 we have developed a
very good index of primary and secondary
5 production. Actually,
in my mind second to none. With the
6 historical baseline and
the understanding that goes with it
7 it's, in my mind,
almost an environmental thermometer. You
8 can just put it in and
check and see how things are doing.
9 We at this -- I did not
choose to include benthic
10 monitoring for several
reasons. One is that the models that
11 have been produced for
the EIR and outside the EIR have all
12 come to a similar
conclusion and, that is, that the amount
13 of change we can
expect over the range of lake levels in the
14 decision is very
small, less than ten percent; and in a
15 natural system it can
be expected to vary much more than ten
16 percent from natural
reasons. Finding a ten percent
17 difference is
difficult.
18 So we expect a small
change. It's hard to sample the
19 benthos. It's not like
the open water where we can do
20 planktonthos. The
distribution is very complex for the
21 brine fly and -- which
is the main benthic invertebrate and
22 so it's very difficult
to sample and I brought for the
23 purpose of
illustration Auxiliary Report No. 8 to the EIR.
24 There is a pair of
charts here, Figure 13 and Figure
25 14 -- shall I just
hand it to the Board?
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1 MR. BIRMINGHAM:
(Nodding of the head.)
2 DR. WHITE: Just an
illustration of what the result
3 can be of a very patchy
distribution. You can see here that
4 the air bars around the
estimates of the abundance of the
5 brine fly that drift in
the water are very, very wide so
6 that over a period of
the seasons it was not possible for
7 the purposes of the EIR
to demonstrate a difference in the
8 abundance of the drift.
9 CHAIRMAN CAFFREY: This
is in the record,
10 Mr. Birmingham?
11 MR. BIRMINGHAM: Yes,
it is. It is part of one of the
12 Board's exhibits.
13 CHAIRMAN CAFFREY: All
right. I was just going to ask
14 do you need to cite a
number, but apparently not. Nobody
15 seems to be worried
about it. Please, proceed.
16 DR. WHITE: So we
expect a small change. It's
17 difficult to sample
and it's going to be hard to understand
18 because we don't have
a very good baseline of historical
19 data. There's none for
the adults at all. The drift data
20 that you see, we have
one year's worth and it's of very
21 little use and the
basic biological processes of the alkali
22 fly and how it
interacts with its ecosystem are unknown. So
23 that's the reason we
why we've retained our original
24 emphasis on the open
water pelagic habitat.
25 That concludes what I
have to say.
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1 MR. BIRMINGHAM: May the
record reflect, Mr. Caffrey,
2 that the Department of
Water and Power concluded the
3 presentation of its
case in chief within the two hours
4 allotted.
5 BOARD MEMBER STUBCHAER:
With 5.44 --
6 CHAIRMAN CAFFREY: Five
minutes and 44 seconds if I
7 had a glimpse of it
just before Mr. Stubchaer turned it off.
8 He's so strict.
9 BOARD MEMBER STUBCHAER:
I put the red light on.
10 CHAIRMAN CAFFREY: Oh,
I see.
11 Mr. Dodge.
12 MR. DODGE: It's times
like this that I'm grateful I
13 represent two parties.
14 CHAIRMAN CAFFREY: All
right. It is now time for
15 cross-examination of
this panel and I'll go down the list
16 again. U.S. Forest
Service, Mr. Gipsman?
17 MR. GIPSMAN: No
cross-examination.
18 CHAIRMAN CAFFREY:
Thank you, sir.
19 Bureau of Land
Management? Were they not here?
20 MR. RUSSI: We have
none.
21 CHAIRMAN CAFFREY: Oh,
Mr. Russi. Thank you, sir.
22 People for the
Preservation of Mono Basin,
23 Ms. Bellomo. Good
afternoon and welcome.
24 ///
25 ///
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1 ---oOo---
2 CROSS-EXAMINATION
3 BY PEOPLE FOR THE
PRESERVATION OF MONO BASIN
4 MS. BELLOMO: Thank you,
good afternoon. I've
5 organized my questions
by witness, but I realize from
6 watching the last day
and a half that there may be others of
7 you who could answer
the questions, but I will be directing
8 them specifically to
Mr. Kavounas and Mr. Perrault.
9 If I can ask you, Mr.
Kavounas, to turn to your
10 testimony in Exhibit
32. You state on page two that -- you
11 explain your LADWP
proposal for Mill Creek and you said
12 Mr. Perrault will
explain it in detail and then you go on to
13 say, "While the
entire flow of Mill Creek, if returned to
14 its natural course,
would benefit the entire Mill Creek
15 ecosystem, the
waterfowl habitat aspect of it is minimal,"
16 and I would like to
ask you to explain the basis of that
17 conclusion.
18 MR. KAVOUNAS: As you
can understand, this is not a
19 conclusion that I
reached based on my experience or
20 knowledge. This is a
conclusion that I reached based on
21 information that I've
received, part of which is included in
22 the People for Mono
Basin Preservation's testimony that
23 included statements
from -- I believe Dr. Scott Stine who
24 said that if the whole
Mill Creek ecosystem is to be
25 restored, the
waterfowl habitat element of it would be but a
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1 minor part.
2 MS. BELLOMO: Did you
specifically ever hear --
3 yourself hear Dr. Stine
make such a comment?
4 MR. KAVOUNAS: I did in
a videotaping of that meeting
5 of -- I believe it was
November 8.
6 MS. BELLOMO: That took
place in Lee Vining at the
7 fire hall?
8 MR. KAVOUNAS: I
couldn't tell from the videotape, but
9 I believe so.
10 MS. BELLOMO: Can you
explain to me what the -- your
11 understanding or what
the Department of Water and Power's
12 understanding of the
goal of the waterfowl habitat
13 restoration effort is?
14 MR. KAVOUNAS: Let me
refer to the Decision. As I
15 stated earlier, the
Decision guided the Department preparing
16 the plans.
17 On page 204, Paragraph
8, the Decision states that
18 licensee shall prepare
and submit to the State Board for
19 approval a -- in
addition to the Stream and Stream Channel
20 Restoration Plan a
Waterfowl Habitat Restoration Plan, the
21 objects of which shall
be "...to help mitigate for the loss
22 of waterfowl habitat
due to the diversion of water under
23 this license. The
plans shall include consideration of
24 measures to promote
the restoration of the affected streams
25 and lake-fringing
waterfowl habitat..."
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1 Based on this and the
remainder of the text of the
2 Decision, my
understanding of the Department's mission is to
3 seek opportunities in
the lake-fringing areas to restore
4 waterfowl habitat.
5 MS. BELLOMO: And I
understand from reading your
6 testimony that the
Department of Water and Power relied upon
7 three scientists to do
an evaluation to make a
8 recommendation as to
what was the best way to form this
9 restoration?
10 MR. KAVOUNAS: Three
consultants were hired to prepare
11 a plan that would
assist the Department in seeking waterfowl
12 habitat restoration
opportunities.
13 MS. BELLOMO: At this
point does the Department of
14 Water and Power have
any doubts as to whether the proposal
15 put forth by the
scientists is, in fact, the best way to
16 achieve waterfowl
habitat restoration in the Mono Basin or
17 the most reasonable
way?
18 MR. KAVOUNAS: I'd have
to say "yes."
19 MS. BELLOMO: Can you
explain what those concerns are?
20 MR. KAVOUNAS: Once
again, my opinion derives from
21 consultation with
people that have the appropriate
22 background.
23 One of the strongest
doubts that the Department has is
24 that the type of
waterfowl that use Mono Basin are waterfowl
25 that prefer open water
habitat. As such, we believe that
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1 restoration that would
be accomplished on lake-fringing
2 areas would have a
minimal affect on restoring waterfowl
3 habitat in the basin.
4 MS. BELLOMO: And by
that you're referring, I take it,
5 to the mouth of Mill
Creek -- restoration at the mouth of
6 Mill Creek?
7 MR. KAVOUNAS:
Restoration anywhere, whether you look
8 at the
DeChambeau/County Ponds/Black Point proposal, whether
9 you look at the Mill
Creek proposal, whether you look at the
10 burns, the area that's
proposed to be restored is minimal
11 compared to the area
of the lake.
12 MS. BELLOMO: Okay. I
understand you and I understand
13 from the testimony
that the scientists recommended that or
14 found that the
restoration of the -- increase of the lake
15 level would provide by
far the majority of waterfowl habitat
16 restoration. Is that
what you're getting at?
17 MR. KAVOUNAS: Yes. One
thing that in my view the
18 scientists did make
clear, they've made very clear there was
19 a ranking, a
preference in the alternatives they
20 recommended. They made
very clear that number one was the
21 raising of the lake.
They said number two was Mill Creek
22 restoration. They
didn't assign any significance. So was
23 number one perhaps
only better by one or two percent than
24 number two or was
number one perhaps 90 to 95 percent of the
25 restoration that could
be accomplished in the Basin?
CAPITOL REPORTERS (916)
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1 Again, from
consultation with experts in the field,
2 such as Dr. Joe Jehl,
restoring the lake elevation to a
3 higher level than what
it is would result in a very high
4 percentage. And he
never actually said the percentage, but
5 in discussing I was led
to believe that perhaps 85 to 90
6 percent of the possible
restoration would be accomplished by
7 raising of the lake
level.
8 MS. BELLOMO: Assuming
that the Water Board sees fit
9 to require the
Department of Water and Power to do some
10 restoration of
waterfowl habitat in addition to the raising
11 of the lake level,
assuming that then we're left having to
12 look at alternatives I
guess would you agree?
13 MR. KAVOUNAS: What
would I be agreeing to?
14 MS. BELLOMO: That we
then have to look to other
15 alternatives,
something in addition to raising the lake if
16 we --
17 MR. BIRMINGHAM: Excuse
me, I'm going to object. The
18 question is ambiguous.
D-1631 established a lake level and
19 then directed the
Department of Water and Power to
20 implement -- to
propose and then implement after approval by
21 the Board a waterfowl
habitat restoration program to
22 mitigate the loss of
habitat resulting from its diversions.
23 But I'm not sure what
counsel is trying to --
24 CHAIRMAN CAFFREY:
You're objecting on the basis that
25 it was ambiguous?
CAPITOL REPORTERS (916)
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1 MR. BIRMINGHAM: That's
correct.
2 CHAIRMAN CAFFREY: I had
a little trouble following
3 it. It could be part of
my distractions up here and I
4 apologize. Could you
restate it again, Ms. Bellomo.
5 MS. BELLOMO: That's
fine.
6 I'm just trying to
discuss with you, Mr. Kavounas, or
7 the panel in general
what other alternatives -- to start
8 looking at other
alternatives for waterfowl habitat
9 restoration in addition
to raising the lake level that we
10 take as a given is
happening, but assuming that the Board
11 requires the
Department of Water and Power to do something
12 for waterfowl habitat
restoration in addition to putting
13 more water into the
lake.
14 CHAIRMAN CAFFREY:
There are two apparent objections
15 to that question,
gentlemen, but Mr. Dodge was the first
16 one.
17 MR. DODGE: I would
just like a -- if we could all
18 make a clarification
that raising the lake level is not a
19 waterfowl habitat
mitigation or whatever you want to call
20 it. It's just gonna
happen and it's required by D-1631.
21 What we're really here
about is what, if anything, in
22 addition we're gonna
do to restore waterfowl habitat.
23 CHAIRMAN CAFFREY:
That's a point well made and
24 Mr. Birmingham has sat
down. So I assume that was going to
25 be his point, also.
CAPITOL REPORTERS (916)
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1 MR. BIRMINGHAM: This is
one of those rare occasions
2 on which Mr. Dodge and
I are in complete agreement.
3 CHAIRMAN CAFFREY: It is
very rare, let me state that
4 into the record.
5 BOARD MEMBER DEL PIERO:
Wait a second, wait a second.
6 It happened twice
today.
7 CHAIRMAN CAFFREY: Do
you want to take a vote on it?
8 BOARD MEMBER DEL PIERO:
It happened twice today.
9 They didn't want to
work tonight either so I mean --
10 CHAIRMAN CAFFREY: I
believe it was repeated in my
11 opening statement the
scope of the hearing so we need to
12 make sure that our
questions deal with the restoration plans
13 and how they relate to
the specificity of their targets
14 precisely.
15 MS. BELLOMO: I guess
I'm not familiar enough with the
16 earlier proceeding to
get the subtlety of the distinction.
17 I was confused by Mr.
Kavounas' answer, I guess, when he
18 addressed the lake
level as somehow representing --
19 MR. KAVOUNAS: Well, I
believe your question to me was
20 whether the Department
agrees wholeheartedly with the
21 scientists' plan.
22 The Department would
not agree with it, but the
23 Department has
attempted in preparing the Waterfowl Habitat
24 Restoration Plan to
adopt the scientists' recommendations to
25 the fullest extent
possible. It doesn't mean that we think
CAPITOL REPORTERS (916)
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1 necessarily they're
gonna do the job.
2 MS. BELLOMO: Well, can
you explain why -- are you
3 saying that you have
doubts as to whether this waterfowl
4 scientists'
recommendation will do the job, as you put it?
5 MR. KAVOUNAS: Yes, and,
once again, my doubts have to
6 do with raising the
lake and the significance of everything
7 else; but that aside, I
think we're being directed to
8 evaluate these
proposals that are made in the plan.
9 MS. BELLOMO: So do you
have any problems with the
10 proposal made in the
plan by the scientists?
11 MR. KAVOUNAS: With all
due respect, I don't think
12 that matters. The
Department is suggesting to the State
13 Board to accept the
scientists' proposal as it was submitted
14 to us and modified in
our plan to reflect what we consider
15 our realities that DWP
must face.
16 MS. BELLOMO: Do you
have any estimate as to when
17 waterfowl habitat --
when waterfowl habitat increases will
18 result if the plan
that you're proposing is implemented?
19 MR. BIRMINGHAM: I'll
object to the question on the
20 grounds that it calls
for an opinion which is beyond the
21 scope of this witness'
expertise.
22 MS. BELLOMO: Maybe DWP
is providing someone else who
23 can provide an answer
to that question.
24 CHAIRMAN CAFFREY:
Would you for my benefit and
25 perhaps other Members
of the Board restate the question so I
CAPITOL REPORTERS (916)
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1 can hear it again as
you stated it the first time?
2 MS. BELLOMO: My
question is: Does the Department of
3 Water and Power have an
estimate as to when the waterfowl
4 habitat restoration
goals of their plan will be achieved?
5 CHAIRMAN CAFFREY: And
the objection was --
6 MR. BIRMINGHAM: I'll
withdraw the objection.
7 CHAIRMAN CAFFREY: Oh,
all right. Thank you,
8 Mr. Birmingham. Do you
wish to attempt to answer that?
9 MR. KAVOUNAS: Let me
attempt to the best of my
10 ability.
11 There's certain
measures that are proposed here and
12 the specific measures
have a schedule that's attached to
13 them. If you look at,
for example, the burn plan it has a
14 schedule when it would
be accomplished. To my recollection,
15 it calls for burning
400 acres experimentally before the
16 lake level rises to
cover that area.
17 I would imagine as an
example that that portion, the
18 400 acres, when the
burn is completed that we will complete
19 that restoration
measure -- we will consider it complete.
20 Will it result in
waterfowl habitat restoration? Obviously
21 not because that area
will be inundated but, nevertheless,
22 the proposal will be
complete. The plan calls for another
23 thousand acres to be
burned -- Brian, if I'm wrong in the
24 numbers please correct
me -- but when we complete the burns
25 in those, that portion
of it will be completed.
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1 With respect to
something like the Mill Creek
2 proposal, we spent the
last day and a half listening to
3 scientists who are
experts in the field telling you that
4 they don't know when
the stream ecosystem would be restored.
5 So I would say the
Department's position is that we can't
6 tell when that part of
it will come back.
7 MS. BELLOMO: And does
the Mill Creek ecosystem have
8 to be restored in order
for waterfowl habitat -- waterfowl
9 increases to occur
under your Mill Creek rewatering
10 proposal?
11 MR. KAVOUNAS: I can't
answer that. I don't know.
12 MS. BELLOMO: Is there
anyone who can sitting here?
13 CHAIRMAN CAFFREY:
Anybody on the panel wish to
14 attempt to answer that
or feel they have the expertise to do
15 so?
16 MR. KAVOUNAS: Brian.
17 MR. TILLEMANS: Could
you restate the question,
18 please?
19 MS. BELLOMO: I'm
trying to understand whether the --
20 we don't seem to be
able to estimate -- or Mr. Kavounas is
21 saying that the
Department of Water and Power can't estimate
22 when the Mill Creek
restoration itself will be accomplished.
23 I don't mean to
incorrectly restate what he said, but you
24 recall that testimony
of his?
25 Do you recall him just
saying something along those
CAPITOL REPORTERS (916)
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1 lines?
2 MR. TILLEMANS: Yes,
yes.
3 MS. BELLOMO: Okay. Well
my question is: Does the
4 creek have to be fully
restored before we have increases in
5 waterfowl, which is
what this is supposed to all be about?
6 MR. TILLEMANS: Well,
first of all, my involvement
7 with this plan has been
with the burning program --
8 MS. BELLOMO: Uh-huh.
9 MR. TILLEMANS: -- and
if you're asking my personal
10 opinion --
11 MS. BELLOMO: No, I'm
asking the Department's opinion.
12 CHAIRMAN CAFFREY: We
were asking if anybody has the
13 expertise. The
question does not -- doesn't require an
14 answer other than
"I don't know" if that's the true answer.
15 MR. TILLEMANS:
Basically, I don't know because
16 there's going to be
too many factors affecting waterfowl
17 populations to be able
to give you exact answers as to when
18 numbers will get to a
certain point.
19 MS. BELLOMO: Has the
Department done any analysis to
20 figure out over time
any projection of increases in numbers
21 under your rewatering
of the Mill Creek Plan?
22 MR. KAVOUNAS: No, no,
we have not.
23 MS. BELLOMO: Has the
Department calculated how many
24 acres of waterfowl
habitat you expect that your proposal to
25 rewater Mill Creek
will create?
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1 MR. KAVOUNAS: The
Department's plan would include any
2 calculation that the
three scientists did by reference to
3 their plan. The
Department did not perform any additional
4 calculations of its
own.
5 MS. BELLOMO: Well, can
you refer me to where in the
6 scientists' plan they
quantify, if they do, how many acres
7 of waterfowl habitat
will be created by rewatering Mill
8 Creek? I'm not talking
about the burn program.
9 MR. KAVOUNAS: This
might sound somewhat circuitous,
10 but on page 97 of the
Waterfowl Habitat Plan -- excuse me,
11 of the appendix to the
Waterfowl Habitat Plan, that is, the
12 plan submitted by the
scientists they, in turn, make a
13 reference to Dr. Stine
and I quote from that on the second
14 full paragraph -- or
second paragraph about midway through.
15 "The amount of
restored habitat would be dependent
16 upon how close the
natural Mill Creek hydrology could be
17 emulated. Stine
(1995c) estimated that approximately 14
18 acres of hypopycnal
environment at the stream mouth, 16
19 acres of riparian
wetlands in the stream bottomlands, and 25
20 acres of riparian
vegetation on the exterior delta could be
21 restored, off-setting
some of the similar habitat losses at
22 Rush Creek."
23 MS. BELLOMO: That's 14
in the stream. I'm sorry, I
24 didn't hear you, 16
where?
25 MR. KAVOUNAS: Fourteen
acres of hypopycnal
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1 environment at the
stream mouth, 16 acres of riparian
2 wetlands in the stream
bottomlands and 25 acres of riparian
3 vegetation on the
exterior delta.
4 That is the way Dr.
Stine is quoted by the three
5 scientists.
6 MS. BELLOMO: So am I
correct that total is 45 acres?
7 Am I adding that up
right? Fifty-five?
8 MR. KAVOUNAS:
Fifty-five, yes.
9 MS. BELLOMO: Has the
Department of Water and Power
10 done any analysis of
how many acres, if any, would
11 waterfowl -- existing
waterfowl habitat would be eliminated
12 if your plan to
rewater Mill Creek is adopted?
13 MR. KAVOUNAS: Perhaps
I wasn't clear in my testimony.
14 The Department has not
done any analysis whatsoever.
15 MS. BELLOMO: So you
relied completely on the
16 scientists that were
the three consultants?
17 MR. KAVOUNAS: Yes.
18 MS. BELLOMO: Do you
know if those consultants
19 performed any such
analysis?
20 MR. KAVOUNAS: I don't
know, but my guess would be if
21 they had that would
have been included.
22 MS. BELLOMO: You
didn't see it anywhere in their
23 testimony?
24 MR. KAVOUNAS: I did
not see it.
25 MS. BELLOMO: Their
report.
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1 MR. KAVOUNAS: I did not
see it in their report,
2 correct. The reason for
saying that is they considered
3 that -- with their
proposal they understood that that would
4 mean the sacrifice of
Wilson Creek and they dedicated a
5 paragraph to that. I
expect that if they had done a similar
6 analysis, that would
have been included as well.
7 MS. BELLOMO: On page
three you note that the
8 Department of Water and
Power noticed the lack of goals and
9 objectives in the
scientists' monitoring plan and then you
10 note, "There are
no specific types, or acreages of habitat
11 that are sought after,
nor any ranges of waterfowl numbers
12 expected to use the
habitat." Do you see where I'm reading?
13 MR. KAVOUNAS: Yes.
14 MS. BELLOMO: Do you --
does the Department continue
15 to find that to be a
deficiency in the report prepared by
16 the scientists?
17 MR. BIRMINGHAM: Excuse
me, I'm going to object on the
18 grounds it assumes a
fact not in evidence. She's
19 characterized this as
a deficiency. I'm not sure there's
20 been any testimony it
is a deficiency.
21 MS. BELLOMO: I'll
rephrase the question.
22 CHAIRMAN CAFFREY:
Sustained. Yeah, I was going to
23 ask you do you have
another way of asking the question?
24 MS. BELLOMO: Does the
Department continue to view
25 that this is a -- I
would call it a lacking. You used "the
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1 lack of goals" was
your word. Do you continue to feel that
2 there's a lack of this
information in the scientists' final
3 report?
4 MR. KAVOUNAS: I don't
believe that the scientists
5 revised their
Monitoring Plan after the date that we
6 received it, which was
February 19th. If there was an
7 element lacking at that
time, I believe it would still be
8 lacking today.
9 MS. BELLOMO: As you sit
here today, with your
10 recollection of the
final report would you agree that those
11 elements are still
lacking?
12 MR. KAVOUNAS: From the
Monitoring Plan, yes, they are
13 lacking.
14 MS. BELLOMO: Did the
Department of Water and Power do
15 any studies of the
environmental consequences of your
16 proposal to rewater
Mill Creek on any other areas in the
17 Mono Basin --
consequences that would result in other areas
18 in the Mono Basin?
19 MR. KAVOUNAS: What do
you mean by -- environmental
20 studies?
21 MS. BELLOMO: Well, any
sort of environmental analysis
22 of whether there would
be any environmental consequences
23 adverse -- let me
rephrase it.
24 Did the Department do
any studies to determine or any
25 analysis to determine
if there would be adverse
CAPITOL REPORTERS (916)
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1 environmental
consequences that would result from your
2 proposal to rewater
Mill Creek if it were adopted?
3 MR. KAVOUNAS: The
Department has done no analysis
4 whatsoever in
connection with the Waterfowl Habitat Plan of
5 a biological
implication.
6 MS. BELLOMO: Did the
three scientists who prepared
7 the plan for waterfowl
habitat restoration perform any such
8 analysis of the adverse
environmental consequences?
9 MR. KAVOUNAS: I believe
-- to my recollection, there
10 isn't anything else
included other than the paragraph that
11 addresses the
sacrifice of Mill Creek -- excuse me, of
12 Wilson Creek.
13 MS. BELLOMO: You
recall no doubt attending a number
14 of meetings in Lee
Vining where the community was present
15 and the issue of
rewatering at the Mill Creek was discussed?
16 MR. KAVOUNAS: Yes, I
do.
17 MS. BELLOMO: And would
you agree that -- with my
18 characterization that
overwhelmingly the community expressed
19 opposition to the
Department's plan to stop irrigating
20 Thompson Meadow?
21 MR. BIRMINGHAM: I'm
going to object. It's hearsay.
22 If there is
opposition, the opposition can be stated here in
23 the form of testimony
but -- and I'm not sure I understand
24 the relevance of any
opposition to the plan with respect to
25 whether or not it's
adequate under D-1631.
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1 MS. BELLOMO: Well, the
relevance I believe, Chairman
2 Caffrey, is that -- I'm
trying to establish that, in fact,
3 the Department of Water
and Power is aware of this
4 opposition and I think
it's relevant to the Board to know
5 whether the Department
of Water and Power believes that the
6 Water Board should take
these community concerns into
7 account in arriving at
a decision in this case.
8 CHAIRMAN CAFFREY: I've
got three people up now.
9 Before I rule let's
hear from Ms. Scoonover and then
10 Mr. Dodge.
11 Ms. Scoonover.
12 MS. SCOONOVER: Mr.
Caffrey, I'm afraid I'm also going
13 to have to agree with
Mr. Birmingham on this point and, that
14 is, the community
concerns are valid and important concerns
15 which is, I believe,
why the Bellomos are here and will be
16 presenting testimony
later on, as will Mr. Beckman, the
17 Bureau of Land
Management and other land management agencies
18 within the basin. I
think that is the appropriate time to
19 voice concerns or
opposition as opposed to in the form of
20 cross-examination at
this time.
21 CHAIRMAN CAFFREY:
Thank you. Mr. Dodge.
22 MR. DODGE: I have just
a pickier objection and, that
23 is, if the Board is
inclined to allow testimony about quote
24 "opposition"
end quote, that's your decision; but I think it
25 should be phrased in
terms of the people who were at a
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1 particular meeting
rather than the quote "community" end
2 quote.
3 CHAIRMAN CAFFREY: I
think those are all valid
4 concerns. I'm going to
sustain the objections and, as
5 Ms. Scoonover pointed
out, there may be more appropriate
6 opportunity after some
further direct from other parties for
7 you to ask perhaps some
questions at that time along these
8 lines.
9 MS. BELLOMO: Fine, I
will move on to another question
10 and we'll see if you
find this objectionable as well.
11 My question is -- Mr.
Kavounas, is: Does the
12 Department of Water
and Power believe that the State Water
13 Resources Control
Board should take into account the
14 concerns, whatever
they might be, and I'm not asking you to
15 testify as to what
they are, but whatever they might be,
16 take those concerns
into account in fashioning the Waterfowl
17 Habitat Restoration
Plan?
18 MR. KAVOUNAS: I can't
answer that. That sounds to me
19 more like a question
that begs legal advice on what the
20 State Board should and
should not do.
21 MS. BELLOMO: All
right. Am I correct that if the
22 State Water Resources
Control Board rejects the Department
23 of Water and Power's
Waterfowl Habitat Restoration Plan as
24 you've proposed it in
this proceeding, that -- at least with
25 regard to the Mill
Creek issue, that the Department would be
CAPITOL REPORTERS (916)
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1 open to working in a
process with the Water Board staff,
2 other parties and the
local community to develop an
3 alternative plan?
4 MR. KAVOUNAS: You're
asking me to state Department
5 policy based on a
hypothesis. I can't do that right now.
6 MS. BELLOMO: Okay.
7 MR. KAVOUNAS: That is a
bridge we'll have to cross
8 when we get there.
9 MS. BELLOMO: Prior to
the scientists recommending --
10 the three scientist
consultants that you identified as doing
11 your Waterfowl Habitat
Plan, prior to the scientists making
12 the recommendation to
dedicate DWP's irrigation water to
13 Mill Creek, did the
Department have any intention of ceasing
14 irrigation on Thompson
Meadow?
15 MR. KAVOUNAS: No, not
to my knowledge.
16 MS. BELLOMO: Did you
have any intention of stopping
17 grazing on Thompson
Meadow?
18 MR. KAVOUNAS: Not to
my knowledge. The Department's
19 policy, as Mr.
Perrault stated, is to continue the practices
20 of the past.
21 MS. BELLOMO: Am I
correct that the Lower Thompson
22 Meadow -- and by that
I refer to the portion of Thompson
23 Meadow that's across
from the county park --
24 MR. KAVOUNAS: Uh-huh.
25 MS. BELLOMO: -- off
Cemetery Road.
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1 MR. KAVOUNAS: Yes.
2 MS. BELLOMO: Am I
correct that that portion of
3 Thompson Meadow is
maintained open to the public for day
4 use?
5 MR. KAVOUNAS: Brian.
6 MR. TILLEMANS: Yes, it
is. It's a Department policy
7 to leave our lands open
75 percent for public recreation.
8 MS. BELLOMO: That was
going to be my next question
9 and so I'll ask you --
you may have answered that, I'm not
10 sure.
11 Is it the general
policy of the Department with regard
12 to all property that
it owns in the Mono Basin, with the
13 exception of land
that's used for DWP operations or leased
14 for private commercial
or residential use, with the
15 exception of those
lands is it the Department policy to
16 maintain its property
open for day use?
17 MR. TILLEMANS: Yes, it
is and there is -- I gotta
18 state there is an
exception in there that if you have
19 irrigated lands such
as say an alpha field or something, the
20 lessee does have the
opportunity to post there's no
21 trespassing, but we
try to keep that no more than 25 percent
22 of their lease.
23 MS. BELLOMO: Now, I'll
ask this to the panel as a
24 whole, I'm not sure
who would want to answer this -- be the
25 appropriate person to
answer this. But would the Department
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1 expect that if you stop
irrigation at Thompson Meadow, as
2 has been proposed in
your plan, that there would be
3 significant changes in
habitat at Lower Thompson Meadow?
4 MR. KAVOUNAS: That
would be my expectation, yes.
5 MS. BELLOMO: And would
you have that same expectation
6 if you stopped
irrigating what I'm going to call Upper
7 Thompson Meadow, which
is on the west side of Highway 395?
8 MR. KAVOUNAS: I think
it's a generally correct
9 statement that if the
irrigation is changed on a parcel of
10 land, then the habitat
on that parcel of land will change.
11 MS. BELLOMO: I'm not
recalling which of you has the
12 background as a
hydrologist. Do both Mr. Kavounas and
13 Mr. Perrault?
14 MR. KAVOUNAS: That's
correct.
15 MS. BELLOMO: Okay.
Well, then maybe one or the other
16 of you would want to
answer this: If irrigation ceases on
17 Thompson Meadow, would
you agree that it's possible -- do
18 you agree that it's
possible that this could have an impact
19 on the ground water in
that area?
20 MR. KAVOUNAS: Yes, I
do.
21 MS. BELLOMO: And would
you agree that it's possible
22 that it could have an
affect on the ground water on the side
23 of the road where the
county park is below Lower Thompson
24 Meadow, it's not
actually irrigated directly by DWP?
25 MR. KAVOUNAS: I
believe it's very possible, yes.
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1 MS. BELLOMO: And do you
think that it's also possible
2 that by ceasing
irrigation of Lower Thompson Meadow it could
3 have an affect on the
well maintained by the County at the
4 county park?
5 MR. KAVOUNAS: Not an
impact on the well itself, but
6 the water levels that
the well draws from, yes.
7 MS. BELLOMO: What kind
of studies would have to be
8 done to determine if
there was going to be an impact on the
9 ground water on the
county park side of the road?
10 MR. KAVOUNAS: I would
suspect a general geohydrology
11 study would have to be
performed, studying the area, water
12 levels, historical
data and perhaps some sort of a test
13 would have to be
conducted perhaps on the well itself that's
14 on the county park.
15 MS. BELLOMO: Are you
familiar with the area that lies
16 below the county park
across from Thompson Meadow as you
17 walk down the
boardwalk towards the lake?
18 MR. KAVOUNAS: I've
walked that twice.
19 MS. BELLOMO: And is it
your recollection that that's
20 a marshy area?
21 MR. KAVOUNAS: Yes.
22 MS. BELLOMO: And do
you recall -- you may recall that
23 there are posted signs
posted by the State -- or do you
24 recall that there are
signs posted by the State indicating
25 the birds that use
that marshy area?
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1 MR. KAVOUNAS: I don't
recall that. I saw that in the
2 testimony from People
for Mono Basin Preservation, but I
3 don't recall that -- I
don't recall seeing it on there.
4 MS. BELLOMO: Would it
be -- as a hydrologist would
5 you consider that it
would be possible that if you stopped
6 irrigation at Thompson
Meadow that it could conceivably have
7 some impact on the
ground water as far down as that marshy
8 area?
9 MR. KAVOUNAS: It's
conceivable.
10 MS. BELLOMO: And to
know for certain you would have
11 to do studies?
12 MR. KAVOUNAS: Yes.
13 MS. BELLOMO: With
regard to -- I know that I'm going
14 a little bit outside
of your direct here, and this may get
15 some objection, but
we've heard testimony several times
16 today about -- or
questions about irrigation below Parker
17 and Walker Creeks, I
believe.
18 MR. KAVOUNAS: Uh-huh.
19 MS. BELLOMO: And the
People for Mono Basin
20 Preservation would
like to say that bringing up the Cain
21 Ranch issue we're not
bringing it up to assign blame to any
22 party as to why Cain
Meadow has distinctly shrunk or dying
23 or whatever, but we
understand this could be -- you know,
24 fall out of
restoration efforts.
25 But what we would like
to know is whether the
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1 Department of Water and
Power would agree that it would be
2 appropriate to meet
with staff of the Water Resources
3 Control Board, the
community and any other parties that are
4 interested to try to
work out a suitable irrigation plan for
5 Cain Meadow or Cain
Ranch?
6 CHAIRMAN CAFFREY: Yes,
Mr. Birmingham.
7 MR. BIRMINGHAM:
Objection.
8 CHAIRMAN CAFFREY: I
understand the objection.
9 Although I -- I mean,
you may -- well, why don't you try
10 another line of
questioning.
11 Mr. Dodge.
12 MR. DODGE: Well, I
think Ms. Bellomo could have asked
13 this question of the
prior panel when Mr. Kavounas was
14 discussing this. I
don't think any of us have been
15 prejudiced by her
asking it now rather than before.
16 MR. BIRMINGHAM: There
are a number of bases to object
17 to this question.
First, it is outside the scope of the
18 direct examination
which is the subject of this panel.
19 Mr. Dodge is correct,
it could have been asked before.
20 If it had been, I
would have objected on the grounds that
21 it's calling for an
answer which this witness isn't in a
22 position to give.
She's asking for policy of the Department
23 of Water and Power.
The question lacks foundation. There
24 are a number of
objections.
25 CHAIRMAN CAFFREY:
Well, you know, we don't follow the
CAPITOL REPORTERS (916)
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1 strictest Rules of
Evidence here and this is the kind of
2 question where the
witness, if that is the case, can simply
3 state that he is not
empowered.
4 And if that's the case,
which I believe it is, because
5 I believe you said
something to that effect in earlier
6 testimony, this
question sounds familiar, just answer it and
7 be done with it.
8 MR. KAVOUNAS: My answer
at this point in time would
9 have to be that the
Department of Water and Power is not
10 prepared to discuss
irrigation policy. Irrigation has not
11 been raised in
Decision 1631. Once again, we'll cross that
12 bridge when we get to
it.
13 MS. BELLOMO: Mr.
Perrault, if I could ask you to turn
14 to your testimony in
Exhibit 35. On page one of your
15 testimony you state
that -- on the very last line, let's
16 see, you're referring
to diversions of Mill Creek water for
17 power generation and
you state, "On average 84 percent of
18 the natural flow is
diverted."
19 MR. PERRAULT: Yes.
20 MS. BELLOMO: I wanted
to ask you what is the source
21 of that number?
22 MR. PERRAULT: The
source of that number is based on
23 records compiled by
Southern California Edison. I
24 believe -- I forget
the numbers. I believe it's -- let me
25 get that -- anyway,
it's the flow that passes through the
CAPITOL REPORTERS (916)
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1 powerhouse.
2 MS. BELLOMO: And I
assume that you viewed records
3 that Edison provided to
get those numbers?
4 MR. PERRAULT: Yes, they
provided records to me.
5 MS. BELLOMO: On page
two of -- in Section B, the
6 second paragraph, you
refer to -- you provide runoff
7 numbers, the monthly
runoff, et cetera, numbers.
8 Do you see where I'm
looking?
9 MR. PERRAULT: Yes.
10 MS. BELLOMO: My
question there is how did you
11 calculate those
numbers?
12 MR. PERRAULT: Those
are average values based on a
13 period of record,
which I believe was the '41 to '90 period.
14 MS. BELLOMO: And who
maintains those records?
15 MR. PERRAULT: Those
are also maintained by Southern
16 California Edison.
17 MS. BELLOMO: Do you
know where the measurements are
18 taken for those
numbers?
19 MR. PERRAULT: Yes,
Edison -- they measure flow at --
20 the flow that --
actually, they measure the storage in Lundy
21 Reservoir. They
measure the flow that passes through the
22 reservoir, below the
reservoir. They also measure the flow
23 that passes through
their powerhouse and it is a summation
24 of those three.
25 MS. BELLOMO: Am I
correct that in the last few years
CAPITOL REPORTERS (916)
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1 at least the Department
of Water and Power has not used the
2 Upper Thompson Ditch
for irrigation?
3 MR. PERRAULT: In the
last few years it's my
4 understanding we have.
5 MS. BELLOMO: That you
have used it?
6 MR. PERRAULT: Yes.
7 MS. BELLOMO: Okay. Does
that include last summer?
8 MR. PERRAULT: To be
honest, I couldn't answer that.
9 MS. BELLOMO: You state
on page eight that the
10 Department of Water
and Power proposes to impose a grazing
11 moratorium on all DWP
land in the Mill Creek floodplain, and
12 I wanted to ask if you
could explain exactly where this
13 moratorium would be?
14 MR. PERRAULT: I might
ask maybe that Brian Tillemans
15 address that.
16 MR. TILLEMANS: If you
look at the Forest Service map,
17 you'll see Department
of Land on there and the Mill Creek
18 floodplain below Mono
City and that would be on those lands.
19 That's part of the
Thompson lease.
20 MR. KAVOUNAS: Maybe,
Brian, could you point it out on
21 the exhibit that we
have right here.
22 MR. TILLEMANS: The
yellow.
23 MS. BELLOMO: The
yellow area?
24 MR. TILLEMANS: Yeah,
the yellow area here.
25 MR. KAVOUNAS: Along
Mill Creek.
CAPITOL REPORTERS (916)
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1 MR. TILLEMANS: Right.
2 MS. BELLOMO: And by
"the floodplain" are you
3 referring to --
4 MR. TILLEMANS: That
would basically entail the same
5 thing as Rush and Lee
Vining Creek bluff to bluff.
6 MS. BELLOMO: Okay. So
it's basically keeping them
7 out of the creek in
what would be the riparian vegetation
8 zone?
9 MR. TILLEMANS: Right,
right.
10 MS. BELLOMO: But would
you allow grazing in areas
11 adjacent to that if
the sheepherders, let's say, were able
12 to control the sheep
to not cross the creek?
13 MR. TILLEMANS: Oh,
yes, oh, yes, just like we do on
14 the other creeks.
15 MS. BELLOMO: On page
nine your testimony states, I
16 think, Mr. Perrault,
we're still on yours, that the
17 Department of Water
and Power proposes to curtail all
18 irrigation diversions
in the Mill Creek watershed; and so I
19 want to ask you would
you expect to see a loss of riparian
20 vegetation along the
irrigation ditches if this proposal was
21 adopted?
22 MR. PERRAULT: I don't
know that I'm -- have the
23 credentials to answer
that, but if you took water off it I
24 would expect it to
diminish.
25 MS. BELLOMO: Do you
have an opinion about that,
CAPITOL REPORTERS (916)
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1 Mr. Tillemans?
2 MR. TILLEMANS: I
generally agree with Jim. If you
3 take away water from
riparian areas, you would see some kind
4 of impact.
5 MS. BELLOMO: An impact
would normally be a decrease
6 in riparian vegetation?
7 MR. TILLEMANS: I guess
I'd have to look at the
8 specific site on that
to be able to give you an answer.
9 MS. BELLOMO: You
wouldn't expect to see an increase
10 in vegetation, would
you?
11 MR. TILLEMANS: No, I
wouldn't.
12 MS. BELLOMO: Does the
Department of Water and Power
13 have -- let me strike
that.
14 To date has the
Department of Water and Power
15 performed any analysis
of what impacts your proposal to
16 rewater Mill Creek
might have on the water supply for the
17 Lundy Mutual Water
Company that serves Mono City?
18 MR. PERRAULT: No, we
have not.
19 MS. BELLOMO: Is it
your opinion that that -- well,
20 did you review the
materials that the people from Mono Basin
21 submitted on that
subject which, I believe, were portions of
22 an engineer's report?
23 MR. PERRAULT: Yes, I
did.
24 MS. BELLOMO: In your
opinion, would it be prudent for
25 an investigation to be
done or an analysis to be done to
CAPITOL REPORTERS (916)
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1 determine if there
could be adverse impacts on the Mono City
2 water system before
changing flows in Wilson Creek?
3 MR. PERRAULT: Well, I
guess my view is that as the
4 project -- if the
project is approved, a CEQA process will
5 come afterwards and
that would definitely be part of that
6 process.
7 MS. BELLOMO: Is there
some reason that the Department
8 of Water and Power
didn't do any analysis of its own
9 beyond -- regarding
environmental impacts of their proposal
10 beyond what was
performed by the three scientists that you
11 relied upon?
12 MR. KAVOUNAS: Yes.
Yes, the reason is that, as you
13 can tell from the
panel that we have, we do not have the
14 capability of doing
that. We do not have the expertise to
15 do that. It seems to
me that that is something -- whatever
16 portions of the
environmental analysis were not addressed in
17 the three scientists'
plan should be addressed in the all
18 but necessary CEQA
document that is to follow the adoption
19 of the restoration
plan by the State Board.
20 For the Department,
and I suspect that the scientists
21 felt the same way,
although don't quote me on that, they
22 probably felt that the
-- there's no point in doing it at
23 this point in time,
certainly not before the State Board
24 adopts a particular
measure or not.
25 It's my experience
that environmental impact reports
CAPITOL REPORTERS (916)
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1 or other CEQA documents
can be lengthy and costly, both in
2 money and in human
resources.
3 MS. BELLOMO: Thank you,
I have no further questions.
4 CHAIRMAN CAFFREY: All
right. Thank you very much,
5 Ms. Bellomo.
6 Mr. Mooney, do you have
questions? Good afternoon,
7 sir.
8 MR. MOONEY: Good
afternoon.
9 ---oOo---
10 CROSS-EXAMINATION
11 BY ARNOLD BECKMAN
12 MR. MOONEY: Mr.
Perrault, if you could turn to your
13 testimony on page
three, turn to the section of "Mill Creek
14 Water Rights."
15 MR. PERRAULT: Yes.
16 MR. MOONEY: I think
it's the third sentence and it
17 states, "Although
the decree does not specify a period of
18 diversion by dates, it
appears that the adjudicated rights
19 for irrigation only
apply to the irrigation season."
20 Are you aware of any
other uses of water under the
21 Mill Creek Decree?
22 MR. PERRAULT: Yes, I
am.
23 MR. MOONEY: And what
are those uses?
24 MR. PERRAULT: I
believe it calls for domestic uses,
25 also livestock and --
actually, I think that's about the
CAPITOL REPORTERS (916)
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1 extent of it.
2 MR. MOONEY: Okay. And
there you -- in that sentence
3 again you say it does
not specify a period of diversion by
4 dates, in reference to
the irrigation uses.
5 Does it specify -- to
your knowledge, does that decree
6 specify a period of
diversion by dates for those other uses
7 as well?
8 MR. PERRAULT: No, it
does not.
9 MR. MOONEY: Okay, thank
you. And then on page nine
10 of your testimony, and
this is also referenced -- well, I'll
11 make the reference
first. Under Section B, the "Fall/Winter
12 Water," you make
the statement in referencing the scientists
13 that "...the
scientists recommended negotiating with Conway
14 Ranch to obtain use of
its second priority, 12 cfs water
15 right." And then
you go on to say that this recommendation
16 assumed that these
water rights are perennial in nature.
17 Do you know what they
base their recommendation upon
18 or their -- you say
assumed their recommendation or their
19 assumption upon?
20 MR. PERRAULT: Um, I
think -- no, I don't.
21 MR. MOONEY: You don't
know what they based it upon
22 you said; is that
correct?
23 MR. PERRAULT: No.
24 MR. MOONEY: Do you
know if they did any type of water
25 availability study or
water rights analysis in making that
CAPITOL REPORTERS (916)
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1 recommendation?
2 MR. PERRAULT: I don't
believe that they did, no.
3 MR. MOONEY: In the next
sentence you state that LA
4 interprets the Mill
Creek Decree differently than the
5 scientists.
6 What do you base your
interpretation -- how is your
7 interpretation
different than the scientists'
8 interpretation --
recommendation or interpretation of the
9 Mill Creek Decree?
10 MR. PERRAULT: Well, I
believe it's stated in my
11 testimony.
12 MR. MOONEY: In that
water is only available for the
13 irrigation season or
irrigation uses?
14 MR. PERRAULT: Well, I
think my testimony speaks for
15 itself and I'll read
it. It says on page nine, "It is
16 LADWP's view that the
water rights adjudicated for
17 irrigation have not,
and indeed could not have, been put to
18 reasonable and
beneficial use during the non-irrigation
19 season and
consequently such water is available for
20 appropriation."
21 MR. MOONEY: Okay. But
just a moment ago you just
22 mentioned that some of
the other uses were stockwatering and
23 domestic uses that are
provided for in the decree.
24 Now, in here, in that
statement that you just made or
25 you read from your
testimony, there's no reference to the
CAPITOL REPORTERS (916)
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1 stockwatering or the
domestic?
2 MR. PERRAULT: That's
correct.
3 MR. MOONEY: So are you
just in that analysis or your
4 interpretation -- and
I'm not trying to be argumentative but
5 I'm just trying to --
are you not including the other uses
6 of water that are
provided for in the decree?
7 MR. PERRAULT: Well, I'm
not aware of any other uses.
8 MR. MOONEY: Okay. Is
that something that the
9 scientists might have
been aware of, the other uses, in
10 making their
recommendation or their assumptions?
11 MR. BIRMINGHAM:
Objection, calls for speculation.
12 MR. FRINK: Mr.
Chairman.
13 BOARD MEMBER DEL
PIERO: I think there was an
14 objection.
15 CHAIRMAN CAFFREY: Yes,
I'm sorry, Mr. Frink.
16 MR. FRINK: There was
an objection regarding
17 Mr. Mooney's question
stating it calls for speculation.
18 I was going to object
based on your opening statement
19 where you indicated
that there were issues regarding closed
20 appropriation for Mill
Creek that would have to be resolved
21 in the context of a
future proceeding, and I think one of
22 those very fundamental
issues is the availability of water
23 for appropriation
under the water rights application that
24 the City has
submitted.
25 So I would suggest
that the whole line of questioning
CAPITOL REPORTERS (916)
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1 on the availability of
water for appropriation is
2 inappropriate in this
proceeding other than identifying that
3 it is an issue that
would have to be addressed.
4 CHAIRMAN CAFFREY: I
agree, Mr. Frink, and in the
5 opening statement we
talked about -- and perhaps the words
6 weren't as good as they
might have been, but we were trying
7 to stay at a fairly
conceptual level and so I will sustain
8 the objection, Mr.
Mooney.
9 MR. MOONEY: Okay. Well,
if I may just have a -- just
10 maybe a moment of
explanation or provide a moment of
11 explanation.
12 In this testimony, as
I stated yesterday, in this
13 testimony and other
testimony there was a lot of reference
14 to the Mill Creek
Decree and the water rights and the plan
15 is based upon -- that
they put forth to this Board is based
16 upon certain
assumptions that LA has made with regards to
17 that Mill Creek
Decree.
18 Now, I understand that
we're not here to discuss water
19 availability or the
adjudication of the water rights and, in
20 fact, the Mill Creek
-- or the water rights or the Mill
21 Creek Decree are not
even within this Board's jurisdiction
22 in that they're
pre-1914 water rights and they're
23 adjudicated water
rights -- or to that extent they're not.
24 But to the extent that
the Board is evaluating this
25 plan and to the extent
that certain assumptions have been
CAPITOL REPORTERS (916)
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1 made about those water
rights, we just want to let the Board
2 know that there are a
number of issues out there associated
3 with those water rights
--
4 CHAIRMAN CAFFREY: It
might be -- since you're in the
5 process of now
testifying, it might be more appropriate for
6 you to express that
when you're on for direct.
7 MR. MOONEY: Okay, thank
you.
8 CHAIRMAN CAFFREY: Being
mindful always, though, even
9 at that time that we
will most likely have another
10 proceeding -- a water
rights proceeding on the applications
11 involved here so --
12 MR. MOONEY: Okay. And,
actually, I have no more
13 questions with regards
to water rights.
14 But I do have a
question that applies to the water
15 rights but to the
process that LA -- that you proposed in
16 your testimony on page
11.
17 In that first full
paragraph on page 11 you state that
18 "LADWP strongly
believes that prior to commencement of
19 expensive
environmental studies and the resolution of
20 environmental
concerns, the legal aspects regarding water
21 right possession and
the availability of water need to be
22 resolved."
23 Now, my question is:
Are you proposing that the Board
24 address the water
rights application -- LA's water rights
25 application prior to
LA doing the CEQA analysis?
CAPITOL REPORTERS (916)
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1 MR. PERRAULT: Would you
ask the question again,
2 please?
3 MR. MOONEY: Well, I'm
just trying to get
4 clarification on your
statement there. It sounds to me like
5 what you're asking is
for the Board -- for there to be a
6 resolution of the water
rights application prior to LA
7 conducting the
environmental review.
8 MR. PERRAULT: Well, in
my testimony I indicate that
9 there are two issues
that come out. One is the injury to a
10 right. The other issue
is environmental, and I guess my
11 thinking is common
sense would say you would resolve a claim
12 against a right prior
to spending a lot of money on
13 environmental work if
the right exists; and so I don't know
14 that I'm suggesting
that the Board do anything. I don't
15 think that's my place,
but I'm just saying that, in my
16 opinion, is common
sense.
17 MR. MOONEY: Okay.
Well, is Los Angeles going to ask
18 the State Board to
proceed on a water rights application
19 prior to LADWP
conducting the environmental review?
20 MR. KAVOUNAS: Los
Angeles intends to do -- intends to
21 go along with whatever
the State Board wants to do. The
22 State Board has both
issues in front of them and there we
23 are.
24 MR. FRINK: Mr.
Chairman, in that respect I may be
25 able to clarify a
little just based on the Board's --
CAPITOL REPORTERS (916)
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1 CHAIRMAN CAFFREY: Go
ahead, Mr. Frink.
2 MR. FRINK: -- on the
Board's ordinary water rights
3 process. The Board
would not act upon an application to
4 appropriate water and
make findings regarding the
5 availability of water
ordinarily until an environmental
6 document has been
prepared.
7 That doesn't mean to
say that the parties amongst
8 themselves could not
reach some agreement on what the extent
9 of existing rights that
will or will not be asserted is and
10 come before the Board
having resolved at least a part of the
11 issue of the
availability of water, but the Board would not
12 ordinarily process a
water right application until the
13 environmental document
has been done at least in draft form.
14 CHAIRMAN CAFFREY:
Thank you, Mr. Frink.
15 Mr. Birmingham -- I'm
sorry, I didn't realize
16 Mr. Del Piero had a
question. Mr. Del Piero and then
17 Mr. Birmingham.
18 BOARD MEMBER DEL
PIERO: I think it's important to
19 point out -- Mr.
Frink's statement is absolutely correct.
20 It's important to
point out one additional thing and, that
21 is, even if the
parties agree, that doesn't excuse this
22 Board from CEQA.
23 MR. FRINK: Right.
24 BOARD MEMBER DEL
PIERO: There will of necessity have
25 to be an environmental
document and, to my mind, it couldn't
CAPITOL REPORTERS (916)
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1 be done without a
comprehensive environmental impact report
2 at the time that such
an application would be filed
3 regardless of whether
there's consensus among the group or
4 not.
5 MR. FRINK: I didn't
mean to imply --
6 CHAIRMAN CAFFREY: Yeah,
I have no doubt that Mr. --
7 I'm sorry, I'm talking
over you, Mr. Frink.
8 I have no doubt that
Mr. Frink knows that and meant --
9 BOARD MEMBER DEL PIERO:
I understand Mr. Frink knows
10 it. I want to make
sure it was clear on the record because
11 there are a number of
people here who are concerned about
12 those issues. I mean,
Ms. Bellomo raised it. Counsel now
13 before us is raising
it and I think it needs to be
14 articulated clearly
that there's no give-me's in terms of
15 this as related to
whether or not you have to comply with
16 CEQA, and you can't
make a decision until you do.
17 MR. MOONEY: I agree
fully with you, and I always
18 have. I just wanted to
get a clarification from the witness
19 in terms of the
statement.
20 CHAIRMAN CAFFREY: Mr.
Birmingham, do you want --
21 MR. BIRMINGHAM: The
only thing that I would add is
22 that the question
itself, to a degree, requests a legal --
23 calls for a legal
conclusion.
24 I certainly concur
with what Mr. Frink said and what
25 Mr. Del Piero said.
The Board cannot act on a water rights
CAPITOL REPORTERS (916)
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1 application until there
has been compliance with CEQA, and
2 the Department of Water
and Power is not suggesting that
3 anything else be done.
4 CHAIRMAN CAFFREY: All
right. I know the witnesses
5 are being very careful
to give the correct answer, but I
6 told other panels that
there's nothing wrong with saying "I
7 don't know" or
it's outside of your level of expertise.
8 MR. MOONEY: Just for
the record, I wasn't asking for
9 a legal conclusion. I
was just asking for a clarification
10 and if LA had put
forth some type of a policy or such.
11 CHAIRMAN CAFFREY: And
I'd add to my two reasonings
12 that I just made that,
also, if you don't feel that you
13 are -- or if you know
that you are not high enough in your
14 organization in terms
of authority to make that
15 determination just say
so, it's okay.
16 But, Mr. Mooney,
please continue.
17 MR. MOONEY: Thank you.
18 With regards to the
development of the plan -- or the
19 proposed plan
associated with Mill Creek, in putting that
20 together was there any
consideration of the Bishop
21 Management -- or
Bishop Resources Management Plan that's put
22 from BLM, Bureau of
Land Management?
23 MR. PERRAULT: I don't
know.
24 MR. MOONEY: Would the
scientists know that in terms
25 of making their
recommendations?
CAPITOL REPORTERS (916)
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1 MR. DODGE: Objection,
calls for speculation.
2 CHAIRMAN CAFFREY: Who
made the objection or was there
3 an objection?
4 MR. DODGE: (Gesturing).
5 CHAIRMAN CAFFREY: All
right, Mr. Dodge. I heard it
6 coming from somewhere,
but I didn't know where it was coming
7 from. Objection on the
basis it calls for speculation --
8 BOARD MEMBER DEL PIERO:
Have him rephrase it.
9 MR. MOONEY: I'll
rephrase it. Yes, I will rephrase
10 it -- well, your
previous answer was actually sufficient.
11 LA relied heavily upon
the scientists' recommendation
12 in the plan that's
been proposed for the State Board for the
13 Mill Creek or the
Waterfowl Restoration Plan; is that
14 correct?
15 MR. KAVOUNAS: That is
correct.
16 MR. MOONEY: And you
pretty much relied upon it
17 entirely except for a
few recommendations with regards to
18 the Forest Service --
dedication of the Forest Service right
19 and the Mill Creek
water rights recommendations in terms
20 of -- I'm not getting
into that again -- but just in terms
21 of that recommendation
about negotiating for the water
22 rights. Is there any
other things that were not followed in
23 terms of the
scientists' recommendations?
24 MR. KAVOUNAS: Yes, as
explained in my written
25 testimony.
CAPITOL REPORTERS (916)
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1 MR. MOONEY: Okay. But
does LA intend to call the
2 scientists to have --
to make them available? The
3 consultants that
prepared the plan, are they gonna be
4 available in this
hearing process?
5 MR. KAVOUNAS: The
Department of Water and Power does
6 not intend to call the
scientists.
7 MR. DODGE: The record
should reflect that we have
8 named Dr. Reid, who is
one of the three scientists, as a
9 witness.
10 MR. MOONEY: Okay,
thank you.
11 The previous
cross-examination covered most of the
12 rest of mine so in the
consideration of time that will
13 conclude mine.
14 CHAIRMAN CAFFREY:
Thank you very much, Mr. Mooney.
15 I'm sure your fellow
parties appreciate that, as do we.
16 Mr. Haselton, do you
have any questions of these
17 witnesses?
18 MR. HASELTON: No, sir.
19 CHAIRMAN CAFFREY:
Thank you, sir.
20 Mr. Ridenhour, are you
--
21 MR. RIDENHOUR: No.
22 CHAIRMAN CAFFREY:
There you are, sir.
23 MR. RIDENHOUR: No,
thank you.
24 CHAIRMAN CAFFREY: Mr.
Roos-Collins?
25 MR. ROOS-COLLINS: No
questions.
CAPITOL REPORTERS (916)
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540
1 CHAIRMAN CAFFREY: No
questions. Let's see, I believe
2 the momentarily
modified order now takes us to Mr. Dodge.
3 Any questions, Mr.
Dodge?
4 MR. DODGE: I have some
questions but I don't think
5 Ms. Cahill has agreed,
nor have I asked her to, for a
6 permanent switch.
7 CHAIRMAN CAFFREY: Okay.
That was just for the one
8 panel; is that right?
9 MS. CAHILL: That was a
first panel only. It was
10 actually reflective of
my recognition that Mr. Dodge fades
11 in the late afternoon.
12 BOARD MEMBER DEL
PIERO: Tell Birmingham that, okay.
13 MR. BIRMINGHAM: I was
going to observe it didn't
14 help.
15 MS. CAHILL: Good
afternoon again.
16 CHAIRMAN CAFFREY: Good
afternoon.
17 ---oOo---
18 CROSS-EXAMINATION
19 BY CALIFORNIA
DEPARTMENT OF FISH AND GAME
20 MS. CAHILL: Mr.
Kavounas, your testimony indicates
21 that LADWP recognizes
that there are no goals in the
22 scientists' plan.
23 Did you go back to the
scientists and ask them to set
24 some?
25 MR. KAVOUNAS: Yes, I
did.
CAPITOL REPORTERS (916)
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1 MS. CAHILL: And what
was the result?
2 MR. KAVOUNAS: My
personal communication with Dr. Reid
3 was that -- well, let
me back up for just a second. We had
4 a TAG meeting in Tahoe
on January 10th, I believe, of 1996.
5 It was the day after we
had the Stream Plan TAG meeting and
6 at that point a lot of
the parties pointed to the fact that
7 there were no goals and
objectives in the scientists' plan,
8 which was a draft at
that point in time.
9 I made sure that Dr.
Reid had a copy of all those
10 comments and I
explained to him that that was -- that seemed
11 to be a major concern
on behalf of a lot of parties. He
12 told me that they
would take it into consideration the best
13 they could and that
that would reflect in their final plan.
14 Their final plan was
issued February 19th.
15 MS. CAHILL: Thank you.
Do you agree with the
16 scientists' plan where
it states that current waterfowl use
17 is severely restricted
by the minimal acreage of fresh and
18 brackish water
habitats?
19 MR. KAVOUNAS: I have
no opinion on that.
20 MS. CAHILL: We really
don't have any waterfowl
21 experts on this panel,
do we? None of you claims to be a
22 waterfowl expert?
Okay, they're indicating "no."
23 Would it be helpful to
LADWP if another witness were
24 to attempt to provide
some goals?
25 MR. TILLEMANS:
Virginia, I am a biologist and I got
CAPITOL REPORTERS (916)
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1 some wildlife
experience, particularly with the waterfowl
2 and the geese in the
Sierra.
3 MS. CAHILL: Okay. And
so would you agree with that
4 statement that the
current waterfowl use is restricted by
5 minimal acreage of
fresh and brackish open water habitat?
6 MR. TILLEMANS: I say
that may be a possibility.
7 Nobody has distinctly
determined that as an absolute fact.
8 Again, I'll fall back
on what has happened in North America
9 in terms of waterfowl,
and there may be some overriding
10 factors that are
limiting use at Mono Lake that are
11 occurring elsewhere
rather than here in terms of shifting of
12 flyways, et cetera.
13 MS. CAHILL: Would you
expect that the focus of
14 waterfowl restoration,
though, would be to increase the
15 amount of fresh and
brackish open water habitat?
16 MR. TILLEMANS: I think
that's apparent in the
17 recommendation because
it involves increasing the lake --
18 the number one -- what
they identify as the number one
19 benefit to waterfowl
is raising the lake level.
20 MS. CAHILL: Well, I'm
not sure that answered the
21 question. We've sort
of decided that raising the lake level
22 is going to happen.
23 Assuming that raising
the lake level is going to
24 happen and that you
are looking for other restoration
25 measures, is the
thrust of those measures to create
CAPITOL REPORTERS (916)
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1 additional fresh and
brackish water -- open water habitat?
2 MR. TILLEMANS: I think
if you look at the measures
3 the scientists
proposed, it would be a fair assessment.
4 MS. CAHILL: So, in
fact, in goals one of our at least
5 objectives would be to
increase that type of habitat?
6 MR. TILLEMANS: I think
so.
7 MS. CAHILL: Mr.
Kavounas, in your testimony you
8 named -- there are some
unnamed persons that you consulted
9 with that indicated
that there was some concern that ducks
10 at Mono Lake were
affected by the conditions in the flyway.
11 Can you tell me who it
was that you talked to?
12 MR. KAVOUNAS: Mr.
Brian Tillemans and Dr. Joe Jehl of
13 Hubbs Sea World
Research Institute.
14 MS. CAHILL: Mr.
Tillemans, isn't it true that if the
15 ducks in the flyway
result -- require a sort of link of
16 habitats up and down
the flyway for their continued success?
17 MR. TILLEMANS: That is
preferred and I don't know if
18 it's necessarily
required for -- I guess I'll have to have
19 you define
"success" for me.
20 MS. CAHILL: Well,
would it be preferred that they
21 have a whole chain of
areas where they can stop and feed and
22 rest?
23 MR. TILLEMANS: It's
probably preferred.
24 MS. CAHILL: Okay. So
when numbers are low, it might
25 be helpful to have a
number of different areas along the
CAPITOL REPORTERS (916)
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1 flyway where they have
these opportunities?
2 MR. TILLEMANS: Where
numbers are low?
3 MS. CAHILL: Right, in
those years when there are
4 fewer than usual birds
in the flyway.
5 MR. TILLEMANS: I guess,
you know -- I guess you'd
6 have to start talking
now to species and flyways and give me
7 more specifics for me
to really answer a question like that.
8 Generalities in science
are not good to make. There
9 are too many
exceptions.
10 MS. CAHILL: I guess
what I'm getting at is: Isn't it
11 a valid -- are we not
just looking for more ducks in the
12 flyway, but more
opportunities for those ducks that are in
13 the flyway?
14 MR. TILLEMANS: Could
you please state that again?
15 MS. CAHILL: Okay, let
me start another way. Do you
16 agree that prior to
diversions there was extensive waterfowl
17 use at and around Mono
Lake?
18 MR. TILLEMANS: More so
than today, yes.
19 MS. CAHILL: And
doesn't that indicate that when that
20 habitat was available
it was used by ducks?
21 MR. TILLEMANS: Yes.
22 MS. CAHILL: And that
it was one of the stops for at
23 least those ducks as
they went on down the flyway. Whatever
24 the numbers in the
flyway were, some ducks were using that
25 habitat?
CAPITOL REPORTERS (916)
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1 MR. TILLEMANS: Yes.
2 MS. CAHILL: And
wouldn't you expect that if we
3 restored the habitat we
would, in fact, get more ducks at
4 Mono Lake?
5 MR. TILLEMANS: It's not
a given. You would hope it
6 would but I --
7 MS. CAHILL: Would you
expect it?
8 MR. TILLEMANS: That is
why I think the scientists
9 didn't put out a goal
in terms of numbers because they may
10 expect some increase,
but they still cannot tell you they're
11 gonna expect 10,000 or
50,000 or --
12 MS. CAHILL: I'm not
asking for numbers. I'm just
13 asking wouldn't you
expect an increase?
14 MR. TILLEMANS: I'll
hold with my original answer. It
15 may not be a given,
but it's a very good possibility.
16 MS. CAHILL: Okay. And
when ducks are in the flyway,
17 don't they benefit
from linked habitats along the whole way?
18 MR. TILLEMANS: Oh,
yeah. There's no doubt that prior
19 to man and settlement
and farming and everything that
20 waterfowl had more
linkages within the corridors.
21 MS. CAHILL: And they
will do better if they have more
22 linkages available. If
there's a link missing, aren't those
23 ducks that are in the
flyway less likely to flourish than if
24 they have appropriate
habitat all along the linkages?
25 MR. TILLEMANS: You
would expect it but, again, you're
CAPITOL REPORTERS (916)
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1 talking in
generalities. Unless I had specifics to look at
2 and species and flyways
and what's going on, you know --
3 MS. CAHILL: Mr.
Kavounas, there was a recommendation
4 by the scientists that
LADWP considered shallow scrapes.
5 Was consideration given
to shallow scrapes as a
6 restoration measure?
7 MR. KAVOUNAS: Yes.
8 MS. CAHILL: And what
was the conclusion?
9 MR. KAVOUNAS: The
conclusion that we reached was that
10 the State Lands
Commission is opposed to that. The reason
11 we reached that
conclusion is based on comments that we
12 received at the TAG
meeting in Tahoe on January 10th.
13 MS. CAHILL: And did
you consider them on land that
14 was not owned and
managed by state parks and state lands?
15 MR. KAVOUNAS: To my
recollection the scrapes were
16 recommended on State
Lands Commission land.
17 MS. CAHILL: Are there
sites that are not on State
18 Lands Commission lands
that might be appropriate?
19 MR. KAVOUNAS: I don't
recall.
20 MS. CAHILL: Okay. In
our stream plan discussion
21 yesterday and today
there was considerable emphasis on
22 measurable goals. You
have adopted all of the scientists'
23 measures with some
exceptions.
24 Are you willing to
make a commitment that if for one
25 reason or another some
of those measures are not able to be
CAPITOL REPORTERS (916)
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1 carried out, you will
find other measures so that the total
2 package gives us the
same amount of habitat restoration that
3 the scientists' plan
was proposing?
4 MR. KAVOUNAS: It sounds
to me that your question is
5 if the State Board
doesn't find the restoration plan that we
6 propose acceptable,
would we have to do something else?
7 MS. CAHILL: No, let's
say the State Board approves a
8 plan and then for one
reason or another one of the measures
9 can't be carried out or
it's ineffective.
10 MR. KAVOUNAS: Going
along with your assumption,
11 obviously we'd have to
come back to the State Board, because
12 the State Board
retains jurisdiction. I believe that the
13 Decision provides for
that.
14 MS. CAHILL: Mr.
Tillemans, if you have in your plan
15 the proposal to burn
between a thousand and 1200 acres, how
16 much open water
habitat would you expect to get as a result
17 of that burn program?
18 MR. TILLEMANS: That is
an unknown at this time and
19 that is why they
propose to burn 400 acres below the
20 targeted lake level on
an experimental basis so that they
21 can figure out
protocols for future burns as well as the
22 results of those
burns.
23 MS. CAHILL: At some
point in time do you anticipate
24 setting an acreage
goal for the amount of habitat we intend
25 to get from that
burning program?
CAPITOL REPORTERS (916)
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1 MR. TILLEMANS: I think
you might get a general idea
2 but, again, climatic
conditions and everything in terms of
3 wetlands would have a
natural affect on that that I couldn't
4 predict for you.
5 MS. CAHILL: Mr.
Kavounas -- yes.
6 MR. KAVOUNAS: If I may.
If you're looking for a
7 goal, may I suggest
that perhaps we can set a goal for how
8 many acres we can burn.
9 MS. CAHILL: Well, I'm
not interested in how many
10 you're going to burn.
I'm interested in what we're going to
11 get when we do the
burning, and if we do the burning and
12 find that we don't
have any increased duck habitat are we
13 willing then to look
at other measures?
14 MR. KAVOUNAS: That was
exactly the dilemma we were
15 faced when we looked
at the scientists' plan. We didn't
16 really suggest
something like that; and if you would like to
17 set a goal with burned
acres, then the Department would
18 commit to that.
19 MS. CAHILL: Okay,
thank you. Do you understand that
20 the scientists believe
that nearly the full flows of Mill
21 Creek would need to be
put back in that creek in order to
22 get the waterfowl
habitat benefits that they envisioned?
23 MR. KAVOUNAS: No, I do
not -- excuse me, let me
24 restate that. I think
I do now based on their testimony,
25 but based on their
plan I was not given that impression.
CAPITOL REPORTERS (916)
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1 MS. CAHILL: We talked a
lot today about adaptive
2 management. The
questions I was just asking go back to that
3 a bit, also. There is a
proposal to monitor in the
4 Waterfowl Plan; is that
right?
5 MR. KAVOUNAS: Quite an
extensive amount.
6 MS. CAHILL: Okay. And
what would be the triggers in
7 the monitoring that
would call for adaptive management?
8 What would lead us to
realize that we're going to need to do
9 something more or
different?
10 MR. KAVOUNAS: You'd
have to point out to me where in
11 the Restoration Plan
it calls for adaptive management for
12 waterfowl habitat.
13 MS. CAHILL: Well, what
would be the point of a
14 monitoring program if
you're not going to take the results
15 of the monitoring
program and make adjustments?
16 MR. KAVOUNAS: That was
one of my criticisms on the
17 scientists' plan. I
consider most of the monitoring they
18 propose to be pure
research, but that was a recommendation
19 that was made and so I
went along with it.
20 MS. CAHILL: If the
Board wanted to -- if the Board
21 were to impose a -- if
a condition of the Board's approval
22 of a plan was that it
had a mechanism for evaluating the
23 success of the
measures, do you have any recommendations on
24 how that would be
done?
25 MR. KAVOUNAS: My
understanding is based on
CAPITOL REPORTERS (916)
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1 conversations, as I
mentioned before, with people that know
2 about waterfowl habitat
and waterfowl. My understanding is
3 that you can create a
little more habitat around Mono Lake.
4 That doesn't mean that
you recreate a link in the Pacific
5 Flyway. It means that
perhaps you enhance it. The amount
6 of enhancement is
subject to question.
7 Even more subject to
question is the increased number
8 of waterfowl that will
use Mono Lake. Considering that
9 scientists cannot
predict and that the numbers fluctuate for
10 many other reasons
outside of Mono Basin, the Department
11 cannot propose any
goals and objectives.
12 MS. CAHILL: The
Department perhaps cannot -- well,
13 even if you could not
propose goals and objectives in terms
14 of numbers of
waterfowl, couldn't you impose goals and
15 objectives in terms of
numbers of acres of habitat?
16 MR. KAVOUNAS: Yes, and
-- well, let me take that
17 back. I'm not so sure
that we can, but we can -- if
18 specific measures are
identified that address a specific
19 parcel of land, for
example, number of acres to be burned,
20 then -- you know, then
we will set that as a goal.
21 MS. CAHILL: Mr.
Tillemans, with regard to jackpot
22 burns, there was some
indication in someone's testimony that
23 they may have already
been done and I think your testimony
24 was that you were
ready to do them.
25 Can you tell me what
the status is of the jackpot burn
CAPITOL REPORTERS (916)
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1 program?
2 MR. TILLEMANS: There
have been no jackpot burns as --
3 to date.
4 MS. CAHILL: Okay. The
jackpot burns, this involves
5 materials in dry
streambeds; is that right or not right?
6 MR. TILLEMANS: I don't
know the status of the
7 streambeds. Things have
changed out there since the plan
8 has been developed but
the intent was to burn some of the --
9 a lot of the heavy
accumulations in some of the lower areas
10 of Rush Creek there
and spot burn them.
11 MS. CAHILL: Would you
if you were to be doing some
12 burning in stream
channels assume that you would first
13 contact the local
Department of Fish and Game office?
14 MR. TILLEMANS: Oh,
yes. If we need permits, we will.
15 MS. CAHILL: Thank you.
16 Mr. Kavounas, there's
been considerable discussion
17 about the need for an
environmental document. It's focused
18 on the Mill/Wilson
Creek water issue.
19 Are there measures
that the Board could approve now
20 for which either the
environmental documentation is already
21 done or which could be
analyzed separately so that they
22 could be gotten under
way? Are you anticipating perhaps a
23 combination of smaller
EIR's on particular limited waterfowl
24 projects or are you
all anticipating one mammoth EIR and we
25 don't get any measures
until it's completed?
CAPITOL REPORTERS (916)
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1 MR. KAVOUNAS: I thought
a neg dec would be
2 sufficient.
3 BOARD MEMBER DEL PIERO:
Mr. Birmingham, do you agree
4 with that?
5 MS. CAHILL: Seriously,
on some measures aren't there
6 some of these that
perhaps could be a neg dec or could be a
7 more limited EIR?
8 MR. KAVOUNAS: Of those
proposed in our plan?
9 MS. CAHILL: Right.
10 MR. KAVOUNAS: I
believe some of those we could go
11 ahead with. I believe
jackpot burning is one of them. I
12 believe the burn
program is another one.
13 MS. CAHILL: Has
environmental documentation already
14 been done on the
DeChambeau Ponds project? I assumed it had
15 probably already been
analyzed?
16 MR. KAVOUNAS: You mean
the first phase?
17 MS. CAHILL: I don't
know, let me ask you. What is
18 your understanding of
the environmental analysis on that
19 project?
20 MR. KAVOUNAS: I don't
know. I was not around when
21 the first phase was
done. The Department was not a partner
22 in that.
23 MS. CAHILL: Speaking
of that project, your plan seems
24 to say that you'd be
willing to cooperate but you're looking
25 for funding from other
agencies; is that right?
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1 MR. KAVOUNAS: That is
correct.
2 MS. CAHILL: So if that
funding doesn't materialize
3 and we don't get that
habitat, are you prepared to propose
4 some replacement
restoration measure to make up for the
5 habitat that we're not
getting?
6 MR. KAVOUNAS: It sounds
like the same question you
7 asked before.
8 MS. CAHILL: It is, it's
a variation of it.
9 MR. KAVOUNAS: And you
get the same answer.
10 MS. CAHILL: And the
same answer is?
11 MR. KAVOUNAS: Well, if
the State Board approves our
12 plan the way it's been
submitted and one of the elements of
13 the plan does not go
forward, then obviously we have to come
14 back to the State
Board.
15 MS. CAHILL: Okay.
Thank you all very much.
16 CHAIRMAN CAFFREY:
Thank you, Ms. Cahill.
17 There's a reflection
on the clock. I think it's
18 almost ten to 3:00.
This would be a good time to take about
19 a 10-minute break or a
12-minute break. Let's come back at
20 3:00 o'clock.
21 (Whereupon a recess
was taken.)
22 CHAIRMAN CAFFREY:
Let's find our seats and continue
23 with the
cross-examination of these witnesses.
24 I believe we are -- we
have completed Ms. Cahill's
25 cross-examination. Ms.
Scoonover, are you ready?
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1 MS. SCOONOVER: Yes.
2 CHAIRMAN CAFFREY: Good
afternoon, welcome.
3 MS. SCOONOVER: Thank
you, Mr. Caffrey.
4 ---oOo---
5 CROSS-EXAMINATION
6 BY CALIFORNIA STATE
LANDS COMMISSION AND CALIFORNIA
7 DEPARTMENT OF PARKS AND
RECREATION
8 MS. SCOONOVER: Mr.
Kavounas, I'd like to start with a
9 few questions for you.
On page five of your written
10 testimony, which is
Exhibit 32, you commented that there's
11 little expertise
in-house at the Department of Water and
12 Power regarding the
waterfowl issues.
13 Is that an accurate
and correct statement, aside from
14 Mr. Tillemans?
15 MR. KAVOUNAS: It is a
correct statement that I stated
16 in my testimony, yes.
17 MR. BIRMINGHAM: Your
Honor, I'm going to object to
18 the question.
19 BOARD MEMBER DEL
PIERO: It's too late, he answered
20 it.
21 MR. BIRMINGHAM: Here
is testimony that's been sworn
22 to under oath and she
says is it accurate and correct, and I
23 think it's an
argumentative question. It's in his
24 testimony. He said
it's accurate and correct.
25 MR. DODGE: With all
respect, I mean, events might
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1 change and she might
just be asking whether it's still
2 correct.
3 CHAIRMAN CAFFREY: I
agree. I think it's stylistic
4 and sometimes it's
setting up for the next question so go
5 ahead -- and he
answered it anyway, as Mr. Del Piero, a very
6 skilled hearing
officer, has already noted.
7 BOARD MEMBER DEL PIERO:
It's amazing. If you listen,
8 you sometimes hear
answers, really.
9 MS. SCOONOVER: With
that auspicious beginning,
10 Mr. Kavounas, let's
try again.
11 Therefore, in reaching
conclusions on issues related
12 to waterfowl, is it
accurate to say that you relied upon the
13 three stream -- or
three waterfowl scientists, Dr. Fritz --
14 Dr. Reid, Dr. Drewien
and Mr. Ratcliff?
15 MR. KAVOUNAS: Yes.
16 MS. SCOONOVER: In
addition, I believe in response to
17 a question from Ms.
Bellomo you stated that you also relied
18 on testimony or
information from Dr. Scott Stine.
19 Do you recall that
statement?
20 MR. KAVOUNAS: No, I
did not rely on any information
21 from Dr. Stine.
22 MS. SCOONOVER: Did
these three scientists that the
23 Department of Water
and Power employed to create this
24 Waterfowl Habitat Plan
rely on any information from
25 Dr. Stine?
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1 MR. KAVOUNAS: Why, yes,
as a matter of fact they did.
2 Every yellow tab in
this book is a reference to Dr. Stine.
3 MS. SCOONOVER: You also
stated in response to a
4 comment -- or a
question from Ms. Bellomo that the
5 Department of Water and
Power had concerns about the
6 recommendations the
scientists had made.
7 Is the Department of
Water and Power proposing any
8 alternatives to the
scientists' plan at this point?
9 MR. KAVOUNAS: No.
10 MS. SCOONOVER: Mr.
Kavounas, you weren't present at
11 the time the waterfowl
scientists were selected, were you?
12 That would have been
your predecessor, Mr. Hazencamp
13 (phonetic)?
14 MR. KAVOUNAS: That is
correct.
15 MS. SCOONOVER: Mr.
Tillemans, you were present during
16 that process, weren't
you?
17 MR. TILLEMANS: Yes, I
was.
18 MS. SCOONOVER: Would
you state the Department of
19 Water and Power hand
picked these three experts?
20 MR. TILLEMANS: No, I
wouldn't.
21 MS. SCOONOVER: Would
you say that these three experts
22 were selected as a
collaborative process?
23 MR. TILLEMANS: Yes, I
would.
24 MS. SCOONOVER: And
would you agree that not all of
25 the parties were
necessarily thrilled with the selection of
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1 all three of the
scientists?
2 MR. TILLEMANS: I can't
speak for the other parties.
3 MS. SCOONOVER: Would
you say, however, that there was
4 general consensus that
all the parties either supported,
5 accepted or could live
with the selection of these three
6 scientists?
7 MR. TILLEMANS: I will
say the whole process of the
8 TAG meetings we were
having was a general consensus process
9 and that's how the plan
was developed and that's why we
10 decided to go with the
Waterfowl Plan.
11 MS. SCOONOVER: In
providing direction for these three
12 scientists did the
Department of Water and Power supply the
13 scientists with D-1631
and the Board's specific
14 recommendations for
the Waterfowl Habitat Restoration Plan?
15 MR. TILLEMANS: That, I
think, would have been
16 Mr. Hazencamp's
responsibility at the time when he was Mono
17 Basin Coordinator, but
I'm pretty sure he did.
18 MS. SCOONOVER: That's
fine. In addition, did the
19 parties agree on ten
guidelines to help direct the waterfowl
20 scientists in creating
their plan?
21 MR. TILLEMANS: Yes, I
recall some guidelines. I'm
22 not sure how many.
23 MS. SCOONOVER:
Appendix I to the DWP Mono Basin
24 Waterfowl Habit
Restoration Plan, beginning at page three of
25 Appendix I is a
listing of those ten elements.
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1 Mr. Tillemans, would
you read those ten elements?
2 MR. TILLEMANS: You want
me to read all ten?
3 MS. SCOONOVER: Please.
4 MR. TILLEMANS: Okay.
"1" is -- okay.
5 MS. SCOONOVER:
Beginning at the bottom of page three
6 and onto page four, No.
1.
7 MR. TILLEMANS: Okay,
No. 1 is "Restore pre-1941
8 waterfowl habitat
conditions and ecological processes where
9 feasible.
10 Focus on lake-fringing
habitats, but due to Decision
11 1631 lake management
target of 6,392 feet variation around
12 that target...some
restoration of pre-1941 lake-fringing
13 waterfowl habitat may
not be possible. Therefore,
14 mitigation options on
the tributary streams and elsewhere in
15 the Mono Basin should
be examined, and may be required.
16 Restoration preference
is for natural processes and
17 conditions as opposed
to heavily engineered habitats.
18 Preference shall be on
recreating or restoring
19 naturally occurring
ecosystems or functions, as opposed to
20 'creating' new
habitat.
21 Single species
management shall be avoided. Emphasis
22 shall be on the
ecosystem approach.
23 Restoration preference
shall be on self-sustaining
24 habitats without the
need for long-term maintenance
25 activities.
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1 Keep options and
opportunities open as to lands where
2 restoration treatments
take place.
3 The focus of
lake-fringing habitats shall be on
4 long-term restoration
associated with the 6,392 target
5 level, rather than
short-term restoration.
6 There shall be
monitoring of the restoration
7 treatments which should
consider: Duration for restoration
8 to occur, goals and
objectives of the particular project,
9 level of effort
necessary to collect data for adequate
10 monitoring program, a
baseline assessment of pre-1941 and
11 existing conditions,
waterfowl use, aquatic invertebrates,
12 vegetative succession,
water chemistry.
13 Elements of the
Waterfowl Habitat Restoration Plan
14 unrelated to lake
level shall be implemented as soon as
15 practicable. The
timing of the implementation of elements
16 of the Waterfowl
Habitat Restoration Plan related to lake
17 level shall be
addressed on a case-by-case basis."
18 MS. SCOONOVER: Mr.
Kavounas, are you familiar with
19 these ten guidelines?
20 MR. KAVOUNAS: Yes. To
the extent that I read them in
21 the scientists' plan,
yes.
22 MS. SCOONOVER: And
would you say particularly that
23 Item 1, the
restoration of pre-1941 waterfowl habitat
24 conditions and
ecological processes where feasible is, in
25 fact, a goal or
objective?
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1 MR. KAVOUNAS: I have no
opinion on that. That seems
2 to be -- to me to be
one of the ten. I don't know why it
3 would be more than the
others.
4 MS. SCOONOVER: So taken
together, could you interpret
5 these ten guidelines as
goals and objectives for the
6 Waterfowl Habitat
Restoration Plan?
7 MR. KAVOUNAS: I take
them as guidelines.
8 MS. SCOONOVER: And that
differs from a goal or
9 objective how?
10 MR. KAVOUNAS: These
are guidelines -- to my
11 understanding, these
are guidelines on selecting and perhaps
12 developing the scope
of projects that would restore
13 waterfowl habitat.
14 MS. SCOONOVER: Did the
Department of -- Mr. Kavounas
15 or Mr. Tillemans, did
the Department of Water and Power, to
16 your knowledge, supply
the waterfowl scientists with any
17 additional guidelines,
goals or objectives than these ten
18 and probably the
Decision 1631?
19 MR. KAVOUNAS: I can't
speak before my time, but when
20 I joined I am not
aware that the Department did.
21 MS. SCOONOVER: Mr.
Kavounas, turning to page two of
22 your testimony, which
was Exhibit 32, the first paragraph,
23 you comment that in
the second sentence "...we were under
24 the impression that
partial flow in Mill Creek, enough to
25 reach the edge of Mono
Lake, would suffice for waterfowl
CAPITOL REPORTERS (916)
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1 habitat
restoration."
2 If, in fact, Mr.
Kavounas, the entire flow of Mill
3 Creek was required in
order to restore waterfowl habitat,
4 would your conclusion
be different?
5 MR. KAVOUNAS: Which
conclusion?
6 MS. SCOONOVER: The
conclusion that partial flows
7 would be supplied --
let me restate it. It's not very
8 clear.
9 Your statement at page
two, the first paragraph is
10 that it is your -- you
are under the impression that partial
11 flow in Mill Creek,
enough to reach the edge of Mono Lake,
12 would suffice for
waterfowl habitat restoration.
13 If, in fact,
scientists were able to prove to your
14 satisfaction that the
entire flow of Mill Creek was
15 necessary in order to
restore waterfowl habitat, would the
16 Department of Water
and Power then implement that
17 recommendation?
18 MR. BIRMINGHAM: Calls
for speculation.
19 CHAIRMAN CAFFREY: Are
you authorized to answer the
20 question, sir?
21 MR. BIRMINGHAM: Excuse
me, I'm not sure it's a
22 question of authority
here. There are a number of legal
23 impediments to the --
carrying out the plan that was
24 proposed by the
scientists -- let me restate it.
25 There are a number of
legal impediments to restoring
CAPITOL REPORTERS (916)
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1 the full flow of Mill
Creek to Mill Creek. Mr. Beckman, I'm
2 sure, is going to stand
up and say he's got legal rights.
3 Southern California
Edison has --
4 CHAIRMAN CAFFREY: Wait,
wait, wait, one at a time.
5 Go ahead.
6 MR. BIRMINGHAM: Perhaps
if she could lay a foundation
7 and ask Mr. Kavounas a
question assuming that those legal
8 impediments can be
overcome what would the Department do,
9 that may be an
appropriate question but --
10 MR. DODGE: Mr.
Chairman, when all is said and done I
11 think we will prove to
this Board that there are no legal
12 impediments
whatsoever. So I don't think you can assume
13 that Mr. Birmingham's
statement is correct.
14 MS. SCOONOVER: Mr.
Caffrey --
15 CHAIRMAN CAFFREY: Just
a moment, Ms. Scoonover, thank
16 you.
17 (Pause.)
18 I'm going to overrule
the objection, but it's only if
19 you have the authority
to answer the question. If you have
20 the authority, one
could argue perhaps it's not speculation.
21 Do you have the
authority to answer the question?
22 MR. KAVOUNAS: Yes, I
do.
23 CHAIRMAN CAFFREY: Give
it your best shot.
24 MR. KAVOUNAS: I will,
thank you.
25 Assuming that you
could prove that all the water is
CAPITOL REPORTERS (916)
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1 required to flow back
into Mill Creek to create waterfowl
2 habitat, I would take
that proposal into consideration and I
3 would consider it under
the guidelines that the Decision
4 1631 has given the
Department of Water and Power. The one
5 that comes to mind
first is whether it's economically
6 feasible to do. I can't
tell you right now what my
7 conclusion would be.
8 MS. SCOONOVER: Thank
you. Paragraph two on the same
9 page of your testimony
you refer to the DeChambeau/County
10 Ponds/Black Point
element of the scientists' plan and in
11 about the middle of
that paragraph note "...that the total
12 acreage that could
potentially be 'restored' is minimal
13 compared to the area
of the lake..." and, therefore, it does
14 not value the expense.
15 Is there a question of
whether the DeChambeau/County
16 Pond Complex provides
a value to waterfowl?
17 MR. KAVOUNAS: What
I've been told has led me to
18 believe that there is.
I've been told that the first phase
19 that was implemented
there has not necessarily benefited
20 waterfowl.
21 MS. SCOONOVER: Just to
clarify, you do have questions
22 as to whether or not
County Pond Complex would benefit
23 waterfowl then?
24 MR. KAVOUNAS: Yes, I
do.
25 MS. SCOONOVER: So it's
not a size only calculation
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1 here? It's not, as this
statement indicates, total acreage
2 compared to the area of
the lake? It's more than that?
3 MR. KAVOUNAS: It is
more than that. Let me relay to
4 you what I was told was
that the project the way it was
5 constructed created a
new condition for the ponds that
6 allowed excessive
leakage and then the project itself was --
7 became financially
infeasible in that it had to be kept -- a
8 well had to be operated
at all times, which became too
9 expensive for the
agency and I don't remember which agency
10 it was that had to
fund it.
11 MS. SCOONOVER: And
you're talking about the existing
12 DeChambeau project,
not the proposal of the --
13 MR. KAVOUNAS: The
Phase 1, correct, yes.
14 MS. SCOONOVER: Okay,
thank you. DWP's plan does not
15 include a number of
elements that were recommended by the
16 waterfowl scientists.
17 Did DWP consult with
other waterfowl experts in
18 culling this list in
order to determine the importance of
19 these elements to
waterfowl?
20 MR. KAVOUNAS: Would
you mind giving me the list?
21 MS. SCOONOVER: Page
two, the third paragraph, Mill
22 Creek, DeChambeau as a
whole, Salt Cedar control, elements
23 of monitoring.
24 MR. KAVOUNAS: Thank
you, I forgot that was there.
25 No, those were
decisions that were made using the guidelines
CAPITOL REPORTERS (916)
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1 as 1631 asked the
Department to use.
2 MS. SCOONOVER: Were
these decisions based on
3 feasibility?
4 MR. KAVOUNAS: Yes.
5 MS. SCOONOVER: Were
these decisions based on cost?
6 MR. KAVOUNAS: Yes.
7 MS. SCOONOVER: Were
these decisions based on value to
8 waterfowl?
9 MR. KAVOUNAS: In a
roundabout way. Only the way
10 comparing total
acreage to acreage of the lake.
11 MR. KAVOUNAS: Still on
page two, the next paragraph,
12 we're making great
progress, you comment that the entire --
13 the DWP has neither
the ability nor the obligation to return
14 the entire flow of
Mill Creek to its natural channel.
15 Do you see that
testimony?
16 MR. KAVOUNAS: Yes.
That would be the second line in
17 the fourth paragraph
on page two, DWP does not have the
18 ability nor the
obligation to do so, yes.
19 MS. SCOONOVER: Now,
what elements would be required
20 to return the full
flow of Mill Creek to the channel putting
21 aside any water rights
issues, physical?
22 MR. KAVOUNAS: Okay,
I'd have to speculate.
23 MS. SCOONOVER: Okay.
24 MR. KAVOUNAS: Counsel?
25 MS. SCOONOVER: I'm
questioning the basis of your
CAPITOL REPORTERS (916)
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1 statement that DWP does
not have the ability to return the
2 full flows of Mill
Creek to its natural stream course. I
3 just want to know the
basis for that statement.
4 MR. KAVOUNAS: Okay,
what I mean by that statement is
5 the Department
facilities do not permit the Department to
6 divert the flow as it
exits the Lundy Power Plant to return
7 that flow into Mill
Creek.
8 MS. SCOONOVER: So in
order to return the full flows
9 to Mill Creek there has
to be water. There has to be water
10 and we'll set aside
the water rights question, but assume
11 that water either has
to be appropriated or purchased.
12 Would you agree with
me, then, that a physical
13 facility has to be
created or upgraded in order to return
14 the water from the
return -- from the tailrace into Mill
15 Creek?
16 MR. KAVOUNAS: I would
say a physical facility has to
17 be created, upgraded
or removed to return water into Mill
18 Creek.
19 MS. SCOONOVER: And
then potentially blocked channels
20 in the Mill Creek
bottomlands would have to be mechanically
21 opened. I understand
that's the other recommendation?
22 MR. KAVOUNAS: I'm not
sure that I understand the same
23 thing.
24 MS. SCOONOVER: Okay.
Let's go back to just the water
25 and the return ditch.
CAPITOL REPORTERS (916)
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1 MR. KAVOUNAS: I'm
sorry, I didn't say anything about
2 the return ditch. I
said facilities would have to be
3 upgraded or removed.
4 MS. SCOONOVER: Okay.
And is it physically possible
5 to do that?
6 MR. KAVOUNAS: Of
course.
7 MS. SCOONOVER: Okay.
8 MR. KAVOUNAS: As an
example, the Department could buy
9 the Lundy Lake and the
power plant and remove the dam and
10 release the flow back
to Mill Creek.
11 MS. SCOONOVER: And so
it is physically possible to
12 do. Now, assuming that
the water was either available for
13 appropriation or
happened to be for sale at the present
14 moment, is it possible
then that the Department of Water
15 Resources -- or the
Department of Water and Power could
16 either appropriate the
water or purchase the water rights?
17 MR. KAVOUNAS: Is it
possible?
18 MS. SCOONOVER: Yes.
19 MR. KAVOUNAS: Yes.
20 MS. SCOONOVER: Okay.
Now, talking about the
21 obligation of the
Department of Water and Power, in that
22 same paragraph, the
next sentence you make a statement that
23 a number of elements
have been rejected because their
24 benefits are
basinwide.
25 Do you mean to imply
here that anything with a
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1 basinwide benefit has
been eliminated as a possibility from
2 the restoration
recommendations of the Department of Water
3 and Power?
4 MR. KAVOUNAS: No, I
don't mean to imply that. If I
5 may explain what I
mean?
6 MS. SCOONOVER:
Certainly.
7 MR. KAVOUNAS: Something
like Salt Cedar, although it
8 would benefit some
areas, it would also benefit lands where
9 other land management
agencies have responsibility and I see
10 that -- let's say, for
example, the Mono Lake Collaborative
11 Task Force sets as a
priority Salt Cedar removal on a
12 basinwide level. The
Department is part of that
13 collaborative task
force and will gladly participate in such
14 an effort. The same
applies for the GIS.
15 MS. SCOONOVER: Is it
your understanding then -- or
16 would you agree with
me, Mr. Kavounas, that ducks are quite
17 a bit more mobile than
fish?
18 MR. KAVOUNAS: I have
no opinion on that. I'm neither
19 a hunter, nor a
fisherman.
20 MS. SCOONOVER: Is it
your understanding, Mr.
21 Kavounas, that most
ducks possess the ability to migrate?
22 MR. KAVOUNAS: This is
my understanding.
23 MS. SCOONOVER: And
that birds --
24 MR. KAVOUNAS: As is
with fish, I should add.
25 MS. SCOONOVER: And
that birds can travel between
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1 bodies of water within
a state, continent?
2 MR. KAVOUNAS: Yes.
3 MS. SCOONOVER: All
right. Is it your understanding
4 that D-1631 required
restoration of particular waterfowl
5 populations?
6 MR. KAVOUNAS: No.
7 MS. SCOONOVER: Is it
your understanding that D-1631
8 required restoration of
waterfowl habitat?
9 MR. KAVOUNAS: Yes.
10 MS. SCOONOVER: So it's
habitat as opposed to specific
11 duck numbers or
waterfowl numbers are required by the Order
12 and Decision?
13 MR. KAVOUNAS: The way
I read it, yes.
14 MS. SCOONOVER: On page
two, the sixth paragraph you
15 note that the
scientists did not provide the basis for their
16 recommendations to
continue to collect hydrologic data.
17 Did DWP inquire as to
the basis for the three
18 waterfowl scientists'
recommendation?
19 MR. KAVOUNAS: No.
20 MS. SCOONOVER: Did DWP
consult with any other
21 waterfowl experts as
to potential need for conducting this
22 kind of study?
23 MR. KAVOUNAS: Yes.
24 MS. SCOONOVER: And who
would that be?
25 MR. KAVOUNAS: That
would be Dr. Joe Jehl from Hubbs
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1 Research Institute.
2 MS. SCOONOVER: But Dr.
Jehl will not be testifying
3 here today; is that
correct?
4 MR. KAVOUNAS: That's
correct.
5 MS. SCOONOVER: Or at
all during these proceedings?
6 MR. KAVOUNAS: That is
correct.
7 Would you like to know
what his answer was?
8 MS. SCOONOVER: No, but
thank you.
9 Is Upper Conway
currently being irrigated with Mill
10 Creek water or with
Virginia Creek water if you know,
11 Mr. Kavounas?
12 MR. KAVOUNAS: I have
heard conflicting statements.
13 So I would have to
speculate as to what is actually
14 happening there.
15 MS. SCOONOVER: Does
your plan -- does the Department
16 of Water and Power's
plan in any way affect the use or
17 application of
Virginia Creek water?
18 MR. KAVOUNAS: Not to
my knowledge.
19 MS. SCOONOVER: Who
will implement the restoration
20 measures of the
Waterfowl Habitat Plan?
21 MR. KAVOUNAS: I
believe the plan specifies who will
22 be doing that. The
specific measures, for example -- is
23 there a specific
measure?
24 MS. SCOONOVER: Would
the direction of the overall
25 restoration efforts
rest with the Department of Water and
CAPITOL REPORTERS (916)
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1 Power?
2 MR. KAVOUNAS: I would
say so, yes.
3 MS. SCOONOVER: Could
the Department of Water and
4 Power adaptively manage
restoration actions if it so chose?
5 MR. KAVOUNAS: That's
getting outside my field of
6 expertise.
7 MS. SCOONOVER: In your
testimony you noted that the
8 stream -- the waterfowl
scientists failed to recommend or
9 design an adaptive
management strategy.
10 Do you recall that
testimony?
11 MR. KAVOUNAS: Remind
me where it's at.
12 MS. SCOONOVER: Page
three. I'm looking.
13 MR. KAVOUNAS: Perhaps
the second to last paragraph in
14 the middle?
15 MS. SCOONOVER: Yes.
16 MR. KAVOUNAS:
"The scientists proposal does not
17 include any standards
of what positive or negative
18 restoration results
would be. It is assumed that more
19 'habitat' is better,
and more 'birds' are better. There's
20 no distinction between
waterfowl and other birds that use
21 the lake, and whether
it would be considered a success to
22 have more, or in case
of certain species, less."
23 MS. SCOONOVER: In
designing its waterfowl plan did
24 the Department of
Water and Power implement or design an
25 adaptive management
strategy?
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1 MR. KAVOUNAS: The
Department of Water and Power did
2 not design a Waterfowl
Habitat Restoration Plan.
3 MS. SCOONOVER: In
determining which elements of the
4 street -- of the
waterfowl scientists' plan to incorporate
5 into the Department's
plan and in making modifications to
6 that plan, did the
Department of Water and Power include any
7 previsions related to
adaptive management?
8 MR. KAVOUNAS: Not to my
knowledge.
9 MS. SCOONOVER: At page
three of your testimony in the
10 fifth full paragraph
-- so it would be the last paragraph on
11 the page -- you noted
"...that the numbers present at the
12 lake depend more on
the conditions of North American
13 waterfowl in general,
than specific conditions at Mono
14 Lake." Do you
recall that testimony?
15 MR. KAVOUNAS: I'm
reading it right now, yes.
16 MS. SCOONOVER: Okay.
Would you say that declines of
17 waterfowl populations
at Mono Lake are directly related to
18 declines in waterfowl
population throughout the Pacific
19 Flyway?
20 MR. KAVOUNAS: I can't
answer that. I don't know
21 enough about it to
answer that.
22 MS. SCOONOVER: In the
waterfowl scientists' plan they
23 note that declines of
the waterfowl -- declines of waterfowl
24 population at Mono
Lake were many times greater than
25 declines elsewhere in
the Pacific Flyway.
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1 Are you familiar with
that?
2 MR. KAVOUNAS: If it's
in there, I've read it. I
3 don't recall
specifically where it is.
4 MS. SCOONOVER: Would
you agree with me -- or with the
5 statement that
waterfowl populations in the Basin are at
6 least partially
dependent upon habitat conditions within the
7 Basin?
8 MR. KAVOUNAS: I don't
know enough to answer that.
9 MS. SCOONOVER: Do you
know what shovelers eat,
10 Mr. Kavounas?
11 MR. KAVOUNAS: I've
been told that they eat brine
12 shrimp and brine
flies.
13 MS. SCOONOVER: Do you
know what makes up a majority
14 of their nutritional
intake?
15 MR. KAVOUNAS: I don't.
16 MS. SCOONOVER: Mr.
Tillemans, do you know?
17 MR. TILLEMANS: Not in
any detail. Joe Jehl would,
18 who has studied Mono
Lake more than I have. There's
19 probably a variety of
aquatic insects that they feed on
20 but --
21 DR. WHITE: I reviewed
one source of information on
22 that before coming
here. There has been some work done at
23 Abert Lake. Of the
waterfowl looked at, the shoveler stood
24 out as being less
dependent on flies. The majority of their
25 diet was seeds and
brine shrimp.
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1 MS. SCOONOVER: And is
this study referenced in your
2 testimony, Dr. White?
3 DR. WHITE: It is
referenced in David Shufford's
4 testimony.
5 MS. SCOONOVER: David
Shufford's testimony in the
6 previous round of
hearings?
7 DR. WHITE: No, he's yet
to appear.
8 MS. SCOONOVER: Mr.
Kavounas, back on page six of your
9 testimony, Item No. 3.
10 MR. KAVOUNAS: Excuse
me, on page six?
11 MS. SCOONOVER: Page
six.
12 MR. KAVOUNAS: Thank
you.
13 MS. SCOONOVER: Item
No. 3.
14 MR. KAVOUNAS: Yes.
15 MS. SCOONOVER: Did the
Department inquire as to the
16 basis of the
scientists' recommendations for vegetation
17 monitoring?
18 MR. KAVOUNAS: We did
not ask the scientists.
19 MS. SCOONOVER: Did the
Department consult with any
20 other experts on the
need for vegetation monitoring?
21 MR. KAVOUNAS: Not to
my knowledge. The monitoring
22 plan I got some
assistance from Brian. So to get a complete
23 answer I'd have to ask
Brian if he knows.
24 MS. SCOONOVER: That's
fine, I'll move on.
25 MR. KAVOUNAS: Okay.
CAPITOL REPORTERS (916)
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1 MS. SCOONOVER: I assume
you were talking about Brian
2 White?
3 MR. KAVOUNAS: I'm
sorry, Brian Tillemans.
4 MS. SCOONOVER: Okay.
Mr. Tillemans, would you care
5 to complete the answer
then?
6 MR. TILLEMANS: Could
you repeat the question?
7 MS. SCOONOVER: I was
asking whether or not the
8 Department of Water and
Power had consulted with other
9 experts in reaching the
conclusion -- in trying to determine
10 the basis for the
scientists' explanation of the -- the
11 basis of the
scientists' recommendation for vegetation
12 monitoring?
13 MR. TILLEMANS: We
relied solely on the waterfowl
14 scientists.
15 MS. SCOONOVER: And Mr.
Kavounas testified that the
16 scientists did not
provide the basis for that monitoring,
17 and I asked whether or
not in eliminating that from the
18 Department of Water
and Power's plan the Department
19 consulted with outside
scientists or whether the decision
20 was made on some other
basis?
21 MR. KAVOUNAS: Excuse
me, eliminating what? I thought
22 you were talking about
vegetation monitoring frequency.
23 MS. SCOONOVER: The
vegetation monitoring frequency,
24 yes.
25 MR. KAVOUNAS: Perhaps
I didn't explain my testimony
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1 adequately. What I'm
trying to say there is that the
2 scientists did not
specify how frequently to do vegetation
3 monitoring and the
Department set a five-year interval. We
4 did not eliminate the
proposal for vegetation monitoring.
5 MS. SCOONOVER: Were
there comments on the plan with
6 regard to the
frequency, the necessity of aerial photo --
7 MR. KAVOUNAS: For
aerial photos --
8 MS. SCOONOVER: --
analysis, do you recall?
9 MR. KAVOUNAS: Yes.
10 MS. SCOONOVER: And do
you recall the nature --
11 general nature of
those comments?
12 MR. KAVOUNAS: The
general nature of the comments, as
13 I recall -- well, I
recall the nature of the comments and
14 the testimony that we
just received that annual aerial
15 photography should be
performed.
16 MS. SCOONOVER: Did any
other party recommend aerial
17 photos every five
years?
18 MR. KAVOUNAS: I'm
sorry, I'm confused. You started
19 with veg monitoring.
20 MS. SCOONOVER: I'm
sorry. Yes, vegetation
21 monitoring, I'm sorry,
and then what I'd like to do is move
22 to aerial photo
analysis, Item No. 6.
23 MR. KAVOUNAS: Okay.
24 MS. SCOONOVER: I'm
sorry if that wasn't clear. Item
25 No. 6 on page six.
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1 MR. KAVOUNAS: Okay. The
scientists' plan to my
2 knowledge did not
recommend any aerial photography. That's
3 an area where -- I'm
not going to say that it was creative
4 monitoring on the
Department's behalf, but since we were
5 taking aerial photos
for the Stream Monitoring Plan that was
6 acknowledged to be a
very strong need. I thought we would
7 add it at the same
frequency to any area in the Basin that
8 is considered waterfowl
habitat. So that's an area where we
9 added to the stream --
excuse me, to the waterfowl
10 scientists' plan.
11 MS. SCOONOVER: Dr.
White, I have a few questions for
12 you now. In your
testimony on the first page, second
13 paragraph, which is
DWP Exhibit No. 33, you note that the
14 limnological and
biological features included in the DWP
15 plan have high value
because of their functional
16 relationships --
because their functional relationships have
17 been described in a
series of peer-reviewed scientific
18 publications. Do you
recall that testimony?
19 DR. WHITE: Yes, I do.
20 MS. SCOONOVER: Have
the value of these DWP studies
21 been assessed for
waterfowl?
22 DR. WHITE: Not
specifically, no.
23 MS. SCOONOVER: Is
there any proof that monitoring
24 these elements and
techniques are relevant to determining
25 the success of
restoration efforts for waterfowl?
CAPITOL REPORTERS (916)
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1 DR. WHITE: Well,
primary and secondary production are
2 two basic features that
I think would be of general
3 interest.
4 MS. SCOONOVER: Does the
Department of Water and Power
5 propose to monitor any
new food sources -- potential new
6 waterfowl food sources?
7 DR. WHITE: Not at this
time, no.
8 MS. SCOONOVER:
Ctenocladus, for example, does the
9 Department of Water and
Power propose to monitor for
10 Ctenocladus?
11 DR. WHITE: No.
12 MS. SCOONOVER: In your
testimony, Dr. White, you
13 indicate that brine
shrimp serves as an indicator species
14 for all secondary
production in Mono Lake.
15 Is that your
testimony? Do you recall that testimony?
16 DR. WHITE: I think it
provides a good index of
17 invertebrate
production, especially salinity effects.
18 MS. SCOONOVER: And an
indicator species generally
19 serves as a surrogate
or substitute for studying other
20 species because it's
correlated with those species or it's
21 an indicator; isn't
that correct?
22 DR. WHITE: That's one
way to put it. Another way I
23 would put it in this
context is that it is subject to the
24 same physiological
processes that are of interest in other
25 species.
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1 MS. SCOONOVER: Do
alkali flies inhabit the same
2 habitat as the brine
shrimp?
3 DR. WHITE: The alkali
fly are predominantly benthic,
4 no, and the brine
shrimp are open water.
5 MS. SCOONOVER: Do they
have different food
6 requirements?
7 DR. WHITE: The food of
the -- I would say they do,
8 yes.
9 MS. SCOONOVER: Do they
have differing developmental
10 traits?
11 DR. WHITE: In what way
do you mean? They have
12 different larval
stages.
13 MS. SCOONOVER:
Different larval stages?
14 DR. WHITE: Yes.
15 MS. SCOONOVER:
Different other developmental stages
16 as well?
17 DR. WHITE: Well, they
have --
18 MS. SCOONOVER:
Developmental traits.
19 DR. WHITE: They have a
number of different larval
20 stages they pass
through. The brine shrimp has a larger
21 number than the brine
fly. They have adult reproductive
22 phases.
23 MS. SCOONOVER: Do both
brine shrimp and alkali fly
24 follow the same
population demographics or are there
25 differences?
CAPITOL REPORTERS (916)
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1 DR. WHITE: Well, the
population demographics of the
2 brine shrimp are much
better known. They primarily have two
3 generations per year.
The alkali fly, I believe, has four
4 or more overlapping
generations. So I would say that their
5 demographics are
different and better known in the shrimp.
6 MS. SCOONOVER: Because
the populations of shrimp and
7 flies, as you've
testified occupy differing areas of the
8 lake, could they
respond differently to a raise in the lake
9 elevation?
10 DR. WHITE: Oh, I think
so, yes, and the different
11 models for those two
populations take into account different
12 factors because those
factors are different at different
13 lake elevations.
14 MS. SCOONOVER: So
population models have been
15 developed for both
alkali flies and for brine shrimp; is
16 that correct?
17 DR. WHITE: Oh, I don't
know that I'd say a population
18 model's been developed
for the alkali fly because enough is
19 not known of their
population dynamics. There was a
20 production model that
was developed for the EIR.
21 MS. SCOONOVER: Should
these models be used as a
22 substitute for
monitoring?
23 DR. WHITE: I think
they are a compliment to
24 monitoring.
25 MS. SCOONOVER: So
models are not necessarily the only
CAPITOL REPORTERS (916)
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1 way, then, of
determining population levels and shouldn't be
2 entirely relied upon,
is that --
3 DR. WHITE: Well, models
are useful for a number of
4 purposes. One is to
describe our best understanding.
5 MS. SCOONOVER: Would
actual data on ecological
6 recovery help guide
management decisions?
7 DR. WHITE: Oh, actual
data, yeah. It's great stuff.
8 MS. SCOONOVER: You
stated in your cross-examination I
9 think with Ms. Bellomo
that you're familiar with both
10 published as well as
non-published information collected on
11 alkali fly. Am I
recalling that testimony correctly?
12 DR. WHITE: Yes, that
is correct.
13 MR. FRINK: Mr.
Chairman, I'm going to --
14 CHAIRMAN CAFFREY: Mr.
Frink.
15 MR. FRINK: Yes, sir.
I'm going to object to this
16 line of questioning.
There were days, I believe, of hearing
17 devoted originally to
populations of brine flies and brine
18 shrimp. Decision 1631
concluded that the water elevations
19 expected to result
under the terms of the Decision that both
20 brine flies and brine
shrimp would be in a healthy
21 condition, and I
question the relevance of the questions in
22 this proceeding.
23 CHAIRMAN CAFFREY:
Yeah, I agree, Mr. Frink.
24 MS. SCOONOVER: Mr.
Caffrey, if I may. The health of
25 the lake as a
potential for waterfowl habitat is dependent
CAPITOL REPORTERS (916)
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1 on a number of
differing features. Dr. White identified
2 brine shrimp as an
appropriate monitoring -- as an
3 appropriate element to
monitor and that that is the
4 appropriate indicator
of secondary productivity. Secondary
5 productivity to the
lake affects waterfowl population.
6 I'm trying to find the
basis for monitoring shrimp as
7 opposed to alkali fly.
We did have lots and lots of
8 testimony of the
importance of flies to the bird and
9 waterfowl population
previously, but the Department of Water
10 and Power has reached
a differing conclusion in its
11 Monitoring Plan.
12 CHAIRMAN CAFFREY: What
about that, Mr. Frink? Is
13 there a linkage there?
14 MR. FRINK: I'm not
certain that the Department of
15 Water and Power
reached a differing conclusion that they
16 weren't important. I
thought that they decided to monitor
17 the brine flies for
certain reasons. But, in any event,
18 Decision 1631 made a
finding that was not appealed from that
19 both species would be
healthy with the water levels that
20 would result under the
water diversion criteria of the
21 Decision.
22 So if we're now trying
to prove that the conclusions
23 reached regarding
brine fly and brine shrimp were erroneous,
24 I think it's outside
the scope of this hearing.
25 CHAIRMAN CAFFREY: I
agree.
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1 MR. DODGE: May I
address that issue?
2 CHAIRMAN CAFFREY: Yes,
Mr. Dodge.
3 MR. DODGE: I think the
relevance is pretty apparent.
4 The three waterfowl
scientists as a component of their
5 monitoring plan
recommended monitoring the health of the
6 brine fly. Yet, Los
Angeles in its proposed monitoring
7 program has deleted
that; and I think Ms. Scoonover is
8 simply trying to get at
the basis for that deletion and I
9 think it's clearly
relevant.
10 MS. SCOONOVER: I'm
almost finished, if that helps.
11 CHAIRMAN CAFFREY: Mr.
Frink, do you think we're -- do
12 you still think after
hearing Mr. Dodge's comment that we're
13 outside of the scope,
it's kind of a gray area, or do you
14 still hold your
position?
15 MR. FRINK: I still
hold my position; but if there's
16 just a couple more
questions, rather than argue about it I
17 guess we could have
the questions.
18 CHAIRMAN CAFFREY:
Yeah, all right. I won't sustain
19 the objection, but I
will ask you to -- since this is a bit
20 of a problem, to just
conclude quickly.
21 MS. SCOONOVER: I
understand. Thank you,
22 Mr. Chairman.
23 Dr. White, in modeling
the indicators or
24 characteristics that
the Department of Water and Power has
25 identified to monitor,
will the Department of Water and
CAPITOL REPORTERS (916)
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1 Power be able to
determine the basis of population
2 fluctuations?
3 DR. WHITE: In the brine
shrimp I believe so.
4 MS. SCOONOVER: In all
of the -- brine shrimp or duck
5 food, waterfowl food, I
assume, is but one of the elements
6 of bird populations; is
that correct?
7 DR. WHITE: Oh, sure.
8 MS. SCOONOVER: And --
9 DR. WHITE: Speaking as
a non-ornithologist.
10 MS. SCOONOVER: And
simply because the population of
11 brine shrimp in the
lake increases the same year that the
12 population of ducks
increase, does it necessarily follow
13 from that conclusion
that the brine shrimp led to the
14 increase in population
of the duck?
15 DR. WHITE: No, I
wouldn't conclude anything from a
16 single year's worth of
data.
17 MS. SCOONOVER: From
ten years' worth of data, if you
18 knew the brine shrimp
population and you knew the duck
19 population?
20 DR. WHITE: I think a
correlation or co-variation of
21 that sort would be
something that you would look at as a
22 possible hypothesis,
that the brine shrimp may have
23 contributed in some
way.
24 MS. SCOONOVER: So
habitat amounts and habitat types
25 wouldn't enter into
this?
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1 DR. WHITE: Oh, sure it
would.
2 MS. SCOONOVER: So there
are a number of variables:
3 habitat types, habitat
amounts and food availability?
4 DR. WHITE: I would
think so and the condition of the
5 birds when they arrived
and lots of things.
6 MS. SCOONOVER: If
waterfowl scientists, in fact,
7 testified that the
availability of alkali fly made a
8 difference -- was the
primary food source for shovelers,
9 would that change your
estimation or your recommendation
10 that monitoring brine
shrimp is adequate to determine food
11 availability?
12 DR. WHITE: I think we
need to distinguish here
13 between the different
life stages of the alkali fly. The
14 alkali fly is being
referred to here as though it's just one
15 thing.
16 MS. SCOONOVER: At any
life stage.
17 DR. WHITE: At any life
stage my understanding of --
18 within the context of
bird food is that there are a number
19 of birds that take a
lot of the brine fly adults and no one
20 has ever done
abundance monitoring on the brine fly adults.
21 If you think the
larvae is hard, you go try and chase the
22 adults with a net
around the lake.
23 And, therefore, there
is no baseline on the adults.
24 No one has proposed a
baseline on the adults and I don't
25 think anyone thinks
anyone should try to do the adults. So
CAPITOL REPORTERS (916)
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1 a large component not
only of understanding the population
2 dynamics of the
population as a whole is missing because you
3 don't even know how
many of the reproductive stage is there,
4 a component of the bird
food part is unavailable as well.
5 And you can perhaps
make the simplifying assumption, which
6 is implicit in a lot of
work that's been done, that more
7 larvae means more
adults and you can make that assumption
8 because you have
nothing else to work with; but if you made
9 that assumption in
terms of the shrimp, you'd be wrong.
10 More larvae in the
spring means less adults in the summer
11 because of
intra-specific competition.
12 MS. SCOONOVER: The
baseline information that you
13 refer to that's
available for shrimp, who collected that
14 data? Who provided
that baseline or created that baseline?
15 DR. WHITE: That would
be Dr. John Melack and his
16 assistants and
associates.
17 MS. SCOONOVER: And was
the Department of Water and
18 Power a part of that
effort?
19 DR. WHITE: We have
been since about -- 1983, I
20 believe, we first
started funding him. We originally were
21 going out and
monitoring on our own for a couple of years at
22 the same time he was
and it seemed like a duplication of
23 effort.
24 MS. SCOONOVER: And,
finally, Dr. White, is the
25 Department of Water
and Power funding any efforts to
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1 establish baseline data
on alkali fly at any life stage?
2 DR. WHITE: Not at the
present time, no.
3 MS. SCOONOVER: Thank
you.
4 DR. WHITE: You're
welcome.
5 MS. SCOONOVER: What's
the remaining time,
6 Mr. Chairman?
7 CHAIRMAN CAFFREY: You
have 20 minutes and 15 seconds.
8 MS. SCOONOVER: Thank
you. I'd like to move to
9 Mr. Tillemans now.
10 Mr. Tillemans, in your
written testimony you said that
11 the Department of
Water and Power burn plan basically mimics
12 the waterfowl
scientists' recommendations, but the
13 Department of Water
and Power's plans actually talk in terms
14 of spring and winter
burns. Do you recall that testimony?
15 MR. TILLEMANS: Yes, I
do. But I don't know how
16 specific we're tied to
spring, winter, fall, whatever. We
17 need to conduct
experimental burns, as the waterfowl
18 scientists
recommended, to find out what is the best
19 protocol.
20 MS. SCOONOVER: Did the
waterfowl scientists recommend
21 spring burns?
22 MR. TILLEMANS: The
waterfowl scientists
23 recommended -- and
this is taken from their plan -- that the
24 seasonal wet habitats
currently exist in Table 1 that could
25 be potentially
enhanced by fire treatment. There is a
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1 lengthy discussion on
various fires and what they have
2 learned in the past,
and then they say that experimental
3 burns are needed to
obtain the information necessary to
4 develop plans for
future prescribed burns.
5 MS. SCOONOVER: Are you
familiar, Mr. Tillemans, with
6 the scientists'
recommendations that the burns actually be
7 conducted in fall and
winter?
8 MR. TILLEMANS: That
seems very appropriate being that
9 you're dealing with
wetlands if you want to have some dead
10 vegetation around that
would ignite and spring as well.
11 I've done a lot of
burning in the Owens Valley.
12 MS. SCOONOVER: Mr.
Tillemans, isn't there an
13 experimental burn
program written up? Is there a plan for
14 an experimental burn
program anywhere that the parties can
15 look at it?
16 MR. TILLEMANS: No, I
just basically adopted the
17 recommendations of the
waterfowl scientists in regards to
18 the burning program.
19 MS. SCOONOVER: Do the
waterfowl scientists recommend
20 any kind of monitoring
protocol?
21 MR. TILLEMANS: Yes,
they do.
22 MS. SCOONOVER: And is
that adopted in your -- will
23 that be adopted in
your experimental burn program?
24 MR. TILLEMANS: My
written testimony states that
25 "Monitoring
through aerial photography and post burn
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1 vegetation transects
will track the vegetation response,"
2 and monitoring, I
assume, would be what the scientists have
3 recommended for the
burn program.
4 MS. SCOONOVER: And is
that monitoring recommended
5 anywhere in the
scientists' program in any degree of
6 specificity that a
consultant, for example, could be handed
7 the monitoring protocol
and sent forth to monitor?
8 MR. TILLEMANS: I think
that would probably be a
9 better question for the
scientists who wrote the plan.
10 MS. SCOONOVER: I'm
interested in the Department of
11 Water and Power's plan
and the Department of Water and
12 Power's intent to
implement the burn plan, Mr. Tillemans,
13 and with specific
interest into exactly what the Department
14 is proposing.
15 In your testimony you
refer to an experimental burn
16 program, coordination
with the California Department of
17 Forestry and some
recommended goals of acres to be burned.
18 Is there anywhere
written a specific plan that
19 identifies potential
burn sites, burn protocols or
20 monitoring protocols
produced by the Department of Water and
21 Power?
22 MR. TILLEMANS: No,
there is no specific plans and
23 there's -- can I give
an explanation for that?
24 MS. SCOONOVER: Well,
let me see if I can get there
25 with my next question
then.
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1 Is it the Department's
proposal to allow the
2 California Department
of Forestry to create such a plan?
3 MR. TILLEMANS: Oh, no,
it's every --
4 MS. SCOONOVER: So the
Department will prepare it
5 in-house?
6 MR. TILLEMANS: Can I
finish my answer, please?
7 MR. BIRMINGHAM: Excuse
me, maybe the witness could be
8 permitted to finish his
answer before --
9 CHAIRMAN CAFFREY: Yes.
Ms. Scoonover, let him finish
10 his question -- his
answer.
11 MS. SCOONOVER:
Certainly, and I apologize.
12 CHAIRMAN CAFFREY: Go
ahead.
13 MR. TILLEMANS: The
intent of the burn program is to
14 have -- it's an
interagency burn program. If we burn on
15 state lands, we'll get
together and set our goals in terms
16 of the parties
involved in Mono Basin in terms of what we
17 want to obtain and
attempt -- if it's open water habitat or
18 whatever, it would be
site specific, okay, and we plan on
19 getting together and
ironing out with the agencies our goals
20 for the specific sites
with the idea in mind to enhance the
21 area, like the
waterfowl scientists recommended, for
22 waterfowl because
there are areas that have potential to be
23 enhanced and improve
the vigor of that vegetation due to
24 burning treatments;
and that is our intent, as I stated, and
25 the CDF is just an
implementation arm of that.
CAPITOL REPORTERS (916)
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1 When I worked with them
in the Owens Valley -- and
2 I've done it for 15
years and I'm serious when I say I've
3 burned thousands of
acres and many of those were wildlife
4 projects, waterfowl
projects, many of those have been range
5 burns. We get together
beforehand. We have, say, sensitive
6 plan issues, sensitive
animal issues, whatever, and we
7 discuss where our
concern's at and our goals and we work
8 very well with CDF in
getting those burn plans done and
9 that's my intent here.
10 MS. SCOONOVER: Mr.
Tillemans, have you in your 15
11 years of experience
ever burned in a state park reserve
12 area?
13 MR. TILLEMANS: No, I
haven't. And if I did admit it,
14 I'd be in big trouble.
15 MS. SCOONOVER: There
are no rangers here, you're
16 safe.
17 Are you familiar with
the requirements of the state
18 park reserves in terms
of burning?
19 MR. TILLEMANS: In
terms of burning? I'm not an
20 expert on state park
policy, no.
21 MS. SCOONOVER: Are you
aware that a -- that the
22 Department of Parks
and Recreation sponsored a test burn a
23 year ago November in
the Mono Basin?
24 MR. TILLEMANS: Yes, I
am.
25 MS. SCOONOVER: And did
you attend that test burn?
CAPITOL REPORTERS (916)
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1 Did you observe the
test burn?
2 MR. TILLEMANS: Yes, I
have seen that test burn.
3 MS. SCOONOVER: Were you
present at the test burn at
4 Simon Springs in
November of '95?
5 MR. TILLEMANS: Not when
the burns were conducted, no.
6 MS. SCOONOVER: But
you've been there since?
7 MR. TILLEMANS: Yes.
8 MS. SCOONOVER: It's
your intent, then, as a spokesman
9 for the Department of
Water and Power that if a burn were
10 required to occur on
either state park land or U.S. Forest
11 Service land, that the
management policies of those agencies
12 would be adhered to in
developing the burn plan and
13 implementing the burn
plan?
14 MR. TILLEMANS: Yes,
I'd try to be cognizant of
15 management plans of
those agencies and try to work within
16 those; and I think I
can do that through this CDF program
17 based on the input
from personnel within their agency.
18 MS. SCOONOVER: If the
Department of Parks and
19 Recreation's
management prescriptions and guidelines
20 specifically called
for Department of Parks and Recreation
21 personnel to be in
control of any fires that occur on park
22 land -- on park
reserve land, is that consistent with the
23 Department of Water
and Power's intentions for a prescribed
24 burn plan?
25 MR. TILLEMANS: Yes, I
think -- you know, what you
CAPITOL REPORTERS (916)
923-5447
593
1 were talking about
there, if it's on state lands, state park
2 lands and state park
lands wants to direct the goals in how
3 to conduct the burn,
that I have gotten an okay from CDF
4 that that is fine, they
would still implement those burns
5 and we could have an
interagency contract and joint
6 agreement as to the
goals and implementation of that plan.
7 MS. SCOONOVER: If state
policy required control of
8 the burns to be with
the Department of Parks and Recreation,
9 would the Department of
Water and Power reimburse the state
10 agencies for their
time and expense in creating this
11 waterfowl habitat?
12 MR. TILLEMANS: When
you say "control," do you mean --
13 could you explain that
farther?
14 MS. SCOONOVER: Approve
any prescribed burn plan as
15 well as have a joint
burn boss, I think is the term, to
16 control the actual
implementation, the setting of the fires,
17 the arrangement of any
fire control units around the
18 preserves, assure that
no tufa is going to be burned, those
19 kinds of things.
20 MR. TILLEMANS: So
you're asking me if we're going to
21 reimburse a land
agency for managing their lands?
22 MS. SCOONOVER: For
waterfowl habitat restoration
23 required under D-1631,
yes, that's the question.
24 MR. TILLEMANS: I think
I'd have to consult before
25 answering that.
CAPITOL REPORTERS (916)
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1 MS. SCOONOVER: Mr.
Tillemans, you earlier stated that
2 no one has concluded
that waterfowl numbers are limited by
3 shortages of fresh and
brackish habitat. Do you recall that
4 testimony in response
to a question by Ms. Cahill?
5 MR. TILLEMANS: Could
you please repeat that?
6 MS. SCOONOVER: You
stated earlier that no one has
7 concluded that
waterfowl numbers are limited by shortages of
8 fresh and brackish
water habitat.
9 MR. TILLEMANS: I didn't
state -- I didn't say no one
10 has concluded that. I
think there is some theories out
11 there that that may be
a distinct possibility, but as far
12 as -- you know, if
you're relating to what has occurred in
13 Mono Lake, I think
it's very difficult to tell exactly what
14 contributed to the
problem at Mono Lake. Nobody's
15 monitored.
16 MS. SCOONOVER: I'm
sorry?
17 MR. TILLEMANS:
Nobody's monitored.
18 MS. SCOONOVER: Mr.
Tillemans, would you disagree then
19 with the scientists --
stream scientists' report at page 47
20 where they identify
the loss of these habitats as the
21 primary cause for
waterfowl decline in the '60's?
22 MR. TILLEMANS: I think
at this time, you know, I
23 don't think it's
really important whether I share opinions
24 or differ with the
waterfowl scientists because I think it's
25 irrelevant to this
Board and in the time that we have
CAPITOL REPORTERS (916)
923-5447
595
1 because the Department
worked with the waterfowl scientists
2 and the parties to
reach general consensus and we've
3 accepted that plan
based upon that process.
4 MS. SCOONOVER: Mr.
Tillemans, how many acres are on
5 Lower Thompson Ranch
above the County Road, do you know?
6 MR. TILLEMANS: Oh,
above the County Road?
7 MS. SCOONOVER: Uh-huh.
8 MR. TILLEMANS: I know
the Thompson lease is 281
9 acres.
10 MS. SCOONOVER: And can
you tell me about what
11 percentage of that is
located above the County Road?
12 MR. TILLEMANS: No, I
can't, not without getting a map
13 out.
14 MR. PERRAULT: Here's a
map.
15 MS. SCOONOVER: Fifty
percent? Twenty percent? Just
16 a rough estimate would
be fine, Mr. Tillemans.
17 MR. TILLEMANS: I can't
tell you without having the
18 lease map.
19 MS. SCOONOVER: Fine.
Are you aware of the existence
20 of springs below the
county park in the wetland area that, I
21 believe, Ms. Cahill
asked about -- or Ms. Bellomo asked
22 about?
23 MR. TILLEMANS: Yes.
24 MS. SCOONOVER: And are
you aware of the existence of
25 tufa in that same
area?
CAPITOL REPORTERS (916)
923-5447
596
1 MR. TILLEMANS: Yes.
2 MS. SCOONOVER: Mr.
Perrault, in your testimony you
3 referred to Water Code
Section 1707 application.
4 Is that part of your
water rights application
5 currently pending
before the Water Board?
6 MR. PERRAULT: I guess I
don't understand the
7 question. Is the Water
Code part of our water right
8 application?
9 MS. SCOONOVER: Water
Code Section 1707 refers to
10 dedication of instream
flows for purposes of fish and
11 wildlife.
12 Is that specifically
mentioned in your water right
13 application pending
before the State Water Resources Control
14 Board?
15 MR. PERRAULT: No.
16 MS. SCOONOVER: On page
13 of your testimony,
17 Mr. Perrault, in the
item "D. Mill Creek Grazing
18 Moratorium," do
you know if there are any other landowners
19 in the Mill Creek
drainage aside from DWP?
20 MR. PERRAULT: Well, if
you refer to the map, there --
21 depending on what you
define as the "Mill Creek drainage."
22 MS. SCOONOVER: Using
your term, I believe -- Mill
23 Creek floodplain,
excuse me. Are there other landowners in
24 the Mill Creek
floodplain aside from the Department of Water
25 and Power?
CAPITOL REPORTERS (916)
923-5447
597
1 MR. PERRAULT: I would
have to answer that I would
2 have to defer that
question. I can't answer that.
3 MS. SCOONOVER: The
Department of Water and Power has
4 imposed a grazing
moratorium on its lands in the Mill Creek
5 floodplain. Is that
your testimony?
6 MR. PERRAULT: Yes.
7 MS. SCOONOVER: And
assume there are other landowners
8 within this same
floodplain. Would their grazing practices
9 affect the recovery of
herbaceous and young woody plant
10 species?
11 MR. PERRAULT: I'm not
qualified to answer the
12 question.
13 MS. SCOONOVER: I'm
questioning, then, the basis of
14 your statement in that
paragraph, the last sentence that
15 DWP's moratorium --
grazing moratorium will promote the
16 recovery of herbaceous
and young woody plant species.
17 MR. PERRAULT: Was that
a question or --
18 MS. SCOONOVER: If DWP
is not the sole owner of land
19 or controller of
grazing leases, then it's difficult to
20 ascertain what affect
the DWP grazing moratorium would have
21 on the recovery of
herbaceous and young woody plant species,
22 wouldn't it?
23 MR. PERRAULT: Would
you restate the question, please?
24 MS. SCOONOVER: I'll
withdraw it. It's not worth it
25 this late in the day
to belabor the point.
CAPITOL REPORTERS (916)
923-5447
598
1 On the same page on
page 13 where you're talking about
2 the United States
Forest Service Mill Creek water rights and
3 the fact that it's a
lower priority, setting aside again the
4 issue of priority of
water rights, if the -- if we assume
5 that the Department of
-- that the U.S. Forest Service does,
6 indeed, have water
rights and I assume -- and I realize
7 that's an assumption
we're not going to be exploring too
8 much here, but assuming
they do have the water rights is
9 then the only limiting
factor on whether those rights can be
10 returned to Mill Creek
the size of the return ditch from the
11 tailrace back to Mill
Creek?
12 MR. PERRAULT: No.
13 MS. SCOONOVER: What's
the other limiting factor,
14 Mr. Perrault?
15 MR. PERRAULT: The
other limiting factor? Well, I
16 guess I can't speak
for the U.S. Forest Service whether they
17 would give up their
water right or not.
18 MS. SCOONOVER: Assume
the Forest Service is willing
19 to give up its water
right, that it has the water right, is
20 willing to give it up
and rededicate it to Mill Creek. Is
21 the size of the return
ditch the limiting factor in whether
22 or not this could
occur?
23 MR. PERRAULT: I'd have
to answer that "no."
24 MS. SCOONOVER: Okay.
I'll get to one final question,
25 then, since I'm almost
out of time, and that is noted in
CAPITOL REPORTERS (916)
923-5447
599
1 your testimony that the
Southern California Edison is
2 unwilling to upgrade
its return ditch in order to carry
3 larger flows. Do you
recall that testimony?
4 MR. PERRAULT: Yes, I
do.
5 MS. SCOONOVER: And
would that be the case if the
6 Department of Water and
Power were paying for that upgrade?
7 MR. PERRAULT: I don't
know.
8 MS. SCOONOVER: Thank
you, that's all.
9 CHAIRMAN CAFFREY: All
right. Thank you,
10 Ms. Scoonover.
11 I was wondering if
this might be a good time to
12 adjourn for the day,
unless Mr. Dodge -- how much time are
13 you going to need, Mr.
Dodge? Are you going to take a full
14 hour or perhaps more
or less?
15 MR. DODGE: I'm very
bad at predicting. I very much
16 hope not to ask for an
extension. I think I'll use probably
17 most of my time.
18 CHAIRMAN CAFFREY: My
situation is I've got to be out
19 of here a little bit
before 5:00. So it kind of sounds like
20 maybe we won't finish
yours and -- how do my fellow Board
21 Members feel? Is this
a proper time to maybe --
22 MR. BIRMINGHAM: Mr.
Caffrey, I am sensing that these
23 witnesses are very
tired, particularly Mr. Kavounas and
24 Mr. Tillemans, who
have been sitting here for two days, last
25 night late into the
evening and if we can break now, I would
CAPITOL REPORTERS (916)
923-5447
600
1 request that we do that
because I think they are tired.
2 CHAIRMAN CAFFREY: I
think that's a good idea because
3 that way everybody gets
a rest. We can't go at night anyway
4 and you can start fresh
in the morning, Mr. Dodge.
5 MR. DODGE: I want Mr.
Kavounas at his sharpest.
6 CHAIRMAN CAFFREY:
That's how we want you, too,
7 Mr. Dodge.
8 Mr. Mooney, you have
something?
9 MR. MOONEY: Yes, I do.
I had a brief discussion
10 with --
11 CHAIRMAN CAFFREY:
That's right, I'm sorry, we were
12 going to talk about
that.
13 MR. MOONEY: No, but,
actually, I think I have a
14 resolution to that.
15 CHAIRMAN CAFFREY: Oh.
16 MR. MOONEY: Los
Angeles has agreed -- it's my
17 understanding has
agreed to enter into a stipulation and
18 either we can do it on
the record or I can submit something
19 in writing that they
would agree that Conway Ranch, Arnold
20 Beckman, does not
waive any claims or arguments to water
21 under the Mill Creek
Decree -- 1914 Mill Creek Decree in any
22 future judicial or
administrative proceedings. And if
23 that's the case, we
will actually withdraw our testimony and
24 not proceed any
further in this hearing.
25 CHAIRMAN CAFFREY:
Remove yourself from the proceeding
CAPITOL REPORTERS (916)
923-5447
601
1 altogether?
2 MR. MOONEY: So long as
it is clear that there's a
3 stipulation and,
actually, I think I would like the Mono
4 Lake Committee folks to
be a part of that because they have
5 introduced some
testimony with regards to the Mill Creek
6 Decree and the water
rights associated with Mill Creek.
7 It follows with the
objections we've been hearing that
8 those are issues for
another time, another place.
9 MR. BIRMINGHAM: Mr.
Caffrey.
10 CHAIRMAN CAFFREY: Yes,
Mr. Birmingham.
11 MR. BIRMINGHAM: It's
the understanding of the
12 Department of Water
and Power of the City of Los Angeles
13 that none of the
decisions made by this Board in this
14 proceeding will have
either a res judicata or collateral
15 estoppel affect on any
issue related to water rights under
16 the decree or issues
that would be raised in the water right
17 proceedings that will
be conducted in connection with DWP's
18 water rights
application. So we're perfectly agreeable to
19 enter into the
stipulation suggested by Mr. Mooney.
20 CHAIRMAN CAFFREY: Mr.
Dodge.
21 MR. DODGE: Mr. Mooney
has not approached me and I'll
22 be happy to sit here
after you all have left and talk to him
23 about it, but I don't
have a position at this time.
24 It is our position
ultimately that all -- or
25 substantially all of
the water presently going down to
CAPITOL REPORTERS (916)
923-5447
602
1 Wilson Creek should be
taken back to Mill Creek and if
2 that -- that may have
some implications for Mr. Mooney's
3 client.
4 CHAIRMAN CAFFREY: Mr.
Mooney.
5 MR. MOONEY: Well,
whether or not it is their position
6 I think the issue
remains whether or not the Conway Ranch --
7 they would object to
the Conway Ranch asserting its claims
8 in the water rights
adjudication since -- not the water
9 rights adjudication,
but the application or in any judicial
10 proceedings,
especially in light of the objections that I
11 received in terms of
the questioning that I had about the
12 water rights.
13 From what the Board
and the Chair has instructed, we
14 certainly -- we'd be
precluded from putting on a water
15 rights case here, and
I'd be happy to sit down with
16 Mr. Dodge afterwards
and come to some type of agreement.
17 And if we cannot, then
we'll be back here tomorrow I guess.
18 CHAIRMAN CAFFREY: Then
you're actually offering
19 something else then,
to ask for a ruling tomorrow morning
20 then, is that what I
understand you to be saying, so that
21 you can sit down and
talk with Mr. Dodge?
22 MR. BIRMINGHAM: I
don't want to interject myself into
23 this, but I guess I'm
going to. I don't understand how any
24 decision that this
Board could make in connection with these
25 proceedings could
affect Mr. Mooney's client's right to
CAPITOL REPORTERS (916)
923-5447
603
1 assert his water rights
in some subsequent proceeding.
2 CHAIRMAN CAFFREY: And
I'm just asking him for
3 clarification what is
he saying before I go to Mr. Frink.
4 So maybe we should do
it.
5 Mr. Frink, do you see
any problem so stipulating for
6 the record?
7 MR. FRINK: I agree with
what Mr. Birmingham just
8 said, that I can't
anticipate a decision of the Board in
9 this proceeding
affecting the water rights of Mr. Mooney's
10 client. If Mr. Mooney
wants to appear in the absence of a
11 stipulation from the
other parties that by not appearing
12 here he doesn't waive
any rights, he could appear. It's up
13 to him to decide.
14 MR. MOONEY: Okay.
15 CHAIRMAN CAFFREY: All
right. Then let the record
16 show the stipulation
and we'll remove you from the
17 proceeding.
18 MR. MOONEY: And we'll
also withdraw the testimony
19 with regard -- we
actually had on the plan itself, too,
20 because there will be
no need for that.
21 CHAIRMAN CAFFREY: All
right, sir.
22 MR. DODGE: I have no
objection to Mr. Mooney leaving,
23 but the record should
be clear that I haven't been
24 approached for any
sort of stipulation.
25 CHAIRMAN CAFFREY: We
understand that. You've made
CAPITOL REPORTERS (916)
923-5447
604
1 that clear, Mr. Dodge,
and we appreciate that, sir.
2 MR. DODGE: All right,
thank you.
3 CHAIRMAN CAFFREY: All
right. Then let's reconvene
4 tomorrow at -- oh,
before I finish that statement let me
5 just say that for fear
of my life I would like you all to
6 remove from the room
any evidence whatsoever of food or
7 drink. Maureen Marche,
whom you all know, is going to take
8 an inspection of the
room tonight and you might lose a
9 hearing officer and
have to start all over again.
10 DR. WHITE: She's
typing.
11 CHAIRMAN CAFFREY: I
understand that. That's
12 perfectly all right on
the record as far as I'm concerned.
13 We will now adjourn
and be back tomorrow at 9:00 AM
14 and we'll start with
Mr. Dodge's cross-examination.
15 Thank you.
16 (Whereupon the
proceedings were adjourned at 4:15 PM.)
17 ---oOo---
18
19
20
21
22
23
24
25
CAPITOL REPORTERS (916)
923-5447
605
1 REPORTER'S CERTIFICATE
2 ---oOo---
3 STATE OF CALIFORNIA )
) ss.
4 COUNTY OF SACRAMENTO )
5
6 I, TERI L. VERES,
certify that I was the Official
7 Court Reporter for the
proceedings named herein, and that
8 as such reporter I
reported in verbatim shorthand writing
9 those proceedings; that
I thereafter caused my shorthand
10 writing to be reduced
to typewriting, and the pages numbered
11 365 through 605 herein
constitute a complete, true and
12 correct record of the
proceedings:
13 PRESIDING OFFICER:
JAMES CAFFREY, Chairman
CAUSE: Mono Basin
14 DATE OF PROCEEDINGS:
Wednesday, January 29, 1997
15
16 IN WITNESS WHEREOF, I
have subscribed this
17 certificate at
Sacramento, California, on this 6th day
18 of February, 1997.
19
20
21
___________________________
22 TERI L. VERES, CSR NO.
7522
23
24
25
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