Jan. 30, 1997 Restoration Hearing

0607

02 STATE WATER RESOURCES CONTROL BOARD

04 PUBLIC HEARING

07 REGARDING STREAM AND WATERFOWL HABITAT RESTORATION PLANS

07 AND GRANT LAKE OPERATIONS AND MANAGEMENT PLAN SUBMITTED BY

08 THE LOS ANGELES DEPARTMENT OF WATER AND POWER PURSUANT TO

08 THE REQUIREMENTS OF WATER RIGHT DECISION 1631

14 HELD AT:

15 STATE WATER RESOURCES CONTROL BOARD

15 PAUL BONDERSON BUILDING

16 901 P STREET, FIRST FLOOR HEARING ROOM

16 SACRAMENTO, CALIFORNIA

19 THURSDAY, JANUARY 30, 1997

19 9:00 A.M.

24 Reported by: ESTHER F. WIATRE

25 CSR NO. 1564

0608

01 APPEARANCES

01 BOARD MEMBERS:

02 JOHN CAFFREY, CHAIRMAN

03 JOHN W. BROWN

03 JAMES STUBCHAER (Not present.)

04 MARY JANE FORSTER

04 MARC DEL PIERO (Present a.m. only)

05 STAFF MEMBERS:

06 JAMES CANADAY, ENVIRONMENTAL SPECIALIST

07 GERALD E. JOHNS, ASSISTANT DIVISION CHIEF

07 MELANIE COLLINS, STAFF ENGINEER

08 COUNSEL:

09 DAN FRINK

10 LOS ANGELES DEPARTMENT OF WATER AND POWER:

11 PANEL MEMBERS:

12 PETER KAVOUNAS

13 BRIAN TILLEMANS

13 JAMES R. PERRAULT

14 BRIAN N. WHITE

15 KRONICK MOSKOVITZ TIEDEMANN & GIRARD

15 400 Capitol Mall, 27th Floor

16 Sacramento, California 95814

16 BY: THOMAS W. BIRMINGHAM, ESQ.

17 and

17 JANET GOLDSMITH, ESQ.

18 UNITED STATES FOREST SERVICE:

19 UNITED STATES DEPARTMENT OF AGRICULTURE

20 OFFICE OF GENERAL COUNSEL

20 33 New Montgomery, 17th Floor

21 San Francisco, California 94105

21 BY: JACK GIPSMAN, ESQ.

22 PANEL:

23 ROGER PORTER

0609

01 APPEARANCES

02 BUREAU OF LAND MANAGEMENT:

03 UNITED STATES DEPARTMENT OF THE INTERIOR

03 BUREAU OF LAND MANAGEMENT

04 BISHOP RESOURCE AREA

04 785 North Main Street, Suite E

05 Bishop, California 93514

05 BY: TERRY L. RUSSI

06 PEOPLE FOR MONO BASIN PRESERVATION:

07 KATHLEEN MALONEY BELLOMO

08 P.O. Box 201

08 Lee Vining, California 93541

09 ARCULARIUS RANCH:

10 FRANK HASELTON, LSA

11 1 Park Plaza, Suite 500

11 Irvine, California 92610

12 RICHARD RIDENHOUR:

13 RICHARD RIDENHOUR

14 CALIFORNIA TROUT, INC.:

15 NATURAL HERITAGE INSTITUTE

16 114 Sansome Street, Suite 1200

16 San Francisco, California 94014

17 BY: RICHARD ROOS-COLLINS, ESQ.

18 CALIFORNIA DEPARTMENT OF FISH AND GAME:

19 NANCEE MURRAY, ESQ.

20 1416 Ninth Street

20 Sacramento, California 95814

21 McDONOUGH HOLLAND & ALLEN

22 555 Capitol Mall, Ninth Floor

22 Sacramento, California 95814

23 BY: VIRGINIA A. CAHILL, ESQ.

0610

01 APPEARANCES

02 CALIFORNIA STATE LANDS COMMISSION:

02 CALIFORNIA DEPARTMENT OF PARKS AND RECREATION:

03 MARY J. SCOONOVER, ESQ.

04 1300 I Street

04 Sacramento, California 95814

05 MICHAEL VALENTINE

06 NATIONAL AUDUBON SOCIETY:

07 MONO LAKE COMMITTEE:

08 MORRISON & FOERSTER

08 425 Market Street

09 San Francisco, California

09 BY: F. BRUCE DODGE, ESQ.

10 HEIDE HOPKINS

11 GREG REISE

11 PETER VORSTER

13 ---oOo---

0611

01 INDEX

02 PAGE

03 LOS ANGELES DEPARTMENT OF WATER AND POWER

04 (WATERFOWL HABITAT RESTORATION PANEL)

05 CROSS-EXAMINATION

06 BY MR. DODGE 622

06 BY BOARD STAFF 650

07 BY BOARD MEMBERS 669

08 REDIRECT EXAMINATION

09 BY MR. BIRMINGHAM 672

10 RECROSS EXAMINATION

11 BY MS. SCOONOVER 693

11 BY MR. DODGE 697

12 BY BOARD STAFF 699

13 UNITED STATES FOREST SERVICE

14 (ROGER PORTER)

15 DIRECT EXAMINATION

16 BY MR. GIPSMAN 703

17 CROSS-EXAMINATION

18 BY MR. BIRMINGHAM 723

19 BY MS. BELLOMO 735

19 BY MR. ROOS-COLLINS 784

20 BY MS. MURRAY 787

20 BY MS. SCOONOVER 790

21 BY MR. DODGE 792

21 BY BOARD STAFF 797

22 BY BOARD MEMBERS 800

0612

01 INDEX

02 PAGE

03 BUREAU OF LAND MANAGEMENT

04 (TERRY RUSSI)

05 DIRECTION TESTIMONY

06 BY MR. RUSSI 806

07 CROSS-EXAMINATION

08 BY MR. BIRMINGHAM 813

08 BY MS. BELLOMO 814

09 BY MR. ROOS-COLLINS 834

10 ---oOo---

12 AFTERNOON SESSION 703

0613

01 SACRAMENTO, CALIFORNIA

02 THURSDAY, JANUARY 30, 1997

03 ---oOo---

04 CHAIRMAN CAFFREY: Good morning, again, and welcome. I

05 will resume the hearing. Before we proceed with the

06 cross-examination of the waterfowl panel, I see Ms. Bellomo

07 has risen.

08 Do you wish to address the Board?

09 Good morning, welcome.

10 MS. BELLOMO: Thank you.

11 Yes, Mr. Chairman and Members of the Board. I have a

12 procedural matter that I want to raise this morning.

13 Because scheduling has become an issue, I thought I should

14 raise it now because the outcome of your ruling on this

15 procedural ruling could affect the scheduling.

16 I wanted to bring it to the attention of the Water

17 Board that after the extension of time was granted for the

18 parties to submit their testimony and the Board's rulings

19 specifically ordered that or perhaps came from Mr. Anton, I

20 don't know who issued the notice, specifically ordered that

21 all parties were to make sure that testimony was delivered

22 to the other parties by 5:00 p.m. on Friday, the 17th of

23 January.

24 Several parties did not deliver their testimony to the

25 people from Mono Basin Preservation, which resulted in some

0614

01 significant prejudice to us. We have not received the

02 testimony on the timely basis. And, specifically, we did

03 not receive the testimony of the State Lands Commission, the

04 State Department of Parks and Recreation until the following

05 Tuesday, one week prior to the hearing. It was due on

06 Friday. We received it on a Tuesday.

07 The prejudice to us was that, not only did we know that

08 Mr. Stine's testimony was going to be a linchpin of many

09 other people's testimony, but that was a three-day weekend

10 where we had arranged to have members of the community

11 waiting to read the testimony. We waited Friday, and it

12 didn't come. We waited Saturday, and it didn't come. We

13 knew it wouldn't come Sunday. We waited Monday, and it

14 didn't come. On Tuesday, when everyone had returned to

15 their employment, Tuesday afternoon, we received the

16 testimony.

17 We are very disturbed by this because we made Herculean

18 effort in after hours from our jobs to get our testimony

19 served on the parties on a timely basis, so that it was sent

20 overnight mail Wednesday because there was guaranteed

21 overnight mail delivery from Mono County. But everyone

22 received our testimony on time. With far less resources, we

23 succeeded in doing this.

24 We appreciate the fact that some of the parties, two of

25 the parties, contacted us to ask would it be okay if we get

0615

01 their testimony late. Mono Lake Committee managed to have

02 someone drive from Sacramento and deliver it to our home by

03 8:00. I think it was on Friday evening. It was

04 appreciated. We heard nothing from the State Lands

05 Commission and State Parks and Recreation. We had no one to

06 contact over the weekend. I don't know counsel for -- know

07 how to reach counsel for that agency. Plus, it wasn't our

08 responsibility.

09 So I'm, basically, observing that in some form the

10 proper sanction of this would be exclusion of the testimony

11 of the parties that did not follow the procedural

12 requirement set out by the Board. I am not familiar with

13 your rules, and I don't know what you consider to be the

14 appropriate sanction in this situation that I am bringing to

15 your attention.

16 CHAIRMAN CAFFREY: Well, thank you for that.

17 Is this a problem for any of the other parties?

18 I know that there has been, or I heard, there has been

19 some difficulty sometimes with the weather and getting

20 things over to -- getting across on the Sierras, from the

21 eastern to the western side, so to speak, with mail or

22 special delivery.

23 Ms. Scoonover, did you have something that you wanted

24 to add before I decide?

25 MS. SCOONOVER: Yes.

0616

01 Mr. Caffrey, Members of the Board, this is the first

02 that we have heard that the testimony did not arrive within

03 the required time limit. I have no idea what the problem

04 was. I will certainly look into it. I apologize to Ms.

05 Bellomo and People for Mono Basin. It was not out intent to

06 delay. There have been problems in the past. There are

07 some testimony, some exhibits, that we sent by overnight

08 mail to the Mono Lake, to the State Reserve during, the

09 course of hearing two years ago that still hasn't arrived.

10 It is not unusual. I thought I had remedied the problem by

11 switching overnight couriers. I don't know what the problem

12 is, but I will certainly look into it. I apologize.

13 CHAIRMAN CAFFREY: Appreciate your comments. I will

14 tell you what I am inclined to do. As you know, Ms.

15 Bellomo, we are extending the number of days that we are

16 going to be about this very important subject. How many

17 days again was it that you -- how many days late actually is

18 your --

19 MS. BELLOMO: It arrived on Tuesday at the end of the

20 day, and it was due on Friday.

21 CHAIRMAN CAFFREY: You missed the benefit of a

22 three-day weekend when your livelihood takes you elsewhere.

23 MS. SCOONOVER: Mr. Caffrey, I also believe there is

24 no possible way our witnesses will be heard today.

25 CHAIRMAN CAFFREY: I was going to say, I am not going

0617

01 to exclude the exhibits or the evidence. But what we can

02 do, if we get to the point where this is a problem for you

03 in presenting your direct, and since nobody else seems to

04 have had this experience with this particular set of

05 exhibits, what we can do is move you a little bit further

06 down the list so that you would hopefully have had ample

07 time.

08 What I will ask you to do, Ms. Bellomo, if we get to

09 you for direct today, which I doubt will be the case, but

10 you never now --

11 MR. FRINK: We should.

12 CHAIRMAN CAFFREY: You think we would? Maybe we ought

13 to just skip over you, if that is helpful, and take you up

14 in the two days that we'll be setting somewhere in,

15 probably, I am going to say at this point, in mid February,

16 probably,

17 MS. BELLOMO: I will be preparing for the Forest

18 Service, cross-examination of the Forest Service and the BLM

19 witnesses. They are really not in depth.

20 CHAIRMAN CAFFREY: I am talking about -- I don't see

21 them. Am I creating a problem here because I was talking

22 about direct. You are talking about you have a problem in

23 the cross-examination, as well.

24 MR. FRINK: Mr. Chairman.

25 CHAIRMAN CAFFREY: Mr. Frink.

0618

01 MR. FRINK: The only reason that receiving the State

02 Lands' evidence would prejudice the People for Mono Basin

03 Preservation is that if they did have to proceed with the

04 cross-examination of those witnesses. I don't believe that

05 we are going to even reach the State Lands' witnesses

06 today. The direct evidence of all the parties is not

07 supposed to involve rebutting the direct evidence of the

08 other parties. The rebuttal phase of the hearing comes at a

09 later time. It could have been problem if we proceeded to

10 complete the hearing in three days. As it looks now, I

11 don't see how anyone is prejudiced by a week delay in

12 receiving evidence that isn't going to be presented for a

13 couple more weeks.

14 CHAIRMAN CAFFREY: Thank you, Mr. Frink.

15 We have Mr. Birmingham first and then Mr.

16 Roos-Collins.

17 MR. BIRMINGHAM: My comments, I believe, are similar to

18 Mr. Frink's. I don't understand how the failure to receive

19 the State Lands Commission's testimony would prejudice the

20 People from Mono Basin Preservation with respect to the

21 presentation of their direct testimony. We are prepared to

22 go forward with our cross-examination with that testimony

23 and prepared for that.

24 CHAIRMAN CAFFREY: Let's go to Mr. Roos-Collins, and we

25 will come back to you, Ms. Bellomo.

0619

01 Do you have something you want to add, sir?

02 MR. ROOS-COLLINS: Mr. Chairman, I concur with Mr.

03 Frink and Mr. Birmingham as an additional reason, to

04 maintain the current order for direct examination. But I

05 won't offer if the people do not wish to change that order.

06 CHAIRMAN CAFFREY: I am sorry, couldn't hear all of you

07 what said. Maybe my hearing is failing in my old age.

08 MR. ROOS-COLLINS: I agree with Mr. Frink and Mr.

09 Birmingham that we should preserve the order for

10 presentation of cases. The additional reason I have is that

11 one my witnesses is more than several hours away. I have

12 scheduled him to be available for late afternoon, in the

13 event that Cal Trout is called to present its case. If you

14 remove the people from the current order, it may be

15 difficult to get him here on time.

16 CHAIRMAN CAFFREY: Those are points well made.

17 MS. BELLOMO: Could I clarify something, Mr. Chairman?

18 CHAIRMAN CAFFREY: Yes, please.

19 MS. BELLOMO: It was not my intent to request that the

20 People from Mono Basin Preservation delay their presentation

21 today. In fact, we are very eager to go forward and would

22 be very disappointed if we haven't presented our case by the

23 end of day. I actually wanted to point out to the Board

24 that this serious problem had arisen and that it might be --

25 I don't know your rules. I don't know what kinds of

0620

01 sanctions are appropriate.

02 I really feel that it is missing the point if people

03 don't understand that we were prejudiced by not being able

04 to have our group members review all of the testimony in

05 this proceeding before we came here. Because as Mr.

06 Kavounas pointed out yesterday, the DWP plan itself has --

07 the scientists have, you know, seems like scores of

08 references in the science testimony. It was very important

09 for us to find out what the State Lands Commission's final

10 position was.

11 Yes, I feel it did prejudice us or handicap us in even

12 our preparation of the cross-examination of the DWP's

13 witnesses. We didn't make issue of it yesterday, but I was

14 waiting to raise it until it was appropriate to State Lands

15 Commission. It wasn't the Department of Water and Power's

16 responsibility or problem. It did affect us.

17 CHAIRMAN CAFFREY: Mr. Birmingham.

18 MR. BIRMINGHAM: If, in fact, the People from Mono

19 Basin Preservation have been prejudiced in their

20 cross-examination of this panel, this panel can be available

21 later for further cross-examination by this particular

22 party. We don't want to deprive them of the opportunity for

23 meaningful cross-examination. We are happy to do that.

24 CHAIRMAN CAFFREY: I appreciate that gesture. I am

25 trying to bend over backwards, probably to the frustration

0621

01 of a lot of the parties, to be fair to everybody. I am

02 certainly concerned about your rights and the fact that you

03 are here certainly in competition with your own situation,

04 and as a private party, it is difficult for you to travel.

05 But I think the arguments of Mr. Frink and Mr. Birmingham

06 and Mr. Roos-Collins and my earlier statement that we have

07 quite a time extension in this proceeding, that we go ahead,

08 that we note your concern, that we will accommodate you, if

09 further down the way in the process there appears to have

10 been an unfairness or unjustice.

11 We had a similar situation with Mr. Dodge a few days

12 ago, where he was concerned about not having enough time to

13 review some of the exhibits, and at that time I ruled that

14 we recognized it may be a little difficult, but we are going

15 to keep moving. I do appreciate your concern. Hopefully

16 the extension of time will help you out.

17 MS. BELLOMO: Thank you very much.

18 CHAIRMAN CAFFREY: Thank you, Ms. Bellomo, for bringing

19 it to our attention.

20 With that, let's move to the cross-examination by Mr.

21 Dodge of the waterfowl panel.

22 Good morning, Mr. Dodge.

23 MR. DODGE: Good morning.

24 ---oOo---

25 //

0622

01 CROSS-EXAMINATION

02 BY NATIONAL AUDUBON SOCIETY AND MONO LAKE COMMITTEE

03 BY MR. DODGE

04 MR. DODGE: Good morning, Mr. Kavounas.

05 MR. KAVOUNAS: Good morning, Mr. Dodge.

06 MR. DODGE: I have a few questions about your plan.

07 At Page 1 of your testimony, your waterfowl plan, you

08 talk about rewatering Rush Creek distributaries?

09 MR. KAVOUNAS: Yes, sir.

10 MR. DODGE: Is that still part of your plan?

11 MR. KAVOUNAS: Yes, sir.

12 MR. DODGE: At Page 92 of the scientists' plan, they

13 say:

14 We envisioned that many depressional sites in

15 the bottomlands will be rewatered by

16 increasing the water table in the floodplain

17 through natural processes. However, periodic

18 (three-year intervals) assessment should be

19 conducted, and those secondary channels and

20 depressional areas that have not recovered

21 naturally should be evaluated from a

22 mechanical reopening to restore additional

23 waterfowl habitat. (Reading.)

24 Is that future evaluation part of your plan, sir?

25 MR. KAVOUNAS: Not explicitly so.

0623

01 MR. DODGE: Would you be agreeable to making it part of

02 your plan?

03 MR. KAVOUNAS: Yes.

04 MR. DODGE: On Page 2 of your testimony, you talk about

05 the DeChambeau/County Ponds/Black Point part of the

06 proposal. As I understand your testimony, going forward on

07 that is conditional on outside funding?

08 MR. KAVOUNAS: That is right.

09 MR. DODGE: You say on Page 2:

10 It does not warrant the expense. (Reading.)

11 Would you agree with me that the scientists strongly

12 recommended going forward with this County Ponds project?

13 MR. KAVOUNAS: No.

14 MR. DODGE: At Page 90 of their report, the scientists

15 say:

16 If completed the entire DeChambeau

17 Pond/County Pond complex can provide 45 acres

18 of semi-permanent or seasonal fresh water

19 wetlands, 22 acres of the wet seasonal

20 meadow, and 10 acres of riparian habitat for

21 waterfowl and other wildlife. Although

22 requiring active management, this habitat

23 complex will provide critical waterfowl

24 habitat to the Basin and mitigate for the

25 loss of fresh water and lagoonal habitat not

0624

01 restored at the target lake level of 6392

02 feet. These projects would produce one of

03 the best waterfowl complexes in the Basin and

04 was highly recommend by Smith, Dom & Vestal.

05 A great diversity of waterfowl and shore bird

06 species would use this complex.

07 (Reading.)

08 Now, among other things, the scientists talked about

09 this habitat as critical waterfowl habitat, one of the "best

10 waterfowl complexes in the basin."

11 Does that not seem like high praise to you?

12 MR. KAVOUNAS: No, sir. Can I explain?

13 MR. DODGE: I am sure Mr. Birmingham will ask you to do

14 that on cross-examination.

15 You indicated yesterday there were certain problems

16 with the DeChambeau Ponds, correct?

17 MR. KAVOUNAS: Yes, sir.

18 MR. DODGE: Do you understand that those problems are

19 being cured?

20 MR. KAVOUNAS: With the Phase I of the project?

21 MR. DODGE: Let me ask a different question.

22 Do you understand that the problem was that the ponds

23 were not holding water?

24 MR. KAVOUNAS: That is my understanding, yes.

25 MR. DODGE: Do you understand that is in the process of

0625

01 being cured?

02 MR. KAVOUNAS: No, sir.

03 MR. DODGE: You don't.

04 If the problems were cured with the DeChambeau project,

05 would you be prepared to go ahead with the County Ponds

06 proposal?

07 MR. KAVOUNAS: Once again, the success or failure of

08 DeChambeau Pond on the first phase was not particularly one

09 of our concerns in allowing or not -- excuse me, in

10 recommending or not, the DeChambeau/County Ponds/Black Point

11 project.

12 MR. DODGE: If I understand that correctly, regardless

13 of whether DeChambeau is cured, your position would be that

14 going forward with County Ponds is dependent on outside

15 funding?

16 MR. KAVOUNAS: That is correct. What is also correct

17 is that the fact at the TAG meeting the parties asked us to

18 proceed with caution and phase it, not only from the

19 perspective of the excessive leakage, information that was

20 gathered from the first phase, but also from the perspective

21 of water supply.

22 I would like to also add that in the process that we

23 have gone through in the last year or so, it became more

24 clear, in my mind, that the water supply to the

25 DeChambeau/County Ponds complex is integrally tied with the

0626

01 Mill and Wilson projects.

02 MR. DODGE: Haven't you heard Dr. Reid testify that

03 what we should is drill a test hole and try to get artesian

04 sources for that projects.

05 MR. KAVOUNAS: I believe it is in his written testimony

06 that he suggests we seek artesian flow. But I believe Dr.

07 Reid is not very qualified to speak on geohydrology matters.

08 I think if you were to evaluate the area, you would find the

09 artesian flow in that area would be impacted by surface

10 hydrologies.

11 MR. DODGE: If we could get artesian flow to take care

12 of the County Ponds project, hypothetically, would DWP be

13 prepared to go forward with the County Ponds project and to

14 fund it?

15 MR. KAVOUNAS: If you can get sustainable artesian

16 flow, the Department's position at this point in time, is

17 still that the benefit that you get for spending a million

18 bucks is not warranted.

19 MR. DODGE: Not even by what is called the critical

20 waterfowl habitat?

21 MR. KAVOUNAS: That is the definition that is given in

22 their plan, yes. But I don't necessarily agree with that.

23 MR. DODGE: You don't necessarily agree that is

24 critical waterfowl habitat?

25 MR. KAVOUNAS: That's correct.

0627

01 MR. DODGE: But yesterday you told us you were relying

02 on the three scientists for their expertise?

03 MR. KAVOUNAS: I didn't say I agree with that, with

04 their opinions. As a matter of fact, I believe I explicitly

05 stated that I did not agree with them, and the consultants I

06 relied, outside of the three scientists, did not necessarily

07 agree with the plan as proposed by the three scientists.

08 MR. DODGE: Let me ask you about Black Point scrapes.

09 Yesterday you were asked, I believe by Ms. Cahill, about

10 whether you proposed scrapes, and you indicated that due to

11 concerns by the State Lands Commission that you were not

12 proposing scrapes, correct?

13 MR. KAVOUNAS: That is correct. Maybe I didn't add to

14 that. I don't remember whether I did or not. As Ms.

15 Scoonover pointed out, mechanical means were not highly

16 valued in the guidelines that were identified early on in

17 the process. Scrapes were considered as such.

18 MR. DODGE: Do you recall what the scientists

19 recommended on scrapes?

20 MR. KAVOUNAS: Not specifically. I do recall that in

21 subsequent conversations, Dr. Drewien gave a lot of praise

22 to scrapes, but I am not sure they're as highly acclaimed in

23 their plan.

24 MR. DODGE: At Page 88, isn't it a fact, sir, that at

25 the bottom of Page 88, the scientists propose testing or

0628

01 exploring the feasibility of two to five shallow scrapes?

02 MR. KAVOUNAS: Yes.

03 MR. DODGE: One was proposed at Black Point?

04 MR. KAVOUNAS: I believe that was a component of the

05 DeChambeau/County Ponds/Black Point project.

06 MR. DODGE: Black Point is not a State Lands Commission

07 property, is it?

08 MR. KAVOUNAS: I am not sure whether it is or not.

09 MR. DODGE: If it were not State Lands Commission

10 property, would you propose a feasibility of Black Point?

11 MR. KAVOUNAS: Yes. In the phased manner we were asked

12 to do so by the parties.

13 MR. DODGE: Let's go to Mill Creek, Page 1 of your

14 testimony -- I am sorry, Page 2 of your testimony. You say:

15 While the entire flow of Mill Creek, if returned

16 to its natural course, would benefit the entire

17 Mill Creek ecosystem, the waterfowl habitat

18 aspects of it is minimal. (Reading.)

19 You told us yesterday that you replied on Dr. Jehl and

20 Dr. Stine for that?

21 MR. KAVOUNAS: No, I did not, sir.

22 MR. DODGE: I believe you did, but I will withdraw that

23 comment. Let me ask you: Did any of the three waterfowl

24 scientists that you hired ever tell you that the waterfowl

25 habitat aspects of it was minimal?

0629

01 MR. KAVOUNAS: No, they did not. They did not assign

02 any value to it, nor did they assign a value to the entire

03 Mill Creek ecosystem.

04 MR. DODGE: Let me read you further from your testimony

05 at Page 2:

06 Although some parties would like LADWP to

07 return the entire flow of Mill Creek to its

08 natural course, LADWP has neither the ability

09 nor the obligation to do so. (Reading.)

10 Do you see that, sir?

11 MR. KAVOUNAS: Yes, sir.

12 MR. DODGE: You talk about ability and obligation. Let

13 me take obligation first.

14 Would you agree that ultimately it is not for you or me

15 to decide the obligation, but for State Water Board to

16 decide?

17 MR. KAVOUNAS: What is in my testimony are my

18 opinions. In my testimony, I say that the plan is good or

19 that I have an opinion that the Department does not have an

20 obligation, I believe that it is clear that that is my

21 opinion. I would not even dream of telling the State Board

22 what to do.

23 MR. DODGE: All I am saying is -- I am not questioning

24 that, sir. All I am saying is the question of whether an

25 obligation exists is ultimately a question for the State

0630

01 Board.

02 MR. KAVOUNAS: Are you questioning me that? I believe

03 I have answered it. Yes, the State Board has the ultimate

04 jurisdiction.

05 MR. DODGE: You tell us at Page 4 of your testimony

06 that Los Angeles:

07 Is responsible for the cost of mitigation of

08 its actions. (Reading.)

09 Do you recall that testimony?

10 MR. KAVOUNAS: Not directly, but I'll take your word

11 for it. Where is it?

12 MR. DODGE: It is on Page 4, right there in the

13 middle.

14 It is LADWP's belief that it is responsible

15 for the cost of mitigation of its actions.

16 (Reading.)

17 Do see that?

18 MR. KAVOUNAS: Yes.

19 MR. DODGE: Would you agree with me that the bottomland

20 of Rush Creek -- many acres of the bottomland of Rush Creek

21 are lost irretrievably due to incision?

22 MR. KAVOUNAS: I have no opinion on that.

23 MR. DODGE: Assume it is true. Hypothetically, assume

24 that many acres of the bottomland of Rush Creek are

25 irretrievably lost to incision.

0631

01 Would you agree that it might be reasonable to mitigate

02 for that by restoring the Mill Creek bottomland?

03 MR. KAVOUNAS: No, no. The Department had nothing to

04 do with the degradation of Mill Creek.

05 MR. DODGE: First point you made in your testimony was

06 the ability. You talked about obligation. Now let's talk

07 about ability to restore. Let me ask you this, sir:

08 Assuming that DWP were: to purchase the Conway Ranch

09 water, one; two, persuade the United States Forest Service

10 to send its water rights on the DeChambeau Ranch down to

11 Mill Creek; and three, upgrade the return ditch that runs

12 from Lundy Power House to Mill Creek to 70 cfs. If those

13 three things were done, would the entire flows be returned

14 to Mill Creek?

15 MR. KAVOUNAS: No, sir.

16 MR. DODGE: Why is that wrong?

17 MR. KAVOUNAS: Because the Simis water right at 1.8 cfs

18 would still be there.

19 MR. DODGE: That is correct, the 1.8 water right

20 assignment would be there. Putting the Simis right aside,

21 would those three elements accomplish the full rewatering of

22 Mill Creek?

23 MR. KAVOUNAS: If the Department were to purchase the

24 Conway water right and persuade the Forest Service to give

25 up their water right --

0632

01 MR. DODGE: And expand the return ditch?

02 MR. KAVOUNAS: -- and expand the return ditch?

03 MR. DODGE: Yes.

04 MR. KAVOUNAS: It is my opinion that it would still not

05 be possible.

06 MR. DODGE: Why is that?

07 MR. KAVOUNAS: Because taking the water away from Ranch

08 Conway would have an impact on Conway Ranch, and it is my

09 opinion that if an environmental review processes were to go

10 forward, that would not be permitted.

11 MR. DODGE: I am not asking whether it is legally

12 permitted. I understand that there are legal process to go

13 through. I am just asking you the physical question, sir,

14 the physical question.

15 MR. KAVOUNAS: Yes, in answer to your question, in a

16 physical sense that would be one way of doing it, yes.

17 MR. DODGE: So, physically, if you purchase the Conway

18 water rights, persuade the Forest Service to bring its water

19 back to Mill Creek, and upgrade the return ditch to 70 cfs,

20 physically it is possible to wholly rewater Mill Creek?

21 MR. KAVOUNAS: And get the appropriate decision makers

22 to go along with it. That is also a physical requirement.

23 MR. DODGE: Go through the EIR process and get the

24 decision.

25 MR. KAVOUNAS: Yes.

0633

01 MR. DODGE: But, physically, those three things would

02 do it?

03 MR. KAVOUNAS: I really believe that getting through

04 any EIR is physical process is also a physical process.

05 MR. DODGE: I will grant you that.

06 MR. KAVOUNAS: Thank you. Will you also grant me that

07 there is another way to do it? I mean, if you want to talk

08 about a physical solution, the Department could conceivably

09 purchase the Lundy Power Plant, conceivably purchase all the

10 facilities that Edison has and remove all of Edison's

11 impacts from the Basin or in this particular watershed.

12 MR. DODGE: Is the Lundy Power Plant for sale?

13 MR. KAVOUNAS: It is my understanding from speaking

14 with Bert Almond from Edison, that if they were required to

15 spend any money, that the Lundy Power Plant is so marginal

16 that they would have to close it down.

17 MR. DODGE: One of the rules is you have to answer my

18 question.

19 Is the Lundy Power House for sale?

20 MR. KAVOUNAS: Not right now.

21 MR. DODGE: Is the Conway Ranch for sale?

22 MR. KAVOUNAS: I don't know.

23 MR. DODGE: You don't know?

24 MR. KAVOUNAS: I was told by -- what is the name of the

25 guy that used to be the partner in Conway?

0634

01 -- Mr. Fredrickson, that "He gets a phone call every

02 week about developing that property." If I had a piece of

03 property that I get a phone call every week on developing, I

04 am not sure I'd want to sell it.

05 MR. DODGE: It is a simple question, sir: Is it on the

06 market? Is it being offered on the market for sale?

07 MR. KAVOUNAS: I don't know if it is on the market.

08 TPL has an option to purchase it. Does that put it on the

09 market? Does that mean it's on the market? That means that

10 TPL has an option to purchase it.

11 MR. DODGE: It also means they are interested in

12 selling it, doesn't it?

13 MR. KAVOUNAS: To TPL, yes.

14 MR. DODGE: Mr. Perrault, good morning.

15 MR. PERRAULT: Good morning.

16 MR. DODGE: DWP's application for Mill Creek water, as

17 I understand it, is from -- you're asking for 16 cfs from

18 October 1 to April 30. Correct?

19 MR. PERRAULT: That's correct.

20 MR. DODGE: The 16 cfs, how was that chosen, sir?

21 MR. PERRAULT: How was 16 cfs chosen? 16 cfs was

22 chosen because, number one, water rights during the --

23 excuse me, not water rights, the availability of water

24 during the winter months is limited. The capacity of

25 Edison's return ditch is 16 cfs, so we chose an upper limit.

0635

01 MR. DODGE: It was chosen as an upper limit with the

02 capacity of Edison's return ditch and not on the basis of

03 being best for waterfowl?

04 MR. PERRAULT: I mean, that was one of the issues. I

05 mean, the reality of it during that time of the year, there

06 is only an average of 11 cfs that goes through. So, if you

07 are going to apply for a winter right, it would make sense

08 to apply for that amount of water. And since the capacity

09 is 16 cfs, why don't you just go to the full capacity of the

10 ditch.

11 MR. DODGE: Let me ask you to take a look at Exhibit

12 65, Mr. Perrault. Could you show the Board where the return

13 ditch is? Show them where it starts and where it ends,

14 please.

15 MR. PERRAULT: Yes. The return ditch begins here at

16 the tailrace of the Lundy Power Plant and returns to Mill

17 Creek at this location, here.

18 MR. DODGE: It goes into Mill Creek then?

19 MR. PERRAULT: Yes, that is correct.

20 MR. DODGE: Describe it for the Board, if you could,

21 please.

22 MR. PERRAULT: Describe it? It's an open ditch with a

23 low gradient that meanders for approximately a mile and a

24 half.

25 MR. DODGE: Dirt?

0636

01 MR. PERRAULT: Portion of it is dirt; portion of it is

02 lined with concrete.

03 MR. DODGE: How did you come to think it had a capacity

04 of 16 cfs?

05 MR. PERRAULT: I was told by Edison personnel and DWP

06 personnel.

07 MR. DODGE: Have you seen testimony from Edison in this

08 proceeding that the capacity presently may be as low as 12

09 cfs?

10 MR. PERRAULT: I have seen capacity. I have seen

11 testimony of that, and I am also familiar with the type of

12 measuring devices. So, I am well aware that the accuracy of

13 those devices aren't very good.

14 MR. DODGE: Do you have an opinion as to whether the

15 return ditch, as it exists today, is usable in winter to

16 pass water?

17 MR. PERRAULT: Do I have an opinion? I believe that it

18 is, yes.

19 MR. DODGE: Have you heard anyone say, "Due to its low

20 gradient and icing, that there is a substantial probability

21 that it will not pass water in winter"?

22 MR. PERRAULT: No, I haven't.

23 MR. DODGE: When you had conversations with Bert

24 Almond, he didn't say anything like that?

25 MR. PERRAULT: No, he didn't.

0637

01 MR. DODGE: On Page 14 of your testimony, sir, let me

02 read this to you. You refer to a proposal the scientists

03 had to -- talking about 1.1 million pipeline that the

04 scientists rejected. Then you say:

05 Any improvement of the return ditch would

06 likely be as expensive, if not more so, then

07 the rejected pipeline proposal. (Reading.)

08 Did you do any calculations in that regard?

09 MR. PERRAULT: I did not, but I took that number from

10 comments that I believe you provided, Mr. Dodge, to some of

11 the work that we had done.

12 MR. DODGE: Had you seen the testimony of Larry

13 Harrison submitted in this matter, which gives substantially

14 lower cost for an updated and improved return ditch?

15 MR. PERRAULT: Yes, I have.

16 MR. DODGE: Do you have any quarrel with Mr. Harrison's

17 analysis?

18 MR. PERRAULT: I haven't reviewed it enough in detail,

19 enough detail, to have an opinion.

20 MR. KAVOUNAS: I have a quarrel with it. Mr. Harrison

21 did not look at corrugated metal, and he did not look at

22 simply lining the existing ditch. He looked at installing

23 concrete pipe and metal pipe.

24 MR. DOGE: Then you go on, Mr. Perrault:

25 In addition, the return ditch is an SCE

0638

01 facility, and SCE has expressed an

02 unwillingness to improve the ditch. Personal

03 communication where Bert Almond. (Reading.)

04 When you had this conversation with Mr. Almond, Mr.

05 Perrault, did he tell you that SCE did not object if someone

06 else wanted to spend the money to improve the ditch?

07 MR. PERRAULT: No, he did not.

08 MR. DODGE: Have you seen the SCE testimony on that

09 point, submitted on that matter?

10 MR. PERRAULT: No, I have not. It is my understanding

11 that you had called Edison as a witness, and that they did

12 not provide any testimony.

13 MR. DODGE: On Page 15, under the category Unresolved

14 Mill Creek Issues, you mentioned the Paoha Project.

15 Are you aware that that matter has now been resolved?

16 MR. PERRAULT: I am aware that it hasn't been

17 completely resolved. I am aware that the FERC has given an

18 order to take away the license of Mr. Keating.

19 MR. DODGE: Revoke the license?

20 MR. PERRAULT: Yes. But the State Water Board has not

21 acted on the permit.

22 MR. DODGE: Now, let's go back to Page 7 of your

23 testimony. You say at Page 7:

24 Although the scientists would prefer full

25 restoration of waterfowl habitat on Mill

0639

01 Creek, they concluded that full restoration

02 is probably infeasible because of the complex

03 issues regarding regulatory authorities,

04 competing beneficial uses of water, water

05 rights, water conveyance constraints, cost,

06 reasonableness, and environmental

07 consideration. (Reading.)

08 Citing Page 98. So, doggedly, I went to Page 98, and I

09 am reading what I think you are referring to:

10 Restoration of all potential waterfowl

11 habitat on Mill Creek does not appear

12 feasible under current conditions due to

13 complicated issues involving water rights and

14 the need for structural improvements to

15 convey increase flows. (Reading.)

16 At least as to the portion that I have read, sir, you

17 would agree that they do not mention cost, reasonableness,

18 or environmental consideration, correct?

19 MR. PERRAULT: That is true. And I probably erred in

20 not adding additional pages in other parts of their report

21 where they do refer to those issues.

22 MR. DODGE: Let's talk about the ones that are

23 mentioned. Water rights. Now, putting aside the Simis

24 water rights, you would agree that the water rights issue

25 can be revolved if we purchased the Conway -- if the Conway

0640

01 water rights are obtained and if the U.S. Forest Service

02 dedicates its rights?

03 MR. PERRAULT: No, I disagree with that.

04 MR. DODGE: Why is that, sir?

05 MR. PERRAULT: The reason for that is -- well, one of

06 the issues was the Forest Service right. The only reference

07 that the scientists made to the Conway water rights were for

08 winter flow. And it's DWP's interpretation of the decree

09 that their winter flow or their right to winter water is

10 limited to only those issues we talked about yesterday, that

11 irrigation water it is not a part of this.

12 MR. DODGE: Isn't it a fact, sir, that apart from the

13 Simis right that we could return all of the water that

14 starts in the Mill Creek watershed at the top of Mill Creek

15 by acquiring Conway rights, by the dedication of DWP's

16 rights, and by getting the Forest Service to agree?

17 MR. PERRAULT: That we could return all the water

18 rights or all of the water?

19 MR. DODGE: No, water.

20 MR. PERRAULT: No, I disagree with that.

21 MR. DODGE: Why is that, again.

22 MR. PERRAULT: The environmental issues that Mr.

23 Kavounas indicated on Wilson Creek, which I would tend to

24 believe is some water would have to remain there.

25 MR. DODGE: That may well be. Assume, just

0641

01 hypothetically, that the environmental assessment is made

02 Wilson Creek doesn't get any water. I am not saying I

03 advocate that, but assuming hypothetically that happened.

04 Physically all the water could be returned to Mill Creek

05 under the scenario I given you.

06 MR. PERRAULT: In an unreal world, probably, yes.

07 MR. DODGE: At one point in time 6391 was an unreal

08 world, too, so you can never tell what happens.

09 The second point the scientists make on Page 98 is

10 referred to, the need for structural improvements in order

11 to return the Mill Creek water, and would you agree with me

12 that the only structural improvement at issue is the upgrade

13 to 70 cfs of the return ditch?

14 MR. PERRAULT: I am sorry, didn't hear the question.

15 MR. DODGE: I am still on the scientists, Page 98, the

16 part I read to you. The second item after water rights,

17 they talked about structural improvements.

18 Do you take that to be a reference to the upgrade of

19 the return ditch to 70 cfs?

20 MR. PERRAULT: No. It is my interpretation that they

21 took most of this from Dr. Stine's appendix to the report.

22 He talks about several other structural improvements.

23 MR. DODGE: Would you agree, sir, that -- I am going to

24 change subjects now.

25 Would you agree that the scientists recommended high

0642

01 spring and summer flow releases that mimic the natural

02 hydrograph?

03 MR. PERRAULT: Yes, they did.

04 MR. DODGE: Would you agree that the scientists

05 recommended exploring upgrading the return ditch?

06 MR. PERRAULT: Yes, they did.

07 MR. DODGE: Would you agree that the scientists

08 recommended that three Mill Creek distributaries be reopened

09 and two be studied?

10 MR. PERRAULT: That was their recommendation; that is

11 correct, although they did, in my opinion, they deferred

12 from that later.

13 MR. DODGE: Would you agree that DWP's plan does none

14 of these things?

15 MR. PERRAULT: None of?

16 MR. DODGE: None of the three things I mentioned: high

17 spring and summer flow release that mimic the natural

18 hydrograph, exploring upgrading the return ditch, and

19 reopening of the distributaries?

20 MR. PERRAULT: No, I wouldn't agree with that at all.

21 MR. DODGE: Which of those three do you differ?

22 MR. PERRAULT: We do the first two.

23 MR. DODGE: High spring and summer flows that mimic the

24 natural hydrograph?

25 MR. PERRAULT: Yes.

0643

01 MR. DODGE: You are proposing to send those flows down

02 Mill Creek?

03 MR. PERRAULT: Well, I mean, they talk about mimicking

04 the natural hydrograph. There is a dam on the system and,

05 so -- I mean, they never qualified by what they mean by high

06 releases. I think that is a matter of interpretation. The

07 flows that we have sent down include higher flows during the

08 summertime, plus water that comes from the reservoir that is

09 released every year.

10 MR. DODGE: Would you agree that the highest flows come

11 out of the Southern California Edison Penstock during the

12 late spring and summer?

13 MR. PERRAULT: No.

14 MR. DODGE: When do the highest flows come out?

15 MR. PERRAULT: I am sorry, yes, the flows that go

16 through the Penstock, the highest ones that come out, come

17 out during on the months of June and July.

18 MR. Dodge: Are you proposing in your plan to send

19 those high flows down to Mill Creek?

20 MR. PERRAULT: I am proposing to send a portion of

21 those. But there are much higher flows that come directly

22 down Mill Creek that are released from the reservoir that

23 are far in excess of 70 cfs.

24 MR. DODGE: You said you were doing the first and

25 second. Are you saying your plan now involves exploring the

0644

01 upgrading of the return ditch?

02 MR. PERRAULT: It's already been explored.

03 MR. DODGE: What did that exploration consist of?

04 MR. PERRAULT: I think that we stated that in our

05 testimony, that Edison is opposed to doing it.

06 MR. DODGE: What you said in your testimony is that

07 Edison is opposed to paying for it. Is that the extent of

08 your exploration?

09 MR. PERRAULT: Well, it is an Edison facility.

10 MR. DODGE: I don't mean to be argumentative, sir, I

11 just want to know if that is the extent of your exploration.

12 MR. PERRAULT: Yeah. We have not pursued that any

13 further.

14 MR. DODGE: Now, Ms. Bellomo brought out testimony

15 yesterday that under the scientists' plan there would be

16 approximately 55 acres of waterfowl habitat created in Lower

17 Mill Creek.

18 Do you recall that testimony, sir?

19 MR. PERRAULT: I remember the number of 55 acres. I

20 don't remember that it was all waterfowl habitat.

21 MR. DODGE: Would you agree that the figure would be

22 substantially less than 55 acres under DWP's plan?

23 MR. PERRAULT: Common sense would say that that would

24 be so.

25 MR. DODGE: I just got a couple more things with you,

0645

01 and then we will be done.

02 Page 12 of your testimony, sir, you are talking about

03 the development of waterfowl habitat naturally. And you

04 have under C, Rewatering Mill Creek Distributaries.

05 Do you see that?

06 MR. PERRAULT: Yes, I do.

07 MR. DODGE: Going down to the second reason you say:

08 Second, the rewatering process by itself

09 may develop waterfowl habitats naturally.

10 These habitats are preferred because of

11 their sustainability and the biodiversity

12 associated with the natural recovery process.

13 The delta of Lee Vining Creek is a prime example

14 of this natural process. (Reading.)

15 Do you see that, sir?

16 MR. PERRAULT: Yes, I do.

17 MR. DODGE: So, you are using there, the Lee Vining

18 Creek experience as some guidance for Mill Creek, correct?

19 MR. PERRAULT: May I add that I defer to Brian

20 Tillemans on this section. That is Brian's analysis.

21 MR. DODGE: You know, excuse me, but it is in your

22 testimony.

23 MR. PERRAULT: Well, it is there with a personal

24 communication from Brian Tillemans, who is here on the

25 panel.

0646

01 MR. DODGE: Let me ask you, sir, are you aware that

02 since Judge Finney's order in 1989, that Lee Vining Creek

03 has been virtually a flow through situation?

04 MR. PERRAULT: Yes.

05 MR. DODGE: So, this natural waterfowl habitat, as you

06 characterize it, was created by a flow through situation; is

07 that right?

08 MR. PERRAULT: Once again, this is Brian's -- this was

09 communication with Brian. I think he would be the more

10 appropriate person to talk to that.

11 MR. DODGE: Mr. Tillemans, would you agree that the

12 experience on the Lee Vining Creek creating natural

13 waterfowl habitat from the flow through situation would

14 suggest the same remedy on Mill Creek?

15 MR. TILLEMANS: I would suggest what happened on the

16 Lee Vining Creek in terms of return flows and removal of

17 grazing would result in the same type of response you saw in

18 Lee Vining Creek.

19 MR. DODGE: Natural flows?

20 MR. TILLEMANS: It doesn't have to be natural flows.

21 It depends to what degree you want to restore it.

22 MR. DODGE: Mr. Perrault or Mr. Tillemans, either one

23 can answer the series of questions, then I am done.

24 Here is Lundy Lake, right, and water comes out of Lundy

25 Lake and it goes right down here, down Mill Creek, right

0647

01 down into Mono Lake.

02 Is that right?

03 Okay. Now, Mr. Perrault in his testimony at Page 5

04 tells us, if I can find it, talking about Southern

05 California Edison's operation of its reservoir, releases

06 must be made in most years to avoid spilling the reservoir.

07 Do you see that, both of you, gentlemen?

08 MR. PERRAULT: Yes, I do.

09 MR. DODGE: Am I right that the capacity of Lundy

10 Reservoir is such that in most years there has to be

11 spills?

12 MR. PERRAULT: No. It was Edison's practice, until the

13 late '80s, that they tried not to spill the reservoir, but

14 to make releases instead of spilling the reservoir.

15 MR. DODGE: In most years high releases, whether it is

16 spilling or through some other mechanism, high releases are

17 made?

18 MR. PERRAULT: Yes, because of the small capacity of

19 the reservoir.

20 MR. DODGE: At some point, these releases stopped,

21 correct, in most years?

22 MR. PERRAULT: Yes. That has been the case in the

23 past, although the Forest Service has asked for a year-round

24 release. That is still pending in the courts.

25 MR. DODGE: That has happened yet, right?

0648

01 MR. PERRAULT: It hasn't happened yet, no.

02 MR. DODGE: When water comes out of the Lundy Reservoir

03 during these high water times, am I right that water in Mill

04 Creek goes right down to Mono Lake?

05 MR. PERRAULT: Well, Mono Lake downstream from Mill

06 Creek, so, yeah, all the water that does make it, does go

07 into the lake, that isn't diverted.

08 MR. DODGE: In your experience -- Mr. Tillemans, you

09 may be a good person to answer this question.

10 In your experience are fish flushed down to the

11 bottomlands of Mill Creek, too, at that time?

12 MR. TILLEMANS: I don't know of fish being flushed down

13 there at that time, personally.

14 MR. DODGE: Mr. Perrault, do you know?

15 MR. PERRAULT: I have no knowledge of that, no.

16 MR. DODGE: If, hypothetically, fish were flushed down

17 to the bottomlands of Mill Creek and then SCE turned off the

18 water, what is going to happen to those fish?

19 MR. BIRMINGHAM: I am going to object on the grounds of

20 relevance. This relates to restoration of waterfowl

21 habitat. It doesn't relate to any fishery issue. I don't

22 understand the relevance.

23 CHAIRMAN CAFFREY: I am going to sustain that on the

24 basis I don't understand it either, and I don't think it is

25 relevant.

0649

01 MR. DODGE: Well, let me ask a question and then I'll

02 abide by the ruling.

03 Are you saying it is not relevant to this panel or not

04 relevant to the proceeding?

05 CHAIRMAN CAFFREY: I am not sure what portion of this

06 proceeding it would be relevant. Off the top of my head, I

07 don't think it is relevant to this panel.

08 MR. DODGE: I fully understand that. The reason I ask

09 it, I believe there are people in this room who are going to

10 be testifying about the relative benefits, fishery benefits,

11 of Mill Creek and Wilson Creek. If that is going to be

12 allowed, then I should be allowed to address these issues

13 also. Perhaps not with this panel.

14 CHAIRMAN CAFFREY: When we get to that, we will deal

15 with it then, Mr. Dodge.

16 MR. DODGE: Dr. White, how are you today?

17 DR. WHITE: Fine, thanks. How are you?

18 MR. DODGE: That is all I have.

19 DR. WHITE: I came a long way.

20 CHAIRMAN CAFFREY: You still got paid, right?

21 Thank you, Mr. Dodge.

22 Mr. Birmingham, you were --

23 MR. BIRMINGHAM: I was premature.

24 CHAIRMAN CAFFREY: Yes, we still do have

25 cross-examination from staff and then the Board Members, if

0650

01 there is any.

02 Mr. Frink. Ladies and gentlemen.

03 ---oOo---

04 CROSS-EXAMINATION

05 BY BOARD STAFF

06 MR. FRINK: Mr. Kavounas, I have a few questions. You

07 stated that the Department has done no analysis of the

08 biological effects of your waterfowl habitat restoration

09 plans; is that correct?

10 MR. KAVOUNAS: Yes, it is.

11 MR. FRINK: Rather, the Department tried to incorporate

12 the recommendations of the three scientists on the panel

13 that you retained. And to the extent that you believed it

14 was reasonable or feasible, you included those

15 recommendations in your plan?

16 MR. KAVOUNAS: Yes.

17 MR. FRINK: Could you explain, again, how the members

18 of that group were selected?

19 MR. KAVOUNAS: I really can't because I wasn't there.

20 MR. FRINK: Is there a member of the panel that could?

21 Mr. Tillemans.

22 MR. TILLEMANS: Originally, the Department was going to

23 go out and look for waterfowl consultants to take up this

24 task. And then it became apparent that the other parties

25 wanted to have a say in it, and it became a joint

0651

01 process. And the Department's consultant was Rod Drewien,

02 out of Idaho, that we would like to have seen on that Board

03 and was okayed. The Mono Lake Committee, Sally Miller

04 wanted Tom Radcliff. There was a Mono Lake Committee

05 representative on there, as well, and Dr. Reid and State

06 Lands, as well. And the rest of the parties wanted Dr. Reid

07 on there, as well. Basically, those were the three.

08 MR. FRINK: And were the governmental agencies or

09 organizations that you consulted with in arranging the panel

10 of experts, were they generally happy with the group that

11 was selected?

12 MR. TILLEMANS: Yes, the other parties were, yes.

13 MR. FRINK: I believe you described the selective

14 burning programs that the Department of Water and Power has

15 done in other lands that it owns outside of Mono Basin?

16 MR. TILLEMANS: Yes.

17 MR. FRINK: Have those burnings been conducted as part

18 of the Department's overall land management practices?

19 MR. TILLEMANS: Yes. We have several burning programs

20 going. We have several towns in the Owens Valley, and with

21 those burns it is basically a green belt-type burn where we

22 try to burn for fire safety around the towns.

23 We have range burns with our lessees, trying to improve

24 the pastures and improve the vigor of the vegetation on some

25 of the leases. We also have some wildlife programs where we

0652

01 burn wetland areas and try to improve waterfowl habitat, as

02 well.

03 MR. FRINK: Who does the Department consult with before

04 conducting those burns?

05 MR. TILLEMANS: The Department --

06 MR. FRINK: The Department of Water and Power.

07 MR. TILLEMANS: Basically, on our range land we work

08 with our lessees, and we have staff that has botanical or

09 wildlife expertise, and we go out and look at the site and

10 figure out where we can make any improvements.

11 MR. FRINK: Do you consult with the Department of

12 Forestry in any instances?

13 MR. TILLEMANS: Oh, yes. We bring -- the California

14 Department of Forestry is the implementation arm of all of

15 our burns. We work very closely with them.

16 MR. FRINK: Do you consult with the local pollution

17 control district in any instances?

18 MR. TILLEMANS: Yes. That is big part of it. We make

19 sure that the day smoke is blowing to town, we don't conduct

20 the burns. People don't like that.

21 MR. FRINK: So, approval of both, the Department of

22 Forestry and the local air pollution control district is

23 ordinarily required?

24 MR. TILLEMANS: Yes. In some of the burns in relation

25 to Buckley Ponds, we'll contact Fish and Game and get their

0653

01 opinions on if they have concerns. We take them out there

02 and work with them on that, as well. That is a cooperative

03 -- the Buckley Ponds Wildlife Project was signed in the

04 '70s. It was a cooperative project with the California

05 Department of Fish and Game, DWP, and California Department

06 of Forestry.

07 MR. FRINK: Is there an annual variation in the

08 property that you burn, in the amount of property and the

09 location of the property?

10 MR. TILLEMANS: Most definitely. During the extent of

11 the drought, we were a little bit concerned about burns

12 because of the chance of fire taking off because of the dry

13 conditions. And dependent on the need for the fires, you

14 know, if we've gone through a series of fires in the green

15 belt areas around town, we don't need to do it for a couple

16 of years. We don't have to burn those parcels.

17 In a lot of it, too, is if one of our livestock lessees

18 comes to us and that will vary year to year, too, depending

19 if they have needs to burn.

20 MR. FRINK: Mr. Kavounas, Appendage 1 to the Waterfowl

21 Habitat Restoration Plan is the plan that three independent

22 scientists prepared; is that correct?

23 MR. KAVOUNAS: I believe so, yes.

24 MR. FRINK: On Page 90 of that plan that you were

25 discussing earlier, get it in front of me, just a minute,

0654

01 under the heading of Cost, State's maintenance of Projects A

02 and B, are limited to the water delivery system. It says no

03 maintenance would be required for projects.

04 Could you explain that second statement? I was a

05 little unclear as to what that meant.

06 MR. KAVOUNAS: If you wouldn't mind giving me ten

07 seconds to review it, Mr. Frink.

08 MR. FRINK: Sure.

09 MR. KAVOUNAS: The best I can interpret the statement

10 that is made here is that the scientists believe that there

11 is no maintenance required, and so operating and maintenance

12 costs have not been -- maintenance costs have not been

13 included for A and B. They seem to imply that operating

14 costs would be included. Maintenance costs they say for A

15 and B are not included because they are not necessary.

16 That would lead me to the conclusion that A and B have

17 operating costs, C has operating had maintenance costs that

18 are not included.

19 MR. FRINK: To your knowledge, is there an estimate any

20 place of the operating costs of either Projects A or B?

21 MR. KAVOUNAS: No. Maybe by reference only. My

22 understanding is that the first phase of DeChambeau Ponds

23 Project is approximately $30,000 a year. I don't know how

24 applicable that would be to, say, element B.

25 MR. FRINK: Have there been maintenance costs

0655

01 associated with the first phase of the DeChambeau Project?

02 MR. KAVOUNAS: I am not certain on that. It seems to

03 me that Mr. Dodge was implying that they're redoing portions

04 of Phase I. In my mind, that wouldn't qualify as

05 maintenance. That would qualify as an upgrade.

06 MR. FRINK: Does any member of the panel have knowledge

07 of any expenses that have been incurred in either

08 maintaining or upgrading Phase I of the projects?

09 MR. TILLEMANS: It is my understanding that there is a

10 well that the Forest Service and the joint project put in

11 between Ducks Unlimited and the Forest Service that is run

12 on propane. I think the cost of that was $30,000 a year.

13 That is no longer being continued because of budgetary

14 constraints of the Forest Service.

15 MR. FRINK: The purpose of the well was to provide

16 water to the ponds; is that correct?

17 MR. TILLEMANS: Yes, it was.

18 MR. FRINK: How are they providing water now?

19 MR. TILLEMANS: It is my understanding it hasn't been

20 provided for the majority of the past year, at least.

21 MR. FRINK: Is there much water in the pond?

22 MR. TILLEMANS: There is natural spring flow right now,

23 but that was in the original pond; that was there to begin

24 with.

25 MR. FRINK: Phase I of the project, was that intended

0656

01 to expand the size of the ponds from what they had been?

02 MR. TILLEMANS: Yes.

03 MR. FRINK: In your opinion, has that expansion

04 resulted in an increase of waterfowl habitat?

05 MR. TILLEMANS: At this point, if I can recall, the

06 last time there wasn't any water in the expansion. So, I

07 don't think so.

08 MR. FRINK: Was there a lining process of the ponds

09 undertaken to reduce the leakage?

10 MR. TILLEMANS: To my recollection, at first they were

11 waiting to see if the cracks in the bottom of the ponds were

12 going to seal up naturally. And I think there may be an

13 ongoing effort or some discussion regarding bentonite

14 sealing the ponds.

15 MR. FRINK: How were the cracks in the bottoms of the

16 ponds created?

17 MR. TILLEMANS: Probably from natural swelling and

18 shrinkage of initial rewatering and drying.

19 MR. KAVOUNAS: My impression is that there is some

20 clay, some amount of clay, on the bottom of the ponds, and

21 the cracks would be natural vesication cracks of the parent

22 clay when it dries.

23 MR. FRINK: Had there been some leakage in the ponds

24 before the effort was made to expand the size of ponds?

25 MR. TILLEMANS: Yes, that is my understanding.

0657

01 MR. FRINK: Before they undertook the expansion

02 project, was the water that is available in the ponds

03 supplied from natural springs?

04 MR. TILLEMANS: No. I think -- again, this is not my

05 project, so I am just telling you what is out there. It is

06 my understanding they felt they needed additional water, and

07 that is why they put that well in there, to run the water

08 across the meadow and into the pond and be able to expand

09 that project to some ponds other than the existing one that

10 was there from the hot springs.

11 In answer to your increase in waterfowl habitat, Dr.

12 Jehl states that the use there has been basically the same

13 since he has been looking at the ponds.

14 MR. FRINK: Has the area of the ponds expanded as a

15 result of Phase I of the project?

16 MR. TILLEMANS: I think if the whole phase was

17 implemented, they would be. Due to the cost in maintenance

18 of maintaining that pump and some of the problems that have

19 occurred, I don't think the anticipated expansion has been

20 completed.

21 MR. FRINK: When was the project undertaken, the

22 expansion project begun?

23 MR. TILLEMANS. I went to the dedication. Bruce was

24 there. Four kids, my memory is waning. Couple years ago.

25 MR. DODGE: It was in April, I think.

0658

01 CHAIRMAN CAFFREY: Which year?

02 MR. DODGE: I will work on that.

03 MR. KAVOUNAS: The project was completed in September

04 1995.

05 BOARD MEMBER DEL PIERO: I thought for a moment I was

06 going to have to swear in Mr. Dodge.

07 MR. FRINK: Mr. Tillemans, are you familiar with

08 waterfowl habitat in the area of Wilson Creek?

09 MR. TILLEMANS: Yes.

10 MR. FRINK: Is it your understanding that, if all the

11 water were removed from Wilson Creek, there would be a

12 decline in waterfowl habitat in that area?

13 MR. TILLEMANS: I would be very concerned about impacts

14 because I have seen it, and it is some of the best waterfowl

15 habitat in the north shore right now. And I would have

16 strong concerns that any dewatering and what impacts may

17 occur there. I am not a geohydrologist specialist, so I

18 can't give you an exact answer, but I would be very

19 concerned.

20 MR. FRINK: To your knowledge, has anybody done an

21 environmental study to compare the potential gains in

22 waterfowl habitat through restoring flow to Mill Creek with

23 the potential loss of waterfowl habitat in the area of

24 Wilson Creek?

25 MR. TILLEMANS: I don't think a detailed assessment.

0659

01 MR. FRINK: That is all I have.

02 Thank you.

03 MR. CANADAY: Mr. Perrault, you testified that on the

04 northernmost property that as shown on the exhibit, I am not

05 sure which number that is, but it is a Mill Creek/Wilson

06 Creek vicinity map.

07 MR. BIRMINGHAM: Exhibit 65.

08 MR. CANADAY: The northernmost property, you testified

09 that that is still irrigated from water that comes out of

10 the Lundy Project; is that correct?

11 MR. PERRAULT: What property are you referring to?

12 MR. CANADAY: The LADWP property, the most northern

13 property on the map.

14 MR. PERRAULT: Yes. It is my understanding that the

15 property is currently leased. I know it i leased to Mr.

16 Arnold Beckman, I don't know, and I believe it is still

17 irrigated, yes.

18 MR. CANADAY: Is that one of the pieces of property

19 under which you're proposing to potentially dedicate this

20 irrigation water, to the return of Mill Creek?

21 MR. PERRAULT: Well, yes. It's a minor amount of

22 water, only one cfs.

23 MR. CANADAY: You testified yesterday about the 1914

24 Mill Creek decision or decree; is that correct?

25 MR. PERRAULT: Yes.

0660

01 MR. CANADAY: You mentioned -- and your testimony

02 described the water rights and how they are dedicated to the

03 various parties; is that correct?

04 MR. PERRAULT: Yes.

05 MR. CANADAY: Are you aware that the decree, as it

06 identifies the rights of the various parties, refers to the

07 natural flow of Mill Creek? Are you aware of that?

08 MR. PERRAULT: I am aware that it makes references to

09 the natural flows, yes.

10 MR. CANADAY: If it makes reference, in your mind, that

11 means that whatever water right is alloted to any party is

12 based on the natural flow of that hydrologic year to that

13 party; is that correct?

14 MR. PERRAULT: Well, I am not an expert on water

15 rights. I don't claim to be one, and so --

16 MR. CANADAY: You won't disagree that the Mill Creek

17 decision as it referred to the water rights refers to the

18 natural flow of Mill Creek as opposed to the impaired flow

19 of Mill Creek?

20 MR. PERRAULT: Once again, that is the reference it

21 makes, and I am still unclear in my mind as to how that

22 plays out.

23 MR. CANADAY: Okay.

24 Referring back to Exhibit 65, I believe, the Mill Creek

25 and Wilson Creek vicinity map. On that map it shows Mill

0661

01 Creek or some sort of conveyance that we call Mill Creek

02 that begins at the tailrace of the Lundy Power Plant.

03 Is that, in fact, the actual watershed of Wilson Creek?

04 Would that be the start of the watershed of Wilson Creek,

05 the

06 natural watershed?

07 MR. PERRAULT: The natural watershed of Wilson Creek?

08 No. I believe it is lower than that.

09 MR. CANADAY: Do you know approximately on that map to

10 be able to describe to the Board where the watershed of

11 Wilson Creek is relative to the Lundy outfall?

12 MR. PERRAULT: Yeah. Let me point to where it would

13 be.

14 MR. CANADAY: Thank you.

15 MR. PERRAULT: I believe it would be up in this area

16 here.

17 MR. CANADAY: You are identifying the northern portions

18 of the Conway Ranch; is that correct?

19 MR. PERRAULT: Yes.

20 MR. CANADAY: So, by identifying that, your testimony

21 is that the Wilson Creek watershed does not start, in fact,

22 at the tailrace of the SCE power plant?

23 MR. PERRAULT: Well, no, I am not. I mean, the

24 confusion enters in on my mind that Mr. Keating had a right

25 on Wilson Creek, and in his diversion was just below the

0662

01 Lundy tailrace. So, I guess that is a point of confusion

02 for me.

03 MR. CANADAY: Is there any carryover storage in Lundy

04 Lake, to your acknowledge, on an annual basis?

05 MR. PERRAULT: Well, it is my understanding that we

06 have an agreement with Edison that they can't carry over

07 more than 11 percent of the storage. If you look at the

08 long-term storage chart or average storage, there isn't much

09 carryover.

10 MR. CANADAY: Much meaning several hundred acre-feet?

11 MR. PERRAULT: Yes.

12 MR. CANADAY: Are there any recreational values of

13 Lundy Lake, to your knowledge?

14 MR. PERRAULT: Yes, there are.

15 MR. CANADAY: Mr. Tillemans, could you tell me what

16 some of the recreation uses of Lundy Lake are?

17 MR. TILLEMANS: Yes. I camp up there a couple times

18 every year with my family. There is extensive fishing use

19 and camping. In the fall, it is in the brochures as being

20 one of the areas to go look at fall colors up by Lundy

21 Canyon and Reservoir, above it and what-have-you. It's

22 highly useful from a recreational standpoint.

23 MR. CANADAY: Are there developed recreational sites at

24 Lundy Lake or facilities?

25 MR. TILLEMANS: Yes, there are.

0663

01 MR. CANADAY: What are there?

02 MR. TILLEMANS: Campgrounds, and there are boat

03 marinas, and there are houses behind Lundy Lake, as well,

04 private houses. But, basically, the locals go up there and

05 fish Lundy Lake and because of the scenery and the

06 fishing.

07 MR. CANADAY: Thank you.

08 In the LADWP plan for waterfowl, it refers to

09 rewatering channels in Rush Creek, two channels in addition

10 to what the fishery scientists have recommended in the

11 fisheries plan.

12 Is that correct? I will take an answer from any one.

13 MR. TILLEMANS: Are you referring to the stream?

14 MR. CANADAY: The stream channels, yes.

15 MR. TILLEMANS: Right.

16 MR. CANADAY: The source of that water for the

17 rewatering is to be -- what is the water source for the

18 rewatering of those channels?

19 MR. TILLEMANS: In the Rush Creek bottomland?

20 MR. CANADAY: Yes.

21 MR. TILLEMANS: Rush Creek water.

22 MR. CANADAY: That water is to come from the existing

23 flow rates?

24 MR. TILLEMANS: Yes.

25 MR. CANADAY: Is there a possibility that this

0664

01 additional water necessary for these channels could reduce

02 the flows for fisheries' restoration?

03 MR. TILLEMANS: That is one of the concerns that didn't

04 come out in the beginning. You always have some

05 trade-offs. If you take permanent water away from one place

06 and place it in another in that system, you are going to

07 have trade-offs.

08 That was not brought out. If your intent is to

09 rewater, to jump start vegetation, which I think the stream

10 scientists, Trush, Ridenhour, and Hunter, originally

11 intended and have stated so, by irrigating you can prefer

12 vegetation over, say, fisheries habitat. That is a

13 trade-off.

14 MR. CANADAY: The LADWP plan proposes to monitor

15 waterfowl populations for use on the lake and near shore

16 wetlands; is that correct, Mr. Tillemans?

17 MR. TILLEMANS: Yes.

18 MR. CANADAY: I believe that what is stated in the

19 plan is that monitoring will continue until they complete --

20 a wet and dry cycle is achieved after the target level is

21 achieved, the lake level is reached.

22 Is there any more meaningful time frame which is

23 anticipated? That doesn't provide the Board with any

24 understanding of time frame.

25 MR. KAVOUNAS: No. This is the same dilemma that we

0665

01 have with adaptive management for the stream flows. The

02 idea is that you want to get a complete sample

03 representative years. The idea that has been going around,

04 around in my mind is we can set, let's say, a goal of -- we

05 get one year of each type representative, one representative

06 year of each type, or a maximum of a certain number of

07 years, regardless of whether we have achieved representation

08 or not.

09 As a maximum number of years, I would offer, maybe, ten

10 to 12 years.

11 MR. CANADAY: Beyond the reach --

12 MR. KAVOUNAS: Beyond the level of the lake, but that

13 is just my opinion.

14 MR. CANADAY: I am trying to understand what your

15 understanding might be for that time frame. Also in your

16 testimony, Mr. Kavounas, I believe it is your testimony,

17 LADWP proposes to fund a portion of the GIS studies, the

18 Salt Cedar removal, brine fly monitoring, potentially, and

19 it refers to duration.

20 I am not sure what duration means. I believe that is

21 on Page 2 of your testimony.

22 MR. KAVOUNAS: Third paragraph from the top?

23 MR. CANADAY: Yes, third paragraph.

24 MR. KAVOUNAS: What I am trying to make clear for State

25 Board and staff in my testimony there is, I am clearly

0666

01 identifying the element that the Department did not

02 incorporate, the element of the scientists' plan that the

03 document did not incorporate.

04 So, you know, our plan does not propose Salt Cedar

05 control. The scientists recommended Salt Cedar Interagency

06 Task. And I believe it should be that, and I believe the

07 Mono County Collaborative Task Force will address and the

08 Department is part of that, and as such, will participate in

09 it. And the same goes for GIS.

10 Further, in my testimony I say we do not propose brine

11 fly monitoring for reasons that Dr. White has explained.

12 And in describing which elements of the scientists plan we

13 do not incorporate, I also say that we have some differences

14 in duration of monitoring. I guess, I believe we had some

15 differences.

16 MR. CANADAY: What is the Mono County Task Force?

17 MR. KAVOUNAS: That is fairly recently formed, I think

18 within the last year and a half, a task force of all the

19 agencies. I think that was organized under the direction of

20 the County, and it is intended to pull together all the

21 agencies that have land management responsibilities in the

22 County and address common issues. I don't know more details

23 than that.

24 I know we have an engineer from our Bishop office, Mr.

25 Lloyd Anderson, who regularly attends the meetings. I have

0667

01 been in communication with him and have asked him if they

02 have goals, such as Salt Cedar, GIS, the shrimp, and they

03 have.

04 You know, the solution that they seek is a solution

05 because there are some many agencies and there are different

06 ownerships of land and different jurisdictions, you need a

07 solution that everyone agrees to. The solution would have

08 to be participative by all the agencies. That is my

09 understanding of what the task force is.

10 MR. CANADAY: Is it your understanding that some sort

11 of vegetative GIS will be developed for the Mono Basin?

12 MR. KAVOUNAS: My understanding is that the task force

13 will result in a basin wide GIS; that GIS -- all different

14 layers of data could be added to it. Vegetation would be

15 one of them. You know, all kinds of information that would

16 be pertinent to land management.

17 MR. CANADAY: Would it be your testimony that the

18 Department would be willing to, in those layers of data,

19 provide those data tht are, one, on your land or on areas

20 which you are undertaking restoration activities?

21 MR. KAVOUNAS: Yes. The Department will be a full

22 partner with all the other land management.

23 MR. CANADAY: Mr. Perrault, has anyone investigated

24 alternative irrigation techniques for LADWP properties?

25 MR. PERRAULT: No, we have not.

0668

01 MR. CANADAY: The current method is flood irrigation;

02 is that correct, through ditches?

03 MR. PERRAULT: Yes.

04 MR. CANADAY: Dr. White, let you earn your money.

05 You refer to the ongoing lake limnology and chemistry

06 modeling that is going, I believe, through Dr. Melack at

07 U.C. Santa Barbara; is that correct?

08 DR. WHITE: Yes, I did.

09 MR. CANADAY: Are the reports, are they in the form of

10 annual reports to the Department?

11 DR. WHITE: Yes. We do get an annual report, and most

12 of that data ends up being published in peer review

13 literature.

14 MR. CANADAY: Are those reports proprietary or are they

15 public information that could be distributed to the State

16 Board?

17 DR. WHITE: The State Board can have them. We provided

18 a lot of that information through the EIR.

19 MR. CANADAY: The access to those annual reports, if

20 the Board requested those, is part of an annual monitoring

21 and reporting requirement. Those would be made to the Board

22 on an annual basis?

23 MR. KAVOUNAS: Yes.

24 DR. WHITE: With the understanding that you won't try

25 to scoop Dr. Melack.

0669

01 MR. JOHNS: Don't worry about it.

02 MR. CANADAY: Mr. Kavounas, it's your understanding,

03 and any other member of the panel, it is your understanding

04 that because of the applications filed before this agency

05 for water rights or any future 1707 process before this

06 Board, that the likelihood is the City of Los Angeles would,

07 in fact, become the lead agency for any State environmental

08 documentation? Is that your understanding?

09 MR. BIRMINGHAM: It is a requirement of D-1631. That

10 is our understanding.

11 MR. CANADAY: Thank you. That is all I have.

12 CHAIRMAN CAFFREY: Is that the end of the questions?

13 Thank you very much, ladies and gentlemen.

14 Any questions from the Board Members for

15 cross-examination?

16 Mr. Del Piero, one finger; does that mean one question?

17 ---oOo---

18 CROSS EXAMINATION

19 BY MEMBERS OF THE BOARD

20 BOARD MEMBER DEL PIERO: One question, literally just

21 one, yes. No multiple part.

22 Earlier, a question was asked whether or not any

23 specific analysis had been done in terms of analyzing the

24 waterfowl habitat that currently exists in Wilson Creek and

25 what the impact of that would be on rediversion of water

0670

01 back into Mill Creek. I think the answer was, there has

02 been no detailed analysis done.

03 Are any of you aware of any analysis that has been done

04 in regards to preliminary evaluations as to the impacts of

05 those issues?

06 MR. KAVOUNAS: To my knowledge, I know of two opinions

07 that have been rendered on the value of Wilson habitat. The

08 one -- the first one is from Dr. Jehl, who has been our

09 consultant and has collected our monitoring data throughout

10 this period and, if I may include, this last year as well.

11 In his opinion, the -- it's my impression that his

12 opinion is that the habitat at the mouth of Wilson Creek is

13 one of the best habitats for waterfowl in the basin.

14 The second opinion that I am aware of is the one by the

15 three scientists on Page 99 of the report, which says,

16 regarding Wilson Creek, this channel has currently limited

17 value to waterfowl and low potential for restoration. So I

18 see two conflicting opinions. And the only thing I note is

19 the three scientists did not consult with Dr. Jehl. So,

20 there was no attempt to resolve any scientific opinion

21 differences.

22 MR. TILLEMANS: I might add, too, Mr. Del Piero, I know

23 BLM did a resource assessment.

24 BOARD MEMBER DEL PIERO: BLM?

25 MR. TILLEMANS: BLM. And I think Terry Russi will

0671

01 address that in his testimony.

02 BOARD MEMBER DEL PIERO: Where?

03 MR. TILLEMANS: They have land on Wilson Creek. They

04 went through and assessed the resources that they had on

05 their land.

06 BOARD MEMBER DEL PIERO: That is the resources

07 assessment for Wilson Creek. Did they do a comparative

08 analysis in terms of what would happen in the event water

09 would be transferred out of there?

10 MR. TILLEMANS: I think you have to refer to BLM.

11 BOARD MEMBER DEL PIERO: That is coming up soon?

12 MR. JOHNS: Yes.

13 BOARD MEMBER DEL PIERO: Thank you very much,

14 gentlemen.

15 CHAIRMAN CAFFREY: Thank you, Mr. Del Piero.

16 Anything else from the Board Members?

17 Time for redirect?

18 MR. BIRMINGHAM: Would this be an appropriate time for

19 morning break?

20 CHAIRMAN CAFFREY: Excuse me. Thank you.

21 I saw you looking at the clock, and it is an opportune

22 time for about a ten minute break.

23 Let's do that. Thank you.

24 (Break taken.)

25 CHAIRMAN CAFFREY: We will resume the hearing and, Mr.

0672

01 Birmingham, it is time for redirect of the panel. Do you

02 have an estimate of how much time you are going to need, sir?

03 MR. BIRMINGHAM: Probably about half an hour.

04 CHAIRMAN CAFFREY: Thank you, sir.

05 We will set the clock at half an hour.

06 ---oOo---

07 REDIRECT EXAMINATION

08 BY LOS ANGELES DEPARTMENT OF WATER AND POWER

09 BY MR. BIRMINGHAM

10 MR. BIRMINGHAM: Mr. Tillemans, I would like to follow

11 up, if I may, on a process that was followed in the

12 preparation of the Waterfowl Habitat Restoration Plan

13 submitted to the Board by the Department of Water and

14 Power.

15 The three consultants were retained by the Department;

16 is that correct?

17 MR. TILLEMANS: That is correct.

18 MR. BIRMINGHAM: What was the procedure used in

19 selecting those consultants?

20 MR. TILLEMANS: The procedure was the parties submitted

21 recommendations of who they would like to be interviewed for

22 that. And the Department at first was going out and looking

23 on its own for some expertise in waterfowl, and it was

24 desired to get input from the other parties who they might

25 want to recommend. And thereafter it was, basically, we

0673

01 were at a meeting in Sacramento and we kind of hashed out

02 who would be on the team, based on the input of the

03 parties.

04 MR. BIRMINGHAM: When you say "we hashed out," who is

05 we?

06 MR. TILLEMANS: It was the TAG group in regards to

07 waterfowl.

08 MR. BIRMINGHAM: The participants in that TAG group

09 meeting were representatives of the parties designated by

10 Decision 1631?

11 MR. TILLEMANS: That's correct.

12 MR. BIRMINGHAM: Those were the parties that 1631 said

13 that the Department was supposed to consult with in

14 connection with the submission of the waterfowl habitat

15 restoration?

16 MR. TILLEMANS: That's correct.

17 MR. BIRMINGHAM: Mr. Kavounas, in preparing the plan

18 that was submitted by the Department of Water and Power to

19 the State Water Resources Control Board, what process did

20 the Department follow in deciding what recommendations of

21 the three consultants would be included in that plan?

22 MR. KAVOUNAS: We followed the guidelines given to us

23 with Decision 1631 and tried to apply what we consider is

24 reasonable and feasible as a standard, and we held the

25 projects up to that. And to get some scientific relevance,

0674

01 we consulted with Dr. Joe Jehl, as has been fairly apparent

02 in my testimony and cross-examination today.

03 MR. BIRMINGHAM: In trying to decide what is reasonable

04 and feasible, did the Department consider those aspects of

05 the plan over which it had control?

06 MR. KAVOUNAS: Yes.

07 MR. BIRMINGHAM: Could you explain further how that

08 criterion affected your decision about what to include in

09 the plan?

10 MR. KAVOUNAS: I can give you some examples. For

11 example, in the burn program, the Department's plan proposes

12 to conduct the burns as promoted by the scientists on our

13 land. When it comes to other agencies' land, I believe the

14 plan recommends that we will encourage them and provide them

15 with any assistance that we can. Since it is their land,

16 that they would be responsible because we believe that burns

17 are part of responsible land management, anyway.

18 To give you another example, Mill Creek, the scientists

19 called for the Department to dedicate its irrigation right

20 in Thompson, and they called that a major and significant

21 first step toward achieving this as a restoration goal. We

22 believe that is well within our control, so we went ahead

23 and recommended that in our plan.

24 MR. BIRMINGHAM: As an example, the entire rewatering

25 of Mill Creek was something that you have viewed beyond your

0675

01 control?

02 MR. KAVOUNAS: Yes.

03 MR. BIRMINGHAM: It has been suggested that the

04 Department could buy Conway Ranch. Has the Department

05 considered buying Conway Ranch?

06 MR. KAVOUNAS: Not in preparation of the waterfowl

07 habitat plan, not at all.

08 MR. BIRMINGHAM: Another example I think that came out

09 during your cross-examination, was scrapes. You concluded

10 that you wouldn't include scrapes because the lands on which

11 those scrapes would occur were lands within the control or

12 under the jurisdiction of the State Lands Commission and

13 they objected to that. The State Lands Commission objected

14 to that restoration proposal.

15 Is that correct?

16 MR. KAVOUNAS: That's correct.

17 MR. BIRMINGHAM: In response to Mr. Dodge's question

18 this morning, you indicated that if the proposed scrapes

19 occur on DWP's land, then the Department would carry out

20 that proposal?

21 MR. KAVOUNAS: Yes. I would like to point out that

22 that, along with everything else, is a result of cooperative

23 effort, at least we think it is cooperative. So, if the

24 State Lands Commission stood firm and said we want to see no

25 scrapes, then, you know, that is something that we would

0676

01 leave up to somebody else to decide, maybe a consensus among

02 the parties. But if the State Lands Commission said, "We do

03 not oppose scrapes anywhere in the basin, outside of State

04 Lands Commission land," then we would carry that out.

05 MR. BIRMINGHAM: That raises another subject. A couple

06 of times during your cross-examination, you referred to

07 cooperative efforts with other agencies and indicated that

08 the Department would carry out some of the proposals if

09 there were cooperative funding.

10 Can you most explain why, from the Department's

11 perspective, cooperative funding is an appropriate

12 condition?

13 MR. KAVOUNAS: Once again, we are not the only

14 landowner in the basin. Our lands are not the only ones

15 that would benefit. Other agencies' land would also

16 benefit. In some instances -- you know my views as to the

17 marginal benefit of the waterfowl habitat that we would

18 create. If we look at a project such as DeChambeau, and the

19 cost estimate in here, I believe, is close to three-quarter

20 million dollars without any operating costs. To me that

21 doesn't seem economically feasible. I couldn't recommend

22 that to my management.

23 So, to that effect, as a matter of fact, I would like

24 to point out that we have attempted to get cooperative

25 funding, specifically for DeChambeau.

0677

01 Am I getting ahead of you?

02 MR. BIRMINGHAM: I was going to get to that in a

03 moment.

04 If I understand your response to my question, it is the

05 Department's position that other agencies with land

06 management responsibilities in the basin should bear some of

07 the responsibility for carrying out projects which will

08 benefit or further their land management purposes. Is that

09 correct?

10 MR. KAVOUNAS: Yeah. I think, you know, the

11 Department's responsibility to mitigate does not absolve

12 other agencies' responsibilities to manage.

13 MR. BIRMINGHAM: A moment ago you mentioned you had

14 sought outside funding. Who was responsible for seeking

15 that outside funding to carry on the DeChambeau/County Ponds

16 project?

17 MR. KAVOUNAS: Mr. Brian Tillemans who is sitting on

18 this panel.

19 MR. BIRMINGHAM: Mr. Tillemans, can you describe for us

20 what you did to seek outside funding to carry out that

21 proposal?

22 MR. TILLEMANS: Basically, we haven't really submitted

23 form applications, but we have discussed it, what is called

24 the Intermountain West Joint Venture Program, and there is a

25 local Eastern Sierra chapter. And they have identified the

0678

01 Mono Basin as a high priority area, and they seek funding

02 through NAWCA, which is the North American Wetland

03 Conservation Act.

04 MR. BIRMINGHAM: Essentially, the Department has

05 discussed with the Intermountain -- what is the name of the

06 agency?

07 MR. TILLEMANS: Intermountain West Joint Venture.

08 MR. BIRMINGHAM: You have approached the Intermountain

09 West Joint Venture about obtaining funds, federal funds, to

10 help implement some of the programs that are proposed by the

11 consultant; is that correct?

12 MR. TILLEMANS: Yes. We have expressed within that

13 group, our desire to seek these funds.

14 MR. BIRMINGHAM: Have any of the other parties here in

15 this proceeding participated in those discussions?

16 MR. TILLEMANS: Yes, they have.

17 MR. BIRMINGHAM: Which parties are those?

18 MR. TILLEMANS: The Mono Lake Committee, Fish and Game,

19 and I think a Forest Service representative has been there.

20 MR. BIRMINGHAM: Did the Mono Lake Committee express

21 any view on the propriety of the DWP obtaining funds under

22 the North American Wetland Conservation Act?

23 MR. TILLEMANS: They have.

24 MR. BIRMINGHAM What was their view?

25 MR. TILLEMANS: It was at a meeting at a meeting that a

0679

01 cohort of mine went to, and Mono Lake's attendee was Greg

02 Reise. And he expressed the inappropriateness of DWP to

03 seek those kind of funds.

04 MR. BIRMINGHAM: He expressed opposition to DWP

05 obtaining those funds?

06 MR. TILLEMANS: Yes.

07 MR. BIRMINGHAM: Did the Department of Fish and Game

08 take a position?

09 MR. TILLEMANS: I don't know if they really took a

10 position. They may have questioned, again, the

11 appropriateness of seeking the funds.

12 MR. BIRMINGHAM: You are not sure about Fish and Game?

13 MR. TILLEMANS: Right.

14 MR. BIRMINGHAM: Do you know if the Forest Service took

15 a position on whether or not it would be appropriate for

16 DWP to obtain those funds?

17 MR. TILLEMANS: I know of no position.

18 MR. BIRMINGHAM: Mr. Perrault, there were a number of

19 questions asked of you by Mr. Dodge this morning concerning

20 the facilities that would be required to return water to

21 Mill Creek from Wilson Creek. He asked you about the

22 ability of the Southern California Edison Return Ditch to

23 convey water in the winter.

24 Have you visited the return ditch during a winter

25 period?

0680

01 MR. PERRAULT: No, I have not.

02 MR. BIRMINGHAM: Were you in the Mono Basin in early

03 January of this year?

04 MR. PERRAULT: Excuse me, yes, I was.

05 MR. BIRMINGHAM: Can we declare him a hostile witness?

06 CHAIRMAN CAFFREY: I was going to ask you.

07 MR. DODGE: We will stipulate that everything conveyed

08 water, January of this year.

09 BOARD MEMBER DEL PIERO: Including major state

10 highways.

11 MR. PERRAULT: I guess I was thinking you were

12 referring to an earlier reference.

13 MR. BIRMINGHAM: Have you seen the Southern California

14 Edison Return Ditch convey water in the winter?

15 MR. PERRAULT: Yes, I have.

16 MR. BIRMINGHAM: Another que