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STATE WATER RESOURCES CONTROL BOARD

PUBLIC HEARING

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REGARDING STREAM AND WATERFOWL HABITAT RESTORATION PLANS AND GRANT LAKE OPERATIONS AND MANAGEMENT PLAN SUBMITTED BY THE LOS ANGELES DEPARTMENT OF WATER AND POWER PURSUANT TO

THE REQUIREMENTS OF WATER RIGHT DECISION 1631

HELD AT:

STATE WATER RESOURCES CONTROL BOARD

PAUL BONDERSON BUILDING

901 P STREET, FIRST FLOOR HEARING ROOM

WEDNESDAY, JANUARY 29, 1997

9:00 AM

REPORTED BY: TERI L. VERES, CSR NO. 7522, RMR

CAPITOL REPORTERS (916) 923-5447

1 APPEARANCES

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3 BOARD MEMBERS:

4 JOHN CAFFREY, CHAIRMAN

JOHN W. BROWN, VICE CHAIR

5 JAMES STUBCHAER

MARY JANE FORSTER

6 MARC DEL PIERO

7 STAFF MEMBERS:

8 JAMES CANADAY, ENVIRONMENTAL SPECIALIST

GERALD E. JOHNS, ASSISTANT DIVISION CHIEF

9 MELANIE COLLINS, STAFF ENGINEER

10 COUNSEL:

11 DAN FRINK, ESQ.

12 LOS ANGELES DEPARTMENT OF WATER AND POWER:

13 PANEL MEMBERS:

14 PETER KAVOUNAS, M.E., M.S., P.E.

BRIAN TILLEMANS, Biologist

15 DAVID F. ALLEN, M.S., P.E.

CHRISTOPHER J. HUNTER, M.S.

16 WILLIAM S. PLATTS, Ph.D.

ROBERT L. BESCHTA, Ph.D.

17 J. BOONE KAUFFMAN, Ph.D.

WILLIAM J. TRUSH, Ph.D.

18

WATERFOWL HABITAT RESTORATION PANEL MEMBERS:

19

PETER KAVOUNAS

20 JAMES R. PERRAULT, P.E.

BRIAN B. TILLEMANS, Biologist

21 BRIAN N. WHITE, Ph.D.

22 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARD

400 Capitol Mall, 27th Floor

23 Sacramento, California 95814

BY: THOMAS W. BIRMINGHAM, ESQ.

24 and

JANET GOLDSMITH, ESQ.

25

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1 APPEARANCES CONT'D

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3 UNITED STATES FOREST SERVICE:

4 UNITED STATES DEPARTMENT OF AGRICULTURE

OFFICE OF GENERAL COUNSEL

5 33 New Montgomery, 17th Floor

San Francisco, California 94105

6 BY: JACK GIPSMAN, ESQ.

7 BUREAU OF LAND MANAGEMENT:

8 UNITED STATES DEPARTMENT OF THE INTERIOR

BUREAU OF LAND MANAGEMENT

9 BISHOP RESOURCE AREA

785 North Main Street, Suite E

10 Bishop, California 93514

BY: TERRY L. RUSSI

11

PEOPLE FOR MONO BASIN PRESERVATION:

12

KATHLEEN MALONEY BELLOMO

13 JOSEPH BELLOMO

P.O. BOX 217

14 Lee Vining, California 93541

15 ARNOLD BECKMAN:

16 DeCUIR & SOMACH

400 Capitol Mall, Suite 1900

17 Sacramento, California 95814

BY: DONALD MOONEY, ESQ.

18

ARCULARIUS RANCH:

19

FRANK HASELTON, LSA

20 1 Park Plaza, Suite 500

Irvine, California 92610

21

RICHARD RIDENHOUR:

22

RICHARD RIDENHOUR

23

24

25

CAPITOL REPORTERS (916) 923-5447

367

1 APPEARANCES CONT'D

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3 CALIFORNIA TROUT, INC.:

4 NATURAL HERITAGE INSTITUTE

114 Sansome Street, Suite 1200

5 San Francisco, California 94104

BY: RICHARD ROOS-COLLINS, ESQ.

6

CALIFORNIA DEPARTMENT OF FISH AND GAME: 7

McDONOUGH, HOLLAND & ALLEN

8 555 Capitol Mall, Ninth Floor

Sacramento, California 95814

9 BY: VIRGINIA A. CAHILL, ESQ.

10 THE RESOURCES AGENCY

1416 Ninth Street, 12th Floor

11 Sacramento, California 95814

BY: NANCEE MURRAY, ESQ.

12

CALIFORNIA STATE LANDS COMMISSION:

13 CALIFORNIA DEPARTMENT OF PARKS AND RECREATION:

14 MARY J. SCOONOVER, ESQ.

1300 I Street

15 Sacramento, California 95814

16 MICHAEL VALENTINE

17 NATIONAL AUDUBON SOCIETY:

MONO LAKE COMMITTEE:

18

MORRISON & FOERSTER

19 425 Market Street

San Francisco, California 94105

20 BY: F. BRUCE DODGE, ESQ.

21 HEIDE HOPKINS

GREG REISE

22 PETER VORSTER

23

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25

CAPITOL REPORTERS (916) 923-5447

368

1 INDEX

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3 PAGE

LOS ANGELES DEPARTMENT OF WATER AND POWER

4

CROSS-EXAMINATION

5

BY MR. DEL PIERO...........................374 6

REDIRECT EXAMINATION

7

BY MR. BIRMINGHAM..........................396 8

RECROSS-EXAMINATION

9

BY MR. ROOS-COLLINS........................429 10 BY MR. DODGE...............................431

BY MS. CAHILL..............................451 11 BY MS. SCOONOVER...........................460

BY MR. CANADY..............................471 12

13 LOS ANGELES DEPARTMENT OF WATER AND POWER

(WATERFOWL HABITAT RESTORATION PANEL)

14

DIRECT EXAMINATION

15

BY MR. BIRMINGHAM..........................486

16

CROSS-EXAMINATION

17

BY MS. BELLOMO.............................499

18 BY MR. MOONEY..............................529

BY MS. CAHILL..............................541

19 BY MS. SCOONOVER...........................555

20

21 AFTERNOON SESSION.......................................485

22

23

24

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369

1 SACRAMENTO, CALIFORNIA

2 WEDNESDAY, JANUARY 29, 1997

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4 CHAIRMAN CAFFREY: Good morning and welcome back. We

5 will pick up where we left off yesterday and that was at the

6 point where we had completed staff's cross-examination of

7 these three panels.

8 Mr. Birmingham, did you have something you wish to add

9 to that or were you just going to position yourself for the

10 next set of questions?

11 MR. BIRMINGHAM: Mr. Chairman, you may recall that

12 yesterday we asked for leave of the Board to permit Carolyn

13 Green, the President of the Board of Water and Power

14 Commissioners, to make a policy statement this morning.

15 Ms. Green is present and if we could start with that, we

16 would appreciate that opportunity.

17 CHAIRMAN CAFFREY: We will certainly do that. We

18 announced yesterday that we would. Ms. Green is here.

19 Welcome. Please come forward and address the Board.

20 MS. GREEN: Thank you and good morning. As

21 Mr. Birmingham said, I am Carolyn Green. I'm President of

22 the Los Angeles Department of Water and Power Commissioners

23 and I'm really happy for the opportunity to address you

24 today.

25 Without going into all of the background of why we're

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1 here, you know that as well or better than I do. I'd like

2 to get to the bottom line. The Los Angeles Department of

3 Water and Power and the City of Los Angeles are committed to

4 satisfying our obligations under Decision 1631. We think

5 that the proposals that are the subject of this hearing are

6 adequate to restore, preserve and protect Rush, Walker,

7 Parker and Lee Vining Creeks and the fisheries.

8 This process has been the result of lengthy

9 discussions, joint studies, negotiations between all of the

10 parties involved. We think the plans are good plans and

11 that they will accomplish the objectives of 1631. We commit

12 to today these plans and a monitoring program that is

13 jointly agreed upon by all the parties for a -- some sort of

14 date certain, and I can't tell you what that is. I think

15 the scientists have to tell us -- that says, "If what we are

16 doing is the not adequate, the City of Los Angeles commits

17 to making whatever additional changes are necessary to carry

18 out the purposes of 1631."

19 We face the reality that our ratepayers are going to

20 bear the cost of implementing all of the plans approved by

21 this Board, and we have fiscal constraints. So in

22 developing our restoration proposals we had to look at the

23 financial feasibility of each of the restoration

24 alternatives and adopt what we thought was the least costly

25 alternative that satisfied the objectives of the Decision

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1 and that really is our bottom line, what will satisfy 1631.

2 Given the results of the ecosystem restoration that

3 has occurred over the last few years, we think that our plan

4 will facilitate natural restoration without requiring

5 construction of costly new facilities; but if it doesn't, we

6 commit now to doing whatever is necessary in the minds of

7 the scientists to making this decision work and I think -- I

8 can't say any more than that, that we want to move forward

9 with all the parties, including your Board, who has final

10 jurisdiction, in a partnership fashion to make 1631 work.

11 Thank you.

12 CHAIRMAN CAFFREY: Thank you very much.

13 BOARD MEMBER FORSTER: I'm sorry I was late. I didn't

14 know you were going to be on in the beginning.

15 MS. GREEN: I try to be punctual.

16 CHAIRMAN CAFFREY: Are there any questions of --

17 BOARD MEMBER FORSTER: Me, too.

18 CHAIRMAN CAFFREY: In fairness to Ms. Forster, she has

19 been here since much earlier this morning and we were

20 working on an issue together earlier and she was just

21 straightening that out before she got here. So we

22 appreciate that.

23 Let me just say, Ms. Green, that we very much

24 appreciate your comments and the spirit in which they are

25 made. We certainly do want to bring this to completion and

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1 fruition for the protection of the lake and its environment.

2 So thank you so much for taking the time to be here.

3 We appreciate it.

4 MS. GREEN: And thank you very much for allowing me to

5 speak.

6 CHAIRMAN CAFFREY: All right. We will return, then,

7 to the completion of the cross-examination of these three

8 panels. We had completed everything except Board Member

9 questions.

10 Do any of the Board Members wish to -- do any of the

11 Board Members wish to question these three panels?

12 Mr. Del Piero.

13 BOARD MEMBER DEL PIERO: Thank you, Mr. Chairman. I

14 have not more than two questions, although they might be

15 compound. So at least I'm being honest, guys. I'm telling

16 you up front.

17 CHAIRMAN CAFFREY: Start the clock please,

18 Mr. Stubchaer. Just kidding, Mark.

19 BOARD MEMBER DEL PIERO: That's okay.

20 CHAIRMAN CAFFREY: He's bigger than me.

21 BOARD MEMBER DEL PIERO: That's fine. I get the same

22 amount of time Ms. Scoonover gets, right?

23 ///

24 ///

25 ///

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1 ---oOo---

2 CROSS-EXAMINATION

3 BY BOARD MEMBERS:

4 BOARD MEMBER DEL PIERO: Okay, Dr. Platts, help me to

5 understand about deep scour in Lee Vining Creek and the

6 necessity given the current condition of the creek of deep

7 scour.

8 DR. PLATTS: Why you want deep scour --

9 BOARD MEMBER DEL PIERO: Yeah.

10 DR. PLATTS: -- or what will cause deep scour?

11 BOARD MEMBER DEL PIERO: Why and what it's going to

12 achieve in Lee Vining at this point.

13 DR. PLATTS: Well, deep scour will achieve many

14 points. One is that it will rebuild pools for Lee Vining

15 Creek. You have to have scour in order to build pools. You

16 also have to have scour in order to move sediment down the

17 channel, and you have to have sediment going down the

18 channel in order to move that sediment or vortex it over

19 into your floodplains or even some of your lower terraces.

20 So scour needs to take place first before a lot of the

21 rehab that we need going on in Lee Vining Creek can take

22 place. If you didn't have any scour and everything was just

23 sitting on site, you wouldn't have any rebuilding going on.

24 BOARD MEMBER DEL PIERO: And is scour a periodic

25 condition that's necessary for the sustainment of the

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1 relative health of the stream?

2 DR. PLATTS: Yes.

3 BOARD MEMBER DEL PIERO: It is, okay. Both you and

4 Dr. Beschta indicated, I believe -- and I know for sure

5 Dr. Beschta indicated. You'll forgive me if my notes are

6 not complete in terms of whether or not you said it, but

7 we'll stick with you for the time being -- that sediment

8 passage for Lee Vining Creek was necessary; is that correct?

9 DR. PLATTS: I think in the long term it will be, yes.

10 BOARD MEMBER DEL PIERO: And, Dr. Beschta, you agree

11 with that?

12 DR. BESCHTA: Yes, I agree for long term it's

13 important.

14 BOARD MEMBER DEL PIERO: Okay. And the sediment --

15 the impediment to sediment passage on Lee Vining are the

16 diversions on Walker and Parker? No? Yes? What's the --

17 DR. BESCHTA: The impediment on Lee Vining?

18 BOARD MEMBER DEL PIERO: I'm sorry, the impediment on

19 Lee Vining is what?

20 DR. BESCHTA: The diversion structure.

21 DR. PLATTS: The diversion structure

22 DR. BESCHTA: The pond water upstream of the diversion

23 structure.

24 BOARD MEMBER DEL PIERO: Okay. How much debris is --

25 or, pardon me, sediment is backed up in back of that? Have

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1 we quantified it?

2 DR. PLATTS: I don't know.

3 DR. BESCHTA: I was in the field this summer and I

4 actually calculated a volume, but I don't remember exactly

5 what those numbers are; but, yes, it can be calculated and

6 that's part of trying to figure out what should happen

7 there.

8 BOARD MEMBER DEL PIERO: Okay. Part of the proposed

9 schedule for Rush Creek is to divert water from where, what

10 other stream? It's okay whoever wants to answer.

11 MR. ALLEN: That would be Lee Vining Creek.

12 BOARD MEMBER DEL PIERO: Lee Vining, okay. And that's

13 what, approximately a hundred fifty cfs in -- is it wet

14 years or extreme years?

15 MR. ALLEN: Yeah, the amount of diversion would vary

16 depending on the year type. Obviously the wetter years we

17 divert up to a hundred fifty cfs and then as you move down

18 through the scale the diversions would become less.

19 BOARD MEMBER DEL PIERO: Now, I guess back to

20 Dr. Beschta and to Dr. Platts. Explain to me what happens

21 when you take the peak off of those flows during those wet

22 and extreme years to divert into Rush Creek in relationship

23 to the issue of necessity for scour in Lee Vining.

24 DR. PLATTS: Sir, the peak would not be taken off.

25 BOARD MEMBER DEL PIERO: Okay. It's seven days

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1 afterwards, right, when you start diverting?

2 DR. PLATTS: Yes.

3 BOARD MEMBER DEL PIERO: And forgive me for misstating

4 it, but explain to me what that 150 cfs seven days after the

5 peak is going to do in terms of the ongoing changes that

6 take place in relationship to scouring in Lee Vining.

7 DR. PLATTS: That would be a better question for

8 Dr. Beschta.

9 BOARD MEMBER DEL PIERO: Okay.

10 DR. BESCHTA: The sediment transport is occurring --

11 you're getting sediment transport occurring during the

12 entire snow melt hydrograph in general, okay, but it

13 increases in quantity, if you will, as you increase the

14 amount of flow in the system.

15 BOARD MEMBER DEL PIERO: Slow down because I want to

16 make sure I understand exactly how this operates.

17 Of the sediment transport taking place, how much of it

18 is impaired at the diversion point as opposed to how much of

19 it gets past the diversion point and is going down Lee

20 Vining? Have you been able to quantify that at this time?

21 DR. BESCHTA: I don't have any numbers on that. I'm

22 sure some gets past, but I don't know how much.

23 BOARD MEMBER DEL PIERO: Not much, though?

24 DR. BESCHTA: Well, the heavier stuff -- the larger

25 particles, the denser particles would very quickly be

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1 trapped there. But if there is less dense sediment and

2 finer particles, they may continue to move through there.

3 BOARD MEMBER DEL PIERO: But in relationship to the

4 issue of scour, the vast majority, if not all, of the

5 material necessary to affect the scour condition on Lee

6 Vining is trapped in back of that diversion facility?

7 DR. BESCHTA: No.

8 BOARD MEMBER DEL PIERO: "No," okay.

9 DR. BESCHTA: Well, when you say scour on the main

10 stream, I'm thinking further on down the stream system.

11 BOARD MEMBER DEL PIERO: That's what I am, too.

12 DR. BESCHTA: Okay.

13 BOARD MEMBER DEL PIERO: So you explain it to me.

14 DR. BESCHTA: There are all kinds of local sediment

15 sources alongside that stream. There's the existing

16 floodplain. There's the bed material. So scour can take

17 place -- and it's not simply a physical process, too.

18 If we remove the vegetation, we'd have a nice physical

19 system, okay. We'd have sediment and water and it would be

20 a very simple system; but when you start putting the veg and

21 you start putting the root masses in there and the woody

22 debris that falls in and the branches, that creates local

23 hydraulic conditions which can create scour at flows that

24 are much different or much smaller than what you would just

25 purely predict from just physics.

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1 BOARD MEMBER DEL PIERO: Is that your experience now

2 in Lee Vining?

3 DR. BESCHTA: Yes, the vegetation is beginning to play

4 a role.

5 BOARD MEMBER DEL PIERO: No, no, that's not what I

6 asked.

7 DR. BESCHTA: Okay.

8 BOARD MEMBER DEL PIERO: The question I asked: Is

9 that scour taking place now as a result of large woody

10 debris and extensive vegetation line?

11 DR. BESCHTA: There is scour beginning to take

12 place --

13 BOARD MEMBER DEL PIERO: Of substance?

14 DR. BESCHTA: Yes.

15 BOARD MEMBER DEL PIERO: Okay, where? Which portion

16 of the lower end of Lee Vining is that taking place?

17 DR. BESCHTA: Above the County Road.

18 BOARD MEMBER DEL PIERO: Okay. Let's add back in,

19 then, the necessity -- or Dr. Platts' suggestion that

20 there's a necessity for amending either -- or diverting this

21 sediment into the creek.

22 What's that going to do to the system that you see

23 developing, Dr. Beschta?

24 DR. BESCHTA: Well, we -- the diversion becomes a

25 sediment trap, okay, and if it's gonna be in position a long

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1 time, which I'm expecting that the City of Los Angeles is

2 going to want to divert water for a long time --

3 BOARD MEMBER DEL PIERO: I think the plan assumes

4 that.

5 DR. BESCHTA: Yes.

6 BOARD MEMBER DEL PIERO: And let's assume that as a

7 given.

8 DR. BESCHTA: Yeah. So given that assumption then,

9 you will be continually removing sediment out of the stream

10 at a given location and that is not something we would

11 encourage anyone to do if you wanted to maintain the natural

12 processes that are occurring in that system.

13 So the recommendation would be to make sure that that

14 sediment gets past the point of diversion and continues on

15 down the stream and moving in a timing and a magnitude that

16 is typical and representative for that stream.

17 BOARD MEMBER DEL PIERO: And do you -- is there a way

18 of integrating that sediment movement --

19 DR. BESCHTA: Uh-huh.

20 BOARD MEMBER DEL PIERO: -- whether it be through a

21 ditch, some kind of pipe passage or excavation with those

22 storm events that resulted or -- that would result or

23 normally and typically be expected to result in scour?

24 DR. BESCHTA: Well, that would be the hope. I mean,

25 ideally it would be nice to move the sediment through

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1 exactly -- it comes into the diversion at a point in time.

2 It would be nice to allow it to continue right through at

3 that particular point in time.

4 BOARD MEMBER DEL PIERO: Is it physically possible to

5 design something at that diversion point to achieve that?

6 DR. BESCHTA: I don't know what the answer is. Now

7 you're asking an engineering structures question and I would

8 be glad to address that --

9 BOARD MEMBER DEL PIERO: Does anyone on the panel know

10 that? Does anyone on the panel know the answer to that

11 question?

12 Is it physically possible at this point or has it been

13 discussed by the Department of Water and Power in their

14 engineering staff that you're aware of as to how to design

15 some kind of mechanism to bypass the sediments in order to

16 achieve the sediment transport to the lower end of Lee

17 Vining and at the same time allow for scour to take place?

18 MR. KAVOUNAS: Mr. Del Piero --

19 BOARD MEMBER DEL PIERO: Yes, sir.

20 MR. KAVOUNAS: -- I do recall some of our engineering

21 staff making suggestions that the Lee Vining diversion

22 facility could be modified. However, I would like to add to

23 that that we've had no input from the scientists as to

24 whether that would transport the sediment as desired.

25 BOARD MEMBER DEL PIERO: What was the modification

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1 that the engineers were discussing?

2 MR. KAVOUNAS: As I recall -- and this is not a

3 hundred percent clear recall -- but as I recall, it would

4 entail building some kind of a wall that would bisect the

5 intake structure. And what that would allow is for the most

6 part of the year the flow to continue straight down Lee

7 Vining and it would have some sort of a gate, perhaps on the

8 upstream end of it, that would allow flow to be taken in to

9 the southern portion of that pool that could then be

10 diverted into the conduit and allow the Department of Water

11 and Power to conduct either the augmentation or export

12 operations. If that's not clear, I could try to sketch it.

13 BOARD MEMBER DEL PIERO: No, that's clear.

14 MR. KAVOUNAS: Okay.

15 BOARD MEMBER DEL PIERO: I understand that.

16 CHAIRMAN CAFFREY: Anything else, Mr. Del Piero?

17 MR. KAVOUNAS: May I add to that?

18 BOARD MEMBER DEL PIERO: Sure.

19 MR. KAVOUNAS: I would like to repeat what I said

20 yesterday in answer to -- I believe it was Jim Canaday's

21 question. The concept of the Iowa vanes that were brought

22 forth by a consultant to the Mono Lake Committee is one that

23 we have not looked at.

24 BOARD MEMBER DEL PIERO: Don't feel bad. I'm the

25 lawyer and I didn't understand it at all. That remains to

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1 be seen.

2 MR. KAVOUNAS: But that seems to be yet another way

3 that something could be engineered to pass sediment.

4 BOARD MEMBER DEL PIERO: Okay. A couple other things

5 in terms of a question for Dr. Beschta.

6 This is the second question, Mr. Chairman.

7 CHAIRMAN CAFFREY: This is the second one?

8 BOARD MEMBER DEL PIERO: This is the second question.

9 CHAIRMAN CAFFREY: Okay. Sometimes I don't know how

10 they break down.

11 BOARD MEMBER DEL PIERO: The first one was scour and

12 sediment on Lee Vining. There is no method.

13 CHAIRMAN CAFFREY: Please, Mr. Del Piero.

14 BOARD MEMBER DEL PIERO: Okay. I want to talk about

15 large woody debris, Dr. Beschta.

16 DR. BESCHTA: Yes.

17 BOARD MEMBER DEL PIERO: We heard a variety of

18 responses yesterday to questions raised by Mr. Canaday and I

19 just want to -- he asked virtually all the questions I was

20 interested in hearing answered and so I'm not going to

21 belabor this, but I wanted to ask you a couple questions

22 maybe for the record and maybe for my own edification in

23 terms of understanding how the system worked in Rush Creek

24 prior to 1941.

25 During the hearings that took place in 1993 and 1994 a

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1 number of exhibits were demonstrative of the fact that in

2 the lower reaches of Rush Creek there was a significant

3 presence of Jeffrey pine and some of those remnants actually

4 still remain. Every once in a while you'll see -- even in

5 the most recent pictures that were demonstrated -- in fact,

6 there might be one or two sticking up, I don't know, in the

7 background in some of those pictures that were shown

8 yesterday.

9 Did the presence of those pine trees that are

10 substantially larger than the willows and the rest of the

11 normal riparian vegetation that is predominant now or is

12 attempting to come back now, did the presence of that -- of

13 that particular type of pine tree lend itself to the large

14 woody debris that we all seem to talk about in terms of

15 habitat?

16 DR. BESCHTA: The Jeffrey pine, yes.

17 BOARD MEMBER DEL PIERO: It did?

18 DR. BESCHTA: Yes.

19 BOARD MEMBER DEL PIERO: I did not hear yesterday,

20 although we talked a whole lot about rushes and willows and

21 the normal, typical wetlands-type plant communities that

22 result through application of water pretty immediately.

23 No one talked to me about -- other than some kind of

24 mechanical and artificial installation or opportunistic

25 installation, if you will, of woody debris dependent upon

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1 whether or not Caltrans decided to cut a tree down

2 correctly, whether or not there was any thought given by any

3 of the scientific panels in terms of the ultimate

4 restoration of that pine forest along particularly the lower

5 reaches of Rush Creek in terms of ongoing contribution to

6 the ecosystem of large woody debris and it was sort of -- I

7 couldn't figure out why we talked about it. So that's why

8 I'm asking the question.

9 Did anybody ever talk about it in the last two and a

10 half years while we were waiting for the weather?

11 DR. BESCHTA: Yes.

12 BOARD MEMBER DEL PIERO: They did?

13 DR. BESCHTA: Yes, there have been discussions.

14 BOARD MEMBER DEL PIERO: Do you want to share with me

15 what the current thought is in terms of -- at least the Los

16 Angeles Department of Water and Power in terms of

17 contributing large woody debris to a system that everybody

18 agrees needs it?

19 DR. BESCHTA: Well, I can give you my opinion and then

20 there probably will be others.

21 BOARD MEMBER DEL PIERO: I'll be happy to hear yours.

22 DR. BESCHTA: Large woody debris has been an important

23 issue in stream ecology at least for the last 15 or 20

24 years. The major emphasis on that research has taken place

25 in the Pacific Northwest. There are a lot of articles that

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1 have been published in that area, and that issue now is

2 becoming more widely recognized in other places.

3 I think we have to be a bit careful when we move over

4 into the more arid land systems; and even though Jeffrey

5 pine was present, I'm going to suggest that the timing is

6 different than what we think about when we talk about

7 putting wood into the system today. I would suggest that

8 Jeffrey pine played a role ultimately in the ecology of

9 these stream systems; but it was not a major player and it's

10 after the rest of the pieces are in place that it becomes

11 important, not before the rest of the pieces are in place.

12 So if you let me recover the system the way I would

13 love to see Rush Creek with Jeffrey pine forest come on

14 line, would be first to get those species such as the

15 willows and the cottonwoods, the ones that can occupy the

16 barren sites or initiate their growth on these sites begin

17 to tie down that channel and then ultimately grow the

18 Jeffrey pine and where it falls into the stream it will

19 create some wonderful habitat.

20 Now, if we reverse that process, we load the stream

21 with large wood prior to the recovery of the willows and the

22 cottonwoods, we've got a different ball game. And I have

23 seen so many -- I've seen lot of projects, as well as other

24 people sitting at this table, of where we've attempted to do

25 that, where we've loaded the stream with large wood prior to

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1 the other vegetation being in place and it's created --

2 ultimately it's created major disaster.

3 BOARD MEMBER DEL PIERO: I'm not advocating that.

4 DR. BESCHTA: Okay.

5 BOARD MEMBER DEL PIERO: I'm trying to understand from

6 the standpoint of long-term restoration of the ecosystem,

7 which was the charge this Board gave to the Los Angeles

8 Department of Water and Power, where the Jeffrey pine card

9 gets played in terms of the process, because I've gone

10 through all this.

11 Can someone point out to me the year when there's some

12 kind of affirmative effort made to -- because that's not the

13 kind of thing that's going to get transported necessarily by

14 high flows.

15 DR. BESCHTA: That's right, that's right.

16 BOARD MEMBER DEL PIERO: I mean, that's not how they

17 grow.

18 DR. BESCHTA: That card is already being played,

19 though, because there is establishment of Jeffrey pine and

20 Lodgepole out there. And Dr. Kauffman can tell you perhaps

21 the number of plants down to, you know, whatever but --

22 BOARD MEMBER DEL PIERO: Have we quantified or is

23 there an ongoing effort in terms of Los Angeles Department

24 of Water and Power to present evidence to this Board in

25 terms of quantification of reproduction of that?

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1 DR. BESCHTA: Left me shift, if I can, the microphone.

2 BOARD MEMBER DEL PIERO: Okay.

3 DR. KAUFFMAN: If you look on page six of my

4 testimony, the last sentence -- page six of my testimony

5 in -- I don't know what number, DWP-24 or 25.

6 CHAIRMAN CAFFREY: "28."

7 BOARD MEMBER DEL PIERO: Hold on for one second.

8 DR. KAUFFMAN: Yes.

9 BOARD MEMBER DEL PIERO: That's the white book?

10 DR. KAUFFMAN: Yes -- no, no, it's the testimony on

11 the Restoration Plan R-DWP-28.

12 BOARD MEMBER DEL PIERO: Okay.

13 DR. KAUFFMAN: And this is based on my walking the

14 creek on several occasions and basically looking for and

15 just acknowledging -- just to see what is the situation of

16 the recovery of the conifer component on the ecosystem.

17 And basically I stated that "Fortunately, naturally

18 established seedlings of conifers are common..." both the

19 Lodgepole pine and Jeffrey pine, it's not just Jeffrey pine

20 "...as are tree-like willows."

21 Again, as one walks the creek, you see that there

22 are -- it's safe to say hundreds of small conifers that are

23 establishing within the riparian zone today.

24 BOARD MEMBER DEL PIERO: Which reaches?

25 DR. KAUFFMAN: The entire area from, I would say,

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1 Reach 2 to the -- probably County Road.

2 BOARD MEMBER DEL PIERO: Reach 2?

3 DR. KAUFFMAN: From beginning at Reach 2 high up and

4 through the County Road.

5 BOARD MEMBER DEL PIERO: Where do the seedlings come

6 from up there?

7 DR. KAUFFMAN: There's a large number of established

8 conifers at the high end of Rush Creek in the canyon area

9 just above the --

10 BOARD MEMBER DEL PIERO: What are we looking at here,

11 gentlemen?

12 DR. KAUFFMAN: This is low.

13 BOARD MEMBER DEL PIERO: Okay. Let's go -- excuse me,

14 Mr. Chairman.

15 CHAIRMAN CAFFREY: Would you use the mike, Mr. Del

16 Piero.

17 BOARD MEMBER DEL PIERO: Sure. You'll forgive me,

18 Mr. Chairman, but it's an issue that -- he indicated there

19 was one sentence in his presentation and I didn't find

20 anything else anywhere else. So unless we're assuming that

21 someone's going to be out there mutilating this system for

22 large woody debris from now until my hairline comes back,

23 something else has to happen. No conifers here.

24 DR. KAUFFMAN: No.

25 BOARD MEMBER DEL PIERO: Okay. Let me see the rest of

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1 the reaches here. I'm assuming that short of the presence

2 of a mature conifer you aren't going to have an immature

3 conifer; is that correct? Not likely anyway?

4 DR. KAUFFMAN: I'm sorry?

5 BOARD MEMBER DEL PIERO: Short of the presence of a

6 pine tree that's going to drop seeds you aren't going to

7 have a pine tree growing out there; is that more or less

8 correct?

9 DR. KAUFFMAN: One of the things that's apparent by

10 anybody walking the creek is that there's a number of pine

11 cones that are deposited by high water -- are transported by

12 high water carrying -- presumably carrying the seeds. I

13 don't think that seed dispersal is a problem.

14 BOARD MEMBER DEL PIERO: There's not a seed dispersal

15 problem if there's seeds to disperse.

16 DR. KAUFFMAN: Exactly.

17 BOARD MEMBER DEL PIERO: Yeah.

18 DR. KAUFFMAN: And there are seeds to disperse.

19 BOARD MEMBER DEL PIERO: Where?

20 DR. KAUFFMAN: Beginning --

21 BOARD MEMBER DEL PIERO: Where?

22 DR. KAUFFMAN: Let me show you -- I can show you on

23 the aerial photo where we've mapped the Jeffrey pine.

24 BOARD MEMBER DEL PIERO: Okay.

25 CHAIRMAN CAFFREY: Could we have some clarification on

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1 what it is we're doing? That sort of developed into a

2 little side meeting. Let's work through the Chair.

3 BOARD MEMBER DEL PIERO: What I'm asking for,

4 Mr. Chairman, is demonstration of the existence of whatever

5 remnant conifer forest -- and I'm using that in the most

6 generous term because there's never been a forest out there

7 as long as I've been looking around. There's one or two

8 trees left over from about 30 or 40 years ago that might

9 have been able to survive. The vast majority of pine

10 forest -- Jeffrey and Lodgepole, predominantly Jeffrey --

11 were wiped out when these streams were dewatered.

12 DR. KAUFFMAN: Yes, that would be correct, your

13 statement.

14 BOARD MEMBER DEL PIERO: And they were -- based on

15 testimony given three years ago -- and I assume nothing's

16 changed, the testimony was given by both LADWP and the

17 National Audubon Society, that was singularly the source of

18 large woody debris for Rush Creek.

19 We've heard repeated testimony on this, both written

20 and oral, about the necessity of that and short of a

21 completely artificial system where you have people hauling

22 woody debris in -- and we've heard that hauling woody debris

23 in is a bad idea -- you have to get woody debris into the

24 system somehow and the only way to do it is normally to grow

25 it naturally, and other than one line there's no reference

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1 to that in terms of the Restoration Plan.

2 CHAIRMAN CAFFREY: So the question is succinctly

3 where's the woody debris gonna come from?

4 BOARD MEMBER DEL PIERO: Yes.

5 CHAIRMAN CAFFREY: Is that what we're talking about

6 here? Is there an answer to that?

7 DR. KAUFFMAN: Yeah. Again, the sources of woody

8 debris would come from those plants that can become -- that

9 can grow to a tree size and there's four or five species out

10 there: Jeffrey pine, Lodgepole pine, Black cottonwood and

11 Salix lucida, Yellow willow.

12 BOARD MEMBER DEL PIERO: I'm focusing just to Jeffrey

13 pine and Lodgepole.

14 DR. KAUFFMAN: Okay, yeah, and as of 1996 it's been

15 based upon our math and we see -- and the vast majority is

16 in the upper reaches of Rush Creek. If you'll look --

17 again, it is in my testimony that there are approximately

18 1,902 square meters of area occupied by -- that would be

19 probably four acres -- of area occupied by -- no, excuse me,

20 not four acres. What would that be? Point one nine --

21 BOARD MEMBER DEL PIERO: How many square meters?

22 DR. KAUFFMAN: 1,902. It's nineteen -- the "Riparian

23 Plant Communities on Rush Creek 1996" this -- it's in my

24 testimony.

25 BOARD MEMBER DEL PIERO: It's ten by a hundred foot --

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1 pardon me, ten by a hundred meter plot; is that correct?

2 CHAIRMAN CAFFREY: Let's get as clear an answer as we

3 can here. The question is: What's the source of the woody

4 debris with respect particularly to Jeffrey pine; is that

5 right, Mr. Del Piero?

6 BOARD MEMBER DEL PIERO: Yes. I'll settle for

7 Lodgepole, too.

8 CHAIRMAN CAFFREY: Sure. We just need a succinct

9 answer for the record so we can go on.

10 DR. KAUFFMAN: Well, the bottom line is my statement

11 was that there are conifer seedlings established on the

12 riparian zone at present and this is -- we're looking at in

13 the long term these plants will grow up, die, fall into the

14 creek.

15 BOARD MEMBER DEL PIERO: Mr. Chairman --

16 MR. BIRMINGHAM: Mr. Chairman.

17 CHAIRMAN CAFFREY: Mr. Birmingham.

18 MR. BIRMINGHAM: I hate to interrupt Mr. Del Piero's

19 questions, but I'd like to just take a moment and point out

20 that the Restoration Plan proposed by DWP contains a

21 provision that on areas that are not recovered naturally

22 Jeffrey pine will be artificially planted.

23 BOARD MEMBER DEL PIERO: When?

24 MR. BIRMINGHAM: I think, as Dr. Beschta indicated and

25 I believe Dr. Trush may have a view on this as well, when we

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1 are able to determine where the areas that will not be

2 occupied by -- well, I shouldn't testify. I'd ask them to

3 answer that question.

4 MR. KAVOUNAS: If I may clarify --

5 BOARD MEMBER DEL PIERO: I don't want to belabor the

6 point.

7 CHAIRMAN CAFFREY: I don't believe Mr. Birmingham has

8 taken the oath.

9 BOARD MEMBER DEL PIERO: Hey, I have no reason to

10 question Mr. Birmingham's ability and familiarity with

11 various of the exhibits by any stretch of the imagination.

12 CHAIRMAN CAFFREY: By the way, Mr. Birmingham, you're

13 welcome to take the oath. I didn't mean to say that -- if

14 you wish to appear as a witness, you're more than welcome.

15 MR. BIRMINGHAM: Absolutely not.

16 BOARD MEMBER DEL PIERO: If I can get an answer to the

17 question, Mr. Chairman. I don't want to belabor it.

18 CHAIRMAN CAFFREY: Let me remind the Board Members

19 that the answer is the answer whether we like it or not.

20 The witnesses do the best they can.

21 Is there an answer specifically with regard to the

22 Jeffrey pine "yes" or "no"? If there is, please give it to

23 us.

24 MR. KAVOUNAS: Yes, there is an answer. There's an

25 answer, as Dr. Kauffman has stated, as to the existing

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1 Jeffrey pine. And as far as the planting that the

2 Department is proposing in its plan, that's listed on page

3 74. And as far as the schedule, the plan is fairly clear

4 the planting will begin during the first full field season

5 after the State Board approves this plan. That includes

6 planting of Jeffrey pine.

7 BOARD MEMBER DEL PIERO: I didn't find that, but I'll

8 look for it. Thank you.

9 CHAIRMAN CAFFREY: All right. Thank you, sir. Thank

10 you, Mr. Del Piero.

11 Any questions from the other Board Members? All

12 right, nothing from the Board Members.

13 That completes the Board Member cross-examination of

14 this panel. Now we will go to redirect, if any, and I

15 suspect there is some.

16 MR. BIRMINGHAM: Well, actually, there is a little.

17 CHAIRMAN CAFFREY: Good morning again, Mr. Birmingham.

18 MR. BIRMINGHAM: Good morning.

19 CHAIRMAN CAFFREY: You may begin your redirect, sir.

20 MR. BIRMINGHAM: Unlike Mr. Dodge and unlike

21 Mr. Del Piero, I won't misrepresent the number of questions

22 that I'm going to ask you because I know it will change as I

23 ask it.

24 CHAIRMAN CAFFREY: Do you have an idea of how much

25 time you need, sir, just so we can plan as we go here?

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1 MR. BIRMINGHAM: Forty-five minutes.

2 CHAIRMAN CAFFREY: All right.

3 ---oOo---

4 REDIRECT EXAMINATION

5 BY LOS ANGELES DEPARTMENT OF WATER AND POWER

6 MR. BIRMINGHAM: Mr. Hunter and Dr. Trush, yesterday

7 Mr. Roos-Collins was asking a series of questions concerning

8 when we would be able to conclude that restoration was

9 completed, and at the time he was asking those questions you

10 were not on the panel.

11 Do either of you have an opinion as to whether or not

12 we can say with certainty when restoration will have been

13 completed?

14 MR. HUNTER: I guess my view on that is that when the

15 flows are implemented, the flows that are in the plan, it is

16 our hope that those flows will create the processes that

17 will start the restoration of those streams. At that

18 immediate -- as to when that -- when the restoration is

19 completed, I don't have a view. These stream channels

20 naturally evolve, change on an annual basis, and how you

21 determine when they've reached restoration is beyond me.

22 MR. BIRMINGHAM: Dr. Trush, do you have a view on that

23 question?

24 DR. TRUSH: No, I don't have a specific time. I guess

25 I would look at a turning point is when we reach maturity of

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1 cottonwoods on the present day floodplain, say in the 20,

2 25-year category. We're going to see a very -- a large

3 forest, something that's going to be to a person traveling

4 along noticing a very different kind of system if they were

5 there 25 years earlier versus ten years from the -- over a

6 ten year we would notice some green shrubs, but once you

7 reach the maturity of the cottonwood forest I think you'll

8 start to reach some kind of stability.

9 It will still keep changing. We all talk about

10 fluctuation, but I think the maturity of the cottonwoods

11 will be a mark in the evolution of it; but I can't give an

12 exact date of when we're going to hit an equilibrium stream

13 channel.

14 MR. BIRMINGHAM: Dr. Platts, yesterday you stated that

15 you would not recommend that fish passage be created at

16 DWP's Walker, Parker and Lee Vining Creek diversion

17 facilities; is that correct?

18 DR. PLATTS: No, just Walker and Parker.

19 MR. BIRMINGHAM: In your opinion, do the fish --

20 excuse me. Do the fish passage barriers that are created at

21 Walker and Parker by DWP's diversion facilities limit the

22 number of brown trout in those streams?

23 DR. PLATTS: In my opinion it does not.

24 MR. BIRMINGHAM: And on what do you base that opinion?

25 DR. PLATTS: I base it on the fact that there are

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1 spawning and rearing areas both above and below these

2 diversions and also looking at some of the data collected by

3 California Department of Fish and Game, by Dr. Mesick,

4 looking at that information above and below diversions to

5 see if I couldn't come up with something that would show

6 that there was a problem.

7 The database available I could not show that there is

8 a problem -- the fish passage blocks are causing a problem

9 with the fish population.

10 MR. BIRMINGHAM: Mr. Hunter, do you have an opinion on

11 that subject?

12 MR. HUNTER: I would agree with Dr. Platts.

13 MR. BIRMINGHAM: That the diversion facilities do not

14 create a limiting factor for brown trout populations in the

15 streams?

16 MR. HUNTER: Correct.

17 MR. BIRMINGHAM: Dr. Trush, do you have a view on that

18 question?

19 DR. TRUSH: Yeah, Lee Vining I question -- Lee Vining

20 I wouldn't be so sure of as far as fish passage, but I have

21 no problems with Parker and Walker and I spent a large

22 percent of my time up in Arcata trying to get fish passage

23 culverts in the timber industry. That's a big passion of

24 mine.

25 So for me to say fish passage isn't that big a deal I

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1 don't think on Parker and Walker, I'm wondering what I'm

2 saying; but that's what I would have to do as a scientist

3 from the evidence that I've seen and the research that I've

4 seen.

5 MR. BIRMINGHAM: That evidence would include the data

6 that Dr. Platts referred to?

7 DR. TRUSH: Yes. In fact, the two culverts I'd be

8 most worried about are the ones under 395. They really

9 split up the main stem of both creeks and if you're going to

10 have any significant migration, I could see it happening at

11 those two. Those two aren't very friendly to fish. The

12 baffled one is great if you have adult steelhead going up,

13 but I'm not so sure about smaller cutthroat.

14 CHAIRMAN CAFFREY: Mr. Del Piero, are you raising your

15 hand?

16 BOARD MEMBER DEL PIERO: Yes, I have a question.

17 I don't recall, is there a recommendation in the

18 Restoration Plan that this Board seek out assistance from

19 Caltrans in terms of remedying that impediment?

20 CHAIRMAN CAFFREY: This is a clarifying question.

21 Briefly, sir. We'll delay the start once you get

22 back. Thank you for reminding us.

23 BOARD MEMBER DEL PIERO: Yes, Mr. Tillemans.

24 MR. TILLEMANS: Yes, we've addressed this and I can

25 find the letter in my pile over here; but we've called

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1 Caltrans, written them in a letter when they do their

2 highway widening projects to take into consideration future

3 flows that will be coming down from there and --

4 BOARD MEMBER DEL PIERO: Mr. Canaday, do you have a

5 copy of the letter?

6 MR. CANADAY: I'm not sure what letter he's referring

7 to, but I do know that LADWP has made conversations with

8 Caltrans and informed them of the need to take that into

9 consideration.

10 BOARD MEMBER DEL PIERO: There's no reference to it in

11 the current document?

12 MR. BIRMINGHAM: I believe there is a copy of the

13 letter in the appendix to the Restoration Plan.

14 CHAIRMAN CAFFREY: All right. Please proceed,

15 Mr. Birmingham, and we'll delay the start of the clock.

16 MR. BIRMINGHAM: Thank you.

17 Dr. Platts, are you familiar with the historic

18 conditions of Rush Creek? And when I say "historic," I mean

19 the conditions of Rush Creek prior to the diversions of

20 water for export by the Department of Water and Power.

21 DR. PLATTS: Personally, no. The only thing I can

22 draw on is what I've read or what I've been told or what I

23 can deduct out of things that went on at that time.

24 MR. BIRMINGHAM: I would like to read to you a passage

25 from NAS&MLC Exhibit 1-Y, which is the testimony of E. Woody

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1 Trihey regarding stream restoration submitted by the Mono

2 Lake Committee and National Audubon Society in the first set

3 of hearings related to this matter, and I'd refer you to the

4 last page of the photocopy that I've given you and this

5 testimony appears to relate to the conditions of Rush Creek

6 historical; is that correct?

7 DR. PLATTS: That's correct.

8 MR. BIRMINGHAM: Looking at page 20, paragraph 24 from

9 NAS&MLC 1-Y it states (reading) the mile long reach

10 immediately above this canyon had been modified to function

11 as a supply channel for irrigation ditches. It was a

12 long -- excuse me. It was a low gradient engineered reach

13 generally devoid of channel structure or instream objects

14 that would have provided good cover for fish. However, it

15 was lined with dense riparian vegetation. This channel

16 reach was replaced with the Mono Ditch when Grant Lake Dam

17 was enlarged in 1939-40.

18 Is it your understanding that that testimony refers to

19 what we have called in these proceedings Reach 1 of Rush

20 Creek?

21 DR. PLATTS: Yes.

22 MR. BIRMINGHAM: Is it your understanding -- let me

23 restate the question. From your review of the historical

24 information concerning Rush Creek, do you agree with the

25 characterization presented by Mr. Trihey in NAS&MLC 1-Y?

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1 DR. PLATTS: Yes, I do.

2 MR. BIRMINGHAM: Do you have an opinion concerning

3 whether or not the conditions that existed in Reach 1 would

4 have provided good habitat for brown trout?

5 DR. PLATTS: It would not have provided good habitat,

6 but there were brown trout available that were occupying

7 that reach, but it would not be good habitat.

8 MR. BIRMINGHAM: Are you familiar with the suggestion

9 by Dr. Platts -- excuse me, by Dr. Beschta in his testimony

10 that Reach 1 could be rewatered by diverting a few cfs from

11 the Mono Return Ditch and allowing that water to back up

12 into Reach 1?

13 DR. PLATTS: Yes, I'm familiar with that.

14 MR. BIRMINGHAM: Would that process recreate the

15 conditions that existed in that reach of stream in 1941?

16 DR. PLATTS: Yes, they would be similar.

17 MR. BIRMINGHAM: In connection with the hearings which

18 resulted in D-1631 you submitted a testimony; is that

19 correct?

20 DR. PLATTS: Could you clarify that?

21 MR. BIRMINGHAM: Yes. I'd like to show you what I

22 believe was testimony that you submitted with Dr. Donald

23 Chapman concerning the historical conditions of Rush Creek

24 that was presented during the hearings which resulted in

25 D-1631. Do you recall that?

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1 DR. PLATTS: Yes, I do.

2 MR. BIRMINGHAM: Now, in the preparation of that

3 testimony you reviewed all of the historical data that you

4 could find pertaining to the conditions of Rush Creek; is

5 that correct?

6 DR. PLATTS: Yes, I did.

7 MR. BIRMINGHAM: What -- in 1941 prior to the

8 diversions by DWP how would you describe the condition of

9 the stream between, say, the point at which the A-Ditch

10 started and Highway 395?

11 DR. PLATTS: It was a highly diverted stream. It was

12 heavily grazed by livestock. For months on end the stream

13 would have zero flow above 395. It was a highly stressed

14 stretch of stream. I would say that the fish population in

15 that area was having a hard time surviving. It wasn't -- it

16 was not good conditions. I think that's typical of other

17 streams you see in the Western United States that are

18 heavily grazed and very heavily diverted.

19 MR. BIRMINGHAM: In fact, as part of your testimony

20 that was submitted in 1993 you had a Figure 6; is that

21 correct?

22 DR. PLATTS: Yes.

23 MR. BIRMINGHAM: And what was Figure 6?

24 DR. PLATTS: It's a photograph of Rush Creek looking

25 upstream in the vicinity of the old Highway 395. It was

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1 taken in 1939.

2 MR. DODGE: Mr. Chairman, I wonder --

3 CHAIRMAN CAFFREY: Mr. Dodge.

4 MR. DODGE: -- what's really the purpose of this

5 hearing to revisit all of the work we did in 1993 on the

6 historic conditions pre-diversions, which seems to me what

7 this testimony's all about. Those matters have already been

8 resolved.

9 MR. BIRMINGHAM: Indeed, they have been resolved and

10 the relevance of this question -- or line of questions will

11 become immediate -- or known immediately with my next

12 question.

13 CHAIRMAN CAFFREY: All right. Please proceed and get

14 to the point as quickly as you can, Mr. Birmingham.

15 MR. BIRMINGHAM: I will, but before I do that I'd like

16 to pass this photograph Figure 6 from the direct testimony

17 of Dr. Platts to the Members of the Board.

18 Dr. Platts, have you heard any of the parties to these

19 proceedings propose that we restore the conditions of Rush

20 Creek that are depicted in Figure 6?

21 DR. PLATTS: No.

22 MR. BIRMINGHAM: I'd like to go back and talk a moment

23 about Reach 1, and I'd like to ask this question of

24 Dr. Platts, Mr. Hunter --

25 MS. CAHILL: Mr. Birmingham, could we see Figure 6?

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1 MR. BIRMINGHAM: Certainly.

2 CHAIRMAN CAFFREY: Is this the only copy we've got?

3 DR. BESCHTA: Here's a loose one if I can get it back.

4 MR. BIRMINGHAM: Dr. Platts, Mr. Hunter and Dr. Trush,

5 I'm going to ask you to assume that in order to construct an

6 outlet facility from Grant Lake Dam into Reach 1 it would

7 cost approximately 10.8 to 14 million dollars.

8 Do either of you have an opinion concerning whether it

9 would be reasonable to expend that money to construct an

10 outlet facility in order to rewater Reach 1?

11 Dr. Platts, do you have an opinion on that?

12 MR. DODGE: Objection, it calls for an opinion on a

13 question of law. I mean, that's really the ultimate

14 decision facing this Board.

15 CHAIRMAN CAFFREY: Help me out with this, Mr. Frink.

16 MR. FRINK: I believe any of the scientists could

17 offer an opinion, if they have one, on how reasonable a

18 proposal it would be from their standpoint as scientists.

19 CHAIRMAN CAFFREY: And, of course, it goes to the

20 Board to give weight of evidence.

21 Mr. Del Piero?

22 BOARD MEMBER DEL PIERO: No comment, Mr. Chairman.

23 CHAIRMAN CAFFREY: Go ahead and answer the question.

24 DR. PLATTS: I would consider it unreasonable if the

25 sole purpose was just for rewatering Reach 1.

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1 MR. BIRMINGHAM: Mr. Hunter, do you have an opinion on

2 that?

3 MR. HUNTER: If, as it appears, the flows that we

4 think are required in order to set restoration and progress

5 can be achieved without spending that money, I would not

6 think it would be necessary to spend that money.

7 DR. TRUSH: I agree with Chris.

8 MR. BIRMINGHAM: Yesterday Mr. Tillemans expressed an

9 opinion that at least with respect to some reaches of Rush

10 Creek the restoration proposal that's been made by the

11 Department of Water and Power will result in a stream which

12 is in better condition than existed in 1941 when DWP began

13 its diversions.

14 Mr. Hunter, do you have an opinion concerning the

15 accuracy of that statement?

16 MR. HUNTER: I'm really not familiar with what the

17 condition of the creek was pre '41. There are a lot of

18 streams in the Western United States that are subjected to

19 heavy grazing and heavy diversion this stream will be better

20 than -- these streams will be better than.

21 MR. BIRMINGHAM: Dr. Trush, do you have an opinion on

22 that?

23 DR. TRUSH: Yes. Again, for what reach are we talking

24 about?

25 MR. BIRMINGHAM: Well, let's focus on the reach

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1 between the old A-Ditch and Highway 395 of Rush Creek.

2 DR. TRUSH: Based on the photos and looking at

3 riparian recovery I'd say "yeah" you would improve it over

4 pre '41. Over places in the channel I'm not so sure.

5 MR. BIRMINGHAM: Now, Dr. Trush, I'd like to explore

6 for a moment some of the opinions that you've expressed with

7 respect to these proceedings.

8 You've talked about pre-disturbance conditions; is

9 that correct?

10 DR. TRUSH: Yes.

11 MR. BIRMINGHAM: What is your concept of

12 "pre-disturbance conditions"?

13 DR. TRUSH: Before the influence of white -- we always

14 say Euro-American man.

15 MR. BIRMINGHAM: So the conditions that you're talking

16 about are conditions that would not be influenced by the

17 operations of Southern California Edison or historic

18 irrigation practices?

19 DR. TRUSH: Ideally, yes.

20 MR. BIRMINGHAM: Dr. Platts, yesterday you expressed a

21 view that with respect to screening DWP's irrigation

22 diversions off of Walker and Parker at this point you didn't

23 think that was warranted; is that correct?

24 DR. PLATTS: That's correct.

25 MR. BIRMINGHAM: And you stated, I believe, that it

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1 was your understanding that no irrigation of -- from Walker

2 and Parker would occur below the Lee Vining conduit.

3 Is that your understanding?

4 DR. PLATTS: That was the way I was informed.

5 MR. BIRMINGHAM: Then Mr. Dodge asked you a question

6 whether you were aware that irrigation had occurred in 1996

7 and you responded "no" you were not aware of that; is that

8 correct?

9 DR. PLATTS: I was not.

10 MR. BIRMINGHAM: Mr. Tillemans, you're in the Mono

11 Basin frequently; is that correct?

12 MR. TILLEMANS: Yes.

13 MR. BIRMINGHAM: To your knowledge, were there any

14 irrigation diversions that occurred off of Walker and Parker

15 below the conduit in 1996?

16 MR. TILLEMANS: Below the conduit off of Walker and

17 Parker there was an incident on Parker this past year. I

18 immediately went up there to investigate. There was a

19 debris jam in the channel and water had jumped out of the

20 channel. We have no operational head gates for irrigation

21 because, if you recall previously, due to Judge Finney's

22 order on that we had to plug our irrigation diversions. So

23 we have no operational head gates and I immediately -- and I

24 also reaffirmed with the lessee at that point in time

25 there's absolutely no irrigation to be going on, and I was

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1 told that there was a debris jam in the stream and the water

2 had jumped out of the low spot down below.

3 MR. BIRMINGHAM: Did you observe that debris jam in

4 the stream?

5 MR. TILLEMANS: No, I didn't.

6 MR. BIRMINGHAM: But, to your knowledge, there were no

7 irrigation diversions out of Walker and Parker in 1996?

8 MR. TILLEMANS: No, DWP's operations do not provide

9 for that.

10 MR. BIRMINGHAM: This is a question that I'll ask of

11 Mr. Kavounas or Mr. Tillemans.

12 Mr. Dodge yesterday made reference to a July 1992

13 letter from Mr. Kodama concerning the policies of the

14 Department of Water and Power concerning irrigation of Cain

15 Ranch. He asked questions of Mr. -- excuse me, of

16 Dr. Platts concerning that correspondence.

17 Are you familiar with that correspondence,

18 Mr. Kavounas?

19 MR. KAVOUNAS: Yes, I am.

20 MR. BIRMINGHAM: What is your understanding concerning

21 the accuracy of Mr. Kodama's letter in terms of stating the

22 current policy of the Department of Water and Power

23 concerning irrigation of Cain Ranch?

24 MR. KAVOUNAS: My understanding is that the passage

25 that Mr. Dodge asked Dr. Platts to read on the second page

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1 is accurate. However, I would like to direct the Board's

2 attention to the first page, which was not mentioned

3 yesterday, and in that Mr. Kodama clearly states that the

4 attached outline of the irrigation and grazing policy that

5 DWP intends to implement in the Mono Basin is based upon the

6 current status of Mono Basin issues. That was written on

7 July 27, 1992.

8 MR. BIRMINGHAM: That preceded Decision 1631?

9 MR. KAVOUNAS: By a little over two years.

10 MR. BIRMINGHAM: Did Decision 1631 change the

11 conditions that -- or the circumstances which would guide

12 the Department's policy on irrigation?

13 MR. KAVOUNAS: I would most certainly say so.

14 MR. BIRMINGHAM: In what respect?

15 MR. KAVOUNAS: It's my opinion that the Decision

16 guides the Department to restore the streams and their

17 fisheries and that includes Rush Creek, Walker and Parker.

18 The advice that we have from our scientists is that

19 that is best done with flows in the streams. If the

20 Department is to accomplish that, the Department would need

21 to leave water in the streams not just for the sake of

22 Walker and Parker, but also for Rush Creek below the

23 Narrows.

24 MR. BIRMINGHAM: Yesterday there were some questions

25 concerning the reopening of channels and what would happen

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1 if after those channels were reopened they became plugged.

2 This is a question that I would like to direct to

3 Drs. Beschta, Platts and Trush and to Mr. Hunter.

4 What is your opinion concerning reopening those

5 channels that are proposed for reopening if after reopening

6 they become plugged? Dr. Platts, do you have a view on

7 that?

8 DR. PLATTS: Yes, it would depend on each site case by

9 case. If it's just a matter of dragging a limb out or

10 something small, I would say go ahead and do it. If it

11 gets -- but if these get to the point where you have to

12 build a step in this system in order to get that water into

13 these side channels, in other words, you have to build a

14 fault step in that channel, then you're just setting

15 yourself up for a catastrophe. Like the flows we had this

16 year in Lee Vining Creek would never allow something like

17 that to stay in.

18 So we do not want to interfere with the rehabilitation

19 of the streams by putting artificial steps in in order to

20 just keep channels watered, but if we can do it without I

21 would say to do it, but you've got to be very careful.

22 MR. BIRMINGHAM: Dr. Trush, what is your view?

23 DR. TRUSH: I'm pretty much along the lines of

24 Dr. Platts. Where some of the smaller channels like on the

25 upper part of the Lee Vining flatlands, the latest storm may

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1 have dropped the thalweg a foot and a half. I haven't been

2 there, but quite a bit below the thalweg these little side

3 channels, they're gone. I can't see reblowing out the

4 entrances and all that stuff.

5 But where we have large bifurcations of the channel

6 farther downstream, until we get a healthy riparian forest

7 up there I would have to deal with it on a site-by-site

8 basis as to whether that -- to keep that open channel

9 morphology -- the options going so when the channel kind of

10 matures then they can start making -- it's like a

11 father/son -- make a decision on its own. But until then

12 help it along, train it. So site by site, but not into a

13 standard routine where every -- you know, every other month

14 someone goes down and vacuums out the entrances to these.

15 MR. BIRMINGHAM: Mr. Hunter, what is your view, if you

16 have one?

17 MR. HUNTER: I agree with both bills.

18 MR. BIRMINGHAM: Dr. Beschta?

19 DR. BESCHTA: I agree a little bit with everybody

20 here. The rewatering of off-channel areas, a lot of it

21 seems to be occurring naturally, at least at subsurface --

22 you're getting subsurface water in many of these

23 depressional areas.

24 I certainly agree with Bill if you have to get in

25 there and construct a channel with heavy equipment to

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1 maintain an off-channel or a side channel, that's definitely

2 the wrong thing to do. The use of hand tools to move water

3 to make sure it's going into an overflow channel, I guess if

4 one feels like they have to do something that, I guess,

5 would be acceptable at some point in time.

6 But I really do think that at some point if we're

7 really talking about restoring these systems we do let them

8 function, and we're talking about putting in disturbance

9 regimes. We're talking about allowing them to do what they

10 know best, and at some point you really do have to walk out

11 of that channel with your idea on what you want to do.

12 MR. BIRMINGHAM: Dr. Trush?

13 DR. TRUSH: One thing that we haven't done and I'm not

14 sure the monitoring plan's going to show is when -- the

15 dynamics of these entrances are something you're not going

16 to go looking up in any sort of geomorphic journal. And

17 we're not talking about the huge catastrophic floods that

18 might be the major process that opens and closes these

19 things, and I'm not so sure that we may not have to have our

20 hand in it if we don't allow these large floods in the

21 future.

22 Now, we might see one now and it would be very

23 interesting to see how the dense mature cottonwood forest

24 just below 395 on Lee Vining is going to behave with these

25 big floods; but we don't know the mechanism relating to a

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1 flow threshold that's going to create a dynamic closing and

2 opening. So I can't necessarily leave out the option that

3 we might have to deal with this longer than we think.

4 Cautious scientist, but we don't know how they work.

5 MR. BIRMINGHAM: That is a segue into a question I was

6 going to ask you following up to a question that was asked

7 of you yesterday by Mr. Dodge.

8 He asked a question about a 1938 or '39 flow event and

9 the fact that -- you related the fact that it didn't do

10 significant damage to Rush Creek. What I'd like to know,

11 Dr. Trush, is in your opinion if there were a flow event of

12 the magnitude of a 1938 or '39 flow event in Rush Creek

13 today, would it create "big problems in Rush Creek" to quote

14 Mr. Dodge?

15 DR. TRUSH: I don't know if I should bet my paycheck

16 on this June or not. I don't know what that one's gonna be

17 like but --

18 BOARD MEMBER DEL PIERO: It's going to be a corker.

19 DR. TRUSH: And on the '95 one I'd put in a couple

20 cross-sections where he had the outside of the meander

21 migrate 35 feet, some of the meander bends on lower Rush.

22 So there's been some major change.

23 Now, on the inside of the bend, the point bar kept up.

24 If you walked out there before and after, you would have

25 seen no change in that channel. Your eye can't pick up

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1 35-foot displacement, but it was there. That's where the

2 deep scour comes in. It forms those bars.

3 So if your channel migrates, the outside bend, if you

4 don't have the process that keeps the inside going, you

5 can't maintain channel width. So that's another process

6 that you always have to look at. If you don't maintain

7 channel width, the whole system goes to hell. But short

8 of -- what was the flow on that?

9 MR. BIRMINGHAM: I don't know.

10 DR. TRUSH: Big, honken flow.

11 DR. KAUFFMAN: BHF.

12 BOARD MEMBER DEL PIERO: That's a scientific term,

13 right?

14 DR. TRUSH: Eight hundred, nine hundred cfs I think it

15 could handle. After that there might be some places where

16 you're gonna go, "Gee, this doesn't look very good." But

17 for me, I've just watch hundred year floods just trash

18 entire places and I'm standing there on someone's house

19 buried in sediment going, "This is good." I like to see the

20 rejuvenation of the riparian floods.

21 So I might be a poor person to ask on that, but I

22 think it would do okay, but it would set it back in places

23 more than it will if it happened ten years from now, a

24 little more mature riparian.

25 MR. BIRMINGHAM: But from what you've just said I take

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1 it, Dr. Trush, that from your view those changes are

2 actually positive?

3 DR. TRUSH: On the whole, yes.

4 MR. BIRMINGHAM: Dr. Kauffman, there was a reason that

5 you stayed over last night.

6 DR. KAUFFMAN: Okay, thank you.

7 MR. BIRMINGHAM: Mr. Dodge asked you some questions

8 yesterday concerning seed dispersal and, in particular, he

9 referred to your testimony on page three and I'm going to

10 ask you questions about whether or not consistent with the

11 definition of "restoration" you used on page three if --

12 because flows on Rush Creek were impaired, the peak were

13 delayed for three weeks, whether or not that would be

14 consistent with that definition of restoration you used.

15 Do you recall those questions?

16 DR. KAUFFMAN: Yeah, more or less.

17 MR. BIRMINGHAM: Let me ask you have you studied seed

18 dispersal on Rush Creek?

19 MR. KAVOUNAS: No. I've observed it, but I've not

20 studied it.

21 MR. BIRMINGHAM: From the observations that you've

22 made, do you have an opinion concerning whether seed

23 dispersal on Rush Creek is adequate for its restoration?

24 DR. KAUFFMAN: Oh, absolutely. I think if one looks

25 at the seed dispersal event last year where, you know,

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1 clearly seeds are not limiting or -- you know, there's no

2 seed source limitation currently for any of the willows,

3 cottonwoods or most likely conifers on that site right now.

4 MR. BIRMINGHAM: And is that your opinion with respect

5 to the entire reach of Rush Creek from, say, the confluence

6 of the return ditch to the County Road?

7 DR. KAUFFMAN: Yes.

8 MR. BIRMINGHAM: So if -- since 1986 when the stream

9 was rewatered, if since 1986 the peak flows in Rush Creek

10 have been delayed for a period of three weeks because they

11 were impaired, that hasn't created a problem with respect to

12 seed dispersal; is that right?

13 DR. KAUFFMAN: No, it hasn't.

14 DR. TRUSH: There are some places -- you know, if we

15 consider the present riparian zone, I'd have to agree. But

16 if we're talking about former riparian areas, older terraces

17 that -- if the channel cross-section looked like this and it

18 had been scoured out so the cross-sectional area is this

19 big, then these surfaces that used to get flooded frequently

20 don't get flooded very often.

21 So if we define our riparians not by the present

22 riparian but by what used to be the riparian, there is no

23 mechanism waterborne to get seeds onto those surfaces and

24 those are the areas -- but I've seen trees up on it by, I

25 guess, animals and I looked uphill and I didn't see cones

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1 rolling down on me.

2 So there must be some kind of mechanism, but those

3 areas won't get them waterborne onto them and, yet, they

4 were former riparian. They probably won't function the same

5 way anymore because of the changes in ground water, but that

6 might be areas that -- we had that in mind for targeting for

7 the planting as possible places.

8 MR. BIRMINGHAM: Dr. Trush, let me follow up on that

9 comment, if I may. Those are areas where you might propose

10 planting Jeffrey pines; is that correct?

11 DR. TRUSH: But we decided to wait and see if -- the

12 ground water, as Bob Beschta said, is so weird in that you

13 get clay lenses, you get ground water where you never think

14 it is, you walk 50 feet from the channel and you've got

15 ponded water that's a foot lower than the channel 50 feet

16 away. I've never been able to figure that one out.

17 BOARD MEMBER DEL PIERO: Mr. Chairman.

18 CHAIRMAN CAFFREY: Mr. Del Piero.

19 BOARD MEMBER DEL PIERO: The only thing that I've

20 looked at -- and obviously you all are far more expert than

21 I. The only thing I can figure is that you've got some

22 residual underground water there that didn't disappear when

23 they diverted the streams and those conifers are left over

24 from 30, 40, 50 years ago and they've just been able to

25 self-perpetuate. There are very few of them obviously. If

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1 you walk over near them you can sometimes find little, wet

2 spots out in the middle of nowhere and that, I think, is

3 probably what sustained those few remnant elements.

4 DR. TRUSH: That's what we had in mind about waiting a

5 number of years given that we've got higher flow regimes now

6 and there's a recharge. Let's see what these surfaces can

7 do on their own before we go in and start in a heavy-handed

8 manner planting. That was the idea behind it.

9 MR. BIRMINGHAM: Dr. Trush, on these terraces that

10 you've just described, the failure of the water to disperse

11 the seeds is not a result of the timing of the peak flows,

12 is it?

13 DR. TRUSH: No, it's magnitude and -- well, magnitude

14 and change in the cross-section of the stream, the loss of

15 the confinement.

16 MR. BIRMINGHAM: Dr. Kauffman, yesterday Mr. Dodge

17 showed you some photographs. They've been marked for

18 purposes of identification as R-NAS-MLC 8, 9 and 10.

19 Do you have a copy of those in front of you?

20 DR. KAUFFMAN: These are them?

21 MR. BIRMINGHAM: Yes.

22 MR. BIRMINGHAM: Okay. I don't know which one's 8, 9

23 or 10 but --

24 MR. BIRMINGHAM: May I have a moment, Mr. Caffrey?

25 DR. KAUFFMAN: To answer your question, yes, I do have

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1 a copy in front of me.

2 MR. BIRMINGHAM: Have you had an opportunity to review

3 those photographs with greater detail to determine whether

4 or not the area that is depicted in the foreground of

5 R-NAS-MLC has, in fact, revegetated with riparian

6 vegetation?

7 DR. KAUFFMAN: Looking -- comparing pictures 8 and

8 10 -- well, what I do see -- and, again, you know, with a

9 different lens and a different angle it makes comparisons a

10 little bit difficult but if one looks at the foreground of

11 the photo one does see while it's green, it's Chrysothamnus

12 nauseousus or grey rabbitbrush. This is an upland species,

13 a highly disturbed -- it's dependent upland species that's

14 even poisonous to sheep. It's clearly not a very desirable

15 riparian species.

16 If one looks at the background in contrast, though,

17 you can see a pretty impressive expansion of the willow

18 cover and dominates in growth over the -- what's this, '93

19 to '95, the photos? Again, if one would just look at the

20 cottonwood and Jeffrey pine to the right and just above to

21 the right of the piece of heavy equipment, one can look at

22 those willow communities as being greatly expanding through

23 time on the site. Interestingly enough, areas where there

24 has been some work done you don't see that establishment of

25 willow through time.

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1 MR. BIRMINGHAM: So looking at these pictures, the

2 establishment of willow has occurred in places where the

3 restoration activities didn't occur?

4 DR. KAUFFMAN: Where the heavy equipment activities

5 were occurring, yes.

6 MR. BIRMINGHAM: I want to make sure that my record is

7 correct. Looking at these photographs, the willow

8 recruitment has occurred in places where the restoration

9 activity did not take place?

10 DR. KAUFFMAN: Yes, yes.

11 MR. BIRMINGHAM: Have you had an opportunity to go out

12 and inspect the sites along Rush Creek where spoils were

13 deposited during the restoration activities that took place

14 under the jurisdiction of the El Dorado County Superior

15 Court?

16 DR. KAUFFMAN: Yes, I have. That's, I think, what I

17 was -- what was brought up when I allegedly made some bet

18 yesterday, I was referring to areas where ditch spoils had

19 been deposited upon old gravel bars.

20 MR. BIRMINGHAM: And did you -- have you had an

21 opportunity to determine from your inspections whether or

22 not those spoil sites have recovered?

23 DR. KAUFFMAN: Yes. One area in particular that we

24 have looked at in September of this year was on page 36 of

25 the Rush and Lee Vining Creeks' restoration work. That's

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1 Exhibit 2. It says Exhibit 2. I don't know what that is.

2 At any rate, it was an area that was a gravel bar with

3 small, moist meadow-type wetlands around it. Through the

4 in-channel work the wetlands were destroyed and had spoils

5 deposited upon the gravel bar and, again, once you build up

6 these areas -- once you build up and put this many ditch

7 spoils on an area that was a gravel bar or wetland I made

8 the statement that these -- you've ruined these sites in

9 terms of wetland recovery. To this day that site is

10 dominated, again, with a few sparse rabbitbrush plants, a

11 few exotic weeds and little else.

12 MR. BIRMINGHAM: Dr. Trush, yesterday during questions

13 of you by -- I believe it was Mr. Dodge you made reference

14 to your activities as a court-appointed restoration

15 technical committee member.

16 Do you recall those questions? Let me be more

17 specific.

18 DR. TRUSH: Yeah, thanks.

19 MR. BIRMINGHAM: During your testimony you referred to

20 a report which you say you deposited in the round and

21 circular file, a report that said that the channel would

22 mobilize at 1200 cfs. Do you recall that?

23 DR. TRUSH: Yes.

24 MR. BIRMINGHAM: Who prepared the report that you were

25 referring to?

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1 DR. TRUSH: After I threw it out I -- you know, pretty

2 much Simons and Lee of Fort Collins.

3 MR. BIRMINGHAM: And do you agree that the channel

4 referred to in that report would mobilize at 1200 cfs?

5 DR. TRUSH: From the first minute I stepped out on the

6 bar far below that.

7 MR. BIRMINGHAM: And it was based upon your opinion

8 that the channel will mobilize at flows far below that that

9 you concluded that the kind of engineered restoration

10 approach undertaken historically was inappropriate?

11 DR. TRUSH: Yes.

12 MR. BIRMINGHAM: May I have a moment, Mr. Del Piero --

13 Mr. Caffrey?

14 CHAIRMAN CAFFREY: Yeah, just very briefly. You are

15 staying within your 45 minutes?

16 MR. BIRMINGHAM: Yeah.

17 CHAIRMAN CAFFREY: We'll stop the clock for just a

18 brief second.

19 (Pause.)

20 MR. BIRMINGHAM: Mr. Kavounas, I'd like to look at

21 paragraph eight of Decision 1631 -- it's paragraph eight of

22 the Order actually. Paragraph 8(a) contains a number of

23 items which the Stream Restoration Plan shall make

24 recommendations on; is that correct?

25 MR. KAVOUNAS: Yes.

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1 MR. BIRMINGHAM: I'd like to run through this list.

2 Does the plan submitted by the Department of Water and Power

3 make a recommendation concerning instream habitat

4 restoration measures for Rush Creek?

5 MR. KAVOUNAS: Yes, it does.

6 MR. BIRMINGHAM: Does it make a recommendation for

7 rewatering of additional channels on Rush Creek and Lee

8 Vining Creek?

9 MR. KAVOUNAS: Yes, it does.

10 MR. BIRMINGHAM: And does it make a recommendation

11 concerning the riparian vegetation restoration for Rush

12 Creek and Lee Vining Creek?

13 MR. KAVOUNAS: Yes, it does.

14 MR. BIRMINGHAM: Does it make a recommendation

15 concerning a sediment bypass facility at Licensee's

16 diversion structure on Lee Vining Creek?

17 MR. KAVOUNAS: The plan makes a recommendation for

18 sediment bypass operations.

19 MR. BIRMINGHAM: Does it contain a flood flow

20 contingency measure?

21 MR. KAVOUNAS: Yes, it does.

22 MR. BIRMINGHAM: Does it propose limitations or make

23 recommendations on limitations on streamcourse vehicular

24 access?

25 MR. KAVOUNAS: Yes, it does.

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1 MR. BIRMINGHAM: Does it contain recommendations

2 concerning the construction of a fish and sediment bypass

3 system around the Department's diversion facilities on

4 Walker and Parker Creeks?

5 MR. KAVOUNAS: It contains recommendations to not

6 construct them, yes.

7 MR. BIRMINGHAM: Does it contain a recommendation

8 concerning spawning gravel replacement programs downstream

9 of the Department's points of diversions on Rush, Lee

10 Vining, Walker and Parker Creeks?

11 MR. KAVOUNAS: The recommendation is included to not

12 perform any spawning gravel replacement programs.

13 MR. BIRMINGHAM: But there is a recommendation

14 contained in the plan?

15 MR. KAVOUNAS: Yes. Yes, there is.

16 MR. BIRMINGHAM: Is there a recommendation concerning

17 the livestock grazing exclusion in the riparian areas below

18 the Department's points of diversions on the streams?

19 MR. KAVOUNAS: Yes, there is.

20 MR. BIRMINGHAM: And does it contain a recommendation

21 concerning the feasibility of installing and maintaining

22 fish screens on points of diversion from the streams?

23 MR. KAVOUNAS: Yes.

24 MR. BIRMINGHAM: And it does contain a Grant Lake

25 Operations and Management Plan?

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1 MR. KAVOUNAS: It is attached as a separate plan. It

2 is part of the Department's minutes.

3 MR. KAVOUNAS: So in preparing the document which has

4 been submitted by the Department, the Department referred to

5 D-1631 and tried to make recommendations concerning each one

6 of the elements described in the decision?

7 MR. KAVOUNAS: Yes.

8 MR. BIRMINGHAM: I have no further questions.

9 CHAIRMAN CAFFREY: Thank you very much,

10 Mr. Birmingham, and thank you for staying within your time.

11 I think at this point it would make sense before we go

12 to recross to take a short break and let's try to be back

13 here say 15 minutes. We'll be back at 20 to 11:00 by that

14 clock, thank you.

15 (Whereupon a recess was taken.)

16 CHAIRMAN CAFFREY: Okay, let's find our seats and

17 resume the hearing, please.

18 We were going to start with recross. I believe

19 Mr. Birmingham has something you would like to tell us.

20 MR. BIRMINGHAM: Yes, Mr. Caffrey. In order to

21 arrange for Dr. Kauffman to be here today we arranged a

22 flight for him back to Oregon early this afternoon, but in

23 order for him to make that flight and make his class at

24 Oregon State it will be necessary for him to leave here by

25 noon. I wonder if --

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1 CHAIRMAN CAFFREY: Would you like to have him run

2 everybody through one time and just ask him questions and

3 then we can accommodate him?

4 MR. BIRMINGHAM: If possible I think so and Dr. -- I

5 think Dr. Beschta would like to go with him because that

6 will get him back to Oregon earlier as well, but we may

7 finish by noon. I don't know.

8 CHAIRMAN CAFFREY: Yeah, we'll just try to move along

9 as quickly as we can and then if we get to the point of no

10 return we can ask people if they have any further questions

11 and run it through real quickly. We'll try to accommodate.

12 We do appreciate -- I understand you got a charter

13 flight in order to make your class and to stay here a little

14 bit longer. We appreciate that, Dr. Kauffman. We'll try to

15 proceed in that fashion as best we can.

16 Now, let's move as quickly as we can to recross and

17 I'll just go through the list to see who wishes to do so.

18 U.S. Forest Service? Is anybody here from the U.S.

19 Forest Service today?

20 BOARD MEMBER DEL PIERO: Earlier.

21 CHAIRMAN CAFFREY: Is Mr. Gipsman here?

22 BOARD MEMBER DEL PIERO: He was.

23 CHAIRMAN CAFFREY: He was here? Perhaps he wishes to

24 recross. Of course, he did not cross.

25 Bureau of Land Management?

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1 MR. RUSSI: No, thank you, Mr. Chairman.

2 CHAIRMAN CAFFREY: Thank you, sir.

3 Is anyone here from the Trust of Public Land? They

4 weren't here yesterday.

5 MR. FRINK: I had a call and they do not plan on

6 attending unless we specifically request it.

7 CHAIRMAN CAFFREY: All right. Thank you, Mr. Frink.

8 BOARD MEMBER DEL PIERO: Unless we specifically

9 request it?

10 CHAIRMAN CAFFREY: "We" being the Board, I guess.

11 MR. FRINK: Yes.

12 CHAIRMAN CAFFREY: Thank you, sir.

13 BOARD MEMBER DEL PIERO: We'll take that up.

14 CHAIRMAN CAFFREY: People for the Preservation of Mono

15 Basin?

16 MS. BELLOMO: No questions, thank you.

17 CHAIRMAN CAFFREY: Arnold Beckman?

18 MR. MOONEY: No questions, Mr. Mooney. Thank you,

19 sir.

20 Arcularius Ranch?

21 BOARD MEMBER FORSTER: He's on the phone.

22 CHAIRMAN CAFFREY: Mr. Haselton is on the phone?

23 We'll go back to him.

24 Richard Ridenhour?

25 MR. RIDENHOUR: No, thank you.

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1 CHAIRMAN CAFFREY: Good morning, sir. I'll have to

2 remember to swear you in later.

3 Mr. Roos-Collins from California Trout? Please, come

4 forward, sir.

5 BOARD MEMBER DEL PIERO: Mr. Haselton has no

6 questions.

7 CHAIRMAN CAFFREY: Mr. Haselton has no questions.

8 Let's try to set some rules here and try to be as fair

9 as we can, as always. First of all, please take caution to

10 keep your recross pertinent to redirect. And, secondly,

11 since Mr. Birmingham took 45 minutes for his redirect, in

12 keeping with the ratio of how we set this up on the direct

13 I'm inclined to use a guideline of a half an hour for each

14 panel and then if somebody needs more time, they can make a

15 showing when they're up here. But the Board would very much

16 appreciate, as I know the other parties would, brevity and

17 succinctness as best that we can.

18 Good morning again, Mr. Roos-Collins, and welcome,

19 sir.

20 MR. ROOS-COLLINS: Good morning, Mr. Chair.

21 ---oOo---

22 RECROSS-EXAMINATION

23 BY NATURAL HERITAGE INSTITUTE

24 MR. ROOS-COLLINS: Let me begin with the fish

25 population objective stated in the blue book on page 14.

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1 MR. BIRMINGHAM: Objection, exceeds the scope of the

2 redirect.

3 CHAIRMAN CAFFREY: I'm sorry, I didn't hear the

4 objection.

5 MR. BIRMINGHAM: It exceeds the scope of the redirect.

6 CHAIRMAN CAFFREY: I haven't heard the question yet.

7 Mr. Frink?

8 MR. FRINK: I don't believe that they discussed the

9 Monitoring Plan on redirect, at least that section of it

10 regarding the objective.

11 CHAIRMAN CAFFREY: All I can tell you,

12 Mr. Roos-Collins, is you need to stay obviously within the

13 scope of the redirect and please refer to documentation that

14 was referred to in that redirect as best you can.

15 MR. ROOS-COLLINS: Mr. Chair, no questions, thank you.

16 CHAIRMAN CAFFREY: All right. Thank you, sir.

17 Virginia Cahill representing the Department of Fish

18 and Game?

19 MR. DODGE: We switched, as you recall, Mr. Chairman,

20 just for this panel.

21 CHAIRMAN CAFFREY: Yes, we did. I was about to say

22 that was a permanent -- but then this is all part of that

23 questioning. So I stand corrected. Please, go ahead.

24 Mr. Dodge.

25 ///

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1 ---oOo---

2 RECROSS-EXAMINATION

3 BY NATIONAL AUDUBON SOCIETY

4 MR. DODGE: Dr. Trush, you've talked at various times

5 about bed load motion starting about 350 cfs to 400 cfs at

6 Rush Creek.

7 DR. TRUSH: What I'm talking about is mobilization of

8 the bed surface.

9 MR. DODGE: At about 350 cfs?

10 DR. TRUSH: Yes. You probably get some bed load

11 movement below that when you get mobilization of gravel

12 deposits, sand, smaller size classes.

13 MR. DODGE: How often would you want that to occur to

14 restore Rush Creek?

15 DR. TRUSH: Well, the prevailing literature has it at

16 about two out of three years as an annual maximum flow,

17 which translates into roughly once a year.

18 MR. DODGE: Roughly once a year. And if Los Angeles'

19 channel maintenance flows do not provide bed load movement

20 about once a year, is there a problem there?

21 DR. TRUSH: As initial hypothesis I would say "yes"

22 that it would not be achieving one of the primary

23 attributes.

24 MR. DODGE: Let's go back to the dry-normal and normal

25 year flow recommendations.

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1 DR. TRUSH: Okay.

2 MR. DODGE: Now, you initially -- the scientists in

3 dry-normal years initially recommended 250 cfs; is that

4 correct?

5 DR. TRUSH: I believe so.

6 MR. DODGE: And in normal years 400 cfs?

7 DR. TRUSH: Yes.

8 MR. BIRMINGHAM: Excuse me. Again, we're going beyond

9 the scope of the redirect.

10 MR. DODGE: I think we've been talking about channel

11 maintenance flow throughout the redirect.

12 CHAIRMAN CAFFREY: I want to be fairly reasonable in

13 these rulings. I don't want to be too limiting, but I also

14 would hope that you all wouldn't push the envelope. There

15 are varying degrees of expertise up here at the dais. So

16 I'm going to rely somewhat on Mr. Frink to advise me with

17 regard to these objections.

18 Mr. Frink.

19 MR. FRINK: I haven't heard the question yet, but I

20 would agree with Mr. Dodge that they have been discussing

21 the channel maintenance flows throughout the redirect.

22 CHAIRMAN CAFFREY: All right. Mr. Dodge, why don't

23 you pursue your question, but it's important that in

24 framing -- let me say to all the attorneys it's important in

25 the framing of your question that you make enough references

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1 in it so that we can understand the point without having to

2 go through a number of objections. Keep as tightly as you

3 can to what at least sounds or is perceived to be related to

4 direct as a starter. Please, proceed.

5 MR. DODGE: Thank you.

6 In the dry-normal --

7 CHAIRMAN CAFFREY: Excuse me. I should say as is

8 related to redirect, thank you.

9 MR. DODGE: In the dry-normal years the recommendation

10 was 250 cfs and the normal years the recommendation was 400

11 cfs initially, correct?

12 DR. TRUSH: Initially, yes.

13 MR. DODGE: And then there were some discussions or

14 negotiations which led to a February 13th memorandum where

15 the dry-normal was reduced to 200 and the normal was reduced

16 to 380, correct?

17 DR. TRUSH: Right. And, there again, we were with the

18 uncertainty of 400 and as I said in my -- I don't know if I

19 declared my testimony. I guess I haven't yet. That's in

20 the record but I did -- I'll just repeat it then. That we

21 were very, very close to the threshold of whether this --

22 whether the flows could be accomplished without having to

23 create a major obstruction.

24 So to say the difference between 400 and 380 or 350

25 given how much data we had, we felt that we could go down on

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1 that and let the adaptive management tell us whether that

2 was a wise decision or not.

3 MR. DODGE: So this was just a matter of horse trading

4 rather than scientific knowledge?

5 DR. TRUSH: Well, only partly in that we had a

6 confidence interval there. If I felt that my confidence

7 interval was outside the range of the management capability,

8 if I thought it was 800 plus or minus 50 cfs, I would be

9 screaming for a hole in the dam right now.

10 MR. DODGE: And then the final Los Angeles plan for

11 channel maintenance flows for dry-normal years is 100 and

12 for normal years is 250 as compared to the initial

13 recommendation of 250 and 400.

14 Now, do you believe that there's a problem with those

15 flows -- if only the minimum is provided, do you believe

16 there's a problem with those flows?

17 DR. TRUSH: At this point, yes.

18 MR. DODGE: And explain that.

19 DR. TRUSH: Well, because when we looked at these

20 various intervals, we felt that they were minimums and that

21 many of the years within those water year types the flows

22 would be higher and we would have -- again, being concerned

23 mostly on the bottomlands we would have another 30 to 50 cfs

24 coming out of the tribs as well although the timing's not

25 the same, particularly with the delay in Rush.

CAPITOL REPORTERS (916) 923-5447

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1 MR. DODGE: But if only the Los Angeles minimums for

2 dry-normal and normal years are delivered, there would be a

3 problem in restoring those creeks, correct?

4 CHAIRMAN CAFFREY: Mr. Birmingham.

5 MR. BIRMINGHAM: Mr. Caffrey, I did not ask any

6 questions pertaining to these flows on my redirect and

7 Mr. Dodge is going -- is now going outside the scope of my

8 redirect.

9 CHAIRMAN CAFFREY: Mr. Frink.

10 MR. FRINK: I don't remember everything that was said

11 on redirect. Mr. Dodge, is this more within the scope of

12 the direct examination that you had planned for Mr. Trush

13 during your proceeding?

14 MR. DODGE: Well, I think it's both. I think it is

15 within the scope of the redirect, but Mr. Trush has

16 requested I try to get him out of here today and, of course,

17 I'm not going to go today so it's both.

18 MR. FRINK: Do you still intend to call him as a

19 witness as part of your direct presentation?

20 MR. DODGE: If the parties will stipulate to the

21 admission of his testimony, no.

22 MR. BIRMINGHAM: Well, I will stipulate to the

23 admission of Dr. Trush's testimony and without the need to

24 cross-examine him; but if Mr. Dodge wants to persist in

25 going well beyond the scope of my redirect, I'm going to ask

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1 for an opportunity to re-redirect.

2 CHAIRMAN CAFFREY: I understand what you're saying

3 and, of course, we have the -- we've announced that we're

4 going to have rebuttal testimony and cross and perhaps

5 redirect and recross under rebuttal. But I guess maybe this

6 is the time to say that -- I know that you're all

7 experienced attorneys and you appear in court a lot. There

8 is always a difficulty when you get into questions of

9 recross and there is -- it's difficult to find that -- or to

10 weave your way through that gray area when you're outside of

11 the scope of redirect. Some of this is not that easy to

12 determine and we're gonna have to work our way through it,

13 and I'm going to have to defer to Mr. Frink for opinions

14 because I want those on the record when there is an

15 objection.

16 And so if we're going to get through it, I'm going to

17 ask those that are -- again, those that are

18 recross-examining please try to stay as succinct as you can

19 within the redirect and please not -- and I'm not saying

20 that you are -- I'm not making an accusation here, but I'm

21 just saying for the future let's not look at it as an

22 opportunity to expand into other points that we want to make

23 in the record that go beyond that scope.

24 Now, we'll try to do the best we can.

25 MR. FRINK: Mr. Chairman.

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1 CHAIRMAN CAFFREY: Mr. Frink.

2 MR. FRINK: Yeah, I believe perhaps a solution was

3 suggested. If the intent of this line of questions is to

4 cover material that Mr. Trush has covered in his written

5 statement on behalf of Nation Audubon Society and Mono Lake

6 Committee and if Mr. Dodge is interested in covering the

7 material so Mr. Trush can leave today and Mr. Birmingham

8 will stipulate to submittal of his written statement without

9 cross-examination, then perhaps we needn't go down this line

10 at this time during cross-examination.

11 MR. DODGE: And, also, I'll finish this line of

12 questions in a couple minutes, less time than it will

13 take --

14 MR. CAFFREY: Well, I thought we had a question on the

15 floor here with regard to a stipulation?

16 MR. BIRMINGHAM: Mr. Dodge has exceeded the scope of

17 my redirect. If Mr. Dodge wants to get Dr. Trush out of

18 here by asking him questions about his direct testimony for

19 NAS/MLC I understand that, but it shouldn't occur during his

20 recross-examination.

21 I had a number of questions that I thought about

22 asking Dr. Trush and other members of this panel concerning

23 the flows and DWP's plan. I consciously made a decision not

24 to ask those questions. Mr. Dodge is now going right to the

25 heart of that area and --

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1 CHAIRMAN CAFFREY: All right. I understand your

2 objection. Hang on just a moment. Let me get some counsel

3 here from my attorney member.

4 (Pause.)

5 Mr. Frink, I'm getting confused because I thought we

6 were talking about Mr. Kauffman. Are we talking about

7 somebody else?

8 MR. FRINK: I believe it is Dr. Trush.

9 CHAIRMAN CAFFREY: So there's more than one individual

10 that we're trying to get out of here?

11 MR. FRINK: Well, there are different people who want

12 to leave for different reasons but Mr. Dodge would like

13 Mr. Trush to be able to leave soon.

14 CHAIRMAN CAFFREY: All right. If we're gonna --

15 Mr. Del Piero is advising that perhaps we bring these

16 witnesses back for your situation so that you can deal with

17 it at a later date and then we allow Mr. Dodge to pursue his

18 line of questioning very briefly.

19 BOARD MEMBER DEL PIERO: Mr. Chairman, the situation

20 we've got is the Chairman gave a direction yesterday in

21 terms of this panel and attempting to try and address the

22 time constraints and at that point in time indicated to

23 counsel for all the parties they should try to concentrate

24 their questions on those issues that Mr. Frink properly just

25 raised.

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1 Once you give direction like that and people spend the

2 night preparing for that type of questioning you can't very

3 well change in midstream. Although I'll be honest with

4 you, I have an appreciation for the issue raised by

5 Mr. Birmingham; and in the interest of equity rather than

6 agreeing, Mr. Chairman, to letting Mr. Dodge and

7 Mr. Birmingham agree about the stipulation of the

8 introduction of the testimony on behalf of the Mono Lake

9 Committee, it strikes me that maybe what you ought to do is

10 let Mr. Dodge ask his questions now and then have the

11 witness come back at a later date so that both

12 Mr. Birmingham and Mr. Dodge get their second bite of the

13 apple.

14 CHAIRMAN CAFFREY: Is that not agreeable to you,

15 Mr. Birmingham? Please, let us know -- I mean, I haven't

16 ruled yet so please let us know what you're --

17 MR. BIRMINGHAM: Bringing him back at a later date

18 means tomorrow if we're going to conclude these hearings by

19 tomorrow. I'm not sure what that accomplishes.

20 MR. CAFFREY: Well, perhaps we're letting the cat out

21 of the bag here anyway because we've had some discussion

22 about this. It's obviously beginning to look like tomorrow

23 is becoming -- finishing by tomorrow is becoming a real

24 difficulty.

25 BOARD MEMBER DEL PIERO: We had 21 days scheduled for

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1 the original hearing.

2 MR. DODGE: Fourteen.

3 BOARD MEMBER DEL PIERO: Oh, 14, that's right, I

4 forgot.

5 CHAIRMAN CAFFREY: We're not going to take 21 for

6 this, I can tell you that. But what has -- what occurred

7 during the break was -- sorry to take the time for this, but

8 we might as well talk about it now.

9 What occurred during the break was we found that we're

10 going to have some difficulty being here for the night

11 sessions and that sounds pretty much to me like we're

12 probably going to have to add a couple days for this.

13 BOARD MEMBER DEL PIERO: I can tell everyone's hearts

14 are broken.

15 CHAIRMAN CAFFREY: Sorry to give you all that very bad

16 news. I'm sure it's broken everybody's heart. I'm sure

17 Mr. Dodge won't take advantage of that and stretch the time

18 out any further.

19 BOARD MEMBER DEL PIERO: Let the record reflect

20 there's a jig going on.

21 CHAIRMAN CAFFREY: And I'm sorry I didn't give you

22 more information. We're up here commiserating about -- and

23 it dawned on me we're the only ones that know about that

24 possible extension.

25 If that were the case and you have to get your

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1 witnesses out today, would you be okay on --

2 MR. BIRMINGHAM: If that is the case and it's going to

3 be necessary to bring Dr. Trush back, then I would propose

4 that Mr. Dodge conduct his direct examination of Dr. Trush

5 related to his testimony at that time as opposed to trying

6 to conduct it in the recross --

7 MR. DODGE: In the interest of the shortness of life I

8 agree.

9 CHAIRMAN CAFFREY: That has nothing to do with the

10 fact I told you we're going to take a little bit longer

11 time, right, okay.

12 MS. BELLOMO: Excuse me, Chairman Caffrey --

13 CHAIRMAN CAFFREY: Yes, Ms. Bellomo.

14 MS. BELLOMO: -- may I address the Board for a moment?

15 I'm not clear -- at this point maybe you're not clear

16 what you're anticipating in terms of schedule for the

17 hearing, but now I'm getting a little concerned because my

18 husband and I representing our group are probably the only

19 people in the room who aren't being compensated for our time

20 in one way or another and we're not going to be able to stay

21 past Friday. We have jobs that we have to return to.

22 CHAIRMAN CAFFREY: I'm not going to extend it --

23 MS. BELLOMO: Beyond Friday?

24 CHAIRMAN CAFFREY: What we will do is put out another

25 notice. I understand that everybody has scheduled lives.

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1 I'm sure attorneys here have court that they have concerns

2 with those various appearances.

3 So what we will do is we will put out another public

4 notice that -- I can't tell you exactly when it's going to

5 be, but I would expect that we would come back with a couple

6 of days in tandem, maybe three days, three more days -- two

7 or three more days maybe in another two or three weeks, but

8 don't hold me to that. But it certainly isn't going to be

9 this week or next week.

10 MS. BELLOMO: It wouldn't be next week?

11 CHAIRMAN CAFFREY: Right.

12 MS. BELLOMO: Fine. Okay, thank you.

13 CHAIRMAN CAFFREY: And is often the case, but is

14 probably especially true of Mono Lake, there's always a lot

15 more information than we thought we were going to get and

16 it's always very interesting and we're trying to make sure

17 that everybody gets their opportunity on the record and so

18 as Mr. Del Piero, a very skilled hearing officer, I might

19 add, experienced 44 days last time we scheduled -- when we

20 scheduled 21. We've scheduled three so hopefully that will

21 only be five or six. So we're doing our best here to

22 accommodate you all and to be fair.

23 MS. BELLOMO: Thank you. I just wanted to express the

24 importance to our group of not only presenting our

25 testimony, but also having an opportunity to conduct

CAPITOL REPORTERS (916) 923-5447

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1 cross-examination on the waterfowl habitat of all the other

2 parties. So I know you would be more than willing probably

3 to accommodate us to let us testify if that was all we were

4 going to do, but we really need to be here for all of the

5 other waterfowl habitat witnesses.

6 CHAIRMAN CAFFREY: And we understand that and we will

7 schedule something, as I indicated, so you'll have that full

8 opportunity.

9 MS. BELLOMO: Thank you very much.

10 CHAIRMAN CAFFREY: Thank you.

11 Mr. Dodge, I presume you have other recross?

12 MR. DODGE: I do.

13 CHAIRMAN CAFFREY: Or should I say have recross, thank

14 you.

15 MR. DODGE: No, other.

16 CHAIRMAN CAFFREY: Okay.

17 MR. DODGE: Various people were asked about the

18 advisability in their judgment of creating a bypass of Grant

19 Lake over the hole -- some people call it a hole in the dam.

20 Some people call it a tunnel.

21 Dr. Trush, based on the science that you've seen, do

22 you have an opinion as to whether such a bypass is necessary

23 to restore Rush Creek?

24 DR. TRUSH: Pending the monitoring results, my

25 position now is "no." But given the monitoring results as

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1 far as whether the flows that can be done, we may have to

2 wait -- two things we have to wait and see is, first of all,

3 can -- what's the end product of trying to maximize those

4 flows that we've called minimum? In reality, how often

5 would we get 350 rather than some lower amount? And the

6 other is are these thresholds appropriate? And that's where

7 the adaptive management has to come in.

8 So I've taken the position that as of now as a

9 scientist I cannot justify a project of that magnitude given

10 what I know right now, but I think we've set ourselves up

11 for some objective way of evaluating that.

12 MR. DODGE: But would you agree with me that the

13 science is a little incomplete at this point and that such a

14 bypass may well prove to be necessary?

15 DR. TRUSH: It could.

16 MR. DODGE: Now, Mr. Kavounas or Mr. Allen, whoever

17 wants to answer this, I was a little tired when I heard part

18 of your testimony yesterday but I thought -- in terms of the

19 channel maintenance flows I thought I heard you say that

20 while you had these minimums in various year types, that you

21 would in all year types attempt to maximize the flows; is

22 that correct?

23 CHAIRMAN CAFFREY: Mr. Birmingham.

24 MR. BIRMINGHAM: Objection, goes beyond the scope.

25 Mr. Dodge is conceding that it goes beyond the scope. He's

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1 referring to testimony that was done yesterday. The recross

2 of these witnesses occurred this morning, and this is beyond

3 the scope of my redirect.

4 CHAIRMAN CAFFREY: That's a good point. You're beyond

5 the scope here, Mr. Dodge. Please stay within the scope of

6 the redirect.

7 MR. DODGE: Thank you.

8 Now, Dr. Platts, you were asked whether 10.8 million

9 dollars for an outlet was a reasonable figure, and your

10 answer was it's unreasonable if the sole purpose is to

11 rewater Reach 1. Do you recall that answer, sir?

12 DR. PLATTS: Yes, I do.

13 MR. DODGE: Isn't it possible, sir, that the purpose

14 of putting in an outlet would be to provide high flows that

15 would restore all of Rush Creek from Grant Lake to Mono

16 Lake?

17 DR. PLATTS: It's possible.

18 MR. DODGE: Mr. Kavounas, would you agree with me that

19 D-1631 does not prohibit Los Angeles from irrigating from

20 Parker and Walker below the diversion?

21 MR. KAVOUNAS: I believe 1631 is silent on the issue

22 of irrigation.

23 MR. DODGE: Would you also agree with me there is no

24 order from Judge Finney which prohibits such irrigation?

25 MR. BIRMINGHAM: I'm going to object to the question

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1 on the grounds that it calls for a legal conclusion.

2 Mr. Kavounas can, I think, state whether or not he's aware

3 of any order of Judge Finney, but the effect of that order

4 is a legal conclusion.

5 CHAIRMAN CAFFREY: I agree with Mr. Birmingham.

6 Would you like to restate the question in another

7 fashion more in --

8 MR. DODGE: Are you aware as you sit here today of any

9 order of Judge Finney that prohibits such irrigation?

10 MR. KAVOUNAS: I have seen an order of Judge Finney

11 that I interpret to mean that we should not irrigate from

12 Walker and Parker.

13 MR. DODGE: And would you be agreeable to providing me

14 with a copy of that?

15 MR. KAVOUNAS: I would like to ask counsel to provide

16 that.

17 MR. BIRMINGHAM: Yes, we will provide a copy.

18 CHAIRMAN CAFFREY: Thank you, Mr. Birmingham.

19 MR. DODGE: Fine, thank you. That settles that.

20 Dr. Trush, you were asked about channels that might be

21 reopened and then might be replugged. Do you recall those

22 questions?

23 DR. TRUSH: Yes.

24 MR. DODGE: And you were asked the question "Well,

25 would you reopen them again?" and you said "Well, it's a

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1 site-by-site matter until a healthy forest comes back up

2 top." Do you recall that testimony?

3 DR. TRUSH: That would be my first assessment, yes.

4 MR. DODGE: And why do you focus on a healthy forest,

5 sir?

6 DR. TRUSH: Well, until then we're going to be

7 expecting a lot of change in the channels relative to once

8 there's a large forest we're going to see relatively fewer

9 changes, and it seems like a reasonable juncture in the

10 evolution of its ecosystem.

11 MR. DODGE: What exactly does a large forest have to

12 do with it?

13 DR. TRUSH: Well, it stabilizes the flows, increases

14 the roughness, redirects a lot more flow down the center of

15 the channel. Generally you tend to get a -- more of a

16 meander will start to assert itself and once a meander

17 particularly starts asserting itself the way it works is

18 beginning to settle in. I hate to use such qualitative

19 terms but --

20 MR. DODGE: Would the large forest up top tend to

21 deter these reopened channels from being plugged?

22 DR. TRUSH: They might enhance it.

23 MR. DODGE: You just don't know?

24 DR. TRUSH: I just don't know. It's just that they'll

25 provide -- along with the establishment of the forest you'll

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1 be getting deposition in these areas. So you'll be

2 increasing the confinement of the channels, and that's

3 probably an important mechanism for maintaining the channel

4 openings and closing.

5 If it's a very broad one, then a very small piece of

6 woody debris can have a major affect on directing flows from

7 one channel to the other; but if your flows are quite deep,

8 it's going to take a lot bigger thing, shopping cart, before

9 you would start switching channels.

10 MR. DODGE: Dr. Kauffman, do you still have those

11 photos in front of you?

12 DR. KAUFFMAN: I think so. No. 9, 10, 8?

13 MR. DODGE: Yeah, 8, 9 and 10. Now, if you look at

14 Photo 8, do you see this piece of heavy equipment right

15 there?

16 DR. KAUFFMAN: Yes, I do. The one that's in the

17 channel?

18 MR. DODGE: Right. Do you see that?

19 DR. KAUFFMAN: Yes, I do.

20 MR. DODGE: Now, on Exhibit 10 would you agree that

21 riparian vegetation has grown up right where that piece of

22 equipment is?

23 DR. KAUFFMAN: The piece of equipment's in the middle

24 of the channel, and I would say "no" that's still the

25 channel.

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1 MR. DODGE: The piece of equipment presumably got in

2 the middle of the channel by going across the side of the

3 channel?

4 DR. KAUFFMAN: Could you tell me -- it couldn't have

5 gone up the channel?

6 MR. DODGE: Well if, in fact, the heavy equipment

7 entered the channel like that right across there, you'd

8 agree there's willows growing there, correct?

9 DR. KAUFFMAN: To the left of the piece of equipment

10 that's in the channel; is that what you're referring to?

11 MR. DODGE: Right here, yeah.

12 DR. KAUFFMAN: There's no willows in the picture right

13 there that I can see to the left of the piece of equipment

14 that's in the channel, nor do I see any evidence that that

15 piece of equipment's driven over that spot either.

16 MR. DODGE: Next in order will be R-NAS-MLC-11.

17 Dr. Kauffman, do you have Exhibit R-NAS-MLC-11 in

18 front of you?

19 DR. KAUFFMAN: Is that what this is right here?

20 MR. DODGE: This one right here.

21 DR. KAUFFMAN: Yes, I do have that.

22 MR. DODGE: You do have that, okay. Now, would you

23 agree with me that in the bottom portion of the picture on

24 both sides of this channel where I'm pointing that there are

25 willows coming up?

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1 DR. KAUFFMAN: Where are you pointing to?

2 MR. DODGE: Right in here.

3 DR. KAUFFMAN: I would say that there is a large stand

4 of willows in the middle of that picture. Down the channel

5 here I see grasses, but I can't see for sure if they're

6 willows.

7 MR. FRINK: Mr. Chairman, I would object that this is

8 beyond the scope of the redirect examination. We're seeing

9 a new photograph. There's no foundation laid how it relates

10 to the evidence that's previously been discussed.

11 CHAIRMAN CAFFREY: I believe you are outside of the

12 scope of --

13 MR. DODGE: With all due respect, sir, I don't think I

14 am. Mr. Birmingham asked questions about --

15 CHAIRMAN CAFFREY: Is this one of the exhibits that

16 was marked?

17 MR. DODGE: The subject matter is the same. The

18 subject matter is the effects of heavy equipment on the

19 recovery of riparian vegetation.

20 CHAIRMAN CAFFREY: I'm going to accept my counsel's

21 advice and ask you to get on with the questioning on another

22 line.

23 MR. DODGE: I have a better option, sir. I'm going to

24 stop my questioning.

25 CHAIRMAN CAFFREY: Thank you very much, Mr. Dodge.

CAPITOL REPORTERS (916) 923-5447

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1 Let's see, the order we kept last night was to now go

2 to Ms. Cahill, I believe, Department of Fish and Game.

3 Good morning again and welcome.

4 MS. CAHILL: Good morning, thank you.

5 ---oOo---

6 BY THE CALIFORNIA DEPARTMENT OF FISH AND GAME

7 MS. CAHILL: In order to make my questions easier to

8 understand, I'm going to pass out a copy of an exhibit.

9 It's Figure 1-1 from an exhibit previously admitted that was

10 DFG-129, NAS/MLC-137 and Cal Trout 15. I think a lot of us

11 really wanted this exhibit in last time.

12 Mr. Plats -- or Dr. Platts, you were asked a number of

13 questions this morning regarding the pre-1941 conditions of

14 Rush Creek. The page I've just handed out is from an

15 exhibit that is entitled "Summary Comparison of Pre-1941 and

16 Post 1941 Conditions Affecting Fish Populations in Lower

17 Rush Creek, Mono County, California" by Trihey & Associates.

18 Are you familiar with that exhibit?

19 DR. PLATTS: Not right now.

20 MS. CAHILL: Okay. But you would be familiar -- if

21 you looked at this map, would you recognize the various

22 reaches as they're shown on the map?

23 DR. PLATTS: I recognize the reaches, yes.

24 MS. CAHILL: Okay. This morning Mr. Birmingham asked

25 you a number of questions about the conditions between

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1 A-Ditch and old Highway 395; is that correct?

2 DR. PLATTS: Yes, he did.

3 MS. CAHILL: And what reach is A-Ditch in?

4 DR. PLATTS: It appears to be in Reach 2.

5 MS. CAHILL: And what reach is old Highway 395 in?

6 DR. PLATTS: It appears to be in Reach 3B.

7 MS. CAHILL: Is it true that those conditions that you

8 described in that stretch, that stretch does not include

9 Reach 1?

10 DR. PLATTS: Correct.

11 MS. CAHILL: And there was a picture shown, a

12 Figure 6. Is it true that that picture was upstream of old

13 Highway 395?

14 DR. PLATTS: Yes.

15 MS. CAHILL: In that case that picture was taken in

16 Reach 3?

17 DR. PLATTS: Yes, Reach 3.

18 MS. CAHILL: And so that picture was not of Reach 1,

19 was it?

20 DR. PLATTS: No, it was not.

21 MS. CAHILL: And would that picture be typical of

22 Reach 1?

23 DR. PLATTS: No, it would not.

24 MS. CAHILL: In the exhibit that I've mentioned, the

25 discussion of Reach 1 says that it had stream flow at all

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1 times except during some of the winter months in the dust

2 bowl drought period when it can be inferred from the records

3 that there was no flow. Seepage from the reservoir and

4 ponded water in the forebay prevented the channel from

5 becoming dry.

6 Would you disagree with that statement?

7 DR. PLATTS: No, I wouldn't disagree with it.

8 MS. CAHILL: Okay. Further on in that same exhibit

9 there's a table that summarizes conditions in Reach 1. It

10 says "Mono Return Ditch to A Forebay Diversion Structure."

11 So that would be -- would that area be in Reach 1? No, that

12 would be in Reach 2.

13 That table, however, does seem to be describing Reach

14 1 because it says the historic channel had depths of two to

15 three feet. About 1500 feet of the channel below the old

16 Grant Reservoir Dam was back water behind the A-Ditch

17 Forebay.

18 It was your testimony that some of the water in Reach

19 1 was backed up from A-Ditch Forebay; is that correct?

20 DR. PLATTS: That's correct.

21 MS. CAHILL: And would the 1500 foot width -- length

22 sound about right?

23 DR. PLATTS: Sounds about right.

24 MS. CAHILL: So if the present Reach 1 is now 2800

25 feet long and 1500 feet was ponded water, would that mean

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1 that approximately 1300 feet flowed?

2 DR. PLATTS: Could be.

3 MS. CAHILL: Okay. That table also indicates that

4 mean monthly flows between 1930 and 1941 ranged from zero,

5 as we mentioned in the dust bowl, to about 400 cfs.

6 Would you conclude that that's probably correct for

7 Reach 1 as we know it?

8 DR. PLATTS: It could be.

9 MS. CAHILL: Dr. Beschta, your proposal to put some

10 water somehow back in Reach 1, would it result in flows

11 between zero and 400 cfs going through that reach?

12 DR. BESCHTA: In a strict sense, yes. I mean, between

13 zero and 400?

14 MS. CAHILL: All right. More exactly, would it be

15 likely to give you the typical pattern of flows that was in

16 Reach 1 pre-1941?

17 DR. BESCHTA: No.

18 MS. CAHILL: Okay. Would it give you approximately

19 1300 feet of running stream?

20 DR. BESCHTA: It would give you the 1300 feet of wet

21 stream -- of ponded water with some flow, but it would be

22 very small. It essentially would be a pond. I'm not

23 talking about creating a stream. I'm talking about creating

24 a -- basically a standing environment with some very small

25 flow.

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1 MS. CAHILL: Okay. But you don't deny, do you, that

2 there was stream there in at least part of this reach

3 pre-1941?

4 DR. BESCHTA: Obviously there was, yes -- well,

5 pre-1941 I haven't -- there was a dam there and I don't know

6 what they did. I don't know how they moved water around

7 during the period that they were irrigating water. If you

8 go back prehistoric, yes, there was water moving through

9 there.

10 MS. CAHILL: Dr. Platts, would it be true to say that

11 in Reach 1 before 1941 cover was provided by boulders,

12 cobbles and riparian vegetation along the margins of the

13 channel?

14 DR. PLATTS: I do not know that.

15 MS. CAHILL: Do you agree that there was dense

16 riparian vegetation along the edges?

17 DR. PLATTS: I do.

18 MS. CAHILL: And was it likely that there was

19 submerged beds of aquatic plants?

20 DR. PLATTS: That part I don't know.

21 MS. CAHILL: Would Reach 1 have been a source of

22 sediments to the stream below?

23 DR. PLATTS: That part I don't know. With the dam in

24 the lower end I'm not sure it would be. I can't answer that

25 question.

CAPITOL REPORTERS (916) 923-5447

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1 MS. CAHILL: Okay. Would it have been true that there

2 was some ripple and run habitat in that reach?

3 DR. PLATTS: I cannot visualize how the dam was

4 functioning in order to divert into the A and C Ditches. So

5 I cannot picture what that would be like at that time. I

6 can't answer that question.

7 MS. CAHILL: Okay. What would you like -- have you

8 walked at all in the current dry stream reach below Grant

9 Dam?

10 DR. PLATTS: Yes, I have.

11 MS. CAHILL: And what type of habitat would you have

12 expected in that -- in the stretch -- in the first 1300 feet

13 below the dam?

14 DR. PLATTS: I -- it would be slow-moving habitat,

15 almost a ponded-type habitat with -- the bottom would be --

16 with all the work that had gone on in there to repair that

17 area to divert irrigation waters was probably more in a

18 canal-type form profile.

19 MS. CAHILL: If we -- let me shift gears a bit here.

20 Mr. Kavounas, the Department of Fish and Game

21 submitted as its Exhibit R-DFG-6 a letter from Robert

22 Yoshimura to Mr. Ed Anton of the Water Resources Control

23 Board. Have you had an opportunity to look at this exhibit?

24 MR. KAVOUNAS: Yes, I have.

25 MS. CAHILL: And would you agree that this is an

CAPITOL REPORTERS (916) 923-5447

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1 accurate copy of the letter that was sent to the Board?

2 MR. BIRMINGHAM: I'm going to object on the grounds

3 that it goes beyond the scope of the direct examination.

4 MS. CAHILL: It will be tied in by the very next

5 question.

6 CHAIRMAN CAFFREY: I'm sorry, I must apologize. I did

7 not hear the question, but you say it will be tied in by the

8 very next question?

9 MS. CAHILL: It will be.

10 CHAIRMAN CAFFREY: Why don't you proceed and we'll see

11 if that works for Mr. Birmingham. Thank you, Ms. Cahill.

12 MS. CAHILL: Is it -- well, maybe it will take me two

13 questions to do it.

14 Does this letter indicate that there were some

15 problems with the so-called Lee Vining augmentation in 1996?

16 MR. BIRMINGHAM: Again, I asked no questions

17 concerning Lee Vining augmentation.

18 MS. CAHILL: You asked questions about the release

19 facility and that will be the next one.

20 CHAIRMAN CAFFREY: Proceed and maybe we're getting

21 close to the point.

22 MS. CAHILL: Let me get an answer to the last one.

23 MR. KAVOUNAS: Can you please repeat the question?

24 MS. CAHILL: Isn't it true that that letter indicates

25 there were problems with the Lee Vining augmentation plan in

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457

1 1996?

2 MR. KAVOUNAS: It could be interpreted that way if you

3 assume that the Department was intending to do the Lee

4 Vining augmentation as described in the plan. However, as

5 everybody heard in Mr. Allen's testimony, the Department

6 couldn't have done the Lee Vining augmentation because the

7 three necessary steps have not been taken.

8 MS. CAHILL: Dr. Platts, you testified that you

9 wouldn't recommend the new release facility solely in order

10 to rewater Reach 1.

11 Do you believe that if there were a new release

12 facility capable of releasing the required flows, it would

13 be a more reliable way of getting those flows to the entire

14 Rush Creek than relying on the Lee Vining augmentation

15 scenario?

16 DR. PLATTS: It could possibly be more reliable.

17 MS. CAHILL: Dr. Trush, would you agree that a release

18 facility directly from the dam would be a more reliable way

19 to get the required flows for all of Rush Creek?

20 DR. TRUSH: Probably, yes.

21 MS. CAHILL: And would that be of benefit to the creek

22 and to the restoration?

23 DR. TRUSH: If it were -- if the reliability fell

24 within the bounds of these thresholds that we identify,

25 yeah.

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1 MS. CAHILL: Dr. Trush, if Reach 1 were rewatered and

2 carried the entire recommended flows, would it serve as a

3 source of sediment to the rest of the creek?

4 DR. TRUSH: Yes, but I'm not sure how much, how

5 relatively unimportant it would be. I suspect not.

6 MS. CAHILL: But it would send some down?

7 DR. TRUSH: Yes.

8 MS. CAHILL: Dr. Kauffman, could the change in timing

9 of peak flows influence or favor one species over another?

10 DR. KAUFFMAN: Yes.

11 MS. CAHILL: Dr. Platts, if the Fish and Game code

12 requires fish passage, would you recommend that Los Angeles

13 Department of Water and Power violate that law?

14 MR. BIRMINGHAM: Objection, it calls for a legal

15 conclusion.

16 CHAIRMAN CAFFREY: You don't have to answer that, sir.

17 MS. CAHILL: It does.

18 CHAIRMAN CAFFREY: Ms. Cahill, it was a valiant

19 attempt.

20 MS. CAHILL: Thank you. Actually, it didn't.

21 Actually, let me come back. I didn't ask him if it would

22 violate the law. I asked if he would recommend they violate

23 the law.

24 MR. BIRMINGHAM: We would stipulate no member of this

25 panel would ever recommend that any person violate the law.

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1 CHAIRMAN CAFFREY: I'll accept that stipulation and

2 not require the answer.

3 MS. CAHILL: Thank you.

4 CHAIRMAN CAFFREY: Thank you very much, Ms. Cahill.

5 Mary Scoonover.

6 Good morning, Ms. Scoonover.

7 MS. SCOONOVER: Good morning, Mr. Caffrey and Board

8 Members.

9 ---oOo---

10 RECROSS-EXAMINATION

11 BY CALIFORNIA STATE LANDS COMMISSION AND CALIFORNIA

12 DEPARTMENT OF PARKS AND RECREATION

13 MS. SCOONOVER: I have a few questions for this panel

14 to follow up on some of the questions that Mr. Birmingham

15 asked this morning with respect to -- I guess particularly

16 Mr. Tillemans' and Dr. Beschta's statement -- repeated

17 statements that the streams are in better condition now than

18 pre-1941.

19 Is that an accurate reflection of the statements you

20 made this morning, Mr. Tillemans and and Dr. Beschta?

21 DR. BESCHTA: I don't think I ever said they're in

22 better condition now than they were -- if I did, then I

23 think I misspoke.

24 MS. SCOONOVER: Okay.

25 DR. BESCHTA: I would say that they have the potential

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1 for being better with restoration than they were in the

2 pre-1941 period. That would be my conclusion.

3 MS. SCOONOVER: And that means that if the DWP

4 Restoration Plan were implemented, it is your belief that

5 the streams would be in better condition after that

6 implementation than in pre '41?

7 DR. BESCHTA: Yes.

8 MS. SCOONOVER: And what's the basis for that

9 statement, Dr. Beschta?

10 DR. BESCHTA: The fact that the disturbance regimes

11 are now in place, that is, the flows are there and the fact

12 that you have removed the grazing pressure from those

13 systems will allow the vegetation to express itself and

14 you'll get the interactions of the flows, the vegetation and

15 the sediment in transport to create channels that are

16 capable of sustaining fisheries and providing fish habitat.

17 MS. SCOONOVER: Dr. Beschta, I assume you're familiar

18 with the Board's order in this case, Decision 1631, and the

19 conclusions reached in that order; is that correct?

20 DR. BESCHTA: I've read this, but it's been a long

21 time ago. If you have something specific that you want to

22 ask me, I guess.

23 MS. SCOONOVER: I would direct your attention to page

24 91, "Conclusions Regarding Riparian Vegetation." The first

25 paragraph, "Based on the evidence discussed in Sections 5.1

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1 through 6.2.5 above, we conclude that riparian and meadow

2 areas in the Mono Basin" --

3 DR. BESCHTA: Excuse me. Excuse me, I'm sorry. Where

4 are you at?

5 MS. SCOONOVER: Page 91, the first paragraph.

6 DR. BESCHTA: All right, all right.

7 MS. SCOONOVER: "...we conclude that riparian and

8 meadow areas in the Mono Basin were affected by pre-1941

9 land and water management practices in various ways.

10 Grazing practices had adverse effects on riparian vegetation

11 in some areas, but long-term impacts from grazing were

12 localized and the riparian community remained intact and

13 much more extensive than today."

14 Continuing down into the second paragraph then, "There

15 is widespread recognition that the changes in water

16 management practices since 1941 due to Mono Basin water

17 exports have had major adverse impacts on riparian areas."

18 And beginning the last sentence in that paragraph, "Some of

19 those effects are irreversible."

20 Do you, Dr. Beschta, disagree with any of the

21 conclusions reached in this Decision 1631?

22 DR. BESCHTA: There are some irreversible changes that

23 have taken place. You've had some -- irreversible certainly

24 in our time frame, that is, in my lifetime or your lifetime.

25 The downcutting, for example, that has occurred on the lower

CAPITOL REPORTERS (916) 923-5447

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1 end of Rush Creek is not something you or I will ever see

2 probably put back together again.

3 MS. SCOONOVER: And, Dr. Beschta, is that downcutting

4 in the magnitude of, say, 15 to 28 feet of incision?

5 DR. BESCHTA: In places it could be that deep, yes.

6 MS. SCOONOVER: And would you also agree that that

7 incision caused, say, 500,000 to a million cubic yards of

8 sediment to be washed out into the lake?

9 DR. BESCHTA: Of sediment that had previously been

10 placed there by streams, yes.

11 MS. SCOONOVER: And does the DWP plan in any way

12 attempt to remedy those losses?

13 DR. BESCHTA: The plan has no provisions that I'm

14 aware of for a stockpiling or taking sediment back in and

15 restructuring those portions of the channels.

16 MS. SCOONOVER: But your testimony is that with the

17 restoration plan the conditions of the streams, even with

18 those facts in mind, the damage due to incision and the loss

19 of -- the sediment into the lake, the streams will be in

20 better condition than pre '41?

21 MR. BIRMINGHAM: Objection, argumentative.

22 MS. SCOONOVER: I in no way intended it to be

23 argumentative. I will restate if that would satisfy

24 Mr. Birmingham's concern. I believe the substance of the

25 question is appropriate.

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1 CHAIRMAN CAFFREY: Do you want to restate it?

2 MS. SCOONOVER: Certainly.

3 In light of our discussion, Dr. Beschta, do you

4 believe that the restored streams -- the streams restored

5 under the DWP plan would be in better condition than in

6 pre '41?

7 DR. BESCHTA: I think the reestablishment of

8 vegetation and with the flows that are being proposed, the

9 placement of those in place and having that occur through

10 time, we will end up with a stream, an aquatic system and

11 its associated riparian system that will be as good or

12 perhaps better than what was there in pre-1941 and provide

13 better fish habitat than was certainly there in 1941.

14 MS. SCOONOVER: Dr. Kauffman, are you familiar with

15 the Board's order Decision 1631?

16 DR. KAUFFMAN: Yes.

17 MS. SCOONOVER: I would direct your attention to page

18 87. Perhaps Dr. Beschta will share his copy with you.

19 The top paragraph, "Historically, riparian conifer

20 forests dominated streamsides in the higher elevations and

21 gave way to conifer-broadleaf forest and cottonwood-willow

22 woodlands at successively lower elevations creating a

23 generally continuous corridor from the montane forests of

24 higher elevations to near the lake shore of Mono Lake."

25 Dr. Kauffman, is that the condition at Mono Lake

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1 today?

2 MR. BIRMINGHAM: Objection, exceeds the scope of the

3 redirect.

4 CHAIRMAN CAFFREY: I'm sorry, I can't hear you,

5 Mr. Birmingham.

6 MR. BIRMINGHAM: Objection, exceeds the scope of the

7 redirect.

8 MS. SCOONOVER: Mr. Caffrey, I believe Mr. Birmingham

9 repeatedly throughout his redirect made the point that the

10 restoration plans -- asked his panel to make the point that

11 the restoration plans would leave the forest in

12 conditions -- leave the lakes that the stream habitats in a

13 condition superior to that which existed before. I'm merely

14 asking questions of the same panel to perhaps reach a

15 different conclusion.

16 CHAIRMAN CAFFREY: Go ahead with your question -- or

17 go ahead with your answer.

18 DR. KAUFFMAN: Sure. You want -- go ahead and restate

19 the question.

20 MS. SCOONOVER: Certainly.

21 In light of this paragraph on the top of page 87 from

22 the Board's D-1631, is that the current condition along the

23 streams at Mono Lake in the Mono Basin today?

24 DR. KAUFFMAN: Based upon our recent map, we do see

25 that we have had in the last ten years a pretty dramatic

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1 increase in the cottonwood-willow dominated plant

2 communities to where there is today an almost continuous

3 composition of cottonwoods and willows from the Grant Lake

4 Dam to Mono Lake.

5 Now, clearly, the vegetation's only ten years old. It

6 takes time for forests to grow. So I think that to -- from

7 a structural perspective, no. It's mostly young,

8 early-aged, woody dominated riparian vegetation. However,

9 the successional trajectory of the current composition would

10 lend one to believe that, indeed, the potential does exist

11 for this to occur again.

12 MS. SCOONOVER: The potential exists but at present

13 day, then, am I correct in understanding that that is not

14 the case, a continuous corridor from the forests of higher

15 elevation to the lakeshore?

16 MR. BIRMINGHAM: Asked and answered.

17 MS. SCOONOVER: I believe the answer was a bit

18 circuitous and I'm only trying to make sure that I

19 understand the response.

20 DR. KAUFFMAN: Yes, yes. Yeah, the --

21 MR. BIRMINGHAM: Excuse me, Dr. Kauffman.

22 DR. KAUFFMAN: I'm sorry.

23 MR. BIRMINGHAM: I have an objection that's pending.

24 The question was asked and Dr. Kauffman answered it.

25 MS. SCOONOVER: Perhaps Dr. Kauffman could remind me

CAPITOL REPORTERS (916) 923-5447

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1 of his answer.

2 MR. BIRMINGHAM: The record will speak for itself,

3 Mr. Caffrey.

4 CHAIRMAN CAFFREY: Go ahead and answer the question

5 additionally.

6 DR. KAUFFMAN: Yes, I'd be happy to. Again --

7 CHAIRMAN CAFFREY: She's asking for a clarification.

8 Maybe she didn't understand your answer. Be succinct.

9 DR. KAUFFMAN: Yes. What I do see is that there has

10 been a dramatic increase in the establishment and the

11 occurrence of cottonwood-willow woodland communities from

12 Grant Lake now to Mono Lake.

13 Those are in a -- they're young stands. I don't know

14 that -- let me re-read this and let me tell you is there any

15 evidence of structure, age, whatever. Yeah, clearly they're

16 a younger age group now than they were prior to

17 Euro-American settlement or in 1941.

18 MS. SCOONOVER: Thank you, we'll move on.

19 Dr. Trush, this morning you spoke about channel

20 maintenance flows and floodplain maintenance flows. Are

21 those the same kinds of flows or are those distinctly

22 different flows?

23 DR. TRUSH: They can be different. Quite often when

24 we go to many alluvial rivers we find that the initiation of

25 the channel bed is slightly less than sort of the

CAPITOL REPORTERS (916) 923-5447

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1 traditional bank full flow or we're beginning to find that

2 mobilization of the bed occurs at about .8 to .9 of the

3 depth of the bank flow, whereas the more characteristic

4 flooding of the floodplain is your bank full discharge

5 around a two-year event. So there can be a slight

6 discrepancy.

7 MS. SCOONOVER: And the purpose for the floodplain

8 maintenance flow as opposed to the channel maintenance flow,

9 what's the difference?

10 DR. TRUSH: I think the inundation of floodplains is

11 the key to the restoration. Again, we always avoid talking

12 about Lower Lee Vining because that's the basket case. It's

13 easier to talk about Rush Creek, but Lower Lee Vining lost

14 its confinement almost completely and the only way it's

15 going to come back is by creating depositions and to start

16 to bring it back.

17 We're not going to bring it back for a very long time.

18 We're already seeing in some places a foot of deposition.

19 As that deposition increases, you need higher and higher

20 floods to build up -- to build it up. So that is a critical

21 process, bringing back confinement. And the only way you're

22 going to do that is by deposition on these geomorphic

23 surfaces, the floodplain and the low terrace.

24 MS. SCOONOVER: Are there benefits to riparian

25 vegetation from floodplain maintenance flows?

CAPITOL REPORTERS (916) 923-5447

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1 DR. TRUSH: Oh, clearly. It very much determines what

2 you're going to find out there.

3 MS. SCOONOVER: Are there benefits to ground water

4 recharge from a floodplain maintenance flow?

5 DR. TRUSH: Yes. It gets into a little grayer area,

6 but there's been several new studies done on floodplain

7 dynamics in these size stream channels and it shows a pretty

8 dramatic influence of peak flows and sort of a memory time

9 of that peak flow that extends many weeks afterwards.

10 If you combine that with some of the requirements of

11 seedlings where documented growth I think was eight

12 centimeters a day on root growth in the best conditions for

13 cottonwood to keep up with the retreating ground water

14 table, that's probably under the best conditions. But that

15 memory time after a large flood of a gradually declining

16 ground water surface can be enough to allow seedlings to

17 make it that year.

18 MS. SCOONOVER: And is there a general rule of thumb

19 in terms of how often these channeled maintenance flows are

20 necessary in an environment like the Mono Basin?

21 DR. TRUSH: Well, there -- and this is where the

22 Forest Service and everyone else is looking for a cookbook

23 on it and it doesn't exist.

24 One stream I'm working on looks like it's the fifty to

25 a hundred year flood is the key event. In Northern

CAPITOL REPORTERS (916) 923-5447

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1 California I'm finding a riparian signature at about a

2 five-year event in the alder forest. Major cottonwood is a

3 wonderful example where many places you don't see a diverse

4 age class of structure. You see very distinct age classes,

5 which all are a signal of some sort of major event.

6 So because the system's been so manipulated below on

7 Rush and Lee Vining, it's hard for me to figure that out

8 yet, what recurrence that is.

9 MS. SCOONOVER: In a controlled system, Dr. Trush,

10 would it be your opinion that a channel maintenance flow

11 repeated at some regular interval would be a good idea for

12 the restoration of the creek?

13 DR. TRUSH: Oh, yeah, vital. For instance, a study

14 was done on the Snake. They're predicting in a hundred and

15 fifty years or so is the end of the cottonwood forest along

16 the Snake River because of the lack of fluctuation of flows

17 in creating the conditions to allow succession and earlier

18 age classes to come in.

19 So we're beginning to find that out all over the

20 place, and I don't see why that would be different on these

21 streams.

22 MS. SCOONOVER: Thank you, that's all.

23 CHAIRMAN CAFFREY: All right. Thank you,

24 Ms. Scoonover.

25 Mr. Birmingham, you rise.

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1 MR. BIRMINGHAM: I do, Mr. Caffrey. At this time the

2 Department of Water and Power of the City of Los Angeles --

3 CHAIRMAN CAFFREY: Are you about to offer your

4 exhibits?

5 MR. BIRMINGHAM: I am.

6 CHAIRMAN CAFFREY: We actually haven't finished cross.

7 MR. BIRMINGHAM: Oh, excuse me. I beg your pardon.

8 CHAIRMAN CAFFREY: That's perfectly all right. It's a

9 long litany of people who get to ask questions.

10 We will go to staff for recross and then we will go to

11 the Board Members if there are questions. Not to stifle

12 anybody because we have to take the time that we have to

13 take within reason, but we are trying to get certain folks

14 out of here by noon so --

15 MR. FRINK: Staff only has a couple questions,

16 Mr. Chairman.

17 CHAIRMAN CAFFREY: Please.

18 ---oOo---

19 RECROSS-EXAMINATION

20 BY STAFF MEMBERS:

21 MR. CANADAY: This is for Mr. Kavounas. In the

22 recross by Mr. Birmingham he had questioned you about

23 irrigation in the Mono Basin.

24 MR. KAVOUNAS: Yes.

25 MR. CANADAY: And you said that there is currently no

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1 irrigation occurring below the LADWP conduit; is that

2 correct?

3 MR. KAVOUNAS: To my knowledge, yes.

4 MR. CANADAY: Is there any irrigation occurring above

5 the LADWP conduit at this time?

6 MR. KAVOUNAS: I believe -- I'd have to ask David, but

7 I believe off of one of Walker or Parker. I'm not sure

8 which one.

9 MR. ALLEN: Yeah, there is diversions -- the three

10 Parker Creek diversions above the conduit.

11 MR. CANADAY: And do you know what the rates or the

12 acre-foot per season that's diverted?

13 MR. ALLEN: Historically -- and I'm not positive on

14 this -- but I think those three diversions totaled about

15 1500 acre-feet annually.

16 MR. CANADAY: Are there any diversions above the Lee

17 Vining Creek conduit by the City of Los Angeles?

18 MR. ALLEN: Yes, there are two diversions.

19 MR. CANADAY: And is that for the Farrington

20 Diversion?

21 MR. ALLEN: That would be the Farrington Diversion and

22 the Horse Meadows Diversion.

23 MR. CANADAY: And that's approximately a thousand

24 acre-feet per year?

25 MR. ALLEN: I'm not sure on the numbers. I think they

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1 were around a thousand -- eight hundred or a thousand

2 acre-feet per year.

3 MR. CANADAY: Thank you.

4 CHAIRMAN CAFFREY: Thank you, Mr. Canaday.

5 Anything else from staff?

6 MR. FRINK: No.

7 CHAIRMAN CAFFREY: Do the Board Members have

8 questions?

9 BOARD MEMBER DEL PIERO: No, I just found this on my

10 desk. Do you recognize it?

11 MS. SCOONOVER: Get it autographed.

12 CHAIRMAN CAFFREY: Ms. Scoonover says to get it

13 autographed.

14 BOARD MEMBER DEL PIERO: It is autographed. I got

15 this in '94. I got this in '94 from Mr. Canaday who was

16 kind enough to get it from you and I'd forgotten that. But

17 I read it, too.

18 MR. HUNTER: I won't ask what you thought.

19 CHAIRMAN CAFFREY: Mr. Canaday, do you wish to add one

20 final thing?

21 MR. CANADAY: Yes. Mr. Caffrey, you asked me

22 yesterday to find a document by the City of Los Angeles --

23 CHAIRMAN CAFFREY: Thank you for reminding me.

24 MR. CANADAY: -- and as you noticed as you came in

25 this morning a copy of that was on your chair. I have

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1 provided copies to all parties who I had opportunity to talk

2 to this morning and I have additional copies of that

3 document for anyone else who would like that.

4 CHAIRMAN CAFFREY: Thank you, sir, for reminding me of

5 that.

6 MR. BIRMINGHAM: I have copies of it as well.

7 CHAIRMAN CAFFREY: Thank you, Mr. Birmingham. You

8 came prepared as well. I appreciate that from both you

9 gentlemen. If anybody doesn't have a copy and wishes one,

10 you may see either gentlemen. They have copies for you.

11 Where does that leave us? We've completed all of the

12 recross then with this panel. Do you wish to offer your

13 exhibits into evidence, Mr. Birmingham?

14 MR. BIRMINGHAM: I would. At this time I'd like to

15 offer R-DWP-1 through R-DWP-8 inclusive. I would like to

16 offer R-DWP-15 through R-DWP-31 inclusive. I would like to

17 offer R-DWP-36 through 68 inclusive.

18 CHAIRMAN CAFFREY: I trust that staff is keeping track

19 of this numbering and I assume that you included some of the

20 things that we numbered yesterday.

21 MR. FRINK: I wonder if you could identify Exhibit 68,

22 Mr. Birmingham?

23 MR. BIRMINGHAM: "68" was Dr. Kauffman's bar chart.

24 CHAIRMAN CAFFREY: That's what I was just referring

25 to.

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1 MR. JOHNS: We have two pie charts, right, and one bar

2 graph?

3 MR. BIRMINGHAM: That's correct. There's two pie

4 charts and Dr. Kauffman's bar -- and perhaps what I could do

5 because I failed to do it on redirect and I apologize, we

6 could ask Dr. Kauffman to send to us a key that would answer

7 Mr. Canaday's questions.

8 MR. JOHNS: As I recall, we identified one of the pie

9 charts as "28-A"?

10 MR. BIRMINGHAM: Yes, and that was included in my

11 offer.

12 MR. JOHNS: And the other pie chart was "66" and the

13 bar graph I have as "67."

14 MR. BIRMINGHAM: Correct.

15 CHAIRMAN CAFFREY: We'll provide everybody with that

16 key?

17 MR. BIRMINGHAM: Yes.

18 CHAIRMAN CAFFREY: Thank you, sir.

19 MR. JOHNS: We stop at "67" then; is that correct?

20 MR. BIRMINGHAM: We stop at "67," yes.

21 MR. JOHNS: Okay, thank you.

22 CHAIRMAN CAFFREY: Is there any objection to --

23 MR. DODGE: I don't object, Mr. Caffrey, except that

24 part of Exhibit R-DWP-28 appears to be some black and white

25 renditions of vegetation maps that I assume are in color and

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1 we would appreciate having a copy of the colored version.

2 MR. BIRMINGHAM: We would be more than happy to

3 provide Mr. Dodge with a copy of the colored versions at his

4 expense. The reason I say that is we actually sent those

5 out to be photocopied, and to photocopy them in color was in

6 excess of $2300. So that's the reason that they're in black

7 and white.

8 DR. KAUFFMAN: I'll do my best to try to reprogram my

9 legends to where they're readable in black and white.

10 MR. DODGE: Well, if they're going to provide us a

11 black and white rendition, then that's what should be in

12 evidence. If they want to put a color rendition in

13 evidence, then I believe we're entitled to receive one.

14 MR. BIRMINGHAM: I would then --

15 CHAIRMAN CAFFREY: I'm not sure I have -- I'm not sure

16 anybody here has the expertise with regard to the color

17 spectrums for evidence.

18 Mr. Frink, where are we here? Poor Mr. Frink. I

19 doubt we pay you enough.

20 MR. FRINK: I'm not altogether certain where we are on

21 this but --

22 CHAIRMAN CAFFREY: Nor am I, Mr. Frink.

23 MR. FRINK: -- but Mr. Canaday reminds me that we

24 would have to ability to print them out in color if we could

25 receive copies of the charts on disk.

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1 DR. KAUFFMAN: The disks come on a zip drive and it's

2 about a hundred megs. Do you have the capability to do

3 that?

4 CHAIRMAN CAFFREY: Somebody at home does. We could,

5 but we probably can't do that.

6 MR. FRINK: Okay, I withdraw that suggestion.

7 CHAIRMAN CAFFREY: This comes under the heading of

8 housekeeping. If you'll bear with us for a moment. I think

9 we're about to solve it.

10 BOARD MEMBER DEL PIERO: Does the department across

11 the street have that capability?

12 MR. JOHNS: As I understand, we have these in black

13 and white. We don't have them in color.

14 CHAIRMAN CAFFREY: Are they illegible in black and

15 white?

16 MR. CANADAY: Basically.

17 CHAIRMAN CAFFREY: Are the gradations between the hues

18 of gray such that one cannot follow the legend, let me ask

19 you that?

20 DR. KAUFFMAN: I found them to be not very useful in

21 black and white.

22 CHAIRMAN CAFFREY: Does anybody else have a problem

23 with what is currently in evidence?

24 BOARD MEMBER STUBCHAER: Mr. Chairman.

25 CHAIRMAN CAFFREY: Yes.

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1 MR. CANADAY: Mr. Chairman.

2 CHAIRMAN CAFFREY: I got a question from Mr. Canaday

3 here and then --

4 MR. CANADAY: Just a response to your question,

5 Mr. Caffrey. As they exist in the exhibit in their form of

6 reproduction they are basically unusable.

7 CHAIRMAN CAFFREY: They are, all right. Then let's do

8 this: Let's get a copy -- can we get a copy of the --

9 something that's in proper color that could be construed as

10 an original, whether it be an electronic form or hard copy,

11 and then we'll see what we can do to reproduce them?

12 Is that where I saw the staff heading? Mr. Johns,

13 Mr. Frink?

14 MR. FRINK: I'm not certain about our ability to

15 reproduce them. I would state, however, that there's no

16 requirement that the Board find every exhibit that's

17 submitted to be as useful as it could be if it were

18 submitted in another form.

19 BOARD MEMBER DEL PIERO: If nobody can read it, Danny,

20 that's pushing it beyond the limits.

21 CHAIRMAN CAFFREY: Mr. Stubchaer, perhaps our most

22 experienced water rights hearing officer, has a suggestion.

23 BOARD MEMBER STUBCHAER: This has nothing to do with

24 water rights hearings, but it is has to do with computer

25 graphics. Use a pattern instead of a color and they'll be

CAPITOL REPORTERS (916) 923-5447

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1 perfectly usable in black and white. Specify a pattern for

2 each section.

3 DR. KAUFFMAN: Yeah, yeah, yes. Good point.

4 CHAIRMAN CAFFREY: Can you do that, Dr. Kauffman? Is

5 that --

6 DR. KAUFFMAN: I can't do that instantly. I can't

7 will that to happen. I have to do it and I don't know how

8 many hours that will take.

9 BOARD MEMBER STUBCHAER: If we're going to get

10 something, Mr. Chairman, on a disk it's just a simple matter

11 to set up.

12 CHAIRMAN CAFFREY: Mr. Birmingham.

13 MR. BIRMINGHAM: Perhaps we could do this: Perhaps we

14 could make one color copy available to the Board and make

15 one color copy available to each party who insists that it

16 is absolutely necessary for their case. There are lots of

17 parties here who are not interested in this subject at all,

18 as evidenced by the fact they've asked no questions and

19 submitted no testimony.

20 CHAIRMAN CAFFREY: I think that's a reasonable

21 suggestion and a helpful one. Let's go with that and see

22 where that takes us. With that suggestion -- and Mr. Dodge

23 did say it was not an objection. He was asking for some

24 help. Is that agreeable, Mr. Dodge?

25 MR. DODGE: Perfectly fine.

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1 CHAIRMAN CAFFREY: Thank you, sir.

2 Is there any objection, then, to the acceptance of

3 these exhibits into the record as proposed by

4 Mr. Birmingham? Hearing and seeing none they are accepted.

5 Thank you very much, sir.

6 MR. BIRMINGHAM: Thank you.

7 CHAIRMAN CAFFREY: Mr. Dodge, do you wish to raise a

8 point?

9 MR. DODGE: Just very briefly. As we indicated in

10 some of the colloquy, Dr. Trush is a witness for me on

11 direct examination. But based on your comments,

12 Mr. Caffrey, I'm going to tell him to go home.

13 CHAIRMAN CAFFREY: Yes, because at the rate we're

14 going we're obviously not going to get to your direct in

15 this three-day block and we'll do it in the succeeding

16 two-day block.

17 MR. DODGE: I'm going to advise all my witnesses of

18 that, if I may?

19 CHAIRMAN CAFFREY: I think that would -- unless

20 there's an objection, that's probably quite reasonable at

21 this point.

22 MR. DODGE: Thank you.

23 MR. BIRMINGHAM: Mr. Caffrey, we will renew our offer

24 to admit Dr. Trush's direct testimony on behalf of NAS/MLC

25 without cross-examination. I don't know if that --

CAPITOL REPORTERS (916) 923-5447

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1 MR. DODGE: No, we'll bring him back.

2 CHAIRMAN CAFFREY: I believe -- yeah, I believe

3 that -- thank you for that, but I believe that was rejected

4 earlier. So we're going to go beyond the three days anyway

5 as it appears.

6 All right, that takes us probably to a logical point

7 at which to break for lunch. We'll be back --

8 BOARD MEMBER DEL PIERO: There's another question back

9 there.

10 CHAIRMAN CAFFREY: Oh, was there another question?

11 Yes, sir.

12 MR. MOONEY: With regards to --

13 CHAIRMAN CAFFREY: That's Mr. Mooney. Yes, sir.

14 MR. MOONEY: With regards to the scheduling, I also

15 have some witnesses here and I'm concerned that where we are

16 in the order that we may not get to them on Friday, but I

17 certainly don't want --

18 CHAIRMAN CAFFREY: We're not meeting Friday.

19 MR. MOONEY: I mean on Thursday, right. Sorry, I lost

20 track. And I certainly don't want to have them waiting

21 around for a day and a half with only a slight chance that

22 it looks like the way this hearing has progressed so far

23 that we would get to them.

24 CHAIRMAN CAFFREY: It's difficult to tell at this

25 point. I would certainly -- we could take another gauge of

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1 it all about 4:00 o'clock this afternoon and see how much

2 we've accomplished. I certainly expect that -- although I

3 can't say, that the waterfowl coverage, so to speak, will

4 take a while, but I don't know.

5 Can anybody -- what do you think, Mr. Frink?

6 MR. FRINK: Well, I'm looking at the parties who come

7 before Mr. Beckman. There's the Forest Service who

8 submitted very little. The Bureau of Land Management

9 submitted very little. The Trust for Public Land hasn't

10 appeared. The People for Preservation of Mono Basin have a

11 substantial amount of evidence, but then Mr. Beckman's next.

12 So I think it is likely that we would reach you by the

13 end of tomorrow. I'm not certain.

14 MR. MOONEY: Would there be a possibility Mr. Beckman

15 could maybe -- if there's other parties below him that

16 intend to be here and their witnesses intend to be here

17 through tomorrow, that they could -- Mr. Beckman could be

18 bumped down one or two notches?

19 MS. BELLOMO: Chairman Caffrey, the People for Mono

20 Basin Preservation had offered to Mr. Mooney that if it's a

21 question of Mr. Beckman having to stay over, we don't mind

22 if he goes ahead of us because we are going to be here

23 through the duration.

24 CHAIRMAN CAFFREY: Is there any objection from the

25 Board Members or the parties to make that accommodation for

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1 Mr. Beckman?

2 BOARD MEMBER DEL PIERO: I don't object, Mr. Chairman.

3 It's my sense that we aren't going to get to him anyway. I

4 mean, we're looking at -- we've got five hours left today

5 not counting breaks. We've got two more panels on behalf of

6 Mr. Birmingham -- we've got it consolidated?

7 MR. DODGE: No, just one.

8 CHAIRMAN CAFFREY: Just waterfowl.

9 MR. DODGE: In my opinion, and I'm sure I'll eat these

10 words, the waterfowl panel will go pretty quickly.

11 BOARD MEMBER DEL PIERO: Well, then maybe it is

12 possible.

13 CHAIRMAN CAFFREY: Yeah, I just --

14 BOARD MEMBER DEL PIERO: Wait a second.

15 Ms. Scoonover, do you feel the same way?

16 MS. SCOONOVER: Ooh --

17 BOARD MEMBER DEL PIERO: I didn't think so, okay.

18 CHAIRMAN CAFFREY: Mr. Mooney, I promise you that at

19 the moment we have a little bit better handle on this I'll

20 try to give you an appraisal of where we are. I'll also

21 tell you that if we get -- even though we've got a situation

22 where we're avoiding night schedules on behalf of the Board

23 Members, including myself tonight, if we get tomorrow to

24 where it's late in the day but we can still get your direct

25 on, I would stay to do that.

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1 How long do you think your direct is going to be, by

2 the way?

3 MR. MOONEY: It will be very, very short.

4 CHAIRMAN CAFFREY: I will later this afternoon --

5 let's gauge again where we are and see if we can give you a

6 little bit better information. I'm sorry I can't -- I would

7 be remiss if I advised you to send your people home and then

8 we needed them so --

9 MR. MOONEY: Thank you.

10 CHAIRMAN CAFFREY: Thank you for asking and we'll stay

11 on it. With that then, why don't we take a break for lunch.

12 It's just about noon and let's come back at 1:00 o'clock and

13 resume, thank you.

14 (Lunch recess taken.)

15 ---oOo---

16

17

18

19

20

21

22

23

24

25

CAPITOL REPORTERS (916) 923-5447

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1 AFTERNOON SESSION

2 ---oOo---

3 CHAIRMAN CAFFREY: All right, let us continue with the

4 hearing. Before we do that, Mr. Canaday has an announcement

5 for the parties that he'd like to make.

6 MR. CANADAY: Thank you, Mr. Caffrey. I do want to

7 remind the parties here that our most able court reporters

8 are from Capitol Reporters. We have Ms. Veres today and

9 Esther we had yesterday and you need to contact them or

10 Capitol Reporters to get transcripts. So I encourage you to

11 do so, but that's who it is from and if you need a card Teri

12 will provide you with a card today.

13 CHAIRMAN CAFFREY: Thank you, Mr. Canaday.

14 Mr. Birmingham are you ready -- oops, what do we have

15 here? Do you need this back, Mr. Birmingham?

16 MR. BIRMINGHAM: No, you can keep it.

17 CHAIRMAN CAFFREY: Oh, all right. Are you ready, sir,

18 for direct on the waterfowl panel?

19 MR. BIRMINGHAM: Yes, we are. At this time I would --

20 at this time the Department of Water and Power of the City

21 of Los Angeles would like to call Peter Kavounas, Brian

22 Tillemans, James Perrault and Brian White Ph.D.

23 CHAIRMAN CAFFREY: And, Mr. Birmingham, I would remind

24 you that according to our clock you have 24 minutes left for

25 this panel as that portion of your original two hours.

CAPITOL REPORTERS (916) 923-5447

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1 MR. BIRMINGHAM: You needn't remind me of that,

2 although I would like to remind the panel.

3 CHAIRMAN CAFFREY: It's amazing what we do around here

4 under the guise of precision, isn't it?

5 MR. BIRMINGHAM: Yes, I agree. I'm confident that we

6 can conclude this within the allotted time.

7 CHAIRMAN CAFFREY: Thank you very much, sir.

8 ---oOo---

9 DIRECT EXAMINATION

10 BY LOS ANGELES DEPARTMENT OF WATER AND POWER

11 MR. BIRMINGHAM: There are two new members of the

12 panel that I will ask to introduce themselves. The first is

13 Jim Perrault.

14 Mr. Perrault, is Exhibit R-DWP-10 a copy of a

15 statement of your qualifications?

16 MR. PERRAULT: Yes, it is.

17 MR. BIRMINGHAM: All right, thank you.

18 And Brian White. Dr. White, is the document that's

19 been introduced or marked -- excuse me, marked for purposes

20 of identification as R-DWP-9 a statement of your

21 qualifications?

22 DR. WHITE: Yes, it is.

23 CHAIRMAN CAFFREY: Mr. Birmingham, excuse me for

24 interrupting you, but I'm presuming that all of these

25 witnesses were here yesterday and have taken the oath?

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1 MR. BIRMINGHAM: They were and they have, yes.

2 CHAIRMAN CAFFREY: Thank you.

3 MR. BIRMINGHAM: Mr. Kavounas, R-DWP-32 is a document

4 entitled "Direct Testimony of Peter Kavounas On The Adequacy

5 Of The Waterfowl Habitat Restoration Plan."

6 Is that correct?

7 MR. KAVOUNAS: That's correct.

8 MR. BIRMINGHAM: Did you prepare R-DWP-32?

9 MR. KAVOUNAS: Yes, I did.

10 MR. BIRMINGHAM: Is there a correction that you would

11 like to make to that document?

12 MR. KAVOUNAS: Yes, there is. It's a typographical

13 error. On page two of that testimony -- excuse me, page

14 four of that testimony, of the second to last full

15 paragraph, second from the last line it currently reads

16 "...made the monitoring adequate." It should read "...made

17 the monitoring inadequate."

18 MR. BIRMINGHAM: Is it necessary for to you summarize

19 this testimony or would you prefer to just reserve the time

20 for the other members of the panel?

21 MR. KAVOUNAS: The latter.

22 MR. BIRMINGHAM: Mr. Perrault, Exhibit R-DWP-35 for

23 identification is a document entitled "Direct Testimony Of

24 James R. Perrault." Did you prepare that exhibit?

25 MR. PERRAULT: Yes, I did.

CAPITOL REPORTERS (916) 923-5447

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1 MR. BIRMINGHAM: And is it your written testimony?

2 MR. PERRAULT: Yes, it is.

3 MR. BIRMINGHAM: Would you please take a few moments

4 and briefly describe your qualifications and then summarize

5 R-DWP-35?

6 MR. PERRAULT: Yes, I will. I'd like to grab an

7 exhibit first, though.

8 MR. BIRMINGHAM: Yes. The exhibit that you have

9 grabbed is R-DWP-65; is that correct?

10 MR. PERRAULT: Yes, it is.

11 MR. BIRMINGHAM: Go ahead please with a summary of

12 your testimony and a brief statement of your qualifications.

13 MR. PERRAULT: Okay. My name is Jim Perrault. I am a

14 Civil Engineer Assistant with the Los Angeles Department of

15 Water and Power, have been employed in that capacity for the

16 last five and a half years.

17 What I'd like to present today is a brief summary of

18 my testimony which addresses the Mill Creek component of the

19 Waterfowl Habitat Restoration Plan prepared by the DWP, and

20 the proposal is to rewater the lower portion of Mill Creek

21 to create waterfowl habitat. The plan was developed by DWP

22 relying on the recommendations of three waterfowl

23 consultants.

24 Before I present the plan and DWP -- or the

25 recommendations of the consultants of DWP's Mill Creek Plan

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1 based on those recommendations, as a basis of understanding

2 I would like to give a brief background, including the

3 historical water usage practices, the hydrology, the water

4 rights facilities and track Mill Creek water through its

5 system. Also, because there are some unresolved issues,

6 I'll briefly discuss those as well.

7 For more than a hundred years the waters of Mill Creek

8 have been diverted for irrigation purposes. Power

9 generation on Mill Creek began in the early 1900's and in

10 1911 the predecessors to Edison built a power plant which

11 greatly changed the distribution of water in the system.

12 DWP entered the Mill Creek area in the 1930's when we

13 bought up water rights with the intention of extending the

14 Lee Vining conduit up to Mill Creek. This plan never came

15 to fruition and as a result DWP has only continued

16 historical irrigation practices, and so DWP's control in

17 Mill Creek is very limited and Edison's presence is much

18 more influential.

19 Mill Creek, just as a background, has an average

20 annual flow of roughly 29 cfs, which is approximately half

21 the size of Lee Vining Creek, a third of the size of Rush

22 Creek.

23 Water rights on Mill Creek were established through

24 two decrees, the 1901 Decree and the 1914 Decree. Currently

25 there are four water right holders on the creek, and the

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1 rights are tabulated by seniority and quantity in my

2 testimony. By the way, Colony Ranch holds a senior right

3 and DWP holds more than 50 percent of the right. Although

4 the powerhouse has a capacity of 70 cfs, it's rarely used at

5 that capacity. Peak flows are generally about 55 cfs

6 through the powerhouse.

7 Let me give a brief summary of the different

8 facilities on the project -- excuse me, on the creek.

9 Okay, the major projects on the system are the Lundy Lake

10 Reservoir and the Lundy Project, which consists of the

11 reservoir, the penstock and the powerhouse which is located

12 here. The other two major features are the Conway

13 Irrigation System and the Thompson Irrigation System. Water

14 from here can be released either through the penstock or

15 through an outlet structure on the dam down Mill Creek, and

16 at this point after water reaches the powerhouse it can be

17 either diverted through the Conway Irrigation System or pass

18 on down Wilson Creek where it can also be diverted at other

19 locations.

20 Water that is passed through down Mill Creek can be

21 diverted off the Thompson Ranch through a series of

22 irrigation -- or a system of irrigation ditches or also

23 flows down to Mono Lake. Water can also be returned at

24 Edison's SCE, their return ditch.

25 BOARD MEMBER BROWN: That returns it to Mono Lake or

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1 where?

2 MR. PERRAULT: That returns it to Mill Creek.

3 MR. BIRMINGHAM: Excuse me. Mr. Brown, I have a copy

4 of R-DWP-65.

5 CHAIRMAN CAFFREY: Yes, we have them up here. Thank

6 you, Mr. Birmingham.

7 MR. PERRAULT: The capacity of the different

8 facilities on the system are also given in my testimony.

9 Although full restoration may be preferable, it's not

10 possible with the current conditions due to the presence of

11 Lundy Reservoir and other legal and physical constraints and

12 the consultants understood this when they presented their

13 plan to DWP.

14 As a result, they presented a conceptual plan with

15 three main elements, which was to establish year-round

16 flows, to mimic the natural hydrology to the extent possible

17 with the limitations, and to spread the flow among the lower

18 distributaries. They suggested this be done through the

19 first step of DWP dedicating its irrigation rights and that

20 the U.S. Forest Service dedicate part of their rights if

21 possible and, also, that methods should be explored to

22 obtain a fall/winter flow and that the capacity of Edison's

23 Return Ditch -- it should be explored to increase the

24 capacity of the ditch.

25 The final Mill Creek Plan prepared by DWP provides the

CAPITOL REPORTERS (916) 923-5447

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1 conceptual elements required by the waterfowl consultants

2 with some modifications to the phased approach. The plan

3 establishes a year-round flow. The plan also mimics the

4 natural hydrology to the extent possible with the

5 limitations on the creek. It does not propose the Forest

6 Service right because of the low priority and inability to

7 bring it through the ditch, and it does not propose

8 distribution of the flow. And that is discussed in my

9 testimony. It also does not propose increasing the capacity

10 of Edison's ditch and, once again, the reason being it's an

11 Edison facility and they've expressed an unwillingness to do

12 so.

13 The flows that are proposed by DWP are, once again,

14 tabulated in my testimony and additional flows are also made

15 available by the releases that Edison makes from Lundy

16 Reservoir in wet and normal years.

17 As I indicated, there are a couple unresolved issues,

18 one of which is the pending FERC license. Edison is

19 currently in the process of being relicensed by FERC, and

20 the U.S. Forest Service as a 4e condition has sought to

21 impose a seven cfs direct release to Mill Creek. Southern

22 California Edison has challenged this authority and a

23 decision is likely in this by the fall of '97.

24 Two other unresolved issues were brought out in

25 protest to DWP's application for the fall/winter flow and

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1 these two issues were the owner of the Conway Ranch,

2 Mr. Beckman, has claimed an injury to his existing right and

3 other environmental issues were also raised, including the

4 Brown Trout Fishery on Wilson Creek.

5 The environmental issues will be resolved -- would

6 ultimately be resolved through the CEQA process and --

7 however, DWP strongly feels that prior to undertaking the

8 expensive CEQA process that Mr. Beckman's injury claim needs

9 to be resolved first.

10 And that summarizes my testimony.

11 MR. BIRMINGHAM: Thank you.

12 Mr. Tillemans, R-DWP-34 is a document entitled "Direct

13 Testimony Of Brian Tillemans On Mono Basin Waterfowl Habitat

14 Restoration Plan." Is that correct?

15 MR. TILLEMANS: That's correct.

16 MR. BIRMINGHAM: Did you prepare Exhibit R-DWP-34 as

17 your direct testimony for purposes of this hearing on this

18 issue?

19 MR. TILLEMANS: That's correct.

20 MR. BIRMINGHAM: Would you please take a few moments

21 and summarize that testimony.

22 MR. TILLEMANS: Okay. Basically, my involvement with

23 the Waterfowl Restoration Plan by LADWP pertains to the

24 proposed burning program; and our burning program basically

25 mimics what the waterfowl scientists had recommended, which

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1 is to burn approximately 1,000 to 1200 plus or minus acres

2 of marsh and seasonal wet meadow habitats listed in Table 1,

3 page 36, in Appendix I of the plan.

4 And I've identified a mechanism by which to do that,

5 and basically that is the same mechanism I've used so far in

6 my 15-year career in terms of implementing burns on

7 Department property, which is I've burned literally

8 thousands of acres in terms of range burns and

9 wildlife-related projects and I am currently planning one

10 for the Buckley Ponds project right now. So it's been a

11 very cooperative relationship with the CDF, California

12 Department of Forestry, and Fire Protection's VMP Program, a

13 very good working relationship with them, a very efficient

14 one and that is the mechanism we use to plan and implement

15 our burns.

16 MR. BIRMINGHAM: Thank you very much, Mr. Tillemans.

17 Before I go on to Dr. White, Mr. Perrault, during your

18 examination I failed to ask you is R-DWP-64 a map which was

19 submitted in connection with your testimony a map of the

20 Mill Creek Waterfowl Habitat Restoration Project?

21 MR. PERRAULT: Yes, it is.

22 MR. BIRMINGHAM: Thank you.

23 Next, Dr. White, R-DWP-33 is a document entitled

24 "Direct Testimony Of Brian White Ph.D." Is that correct?

25 DR. WHITE: Yes, it is.

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1 MR. BIRMINGHAM: And is that direct testimony which

2 you've prepared for purposes of this proceeding?

3 DR. WHITE: Yes, it is.

4 MR. BIRMINGHAM: Would you please take a few moments

5 and first summarize your qualifications and then summarize

6 the testimony that was submitted as R-DWP-33.

7 DR. WHITE: I've been a biologist with the Department

8 of Water and Power for almost 11 years now. I was hired to

9 work on Mono Basin issues and I have been involved with

10 scoping work, administering contracts, analyzing data and

11 things like that. For what whole period of time I've worked

12 with I think just about everybody who has done any kind of

13 work on aquatic biology at Mono Lake and I worked closely

14 with Mr. Canaday and Mr. Herrera on the EIR, and I think

15 I've reviewed everything that's been published on this

16 subject from raw data form to published manuscripts.

17 I just have a few points I want to make about our

18 Monitoring Plan. That's the portion of the Lakeland

19 Knowledge and Primary Secondary Production portion of our

20 Monitoring Plan, because that's the part I was asked to

21 contribute to, and on the basis of the comments we received

22 there are a few points I want to make.

23 We do retain our focus on the open water pelagic

24 system and that's for several reasons: the physical,

25 chemical and biological processes. They are very well

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1 understood on the basis of -- oh, of almost 16, 17 years of

2 work that UC Santa Barbara has done. Dr. John Melack

3 testified to that before the Board a couple of years ago and

4 we have developed a very good index of primary and secondary

5 production. Actually, in my mind second to none. With the

6 historical baseline and the understanding that goes with it

7 it's, in my mind, almost an environmental thermometer. You

8 can just put it in and check and see how things are doing.

9 We at this -- I did not choose to include benthic

10 monitoring for several reasons. One is that the models that

11 have been produced for the EIR and outside the EIR have all

12 come to a similar conclusion and, that is, that the amount

13 of change we can expect over the range of lake levels in the

14 decision is very small, less than ten percent; and in a

15 natural system it can be expected to vary much more than ten

16 percent from natural reasons. Finding a ten percent

17 difference is difficult.

18 So we expect a small change. It's hard to sample the

19 benthos. It's not like the open water where we can do

20 planktonthos. The distribution is very complex for the

21 brine fly and -- which is the main benthic invertebrate and

22 so it's very difficult to sample and I brought for the

23 purpose of illustration Auxiliary Report No. 8 to the EIR.

24 There is a pair of charts here, Figure 13 and Figure

25 14 -- shall I just hand it to the Board?

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1 MR. BIRMINGHAM: (Nodding of the head.)

2 DR. WHITE: Just an illustration of what the result

3 can be of a very patchy distribution. You can see here that

4 the air bars around the estimates of the abundance of the

5 brine fly that drift in the water are very, very wide so

6 that over a period of the seasons it was not possible for

7 the purposes of the EIR to demonstrate a difference in the

8 abundance of the drift.

9 CHAIRMAN CAFFREY: This is in the record,

10 Mr. Birmingham?

11 MR. BIRMINGHAM: Yes, it is. It is part of one of the

12 Board's exhibits.

13 CHAIRMAN CAFFREY: All right. I was just going to ask

14 do you need to cite a number, but apparently not. Nobody

15 seems to be worried about it. Please, proceed.

16 DR. WHITE: So we expect a small change. It's

17 difficult to sample and it's going to be hard to understand

18 because we don't have a very good baseline of historical

19 data. There's none for the adults at all. The drift data

20 that you see, we have one year's worth and it's of very

21 little use and the basic biological processes of the alkali

22 fly and how it interacts with its ecosystem are unknown. So

23 that's the reason we why we've retained our original

24 emphasis on the open water pelagic habitat.

25 That concludes what I have to say.

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1 MR. BIRMINGHAM: May the record reflect, Mr. Caffrey,

2 that the Department of Water and Power concluded the

3 presentation of its case in chief within the two hours

4 allotted.

5 BOARD MEMBER STUBCHAER: With 5.44 --

6 CHAIRMAN CAFFREY: Five minutes and 44 seconds if I

7 had a glimpse of it just before Mr. Stubchaer turned it off.

8 He's so strict.

9 BOARD MEMBER STUBCHAER: I put the red light on.

10 CHAIRMAN CAFFREY: Oh, I see.

11 Mr. Dodge.

12 MR. DODGE: It's times like this that I'm grateful I

13 represent two parties.

14 CHAIRMAN CAFFREY: All right. It is now time for

15 cross-examination of this panel and I'll go down the list

16 again. U.S. Forest Service, Mr. Gipsman?

17 MR. GIPSMAN: No cross-examination.

18 CHAIRMAN CAFFREY: Thank you, sir.

19 Bureau of Land Management? Were they not here?

20 MR. RUSSI: We have none.

21 CHAIRMAN CAFFREY: Oh, Mr. Russi. Thank you, sir.

22 People for the Preservation of Mono Basin,

23 Ms. Bellomo. Good afternoon and welcome.

24 ///

25 ///

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1 ---oOo---

2 CROSS-EXAMINATION

3 BY PEOPLE FOR THE PRESERVATION OF MONO BASIN

4 MS. BELLOMO: Thank you, good afternoon. I've

5 organized my questions by witness, but I realize from

6 watching the last day and a half that there may be others of

7 you who could answer the questions, but I will be directing

8 them specifically to Mr. Kavounas and Mr. Perrault.

9 If I can ask you, Mr. Kavounas, to turn to your

10 testimony in Exhibit 32. You state on page two that -- you

11 explain your LADWP proposal for Mill Creek and you said

12 Mr. Perrault will explain it in detail and then you go on to

13 say, "While the entire flow of Mill Creek, if returned to

14 its natural course, would benefit the entire Mill Creek

15 ecosystem, the waterfowl habitat aspect of it is minimal,"

16 and I would like to ask you to explain the basis of that

17 conclusion.

18 MR. KAVOUNAS: As you can understand, this is not a

19 conclusion that I reached based on my experience or

20 knowledge. This is a conclusion that I reached based on

21 information that I've received, part of which is included in

22 the People for Mono Basin Preservation's testimony that

23 included statements from -- I believe Dr. Scott Stine who

24 said that if the whole Mill Creek ecosystem is to be

25 restored, the waterfowl habitat element of it would be but a

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1 minor part.

2 MS. BELLOMO: Did you specifically ever hear --

3 yourself hear Dr. Stine make such a comment?

4 MR. KAVOUNAS: I did in a videotaping of that meeting

5 of -- I believe it was November 8.

6 MS. BELLOMO: That took place in Lee Vining at the

7 fire hall?

8 MR. KAVOUNAS: I couldn't tell from the videotape, but

9 I believe so.

10 MS. BELLOMO: Can you explain to me what the -- your

11 understanding or what the Department of Water and Power's

12 understanding of the goal of the waterfowl habitat

13 restoration effort is?

14 MR. KAVOUNAS: Let me refer to the Decision. As I

15 stated earlier, the Decision guided the Department preparing

16 the plans.

17 On page 204, Paragraph 8, the Decision states that

18 licensee shall prepare and submit to the State Board for

19 approval a -- in addition to the Stream and Stream Channel

20 Restoration Plan a Waterfowl Habitat Restoration Plan, the

21 objects of which shall be "...to help mitigate for the loss

22 of waterfowl habitat due to the diversion of water under

23 this license. The plans shall include consideration of

24 measures to promote the restoration of the affected streams

25 and lake-fringing waterfowl habitat..."

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1 Based on this and the remainder of the text of the

2 Decision, my understanding of the Department's mission is to

3 seek opportunities in the lake-fringing areas to restore

4 waterfowl habitat.

5 MS. BELLOMO: And I understand from reading your

6 testimony that the Department of Water and Power relied upon

7 three scientists to do an evaluation to make a

8 recommendation as to what was the best way to form this

9 restoration?

10 MR. KAVOUNAS: Three consultants were hired to prepare

11 a plan that would assist the Department in seeking waterfowl

12 habitat restoration opportunities.

13 MS. BELLOMO: At this point does the Department of

14 Water and Power have any doubts as to whether the proposal

15 put forth by the scientists is, in fact, the best way to

16 achieve waterfowl habitat restoration in the Mono Basin or

17 the most reasonable way?

18 MR. KAVOUNAS: I'd have to say "yes."

19 MS. BELLOMO: Can you explain what those concerns are?

20 MR. KAVOUNAS: Once again, my opinion derives from

21 consultation with people that have the appropriate

22 background.

23 One of the strongest doubts that the Department has is

24 that the type of waterfowl that use Mono Basin are waterfowl

25 that prefer open water habitat. As such, we believe that

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1 restoration that would be accomplished on lake-fringing

2 areas would have a minimal affect on restoring waterfowl

3 habitat in the basin.

4 MS. BELLOMO: And by that you're referring, I take it,

5 to the mouth of Mill Creek -- restoration at the mouth of

6 Mill Creek?

7 MR. KAVOUNAS: Restoration anywhere, whether you look

8 at the DeChambeau/County Ponds/Black Point proposal, whether

9 you look at the Mill Creek proposal, whether you look at the

10 burns, the area that's proposed to be restored is minimal

11 compared to the area of the lake.

12 MS. BELLOMO: Okay. I understand you and I understand

13 from the testimony that the scientists recommended that or

14 found that the restoration of the -- increase of the lake

15 level would provide by far the majority of waterfowl habitat

16 restoration. Is that what you're getting at?

17 MR. KAVOUNAS: Yes. One thing that in my view the

18 scientists did make clear, they've made very clear there was

19 a ranking, a preference in the alternatives they

20 recommended. They made very clear that number one was the

21 raising of the lake. They said number two was Mill Creek

22 restoration. They didn't assign any significance. So was

23 number one perhaps only better by one or two percent than

24 number two or was number one perhaps 90 to 95 percent of the

25 restoration that could be accomplished in the Basin?

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1 Again, from consultation with experts in the field,

2 such as Dr. Joe Jehl, restoring the lake elevation to a

3 higher level than what it is would result in a very high

4 percentage. And he never actually said the percentage, but

5 in discussing I was led to believe that perhaps 85 to 90

6 percent of the possible restoration would be accomplished by

7 raising of the lake level.

8 MS. BELLOMO: Assuming that the Water Board sees fit

9 to require the Department of Water and Power to do some

10 restoration of waterfowl habitat in addition to the raising

11 of the lake level, assuming that then we're left having to

12 look at alternatives I guess would you agree?

13 MR. KAVOUNAS: What would I be agreeing to?

14 MS. BELLOMO: That we then have to look to other

15 alternatives, something in addition to raising the lake if

16 we --

17 MR. BIRMINGHAM: Excuse me, I'm going to object. The

18 question is ambiguous. D-1631 established a lake level and

19 then directed the Department of Water and Power to

20 implement -- to propose and then implement after approval by

21 the Board a waterfowl habitat restoration program to

22 mitigate the loss of habitat resulting from its diversions.

23 But I'm not sure what counsel is trying to --

24 CHAIRMAN CAFFREY: You're objecting on the basis that

25 it was ambiguous?

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1 MR. BIRMINGHAM: That's correct.

2 CHAIRMAN CAFFREY: I had a little trouble following

3 it. It could be part of my distractions up here and I

4 apologize. Could you restate it again, Ms. Bellomo.

5 MS. BELLOMO: That's fine.

6 I'm just trying to discuss with you, Mr. Kavounas, or

7 the panel in general what other alternatives -- to start

8 looking at other alternatives for waterfowl habitat

9 restoration in addition to raising the lake level that we

10 take as a given is happening, but assuming that the Board

11 requires the Department of Water and Power to do something

12 for waterfowl habitat restoration in addition to putting

13 more water into the lake.

14 CHAIRMAN CAFFREY: There are two apparent objections

15 to that question, gentlemen, but Mr. Dodge was the first

16 one.

17 MR. DODGE: I would just like a -- if we could all

18 make a clarification that raising the lake level is not a

19 waterfowl habitat mitigation or whatever you want to call

20 it. It's just gonna happen and it's required by D-1631.

21 What we're really here about is what, if anything, in

22 addition we're gonna do to restore waterfowl habitat.

23 CHAIRMAN CAFFREY: That's a point well made and

24 Mr. Birmingham has sat down. So I assume that was going to

25 be his point, also.

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1 MR. BIRMINGHAM: This is one of those rare occasions

2 on which Mr. Dodge and I are in complete agreement.

3 CHAIRMAN CAFFREY: It is very rare, let me state that

4 into the record.

5 BOARD MEMBER DEL PIERO: Wait a second, wait a second.

6 It happened twice today.

7 CHAIRMAN CAFFREY: Do you want to take a vote on it?

8 BOARD MEMBER DEL PIERO: It happened twice today.

9 They didn't want to work tonight either so I mean --

10 CHAIRMAN CAFFREY: I believe it was repeated in my

11 opening statement the scope of the hearing so we need to

12 make sure that our questions deal with the restoration plans

13 and how they relate to the specificity of their targets

14 precisely.

15 MS. BELLOMO: I guess I'm not familiar enough with the

16 earlier proceeding to get the subtlety of the distinction.

17 I was confused by Mr. Kavounas' answer, I guess, when he

18 addressed the lake level as somehow representing --

19 MR. KAVOUNAS: Well, I believe your question to me was

20 whether the Department agrees wholeheartedly with the

21 scientists' plan.

22 The Department would not agree with it, but the

23 Department has attempted in preparing the Waterfowl Habitat

24 Restoration Plan to adopt the scientists' recommendations to

25 the fullest extent possible. It doesn't mean that we think

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1 necessarily they're gonna do the job.

2 MS. BELLOMO: Well, can you explain why -- are you

3 saying that you have doubts as to whether this waterfowl

4 scientists' recommendation will do the job, as you put it?

5 MR. KAVOUNAS: Yes, and, once again, my doubts have to

6 do with raising the lake and the significance of everything

7 else; but that aside, I think we're being directed to

8 evaluate these proposals that are made in the plan.

9 MS. BELLOMO: So do you have any problems with the

10 proposal made in the plan by the scientists?

11 MR. KAVOUNAS: With all due respect, I don't think

12 that matters. The Department is suggesting to the State

13 Board to accept the scientists' proposal as it was submitted

14 to us and modified in our plan to reflect what we consider

15 our realities that DWP must face.

16 MS. BELLOMO: Do you have any estimate as to when

17 waterfowl habitat -- when waterfowl habitat increases will

18 result if the plan that you're proposing is implemented?

19 MR. BIRMINGHAM: I'll object to the question on the

20 grounds that it calls for an opinion which is beyond the

21 scope of this witness' expertise.

22 MS. BELLOMO: Maybe DWP is providing someone else who

23 can provide an answer to that question.

24 CHAIRMAN CAFFREY: Would you for my benefit and

25 perhaps other Members of the Board restate the question so I

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1 can hear it again as you stated it the first time?

2 MS. BELLOMO: My question is: Does the Department of

3 Water and Power have an estimate as to when the waterfowl

4 habitat restoration goals of their plan will be achieved?

5 CHAIRMAN CAFFREY: And the objection was --

6 MR. BIRMINGHAM: I'll withdraw the objection.

7 CHAIRMAN CAFFREY: Oh, all right. Thank you,

8 Mr. Birmingham. Do you wish to attempt to answer that?

9 MR. KAVOUNAS: Let me attempt to the best of my

10 ability.

11 There's certain measures that are proposed here and

12 the specific measures have a schedule that's attached to

13 them. If you look at, for example, the burn plan it has a

14 schedule when it would be accomplished. To my recollection,

15 it calls for burning 400 acres experimentally before the

16 lake level rises to cover that area.

17 I would imagine as an example that that portion, the

18 400 acres, when the burn is completed that we will complete

19 that restoration measure -- we will consider it complete.

20 Will it result in waterfowl habitat restoration? Obviously

21 not because that area will be inundated but, nevertheless,

22 the proposal will be complete. The plan calls for another

23 thousand acres to be burned -- Brian, if I'm wrong in the

24 numbers please correct me -- but when we complete the burns

25 in those, that portion of it will be completed.

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1 With respect to something like the Mill Creek

2 proposal, we spent the last day and a half listening to

3 scientists who are experts in the field telling you that

4 they don't know when the stream ecosystem would be restored.

5 So I would say the Department's position is that we can't

6 tell when that part of it will come back.

7 MS. BELLOMO: And does the Mill Creek ecosystem have

8 to be restored in order for waterfowl habitat -- waterfowl

9 increases to occur under your Mill Creek rewatering

10 proposal?

11 MR. KAVOUNAS: I can't answer that. I don't know.

12 MS. BELLOMO: Is there anyone who can sitting here?

13 CHAIRMAN CAFFREY: Anybody on the panel wish to

14 attempt to answer that or feel they have the expertise to do

15 so?

16 MR. KAVOUNAS: Brian.

17 MR. TILLEMANS: Could you restate the question,

18 please?

19 MS. BELLOMO: I'm trying to understand whether the --

20 we don't seem to be able to estimate -- or Mr. Kavounas is

21 saying that the Department of Water and Power can't estimate

22 when the Mill Creek restoration itself will be accomplished.

23 I don't mean to incorrectly restate what he said, but you

24 recall that testimony of his?

25 Do you recall him just saying something along those

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1 lines?

2 MR. TILLEMANS: Yes, yes.

3 MS. BELLOMO: Okay. Well my question is: Does the

4 creek have to be fully restored before we have increases in

5 waterfowl, which is what this is supposed to all be about?

6 MR. TILLEMANS: Well, first of all, my involvement

7 with this plan has been with the burning program --

8 MS. BELLOMO: Uh-huh.

9 MR. TILLEMANS: -- and if you're asking my personal

10 opinion --

11 MS. BELLOMO: No, I'm asking the Department's opinion.

12 CHAIRMAN CAFFREY: We were asking if anybody has the

13 expertise. The question does not -- doesn't require an

14 answer other than "I don't know" if that's the true answer.

15 MR. TILLEMANS: Basically, I don't know because

16 there's going to be too many factors affecting waterfowl

17 populations to be able to give you exact answers as to when

18 numbers will get to a certain point.

19 MS. BELLOMO: Has the Department done any analysis to

20 figure out over time any projection of increases in numbers

21 under your rewatering of the Mill Creek Plan?

22 MR. KAVOUNAS: No, no, we have not.

23 MS. BELLOMO: Has the Department calculated how many

24 acres of waterfowl habitat you expect that your proposal to

25 rewater Mill Creek will create?

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1 MR. KAVOUNAS: The Department's plan would include any

2 calculation that the three scientists did by reference to

3 their plan. The Department did not perform any additional

4 calculations of its own.

5 MS. BELLOMO: Well, can you refer me to where in the

6 scientists' plan they quantify, if they do, how many acres

7 of waterfowl habitat will be created by rewatering Mill

8 Creek? I'm not talking about the burn program.

9 MR. KAVOUNAS: This might sound somewhat circuitous,

10 but on page 97 of the Waterfowl Habitat Plan -- excuse me,

11 of the appendix to the Waterfowl Habitat Plan, that is, the

12 plan submitted by the scientists they, in turn, make a

13 reference to Dr. Stine and I quote from that on the second

14 full paragraph -- or second paragraph about midway through.

15 "The amount of restored habitat would be dependent

16 upon how close the natural Mill Creek hydrology could be

17 emulated. Stine (1995c) estimated that approximately 14

18 acres of hypopycnal environment at the stream mouth, 16

19 acres of riparian wetlands in the stream bottomlands, and 25

20 acres of riparian vegetation on the exterior delta could be

21 restored, off-setting some of the similar habitat losses at

22 Rush Creek."

23 MS. BELLOMO: That's 14 in the stream. I'm sorry, I

24 didn't hear you, 16 where?

25 MR. KAVOUNAS: Fourteen acres of hypopycnal

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1 environment at the stream mouth, 16 acres of riparian

2 wetlands in the stream bottomlands and 25 acres of riparian

3 vegetation on the exterior delta.

4 That is the way Dr. Stine is quoted by the three

5 scientists.

6 MS. BELLOMO: So am I correct that total is 45 acres?

7 Am I adding that up right? Fifty-five?

8 MR. KAVOUNAS: Fifty-five, yes.

9 MS. BELLOMO: Has the Department of Water and Power

10 done any analysis of how many acres, if any, would

11 waterfowl -- existing waterfowl habitat would be eliminated

12 if your plan to rewater Mill Creek is adopted?

13 MR. KAVOUNAS: Perhaps I wasn't clear in my testimony.

14 The Department has not done any analysis whatsoever.

15 MS. BELLOMO: So you relied completely on the

16 scientists that were the three consultants?

17 MR. KAVOUNAS: Yes.

18 MS. BELLOMO: Do you know if those consultants

19 performed any such analysis?

20 MR. KAVOUNAS: I don't know, but my guess would be if

21 they had that would have been included.

22 MS. BELLOMO: You didn't see it anywhere in their

23 testimony?

24 MR. KAVOUNAS: I did not see it.

25 MS. BELLOMO: Their report.

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1 MR. KAVOUNAS: I did not see it in their report,

2 correct. The reason for saying that is they considered

3 that -- with their proposal they understood that that would

4 mean the sacrifice of Wilson Creek and they dedicated a

5 paragraph to that. I expect that if they had done a similar

6 analysis, that would have been included as well.

7 MS. BELLOMO: On page three you note that the

8 Department of Water and Power noticed the lack of goals and

9 objectives in the scientists' monitoring plan and then you

10 note, "There are no specific types, or acreages of habitat

11 that are sought after, nor any ranges of waterfowl numbers

12 expected to use the habitat." Do you see where I'm reading?

13 MR. KAVOUNAS: Yes.

14 MS. BELLOMO: Do you -- does the Department continue

15 to find that to be a deficiency in the report prepared by

16 the scientists?

17 MR. BIRMINGHAM: Excuse me, I'm going to object on the

18 grounds it assumes a fact not in evidence. She's

19 characterized this as a deficiency. I'm not sure there's

20 been any testimony it is a deficiency.

21 MS. BELLOMO: I'll rephrase the question.

22 CHAIRMAN CAFFREY: Sustained. Yeah, I was going to

23 ask you do you have another way of asking the question?

24 MS. BELLOMO: Does the Department continue to view

25 that this is a -- I would call it a lacking. You used "the

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512

1 lack of goals" was your word. Do you continue to feel that

2 there's a lack of this information in the scientists' final

3 report?

4 MR. KAVOUNAS: I don't believe that the scientists

5 revised their Monitoring Plan after the date that we

6 received it, which was February 19th. If there was an

7 element lacking at that time, I believe it would still be

8 lacking today.

9 MS. BELLOMO: As you sit here today, with your

10 recollection of the final report would you agree that those

11 elements are still lacking?

12 MR. KAVOUNAS: From the Monitoring Plan, yes, they are

13 lacking.

14 MS. BELLOMO: Did the Department of Water and Power do

15 any studies of the environmental consequences of your

16 proposal to rewater Mill Creek on any other areas in the

17 Mono Basin -- consequences that would result in other areas

18 in the Mono Basin?

19 MR. KAVOUNAS: What do you mean by -- environmental

20 studies?

21 MS. BELLOMO: Well, any sort of environmental analysis

22 of whether there would be any environmental consequences

23 adverse -- let me rephrase it.

24 Did the Department do any studies to determine or any

25 analysis to determine if there would be adverse

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1 environmental consequences that would result from your

2 proposal to rewater Mill Creek if it were adopted?

3 MR. KAVOUNAS: The Department has done no analysis

4 whatsoever in connection with the Waterfowl Habitat Plan of

5 a biological implication.

6 MS. BELLOMO: Did the three scientists who prepared

7 the plan for waterfowl habitat restoration perform any such

8 analysis of the adverse environmental consequences?

9 MR. KAVOUNAS: I believe -- to my recollection, there

10 isn't anything else included other than the paragraph that

11 addresses the sacrifice of Mill Creek -- excuse me, of

12 Wilson Creek.

13 MS. BELLOMO: You recall no doubt attending a number

14 of meetings in Lee Vining where the community was present

15 and the issue of rewatering at the Mill Creek was discussed?

16 MR. KAVOUNAS: Yes, I do.

17 MS. BELLOMO: And would you agree that -- with my

18 characterization that overwhelmingly the community expressed

19 opposition to the Department's plan to stop irrigating

20 Thompson Meadow?

21 MR. BIRMINGHAM: I'm going to object. It's hearsay.

22 If there is opposition, the opposition can be stated here in

23 the form of testimony but -- and I'm not sure I understand

24 the relevance of any opposition to the plan with respect to

25 whether or not it's adequate under D-1631.

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1 MS. BELLOMO: Well, the relevance I believe, Chairman

2 Caffrey, is that -- I'm trying to establish that, in fact,

3 the Department of Water and Power is aware of this

4 opposition and I think it's relevant to the Board to know

5 whether the Department of Water and Power believes that the

6 Water Board should take these community concerns into

7 account in arriving at a decision in this case.

8 CHAIRMAN CAFFREY: I've got three people up now.

9 Before I rule let's hear from Ms. Scoonover and then

10 Mr. Dodge.

11 Ms. Scoonover.

12 MS. SCOONOVER: Mr. Caffrey, I'm afraid I'm also going

13 to have to agree with Mr. Birmingham on this point and, that

14 is, the community concerns are valid and important concerns

15 which is, I believe, why the Bellomos are here and will be

16 presenting testimony later on, as will Mr. Beckman, the

17 Bureau of Land Management and other land management agencies

18 within the basin. I think that is the appropriate time to

19 voice concerns or opposition as opposed to in the form of

20 cross-examination at this time.

21 CHAIRMAN CAFFREY: Thank you. Mr. Dodge.

22 MR. DODGE: I have just a pickier objection and, that

23 is, if the Board is inclined to allow testimony about quote

24 "opposition" end quote, that's your decision; but I think it

25 should be phrased in terms of the people who were at a

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1 particular meeting rather than the quote "community" end

2 quote.

3 CHAIRMAN CAFFREY: I think those are all valid

4 concerns. I'm going to sustain the objections and, as

5 Ms. Scoonover pointed out, there may be more appropriate

6 opportunity after some further direct from other parties for

7 you to ask perhaps some questions at that time along these

8 lines.

9 MS. BELLOMO: Fine, I will move on to another question

10 and we'll see if you find this objectionable as well.

11 My question is -- Mr. Kavounas, is: Does the

12 Department of Water and Power believe that the State Water

13 Resources Control Board should take into account the

14 concerns, whatever they might be, and I'm not asking you to

15 testify as to what they are, but whatever they might be,

16 take those concerns into account in fashioning the Waterfowl

17 Habitat Restoration Plan?

18 MR. KAVOUNAS: I can't answer that. That sounds to me

19 more like a question that begs legal advice on what the

20 State Board should and should not do.

21 MS. BELLOMO: All right. Am I correct that if the

22 State Water Resources Control Board rejects the Department

23 of Water and Power's Waterfowl Habitat Restoration Plan as

24 you've proposed it in this proceeding, that -- at least with

25 regard to the Mill Creek issue, that the Department would be

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1 open to working in a process with the Water Board staff,

2 other parties and the local community to develop an

3 alternative plan?

4 MR. KAVOUNAS: You're asking me to state Department

5 policy based on a hypothesis. I can't do that right now.

6 MS. BELLOMO: Okay.

7 MR. KAVOUNAS: That is a bridge we'll have to cross

8 when we get there.

9 MS. BELLOMO: Prior to the scientists recommending --

10 the three scientist consultants that you identified as doing

11 your Waterfowl Habitat Plan, prior to the scientists making

12 the recommendation to dedicate DWP's irrigation water to

13 Mill Creek, did the Department have any intention of ceasing

14 irrigation on Thompson Meadow?

15 MR. KAVOUNAS: No, not to my knowledge.

16 MS. BELLOMO: Did you have any intention of stopping

17 grazing on Thompson Meadow?

18 MR. KAVOUNAS: Not to my knowledge. The Department's

19 policy, as Mr. Perrault stated, is to continue the practices

20 of the past.

21 MS. BELLOMO: Am I correct that the Lower Thompson

22 Meadow -- and by that I refer to the portion of Thompson

23 Meadow that's across from the county park --

24 MR. KAVOUNAS: Uh-huh.

25 MS. BELLOMO: -- off Cemetery Road.

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1 MR. KAVOUNAS: Yes.

2 MS. BELLOMO: Am I correct that that portion of

3 Thompson Meadow is maintained open to the public for day

4 use?

5 MR. KAVOUNAS: Brian.

6 MR. TILLEMANS: Yes, it is. It's a Department policy

7 to leave our lands open 75 percent for public recreation.

8 MS. BELLOMO: That was going to be my next question

9 and so I'll ask you -- you may have answered that, I'm not

10 sure.

11 Is it the general policy of the Department with regard

12 to all property that it owns in the Mono Basin, with the

13 exception of land that's used for DWP operations or leased

14 for private commercial or residential use, with the

15 exception of those lands is it the Department policy to

16 maintain its property open for day use?

17 MR. TILLEMANS: Yes, it is and there is -- I gotta

18 state there is an exception in there that if you have

19 irrigated lands such as say an alpha field or something, the

20 lessee does have the opportunity to post there's no

21 trespassing, but we try to keep that no more than 25 percent

22 of their lease.

23 MS. BELLOMO: Now, I'll ask this to the panel as a

24 whole, I'm not sure who would want to answer this -- be the

25 appropriate person to answer this. But would the Department

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1 expect that if you stop irrigation at Thompson Meadow, as

2 has been proposed in your plan, that there would be

3 significant changes in habitat at Lower Thompson Meadow?

4 MR. KAVOUNAS: That would be my expectation, yes.

5 MS. BELLOMO: And would you have that same expectation

6 if you stopped irrigating what I'm going to call Upper

7 Thompson Meadow, which is on the west side of Highway 395?

8 MR. KAVOUNAS: I think it's a generally correct

9 statement that if the irrigation is changed on a parcel of

10 land, then the habitat on that parcel of land will change.

11 MS. BELLOMO: I'm not recalling which of you has the

12 background as a hydrologist. Do both Mr. Kavounas and

13 Mr. Perrault?

14 MR. KAVOUNAS: That's correct.

15 MS. BELLOMO: Okay. Well, then maybe one or the other

16 of you would want to answer this: If irrigation ceases on

17 Thompson Meadow, would you agree that it's possible -- do

18 you agree that it's possible that this could have an impact

19 on the ground water in that area?

20 MR. KAVOUNAS: Yes, I do.

21 MS. BELLOMO: And would you agree that it's possible

22 that it could have an affect on the ground water on the side

23 of the road where the county park is below Lower Thompson

24 Meadow, it's not actually irrigated directly by DWP?

25 MR. KAVOUNAS: I believe it's very possible, yes.

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1 MS. BELLOMO: And do you think that it's also possible

2 that by ceasing irrigation of Lower Thompson Meadow it could

3 have an affect on the well maintained by the County at the

4 county park?

5 MR. KAVOUNAS: Not an impact on the well itself, but

6 the water levels that the well draws from, yes.

7 MS. BELLOMO: What kind of studies would have to be

8 done to determine if there was going to be an impact on the

9 ground water on the county park side of the road?

10 MR. KAVOUNAS: I would suspect a general geohydrology

11 study would have to be performed, studying the area, water

12 levels, historical data and perhaps some sort of a test

13 would have to be conducted perhaps on the well itself that's

14 on the county park.

15 MS. BELLOMO: Are you familiar with the area that lies

16 below the county park across from Thompson Meadow as you

17 walk down the boardwalk towards the lake?

18 MR. KAVOUNAS: I've walked that twice.

19 MS. BELLOMO: And is it your recollection that that's

20 a marshy area?

21 MR. KAVOUNAS: Yes.

22 MS. BELLOMO: And do you recall -- you may recall that

23 there are posted signs posted by the State -- or do you

24 recall that there are signs posted by the State indicating

25 the birds that use that marshy area?

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520

1 MR. KAVOUNAS: I don't recall that. I saw that in the

2 testimony from People for Mono Basin Preservation, but I

3 don't recall that -- I don't recall seeing it on there.

4 MS. BELLOMO: Would it be -- as a hydrologist would

5 you consider that it would be possible that if you stopped

6 irrigation at Thompson Meadow that it could conceivably have

7 some impact on the ground water as far down as that marshy

8 area?

9 MR. KAVOUNAS: It's conceivable.

10 MS. BELLOMO: And to know for certain you would have

11 to do studies?

12 MR. KAVOUNAS: Yes.

13 MS. BELLOMO: With regard to -- I know that I'm going

14 a little bit outside of your direct here, and this may get

15 some objection, but we've heard testimony several times

16 today about -- or questions about irrigation below Parker

17 and Walker Creeks, I believe.

18 MR. KAVOUNAS: Uh-huh.

19 MS. BELLOMO: And the People for Mono Basin

20 Preservation would like to say that bringing up the Cain

21 Ranch issue we're not bringing it up to assign blame to any

22 party as to why Cain Meadow has distinctly shrunk or dying

23 or whatever, but we understand this could be -- you know,

24 fall out of restoration efforts.

25 But what we would like to know is whether the

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1 Department of Water and Power would agree that it would be

2 appropriate to meet with staff of the Water Resources

3 Control Board, the community and any other parties that are

4 interested to try to work out a suitable irrigation plan for

5 Cain Meadow or Cain Ranch?

6 CHAIRMAN CAFFREY: Yes, Mr. Birmingham.

7 MR. BIRMINGHAM: Objection.

8 CHAIRMAN CAFFREY: I understand the objection.

9 Although I -- I mean, you may -- well, why don't you try

10 another line of questioning.

11 Mr. Dodge.

12 MR. DODGE: Well, I think Ms. Bellomo could have asked

13 this question of the prior panel when Mr. Kavounas was

14 discussing this. I don't think any of us have been

15 prejudiced by her asking it now rather than before.

16 MR. BIRMINGHAM: There are a number of bases to object

17 to this question. First, it is outside the scope of the

18 direct examination which is the subject of this panel.

19 Mr. Dodge is correct, it could have been asked before.

20 If it had been, I would have objected on the grounds that

21 it's calling for an answer which this witness isn't in a

22 position to give. She's asking for policy of the Department

23 of Water and Power. The question lacks foundation. There

24 are a number of objections.

25 CHAIRMAN CAFFREY: Well, you know, we don't follow the

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1 strictest Rules of Evidence here and this is the kind of

2 question where the witness, if that is the case, can simply

3 state that he is not empowered.

4 And if that's the case, which I believe it is, because

5 I believe you said something to that effect in earlier

6 testimony, this question sounds familiar, just answer it and

7 be done with it.

8 MR. KAVOUNAS: My answer at this point in time would

9 have to be that the Department of Water and Power is not

10 prepared to discuss irrigation policy. Irrigation has not

11 been raised in Decision 1631. Once again, we'll cross that

12 bridge when we get to it.

13 MS. BELLOMO: Mr. Perrault, if I could ask you to turn

14 to your testimony in Exhibit 35. On page one of your

15 testimony you state that -- on the very last line, let's

16 see, you're referring to diversions of Mill Creek water for

17 power generation and you state, "On average 84 percent of

18 the natural flow is diverted."

19 MR. PERRAULT: Yes.

20 MS. BELLOMO: I wanted to ask you what is the source

21 of that number?

22 MR. PERRAULT: The source of that number is based on

23 records compiled by Southern California Edison. I

24 believe -- I forget the numbers. I believe it's -- let me

25 get that -- anyway, it's the flow that passes through the

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1 powerhouse.

2 MS. BELLOMO: And I assume that you viewed records

3 that Edison provided to get those numbers?

4 MR. PERRAULT: Yes, they provided records to me.

5 MS. BELLOMO: On page two of -- in Section B, the

6 second paragraph, you refer to -- you provide runoff

7 numbers, the monthly runoff, et cetera, numbers.

8 Do you see where I'm looking?

9 MR. PERRAULT: Yes.

10 MS. BELLOMO: My question there is how did you

11 calculate those numbers?

12 MR. PERRAULT: Those are average values based on a

13 period of record, which I believe was the '41 to '90 period.

14 MS. BELLOMO: And who maintains those records?

15 MR. PERRAULT: Those are also maintained by Southern

16 California Edison.

17 MS. BELLOMO: Do you know where the measurements are

18 taken for those numbers?

19 MR. PERRAULT: Yes, Edison -- they measure flow at --

20 the flow that -- actually, they measure the storage in Lundy

21 Reservoir. They measure the flow that passes through the

22 reservoir, below the reservoir. They also measure the flow

23 that passes through their powerhouse and it is a summation

24 of those three.

25 MS. BELLOMO: Am I correct that in the last few years

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1 at least the Department of Water and Power has not used the

2 Upper Thompson Ditch for irrigation?

3 MR. PERRAULT: In the last few years it's my

4 understanding we have.

5 MS. BELLOMO: That you have used it?

6 MR. PERRAULT: Yes.

7 MS. BELLOMO: Okay. Does that include last summer?

8 MR. PERRAULT: To be honest, I couldn't answer that.

9 MS. BELLOMO: You state on page eight that the

10 Department of Water and Power proposes to impose a grazing

11 moratorium on all DWP land in the Mill Creek floodplain, and

12 I wanted to ask if you could explain exactly where this

13 moratorium would be?

14 MR. PERRAULT: I might ask maybe that Brian Tillemans

15 address that.

16 MR. TILLEMANS: If you look at the Forest Service map,

17 you'll see Department of Land on there and the Mill Creek

18 floodplain below Mono City and that would be on those lands.

19 That's part of the Thompson lease.

20 MR. KAVOUNAS: Maybe, Brian, could you point it out on

21 the exhibit that we have right here.

22 MR. TILLEMANS: The yellow.

23 MS. BELLOMO: The yellow area?

24 MR. TILLEMANS: Yeah, the yellow area here.

25 MR. KAVOUNAS: Along Mill Creek.

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1 MR. TILLEMANS: Right.

2 MS. BELLOMO: And by "the floodplain" are you

3 referring to --

4 MR. TILLEMANS: That would basically entail the same

5 thing as Rush and Lee Vining Creek bluff to bluff.

6 MS. BELLOMO: Okay. So it's basically keeping them

7 out of the creek in what would be the riparian vegetation

8 zone?

9 MR. TILLEMANS: Right, right.

10 MS. BELLOMO: But would you allow grazing in areas

11 adjacent to that if the sheepherders, let's say, were able

12 to control the sheep to not cross the creek?

13 MR. TILLEMANS: Oh, yes, oh, yes, just like we do on

14 the other creeks.

15 MS. BELLOMO: On page nine your testimony states, I

16 think, Mr. Perrault, we're still on yours, that the

17 Department of Water and Power proposes to curtail all

18 irrigation diversions in the Mill Creek watershed; and so I

19 want to ask you would you expect to see a loss of riparian

20 vegetation along the irrigation ditches if this proposal was

21 adopted?

22 MR. PERRAULT: I don't know that I'm -- have the

23 credentials to answer that, but if you took water off it I

24 would expect it to diminish.

25 MS. BELLOMO: Do you have an opinion about that,

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1 Mr. Tillemans?

2 MR. TILLEMANS: I generally agree with Jim. If you

3 take away water from riparian areas, you would see some kind

4 of impact.

5 MS. BELLOMO: An impact would normally be a decrease

6 in riparian vegetation?

7 MR. TILLEMANS: I guess I'd have to look at the

8 specific site on that to be able to give you an answer.

9 MS. BELLOMO: You wouldn't expect to see an increase

10 in vegetation, would you?

11 MR. TILLEMANS: No, I wouldn't.

12 MS. BELLOMO: Does the Department of Water and Power

13 have -- let me strike that.

14 To date has the Department of Water and Power

15 performed any analysis of what impacts your proposal to

16 rewater Mill Creek might have on the water supply for the

17 Lundy Mutual Water Company that serves Mono City?

18 MR. PERRAULT: No, we have not.

19 MS. BELLOMO: Is it your opinion that that -- well,

20 did you review the materials that the people from Mono Basin

21 submitted on that subject which, I believe, were portions of

22 an engineer's report?

23 MR. PERRAULT: Yes, I did.

24 MS. BELLOMO: In your opinion, would it be prudent for

25 an investigation to be done or an analysis to be done to

CAPITOL REPORTERS (916) 923-5447

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1 determine if there could be adverse impacts on the Mono City

2 water system before changing flows in Wilson Creek?

3 MR. PERRAULT: Well, I guess my view is that as the

4 project -- if the project is approved, a CEQA process will

5 come afterwards and that would definitely be part of that

6 process.

7 MS. BELLOMO: Is there some reason that the Department

8 of Water and Power didn't do any analysis of its own

9 beyond -- regarding environmental impacts of their proposal

10 beyond what was performed by the three scientists that you

11 relied upon?

12 MR. KAVOUNAS: Yes. Yes, the reason is that, as you

13 can tell from the panel that we have, we do not have the

14 capability of doing that. We do not have the expertise to

15 do that. It seems to me that that is something -- whatever

16 portions of the environmental analysis were not addressed in

17 the three scientists' plan should be addressed in the all

18 but necessary CEQA document that is to follow the adoption

19 of the restoration plan by the State Board.

20 For the Department, and I suspect that the scientists

21 felt the same way, although don't quote me on that, they

22 probably felt that the -- there's no point in doing it at

23 this point in time, certainly not before the State Board

24 adopts a particular measure or not.

25 It's my experience that environmental impact reports

CAPITOL REPORTERS (916) 923-5447

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1 or other CEQA documents can be lengthy and costly, both in

2 money and in human resources.

3 MS. BELLOMO: Thank you, I have no further questions.

4 CHAIRMAN CAFFREY: All right. Thank you very much,

5 Ms. Bellomo.

6 Mr. Mooney, do you have questions? Good afternoon,

7 sir.

8 MR. MOONEY: Good afternoon.

9 ---oOo---

10 CROSS-EXAMINATION

11 BY ARNOLD BECKMAN

12 MR. MOONEY: Mr. Perrault, if you could turn to your

13 testimony on page three, turn to the section of "Mill Creek

14 Water Rights."

15 MR. PERRAULT: Yes.

16 MR. MOONEY: I think it's the third sentence and it

17 states, "Although the decree does not specify a period of

18 diversion by dates, it appears that the adjudicated rights

19 for irrigation only apply to the irrigation season."

20 Are you aware of any other uses of water under the

21 Mill Creek Decree?

22 MR. PERRAULT: Yes, I am.

23 MR. MOONEY: And what are those uses?

24 MR. PERRAULT: I believe it calls for domestic uses,

25 also livestock and -- actually, I think that's about the

CAPITOL REPORTERS (916) 923-5447

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1 extent of it.

2 MR. MOONEY: Okay. And there you -- in that sentence

3 again you say it does not specify a period of diversion by

4 dates, in reference to the irrigation uses.

5 Does it specify -- to your knowledge, does that decree

6 specify a period of diversion by dates for those other uses

7 as well?

8 MR. PERRAULT: No, it does not.

9 MR. MOONEY: Okay, thank you. And then on page nine

10 of your testimony, and this is also referenced -- well, I'll

11 make the reference first. Under Section B, the "Fall/Winter

12 Water," you make the statement in referencing the scientists

13 that "...the scientists recommended negotiating with Conway

14 Ranch to obtain use of its second priority, 12 cfs water

15 right." And then you go on to say that this recommendation

16 assumed that these water rights are perennial in nature.

17 Do you know what they base their recommendation upon

18 or their -- you say assumed their recommendation or their

19 assumption upon?

20 MR. PERRAULT: Um, I think -- no, I don't.

21 MR. MOONEY: You don't know what they based it upon

22 you said; is that correct?

23 MR. PERRAULT: No.

24 MR. MOONEY: Do you know if they did any type of water

25 availability study or water rights analysis in making that

CAPITOL REPORTERS (916) 923-5447

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1 recommendation?

2 MR. PERRAULT: I don't believe that they did, no.

3 MR. MOONEY: In the next sentence you state that LA

4 interprets the Mill Creek Decree differently than the

5 scientists.

6 What do you base your interpretation -- how is your

7 interpretation different than the scientists'

8 interpretation -- recommendation or interpretation of the

9 Mill Creek Decree?

10 MR. PERRAULT: Well, I believe it's stated in my

11 testimony.

12 MR. MOONEY: In that water is only available for the

13 irrigation season or irrigation uses?

14 MR. PERRAULT: Well, I think my testimony speaks for

15 itself and I'll read it. It says on page nine, "It is

16 LADWP's view that the water rights adjudicated for

17 irrigation have not, and indeed could not have, been put to

18 reasonable and beneficial use during the non-irrigation

19 season and consequently such water is available for

20 appropriation."

21 MR. MOONEY: Okay. But just a moment ago you just

22 mentioned that some of the other uses were stockwatering and

23 domestic uses that are provided for in the decree.

24 Now, in here, in that statement that you just made or

25 you read from your testimony, there's no reference to the

CAPITOL REPORTERS (916) 923-5447

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1 stockwatering or the domestic?

2 MR. PERRAULT: That's correct.

3 MR. MOONEY: So are you just in that analysis or your

4 interpretation -- and I'm not trying to be argumentative but

5 I'm just trying to -- are you not including the other uses

6 of water that are provided for in the decree?

7 MR. PERRAULT: Well, I'm not aware of any other uses.

8 MR. MOONEY: Okay. Is that something that the

9 scientists might have been aware of, the other uses, in

10 making their recommendation or their assumptions?

11 MR. BIRMINGHAM: Objection, calls for speculation.

12 MR. FRINK: Mr. Chairman.

13 BOARD MEMBER DEL PIERO: I think there was an

14 objection.

15 CHAIRMAN CAFFREY: Yes, I'm sorry, Mr. Frink.

16 MR. FRINK: There was an objection regarding

17 Mr. Mooney's question stating it calls for speculation.

18 I was going to object based on your opening statement

19 where you indicated that there were issues regarding closed

20 appropriation for Mill Creek that would have to be resolved

21 in the context of a future proceeding, and I think one of

22 those very fundamental issues is the availability of water

23 for appropriation under the water rights application that

24 the City has submitted.

25 So I would suggest that the whole line of questioning

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1 on the availability of water for appropriation is

2 inappropriate in this proceeding other than identifying that

3 it is an issue that would have to be addressed.

4 CHAIRMAN CAFFREY: I agree, Mr. Frink, and in the

5 opening statement we talked about -- and perhaps the words

6 weren't as good as they might have been, but we were trying

7 to stay at a fairly conceptual level and so I will sustain

8 the objection, Mr. Mooney.

9 MR. MOONEY: Okay. Well, if I may just have a -- just

10 maybe a moment of explanation or provide a moment of

11 explanation.

12 In this testimony, as I stated yesterday, in this

13 testimony and other testimony there was a lot of reference

14 to the Mill Creek Decree and the water rights and the plan

15 is based upon -- that they put forth to this Board is based

16 upon certain assumptions that LA has made with regards to

17 that Mill Creek Decree.

18 Now, I understand that we're not here to discuss water

19 availability or the adjudication of the water rights and, in

20 fact, the Mill Creek -- or the water rights or the Mill

21 Creek Decree are not even within this Board's jurisdiction

22 in that they're pre-1914 water rights and they're

23 adjudicated water rights -- or to that extent they're not.

24 But to the extent that the Board is evaluating this

25 plan and to the extent that certain assumptions have been

CAPITOL REPORTERS (916) 923-5447

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1 made about those water rights, we just want to let the Board

2 know that there are a number of issues out there associated

3 with those water rights --

4 CHAIRMAN CAFFREY: It might be -- since you're in the

5 process of now testifying, it might be more appropriate for

6 you to express that when you're on for direct.

7 MR. MOONEY: Okay, thank you.

8 CHAIRMAN CAFFREY: Being mindful always, though, even

9 at that time that we will most likely have another

10 proceeding -- a water rights proceeding on the applications

11 involved here so --

12 MR. MOONEY: Okay. And, actually, I have no more

13 questions with regards to water rights.

14 But I do have a question that applies to the water

15 rights but to the process that LA -- that you proposed in

16 your testimony on page 11.

17 In that first full paragraph on page 11 you state that

18 "LADWP strongly believes that prior to commencement of

19 expensive environmental studies and the resolution of

20 environmental concerns, the legal aspects regarding water

21 right possession and the availability of water need to be

22 resolved."

23 Now, my question is: Are you proposing that the Board

24 address the water rights application -- LA's water rights

25 application prior to LA doing the CEQA analysis?

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1 MR. PERRAULT: Would you ask the question again,

2 please?

3 MR. MOONEY: Well, I'm just trying to get

4 clarification on your statement there. It sounds to me like

5 what you're asking is for the Board -- for there to be a

6 resolution of the water rights application prior to LA

7 conducting the environmental review.

8 MR. PERRAULT: Well, in my testimony I indicate that

9 there are two issues that come out. One is the injury to a

10 right. The other issue is environmental, and I guess my

11 thinking is common sense would say you would resolve a claim

12 against a right prior to spending a lot of money on

13 environmental work if the right exists; and so I don't know

14 that I'm suggesting that the Board do anything. I don't

15 think that's my place, but I'm just saying that, in my

16 opinion, is common sense.

17 MR. MOONEY: Okay. Well, is Los Angeles going to ask

18 the State Board to proceed on a water rights application

19 prior to LADWP conducting the environmental review?

20 MR. KAVOUNAS: Los Angeles intends to do -- intends to

21 go along with whatever the State Board wants to do. The

22 State Board has both issues in front of them and there we

23 are.

24 MR. FRINK: Mr. Chairman, in that respect I may be

25 able to clarify a little just based on the Board's --

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1 CHAIRMAN CAFFREY: Go ahead, Mr. Frink.

2 MR. FRINK: -- on the Board's ordinary water rights

3 process. The Board would not act upon an application to

4 appropriate water and make findings regarding the

5 availability of water ordinarily until an environmental

6 document has been prepared.

7 That doesn't mean to say that the parties amongst

8 themselves could not reach some agreement on what the extent

9 of existing rights that will or will not be asserted is and

10 come before the Board having resolved at least a part of the

11 issue of the availability of water, but the Board would not

12 ordinarily process a water right application until the

13 environmental document has been done at least in draft form.

14 CHAIRMAN CAFFREY: Thank you, Mr. Frink.

15 Mr. Birmingham -- I'm sorry, I didn't realize

16 Mr. Del Piero had a question. Mr. Del Piero and then

17 Mr. Birmingham.

18 BOARD MEMBER DEL PIERO: I think it's important to

19 point out -- Mr. Frink's statement is absolutely correct.

20 It's important to point out one additional thing and, that

21 is, even if the parties agree, that doesn't excuse this

22 Board from CEQA.

23 MR. FRINK: Right.

24 BOARD MEMBER DEL PIERO: There will of necessity have

25 to be an environmental document and, to my mind, it couldn't

CAPITOL REPORTERS (916) 923-5447

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1 be done without a comprehensive environmental impact report

2 at the time that such an application would be filed

3 regardless of whether there's consensus among the group or

4 not.

5 MR. FRINK: I didn't mean to imply --

6 CHAIRMAN CAFFREY: Yeah, I have no doubt that Mr. --

7 I'm sorry, I'm talking over you, Mr. Frink.

8 I have no doubt that Mr. Frink knows that and meant --

9 BOARD MEMBER DEL PIERO: I understand Mr. Frink knows

10 it. I want to make sure it was clear on the record because

11 there are a number of people here who are concerned about

12 those issues. I mean, Ms. Bellomo raised it. Counsel now

13 before us is raising it and I think it needs to be

14 articulated clearly that there's no give-me's in terms of

15 this as related to whether or not you have to comply with

16 CEQA, and you can't make a decision until you do.

17 MR. MOONEY: I agree fully with you, and I always

18 have. I just wanted to get a clarification from the witness

19 in terms of the statement.

20 CHAIRMAN CAFFREY: Mr. Birmingham, do you want --

21 MR. BIRMINGHAM: The only thing that I would add is

22 that the question itself, to a degree, requests a legal --

23 calls for a legal conclusion.

24 I certainly concur with what Mr. Frink said and what

25 Mr. Del Piero said. The Board cannot act on a water rights

CAPITOL REPORTERS (916) 923-5447

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1 application until there has been compliance with CEQA, and

2 the Department of Water and Power is not suggesting that

3 anything else be done.

4 CHAIRMAN CAFFREY: All right. I know the witnesses

5 are being very careful to give the correct answer, but I

6 told other panels that there's nothing wrong with saying "I

7 don't know" or it's outside of your level of expertise.

8 MR. MOONEY: Just for the record, I wasn't asking for

9 a legal conclusion. I was just asking for a clarification

10 and if LA had put forth some type of a policy or such.

11 CHAIRMAN CAFFREY: And I'd add to my two reasonings

12 that I just made that, also, if you don't feel that you

13 are -- or if you know that you are not high enough in your

14 organization in terms of authority to make that

15 determination just say so, it's okay.

16 But, Mr. Mooney, please continue.

17 MR. MOONEY: Thank you.

18 With regards to the development of the plan -- or the

19 proposed plan associated with Mill Creek, in putting that

20 together was there any consideration of the Bishop

21 Management -- or Bishop Resources Management Plan that's put

22 from BLM, Bureau of Land Management?

23 MR. PERRAULT: I don't know.

24 MR. MOONEY: Would the scientists know that in terms

25 of making their recommendations?

CAPITOL REPORTERS (916) 923-5447

538

1 MR. DODGE: Objection, calls for speculation.

2 CHAIRMAN CAFFREY: Who made the objection or was there

3 an objection?

4 MR. DODGE: (Gesturing).

5 CHAIRMAN CAFFREY: All right, Mr. Dodge. I heard it

6 coming from somewhere, but I didn't know where it was coming

7 from. Objection on the basis it calls for speculation --

8 BOARD MEMBER DEL PIERO: Have him rephrase it.

9 MR. MOONEY: I'll rephrase it. Yes, I will rephrase

10 it -- well, your previous answer was actually sufficient.

11 LA relied heavily upon the scientists' recommendation

12 in the plan that's been proposed for the State Board for the

13 Mill Creek or the Waterfowl Restoration Plan; is that

14 correct?

15 MR. KAVOUNAS: That is correct.

16 MR. MOONEY: And you pretty much relied upon it

17 entirely except for a few recommendations with regards to

18 the Forest Service -- dedication of the Forest Service right

19 and the Mill Creek water rights recommendations in terms

20 of -- I'm not getting into that again -- but just in terms

21 of that recommendation about negotiating for the water

22 rights. Is there any other things that were not followed in

23 terms of the scientists' recommendations?

24 MR. KAVOUNAS: Yes, as explained in my written

25 testimony.

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539

1 MR. MOONEY: Okay. But does LA intend to call the

2 scientists to have -- to make them available? The

3 consultants that prepared the plan, are they gonna be

4 available in this hearing process?

5 MR. KAVOUNAS: The Department of Water and Power does

6 not intend to call the scientists.

7 MR. DODGE: The record should reflect that we have

8 named Dr. Reid, who is one of the three scientists, as a

9 witness.

10 MR. MOONEY: Okay, thank you.

11 The previous cross-examination covered most of the

12 rest of mine so in the consideration of time that will

13 conclude mine.

14 CHAIRMAN CAFFREY: Thank you very much, Mr. Mooney.

15 I'm sure your fellow parties appreciate that, as do we.

16 Mr. Haselton, do you have any questions of these

17 witnesses?

18 MR. HASELTON: No, sir.

19 CHAIRMAN CAFFREY: Thank you, sir.

20 Mr. Ridenhour, are you --

21 MR. RIDENHOUR: No.

22 CHAIRMAN CAFFREY: There you are, sir.

23 MR. RIDENHOUR: No, thank you.

24 CHAIRMAN CAFFREY: Mr. Roos-Collins?

25 MR. ROOS-COLLINS: No questions.

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540

1 CHAIRMAN CAFFREY: No questions. Let's see, I believe

2 the momentarily modified order now takes us to Mr. Dodge.

3 Any questions, Mr. Dodge?

4 MR. DODGE: I have some questions but I don't think

5 Ms. Cahill has agreed, nor have I asked her to, for a

6 permanent switch.

7 CHAIRMAN CAFFREY: Okay. That was just for the one

8 panel; is that right?

9 MS. CAHILL: That was a first panel only. It was

10 actually reflective of my recognition that Mr. Dodge fades

11 in the late afternoon.

12 BOARD MEMBER DEL PIERO: Tell Birmingham that, okay.

13 MR. BIRMINGHAM: I was going to observe it didn't

14 help.

15 MS. CAHILL: Good afternoon again.

16 CHAIRMAN CAFFREY: Good afternoon.

17 ---oOo---

18 CROSS-EXAMINATION

19 BY CALIFORNIA DEPARTMENT OF FISH AND GAME

20 MS. CAHILL: Mr. Kavounas, your testimony indicates

21 that LADWP recognizes that there are no goals in the

22 scientists' plan.

23 Did you go back to the scientists and ask them to set

24 some?

25 MR. KAVOUNAS: Yes, I did.

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1 MS. CAHILL: And what was the result?

2 MR. KAVOUNAS: My personal communication with Dr. Reid

3 was that -- well, let me back up for just a second. We had

4 a TAG meeting in Tahoe on January 10th, I believe, of 1996.

5 It was the day after we had the Stream Plan TAG meeting and

6 at that point a lot of the parties pointed to the fact that

7 there were no goals and objectives in the scientists' plan,

8 which was a draft at that point in time.

9 I made sure that Dr. Reid had a copy of all those

10 comments and I explained to him that that was -- that seemed

11 to be a major concern on behalf of a lot of parties. He

12 told me that they would take it into consideration the best

13 they could and that that would reflect in their final plan.

14 Their final plan was issued February 19th.

15 MS. CAHILL: Thank you. Do you agree with the

16 scientists' plan where it states that current waterfowl use

17 is severely restricted by the minimal acreage of fresh and

18 brackish water habitats?

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

20 MS. CAHILL: We really don't have any waterfowl

21 experts on this panel, do we? None of you claims to be a

22 waterfowl expert? Okay, they're indicating "no."

23 Would it be helpful to LADWP if another witness were

24 to attempt to provide some goals?

25 MR. TILLEMANS: Virginia, I am a biologist and I got

CAPITOL REPORTERS (916) 923-5447

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1 some wildlife experience, particularly with the waterfowl

2 and the geese in the Sierra.

3 MS. CAHILL: Okay. And so would you agree with that

4 statement that the current waterfowl use is restricted by

5 minimal acreage of fresh and brackish open water habitat?

6 MR. TILLEMANS: I say that may be a possibility.

7 Nobody has distinctly determined that as an absolute fact.

8 Again, I'll fall back on what has happened in North America

9 in terms of waterfowl, and there may be some overriding

10 factors that are limiting use at Mono Lake that are

11 occurring elsewhere rather than here in terms of shifting of

12 flyways, et cetera.

13 MS. CAHILL: Would you expect that the focus of

14 waterfowl restoration, though, would be to increase the

15 amount of fresh and brackish open water habitat?

16 MR. TILLEMANS: I think that's apparent in the

17 recommendation because it involves increasing the lake --

18 the number one -- what they identify as the number one

19 benefit to waterfowl is raising the lake level.

20 MS. CAHILL: Well, I'm not sure that answered the

21 question. We've sort of decided that raising the lake level

22 is going to happen.

23 Assuming that raising the lake level is going to

24 happen and that you are looking for other restoration

25 measures, is the thrust of those measures to create

CAPITOL REPORTERS (916) 923-5447

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1 additional fresh and brackish water -- open water habitat?

2 MR. TILLEMANS: I think if you look at the measures

3 the scientists proposed, it would be a fair assessment.

4 MS. CAHILL: So, in fact, in goals one of our at least

5 objectives would be to increase that type of habitat?

6 MR. TILLEMANS: I think so.

7 MS. CAHILL: Mr. Kavounas, in your testimony you

8 named -- there are some unnamed persons that you consulted

9 with that indicated that there was some concern that ducks

10 at Mono Lake were affected by the conditions in the flyway.

11 Can you tell me who it was that you talked to?

12 MR. KAVOUNAS: Mr. Brian Tillemans and Dr. Joe Jehl of

13 Hubbs Sea World Research Institute.

14 MS. CAHILL: Mr. Tillemans, isn't it true that if the

15 ducks in the flyway result -- require a sort of link of

16 habitats up and down the flyway for their continued success?

17 MR. TILLEMANS: That is preferred and I don't know if

18 it's necessarily required for -- I guess I'll have to have

19 you define "success" for me.

20 MS. CAHILL: Well, would it be preferred that they

21 have a whole chain of areas where they can stop and feed and

22 rest?

23 MR. TILLEMANS: It's probably preferred.

24 MS. CAHILL: Okay. So when numbers are low, it might

25 be helpful to have a number of different areas along the

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1 flyway where they have these opportunities?

2 MR. TILLEMANS: Where numbers are low?

3 MS. CAHILL: Right, in those years when there are

4 fewer than usual birds in the flyway.

5 MR. TILLEMANS: I guess, you know -- I guess you'd

6 have to start talking now to species and flyways and give me

7 more specifics for me to really answer a question like that.

8 Generalities in science are not good to make. There

9 are too many exceptions.

10 MS. CAHILL: I guess what I'm getting at is: Isn't it

11 a valid -- are we not just looking for more ducks in the

12 flyway, but more opportunities for those ducks that are in

13 the flyway?

14 MR. TILLEMANS: Could you please state that again?

15 MS. CAHILL: Okay, let me start another way. Do you

16 agree that prior to diversions there was extensive waterfowl

17 use at and around Mono Lake?

18 MR. TILLEMANS: More so than today, yes.

19 MS. CAHILL: And doesn't that indicate that when that

20 habitat was available it was used by ducks?

21 MR. TILLEMANS: Yes.

22 MS. CAHILL: And that it was one of the stops for at

23 least those ducks as they went on down the flyway. Whatever

24 the numbers in the flyway were, some ducks were using that

25 habitat?

CAPITOL REPORTERS (916) 923-5447

545

1 MR. TILLEMANS: Yes.

2 MS. CAHILL: And wouldn't you expect that if we

3 restored the habitat we would, in fact, get more ducks at

4 Mono Lake?

5 MR. TILLEMANS: It's not a given. You would hope it

6 would but I --

7 MS. CAHILL: Would you expect it?

8 MR. TILLEMANS: That is why I think the scientists

9 didn't put out a goal in terms of numbers because they may

10 expect some increase, but they still cannot tell you they're

11 gonna expect 10,000 or 50,000 or --

12 MS. CAHILL: I'm not asking for numbers. I'm just

13 asking wouldn't you expect an increase?

14 MR. TILLEMANS: I'll hold with my original answer. It

15 may not be a given, but it's a very good possibility.

16 MS. CAHILL: Okay. And when ducks are in the flyway,

17 don't they benefit from linked habitats along the whole way?

18 MR. TILLEMANS: Oh, yeah. There's no doubt that prior

19 to man and settlement and farming and everything that

20 waterfowl had more linkages within the corridors.

21 MS. CAHILL: And they will do better if they have more

22 linkages available. If there's a link missing, aren't those

23 ducks that are in the flyway less likely to flourish than if

24 they have appropriate habitat all along the linkages?

25 MR. TILLEMANS: You would expect it but, again, you're

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1 talking in generalities. Unless I had specifics to look at

2 and species and flyways and what's going on, you know --

3 MS. CAHILL: Mr. Kavounas, there was a recommendation

4 by the scientists that LADWP considered shallow scrapes.

5 Was consideration given to shallow scrapes as a

6 restoration measure?

7 MR. KAVOUNAS: Yes.

8 MS. CAHILL: And what was the conclusion?

9 MR. KAVOUNAS: The conclusion that we reached was that

10 the State Lands Commission is opposed to that. The reason

11 we reached that conclusion is based on comments that we

12 received at the TAG meeting in Tahoe on January 10th.

13 MS. CAHILL: And did you consider them on land that

14 was not owned and managed by state parks and state lands?

15 MR. KAVOUNAS: To my recollection the scrapes were

16 recommended on State Lands Commission land.

17 MS. CAHILL: Are there sites that are not on State

18 Lands Commission lands that might be appropriate?

19 MR. KAVOUNAS: I don't recall.

20 MS. CAHILL: Okay. In our stream plan discussion

21 yesterday and today there was considerable emphasis on

22 measurable goals. You have adopted all of the scientists'

23 measures with some exceptions.

24 Are you willing to make a commitment that if for one

25 reason or another some of those measures are not able to be

CAPITOL REPORTERS (916) 923-5447

547

1 carried out, you will find other measures so that the total

2 package gives us the same amount of habitat restoration that

3 the scientists' plan was proposing?

4 MR. KAVOUNAS: It sounds to me that your question is

5 if the State Board doesn't find the restoration plan that we

6 propose acceptable, would we have to do something else?

7 MS. CAHILL: No, let's say the State Board approves a

8 plan and then for one reason or another one of the measures

9 can't be carried out or it's ineffective.

10 MR. KAVOUNAS: Going along with your assumption,

11 obviously we'd have to come back to the State Board, because

12 the State Board retains jurisdiction. I believe that the

13 Decision provides for that.

14 MS. CAHILL: Mr. Tillemans, if you have in your plan

15 the proposal to burn between a thousand and 1200 acres, how

16 much open water habitat would you expect to get as a result

17 of that burn program?

18 MR. TILLEMANS: That is an unknown at this time and

19 that is why they propose to burn 400 acres below the

20 targeted lake level on an experimental basis so that they

21 can figure out protocols for future burns as well as the

22 results of those burns.

23 MS. CAHILL: At some point in time do you anticipate

24 setting an acreage goal for the amount of habitat we intend

25 to get from that burning program?

CAPITOL REPORTERS (916) 923-5447

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1 MR. TILLEMANS: I think you might get a general idea

2 but, again, climatic conditions and everything in terms of

3 wetlands would have a natural affect on that that I couldn't

4 predict for you.

5 MS. CAHILL: Mr. Kavounas -- yes.

6 MR. KAVOUNAS: If I may. If you're looking for a

7 goal, may I suggest that perhaps we can set a goal for how

8 many acres we can burn.

9 MS. CAHILL: Well, I'm not interested in how many

10 you're going to burn. I'm interested in what we're going to

11 get when we do the burning, and if we do the burning and

12 find that we don't have any increased duck habitat are we

13 willing then to look at other measures?

14 MR. KAVOUNAS: That was exactly the dilemma we were

15 faced when we looked at the scientists' plan. We didn't

16 really suggest something like that; and if you would like to

17 set a goal with burned acres, then the Department would

18 commit to that.

19 MS. CAHILL: Okay, thank you. Do you understand that

20 the scientists believe that nearly the full flows of Mill

21 Creek would need to be put back in that creek in order to

22 get the waterfowl habitat benefits that they envisioned?

23 MR. KAVOUNAS: No, I do not -- excuse me, let me

24 restate that. I think I do now based on their testimony,

25 but based on their plan I was not given that impression.

CAPITOL REPORTERS (916) 923-5447

549

1 MS. CAHILL: We talked a lot today about adaptive

2 management. The questions I was just asking go back to that

3 a bit, also. There is a proposal to monitor in the

4 Waterfowl Plan; is that right?

5 MR. KAVOUNAS: Quite an extensive amount.

6 MS. CAHILL: Okay. And what would be the triggers in

7 the monitoring that would call for adaptive management?

8 What would lead us to realize that we're going to need to do

9 something more or different?

10 MR. KAVOUNAS: You'd have to point out to me where in

11 the Restoration Plan it calls for adaptive management for

12 waterfowl habitat.

13 MS. CAHILL: Well, what would be the point of a

14 monitoring program if you're not going to take the results

15 of the monitoring program and make adjustments?

16 MR. KAVOUNAS: That was one of my criticisms on the

17 scientists' plan. I consider most of the monitoring they

18 propose to be pure research, but that was a recommendation

19 that was made and so I went along with it.

20 MS. CAHILL: If the Board wanted to -- if the Board

21 were to impose a -- if a condition of the Board's approval

22 of a plan was that it had a mechanism for evaluating the

23 success of the measures, do you have any recommendations on

24 how that would be done?

25 MR. KAVOUNAS: My understanding is based on

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1 conversations, as I mentioned before, with people that know

2 about waterfowl habitat and waterfowl. My understanding is

3 that you can create a little more habitat around Mono Lake.

4 That doesn't mean that you recreate a link in the Pacific

5 Flyway. It means that perhaps you enhance it. The amount

6 of enhancement is subject to question.

7 Even more subject to question is the increased number

8 of waterfowl that will use Mono Lake. Considering that

9 scientists cannot predict and that the numbers fluctuate for

10 many other reasons outside of Mono Basin, the Department

11 cannot propose any goals and objectives.

12 MS. CAHILL: The Department perhaps cannot -- well,

13 even if you could not propose goals and objectives in terms

14 of numbers of waterfowl, couldn't you impose goals and

15 objectives in terms of numbers of acres of habitat?

16 MR. KAVOUNAS: Yes, and -- well, let me take that

17 back. I'm not so sure that we can, but we can -- if

18 specific measures are identified that address a specific

19 parcel of land, for example, number of acres to be burned,

20 then -- you know, then we will set that as a goal.

21 MS. CAHILL: Mr. Tillemans, with regard to jackpot

22 burns, there was some indication in someone's testimony that

23 they may have already been done and I think your testimony

24 was that you were ready to do them.

25 Can you tell me what the status is of the jackpot burn

CAPITOL REPORTERS (916) 923-5447

551

1 program?

2 MR. TILLEMANS: There have been no jackpot burns as --

3 to date.

4 MS. CAHILL: Okay. The jackpot burns, this involves

5 materials in dry streambeds; is that right or not right?

6 MR. TILLEMANS: I don't know the status of the

7 streambeds. Things have changed out there since the plan

8 has been developed but the intent was to burn some of the --

9 a lot of the heavy accumulations in some of the lower areas

10 of Rush Creek there and spot burn them.

11 MS. CAHILL: Would you if you were to be doing some

12 burning in stream channels assume that you would first

13 contact the local Department of Fish and Game office?

14 MR. TILLEMANS: Oh, yes. If we need permits, we will.

15 MS. CAHILL: Thank you.

16 Mr. Kavounas, there's been considerable discussion

17 about the need for an environmental document. It's focused

18 on the Mill/Wilson Creek water issue.

19 Are there measures that the Board could approve now

20 for which either the environmental documentation is already

21 done or which could be analyzed separately so that they

22 could be gotten under way? Are you anticipating perhaps a

23 combination of smaller EIR's on particular limited waterfowl

24 projects or are you all anticipating one mammoth EIR and we

25 don't get any measures until it's completed?

CAPITOL REPORTERS (916) 923-5447

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1 MR. KAVOUNAS: I thought a neg dec would be

2 sufficient.

3 BOARD MEMBER DEL PIERO: Mr. Birmingham, do you agree

4 with that?

5 MS. CAHILL: Seriously, on some measures aren't there

6 some of these that perhaps could be a neg dec or could be a

7 more limited EIR?

8 MR. KAVOUNAS: Of those proposed in our plan?

9 MS. CAHILL: Right.

10 MR. KAVOUNAS: I believe some of those we could go

11 ahead with. I believe jackpot burning is one of them. I

12 believe the burn program is another one.

13 MS. CAHILL: Has environmental documentation already

14 been done on the DeChambeau Ponds project? I assumed it had

15 probably already been analyzed?

16 MR. KAVOUNAS: You mean the first phase?

17 MS. CAHILL: I don't know, let me ask you. What is

18 your understanding of the environmental analysis on that

19 project?

20 MR. KAVOUNAS: I don't know. I was not around when

21 the first phase was done. The Department was not a partner

22 in that.

23 MS. CAHILL: Speaking of that project, your plan seems

24 to say that you'd be willing to cooperate but you're looking

25 for funding from other agencies; is that right?

CAPITOL REPORTERS (916) 923-5447

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1 MR. KAVOUNAS: That is correct.

2 MS. CAHILL: So if that funding doesn't materialize

3 and we don't get that habitat, are you prepared to propose

4 some replacement restoration measure to make up for the

5 habitat that we're not getting?

6 MR. KAVOUNAS: It sounds like the same question you

7 asked before.

8 MS. CAHILL: It is, it's a variation of it.

9 MR. KAVOUNAS: And you get the same answer.

10 MS. CAHILL: And the same answer is?

11 MR. KAVOUNAS: Well, if the State Board approves our

12 plan the way it's been submitted and one of the elements of

13 the plan does not go forward, then obviously we have to come

14 back to the State Board.

15 MS. CAHILL: Okay. Thank you all very much.

16 CHAIRMAN CAFFREY: Thank you, Ms. Cahill.

17 There's a reflection on the clock. I think it's

18 almost ten to 3:00. This would be a good time to take about

19 a 10-minute break or a 12-minute break. Let's come back at

20 3:00 o'clock.

21 (Whereupon a recess was taken.)

22 CHAIRMAN CAFFREY: Let's find our seats and continue

23 with the cross-examination of these witnesses.

24 I believe we are -- we have completed Ms. Cahill's

25 cross-examination. Ms. Scoonover, are you ready?

CAPITOL REPORTERS (916) 923-5447

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1 MS. SCOONOVER: Yes.

2 CHAIRMAN CAFFREY: Good afternoon, welcome.

3 MS. SCOONOVER: Thank you, Mr. Caffrey.

4 ---oOo---

5 CROSS-EXAMINATION

6 BY CALIFORNIA STATE LANDS COMMISSION AND CALIFORNIA

7 DEPARTMENT OF PARKS AND RECREATION

8 MS. SCOONOVER: Mr. Kavounas, I'd like to start with a

9 few questions for you. On page five of your written

10 testimony, which is Exhibit 32, you commented that there's

11 little expertise in-house at the Department of Water and

12 Power regarding the waterfowl issues.

13 Is that an accurate and correct statement, aside from

14 Mr. Tillemans?

15 MR. KAVOUNAS: It is a correct statement that I stated

16 in my testimony, yes.

17 MR. BIRMINGHAM: Your Honor, I'm going to object to

18 the question.

19 BOARD MEMBER DEL PIERO: It's too late, he answered

20 it.

21 MR. BIRMINGHAM: Here is testimony that's been sworn

22 to under oath and she says is it accurate and correct, and I

23 think it's an argumentative question. It's in his

24 testimony. He said it's accurate and correct.

25 MR. DODGE: With all respect, I mean, events might

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1 change and she might just be asking whether it's still

2 correct.

3 CHAIRMAN CAFFREY: I agree. I think it's stylistic

4 and sometimes it's setting up for the next question so go

5 ahead -- and he answered it anyway, as Mr. Del Piero, a very

6 skilled hearing officer, has already noted.

7 BOARD MEMBER DEL PIERO: It's amazing. If you listen,

8 you sometimes hear answers, really.

9 MS. SCOONOVER: With that auspicious beginning,

10 Mr. Kavounas, let's try again.

11 Therefore, in reaching conclusions on issues related

12 to waterfowl, is it accurate to say that you relied upon the

13 three stream -- or three waterfowl scientists, Dr. Fritz --

14 Dr. Reid, Dr. Drewien and Mr. Ratcliff?

15 MR. KAVOUNAS: Yes.

16 MS. SCOONOVER: In addition, I believe in response to

17 a question from Ms. Bellomo you stated that you also relied

18 on testimony or information from Dr. Scott Stine.

19 Do you recall that statement?

20 MR. KAVOUNAS: No, I did not rely on any information

21 from Dr. Stine.

22 MS. SCOONOVER: Did these three scientists that the

23 Department of Water and Power employed to create this

24 Waterfowl Habitat Plan rely on any information from

25 Dr. Stine?

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1 MR. KAVOUNAS: Why, yes, as a matter of fact they did.

2 Every yellow tab in this book is a reference to Dr. Stine.

3 MS. SCOONOVER: You also stated in response to a

4 comment -- or a question from Ms. Bellomo that the

5 Department of Water and Power had concerns about the

6 recommendations the scientists had made.

7 Is the Department of Water and Power proposing any

8 alternatives to the scientists' plan at this point?

9 MR. KAVOUNAS: No.

10 MS. SCOONOVER: Mr. Kavounas, you weren't present at

11 the time the waterfowl scientists were selected, were you?

12 That would have been your predecessor, Mr. Hazencamp

13 (phonetic)?

14 MR. KAVOUNAS: That is correct.

15 MS. SCOONOVER: Mr. Tillemans, you were present during

16 that process, weren't you?

17 MR. TILLEMANS: Yes, I was.

18 MS. SCOONOVER: Would you state the Department of

19 Water and Power hand picked these three experts?

20 MR. TILLEMANS: No, I wouldn't.

21 MS. SCOONOVER: Would you say that these three experts

22 were selected as a collaborative process?

23 MR. TILLEMANS: Yes, I would.

24 MS. SCOONOVER: And would you agree that not all of

25 the parties were necessarily thrilled with the selection of

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1 all three of the scientists?

2 MR. TILLEMANS: I can't speak for the other parties.

3 MS. SCOONOVER: Would you say, however, that there was

4 general consensus that all the parties either supported,

5 accepted or could live with the selection of these three

6 scientists?

7 MR. TILLEMANS: I will say the whole process of the

8 TAG meetings we were having was a general consensus process

9 and that's how the plan was developed and that's why we

10 decided to go with the Waterfowl Plan.

11 MS. SCOONOVER: In providing direction for these three

12 scientists did the Department of Water and Power supply the

13 scientists with D-1631 and the Board's specific

14 recommendations for the Waterfowl Habitat Restoration Plan?

15 MR. TILLEMANS: That, I think, would have been

16 Mr. Hazencamp's responsibility at the time when he was Mono

17 Basin Coordinator, but I'm pretty sure he did.

18 MS. SCOONOVER: That's fine. In addition, did the

19 parties agree on ten guidelines to help direct the waterfowl

20 scientists in creating their plan?

21 MR. TILLEMANS: Yes, I recall some guidelines. I'm

22 not sure how many.

23 MS. SCOONOVER: Appendix I to the DWP Mono Basin

24 Waterfowl Habit Restoration Plan, beginning at page three of

25 Appendix I is a listing of those ten elements.

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1 Mr. Tillemans, would you read those ten elements?

2 MR. TILLEMANS: You want me to read all ten?

3 MS. SCOONOVER: Please.

4 MR. TILLEMANS: Okay. "1" is -- okay.

5 MS. SCOONOVER: Beginning at the bottom of page three

6 and onto page four, No. 1.

7 MR. TILLEMANS: Okay, No. 1 is "Restore pre-1941

8 waterfowl habitat conditions and ecological processes where

9 feasible.

10 Focus on lake-fringing habitats, but due to Decision

11 1631 lake management target of 6,392 feet variation around

12 that target...some restoration of pre-1941 lake-fringing

13 waterfowl habitat may not be possible. Therefore,

14 mitigation options on the tributary streams and elsewhere in

15 the Mono Basin should be examined, and may be required.

16 Restoration preference is for natural processes and

17 conditions as opposed to heavily engineered habitats.

18 Preference shall be on recreating or restoring

19 naturally occurring ecosystems or functions, as opposed to

20 'creating' new habitat.

21 Single species management shall be avoided. Emphasis

22 shall be on the ecosystem approach.

23 Restoration preference shall be on self-sustaining

24 habitats without the need for long-term maintenance

25 activities.

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1 Keep options and opportunities open as to lands where

2 restoration treatments take place.

3 The focus of lake-fringing habitats shall be on

4 long-term restoration associated with the 6,392 target

5 level, rather than short-term restoration.

6 There shall be monitoring of the restoration

7 treatments which should consider: Duration for restoration

8 to occur, goals and objectives of the particular project,

9 level of effort necessary to collect data for adequate

10 monitoring program, a baseline assessment of pre-1941 and

11 existing conditions, waterfowl use, aquatic invertebrates,

12 vegetative succession, water chemistry.

13 Elements of the Waterfowl Habitat Restoration Plan

14 unrelated to lake level shall be implemented as soon as

15 practicable. The timing of the implementation of elements

16 of the Waterfowl Habitat Restoration Plan related to lake

17 level shall be addressed on a case-by-case basis."

18 MS. SCOONOVER: Mr. Kavounas, are you familiar with

19 these ten guidelines?

20 MR. KAVOUNAS: Yes. To the extent that I read them in

21 the scientists' plan, yes.

22 MS. SCOONOVER: And would you say particularly that

23 Item 1, the restoration of pre-1941 waterfowl habitat

24 conditions and ecological processes where feasible is, in

25 fact, a goal or objective?

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1 MR. KAVOUNAS: I have no opinion on that. That seems

2 to be -- to me to be one of the ten. I don't know why it

3 would be more than the others.

4 MS. SCOONOVER: So taken together, could you interpret

5 these ten guidelines as goals and objectives for the

6 Waterfowl Habitat Restoration Plan?

7 MR. KAVOUNAS: I take them as guidelines.

8 MS. SCOONOVER: And that differs from a goal or

9 objective how?

10 MR. KAVOUNAS: These are guidelines -- to my

11 understanding, these are guidelines on selecting and perhaps

12 developing the scope of projects that would restore

13 waterfowl habitat.

14 MS. SCOONOVER: Did the Department of -- Mr. Kavounas

15 or Mr. Tillemans, did the Department of Water and Power, to

16 your knowledge, supply the waterfowl scientists with any

17 additional guidelines, goals or objectives than these ten

18 and probably the Decision 1631?

19 MR. KAVOUNAS: I can't speak before my time, but when

20 I joined I am not aware that the Department did.

21 MS. SCOONOVER: Mr. Kavounas, turning to page two of

22 your testimony, which was Exhibit 32, the first paragraph,

23 you comment that in the second sentence "...we were under

24 the impression that partial flow in Mill Creek, enough to

25 reach the edge of Mono Lake, would suffice for waterfowl

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1 habitat restoration."

2 If, in fact, Mr. Kavounas, the entire flow of Mill

3 Creek was required in order to restore waterfowl habitat,

4 would your conclusion be different?

5 MR. KAVOUNAS: Which conclusion?

6 MS. SCOONOVER: The conclusion that partial flows

7 would be supplied -- let me restate it. It's not very

8 clear.

9 Your statement at page two, the first paragraph is

10 that it is your -- you are under the impression that partial

11 flow in Mill Creek, enough to reach the edge of Mono Lake,

12 would suffice for waterfowl habitat restoration.

13 If, in fact, scientists were able to prove to your

14 satisfaction that the entire flow of Mill Creek was

15 necessary in order to restore waterfowl habitat, would the

16 Department of Water and Power then implement that

17 recommendation?

18 MR. BIRMINGHAM: Calls for speculation.

19 CHAIRMAN CAFFREY: Are you authorized to answer the

20 question, sir?

21 MR. BIRMINGHAM: Excuse me, I'm not sure it's a

22 question of authority here. There are a number of legal

23 impediments to the -- carrying out the plan that was

24 proposed by the scientists -- let me restate it.

25 There are a number of legal impediments to restoring

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1 the full flow of Mill Creek to Mill Creek. Mr. Beckman, I'm

2 sure, is going to stand up and say he's got legal rights.

3 Southern California Edison has --

4 CHAIRMAN CAFFREY: Wait, wait, wait, one at a time.

5 Go ahead.

6 MR. BIRMINGHAM: Perhaps if she could lay a foundation

7 and ask Mr. Kavounas a question assuming that those legal

8 impediments can be overcome what would the Department do,

9 that may be an appropriate question but --

10 MR. DODGE: Mr. Chairman, when all is said and done I

11 think we will prove to this Board that there are no legal

12 impediments whatsoever. So I don't think you can assume

13 that Mr. Birmingham's statement is correct.

14 MS. SCOONOVER: Mr. Caffrey --

15 CHAIRMAN CAFFREY: Just a moment, Ms. Scoonover, thank

16 you.

17 (Pause.)

18 I'm going to overrule the objection, but it's only if

19 you have the authority to answer the question. If you have

20 the authority, one could argue perhaps it's not speculation.

21 Do you have the authority to answer the question?

22 MR. KAVOUNAS: Yes, I do.

23 CHAIRMAN CAFFREY: Give it your best shot.

24 MR. KAVOUNAS: I will, thank you.

25 Assuming that you could prove that all the water is

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1 required to flow back into Mill Creek to create waterfowl

2 habitat, I would take that proposal into consideration and I

3 would consider it under the guidelines that the Decision

4 1631 has given the Department of Water and Power. The one

5 that comes to mind first is whether it's economically

6 feasible to do. I can't tell you right now what my

7 conclusion would be.

8 MS. SCOONOVER: Thank you. Paragraph two on the same

9 page of your testimony you refer to the DeChambeau/County

10 Ponds/Black Point element of the scientists' plan and in

11 about the middle of that paragraph note "...that the total

12 acreage that could potentially be 'restored' is minimal

13 compared to the area of the lake..." and, therefore, it does

14 not value the expense.

15 Is there a question of whether the DeChambeau/County

16 Pond Complex provides a value to waterfowl?

17 MR. KAVOUNAS: What I've been told has led me to

18 believe that there is. I've been told that the first phase

19 that was implemented there has not necessarily benefited

20 waterfowl.

21 MS. SCOONOVER: Just to clarify, you do have questions

22 as to whether or not County Pond Complex would benefit

23 waterfowl then?

24 MR. KAVOUNAS: Yes, I do.

25 MS. SCOONOVER: So it's not a size only calculation

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1 here? It's not, as this statement indicates, total acreage

2 compared to the area of the lake? It's more than that?

3 MR. KAVOUNAS: It is more than that. Let me relay to

4 you what I was told was that the project the way it was

5 constructed created a new condition for the ponds that

6 allowed excessive leakage and then the project itself was --

7 became financially infeasible in that it had to be kept -- a

8 well had to be operated at all times, which became too

9 expensive for the agency and I don't remember which agency

10 it was that had to fund it.

11 MS. SCOONOVER: And you're talking about the existing

12 DeChambeau project, not the proposal of the --

13 MR. KAVOUNAS: The Phase 1, correct, yes.

14 MS. SCOONOVER: Okay, thank you. DWP's plan does not

15 include a number of elements that were recommended by the

16 waterfowl scientists.

17 Did DWP consult with other waterfowl experts in

18 culling this list in order to determine the importance of

19 these elements to waterfowl?

20 MR. KAVOUNAS: Would you mind giving me the list?

21 MS. SCOONOVER: Page two, the third paragraph, Mill

22 Creek, DeChambeau as a whole, Salt Cedar control, elements

23 of monitoring.

24 MR. KAVOUNAS: Thank you, I forgot that was there.

25 No, those were decisions that were made using the guidelines

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1 as 1631 asked the Department to use.

2 MS. SCOONOVER: Were these decisions based on

3 feasibility?

4 MR. KAVOUNAS: Yes.

5 MS. SCOONOVER: Were these decisions based on cost?

6 MR. KAVOUNAS: Yes.

7 MS. SCOONOVER: Were these decisions based on value to

8 waterfowl?

9 MR. KAVOUNAS: In a roundabout way. Only the way

10 comparing total acreage to acreage of the lake.

11 MR. KAVOUNAS: Still on page two, the next paragraph,

12 we're making great progress, you comment that the entire --

13 the DWP has neither the ability nor the obligation to return

14 the entire flow of Mill Creek to its natural channel.

15 Do you see that testimony?

16 MR. KAVOUNAS: Yes. That would be the second line in

17 the fourth paragraph on page two, DWP does not have the

18 ability nor the obligation to do so, yes.

19 MS. SCOONOVER: Now, what elements would be required

20 to return the full flow of Mill Creek to the channel putting

21 aside any water rights issues, physical?

22 MR. KAVOUNAS: Okay, I'd have to speculate.

23 MS. SCOONOVER: Okay.

24 MR. KAVOUNAS: Counsel?

25 MS. SCOONOVER: I'm questioning the basis of your

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1 statement that DWP does not have the ability to return the

2 full flows of Mill Creek to its natural stream course. I

3 just want to know the basis for that statement.

4 MR. KAVOUNAS: Okay, what I mean by that statement is

5 the Department facilities do not permit the Department to

6 divert the flow as it exits the Lundy Power Plant to return

7 that flow into Mill Creek.

8 MS. SCOONOVER: So in order to return the full flows

9 to Mill Creek there has to be water. There has to be water

10 and we'll set aside the water rights question, but assume

11 that water either has to be appropriated or purchased.

12 Would you agree with me, then, that a physical

13 facility has to be created or upgraded in order to return

14 the water from the return -- from the tailrace into Mill

15 Creek?

16 MR. KAVOUNAS: I would say a physical facility has to

17 be created, upgraded or removed to return water into Mill

18 Creek.

19 MS. SCOONOVER: And then potentially blocked channels

20 in the Mill Creek bottomlands would have to be mechanically

21 opened. I understand that's the other recommendation?

22 MR. KAVOUNAS: I'm not sure that I understand the same

23 thing.

24 MS. SCOONOVER: Okay. Let's go back to just the water

25 and the return ditch.

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1 MR. KAVOUNAS: I'm sorry, I didn't say anything about

2 the return ditch. I said facilities would have to be

3 upgraded or removed.

4 MS. SCOONOVER: Okay. And is it physically possible

5 to do that?

6 MR. KAVOUNAS: Of course.

7 MS. SCOONOVER: Okay.

8 MR. KAVOUNAS: As an example, the Department could buy

9 the Lundy Lake and the power plant and remove the dam and

10 release the flow back to Mill Creek.

11 MS. SCOONOVER: And so it is physically possible to

12 do. Now, assuming that the water was either available for

13 appropriation or happened to be for sale at the present

14 moment, is it possible then that the Department of Water

15 Resources -- or the Department of Water and Power could

16 either appropriate the water or purchase the water rights?

17 MR. KAVOUNAS: Is it possible?

18 MS. SCOONOVER: Yes.

19 MR. KAVOUNAS: Yes.

20 MS. SCOONOVER: Okay. Now, talking about the

21 obligation of the Department of Water and Power, in that

22 same paragraph, the next sentence you make a statement that

23 a number of elements have been rejected because their

24 benefits are basinwide.

25 Do you mean to imply here that anything with a

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1 basinwide benefit has been eliminated as a possibility from

2 the restoration recommendations of the Department of Water

3 and Power?

4 MR. KAVOUNAS: No, I don't mean to imply that. If I

5 may explain what I mean?

6 MS. SCOONOVER: Certainly.

7 MR. KAVOUNAS: Something like Salt Cedar, although it

8 would benefit some areas, it would also benefit lands where

9 other land management agencies have responsibility and I see

10 that -- let's say, for example, the Mono Lake Collaborative

11 Task Force sets as a priority Salt Cedar removal on a

12 basinwide level. The Department is part of that

13 collaborative task force and will gladly participate in such

14 an effort. The same applies for the GIS.

15 MS. SCOONOVER: Is it your understanding then -- or

16 would you agree with me, Mr. Kavounas, that ducks are quite

17 a bit more mobile than fish?

18 MR. KAVOUNAS: I have no opinion on that. I'm neither

19 a hunter, nor a fisherman.

20 MS. SCOONOVER: Is it your understanding, Mr.

21 Kavounas, that most ducks possess the ability to migrate?

22 MR. KAVOUNAS: This is my understanding.

23 MS. SCOONOVER: And that birds --

24 MR. KAVOUNAS: As is with fish, I should add.

25 MS. SCOONOVER: And that birds can travel between

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1 bodies of water within a state, continent?

2 MR. KAVOUNAS: Yes.

3 MS. SCOONOVER: All right. Is it your understanding

4 that D-1631 required restoration of particular waterfowl

5 populations?

6 MR. KAVOUNAS: No.

7 MS. SCOONOVER: Is it your understanding that D-1631

8 required restoration of waterfowl habitat?

9 MR. KAVOUNAS: Yes.

10 MS. SCOONOVER: So it's habitat as opposed to specific

11 duck numbers or waterfowl numbers are required by the Order

12 and Decision?

13 MR. KAVOUNAS: The way I read it, yes.

14 MS. SCOONOVER: On page two, the sixth paragraph you

15 note that the scientists did not provide the basis for their

16 recommendations to continue to collect hydrologic data.

17 Did DWP inquire as to the basis for the three

18 waterfowl scientists' recommendation?

19 MR. KAVOUNAS: No.

20 MS. SCOONOVER: Did DWP consult with any other

21 waterfowl experts as to potential need for conducting this

22 kind of study?

23 MR. KAVOUNAS: Yes.

24 MS. SCOONOVER: And who would that be?

25 MR. KAVOUNAS: That would be Dr. Joe Jehl from Hubbs

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1 Research Institute.

2 MS. SCOONOVER: But Dr. Jehl will not be testifying

3 here today; is that correct?

4 MR. KAVOUNAS: That's correct.

5 MS. SCOONOVER: Or at all during these proceedings?

6 MR. KAVOUNAS: That is correct.

7 Would you like to know what his answer was?

8 MS. SCOONOVER: No, but thank you.

9 Is Upper Conway currently being irrigated with Mill

10 Creek water or with Virginia Creek water if you know,

11 Mr. Kavounas?

12 MR. KAVOUNAS: I have heard conflicting statements.

13 So I would have to speculate as to what is actually

14 happening there.

15 MS. SCOONOVER: Does your plan -- does the Department

16 of Water and Power's plan in any way affect the use or

17 application of Virginia Creek water?

18 MR. KAVOUNAS: Not to my knowledge.

19 MS. SCOONOVER: Who will implement the restoration

20 measures of the Waterfowl Habitat Plan?

21 MR. KAVOUNAS: I believe the plan specifies who will

22 be doing that. The specific measures, for example -- is

23 there a specific measure?

24 MS. SCOONOVER: Would the direction of the overall

25 restoration efforts rest with the Department of Water and

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1 Power?

2 MR. KAVOUNAS: I would say so, yes.

3 MS. SCOONOVER: Could the Department of Water and

4 Power adaptively manage restoration actions if it so chose?

5 MR. KAVOUNAS: That's getting outside my field of

6 expertise.

7 MS. SCOONOVER: In your testimony you noted that the

8 stream -- the waterfowl scientists failed to recommend or

9 design an adaptive management strategy.

10 Do you recall that testimony?

11 MR. KAVOUNAS: Remind me where it's at.

12 MS. SCOONOVER: Page three. I'm looking.

13 MR. KAVOUNAS: Perhaps the second to last paragraph in

14 the middle?

15 MS. SCOONOVER: Yes.

16 MR. KAVOUNAS: "The scientists proposal does not

17 include any standards of what positive or negative

18 restoration results would be. It is assumed that more

19 'habitat' is better, and more 'birds' are better. There's

20 no distinction between waterfowl and other birds that use

21 the lake, and whether it would be considered a success to

22 have more, or in case of certain species, less."

23 MS. SCOONOVER: In designing its waterfowl plan did

24 the Department of Water and Power implement or design an

25 adaptive management strategy?

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1 MR. KAVOUNAS: The Department of Water and Power did

2 not design a Waterfowl Habitat Restoration Plan.

3 MS. SCOONOVER: In determining which elements of the

4 street -- of the waterfowl scientists' plan to incorporate

5 into the Department's plan and in making modifications to

6 that plan, did the Department of Water and Power include any

7 previsions related to adaptive management?

8 MR. KAVOUNAS: Not to my knowledge.

9 MS. SCOONOVER: At page three of your testimony in the

10 fifth full paragraph -- so it would be the last paragraph on

11 the page -- you noted "...that the numbers present at the

12 lake depend more on the conditions of North American

13 waterfowl in general, than specific conditions at Mono

14 Lake." Do you recall that testimony?

15 MR. KAVOUNAS: I'm reading it right now, yes.

16 MS. SCOONOVER: Okay. Would you say that declines of

17 waterfowl populations at Mono Lake are directly related to

18 declines in waterfowl population throughout the Pacific

19 Flyway?

20 MR. KAVOUNAS: I can't answer that. I don't know

21 enough about it to answer that.

22 MS. SCOONOVER: In the waterfowl scientists' plan they

23 note that declines of the waterfowl -- declines of waterfowl

24 population at Mono Lake were many times greater than

25 declines elsewhere in the Pacific Flyway.

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1 Are you familiar with that?

2 MR. KAVOUNAS: If it's in there, I've read it. I

3 don't recall specifically where it is.

4 MS. SCOONOVER: Would you agree with me -- or with the

5 statement that waterfowl populations in the Basin are at

6 least partially dependent upon habitat conditions within the

7 Basin?

8 MR. KAVOUNAS: I don't know enough to answer that.

9 MS. SCOONOVER: Do you know what shovelers eat,

10 Mr. Kavounas?

11 MR. KAVOUNAS: I've been told that they eat brine

12 shrimp and brine flies.

13 MS. SCOONOVER: Do you know what makes up a majority

14 of their nutritional intake?

15 MR. KAVOUNAS: I don't.

16 MS. SCOONOVER: Mr. Tillemans, do you know?

17 MR. TILLEMANS: Not in any detail. Joe Jehl would,

18 who has studied Mono Lake more than I have. There's

19 probably a variety of aquatic insects that they feed on

20 but --

21 DR. WHITE: I reviewed one source of information on

22 that before coming here. There has been some work done at

23 Abert Lake. Of the waterfowl looked at, the shoveler stood

24 out as being less dependent on flies. The majority of their

25 diet was seeds and brine shrimp.

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1 MS. SCOONOVER: And is this study referenced in your

2 testimony, Dr. White?

3 DR. WHITE: It is referenced in David Shufford's

4 testimony.

5 MS. SCOONOVER: David Shufford's testimony in the

6 previous round of hearings?

7 DR. WHITE: No, he's yet to appear.

8 MS. SCOONOVER: Mr. Kavounas, back on page six of your

9 testimony, Item No. 3.

10 MR. KAVOUNAS: Excuse me, on page six?

11 MS. SCOONOVER: Page six.

12 MR. KAVOUNAS: Thank you.

13 MS. SCOONOVER: Item No. 3.

14 MR. KAVOUNAS: Yes.

15 MS. SCOONOVER: Did the Department inquire as to the

16 basis of the scientists' recommendations for vegetation

17 monitoring?

18 MR. KAVOUNAS: We did not ask the scientists.

19 MS. SCOONOVER: Did the Department consult with any

20 other experts on the need for vegetation monitoring?

21 MR. KAVOUNAS: Not to my knowledge. The monitoring

22 plan I got some assistance from Brian. So to get a complete

23 answer I'd have to ask Brian if he knows.

24 MS. SCOONOVER: That's fine, I'll move on.

25 MR. KAVOUNAS: Okay.

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1 MS. SCOONOVER: I assume you were talking about Brian

2 White?

3 MR. KAVOUNAS: I'm sorry, Brian Tillemans.

4 MS. SCOONOVER: Okay. Mr. Tillemans, would you care

5 to complete the answer then?

6 MR. TILLEMANS: Could you repeat the question?

7 MS. SCOONOVER: I was asking whether or not the

8 Department of Water and Power had consulted with other

9 experts in reaching the conclusion -- in trying to determine

10 the basis for the scientists' explanation of the -- the

11 basis of the scientists' recommendation for vegetation

12 monitoring?

13 MR. TILLEMANS: We relied solely on the waterfowl

14 scientists.

15 MS. SCOONOVER: And Mr. Kavounas testified that the

16 scientists did not provide the basis for that monitoring,

17 and I asked whether or not in eliminating that from the

18 Department of Water and Power's plan the Department

19 consulted with outside scientists or whether the decision

20 was made on some other basis?

21 MR. KAVOUNAS: Excuse me, eliminating what? I thought

22 you were talking about vegetation monitoring frequency.

23 MS. SCOONOVER: The vegetation monitoring frequency,

24 yes.

25 MR. KAVOUNAS: Perhaps I didn't explain my testimony

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1 adequately. What I'm trying to say there is that the

2 scientists did not specify how frequently to do vegetation

3 monitoring and the Department set a five-year interval. We

4 did not eliminate the proposal for vegetation monitoring.

5 MS. SCOONOVER: Were there comments on the plan with

6 regard to the frequency, the necessity of aerial photo --

7 MR. KAVOUNAS: For aerial photos --

8 MS. SCOONOVER: -- analysis, do you recall?

9 MR. KAVOUNAS: Yes.

10 MS. SCOONOVER: And do you recall the nature --

11 general nature of those comments?

12 MR. KAVOUNAS: The general nature of the comments, as

13 I recall -- well, I recall the nature of the comments and

14 the testimony that we just received that annual aerial

15 photography should be performed.

16 MS. SCOONOVER: Did any other party recommend aerial

17 photos every five years?

18 MR. KAVOUNAS: I'm sorry, I'm confused. You started

19 with veg monitoring.

20 MS. SCOONOVER: I'm sorry. Yes, vegetation

21 monitoring, I'm sorry, and then what I'd like to do is move

22 to aerial photo analysis, Item No. 6.

23 MR. KAVOUNAS: Okay.

24 MS. SCOONOVER: I'm sorry if that wasn't clear. Item

25 No. 6 on page six.

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1 MR. KAVOUNAS: Okay. The scientists' plan to my

2 knowledge did not recommend any aerial photography. That's

3 an area where -- I'm not going to say that it was creative

4 monitoring on the Department's behalf, but since we were

5 taking aerial photos for the Stream Monitoring Plan that was

6 acknowledged to be a very strong need. I thought we would

7 add it at the same frequency to any area in the Basin that

8 is considered waterfowl habitat. So that's an area where we

9 added to the stream -- excuse me, to the waterfowl

10 scientists' plan.

11 MS. SCOONOVER: Dr. White, I have a few questions for

12 you now. In your testimony on the first page, second

13 paragraph, which is DWP Exhibit No. 33, you note that the

14 limnological and biological features included in the DWP

15 plan have high value because of their functional

16 relationships -- because their functional relationships have

17 been described in a series of peer-reviewed scientific

18 publications. Do you recall that testimony?

19 DR. WHITE: Yes, I do.

20 MS. SCOONOVER: Have the value of these DWP studies

21 been assessed for waterfowl?

22 DR. WHITE: Not specifically, no.

23 MS. SCOONOVER: Is there any proof that monitoring

24 these elements and techniques are relevant to determining

25 the success of restoration efforts for waterfowl?

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1 DR. WHITE: Well, primary and secondary production are

2 two basic features that I think would be of general

3 interest.

4 MS. SCOONOVER: Does the Department of Water and Power

5 propose to monitor any new food sources -- potential new

6 waterfowl food sources?

7 DR. WHITE: Not at this time, no.

8 MS. SCOONOVER: Ctenocladus, for example, does the

9 Department of Water and Power propose to monitor for

10 Ctenocladus?

11 DR. WHITE: No.

12 MS. SCOONOVER: In your testimony, Dr. White, you

13 indicate that brine shrimp serves as an indicator species

14 for all secondary production in Mono Lake.

15 Is that your testimony? Do you recall that testimony?

16 DR. WHITE: I think it provides a good index of

17 invertebrate production, especially salinity effects.

18 MS. SCOONOVER: And an indicator species generally

19 serves as a surrogate or substitute for studying other

20 species because it's correlated with those species or it's

21 an indicator; isn't that correct?

22 DR. WHITE: That's one way to put it. Another way I

23 would put it in this context is that it is subject to the

24 same physiological processes that are of interest in other

25 species.

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1 MS. SCOONOVER: Do alkali flies inhabit the same

2 habitat as the brine shrimp?

3 DR. WHITE: The alkali fly are predominantly benthic,

4 no, and the brine shrimp are open water.

5 MS. SCOONOVER: Do they have different food

6 requirements?

7 DR. WHITE: The food of the -- I would say they do,

8 yes.

9 MS. SCOONOVER: Do they have differing developmental

10 traits?

11 DR. WHITE: In what way do you mean? They have

12 different larval stages.

13 MS. SCOONOVER: Different larval stages?

14 DR. WHITE: Yes.

15 MS. SCOONOVER: Different other developmental stages

16 as well?

17 DR. WHITE: Well, they have --

18 MS. SCOONOVER: Developmental traits.

19 DR. WHITE: They have a number of different larval

20 stages they pass through. The brine shrimp has a larger

21 number than the brine fly. They have adult reproductive

22 phases.

23 MS. SCOONOVER: Do both brine shrimp and alkali fly

24 follow the same population demographics or are there

25 differences?

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1 DR. WHITE: Well, the population demographics of the

2 brine shrimp are much better known. They primarily have two

3 generations per year. The alkali fly, I believe, has four

4 or more overlapping generations. So I would say that their

5 demographics are different and better known in the shrimp.

6 MS. SCOONOVER: Because the populations of shrimp and

7 flies, as you've testified occupy differing areas of the

8 lake, could they respond differently to a raise in the lake

9 elevation?

10 DR. WHITE: Oh, I think so, yes, and the different

11 models for those two populations take into account different

12 factors because those factors are different at different

13 lake elevations.

14 MS. SCOONOVER: So population models have been

15 developed for both alkali flies and for brine shrimp; is

16 that correct?

17 DR. WHITE: Oh, I don't know that I'd say a population

18 model's been developed for the alkali fly because enough is

19 not known of their population dynamics. There was a

20 production model that was developed for the EIR.

21 MS. SCOONOVER: Should these models be used as a

22 substitute for monitoring?

23 DR. WHITE: I think they are a compliment to

24 monitoring.

25 MS. SCOONOVER: So models are not necessarily the only

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1 way, then, of determining population levels and shouldn't be

2 entirely relied upon, is that --

3 DR. WHITE: Well, models are useful for a number of

4 purposes. One is to describe our best understanding.

5 MS. SCOONOVER: Would actual data on ecological

6 recovery help guide management decisions?

7 DR. WHITE: Oh, actual data, yeah. It's great stuff.

8 MS. SCOONOVER: You stated in your cross-examination I

9 think with Ms. Bellomo that you're familiar with both

10 published as well as non-published information collected on

11 alkali fly. Am I recalling that testimony correctly?

12 DR. WHITE: Yes, that is correct.

13 MR. FRINK: Mr. Chairman, I'm going to --

14 CHAIRMAN CAFFREY: Mr. Frink.

15 MR. FRINK: Yes, sir. I'm going to object to this

16 line of questioning. There were days, I believe, of hearing

17 devoted originally to populations of brine flies and brine

18 shrimp. Decision 1631 concluded that the water elevations

19 expected to result under the terms of the Decision that both

20 brine flies and brine shrimp would be in a healthy

21 condition, and I question the relevance of the questions in

22 this proceeding.

23 CHAIRMAN CAFFREY: Yeah, I agree, Mr. Frink.

24 MS. SCOONOVER: Mr. Caffrey, if I may. The health of

25 the lake as a potential for waterfowl habitat is dependent

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1 on a number of differing features. Dr. White identified

2 brine shrimp as an appropriate monitoring -- as an

3 appropriate element to monitor and that that is the

4 appropriate indicator of secondary productivity. Secondary

5 productivity to the lake affects waterfowl population.

6 I'm trying to find the basis for monitoring shrimp as

7 opposed to alkali fly. We did have lots and lots of

8 testimony of the importance of flies to the bird and

9 waterfowl population previously, but the Department of Water

10 and Power has reached a differing conclusion in its

11 Monitoring Plan.

12 CHAIRMAN CAFFREY: What about that, Mr. Frink? Is

13 there a linkage there?

14 MR. FRINK: I'm not certain that the Department of

15 Water and Power reached a differing conclusion that they

16 weren't important. I thought that they decided to monitor

17 the brine flies for certain reasons. But, in any event,

18 Decision 1631 made a finding that was not appealed from that

19 both species would be healthy with the water levels that

20 would result under the water diversion criteria of the

21 Decision.

22 So if we're now trying to prove that the conclusions

23 reached regarding brine fly and brine shrimp were erroneous,

24 I think it's outside the scope of this hearing.

25 CHAIRMAN CAFFREY: I agree.

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1 MR. DODGE: May I address that issue?

2 CHAIRMAN CAFFREY: Yes, Mr. Dodge.

3 MR. DODGE: I think the relevance is pretty apparent.

4 The three waterfowl scientists as a component of their

5 monitoring plan recommended monitoring the health of the

6 brine fly. Yet, Los Angeles in its proposed monitoring

7 program has deleted that; and I think Ms. Scoonover is

8 simply trying to get at the basis for that deletion and I

9 think it's clearly relevant.

10 MS. SCOONOVER: I'm almost finished, if that helps.

11 CHAIRMAN CAFFREY: Mr. Frink, do you think we're -- do

12 you still think after hearing Mr. Dodge's comment that we're

13 outside of the scope, it's kind of a gray area, or do you

14 still hold your position?

15 MR. FRINK: I still hold my position; but if there's

16 just a couple more questions, rather than argue about it I

17 guess we could have the questions.

18 CHAIRMAN CAFFREY: Yeah, all right. I won't sustain

19 the objection, but I will ask you to -- since this is a bit

20 of a problem, to just conclude quickly.

21 MS. SCOONOVER: I understand. Thank you,

22 Mr. Chairman.

23 Dr. White, in modeling the indicators or

24 characteristics that the Department of Water and Power has

25 identified to monitor, will the Department of Water and

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1 Power be able to determine the basis of population

2 fluctuations?

3 DR. WHITE: In the brine shrimp I believe so.

4 MS. SCOONOVER: In all of the -- brine shrimp or duck

5 food, waterfowl food, I assume, is but one of the elements

6 of bird populations; is that correct?

7 DR. WHITE: Oh, sure.

8 MS. SCOONOVER: And --

9 DR. WHITE: Speaking as a non-ornithologist.

10 MS. SCOONOVER: And simply because the population of

11 brine shrimp in the lake increases the same year that the

12 population of ducks increase, does it necessarily follow

13 from that conclusion that the brine shrimp led to the

14 increase in population of the duck?

15 DR. WHITE: No, I wouldn't conclude anything from a

16 single year's worth of data.

17 MS. SCOONOVER: From ten years' worth of data, if you

18 knew the brine shrimp population and you knew the duck

19 population?

20 DR. WHITE: I think a correlation or co-variation of

21 that sort would be something that you would look at as a

22 possible hypothesis, that the brine shrimp may have

23 contributed in some way.

24 MS. SCOONOVER: So habitat amounts and habitat types

25 wouldn't enter into this?

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1 DR. WHITE: Oh, sure it would.

2 MS. SCOONOVER: So there are a number of variables:

3 habitat types, habitat amounts and food availability?

4 DR. WHITE: I would think so and the condition of the

5 birds when they arrived and lots of things.

6 MS. SCOONOVER: If waterfowl scientists, in fact,

7 testified that the availability of alkali fly made a

8 difference -- was the primary food source for shovelers,

9 would that change your estimation or your recommendation

10 that monitoring brine shrimp is adequate to determine food

11 availability?

12 DR. WHITE: I think we need to distinguish here

13 between the different life stages of the alkali fly. The

14 alkali fly is being referred to here as though it's just one

15 thing.

16 MS. SCOONOVER: At any life stage.

17 DR. WHITE: At any life stage my understanding of --

18 within the context of bird food is that there are a number

19 of birds that take a lot of the brine fly adults and no one

20 has ever done abundance monitoring on the brine fly adults.

21 If you think the larvae is hard, you go try and chase the

22 adults with a net around the lake.

23 And, therefore, there is no baseline on the adults.

24 No one has proposed a baseline on the adults and I don't

25 think anyone thinks anyone should try to do the adults. So

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1 a large component not only of understanding the population

2 dynamics of the population as a whole is missing because you

3 don't even know how many of the reproductive stage is there,

4 a component of the bird food part is unavailable as well.

5 And you can perhaps make the simplifying assumption, which

6 is implicit in a lot of work that's been done, that more

7 larvae means more adults and you can make that assumption

8 because you have nothing else to work with; but if you made

9 that assumption in terms of the shrimp, you'd be wrong.

10 More larvae in the spring means less adults in the summer

11 because of intra-specific competition.

12 MS. SCOONOVER: The baseline information that you

13 refer to that's available for shrimp, who collected that

14 data? Who provided that baseline or created that baseline?

15 DR. WHITE: That would be Dr. John Melack and his

16 assistants and associates.

17 MS. SCOONOVER: And was the Department of Water and

18 Power a part of that effort?

19 DR. WHITE: We have been since about -- 1983, I

20 believe, we first started funding him. We originally were

21 going out and monitoring on our own for a couple of years at

22 the same time he was and it seemed like a duplication of

23 effort.

24 MS. SCOONOVER: And, finally, Dr. White, is the

25 Department of Water and Power funding any efforts to

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1 establish baseline data on alkali fly at any life stage?

2 DR. WHITE: Not at the present time, no.

3 MS. SCOONOVER: Thank you.

4 DR. WHITE: You're welcome.

5 MS. SCOONOVER: What's the remaining time,

6 Mr. Chairman?

7 CHAIRMAN CAFFREY: You have 20 minutes and 15 seconds.

8 MS. SCOONOVER: Thank you. I'd like to move to

9 Mr. Tillemans now.

10 Mr. Tillemans, in your written testimony you said that

11 the Department of Water and Power burn plan basically mimics

12 the waterfowl scientists' recommendations, but the

13 Department of Water and Power's plans actually talk in terms

14 of spring and winter burns. Do you recall that testimony?

15 MR. TILLEMANS: Yes, I do. But I don't know how

16 specific we're tied to spring, winter, fall, whatever. We

17 need to conduct experimental burns, as the waterfowl

18 scientists recommended, to find out what is the best

19 protocol.

20 MS. SCOONOVER: Did the waterfowl scientists recommend

21 spring burns?

22 MR. TILLEMANS: The waterfowl scientists

23 recommended -- and this is taken from their plan -- that the

24 seasonal wet habitats currently exist in Table 1 that could

25 be potentially enhanced by fire treatment. There is a

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1 lengthy discussion on various fires and what they have

2 learned in the past, and then they say that experimental

3 burns are needed to obtain the information necessary to

4 develop plans for future prescribed burns.

5 MS. SCOONOVER: Are you familiar, Mr. Tillemans, with

6 the scientists' recommendations that the burns actually be

7 conducted in fall and winter?

8 MR. TILLEMANS: That seems very appropriate being that

9 you're dealing with wetlands if you want to have some dead

10 vegetation around that would ignite and spring as well.

11 I've done a lot of burning in the Owens Valley.

12 MS. SCOONOVER: Mr. Tillemans, isn't there an

13 experimental burn program written up? Is there a plan for

14 an experimental burn program anywhere that the parties can

15 look at it?

16 MR. TILLEMANS: No, I just basically adopted the

17 recommendations of the waterfowl scientists in regards to

18 the burning program.

19 MS. SCOONOVER: Do the waterfowl scientists recommend

20 any kind of monitoring protocol?

21 MR. TILLEMANS: Yes, they do.

22 MS. SCOONOVER: And is that adopted in your -- will

23 that be adopted in your experimental burn program?

24 MR. TILLEMANS: My written testimony states that

25 "Monitoring through aerial photography and post burn

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1 vegetation transects will track the vegetation response,"

2 and monitoring, I assume, would be what the scientists have

3 recommended for the burn program.

4 MS. SCOONOVER: And is that monitoring recommended

5 anywhere in the scientists' program in any degree of

6 specificity that a consultant, for example, could be handed

7 the monitoring protocol and sent forth to monitor?

8 MR. TILLEMANS: I think that would probably be a

9 better question for the scientists who wrote the plan.

10 MS. SCOONOVER: I'm interested in the Department of

11 Water and Power's plan and the Department of Water and

12 Power's intent to implement the burn plan, Mr. Tillemans,

13 and with specific interest into exactly what the Department

14 is proposing.

15 In your testimony you refer to an experimental burn

16 program, coordination with the California Department of

17 Forestry and some recommended goals of acres to be burned.

18 Is there anywhere written a specific plan that

19 identifies potential burn sites, burn protocols or

20 monitoring protocols produced by the Department of Water and

21 Power?

22 MR. TILLEMANS: No, there is no specific plans and

23 there's -- can I give an explanation for that?

24 MS. SCOONOVER: Well, let me see if I can get there

25 with my next question then.

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1 Is it the Department's proposal to allow the

2 California Department of Forestry to create such a plan?

3 MR. TILLEMANS: Oh, no, it's every --

4 MS. SCOONOVER: So the Department will prepare it

5 in-house?

6 MR. TILLEMANS: Can I finish my answer, please?

7 MR. BIRMINGHAM: Excuse me, maybe the witness could be

8 permitted to finish his answer before --

9 CHAIRMAN CAFFREY: Yes. Ms. Scoonover, let him finish

10 his question -- his answer.

11 MS. SCOONOVER: Certainly, and I apologize.

12 CHAIRMAN CAFFREY: Go ahead.

13 MR. TILLEMANS: The intent of the burn program is to

14 have -- it's an interagency burn program. If we burn on

15 state lands, we'll get together and set our goals in terms

16 of the parties involved in Mono Basin in terms of what we

17 want to obtain and attempt -- if it's open water habitat or

18 whatever, it would be site specific, okay, and we plan on

19 getting together and ironing out with the agencies our goals

20 for the specific sites with the idea in mind to enhance the

21 area, like the waterfowl scientists recommended, for

22 waterfowl because there are areas that have potential to be

23 enhanced and improve the vigor of that vegetation due to

24 burning treatments; and that is our intent, as I stated, and

25 the CDF is just an implementation arm of that.

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1 When I worked with them in the Owens Valley -- and

2 I've done it for 15 years and I'm serious when I say I've

3 burned thousands of acres and many of those were wildlife

4 projects, waterfowl projects, many of those have been range

5 burns. We get together beforehand. We have, say, sensitive

6 plan issues, sensitive animal issues, whatever, and we

7 discuss where our concern's at and our goals and we work

8 very well with CDF in getting those burn plans done and

9 that's my intent here.

10 MS. SCOONOVER: Mr. Tillemans, have you in your 15

11 years of experience ever burned in a state park reserve

12 area?

13 MR. TILLEMANS: No, I haven't. And if I did admit it,

14 I'd be in big trouble.

15 MS. SCOONOVER: There are no rangers here, you're

16 safe.

17 Are you familiar with the requirements of the state

18 park reserves in terms of burning?

19 MR. TILLEMANS: In terms of burning? I'm not an

20 expert on state park policy, no.

21 MS. SCOONOVER: Are you aware that a -- that the

22 Department of Parks and Recreation sponsored a test burn a

23 year ago November in the Mono Basin?

24 MR. TILLEMANS: Yes, I am.

25 MS. SCOONOVER: And did you attend that test burn?

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1 Did you observe the test burn?

2 MR. TILLEMANS: Yes, I have seen that test burn.

3 MS. SCOONOVER: Were you present at the test burn at

4 Simon Springs in November of '95?

5 MR. TILLEMANS: Not when the burns were conducted, no.

6 MS. SCOONOVER: But you've been there since?

7 MR. TILLEMANS: Yes.

8 MS. SCOONOVER: It's your intent, then, as a spokesman

9 for the Department of Water and Power that if a burn were

10 required to occur on either state park land or U.S. Forest

11 Service land, that the management policies of those agencies

12 would be adhered to in developing the burn plan and

13 implementing the burn plan?

14 MR. TILLEMANS: Yes, I'd try to be cognizant of

15 management plans of those agencies and try to work within

16 those; and I think I can do that through this CDF program

17 based on the input from personnel within their agency.

18 MS. SCOONOVER: If the Department of Parks and

19 Recreation's management prescriptions and guidelines

20 specifically called for Department of Parks and Recreation

21 personnel to be in control of any fires that occur on park

22 land -- on park reserve land, is that consistent with the

23 Department of Water and Power's intentions for a prescribed

24 burn plan?

25 MR. TILLEMANS: Yes, I think -- you know, what you

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1 were talking about there, if it's on state lands, state park

2 lands and state park lands wants to direct the goals in how

3 to conduct the burn, that I have gotten an okay from CDF

4 that that is fine, they would still implement those burns

5 and we could have an interagency contract and joint

6 agreement as to the goals and implementation of that plan.

7 MS. SCOONOVER: If state policy required control of

8 the burns to be with the Department of Parks and Recreation,

9 would the Department of Water and Power reimburse the state

10 agencies for their time and expense in creating this

11 waterfowl habitat?

12 MR. TILLEMANS: When you say "control," do you mean --

13 could you explain that farther?

14 MS. SCOONOVER: Approve any prescribed burn plan as

15 well as have a joint burn boss, I think is the term, to

16 control the actual implementation, the setting of the fires,

17 the arrangement of any fire control units around the

18 preserves, assure that no tufa is going to be burned, those

19 kinds of things.

20 MR. TILLEMANS: So you're asking me if we're going to

21 reimburse a land agency for managing their lands?

22 MS. SCOONOVER: For waterfowl habitat restoration

23 required under D-1631, yes, that's the question.

24 MR. TILLEMANS: I think I'd have to consult before

25 answering that.

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1 MS. SCOONOVER: Mr. Tillemans, you earlier stated that

2 no one has concluded that waterfowl numbers are limited by

3 shortages of fresh and brackish habitat. Do you recall that

4 testimony in response to a question by Ms. Cahill?

5 MR. TILLEMANS: Could you please repeat that?

6 MS. SCOONOVER: You stated earlier that no one has

7 concluded that waterfowl numbers are limited by shortages of

8 fresh and brackish water habitat.

9 MR. TILLEMANS: I didn't state -- I didn't say no one

10 has concluded that. I think there is some theories out

11 there that that may be a distinct possibility, but as far

12 as -- you know, if you're relating to what has occurred in

13 Mono Lake, I think it's very difficult to tell exactly what

14 contributed to the problem at Mono Lake. Nobody's

15 monitored.

16 MS. SCOONOVER: I'm sorry?

17 MR. TILLEMANS: Nobody's monitored.

18 MS. SCOONOVER: Mr. Tillemans, would you disagree then

19 with the scientists -- stream scientists' report at page 47

20 where they identify the loss of these habitats as the

21 primary cause for waterfowl decline in the '60's?

22 MR. TILLEMANS: I think at this time, you know, I

23 don't think it's really important whether I share opinions

24 or differ with the waterfowl scientists because I think it's

25 irrelevant to this Board and in the time that we have

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1 because the Department worked with the waterfowl scientists

2 and the parties to reach general consensus and we've

3 accepted that plan based upon that process.

4 MS. SCOONOVER: Mr. Tillemans, how many acres are on

5 Lower Thompson Ranch above the County Road, do you know?

6 MR. TILLEMANS: Oh, above the County Road?

7 MS. SCOONOVER: Uh-huh.

8 MR. TILLEMANS: I know the Thompson lease is 281

9 acres.

10 MS. SCOONOVER: And can you tell me about what

11 percentage of that is located above the County Road?

12 MR. TILLEMANS: No, I can't, not without getting a map

13 out.

14 MR. PERRAULT: Here's a map.

15 MS. SCOONOVER: Fifty percent? Twenty percent? Just

16 a rough estimate would be fine, Mr. Tillemans.

17 MR. TILLEMANS: I can't tell you without having the

18 lease map.

19 MS. SCOONOVER: Fine. Are you aware of the existence

20 of springs below the county park in the wetland area that, I

21 believe, Ms. Cahill asked about -- or Ms. Bellomo asked

22 about?

23 MR. TILLEMANS: Yes.

24 MS. SCOONOVER: And are you aware of the existence of

25 tufa in that same area?

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1 MR. TILLEMANS: Yes.

2 MS. SCOONOVER: Mr. Perrault, in your testimony you

3 referred to Water Code Section 1707 application.

4 Is that part of your water rights application

5 currently pending before the Water Board?

6 MR. PERRAULT: I guess I don't understand the

7 question. Is the Water Code part of our water right

8 application?

9 MS. SCOONOVER: Water Code Section 1707 refers to

10 dedication of instream flows for purposes of fish and

11 wildlife.

12 Is that specifically mentioned in your water right

13 application pending before the State Water Resources Control

14 Board?

15 MR. PERRAULT: No.

16 MS. SCOONOVER: On page 13 of your testimony,

17 Mr. Perrault, in the item "D. Mill Creek Grazing

18 Moratorium," do you know if there are any other landowners

19 in the Mill Creek drainage aside from DWP?

20 MR. PERRAULT: Well, if you refer to the map, there --

21 depending on what you define as the "Mill Creek drainage."

22 MS. SCOONOVER: Using your term, I believe -- Mill

23 Creek floodplain, excuse me. Are there other landowners in

24 the Mill Creek floodplain aside from the Department of Water

25 and Power?

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1 MR. PERRAULT: I would have to answer that I would

2 have to defer that question. I can't answer that.

3 MS. SCOONOVER: The Department of Water and Power has

4 imposed a grazing moratorium on its lands in the Mill Creek

5 floodplain. Is that your testimony?

6 MR. PERRAULT: Yes.

7 MS. SCOONOVER: And assume there are other landowners

8 within this same floodplain. Would their grazing practices

9 affect the recovery of herbaceous and young woody plant

10 species?

11 MR. PERRAULT: I'm not qualified to answer the

12 question.

13 MS. SCOONOVER: I'm questioning, then, the basis of

14 your statement in that paragraph, the last sentence that

15 DWP's moratorium -- grazing moratorium will promote the

16 recovery of herbaceous and young woody plant species.

17 MR. PERRAULT: Was that a question or --

18 MS. SCOONOVER: If DWP is not the sole owner of land

19 or controller of grazing leases, then it's difficult to

20 ascertain what affect the DWP grazing moratorium would have

21 on the recovery of herbaceous and young woody plant species,

22 wouldn't it?

23 MR. PERRAULT: Would you restate the question, please?

24 MS. SCOONOVER: I'll withdraw it. It's not worth it

25 this late in the day to belabor the point.

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1 On the same page on page 13 where you're talking about

2 the United States Forest Service Mill Creek water rights and

3 the fact that it's a lower priority, setting aside again the

4 issue of priority of water rights, if the -- if we assume

5 that the Department of -- that the U.S. Forest Service does,

6 indeed, have water rights and I assume -- and I realize

7 that's an assumption we're not going to be exploring too

8 much here, but assuming they do have the water rights is

9 then the only limiting factor on whether those rights can be

10 returned to Mill Creek the size of the return ditch from the

11 tailrace back to Mill Creek?

12 MR. PERRAULT: No.

13 MS. SCOONOVER: What's the other limiting factor,

14 Mr. Perrault?

15 MR. PERRAULT: The other limiting factor? Well, I

16 guess I can't speak for the U.S. Forest Service whether they

17 would give up their water right or not.

18 MS. SCOONOVER: Assume the Forest Service is willing

19 to give up its water right, that it has the water right, is

20 willing to give it up and rededicate it to Mill Creek. Is

21 the size of the return ditch the limiting factor in whether

22 or not this could occur?

23 MR. PERRAULT: I'd have to answer that "no."

24 MS. SCOONOVER: Okay. I'll get to one final question,

25 then, since I'm almost out of time, and that is noted in

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1 your testimony that the Southern California Edison is

2 unwilling to upgrade its return ditch in order to carry

3 larger flows. Do you recall that testimony?

4 MR. PERRAULT: Yes, I do.

5 MS. SCOONOVER: And would that be the case if the

6 Department of Water and Power were paying for that upgrade?

7 MR. PERRAULT: I don't know.

8 MS. SCOONOVER: Thank you, that's all.

9 CHAIRMAN CAFFREY: All right. Thank you,

10 Ms. Scoonover.

11 I was wondering if this might be a good time to

12 adjourn for the day, unless Mr. Dodge -- how much time are

13 you going to need, Mr. Dodge? Are you going to take a full

14 hour or perhaps more or less?

15 MR. DODGE: I'm very bad at predicting. I very much

16 hope not to ask for an extension. I think I'll use probably

17 most of my time.

18 CHAIRMAN CAFFREY: My situation is I've got to be out

19 of here a little bit before 5:00. So it kind of sounds like

20 maybe we won't finish yours and -- how do my fellow Board

21 Members feel? Is this a proper time to maybe --

22 MR. BIRMINGHAM: Mr. Caffrey, I am sensing that these

23 witnesses are very tired, particularly Mr. Kavounas and

24 Mr. Tillemans, who have been sitting here for two days, last

25 night late into the evening and if we can break now, I would

CAPITOL REPORTERS (916) 923-5447

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1 request that we do that because I think they are tired.

2 CHAIRMAN CAFFREY: I think that's a good idea because

3 that way everybody gets a rest. We can't go at night anyway

4 and you can start fresh in the morning, Mr. Dodge.

5 MR. DODGE: I want Mr. Kavounas at his sharpest.

6 CHAIRMAN CAFFREY: That's how we want you, too,

7 Mr. Dodge.

8 Mr. Mooney, you have something?

9 MR. MOONEY: Yes, I do. I had a brief discussion

10 with --

11 CHAIRMAN CAFFREY: That's right, I'm sorry, we were

12 going to talk about that.

13 MR. MOONEY: No, but, actually, I think I have a

14 resolution to that.

15 CHAIRMAN CAFFREY: Oh.

16 MR. MOONEY: Los Angeles has agreed -- it's my

17 understanding has agreed to enter into a stipulation and

18 either we can do it on the record or I can submit something

19 in writing that they would agree that Conway Ranch, Arnold

20 Beckman, does not waive any claims or arguments to water

21 under the Mill Creek Decree -- 1914 Mill Creek Decree in any

22 future judicial or administrative proceedings. And if

23 that's the case, we will actually withdraw our testimony and

24 not proceed any further in this hearing.

25 CHAIRMAN CAFFREY: Remove yourself from the proceeding

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1 altogether?

2 MR. MOONEY: So long as it is clear that there's a

3 stipulation and, actually, I think I would like the Mono

4 Lake Committee folks to be a part of that because they have

5 introduced some testimony with regards to the Mill Creek

6 Decree and the water rights associated with Mill Creek.

7 It follows with the objections we've been hearing that

8 those are issues for another time, another place.

9 MR. BIRMINGHAM: Mr. Caffrey.

10 CHAIRMAN CAFFREY: Yes, Mr. Birmingham.

11 MR. BIRMINGHAM: It's the understanding of the

12 Department of Water and Power of the City of Los Angeles

13 that none of the decisions made by this Board in this

14 proceeding will have either a res judicata or collateral

15 estoppel affect on any issue related to water rights under

16 the decree or issues that would be raised in the water right

17 proceedings that will be conducted in connection with DWP's

18 water rights application. So we're perfectly agreeable to

19 enter into the stipulation suggested by Mr. Mooney.

20 CHAIRMAN CAFFREY: Mr. Dodge.

21 MR. DODGE: Mr. Mooney has not approached me and I'll

22 be happy to sit here after you all have left and talk to him

23 about it, but I don't have a position at this time.

24 It is our position ultimately that all -- or

25 substantially all of the water presently going down to

CAPITOL REPORTERS (916) 923-5447

602

1 Wilson Creek should be taken back to Mill Creek and if

2 that -- that may have some implications for Mr. Mooney's

3 client.

4 CHAIRMAN CAFFREY: Mr. Mooney.

5 MR. MOONEY: Well, whether or not it is their position

6 I think the issue remains whether or not the Conway Ranch --

7 they would object to the Conway Ranch asserting its claims

8 in the water rights adjudication since -- not the water

9 rights adjudication, but the application or in any judicial

10 proceedings, especially in light of the objections that I

11 received in terms of the questioning that I had about the

12 water rights.

13 From what the Board and the Chair has instructed, we

14 certainly -- we'd be precluded from putting on a water

15 rights case here, and I'd be happy to sit down with

16 Mr. Dodge afterwards and come to some type of agreement.

17 And if we cannot, then we'll be back here tomorrow I guess.

18 CHAIRMAN CAFFREY: Then you're actually offering

19 something else then, to ask for a ruling tomorrow morning

20 then, is that what I understand you to be saying, so that

21 you can sit down and talk with Mr. Dodge?

22 MR. BIRMINGHAM: I don't want to interject myself into

23 this, but I guess I'm going to. I don't understand how any

24 decision that this Board could make in connection with these

25 proceedings could affect Mr. Mooney's client's right to

CAPITOL REPORTERS (916) 923-5447

603

1 assert his water rights in some subsequent proceeding.

2 CHAIRMAN CAFFREY: And I'm just asking him for

3 clarification what is he saying before I go to Mr. Frink.

4 So maybe we should do it.

5 Mr. Frink, do you see any problem so stipulating for

6 the record?

7 MR. FRINK: I agree with what Mr. Birmingham just

8 said, that I can't anticipate a decision of the Board in

9 this proceeding affecting the water rights of Mr. Mooney's

10 client. If Mr. Mooney wants to appear in the absence of a

11 stipulation from the other parties that by not appearing

12 here he doesn't waive any rights, he could appear. It's up

13 to him to decide.

14 MR. MOONEY: Okay.

15 CHAIRMAN CAFFREY: All right. Then let the record

16 show the stipulation and we'll remove you from the

17 proceeding.

18 MR. MOONEY: And we'll also withdraw the testimony

19 with regard -- we actually had on the plan itself, too,

20 because there will be no need for that.

21 CHAIRMAN CAFFREY: All right, sir.

22 MR. DODGE: I have no objection to Mr. Mooney leaving,

23 but the record should be clear that I haven't been

24 approached for any sort of stipulation.

25 CHAIRMAN CAFFREY: We understand that. You've made

CAPITOL REPORTERS (916) 923-5447

604

1 that clear, Mr. Dodge, and we appreciate that, sir.

2 MR. DODGE: All right, thank you.

3 CHAIRMAN CAFFREY: All right. Then let's reconvene

4 tomorrow at -- oh, before I finish that statement let me

5 just say that for fear of my life I would like you all to

6 remove from the room any evidence whatsoever of food or

7 drink. Maureen Marche, whom you all know, is going to take

8 an inspection of the room tonight and you might lose a

9 hearing officer and have to start all over again.

10 DR. WHITE: She's typing.

11 CHAIRMAN CAFFREY: I understand that. That's

12 perfectly all right on the record as far as I'm concerned.

13 We will now adjourn and be back tomorrow at 9:00 AM

14 and we'll start with Mr. Dodge's cross-examination.

15 Thank you.

16 (Whereupon the proceedings were adjourned at 4:15 PM.)

17 ---oOo---

18

19

20

21

22

23

24

25

CAPITOL REPORTERS (916) 923-5447

605

1 REPORTER'S CERTIFICATE

2 ---oOo---

3 STATE OF CALIFORNIA )

) ss.

4 COUNTY OF SACRAMENTO )

5

6 I, TERI L. VERES, certify that I was the Official

7 Court Reporter for the proceedings named herein, and that

8 as such reporter I reported in verbatim shorthand writing

9 those proceedings; that I thereafter caused my shorthand

10 writing to be reduced to typewriting, and the pages numbered

11 365 through 605 herein constitute a complete, true and

12 correct record of the proceedings:

13 PRESIDING OFFICER: JAMES CAFFREY, Chairman

CAUSE: Mono Basin

14 DATE OF PROCEEDINGS: Wednesday, January 29, 1997

15

16 IN WITNESS WHEREOF, I have subscribed this

17 certificate at Sacramento, California, on this 6th day

18 of February, 1997.

19

20

21

___________________________

22 TERI L. VERES, CSR NO. 7522

23

24

25


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