1110 01 STATE WATER RESOURCES CONTROL BOARD 02 03 PUBLIC HEARING 04 05 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 08 09 10 11 12 13 HELD AT: 14 STATE WATER RESOURCES CONTROL BOARD 14 PAUL BONDERSON BUILDING 15 901 P STREET, FIRST FLOOR HEARING ROOM 15 SACRAMENTO, CALIFORNIA 16 16 17 17 18 MONDAY, FEBRUARY 24, 1997 18 9:00 A.M. 19 19 20 20 21 21 22 22 23 23 24 24 Reported by: ESTHER F. WIATRE 25 CSR NO. 1564 25 1111 01 APPEARANCES 01 BOARD MEMBERS: 02 02 JOHN CAFFREY, CHAIRMAN 03 JOHN W. BROWN (A.M. ONLY) 03 MARY JANE FORSTER 04 04 STAFF MEMBERS: 05 05 JAMES CANADAY, ENVIRONMENTAL SPECIALIST 06 GERALD E. JOHNS, ASSISTANT DIVISION CHIEF 06 07 COUNSEL: 07 08 DAN FRINK 08 09 LOS ANGELES DEPARTMENT OF WATER AND POWER: 09 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 13 BUREAU OF LAND MANAGEMENT: 14 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 17 18 PEOPLE FOR MONO BASIN PRESERVATION: 18 19 KATHLEEN MALONEY BELLOMO 19 P.O. Box 201 20 Lee Vining, California 93541 20 21 ARCULARIUS RANCH: 21 22 FRANK HASELTON, LSA 22 1 Park Plaza, Suite 500 23 Irvine, California 92610 23 24 24 25 25 1112 01 APPEARANCES 01 02 CALIFORNIA TROUT, INC.: 02 03 NATURAL HERITAGE INSTITUTE 03 114 Sansome Street, Suite 1200 04 San Francisco, California 94014 04 BY: RICHARD ROOS-COLLINS, ESQ. 05 05 CALIFORNIA DEPARTMENT OF FISH AND GAME: 06 06 NANCEE MURRAY, ESQ. 07 1416 Ninth Street 07 Sacramento, California 95814 08 08 McDONOUGH HOLLAND & ALLEN 09 555 Capitol Mall, Ninth Floor 09 Sacramento, California 95814 10 BY: VIRGINIA A. CAHILL, ESQ. 10 11 CALIFORNIA STATE LANDS COMMISSION: 11 CALIFORNIA DEPARTMENT OF PARKS AND RECREATION: 12 12 MARY J. SCOONOVER, ESQ. 13 1300 I Street 13 Sacramento, California 95814 14 14 MICHAEL VALENTINE 15 15 NATIONAL AUDUBON SOCIETY: 16 MONO LAKE COMMITTEE: 16 17 MORRISON & FORSTER 17 425 Market Street 18 San Francisco, California 18 BY: F. BRUCE DODGE, ESQ. 19 19 PANEL MEMBERS: 20 20 PETER VORSTER 21 LARRY L. HARRISON 21 SCOTT STINE 22 22 23 ---oOo--- 23 24 24 25 25 1113 01 INDEX 01 02 PAGE 02 03 NATIONAL AUDUBON SOCIETY/MONO LAKE COMMITTEE 03 04 DIRECT EXAMINATION 04 05 BY MR. DODGE 1117 05 06 CROSS-EXAMINATION 06 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 09 10 ---oOo--- 10 11 AFTERNOON SESSION 1219 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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 01 periodically dry up downstream from the Conway Ranch. 02 So most of the time there is year-round flow from the 03 power plant through the Conway Ranch, but in this section 04 there is a losing stream and in the drier months, especially 05 dryer years, this is often totally dry of surface flow. 06 An exception to the normal year-round flow in Wilson 07 Creek occurred during the period 1962 to '68 when the 08 Lundy Power Plant was not in service, which meant 09 irrigation water for the Conway, Mattly, and DeChambeau 10 Ranches had to be diverted from Mill Creek, directly from 11 Mill Creek. More water was diverted from Mill Creek in the 12 late fall and winter from 1962 to '68. So Wilson Creek did 13 not have that supply from the power plant outflow. 14 I assume a small amount of accretion occurs in the 15 reach of Wilson Creek through Conway Ranch, but for most of 16 its length it stayed dry if there was no water being 17 discharged from the power plant. 18 The following observations can be made about the 19 expected flows in the Mill-Wilson system if Los Angeles 20 Department of Water and Power or Mono Lake Committee's 21 proposals are implemented. First, without the successful 22 appropriation of the October through April water from the 23 Wilson system, DWP's proposal to dedicate its existing water 24 rights result in little or no flow in Mill Creek below the 25 County Road in the late summer, fall, and winter. 1130 01 The County Road, again, being down near Mono Lake. So, 02 in this reach here, from the bottomlands down to Mono Lake, 03 that reach would be dry under DWP's proposal just dedicating 04 its irrigation water right. 05 The testimony of Scott Stine elaborates the implication 06 of DWP's proposals for flows and waterfowl habitat in Mill 07 Creek. Even if DWP is successful with the appropriation of 08 the unused water in the October through April period, the 09 flows in Mill Creek below the County Road are very, very low 10 in September, from 4 percent to 44 percent of the impaired 11 flow at Lundy Reservoir. September is a key month for 12 migratory waterfowl in the Mono Basin, according to the 13 testimony of Fritz Reid. 14 Because of the assumed limited capacity of the return 15 ditch and the Conway diversion right, DWP's proposals result 16 in snow melt season flows that are from one-quarter to 17 one-half of the available Mill Week runoff. Upgrading the 18 ditch, return ditch, allows for greater flows in the snow 19 melt season. 20 Flows, however, will always be considerably less than 21 what is available at the Lundy Reservoir because of the 22 assumed limitation that DWP cannot dedicate more than 38 cfs 23 to Mill Creek. As a result, the flow is insufficient for 24 rewatering of the bottomland channels as Dr. Stine's later 25 testimony will discuss. 1131 01 A restriction in the return ditch capacity to 12 cfs 02 will reduce the flows in Mill Creek with the DWP proposals 03 whenever the available runoff is greater than 12 cfs in the 04 October through April period, or 24 cfs in the May through 05 September period. As can be seen, if you compare Scenario 4 06 with Scenario 1. But I guess at this point Scenario 4 is 07 not -- I won't refer to it. I just would observe that in a 08 normal year this occurs in 7 out of 12 months of the year. 09 Next, I want to talk about the water requirements for 10 the Conway and Thompson Meadows. A very rough estimate of 11 the water requirements for the Conway Ranch and Thompson 12 Ranch Meadows. Again, Conway Ranch. I am referring to this 13 as the Conway Ranch Meadow, both north and south of Wilson 14 Creek. And I am going to draw -- this map did not 15 originally have Thompson Ranch on it, so I am going to draw 16 it in here. This County Road is actually the very old 17 County Road. The current County Road comes in about here, 18 and so, the Thompson Meadow -- I am just going to draw a 19 circle here to roughly represent Thompson. 20 So that rough estimate of the water requirement can be 21 made by multiplying the irrigated acreage times the 22 consumptive use of the meadow grass, which is approximately 23 two feet and by doubling that amount to take in account the 24 relative inefficiency of flood irrigation, you can come up 25 with a rough water requirement. For 350 acres of Conway 1132 01 Ranch, the calculation results in an average growing season 02 requirement of about 4.5 cfs. That requirement can be 03 entirely supplied by the diversions from Virginia Creek, 04 accretion in the drainage used by the Virginia Creek 05 diversion and natural spring flow and accretion on the 06 property, and occasional peak snow melt season supplied from 07 the ephemeral drainages that drain onto the ranch. 08 In other words, no Mill Creek water is needed. In 09 fact, the Conway Ranch Meadow north of Wilson Creek, which 10 represents 85 percent of the total meadow acreage, has not 11 had any Mill Creek water for the last decade, relying 12 entirely on the Virginia Creek diversion and natural sources 13 on the property. 14 A similar calculation for the hundred acres of Thompson 15 Ranch currently irrigated results in an average growing 16 season requirement of about 1.3 cfs, which can be supplied 17 from a combination of Mill Creek, springs and seepage on the 18 edge of the property and runoff from the DeChambeau 19 Creek. I want to emphasize these are both rough estimates 20 of the irrigation water requirements; the actual amount 21 depends on non climatic factors, such as topography and the 22 water delivery system to the meadows. 23 The main point to appreciate is that it takes very 24 little or no water from Mill Creek to maintain viable 25 pasture on the Conway and Thompson Meadows. 1133 01 Next, I want to turn to my stream testimony. And 02 first, I want to compare the channel maintenance flows that 03 have been recommended over the years, and Attachment 10, 04 which is a blowup from my testimony, compares the channel 05 maintenance flows. I would note that DWP's current 06 recommendations are far greater than their 1994 07 recommendations, which were based upon analysis by Dr. 08 Beschta. 09 DWP's current recommendations are still guided by a 10 philosophy as expressed by Dr. Beschta, that providing the 11 impaired flows is sufficient for restoration. That 12 contrasts with a philosophy held by others, including the 13 stream scientists, Dr. Trush and Dr. Ridenhour and Chris 14 Hunter, that indicates that the unimpaired flow should be 15 used as a guide since those are the flows that provide the 16 habitat that we are trying to restore, in which we see 17 evolving today because of high flows in 1995, for example. 18 I do want to emphasize, though, that the stream 19 scientists' recommendations are not the unimpaired flows. 20 They are, in fact, substantially less than the unimpaired 21 flows in Rush Creek, as can be seen in my Attachment 11. 22 On Lee Vining Creek, their recommendations are, by 23 definition, the specified flow or whatever the peak flows at 24 the DWP facility, which is impaired flow. The Southern 25 California Edison reservoirs on Lee Vining Creek do not 1134 01 impair the flows nearly as much as on Rush Creek. So, that 02 is why the steam scientists were comfortable in stating the 03 recommendations in those terms. 04 This then shows the different recommendations in 05 comparing the cfs magnitude recommendations with the 06 unimpaired peak flows in the different years types, as well 07 as the number of days in which flows exceeded the 08 recommendations. The number of days that are recommended 09 are shown in the light characters and the bold are what the 10 unimpaired regime would provide. 11 Next, I want to address the inadequacy of DWP's 12 recommended channel maintenance flows. The DWP flows are 13 inadequate both in wetter and drier years. In wetter years 14 the magnitude that is recommended is less than what would 15 mobilize the bed and inundate the low terraces in nearly 16 every single year. With the DWP flows, this 500 cfs or 17 greater flow requirement, as testified to by Dr. Trush, has 18 the opportunity to occur only about eight percent of the 19 years, or the extreme year category. 20 (Ms. Forster enters.) 21 MR. VORSTER: With unimpaired flows, flows of 500 cfs, 22 occurred in about half of the years. The second issue in 23 wetter years is that a delivery mechanism is highly 24 problematic. The augmentation of Rush from Lee Vining Creek 25 must occur in 40 percent of the years with DWP's flow 1135 01 regime. There are five major problems with it, as 02 experienced in 1996 highlights. 03 First, is questionable reliability. Even if DWP fixes 04 the gates, that makes the conduit overflow, there is still a 05 problem with the Lee Vining diversion facility. It is not 06 responsive to the flow fluctuations that occur upstream of 07 it, and we saw that in 1996 when Southern California Edison 08 had to suddenly reduce their flows by a hundred cfs and 09 DWP's facility did not respond. And thus there was a 10 violation of D-1631. 11 The second issue is that DWP's plan does not establish 12 criteria for determining peak flows and diversions. The 13 criteria that they provided in the May 1966 letter and 14 subsequent conference calls were subsequently violated 15 during the augmentation procedure. The criteria 16 transmitted orally included forecasting and backcasting 17 procedures which may result in the diversion of the actual 18 peak or waiting so long that the flows dropped to D-1631 19 minimums and considerably delayed Rush peaks after the 20 natural flows have peaked. 21 Third, it requires coordination with Southern 22 California Edison, which by the admission of both Southern 23 California Edison and DWP, they could have done a better job 24 of coordinating. And the telemetry system that DWP relies 25 upon for transmitting data about Lee Vining Creek releases 1136 01 and diversions, actually had a breakdown right at the point 02 in time when flows were decreasing on Lee Vining Creek and 03 diversions occurring. 04 Fourth, the delays in Rush Creek peak occur because of 05 the augmentation. And, for example, in 1996 the peak flow 06 in Rush Creek occurred three weeks after the natural peak, 07 as shown in Attachment 8. 08 This line, here on Attachment 8, shows the unimpaired 09 peak occurring in early June and the actual peak occurred 10 three weeks later in late June, as a result of the 11 augmentation. 12 Fifth, it dramatically reduces the backend of the peak 13 hydrograph on Lee Vining Creek because it shaves off 50 14 percent or more of the flow and can cause Lee Vining Creek 15 to be at the D-1631 minimum flow in an extreme year. 16 The augmentation procedure invites controversy and 17 potential problems for the restoration of both Rush and Lee 18 Vining Creek. I maintain that only the repair of all the 19 involved facilities, establishment of written operating 20 criteria, careful monitoring of the creeks and diversions 21 with real time and publicly accessible data, and the 22 establishment and enforcement of penalties for violations, 23 will ensure the proper operation of the augmentation 24 procedure. 25 A permanent outlet from Grant avoids these problems and 1137 01 is the only reliable way to provide the recommended flows in 02 60 percent of the years recommended by the stream 03 scientists. 04 In drier years, there are a number of problems with 05 DWP's recommendations. They do not provide restoration 06 rationale for reducing the recommendations made by the ad 07 hoc flow subcommittee in over half the years. The only 08 rationale they provided is fear of export reduction, which, 09 as we will see, is possibly unfounded. 10 In over half of the years, the magnitude of the DWP 11 flow is less than the peak flows that nature would provide 12 in every single year, and often provides several times a 13 year. 14 With the existing facility, only one peak will occur. 15 In 40 percent of the years with the DWP regime, it is 16 less than the impaired flows, as Dr. Beschta testified, and 17 dramatically less than the unimpaired flows as I show in 18 Attachment 11. In these same 40 percent of the years, the 19 recommended peak will be a hundred cfs or less, which Dr. 20 Trush stated is necessary to attainment -- excuse me. In 21 the same 40 percent of the years, the recommended peak flow 22 will be a hundred cfs or less, while Dr. Trush stated that, 23 to attain the attributes of incipient mobility and bankful 24 flows on average once a year, the flows should be in the 25 range of 350 to over 400 cfs. 1138 01 MR. BIRMINGHAM: Excuse me, Mr. Caffrey. 02 CHAIRMAN CAFFREY: Mr. Birmingham. 03 MR. BIRMINGHAM: I wonder if Mr. Vorster could be 04 asked to restrict his commentary to the written testimony 05 that was submitted, as opposed to the testimony that the 06 Board has heard since the beginning of the hearing. 07 CHAIRMAN CAFFREY: Yes. You make a good point. The 08 direct should be honed to -- the oral testimony should be 09 honed to what you submitted in written fashion, Mr. 10 Vorster. Going beyond that is something that is reserved 11 for cross-examination, if you will. 12 MR. BIRMINGHAM: Well, in fact, sir, I think what he is 13 trying to do is rebut the testimony that has been submitted 14 by other witnesses during the oral presentation and their 15 cross-examination, and it is our perspective that that ought 16 to be reserved for rebuttal. 17 CHAIRMAN CAFFREY: Mr. Vorster, please try to stay on 18 your -- 19 MR. VORSTER: I will. 20 CHAIRMAN CAFFREY: -- actual, direct that you have 21 submitted. Your attorneys can get to the meat of some of 22 the other things through their techniques at a later time. 23 MR. VORSTER: I will not refer to Dr. Trush or Dr. 24 Beschta anymore in my direct testimony. 25 Lastly, I want to refer to export reduction that would 1139 01 occur with the different flow regime. In the transition 02 period, in particular, the ad hoc flow subcommittee flows 03 would cause Grant to drop slightly more in any one year, 04 approximately 2 to 4,000 acre-feet, but have no export 05 impact, according to the Grant Lake Operations and 06 Management Plan submitted by DWP. 07 With consecutive drier years, Grant would drop with 08 both the DWP flows and the ad hoc flows, but there would not 09 be any export reduction unless there was a minimum Grant 10 storage level, such as the D-1631 target minimum of 11 and a 11 half thousand acre-feet that needs to be maintained. 12 So, for example, if Grant started the 1987 to '92 13 drought sequence at its target operating level of 35,000 14 acre-feet, the ad hoc flows would maintain the Grant storage 15 above 11 and a half thousand acre-feet and, thus, would not 16 require an export reduction. A 1976-77 drought sequence 17 would cause Grant to drop slightly below the 11 and a half 18 thousand acre-feet level. So, an export reduction of about 19 a thousand acre-feet would be required to maintain Grant 20 above that level. 21 In the post transition period, the export reductions 22 with the stream scientists' October 1995 flows were 23 estimated using the Los Angeles Aqueduct Simulation Model, 24 or LAASM model, to be about 4 cfs or 3,000 acre-feet on an 25 average annual basis. I show those calculations in my 1140 01 comments that are provided on DWP's draft plan. 02 I estimate that with the ad hoc flows the export 03 reduction is on average of about 3 cfs per year, and even 04 with the current DWP flow recommendations, the export 05 reduction would be about 2 cfs on average per year. 06 That is it for my testimony. 07 CHAIRMAN CAFFREY: Thank you, Mr. Vorster. 08 Who is next? 09 MR. DODGE: Mr. Harrison. 10 CHAIRMAN CAFFREY: Mr. Harrison, good morning, sir. 11 MR. HARRISON: Good morning, ladies and gentlemen. My 12 name is Larry Harrison. I am a registered civil engineer in 13 the State of California, and I have been an independent, 14 consulting engineer since early in 1995 when I left 15 employment with PG&E. 16 Prior to becoming a consultant, I was employed by 17 Pacific and Gas Electric Company for a period of almost 32 18 years in various engineering capacities, including project 19 management, supervision, contract administration, field 20 engineering, siting settings, some design, licensing, 21 permits, and economic studies. The types of projects I've 22 worked on, all with PG&E, included hydroelectric, fossil 23 fuel, steam power plants, nuclear plants, liquefied natural 24 gas, and also sediment management, and erosion control 25 projects. 1141 01 I have authored more than a dozen papers on sediment 02 management, reservoir sediment management, and watershed 03 erosion control and watershed management. 04 My experience in Mono Basin is limited. I conducted 05 two field trips to the Mono Basin area to observe streams 06 and facilities. First trip in March of 1996, March 7th and 07 8th, and also again October 3rd and 4th in 1996. 08 While there, I observed tributaries to Mono Lake, 09 including Lee Vining Creek, Walker Creek, Parker Creek, Rush 10 Creek, Mill Creek, and Wilson Creek, and also various 11 structures of the L.A. Department of Water and Power and 12 Southern California Edison Company. I looked at the 13 diversion dams at Lee Vining, Walker, and Parker Creeks. I 14 looked at portions of the Lee Vining Conduit, Grant Dam, and 15 its appurtenances at Grant Lake, Mono Gate Return Ditch, 16 Lundy Power House and Tailrace Ditch, and also the Mill 17 Creek Return Ditch. 18 Also, on March 8, I participated in a field meeting 19 with Southern California Edison representatives, Messers 20 Bruce Almond and Joe Valoma [phon]. They told us about the 21 operations of the Lundy Power House and the Tailrace Ditch 22 and the flows, also, at the Mill Creek Return Ditch. 23 I have reviewed several DWP documents, including the 24 Mono Basin Stream and Stream Channel Restoration Plan, the 25 Grant Lake Operations and Management Plan, and the Mono Gate 1142 01 Number 1 Return Ditch Geotechnical Stability Evaluation. 02 I have been retained early in 1996 by the Mono Lake 03 Committee and California Trout, California Trout, 04 Incorporated, to do three specific tasks. And my 05 involvement in the program, Mono Lake, is limited to those 06 tasks. 07 One was to investigate options for providing 600 cfs 08 channel maintenance flows in Rush Creek. Second task would 09 be to investigate options for improving sediment passage at 10 Lee Vining, Walker, and Parker Diversion Dams. And the 11 third task area was to investigate options for increasing 12 flows in Lower Mill Creek by diverting up to 70 cubic feet 13 per second from Wilson Creek. 14 In regards to the first task, the Rush Creek channel 15 maintenance flows, I reviewed DWP's proposals for channel 16 maintenance flows, and I was also asked to recommend which 17 alternative would be the most reliable, and to estimate the 18 conceptual cost of the most reliable option. 19 DWP proposed four options. The first to install three 20 42-inch siphon pipes over the spillway or in the spillway at 21 Grant Dam. Pipes 2500 feet long with a capacity, total 22 capacity of 300 cfs. 23 I believe this option would be unlikely to pass mustard 24 before the Division of Safety of Dams in that it would block 25 the spillway. And there would be an alternative or burying 1143 01 the pipes in the spillway, but that is a tough job in the 02 type of terrain that is there and could jeopardize the 03 integrity of that spillway structure. So, I would not 04 recommend it. 05 Also, as an operating problem, there is very much 06 limited range of lake levels over which the siphon could be 07 operated. So it's problematic as to whether it would be 08 available when needed; and also siphons do have a notorious 09 reputation for not always working when you want them to 10 work. 11 The second proposal would be DWP was to install a 300 12 cfs pumping station in the lake, discharging through a 13 78-inch diameter pipeline, approximately 2,500 feet to Rush 14 Creek. This, I think, would be more reliable than the 15 siphons. It's direct. Looking at DWP's numbers, it is 16 extremely expensive, costing in excess of 14,000,000; and 17 that doesn't include operation and maintenance costs, nor 18 the cost to provide power to a large pump. There is not -- 19 it appears there is not sufficient existing power at the dam 20 to power such a large machine. 21 Also, it does not -- same as the siphons; it does not 22 provide any water to Reach 1 of Rush Creek on a continuous 23 basis. 24 The third proposal of DWP was to construct a new outlet 25 tunnel at the dam, ten-foot diameter tunnel, approximately 1144 01 1,700 feet long. This, obviously, could meet a number of 02 requirements. It is very flexible. It could provide 03 continuous flows to Rush Creek in the Reach 1 year round, 04 be highly reliable due to its simplicity. It would just be 05 control of an outlet gate or outlet valve that would control 06 the flows. Flows up to 600 cfs could always be met at any 07 season or time of year, despite what runoffs or without 08 coordination with any other facilities. 09 I chose this option as the one I would recommend as 10 most reliable out of the lot. I estimated the cost, a 11 conserve estimate would be approximately 8.3 million, 12 including engineering and overheads. And if we added 30 13 percent contingency to that, my cost estimate is 10.8 14 million. I believe with good project management and good 15 design and competitive bidding, those costs could probably 16 be shaved considerably, also. 17 The Los Angeles Department of Water and Power's 18 recommended proposal is to provide an upgrade of the Mono 19 Gate Return Ditch to capacity of 380 cfs and to supplement 20 those flows with releases from the Lee Vining Creek conduit 21 overflow structure. This, again, is more so than even the 22 -- proposals one and two would require close coordination of 23 operations of the Lee Vining conduit and I'll add the 24 additional factor of coordinating with high flows in Lee 25 Vining Creek. This option would not rewater Reach 1, and I 1145 01 think the reliability here is questionable. 02 Going to task two, which is sediment passage at Lee 03 Vining, Walker and Parker Creek Diversion Dams. DWP 04 proposes to draw down the water in the ponds during the 05 October through March season, which for the hydrology of 06 this watershed is the low flow season on these streams. And 07 then at three- to five-year intervals, to dredge the ponds 08 and place the sediment dredged on the stream banks 09 downstream of the ponds where it could be eroded by high 10 flows back into the stream, to be carried on down to provide 11 a continuum of sediment passage. 12 There is a flaw in this proposal, in that you don't 13 move much sediment low flows. There is very little sediment 14 comes into the ponds on low flows. I believe that such an 15 operation would cut a little ditch or gully through the 16 sediment in the ponds, and that is about all it would do. 17 It wouldn't really be very beneficial. 18 I have suggested three alternatives for improving upon 19 these plans. First alternative, simply take the basic 20 concept of drawdown flushing that DWP has proposed and 21 improve it to do the drawdowns during the high flow periods 22 on these streams in the spring, and drawdown only during the 23 period of time that the flows are very high. To accommodate 24 this, some new larger outlets may be needed at the dams. I 25 propose in doing some very rough backend of the envelope 1146 01 calculations; that's probably four 48-inch gates at sluice 02 gates at the Lee Vining Creek structure would be adequate to 03 carry, say, a five-year return flow through the sluice gates 04 and similarly at Walker and Parker, a 36-inch at Walker and 05 a 42-inch gate at Parker Creek would do the job. 06 I estimated the cost for these facilities to be 07 approximately $124,000 at Lee Vining Creek and 23,000 at 08 Walker Creek and $27,000 at Parker Creek. And, again, these 09 are very approximate back of the envelope-type 10 calculations. 11 A second alternative proposed would be the use of Iowa 12 vanes or similar things. The term "Iowa vane" is a patented 13 facility. There are other vanes that operate similarly that 14 have a little different shape. An Iowa vane is basically if 15 you can imagine one of the concrete barrier rails that the 16 highway department puts out in traffic, and they move them 17 around from one position to another, commonly called a 18 K-rail, is the highway terminology. But am Iowa vane is 19 something that looks similar to that. Maybe a little taller 20 and a little shorter in configuration. They are placed in 21 the stream and they create turbulences and vortices that, 22 basically, resuspend sediment and route sediment on through 23 channel sections, or particularly useful in front of intake 24 structures and such. 25 So, I guess, my testimony isn't here to give a lesson 1147 01 on Iowa vanes, but this is something to be investigating. I 02 have observed some interesting videos showing these vanes in 03 action, particularly in the modeling tests that were 04 conducted at Colorado State University for PG&E. I was 05 quite impressed with their efficiency in moving sediments 06 and extending flushing cones stream from reservoir outlets. 07 I think it is something that would be very economical to 08 install. If they are used, they would probably have a cost 09 in the order of 10,000 at the smaller ponds, and perhaps 10 $20,000 at the Lee Vining Creek ponds. They are -- I would 11 advise that an expert in this area, like Dr. Jacob Odgaard 12 from the Iowa Institute of Technology, be consulted on 13 something like this, to make recommendations. 14 A third alternative I looked at would be high flow 15 bypass channels. I put up a little cartoon here to look 16 at. Basically, route sediments around the ponds. Flow 17 being in this direction. This is the pond at the diversion 18 dam. You would have to install an upstream headworks, such 19 that it could divert high flows down that are diverted 20 around through the bypass channel, and perhaps this could be 21 adjusted through gates and weirs here that this structure, 22 to allow just the flows into the pond that are needed for 23 diversion to the Lee Vining Creek conduit. 24 So, basically, this is a scheme here for eliminating 25 -- looking at a cross section of pond, you see a level 1148 01 surface. Of course, the pond is what causes the sediment to 02 fall out and decrease the water velocity, the retention 03 time, the sediment can fall out, by putting the channel 04 around it. 05 The bottom dotted lines trace the profile of the 06 channel. What it's doing is just simply restoring the 07 gradient of the stream around the dam, bypassing the dam. 08 So whatever sediments are carried by the stream would simply 09 be carried through the channel on around the stream. 10 MR. FRINK: Mr. Harrison, so the record is clear, the 11 drawing that you are referring is Figure 1 to your -- 12 MR. HARRISON: Figure 1 from my testimony. 13 MR. FRINK: Your testimony was Mono Lake Committee 14 Exhibit 1. 15 Thank you. 16 MR. HARRISON: Looking at the cost of these options, 17 we are looking at, for Walker Creek and Parker Creek, I 18 estimated approximately $50,000 for each channel; for Lee 19 Vining Creek would be on the order of $250,000. These were 20 based on my estimate for a 50-year return flow, which I 21 extracted from one of the charts in DWP's documents of 110 22 cfs at Walker and Parker and 680 cfs at Lee Vining Creek. 23 Of course, this channel, a big part of the cost is riprap or 24 other armoring of the channel to make sure it is a stable 25 channel that doesn't erode during these high flows. 1149 01 The third task I was asked to review, and that was how 02 to move 70 cfs from either the tailrace channel at -- put up 03 another diagram here. 04 CHAIRMAN CAFFREY: While you are doing that, Mr. 05 Harrison, let me just remind you that there is an hour limit 06 on direct; and in this case, unless Mr. Dodge is going to 07 make a showing for more time, there is about 25 minutes 08 left. So you still have one more witness. I just want you 09 to be mindful of that. 10 MR. DODGE: I would advise Mr. Harrison that we are 11 fine. 12 MR. HARRISON: I will show this upper map here, which 13 is Figure 3 from my testimony, and showing an overview of 14 Conway. Some photographs I had that is not in the 15 testimony, just as a reference point, to help people orient 16 between the map and where things are actually at. 17 This is Highway 395 through the -- and this is the 18 Conway Ranch area. Lundy Powerhouse is over here. Mono 19 City is in this area right above the marker. Mill Creek is 20 right there on the other side of Mono City. Wilson Creek is 21 coming around this way. And, anyway, those are not nice 22 pictures; it doesn't tell a whole lot in detail. 23 But looking down on this area here, here is Mono City. 24 Lundy Powerhouse here. The upper blue is Wilson Creek 25 traced out, and the lower one is Mill Creek. 1150 01 I looked at two different alternatives for moving water 02 from this stream to this stream. I'm not arguing this is a 03 ditch or creek. This is definitely Tailrace Ditch down to 04 this point here from the powerhouse. I've eliminated the 05 idea of using improved ditches because of the porosity of 06 the soil in this region, excessive leakage. And I looked at 07 the pipelines, solicited prices on pipe -- plastic, 08 concrete, and steel pipe. Concrete pipe is much the 09 cheaper. From hydraulic calculations I calculated, I 10 estimated the size of pipe that was going to be needed to 11 carry from this point to this point; that is, from Wilson 12 Creek to Mill Creek. Also -- 13 MR. DODGE: You said from Mill Creek to Mill Creek. 14 MR. HARRISON: I'm sorry. 15 MR. DODGE: You meant from -- 16 MR. HARRISON: From Wilson Creek to Mill Creek. 17 MR. DODGE: From the Lundy Powerhouse to Mill Creek? 18 MR. HARRISON: From the Lundy Powerhouse to Tailrace 19 Ditch, to Mill Creek. And as an alternative, we looked at a 20 pipeline from east of Conway Ranch from Wilson Creek to 21 Mill Creek, at a point just to the east of Mono City. Mono 22 City being here. 23 Where this line here -- I looked at two different 24 options. One was to follow the existing ditch alignment 25 throughout, which included this little loop of green, back 1151 01 around; the ditch follows the contour over here. That was 02 about 6,000 feet long. That option would have cost 03 approximately $878,000, according to my estimate. And that 04 was a 42-inch reinforced concrete pipeline. 05 The other option was to cut off this loop by putting in 06 an inverted siphon across this swale here to Lundy Road. 07 That would reduce the length of pipeline to 3,800 feet. And 08 through that reduced length, we can also reduce the size to 09 36 inch. That option would cost on the order of $521,000. 10 The other two options over here -- well, I looked at 11 two over here. The B-1 and B-2. B-2 is shown. B-1 is this 12 little green line change. Instead of this direct route into 13 the Mill Creek, we would angle down slope, across slope 14 here, and deliver water to Mill Creek, perhaps, a couple 15 thousand feet upstream from where the other delivery point 16 would be. This route is 11,000 to 12,000 feet long. 17 Requires a 42-inch pipeline. And either of these options 18 would cost on the order of $2,000,000. 19 Obviously, if you are going to make a selection on the 20 basis of cost, option A-2, which is 3,800 feet of pipeline 21 here, is the choice. 22 I think that about summarizes my testimony. 23 CHAIRMAN CAFFREY: Thank you, Mr. Harrison. 24 Dr. Stine. 25 DR. STINE: Yes, thank you. You know who I am, and 1152 01 what my qualifications are. I will be very brief. 02 I have two points that were addressed in my direct 03 examination for Mono Lake/Audubon, and, as Mr. Dodge asked 04 me to do, I will confirm this is Exhibit 5. I really can 05 dispense with the first of these very, very quickly. 06 There was a nomenclature upheaval about what to call 07 the Rush Creek Reach immediately above Biggest Bend. There 08 was some confusion in there for a while. My understanding 09 now is that that confusion has been completely cleared up, 10 and that it seems everyone is on board to rewater this 11 particular reach immediately above Biggest Bend on Rush 12 Creek. That has become, then, a non problem. 13 The second point, almost equally as brief, regards 14 sediment passage on Parker and Walker Creeks. Larry 15 Harrison has just addressed this. My concern here is that 16 there seems to have been forgotten in all of these 17 discussions one of the conditions that benefited fishery on 18 Rush Creek, and that is the springs that existed immediately 19 below the Narrows on Rush Creek, on the west side of Rush 20 Creek, the so-called at Vestal Springs. They have provided 21 fish habitat. They were one of the elements that Elden 22 Vestal said contributed tremendously to the quality of the 23 fishery through the Rush Creek bottomland. 24 Peter Vorster and I did an analysis, a historical 25 analysis, a couple years back and produced a report on this. 1153 01 And our conclusion, I think quite clearly, was that the 02 springs, which are natural and which have been there for 03 many hundreds of years, were lost because the distributary 04 channels on the Parker and Walker Creek fans were dewatered 05 at the time that, or shortly after the Department of Water 06 and Power put in their diversion facilities on those two 07 streams. 08 Distributary channels on alluvial fans are common. 09 Like in a delta situation, a stream hits an alluvial fan and 10 it tends to break into several channels. There were two 11 channels on Parker Creek. There were three channels on 12 Walker Creek. In both cases, right up at the apex of the 13 fans on the two streams. I would argue simply that if we 14 are going to do a bypass channel similar to what Mr. 15 Harrison showed as his alternative three, I believe it was 16 for Parker and Walker Creeks, that it would be possible to 17 rewater some of these channels, really at the same time, 18 with little more effort. 19 The idea here would be to get water into these 20 distributary channels and lose it to the ground. They were 21 on the earliest maps from the 1880s and '90s, withering 22 streams. So, simply get water into those channels, lose it 23 to the ground. It then reappears down in the Rush Creek 24 bottomland. 25 And I think that concludes my testimony. Thank you. 1154 01 CHAIRMAN CAFFREY: Thank you, Dr. Stine. 02 Anything else, Mr. Dodge, from this panel? 03 MR. DODGE: Nothing else. 04 CHAIRMAN CAFFREY: Thank you, sir. 05 We will then go to cross-examination, and we will begin 06 with U.S. Forest Service. 07 Is there anyone here for U.S. Forest Service that 08 wishes to cross-examine these witnesses? 09 No one responding -- 10 MS. BELLOMO: Chairman Caffrey. 11 CHAIRMAN CAFFREY: Yes, Ms. Bellomo. 12 MS. BELLOMO: Can we go off the record for a moment? 13 Mr. Bellomo wanted to make a statement. I think just speak 14 briefly and, perhaps, off the record in case any party had 15 any questions about it being proper to be in the record. 16 MR. BIRMINGHAM: I have a question about it. I have a 17 question about Mr. Bellomo making a statement to the Board 18 at all. He is going to be a witness, and if he is going to 19 offer testimony, he can offer at that time. 20 CHAIRMAN CAFFREY: Thank you, Mr. Birmingham. 21 Let me say that we had an opportunity for policy 22 statements. 23 MS. BELLOMO: This wouldn't be a policy statement. This 24 is a factual statement, but we can wait. That is fine. 25 CHAIRMAN CAFFREY: That would be more appropriate than 1155 01 going on and off the record. I am not sure what the 02 justification for something like that to be. I would prefer 03 that we keep everything on the record. 04 Bureau of Land Management, anyone here representing the 05 Bureau? 06 Is that you, Mr. Russi? 07 MR. RUSSI: I made it. 08 CHAIRMAN CAFFREY: I know you were here earlier. You 09 look like a familiar face. Good to see you. Welcome back. 10 MR. RUSSI: Thank you. I just had a few questions here 11 this morning, Mr. Chairman. 12 CHAIRMAN CAFFREY: Please proceed. You are aware of 13 the rules on cross-examination? 14 MR. RUSSI: I will do my best. 15 CHAIRMAN CAFFREY: In terms of time and scope of your 16 questioning? Quite a bit different than what is allowed in 17 recross. 18 ---oOo--- 19 CROSS-EXAMINATION 20 BY THE BUREAU OF LAND MANAGEMENT 21 BY MR. RUSSI 22 MR. RUSSI: My first questions are to Mr. 23 Vorster. And I am going to ask that we refer to Mr. 24 Vorster's direct testimony, R-NSC/MLC-7, on Page 2. And I 25 am looking at the first full paragraph, and I am going to 1156 01 read a couple of sentences here, about the middle of the 02 paragraph. 03 And it begins: 04 The MLC proposal is to restore close to 05 natural flows in Mill Creek, impaired by 06 Lundy Reservoir, in order to restore the 07 waterfowl habitat in Mill Creek to the level 08 recommended by the waterfowl scientists and 09 to restore a naturally functioning stream 10 ecosystem and bottomlands. (Reading.) 11 Continuing: 12 MLC proposes to return all of the water to 13 Mill Creek, except that which is necessary to 14 maintain Wilson Creek riparian corridor 15 through Conway Ranch and to maintain the 16 Simis and Thompson Ranch meadows and trees. 17 (Reading.) 18 Mr. Vorster, how was it determined that all of the 19 water except for the small amounts you reference for Wilson 20 Creek and irrigation flows for Simis and Thompson Ranch 21 meadows and trees, how was it determined that all of the 22 water was necessary to restore the waterfowl habitat in the 23 stream ecosystem and bottomlands for Mill Creek. 24 MR. VORSTER: I am not a waterfowl scientist. As I 25 stated in my testimony, as you just read, I went by the 1157 01 recommendations of the waterfowl scientists, as stated in 02 the waterfowl plans, that said that all or close to all of 03 the water needed to be restored to Mill Creek in order to 04 restore the waterfowl habitat. 05 MR. RUSSI: If we can go to Page 3, please, part d, on 06 that page, and I will read the first two sentences. It 07 says: 08 A release of 2 cfs from April through 09 November to maintain Wilson Creek riparian 10 corridor through Conway Ranch. (Reading.) 11 Then it says: 12 Although the exact amount required is not 13 known, I have been advised by Diana Jacobs, 14 riparian specialist for the State Lands 15 Commission, that the release needs to be 16 enough to keep the root zone of the plants 17 moist. (Reading.) 18 In your discussions with Dr. Jacobs, what do you mean 19 by "root zone"? 20 MR. VORSTER: What I mean by "root zone," as was 21 advised to me by Diana Jacobs, and so I think that she would 22 be the best person to answer it, but the way I understand it 23 would be the area in the Wilson Creek bed itself, that the 24 roots have access to, would be kept moist. 25 MR. RUSSI: Have you or Dr. Jacobs measured the extent 1158 01 of the root zone in Wilson Creek? 02 MR. VORSTER: I have not measured the extent of the 03 root zone. I can't speak for Dr. Jacobs. 04 MR. RUSSI: I would like to continue down; the next 05 sentence says: 06 I believe that a release of 1 cfs would be 07 sufficient to keep the root zone moist 08 through the Conway Ranch because Wilson Creek 09 gains water as it flows east of Highway 395. 10 (Reading.) 11 How much water have you measured in Wilson Creek 12 gaining east of Highway 395? 13 MR. VORSTER: I myself have not made any measurement. 14 I would -- my observations are limited to just visual 15 observations and measurements that were taken by other 16 people, including yourself. And there were measurements 17 taken by EBASCO when they were doing investigation in that 18 area. 19 So, the amount of gain in the reach of Wilson Creek 20 below Highway 395 is -- I conservatively estimate it at 1 21 cfs. In the Conway Ranch Environmental Impact Report that 22 was issued in the late 1980s, there was also quite a 23 discussion of the gains in Wilson Creek. And in those 24 discussions, they indicated considerably more gain than I 25 estimated. I was being extremely conservative when I said 1 1159 01 cfs. I think in those reports they talked about 3 to 5 cfs. 02 MR. RUSSI: Are you aware of what time of year those 03 measurements were taken to establish 3 to 5 cfs gain? 04 MR. VORSTER: I can't remember off the top of my head, 05 but I think it was -- they did do a monthly water balance. 06 And I think they showed greater gains during the irrigation 07 season and smaller gains in the winter season. I would have 08 to refer to those documents to fully answer your question. 09 MR. RUSSI: Well, I guess I need to go back and ask you 10 then if there is apparently some uncertainty here about the 11 amount of water that is available east of Highway 395 in 12 Wilson Creek. And that the root zone itself, to your 13 knowledge, has not been measured, if I am stating this 14 correctly, how your statement that you believe that a 15 release of 1 cfs would be sufficient to keep the root zone 16 moist is within the context of known information. 17 MR. VORSTER: As I stated in my testimony, the exact 18 amount required is not known. There is a lot of uncertainty 19 associated here. What I was doing was using my professional 20 judgment, based upon my own observations and observations of 21 other people to make those estimates. There is a lot more 22 work that needs to be done. But I do believe that a small 23 amount of water is necessary to keep the root zone moist in 24 Wilson Creek. 25 MR. RUSSI: Do you believe it would be beneficial to 1160 01 understand the soil and water dynamics of Wilson Creek 02 Channel in order to come up with an appropriate flow in 03 Wilson Creek on an annual situation? 04 MR. VORSTER: Yes. More information is obviously 05 needed. What the exact information is, I would defer to 06 people like Dr. Jacobs and yourself and other specialists in 07 that field. 08 MR. RUSSI: I want to go to Page 4 right at the top, in 09 your testimony. In the very first complete sentence you 10 state: 11 Downstream of the highway, Mill Creek loses 12 water to the groundwater system down to the 13 stream reach just below County Road. 14 (Reading.) 15 How much water have you measured being lost? 16 MR. VORSTER: Again, I have not done any current 17 metering measurements myself. I have been in the area quite 18 a bit over the last 20 years, and recently in the last 19 couple years I have taken the effort to estimate flows above 20 395, estimate flows down at the County Road. Something I do 21 routinely. Plus in the Mill Creek -- in that stream 22 evaluation report that Department of Fish and Game released 23 in the past year has some measurements as well. Has some 24 measurements in that case. 25 There is also visual measurements -- visual 1161 01 observations that the Department of Water and Power has 02 taken at Mill Creek at the County Roads. So, there is quite 03 a bit of visual observations and a few stream flow 04 measurements that were taken to give us a feeling for what 05 the losses are, which are considerable. 06 MR. BIRMINGHAM: I am going to object and ask that the 07 answer be stricken on the grounds it is non responsive. 08 CHAIRMAN CAFFREY: I apologize to the parties. I was 09 distracted. Could somebody repeat what happened for me, 10 please? 11 MR. RUSSI: I asked the question: How much water is 12 lost in the reach of stream downstream of Highway 395 to the 13 County Road? 14 MR. BIRMINGHAM: Actually, I would ask that the Court 15 Reporter go back and read the question that was asked. 16 CHAIRMAN CAFFREY: Thank you. 17 Would you read the question? 18 (Record read as requested.) 19 MR. BIRMINGHAM: My objection is that Mr. Vorster did 20 not answer that question. He answered a completely 21 different question. I believe the answer to that question 22 is, "I haven't measured any." If that is his answer, that 23 is what he should state. And I ask that the remainder of 24 the answer to the non asked question be stricken. 25 CHAIRMAN CAFFREY: Please read the remainder of that. 1162 01 (Record read as requested.) 02 MR. DODGE: I would submit, Mr. Chairman, that all of 03 that answer is responsive to the general subject matter of 04 the question which was losses in a particular section of 05 stream. 06 CHAIRMAN CAFFREY: Thank you, sir. 07 Mr. Birmingham. 08 MR. BIRMINGHAM: The specific question was: How much 09 losses have you measured? And Mr. Vorster answered that in 10 "I have not measured any." That ought to be -- we are going 11 to be here for weeks if every witness responds to 14 12 different questions in an answer to a very specific 13 question. 14 CHAIRMAN CAFFREY: I wouldn't say weeks, but maybe an 15 extra couple of days, Mr. Birmingham, which is perfectly all 16 right with me. 17 Let me just say to you that I admonished the witnesses 18 earlier today, before we got started. I am going to do it 19 again. I am going to leave this statement in the record, so 20 will my admonition be in the record. I am going to tell Mr. 21 Vorster, and any other witnesses that are going to appear 22 today, that you need to be brief and crisp. And I wish that 23 you do not take license and dissertate on anything that 24 could be remotely related to the questions. So, please be 25 very precise. 1163 01 And please get on the questioning as briefly and 02 quickly as you can, sir. 03 MR. RUSSI: As a follow-up to your statement there in 04 that first complete sentence, have you measured loss in the 05 reach continuously, on an annual cycle, or do you know, does 06 the reach change in its loss of water over an annual cycle? 07 MR. VORSTER: As I stated before, my observations are 08 limited to visual observations, and not measurements. So, 09 if your specific question is measurements with the current 10 meter, I have not done that myself. I have visual 11 observations. 12 MR. RUSSI: Thank you. 13 Going down to the bottom of the page, on Page 4, 14 please, under part g, and I am going to refer to the second 15 sentence there. You state: 16 A combination of losses in and diversions 17 from Wilson Creek cause it to periodically to 18 dry up downstream from the Conway Ranch. 19 (Reading.) 20 Skipping down one full sentence, you continue: 21 No water was diverted from Mill Creek in the 22 late fall and winter from 1962 to 1968 so 23 Wilson Creek did not have a supply from the 24 power plant. (Reading.) 25 Continuing with the last sentence: 1164 01 A small amount of accretion occurs in the 02 reach of Wilson Creek through the Conway 03 Ranch, but for most of its length it stayed 04 dry. (Reading.) 05 What do you mean by "most of its length"? 06 MR. VORSTER: I am talking about Wilson Creek as we 07 now define it, from the power plant all the way down to Mono 08 Lake. We can get the map, but it's -- so if you take that 09 -- the dot here on Exhibit R-SLC/DPR-424 is the Lundy 10 Powerhouse. Wilson Creek travels through this whole reach, 11 as we now call it. When there is no water discharging from 12 the powerhouse it is my judgment that the accretion in this 13 reach might keep this wet, but clearly all of this would be 14 dry. 15 MR. DODGE: Can you spell out for the record what you 16 mean by "this"? 17 MR. VORSTER: I am sorry. The reach from approximately 18 the Conway Ranch boundary all the way down to Mono Lake. 19 So, looking at this map, I would say that, in terms of 20 stream mileage, is most of the length or a majority of the 21 length of Wilson Creek would be dry if there was no water 22 discharging from the power plant. 23 MR. RUSSI: Continuing with my question, then, from 24 1962 to 1968, you're stating that the stream would have been 25 dry. You're making this determination how? 1165 01 MR. VORSTER: Again, because there was no discharge 02 from the power plant, the only source of water for Wilson 03 Creek would be its natural runoff. As we have testimony 04 from a number of people, including Dr. Stine, that indicates 05 that Wilson Creek is an ephemeral stream and occasionally 06 would get runoff from its natural drainage. But that is a 07 very occasional event. 08 MR. RUSSI: Thank you. 09 I have one question for Mr. Harrison, please. 10 During your recent oral testimony here, Mr. Harrison, 11 you stated that there is excessive leakage. I think you 12 were referring to water loss in Wilson Creek when you were 13 discussing that drainage. And I would like you to tell us 14 how you determined that there was excessive leakage in 15 Wilson Creek? 16 MR. HARRISON: Well, two factors led me to the 17 conclusion that there was excessive leakage. In our 18 discussions in field we had in March with Southern 19 California Edison, Mr. Bellomo and Mr. Almond both, I think, 20 mentioned that the ditches lost a lot of water en route, 21 particularly what is now called Wilson Creek lost water and 22 also the Mill Creek Diversion Ditch. Also, my observations 23 of the character of the soils in the area are very coarse, 24 loose, open drained, pretty much lacking in fine materials. 25 Though, my experience is that with soils as these, they are 1166 01 very permeable soils. So a lot of water would percolate 02 into the soils unless it was a lined ditch with some 03 impermeable material. 04 MR. RUSSI: Did you walk the entire Wilson Creek from 05 its point of diversion down to Highway 167 at the time you 06 were down there? 07 MR. HARRISON: We didn't walk the entire length. We 08 did walk a length. Let me show you on the map, here. 09 Approximately this point here, we walked down to this 10 area and back up over, around here. Approximately to the 11 County Road, just short of the County Road. We walked and 12 then we accessed this area in here on the County Road. 13 MR. RUSSI: Did you observe Wilson Creek at all 14 upstream of the Conway Ranch property to its point of 15 diversion? 16 MR. HARRISON: Wilson Creek upstream of the -- what do 17 you call the point of diversion sir? 18 MR. RUSSI: Where the ditch of Wilson Creek comes off 19 the tailrace ditch of the power plant. 20 MR. VORSTER: I accompanied Mr. Harrison, so if I may 21 jump in. 22 MR. RUSSI: Go ahead. 23 MR. VORSTER: This is right here where we had -- the 24 junction of the return ditch with the tailrace is where we 25 had the meeting with Bert Almond and Joe Bellomo. I think 1167 01 we investigated Wilson Creek just downstream of that. And 02 the return ditch itself. 03 MR. HARRISON: Actually, I don't recall we looked at 04 this much at all, in this reach, from here to Conway Ranch. 05 We did -- we are standing here and visual observations, of 06 course, for several hundred feet from this point. We also 07 walked a short distance down the Mill Creek Diversion 08 Ditch. 09 MR. RUSSI: So, in your reference here, you are saying 10 that you were at the point of diversion of Wilson Creek with 11 the tailrace ditch from Lundy Power Plant, but apparently 12 you were not at any point along that stream down to the 13 Lundy Power Plant road and east of that point, across 14 Highway 395, to the Conway Ranch property; is that true? 15 MR. HARRISON: That is right. 16 MR. VORSTER: We just looked down here. We did look at 17 the return ditch around the Lundy Road. So, we looked at 18 that. But in terms of Wilson Creek, itself, I think we 19 didn't walk very far down it from the diversion point 20 there. 21 MR. HARRISON: Of course, I have crossed it on the 22 highway several times, looked up and down it also. 23 MR. RUSSI: Just for the record, and so I am clear on 24 this, your statement about the soil type and the loss of 25 water in the drainage is in reference to that portion of the 1168 01 drainage downstream from Conway property, primarily? 02 MR. HARRISON: No. I think my reference about soil 03 percolation and loss of water to the soils is also 04 applicable to the Mill Creek Diversion Ditch region, as well 05 as this area downstream of Conway Ranch. 06 MR. RUSSI: Thank you. 07 That's all. Thank you, Mr. Caffrey. 08 CHAIRMAN CAFFREY: Thank you, Mr. Russi. 09 Ms. Bellomo, do you have questions of these witnesses? 10 MS. BELLOMO: Yes, I do. Thank you. 11 MR. DODGE: Would this be a good time to take a morning 12 break? 13 CHAIRMAN CAFFREY: If you will indulge me, Ms. Bellomo, 14 I think a good suggestion. Let's take about ten minutes. 15 Thank you. 16 (Break taken.) 17 CHAIRMAN CAFFREY: On the record. 18 Ms. Bellomo, your turn to cross-examine the witnesses. 19 You're on Mr. Vorster. 20 MS. BELLOMO: Good morning. 21 CHAIRMAN CAFFREY: Welcome back. 22 MS. BELLOMO: Thank you. 23 ---oOo--- 24 // 25 // 1169 01 CROSS-EXAMINATION 02 BY PEOPLE FOR MONO BASIN PRESERVATION 03 BY MS. BELLOMO 04 MS. BELLOMO: Good morning, gentlemen. I just have a 05 couple questions to start off for you, Mr. Harrison. 06 I understood from your testimony on cross-examination, 07 I believe that you have made only two trips to the Mono 08 Basin; is that correct? 09 MR. HARRISON: That is correct. There were other 10 personal trips. I have been through the area. 11 MS. BELLOMO: How long did you spend in the Mono Basin 12 on each of those trips that you made, related to your 13 testimony in this case? 14 MR. HARRISON: Better part of two days on each trip. 15 MS. BELLOMO: What locations did you visit on each 16 trip? 17 MR. HARRISON: I testified to the locations I visited. 18 I visited the diversion points at Lee Vining Creek, Walker 19 and Parker Creek, Rush Creek area of the Grant Dam and the 20 Mono Gate Return Ditch, and Mill Creek in the vicinity of 21 Lundy Powerhouse, and also Wilson Creek downstream of Conway 22 Ranch, and Mill Creek at other points where it crosses the 23 County Road and the highway. 24 MS. BELLOMO: Can you tell me when the visits were, 25 these two visits? 1170 01 MR. HARRISON: One was March 7th and 8th, 1996. The 02 other was October 3rd and 4th, 1996. 03 MS. BELLOMO: You described various methods of 04 returning the water to Mill Creek from the Lundy tailrace, 05 correct? 06 MR. HARRISON: Yes. 07 MS. BELLOMO: That includes siphoning and use of 08 pipelines, and were there other methods? 09 MR. HARRISON: Well, I lightly considered a ditch, but 10 considering what I was informed about the leakage, loss of 11 water in the various ditches, and what I observed in the 12 loss of water in Mill Creek downstream area, I discarded the 13 idea of using ditches and went to pipelines as being a sure 14 method of conveying water without loss. 15 MS. BELLOMO: So, am I correct, that you -- what you 16 were doing was an engineering analysis of what would it take 17 to to perform such a project? 18 MR. HARRISON: Yes. 19 MS. BELLOMO: Is it your understanding that the purpose 20 of this engineering project would be to return Mill Creek to 21 its natural condition? 22 MR. HARRISON: I can't really say -- nothing 23 considered whether it would return to a natural condition or 24 not. It would obviously approach more natural conditions 25 than are there now. 1171 01 MS. BELLOMO: You testified about meeting with Mr. 02 Bellomo and another representative of Southern California 03 Edison during one of your field trips, correct. 04 MR. HARRISON: Yes. 05 MS. BELLOMO: Did you meet with Mr. Bellomo on only one 06 occasion? 07 MR. HARRISON: Yes. 08 MS. BELLOMO: Am I correct that when you referred -- 09 you referred in your testimony to walking on various areas 10 of Wilson and Mill Creek, that you were not referring to 11 being with Mr. Bellomo during those times? 12 MR. HARRISON: No. I was with Mr. Bellomo at the 13 Lundy Powerhouse tailrace area and the upstream portion of 14 the Mill Creek Diversion Ditch, or return ditch. 15 MS. BELLOMO: The return ditch. 16 Thank you. No more questions for you right now. Thank 17 you. 18 Mr. Vorster, turning to your testimony at Page 2. In 19 the first full paragraph, the middle of the paragraph, you 20 state: 21 The Mono Lake Committee proposal is to 22 restore close to natural flows. (Reading.) 23 You go on to describe the proposal. My question is: 24 Is that currently the Mono Lake Committee position? 25 MR. VORSTER: It is my understand that is their 1172 01 position, yes. 02 MS. BELLOMO: And you indicate in that second half of 03 that first full paragraph that your -- the Mono Lake 04 Committee proposal would provide -- let me rephrase this. 05 I will just quote from your testimony. You state: 06 The Mono Lake Committee proposes to return 07 all the water to Mill Creek except that which 08 is necessary to maintain the Wilson Creek 09 riparian corridor through Conway Ranch. 10 (Reading.) 11 Can you tell me how many cfs you are referring to 12 there? 13 MR. VORSTER: In the testimony that I provided I used 14 number of 2 CFS from April through November. 15 MS. BELLOMO: Are you proposing a dedicated water right 16 to Wilson Creek of that amount? 17 MR. VORSTER: Can you repeat the question again? 18 MS. BELLOMO: Are you proposing that there should be a 19 dedicated water right? 20 MR. VORSTER: I am not making that proposal right now. 21 You have to understand this is the Mono Lake Committee 22 proposal. I was doing what they told me to do, so I am not 23 making the proposal. 24 MS. BELLOMO: Is the Mono Lake Committee making such a 25 proposal? 1173 01 MR. VORSTER: I don't know. 02 MS. BELLOMO: From what you just said, I take it that 03 the Mono Lake Committee is not proposing a year-round flow 04 of 2 CPS in Wilson Creek; is that correct? 05 MR. VORSTER: At the current time, the Mono Lake 06 Committee proposal consists of making a release of 2 cfs 07 from April through November to maintain the Wilson Creek 08 riparian corridor. So I guess the answer to your question 09 is, no, it is not a year-round. 10 MS. BELLOMO: Would a 2 cfs flow in Wilson Creek from 11 April through November be sufficient to maintain the 12 self-sustaining wild brown trout fishery that is in Wilson 13 Creek? 14 MR. VORSTER: I don't know. I am not a fisheries 15 expert. 16 MS. BELLOMO: I have heard your testimony earlier 17 today, that, in your opinion, if there is no release from 18 the Lundy Powerhouse, then Wilson Creek dries up below 19 Conway Ranch; is that correct? 20 MR. VORSTER: That's correct. Through Conway Ranch 21 there is a gaining reach there so there would probably be a 22 little bit of water through there. 23 MS. BELLOMO: How much are you estimating would be in 24 Wilson Creek if no water was released from the powerhouse 25 source between -- well, after November and up to April? 1174 01 MR. VORSTER: Downstream of the tailrace through Conway 02 Ranch, it would be a small residual flow; you know, pools in 03 the Upper Reach, maybe, set up a little flow through Conway 04 Ranch, and then no surface flow below Conway Ranch. 05 MS. BELLOMO: Do you have an estimate of how much flow 06 this small amount would be in Conway Ranch. 07 MR. VORSTER: As I testified, I think it would be -- I 08 conservatively estimate through Conway ranch it could be 1 09 cfs, might be. I think Terry Russi made some measurements 10 this past fall that indicated the gain was about 2 cfs. So, 11 depending on the time of the year and the type of water 12 year, it would be a small amount of flow. 13 MS. BELLOMO: You didn't do any analysis to support 14 this opinion; is that correct? 15 MR. VORSTER: Other than what I testified to, looking 16 at available documents, including the Conway EIR, my own 17 visual observations, talking to Terry Russi, talking to 18 locals in the area. 19 MS. BELLOMO: What documents have you looked at that 20 would provide us with any insight into how much water would 21 be in Wilson Creek between November and April if you weren't 22 releasing any water from the powerhouse? 23 MR. VORSTER: There are no documents that go 24 specifically to that question. 25 MS. BELLOMO: You indicate on Page 2 that the Mono Lake 1175 01 Committee proposes to accomplish its plan through the 02 purchase and dedication of the Conway Ranch water right, 03 among other things. 04 Do you see where I am reading in your testimony? 05 MR. VORSTER: Yes. 06 MS. BELLOMO: My question is: Is it the Mono Lake 07 Committee's position that all of the Conway Ranch water 08 right should be dedicated to Mill Creek? 09 MR. VORSTER: I don't know. You have to ask the Mono 10 Lake Committee. I am taking their proposal as they gave it 11 to me and modeling it for the purpose of this testimony. 12 And my understanding is that it would be the purchase 13 and dedication of Conway Ranch water rights and, for the 14 purpose of the modeling, it was the entire amount. 15 MS. BELLOMO: Are you aware of any testimony that has 16 be presented by the Mono Lake Committee which would clarify 17 the question I just asked, as to whether the intention is to 18 dedicate all of the Conway water right to Mill Creek? 19 MR. VORSTER: I am not aware of any testimony in this 20 proceeding. The only testimony that Mono Lake Committee has 21 provided is what has been submitted by the panelists. 22 MS. BELLOMO: Mr. Harrison, you, and Mr. Stine? 23 MR. VORSTER: That's correct. 24 MS. BELLOMO: When you say the Mono Lake Committee 25 proposes to accomplish its goals through the purchase and 1176 01 dedication of the Conway Ranch water right, does the Mono 02 Lake Committee plan to purchase the Conway Ranch water right 03 itself? 04 MR. VORSTER: If I understand your question, do you 05 mean purchase the Conway Ranch water right separate from the 06 land; is that -- 07 MS. BELLOMO: Well, let's start with that, then. Does 08 the Mono Lake Committee intend to purchase the Conway Ranch 09 with its water right? 10 MR. VORSTER: Actually, I don't know what the Mono Lake 11 Committee intends to do on any details or specifics on 12 that. Again, that is question for the Mono Lake Committee. 13 MS. BELLOMO: Does the Mono Lake Committee have any 14 position that they've communicated to you, as their expert 15 witness, regarding how they propose to have the Conway Ranch 16 water rights purchased? 17 MR. DODGE: Mr. Chairman, I would raise a question as 18 to the relevance of this line of questioning. I mean, the 19 proposal is the proposal. 20 CHAIRMAN CAFFREY: Ms. Bellomo. 21 MS. BELLOMO: I think it is entirely relevant to pursue 22 the feasibility of the proposal that is being put forth by 23 one of the parties here. And a major element of this 24 proposal is dedicating these water rights. I think I should 25 be allowed to probe whether the proponent of the proposal 1177 01 actually has any idea whether it is feasible or not. 02 CHAIRMAN CAFFREY: Well, the questions do seem somewhat 03 repetitious as what may be obvious from what is already in 04 the record and what is direct. But I am not going to make 05 that judgment. But I will observe that you're asking a 06 number of questions with regard to the intent of the Mono 07 Lake Committee, and Mr. Vorster has continuously, I think, 08 made it clear that he doesn't know how to answer specific 09 policy questions because he is just modeling what they asked 10 him to model. Maybe we can all stipulate to that. 11 Why don't you proceed and let's see where you are 12 taking us. We will hear a little bit more, if you've got 13 more. 14 MS. BELLOMO: The table that you provided in 15 Attachments 2a through 4f in your testimony set forth 16 historic data, which, as I recall, is from 1950s and 1960s; 17 is that correct? 18 MR. VORSTER: Yes. The dry year is 1960; the normal 19 year is 1951; and the wet year is 1952. 20 MS. BELLOMO: My first question for you is: Why did 21 you rely on data that is 30 and 40 years old? 22 MR. VORSTER: I relied on that data, not because it 23 was old, because I wanted to get represented hydrologies. 24 In other words, what was nature providing, what was the 25 runoff, and that was the main intent there. And also, to 1178 01 get what I consider representative years. One in ten dry 02 year, one in ten wet year, and a normal year. And those 03 years lent themselves to that representation. 04 In looking at what the flows and diversions in the 05 ditches were in those years and comparing it to what has 06 occurred recently, it was close enough that I felt, in terms 07 of diversions into the ditches, that it was fairly 08 representative. 09 Ideally, the next step would be to take some recent 10 years and do the same thing. 11 MS. BELLOMO: Can you tell me how you obtained such old 12 data? 13 MR. VORSTER: Yes. Data that I've had for 20 years 14 that was provided to me by combination of -- data that was 15 provided to me by the Department of Water and Power as well 16 as Southern California Edison. I document in my testimony 17 in Attachment 5 where all the data came from, where every 18 single line in these spreadsheets is documented as to what 19 it means and where the data is from. 20 MS. BELLOMO: Would you have any problem with sharing 21 that data with us on an informal basis, with the people from 22 Mono Basin Preservation? 23 MR. VORSTER: I would be more than happy to share all 24 data I have. 25 MS. BELLOMO: Thank you. 1179 01 You state on Page 4 that the Lundy Reservoir operations 02 under Edison's control are not significantly different than 03 what is shown for the years you have used prior to 1962. 04 My question is: What do you base this conclusion upon? 05 MR. VORSTER: That conclusion is based upon seeing how 06 the reservoir has been operated in the last ten years and 07 comparing it to how it was operated then. 08 I think today, currently, there may be a little bit 09 more reservoir control over the flows than what I showed in 10 my spreadsheet, but not significant at all. 11 MS. BELLOMO: Are you saying that the data you 12 obtained for the 1950s and 1960s, that based upon reviewing 13 that data you made assumptions about the reservoir 14 operations? 15 MR. VORSTER: No. The data is, again, on reservoir 16 impairment of the flow is what actually was done by -- at 17 the time it wasn't Southern California Edison. It was their 18 predecessor. And the impairment of the flows by the 19 reservoir and the diversions through the powerhouse, so on 20 and so forth, is very similar to how Edison today would 21 operate it. Again, there may be slightly more reservoir 22 control or more impairment today, but not significantly 23 different than what I show. 24 MS. BELLOMO: On Page 4, Point e, you state: 25 The historical use of the Mill Creek Return 1180 01 Ditch varied according to the need to 02 supplement the flows in Mill Creek for 03 diversion into the main Thompson Ditch. 04 Thus, the return ditch flows were greater in 05 dryer years when there was insufficient 06 natural Mill Creek flows to satisfy the main 07 Thompson diversion demands. (Reading.) 08 My question is: Did you get the information -- let me 09 back up. 10 The information that you relied upon for this 11 conclusion came from whom? 12 MR. VORSTER: That was records that I had originally 13 obtained from Los Angeles Department of Water and Power. 14 MS. BELLOMO: Do you know if that information was taken 15 from a gauging station? 16 MR. VORSTER: The information is taken from the current 17 meter site at the head of the return ditch. 18 MS. BELLOMO: Was the information for the time period 19 prior to 1962? 20 MR. VORSTER: Yes. I had information that goes back 21 to the '30s, all the way up to 1990s. 22 MS. BELLOMO: Again, on Page 4, Point g, you state 23 that: 24 Occasionally zero flow is discharged into 25 Wilson Creek because of unplanned 1181 01 interruptions in power plant operations. 02 (Reading.) 03 My question is: What is your source of information 04 about this? 05 MR. VORSTER: That is mainly talking to Southern 06 California Edison people over the years and looking at some 07 records that I have. So, it is a combination of both, very 08 occasional shutdowns. 09 MS. BELLOMO: Can you tell me when the last time that 10 has happened is? 11 MR. VORSTER: I can't recall the specific year. I 12 remember in talking to John Fredrickson, he was there and 13 observed what happened. I can't. It was some time, I 14 think, in the last ten years, 10 or 15 years. 15 MS. BELLOMO: Excuse me, I didn't mean to interrupt 16 you. 17 John Fredrickson is not an Edison employee, is he? 18 MR. VORSTER: No, he's not. I said it was in talking 19 to Edison employees and local residents. 20 MS. BELLOMO: Can you identify the Edison employee who 21 informed you that occasionally zero flow is discharged into 22 Wilson Creek because of unplanned interruptions? 23 MR. VORSTER: It probably was Bert Almond and his 24 predecessor whose name is escaping me. The hydrogapher, 25 chief hydrogapher, Dennis Osborn, who I initially had 1182 01 contact with. As I said, it was a very unusual 02 circumstance. Let's say there was a lightning strike and 03 there had to be -- the power plant had to shut down. Then 04 for a brief amount of time there could be no flow being 05 discharged from the power plant. 06 MS. BELLOMO: We are talking a very, very brief period 07 of time? 08 MR. VORSTER: Yes. I would -- a day or less. 09 MS. BELLOMO: As much as a full day is your testimony? 10 MR. VORSTER: I wouldn't want to testify to an exact 11 amount of time. It was a very brief time. 12 MS. BELLOMO: If I understood your testimony earlier, 13 if there was zero flow discharged into Wilson Creek, then 14 below Conway Ranch the creek would go dry, correct? 15 MR. VORSTER: That's correct. 16 MS. BELLOMO: If that were to occur, then the fish in 17 the creek, unfortunately, when it went dry, would die, 18 correct? 19 MR. VORSTER: If it was for a long enough period. If 20 it was a short enough period, there would be residual pools 21 that they would be able to survive in. 22 MS. BELLOMO: If they happen to be in pools at the time? 23 MR. VORSTER: Correct. 24 MS. BELLOMO: Are you aware of any Department of Fish 25 and Game investigation into these zero flow episodes? 1183 01 MR. VORSTER: On Wilson Creek? 02 MS. BELLOMO: Yes. 03 MR. VORSTER: I am not aware of. 04 MS. BELLOMO: On Page 5, you set forth what water 05 requirements for the Conway and Thompson Meadows and -- 06 rather than me take the time to look through on Page 5, can 07 you refresh my recollection as to how much your water 08 requirement estimate is for the Thompson Meadow? 09 MR. VORSTER: Yeah. For the hundred acres that is 10 currently irrigated, is approximate acreage, the water 11 requirement is calculated by multiplying the acreage times 12 the consumptive use and doubling that, results in a gross 13 demand of 400 acre-feet, which apportioned over the five 14 month growing season, gives an average monthly application 15 of roughly 1.3 cfs. 16 MS. BELLOMO: So, is this a water requirement for both 17 Upper and Lower Thompson Meadows? And by Upper Thompson 18 Meadow I mean the portion of the meadow that is on the west 19 side of the highway, and by Lower Thompson Meadow I mean the 20 portion that is on the east side of the highway. 21 MR. VORSTER: No. This would be just for the Lower 22 Thompson Meadow, which is to the east of 395. 23 MS. BELLOMO: You don't provide for any water for 24 irrigation of Upper Thompson Meadow? 25 MR. VORSTER: That is correct. 1184 01 MS. BELLOMO: You did state on Page 2 that your 02 proposal is if there is sufficient irrigation water to 03 maintain the Simis and Thompson Rancho meadow and trees. 04 The Simis Meadow is adjacent to the Upper Thompson Meadow, 05 correct? 06 MR. VORSTER: Could you describe what you mean by 07 "adjacent"? I don't consider them -- they are close. They 08 are proximate, but they are not literally right next to each 09 other. They are very close to each other. 10 MS. BELLOMO: Well, you say that your proposal is for 11 sufficient water to maintain Simis and Thompson Ranch meadow 12 and trees. Are you referring to sufficient water to 13 maintain the Lower Thompson Meadow on the east side of the 14 highway, but not enough to maintain Thompson Meadow on the 15 west side of the highway? 16 MR. VORSTER: That is correct. Lower Thompson Ranch 17 is, by far, the larger, very visible meadow. The Upper 18 Thompson is much smaller and not visible from Highway 395, 19 or barely visible. 20 MS. BELLOMO: How large is the Simis Meadow? 21 MR. VORSTER: What I refer to as the Simis Meadow, let 22 me -- Simis Meadow, unfortunately, would be just off the 23 Exhibit R-SLC/DPR-424, would be just off the left-hand 24 margin where Upper Thompson and Lower Thompson Ditch coming 25 together. And it is -- the meadow itself is probably, if I 1185 01 remember correctly, I am going to say about 25 acres, and 02 that is based upon what Dave Marquart, who is the ranch 03 manager, told me. So, it is a very small meadow. 04 MS. BELLOMO: That property belongs to Jan Simis? 05 MR. VORSTER: That's correct. 06 MS. BELLOMO: I recall earlier in your testimony, I 07 think in your direct testimony, you stated that Jan Simis 08 has, in your words I think you said, has a minor 1 cfs water 09 right? 10 MR. VORSTER: 1.8 cfs. 11 MS. BELLOMO: So, Jan Simis has a 1.8 cfs water right? 12 MR. VORSTER: That's correct. 13 MS. BELLOMO: You would agree -- let me restate that. 14 Are you aware that Jan Simis' ranch is one of the 15 original historic ranches in the area? 16 MR. VORSTER: That is my understanding. 17 MS. BELLOMO: You characterize Jan Simis' water right 18 as being a minor water right, and you have testified that 19 she has 1.8 cfs. Would you consider that the 1.3 cfs, then, 20 that you would allocate to Thompson Meadows is also a minor 21 amount of water? 22 MR. VORSTER: Yes. Relative to the other water rights, 23 dWP, Conway, and Forest Service, the 1.8 cfs is a minor 24 amount. 25 MS. BELLOMO: On Page 6 you refer to infiltration 1186 01 losses from the main Thompson Ditch, and you propose using a 02 closed pipeline or, and I quote from you, "some other manner 03 to reduce those losses." 04 My question is: What are you referring to when you say 05 "some other manner to reduce infiltration losses"? 06 MR. VORSTER: You can line the ditches, for example, 07 keep it as an open ditch. 08 MS. BELLOMO: Did you measure infiltration losses? 09 MR. VORSTER: No. Again, I have not -- when you -- the 10 term "measurement" to me means I go out there with a current 11 meter. I observed them. I have observed losses in the 12 ditches in the north part of the Mono Basin. Looking at 13 what the water was at the head and at the downstream end, 14 and I have been able, through visual observations, to see 15 what the loss is. The losses are so high that you can tell 16 through visual observation how much loss there is. 17 MS. BELLOMO: Have you attempted to estimate the 18 amount of cfs that is lost? 19 MR. VORSTER: For example -- yes. I have estimated the 20 loss on the Mill Creek Return Ditch to be -- 21 MS. BELLOMO: Excuse me, I'm asking about your 22 testimony about the Thompson, main Thompson Ditch. 23 MR. VORSTER: Yes. For example, in the past couple of 24 years, if I remember correctly, about 8 cfs was being 25 diverted into the main Thompson at Mill Creek. And by the 1187 01 time it was discharging into DeChambeau Creek, it was, I am 02 going to guess, about 5 cfs. I think there may be some 03 measurements of that in the Mill Creek Stream Evaluation 04 Report issued by the Department of Fish and Game. 05 MS. BELLOMO: Would you agree that those infiltration 06 losses help sustain riparian and meadow habitat, if there is 07 meadow, along the ditch in the area where there is 08 infiltration loss? Would you agree that the infiltration 09 losses help to sustain the riparian and meadow habitat? 10 MR. VORSTER: That could occur that the infiltration 11 -- along those ditches there is some riparian habitat. 12 MS. BELLOMO: Do you know if there are any Willow Fly 13 Catchers in the habitat along the main Thompson Ditch? 14 MS. BELLOMO: I am not aware. 15 MS. BELLOMO: You don't know? 16 MR. VORSTER: I don't know. 17 MS. BELLOMO: You would agree that wildlife can't drink 18 from a pipeline that is substituted for a ditch, wouldn't 19 you? 20 MR. VORSTER: I agree. 21 MS. BELLOMO: Have you reviewed any studies of wildlife 22 in the area of the main Thompson Ditch? 23 MR. VORSTER: No. 24 MS. BELLOMO: Do you know who has done the irrigation 25 on Thompson, the Upper and Lower Thompson Meadow in the past 1188 01 ten years? 02 MR. VORSTER: My understanding is that the current 03 operator, manager of the lease, is a gentleman named Paul 04 Anderson. I don't think he is the owner of the herd. Paul 05 Anderson is a name that has been given to me as someone who 06 has the keys, in fact, to the diversion ditches and, thus, 07 has some authority. 08 MS. BELLOMO: Is it your understanding that for, we 09 will say, the past ten years, the sheep company and their 10 employees that have the lease on Upper Thompson Lower Ranch 11 have been responsible for doing the irrigating? 12 MR. VORSTER: I think that is right, yes. 13 MS. BELLOMO: I assume you talked to Paul Anderson 14 about his irrigation techniques on the Thompson Meadows, 15 then? 16 MR. VORSTER: I pride myself on being able to talk to 17 everyone. I never talked to Paul Anderson, so I am 18 frustrated. 19 MR. DODGE: I think the record should reflect a 20 historic moment in the Mono Lake proceedings. Someone has 21 refused to talk to Mr. Vorster. 22 MR. VORSTER: I haven't tried to talk him. 23 CHAIRMAN CAFFREY: And I might add, someone with a set 24 of keys. The sign of authority around the Water Board. 25 MR. DODGE: That seems to be getting to the water. 1189 01 MS. BELLOMO: I assume that you have talked to Candido 02 Caldedilla, who is an extremely friendly man, however, have 03 you not? 04 MR. VORSTER: I have not talked to -- I didn't catch 05 the name. No, I have not talked to any of the people who 06 have the leases on Thompson, the Thompson Meadow. 07 MS. BELLOMO: And you haven't talked to any of the men 08 who do irrigation out there? 09 MR. VORSTER: The only person I talked to who has done 10 irrigation would John Pelichowski. 11 MS. BELLOMO: We are talking about Thompson Meadows 12 right now. 13 MR. VORSTER: Right. John Pelichowski was the water 14 master, so when he was in the area, he actually diverted the 15 water from Mill Creek into the Thompson Ditches. 16 MS. BELLOMO: He did not do the irrigation on Thompson 17 Ranches? 18 MR. VORSTER: No, he did not. 19 MR. FRINK: Excuse me, I wonder if we could have the 20 spelling of both the names of the last individuals? 21 MS. BELLOMO: Mr. Vorster, are you familiar with the 22 Mattly Meadows, the site of the old Mattly Ranch, which lies 23 to the northeast of the Lundy Powerhouse and above 395? 24 MR. VORSTER: Yes. 25 MS. BELLOMO: Does the Mono Lake Committee proposal 1190 01 provide any water for irrigation to sustain this old ranch 02 meadow? 03 MR. VORSTER: As I currently understand the proposal, 04 no, it does not. However, I do think that the meadow would 05 stay green just from natural high water table in the area, 06 but does not receive any supplemental water for meadow 07 grass. 08 MS. BELLOMO: Your testimony is that the Mattly Meadow 09 is not irrigated? 10 MR. VORSTER: No. I said it would -- if it did not 11 receive any water whatsoever, there would be -- grass in the 12 area would remain. There would not be a conversion of the 13 entire area to sagebrush. 14 MS. BELLOMO: Have you done an analysis of the Mattly 15 Meadow soil types? 16 MR. VORSTER: I have not. There is historical evidence 17 that, I think, other people will testify to. 18 MR. BIRMINGHAM: Excuse me, Mr. Caffrey. 19 CHAIRMAN CAFFREY: Yes, Mr. Birmingham. 20 MR. BIRMINGHAM: Mr. Vorster has been doing so well at 21 answering the questions. But the last -- 22 CHAIRMAN CAFFREY: I am glad you approve. 23 MR. BIRMINGHAM: -- the last two questions he is 24 starting to revert to his habit of responding with more 25 information than is actually called for by the question. 1191 01 CHAIRMAN CAFFREY: I will remind the witness again. 02 MR. VORSTER: I apologize. I strayed. 03 CHAIRMAN CAFFREY: No need to apologize. We understand 04 your expertise and your vast knowledge of the area, but we 05 do need to stay on point, if we can. 06 Thank you, sir. 07 MS. BELLOMO: On Page 6, in the top paragraph, you 08 refer to the meadow south of Wilson Creek as sitting in a, 09 you refer to as a, quote-unquote, bowl of high groundwater 10 levels. 11 And my first question is: What studies did you do to 12 verify this? 13 MR. VORSTER: For the Conway Ranch EIR that was 14 prepared in the late '80s there were a number of 15 supplemental studies, including groundwater studies, 16 geotechnical studies, that discuss the groundwater 17 conditions in that area. And I think those reports refer to 18 it as a bowl, as a -- that the ridge just south of the bowl 19 acts to confine the groundwater. Groundwater barrier, 20 actually. 21 MS. BELLOMO: Have you done anything to determine what 22 the recharge source for this alleged high groundwater is? 23 MR. VORSTER: Yes. The recharge would, under natural 24 conditions, occur from all of the runoff from the mountains 25 above the Conway Ranch area, which, when the snow melts and 1192 01 runs off, as soon as it hits the lower gradient land in the 02 meadow area, the water gets drunk up. It is very permeable 03 soil. 04 MS. BELLOMO: Have you done any other analysis to 05 determine if there is any other source of recharge for that 06 area? 07 MR. VORSTER: In the bowl area? 08 MS. BELLOMO: Yes. 09 MR. VORSTER: It's possible that the unconfined 10 aquifer, the top most part of that bowl area, would be 11 recharged by excess flood irrigation. 12 MS. BELLOMO: In what location? 13 MR. VORSTER: In the bowl itself. 14 MS. BELLOMO: Isn't it possible that the -- let me back 15 up for a moment, please. 16 Are you aware that 10 to 12 cfs of water are spread on 17 Mattly Ranch to irrigate that ranch? 18 MR. VORSTER: Currently I think 10 cfs is diverted in 19 Upper Conway Ditch. Since that water does not go over to 20 Conway Ranch itself, it must all end up in Mattly, which I 21 would point out, as the water rights compilation shows, is 22 far in excess of its water rights. 23 MS. BELLOMO: Is it your testimony that the 10 to 12 24 cfs of water -- let me back up, so as not to get into 25 dispute with you. 1193 01 Is it your testimony that the water that you just 02 testified goes into Conway Ditch over to Mattly Meadows, has 03 nothing to do with groundwater levels on Conway Ranch? 04 MR. VORSTER: I did not say that, no. If you want to 05 ask me a question -- 06 MS. BELLOMO: Would you agree that it is possible that 07 the water that is spread on Mattly Meadow could be 08 contributing to the recharge of the bowl that you refer to 09 on Conway Ranch? 10 MR. VORSTER: I don't think so. And I would allow Dr. 11 Stine to also answer that question because we have looked at 12 that and -- 13 DR. STINE: I will answer that question. 14 MS. BELLOMO: I am very limited on time, so I don't 15 want to get into Dr. Stine on this point. 16 MR. VORSTER: Here is Mattly Ranch, right here. Here 17 is the bowl area. The general direction of flow is in a 18 southeasterly direction. I find it, both from an 19 elevational standpoint and just the direction of flow, it 20 would be pretty difficult for water applied to here, to get 21 over to here. 22 I am sorry. I am saying here, I am referring to the 23 Mill Creek and Wilson Creek vicinity map, which I don't see 24 has a label, exhibit label, on it. But I am referring to 25 Mattly Ranch, which is to the southwest of the bowl of 1194 01 Conway Ranch. And given the general direction of flow is 02 from the northwest to the southeast, I don't think very much 03 recharge of the bowl would occur from water applied on 04 Mattly Ranch. 05 CHAIRMAN CAFFREY: Mr. Canaday. 06 MR. CANADAY: The map that Mr. Vorster is referring to 07 is LADWP 65. 08 CHAIRMAN CAFFREY: Thank you, sir. 09 MS. BELLOMO: What is your source of being certain of 10 the direction of flow? 11 MR. VORSTER: Combination. It would be from the 12 surface topography. It would be from reading geological 13 reports and also consulting with the experts, such as Dr. 14 Stine. 15 MS. BELLOMO: You say that the meadow south of Wilson 16 Creek could, in theory, be, in theory quote-unquote, 17 supplied by excess supply tailwater. 18 My question is: When you say tailwater, are you 19 referring to water coming out of powerhouse? 20 MR. VORSTER: No. I am referring to the excess 21 irrigation, irrigation water that is applied to the Conway 22 Ranch north of Wilson Creek that flows off the land. 23 MS. BELLOMO: When you say "in theory," I take it that 24 you haven't studied that? 25 MR. VORSTER: No. That is correct; I have not studied 1195 01 it. 02 MS. BELLOMO: Now with regard to Thompson Meadow and 03 your evaluation of the water irrigation requirements at 04 Thompson Meadow, you are not a soil expert, are you? 05 MR. VORSTER: I am not a soil expert. 06 MS. BELLOMO: So, I assume you didn't do any soil study 07 yourself? 08 MR. VORSTER: I did not do any soil study. I did do 09 extensive research on irrigation water requirements for my 10 master's thesis and can testify to that. 11 MS. BELLOMO: Through that extensive research, I assume 12 that you learned that it is important to know the soil type 13 and to explore the soil type in an area before you reach any 14 conclusion about how much water is needed to irrigation it, 15 right? 16 MR. VORSTER: Absolutely, you would want to do that. 17 MS. BELLOMO: You did not do that yet? 18 MR. VORSTER: I did not do that. As I said, my 19 estimates are rough estimates that are based upon the 20 consumptive use requirements of the meadow grass in the area. 21 MS. BELLOMO: Your estimates could be wildly wrong if 22 the soil types turned out to be, for instance, of a very 23 high permeability, correct? 24 MR. DODGE: Objection. Ambiguous. I don't know what 25 a wildly wrong thing is. 1196 01 CHAIRMAN CAFFREY: Would you rephrase the question, Ms. 02 Bellomo? 03 MS. BELLOMO: Your estimates could turn out to be 04 inaccurate if there was -- if it turned out that there was 05 high soil permeability, correct? 06 MR. VORSTER: Absolutely. Could be inaccurate. If it 07 was inaccurate by a hundred percent, then the water 08 requirement would be 2.6 cfs. Let's just assume that they 09 are inaccurate, that we double what I estimated, would be 10 2.6 cfs. 11 MS. BELLOMO: Can we assume that it might be 400 12 percent inaccurate? 13 MR. VORSTER: I would find that hard to believe because 14 that would be far in excess of the irrigation water 15 requirements in all the other lands in that area. I 16 consulted a number of studies and did my own measurements of 17 evapotranspiration requirements and that would be -- well, 18 it wouldn't be a wise use of water, if the irrigation duty 19 was ten feet per acre is what you are suggesting. 20 MS. BELLOMO: Why would that not be a wise use of water 21 if that is what the irrigation requirement was? 22 MR. VORSTER: Well, we are now venturing into a kind of 23 policy opinion. But, I think, given that water is limited 24 there, that we just have to decide whether applying ten feet 25 per acre on land is a wise use of water. 1197 01 Excuse me, I think I said ten feet per acre. If it was 02 four times the amount that I estimated, it would be 16 feet 03 per acre. 04 MS. BELLOMO: Am I correct in understanding that you 05 didn't go to the Natural Resource Conservation Service to 06 obtain data regarding the soil types in the Thompson Meadow 07 area? 08 MR. VORSTER: I did not do any consultation with 09 anybody about soil types in the area. 10 MS. BELLOMO: You testified on Page 6 of your 11 testimony, at Footnote 6, about a difference in your 12 estimate of the acre served by irrigation at the Thompson 13 and the Los Angeles Department of Water and Power figures. 14 See where I am referring? 15 MR. VORSTER: Yes, I do. 16 MS. BELLOMO: You say that suspect that the disparity 17 in the numbers is because their lands are no longer 18 irrigated to the east of existing Thompson Meadow. Is that 19 correct? 20 MR. VORSTER: Yes, that is what I say there. I am 21 speculating. I asked the Department of Water and Power over 22 a month ago to what their current estimate of irrigated 23 acreage is, and I haven't got an answer yet. But the 90 24 acres, as I state in the footnote, is from measurements that 25 Scott Stine did off of aerial photographs that I have right 1198 01 here. 02 MS. BELLOMO: We are talking about a difference of 80 03 acres? 04 MR. VORSTER: The 170 acres that I have from 05 Department of Water and Power documents is from some 06 lease-type documents. As I said, I asked them -- I made 07 inquiries as to what the current irrigated acreage is, but I 08 haven't got an answer yet. But I think the question of what 09 the exact amount of irrigate acreage is could be determined, 10 one, either by asking the Department of Water and Power or, 11 I think, measuring it off the aerial photograph is a good 12 way to get a rough estimate. 13 MS. BELLOMO: When you look at the aerial photographs, 14 I am not familiar with that kind of photo, so I am asking 15 you perhaps -- and it is not a question. When you look at 16 that kind of aerial photograph, how can you tell if an area 17 isn't irrigated? 18 MR. VORSTER: You can tell by the color, one way. You 19 can see where xerophytic vegetation is in relation to the 20 greener, irrigated area. If you want to know exactly how 21 Dr. Stine did it, I would suggest you ask Dr. Stine. 22 MS. BELLOMO: I am trying to determine, basically, is 23 what you see on the photograph an area where there is 24 vegetation and an area where there is not, or a type of 25 vegetation that uses water? 1199 01 MR. VORSTER: That requires supplemental water, what we 02 call phreatophytic vegetation. You can tell by looking at 03 an aerial photograph what areas would be getting either 04 supplement irrigation water or spring water, some water in 05 excess of the their natural -- the water requirement that 06 vegetation that exists naturally in the area requires. 07 MS. BELLOMO: In the areas that you testify in your 08 Footnote 6 no longer receive irrigation, would you agree 09 those are reverted to sagebrush? 10 MR. VORSTER: As I said, it is possible they have. I 11 haven't gone out there to specifically look at those areas 12 that were irrigated before and are no longer irrigated 13 today. I have heard from local residents there have been 14 reversion to sagebrush. 15 MS. BELLOMO: Turning to Page 6, in the middle of the 16 page, starting with the paragraph, "The 1.3 cfs requirement 17 can come from several sources," you have an a) and a b). 18 In b) you state a source could be runoff from Upper 19 DeChambeau Creek that sometimes is available in the peak 20 snow melt period. 21 And my question is: Are you saying that Thompson 22 Meadow should be irrigated from DeChambeau Creek water? 23 MR. VORSTER: Currently Thompson Meadow is irrigated 24 with a combination of Mill Creek and DeChambeau Creek water 25 because -- if I can refer -- 1200 01 MS. BELLOMO: I am concerned you are going to use a lot 02 of my time. My question is: Are you saying that Thompson 03 should be allowed to take water from DeChambeau Creek, not 04 its Mill Creek water right? 05 MR. VORSTER: Thompson currently does take water from 06 DeChambeau. 07 MS. BELLOMO: You approve of that; you think that is 08 okay? 09 MR. VORSTER: It is not something that I determine. 10 That is how the hydrogaphy, the plumbing system in the area 11 is; the water from Mill Creek goes into DeChambeau Creek and 12 then DeChambeau Creek goes to Thompson Meadow. 13 MS. BELLOMO: Let me rephrase that question, then. 14 My question is: Are you saying in point b) that 15 Thompson Meadow should be irrigated from water from 16 DeChambeau Creek in excess of amounts that are put into Mill 17 Creek under the Thompson Meadow water right? 18 MR. BIRMINGHAM: I am going to object to the question 19 on the grounds it ambiguous. 20 CHAIRMAN CAFFREY: I am not sure I understood it, to be 21 quite honest, but I don't want to disallow you from asking. 22 Could you try it again, Ms. Bellomo? 23 MS. BELLOMO: To clarify for purpose of this Board, 24 DeChambeau Creek is the conduit for water from Mill Creek 25 that is used for irrigation on Lower Thompson Meadow, 1201 01 correct? 02 MR. VORSTER: That is true. DeChambeau Creek runs 03 along the western edge of Thompson Meadow. It basically 04 withers into Thompson Meadow area. 05 MS. BELLOMO: You are saying in your testimony that 06 Thompson Meadow needs 1.3 cfs of water for irrigation, 07 correct? 08 MR. VORSTER: Rough estimate, correct. 09 MS. BELLOMO: If 1.3 cfs of water is put into 10 DeChambeau Creek from Mill Creek in order to get it down, to 11 transport it down to Lower Thompson Meadow, are you saying 12 in point b) that Thompson Meadow, the irrigator should be 13 allowed to use more than the 1.3 cfs of water to irrigate 14 Thompson Meadow. 15 MR. VORSTER: No, that is not what I am saying. I am 16 just suggesting if you need to fulfill this 1.3 cfs 17 requirement, or whatever it is, there are a number of 18 sources that you can look to. In peak snow melt period 19 there is water in Upper DeChambeau Creek that might be 20 available. Should be looked at as a possible source of 21 supply. I do know that there is an interest by some people 22 to maintain a year-round flow or continuous flow of water in 23 DeChambeau Creek through the Thompson Meadow. 24 MS. BELLOMO: You are saying that at times it wouldn't 25 -- rather than put 1.3 cfs of Mill Creek water into 1202 01 DeChambeau and then take it out on Lower Thompson, that that 02 1.3 cfs could come from the DeChambeau water itself, 03 DeChambeau Creek water itself? 04 MR. VORSTER: It is one thing you might want to look 05 at. 06 MS. BELLOMO: Currently the Department of Water and 07 Power doesn't have the water right to water from DeChambeau 08 Creek; is that correct? 09 MR. VORSTER: I don't know. The Thompson Meadow is 10 riparian to DeChambeau Creek. 11 MS. BELLOMO: Does the Mono Lake Committee have an 12 opinion as to whether there should be a minimum flow in 13 DeChambeau Creek down to the lake at all times? 14 MR. VORSTER: I don't know. 15 MS. BELLOMO: Do you have an opinion? 16 MR. VORSTER: Yes. 17 MS. BELLOMO: What is your opinion? 18 MR. VORSTER: Yes. It would be nice, although it is 19 the Thompson -- excuse me, the DeChambeau Creek Channel 20 through Thompson Ranch is not very well defined. 21 Occasionally, water flows in DeChambeau Creek below Thompson 22 Ranch from irrigation tailwater and flows through the County 23 Park and down to Mono Lake. In order to provide a 24 year-round flow into DeChambeau Creek, you have to restore 25 the channel and also look at whether, under natural 1203 01 conditions, whether year-round flow through that reach would 02 occur. 03 MS. BELLOMO: So you don't -- am I understanding you 04 correctly, that you don't know whether DeChambeau Creek has 05 a year-round flow down to the lake? 06 MR. VORSTER: It is possible in the driest -- 07 MR. DODGE: I would object to this line of questioning 08 on ground of relevance. 09 MS. BELLOMO: I think it is extremely relevant, 10 Chairman Caffrey, because the recommendation involves using 11 DeChambeau Creek water to irrigate Thompson Meadow, and this 12 would impact DeChambeau Creek. 13 CHAIRMAN CAFFREY: This is kind of a difficult area 14 because we talked about this at the beginning of the entire 15 hearing procedure, how much detail are we going to get into 16 and all this. I am inclined to let you go ahead. You have 17 less than nine minutes to go to complete your 18 cross-examination. 19 MS. BELLOMO: I am afraid that I am going to have to 20 ask you for a little extra time for Mr. Vorster. 21 CHAIRMAN CAFFREY: Perhaps we can do that this 22 afternoon. You can give me a showing when you get to the 23 end of your time, and we will make a judgment then. 24 Why don't you proceed. 25 MR. VORSTER: I want to clarify. As I said in my 1204 01 testimony, I am looking -- I am recommending that several 02 different sources of water should be -- could be used to 03 irrigate Thompson Meadow. I am not saying -- I am not 04 making a recommendation that Upper DeChambeau Creek water 05 should be done. I am saying it should be looked at, 06 considered as a possible source of water. It is currently 07 -- I will just leave it at that. 08 MS. BELLOMO: You state on Page 4 that you have 09 observed diversions into the Upper Thompson Ditch in recent 10 years, and that the water redirected back to property along 11 Mill Creek. 12 To whose property was the water redirected? 13 MR. VORSTER: Page? 14 MS. BELLOMO: On Page 4. 15 MS. BELLOMO: Point c. 16 MR. VORSTER: Point c. You are referring to -- can you 17 repeat your question, please? 18 MS. BELLOMO: I am asking to whose property was the 19 water, the Mill Creek water, redirected. 20 MR. VORSTER: The water that I observed in Upper 21 Thompson Ditch that I saw redirected? 22 MS. BELLOMO: Yes. 23 MR. VORSTER: I don't know who the names of the people 24 are. 25 MS. BELLOMO: How many times did you observe that? 1205 01 MR. VORSTER: I think I saw it twice. But from talking 02 to Dave Marquart, it happened for a while. 03 MS. BELLOMO: You're acquainted with Jan Simis' water 04 right which you testified to. 05 And my question is: What do you base your statement on 06 that Jan Simis does not use her Mill Creek water right? 07 MR. VORSTER: As I stated in my testimony, that in the 08 last couple of years the water that was diverted in Upper 09 Thompson Ditch did not go over to Jan Simis' land. It was 10 either redirected or the water just wasn't diverted over 11 there. She relied on -- her property relied entirely on 12 DeChambeau Creek water. 13 MS. BELLOMO: Were you there looking on a daily basis? 14 MR. VORSTER: No. I took a tour of the area with Dave 15 Marquart, who is the ranch manager, and he briefed me as to 16 what -- how the water was managed the last couple of years? 17 MS. BELLOMO: Are you saying Dave Marquart informed you 18 that Jan Simis had not used her water rights, her Mill Creek 19 water rights for several years. 20 MR. VORSTER: I think that he said something to that 21 effect, that the last couple of years they had a hard time 22 getting water over there because of the problem that people 23 had been redirecting the water. To the extent that he was 24 able to stop that from happening, I assumed he can then 25 bring water over to his property. In many years there is 1206 01 enough water in DeChambeau Creek. He is able to irrigate 02 his small amount of meadow with DeChambeau Creek. 03 CHAIRMAN CAFFREY: Ms. Bellomo, excuse me for 04 interrupting. We have a request for the spelling of the 05 name Marquart. 06 MS. BELLOMO: I think it is M-a-r-q-u-a-r-t. 07 CHAIRMAN CAFFREY: Thank you. 08 Please proceed. 09 MS. BELLOMO: Are you suggesting that because Jan 10 Simis, in your testimony, has not used her Mill Creek water 11 right recently, that she should lose her water right? 12 MR. VORSTER: Absolutely not. 13 MS. BELLOMO: Then what is the relevance of whether she 14 has been using it or not? 15 MR. VORSTER: Because in talking to Dave Marquart, who 16 has talked to Jan Simis, we talked about the possibility of 17 her relying upon her DeChambeau Creek water to irrigate her 18 meadow and taking her right and making it available for 19 Thompson Meadow and for DeChambeau Creek itself. 20 MS. BELLOMO: So, she is considering dedicating her 1.8 21 cfs to Mill Creek? 22 MR. VORSTER: No. She hasn't stated that. I haven't 23 talked to her directly. I have discussed the possibility 24 with Dave Marquart that the water that she has a right to 25 from Mill Creek could be used for Thompson Ranch as well as 1207 01 keeping a flow in DeChambeau Creek. 02 MS. BELLOMO: Does Jan Simis have a water right to 03 DeChambeau Creek water? 04 MR. VORSTER: Yes, she does. As far as I know, she 05 does. Dave Marquart informed me she does. 06 MS. BELLOMO: How much is her water right? 07 MR. VORSTER: I am not sure. Dave looked at the 08 documents, and it was hard for him to discern the exact 09 amount. 10 MS. BELLOMO: Do you know if it approaches in the 11 vicinity of 1.8 cfs? 12 MR. VORSTER: No. It is less than that, clearly less 13 than that. 14 MS. BELLOMO: Would she be asking -- if she were -- in 15 your discussions with Dave Marquart, were you discussing 16 giving up her 1.8 cfs water right, but getting some 17 additional water right to DeChambeau Creek to make up for 18 that loss? 19 MR. VORSTER: That possibility came up, but to the 20 extent that she doesn't need to use that amount of water for 21 her property, it wouldn't be necessary. 22 MS. BELLOMO: On Page 6, you state in the Mill Creek -- 23 In the Mill-Wilson spreadsheets I assume 24 the historic diversions to the 25 Sylvester-McPhersen Ditch, which 1208 01 averaged 1.8 cfs for the three-year 02 types, would continue to be diverted 03 from Mill Creek because it is equivalent 04 to the supply needed to maintain the 05 Thompson Meadow and leave a little water 06 to flow down Lower DeChambeau Creek through 07 the Mono County Park to Mono Lake. 08 (Reading.) 09 Do you see where I am reading? 10 MR. VORSTER: Uh-huh. 11 MS. BELLOMO: And then you state: 12 It is the amount of the diversion, not who 13 the right belongs to or whether it is being 14 exercised that matters. (Reading.) 15 And this is what intrigues me. Are you saying that a 16 person should be able to use water from a creek whether or 17 not they have a right to it? 18 MR. VORSTER: No. 19 MS. BELLOMO: What exactly did you mean by that 20 statement? 21 MR. VORSTER: I assumed in that statement that Jan 22 Simis' property has a water right to both Mill Creek and 23 DeChambeau. And that, what is important, aren't the water 24 rights. What is important is -- again, we have to keep in 25 mind what we are trying to do here, which is to see if we 1209 01 can maintain the Thompson Meadow, see that we can maintain 02 the Simis meadow and trees, and maximize the return of water 03 to Mill Creek. That is the goal here, in my opinion. 04 And to the extent that everyone does have a water 05 right, and the water is getting commingled anyway, it is not 06 the water right that is important; it is the amount of water 07 necessary to achieve those ends that I have mentioned. 08 MS. BELLOMO: Are you aware that below the County Park, 09 below Lower Thompson Meadow, there is a marsh area that is 10 maintained by the State Park Department? 11 MR. VORSTER: The State Department Park does not 12 maintain the marsh. 13 MS. BELLOMO: I stand corrected. The area that is 14 owned by the State Park or the State Lands Commission, 15 rather? 16 MR. VORSTER: Yeah. I am not sure exactly who the 17 landowner is. DWP owns the land above the County Park, and 18 since they are a private landowner, I guess, below the 19 County Park would belong to the State of California. 20 MS. BELLOMO: Putting aside either question, you are 21 familiar with that marsh? 22 MR. VORSTER: I am familiar with that general area, 23 yes. 24 MS. BELLOMO: You are aware that DeChambeau Creek flows 25 through that marsh area down to the lake? 1210 01 MR. VORSTER: Yes. 02 MS. BELLOMO: Do you think it would be important to 03 determine the effects on that marsh area before allowing Jan 04 Simis to utilize water off DeChambeau Creek that could 05 impact the flow down to the lake? 06 MR. VORSTER: I just want to reiterate, she is 07 currently using water mainly off DeChambeau Creek, so it 08 really wouldn't be any change. 09 MS. BELLOMO: Do you know how much she is using? 10 MR. VORSTER: No. 11 MS. BELLOMO: How much are you proposing that she 12 should be allowed to use in the future if she gives up her 13 1.8 cfs? 14 MR. VORSTER: I am proposing that she be allowed to use 15 whatever is necessary to maintain the meadow and the trees 16 on her property. 17 MS. BELLOMO: Are you proposing that regardless of 18 whether that resulted in the DeChambeau Creek not having 19 flow down to the lake so that the creek couldn't flow 20 through the marsh area? 21 MR. VORSTER: I know that Jan is interested in 22 maintaining a flow in DeChambeau Creek, and she is 23 interested in making her irrigation as efficient as possible 24 to do that. 25 MS. BELLOMO: Are you interested in making the flow 1211 01 into DeChambeau Creek through the marsh below the County 02 Park? 03 MR. VORSTER: Am I interested? 04 MR. BELLOMO: Yes. 05 MR. VORSTER: Sure. I can tell you that the reach 06 below the County Park is a gaining reach because of 07 accretion and spring flow, under natural conditions. 08 MS. BELLOMO: I assume you have done studies of that? 09 CHAIRMAN CAFFREY: Ms. Bellomo, excuse me. You have 10 exhausted the hour, that guidelines that we have for 11 cross-examination. 12 How much more time do you think you need? 13 MS. BELLOMO: I think I need approximately 15 more 14 minutes, Chairman Caffrey. 15 CHAIRMAN CAFFREY: I am a little concerned about that 16 because I fear now we are getting into a level of 17 specificity. If you recall my instruction that was in our 18 written documents and also what I have reiterated a couple 19 times, that if we are getting into a lot of detail about 20 water rights here, that I think we should have to repeat in 21 another proceeding. If this proposal to water Mill Creek 22 was going to go forward, it would require a water right's 23 proceeding and an EIR, and I suspect that all this level of 24 questioning would have to be repeated. 25 Is that not the case, Mr. Frink? 1212 01 MR. FRINK: I believe it is, Mr. Chairman. 02 CHAIRMAN CAFFREY: I am reluctant to give you more 03 time -- you have used the entire hour and you will have 04 another opportunity to do this if this goes forward. That 05 is what concerns me. I will give you five more minutes if 06 you can complete five more, and then we will take a break 07 for lunch. I really don't want to go beyond that. 08 MS. BELLOMO: Chairman Caffrey, I would just like to 09 put on the record that this is one of the witnesses that is 10 of most importance to the People from Mono Basin 11 Preservation and the community in general, that I am asking 12 questions that have been provided to me by many people from 13 the local community, that we have spent three days, and now 14 on our fourth day here, and spent very little hearing time 15 asking questions of any witnesses. And I would ask your 16 indulgence to allow me to ask these questions, and if at any 17 particular point you find a particular question to be beyond 18 the scope of what you think I should be asking, that you cut 19 me off. 20 CHAIRMAN CAFFREY: What I am asking for is your 21 cooperation. Because if we do it on micro basis, question 22 by question, these are gray areas. The point that I want to 23 focus on is, though, that this is probably all going to have 24 to be repeated. And you will have that opportunity. I am 25 just interested in proceeding with dispatch, so that we can 1213 01 get through all this. 02 MS. BELLOMO: The problem is that I haven't touched on 03 certain areas of Mr. Vorster's testimony. So I am not 04 intending to spend the next 15 minutes repeating the 05 subjects I have already covered. I am going through his 06 testimony and maybe in more detail than you would have 07 wished. 08 CHAIRMAN CAFFREY: I will give you from now till noon 09 to stay on point, and that will have to be the amount of 10 time that you are allowed for the cross-examination of these 11 witnesses. 12 MS. BELLOMO: So, for the record, I am being allowed an 13 extra seven minutes? 14 CHAIRMAN CAFFREY: Yes. I think that is about seven 15 and a half minutes, if my eyes are serving me correctly. 16 MS. BELLOMO: Thank you very much. 17 Did you do any studies, Mr. Vorster, to determine what 18 the effects of reducing irrigation to 1.3 cfs would be on 19 the land below Thompson Ranch at the County Park and 20 vegetation in the marsh below the ranch? 21 MR. VORSTER: No, I have not. 22 MS. BELLOMO: Am I correct that you didn't do any 23 studies to determine the source of the water supply and the 24 vegetation below the County Road below Thompson Meadow? Did 25 you do any studies? 1214 01 MR. VORSTER: Yes, in a broad sense. When I was doing 02 my master's thesis, that was one of the things I looked 03 at. I look at -- I mapped all the phreatophytic vegetation 04 around the lake shore to determine what the water loss was. 05 So, I have studied that area, and looked at what the natural 06 supply of water would be and what is supplemental. I tried 07 to make that distinction. That area you are talking about 08 has a large component of natural spring flow. 09 MS. BELLOMO: The whole area? 10 MR. VORSTER: Yeah, the area below the County Park that 11 you are referring to has a lot of springs. 12 MS. BELLOMO: Actually, my question was broader than 13 that. As to whether you have determined the source of water 14 supply and the vegetation along the entire length of the 15 County Road below Thompson Meadow. 16 MR. VORSTER: Not in a specific sense, but more in a 17 general sense. 18 MS. BELLOMO: Would you agree that, at times, as much 19 as 10 to 15 cfs of water is spread on Lower Thompson Meadow? 20 MR. VORSTER: I know 10 to 15 cfs was diverted from 21 Mill Creek. Whether that amount got to Thompson Meadow, I 22 don't know. 23 MS. BELLOMO: Have you done any studies to determine 24 where the irrigation water that is spread on Thompson Meadow 25 goes, if it migrates anywhere off the meadow? 1215 01 MR. VORSTER: I assume that there is -- I have seen 02 surface water flow across the County Road because of excess 03 irrigation. I have also, at times, seen it in the creek 04 that goes through the park, that has water intermittently 05 due to the presumed excess irrigation that occurs above the 06 County Road. 07 MS. BELLOMO: What environmental changes have you 08 identified that will result in the north end of the Mono 09 Basin if your proposal is adopted? 10 MR. VORSTER: I am sorry, you are asking what study -- 11 MS. BELLOMO: What environmental changes have you 12 identified, if any, that will occur in the north end of the 13 basin if your Mono Lake Committee proposal that you set 14 forth in your testimony is adopted? 15 MR. VORSTER: That is an open-ended question, and I 16 don't think -- I see if I can -- 17 MS. BELLOMO: How can it be open-ended? I asked: What 18 changes have you identified that would occur? 19 MR. VORSTER: To the extent that there would be less 20 water going on the Thompson Meadow and that area, there 21 would be less surface water just flowing across the County 22 Road, which I observed at times. 23 I don't think -- I think the intent of the Mono Lake 24 Committee proposal is to preserve the basic environmental 25 structure that we have there: the meadow vegetation, the 1216 01 cottonwood trees, and the basic components of the 02 environment there would be maintained. So I don't think 03 there would be any -- I do not think there would be any 04 significant environmental change in the Mono Lake Committee 05 proposal. 06 MS. BELLOMO: In the north end of the basin? 07 MR. VORSTER: To the extent that 25 acres of the Upper 08 Thompson Meadow would not be irrigated, that there may be 09 some change there. To the extent that Mattly Meadow would 10 not be as extensive or would not be irrigated, there may be 11 some change there in terms of the length of the time that 12 the meadow is green or moist. 13 And I would say the other change would be that the 14 fishery in Wilson Creek might be impacted. 15 MS. BELLOMO: At this point you haven't determined 16 whether it would or not? 17 MR. VORSTER: I am not a fisheries' expert, but I 18 consider there would be less water in Wilson Creek under the 19 Mono Lake Committee proposal, so there might be an impact to 20 the fishery. 21 MS. BELLOMO: Would you exact any change in the 22 riparian habitat on Wilson Creek as it passes through Conway 23 Ranch? 24 MR. VORSTER: I am not a riparian expert. I think that 25 would be -- there is testimony to that effect from the State 1217 01 Lands Commission. I am not an expert. 02 Again, the intent of the Mono Lake Committee's proposal 03 is to maintain the basic riparian structure through the 04 Conway Ranch. There may be some changes. Again, I am not 05 an expert. 06 MS. BELLOMO: Do you have any opinion as to whether 07 there would be any change in the riparian habitat on Wilson 08 Creek below the Conway Ranch if your Mono Lake Committee's 09 proposal were adopted? 10 MR. VORSTER: I would answer it the same way. I would 11 refer to the experts, and they providing testimony to that 12 effect. 13 MS. BELLOMO: That there would be? 14 MR. VORSTER: No. There is possibly to the extent that 15 there is not as much water in that reach as there is today. 16 Although, those riches don't always surface flow. But to 17 the extent that there is less water below Conway Ranch than 18 there has been historically, it is possible there may be 19 some change. Although the riparian vegetation in that area, 20 it's not extensive at all. But, again, I would defer to 21 other experts. 22 MS. BELLOMO: I don't want to abuse your generosity in 23 letting me have additional time, so I will stop at this 24 time. 25 Thank you. 1218 01 CHAIRMAN CAFFREY: I appreciate you're understanding, 02 Ms. Bellomo. 03 Let me just state the hour of noon having arrived, we 04 will take a lunch break. I'd like to take a 45-minute break 05 so we can get a head start on the afternoon. 06 Let me also announce that I don't plan to go beyond 07 4:30, a quarter to 5 at the latest today. Before I 08 absolutely make that the rule I want to check with Mr. 09 Dodge. 10 Am I correct in understanding that Mr. Stine cannot be 11 here, Dr. Stine cannot be here today; is that right? 12 MR. DODGE: My understanding is that Dr. Stine cannot 13 be here tomorrow and that he can be here until on 1:00 on 14 Wednesday. 15 CHAIRMAN CAFFREY: If we run out of time and haven't 16 completed with his testimony and cross-examination, for that 17 matter, we can - we will take it up on Wednesday. 18 MR. DODGE: I am confident we can get through at least 19 that much. 20 CHAIRMAN CAFFREY: Let's be back here at a quarter to 21 one. 22 Thank you. 23 (Luncheon break taken.) 24 ---oOo--- 25 1219 01 AFTERNOON SESSION 02 ---oOo--- 03 CHAIRMAN CAFFREY: Good afternoon and welcome back. 04 We had finished the cross-examination of this panel by 05 Ms. Bellomo, and we will proceed from there. 06 Is Mr. Haselton here? 07 Did you wish to cross-examination these witnesses, 08 sir? Welcome. 09 MR. HASELTON: Thank you, Mr. Caffrey. I just have, I 10 believe, two very quick questions for Mr. Harrison. 11 ---oOo--- 12 CROSS-EXAMINATION 13 BY ARCULARIUS RANCH 14 BY MR. HASELTON 15 Q. Mr. Harrison, I am looking at your testimony on Page 16 3. Essentially, I have two questions of clarification. And 17 that is at the bottom of Page 3 you state what you were 18 asked to do, and that was to investigate options for 19 obtaining recommended channel maintenance flows in Rush 20 Creek and then you qualify that with a series of bullets, 21 and you go on to the next page. 22 My question to you is: Were you asked by your clients 23 to review the recommended channel maintenance flow that is 24 described in Decision 1631? 25 MR. HARRISON: Don't recall that I was. 1220 01 MR. HASELTON: In preparing your testimony you also 02 state you reviewed documents, and I guess the next question 03 is: Did you have an opportunity or did you, in fact, review 04 Decision 1631? 05 MR. HARRISON: I think I do have a copy of it, and I 06 did look at, but it's been sometime ago. 07 MR. HASELTON: The answer to that question is, yes, you 08 did review? 09 MR. HARRISON: Yes. 10 MR. HASELTON: That is it. 11 CHAIRMAN CAFFREY: Thank you, Mr. Haselton. 12 I didn't see Mr. Ridenhour. Is Mr. Ridenhour here? 13 Mr. Ridenhour is not here. 14 Mr. Roos-Collins. 15 MR. ROOS-COLLINS: Afternoon. Mr. Chairman, my green 16 light has started even before I do. 17 CHAIRMAN CAFFREY: Mr. Johns is very anxious. 18 MR. ROOS-COLLINS: Before I begin my cross-examination 19 I do have -- I need to inform you of certain scheduling 20 constraints for the witnesses that constitute California 21 Trout panel. 22 CHAIRMAN CAFFREY: All right. 23 MR. ROOS-COLLINS: Mr. Vorster is available today, but 24 not Tuesday or Wednesday. Dr. Mesick is available today, 25 but not Tuesday. And Dr. Stine is available today, but not 1221 01 Tuesday or Wednesday afternoon. 02 Now, I understand that you have more than your share of 03 scheduling difficulties to deal with. I don't propose a 04 remedy at this time. I simply note that this is the last 05 opportunity for Mr. Vorster to testify on behalf of 06 California Trout as well as the Mono Lake Committee during 07 the dates that you have currently scheduled for this 08 hearing. 09 I also note that my other witnesses are not going to be 10 be available again until Wednesday. 11 CHAIRMAN CAFFREY: We'll do everything that we can to 12 accommodate, including, if need be, if we get -- we'll take 13 an assessment this afternoon, and if we are running out of 14 availability, we may have to take a little time tonight, I 15 would imagine. We will try to avoid that if we can. 16 MR. ROOS-COLLINS: Thank you. 17 ---oOo--- 18 CROSS-EXAMINATION 19 BY CALIFORNIA TROUT, INC. 20 BY MR. ROOS-COLLINS 21 Q. Mr. Vorster, my questions for you concern Pages 9 and 22 10 of your written testimony. Your comparison of channel 23 maintenance flow schedules and also your Attachments 10 and 24 11, which also make the same comparison. 25 Your testimony compares several channel maintenance 1222 01 proposals to unimpaired flows on Rush Creek; is that correct? 02 MR. VORSTER: That is correct. That is what I show on 03 Attachment 11. 04 MR. ROOS-COLLINS: Unimpaired means not regulated by 05 human facility or activity? 06 MR. VORSTER: That is correct. 07 MR. ROOS-COLLINS: When were the flows of Rush Creek 08 first impaired? 09 MR. VORSTER: Irrigation diversions on Rush Creek 10 probably occurred in the late 19th century, to a limited 11 degree, and caused some impairment during the irrigation 12 season. The most significant impairment occurs -- started 13 to occur around 1920 when the predecessor to Southern 14 California Edison built reservoirs in the upper watershed of 15 Rush and Lee Vining Creek. 16 MR. ROOS-COLLINS: By 1949, when Los Angeles received 17 its water right permits for Rush Creek, flows were already 18 impaired? 19 MR. VORSTER: Yes, they were. 20 MR. ROOS-COLLINS: Does Decision 1631 require Los 21 Angeles' Stream Restoration Plan to compare channel 22 maintenance proposals with unimpaired flows? 23 MR. VORSTER: No, it doesn't. 24 MR. ROOS-COLLINS: Does it even require a channel 25 maintenance proposal? 1223 01 MR. VORSTER: No. 02 MR. ROOS-COLLINS: So, in preparing your testimony, 03 what was your purpose in comparing the channel maintenance 04 proposal now before this Board with unimpaired flows? 05 MR. VORSTER: My purpose was twofold, and it was really 06 guided by the philosophy and testimony provided by the 07 stream scientists, in particular Dr. Trush. I think on Page 08 9 of my testimony acknowledged their commitment and 09 understanding that the unimpeded flow regimes are 10 appropriate flows determining contemporary channel dynamics 11 and potential for recovery. This is from the October 1995 12 draft workplan of the stream restoration scientists. 13 So, the flow recommendations that they provided use the 14 unimpaired flow regime as, what I call, a guide post. And 15 it is because, as the stream scientists themselves 16 acknowledged, the habitat conditions that were there, that 17 we're trying to restore, were the result of the unimpaired 18 flows that had occurred for thousands of years before that, 19 before 1941. 20 MR. ROOS-COLLINS: Let me break your answer into two 21 parts. In preparing your testimony, then, you assumed that 22 the channel conditions, which existed in 1941, had been 23 caused by unimpaired flows? 24 MR. VORSTER: Yes, or were the result of unimpaired 25 flows. 1224 01 MR. ROOS-COLLINS: You also assumed that restoration 02 of Rush Creek requires something like unimpaired flows? 03 MR. VORSTER: Yes. Again, using unimpaired flows as a 04 guide post. I think Dr. Trush also articulated the point 05 that for the streams to function in an alluvial manner that 06 his observations on the creeks confirmed that they were 07 functioning alluvially and as a result of the unimpaired 08 flows, that the unimpaired flows were the flows that would 09 allow the streams to function in the way that he felt that 10 they could function 11 MR. ROOS-COLLINS: You arrived at your assumptions 12 regarding unimpaired flows in part from Dr. Trush's 1995 13 report? 14 MR. VORSTER: Yes, and subsequent conversations that I 15 had with him and the monitoring plan that was submitted by 16 Dr. Trush. 17 MR. ROOS-COLLINS: Let me move on now to a related 18 issue. I ask you to assume for the purpose of this line of 19 questioning, that a flow of magnitude 350 cubic feet per 20 second is needed to mobilize the channel better. I ask you 21 to assume that, not opine that. Assuming that a flow of 350 22 cubic feet per second is a desirable flow in the channel 23 maintenance schedule, how often would that flow occur under 24 unimpaired conditions? 25 MR. VORSTER: In looking at the period of record, 1940 1225 01 through '89 or '41 through '90, that 50 year period, 02 approximately three-quarters of the time, a flow of 350 cfs 03 or greater would occur under unimpaired conditions. 04 MR. ROOS-COLLINS: Unimpaired? 05 MR. VORSTER: Unimpaired. 06 MR. ROOS-COLLINS: For the purpose of that answer, you 07 calculated what unimpaired flows would be, on the basis of 08 impaired flows from 1941 to 1990? 09 MR. VORSTER: Right, and adjusting it for the storage 10 change in the Southern California Edison reservoirs. 11 MR. ROOS-COLLINS: An unimpaired flow of 350 cubic feet 12 per second would occur in 75 percent of the years? 13 MR. VORSTER: Right. It would actually occur -- it 14 occurred in 75 percent of the years. And in some of those 15 years, it occurred more than once. 16 It would occur, perhaps, let's say in late May, again 17 in middle of June and maybe again in early July. It would 18 have multi peaks. 19 MR. ROOS-COLLINS: For the sake of clarity in the 20 record, let me ask that you confine further answers to 21 frequency stated in terms of years, in other words, in how 22 many -- in what percentage of the years would a flow of this 23 magnitude occur. And your answer is 75 percent? 24 MR. VORSTER: Yes, approximately. 25 MR. ROOS-COLLINS: How often do impaired flows equal or 1226 01 exceed 350 cubic feet per second? 02 MR. VORSTER: In far less number of years. I think Dr. 03 Beschta in his testimony, which I don't have right in front 04 of me, provided -- 05 MR. ROOS-COLLINS: Mr. Vorster, I am providing you Dr. 06 Beschta's testimony which is Los Angeles Exhibit 27. 07 MR. VORSTER: In Dr. Beschta's testimony, Exhibit DWP 08 Number 27, in Table 2, he gives us some -- we can't answer 09 that question directly, but he does show that a flow of 10 somewhere between the wet normal and wet year types the 11 estimated impaired peak flow for the median year would be in 12 the 350 cfs range. 13 A 350 cfs flow, I think, under impaired conditions 14 would occur, if my memory serves me correctly, probably in 15 about 20 percent of the years. But I would have to refer to 16 documents that I don't have in front of me. 17 MR. ROOS-COLLINS: Under D-1631, how often would the 18 flow equal or exceed 350 feet per second? 19 MR. VORSTER: Under D-1631, there was no requirement to 20 release flows of that magnitude. They would occur in wetter 21 years or very wet and extreme years just because, before, 22 Los Angeles didn't have the ability to divert the water, 23 and so flows in excess of 350 would occur occasionally. But 24 there was no requirement in D-1631 to release flows of that 25 magnitude. 1227 01 MR. ROOS-COLLINS: Under Los Angeles' proposal, as 02 stated in its Stream Restoration Plan, how often would the 03 flow exceed 350 cubic feet per second, equal or exceed? 04 MR. VORSTER: They would have flows in excess of 350 05 cubic feet per second in the normal to wet normal, wet and 06 extreme years, which represents about 45 percent of the year 07 type, in 45 percent of the year. 08 MR. ROOS-COLLINS: On the basis of the document review 09 you did in preparation for your testimony, do you have an 10 opinion regarding the comparative durations of a flow of 350 11 cubic feet per second under the four scenarios we just 12 discussed, namely unimpaired, impaired, D-1631, and Los 13 Angeles' proposal? 14 MR. VORSTER: With D-1631 flows of 350 cfs would occur, 15 as I said, in the wet and extreme years. And so, it would 16 be difficult for me to say how often, what the duration that 17 would occur in those year types. If I can refer to 18 attachment 11 -- 19 MR. ROOS-COLLINS: Please. 20 MR. VORSTER: Just so you understand what Attachment 11 21 is, I took the different year types that have been used for 22 Rush Creek, and I took representative years to represent a 23 typical year in that year type. And I then looked at what 24 the recommended channel maintenance flows were for the 25 different proposals: Decision 1631, DWP proposed flow 1228 01 regimes, the ad hoc subcommittee's recommendation in 02 February 1996, and the scientists' October 1995 03 recommendations. 04 And in the lighter type we have the magnitude and 05 duration of their recommendations. And I compared the 06 duration with the unimpaired in that particular year type. 07 So, for example, if you wanted to look at a 1980 wet year, 08 you would see that the scientists' recommendation of 500 09 cfs for five days in that year type, in that particular 10 year, there were 15 days in excess of 500 cfs. In fact, the 11 peak flow was 801 cfs. 12 MR. ROOS-COLLINS: Mr. Vorster, excuse me. Before you 13 proceed further with explanation of Attachment 11 to your 14 written testimony, could you focus specifically on the 15 magnitude of 350 cubic felt per second and explain to the 16 Board what this comparison shows with regard to that 17 magnitude specifically? 18 MR. VORSTER: Well, we don't have a 350 listed except 19 for the scientists' flows in normal one and normal two. So 20 we will have to use the flows closest to 350 cfs, as 21 something close to that. 22 So, for example, in DWP's proposal normal two years, 23 you have flows of 380 cfs for five days, and in that 24 particular year, 1979, there were 25 days in excess of 380 25 cfs. 1229 01 MR. ROOS-COLLINS: 25 days of unimpaired flows? 02 MR. VORSTER: Right. And the ad hoc also recommended 03 380, and the scientists', in October 1995, recommendation 04 was 400. And, indeed, 25 days exceeded 400 cfs. 05 MR. ROOS-COLLINS: Does this attachment show us 06 unimpaired flows -- excuse me, impaired flow? 07 MR. VORSTER: No. This is comparing proposed channel 08 maintenance flow recommendations with the unimpaired flows 09 in these particular years and comparing them both in 10 duration and magnitude. It shows the magnitude of the 11 unimpaired peak flows in these particular years. 12 MR. ROOS-COLLINS: I understand that it is difficult 13 to summarize the duration associated with any given flow 14 across all of these different proposals. 15 Would it be correct, however, to conclude that Los 16 Angeles's proposal would equal or exceed 350 cubic feet per 17 second for a shorter duration than unimpaired flows? 18 MR. VORSTER: Yes. 19 MR. ROOS-COLLINS: Let's move on now to a different 20 flow magnitude, now 500 cubic feet per second. Again, I ask 21 you to assume that 500 cubic feet per second. Is that flow 22 necessary to start a physical process such as flood plan 23 inundation? 24 Given that assumption, how often would unimpaired flows 25 equal or exceed 500 cubic feet per second? 1230 01 MR. VORSTER: In about half the years. 02 MR. ROOS-COLLINS: At least once. 03 MR. VORSTER: At least once the flows exceeded 500 cfs. 04 MR. ROOS-COLLINS: How often did impaired flows -- how 05 often do impaired flows equal or exceed 500 cubic feet per 06 second? 07 MR. VORSTER: During the period 1941 to 1990, they 08 exceeded 500 cfs, I think, twice, 1967 and possibly 1983. I 09 would have to check that. So, four percent -- in four 10 percent of the years. In 1995 they also exceeded 500 cfs. 11 MR. ROOS-COLLINS: Under Decision 1631, how often would 12 the flows exceed equal or exceed 500 cubic feet per second? 13 MR. VORSTER: The same. Because in those year types, 14 if we had years similar to 1967 and 1983 occur in the 15 future, under D-1631, Los Angeles would have no choice but 16 to release those flows down the stream into Grant Lake. 17 Grant Lake would spill or -- excuse me, in 1967 Grant Lake 18 would spill and the flows -- if Grant Lake spilled the flows 19 would be greater than 500 cfs under D-1631. It's likely 20 that Grant would spill in those years. 21 MR. ROOS-COLLINS: You began your answer by saying "the 22 same." You mean the same as you prior answer? 23 MR. VORSTER: Yes, I'm sorry. 24 MR. ROOS-COLLINS: Approximately four percent of the 25 time? 1231 01 MR. VORSTER: Correct. 02 MR. ROOS-COLLINS: Finally, under Los Angeles' 03 proposal, how often would flows equal or exceed 500 cubic 04 feet per second? 05 MR. VORSTER: In Los Angeles' proposal, 500 cfs or 06 more would occur in the extreme year type, which represent 07 eight percent of the years. Extreme years are 1983, 1969, 08 1982, and I think maybe '67. I can't remember if '67 was 09 considered a wet or extreme year. But in 4 out of the 50 10 years, the flows would equal or exceed 500 cfs. 11 MR. ROOS-COLLINS: Let me turn now to a third issue and 12 my last with you, which is the impact on Los Angeles' 13 operations of dedicating more water to channel maintenance 14 than required by Decision 1631. 15 Do you have the Grant Lake Operations and Management 16 Plan in front of you? 17 MR. VORSTER: No, but I can get it. 18 MR. ROOS-COLLINS: Let me show this plan, which is Los 19 Angeles -- this plan, and specifically Page 51, final 20 paragraph. 21 Los Angeles estimates that compliance with the base and 22 channel maintenance flow requirement of D-1631 would require 23 approximately 76,000 acre-feet of water on average during 24 the transition period, and compliance with the lake target 25 requirement would require an additional 30,000 acre-feet or 1232 01 so. 02 Do you see that discussion? 03 MR. VORSTER: Yes. I would slightly clarify your 04 reading of that. I think they say the long-term average 05 release requirement to the Mono Basin streams of 76,000 06 acre-feet per year. I think they are representing that as 07 the base flow requirement, the fish flow requirements, if I 08 read that correctly. And during the transition period on 09 average an additional 30,000 acre-feet above and beyond the 10 minimum stream flow requirements will be released into the 11 Mono Basin creeks. 12 I would have to -- I am not sure that 30,000 does or 13 not -- does or does not include the channel maintenance flow 14 requirements of D-1631. But I think it may not. 15 MR. ROOS-COLLINS: You are familiar with the plan's use 16 of the term "lake maintenance water" to describe that block 17 of 30,000 acre-feet on top of the stream requirements. 18 MR. VORSTER: Yes. 19 MR. ROOS-COLLINS: If this Board were to adopt a 20 channel maintenance schedule in excess of the one already 21 required by Decision 1631, where would the water come from? 22 MR. BIRMINGHAM: Objection. Calls for speculation. 23 CHAIRMAN CAFFREY: It probably does. 24 MR. BIRMINGHAM: Mr. Roos-Collins can ask him to 25 identify sources of the water, but he can't ask him to 1233 01 identify where the water would come from. 02 MR. ROOS-COLLINS: I withdraw the question. 03 CHAIRMAN CAFFREY: That is a fair ruling, Mr. 04 Birmingham. Thank you. 05 MR. BIRMINGHAM: You're welcome. 06 CHAIRMAN CAFFREY: I was just going to say that. 07 MR. DODGE: I am getting a little concerned here. When 08 I complained to you about my sources -- my place in the 09 cross-examination earlier in this proceeding, I was laughed 10 out of room. Mr. Birmingham complains last week, and he 11 immediately was put where he wants to be. Now he is making 12 rulings. 13 CHAIRMAN CAFFREY: I will let you rule before this 14 hearing is over. 15 MR. DODGE: Thank you. 16 CHAIRMAN CAFFREY: You get one ruling. 17 The question is withdrawn, so there is no need to rule 18 in this particular case. 19 Go ahead, Mr. Roos-Collins. 20 MR. ROOS-COLLINS: Mr. Vorster, assuming that for the 21 purpose of this question that water is not imported from Lee 22 Vining Creek, and assuming further that this Board amends 23 Decision 1631 to require channel maintenance flows in excess 24 of those already required, can the additional flows come 25 from what is characterized here as lake maintenance water? 1234 01 MR. VORSTER: Yes. 02 MR. ROOS-COLLINS: Thank you. 03 No further questions. 04 CHAIRMAN CAFFREY: Thank you very much, Mr. 05 Roos-Collins. 06 CHAIRMAN CAFFREY: Ms. Cahill, good afternoon. 07 MS. CAHILL: Afternoon. 08 ---oOo--- 09 CROSS-EXAMINATION 10 BY DEPARTMENT OF FISH AND GAME 11 BY MS. CAHILL 12 Q. Mr. Harrison, I would like to start with some questions 13 on your testimony. On Page 7 of the testimony, you estimate 14 the cost of a Grant Lake tunnel outlet and you state that 15 you have added 30 percent for contingency, which you believe 16 to be conservative. 17 Is that right? 18 MR. HARRISON: Yes. I believe the overall estimate to 19 be conservative. 20 MS. CAHILL: By conservative, do you mean -- would you 21 explain what you mean by conservative in this case? 22 MR. HARRISON: The real costs are likely to be less 23 than the estimated cost, definition of conservative for this 24 purpose. 25 MS. CAHILL: So, it would be your opinion that an 1235 01 estimated contingency allowance of 40 percent would be 02 higher than required? 03 MR. HARRISON: Perhaps not. It depends on the level of 04 unknowns. I put on this particular case, easily, since the 05 contingency is in the range of 30 to 40 percent. 06 MS. CAHILL: But expecting the actual cost to always be 07 less? 08 MR. HARRISON: Yes. 09 MS. CAHILL: Further down in Table 1 you cost out three 10 Howell-Bunger valves. Can you tell us what size of 11 Howell-Bunger valves you were costing? 12 MR. HARRISON: That I more or less followed DWP's lead 13 and assumed 30-inch valves. These are, again, approximate 14 estimates of the cost. 15 MS. CAHILL: Did you have Los Angeles' figures where 16 you prepared your testimony? 17 MR. HARRISON: I did. 18 MS. CAHILL: So, can you explain the discrepancy where 19 you cost a 30-inch Howell-Bunger valve at $50,000 each, and 20 Los Angeles costs them at $125,000 each? 21 MR. HARRISON: Well, I don't know that is a specific 22 discrepancy. I quoted both a price here for valves and for 23 valve installation. So there is not that big -- quite that 24 big a difference as implied by the numbers for the valves 25 themselves. I think SCE's figure includes both their 1236 01 furnishing the valve and installation. 02 MS. CAHILL: If you sum your purchase and 03 installation, what is the total cost? 04 MR. HARRISON: It would be $66,667 there from the 05 document. 06 MS. CAHILL: For three of them? 07 MR. HARRISON: For three of them, it would be three 08 times that or $200,000. 09 MS. CAHILL: That is still well below Los Angeles' 10 estimate of $375,000? 11 MR. HARRISON: Yes, it is. 12 MS. CAHILL: You discussed various methods of achieving 13 flows of 600 cfs in Rush Creek; is that correct? 14 MR. HARRISON: Yes. I discussed those methods proposed 15 by DWP. I did not bring up any new methods. 16 MS. CAHILL: With regard to flows of 600 cfs, is it 17 your opinion that a new release facility would be able to 18 release those flows more reliably than what we call the Lee 19 Vining augmentation? 20 MR. HARRISON: Yes, that is my opinion. 21 MS. CAHILL: You have explained a little bit of what 22 Iowa vanes are. And do they result in continuous sediment 23 passage? 24 MR. HARRISON: No. They would result in sediment 25 passage when there is sufficient flows of sediment 1237 01 manufactured in the system. When there is no sediment 02 moving in the system, they would not be passing sediment. 03 MS. CAHILL: Would they be passing gravel or just 04 fines? 05 MR. HARRISON: They could pass gravels as wells as 06 fines. Depends on the flow velocities and configurations. 07 MS. CAHILL: Would you expect them, for the cost that 08 you estimated, to pass gravel or would that take additional 09 engineering? 10 MR. HARRISON: My estimate is construction cost. It 11 does not estimate the engineering studies or design that 12 should go into this. 13 MS. CAHILL: So, it would depend on the design, whether 14 they were actually able to pass gravel as well? 15 MR. HARRISON: Right. I feel confident that designs 16 could be developed that at given flows it would pass 17 gravel. 18 MS. CAHILL: Are you familiar with Iowa vanes that have 19 actually be installed on various rivers? 20 MR. HARRISON: Physically, I've personally never seen 21 one. I've seen videos, pictures, and videotapes of model 22 studies. 23 MS. CAHILL: Do you have any idea what the O&M costs 24 would be of Iowa vanes solution? 25 MR. HARRISON: No. I would expect it, however, to be 1238 01 quite low. They're not a mechanical system. They are a 02 fixed and active-passive type device. 03 MS. CAHILL: This Iowa vane solution would not allow 04 the upstream migration of fish, would it? 05 MR. HARRISON: It would make no difference. 06 MS. CAHILL: The third option, the bypass channel, 07 could you pull up your graphic? You mentioned that this was 08 a high flow bypass; is that right? 09 MR. HARRISON: Yes. I said high flow. It could also 10 release -- I would also explain it could release flows 11 throughout the year that were in excess of the needs for 12 diversion. 13 MS. CAHILL: Were you aware that Los Angeles' 14 proposal is to let Walker and Parker Creeks, basically, flow 15 through in all years except dry years? 16 MR. HARRISON: I am not aware of that specific 17 statement at this time. I probably read that and I have 18 forgotten it. 19 MS. CAHILL: Let me ask you if there is another 20 plausibility. Assume that on Walker Creek and Parker Creek 21 the flows that come downstream continue downstream in all 22 year types except the dry years. So that they would come 23 down and make the circle and go on in almost all cases. 24 MR. HARRISON: You are stating there would be no 25 diversions in this? 1239 01 MS. CAHILL: No versions at all in all year types with 02 the exception of dry. So that the high flows for which you 03 designed would always be going around. And that in those 04 dry years it would be necessary to divert on Walker 4 cfs 05 and 6 cfs, and on Parker 6 cfs and 9 cfs. I don't know 06 quite how to ask you this without sort of coming to the 07 graph. 08 If all you needed to pass was a maximum of, let's say, 09 9 cfs only in dry years, instead of having your division 10 structure here that divides the flow, could you instead 11 design the channel so that almost all the time the entire 12 flow goes in your bypass channel with some sort of 13 structure, using boards or some other facility, so that in 14 the 20 percent of the year when those low flows are required 15 to be released, they could be released to then be put into 16 the conduit? 17 MR. HARRISON: Yes, that is avery easy possibility, 18 very easy to accomplish. 19 MS. CAHILL: Would that tend to be more expensive or 20 less expensive than what you have designed? 21 MR. HARRISON: I think it would probably be about the 22 same. Still have to have attach some kind of headwork 23 structure to accomplish that. I haven't detailed this 24 headwork structure in any way. 25 MS. CAHILL: If the headworks structure were here, as 1240 01 opposed to across this whole channel, would then upstream 02 fish migration be a possibility at all times? 03 MR. HARRISON: Well, I am not a fisheries' expert 04 either, so I don't think I will respond to that. 05 MS. CAHILL: Fair enough. 06 There would be no impediment in that hypothetical where 07 the structure is used to release water into the pond and the 08 conduit, there would not need to be a barrier across the 09 bypass channel? 10 MR. HARRISON: True. What I have shown here, it looks 11 like a dam. This is a cartoon. It isn't an engineering 12 drawing. So, certainly, in my imagination about what this 13 thing could look like, it could be designed to allow fish -- 14 unimpeded water for fish, I believe, to swim up. Expert or 15 not. 16 MS. CAHILL: Thank you very much. 17 Actually, I think those are the only questions I do 18 have for you. One last one. You indicated that you had had 19 the opportunity to review Los Angeles' numbers. Their cost 20 estimates for a fish and bypass sediment on Walker and 21 Parker Creek is $1.6 million. 22 Do you believe that to be in the ballpark? 23 MR. HARRISON: I looked at their estimate. I really 24 didn't understand what they were trying to design in costs, 25 so I really am not in a position to comment on it, other 1241 01 than it seems very high to me. 02 MS. CAHILL: For the type of facility you have designed 03 here, which you said would be probably about the same cost 04 as what I was describing, tell us again what you think the 05 construction costs of that might be. 06 MR. HARRISON: Construction of a bypass channel, as I 07 estimated, is $250,000 Lee Vining Creek and 50,000 each for 08 Walker Creek and Parker Creek. 09 MS. CAHILL: Thank you. 10 Mr. Vorster I have few questions for you. 11 In your testimony, you addressed what we call the Lee 12 Vining augmentation as a method of getting up to flows of 13 approximately 500 cfs on Rush Creek. 14 How often will the Lee Vining augmentation need to be 15 used if Los Angeles' plan is implemented? 16 MR. VORSTER: It would need to occur in 40 percent of 17 the year types, which is the wet normal, wet and extreme 18 year types. 19 MS. CAHILL: In your opinion, is the reliability of the 20 Lee Vining augmentation, is it as reliable as a new release 21 facility from Grant Dam would be? 22 MR. VORSTER: No. As I testified, it would not be as 23 reliable. I think the events in 1996 confirm that. 24 MS. CAHILL: You testified with regard to the timing of 25 the peak on Rush Creek, that it might be delayed as much as 1242 01 three weeks the way the plan is described? 02 MR. VORSTER: In some years it could be delayed as 03 much as three weeks. 04 MS. CAHILL: What are the impacts then on Lee Vining 05 Creek of this augmentation plan? 06 MR. VORSTER: Well, there are a number of possible 07 effects. Depending on exactly how well the forecasting and 08 backcasting procedure that DWP has outlined were, it is 09 possible, for example, that the Lee Vining peak flow, the 10 primary peak, would be diverted. 11 Or what we do know is that flows of up to 150 cfs will 12 be diverted on the backend of the peak flow hydrograph, 13 which could take out up to three-quarters of flow. 14 MS. CAHILL: So, in other words, when we talk about 15 magnitude, timing, and duration, at a minimum this might be 16 affecting the duration of the Lee Vining peak? 17 MR. VORSTER: That's correct. 18 MS. CAHILL: What happens in those years when there 19 might be multiple peaks on Lee Vining Creek? 20 MR. VORSTER: In those years where there are multiple 21 peaks, which is the normal situation, snow melt hydrograph, 22 such as we see in Lee Vining Creek, you do get multiple 23 peaks and peaks, secondary peaks, that would occur after the 24 primary peak, assuming that DWP is able to predict when the 25 primary peak occurs, would be diverted, and you wouldn't 1243 01 have the benefit of that secondary peak. 02 MS. CAHILL: So, we would be, in effect, not having the 03 natural variability that you would otherwise have in the 04 stream? 05 MR. VORSTER: You would, basically, be restricting the 06 Lee Vining Creek to a potentially a single peak, similar to 07 what Grant Lake is going to be doing to the Rush Creek peak. 08 MS. CAHILL: Did you attempt to model what the Lee 09 Vining augmentation might do in certain years? 10 MR. VORSTER: I am not sure if I would use the word 11 "model." What I did do is, I looked at a couple year 12 types, for example 1980, which is a wet year, and 1982, 13 which is an extreme year. And I tried to put myself in the 14 position of being a DWP operator and trying to apply the 15 procedures that they have outlined that would occur, both 16 this forecasting and backcasting procedure. And it's 17 unclear exactly when they would begin their diversion for 18 augmentation. Because when you're actually in that 19 situation, you don't have the benefit of knowing what is 20 going to occur. All you have is the benefit of your 21 forecast that suggests approximately a window of time when 22 you expect your peak to occur and the approximate 23 magnitude. 24 But, obviously, in any particular year type the unique 25 situations will determine those, when they would occur. So 1244 01 it is possible, for example, that in looking at 1980 and '82 02 and it is -- if we had flows, runoff, similar to those, that 03 in 1982, for example, which is an extreme year where 150 cfs 04 is required to be diverted, that the flows -- if 150 cfs 05 were diverted, the flows would drop below D-1631 minimums. 06 Of course, DWP would not allow that to occur. So, you would 07 not be able to get the full 150 cfs. 08 MS. CAHILL: You wouldn't be able then to get the full 09 amount, which, added to the upgrade return ditch, would give 10 500 cfs? 11 MR. VORSTER: That is correct. 12 MS. CAHILL: In that year what you did get, would it be 13 later than the ordinary peak on Rush Creek? 14 MR. BIRMINGHAM: Objection. Ambiguous. 15 MS. CAHILL: In that year that you looked at, when you 16 did augment with Lee Vining, even though it was less than 17 the full 150, would that water arrive at Rush Creek at a 18 time later than the Rush Creek peak? 19 MR. BIRMINGHAM: Objection. Ambiguous. 20 MS. CAHILL: Would it arrive later at the impaired Rush 21 Creek peak? 22 MR. VORSTER: I looked at -- again, it is hard to say 23 exactly when they would divert. That is one of the 24 problems, because the procedures are not real clear in my 25 mind in terms of how the forecasting and backcasting 1245 01 procedures would actually be implemented. Let's say it 02 leaves some discretion, obviously, to the operator as to how 03 to implement them, given as they are stated right now. So, 04 it is possible that, depending on when the Lee Vining 05 diversions occur, that the Rush Creek peak with the 06 augmented flows would occur after the unimpaired peak. It 07 is possible that they could time it to be more closely 08 aligned. But then, if they did that, they'd probably be 09 diverting the Lee Vining Creek peak. 10 MS. CAHILL: Can you just tell me what you mean by 11 "backcasting"? 12 MR. VORSTER: That is actually a term that I think I'll 13 give Dave Allen credit for it. Or if he doesn't want to 14 take credit for it, I will take credit. Just a term that 15 the two of us have been using in describing procedure that, 16 as he explained it to me, that is the way you can tell that 17 a peak flow has occurred in Lee Vining Creek is in looking 18 at the historic record, that if there have been seven 19 consecutive days of declining flow, you would be assured 20 that the peak has occurred. In other words, during the peak 21 flow hydrograph you get flows that go up and down, up and 22 down. When they finally start declining for seven 23 consecutive days, you know, at least based upon historical 24 records that we have, that you will have passed the peak. 25 So, it is only by seeing how many consecutive days of 1246 01 declining flow that there has been and seeing that it has 02 been seven or more days, well, you have known that peak has 03 occurred. 04 MS. CAHILL: Even then, there is uncertainty, is there 05 not? 06 MR. VORSTER: The future can always be different than 07 the past. 08 MS. CAHILL: Let me switch briefly over to the 09 Mill-Wilson Creek system. Given current circumstances, is a 10 portion of Mill Creek dry with some regularity? 11 MR. VORSTER: Oh, yeah. In those years when there is 12 not a spill from or release from Lundy Dam, the common 13 occurrence for most of the year is that Lee Vining Creek, 14 down around the County Road -- 15 MS. CAHILL: You mean Mill Creek? 16 MR. VORSTER: I'm sorry, Mill Creek. I had to 17 switch. 18 Mill Creek, down around the County Road, is dry or has 19 residual pools because, especially during irrigation season 20 when the water that is in Mill Creek, this spring flow gain 21 that is Mill Creek and any water return from the Wilson 22 ditch by the Mill Creek Return Ditch, any water that is in 23 Mill Creek is going to diverted by the irrigation ditches. 24 If there is water left over, which might be, you know, 25 anywhere from 2 to 5 cfs, if any, by the time it gets down 1247 01 to the County Road, there is very little, if any, water 02 left. It is a fairly common occurrence during the summer. 03 It is -- actually, when Larry Harrison and I were there last 04 October, we, indeed, saw just pools of water down at Mill 05 Creek. It's -- 06 MS. CAHILL: If Los Angeles were to dedicate its water 07 right and do nothing more, would there still be periods in 08 which Mill Creek would go dry? 09 MR. VORSTER: Yes. If Mr. Reise can turn the folders 10 back to the first one, Scenario 1, Scenario 1, as it is 11 currently displayed, says expected the Mill-Wilson flows if 12 DWP dedicates existing rights and appropriate October 13 through April water. So, if we just look at the period May 14 through September, that is the irrigation period in which 15 DWP could dedicate their rights, you can see in a dry year 16 that Mill Creek below the County Road is restricted to less 17 than cfs here [verbatim]. Again, to me that represents a 18 condition that it may have water; it may not have water. 19 MS. CAHILL: If they didn't also get the appropriation, 20 what would happen in the winter months? 21 MR. VORSTER: If they did not get the appropriation, 22 you would just basically take away these numbers and make 23 them zero. 24 MS. CAHILL: We need to describe what that is. 25 This is -- 1248 01 MR. VORSTER: I'm sorry. This Scenario 1, and I am 02 describing Mill Creek below the County Road in any of the -- 03 especially the normal and dry year types, and, in fact, in 04 the wet year types. If they do not -- if they are not 05 successful in appropriating the water from Wilson or from 06 the power plant discharge, then there will be, essentially, 07 no water in Mill Creek down around the County Road unless 08 they are able to -- they have a 1 cfs right that, if they 09 are able to feel they can bring that over in the wintertime, 10 there would be that amount of flow they can bring back. By 11 the time you get down to the County Road, it would not be 12 there. 13 If they were not successful in getting their 14 appropriation, then the flow, Mill Creek at County Road, 15 would be zero or very little flow. 16 MS. CAHILL: From approximately October through -- 17 MR. VORSTER: October through April. Basically, any 18 time the water flow was less than 12 cfs. The impaired at 19 Lundy Reservoir was less than 12 cfs, which you can see on 20 this exhibit for Scenario 1, looking at the impaired at 21 Lundy Reservoir in all the different year types, it's fairly 22 uncommon for the flows to be above 12 cfs. 23 MS. CAHILL: Wilson Creek, given current circumstances, 24 does part of Wilson Creek go dry in dry years? 25 MR. VORSTER: Yes. I have observed in dry years Wilson 1249 01 Creek being dry below the Conway Ranch. 02 MS. CAHILL. If Los Angeles dedicated its water right 03 to Mill Creek, would you expect that to increase the number 04 of years in which Wilson Creek might go dry or have not much 05 impact? 06 MR. VORSTER: It would have some impact. It would 07 increase the amount of time that Wilson Creek could go dry 08 below Conway Ranch. 09 MS. CAHILL: Thank you very much. Thank you all. 10 I have questions for Dr. Stine, but they fit more in 11 his testimony for Cal Trout. I will hold them till then. 12 CHAIRMAN CAFFREY: Thank you, Ms. Cahill. 13 MR. BIRMINGHAM: Mr. Caffrey, I would like to ask for 14 an opportunity of a recess to confer with Mr. Dodge, Ms. 15 Scoonover, Ms. Cahill on an issue of some importance, and 16 Mr. Roos-Collins. 17 CHAIRMAN CAFFREY: How much time do you all need? 18 MR. BIRMINGHAM: Ten minutes. 19 CHAIRMAN CAFFREY: Let's take a brief recess for 10 or 20 15 minutes. 21 (Break taken.) 22 CHAIRMAN CAFFREY: We're back from our recess. 23 Gentlemen, did you -- 24 MR. BIRMINGHAM: Actually, we would like at this point, 25 Mr. Caffrey, to ask for another recess. But let us take a 1250 01 few moments and explain the reasons for it. 02 CHAIRMAN CAFFREY: Please. 03 MR. BIRMINGHAM: The Department of Water and Power of 04 the City of Los Angeles has been, as you know, talking with 05 a number of the other parties to this proceeding concerning 06 a settlement. It has reached agreement in principle with 07 the California Department of Fish and Game, California 08 Trout, Incorporated, the Mono Lake Committee, National 09 Audubon Society, State Lands Commission, Department of Parks 10 and Recreation. But we have not had an opportunity to -- 11 CHAIRMAN CAFFREY: And U.S. Forest Service. 12 MR. BIRMINGHAM: And the U.S. Forest Service, excuse 13 me. 14 We have not had an opportunity to talk about our 15 settlement proposal with the People from Mono Basin 16 Preservation, nor BLM, nor Arcularius Ranch. We would like 17 to ask for another brief recess so we can present it to 18 them, with the hope that if they think this is something 19 worth pursuing, we would ask the State Board to continue the 20 hearing for a period of time to allow us to put the 21 agreement in writing. 22 CHAIRMAN CAFFREY: Let me just tell you that I can't 23 speak for Ms. Forster, but I suspect that she is going to 24 agree with me. We are certainly amenable to help you in any 25 way we can, to at least present an atmosphere and provide 1251 01 you the opportunity to reach some kind of settlement. 02 Obviously, it has to -- well, it doesn't have to. The more 03 parties that you can involve in it, the easier life becomes, 04 in terms of this hearing process, for all of us. 05 MR. DODGE: Without discussing the details, we are not 06 free to discuss the details with you. I have every reason 07 to believe that this settlement in principle should be 08 acceptable to the other parties to this proceeding. 09 CHAIRMAN CAFFREY: You said a brief recess. Do you 10 want to come back again this afternoon or take a recess 11 until tomorrow morning? I mean, we will try to be flexible. 12 What is it that you need? And recognizing, too, that Ms. 13 Bellomo and others are on limited time. 14 MR. BIRMINGHAM: They are completely in the dark on 15 this. I suspect we probably would like to come back this 16 afternoon, if possible. What I was thinking was perhaps a 17 15 minute to half an hour break. The one condition that we 18 would ask for is that the terms of the discussions that we 19 have with them remain confidential. Because in the event 20 that we are unable to reach agreement with all the parties, 21 we would not want the discussions that have occurred to 22 become public and prejudice the position of any of the 23 parties to those discussions. 24 CHAIRMAN CAFFREY: By that, I assume that if you all 25 can agree in principle that you have something, you don't 1252 01 want to tell the Board the details until you pound it out 02 and come back after a more extended recess. 03 MR. DODGE: And equally important, if we can't agree, 04 that we don't want the terms of our discussion disclosed to 05 third parties or to the Board or to staff. In fact, we 06 filed with the Board last September or October a stipulation 07 of confidentiality. 08 CHAIRMAN CAFFREY: You did. 09 MR. DODGE: We would like any party who wants to 10 discuss the tentative settlement to agree to the terms of 11 that stipulation. 12 CHAIRMAN CAFFREY: Ms. Forster. 13 MS. FORSTER: What were you going to say, Jerry? 14 MR. JOHNS: I was going to ask the parties here, are 15 they willing to agree to that or not? 16 CHAIRMAN CAFFREY: Is that agreeable to the parties for 17 the purposes of discussion, to keep it confidential? 18 MS. BELLOMO: If I could just ask for clarification at 19 this point. I know that since we are an organization, I 20 know principals of the organization, they must have some 21 circle of people that are allowed to know. Right? For 22 instance, Buddy Hoffman probably knows about the terms of 23 the settlement. Again, within your organization we have a 24 circle of people who are our decision making, you know, 25 participate in the decision making. We would like them to 1253 01 be privy to it as well. Since we have Heidi Hess-Griffin, 02 the secretary and treasurer of our group, she should be 03 privy to it, I would think. 04 With that understanding, that would be fine. 05 MR. DODGE: As long as the people who are privy to it, 06 agree to keep it just to yourselves, that is not a problem. 07 CHAIRMAN CAFFREY: And, of course if it doesn't go 08 forward, that confidentiality still abides, so to speak. 09 MR. DODGE: That is actually the purpose of it, of 10 course. 11 CHAIRMAN CAFFREY: Absolutely. 12 Is BLM agreeing? 13 MR. RUSSI: I would agree to going along with the 14 stipulation of confidentiality. 15 CHAIRMAN CAFFREY: Let's ask this, is there any party 16 who objects? 17 Mr. Haselton? 18 MR. HASELTON: We agree. Same concern as Ms. Bellomo 19 had within -- I represent basically two entities. That I 20 just need to have definition of who I can share that with. 21 CHAIRMAN CAFFREY: If I hear this, then you have 22 confidential circles that you are all separately a part of 23 which do not extend very far and which you need to share 24 information with them in order to get authorization to 25 either agree or disagree, so to speak. 1254 01 I don't see anybody objecting to that, so, that being 02 the case -- I am sorry, Mr. Dodge. 03 MR. DODGE: I was going to add, I think at least within 04 the group that has this tentative settlement, our feeling 05 is, subject obviously to Board's decision, but our feeling 06 is that if there is some party to this proceeding that does 07 not agree in principle to the settlement, that we ought to 08 proceed with testimony. And that if, on other hand, all 09 parties agree in principle to the settlement that we ought 10 to defer testimony for a period of time and try to get an 11 agreement in writing. 12 Now, let me say that this is not the simplest 13 settlement that I have ever dealt with, and, you know -- 14 CHAIRMAN CAFFREY: I don't find that hard to believe. 15 MR. DODGE: There will be many steps between an 16 agreement in principle and a written agreement. I happen to 17 believe that the parties that have been privy to these 18 negotiations are all acting in good faith, and those steps 19 can be taken. But there is no guarantee of that. 20 CHAIRMAN CAFFREY: Certainly, the reason we are all 21 here is for one main reason, and that is to provide not only 22 the protection of the Lake, which we have done to some great 23 degree, but also protection of the streams and the 24 waterfowl. 25 And anything that we can do to facilitate that and 1255 01 expedite that is something that this Board is very, very 02 interested in. So, I certainly am amenable to -- let's 03 start out by granting at least a half hour recess right now, 04 and then see where that brings us, and when we come back we 05 can have some more discussion. 06 Again, I would say, I would want to consult with Mr. 07 Frink when we get to that point, a half hour from now. I 08 can certainly see a situation where it might not make a lot 09 of sense to continue today if you have an agreement in 10 principle with everybody. But we can get to the details of 11 that in a little while. 12 MR. DODGE: I would think that the rest of the day 13 would best be spent by Ms. Bellomo and her group and the 14 Arcularius group and the BLM getting on the phone, to 15 whomever they have to get on to the phone to, and rather 16 than testimony. But, again, it is up to you. 17 CHAIRMAN CAFFREY: That may very well be. That is 18 where I personally come down. We'll -- why don't you have 19 your half hour discussion and come back and see where we 20 are. I just don't want to jump ahead of everybody and not 21 allow them to have their say. 22 Let's try for a session in about ten minutes to -- 23 let's just make it 3:00. Will that help? 24 Why don't we all come back at 3:00, and we will just 25 kick it around a little bit and see where we are. 1256 01 (Break taken.) 02 CHAIRMAN CAFFREY: All right. Welcome back everybody. 03 Do we have a report? 04 MS. BELLOMO: May I report for our group? 05 CHAIRMAN CAFFREY: Please, Ms. Bellomo. 06 MS. BELLOMO: We need to consult with members of our 07 group, and we would like to get back to you tomorrow morning 08 with some sort of response, maybe a final response or status 09 report. Until we talk to people, I wouldn't know. 10 So my proposal would be that we continue this afternoon 11 to make use of the time, in the event this doesn't manifest. 12 Then we are still going to need to go forward with 13 cross-examination of people. Seems like a good time, time 14 well spent if we did that today. But anyway, I certainly 15 would leave that up to you. 16 The other questions that I had was without divulging 17 any of the terms of the settlement, is there any possibility 18 that there is anyone on the Water Board staff that could be 19 made available to us just to help us understand what the 20 process would be like if there isn't a settlement, not to 21 talk about the settlement itself. I don't know that we 22 really understand the proceeding well enough here to know 23 what is it we are giving up or how a settlement would be 24 dealt with or anything like that. 25 CHAIRMAN CAFFREY: It depends on the settlement. 1257 01 Depends on the details of the settlement. I don't know. Is 02 that appropriate, Mr. Frink? 03 MR. JOHNS: We can address some of that now. 04 CHAIRMAN CAFFREY: Depends on how the parties felt 05 about it, obviously. 06 MR. FRINK: I would say that everyone should understand 07 that, even if a settlement is reached among the parties, the 08 Board still has to be satisfied that the plans or elements 09 of the plans that it directs to be implemented, meet the 10 requirements of Decision 1631. And it is conceivable that 11 the parties may come up with a proposed settlement that 12 doesn't do something that the Board wants done or it is 13 conceivable that they propose that the Board oversee 14 something that the Board isn't interested in overseeing. It 15 can greatly, greatly shorten and simplify the procedure. 16 CHAIRMAN CAFFREY: That is what I meant by depends on 17 the settlement. 18 MR. FRINK: Even if a settlement is reached amongst the 19 parties, it is not the end of the process. The Board would 20 put out a proposed decision, and there would have to be a 21 Board meeting adopting it and so forth. 22 MS. BELLOMO: Proposed decision on the settlement? Or 23 decision on the settlement or -- 24 MR. FRINK: They would put a proposed order on the 25 reclamation plan, maybe based very much on the settlement, 1258 01 if the Board decided that is the way to go. 02 If the Board decided that the settlement did not cover 03 a lot of things that it thought should be covered and it 04 wanted more evidence, it could resume the hearing. But we 05 wouldn't know that until the Board sees and can discuss the 06 settlement. 07 MS. BELLOMO: If there were a settlement that was a 08 settlement of some of the parties, but not all of the 09 parties, then what is the procedure here? 10 CHAIRMAN CAFFREY: Say potential procedure. 11 MS. BELLOMO: Would you go through -- 12 CHAIRMAN CAFFREY: Some of the parties are -- let's 13 say some of the parties settled, and that could be brought 14 into the hearing record and other parties could examine it, 15 and the Board can take its final action considering the 16 settlement, giving weight of evidence to whatever way it 17 feels is appropriate. 18 MS. BELLOMO: We would go forward with the presentation 19 of the parties and their original testimony, those that had 20 not settled? 21 CHAIRMAN CAFFREY: Yes. In short, we would -- it 22 would somehow be folded into this proceeding. It might have 23 an impact on who would be interested at that point in 24 cross-examining or how much they would want to do. But we 25 would still see the process to the end, in some fashion. 1259 01 MS. BELLOMO: If there was a settlement signed by all 02 the parties, then would there be no further presentation of 03 evidence by those parties? For instance, our group would 04 then not present our testimony here, or would you go forward 05 and take all the testimony, enter it into the record that it 06 already has been offered? 07 CHAIRMAN CAFFREY: Again, it depends on the details of 08 the settlement. If you were to tell us today that all -- 09 this is hypothetical. If you all would come and say, "Gee, 10 we think we are real close to something. We don't know what 11 value it is to continue going through the process that we 12 are going through now; we'd like a recess for a week or so 13 because we think we are going to be able to put this thing 14 on paper, and we think you are going to like it, Board." I 15 can't speak for Ms. Forster, but I think I would be amenable 16 to that. 17 The other thing I would not want to do, though, is I 18 would not want what we have done here thus far to get stale, 19 if you will. I would not want to give too much time. 20 Because, if things did not work out among the parties, we 21 might have to come back in here sooner than later and keep 22 all this going. We all have a lot invested in this. I just 23 don't want to throw this out. Some time, some hiatus would 24 be appropriate if we all agreed to it. 25 MR. JOHNS: It also might be helpful if the parties 1260 01 could dress through their stipulation, or perhaps outside of 02 that, how they wanted the rest of the hearing to go. It is 03 possible, for example, that we could rely on the written 04 testimony that has been presented, and not have to go 05 through the oral testimony and the cross and the rebuttal 06 and all that stuff. As you guys talk about those kinds of 07 actions, it would help us a lot to get input from you on how 08 you thought we should proceed from here. 09 MS. BELLOMO: I could ask of the other parties, do you 10 have rules of practice and procedure that govern settlement 11 procedures here? 12 MR. FRINK: Not really. I do have -- the Board has 13 that experience in one other instance in which a proposed 14 settlement was offered, and everybody thought that it 15 resolved everything. It turned out that it didn't, and the 16 status of the evidentiary record was left very unclear. I 17 don't think we want to get into that again. A number of the 18 exhibits and a lot of the testimony have already been 19 admitted into the record. 20 It would probably be helpful if, as a part of the 21 settlement proposal that the parties who made that, 22 stipulated to submit the remaining exhibits. That way we 23 wouldn't be in a bind if there were some loose ends that we 24 needed some evidence on. 25 MS. BELLOMO: That answers my question. 1261 01 Thank you. 02 CHAIRMAN CAFFREY: Thank you, Ms. Bellomo. 03 Mr. Haselton, were you going -- 04 Where is Mr. Haselton? 05 I think you wanted to speak, and then we will go to Mr. 06 Russi. 07 MR. HASELTON: I apologize for causing any delay. 08 CHAIRMAN CAFFREY: That's all right. 09 MR. HASELTON: I think I might have made a mistake in 10 using the term "horse trade" with my client who is a 11 cattleman, and they never use that term. It goes into a 12 whole different realm. Takes you literally. 13 MEMBER BROWN: You used the wrong species. 14 MR. HASELTON: I did. I've been hanging around with 15 those folks for a long time. 16 First of all, I want to extend my appreciation to Mr. 17 Birmingham, Mr. Dodge, Mr. Roos-Collins, Ms. Cahill for 18 taking the time to make sure we understood what their 19 thoughts are and concerns. 20 Our concern has always been, as kind of a unique party 21 of having access to this whole proceeding, and as I 22 understand it, please anybody interrupt me, as I understand 23 it, that this idea of a settlement is something that we are 24 being asked to agree with in principle. There is going to 25 be a set time frame until we see something in writing, to 1262 01 then which we may or may not commit to. 02 Is that correct? 03 UNIDENTIFIED VOICE: Correct. 04 MR. HASELTON: With that understanding, we do, on 05 behalf of my clients, the Arcularius Ranch and United Cattle 06 Company, to agree to those, that understanding. 07 With that, thank you. 08 CHAIRMAN CAFFREY: Thank you, Mr. Haselton. 09 Mr. Russi, did you have something? You were probably 10 another person that was out on the phone, I guess. Is that 11 right? 12 MR. RUSSI: I was talking on the phone, yes. 13 CHAIRMAN CAFFREY: Keep track in my head who is in and 14 who is about to come in, or whatever. 15 Go ahead. 16 MR. RUSSI: Thank you. I cannot say for certain here 17 today that BLM will agree to be part of the process. I can 18 only tell you that there is a high likelihood that once I 19 talk with people here in Sacramento tomorrow morning that I 20 will be instructed or someone will be instructed to become a 21 part of the process or proceeding towards reaching a 22 settlement. 23 As a public land agency, we are basically required to 24 enter into things like that. I think that is what is going 25 to happen for us. 1263 01 CHAIRMAN CAFFREY: We certainly want to give you time 02 to talk to your principals, and certainly Ms. Bellomo time 03 to talk to the people that she is representing. I just need 04 to raise the question with regard to the availability of 05 these witnesses. 06 Does it make any sense to at least finish this panel 07 tonight, so we can at least have a reasonable cutoff point 08 on the record? How about that? Or is there another 09 availability? 10 MR. DODGE: Peter and Scott will be back Wednesday 11 morning. I would like to finish with Larry Harrison. 12 MR. VORSTER: I wasn't going to be back Wednesday 13 morning. 14 MR. DODGE: That's right. 15 I would like to finish with -- 16 CHAIRMAN CAFFREY: We have not yet heard from Ms. 17 Scoonover for cross-examination, nor from the City of Los 18 Angeles, Department of Water and Power, and then we would go 19 to potential of redirect and recross. 20 MR. DODGE: I think the most important thing is for the 21 People for the Preservation of Mono Basin to use their time 22 to consider their position. But, again, if people have 23 limited questions of Mr. Harrison, maybe we can at least 24 finish him. 25 CHAIRMAN CAFFREY: What that means, of course, is that 1264 01 if we don't proceed any further today, then we are, 02 obviously, going to have to come up with a new schedule, 03 with another day added, because -- is there a problem for 04 Mr. Mesick, as well? Maybe I am losing track of all of 05 this. If we don't finish with this panel today, and we 06 don't get to Mr. Mesick today, then, obviously, we are going 07 to have to add another day beyond Wednesday if, in fact, we 08 have to continue with the extended hearing, so to speak. 09 MR. ROOS-COLLINS: We have not yet started Cal Tout's 10 panel. 11 CHAIRMAN CAFFREY: Right. 12 MR. ROOS-COLLINS: Dr. Mesick is not available 13 tomorrow. He is available Wednesday. Dr. Stine is 14 available Wednesday morning. However, Mr. Vorster, who is 15 the third member of the panel, will not be available after 16 this afternoon on the remaining days we have designated this 17 week. 18 CHAIRMAN CAFFREY: Has anybody kept track of this. I 19 don't think I am available. 20 Ms. Forster. 21 BOARD MEMBER FORSTER: I have a question about how this 22 proceeds. If there are several parties that are working 23 towards an agreement on the settlement, why would they have 24 to continue to cross-examine and do that? Is it just to put 25 a closure on this. I mean, I can see why -- 1265 01 CHAIRMAN CAFFREY: It really isn't necessary. Just an 02 attempt at practicality. 03 BOARD MEMBER FORSTER: I am not denying anybody. Maybe 04 they don't want to do it. 05 CHAIRMAN CAFFREY: That is why I am raising the 06 question. It is a question, if people are available. I 07 have no problem with adding another day or two for the 08 entire proceeding. I would like to hear from all of you. 09 We try to be accommodating. If people have other things to 10 do with their lives, I realize that. 11 Mr. Birmingham is going to help us out here. I just 12 feel it. 13 MR. BIRMINGHAM: I am not sure I will help you out. I 14 do have questions for this panel. But the reason that I 15 jumped up at 2:00 this afternoon and asked for the recess 16 was because I am confident that we will reach an agreement 17 which, ultimately, the Board will like. And I don't see any 18 purpose in going forward with the cross-examination of any 19 witnesses if the prospects of reaching an agreement is good. 20 And from my perspective and, I think, Mr. Dodge and the 21 other lawyers who have been involved, will agree that there 22 is very good prospect. 23 CHAIRMAN CAFFREY: Let me put it this way, if anybody 24 has a compelling need to continue with the cross-examination 25 of these witnesses, understanding full well that if we don't 1266 01 come to an agreement, we may have to add extra days. 02 Any problem with that anywhere? 03 MS. BELLOMO: I just have one comment. 04 CHAIRMAN CAFFREY: Yes, Ms. Bellomo. 05 MS. BELLOMO: Which probably can be accommodated, 06 given everyone's schedule here, which is, that in the event 07 that we don't reach settlement, I don't have any problem 08 with the idea of going forward with additional days. But 09 could we stick with tomorrow, my husband and I testifying? 10 I am not sure that he will be able to come back again after 11 these three days. And it sounds like, tomorrow, many people 12 aren't available, anyway. Would that be possible if we 13 don't reach settlement and if we don't continue on later 14 today? 15 CHAIRMAN CAFFREY: Well, I think what we might do, we 16 are all here now, anyway. I presume we are all going to be 17 here in the morning. Why don't we do this, why don't we all 18 -- you are going to talk to your people, the people you 19 represent tonight, and maybe that is a question that won't 20 need to be answered tomorrow morning, and maybe what I 21 should is maybe we will already have the answer to that by 22 the reaction that you get. If we all come back here 23 tomorrow morning at 9:00, we'll hear from you first, Ms. 24 Bellomo, on how things went with your folks and maybe that 25 will give us some enlightenment on how to proceed. 1267 01 MS. BELLOMO: Could I ask who will be available 02 tomorrow to testify, if, in the event we go forward, so we 03 have some idea if we are testifying tomorrow, if we don't 04 settle? 05 CHAIRMAN CAFFREY: Well, my understanding is that Mr. 06 Vorster and Dr. Stine will not be here tomorrow. Mr. 07 Harrison will not be here tomorrow; is that correct? 08 MR. HARRISON: Can be here tomorrow. 09 CHAIRMAN CAFFREY: You can be, sir? All right. 10 MR. HARRISON: It is up to Bruce. 11 CHAIRMAN CAFFREY: It would mean that the staff is 12 going to have look at the schedule again and make sure that 13 we have everybody covered. We will be as accommodating as 14 we can. 15 Mr. Frink or Mr. Johns, excuse me. 16 MR. JOHNS: Actually, we could start out tomorrow as 17 set forth in the February 10th memo. We can start with 18 Terry Russi, finish off with the cross of Terry, and then 19 Ms. Bellomo and then take up Fish and Game. Skip over the 20 parties that are currently in agreement and perhaps put off 21 Fish and Game, depending on how they wanted to proceed. If 22 they want to present their case until after they solve what 23 happened with the negotiations. We could finish off Terry 24 and get into the Bellomos tomorrow, if that is agreeable. 25 CHAIRMAN CAFFREY: My understanding is that everybody 1268 01 is going to be here tomorrow except certain members of this 02 panel and Mr. Mesick; is that right? 03 So, we will just do the best we can from there. The 04 schedule is what it is. We will hear from Ms. Bellomo 05 tomorrow, and then we will see where we are. And if we have 06 to proceed, we will fashion it as best we can. 07 Mr. Dodge. 08 MR. DODGE: Does the Chairman wish Mr. Harrison to come 09 back tomorrow or when this panel finishes up? 10 CHAIRMAN CAFFREY: Well, I had this sense of order. I 11 get the distinct feeling that nobody wants to finish today 12 when I asked a little while ago. I don't know. I leave 13 that up to somebody wiser than myself. I am flexible. 14 MR. DODGE: I would suggest that Mr. Harrison not come 15 back tomorrow, and we start with Mr. Russi tomorrow. 16 CHAIRMAN CAFFREY: All right. Any objection with that? 17 Any problems with that? 18 MS. BELLOMO: Followed by the Bellomos? 19 CHAIRMAN CAFFREY: Sorry? 20 MS. BELLOMO: Does Mr. Dodge mean, followed by the 21 Bellomos? 22 MR. DODGE: I would be happy to have the Bellomos come 23 next. 24 CHAIRMAN CAFFREY: All right. 25 You sure you want to ask? Go ahead, Mr. Haselton. 1269 01 MR. HASELTON: So, following the schedule, then am I 02 to understand that Mr. Russi and after the Bellomos, but 03 then Fish and Game will not present a panel? Is that my 04 understanding? 05 MR. DODGE: Time permitting, we will go forward. 06 CHAIRMAN CAFFREY: We will just forge ahead tomorrow if 07 we don't have strong principles in agreement. 08 Hang on just a moment. 09 (Discussion held off record.) 10 CHAIRMAN CAFFREY: Back on the record. 11 Thank you, ladies and gentlemen, for your indulgence. 12 We'll be back tomorrow 9:00, and we will hear from Ms. 13 Bellomo, and we will proceed in the order we discussed a 14 moment ago. 15 Mr. Roos-Collins. 16 MR. ROOS-COLLINS: There are two parties you have not 17 heard from, Trust for Public Land and Dr. Ridenhour. We 18 have calls into them to determine their willingness to 19 follow the process we have discussed. 20 CHAIRMAN CAFFREY: Thank you, sir. And then you will 21 perhaps give us some feedback tomorrow morning, as well. 22 Thank you all for your patience. See you at 9:00 a.m. 23 MR. BIRMINGHAM: Thank you. 24 (Hearing adjourned at 4:20 p.m.) 25 1270 01 REPORTER'S CERTIFICATE 02 03 04 STATE OF CALIFORNIA ) 04 ) ss. 05 COUNTY OF SACRAMENTO ) 05 06 06 07 08 I, ESTHER F. WIATRE, certify that I was the 09 official Court Reporter for the proceedings named herein, 10 and that as such reporter, I reported in verbatim shorthand 11 writing those proceedings; 12 That I thereafter caused my shorthand writing to be 13 reduced to typewriting, and the pages numbered 1114 through 14 1269 herein constitute a complete, true and correct record 15 of the proceedings. 16 17 IN WITNESS WHEREOF, I have subscribed this certificate 18 at Sacramento, California, on this 19 6th day of March 1997. 20 21 22 23 23 24 ______________________________ 24 ESTHER F. WIATRE 25 CSR NO. 1564 25 Search |
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