Feb. 24, 1997 Restoration Hearing

1110

01 STATE WATER RESOURCES CONTROL BOARD

03 PUBLIC HEARING

06 REGARDING STREAM AND WATERFOWL HABITAT RESTORATION PLANS

06 AND GRANT LAKE OPERATIONS AND MANAGEMENT PLAN SUBMITTED BY

07 THE LOS ANGELES DEPARTMENT OF WATER AND POWER PURSUANT TO

07 THE REQUIREMENTS OF WATER RIGHT DECISION 1631

13 HELD AT:

14 STATE WATER RESOURCES CONTROL BOARD

14 PAUL BONDERSON BUILDING

15 901 P STREET, FIRST FLOOR HEARING ROOM

15 SACRAMENTO, CALIFORNIA

18 MONDAY, FEBRUARY 24, 1997

18 9:00 A.M.

24 Reported by: ESTHER F. WIATRE

25 CSR NO. 1564

1111

01 APPEARANCES

01 BOARD MEMBERS:

02 JOHN CAFFREY, CHAIRMAN

03 JOHN W. BROWN (A.M. ONLY)

03 MARY JANE FORSTER

04 STAFF MEMBERS:

05 JAMES CANADAY, ENVIRONMENTAL SPECIALIST

06 GERALD E. JOHNS, ASSISTANT DIVISION CHIEF

07 COUNSEL:

08 DAN FRINK

09 LOS ANGELES DEPARTMENT OF WATER AND POWER:

10 KRONICK MOSKOVITZ TIEDEMANN & GIRARD

10 400 Capitol Mall, 27th Floor

11 Sacramento, California 95814

11 BY: THOMAS W. BIRMINGHAM, ESQ.

12 and

12 JANET GOLDSMITH, ESQ.

13 BUREAU OF LAND MANAGEMENT:

14 UNITED STATES DEPARTMENT OF THE INTERIOR

15 BUREAU OF LAND MANAGEMENT

15 BISHOP RESOURCE AREA

16 785 North Main Street, Suite E

16 Bishop, California 93514

17 BY: TERRY L. RUSSI

18 PEOPLE FOR MONO BASIN PRESERVATION:

19 KATHLEEN MALONEY BELLOMO

19 P.O. Box 201

20 Lee Vining, California 93541

21 ARCULARIUS RANCH:

22 FRANK HASELTON, LSA

22 1 Park Plaza, Suite 500

23 Irvine, California 92610

1112

01 APPEARANCES

02 CALIFORNIA TROUT, INC.:

03 NATURAL HERITAGE INSTITUTE

03 114 Sansome Street, Suite 1200

04 San Francisco, California 94014

04 BY: RICHARD ROOS-COLLINS, ESQ.

05 CALIFORNIA DEPARTMENT OF FISH AND GAME:

06 NANCEE MURRAY, ESQ.

07 1416 Ninth Street

07 Sacramento, California 95814

08 McDONOUGH HOLLAND & ALLEN

09 555 Capitol Mall, Ninth Floor

09 Sacramento, California 95814

10 BY: VIRGINIA A. CAHILL, ESQ.

11 CALIFORNIA STATE LANDS COMMISSION:

11 CALIFORNIA DEPARTMENT OF PARKS AND RECREATION:

12 MARY J. SCOONOVER, ESQ.

13 1300 I Street

13 Sacramento, California 95814

14 MICHAEL VALENTINE

15 NATIONAL AUDUBON SOCIETY:

16 MONO LAKE COMMITTEE:

17 MORRISON & FORSTER

17 425 Market Street

18 San Francisco, California

18 BY: F. BRUCE DODGE, ESQ.

19 PANEL MEMBERS:

20 PETER VORSTER

21 LARRY L. HARRISON

21 SCOTT STINE

23 ---oOo---

1113

01 INDEX

02 PAGE

03 NATIONAL AUDUBON SOCIETY/MONO LAKE COMMITTEE

04 DIRECT EXAMINATION

05 BY MR. DODGE 1117

06 CROSS-EXAMINATION

07 BY MR. RUSSI 1155

07 BY MS. BELLOMO 1169

08 BY MR. HASELTON 1219

08 BY MS. ROOS-COLLINS 1221

09 BY MS. CAHILL 1234

10 ---oOo---

11 AFTERNOON SESSION 1219

1114

01 SACRAMENTO, CALIFORNIA

02 FEBRUARY 24, 1997

03 ---oOo---

04 CHAIRMAN CAFFREY: Good morning and welcome back to all

05 the parties. Later in the day, we may be joined by Mr.

06 Stubchaer and Ms. Forster.

07 Let me also say before we get into today's proceeding

08 that some of you been inquiring as to the well-being of Mr.

09 Del Piero. I will just let you know that he has been

10 allowed to go home. He is home, resting. The last we heard

11 on Friday, they do not know yet if he is going to need a

12 second surgery. We will try to keep you posted as we find

13 more things out.

14 With that, I was going to ask Mr. Frink what the order

15 is now with regard to conveniencing the parties on their

16 direct and the cross-examination that we are going to

17 schedule for today.

18 Mr. Frink.

19 MR. FRINK: Mr. Caffrey, I believe Mr. Dodge has a

20 panel of three witnesses who we are going to lead off with

21 this morning.

22 CHAIRMAN CAFFREY: That would then be Mr. Vorster, Mr.

23 Stine, and Mr. Harrison; is that -- do I have the right

24 group here?

25 MR. DODGE: Yes, you do.

1115

01 CHAIRMAN CAFFREY: There had been some discussion

02 about, perhaps, Mr. Roos-Collins going first with Mr.

03 Vorster. I take it that you are going to do all your

04 witnesses together?

05 MR. DODGE: The way we left it last Friday, Mr.

06 Roos-Collins and I were to discuss the matter and reach

07 resolution, and we have. The resolution is that, on behalf

08 of Audubon and on the Mono Lake Committee, this panel of

09 three would go forward and be cross-examined and then be

10 finished. Then we would move on to the Cal Trout panel.

11 CHAIRMAN CAFFREY: Thank you, Mr. Dodge.

12 I always made, at the request of Mr. Birmingham, a

13 change in the order of the cross-examination, and there was

14 no objection last time, and we will take the City of Los

15 Angeles at the end of the grouping, as we go down through

16 the list.

17 Thank you all for your indulgence. Let me also repeat

18 something that I've said a number of times. First of all,

19 with all due deference, because it's clear to me that

20 everybody is making an attempt at brevity. This is a

21 complex subject, and sometimes that is not easy to do.

22 Nonetheless, I will repeat for those of you who have not

23 been with us. We are all here at different times as

24 different parties appear. It is essential that you be as

25 brief as you can. Not only to the witnesses in your

1116

01 testimony, but also to the attorneys in their questioning.

02 We do allow up to an hour for presentation of direct

03 testimony. It is obligatory. If you don't have an hour's

04 worth of information in summary form to give the Board, you

05 don't need to feel that you need to fill up the hour. I am

06 sure everybody would appreciate that.

07 If I may be so bold as to cite an example, I think the

08 Board appreciated Mr. Dodge's approach the other day, where

09 he brought up his expert witnesses, and they each took about

10 ten minutes to summarize. Then we could get to the meat of

11 things in the cross-examination and, of course, there is

12 always rebuttal to follow.

13 We noted that the witnesses have a lot of expertise.

14 So does the Board to some degree. We are full-time Board.

15 We read everything. Please be mindful of the fact that the

16 direct testimony is your opportunity to just summarize and

17 hit the high points. As I said earlier, it appears as

18 though that the panels up till now have been making a real

19 attempt to do that. It is appreciated, and please do

20 continue.

21 All right then. Is there anything I need to point

22 out? Let me ask, before we get to that, Mr. Frink, have all

23 of these witnesses taken the oath that are going to appear

24 today?

25 MR. FRINK: I don't believe so.

1117

01 (Oath administered by Chairman Caffrey.)

02 CHAIRMAN CAFFREY: Thank you. Gentlemen, sit down.

03 Mr. Dodge, sir.

04 ---oOo---

05 DIRECT EXAMINATION BY

06 NATIONAL AUDUBON SOCIETY/MONO LAKE COMMITTEE

07 BY MR. DODGE

08 MR. DODGE: Thank you, Mr. Chairman.

09 Mr. Vorster, I am going to ask you to confirm that

10 Exhibit R-NAS/MLC-7 is your written testimony and to

11 summarize it for the Board. And then I will ask Mr.

12 Harrison to confirm that Exhibit R-NAS/MLC-1 is your written

13 testimony and to summarize that. And finally, Dr. Stine, I

14 ask you to confirm that Exhibit R-NAS/MLC-5 is your written

15 testimony and summarize that. And we will start with Mr.

16 Vorster.

17 MR. VORSTER: Good morning, Mr. Caffrey, Mr. Brown, and

18 the assembled staff and others in this proceeding. My name

19 is Peter Vorster. I was extensively involved in the

20 preparation plan through the TAGs, the ad hoc flow

21 subcommittee, and the submittal of extensive written

22 comments. I appreciate that DWP, in particular Bill

23 Hazencamp, Steve McBain, Dave Allen, Jim Perralt, and Peter

24 Kavounas, conducted a process in an open and cooperative

25 manner.

1118

01 There are a couple of minor corrections in my

02 testimony, which I compiled in a sheet that is being handed

03 out currently. The most important is that Attachment 5A,

04 which should have been part of Attachment 5, was

05 inadvertently left out.

06 My testimony will cover the following subject matters.

07 First, water rights in the Mill-Wilson system, Mill-Wilson

08 hydrology and water management, water requirements for

09 Thompson and Conway Meadows, a comparison of the different

10 channel maintenance flow recommendations, the adequacy of

11 DWP channel maintenance flow recommendations, and the export

12 impact of the recommended flow regimes.

13 First, I want to quickly review the water rights of the

14 Mill-Wilson system. I have reviewed the November 30, 1914

15 Water Rights Decree for Mill Creek and subsequent

16 conveyances and compilations of the decree by the

17 Department of Water and Power and Southern California

18 Edison. I enlarged Attachment 6 from my testimony, which is

19 behind me here, which is a compilation of the water rights

20 with minor corrections noted in my written testimony. This

21 compilation was prepared by Scott Stine in Appendix F, as in

22 Frank, in the DWP's Waterfowl Plan.

23 The water rights to Mill Creek are held by four

24 entities: Conway Ranch, LADWP, U.S. Forest Service, and Jan

25 Simis who has a minor 1.0 cfs right. The Conway right

1119

01 consists of both the Conway land and the Mattly lands. The

02 Conway lands, as I am showing in R-SLC/DPR-424. The Conway

03 lands enclosed by this large figure and the Mattly lands

04 over here.

05 The Conway lands have a 14 cfs right, and the Mattly

06 lands a 4 cfs right.

07 Southern California Edison does not have a water right

08 to Mill Creek. It's obligated to convey the water to

09 downstream water right holders, although it does have a

10 right to store inflow above 70 cfs.

11 There is no right to flows in Wilson Creek itself.

12 Wilson Creek is a conduit for delivering water to irrigation

13 ditches on Conway and DeChambeau Ranch. And, in fact, it

14 was originally referred to as the DeChambeau Ditch.

15 In recent years, nearly all of the flow in Wilson Creek

16 through the Conway Ranch is water in excess of the demands

17 of the water right holders, since the Forest Service is

18 generally not using its right on DeChambeau Ranch, and the

19 Conway Ranch has no major diversions from Wilson Creek on

20 the ranch property itself.

21 What I mean is that -- this is Conway Ranch.

22 Diversions to the ranch historically occurred from the

23 Conway Ditch, the Upper Conway Ditch, the Lower Conway

24 Ditch, and there are actually two ditches that take water

25 from the south of we call Wilson Creek.

1120

01 Next I want to briefly describe the Mill-Wilson

02 hydrology and water management. I compiled a series of

03 spreadsheets which Mr. Riese will be flipping over. They

04 are just enlargements of the attachments. These

05 spreadsheets provide a snapshot of the historic actual flows

06 and diversions in the Mill-Wilson system in different year

07 types, and the flows that would be expected if LADWP's or

08 the Mono Lake Committee's proposal for providing instream

09 flows in Mill Creek is implemented.

10 DWP's proposal is to dedicate its Mill Creek water

11 rights and the dedication of other unappropriative water

12 that may be available during the fall and winter months to

13 accomplish the rewatering of Mill Creek.

14 The Mono Lake Committee proposal is to restore close to

15 the natural flows of Mill Creek, but impaired by Lundy

16 Reservoir, in order to restore the waterfowl habitat in Mill

17 Creek to the level recommended by the waterfowl restoration

18 scientists, and to restore a naturally functioning stream,

19 ecosystem, and bottomlands.

20 Mono Lake Committee proposes to return all of the water

21 to Mill Creek except that which is necessary to maintain

22 Wilson Creek riparian quarter through the Conway Ranch and

23 to maintain the Simis and Thompson Ranch Meadows and trees.

24 Mono Lake Committee proposes to accomplish this through the

25 purchase and dedication of the Conway Ranch water rights,

1121

01 the dedication of DWP's water rights to Mill Creek, to

02 instream flow, and to the modification of the Mill Creek

03 Return Ditch, if necessary, to transport the 70 second

04 peak.

05 The spreadsheets, which are behind me, show the mean

06 monthly flows in cubic feet per second for dry, normal, and

07 wet runoff year at the available measuring sites for key

08 points of demarcation in the Mill-Wilson system.

09 The meaning and derivation of every line in the

10 spreadsheets is explained in Attachment 5. Behind me is

11 actually a summary spreadsheet. The detailed spreadsheets

12 are contained in my testimony.

13 The spreadsheets allow the user to specify certain

14 variables in order to model alternative water management

15 scenarios, including the capacity of the Mill Creek Return

16 Ditch, the losses in terms of percentage of flow in the

17 return ditch, the amount of DWP's irrigation right required

18 to keep Thompson Ranch Meadow green in excess of 1.0 cfs,

19 and, fourth, the amount of water to maintain Wilson Creek

20 riparian quarter through the Conway Ranch. These are all

21 variables that can be specified by the user and changed in

22 order to model different scenarios.

23 CHAIRMAN CAFFREY: Excuse me, Mr. Vorster.

24 Ms. Bellomo, did you rise for a purpose?

25 MS. BELLOMO: No, thank you, Chairman Caffrey. I am

1122

01 trying to look at the -- I am sorry.

02 CHAIRMAN CAFFREY: Don't be sorry. I just wasn't sure,

03 and that's perfectly all right.

04 Anybody who has trouble seeing this, if they want to

05 draw a little bit closer, please feel free.

06 Excuse me, Mr. Vorster. Go ahead.

07 MR. VORSTER: The scenarios are differentiated -- in my

08 testimony I provided three scenarios, and they are

09 differentiated by the assumed capacity of the return ditch

10 and the irrigation water for Thompson Ranch. Since my

11 testimony was prepared, we received the testimony from

12 Southern California Edison, which indicated that they

13 estimate the capacity of the return ditch is about 12 cfs,

14 as opposed to 16 cfs I assumed for the purpose of my

15 testimony.

16 As a consequence, I prepared a Scenario 4, which is

17 exactly the same as Scenario 1 except for the return ditch

18 capacity of 12 cfs. I do have that available and the

19 summary spreadsheet is actually up behind Scenario 1.

20 MR. BIRMINGHAM: Mr. Caffrey.

21 CHAIRMAN CAFFREY: Mr. Birmingham.

22 MR. BIRMINGHAM: We would have an objection to the

23 introduction of Scenario 4 inasmuch as it was not submitted

24 in the testimony on the date required by the State Board.

25 CHAIRMAN CAFFREY: Is there anybody wishing to offer a

1123

01 showing as to why I should not sustain Mr. Birmingham's

02 concern?

03 MR. DODGE: We have always been under the assumption,

04 and have been told, that the capacity of the return ditch

05 was 16 cfs. And then after all the testimony comes, in SCE

06 comes with its testimony in response to my questions, and

07 they tell us it is now as low as 12. So, it is new

08 information to us, and we thought the Board ought to be made

09 aware of the implications of that. We can do it in

10 rebuttal, if you wish.

11 CHAIRMAN CAFFREY: Ms. Bellomo.

12 MS. BELLOMO: Just ask for clarification, Chairman

13 Caffrey, I didn't understand Southern California Edison as

14 having provided testimony in this proceeding. I think we

15 should be referenced to the documents that is supposedly

16 testimony. I think I recall seeing a letter or memorandum

17 or something, but maybe there is testimony that I am not

18 aware of.

19 CHAIRMAN CAFFREY: I think the point here is, if I am

20 understanding your concern, Ms. Bellomo, is that the direct

21 testimony can, or rather presentation of direct testimony --

22 well, I am going to correct myself. I was confusing myself

23 with procedure for rebuttal from counsel, what I was about

24 say.

25 Mr. Frink, can you remind if and when we had anything

1124

01 in direct from Southern California Edison?

02 MR. FRINK: All I have seen on the subject is a letter

03 or memo from SCE responding to an inquiry from Mr. Dodge

04 regarding the capacity of the ditch.

05 I would say, though, that I don't believe that he

06 formally asked for that information until shortly before the

07 exhibits were due, and, certainly, we didn't have any

08 request to subpoena the information from SCE.

09 MR. BIRMINGHAM: Mr. Frink is absolutely correct. What

10 happened was Mr. Dodge made an inquiry of Southern

11 California Edison so that he could submit evidence

12 concerning the capacity of the return ditch in connection

13 with his case in chief. If he did not obtain that

14 information early enough to permit Mr. Vorster to conduct an

15 analysis, based upon that information, we should not be

16 prejudiced because of their failure to get the information

17 earlier.

18 What happened was Mr. Dodge got the information from

19 SCE. He submitted with his direct testimony and Mr.

20 Vorster's direct testimony, and based upon that new

21 information, Mr. Vorster apparently has conducted a

22 different analysis, which should have been presented with

23 the written testimony at the time Mr. Dodge submitted.

24 CHAIRMAN CAFFREY: Mr. Dodge, you had made an offering

25 a moment ago.

1125

01 MR. DODGE: Excuse me, Mr. Birmingham has misstated the

02 facts.

03 CHAIRMAN CAFFREY: Go ahead.

04 MR. DODGE: I did not get the testimony from SCE in a

05 timely matter, which is why I submitted my Exhibit 3, which

06 is just the questions I posed to them, and Exhibit 3-A,

07 which is when I got the answers, which was after Mr. Vorster

08 had finished his analysis. And I believe it was Exhibit 3-A

09 that was filed a couple days late for that very reason.

10 MR. BIRMINGHAM: In fact, Exhibit 3-A was filed late,

11 and I understand Mr. Dodge's difficulty in getting that

12 information from Southern California Edison. And so,

13 therefore, we do not object to his having filed that a

14 couple days late, because we have had plenty of time to

15 analyze it for purposes of examination. But Mr. Vorster,

16 based upon that, is now offering brand new evidence that we

17 have not had an opportunity to analyze, and under the

18 Board's previous rulings concerning the submission of

19 evidence for party's case in chief, this ought to be

20 excluded.

21 CHAIRMAN CAFFREY: I am going to rule here in a second,

22 but I am going to give Mr. Dodge one more chance to --

23 Nothing else, Mr. Dodge?

24 MR. DODGE: Nothing.

25 CHAIRMAN CAFFREY: Mr. Roos-Collins, do you have

1126

01 something you wanted to add?

02 MR. ROOS-COLLINS: Yes, Mr. Chairman.

03 If you sustain the objection, then one or several of us

04 may simply ask Mr. Vorster the same question on cross.

05 CHAIRMAN CAFFREY: Well, I was going to observe that,

06 and you also have rebuttal as an opportunity. I am going to

07 -- Ms. Scoonover, briefly.

08 MS. SCOONOVER: Chairman Caffrey, the only point I want

09 to make, was I believe that the Southern California Edison

10 testimony is in the record as it was stipulated to when we

11 met previously. So that shouldn't be an issue, whether it

12 is or is not.

13 CHAIRMAN CAFFREY: I don't know that that is the issue.

14 The issue is, it is part of somebody's direct, per se, and

15 which you can deal with in cross-examination because it is

16 in the record, I would assume.

17 So, I am going to sustain the objection. I know that a

18 skilled attorney, such as Mr. Dodge, has perhaps other

19 avenues to bring his information into the hearing, and I

20 know --

21 MR. DODGE: Now you are putting me on the spot.

22 CHAIRMAN CAFFREY: I know a skilled attorney like Mr.

23 Birmingham has also the ability to object in the future.

24 We are going to sustain the objection as this point.

25 Please proceed.

1127

01 MR. VORSTER: Thank you.

02 The following observations about historic flows and

03 diversions in the Mill-Wilson system can be made. First,

04 the amount and seasonality of historic flows and diversions

05 shown in spreadsheets are consistent with the recent

06 measurements and observations, even though they show 1950,

07 '52 -- '51, '52 and 1960. Those years were just chosen as

08 representative hydrology of wet, normal, and dry year.

09 However, the way things -- the diversions and SCE's

10 operations are consistent with what is shown in the

11 spreadsheets.

12 The only exception to this is that in the last decade

13 the upper Thompson diversions for the irrigation of lands

14 south of Mill Creek, in particular for Simis Ranch, are

15 substantially less and have been entirely eliminated in the

16 past few years.

17 Secondly, the differences in the Mill Creek unimpaired

18 runoff between the different year types is most pronounced

19 in snow melt months of May through August. For example, the

20 mean monthly flow in July, the wet year, is nearly five

21 times greater than the mean monthly flow of July in dry

22 year. Contrast this to the less than 25 percent difference

23 in the flows in November.

24 Thirdly, Mill Creek gains an estimated average monthly

25 flow of 4 to 10 cfs downstream of Lundy Reservoir from a

1128

01 combination of factors. Lundy Reservoir would be off the

02 map here on Exhibit R-SLC/DPR-424 in the reach down to

03 approximately Highway 395. It gains flow from tributary

04 inflow and groundwater accretion. Below Highway 395 down

05 past the County Road, Mill Creek is a losing stream. And

06 then down near the shoreline of Mono Lake itself, down here,

07 springs would reemerge.

08 I assume, consistent with available but limited number

09 of measurements and estimates, the losses are equal to the

10 gains. In higher runoff months and higher runoff years,

11 losses probably have been slightly less than the gains.

12 I would note that if water is flowing consistently in

13 the multiple channels in the revegetated Mill Creek

14 bottomlands, the losses will increase in the future over

15 what I have shown in the spreadsheets.

16 Fourth, the diversion in the Thompson Ditches and

17 Conway and Mattly Ditches occurred on seasonal bases for

18 irrigation purposes. Thus, normally there were no

19 diversions between November and March, and in many years

20 there were no diversions between October and April.

21 Fifth, flows to start discharging from the power plant,

22 that are not diverted from the Conway and Mattly Ranch

23 Ditches, flow in Wilson Creek and provide a year-round flow

24 through the Conway Ranch in most occasions. A combination

25 of losses in and diversions from Wilson Creek cause it to

1129